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Case: 1:21-cv-00486 Document #: 1 Filed: 01/27/21 Page 1 of 4 PageID #:1
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`Jury Trial Demanded
`
`
`(Related to In re Broiler Chicken Antitrust
`Litigation – Case No. 1:16-cv-8637)
`
`
`ZAXBY’S FRANCHISING LLC,
`
` Plaintiffs,
`
`v.
`
`TYSON FOODS, INC., et al.,
`
` Defendants
`
`
`
`
`COMPLAINT
`Plaintiff Zaxby’s Franchising LLC (“Zaxby’s”) is a Georgia corporation with its
`
`1.
`
`principal place of business in Athens, Georgia. Zaxby’s owns, operates, or alternatively is the
`
`franchisor (and trademark licensor) of, more than 500 Zaxby’s branded restaurants in the United
`
`States (the “Zaxby’s Branded Restaurants”).1
`
`2.
`
`Restaurants like Zaxby’s serve their proprietary chicken products in multiple
`
`locations throughout the country. To ensure consistency in taste and quality of its products across
`
`hundreds of locations, Zaxby’s, like many restaurants, negotiated and contracted directly with
`
`Defendants for the production and supply of chicken for the Zaxby’s Branded Restaurants,
`
`according to Zaxby’s unique recipes and specifications. These negotiations and contracts
`
`governed the price and quantity at which Defendants would supply the Zaxby’s Branded
`
`
`Pursuant to the Court’s Orders in In re Broiler Chicken Antitrust Litig., 1:16-cv-08637, the
`1
`Direct Action Plaintiffs filed “a [C]onsolidated [C]omplaint” [ECF Nos. 3778, 3652, 3525]
`containing “all the allegations the Direct-Action Plaintiffs make against all Defendants” on
`October 23, 2020 [ECF Nos. 3924, 3922]. In an effort to promote efficiency, Zaxby’s files this
`abbreviated pleading that incorporates by reference and adopts the allegations set forth in the
`Direct Action Plaintiffs’ Consolidated Complaint and Demand for Jury Trial. If the Court prefers
`a different form or process, Zaxby’s will withdraw this pleading and proceed according to the
`Court’s direction.
`
`
`
`1
`
`

`

`Case: 1:21-cv-00486 Document #: 1 Filed: 01/27/21 Page 2 of 4 PageID #:2
`
`Restaurants with Broilers (as that term is defined in the Consolidated Complaint).
`
`3.
`
`Zaxby’s provided Defendants with instructions regarding each step of the
`
`preparation and packaging process for its chicken products, including the recipe for Zaxby’s
`
`products and specific requirements for packaging and labeling Zaxby’s proprietary products.
`
`4.
`
`The agreements entered into between Zaxby’s and Defendants and co-conspirators
`
`set forth the agreed price and volume of chicken products to be sold to Zaxby’s.
`
`5.
`
`Zaxby’s brings this action on its own behalf, and additionally and alternatively, as
`
`assignee of Performance Food Group, Inc. (“PFG”).
`
`6.
`
`During the conspiracy period, Zaxby’s purchased hundreds of millions of dollars’
`
`worth of Broilers directly from certain Defendants and co-conspirators at artificially inflated prices
`
`throughout the Conspiracy Period. Zaxby’s contracted directly with Defendants and their co-
`
`conspirators for the purchase of Broilers, negotiating the price and quantity at which Defendants
`
`would supply Zaxby’s with Broilers. As such, Zaxby’s has suffered antitrust injury as a result of
`
`Defendants’ anticompetitive and unlawful conduct.
`
`7.
`
`Also during the Conspiracy Period, PFG purchased Broilers on behalf of Zaxby’s
`
`from Defendants and their co-conspirators. PFG has assigned its claims arising out of these
`
`purchases to Zaxby’s.
`
`8.
`
`Zaxby’s was damaged by Defendants’ anticompetitive and illegal conduct by
`
`paying artificially inflated prices for Broilers, and therefore has suffered antitrust injury as a result
`
`of Defendants’ conduct. Zaxby’s brings this action to recover the overcharges it paid for Broilers
`
`purchased during the Conspiracy Period.
`
`9.
`
`Zaxby’s brings this action for damages under the federal antitrust laws against the
`
`defendants identified below and incorporates by reference Direct Action Plaintiffs’ Consolidated
`
`
`
`2
`
`

`

`Case: 1:21-cv-00486 Document #: 1 Filed: 01/27/21 Page 3 of 4 PageID #:3
`
`Complaint and Demand for Jury Trial [ECF Nos. 3924, 3922] filed in In re Broiler Chicken
`
`Antitrust Litigation, 1:16-cv-08637 (N.D. Ill.) on October 23, 2020.
`
`10.
`
`Zaxby’s joins Section II of the Direct Action Plaintiffs’ Consolidated Complaint
`
`and Demand for Jury Trial [ECF Nos. 3924, 3922], adding the following to specify Zaxby’s causes
`
`of action and the Defendants and Co-Conspirators in Zaxby’s action.
`
`
`
`
`Operative
`Complaint
`(Reference is
`to Sealed
`Version, if
`applicable)
`TBD
`
`Plaintiff Name
`
`Zaxby’s Franchising
`LLC
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Named-Co-
`Conspirators (if
`any)
`
`Amick; George’s;
`Peco; Fieldale;
`Allen Harim;
`Keystone Foods;
`Marshall Durbin
`
`
`Causes of Action
`
`Count I (Sherman Act
`Claim for all
`Anticompetitive
`Conduct).
`
`Named Defendants
`(Not Previously
`Dismissed)
`
`Claxton; Mar-
`Jac; Agri Stats;
`Case; Foster
`Farms; Harrison;
`House of
`Raeford;
`Koch;
`Mountaire; O.K.
`Foods; Perdue;
`Pilgrim’s Pride,
`Sanderson; Simmons;
`Tyson; Wayne
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Zaxby’s respectfully requests that the Court:
`
`A.
`
`B.
`
`Enter joint and several judgments against Defendants in favor of Zaxby’s;
`
`Award Zaxby’s damages in an amount to be determined at trial to the maximum
`
`extent allowed under federal antitrust laws, and enter a joint and several judgment in favor of
`
`Zaxby’s against Defendants in an amount to be trebled as provided by law;
`
`C.
`
`Award Zaxby’s post-judgment interest as provided by law, with such interest to be
`
`awarded at the highest legal rate;
`
`D.
`
`Award Zaxby’s attorneys’ fees, litigation expenses, and costs, as provided by law;
`
`
`
`3
`
`

`

`Case: 1:21-cv-00486 Document #: 1 Filed: 01/27/21 Page 4 of 4 PageID #:4
`
`and
`
`E.
`
`Grant Zaxby’s such other and further relief that the Court may deem just and proper.
`
`JURY DEMAND
`
`Pursuant to Federal Rule of Civil Procedure 38(b), Zaxby’s demands a trial by jury on all
`
`issues so triable.
`
`Dated: January 27, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`ZAXBY’S FRANCHISING LLC
`
`
`By: /s/ Lori P. Lustrin
`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
`
`Andrew P. Bleiman
`Mark I. Fishbein
`MARKS & KLEIN, LLP
`1363 Shermer Road, Suite 318
`Northbrook, Illinois 60062
`Telephone: 312-206-5162
`Facsimile: 312-420-5568
`andrew@marksklein.com
`mark@marksklein.com
`
`
`
`4
`
`

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