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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`No. 16 C 8637
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`Judge Thomas M. Durkin
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`IN RE BROILER CHICKEN ANTITRUST
`LITIGATION
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`Plaintiff Chick-fil-A (joined by other plaintiffs) has filed a motion to
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`ORDER
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`reconsider the Court’s bifurcation of the supply reduction and Georgia Dock claims
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`from the bid-rigging claims. See R. 4651; see also R. 4656; R. 4660; R. 4756; R. 4760;
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`R. 4761; R. 4772; R. 4975; R. 4980; R. 4995; R. 5024; R. 5080. Before Defendants
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`responded to the motion, the Court ordered Chick-fil-A to supplement its brief
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`addressing certain issues the Court identified. R. 4722. The Court (by order of
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`Magistrate Judge Gilbert) also ordered briefs regarding the form of a potential trial
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`in this case, see R. 4616, and the Court has considered those briefs in deciding this
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`motion. Chick-fil-A’s motion is granted and the bifurcation order is vacated.
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`Analysis
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`“Bifurcation is a common procedural device, and . . . district judges have
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`express authority [pursuant to Federal Rule of Civil Procedure 42(b)] to employ it in
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`appropriate cases, and a decision to do so is reviewed deferentially.” Hydrite Chem.
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`Co. v. Calumet Lubricants Co., 47 F.3d 887, 890 (7th Cir. 1995). But whether and
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`when in the course of a case to bifurcate claims is highly dependent on the
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`Case: 1:16-cv-08637 Document #: 5128 Filed: 10/15/21 Page 2 of 6 PageID #:309091
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`particular claims. As the Seventh Circuit has put it, the judge “must carve at the
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`joint.” Id. at 891.
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`Conspiracy claims do not always have obvious joints because, by their nature,
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`they are intended to connect distinct activity by various defendants. Discovery is
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`often necessary to reveal the “joints” in such claims, if there are any to be found. See
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`In re Vitamins Antitrust Litig., 2000 WL 1475705, at *18 (D.D.C. May 9, 2000)
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`(finding motion to sever to be “premature [because] [n]o depositions have been
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`taken and document discovery is still in an early stage”). And if the “joints” are
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`apparent from the complaint, the remedy is usually dismissal or severance of part of
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`the conspiracy, not bifurcation. Nevertheless, even in cases involving conspiracy
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`claims, the pleadings sometimes clearly show that a part of the conspiracy can be
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`severed or dismissed. See Precision Assocs., Inc. v. Panalpina World Transp.,
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`(Holding) Ltd., 2013 WL 6481195, at *40 (E.D.N.Y. Sept. 20, 2013), report and
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`recommendation adopted, 2014 WL 298594 (E.D.N.Y. Jan. 28, 2014) (severing an
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`alleged “overarching conspiracy” into two cases because plaintiffs did not plead “any
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`coordinated or concert of action between” the two underlying conspiracies); In re
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`Zinc Antitrust Litig., 155 F. Supp. 3d 337, 369 (S.D.N.Y. 2016) (dismissing a claim
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`for an overarching “web” conspiracy because the alleged underlying conspiracies
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`were “too different from the type of coordination” alleged to have occurred in the
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`overarching conspiracy). Bifurcation can be the remedy if the facts show that
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`certain parts of the conspiracy are sufficiently different such that trying them
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`together would be prejudicial to the defendants, confusing to the jury, or an
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`2
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`Case: 1:16-cv-08637 Document #: 5128 Filed: 10/15/21 Page 3 of 6 PageID #:309092
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`inefficient way to reach a judgment. Cf. Advanced Microtherm, Inc. v. Norman
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`Wright Mech. Equip. Corp., 2009 WL 2136916, at *3 and n.6 (N.D. Cal. July 16,
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`2009) (vacating bifurcation and ordering a single trial of “multiple conspiracies” for
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`evidentiary reasons, but affirming rejection of the claim that the multiple
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`conspiracies combined to establish a “global conspiracy”).
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`Chick-fil-A makes three primary arguments that the Court’s bifurcation
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`order prejudices its claims or is at least premature: (1) it operates as a de facto
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`dismissal of Chick-fil-A’s Count One for an “overarching conspiracy”; (2) it prevents
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`Chick-fil-A from using evidence of bid rigging to prove the supply reduction and
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`Georgia Dock claims; and (3) it could lead to inconsistent jury verdicts. These
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`arguments call for the Court to make findings that are normally, and more
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`properly, made on motions pursuant to Rules 12 and 56 and motions in limine.
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`As to the first argument, a de facto dismissal of the overarching conspiracy
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`claim is significant only if Plaintiffs have stated a plausible claim for an
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`overarching conspiracy. Due to the bifurcation order, the Court has not yet had the
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`opportunity to subject the overarching conspiracy claim to a Rule 12 analysis.
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`Next, whether evidence of bid rigging is relevant to the supply reduction and
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`Georgia Dock claims depends on what that evidence is. It is difficult to address this
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`issue in the abstract. Due to the bifurcation order, no discovery has been taken on
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`the bid rigging claims. Indeed, the Court has not yet had the opportunity to analyze
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`any evidence in this case because the case hasn’t reached the summary judgment
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`stage.
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`3
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`Case: 1:16-cv-08637 Document #: 5128 Filed: 10/15/21 Page 4 of 6 PageID #:309093
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`Without a complete evidentiary record and a summary judgment decision, it
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`is also most likely too early to predict what questions a jury will be required to
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`answer. The Court should know the evidence and claims to be tried before making
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`any decision about potential inconsistent jury verdicts.1
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`Accordingly, given that Chick-fil-A’s claim for an overarching conspiracy and
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`claim for a bid rigging conspiracy have yet to be tested under Rule 12, and the
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`Court has not yet been presented with a developed evidentiary record as would be
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`the case in the context of a summary judgment motion, the Court cannot make the
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`findings it would need to make to evaluate fully whether its bifurcation decision,
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`which flowed primarily from discretionary case management considerations, should
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`stand. Therefore, the Court finds that its decision to bifurcate this case was
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`premature and must be vacated.
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`Nevertheless, the Court is willing to accommodate any plaintiff that would
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`like to continue to trial on the supply reduction and Georgia Dock conspiracies
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`without discovery into bid rigging claims (i.e., the “first track”).2 The supply
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`reduction and Georgia Dock claims have taken priority in this case for five years,
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`and for that reason the Court finds it appropriate to continue to give priority to
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`those claims to the extent any plaintiff wants it.
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`1 For similar reasons, the Court needs more information before it can decide how
`this case will be tried.
`2 The Court’s prohibition on discovery into bid rigging during the first track should
`not be construed as a ruling on whether Plaintiffs may use evidence of bid rigging
`they already possess or that is publicly available in a trial on the supply reduction
`and Georgia Dock conspiracies.
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`4
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`Case: 1:16-cv-08637 Document #: 5128 Filed: 10/15/21 Page 5 of 6 PageID #:309094
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`The Classes have stated that they are “willing and ready to proceed” on the
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`first track. But the Classes qualify this willingness by stating that it is a product of
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`the Court’s bifurcation order and that they “do not agree that their conspiracy
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`claims can rightly be bifurcated into ‘bid-rigging claims’ and ‘market manipulation
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`claims.’” See R. 4832 at 2 n.2 (emphasis added). Because the Court is vacating its
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`bifurcation order, any plaintiff that would like to proceed to trial on the supply
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`reduction and Georgia Dock conspiracies without discovery into bid rigging claims
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`must so stipulate and concede any appellate issue on trying these claims without
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`bid rigging discovery.
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`If any plaintiff desires to proceed to trial on the supply reduction and Georgia
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`Dock conspiracies without discovery into bid rigging, that track will be given
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`priority over plaintiffs who insist on taking bid rigging discovery before any trial. It
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`may be that it is possible to manage both tracks simultaneously. But to the extent
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`there is conflict, scheduling the first track will take precedence.
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`In addition to this order of priority, the second track faces at least two
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`hurdles before fulling commencing bid rigging discovery. First, there may be
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`potential delays due to the ongoing criminal case. See R. 3520 (order granting
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`government’s protective order). Second, Defendants will almost certainly file
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`significant motions to dismiss the bid rigging claims and the claim for an
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`overarching conspiracy. The Court decided to vacate the bifurcation order, in part,
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`because it believes these motions could have a significant impact on those claims
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`5
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`Case: 1:16-cv-08637 Document #: 5128 Filed: 10/15/21 Page 6 of 6 PageID #:309095
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`going forward. For that reason, the Court will consider staying discovery in the
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`second track while those motions are pending.
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`Conclusion
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`Therefore, the Court grants the motions to reconsider [4651] [4656] [4660]
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`[4756] [4760] [4761] [4772] [4975] [4980] [4995] [5024] [5080] and vacates its
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`bifurcation order of September 22, 2020 [3835].3 Any party that wishes to proceed to
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`trial on the supply reduction and Georgia Dock conspiracies without discovery into
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`bid rigging claims should file a stipulation to that effect by November 12, 2021. A
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`new scheduling order will be developed based on whether any plaintiff files such a
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`stipulation.
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`Dated: October 15, 2021
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`ENTERED:
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`______________________________
`Honorable Thomas M. Durkin
`United States District Judge
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`3 This order grants these motions only to the extent that the bifurcation order is
`vacated. Any party that sought additional relief in their motion will need to make a
`new motion if they continue to seek such additional relief.
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