Case: 1:16-cv-08637 Document #: 4536 Filed: 04/09/21 Page 1 of 13 PageID #:298147
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
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`IN RE BROILER CHICKEN ANTITRUST
`LITIGATION
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`Case 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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`THIS DOCUMENT RELATES TO:
`Certain Direct Action Plaintiffs
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`REPLY BRIEF IN SUPPORT OF
`RABOBANK’S RULE 12(b)(6) MOTION TO DISMISS
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`Case: 1:16-cv-08637 Document #: 4536 Filed: 04/09/21 Page 2 of 13 PageID #:298148
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`INTRODUCTION
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`Plaintiffs do not contest a single proposition of law in Rabobank’s opening
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`memorandum. They concede, for example, that to survive dismissal, they must allege that
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`Rabobank knew of the alleged output-reduction conspiracy, was aware of its scope, agreed to
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`play a defined role in it, and furthered the conspiracy in a meaningful way. Yet, rather than
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`explain how their allegations satisfy these requirements, plaintiffs attack straw men and rely on
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`evidence outside their complaint to argue that they plausibly have alleged Rabobank joined a
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`massive, nationwide, decade-long conspiracy to reduce output in a market in which Rabobank
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`never participated with numerous parties with which Rabobank had no relationship.
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`Strong in tone, but light on the law, plaintiffs’ response can be distilled to four
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`arguments: (1) Rabobank erroneously suggests that only market participants can be liable for
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`Section 1 conspiracies; (2) Rabobank had a motive to participate in the alleged conspiracy; (3)
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`plaintiffs have sufficiently alleged that Rabobank facilitated the alleged conspiracy and did not
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`provide “mere encouragement”; and (4) Rabobank’s concern is overblown that allowing
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`plaintiffs’ allegations to survive dismissal will spur baseless antitrust claims against other
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`similarly situated non-market participants. As explained below, plaintiffs are wrong on all four
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`counts.
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`ARGUMENT
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`I.
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`Plaintiffs Simply Ignore Many of Rabobank’s Arguments and Legal Authority
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`The most telling aspect of plaintiffs’ response is what it doesn’t say. In many instances,
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`plaintiffs completely fail to address significant arguments and case law cited in Rabobank’s
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`brief.
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`Case: 1:16-cv-08637 Document #: 4536 Filed: 04/09/21 Page 3 of 13 PageID #:298149
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`Rabobank’s motion was built on the following legal propositions, each supported by case
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`law. Plaintiffs not only failed to contest these propositions, but they also failed to cite, discuss,
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`or distinguish Rabobank’s cases:
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`•
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`To allege a Section 1 conspiracy, a plaintiff must plead facts showing that the
`defendant agreed to play a defined role in the conspiracy—i.e., “what they agreed
`to do.” (Rabobank Mem. at 5.)
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`involvement did not
`is proper where a defendant’s alleged
`Dismissal
`meaningfully further the conspiracy, such as where the information it supposedly
`shared was not “necessary to a fix-suppression scheme.” (Id. at 5-6.)
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`Decisions by industry players to attend dinners and cocktail receptions and make
`observations at industry events do not suggest involvement in a conspiracy. (Id.
`at 9, 11.)
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`Lumping all of the Rabobank defendants together and failing to attribute conduct
`to any one of them in particular is grounds for dismissal. (Id. at 12.)
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`The antitrust laws do not concern themselves with encouragement, particularly by
`industry outsiders. (Id. at 12-13.)
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`Participation in an antitrust conspiracy cannot be inferred from public statements
`about reducing supply that are “virtually indistinguishable from statements that
`would have been made without a conspiracy.” (Id. at 13.)
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`It is not a mark of a conspiracy to make obvious economic observations about
`“what is true, already known by the audience, and articulated by countless third-
`party analysts, academicians, and jurists alike.” (Id. at 2.)
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`Plaintiffs’ failure to challenge these points is particularly noteworthy because plaintiffs
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`•
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`•
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`•
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`used just two-thirds of the pages this Court allows for response briefs. Only one conclusion can
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`be reached from this failing: plaintiffs have nothing to say.
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`II.
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`Rabobank’s Motion is Not Based on the Faulty Premise that Non-Market
`Participants Cannot Be Liable under Section 1 of the Sherman Act
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`According to plaintiffs, “Rabobank’s motion relies heavily on the notion that it cannot be
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`liable for a Section 1 violation concerning broilers because it ‘does not buy, produce or distribute
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`chicken.’” (Resp. at 2.) This is incorrect. Rabobank did not argue that plaintiffs’ claims against
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`Case: 1:16-cv-08637 Document #: 4536 Filed: 04/09/21 Page 4 of 13 PageID #:298150
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`it should be dismissed simply because Rabobank is not a chicken producer. To the contrary,
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`Rabobank acknowledged this Court’s ruling with respect to Agri Stats and compared the
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`allegations against Agri Stats to the allegations against Rabobank in explaining why the latter
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`allegations fail to state a claim. (See Rabobank Mem. at 4-6.)
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`After setting up this straw man, plaintiffs attempt to knock it down by citing seven cases
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`for the proposition that “a non-competitor can violate Section 1 of the Sherman Act.” (Resp. at
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`2-3.) A review of these cases, however, confirms that plaintiffs’ allegations against Rabobank
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`cannot stand. Not one of them sought to hold a third party liable for providing financial services
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`or analyst information to an alleged co-conspirator. One of the cases actually affirms the
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`dismissal of antitrust claims, and makes the non-controversial observation that conspiracies need
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`not be “limited solely to market participants” in the context of analyzing a conspiracy to
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`monopolize under Section 2. See Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commc’ns,
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`Inc., 376 F.3d 1065, 1078 n.10 (11th Cir. 2004). No such claim is at issue here.
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`In plaintiffs’ six other cases, the non-market participant was alleged to be a critical player
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`in the conspiracy without which the conspiracy could not have occurred. Indeed, in several
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`instances, the industry outsider was the mastermind behind the illegal arrangement. See United
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`States v. Apple, 791 F.3d 290, 296-98 (2d Cir. 2015) (finding that Apple had devised scheme to
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`wrest ebook sales away from Amazon by coaxing publishers to sign agreements that allowed
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`them to raise prices if they acted in concert); In re Ins. Brokerage Antitrust Litig., 618 F.3d 300,
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`337, 344 (3d Cir. 2010) (identifying insurance broker as the “mastermind” that “instigated,
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`coordinated, and policed” the conspiracy); United States v. MMR Corp. (LA), 907 F.2d 489, 496-
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`98 (5th Cir. 1990) (affirming criminal conviction against supposed non-competitor that actively
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`participated in bid-rigging scheme by agreeing not to bid on construction project in exchange for
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`Case: 1:16-cv-08637 Document #: 4536 Filed: 04/09/21 Page 5 of 13 PageID #:298151
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`multi-million-dollar subcontract); In re Plasma-Derivative Protein Therapies Antitrust Litig.,
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`764 F. Supp. 2d 991, 1003 (N.D. Ill. 2011) (denying motion to dismiss where trade association
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`allegedly facilitated supply-reduction conspiracy by falsely denying the existence of supply
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`shortages and lying to a government agency); TYR Sport Inc. v. Warnaco Swimwear Inc., 679 F.
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`Supp. 2d 1120, 1134-36 (C.D. Cal. 2009) (denying motion to dismiss where non-market
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`participant was one of two members in the alleged conspiracy and allegedly furthered it by lying
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`to customers and altering images of sponsored athletes to remove competitors’ logos); Smithkline
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`Beecham Corp. v. Eastern Applicators, Inc., 2002 WL 1197763, at *8 (E.D. Pa. May 24, 2002)
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`(allowing bid-rigging claims to proceed against non-market participant that allegedly oversaw
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`the construction project at issue and managed the rigged bidding process).
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`In each of these cases, the outsider’s role was clear and essential to the operation of the
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`conspiracy. Here, in contrast, none of plaintiffs’ allegations show that Rabobank actually knew
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`the details of any supposed output-reduction conspiracy or was needed to advance its aims.
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`Plaintiffs do not allege that Rabobank devised the alleged conspiracy or profited from it like the
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`defendants in Apple and In re Insurance Brokerage. Plaintiffs do not allege that Rabobank lied
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`to anyone to facilitate the conspiracy like the defendants in In re Plasma and Warnaco
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`Swimwear. Nor do plaintiffs allege that Rabobank participated in the decision-making process
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`that led any broiler producer to cut supply, or that any producer did anything in response to
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`comments from Rabobank that the chicken industry would benefit from reduced output.
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`Even today, as Rabobank submits this reply, it lacks critical information about its
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`supposed involvement in the alleged conspiracy. The fact that Rabobank attended industry
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`events and had conversations with its poultry clients is of no moment. Who at Rabobank agreed
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`to join an alleged conspiracy and when? What role did they agree to play that was essential to
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`Case: 1:16-cv-08637 Document #: 4536 Filed: 04/09/21 Page 6 of 13 PageID #:298152
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`the conspiracy? And why, if Rabobank entered into an illicit agreement with broiler producers to
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`reduce output, did Rabobank question throughout the relevant time period whether broiler cuts
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`were coming, as plaintiffs’ own allegations show? Plaintiffs’ 425-page complaint answers none
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`of these questions. In the cases discussed above, these details jump off the page. The complaints
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`describe in detail exactly what the illegal agreements were, who from the non-market defendant
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`agreed to join them, the dates they did so, and how the defendants contributed to the success of
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`the conspiracy. This detail is entirely absent from plaintiffs’ allegations against Rabobank.1
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`In a footnote, plaintiffs claim that Rabobank “ignores” plaintiffs’ allegation that a
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`Rabobank employee worked “hand in hand with [a consultant] for years—and with producers—
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`to fix prices of broilers.” (Resp. at 3 n.3.) Once again, this is incorrect. Rather than ignore this
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`sentence, Rabobank quoted it and noted that this type of conclusory allegation should not be
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`taken as true at the dismissal stage. (Rabobank Mem. at 8.) Eschewing plaintiffs’
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`characterization (as the Court should do), Rabobank painstakingly discussed every factual
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`allegation against Rabobank in the complaint and explained why they do not plausibly suggest
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`that Rabobank agreed to enter a wide-ranging, decade-long conspiracy to reduce the output of
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`broiler chickens. It is not Rabobank’s status as an industry outsider that requires dismissal. It is
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`the fact that the allegations against it are deficient as a matter of law.
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`III.
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`Plaintiffs’ Argument that Rabobank Had a Motive to Join a Broad Conspiracy with
`U.S. Chicken Producers to Reduce Broiler Output Is Neither Relevant Nor Correct
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`Plaintiffs next argue that dismissal is improper because Rabobank had a motive to
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`conspire with broiler producers to reduce output. (Resp. at 3-5.) This argument is remarkable in
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`two respects.
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`1 When asked to provide this detail in response to an interrogatory—basic facts plaintiffs should have
`known before adding Rabobank as a defendant—plaintiffs lodged myriad objections and refused to
`provide any meaningful information.
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`First, it is not supported by any legal authority whatsoever. This perhaps can be
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`explained by plaintiffs’ awareness that, as this Court explained two years ago, “motive is not an
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`element of a Sherman Act claim.” In re Broiler Chicken Antitrust Litig., 2019 WL 1003111, at
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`*2 (N.D. Ill. Feb. 28, 2019). Moreover, as the Seventh Circuit has recognized, “[a]lthough a lack
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`of motive may be evidence that parties did not conspire, the presence of an economic motive is
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`of very little probative value.” Serfecz v. Jewel Food Stores, 67 F.3d 591, 600-01 (7th Cir. 1995)
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`(explaining that “[t]he mere existence of mutual economic advantage … supplies no basis for
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`inferring a conspiracy”); see also Associated Gen. Contractors of Calif., Inc. v. Calif. State
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`Council of Carpenters, 459 U.S. 519, 537 (1983) (“an allegation of improper motive … is not a
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`panacea that will enable any complaint to withstand a motion to dismiss”); Concord Assocs., L.P.
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`v. Ent. Properties Tr., 2014 WL 1396524, at *23-24 (S.D.N.Y. Apr. 9, 2014) (dismissing
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`Sherman Act claim because, aside from alleging motive, plaintiff failed to allege the defendants
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`participated in a conspiracy).
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`Second, plaintiffs rely for their argument on bare references to more than 30 documents
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`and deposition excerpts that are not cited in plaintiffs’ complaint. This is plainly improper. See,
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`e.g., Peppers v. Benedictine Univ., 2017 WL 6816734, at *2 n.3 (N.D. Ill. Dec. 12, 2017)
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`(refusing to consider exhibits attached to response brief “because these materials were not
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`referenced in the Amended Complaint.”); Multiut Corp. v. Greenberg Traurig, LLP, 2011 WL
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`4431021, at *3 n.1 (N.D. Ill. Sept. 22, 2011) (refusing to consider emails attached to response
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`brief because “[c]onsideration of a motion to dismiss is limited to the pleading, and the second
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`amended complaint does not attach or mention these e-mails”).
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`In the end, even if the Court were able to review and consider these materials (they were
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`not submitted as exhibits), it would not matter because plaintiffs’ motive argument is a red
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`Case: 1:16-cv-08637 Document #: 4536 Filed: 04/09/21 Page 8 of 13 PageID #:298154
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`herring. As noted above, plaintiffs’ argument that Rabobank had a financial incentive to join in
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`an output-reducing conspiracy is not a magic elixir for their many pleading deficiencies. It also
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`is factually incorrect. Evidence outside the complaint that Rabobank had hundreds of millions of
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`dollars in outstanding loans to chicken producers as of May 2009 and provided merger and
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`acquisition services to producers in addition to lending services does not support the conclusion
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`that Rabobank would risk criminal liability and treble damages by entering into a conspiracy to
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`reduce broiler output with its poultry clients and several other entities. (See Resp. at 4-5.)
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`At most,
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`this evidence shows exactly what Rabobank stated
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`in
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`its opening
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`memorandum—i.e., Rabobank did not want certain broiler producers to fail. (Rabobank Mem. at
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`4.) Presumably, the same is true of any other business partner, vendor, supplier, or employee of
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`the producer defendants in this case. Rabobank’s desire to see broiler producers stay in business
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`does not mean that it shared a “conscious commitment to a common scheme.” See, e.g., United
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`States v. Apple, Inc., 791 F.3d 290, 315 (2d Cir. 2015) (holding that, to be a plus factor,
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`allegations of motive must reflect a “common motive” to engage in illegal activity). In fact, as
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`the leading lender to certain producers, Rabobank made more money when these companies
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`struggled because, like all companies, they needed more financing in difficult economic times.
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`For all of these reasons, plaintiffs cannot salvage their deficient allegations by claiming that
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`Rabobank had a motive to participate in the alleged conspiracy.
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`IV. Rabobank’s Alleged Encouragement to its Poultry Clients that They Reduce Supply
`Is Insufficient to Allege a Section 1 Sherman Act Claim
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`As noted above, plaintiffs do not quarrel with the proposition that mere encouragement to
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`reduce supply cannot sustain a Section 1 claim against an industry outsider. According to
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`plaintiffs, however, “the complaint clearly alleges more than mere encouragement; it avers that
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`Rabobank intentionally and actively participated in an anticompetitive scheme with the other
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`defendants.” (Resp. at 7 n.5.)
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`The complaint does no such thing. In its opening memorandum, Rabobank walked the
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`Court through plaintiffs’ allegations in detail. (See Rabobank Mem. at 6-11.) None of the facts
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`alleged supports plaintiffs’ contentions that Rabobank was a “conduit” for anticompetitive
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`communications between producers, used its “reports and publications” to “effectuate producer
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`coordination,” or used its “position as the leading lender and financial institution servicing the
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`industry to secure coordinated action.” (Resp. at 5-6.) There are no allegations that Rabobank
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`played a role in any specific supply reduction or pricing of broilers, that it profited from any
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`reduction or price change, that it agreed to any quid pro quo, that any producer followed its
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`advice, or that its advice was different from that of numerous other market observers or industry
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`analysts. Indeed, plaintiffs offer no response to Rabobank’s citation to numerous public
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`comments from professors, reporters, and analysts that “there’s just too much chicken out there.”
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`(Rabobank Mem. at 13 n.3.)
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`Citing this Court’s ruling on Agri Stats’ motion to dismiss, plaintiffs argue that
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`Rabobank’s “competing account of the documents cited in the complaint does not render
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`Plaintiffs’ allegations implausible.” (Resp. at 7.) But Rabobank did not provide a “competing”
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`account of these documents. It simply laid them bare, so that the Court may determine for itself
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`whether they actually suggest Rabobank agreed to join, or participated in, a broiler chicken
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`conspiracy. The facts alleged are not, as plaintiffs contend, “consistent with the existence of the
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`alleged conspiracy.” (Id. at 9.) And even if they were, “[w]here a complaint pleads facts that,
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`are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility
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`and plausibility of entitlement to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
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`Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
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`In a footnote, plaintiffs cite two cases for the proposition that defendants that engage in
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`“encouragement” may be held liable for Section 1 Sherman Act violations. (Resp. at 7 n.5.) The
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`conduct of the defendants in these cases, however, is a far cry from that attributed to Rabobank.
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`One of the cases, United States v. Apple, is discussed above. There, Apple did not merely
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`“encourage” publishers to raise ebook prices, it devised the contractual mechanism by which the
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`conspiracy was implemented and personally profited from it by stealing business away from
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`Amazon. In the second case, United States v. Andreas, a litany of evidence established that the
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`defendants were personally involved in facilitating a conspiracy to restrict output and manipulate
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`prices, including tape-recorded meetings with competitors and concealment of the scheme
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`through “sham meetings propped up with phony agendas.” 39 F. Supp. 2d 1048, 1061-63 (N.D.
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`Ill. 1998). These cases do not help plaintiffs.
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`Finally, plaintiffs suggest that, at the dismissal stage, “‘even a wink and a nod’ will do,
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`since ‘formal agreements have never been required for purposes of Sherman Act Section 1.’”
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`(Resp. at 8.) The case they cite for this proposition, however, did not involve a motion to
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`dismiss, and its reasoning actually helps Rabobank. See Kleen Prods. LLC v. Georgia-Pacific
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`LLC, 910 F.3d 927 (7th Cir. 2018). In Kleen, the Seventh Circuit affirmed summary judgment in
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`favor of alleged Section 1 conspirators because the plaintiffs’ evidence of a conspiratorial
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`agreement was “nothing more than speculation,” and the price increases at issue were “just as
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`consistent with independent action as with collusion.” Id. at 936-37. Similarly, here, plaintiffs’
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`conclusory allegations that Rabobank joined a nationwide broiler conspiracy are the product of
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`sheer speculation and, therefore, fail as a matter of law.
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`V.
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`Plaintiffs Are Wrong to Disregard Rabobank’s Slippery Slope Argument and to
`Attempt to Avoid Dismissal by Citing an Unrelated Antitrust Investigation
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`Despite plaintiffs’ flip suggestion to the contrary (Resp. at 9-10), this Court should be
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`concerned that allowing plaintiffs’ allegations against Rabobank to survive dismissal would pave
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`the way for similarly wrongheaded claims to be filed against “a broad range of ancillary service
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`providers—bankers, lenders, lawyers, and accountants to mention a few—who lack the requisite
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`competitive interest and stake in the relevant market and who do not have any conscious
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`commitment to achieve the alleged restraint of trade in that market.” Gulf States Reorganization
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`Grp., Inc. v. Nucor Corp., 822 F. Supp. 2d 1201, 1219 n.18 (N.D. Ala. 2011), aff’d, 721 F.3d
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`1281 (11th Cir. 2013).
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`Moreover, plaintiffs’ deficient allegations are not saved by pointing to a deferred
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`prosecution agreement a Rabobank non-party affiliate entered into eight years ago that has
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`nothing to do with the broiler chicken market or any claim or defense in this case. (Resp. at 9
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`n.8.) Such irrelevant mudslinging should be disregarded.2
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`CONCLUSION
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`For the foregoing reasons, and the reasons set forth in Rabobank’s opening
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`memorandum, Rabobank respectfully requests that the Court dismiss in their entirety, with
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`prejudice, all claims asserted against Rabobank in Direct Action Plaintiffs’ Amended
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`Consolidated Complaint.
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`2 See, e.g., In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 664 (7th Cir. 2002) (“ADM’s
`previous misconduct cannot be used as evidence that it participated in a conspiracy to fix the price of
`HFCS.”); Holiday Wholesale Grocery Co. v. Philip Morris Inc., 231 F. Supp. 2d 1253, 1305 (N.D. Ga.
`2002) (finding tobacco industry’s history of collusion was not probative of subsequent alleged
`conspiracy); In re Elevator Antitrust Litig., 502 F.3d 47, 52 (2d Cir. 2007) (affirming dismissal of Section
`1 claim and rejecting inference that “if it happened there, it could have happened here”); LaFlamme v.
`Société Air France, 702 F. Supp. 2d 136, 154 (E.D.N.Y. 2010) (dismissing Section 1 claim and holding
`that party’s prior guilty pleas concerning “unrelated markets” were not probative of conspiracy to fix
`passenger air fares).
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`Case: 1:16-cv-08637 Document #: 4536 Filed: 04/09/21 Page 12 of 13 PageID #:298158
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`Dated: April 9, 2021
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`Respectfully submitted,
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`David J. Doyle (ARDC #6224848)
`Jill C. Anderson (ARDC #6228756)
`Matthew T. Connelly (ARDC #6320465)
`Freeborn & Peters LLP
`311 S. Wacker Drive, Suite 3000
`Chicago, IL 60606
`ddoyle@freeborn.com
`janderson@freeborn.com
`mconnelly@freeborn.com
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`UTRECHT-AMERICA HOLDINGS, INC., RABO
`AGRIFINANCE
`LLC, RABOBANK USA
`FINANCIAL CORPORATION, and UTRECHT-
`AMERICA FINANCE CO.
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`By: /s/ David J. Doyle
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`One of their attorneys
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`-11-
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`Case: 1:16-cv-08637 Document #: 4536 Filed: 04/09/21 Page 13 of 13 PageID #:298159
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on April 9, 2021, he caused a true and correct copy
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`of the foregoing to be electronically filed with the Clerk of the Court using the CM/ECF system,
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`which will send notification of such filing to all counsel of record.
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`/s/ David J. Doyle
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