Case: 1:20-cv-02295 Document #: 135 Filed: 02/15/21 Page 1 of 7 PageID #:2943
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`OLEAN WHOLESALE GROCERY
`COOPERATIVE, INC., et al.,
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`Plaintiffs,
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`v.
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`AGRI STATS, INC., et al.,
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`SANDEE’S CATERING,
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`v.
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`AGRI STATS, INC., et al.,
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`Defendants.
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`Plaintiff,
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`Defendants.
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`Case No.: 1:19-cv-08318
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`Honorable Virginia M. Kendall
`Hon. Gabriel A. Fuentes
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`Case No.: 1:20-cv-02295
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`Honorable Virginia M. Kendall
`Hon. Gabriel A. Fuentes
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`DEFENDANTS TYSON FOODS, INC.; TYSON FRESH MEATS, INC.; TYSON
`PREPARED FOODS, INC., AND THE HILLSHIRE BRANDS COMPANY’S
`MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR JUDGMENT ON THE
`PLEADINGS UNDER FEDERAL RULE OF CIVIL PROCEDURE 12(c)
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`Case: 1:20-cv-02295 Document #: 135 Filed: 02/15/21 Page 2 of 7 PageID #:2944
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`Defendants Tyson Foods, Inc.; Tyson Fresh Meats, Inc.; Tyson Prepared Foods, Inc., and
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`The Hillshire Brands Company (“Hillshire”) (collectively, “Tyson”) submit this memorandum of
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`law in support of their motion for judgment on the pleadings under Federal Rule of Civil
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`Procedure 12(c).
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`INTRODUCTION
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`In two decisions issued on October 19 and October 26, 2020, the Court dismissed
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`Defendants Kraft Heinz Foods Company and Kraft Foods Group Brands, LLC (collectively,
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`“Kraft”) from this consolidated class action because Kraft does not sell “whole turkeys.” (Mem.
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`Op. and Order 15, ECF No. 173 (Oct. 19, 2020) (“Op.”).) The Court reasoned that because “the
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`only price and cost data alleged are prices and costs associated with whole turkeys,” Plaintiffs
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`“failed to allege that the information exchange [alleged in the Complaint] had any anti-
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`competitive impact on the output or prices of Kraft’s products.” (Id. at 16.)
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`The Court’s rationale for dismissing Kraft squarely applies to Tyson. Like Kraft, Tyson
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`never sold whole turkeys from January 1, 2010 through January 1, 2017, Plaintiffs’ “Class
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`Period”—and Plaintiffs nowhere allege that Tyson did. Although Tyson sells turkey component
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`products through Hillshire and Hillshire’s Sara Lee brand, Plaintiffs fail to allege any anti-
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`competitive impact on the output or prices of products that Tyson did sell, and thus fail to state a
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`claim against Tyson.
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`Tyson respectfully requests that the Court accordingly enter judgment in its favor on the
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`pleadings.
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`Case: 1:20-cv-02295 Document #: 135 Filed: 02/15/21 Page 3 of 7 PageID #:2945
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`STATEMENT OF RELEVANT FACTS ALLEGED AND PROCEDURAL
`BACKGROUND1
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`In this consolidated class action, putative classes of direct and indirect purchasers of
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`turkey products (Direct Purchaser Plaintiffs, or “DPPs,” and Indirect Purchase Plaintiffs, or
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`“IPPs,” respectively) (collectively, “Plaintiffs”) bring claims alleging that Tyson, other alleged
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`producers of turkeys and turkey products, and benchmarking service Agri Stats, Inc., improperly
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`agreed to exchange allegedly competitively sensitive production and sales data from 2010 to
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`2017. Both classes assert that alleged agreement violated Section 1 of the Sherman Act, while
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`the IPPs allege that same conduct also violated various state laws. (See generally DPPs’ Class
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`Action Compl., ECF No. 1 (hereinafter the “DPP Compl.”); IPPs’ Class Action Compl., Case
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`No.: 1:20-cv-02295, ECF No. 1 (hereinafter the “IPP Compl.”).)
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`With respect to Tyson specifically, Plaintiffs allege that “Tyson participated in Agri
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`Stats’ reports” when “Sara Lee’s turkey operations, Hillshire Brands, was . . . acquired by Tyson
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`in 2014.” (DPP Compl. ¶ 9.) Plaintiffs do not allege that Tyson sold whole turkeys. Instead,
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`Plaintiffs allege only that Tyson “slaughter[s] and sell[s] turkey products.” (See, e.g., id. at
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`¶ 59.)
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`On June 16, 2020, all Defendants except for Kraft moved to dismiss both complaints in
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`their entirety. (Certain Defs.’ Jt. Mot. to Dismiss the DPPs’ Class Action Compl., ECF No. 144
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`(hereinafter “Certain Defs.’ MTD DPP Compl.”); Certain Defs.’ Jt. Mot. to Dismiss, ECF No.
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`34, Case No. 1:20-cv-02295 (hereinafter “Certain Defs.’ MTD IPP Compl.”).) Those
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`Defendants argued, among other things, that Plaintiffs failed to plausibly allege coordinated
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`1 The facts described in this section are taken from Plaintiffs’ complaints and assumed to be true for
`purposes of this motion only, as required on a motion for judgment on the pleadings under Rule 12(c).
`Tyson in no way admits the truth of any allegations, legal theories or conclusions in Plaintiffs’
`complaints.
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`Case: 1:20-cv-02295 Document #: 135 Filed: 02/15/21 Page 4 of 7 PageID #:2946
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`behavior tied to the use of Agri Stats. (See generally Mem. in Support of Certain Defs.’ MTD
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`DPP Compl. 10-30.) Defendants also sought to dismiss Plaintiffs’ per se claims, arguing that
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`Plaintiffs’ allegations of information exchange did not constitute a per se claim. (Id. 33-35.)
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`At the same time, Kraft filed separate motions to dismiss for failure to state a claim.
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`(Kraft Mot. to Dismiss Plaintiffs’ Class Action Compl., ECF No. 146 (hereinafter “Kraft MTD
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`DPP Compl.”).) In its motions, Kraft explained, among other things, that it “does not raise or
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`sell turkeys.” (Kraft Mem. in Support of MTD DPP Compl. 1, ECF No. 147; Kraft Mot. to
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`Dismiss IPPs’ Class Action Compl., ECF No. 36, Case No. 1:20-cv-02295 (hereinafter “Kraft
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`MTD IPP Compl.”).) Kraft (like the other defendants) also argued that dismissal of IPPs’ federal
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`claim would require dismissal of IPPs’ state-law claims, “[b]ecause the gravamen of each state
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`law claim is the alleged conspiracy.” (Kraft Mem. in Support of MTD IPP Compl. 6.)
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`On October 26, 2020, the Court dismissed both classes’ per se claims, but it denied
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`Defendants’ joint motion with respect to the classes’ rule of reason claims, and therefore left a
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`number of state claims intact as well (while dismissing others on various grounds). (Op. 18;
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`Mem. Op. and Order 12, 27, ECF No. 88, Case No. 1:20-cv-02295 (hereinafter the “IPP Op.”).)
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`But the Court granted Kraft’s motions in their entirety (without prejudice). In its opinion on
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`Kraft’s motion to dismiss the DPP Complaint, the Court held, “Plaintiffs . . . fail to state a claim
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`against Kraft because the only price and cost data alleged are prices and costs associated with
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`whole turkeys.” (Op. 15 (citing paragraphs 108, 111, and 116, which contained charts relating to
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`“heads slaughtered,” “price per pound for hens,” and “the relationship between the cost of feed
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`and the cost of hens”) (emphasis added).) Plaintiffs thus “failed to allege that the information
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`exchange had any anti-competitive impact on the output or prices of Kraft’s products,”; i.e.,
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`products other than whole turkeys. (Id. at 16.) “Without those allegations, Plaintiffs fail[ed] to
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`Case: 1:20-cv-02295 Document #: 135 Filed: 02/15/21 Page 5 of 7 PageID #:2947
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`state a claim against Kraft.” (Id.) The Court incorporated that reasoning in its opinion on the
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`IPP Complaint and accordingly dismissed all claims against Kraft in that action as well,
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`including all state-law claims. (IPP Op. 27.)
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`Neither IPPs nor DPPs have sought to amend their complaints to add allegations that
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`would reinstate Kraft as a proper defendant.
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` LEGAL STANDARD
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`“A motion for judgment on the pleadings is subject to the same standard as a motion to
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`dismiss under Rule 12(b)(6).” Gill v. City of Milwaukee, 850 F.3d 335, 339 (7th Cir. 2017)
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`(internal quotation marks and citations omitted). “Thus, to survive a motion for judgment on the
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`pleadings, a complaint must state a claim to relief that is plausible on its face.” Juarez v.
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`Experian Info. Sols., Inc., No. 19 C 7705, 2020 WL 5201798, at *2 (N.D. Ill. Aug. 31, 2020)
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`(internal quotation marks and alteration omitted) (alteration in original). See also Deflecta-
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`Shield Corp., v. Kar-Rite Corp., No. 85 C 5743, 1986 WL 4186 (N.D. Ill. Mar. 28, 1986)
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`(granting judgment on the pleadings on Sherman Act claims).
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` ARGUMENT
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`As the Court noted in its opinion on Defendants’ motions to dismiss, “the only price and
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`cost data alleged are prices and costs associated with whole turkeys.” (Op. 15) (emphasis added.)
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`Like Kraft, Tyson did not sell whole turkeys during the Class Period. Just as a shopper would
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`never see a Kraft or Oscar Meyer turkey sitting next to a Butterball turkey on the shelves near the
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`Thanksgiving holiday, a shopper would never see a Tyson, Hillshire, or Sara Lee turkey, either.
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`Also like Kraft, Tyson must therefore be dismissed from this case. Because “[n]one of
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`th[e] data [alleged in the complaints] says anything about the portion of the turkey market in
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`which [Tyson] competes,” (Op. at 15), Plaintiffs “have failed to allege that the information
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`exchange had any anti-competitive impact on the output or prices of [Tyson’s] products.” (Id. at
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`16.) Plaintiffs’ complaints therefore fail to state plausible claims against Tyson, and Tyson is
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`entitled to judgment on the pleadings.
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`CONCLUSION
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`Because Tyson has not sold whole turkeys within the Class Period (and Plaintiffs do not
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`allege that it has), Tyson respectfully requests that the Court enter judgment in its favor on the
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`pleadings pursuant to Federal Rule of Civil Procedure 12(c).
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`Dated: February 15, 2021
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`Respectfully submitted,
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`\s\ Jordan M. Tank
`Jordan M. Tank
`230 West Monroe Street
`Suite 2260
`Chicago, IL 60606
`Telephone: 312.702.0586
`jmt@lipelyons.com
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`Tiffany Rider Rohrbaugh
`Rachel J. Adcox
`Axinn, Veltrop & Harkrider LLP
`950 F. Street, NW
`Washington, DC 20004
`Telephone: 202.912.4700
`Facsimile: 202.912.4701
`trider@axinn.com
`radcox@axinn.com
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`Jarod G. Taylor (pro hac vice
`pending)
`Axinn, Veltrop & Harkrider LLP
`90 State House Square
`Hartford, CT 06103
`Telephone: 860.275.8100
`Facsimile: 860.275.8101
`jtaylor@axinn.com
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`Counsel for Tyson Foods, Inc., Tyson
`Fresh Meats, Inc., Tyson Prepared
`Foods, Inc., and The Hillshire
`Brands Company
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`Case: 1:20-cv-02295 Document #: 135 Filed: 02/15/21 Page 7 of 7 PageID #:2949
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`CERTIFICATE OF SERVICE
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`The undersigned, an attorney, hereby certifies that on February 15, 2021, a copy of the
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`foregoing was electronically filed with the Clerk of the Court using the Court’s CM/ECF system,
`which will send notification of the filing to all counsel of record.
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`By: /s/ Jordan M. Tank
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