Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 1 of 22 PageID #:262794
`
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`
` Civil Action No. 1:16-cv-08637
` IN RE BROILER CHICKEN ANTITRUST
` Judge Thomas M. Durkin
`LITIGATION
` Magistrate Judge Jeffrey T. Gilbert
`
` CERTAIN DIRECT ACTION
`THIS DOCUMENT RELATES TO:
`PLAINTIFFS’ MOTION FOR LEAVE
`Movant Direct Action Plaintiffs
`TO AMEND THEIR COMPLAINTS
`
`Certain Direct Action Plaintiffs (collectively “Movant DAPs”) seek leave pursuant to
`Federal Rules of Civil Procedure 15 and 16 to amend their allegations as follows:
` Certain DAPs seek permission from the Court to assert claims against the following:
`(1) existing defendant Amick; (2) existing defendant Case; (3) existing defendant
`Keystone; and (4) Rabobank.
`
` Certain DAPs seek permission from the Court to add federal and Georgia RICO claims
`to their existing causes of action.
`
` DAP Quirch Foods LLC seeks leave to amend its complaint solely to clarify that it is
`asserting claims in this action that also arise out of direct chicken purchases made by a
`newly-acquired affiliate, pursuant to an assignment of claims executed between Quirch
`and its affiliate within the last month.1
`
`There is good cause to permit these amendments, which will not prevent fact discovery
`from being completed by the current June 2021 deadline. Granting leave here is consistent with
`Rule 15(a)(2)’s direction that courts should “freely give leave when justice so requires.”2
`
`1 If permitted, these amendments would be made to the forthcoming Consolidated DAP Complaint
`(which will be filed on October 23, 2020 in accordance with ECF 3835). Pursuant to Local Rule
`26.3, the discovery materials quoted and cited herein are not being filed with the Court. If the
`Court so wishes, they will be added to the record.
`2 This motion is made pursuant to Federal Rules of Civil Procedure 15 and 16.
`
`1
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 2 of 22 PageID #:262795
`
`
`I.
`APPLICABLE RULES OF CIVIL PROCEDURE
`Motions to amend a pleading after the deadline set by a scheduling order are governed by
`Federal Rules of Civil Procedure 15 and 16.3 Under Rule 16(b)(4), “[a] schedule may be modified
`only for good cause and with the judge’s consent.” If the moving party demonstrates “good cause”
`under Rule 16(b), the district court then evaluates whether the movant meets the general standard
`for amending a pleading under Rule 15. In large or complex cases like this, “[d]evelopments in
`the litigation may call for subsequent modification of a scheduling order entered early in the
`litigation.” Manual for Complex Litigation, Fourth, § 11.212 at 39.4
`Rule 15(a)(2) instructs courts to “freely give leave when justice so requires.” Accordingly,
`a district court ordinarily should grant leave to amend unless there is “an apparent or declared
`reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
`failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
`party by virtue of allowance of the amendment, futility of amendment, etc.” O’Brien v. Vill. of
`Lincolnshire, 955 F.3d 616, 629 (7th Cir. 2020) (quoting Foman v. Davis, 371 U.S. 178, 182
`(1962)). District courts have broad discretion in making determinations regarding pleading
`amendment. Foster v. DeLuca, 545 F.3d 582, 584–85 (7th Cir. 2008) (reviewing denial of leave
`to amend for abuse of discretion).
`
`3 The following Movant DAPs are not subject to the Rule 16 standard and analysis, because their
`cases were transferred to the Broiler Chicken Antitrust Litigation consolidated master docket after
`the April 15, 2019 amendment deadline: Conagra DAPs (transferred on June 4, 2019); Giant
`Eagle, Inc. (filed 04/24/19); The Golub Corporation, Latina Boulevard Foods, LLC, and The
`Distribution Group, Inc. (d/b/a Van Eerden Foodservice Company) (filed 10/22/19).
`4 See also Fed. R. Civ. P. 16, Advisory Committee Notes – 1983 Amendment (“Since the
`scheduling order is entered early in the litigation, this [good cause] standard seems more
`appropriate than a ‘manifest injustice’ or ‘substantial hardship’ test. Otherwise, a fear that
`extensions will not be granted may encourage counsel to request the longest possible periods for
`completing pleading, joinder, and discovery.”).
`
`2
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 3 of 22 PageID #:262796
`
`
`BACKGROUND
`II.
`The last deadline in this case for certain DAPs to amend their pleadings was April 15, 2019.
`See Scheduling Order No. 9 (ECF 1416) (November 19, 2018).5 When that amendment deadline
`was approved by the Court it was reasonably established for approximately six months prior to
`the end of fact discovery—then set for October 14, 2019. See Scheduling Order No. 6 (ECF 1230)
`(September 13, 2018).
`The April 2019 deadline is a vestige of a case schedule that has materially changed in
`almost every respect over the nearly two years that have passed since it was set. Among other
`things, the U.S. Department of Justice Antitrust Division launched a criminal investigation into
`the broiler industry, intervened in this case, indicted 10 employees who worked for seven
`defendants in this case (
`)
`in its “ongoing” investigation, obtained a guilty plea for price fixing and bid rigging6 and a
`$110,524,140 fine from defendant Pilgrim’s Pride, and secured cooperation from defendant Tyson,
`which has sought amnesty from the DOJ after admitting to violating federal antitrust law. During
`this same two-year span since the amendment deadline was set for April 2019, the fact discovery
`deadline in this case moved 20 months—from October 2019 to June 2021.
`
`5 The April 15, 2019 amendment deadline pertained to DAP complaints then-pending before this
`Court and DAP complaints “Consolidated Between September 13, 2018 and January 15, 2019.”
`6 United States of America v. Pilgrim’s Pride Corporation, No. 1:20-cr-00330-RM, Document 1
`at ¶ 4 (D. Colo.) (“Beginning at least as early as 2012 and continuing through at least early 2019,
`the exact dates being unknown to the United States, in the State and District of Colorado and
`elsewhere, Defendant and its co-conspirators entered into and engaged in a continuing combination
`and conspiracy to suppress and eliminate competition by rigging bids and fixing prices and other
`price-related terms for broiler chicken products sold in the United States. The combination and
`conspiracy engaged in by Defendant and its co-conspirators was a per se unlawful, and thus
`unreasonable, restraint of interstate trade and commerce in violation of Section 1 of the Sherman
`Act, 15 U.S.C. § 1.”).
`
`3
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 4 of 22 PageID #:262797
`
`
`On March 5, 2020, the Court ordered that defendants and DAPs should “meet and confer
`regarding a plan for a consolidated complaint for Direct Action Plaintiffs, and a consolidated
`answer to that complaint. The meet and confer process should be completed by 4/10/2020.” (ECF
`3525). Numerous DAPs, acting in good faith, inferred from that order, and the Court’s order
`denying the Case motion to dismiss (ECF 3526, at 3 n. 2),7 that the consolidated complaint would
`serve as a vehicle for DAPs to amend their complaints without the need for a motion. In a joint
`status report filed in response to the March 5 Order, DAPs conveyed to the Court that some among
`them wished to amend their complaints. See July 10, 2020 Joint Status Report (ECF 3700) (“For
`some DAPs, this may function as an amendment, involving addition of Defendants and claims.”).
`In an August 29, 2020 Order (ECF 3778), the Court stated that “[i]n general, the parties are
`prohibited from using the preparation of consolidated pleadings as a vehicle for amending their
`pleadings. If the Direct Action Plaintiffs (or any other Plaintiffs, for that matter) want to amend
`their complaints, they must file a motion seeking leave to do so.” The Court’s August 26, 2020
`Order also indicated that the Consolidated DAP Complaint should not be filed until the Court ruled
`on then-pending motions concerning bid-rigging allegations. (ECF 3778). Unsure whether DAPs
`would need to file a motion in order to include bid-rigging allegations in the Consolidated DAP
`Complaint, the Movant DAPs waited for the Court’s ruling on that issue before filing a motion to
`amend. Once the Court ruled on the bid-rigging issue on September 22, 2020 (ECF 3835), the
`Movant DAPs prepared, and now file, this motion to amend.
`
`7 The Order on the Case motion to dismiss states in relevant part: “Additionally, the Court has
`ordered the parties to meet and confer and propose a plan for filing of a consolidated complaint
`among the Direct Action Plaintiffs, and a consolidated answer from Defendants. See R. 3525.
`Presumably, that consolidated complaint will contain all the allegations all the Direct Action
`Plaintiffs make against all Defendants, and will function as an amendment to some of the
`complaints at issue on Case’s motions.” (emphasis added).
`
`4
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 5 of 22 PageID #:262798
`
`
`III.
`THE AMENDMENTS SHOULD BE PERMITTED
`As explained below, the proposed amendments are not the product of undue delay or
`dilatory motive. Nor will any of the amendments interfere with fact discovery proceeding
`consistent with the existing timeline set out in Scheduling Order No. 14. To the contrary, with the
`exception of adding proposed defendant Rabobank, the amendments will essentially conform the
`allegations of the Movant DAPs to those of other plaintiffs, and track discovery that is already
`underway in the case.
`A.
`Leave Should Be Granted to Add Amick as a Defendant
`Amick Farms is currently a defendant in numerous cases in these consolidated proceedings.
`The Amick Movants8 have not previously named Amick as a defendant in their actions, but they
`timely opted out of the Amick settlement with the DPP Class by the March 9, 2020 date set by the
`Court (ECF 3757-3).9
`
`8 Affiliated Foods, Inc., Alex Lee, Inc., Merchants Distributors, LLC, Associated Grocers of New
`England, Inc., Big Y Foods, Inc., Fareway Stores, Inc. Piggly Wiggly Alabama Distributing Co.,
`Inc., Woodman’s Food Market, Inc., Action Meat Distributors, Inc., Associated Food Stores, Inc.,
`Bashas’ Inc., Certco, Inc., Ira Higdon Grocery Company, Inc., Nicholas & Co., Inc., Pacific Food
`Distributors, Inc., Troyer Foods, Inc., URM Stores, Inc., and Weinstein Wholesale Meats, Inc.,
`Howard Samuels as Trustee in Bankruptcy for Central Grocers, Inc., Colorado Boxed Beef Co.
`and King Solomon Foods, Inc., W. Lee Flowers & Co., Inc., Associated Grocers, Inc., Brookshire
`Grocery Company and Schnuck Markets, Inc., Giant Eagle, Inc., The Golub Corporation, Latina
`Boulevard Foods, LLC, The Distribution Group, Inc. (d/b/a Van Eerden Foodservice Company)
`(collectively, the “Affiliated Foods DAPs” or the “Amick Movants”) seek to add Amick Farms,
`LLC as a defendant.
`9 The right to opt out of a settlement would be meaningless if the right to sue a Defendant which
`was a party to the class settlement could not be exercised due to a prior scheduling order deadline.
`The Advisory Committee Notes to the 1983 amendment to Rule 16 contemplate modification
`under circumstances in which a schedule deadline cannot reasonably be met, stating that “[a]fter
`consultation with the attorneys for the parties and any unrepresented parties—a formal motion is
`not necessary—the court may modify the schedule on a showing of good cause if it cannot
`reasonably be met despite the diligence of the party seeking the extension.” (emphasis added). The
`Amick Movants submit that the good cause standard is met under the circumstances present here,
`where the opt-out deadline came after the amendment deadline.
`
`5
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 6 of 22 PageID #:262799
`
`
`The Amick Movants have good cause for this amendment and have acted diligently.
`Moreover, their naming Amick will not cause undue prejudice or delay or materially impact
`discovery because Amick has been named as a defendant by other plaintiffs, and discovery against
`it is ongoing. The Amick Movants will be seeking effectively the same discovery that other
`plaintiffs are seeking from Amick.
`Because Amick has been named as a defendant by other plaintiffs, and discovery against it is
`ongoing, allowing the Amick Movants to join the other plaintiffs will not cause undue prejudice
`or delay or materially impact discovery, and the amendment should be permitted.
`B. Leave Should Be Granted to Add Case as a Defendant
`Case Farms is currently a defendant in numerous pleadings in these consolidated
`proceedings, having been first sued by the Direct Purchaser Plaintiffs in their Fourth Amended and
`Consolidated Class Action Complaint, filed January 17, 2019. (ECF 1565). The Case Movants10
`have not previously named Case as a defendant in their actions because they were prohibited from
`doing so under the April 2019 deadline, but have good cause to do so now, and have acted
`diligently and without dilatory motives.
`The Case Movants have been able to learn a great deal about Case since the April 2019
`amendment deadline passed. After the amendment deadline Case produced more than 400,000
`pages of documents, as well as three sets of structured data (on March 10, 2020, March 24, 2020,
`and July 31, 2020). The first deposition of a Case witness occurred only weeks ago—on September
`30, 2020. Case’s Vice President, Gary Brian Roberts, was indicted on October 6, 2020. (ECF
`3857). Armed with knowledge that they necessarily lacked at the time of the April 2019
`
`10 The Affiliated Foods DAPs, Sysco and US Foods (hereinafter, the “Case Movants”) seek to add
`Case Farms, LLC; Case Farms Processing, Inc.; and Case Foods, Inc. as defendants.
`
`6
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 7 of 22 PageID #:262800
`
`
`amendment deadline, the Case Movants have good cause to join the numerous other plaintiffs
`prosecuting claims against Case.
`Because Case has been named as a defendant by other plaintiffs, and discovery against it
`is ongoing, allowing the Case Movants to join the other plaintiffs will not cause undue prejudice
`or delay or materially impact discovery, and the amendment should be permitted.
`C.
`Leave Should Be Granted to Add Keystone Foods as a Defendant
`Keystone Foods,11 currently owned by defendant Tyson, was first named as a defendant in
`this case in July 2020 when it was sued by DAP Independent Purchasing Cooperative, Inc. (“IPC”)
`(ECF 3717-3718), and has recently been named as a defendant by DAPs Brookshire Brothers, Inc.
`and SpartanNash Company (Case: 1:20-cv-06123, ECF 1). Keystone is being represented by the
`same counsel as Tyson.
`The already-filed allegations against Keystone contend that it violated Section 1 of the
`Sherman Act by a variety of means including (1)
`
` (ECF
`3717, ¶ 65); (Id. at ¶ 66); (Id. at ¶ 381); (2)
`
` (Id. at ¶¶ 286-88); (3) participation in key industry gatherings at which sensitive
`competitive information (including plans to reduce production) was exchanged among competitors
`(Id. at ¶¶ 299, 323, 402-404, 499); (4) participation in the “Strategic Alliance,” which facilitated
`the sharing of competitors’ future plans for the slaughter of spent broiler hens through joint
`ventures (Id. at ¶ 406); (5)
`
`
`11 In November 2018, Tyson acquired all of Keystone’s assets and liabilities, and integrating
`Keystone’s operations with that of Tyson. See IPC First Amended Complaint, ¶ 59. (ECF 3716).
`
`7
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 8 of 22 PageID #:262801
`
`
` (Id. at ¶ 426); and (6)
`
` (Id. at ¶ 427).
`The recent inclusion of Keystone as a defendant in this case—and the request of the
`Keystone Movants12 to do the same—followed careful analysis of approximately 420,000 pages
`of documents produced by Keystone in response to a subpoena, the first tranches of which were
`not received by DAPs until shortly before the original amendment deadline. The timing of the
`Keystone Movants’ amendment request is also tied to Keystone’s recent production of its broiler
`sales data in July 2020.
`The Keystone Movants have now marshaled substantial additional documentary evidence
`of collusive conduct from the documents produced by Keystone. That evidence shows, among
`other things:
`
`
`
`.
`
`12 Sysco; US Foods; Associated Wholesale Grocers, Inc. (“AWG”) (as to its own claims, as well
`as the claims assigned to AWG by Affiliated Foods Midwest Cooperative, Inc. (“AFM”)); the
`Affiliated Foods DAPs; the Conagra DAPs (comprising Conagra Brands, Inc., Pinnacle Foods,
`Inc., Kraft Heinz Foods Company, Nestlé USA, Inc., and Nestlé Purina PetCare Company);
`Services Group of America, Inc.; Quirch Foods, LLC; and Ahold Delhaize USA, Inc. (collectively,
`the “Keystone Movants”) seek to add Keystone Foods LLC and its wholly owned subsidiaries and
`affiliated entities Keystone Foods Corporation, Equity Group Eufaula Division, LLC, Equity
`Group Kentucky Division LLC, and Equity Group Georgia Division LLC (referred to collectively
`here as “Keystone Foods”) as defendants.
`
`8
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 9 of 22 PageID #:262802
`
`
`Because Keystone has been named as a defendant by other plaintiffs, and discovery against
`it is ongoing, allowing the Keystone Movants to join the other plaintiffs will not cause undue
`prejudice or delay or materially impact discovery, and the amendment should be permitted.
`Leave Should Be Granted to Add Rabobank13 as a Defendant
`D.
` Rabobank is the leading lender and financial institution serving the poultry industry. The
`broiler producers which have turned to Rabobank for credit and/or transactional work have
`included
`
`
`At the outset of this case—and, importantly, at the time of the April 2019 amendment
`deadline—it appeared that Rabobank was an innocent bystander, uninvolved in defendants’
`alleged misconduct. However, during discovery—including of Rabobank as a third-party—it has
`become apparent that Rabobank facilitated and participated in anticompetitive activities.
`Instead of serving as a disinterested market observer, lender, and advisor for transactions,
`Rabobank—to advance its own interests and bottom line—consistently sought industrywide action
`to alter the output and pricing of broilers.14
`One facet of Rabobank’s anticompetitive conduct involved coordination with defendant
`Agri Stats. In 2008, Rabobank retained as a consultant
`
` Adriaan Weststrate, the head of
`Rabobank’s poultry business, worked hand in hand with
` for years—and with producers—
`to fix prices of broilers.
`
`13 Sysco and US Foods (the “Rabobank Movants”) seek to add Utrecht-America Holdings, Inc.
`and its subsidiaries, Rabo AgriFinance LLC Rabobank, USA Financial Corporation, and Utrecht-
`America Finance Co. (collectively referred to here as “Rabobank”) as defendants.
`14 See Rabo0000097339
`
`.
`
`9
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 10 of 22 PageID #:262803
`
`
` his concern
`For example, during August 2008, Rabobank’s Weststrate expressed to
`that
`
`
` AGSTAT-14611985 (emphasis added).
`AGSTAT-14611984.
`
`In another August 2008 exchange, Weststrate complained to
`
` AGSTAT-14611888 (emphasis added).
` AGSTAT-14611887.
`
`A few weeks later during 2008,
` Rabo_0000054089.
`Rabobank’s role in the anticompetitive conduct also included encouraging communication
`among broiler producer competitors, and serving as a conduit for communications between and
`
`among those competitors. For example, in November 2013,
` Rabo_0000026431. A few days later
`
`10
`
`
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 11 of 22 PageID #:262804
`
`
`
` Rabo_0000026502.
`Rabobank also communicated directly with producers as part of an effort to coordinate
`industrywide action with respect to production and/or pricing.
`
`
`
`
`
`
`
` Rabo_0000094421.
`A few months later, during September 2011,
` Rabo_0000096353 (emphasis added).
`During his deposition in this case Weststrate acknowledged
`
`
`
`
`
`Weststrate Dep. Tr. 112:9-18.
`11
`
`
`
`
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 12 of 22 PageID #:262805
`
`
`Rabobank also used its reports and publications, shared widely with producers, including
`defendants, to effectuate producer coordination. See, e.g., Rabo_0000098182-83 (
`
`) (emphasis added). Those reports were sometimes amplified through the press.15
`Rabobank used its position as the leading lender and financial institution serving the
`
`industry to secure coordinated action. For instance,
` AGSTAT-15495441-42.
`That Rabobank has not yet been named as a defendant should not preclude its being made
`a party now. Rabobank is no stranger to this litigation. It has already responded to a subpoena,
`producing approximately 125,000 pages of documents, and defended depositions of two
`employees (Adriaan Weststrate and Michalene Donegan, on June 19, 2019, and August 14, 2019,
`respectively). Any additional discovery of Rabobank can and will be completed in accordance with
`the deadlines set for the case. And Rabobank has sufficient time to conduct its own discovery if it
`chooses to pursue any different from the voluminous discovery already sought by the existing
`defendants. Because the Rabobank Movants’ request is made with good cause, and will not materially
`prejudice Rabobank or other defendants, leave to amend should be granted.
`
`https://www.drovers.com/article/chicken-industry-faces-consolidation-after-
`15
`See,
`e.g.,
`disastrous-expansion (Dec. 12, 2011) (attributing to Rabobank the assertion that “the industry
`needs to ‘consider plant closures more intently’”).
`
`12
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 13 of 22 PageID #:262806
`
`
`E.
`Leave Should Be Granted for the RICO Movants to Add RICO Claims
`Against the Georgia Dock Defendants
`The RICO Movants16 request leave to add claims under the Racketeer Influenced and
`Corrupt Practices Act, 18 U.S.C. §§ 1962(c) and 1964(c), and the Georgia Code §§ 16-14-4(a) ,16-
`14-4(b), and 16-14-6 against the Georgia Dock Defendants, seeking all remedies available under
`the federal and Georgia RICO laws (“the RICO Claims”). The RICO Movants seek to bring these
`claims because the
`
`
`
` The Georgia Dock Defendants’ illegal acts injured the RICO Movants,17 who
`respectfully request leave to amend their claims. The RICO Movants have good cause for their
`requested amendment, have acted diligently, and the addition of the RICO Claims will not cause
`undue prejudice or delay.
`Although the original deadline to amend was April 15, 2019, DAPs have good cause to
`seek the requested amendment now under Fed. R. Civ. P. 16. Since the April 2019 deadline passed,
`
`16 The Affiliated Foods DAPs seek to add claims under the Racketeer Influenced and Corrupt
`Practices Act, 18 U.S.C. §§ 1962(c) and 1964(c) and Georgia Code §§ 16-14-4(a), 16-14-4(b), and
`16-14-6 against Defendants Pilgrim’s Pride, Tyson, Sanderson, Koch, Claxton, Harrison, Mar-Jac,
`Wayne Farms, and Fieldale (collectively, the “Georgia Dock Defendants”). Associated Wholesale
`Grocers, Inc. seeks to add its own claims and claims assigned to it by AFM under the Racketeer
`Influenced and Corrupt Practices Act, 18 U.S.C. §§ 1962(c) and 1964(c) and Georgia Code §§ 16-
`14-4(a), 16-14-4(b), and 16-14-6 against all Georgia Dock Defendants, except for Fieldale. The
`Winn-Dixie DAPs (Winn-Dixie Stores, Inc. and Bi-Lo Holdings, LLC) seek to add the above
`
`13
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 14 of 22 PageID #:262807
`
`
`the Georgia Dock Defendants collectively have produced more than over 900,000 pages of
`documents, and more than 35 sets of structured data. Although limited, virtual deposition
`discovery has occurred since discovery resumed, there is additional evidence that has emerged
`supporting RICO Movants’ civil RICO claims. See, e.g., Jesse Phillip Campbell September 21,
`2020 Dep. Tr. at 50:17-51:9 (
`
`); Campbell September 29, 2020 Dep. Tr. at 128:5-16 (
`
`); Campbell September 21, 2020 Dep. Tr.
`at 40:3-41:15 (same). In addition, in June 2020, some of the Georgia Dock Defendants’ employees,
`including Jayson Penn
`
` and Michael Fries
`were indicted by the DOJ. (ECF 3637-1). More recently, on October 7, 2020, DOJ filed a
`Superseding Indictment in its ongoing investigation. This Superseding Indictment named as
`defendants, among others, Bill Lovette
`, William Vincent Kantola
`, and Jimmy Lee Little
` both served on the Poultry Market
`.
`News Advisory Committee, and
` also worked for other Georgia Dock
`Defendants. (ECF 3857-1).
`The RICO Movants also meet the standard of Fed. R. Civ. P. 15. The Georgia Dock
`Defendants are not prejudiced. See, e.g., Stimac, 2018 WL 497367, at *2 (permitting the requested
`
`claims against all of the Georgia Dock Defendants, except for Fieldale. Collectively, the Affiliated
`Foods DAPs, Associated Wholesale Grocers, Inc. (as to its own claims and the claims assigned to
`it by AFM), and the Winn-Dixie DAPs are referred to as the “RICO Movants.”
`17 Defendants acquired money through racketeering activity and conducted their illegal enterprise
`through racketeering activity, in violation of Ga. Code Ann. §§ 16-14-4(a), 16-14-4(b), and 16-14-
`6. The Georgia Dock Defendants’ illegal conduct falls within the scope of Ga. Code Ann. §§ 16-
`14-3(5)(C) (federal wire fraud & federal mail fraud), 16-14-3(5)(A)(xxii) (false statements to
`government agency); and 16-14-3(5)(A)(xii) (theft by deception). The Georgia Dock Defendants’
`actions generally described above also violated federal RICO statutes, including 18 U.S.C. §§ 1961
`et seq., 1962(c), and 1964(c), and their unlawful conduct falls within predicate acts of racketeering,
`including but not limited to 18 U.S.C. § 1341 (federal mail fraud); 18 U.S.C. § 1343 (federal wire
`fraud) and (incorporated through 18 U.S.C. § 1961).
`
`14
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 15 of 22 PageID #:262808
`
`
`amendment because “it is not clear . . . what extensive additional discovery is required” that might
`constitute undue prejudice); Cohn v. Taco Bell Corp., No. 92 C 5852, 1993 WL 390176, at *3
`(N.D. Ill. Oct. 1, 1993) (granting leave to amend where the proposed new claims “do not change
`the orientation of the case”). Nor is there undue delay or dilatory motive. The RICO Movants are
`bringing their claims now, with almost eight months of discovery left in the case. The timing of
`the present motion does not delay or disrupt, but instead is consistent with, the Court’s previously
`contemplated calendar spacing between a deadline for motions to amend pleadings and the close
`of fact discovery. Further, the RICO Movants seek the requested amendment in good faith, there
`is no repeated failure to cure deficiencies by amendments previously allowed, and the requested
`amendment would not be futile. See March 3, 2020 Order (denying Sanderson’s motion to dismiss
`certain RICO claims) (ECF 3519). Accordingly, the Court should grant leave to the RICO Movants
`to add the RICO Claims.
`F.
`Quirch Foods, LLC Requests the Addition of Claims Assigned to it By Butts
`Foods, LP
`On May 8, 2020, the parent company of Quirch Foods, LLC (f/k/a Quirch Foods Co.)
`(“Quirch Foods”) acquired Butts Foods, Inc. (now known as Butts Foods, LP) (“Butts Foods”).
`Butts Foods purchased chicken directly from one or more of the defendants during the relevant
`period. On October 9, 2020, Butts Foods assigned all claims arising out of its chicken purchases
`to Quirch Foods. Pursuant to that assignment of claims, Quirch Foods seeks leave to amend its
`Complaint solely to clarify that it is asserting claims in this action arising not only out of its own
`direct chicken purchases, but also out of direct chicken purchases by its affiliate, Butts Foods.
`III.
`CONCLUSION
`For the foregoing reasons, the Movant DAPs respectfully request that their respective
`requests to amend the forthcoming Consolidated DAP Complaint be granted.
`
`
`15
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 16 of 22 PageID #:262809
`
`
`Respectfully submitted,
` /s/ Scott E. Gant
`
`Scott E. Gant
`BOIES SCHILLER FLEXNER LLP
`1401 New York Avenue, NW
`Washington, DC 20005
`Tel: (202) 237-2727
`Fax: (202) 237-6131
`Email: sgant@bsfllp.com
` Counsel for Sysco Corp. and US Foods, Inc.
`Co-Liaison Counsel for Direct Action Plaintiffs
`
` /s/ Ryan P. Phair
`
`
`Ryan P. Phair (#479050)
`Craig Y. Lee (admitted pro hac vice)
`Emily K. Bolles (admitted pro hac vice)
`HUNTON ANDREWS KURTH LLP
`2200 Pennsylvania Avenue, NW
`Washington, D.C. 20037-1701
`(202) 955-1500
`rphair@huntonak.com
`csimpson@huntonak.com
`ebolles@huntonak.com
` John S. Martin (admitted pro hac vice)
`HUNTON ANDREWS KURTH LLP
`Riverfront Plaza, East Tower
`951 East Byrd Street
`Richmond, VA 23219-4074
`(804) 788-8200
`martinj@huntonak.com
` Julie B. Porter (#6243787)
`SALVATORE PRESCOTT PORTER & PORTER, PLLC
`1010 Davis Street
`Evanston, IL 60201
`(312) 283-5711
`porter@sppplaw.com
`Co-Liaison Counsel for Direct-Action Plaintiffs
` Counsel for Ahold Delhaize USA, Inc.
`
`16
`
`
`
`
`
`
`
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 17 of 22 PageID #:262810
`
`
`
`
`
`
`
` /s/ David C. Eddy
`David C. Eddy, Esquire
`N.D. Illinois Bar No. 72258
`Dennis J. Lynch, Esquire
`N.D. Illinois Bar No. 07622
`ANTITRUST LAW GROUP, LLC
`1601 Assembly Street
`P.O. Box 8117
`Columbia, South Carolina 29202
`Telephone: (803) 253-8267
`Email: deddy@theantitrustlawgroup.com
`Email: dlynch@theantitrustlawgroup.com
` Counsel for Plaintiffs Conagra Brands, Inc.;
`Pinnacle Foods, Inc.; Kraft Heinz Foods Company;
`Nestlé USA, Inc.; and, Nestlé Purina PetCare
`Company
` /s/ Amy D. Fitts
`Amy D. Fitts IL Bar No. 629248
`Daniel D. Owen MO Bar No. 41514
`Pro Hac Vice
`Guillermo G. Zorogastua MO Bar No. 59643
`Pro Hac Vice
`POLSINELLI PC
`900 W. 48th Place, Suite 900
`Kansas City, MO 64112
`Telephone: (816) 753-1000
`Facsimile: (816) 753-1536
`Email: afitts@polsinelli.com
`Email: dowen@polsinelli.com
`Email: gzorogastua@polsinelli.com
` Rodney L. Lewis IL Bar No. 6288353
`POLSINELLI PC
`150 N. Riverside Plaza, Suite 3000
`Chicago, IL 60606
`Telephone: (312) 819-1900
`Facsimile: (312) 819-1910
`Email: rodneylewis@polsinelli.com
` Attorneys for Plaintiff
`Associated Wholesale Grocers, Inc.
`
`17
`
`
`
`
`
`
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 18 of 22 PageID #:262811
`
`
` /s/ John F. Gibbons_________
`John F. Gibbons
`Illinois Bar No. 6190493
`gibbonsj@gtlaw.com
`Thomas E. Dutton
`Illinois Bar No. 6195923
`duttont@gtlaw.com
`GREENBERG TRAURIG, L.L.P.
`77 West Wacker Dr. Suite 3100
`Chicago, IL 60601
`Telephone: 312-456-8400
`Fax: 312-456-8435
` Gregory J. Casas (admitted pro hac vice)
`Texas Bar No.: 00787213
`casasg@gtlaw.com
`Erik Weber (admitted pro hac vice)
`Texas Bar No.: 240898587
`weberer@gtlaw.com
`GREENBERG TRAURIG, L.L.P.
`300 West Sixth Street, Suite 2050
`Austin, Texas 78701-4052
`Telephone: 512-320-7200
`Fax: 512-320-7210
` Dominic E. Draye (admitted pro hac vice)
`Arizona Bar No. 033012
`drayed@gtlaw.com
`GREENBERG TRAURIG, L.L.P.
`2375 East Camelback Road, Suite 700
`Phoenix, AZ 85016
`Telephone: 602-445-8000
`Fax: 602-445-8100
` Attorneys for Services Group of America, Inc.
`
`
`
`
`
`
`
`
`
`18
`
`

`

`Case: 1:16-cv-08637 Document #: 3897 Filed: 10/20/20 Page 19 of 22 PageID #:262812
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` /s/ Jay B. Shapiro
`
`Jay B. Shapiro (Admitted pro hac vice)
`Samuel O. Patmore (Admitted pro hac vice)
`Carlos J. Canino (Admitted pro hac vice)
`Abigail G. Corbett (Admitted pr