Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 1 of 14 PageID #:297994
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`
`
`
`
`IN RE BROILER CHICKEN ANTITRUST
`LITIGATION
`This Document Relates To: All Actions
`
`
`
`Case No. 1:16-cv-08637
`
`EX PARTE SUBMISSION
`REDACTED, PUBLIC VERSION
`
`
`BRIEF IN SUPPORT OF UNITED STATES’
`MOTION FOR LIMITED DEPOSITION STAY
`
`United States Department of Justice, intervenor in this action, submits this brief in
`
`support of its motion for a limited deposition stay. The Government has conferred
`
`extensively with the parties to this action and,
`
`
`
`
`
`
`
` that would likely interfere with the Government’s upcoming criminal trial
`
`in the District of Colorado and ongoing grand-jury investigation. The Court should
`
`grant the requested stay of those depositions because the public interest in the criminal
`
`matter proceeding without interference outweighs any prejudice to the plaintiffs arising
`
`from the delay.1
`
`
`1 The Government submits this Brief ex parte because it contains confidential
`information regarding the ongoing prosecution and grand-jury investigation,
`Fed.R.Crim.P. 6(e). The Government intends to file a redacted version of this brief
`under seal.
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`
`
`
`
`IN RE BROILER CHICKEN ANTITRUST
`LITIGATION
`This Document Relates To: All Actions
`
`
`
`Case No. 1:16-cv-08637
`
`EX PARTE SUBMISSION
`REDACTED, PUBLIC VERSION
`
`
`BRIEF IN SUPPORT OF UNITED STATES’
`MOTION FOR LIMITED DEPOSITION STAY
`
`United States Department of Justice, intervenor in this action, submits this brief in
`
`support of its motion for a limited deposition stay. The Government has conferred
`
`extensively with the parties to this action and,
`
`
`
`
`
`
`
` that would likely interfere with the Government’s upcoming criminal trial
`
`in the District of Colorado and ongoing grand-jury investigation. The Court should
`
`grant the requested stay of those depositions because the public interest in the criminal
`
`matter proceeding without interference outweighs any prejudice to the plaintiffs arising
`
`from the delay.1
`
`
`1 The Government submits this Brief ex parte because it contains confidential
`information regarding the ongoing prosecution and grand-jury investigation,
`Fed.R.Crim.P. 6(e). The Government intends to file a redacted version of this brief
`under seal.
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 2 of 14 PageID #:297995
`
`I. The Government’s upcoming criminal trial and
`ongoing grand-jury investigation.
`
`As the Court is aware, the Government is conducting a grand-jury investigation
`
`into the broiler chickens industry that, to date, has resulted in criminal charges in the
`
`District of Colorado against ten current or former employees of broiler chickens
`
`producers for their role in a Sherman Act conspiracy, 15 U.S.C. § 1.2 The investigation
`
`also resulted in charges against Pilgrim’s Pride Corporation (“Pilgrim’s”), the second-
`
`largest producer of broiler chickens in the United States, for its role in that conspiracy.
`
`U.S. v. Pilgrim’s Pride Corporation, 1:20-cr-330-RM (D. Colo.) Dkt. 1. Pilgrim’s pleaded
`
`guilty, and paid a $107 million fine. As part of its plea agreement, Pilgrim’s pledged to
`
`cooperate with the Government’s investigation. Id. at Dkt. 58. The plea agreement’s
`
`non-prosecution and cooperation terms apply to Pilgrim’s current employees, except
`
`for the employees explicitly excluded. Id. at ¶ 16.
`
`The ten individual defendants pleaded not guilty in October 2020. Chief Judge
`
`Brimmer, the presiding judge, subsequently scheduled the trial to commence on August
`
`2, 2021. He then issued a general order continuing all trials in the District effective
`
`March 1, 2021, General Order 2021-3: Court Operation during the Covid-19 Pandemic
`
`(Feb. 12, 2021), but has not yet ordered a new trial date.
`
`
`
`
`
`
`
`
`2 One defendant was also charged with making false statements and obstruction.
`2
`
`
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 3 of 14 PageID #:297996
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 3 of 14 PageID #:297996
`
`Meanwhile the grand-jury investigation into the broiler chickens industry is
`
`II. The disputed deposition stays
`
`On July 9, 2020, the Govermnent provided the class plaintiffs with a list of
`
`requested stays for depositions that plaintiffs were planning to take. In the ensuing
`
`months the Govermnent added some additional depositions stay request-
`
`The Government was mindful of the Court’s instruction in Scheduling Order 14
`
`that ” sixty days before the close of fact discovery, Plaintiffs (1) shall advise the Com‘t of
`
`the depositions they Wish to take to Which the D0] is still objecting and (2) may petition
`
`the court for apprOpn'ate relief to minimize prejudice to Plaintiffs. The parties will work
`
`in good faith to resolve any disputes in this regard Without Court intervention.” Dkt.
`
`3788 at 3, fn.4. In the third week of February, the Government notified all parties,
`
`through their liaison counsel, of the Government’s position on deposition stays.
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 4 of 14 PageID #:297997
`Case: 1:16—cv-08637 Document #: 4520 Filed: 04/05/21 Page 4 of 14 PageID #:297997
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`-
`
`-
`
`-
`
`
`
`
`3
`
`
`
`4
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 5 of 14 PageID #:297998
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 5 of 14 PageID #:297998
`
`III. Legal Standard
`
`Courts can use their inherent case—management power to stay all or part of
`
`discovery in any civil action. See Lmtdis v. North American C0., 299 US. 248, 254—255
`
`(1936). Whether and iuider What circumstances a court should exercise the power to
`
`stay discovery is left to the sormd discretion of the district court. See United States v.
`
`“i
`
`U!
`
`
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 6 of 14 PageID #:297999
`
`Kordel, 397 U.S. 1, 12 n. 27 (1970) (noting district court’s discretion to stay parallel civil
`
`litigation).
`
`When deciding whether to stay discovery, courts must balance the interests of the
`
`public and the litigants. Courts accomplish this balancing by analyzing a variety of
`
`factors. The precise number and description of the factors vary, though they typically
`
`include the following: whether the subjects of the civil and criminal matters are related;
`
`whether the stay would serve the public interest; the plaintiffs’ interest in proceeding
`
`expeditiously with the litigation and any prejudice to them from granting the stay; stage
`
`of the criminal proceeding; burden on any defendant from granting the stay; whether
`
`the governmental entity that has initiated the criminal case or investigation is also a
`
`party in the civil case; and the impact on judicial resources. See, e.g., Glover v. Upmann,
`
`19 CV 03738, 2020 WL 1433801, at *1 (N.D. Ill. Mar. 24, 2020); Cruz v. City of Chicago, 08
`
`C 2087, 2011 WL 613561, at *2 (N.D. Ill. Feb. 15, 2011); F.T.C. v. P. First Ben., LLC, 361 F.
`
`Supp. 2d 751, 755 (N.D. Ill. 2005).
`
`IV. The Factors Favor a Stay
`
`The factors when viewed in their totality weigh in favor of the Government’s stay.
`
`The civil and criminal matters meet the “close relationship” standard. Courts have
`
`typically required a “close relationship” between the issues in the civil and criminal
`
`matters to favor a stay. See Chagolla v. City of Chicago, 529 F. Supp. 2d 941, 946 (N.D. Ill.
`
`2008) (“The close relationship between the civil and criminal matters weighs in favor of
`
`a stay.”); Hare v. Custable, 07-CV-3742, 2008 WL 1995062, at *2 (N.D. Ill. May 6,
`
`2008)(same).
`
`
`
`6
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 7 of 14 PageID #:298000
`Case: 1:16—cv-08637 Document #: 4520 Filed: 04/05/21 Page 7 of 14 PageID #:298000
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`7
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 8 of 14 PageID #:298001
`
`
`
`
`
`
`
`
`
`
`
`
`
`A stay advances the public interest. The public’s interest in effective criminal law
`
`enforcement—and hence the United States’ interest in protecting the integrity of its
`
`criminal prosecution and ongoing grand-jury investigation should be given substantial
`
`weight. See Benevolence Int’l Found., Inc. v. Ashcroft, 200 F. Supp. 2d 935, 941 (N.D. Ill.
`
`2002) (quoting Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962)). Although the
`
`public has an interest in the “prompt disposition of civil litigation,” the public also has
`
`an interest in allowing the criminal proceeding to proceed unimpaired. Chagolla, 529 F.
`
`Supp. 2d at 946–47; see also Glover, 2020 WL 1433801, at *4 (noting that allowing criminal
`
`proceedings to continue without civil interference is the “greatest interest”); U.S. v.
`
`Borden Co., 347 U.S. 514, 518 (1954) (noting that civil enforcement actions “supplement[]
`
`Government enforcement of the antitrust laws; but it is the Attorney General and the
`
`United States district attorneys who are primarily charged by Congress with the duty of
`
`protecting the public interest under these laws”).
`
`
`
`
`
`
`
`
`
`8
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 9 of 14 PageID #:298002
`
` See Glover v. Upmann, 19 CV 03738, 2020 WL 1433801, at *4 (N.D.
`
`Ill. Mar. 24, 2020) (“Given the overlap of issues, it is important to avoid any possible
`
`interference with the prosecution of Davidson and Fane.”); Tostado v. Jackson, No. 10-
`
`CV-1162, 2011 WL 2116396, at *3 (E.D. Wis. May 25, 2011)(“[S]uch interference could
`
`arise if civil discovery, including sworn testimony, is elicited while the criminal charges
`
`are still pending.”).
`
`Prejudice to the plaintiffs overall is mitigated. Plaintiffs have an interest in moving
`
`their cases forward promptly. See Chagolla, 529 F. Supp. 2d at 947. This case is no
`
`different, except that this case is consolidated and reflects a diverse set of plaintiffs with
`
`interests that diverge on the question on how to most appropriately move this case
`
`forward.
`
`
`
`
`
`
`
` when balancing the various interests, the court “must consider the
`
`whole civil action and not just part of it.” Glover v. Upmann, 19 CV 03738, 2020 WL
`
`1433801, at *2 (N.D. Ill. Mar. 24, 2020).
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`9
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 10 of 14 PageID #:298003
`
`— bid
`
`rigging (which the Court has stayed anyway, Dkt. 3835 at 7 (”Discovely into bid—rigging
`
`
`
`10
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 11 of 14 PageID #:298004
`
`
`
`
`
`
`
`
`
`The criminal case is proceeding to trial. Courts evaluate the posture of the criminal
`
`matter. Sometimes a court may be reluctant to stay a civil case when the related
`
`criminal matter is in a nascent stage. See, e.g., Chagolla v. City of Chicago, 529 F. Supp. 2d
`
`941, 946 (N.D. Ill. 2008) (“The fact some defendants face only the threat of criminal
`
`charges, and no actual charges as yet, weighs against entry of a stay.”); Cruz v. County of
`
`DuPage, 96 C 7170, 1997 WL 370194, at *3 (N.D. Ill. June 27, 1997) (noting denials of
`
`stays where there is only a “threat of indictment”). That is not the case here. The
`
`Government’s criminal matter has advanced beyond indictment, and ten defendants
`
`have an upcoming trial.
`
`
`
`1995062, at *2 (N.D. Ill. May 6, 2008) (“The rapidly approaching criminal trial weighs in
`
` See Hare v. Custable, 07-CV-3742, 2008 WL
`
`favor of a stay.”).
`
`Burden on defendants is inapplicable. Courts consider whether the denial of a stay
`
`will cause prejudice to a defendant. This concern appears inapplicable here because the
`
`defendants do not object to the Government’s stays.
`
`
`
`
`
`.
`
`11
`
`
`
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 12 of 14 PageID #:298005
`
`
`
`
`
`
`
`
`
`
`
`The Government’s limited role in the civil action. If the same governmental entity
`
`is a party to both the criminal and civil matters, the court may stay the civil action out of
`
`concern for misuse of civil discovery. See Chagolla v. City of Chicago, 529 F. Supp. 2d 941,
`
`946 (N.D. Ill. 2008) (“If the governmental entity that initiated the parallel criminal
`
`prosecution or investigation is a party in the civil case, there is a concern that it may use
`
`the civil discovery process to circumvent limitations on discovery in criminal
`
`proceedings.”). That concern is not present here. Though the Government is the
`
`prosecutor of the criminal matter, it is only an intervenor in the civil action, not a
`
`plaintiff. Moreover, the Government has not issued discovery requests, has not
`
`participated in depositions, and is prohibited from disclosing or using confidential
`
`information obtained by virtue of its intervenor status in the civil action in its criminal
`
`matter unless it receives consent or complies with the notice requirements contained in
`
`the Amendment to the Agreed Confidentiality Order, Dkt. 4101.
`
`Conservation of judicial resources. The Court has an “interest in moving the cases
`
`on its docket to an expeditious conclusion.” Nowaczyk v. Matingas, 146 F.R.D. 169, 175
`
`(N.D. Ill. 1993). Related proceedings, however, can cause a duplication of effort. See U.S.
`
`v. All Meat and Poultry Products, 02 C 5145, 2003 WL 22284318, at *5 (N.D. Ill. Oct. 3,
`
`2003). Here, a stay may conserve overall judicial resources in the long term because
`
`
`
`12
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 13 of 14 PageID #:298006
`
`“resolution of the related criminal matter may eliminate much of the Court’s work in
`
`the civil action by simplifying the issues.” Id. This issue simplification may also prompt
`
`additional settlements, like the ones reached by Tyson Foods and Pilgrim’s with certain
`
`plaintiffs.
`
`V. Conclusion
`
`For the foregoing reasons, the Court should grant the Government’s motion for a
`
`limited deposition stay, and enter the Government’s proposed deposition stay order.
`
`Dated: April 5, 2021
`
`Respectfully submitted,
`
`
`
`
`
`
`
`_____________________________
`PAUL J. TORZILLI, Trial Attorney
`MICHAEL T. KOENIG, Trial Attorney
`HEATHER CALL, Trial Attorney
`CAROLYN M. SWEENEY, Trial Attorney
`U.S. Department of Justice
`Antitrust Division
`450 5th St NW
`Washington, DC 20530
`202/514.8349
`Paul.Torzilli@usdoj.gov
`
`
`
`
`
`
`
`
`13
`
`
`
`
`
`
`
`
`
`Case: 1:16-cv-08637 Document #: 4520 Filed: 04/05/21 Page 14 of 14 PageID #:298007
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that I have caused the foregoing to be filed on the Court’s
`
`CM/ECF system, which automatically provides notice to counsel for all parties to the
`
`above-captioned action.
`
`Dated: April 5, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`Paul J. Torzilli
`Trial Attorney
`U.S. Department of Justice
`Antitrust Division
`450 5th St NW
`Washington, DC 20530
`202/514.8349
`Paul.Torzilli@usdoj.gov
`
`14
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
