Case: 1:16-cv-08637 Document #: 3835 Filed: 09/22/20 Page 1 of 10 PageID #:261754
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`IN RE BROILER CHICKEN ANTITRUST
`LITIGATION
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`No. 16 C 8637
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`Judge Thomas M. Durkin
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`MEMORANDUM OPINION AND ORDER
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`This antitrust price-fixing conspiracy case consists of a number of actions
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`consolidated for pretrial management. Four newly consolidated complaints1 and one
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`amended complaint2 include claims that Defendants engaged in “bid-rigging,”
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`mimicking charges in a recent criminal indictment in the District of Colorado.
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`Defendants move to strike or sever these bid-rigging claims, arguing that they are
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`not part of this case, because the original complaints only alleged claims of
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`conspiracies to reduce Broiler supply and to manipulate the Georgia Dock price index.
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`In response, Plaintiffs argue that bid-rigging has been at the heart of the case since
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`its inception and indicate that they intend to amend all the consolidated complaints
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`to include this claim.
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`The Court has consolidated actions in this case pursuant to Local Rule 40.4,
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`which provides that “[t]wo or more civil cases may be related if . . . the cases involve
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`some of the same issues of fact or law; [or] the cases grow out of the same transaction
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`or occurrence.” Designating a case as related under Rule 40.4 is only permitted if:
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`1 20 C 3450; 20 C 3454; 20 C 3458; 20 C 3459.
`2 20 C 2013.
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`the handling of both cases by the same judge is likely to
`result in a substantial saving of judicial time and effort; the
`earlier case has not progressed to the point where
`designating a later filed case as related would be likely to
`delay the proceedings in the earlier case substantially; and
`the cases are susceptible of disposition in a single
`proceeding.
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`Similarly, under Federal Rule of Civil Procedure 42(a), when actions “involve
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`a common question of law or fact, the court may: (1) join for hearing or trial any or all
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`matters at issue in the actions; (2) consolidate the actions; or (3) issue any other
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`orders to avoid unnecessary cost or delay.” In addition, under Rule 42(b), “[f]or
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`convenience, to avoid prejudice, or to expedite and economize, the court may order a
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`separate trial of one or more separate issues [or] claims.” These rules give the Court
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`“virtually unlimited freedom” to manage related or consolidated cases “in whatever
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`way trial convenience requires.” 9A Fed. Prac. & Proc. Civ. § 2387 (3d ed.); see also
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`id. § 2388 (3d ed.) (“sound discretion”); id. § 2388 (“the district court may order
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`separate trials on its own motion”); Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir.
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`2008) (“The ultimate decision to order a separate trial under Rule 42(b) is at the
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`court’s discretion and will be overturned only upon a clear showing of abuse.”). This
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`includes limiting discovery to a “possibly dispositive issue . . . until after its
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`resolution.” 9A Fed. Prac. & Proc. Civ. § 2387. A district court may also “order a
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`separate trial of independent issues raised in pleadings that are interposed by any
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`party subsequent to the initial complaint[.]” Id. § 2389. In other words, “Rule 42(b)
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`provides the district court with discretion to subdivide the case in whatever manner
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`seems dictated by the circumstances.” Id.; see also id. § 2383 (“In addition, the district
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`2
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`court may deny consolidation when one of the actions has proceeded further in the
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`discovery process than the other.”).
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`The Court is aware that some courts in this district have found there to be a
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`distinction between “relatedness” under Local Rule 40.4 and “consolidation” under
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`Federal Rule 42(a). See, e.g., Saleh v. Merch., 2017 WL 2424229, at *2 (N.D. Ill. June
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`5, 2017); Peery v. Chicago Hous. Auth., 2013 WL 5408860, at *2 (N.D. Ill. Sept. 26,
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`2013). But the foregoing review shows that if there is a distinction, it is one of
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`semantics or degree only. A finding that cases are “related” is necessary for them to
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`be “consolidated.” But “consolidation”—and by extension “relatedness”—permits a
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`wide range of joint case management options, from the cases simply being presided
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`over by the same judge at one end of the spectrum, to a single trial at the other. Thus,
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`the Court does not see the utility in precisely delineating where “relatedness” ends
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`and “consolidation” begins.
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`In this case, the three putative class actions and numerous direct actions have
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`been found to be related, reassigned to the undersigned judge, and consolidated for
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`pretrial purposes. Plaintiffs point out that the cases have not officially been
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`consolidated for trial. See R. 256. But certainly, the Court and the parties have
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`contemplated that the cases likely will be consolidated to some extent, whether for
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`class certification determinations, summary judgment, or even for trial. And in any
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`event, the cases the Court has found to be related and “consolidated” under the
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`caption In re Broiler Chicken Antitrust Litigation are subject to this Court’s “virtually
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`unlimited” management discretion. This order is an exercise of that discretion.
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`There is a substantial relationship between the alleged bid-rigging claim and
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`the alleged supply reduction and Georgia Dock price index manipulation claims. All
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`three claims have the same goal of maintaining a high price for Broilers, involving
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`the same industry and defendants. These similarities mean that discovery for all
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`three claims is thoroughly intertwined in terms of the scope of relevant documents,
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`document custodians, and deponents. Further, legal rulings, factual findings, or
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`settlements regarding any of the claims will undoubtedly impact the others. This is
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`a sufficient basis for the Court to have found the four recently filed direct-action
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`complaints to be related and ordered them reassigned and consolidated at least for
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`pretrial purposes.
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`Defendants argue that the bid-rigging claim is distinct from the others because
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`it employed different means to fix prices during a different time period. But it is
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`plausible for a single conspiracy to use different means at different times. The Court
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`permitted the supply reduction and Georgia Dock claims to proceed together for just
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`this reason. See R. 541 at 63 (In re Broiler Chicken Antitrust Litig., 290 F. Supp. 3d
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`772, 809 (N.D. Ill. 2017)). The Court does not perceive there to be a material difference
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`in the relationship between the supply reduction and Georgia Dock claims, which
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`have proceeded together for almost four years; and the relationship between either of
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`those two claims and the bid-rigging claim. Absent such a difference there is not a
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`principled reason to force the bid-rigging claim to proceed in a separate action.3
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`3 Defendants’ argument that not all defendants have been implicated in the bid-
`rigging allegations is well-taken with respect to the criminal indictment. But all
`defendants would be at least significant third-parties in discovery on the bid-rigging
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`To the extent there is merit to Defendants’ argument that the bid-rigging claim
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`is substantively distinct such that severance is appropriate, there remains extensive
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`overlap among the parties, document custodians, deponents, and counsel. If the bid-
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`rigging claim was severed and filed before another judge, it is likely that scheduling
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`orders issued in that case would interfere with the progress of this case. The parties
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`and counsel would be required to negotiate the demands of an additional judge or
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`two, and it is likely that the judges already on this case would need to coordinate with
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`the new judges. There is no reason to add that complication to an already complicated
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`case.
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`However, in litigation as in life, timing is everything. Even though the bid-
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`rigging claim is properly related to this case, it cannot be denied that the bid-rigging
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`claim is new, while the supply reduction and Georgia Dock claims have been in the
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`case since its inception four years ago.4 In that time, an immense amount of motion
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`practice and discovery has occurred. This sprawling case already consists of: 56
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`related actions, 40 direct actions, and three classes (including every purchaser of
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`chicken meat in the United States), with each complaint more than 100 pages long;
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`252 attorney appearances and more than 3,800 entries on the docket; discovery of
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`more than 8 million documents (totaling millions more in pages), hundreds of
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`claim whether they are named defendants or not. And Plaintiffs point out that there
`are indications that more defendants will be implicated in that claim.
`4 Plaintiffs contend that the bid-rigging claim is not so new because discovery has
`revealed hints of bid-rigging. But the fact is the claim was not added to any complaint
`until after the criminal indictment was returned on June 3, 2020, little more than
`three months ago. While Plaintiffs claim that bid-rigging has always been at the
`“heart” of this case, that contention is simply not credible.
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`document custodians, 220 depositions taken with more than 100 to go. On top of all
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`that, the parties agree that the bid-rigging claims will require more document
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`discovery and likely re-taking of hundreds of depositions. This additional discovery
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`will take time that is not accounted for in current Scheduling Order No. 14, which
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`has no room to spare, and yet anticipates a trial that is still two years away. The
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`deadline for amending the class complaints has passed. See R. 1230. Now the filing
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`of class certification motions and the close of fact discovery are relatively imminent.
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`This case is already on borrowed time.
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`Furthermore, the government has indicated that it will seek to stay much of
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`any permitted bid-rigging discovery to protect its criminal prosecution. While as the
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`government points out that particular issue is not yet ripe, the Court notes that it is
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`commonplace for civil actions based on the facts underlying criminal charges to be
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`stayed during the pendency of the criminal proceedings. The supply reduction claim
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`and Georgia Dock claim are not going to wait for the criminal case to resolve itself.
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`The upshot is all three claims belong together in the same case, but they cannot
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`proceed together. Federal Rule of Civil Procedure 42 provides the solution to this
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`conflict. In accordance with the Court’s authority under Rule 42, and in order to
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`expedite and economize the process of bringing the supply reduction and Georgia
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`Dock claims to resolution, the bid-rigging claim is bifurcated from the original two
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`claims. See Chlopek v. Fed. Ins. Co., 499 F.3d 692, 700 (7th Cir. 2007) (under Rule 42,
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`judicial economy is a sufficient basis to order bifurcation). The original claims will
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`continue to proceed on the course set, most recently, by Scheduling Order No. 14. The
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`bid-rigging claim is stayed until the supply reduction and Georgia Dock claims are
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`resolved.
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`This is a feasible way forward, because although the bid-rigging claim is closely
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`related to the other two claims, evidence of bid-rigging is not necessary to prove the
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`supply reduction or Georgia Dock claims, so there is no prejudice to Plaintiffs in
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`resolving the original claims first. Proof of any of the three claims is sufficient to prove
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`liability under the Sherman Act. Under Plaintiffs’ theory of the case, all three claims
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`are means to the same end of manipulating Broiler prices. But because they are
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`concededly different means, litigation of those claims does not have to proceed
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`simultaneously. Notably, it was not until the criminal indictment returned three
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`months ago that Plaintiffs ever seriously suggested that they were going to rely on
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`bid-rigging evidence to prove their case.
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`This order also serves to deny the motion to compel currently pending before
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`Judge Gilbert, R. 3672. That motion turns, for the most part, on an argument that,
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`in February 2018, Judge Gilbert permitted discovery into bid-rigging in an oral ruling
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`on the scope of a request for production. Whether he did or did not is now irrelevant
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`because the Court has stayed litigation of the bid-rigging claim (in addition to
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`recently granting a protective order prohibiting discovery into the government’s
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`investigation). Discovery into bid-rigging is closed until the supply reduction and
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`Georgia Dock claims are resolved.
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`Some bid-rigging evidence has already come to light, either as a product of
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`discovery in this case or the government’s investigation and indictment. Plaintiffs
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`express an intention to use that evidence to help show intent or motive in the supply
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`reduction and Georgia Dock claims. See R. 3749 at 12. The parties spend many pages
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`addressing whether this evidence will prejudice defense of the supply reduction and
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`Georgia Dock claims or “taint” a trial on those claims. But this order is not a ruling
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`on those issues and it is not a preview of what evidence the Court will consider on
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`summary judgment or admit at trial of the supply reduction and/or Georgia Dock
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`claims. The Court will consider the evidentiary relevance or admissibility of any
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`evidence already discovered at the appropriate time in the future, whether summary
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`judgment or a motion in limine.
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`This order is simply a product of the fact that: (1) the three claims are related;
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`and (2) the supply reduction and Georgia Dock claims are much further along than
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`the bid-rigging claim. The late appearance of the bid-rigging claim necessarily means
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`it is on a different track from the other two claims, and this order simply
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`acknowledges that obvious circumstance. Through massive discovery, a nine-month
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`stay to accommodate the government’s investigation, and delay due to the COVID-19
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`pandemic, Plaintiffs have consistently pushed for expedient resolution of this case.
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`That is also the Court’s goal. The proper administration of the case cannot wait for
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`the new claim to catch up to the claims that have already been litigated for four years.
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`All parties—not to mention the Court—are entitled to have the case resolved
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`in a timely manner. There is a valid perspective that this case has already taken too
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`long. The attorney fees generated on both sides are enormous and may be problematic
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`for smaller defendants. This should not be a war of attrition. If the claims in this case
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`are not bifurcated it could be a decade before a judgment of any kind is reached. That
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`is unacceptable. True progress towards an end must be made, and bifurcating the
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`claims is the way to do that.
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`Another consequence of this order is that the consolidated direct-action
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`plaintiff complaint the Court has ordered, see R. 3653; R. 3778, should contain the
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`bid-rigging allegations. The purpose of the consolidated complaint is to streamline
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`the docket and future motion practice. Even though this case will proceed with the
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`original two claims and the bid-rigging claim on separate tracks, the intent to
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`streamline the docket would be frustrated by maintaining two sets of pleadings.
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`The order also serves to permit further amendment of already filed direct-
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`action complaints to include bid-rigging claims. However, the Court does not see the
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`need for every direct-action plaintiff to actually file an amended complaint; the
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`consolidated complaint should contain sufficient notice of which direct-action
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`plaintiffs are making which allegations and claims. But this order does not serve to
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`grant leave for further amendment beyond bid-rigging allegations without a separate
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`motion.
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`The direct-action plaintiffs should prepare and file a consolidated complaint by
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`October 23, 2020. Defendants should file their consolidated answer by November 23,
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`2020.
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`It is unclear to the Court whether the putative classes intend to amend their
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`complaints to include bid-rigging claims. And it is not apparent to the Court that the
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`bid-rigging claim is necessarily amenable to class treatment. But if class plaintiffs
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`intend to amend their complaints to include bid-rigging claims, those amended
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`complaints should also be filed by October 23, 2020. Defendants are prohibited from
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`filing individual answers to each class complaint. Instead, Defendants’ answers to
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`the class complaints should also be consolidated into one answer for each class
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`complaint, which are due November 23, 2020.
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`Conclusion
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`Therefore, Defendants’ motions [3687] [3745] are denied in part and granted
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`in part in accordance with this opinion and order. Plaintiffs’ motion to compel [3672]
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`is denied.
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`Dated: September 22, 2020
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`ENTERED:
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`______________________________
`Honorable Thomas M. Durkin
`United States District Judge
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