Case: 1:20-cv-02658 Document #: 1 Filed: 05/01/20 Page 1 of 16 PageID #:1
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`UNITED STATES OF AMERICA,
`
`COMMONWEALTH OF
`MASSACHUSETTS,
`
`and
`
`STATE OF WISCONSIN,
`
`
`
`v.
`
`
`DAIRY FARMERS OF AMERICA, INC.
`
`and
`
`
`
`
`
`Plaintiffs,
`
`DEAN FOODS COMPANY,
`
`
`
`
`
`Defendants.
`
`
`
`COMPLAINT
`
`The United States of America, the Commonwealth of Massachusetts, and the State of
`
`Wisconsin (“Plaintiff States”), bring this civil antitrust action to prevent Dairy Farmers of
`
`America, Inc. (“DFA”) from acquiring certain fluid milk processing plants from Dean Foods
`
`Company (“Dean”).
`
`I.
`
`Introduction
`
`DFA’s acquisition of most of Dean’s fluid milk processing plants would further
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`consolidate two highly concentrated fluid milk markets: (1) northeastern Illinois and Wisconsin
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`and (2) New England. The acquisition would make DFA the largest player in each market, with
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`nearly 70% market share in northeastern Illinois and Wisconsin and over 50% in New England.
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`DFA is the largest dairy cooperative in the United States, with nearly 14,000 farmer-members
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`located in dozens of states. DFA also owns numerous fluid milk processing plants, including
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`plants in Cedarburg, Wisconsin; New Britain, Connecticut; and Portland, Maine. Dean, the
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`largest fluid milk processor in the nation, owns competing plants in Harvard, Illinois; De Pere,
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`Wisconsin; and Franklin, Massachusetts.
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`DFA and Dean compete head-to-head to sell fluid milk to customers in the geographic
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`areas served by these plants, including supermarkets, schools, convenience stores, and hospitals,
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`among others. In these areas, DFA and Dean are two of only three significant competitive
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`options for these customers. Competition between DFA and Dean has benefitted these customers
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`by lowering fluid milk prices and improving service. The acquisition would eliminate
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`competition between DFA and Dean in these geographic areas, threatening to increase prices for
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`supermarkets, schools, and other fluid milk customers—price increases that would ultimately be
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`passed on to millions of individual consumers.
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`For these reasons and those set forth below, DFA’s proposed acquisition of assets from
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`Dean threatens to lessen competition substantially in violation of Section 7 of the Clayton Act,
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`15 U.S.C. § 18.
`
`II.
`
`Background
`
`A.
`
`1.
`
`Fluid Milk Processing
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`Approximately 10 million dairy cows produce over 200 billion pounds of raw
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`milk in the United States each year. Dairy farmers sell the raw milk that their cows produce to
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`processing plants that convert the raw milk into fluid milk, ice cream, cheese, and other dairy
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`products. Fluid milk is raw milk that has been processed for human consumption. It is the
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`ordinary fresh milk that can be found in supermarket and convenience store refrigerators.
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`2.
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`Fluid milk processing plants purchase raw milk from dairy farmers, pasteurize
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`and package the milk, and sell and distribute the processed product. Processors sell fluid milk to
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`supermarkets, schools, convenience stores, hospitals, and others—sometimes through
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`distributors and sometimes directly. The demand for fluid milk in the United States has declined,
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`causing the closure of fluid milk processing plants around the country and, among other factors,
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`leading to the pending bankruptcy of Dean and other fluid milk processors. Despite this
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`reduction in demand, a significant group of consumers remains loyal to traditional fluid milk,
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`and their demand for fluid milk continues to be largely unaffected by changes in price.
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`3.
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`Fluid milk customers pay different prices based on a variety of factors, including
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`the number of competitive alternatives available to the customer. Large customers and school
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`districts typically request bids from fluid milk processors. The prices quoted by processors in
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`these bids depend on the number and strength of competing processors, the processor’s product,
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`transportation and service costs, the processor’s capacity utilization, and the ability of the
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`processor to deliver directly to the customers’ locations, among other factors. Distance between
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`processors and purchasers also affects fluid milk pricing because fluid milk has a limited shelf
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`life and is costly to transport. As a result, most customers purchase fluid milk from nearby
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`processing plants.
`
`B.
`
`4.
`
`The Defendants and the Merger
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`Dairy Farmers of America is the largest cooperative of dairy farmers in the
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`country, with nearly 14,000 members. In 2018, DFA marketed 64.5 billion pounds of raw milk—
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`approximately 30% of all raw milk produced in the United States. DFA had 2018 revenues of
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`$13.6 billion.
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`5.
`
`DFA is also vertically integrated through its ownership interests in milk
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`processing plants. DFA owns a number of dairy processing plants around the country, including
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`eight fluid milk processing plants and a significant stake in a joint venture that owns twelve
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`additional fluid milk plants. In the northeastern Illinois and Wisconsin area, DFA owns a fluid
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`milk plant in Cedarburg, Wisconsin. In the New England area, DFA owns fluid milk plants in
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`New Britain, Connecticut and Portland, Maine. These plants compete directly against certain
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`processing plants that DFA proposes to acquire from Dean.
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`6.
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`Dean Foods is the largest fluid milk processor in the country. It currently operates
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`57 fluid milk processing plants in 29 states. Dean’s fluid milk processing network includes plants
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`in the northeastern Illinois and Wisconsin area in Harvard, Illinois and De Pere, Wisconsin, and
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`in the New England area in Franklin, Massachusetts. Dean had 2018 revenues of $7.75 billion.
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`7.
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`Dean filed for Chapter 11 bankruptcy protection on November 12, 2019.
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`Simultaneous with the bankruptcy filing, Dean announced that it was in discussions to sell some
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`or all of its fluid milk plants to DFA. Dean’s financial position continued to worsen in the
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`months after its bankruptcy filing and was exacerbated by the coronavirus pandemic, which
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`caused demand for milk by schools and restaurants to plummet. The growing financial crisis
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`caused the bankruptcy process to be accelerated in order to find buyers for Dean’s assets before
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`the company ran out of money to continue operating. By order of the bankruptcy court, Dean
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`accepted bids for its assets and selected winning bidders on March 30, 2020. Dean selected DFA
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`as the winning bidder for the majority of Dean’s assets.
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`8.
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`On April 6, 2020, DFA and Dean entered into an asset purchase agreement
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`whereby DFA agreed to purchase 44 of Dean’s 57 fluid milk plants, along with various other
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`assets, for a total value of $433 million. The purchase price consists of $325 million in cash and
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`$108 million in forgiveness of debt owed by Dean to DFA.
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`III.
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`Jurisdiction and Venue
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`9.
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`The United States brings this action under Section 15 of the Clayton Act, 15
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`U.S.C. § 25, as amended, to prevent and restrain Defendants from violating Section 7 of the
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`Clayton Act, 15 U.S.C. § 18.
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`10.
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`The Plaintiff States bring this action under Section 16 of the Clayton Act, 15
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`U.S.C. § 26, to prevent and restrain Defendants from violating Section 7 of the Clayton Act, 15
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`U.S.C. § 18. The Plaintiff States, by and through their respective Attorneys General, bring this
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`action as parens patriae on behalf of and to protect the health and welfare of their citizens and
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`the general economy of each of their states.
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`11.
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`DFA and Dean process, market, sell, and distribute fluid milk in the flow of
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`interstate commerce, and their sale of fluid milk substantially affects interstate commerce. This
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`Court therefore has subject matter jurisdiction over this action pursuant to Section 15 of the
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`Clayton Act, 15 U.S.C. § 25, and 28 U.S.C. §§ 1331, 1337(a), and 1345.
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`12.
`
`DFA and Dean both transact business in this district, including by selling fluid
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`milk to customers in this district. Venue is therefore proper in this district under Section 12 of the
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`Clayton Act, 15 U.S.C. § 22 and under 28 U.S.C. § 1391(c).
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`IV.
`
`The Merger Would Substantially Lessen Competition in the Sale of Fluid Milk.
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`13.
`
`DFA’s acquisition of Dean’s plants in northeastern Illinois, Wisconsin, and New
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`England is likely to lessen competition substantially for fluid milk customers. DFA and Dean are
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`two of only three significant fluid milk processors that can serve customers in these areas. If the
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`acquisition were permitted to proceed, DFA would control nearly 70% of the fluid milk market in
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`northeastern Illinois and Wisconsin, and approximately 51% in New England. DFA and Dean
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`compete head-to-head to supply fluid milk customers in these areas today, and those customers
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`rely on competition between DFA and Dean to get lower prices and better terms. The acquisition
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`would eliminate this competition and lead to higher prices and inferior service for supermarkets,
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`schools, and other fluid milk customers and, ultimately, millions of individual consumers.
`
`A.
`
`14.
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`The processing and sale of fluid milk is a relevant product market.
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`The processing and sale of fluid milk is a relevant product market and line of
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`commerce under Section 7 of the Clayton Act. Consumers have long-held cultural and taste
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`preferences for fluid milk over other beverages, and fluid milk has particular nutritional benefits
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`and qualities for use in cooking. Consequently, consumer demand for fluid milk is relatively
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`inelastic; that is, fluid milk consumption does not decrease significantly in response to a price
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`increase. Fluid milk is distinct from extended shelf-life milk, ultra-high temperature milk, and
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`aseptic milk, which are produced by different processes, have numerous significant differences,
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`and generally cost significantly more than fluid milk.
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`15.
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`Retailers, supermarkets, distributors, and other fluid milk customers are unlikely
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`to substitute other products for fluid milk because the individual consumers that they serve
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`continue to demand fluid milk. Schools are similarly unlikely to substitute away from fluid milk
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`in response to even a substantial price increase because they are required by federal regulations
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`to offer fluid milk to students to receive federal reimbursements for meals served to lower-
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`income students.
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`16.
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`For these reasons, the processing and sale of fluid milk satisfies the well-accepted
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`“hypothetical monopolist” test set forth in the U.S. Department of Justice and Federal Trade
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`Commission 2010 Horizontal Merger Guidelines (“Horizontal Merger Guidelines”). A
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`hypothetical monopolist processing and selling fluid milk likely would impose a small but
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`significant and non-transitory price increase (e.g., five percent) because an insufficient number of
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`customers would switch to alternatives to make that price increase unprofitable.
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`B.
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`The two relevant geographic markets are (1) northeastern Illinois and
`Wisconsin and (2) New England.
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`17.
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`Fluid milk processors charge different prices to buyers in different areas. They
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`negotiate prices individually, and fluid milk’s high transportation costs and limited shelf life
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`mean that customers cannot practically buy fluid milk from each other to avoid a higher price
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`charged by processors. In other words, fluid milk processors can engage in “price
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`discrimination.” When price discrimination is possible, relevant geographic markets may be
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`defined by reference to the location of customers. In particular, a relevant geographic market for
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`the processing and sale of fluid milk is a region within which customers can be targeted for a
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`price increase. Most customers purchase fluid milk from suppliers and processing plants located
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`near them because transportation costs and shelf life make sourcing from more distant suppliers
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`prohibitive.
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`18.
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`Northeastern Illinois, which includes Chicago and its suburbs, and the state of
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`Wisconsin together comprise a relevant geographic market and section of the country within the
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`meaning of Section 7 of the Clayton Act. Similarly, New England—including the states of
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`Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont—is a relevant
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`geographic market and section of the country within the meaning of Section 7 of the Clayton
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`Act. A hypothetical monopolist selling fluid milk in either of these two areas likely would find it
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`profitable to impose a small but significant and non-transitory price increase (e.g., five percent),
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`because customers could not economically switch their source of supply to more distant sources.
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`C.
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`19.
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`The merger is presumptively unlawful in both geographic markets.
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`DFA’s acquisition of Dean’s fluid milk processing plants would result in a
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`substantial increase in the concentration of processors that compete to supply fluid milk to
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`customers in the northeastern Illinois and Wisconsin geographic market and the New England
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`geographic market. DFA and Dean are two of only three significant fluid milk processors that
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`sell into each of these geographic markets. In both geographic markets the acquisition would
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`eliminate one competitor, leaving just two remaining competitive options for fluid milk
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`customers, with DFA controlling a significant majority of fluid milk sales. Although there are
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`small or fringe fluid milk processors in each market, these processors are not competitive options
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`for most fluid milk customers because they are much smaller and lack the capabilities necessary
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`to compete against processors like DFA and Dean.
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`20.
`
`The Supreme Court has held that mergers that significantly increase concentration
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`in already concentrated markets are presumptively anticompetitive and therefore presumptively
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`unlawful. To measure market concentration, courts often use the Herfindahl-Hirschman Index
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`(“HHI”) as described in the Horizontal Merger Guidelines. HHIs range from 0 in markets with
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`no concentration to 10,000 in markets where one firm has a 100% market share. According to the
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`Horizontal Merger Guidelines, mergers that increase the HHI by more than 200 and result in an
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`HHI above 2,500 in any market are presumed to be anticompetitive and, therefore, unlawful.
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`21.
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`The acquisition of Dean’s plants by DFA is presumptively unlawful in
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`northeastern Illinois and Wisconsin. For fluid milk customers in this geographic market the
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`combined market share of Dean’s processing plants in Harvard, Illinois, and De Pere, Wisconsin,
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`and DFA’s processing plant in Cedarburg, Wisconsin is estimated to be approximately 70%. The
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`result is a highly concentrated market with an HHI of nearly 5,200 and an increase in HHI of
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`nearly 1,900.
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`22.
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`The acquisition is also presumptively unlawful in the New England geographic
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`market. For fluid milk customers in New England, the combined market share of Dean’s
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`processing plant in Franklin, Massachusetts, and DFA’s processing plants in New Britain,
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`Connecticut, and Portland, Maine is estimated to be approximately 51%. The result is a highly
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`concentrated market with an HHI of approximately 3,300 and an increase in HHI of over 1,000.
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`D.
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`The merger would reduce competition that benefits fluid milk customers in
`northeastern Illinois and Wisconsin and in New England.
`
`1.
`
`The merger would eliminate head-to-head competition between DFA and
`Dean.
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`23.
`
`DFA’s acquisition of Dean’s plants in northeastern Illinois and Wisconsin and in
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`New England would eliminate head-to-head competition that has benefitted and would otherwise
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`continue to benefit supermarkets, schools, and other fluid milk customers in the relevant
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`geographic markets. Especially for large customers like supermarkets, DFA and Dean are two of
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`only three competitive fluid milk processors, and they are often the two lowest-price options in
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`these geographic markets. For reasons related to service and delivery capabilities, some fluid
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`milk customers consider DFA and Dean to be their only practical options.
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`24. Many customers solicit bids from fluid milk processors and select the bidder that
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`offers the lowest price. These customers often leverage a lower-priced bid from one supplier to
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`obtain improved offers and lower prices from other bidders in individual negotiations. Even
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`customers who use less formal procurement processes benefit from the presence of competitive
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`alternatives, which constrain the prices that fluid milk processors can charge. Fluid milk
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`customers in the relevant geographic markets have historically used competing bids from DFA
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`and Dean to obtain lower prices.
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`25.
`
`As described above, customers typically purchase fluid milk from processing
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`plants located near them because of shelf life and the costs associated with transportation. These
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`costs comprise a significant portion of the prices that fluid milk processors offer to customers.
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`Therefore, the lowest-price fluid milk processors available to customers typically are the
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`processing plants located closest to them. For many fluid milk customers in the relevant
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`geographic markets, DFA and Dean are two of the closest processing plants and, therefore, two
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`of the most competitive options. The only other significant competitors selling fluid milk to
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`customers in these markets are unlikely to substantially mitigate the loss of competition between
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`DFA and Dean.
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`26. Many customers also have particular product and service requirements that not all
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`fluid milk processors can meet. Many supermarkets, convenience stores, schools, and other
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`customers require processors to arrange direct-store delivery, or “DSD,” where the processor
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`delivers fluid milk to each of the customer’s locations on a set schedule—sometimes as often as
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`daily. Schools typically require milk to be packaged in small half-pint containers that require a
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`separate bottling line and dedicated equipment. DFA and Dean, along with the third significant
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`competitor in each of the relevant geographic markets, can satisfy these complex product and
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`service requirements, while other smaller processors cannot.
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`2.
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`The merger would increase the likelihood of anticompetitive coordination.
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`27.
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`The acquisition would result in easier and more stable coordinated interaction
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`among DFA and the remaining fluid milk competitors in northeastern Illinois and Wisconsin and
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`in New England. By reducing the number of significant fluid milk processors in these areas from
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`three to two, the acquisition would make it easier for the remaining two processors to coordinate.
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`Coordination is more likely to occur where it would be particularly effective and profitable, as in
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`markets with few significant competitors, relatively homogenous products, and where demand
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`for the product is not significantly affected by an increase in its price. Fluid milk markets exhibit
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`each of these characteristics.
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`28.
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`There is a history of anticompetitive coordination, including price-fixing, bid-
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`rigging, and customer allocation in fluid milk markets in the United States and, in particular, in
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`the sale of milk to schools. Numerous fluid milk processors, including Dean itself, have engaged
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`in criminal collusive activities at various times over the last 40 years. Given this history of
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`coordination among fluid milk processors and the reduction in the number of significant
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`competitors, DFA’s acquisition of Dean’s assets makes coordination more likely to occur in
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`these geographic markets.
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`E.
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`Entry by other fluid milk processors is unlikely to prevent an anticompetitive
`price increase.
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`29.
`
`Entry by fluid milk processors outside the relevant geographic markets is unlikely
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`to be sufficient or timely enough to offset the anticompetitive effects of the acquisition.
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`Processors who do not currently serve these markets are unlikely to begin shipping a significant
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`quantity of fluid milk into the relevant geographic markets due to the same factors that make
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`them uncompetitive in these markets today, including transportation costs and the lack of
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`necessary capabilities or levels of service. Any milk that could be shipped into the relevant
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`geographic markets likely could not be competitively priced because of high transportation costs,
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`nor could it be economically delivered to customers like schools without local distribution
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`networks.
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`30.
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`The construction of a new fluid milk processing plant to serve customers in either
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`of the relevant geographic markets is very unlikely because of the high costs of building a dairy
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`processing plant—especially as fluid milk consumption has declined. Numerous fluid milk
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`processing plants have closed in the last ten years across the United States, while only a few new
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`plants have been built, largely for retailers to supply their own stores. The two largest fluid milk
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`processors in the country, Dean and Borden, have filed for bankruptcy.
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`V.
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`Countervailing Factors Do Not Offset the Anticompetitive Effects of the Merger.
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`31.
`
`The proposed merger is unlikely to generate verifiable, merger-specific
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`efficiencies sufficient to outweigh the anticompetitive effects that are likely to occur in the
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`provision of fluid milk in the relevant geographic markets.
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`VI. Violations Alleged
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`32.
`
`The acquisition by DFA of certain Dean assets likely would lessen competition
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`substantially for the processing and sale of fluid milk in the two relevant geographic markets
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`alleged above in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18.
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`33.
`
`Unless enjoined, the acquisition likely would have the following anticompetitive
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`effects, among others, in the relevant geographic markets:
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`(a) competition for the sale and processing of fluid milk between DFA and
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`Dean would be eliminated;
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`(b) prices for fluid milk would increase; and
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`(c) quality and service levels would decrease.
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`VII. Request for Relief
`
`34.
`
`Plaintiffs request that the Court:
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`(a) adjudge and decree that DFA’s proposed acquisition of assets from Dean
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`would be unlawful and violate Section 7 of the Clayton Act, 15 U.S.C. § 18;
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`(b) preliminary and permanently enjoin and restrain Defendants and all persons
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`acting on their behalf from consummating the planned acquisition or from
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`entering into or carrying out any other contract, agreement, plan, or
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`understanding, the effect of which would be to combine DFA and Dean in
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`the relevant geographic markets alleged above;
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`(c) award Plaintiffs the costs of this action; and
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`(d) award Plaintiffs other relief that the Court deems just and proper.
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`Dated: May 1, 2020
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`Respectfully submitted,
`
`FOR PLAINTIFF UNITED STATES OF AMERICA:
`
`
`
`
`
`
`
`
`
`
` /s/
`
`Makan Delrahim
`John R. Lausch, Jr.
`Assistant Attorney General for Antitrust
`United States Attorney
`
`Northern District of Illinois
`
`
`
`Thomas P. Walsh
`
`Chief, Civil Division
`
`United States Attorney’s Office
` /s/
`Northern District of Illinois
`Bernard A. Nigro, Jr.
`219 South Dearborn Street
`Principal Deputy Assistant Attorney General
`Chicago, IL 60604
`
`Tel.: 312-353-5312
`
`Email: thomas.walsh2@usdoj.gov
`
`
`
`
`
`
` /s/
`
`Kathleen S. O’Neill
` /s/
`Senior Director of Investigations and
`Karl D. Knutsen
`Litigation
`Justin T. Heipp
`
`Nathaniel J. Harris
`
`Joseph Chandra Mazumdar
`
`Christopher A. Wetzel
`
`
`
`Attorneys for the United States
` /s/
`U.S. Department of Justice
`Eric D. Welsh
`Antitrust Division
`Acting Chief
`450 Fifth Street NW, Suite 4100
`Healthcare and Consumer
`Washington, DC 20530
`Products Section
`Tel.: 202-514-0976
`
`Fax: 202-307-5802
`
`E-mail: karl.knutsen@usdoj.gov
`
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`FOR PLAINTIFF COMMONWEALTH OF MASSACHUSETTS:
`
`
`MAURA HEALY
`ATTORNEY GENERAL
`
`
`/s/ Daniel H. Leff
`BY:
`Daniel H. Leff
`Assistant Attorney General
`Michael MacKenzie
`Assistant Attorney General
`Deputy Chief, Antitrust Division
`One Ashburton Place, 18th Floor
`Boston, MA 02108
`Tel: (617) 962-2613
`Fax: (617) 722-0184
`Daniel.Leff@mass.gov
`Michael.Mackenzie@mass.gov
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`FOR PLAINTIFF STATE OF WISCONSIN
`
`JOSHUA L. KAUL
`
`Attorney General of Wisconsin
`
`A
`
`Gwe olynJ.C0 ey
`Assistant Attorney General
`PO. Box 7857
`
`Madison, WI 53707-7857
`
`(608) 261-5810
`(608) 266-2250 fax
`gwendolyn.cooley@wisconsin.gov
`
`