Case: 1:16-cv-08637 Document #: 3811 Filed: 09/04/20 Page 1 of 2 PageID #:261021
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`The Honorable Thomas M. Durkin
`United States District Judge
`Everett McKinley Dirksen United States Courthouse
`219 South Dearborn Street
`Chicago, IL 60604
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`Liberty Square Building
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`450 5th Street, N.W.
`Washington, DC 20001
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`September 4, 2020
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`Re: In re Broiler Chickens Antitrust Litigation (16-cv-8637)
` This document relates to all actions
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`Dear Judge Durkin:
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`The United States, intervenor in this action, writes the Court for three reasons. First,
`the government takes no position on the Certain Defendants’ Motion to Exclude Bid-
`Rigging Claims from the In re Broilers Consolidated Proceedings [Dkt. 3687]. The
`government views the Motion to implicate the narrow case-management question of
`whether discovery on these claims are included in the consolidated proceedings or not.
`Once that question is resolved, the government will have an interest in ensuring whatever
`discovery is sought on these claims does not interfere with the grand jury’s investigation
`or the government’s active criminal litigation in the District of Colorado.1
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`Second, the government is now in criminal litigation resulting from an indictment
`that plaintiffs in several cases have explicitly referenced in their complaints. These
`developments increase the risk that future discovery in the civil action, whether in the
`consolidated proceedings or not, may interfere with the criminal prosecution—beyond
`the risk that has existed since the government intervened in this action. The government
`is not moving to stay discovery at this time, though depending on the nature and extent to
`which future discovery in the civil case interferes unduly with the criminal prosecution,
`the government may need to re-visit the question of whether the Court should stay
`discovery, at least in part, pending completion of the criminal prosecution. See Hollinger
`Int’l, Inc. v. Hollinger Inc., No. 04 C 698, 2006 WL 8460613, at *3 (N.D. Ill. Feb. 28,
`2006)(“[T]he most important factor to be considered in ruling on a motion to stay a civil
`case is whether the related criminal investigation has ripened into an indictment.”)
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`1 On June 2, 2020, a grand jury in the District of Colorado returned an indictment charging four individuals
`for their role in conspiring to fix the prices of broiler chicken products in violation of Section 1 of the
`Sherman Act, 15 U.S.C. § 1. See United States v. Penn, et al., 20-cr-152 (D. Colo.).
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`Case: 1:16-cv-08637 Document #: 3811 Filed: 09/04/20 Page 2 of 2 PageID #:261022
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`In a conference call on September 3, 2020, we summarized the foregoing
`information for the various constituencies in this litigation. We solicited the receipt of
`any objections to the foregoing ahead of our filing of this letter. We have received no
`objections.
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`Third, if the motion to exclude is granted, and discovery relating to the bid-rigging
`claims proceeds separately from the discovery consolidated in In re Broiler Chickens, the
`government respectfully requests a process that will continue to permit the government to
`receive copies of discovery requests to interpose timely objections as needed. This is the
`present approach in the consolidated proceedings.2 The government is prepared to submit
`a motion and proposed order to formalize the parties’ need to provide the United States
`with copies of all discovery requests, including requests for the production of documents
`as well as deposition notices, whether or not that discovery is propounded or taken within
`the In re Broiler Chickens consolidated proceedings or outside of it.
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`Respectfully submitted,
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`/s/ Michael Koenig
`Michael T. Koenig, Trial Attorney
`Carolyn M. Sweeney, Trial Attorney
`Paul J. Torzilli, Trial Attorney
`U.S. Department of Justice
`Antitrust Division
`450 Fifth Street, N.W.
`Washington, D.C. 20530
`(202) 616-2165
`Michael.Koenig@usdoj.gov
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`2 That approach has enabled the government to be informed of upcoming planned depositions so that, if the
`need arises, it can “file a sealed motion for a protective order with respect to that particular deposition,”
`Dkt. 3356 (order lifting stay), and has likely avoided needless motion practice.
`2
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