Case: 1:16-cv-08637 Document #: 4545 Filed: 04/15/21 Page 1 of 14 PageID #:298196
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`IN THE 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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`This Document Relates To:
`Certain Direct Action Plaintiffs
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`No. 1:16-cv-08637
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`District Judge Thomas M. Durkin
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`Magistrate Judge Jeffrey T. Gilbert
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`CERTAIN RESTAURANT DAPS’ REPLY IN FURTHER SUPPORT OF THEIR
`MOTION TO ESTABLISH A SEPARATE RESTAURANT DAP TRACK AND APPOINT
`CERTAIN RESTAURANT DAP LIAISON COUNSEL
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`Case: 1:16-cv-08637 Document #: 4545 Filed: 04/15/21 Page 2 of 14 PageID #:298197
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`The central theme of Defendants’ Reply Brief in Support of their Motion to Amend
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`Scheduling Order 14 and Opposition to Certain Restaurant DAPs’ Motion for a Separate
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`Restaurant DAP Track, is that the DAPs are a motley crew who “cannot agree, even among
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`themselves, on any reasonable path forward.” If by that, Defendants mean to suggest that DAPs
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`have different positions in a complex case involving some of the largest individual chicken
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`purchasers in the country—each claiming tens if not hundreds of millions of dollars of
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`damages—then Certain Restaurant DAPs and Defendants have found a point of agreement.
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`It is not at all surprising that there is a lack of uniformity among the DAPs regarding how
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`they believe their individual cases should proceed. The DAP group is comprised of several
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`different categories of purchasers—from grocery stores to restaurants to distributors—and the
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`claims of each type of purchaser varies almost as widely as their businesses. In fact, it is a
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`testament to the DAPs’ efforts that in a group as diverse as the DAPs, over 100 plaintiffs
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`represented by over two dozen law firms were able to coalesce behind just three positions.
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`Indeed, for the better part of the past three months, Defendants have repeatedly
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`emphasized in their class certification opposition briefs how unique each individual plaintiff’s
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`purchasing relationship is and why individualized proof is necessary to resolve this case. Now,
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`however, Defendants sing the opposite tune, attempting to characterize the DAP group as a
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`monolith with identical claims that are coextensive with the Class and for whom common
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`discovery is more than sufficient.
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`Defendants cannot have it both ways. The reality is that the DAP group has many
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`common interests, both with each other and with the Class, but that the members of the group
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`also have unique and sometimes even divergent claims and interests that require individualized
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`attention.
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`1
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`Case: 1:16-cv-08637 Document #: 4545 Filed: 04/15/21 Page 3 of 14 PageID #:298198
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`Certain Restaurant DAPs are one of the groups that have unique interests in this case.
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`They are victims of the supply restriction and Georgia Dock conduct that has long been at issue
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`in this case, just as the classes and their DAP brethren are. However, after the Department of
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`Justice issued its first criminal Indictment, the case took on a very different complexion. It is
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`now clear from the DOJ’s Indictment and Superseding Indictment that Certain Restaurant DAPs
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`are also victims of Defendants’ criminal bid-rigging enterprise, which necessarily requires proof
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`that has not been developed fully yet. Indeed, the bid-rigging conduct is paramount to and
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`impacts all aspects of Certain Restaurant DAPs’ claims.1 It is for this reason that a separate track
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`is necessary to address Certain Restaurant DAPs’ unique position in this case.
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`Even with regard to the supply reduction and Georgia Dock allegations that Defendants
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`want this Court to believe are so homogeneous, Certain Restaurant DAPs’ theory is different.
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`Like their bid-rigging claims, Certain Restaurant DAPs’ supply reduction and Georgia Dock
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`allegations
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`incorporate Defendants’ direct communications and dealings with Certain
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`Restaurant DAPs and other contract purchasers. There is simply no way around the fact that
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`Certain Restaurant DAPs should receive discovery of these direct communications and dealings.
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`While Defendants try to downplay Certain Restaurant DAPs’ uniqueness, the Court need
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`only look at the allegations of the Amended Consolidated Complaint that Defendants claimed
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`they should not have to answer because they constituted “bid-rigging”. Indeed, included among
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`these “bid-rigging” allegations are Certain Restaurant DAPs’ specific allegations—which do not
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`mention bid-rigging—of how Defendants used a coordinated false supply reduction of small
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`birds to justify price increases in their contract negotiations with Certain Restaurant DAPs.
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`1 The same cannot be said of the Class. Indeed, as this Court recognized in its September 22
`Order, the Class never even mentioned the word bid-rigging anywhere in its complaint.
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`2
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`Defendants contend that Certain Restaurant DAPs’ Motion is a backdoor attempt to
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`reconsider the Court’s September 22, 2020 Order, and that Certain Restaurant DAPs’ Motion,
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`like “each DAP group’s proposal does nothing more than delay this case.” Defendants are
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`wrong. Certain Restaurant DAPs were explicitly clear in their Motion that they do not seek to
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`delay or impact in any respect the Class’s case schedule. Nor, do they request, again in any
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`respect, to redo any discovery taken in this case regarding the supply reduction and Georgia
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`Dock elements of Defendants’ conspiracy.
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`The real question, though, is why Defendants are so opposed to the relief requested by
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`Certain Restaurant DAPs. Since the bid-rigging aspect of the case must proceed at some point,
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`what difference does it make to Defendants if Certain Restaurant DAPs are permitted to
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`prosecute their supply reduction and Georgia Dock claims at the same time? And what possible
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`justification could Defendants have for not agreeing to allow Certain Restaurant DAPs their own
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`liaison counsel if Certain Restaurant DAPs believe it necessary to represent their interests?
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`Defendants’ Opposition does not address either of these questions, but the answer is self-
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`evident. Defendants are opposed to Certain Restaurant DAPs trying their claims together not
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`because of any legitimate concern regarding case schedule, delay, or duplication. Rather,
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`Defendants realize how interrelated Certain Restaurant DAPs’ claims are and that they are much
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`stronger prosecuted together than separately. They also hope that forcing Certain Restaurant
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`DAPs back into the “DAP Class” will blur the differences between Certain Restaurant DAPs’
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`and the other plaintiffs in this case and provide Defendants cover to continue avoiding any type
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`of individualized discovery critical to Certain Restaurant DAPs’ claims.
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`No doubt, this is why Defendants try to dismiss Certain Restaurant DAPs as a smattering
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`of a few restaurants “largely represented by the same law firm.” In fact, this smattering of
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`restaurants includes the five (and seven of eight) largest chicken restaurants in the country that
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`have filed opt out complaints. Indeed, Certain Restaurant DAPs account for over $20 billion of
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`purchases during the conspiracy—or more than a quarter of the entire Direct Purchaser Class.
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`And, the supposed single law firm Defendants reference is actually a group of six of the most
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`respected antitrust law firms in the country.
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`Defendants and the Class want this Court to still view this case as a class action, with the
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`DAPs just along for the ride on the proverbial train that has become the analogy of choice in both
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`the Class’s and Defendants’ submissions. Defendants and the Class miss the point. Certain
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`Restaurant DAPs are not trying to hold up the Class train or change its direction. Certain
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`Restaurant DAPs wish to take a different train to a different city.
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`Defendants Know Certain Restaurant DAPs Are Different
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`A.
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`In their Opposition, Defendants contend that Certain Restaurant DAPs’ allegations are “at
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`most, slight variations on the allegations that have been in this case for almost five years”—
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`“there are supply and Georgia Dock claims at issue in all Plaintiffs’ complaints.” Opp. at 15, 16.
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`Defendants then argue that the discovery already taken in this case on supply restriction and
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`Georgia Dock should be more than sufficient for Certain Restaurant DAPs.
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`Defendants’ attempt to characterize the supply reduction and Georgia Dock elements of
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`this case as one-size-fits-all. They are not. Certain Restaurant DAPs included in their
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`Complaints the allegations asserted by the Class and other DAPs that Defendants engaged in a
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`coordinated conspiracy to reduce the supply of Broilers and to artificially inflate the Georgia
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`Dock price index. But Certain Restaurant DAPs went further—adding allegations that were
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`unique to Defendants’ treatment of Certain Restaurant DAPs and other contract-based customers.
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`As Certain Restaurant DAPs explained in their Motion, their supply reduction and
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`Georgia Dock claims incorporated specific allegations regarding how Defendants used those
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`elements in their direct communications with Certain Restaurant DAPs to justify the higher
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`prices they were charging. See, e.g., Amended Consolidated Complaint at ¶¶ 571, 572
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`(“Defendants also were able to take advantage of their coordinated reduction in the supply of broilers
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`in price negotiations with restaurants and other contract purchasers. . . . One of the primary
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`explanations Defendants presented for these inflated prices was what they said was a reduction in the
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`supply of broilers. Defendants were able to point to the actual supply reduction that they orchestrated
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`for broilers in the 2011-2012 timeframe.”); id. at ¶ 839 (“When Defendants engaged in negotiations
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`with restaurants and other contract purchasers of broilers, and sought to explain why they were
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`‘forced’ to increase prices, one of the main explanations that they used to justify the price increases
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`was the artificially inflated Georgia Dock index. Defendants independently could not have provided
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`restaurants and other contract purchasers with the same false explanation for price increases without
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`coordinating the messaging.”).
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`These allegations were found nowhere in the Class complaint or in any prior DAP
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`complaint. Indeed, Defendants themselves viewed certain of these allegations as so unique that
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`they designated them as part of the “new” bid-rigging conduct that they did not have to answer.
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`See Joint Stipulation Regarding Answer to DAPs’ Am. Consolidated Compl. ¶ 3, ECF No. 4416
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`(Defendants “not obligated to respond” to paragraphs 571-573 of the Amended Consolidated
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`Complaint).
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`Defendants clearly have no response to this point, nor can they explain how Certain
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`Restaurant DAPs should be expected to litigate these critical aspects of their claims when
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`Defendants refuse to even answer the allegations. Indeed, in their Opposition Defendants avoid
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`the discussion entirely.
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`Case: 1:16-cv-08637 Document #: 4545 Filed: 04/15/21 Page 7 of 14 PageID #:298202
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`Instead, Defendants resort to their catch-all contention that Certain Restaurant DAPs are
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`attempting to revisit this Court’s determination to bifurcate the bid-rigging allegations from the
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`supply reduction and Georgia Dock allegations as currently pled by the Class and other DAPs.
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`Certain Restaurant DAPs are doing nothing of the sort. They are not seeking to lift the bid-
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`rigging stay or accelerate the consideration of their bid-rigging claims. Certain Restaurant DAPs
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`simply wish to prosecute their claims in full, and not just the portion that happen to coincide
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`with the Class allegations.
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`B.
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`in Restaurant DAP Discovery
`to Participate
`Defendants’ Refusal
`Demonstrates the Need for Separate Certain Restaurant DAP Track
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`In their Motion, Certain Restaurant DAPs explained that there is uncharted territory in
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`this case concerning Defendants’ communications with Certain Restaurant DAPs. The Class did
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`not pursue discovery regarding Defendants’ communications with their customers. And, when
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`Certain Restaurant DAPs attempted to obtain this basic discovery, Defendants refused.
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`To justify their refusal to engage in discovery with Certain Restaurant DAPs, Defendants
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`first claim that the documents they already produced “hit” on Certain Restaurant DAPs tens of
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`thousands of times. According to Defendants, their hit count research demonstrates that “DAPs
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`have plenty of individual discovery to utilize.” Opp. at 9. What Defendants fail to mention,
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`however, is that the vast majority of the “hits” Defendants’ showcase are isolated references in
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`Agri Stats and other market reports, mass emails, and other voluminous spreadsheets.
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`For example, Defendants say they produced documents that yielded 4,889 “hits” for
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`Boston Market. In fact, Defendants’ documents contained 8,303 hits on Boston Market. But of
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`those 8,303 hits, 7,583 were contained in spreadsheets, reports, news alerts, and market updates
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`that simply mentioned Boston Market in passing.
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`Case: 1:16-cv-08637 Document #: 4545 Filed: 04/15/21 Page 8 of 14 PageID #:298203
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`Similarly, with respect to El Pollo Loco, Defendants say their research yielded 14,239
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`hits. In actuality, Defendants documents contained 17,769 El Pollo Loco hits. But here as well,
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`12,857 of the hits were spreadsheets that merely mention the company name. The same holds
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`true for Golden Corral. While nearly 15,547 documents hit on the term “Golden Corral,” 10,474
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`were spreadsheets that simply included the words Golden Corral.
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`Defendants’ response to Certain Restaurant DAPs’ specific discovery is even more
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`telling. When Certain Restaurant DAPs requested Defendants’ communications with Certain
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`Restaurant DAPs regarding contract negotiations, Defendants made the same assertion that they
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`repeat in their Opposition—that Certain Restaurant DAPs’ requests “are an obvious attempt to
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`circumvent the Bid-Rigging Order.” Opp. at 8. In fact, Certain Restaurant DAPs could not have
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`been clearer that they “were not seeking documents related to their bid-rigging claims.” Motion,
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`Ex. E (3/9/21 email from L. Lustrin to J. Pennington).
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`Defendants’ suggestion that it was Certain Restaurant DAPs who let a productive meet
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`and confer on discovery deteriorate also is incorrect. Defendants state that “[a]s a potential
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`compromise, Defendants agreed to consider producing any contracts that DAPs identified as
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`likely to exist but missing from their own files.” Opp. at 8-9. But, Defendants made clear they
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`are not willing to produce any communications with or about Certain Restaurant DAPs, or
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`consider adding search terms or custodians relevant to Certain Restaurant DAPs. And, even with
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`regard to contracts, Defendants’ suggestion that Certain Restaurant DAPs first must search their
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`files and advise Defendants which contracts are missing is an obvious non-starter. That is not
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`how discovery works.
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`Defendants have no compunction with aggressive discovery intent on acquiring from
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`Certain Restaurant DAPs all discovery concerning Certain Restaurant DAPs’ communications
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`7
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`Case: 1:16-cv-08637 Document #: 4545 Filed: 04/15/21 Page 9 of 14 PageID #:298204
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`with Defendants and more. And Certain Restaurant DAPs have complied with this expansive
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`discovery, running search terms, identifying custodians, producing documents responsive to
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`Defendants requests, and sitting for corporate representative depositions—the topics of which are
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`all encompassing. And, at no time have Certain Restaurant DAPs adopted Defendants’ position
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`that Certain Restaurant DAPs only have to produce documents “missing from [Defendants’] own
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`files.” This asymmetric discovery must stop.
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`To be clear, this is not a discovery dispute. That is exactly what Defendants would like
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`this Court to think so it would fit nicely in their narrative that Certain Restaurant DAPs are only
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`seeking to delay these proceedings. But, the dispute between Defendants and Certain Restaurant
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`DAPs goes to the core of Certain Restaurant DAPs’ cases—and how they will ultimately be
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`tried.
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`Once more, as Defendants acknowledge, the interrelationship between Certain Restaurant
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`DAPs’ supply restriction, Georgia Dock, and bid-rigging theories is extensive. It is for this very
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`reason that Certain Restaurant DAPs believe that the most efficient and effective solution is the
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`establishment of a separate track whereby Certain Restaurant DAPs can pursue discovery
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`applicable to all of their claims concurrently.
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`C. Defendants Cannot Claim Any Prejudice from the Relief Requested in
`Certain Restaurant DAPs’ Motion
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`As discussed above, what perhaps is most revealing about Defendants’ Opposition is why
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`Defendants are so opposed to the relief Certain Restaurant DAPs are requesting. Again, Certain
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`Restaurant DAPs do not want to stand in the way of the case schedule agreed to by the Class and
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`Defendants. Nor do Certain Restaurant DAPs seek to redo any discovery taken in this case by
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`the Class and other DAPs either regarding supply restriction or Georgia Dock. And, since
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`Defendants are going to have to defend the bid-rigging element of this case one way or the other,
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`Case: 1:16-cv-08637 Document #: 4545 Filed: 04/15/21 Page 10 of 14 PageID #:298205
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`they cannot claim any legitimate prejudice if Certain Restaurant DAPs are permitted to prosecute
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`their case theories concurrently.
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`By contrast, Certain Restaurant DAPs should not be limited to the supply reduction and
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`Georgia Dock allegations as pled by the Class and other DAPs. In their complaint, the Class did
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`not rely in any fashion on Defendants’ contract-based pricing to certain customers. Indeed, one
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`of the central premises of the Class’s complaint was that Defendants moved away from contract-
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`based pricing over the course of the conspiracy. For this reason, the Class did not actively seek
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`discovery from Defendants regarding negotiations with particular customers.
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` Unlike the Class’s complaint, Certain Restaurant DAPs’ claims include specific
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`references to Defendants’ efforts to use bid submissions and contract negotiations to effectuate
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`across-the-board price increases to restaurants and other contract-based customers. And, to
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`justify these price increases, Defendants engaged in a coordinated messaging campaign to
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`restaurants that was based in major part on a false supply reduction and artificially inflated
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`Georgia Dock prices. Yet, as demonstrated above, Defendants adamantly refused to produce
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`negotiation documents with Certain Restaurant DAPs, claiming it is bid-rigging discovery in
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`disguise.
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`In short, there is no fair mechanism for Certain Restaurant DAPs to be combined with the
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`Class and other DAPs. By forcing Certain Restaurant DAPs to prosecute the unique aspects of
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`their supply reduction and Georgia Dock claims now, and in conjunction with the Class and
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`other DAPs, Certain Restaurant DAPs will be deprived of even the most basic discovery and
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`arguments relevant specifically to their claims.
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`Defendants’ strident opposition to separate liaison counsel for Certain Restaurant DAP is
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`perhaps even more difficult to justify. What possible reason could Defendants have to object to
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`9
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`Case: 1:16-cv-08637 Document #: 4545 Filed: 04/15/21 Page 11 of 14 PageID #:298206
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`this reasonable request? Certain Restaurant DAPs should be permitted a representative to speak
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`to the Court, Defendants, and Class counsel.
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`Dated: April 15, 2021
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`Respectfully submitted,
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`By: /s/ Lori P. Lustrin
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`Robert W. Turken (pro hac vice)
`Lori P. Lustrin (pro hac vice)
`Scott N. Wagner (pro hac vice)
`BILZIN SUMBERG BAENA PRICE &
`AXELROD LLP
`1450 Brickell Ave., Suite 2300
`Miami, Florida 33131-3456
`Telephone: 305-374-7580
`Facsimile: 305-374-7593
`rturken@bilzin.com
`llustrin@bilzin.com
`swagner@bilzin.com
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`Andrew P. Bleiman
`MARKS & KLEIN, LLP
`1363 Shermer Road, Suite 318
`Northbrook, Illinois 60062
`Telephone: 312-206-5162
`Facsimile: 312-420-5568
`andrew@marksklein.com
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`Counsel for Boston Market Corporation, Barbeque
`Integrated, Inc. d/b/a Smokey Bones Bar & Fire Grill,
`FIC Restaurants, Inc. d/b/a Friendly’s, The Johnny
`Rockets Group, Inc., WZ Franchise Corp., Golden
`Corral Corp., White Castle Purchasing Co., Cracker
`Barrel Old Country Store, Inc., CBOCS Distribution,
`Inc, Captain D’s LLC, Shamrock Foods Company,
`United Food Service, Inc., Bojangles’ Restaurants,
`Inc., Bojangles Opco, LLC, Zaxby’s Franchising LLC,
`and El Pollo Loco, Inc.
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`By: /s/ Ryan Phair
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`Ryan Phair
`Hunton Andrews Kurth LLP
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`Case: 1:16-cv-08637 Document #: 4545 Filed: 04/15/21 Page 12 of 14 PageID #:298207
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`2200 Pennsylvania Avenue, NW
`Washington, D.C. 20037-1701
`(202) 955-1500
`rphair@huntonak.com
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`Matthew J. Calvert
`HUNTON ANDREWS KURTH LLP
`Bank of America Plaza, Suite 4100
`600 Peachtree Street NE
`Atlanta, GA 30308
`(404) 888-4000
`mcalvert@huntonak.com
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`John S. Martin
`HUNTON ANDREWS KURTH LLP
`Riverfront Plaza, East Tower
`951 East Byrd Street
`Richmond, VA 23219-4704
`(804) 788-8200
`marinj@huntonak.com
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`Julie B. Porter
`SALVATORE PRESCOTT PORTER
`& PORTER, PLLC
`1010 Davis Street
`Evanston, IL 60201
`(312) 283-5711
`porter@sppplaw.com
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`Counsel for Chick-fil-A, Inc.
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`By: /s/ Jay B. Shapiro
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`Jay B. Shapiro
`Samuel O. Patmore
`Carlos J. Canino
`Abigail G. Corbett
`STEARNS WEAVER MILLER WEISSLER
`ALHADEFF & SITTERSON, P.A.
`150 West Flagler Street, Suite 2200
`Miami, Florida 33130
`Tel: 305.789.3200
`Fax: 305.789.3395
`jshapiro@stearnsweaver.com
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`Case: 1:16-cv-08637 Document #: 4545 Filed: 04/15/21 Page 13 of 14 PageID #:298208
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`spatmore@stearnsweaver.com
`ccanino@stearnsweaver.com
`acorbett@stearnsweaver.com
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`Marvin Alan Miller
`MILLER LAW LLC
`115 South LaSalle Street, Suite 2910
`Chicago, IL 60603
`(312) 332-3400
`mmiller@millerlawllc.com
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`Counsel for Supply Management Systems, Inc.
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`By: /s/ Philip J. Iovieno
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`Philip J. Iovieno
`Lawrence Brandman
`Nicholas A Gravante , Jr
`Mark A. Singer
`Cadwalader Wickersham & Taft LLP
`200 Liberty Street
`New York, NY 10281
`212-504-6868
`philip.iovieno@cwt.com
`nicholas.gravante@cwt.com
`lawrence.brandman@cwt.com
`mark.singer@cwt.com
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`Terence H. Campbell
`Cotsirilos, Tighe, Streicker, Poulos, & Campbell, Ltd.
`33 North Dearborn Street, Suite 600
`Chicago, IL 60602 (312) 263-0345
`tcampbell@cotsiriloslaw.com
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`Counsel for Darden Restaurants, Inc., and PJ Food
`Service, Inc.
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`By: /s/ William J. Blechman
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`William J. Blechman
`Douglas H. Patton
`Samuel J. Randall
`Michael A. Ponzoli
`KENNY NACHWALTER, P.A.
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`12
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`Case: 1:16-cv-08637 Document #: 4545 Filed: 04/15/21 Page 14 of 14 PageID #:298209
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`1441 Brickell Avenue, Suite 1100
`Miami, Florida 33131
`Tel: (305) 373-1000
`Fax: (305) 372-1861
`wblechman@knpa.com
`dpatton@knpa.com
`srandall@knpa.com
`mponzoli@knpa
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`Counsel for Pollo Operations, Inc.
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`By: /s/ Floyd A. Mandell
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`Floyd A. Mandell
`Yonaton Rosenzweig
`Jeffrey A. Wakolbinger
`Catherine E. O'Brien
`KATTEN MUCHIN ROSENMAN LLP
`525 West Monroe Street
`Chicago, Illinois 60661-3693
`Tel: (312) 902-5235
`Fax: (312) 902-1061
`floyd.mandell@katten.com
`yoni.rosenzweig@katten.com
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`
`Yonaton M. Rosenzweig (pro hac vice forthcoming)
`KATTEN MUCHIN ROSENMAN LLP
`2029 Century Park East, Suite 2600
`Los Angeles, California 90034
`Tel: (310) 788 4460
`Fax: (310) 712 8222
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`Attorneys for Caesars Enterprise, LLC
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`CERTIFICATE OF SERVICE
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`The undersigned counsel hereby certifies that a true and correct copy of the foregoing
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`document was electronically served upon the parties and counsel of record on April 15, 2021.
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`/s/ Lori P. Lustrin
`Lori P. Lustrin
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`13
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