Case: 1:16-cv-08637 Document #: 4139 Filed: 01/06/21 Page 1 of 7 PageID #:277262
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`IN RE BROILER CHICKEN ANTITRUST
`LITIGATION
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`No. 16 C 8637
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`Judge Thomas M. Durkin
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`ORDER
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`Certain Direct-Action Plaintiffs seek to amend their complaints to add certain
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`defendants and claims. R. 3896; R. 3897. Two of the proposed defendants are already
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`named as defendants in other complaints in this case: defendant Casei since January
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`2019; and defendant Keystoneii since July 2020. Case and Keystone were originally
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`named as third-party co-conspirators in January 2018. Rabobank,iii the third
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`proposed defendant, is not yet a named defendant in any complaint, but has been
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`participating in discovery since February 2018, including depositions of Rabobank
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`employees. Additionally, some Plaintiffs seek to add to their complaints RICO claims
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`based on a conspiracy to manipulate the Georgia Dock price index.iv Similar claims
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`have been part of other complaints in the case since April 2019.1
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`1 Defendants do not oppose the motion by plaintiff Quirch Foods to amend its
`complaint “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.” R. 3896 at 1; see R. 4008 at 20 n.19.
`Originally, some Plaintiffs sought to amend their complaints to add Amick, which is
`also already a defendant in a number of complaints. Those Plaintiffs withdrew that
`portion of their motion. See R. 4084.
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`Defendantsv argue that the motion to amend is made without good cause in
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`violation of Federal Rule of Civil Procedure 16(b). “In making a Rule 16(b) good-cause
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`determination, the primary consideration for district courts is the diligence of the
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`party seeking amendment.” Alioto v. Town of Lisbon, 651 F.3d 715, 720 (7th Cir.
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`2011); Peters v. Wal-Mart Stores E., LP, 512 Fed. App’x 622, 627-28 (7th Cir. 2013)
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`(“[T]he good-cause standard focuses on the diligence of the party seeking amendment,
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`not the prejudice to the nonmoving party.”). A party’s diligence is assessed relative to
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`the circumstances of the case. See Alioto, 651 F.3d at 720 (“relative diligence”).
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`The April 15, 2019 deadline for amending the pleadings has passed. The Court
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`never set a new deadline, but the scheduling order has been significantly extended in
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`the meantime. When the April 15 amendment deadline was set, the cut-off date for
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`fact discovery was to have been five months later on October 14, 2019. The discovery
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`cut-off is now June 11, 2021, see R. 3788, which is more than six months away. Thus,
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`Plaintiffs have been diligent in bringing this motion relative to the current scheduling
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`order.2
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`Defendants argue that Plaintiffs’ delay in seeking the amendments is
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`inexcusable because the proposed defendants and claims have been part of the case
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`2 The Court found a lack of diligence in addressing an earlier motion to amend in this
`case made by the End-User Plaintiffs Class to add new class representatives. But
`that motion was filed after the original class discovery cut-off date and only two
`months before a revised class discovery cut-off date (which had been extended only
`because discovery was impossible for a period of time at the beginning of the COVID-
`19 pandemic, such that the extension did not actually provide additional time for
`discovery). Moreover, the Court granted that motion to the extent that a named
`plaintiff who was already the class representative for the District of Columbia, and
`had already been deposed, could also serve as the named plaintiff for New York.
`2
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`for years, so Plaintiffs should have sought these amendments sooner. But the
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`diligence relevant to a Rule 16 analysis is diligence relative to the scheduling order.
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`Delay in and of itself is not a lack of diligence.
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`A primary reason for requiring diligent action is “to keep the case moving
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`toward trial.” Alioto, 651 F.3d 715, 720 (7th Cir. 2011). And in this case, which is
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`already four years old, the Court is certainly concerned that the parties continue to
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`abide by the most recent scheduling order, which the Court noted has no room to
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`spare. See R. 3835 at 6. But Defendants do not explain how the proposed amendments
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`will delay meeting the deadlines in the scheduling order. Defendants sole argument
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`in this regard is that fifteen of the moving plaintiffs have already been deposed, and
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`Defendants “likely would have included different or additional questions during these
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`depositions had these parties been previously named as Defendants in the case (e.g.,
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`on their purchases from or interactions with [three of the proposed defendants]).” R.
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`4008 at 5. Perhaps this is true; but the Court finds it difficult to believe that any
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`dealings that are materially relevant to the case went unexamined during the
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`depositions. And it is not as though Defendants argue that any of the depositions will
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`have to be retaken. They simply contend that “additional discovery” will be necessary
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`to obtain answers to questions that went unasked. Such questions if they truly are so
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`important that they need to be asked, can be answered through supplemental
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`interrogatories, which will not extend the scheduling order.
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`Defendants also baldly contend that the proposed amendments unfairly
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`change Plaintiffs’ “theory of the case” and “broaden[] the scope of the case” too late in
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`3
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`the game. See R. 4008 at 1. Defendants, however, do not explain how the proposed
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`amendments change the case’s theory or scope. And this argument is belied by
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`Defendants’ own candid observation that the proposed amendments have been part
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`of the case for years.
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`Rabobank is the only proposed defendant that is not already a defendant in
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`another complaint in this case. But Rabobank is not a stranger to this case, as it has
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`been a significant participant in discovery. Defendants argue that Rabobank would
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`have participated in discovery differently if it knew it was a defendant. Again,
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`perhaps this is true. But that argument implicates Rabobank’s interests, not those of
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`any of the current Defendants making the argument on Rabobank’s behalf. Once
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`added, Rabobank can make arguments on its own behalf as to whether it can
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`adequately defend this case on the current timetable, if it has a legitimate basis to do
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`so.
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`Currently, this case is primarily about a supply-reduction conspiracy and a
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`conspiracy to rig the Georgia Dock price index. The addition of the proposed
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`defendants and claims to certain complaints does not add new theories to the case
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`nor broaden its scope. As such, there should be no impact on the scheduling order.
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`Without an impact on the scheduling order, Plaintiffs’ delay in bringing this motion
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`cannot be characterized as lacking diligence or prejudicing Defendants.
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`Lastly, Defendants argue that Plaintiffs’ claims against Case, Keystone, and
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`Rabobank are untimely based on the Court’s earlier finding that the statute of
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`limitations began to run “[a]t some point between February 18, 2014 and January 18,
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`4
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`2016.” R. 4008 at 14 (quoting R. 541 at 62). That finding was made three years ago in
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`deciding motions to dismiss the class complaints, prior to the filing of the Direct-
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`Action complaints at issue in this motion, and prior to extensive discovery that still
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`requires another six months before completion. The Court will wait to make any
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`ruling on the timeliness of these claims until summary judgment, when a complete
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`factual record will be available, and the Court can consider the views of all parties on
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`the issue. This is the prudent course because issues of accrual and the running of the
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`statutes of limitation are relevant to all claims in the case, not just the sub-set at
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`issue on this motion.
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`Therefore, Plaintiffs’ motion to amend [3896] [3897] is granted.
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`Unrelated to this motion, the Court notes the parties’ briefs provide a glimpse
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`into disputes regarding the adequacy of the Direct-Action Plaintiffs’ consolidated
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`complaint. The Court reminds the parties that the purpose of the consolidated
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`complaint is not to force any individual plaintiff to concede or make any allegation or
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`claim. Rather, the consolidated complaint is intended to streamline the pleadings so
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`that there is only one complaint and one answer on the docket for the Court and
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`parties to reference, rather than over 100 separate direct-action complaints. (Indeed,
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`the references to the consolidated complaint in recent motions for reassignment by
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`new direct-action plaintiffs (see, e.g., R. 4088) have been helpful to the Court.) The
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`Court views this as a ministerial task (albeit a very large one), such that, as the Court
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`previously indicated, the process of preparing the consolidated pleadings should not
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`be a means to alter or amend the pleadings. And if the pleadings are not changing,
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`there really should not be anything to argue about.
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`ENTERED:
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`______________________________
`Honorable Thomas M. Durkin
`United States District Judge
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`Dated: January 6, 2021
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` i
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` The plaintiffs seeking to add Case to their complaints are: Sysco; US Foods;
`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).
`ii The plaintiffs seeking to add Case also seek to add Keystone, along with the
`following plaintiffs: Associated Wholesale Grocers, Inc. (as to its own claims, as well
`as the claims assigned to it by Affiliated Foods Midwest Cooperative, Inc.); Conagra
`Brands, Inc.; Pinnacle Foods, Inc.; Kraft Heinz Foods Company; Nestlé USA, Inc.,;
`Nestlé Purina PetCare Company; Services Group of America, Inc.; Quirch Foods,
`LLC; and Ahold Delhaize USA, Inc.
`iii Sysco and US Foods seek to add Utrecht-America Holdings, Inc. and its
`subsidiaries, RaboAgriFinance LLC Rabobank, USA Financial Corporation, and
`Utrecht-America Finance Co. (collectively “Rabobank”) as defendants.
`iv The following plaintiffs seek to add RICO claims against defendants Pilgrim’s Pride,
`Tyson, Sanderson, Koch, Claxton, Harrison, Mar-Jac, Wayne Farms, and Fieldale
`(the “Georgia Dock Defendants”): 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
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`6
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`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).
`Additionally, Associated Wholesale Grocers, Inc. for itself and as assignee of claims
`from Affiliated Foods Midwest Cooperative, Inc. seeks to add RICO claims against all
`the Georgia Dock Defendants except for Fieldale.
`Winn-Dixie Stores, Inc. and Bi-Lo Holdings, LLC seek to add RICO claims against all
`of the Georgia Dock Defendants, except for Fieldale.
`v All defendants in the case oppose this motion except with respect to the plaintiffs
`with whom they have settled. See R. 4008 at n.2.
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`7
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