throbber
Plaintiffs,
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`v.
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`ARCHER DANIELS MIDLAND
`COMPANY,
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`
`Defendant.
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`)
`)
`)
`)
`)
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`Case No. 20-CV-2314
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`2:20-cv-02314-CSB-EIL # 53 Page 1 of 21
`E-FILED
` Tuesday, 12 July, 2022 02:27:36 PM
` Clerk, U.S. District Court, ILCD
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
`URBANA DIVISION
`____________________________________________________________________________
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`UNITED WISCONSIN GRAIN,
`PRODUCERS LLC, et al.,
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`
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`
`
`ORDER
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`
`Plaintiffs United Wisconsin Grain Producers LLC, Didion Ethanol, LLC, Ace
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`Ethanol, LLC, Fox River Valley Ethanol, LLC, Badger State Ethanol, LLC, and PLCP,
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`LLLP, filed a Complaint (#1) against Defendant Archer Daniels Midland Company
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`(“ADM”), alleging that ADM violated Section 2 of the Sherman Antitrust Act. See 15
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`U.S.C. § 2. Plaintiffs also raised a number of claims arising under the laws of Illinois,
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`Wisconsin, and Iowa. ADM filed a Motion to Dismiss (#12), which this court granted
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`(#32) on September 28, 2021.
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`
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`On October 19, 2021, Plaintiffs filed an Amended Complaint (#36). Presently
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`before the court is ADM’s Motion to Dismiss (#42) the Amended Complaint for failure
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`to state a claim, filed on December 9, 2021. Plaintiffs filed a Response (#45) on January
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`20, 2021; ADM filed a Reply (#49) that was docketed on June 2, 2022; and Plaintiffs filed
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`a Sur-Reply (#52) that was docketed on June 28, 2022. For the reasons set forth below,
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`2:20-cv-02314-CSB-EIL # 53 Page 2 of 21
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`ADM’s Motion to Dismiss (#42) is granted with respect to Counts I through IV of the
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`Amended Complaint. The court relinquishes jurisdiction over, and thus dismisses
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`without prejudice, Counts V through VII of the Amended Complaint.
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`BACKGROUND
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`The following background facts are taken from the allegations in Plaintiffs’
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`Amended Complaint. For purposes of ruling on the Motion to Dismiss, the court
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`assumes to be true all well-pled factual allegations in the Complaint and any inferences
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`that can reasonably be drawn therefrom. See Lewert v. P.F. Chang’s China Bistro, Inc., 819
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`F.3d 963, 966 (7th Cir. 2016).
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`The Amended Complaint
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`At the outset, the court notes that, with important exceptions discussed below,
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`the allegations contained within the Amended Complaint—and the claims derived
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`therefrom—are largely identical to those in the original Complaint. Thus, the court’s
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`detailed description of the original Complaint, set forth is its prior order of dismissal,
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`remains relevant.
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`
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`Plaintiffs allege in their Amended Complaint that ADM engaged in
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`monopolization (Count I) and attempted monopolization (Count II) in violation of
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`Section 2 of the Sherman Antitrust Act. See 15 U.S.C. § 2. Plaintiffs bring similar claims
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`(Counts III and IV) under parallel provisions of the Illinois Antitrust Act. See 740 Ill.
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`Comp. Stat. 10/3(3). Finally, Plaintiffs allege violations of the Illinois Consumer Fraud
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`and Deceptive Practices Act (815 Ill. Comp. Stat. 505/1 et seq.) (Count V) and tortious
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`interference with contract under Iowa (Count VI) and Wisconsin (Count VII) law. A
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`2
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`2:20-cv-02314-CSB-EIL # 53 Page 3 of 21
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`claim of violation of the Wisconsin Deceptive Trade Practices Act (Wis. Stat. § 100.18)
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`was previously dismissed by this court and has not been reraised in the Amended
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`Complaint.
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`
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`Plaintiffs allege that ADM engaged in unlawful conduct intended to depress the
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`price of ethanol. Specifically, Plaintiffs’ allegations relate to ADM’s conduct in the
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`ethanol terminal in Argo, Illinois (“Argo Terminal”). Trading for ethanol at the Argo
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`Terminal during the half-hour “Market-on-Close” (“MOC”) period each trading day
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`determines the Chicago Benchmark Price created by S&P Global Platts. The Chicago
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`Benchmark Price, in turn, sets the value of Chicago Ethanol Derivatives traded on the
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`Chicago Mercantile Exchange. Trades at the Argo Terminal are also used by the Oil
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`Price Information Service (“OPIS”) in its reports of daily Chicago OPIS Prices. Plaintiffs
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`sell ethanol primarily pursuant to Producer Sales Contracts that specify prices in a
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`formula based on the Chicago Benchmark Price, Chicago Ethanol Derivatives Prices, or
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`Chicago OPIS Prices—all of which are determined to some extent by sales prices at the
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`Argo Terminal during the MOC window.
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`Beginning on November 17, 2017, until an unknown date in at least mid-2019,
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`ADM became a prolific seller during the Argo Terminal’s MOC window, “flooding”
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`Argo with ethanol that it intentionally sold at uneconomically low prices. ADM’s
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`conduct included uneconomically buying and shipping ethanol to Argo when the prices
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`at the Argo Terminal were already lower than those at other terminals; selling ethanol
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`at the Argo Terminal for less than ADM’s variable cost to produce or obtain the ethanol;
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`selling during the MOC window even when ADM did not have enough physical
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`3
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`2:20-cv-02314-CSB-EIL # 53 Page 4 of 21
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`ethanol to deliver to satisfy the sales contracts; and aggressively reducing its prices
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`during the MOC window to capture 90 to 100 percent of sales in that period. The
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`Amended Complaint further alleges that ADM controlled seventy percent of the overall
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`Argo Terminal Market.
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`
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`Plaintiffs allege that ADM funded its operation through outsized short positions
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`in ethanol. A short position is a trading position where a derivative investment earns
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`money for a trader if the price of the underlying commodity decreases. By reducing
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`prices at the Argo Terminal during the MOC window, thereby decreasing the Chicago
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`Ethanol Derivative Prices, ADM created substantial gains on its short positions in
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`Chicago Ethanol Derivatives, sufficient to compensate ADM for its sales losses incurred
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`at Argo, with profit to spare. Plaintiffs incurred losses when they sold ethanol pursuant
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`to Producer Sales Contracts in which prices were based on a formula incorporating the
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`depressed MOC window ethanol prices from the Argo Terminal.
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`
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`Plaintiffs also provide numerous allegations regarding ethanol and the United
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`States ethanol market generally. The total ethanol production capacity in the U.S. is
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`nearly 16.3 billion gallons. ADM produces approximately 10% of the ethanol in the U.S.
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`Of the 200 ethanol plants in the U.S., 176 are located in the Midwest, and “[s]hipping
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`ethanol out of the Midwest for sale in other regions is therefore a routine part of the
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`ethanol production business.” There are more than 1,200 ethanol terminals in the
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`country, with the Argo Terminal being one of the largest.
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`4
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`2:20-cv-02314-CSB-EIL # 53 Page 5 of 21
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`Prior Order of Dismissal
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`In its first Motion to Dismiss, ADM argued, inter alia, that the original Complaint
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`was insufficient because Plaintiffs had failed to allege that ADM’s conduct had caused
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`competing ethanol producers to leave the market.
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`This court observed in its Order that because the alleged antitrust injury was
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`based upon low prices, Plaintiff was required to allege that ADM engaged in predatory
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`pricing, and that one element of a predatory pricing scheme is the actual or imminent
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`exit from the market by producers who can no longer make a profit.
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`The court, quoting R.J. Reynolds Tobacco Co. v. Cigarettes Cheaper!, 462 F.3d 690,
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`696 (7th Cir. 2006), found that Plaintiffs had failed to make the required allegations,
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`observing that “the Complaint still does not plausibly allege that Plaintiffs have ‘been
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`knocked out of the market or [are] in imminent danger of leaving,’ or that other ADM
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`competitors ‘tried and failed to enter the marketplace’ or already ‘exit[ed] the market.’
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`The court concluded that Plaintiffs’ failure to make “concrete allegations of producers
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`driven from the market due to ADM’s scheme” rendered them unable to properly
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`allege an antitrust injury, and was therefore fatal to their antitrust claims.
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`While that finding was sufficient to dismiss Plaintiffs’ antitrust claims, the court
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`went on to address the other grounds on which ADM claimed the original Complaint
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`was insufficient.
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`As relevant to the instant Order, ADM asserted in its first Motion to Dismiss that
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`Plaintiffs had failed to sufficiently allege that ADM had monopoly power, or that there
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`existed a dangerous probability of ADM achieving such power, in a legally viable
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`5
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`2:20-cv-02314-CSB-EIL # 53 Page 6 of 21
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`market—another required element of Plaintiffs’ antitrust claims. To wit, ADM pointed
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`out that, per Plaintiffs’ own allegations, it only held a roughly 10% share of the U.S.
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`ethanol market.
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`In response, Plaintiffs argued that they had “alleged sufficient circumstantial
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`evidence that ADM possessed market power at the Argo Terminal Market.” In support,
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`Plaintiffs pointed out that they alleged ADM possessed a market share of over 70% of
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`the Argo Terminal Market and over 90% of the sales during the MOC window.
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`Concluded Plaintiffs: “This is sufficient to allege monopoly power.”
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`This court rejected ADM’s argument, finding that Plaintiffs had alleged “the
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`distinctive features of the Argo Terminal Market and the related MOC-based pricing
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`formulas incorporated into Producer Sales Contracts.” Moreover, the court pointed out
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`that market definition is a deeply fact-intensive inquiry and that Plaintiffs had
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`adequately proposed a relevant market at the motion to dismiss stage.
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`Ultimately, the court dismissed without prejudice Counts I through IV of
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`Plaintiffs’ original Complaint solely on the grounds that Plaintiffs had failed to allege
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`that other ethanal producers had exited, or would imminently exit, the market. The
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`court affirmatively found that Plaintiffs’ monopolization and attempted
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`monopolization claims were sufficient in every other regard, including Plaintiffs’
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`allegations of the Argo Terminal Market as a legally viable market.
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`6
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`2:20-cv-02314-CSB-EIL # 53 Page 7 of 21
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`New Allegations
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`The lone shortcoming in the original Complaint found by this court in its prior
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`Order—the lack of allegations of producers exiting the market—is addressed in
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`Paragraph 91 of the Amended Complaint. That paragraph alleges that in or around
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`November 2018, approximately one year after ADM began its scheme:
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`(1) Green Plains Hopewell LLC “permanently closed” a 60 million gallon-per-
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`year capacity ethanol plant in Hopewell, Virginia;
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`(2) Green Plains Inc. “announced its intent to suspend operations” at a 119
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`million gallon-per-year facility in Fairmont, Minnesota;
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`(3) Little Sioux “cut in half” its 135 million gallon-per-year production at its
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`Marcus, Iowa plant; and
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`(4) Diamond Ethanol, LLC, a subsidiary of Conestoga Energy Holdings LLC
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`“halt[ed] production” at its 40 million gallon per year Levelland Texas plant.
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`Plaintiffs also allege in Paragraph 91 that in or around December 2019:
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`(5) Ergon Biofuels LLC, located in Vicksburg, Mississippi, “permanently shut
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`its 54 million gallon per year ethanol capacity [sic]”;
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`(6) Pacific Ethanol “shut down” a portion of its ethanol plant in Aurora,
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`Nebraska, amounting to a reduction in output of 45 million gallons per year;
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`(7) Green Plains Inc. “announced plans to idle” a 55 million gallon-per-year
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`plant in Fergus Falls, Minnesota, for up to one and a half years;
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`7
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`2:20-cv-02314-CSB-EIL # 53 Page 8 of 21
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`Additionally, Plaintiffs allege:
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`(8) In April 2019, Marquis Energy announced that it had terminated its plans to
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`build a $500 million ethanol plant near Bluffs, Illinois;
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`(9) In or around July 2019, Plymouth Energy “shut down” a 50 million gallon-
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`per-year plant in Merrill, Iowa;
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`(10) Around the same time, Central Minnesota Renewables LLC began to “wind-
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`down” and eventually closed its 21 million gallon-per-year ethanol plant in Little
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`Falls, Minnesota;
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`(11) In or around August 2019, POET “announced plans to permanently shut
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`down” a 92 million gallon-per-year plant in Cloverdale, Indiana;
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`(12) In or around August 2019, POET “announced it would trim operations at
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`about half of its remaining 27 ethanol plants”;
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`(13) In or around August 2019, Marquis Energy “announced that it would cut
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`ethanol output” at a 100 million gallon-per-year plant in Necedah, Wisconsin;
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`(14) In or around August 2019, Corn Plus Cooperative “announced it was
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`shutting down” a 48 million gallon-per-year plant. Corn Plus has since
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`announced a plan to restart the plant;
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`(15) In early November 2019, Valero Renewable Fuels Co. LLC – Riga
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`closed its 60 million gallon-per-year plant in Blissfield, Michigan, “with no plans
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`to reopen”; and
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`8
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`2:20-cv-02314-CSB-EIL # 53 Page 9 of 21
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`(13) In early November 2019, Valero closed its 120 million gallon-per-year
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`Bluffton, Indiana ethanol plant “until more ‘favorable economic conditions’”
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`return to the market.
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`ANALYSIS
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`In order to survive a motion to dismiss under Federal Rule of Civil Procedure
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`12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
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`claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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`(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Id.
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`“Factual allegations must be enough to raise a right to relief above the speculative
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`level[.]” Twombly, 550 U.S. at 545. In ruling upon a motion to dismiss, the court must
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`draw all reasonable inferences in favor of the plaintiff but need not accept as true any
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`legal assertions, threadbare recitals of the elements of a cause of action, or conclusory
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`statements. See Iqbal, 556 U.S. at 678.
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`In its current Motion to Dismiss, ADM argues that the Amended Complaint still
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`does not sufficiently allege an antitrust injury because it still has not properly alleged
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`that other ethanol producers exited the relevant market.1 ADM’s specific arguments are
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`discussed in further detail below.
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`1 ADM also argues that Plaintiffs have failed to allege in their Amended
`Complaint that ADM ever charged monopoly prices for ethanol, insisting that such
`conduct is a necessary element of a predatory pricing scheme. This court previously
`rejected this argument, finding the original Complaint sufficient in this regard. ADM
`9
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`2:20-cv-02314-CSB-EIL # 53 Page 10 of 21
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`General Antitrust Principles
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`Private civil actions to enforce the Sherman Antitrust Act are allowed under the
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`Clayton Act, 15 U.S.C. § 15. Sanner v. Bd. of Trade of City of Chicago, 62 F.3d 918, 926 (7th
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`Cir. 1995). As this court observed in its prior Order, the legal standards controlling
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`federal antitrust law and Illinois antitrust law are the same. See 740 Ill. Comp. Stat.
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`10/11 (“When the wording of this [Illinois Antitrust] Act is identical or similar to that of
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`a federal antitrust law, the courts of this State shall use the construction of the federal
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`law by the federal courts as a guide in construing this Act.”). Accordingly, claims under
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`the Illinois Antitrust Act “will stand or fall with federal … claims based on the same
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`underlying facts and legal theories.” VBR Tours, LLC v. Nat’l R.R. Passenger Corp., 2015
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`WL 225328, at *16 (N.D. Ill. Jan. 15, 2015); Laughlin v. Evanston Hosp., 550 N.E.2d 986,
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`989-90 (Ill. 1990). The court will therefore consider Counts I through IV of the Amended
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`Complaint in conjunction with one another.
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`Antitrust Injury
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`To recover under the Sherman Antitrust Act and the Clayton Act, a plaintiff must
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`first prove “antitrust injury,” which is an “injury of the type the antitrust laws were
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`intended to prevent and that flows from that which makes defendants’ acts unlawful.”
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`Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). At this stage of the
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`concedes that this argument is, at bottom, a request that this Court reconsider its
`previous ruling on the matter. Because the court dismisses the Amended Complaint on
`other grounds, it need not reach this argument or reconsider its prior ruling.
`10
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`2:20-cv-02314-CSB-EIL # 53 Page 11 of 21
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`proceedings, Plaintiffs must plausibly plead the existence of an antitrust injury. Tamburo
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`v. Dworkin, 601 F.3d 693, 699 (7th Cir. 2010).
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`The lowering of prices may create an antitrust injury where it crosses the line
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`from price cutting aimed simply at increasing market share to predatory pricing. Cargill,
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`Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 118 (1986). The Supreme Court has defined
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`predatory pricing as “pricing below an appropriate measure of cost for the purpose of
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`eliminating competitors in the short run and reducing competition in the long run.” Id.
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`at 117. Because the end goal of predatory pricing is the elimination of competition, it is a
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`practice “inimical to the purposes of [the antitrust] laws” and capable of inflicting
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`antitrust injury. Id. (quoting Brunswick, 429 U.S. at 488).
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`“Predatory pricing is a three-stage process: Low prices, followed by the exit of
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`producers who can no longer make a profit, followed by monopoly prices.” Wallace v.
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`IBM Corp., 467 F.3d 1104, 1106 (7th Cir. 2006). In order to sufficiently plead an antitrust
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`injury based on predatory pricing, a plaintiff must adequately allege “not only that
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`the defendant has sold products below cost but also that exit from the market has
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`occurred or is imminent, enabling the aggressor to recoup by setting monopoly prices
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`that injure consumers.” R.J. Reynolds Tobacco, 462 F.3d at 95; see also Schor v. Abbott
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`Labs., 457 F.3d 608, 613 (7th Cir. 2006) (“[T]he Supreme Court [has] held that low prices
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`are lawful, even if the seller has considerable market power, unless rivals have been
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`driven out of the market and recoupment is either ongoing or imminent.”).
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`11
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`2:20-cv-02314-CSB-EIL # 53 Page 12 of 21
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`
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`In the Amended Complaint, Plaintiffs identify at least 11 ethanol producers that
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`stopped ethanol production in a plant (either temporarily or permanently), decreased
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`ethanol production, or terminated plans to build a new ethanol plant.
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`The Parties’ Market Exit Arguments
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`ADM observes that the Amended Complaint contains no allegation that any of
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`those producers ever brought any ethanol to the Argo Terminal—the market that this
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`court previously found had been adequately pled by Plaintiffs. ADM concedes that it is
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`surely conceivable that some of the ethanol at those plants previously made its way to
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`Argo, but asserts that a complaint must make factual allegations that “nudge[ its] claims
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`across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
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`In their Response, Plaintiffs state: “To reach this conclusion, ADM ignores the
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`relevant market alleged by Plaintiffs, the U.S. Ethanol Market. In fact, ADM
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`never even mentions the defined U.S. Ethanol Market. Instead, ADM discusses only the
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`Argo Terminal Market[.]” Plaintiffs further assert that this court, in its prior Order,
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`approved their market definition, i.e., “the entire U.S. ethanol market.” Plaintiffs insist
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`that while the Argo Terminal market was the actual site of ADM’s conduct, the ultimate
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`goal was the reduction of ethanol prices in the U.S. market generally, through the Argo
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`Terminal’s unique role in the price-setting system. Left implicit in Plaintiffs’ Response is
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`that the ethanol producers discussed in Paragraph 91 of the Amended Complaint surely
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`exited the U.S. ethanol market. Plaintiffs make no argument that those producers exited
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`the Argo Terminal market or that the Amended Complaint plausibly states such a fact.
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`12
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`2:20-cv-02314-CSB-EIL # 53 Page 13 of 21
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`In its Reply, ADM points out, again, that this court previously found that the
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`Argo Terminal Market was properly pled as the relevant market. Moreover, ADM notes
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`that this court actually rejected ADM’s argument that the U.S. ethanol market was the
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`appropriate market. ADM concludes:
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`“Plaintiffs’ argument now—that they alleged, and the Court found adequately
`pleaded, a relevant market of the U.S. ethanol market—has things exactly
`backwards. The only relevant market that the Court held was adequately
`pleaded was the Argo Terminal Market. And the amended complaint’s market
`allegations are exactly the same as the original complaint’s.”
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`Finally, in their Sur-Reply, Plaintiffs accuse ADM of “attempt[ing] to confuse the
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`issues before the Court.” From there, Plaintiffs note that—in both the original and the
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`Amended Complaint—they alleged that “ADM had monopoly power in the
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`U.S. Ethanol Market as evidenced by its ability to control the prices therein.” Further,
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`they insist that the court “approved” their market allegations. Plaintiffs agree that the
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`market allegations are “virtually identical” between the original and Amended
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`Complaints. However, they maintain that “the Court has already found [that] by
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`leveraging its power in the Argo Terminal Market, ADM possessed market power over
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`U.S. Ethanol Market pricing.”
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`Sufficiency of Market Exit Allegations
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`The threshold dispute between the parties concerns from which market Plaintiffs
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`must allege other ethanol producers exited: the Argo Terminal market, or the U.S.
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`ethanol market generally. This court addressed Plaintiffs’ pleading of a relevant market
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`in its prior order, though in a different context. Resolution of the instant dispute
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`requires revisitation of that analysis.
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`13
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`2:20-cv-02314-CSB-EIL # 53 Page 14 of 21
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`
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`Plaintiffs’ monopolization and attempted monopolization claims require them to
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`plead and eventually prove that ADM has monopoly power in the relevant market or
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`that there is a dangerous probability of ADM achieving such power. Spectrum Sports v.
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`McQuillan, 506 U.S. 447, 456 (1993); United States v. Grinnell Corp., 384 U.S. 563, 570-71
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`(1966). Monopoly power may be proven either through direct evidence of
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`anticompetitive effects or, more conventionally, through inference from evidence of a
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`dominant share of a relevant geographic market. Toys “R” Us, Inc. v. F.T.C., 221 F.3d
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`928, 937 (7th Cir. 2000).
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`In response to ADM’s original Motion to Dismiss, Plaintiffs argued that they had
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`sufficiently alleged monopoly power (or a dangerous probability thereof) through
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`either method. With respect to anticompetitive effects, Plaintiffs pointed out that they
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`alleged ADM had depressed ethanol prices though manipulation of the Chicago
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`Benchmark Price via the MOC window at Argo, and that ADM’s conduct had caused
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`ethanol producers to idle their plants or consider leaving the market altogether. The
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`court summarily rejected this argument on the same grounds that it rejected Plaintiffs’
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`antitrust injury argument, namely, because they had failed to allege that any specific
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`producers had exited the market.
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` Plaintiffs argued that they had nevertheless sufficiently alleged monopoly
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`power through evidence of market share, pointing out that they “alleged that ADM
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`possessed a market share of over 70% of the Argo Terminal market [and] over 90% of
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`the sales in the MOC Window.” See MCI Communications Corp. v. Amer. Tel. & Tel. Co.,
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`708 F.2d 1081, 1107 (7th Cir. 1983) (“Where that data reveals a market share of more
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`14
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`2:20-cv-02314-CSB-EIL # 53 Page 15 of 21
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`than seventy to eighty percent, the courts have inferred the existence of monopoly
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`power”).
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`ADM argued that the Argo Terminal Market could not plausibly be considered a
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`legally viable market for purposes of showing monopoly power. In short, it argued that
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`it could not be said to have “monopoly power” over a single terminal, given that there
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`are over 1,200 other ethanol terminals in the country and that ethanol is routinely
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`transported from one terminal to another. ADM argued that the only relevant market
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`was the U.S. ethanol market, and that Plaintiffs were unable to allege monopoly power
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`in that market, given that, per the original Complaint, ADM produces only 10 percent
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`of the ethanol in the United States.
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`The court agreed with Plaintiffs. It found that Plaintiffs had adequately proposed
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`a relevant market at the Argo Terminal. Further, the court found that Plaintiffs’
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`allegations that ADM controlled 70 percent of the sales at Argo amounted to a sufficient
`
`allegation of market share from which monopoly power could be inferred.
`
`
`
`Plaintiffs’ current position—that this court previously found they had adequately
`
`alleged the U.S. ethanol market as the relevant market—is plainly refuted by the court’s
`
`prior order and by the parties’ arguments in advance thereof. Indeed, Plaintiffs clearly
`
`and explicitly argued the Argo Terminal market was the relevant market and the court
`
`adopted that argument. Accordingly, in order to satisfy the antitrust injury
`
`requirement, Plaintiffs are required to plausibly allege that other ethanol producers
`
`exited or would imminently exit that market.
`
`
`
`15
`
`

`

`2:20-cv-02314-CSB-EIL # 53 Page 16 of 21
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`
`
`Plaintiffs have failed to make such an allegation. There is no allegation that any
`
`of the producers referenced in Paragraph 91 ever brought ethanol to the Argo Terminal,
`
`such that the allegations in that Paragraph could be construed as an exit from that
`
`market. Indeed, as mentioned above, Plaintiffs do not actually argue that the allegations
`
`in their Amended Complaint adequately allege any exit from the Argo Terminal
`
`market.
`
`
`
`To be sure, it is not inconceivable that some of the ethanol produced by the now-
`
`shuttered plants was brought to market at Argo. But in order to be deemed sufficient at
`
`this stage, a complaint must make factual allegations that “nudge[ its] claims across the
`
`line from conceivable to plausible.” Twombly, 550 U.S. at 570. Per the Amended
`
`Complaint, there are more than 200 ethanol plants and more than 1,200 ethanol
`
`terminals nationwide. While many of the plants identified in Paragraph 91 are (or were)
`
`located in the Midwest, the Amended Complaint also alleged that “[s]hipping ethanol
`
`out of the Midwest for sale in other regions is . . . a routine part of the ethanol
`
`production business.” The bare fact that some of the ethanol from closed plants might
`
`possibly have passed through the Argo Terminal is insufficient. See Twombly, 550 U.S. at
`
`570.
`
`
`
`Accordingly, even assuming that the conduct described in Paragraph 91 could be
`
`construed as a market exit, Plaintiffs have failed to allege facts from which this court
`
`could reasonably infer that producers exited the Argo Terminal market. Plaintiffs have
`
`therefore failed to adequately allege an antitrust injury based on predatory pricing. See
`
`R.J. Reynolds Tobacco, 462 F.3d at 95.
`
`
`
`16
`
`

`

`2:20-cv-02314-CSB-EIL # 53 Page 17 of 21
`
`
`
`
`
`Relevant Market
`
`At this point, the court notes that Plaintiffs have made no request that the court
`
`revisit or reconsider its prior order, in which it found they adequately alleged the Argo
`
`Terminal market as the relevant market. Rather, Plaintiffs double down on their
`
`insistence that this court’s prior Order reaches the very opposite conclusion than the
`
`one it actually does. This seems to be an attempt by Plaintiffs to have their cake and eat
`
`it too: insist for purposes of pleading monopoly power that the relevant market is the
`
`Argo Terminal market, then argue for antitrust injury/market exit purposes that the
`
`relevant market is actually the U.S. ethanol market. Nevertheless, and in the interest of
`
`a complete analysis, the court will consider the result where—contrary to the prior
`
`order—the U.S. ethanol market is considered the relevant market.
`
`
`
`First, even if Plaintiffs’ new allegations satisfy the market exit requirement with
`
`respect to the U.S. ethanol market, Plaintiffs are unable to sufficiently plead that ADM
`
`has monopoly power in that market. As ADM pointed out in its original Motion to
`
`Dismiss, Plaintiffs allege that ADM produces 10% of U.S. ethanol, a far cry from
`
`monopoly power in that market. Neither in their original response nor in their current
`
`filings have Plaintiffs ever argued that they have adequately pled that ADM’s share of
`
`the U.S. ethanol market was indicative of monopoly power, and this court can discern
`
`no apparent basis to conclude otherwise. See Blue Cross & Blue Shield United of Wisconsin
`
`v. Marshfield Clinic, 65 F.3d 1406, 1411 (7th Cir. 1995) (“Fifty percent is below any
`
`accepted benchmark for inferring monopoly power from market share.”).
`
`
`
`17
`
`

`

`2:20-cv-02314-CSB-EIL # 53 Page 18 of 21
`
`
`
`Second, when the U.S. ethanol market is considered as a whole, the “market
`
`exits” described in Paragraph 91 are considerably less compelling.
`
`
`
`Up to this point, the court has treated the individual allegations in that
`
`paragraph as equally relevant, assuming, arguendo, that they all describe market exits.
`
`However, half of the 16 total allegations in that paragraph describe either output
`
`reductions at plants or shutdowns that were explicitly temporary in nature. On their
`
`face, these cannot be described as exits from the U.S. ethanol market. That conclusion is
`
`bolstered when one considers the context in which the requirement arises. Recall that a
`
`predatory pricing scheme follows a three-step process: “Low prices, followed by the
`
`exit of producers who can no longer make a profit, followed by monopoly prices.”
`
`Wallace, 467 F.3d at 1106. Axiomatically, it is the lack of competition that enables the
`
`monopoly prices. Ethanol producers who have only dialed back production, or
`
`temporarily suspended production (while waiting for prices to rise), would have
`
`brought ADM no closer to the end goal of predatory pricing scheme.
`
`
`
`Even allegations of permanent closures of ethanol plants do not themselves
`
`imply an exit from the market, as the law is concerned with producers, not plants. As
`
`the Amended Complaint illustrates, a firm may operate more than a single ethanol
`
`plant. For instance, Plaintiffs allege that POET “announced plans”2 to permanently close
`
`an ethanol plant. In the next line, it is alleged that POET would “trim operations” at its
`
`
`2 It is worth noting that some of the allegations in Paragraph 91 are couched in
`terms of the “announcement” of “plans” in 2018 or 2019. In some instances, the
`Amended Complaint—filed on October 19, 2021—makes no allegations concerning the
`actual implementation of those plans.
`
`
`
`18
`
`

`

`2:20-cv-02314-CSB-EIL # 53 Page 19 of 21
`
`remaining 27 plants. Surely POET cannot be said to have exited the U.S. ethanol market.
`
`In fact, the Amended Complaint lacks any concrete allegations that any ethanol
`
`producer actually stopped selling ethanol in the U.S. market.
`
`
`
`Finally, the court notes that even if every allegation of a permanently shuttered
`
`plant is construed as an “exit” from the U.S. ethanol market, that would amount to a
`
`capacity reduction of 375 million gallons per year, or slightly more than 2 percent of the
`
`16.3 billion gallon-per-year production capacity of the U.S. ethanol market. Given such
`
`a minimal impact on the market, now two to three years removed from ADM’s conduct,
`
`Plaintiffs have failed to plausibly allege a market exit that would give rise to a
`
`reasonable prospect of ADM imposing monopoly prices. See R.J. Reynolds, 462 F.3d at
`
`695; Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 243 (1993)
`
`(“[Defendant] had no reasonable prospect of recouping its predatory losses and could
`
`not inflict the injury to competition the antitrust laws prohibit.”).
`
`
`
`In summary, Plaintiffs have failed to allege that any producers of ethanol left the
`
`Argo Terminal market. Accordingly, where that market is considered the relevant
`
`market, Plaintiffs have failed to sufficiently plead an antitrust injury, as required to
`
`support their claims in Counts I through IV. Likewise, where the U.S. ethanol market is
`
`considered the relevant market, Plaintiffs have failed to adequately allege monopoly
`
`power, a dangerous probability of achieving monopoly power, or an antitrust injury.
`
`Counts I through IV of the Amended Complaint (#36) are therefore DISMISSED.

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