Case: 1:16-cv-08637 Document #: 4510 Filed: 03/31/21 Page 1 of 13 PageID #:297835
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Civil Action No. 1:16-cv-08637
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`Judge Thomas M. Durkin
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` Magistrate Judge Jeffrey T. Gilbert
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`PUBLIC VERSION
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`IN RE BROILER CHICKEN ANTITRUST
`LITIGATION
`_____________________________________
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`THIS DOCUMENT RELATES TO:
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`Certain Direct Action Plaintiffs
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`CERTAIN DIRECT ACTION PLAINTIFFS’ OPPOSITION TO
`RABOBANK’S MOTION TO DISMISS
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`

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`Case: 1:16-cv-08637 Document #: 4510 Filed: 03/31/21 Page 2 of 13 PageID #:297836
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`INTRODUCTION
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`Rabobank is—and has been for many years—the leading lender to the poultry industry in
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`the United States, and globally. 1 This position puts Rabobank at significant financial risk
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`whenever the industry faces downturns and poor performance due to oversupply.
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`Rabobank also offers merger and acquisition-related services, which it regularly pitches
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`to its poultry producer clients and prospective clients. The more Rabobank helps producers make
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`money, the more likely they will turn to Rabobank for these services.
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`Thus, Rabobank “consistently sought industrywide action to alter the output and pricing
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`of broilers” in order “to advance its own interests and bottom line” (Compl. ¶ 576), making
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`producer supply cuts its own goal.
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`Rabobank nevertheless seeks dismissal under Rule 12(b)(6), contending that: it lacks a
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`motive to conspire because it is not a chicken producer; its encouragement of industry supply
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`reductions is nothing more than “Economics 101”; and Plaintiffs’ allegations about Rabobank’s
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`role in the alleged conspiracy are inadequate. Rabobank is wrong. The complaint alleges motive,
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`and offers illustrations of how Rabobank facilitated and participated in the conspiracy among
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`broiler producers. These allegations satisfy all applicable pleading requirements. Rabobank’s
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`motion should be denied.
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`1 Deposition of Rabobank’s Adriaan Weststrate (“Weststrate Dep.”) 336:21-337:10.
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`1
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`Case: 1:16-cv-08637 Document #: 4510 Filed: 03/31/21 Page 3 of 13 PageID #:297837
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`ARGUMENT
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`I.
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`Rabobank Inaccurately Suggests It Can Evade Section 1 Liability Because It Is Not
`a Broiler Producer
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`Rabobank’s motion relies heavily on the notion that it cannot be liable for a Section 1
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`violation concerning broilers because it “does not buy, produce or distribute chickens.”
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`Memorandum of Law in Support of Rabobank’s Rule 12(b)(6) Motion to Dismiss (“Rabo Mem.”)
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`at 1.2 That is wrong. It is black letter antitrust law that a non-competitor can violate Section 1 of
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`the Sherman Act. See, e.g., United States v. Apple, 791 F.3d 290, 324-25 (2d Cir. 2015) (finding
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`Apple could be liable for facilitating a horizontal agreement among defendant book publishers);
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`In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 337 (3d Cir. 2010) (“The fact that Marsh, an
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`entity vertically oriented to the insurers, appears to be a sine qua non of the alleged horizontal
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`agreement is not necessarily an obstacle to plaintiffs’ claim.”); Spanish Broad. Sys. of Fla., Inc.
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`v. Clear Channel Commc’ns, Inc., 376 F.3d 1065, 1078 n.10 (11th Cir. 2004) (“Nothing in our
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`case law suggests that a conspiracy must be limited solely to market participants so long as the
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`conspiracy also involves a market participant and the non-participant has an incentive to join the
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`conspiracy.”); United States v. MMR Corp. (LA), 907 F.2d 489, 498 (5th Cir. 1990) (“[A]
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`noncompetitor can join a Sherman Act big-rigging conspiracy among competitors. If there is a
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`horizontal agreement between A and B, there is no reason why others joining that conspiracy
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`must be competitors.”); In re Plasma-Derivative Protein Therapies Antitrust Litig., 764 F. Supp.
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`2d 991 (N.D. Ill. 2011) (denying motion to dismiss where Plaintiffs alleged “the two largest
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`domestic producers of plasma-derivative therapies[] conspired . . . with . . . a trade association,
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`to restrict supplies of the therapies, thus keeping prices high, in violation of the Sherman Act, 15
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`2 See also Rabo Mem. at 4, 6, 12-14.
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`2
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`U.S.C. § 1.”); TYR Sport Inc. v. Warnaco Swimwear Inc., 679 F. Supp. 2d 1120, 1135-36 (C.D.
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`Cal. 2009) (denying motion to dismiss because “the court finds no merit to USA Swimming’s
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`argument that a Section 1 conspiracy somehow requires all members to be ‘market
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`participants’”); Smithkline Beecham Corp. v. E. Applicators, Inc., 2002 WL 1197763, at *8 (E.D.
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`Pa. May 24, 2002) (“Plaintiff has alleged that defendants engaged in a horizontal agreement to
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`force plaintiff to accept [another defendant’s] uncompetitive bid, and that [non-competitor
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`defendant] actively aided in this agreement. [Non-competitor defendant and its employee] may
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`therefore be equally liable for a violation of the Sherman Act.”).
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`One need look no further than this case to find a motion to dismiss order accepting that a
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`non-competitor may engage in a Section 1 violation. In re Broiler Chicken Antitrust Litig., No.
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`16 C 8637, 2019 WL 1003111, at *2 (N.D. Ill. Feb. 28, 2019) (rejecting Agri Stats’s argument
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`that an inference it joined the conspiracy “is not plausible because, unlike the other defendants,
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`Agri Stats is not a Broiler producer, so it lacks a plausible motive to knowingly engage in a
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`conspiracy to fix Broiler prices”).
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`The fact that Rabobank is not a producer lends no support to its motion.3
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`II.
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`Rabobank Had Motive to Participate in the Alleged Conspiracy
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`Rabobank also suggests the claims against it should be dismissed because it lacked a
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`motive to conspire. For instance, it claims it “did not benefit from any specific increase or
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`3 No doubt mindful of this Court’s decision rejecting Agri Stats’s motion to dismiss, Rabobank
`attempts to distinguish itself factually from Agri Stats. Rabo Mem. at 4-6. While these differences
`are legally irrelevant as a matter of antitrust jurisprudence, Rabobank ignores that the complaint
`alleges: “One facet of Rabobank’s anticompetitive conduct involved coordination with defendant
`Agri Stats. In 2008, Rabobank retained as a consultant
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` Weststrate worked hand in hand with
` for years—and with producers—to fix prices of broilers.” Compl. ¶ 577; see also id. ¶¶
`587-80.
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`3
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`

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`decrease in price” (Rabo Mem. at 4), or have “the requisite competitive interest and stake in the
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`relevant market” (id. at 14). This argument too lacks merit.
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`As an initial matter, Rabobank ignores that the complaint expressly alleges Rabobank
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`“consistently sought industrywide action to alter the output and pricing of broilers” in order “to
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`advance its own interests and bottom line.” Compl. ¶ 576 (emphasis added). Rabobank’s alleged
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`motive is clear.
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`Rabobank’s motive is also borne out by the developing record evidence.
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` Rabobank had significant exposure as a result of its lending to producers.
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`o Rabobank’s Weststrate testified that Rabobank
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`Weststrate Dep. 164:23-165:3.
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`o As of May 2009, Rabobank had
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` Weststrate Dep. Ex. 2948; Rabo_0000064412-428
`at 428; Weststrate Dep. 60:14-22.
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`o Weststrate testified that in 2009 Rabobank
` Weststrate Dep. 182:21-22; 350:24-351:2.
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`o In an August 4, 2014 email to
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` Rabo_0000032730-31.
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` Rabobank made achieving producer supply cuts its own goal.
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`o In an internal email, Rabobank noted:
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` Rabo_0000097813.
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`o In October 2011, the head of Rabobank’s poultry business stated to others at
`Rabobank:
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` Compl. ¶ 576; Rabo_0000097339.
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` Rabobank sought to influence producer pricing.
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`o On September 15, 2011, Rabobank’s Weststrate emailed
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`Rabo_0000096353.
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`4
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` Rabobank’s own goals and interests were tethered to the financial success of the producers.
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`o On March 17, 2009, Rabobank’s R. Beard sent an email to J. Perdue and E. Burza
`(Perdue), entitled
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` PERDUE0001023730-31.
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`o The industry turnaround in 2012 was beneficial to Rabobank.
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` Rabo_0000120187-216, at 188.
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` Rabobank actively pitched other financial services to its producer clients, including for
`potential acquisitions and mergers. See, e.g., Rabo_0000033891-92, -0000036737,
`-0000033911 (Foster Farms); Weststrate Dep. 331:4-10 (same); Rabo_0000052550,
`-0000005846,
`-0000103029
`(Koch); Weststrate Dep.
`331:16-17
`(same);
`Rabo_0000027212 (Perdue); Weststrate Dep. 331:22-23 (same); Rabo_00000056081-82,
`-0000010470, -0000026502 (Pilgrim’s Pride); Weststrate Dep. 331:24-25 (same);
`Rabo_0000032534, -0000036811 (Sanderson); Weststrate Dep. 332:25-333:5 (same);
`Rabo_0000082369-70, -0000084172-73 (Tyson); Weststrate Dep. 333:9-12 (same);
`Rabo_0000028689, -0000028927-28, -0000048990-92 (Wayne Farms); Weststrate Dep.
`333:16-17 (same); Weststrate Dep. 89:10-16
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`
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` .
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`All of this gave Rabobank powerful incentives to facilitate and participate in the alleged
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`conspiracy.
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`III. Rabobank Inaccurately Claims It Merely “Monitored” the Industry and Made
`“Commonsense Observations” About Supply Reduction
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`Rabobank proffers as its “fair reading” of the complaint that it “monitored activity in the
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`chicken industry and periodically made the common sense observation that the industry as a
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`whole would benefit from reducing supply.” Rabo Mem. at 1-2; see also id. at 14 (Rabobank
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`claiming it “did nothing more than voice their opinions on how an industry as a whole should
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`operate”). This is not a faithful reading of plaintiffs’ pleading.
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`The complaint expressly alleges that Rabobank “facilitated” and “participated in” the
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`alleged conspiracy by, for example: consistently seeking industrywide action to alter the output
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`and pricing of broilers (¶ 576); encouraging communication among broiler producer competitors,
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`and serving as a conduit for communications between and among those competitors (¶ 581);
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`5
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`communicating directly with producers as part of an effort to coordinate industrywide action with
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`respect to production and pricing (¶ 582); using its reports and publications, shared widely with
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`producers, including defendants, to effectuate producer coordination (¶ 585); and using its
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`position as the leading lender and financial institution serving the industry to secure coordinated
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`action (¶ 586).
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`Rabobank’s own brief seems to acknowledge it did more than watch from the sidelines,
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`conceding it stated “at industry events and in conversations with its poultry company clients” that
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`“U.S. chicken producers need to decrease overall production.” Rabo Mem. at 4 (emphasis
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`added).
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`Rabobank argues that it merely instructed broiler producers about “Economics 101.”
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`Rabo Mem. at 2. But both the allegations already in the complaint and evidence uncovered during
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`the ongoing discovery process show that, contrary to its self-portrait as a disinterested industry
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`observer, Rabobank consistently and emphatically facilitated and participated in coordination to
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`achieve supply cuts. As Rabobank’s Weststrate assured Perdue in 2011:
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`Rabo_0000032730-31 (August 4, 2014 Weststrate email to Jim Perdue:
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` Rabo_0000011315
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`(emphasis added);
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`see also
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`).4
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`Moreover, the allegations in the complaint—along with countless documents being
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`uncovered during discovery—belie Rabobank’s account that all it did was “make obvious
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`statements derived from economic truths.” Rabobank repeatedly discussed its role in making
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`4 Rabobank is participating in discovery, and agreed with the DAPs to which its motion to dismiss
`is directed that Rabobank would not seek a stay of discovery while its motion to dismiss is pending.
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`6
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`sure the industry
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` (Compl. ¶ 578), and the “need” for Rabobank to make statements about
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`cutbacks required to achieve
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` (id. ¶ 576).
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`The complaint plausibly alleges that Rabobank had motive to conspire, and actively
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`facilitated and participated in the conspiracy. Plaintiffs have adequately pleaded that Rabobank
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`violated Section 1 of the Sherman Act.5
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`IV.
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`Plaintiffs Have Satisfied Their Pleading Requirements
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`Unable to credibly contend it is not on notice of the claims against it, Rabobank seeks to
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`move the goalposts. Rabobank resorts to self-serving characterizations and interpretations of
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`specific documents cited in the complaint. But Rabobank’s competing account of the documents
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`cited in the complaint does not render Plaintiffs’ allegations implausible. See In re Broiler
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`Chicken Antitrust Litig., 2019 WL 1003111 (N.D. Ill. Feb. 28, 2019) (citing Swanson v. Citibank,
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`N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“Plausibility . . . does not imply the district court should
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`decide whose version to believe . . . .”)). Rabobank also notes that substantial discovery has
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`already occurred, and suggests that dismissal at the pleading stage is warranted because “only”
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`thirteen paragraphs in the 425-page consolidated DAP complaint were directed specifically at
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`Rabobank. Rabo Mem. at 3. Yet, the number of paragraphs in a complaint devoted to each
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`defendant is irrelevant.
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`5 Rabobank tries to evade the evidence of its involvement by labeling it mere “encouragement” of
`supply cuts. See Rabo Mem. at 2, 6, 12-14. Some co-conspirators surely “encourage” as part of
`their concerted action. See, e.g., United States v. Apple Inc., 952 F. Supp. 2d 638, 707 (S.D.N.Y.
`2013) (finding Apple conspired with e-book publishers to restrain trade in violation of Section 1
`where, “with Apple’s active encouragement and assistance, the Publisher Defendants agreed to
`work together to eliminate retail price competition and raise e-book prices”); United States v.
`Andreas, 39 F. Supp. 2d 1048, 1063 (N.D. Ill. 1998) (rejecting motion to overturn jury verdict
`finding price-fixing in violation of Sherman Act where defendant “suggested that the competitors
`should be encouraged to agree to increase price”). Regardless, the complaint clearly alleges more
`than mere encouragement: it avers that Rabobank intentionally and actively participated in an
`anticompetitive scheme with the other defendants.
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`7
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`This is a motion to dismiss. Federal Rule of Civil Procedure 8 requires only “a short and
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`plain statement of the claim.” Plaintiffs provided that, and more. The inclusion in the complaint
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`of documents and testimony produced during discovery does not subject plaintiffs to a higher
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`standard than ordinarily applies to a Rule 12(b)(6) motion.6
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`Rabobank will have a chance to tell its story at summary judgment and trial. But even
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`then, plaintiffs are only required to “produce evidence that reveals coordination or agreement”—
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`and “even a wink and a nod” will do, since “formal agreements have never been required for
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`purposes of Sherman Act section 1.” Kleen Products LLC v. Georgia-Pacific LLC, 910 F.3d 927,
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`936 (7th Cir. 2018). Moreover, evidence of such coordination or agreement may be either
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`circumstantial or direct, should be considered “as a whole,” and may include “ambiguous
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`statements.” In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 656, 662 (7th Cir.
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`2002).
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`Rabobank also contends—presumably in support of its “plausibility” argument—that its
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`persistent efforts to secure industrywide supply cuts were inconsistent with an alleged conspiracy.
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`See, e.g., Rabo Mem. at 7 (“[H]ad Rabobank been aware of such a conspiracy, it would have
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`known cuts were coming, and it would not have been writing hand-wringing emails . . . .”); id. at
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`11 (“Rabobank would have had no reason to urge cutbacks if it had already struck an agreement
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`with chicken producers to do exactly that.”). That argument makes no sense as a matter of law
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`or economics. Even when firms in an industry believe they will all be more profitable if they all
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`raise prices or reduce output, individual firms usually refrain from doing so out of concern that
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`other firms will not follow, and that the “leader” will be at a competitive disadvantage. See
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`6 Rabobank invokes Bank of America v. Knight, 725 F.3d 815 (7th Cir. 2013), as authority for
`what is required “[t]o state a claim under Section 1.” Rabo Mem. at 5. But Knight is not an
`antitrust case, was controlled by Illinois law, and never mentions Section 1.
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`8
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`

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`Rabo_0000050062 (In an April 30, 2008 internal email, Rabobank’s R. Beard conveyed that
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`; see also In
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`re Broiler Chicken Antitrust Litig., 290 F. Supp. 3d 772, 798 (N.D. Ill. 2017) (discussing
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`“unilateral production cuts” and the risk of lost market share without an agreement); see also
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`Kleen Prod. LLC, 910 F.3d at 937–38 (discussing “perilous leading,” citing Phillip E. Areeda &
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`Herbert Hovenkamp, Antitrust Law ¶ 1425d (4th ed. 2018)); In re Plasma-Derivative Protein
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`Therapies Antitrust Litig., 764 F. Supp. 2d at 1002 (“This sort of parallel behavior has been
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`described as ‘perilous leading’ because, absent an agreement, the first firm to move takes a
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`significant risk that competitors won’t follow.”). Rabobank’s role securing and maintaining
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`coordinated action by producers is fully consistent with the existence of the alleged conspiracy.
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`V.
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`Rabobank’s Henny-Penny Argument Misses the Mark7
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`Rabobank frets that denying its motion would set a “dangerous precedent,” opening the
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`“floodgates” for suits against “lawyers, accountants” or other “bankers [or] lenders.” Rabo Mem.
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`at 14. This is nonsense. None of those actors crossed the lines that Rabobank egregiously crossed
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`here, and none have been sued by Plaintiffs.8 There is no floodgate opening—in this case, or
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`otherwise.
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`7 https://en.wikipedia.org/wiki/Henny_Penny.
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`8 The plausibility of Rabobank’s misconduct alleged here is also supported by Rabobank’s
`admissions to other unlawful acts—some of which occurred at the same time as it is alleged to
`have participated in the broilers conspiracy. See Phillip E. Areeda & Herbert Hovenkamp,
`Antitrust Law ¶ 1421a, at 165 (4th ed. 2017) (“[I]f there is other evidence of a present conspiracy,
`the defendants’ sins elsewhere may cast doubt on the truthfulness of their innocent explanations.”).
`In 2013, Rabobank entered into a Deferred Prosecution Agreement (“DPA”) with the United States
`Department of Justice in which Rabobank agreed the government would file a criminal
`Information alleging that Rabobank “through its employees engaged in a scheme to defraud
`counterparties to interest rate derivatives trades executed on its behalf by secretly manipulating
`benchmark interest rates.” See United States v. Cöoperatieve Centrale Raiffeisen-Boerenleenbank
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`9
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`

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`Instead, Rabobank has it backwards: the dangerous precedent would be dismissing the
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`claims against it in the face of plausible allegations of its participation in a Section 1 violation.
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`B.A., 3:13-cr-002000-AWT, Dkt. No. 1 (D. Conn. Oct. 29, 2013). Rabobank admitted the
`allegations described in the Information and Statement of Facts attached to the DPA were “true
`and accurate.” See United States v. Cöoperatieve Centrale Raiffeisen-Boerenleenbank B.A., 3:13-
`cr-002000-AWT, Dkt. No. 14, at 2 (D. Conn. Jan. 9, 2014). The allegations in the DPA included
`multiple instances of Rabobank employees manipulating Rabobank’s submissions to the United
`States Dollar LIBOR, the Pound Sterling LIBOR, the Yen LIBOR and the Euro Interbank Offered
`Rate (“Euribor”) in order to benefit Rabobank. See United States v. Cöoperatieve Centrale
`Raiffeisen-Boerenleenbank B.A., 3:13-cr-002000-AWT, Dkt. No. 14, pp. 40-65 (D. Conn. Jan. 9,
`2014). This included several instances in which Rabobank’s employees coordinated with
`employees of other banks to manipulate “submissions that benefitted trading positions, rather than
`submissions that complied with the definitions of LIBOR and Euribor.” Id. at 65-70. As part of
`its admission to wrongdoing in the LIBOR scandal, Rabobank agreed to pay a $325 million
`criminal penalty and a total of over $1 billion in criminal and regulatory penalties. Id. at 10-11;
`See also Rabo_0000026208
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`
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`. The Court can “take judicial notice of the actions of other courts or the contents of
`filings in other courts.” See Daniel v. Cook Cty., 833 F.3d 728, 742 (7th Cir. 2016); see also
`Scholes v. Lehmann, 56 F.3d 750, 762 (7th Cir.1995) (allowing judicial notice of facts recited in a
`plea agreement).
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`10
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`

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`Case: 1:16-cv-08637 Document #: 4510 Filed: 03/31/21 Page 12 of 13 PageID #:297846
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`For the foregoing reasons, Rabobank’s motion to dismiss should be denied.
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`CONCLUSION
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`
`
`/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
`E-mail: sgant@bsfllp.com
`
`Colleen A. Harrison
`BOIES SCHILLER FLEXNER LLP
`333 Main Street
`Armonk, NY 10504
`Tel: (914) 749-8204
`Fax: (914) 749-8300
`E-mail: charrison@bsfllp.com
`
`Ryan T. McAllister
`BOIES SCHILLER FLEXNER LLP
`30 South Pearl Street, 11th Floor
`Albany, NY 12207
`Tel: (518) 434-0600
`Fax: (518) 434-0665
`E-mail: rmcallister@bsfllp.com
`
`Counsel for Plaintiffs Campbell Soup
`Company, Campbell Soup Supply Company,
`L.L.C., John Soules Foods, Inc., John Soules
`Acquisitions LLC, Pacific Foods of Oregon,
`Sysco Corp., Target Corp., and US Foods,
`Inc.
`
`
`
`
`
`
`Dated: March 31, 2021
`
`
`
`11
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`

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`Case: 1:16-cv-08637 Document #: 4510 Filed: 03/31/21 Page 13 of 13 PageID #:297847
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`
`
`
`
`/s/ Paul J. Ripp
`Paul J. Ripp
`WILLIAMS MONTGOMERY & JOHN LTD.
`233 S. Wacker Drive, Suite 6800
`Chicago, IL 60606
`Telephone: (312) 443-3200
`Facsimile: (312) 630-8500
`pjr@willmont.com
`
`Charles E. Tompkins
`WILLIAMS MONTGOMERY & JOHN LTD.
`1607 22nd Street, NW, Suite 300
`Washington D.C. 20008
`Tel.: (202) 791-9951
`Fax: (312) 630-8586
`cet@willmont.com
`
`W. Lawrence Deas
`LISTON & DEAS PLLC
`605 Crescent Boulevard, Suite 200
`Ridgeland, MS 39157
`Telephone: (601) 981-1636
`Fax: (601) 982-0371
`Lawrence@listondeas.com
`
`Michael Gratz, Jr.
`GRATZ & GRATZ, P.A.
`312 N. Green Street
`Tupelo, MS 38804
`Tel.: (662) 844-5531
`Fax: (662) 844-8747
`michael@gratzandigatz.com
`
`Counsel for Plaintiffs L. Hart, Inc.; R & D
`Marketing, LLC; Timber Lake Foods, Inc.;
`EMA Foods Co., LLC; and Red Bird Farms
`Distribution Company
`
`
`
`/s/ Kathryn A. Reilly
`Kathryn A. Reilly
`Judith P. Youngman
`Camille Papini-Chapla
`WHEELER TRIGG O’DONNELL LLP
`370 Seventeenth Street, Suite 4500
`Denver, Colorado 80202
`Tel: (303) 244-1800
`Fax: (303) 244-1879
`Email: Reilly@wtotrial.com
` Youngman@wtotrial.com
` PapiniChapla@wtotrial.com
`
`Counsel for Plaintiffs McLane Company,
`Inc.; McLane/Mid-Atlantic, Inc.;
`McLane/Midwest, Inc.; McLane Minnesota,
`Inc.; McLane New Jersey, Inc.;
`McLane/Eastern, Inc.; McLane/Suneast, Inc.;
`McLane Ohio, Inc.; McLane/Southern, Inc.;
`McLane/Western, Inc.; McLane Express, Inc.;
`Kinexo, Inc.; McLane Foodservice
`Distribution, Inc., McLane Foodservice, Inc.
`
`
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`12
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