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Case 1:19-cv-02521-SAG Document 695 Filed 07/19/22 Page 1 of 33
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`Plaintiffs,
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`Civil Case No. 1:19-CV-2521-SAG
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`JUDY JIEN, et al.,
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`v.
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`PERDUE FARMS, INC., et al.,
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`Defendants.
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`MEMORANDUM OPINION
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`Plaintiffs Judy Jien, Kieo Jibidi, Elaisa Clement, Glenda Robinson, Emily Earnest, and
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`Kevin West (collectively “Plaintiffs”), on behalf of themselves individually and on behalf of a
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`class of former and current employees, bring suit against twenty poultry processors and several of
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`their subsidiaries or parents (“Defendant Processors”), plus two data consulting companies
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`(collectively “Defendants”). The Third Amended Complaint (“TAC”) alleges two violations of
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`Section One of the Sherman Antitrust Act. ECF 590. Specifically, Plaintiffs allege: (1) a
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`conspiracy among Defendants, except Peco Foods, Inc. (“Peco Foods”) and Agri Stats, Inc. (“Agri
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`Stats”) to fix and depress poultry workers’ compensation; and (2) a conspiracy among all
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`Defendants for the unlawful exchange of compensation data. Id. Presently pending are five
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`motions to dismiss the TAC.1 ECF 630, 631, 632, 638, 639. Plaintiffs filed oppositions; ECF 654,
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`658, 659, 660, 661; and Defendants filed replies, ECF 674, 675, 676, 678, 679. For the following
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`reasons, Defendants’ motions will be denied, except that the motions filed by Jennie-O Turkey
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`1 Mar-Jac Poultry, Inc. (“Mar-Jac GA”) also filed a motion to dismiss, ECF 636, which was
`subsequently mooted by this Court’s approval of Plaintiffs’ Stipulation and Notice of Dismissal
`with Prejudice as to Mar-Jac GA, ECF 685, 686.
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`1
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`Case 1:19-cv-02521-SAG Document 695 Filed 07/19/22 Page 2 of 33
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`Store Inc., (“Jennie-O”) and Mountaire Farms, Inc., (“Mountaire”) will be granted as to Count I
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`only.
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`I.
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`BACKGROUND
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`The core allegations in this case have been set forth in detail in this Court’s earlier
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`Opinions; see ECF 378, 414; and will not be fully reiterated herein.2 Relevant here, however, is a
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`brief discussion of the procedural posture of this case.
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`Plaintiffs filed this action in August, 2019, alleging a conspiracy from January, 2009,
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`onward to fix and depress wages of hourly workers at chicken processing plants. ECF 1; see also
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`ECF 196. In their consolidated First Amended Complaint (“FAC”), Plaintiffs asserted the same
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`claims on behalf of an expanded class of hourly and salaried workers at Defendant Processors’
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`poultry (not merely chicken) processing plants. See FAC ¶ 245. Defendants filed a series of
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`motions to dismiss, which this Court granted in part and denied in part through a Memorandum
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`Opinion and Order. ECF 378, 379 (“MTD Op. I”). That Opinion enumerated four holdings
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`relevant to the resolution of the instant motions. First, the FAC provided direct evidence for its
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`per se claim—namely statements by Defendants’ executives fretting about the propriety of wage
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`discussions at secret meetings—but that the claim could only be sustained against Defendants who
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`were explicitly linked to the evidence through attendance at such meetings. MTD Op. I at 11-14.
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`Second, Plaintiffs’ alleged product market, defined as the poultry processing labor market, was
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`plausible in light of those workers’ industry-specific expertise, limited education and language
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`skills, and the fact that Defendants themselves appeared to perceive themselves as a distinct,
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`nationwide unit. Id. at 23-25. Third, Plaintiffs had plausibly alleged the relevant geographic
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`2 This Court adopts by reference its discussion of facts set forth in its earlier Opinions resolving
`Defendants’ previous motions to dismiss, ECF 378, 414. Relevant new factual allegations will be
`referenced in the discussion sections of this Opinion, infra.
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`2
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`Case 1:19-cv-02521-SAG Document 695 Filed 07/19/22 Page 3 of 33
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`market to be the continental United States, particularly because Defendants’ arguments regarding
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`overbreadth did not warrant dismissal. Id. at 21-22. Fourth, the FAC plausibly alleged
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`anticompetitive effects in the relevant market through secret meetings, the exchange of survey data
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`compiled by Webber, Meng, Sahl and Company, Inc. (“WMS”), and the use of Agri Stats to
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`monitor adherence to the conspiracy. Id. at 25-27.
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`Plaintiffs subsequently filed a Second Amended Complaint (“SAC”) restating its
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`allegations against previously-dismissed Defendants, ECF 386, which Defendants sought to
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`dismiss on multiple grounds, see ECF 398, 399, 400, 401. In its Memorandum Opinion and Order
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`(“MTD Op. II”), this Court denied the motions in their entirety based in part on three key findings.
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`ECF 414, 415. First, this Court found that under the “class certification” approach, named
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`Plaintiffs (chicken processing workers paid hourly) had standing to pursue claims on behalf of
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`salaried and turkey processing workers because named Plaintiffs’ interests did not differ
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`significantly from the salaried and turkey employees they sought to represent. Id. at 5-6. Second,
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`this Court held that the SAC adequately stated its per se claim against Jennie-O, Mountaire, and
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`Sanderson Farms Inc., (“Sanderson”) by alleging that they attended at least some secret meetings,
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`thereby linking them to direct evidence of the alleged conspiracy. Id. at 8-11. Third, with regards
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`to the rule of reason claim in Count II, this Court rejected Jennie-O’s argument that the SAC failed
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`to allege anticompetitive effects against it because it operated in the Upper Midwest rather than
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`the South. Id. at 12-13. In doing so, this Court explained that Jennie-O’s geographic arguments
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`were unavailing in light of its earlier determination that Plaintiffs had plausibly alleged the
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`geographic market to extend throughout the entire continental United States. Id. (quoting MTD
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`Op. I at 22-23).
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`3
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`Case 1:19-cv-02521-SAG Document 695 Filed 07/19/22 Page 4 of 33
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`In January, 2022, Plaintiffs sought and obtained leave to file a TAC. ECF 567, 589. The
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`TAC expanded the scope of this action in four material ways. First, the TAC broadened its putative
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`class beyond employees at poultry processing plants to also include workers at Defendant
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`Processors’ poultry hatcheries and poultry feed mills (collectively, “poultry workers”). TAC at 9.
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`Second, the TAC expanded the class period to extend from January, 2000 until July, 2021. Id.
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`Third, the TAC named seven additional Defendants—Foster Poultry Farms (“Foster”); Case
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`Foods, Inc.; Case Farms, LLC; O.K. Foods, Inc.; Allen Harim Foods, LLC (“Allen Harim”);
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`Amick Farms, LLC (“Amick Farms”); and Mar-Jac GA. Fourth, the TAC added a new named
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`Plaintiff, Kevin West. Id. ¶ 33. The TAC also attributed additional nomenclature and labels to
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`various portions of the alleged conspiracy. Specifically, the annual survey administered by WMS
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`is now referred to as the Poultry Industry Compensation Survey (hereinafter “Compensation
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`Survey”); participants in the Compensation Survey referred to themselves as the Poultry Industry
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`Survey Group (hereinafter, “Survey Group”). Id. ¶¶ 7-8, 212. The TAC alleges that the
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`Compensation Survey and Survey Group were “governed and operated by a ‘Steering Committee’
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`that consisted of between three and five executives of different Defendant Processors.” Id. ¶ 230.
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`Likewise, the “annual ‘off the books’ meetings” at which compensation rates were set are alleged
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`to be called Poultry Industry Compensation Meetings (hereinafter, “Compensation Meetings”).
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`Id. ¶ 11.
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`Five motions to dismiss are currently pending. First, several Defendants challenge
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`Plaintiffs’ standing to pursue claims related to persons employed at Defendant Processors’
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`hatcheries and feed mills, ECF 630.3 Second, Foster filed a motion to dismiss for lack of personal
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`3 The motion to dismiss for lack of standing was filed by the following Defendants: Agri Stats,
`Allen Harim, Amick Farms, Butterball, LLC, Case Farms, LLC, Case Foods, Inc., Fieldale Farms
`Corporation (“Fieldale Farms”), Foster, Jennie-O, Keystone Foods, LLC, Koch Foods, Inc., Mar-
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`4
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`jurisdiction and for failure to state a claim. ECF 631. Finally, three individual defendants,
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`Sanderson, Jennie-O, and Mountaire, filed motions challenging the sufficiency of the claims
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`against them, ECF 632, 638, 639. This Court will address each issue relevant to these five motions
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`in turn.
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`II. STANDING
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`A. Legal Standard
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`Federal Rule of Civil Procedure 12(b)(1) governs motion to dismiss for lack of standing,
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`and therefore lack of subject matter jurisdiction. As the party asserting a court’s power to
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`adjudicate the claim or controversy before it, the plaintiff bears the burden of demonstrating that
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`jurisdiction, in fact, exists. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999); see also United
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`States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). “[W]hen a defendant raises
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`standing as the basis for a motion under Rule 12(b)(1) to dismiss for lack of subject matter
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`jurisdiction,” the court “may consider evidence outside the pleadings without converting the
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`proceedings to one for summary judgment.” White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459
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`(4th Cir. 2005); see also Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d
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`765, 768 (4th Cir. 1991). While the plaintiff bears the burden of proving that a court has
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`jurisdiction over the claim or controversy at issue, a Rule 12(b)(1) motion should be granted “only
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`if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a
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`matter of law.” Morgan Stanley v. NIRAV BABU, 2020 WL 1331995, at *3 (D. Md. Mar. 23,
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`2020) (quoting Thomas-Lawson v. Koons Ford of Baltimore, Inc., 2020 WL 1675990, at *3 (D.
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`Md. Apr. 6, 2020)).
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`Jac GA, Mountaire, O.K. Foods, Inc., Perdue Farms, Inc. (“Perdue Farms”), Perdue Foods LLC
`(“Perdue Foods”), Sanderson, Tyson Foods, Inc., and Wayne Farms, LLC.
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`5
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`B. Analysis
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`In the Rule 12(b)(1) motion, Defendants insist that named Plaintiffs, as poultry processing
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`plant employees, lack standing with regards to claims brought on behalf of workers at poultry
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`hatcheries and feed mills. ECF 630. This Court disagrees.
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`Standing requires that a plaintiff suffered: (1) an injury in fact; (2) caused by the defendant;
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`and (3) redressable by a favorable decision of the court. Lujan v. Defenders of Wildlife, 504 U.S.
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`555, 560-61 (1992). This Court previously joined others in this district in following the majority,
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`“class certification” approach to analyzing standing in the context of Plaintiffs’ putative class
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`action claims. ECF 414 at 5; see also Singh v. Lenovo (United States) Inc., 510 F. Supp. 3d 310,
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`319 (D. Md. 2021); Williams v. Potomac Fam. Dining Grp. Operating Co., LLC, No. GJH-19-
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`1780, 2019 WL 5309628, at *4 (D. Md. Oct. 21, 2019). Under that approach, a putative class
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`representative has standing “where she plausibly alleges that (1) she has suffered an injury in fact
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`traceable to a defendant and redressable by the court, and (2) her claimed injury is shared in
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`common with others who have been similarly harmed by the same defendant’s actions.” Singh,
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`510 F. Supp. 3d at 319 (quoting In re Mutual Funds Inv. Litig., 519 F. Supp. 2d 580, 586 (D. Md.
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`2007). Where these elements are satisfied, courts utilizing the “class certification” approach will
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`“allow[] an action to proceed . . . leaving for the Rule 23(a) analysis questions about commonality,
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`typicality, and adequacy of representation.” Id.
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`This Court already determined that Plaintiffs adequately alleged their own injuries for
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`purposes of standing. See MTD Op. II at 4-6. The key inquiry, then, is whether Plaintiffs’ injuries
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`are “shared in common with others who have been similarly harmed by the same defendant’s
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`actions.” Singh, 510 F. Supp. 3d at 319. Put differently, the relevant question is not whether there
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`are differences between named Plaintiffs and workers at hatcheries and feed mills, but rather:
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`6
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`Case 1:19-cv-02521-SAG Document 695 Filed 07/19/22 Page 7 of 33
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`whether those differences create divergent interests such that “the class representative[s] [have] an
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`insufficient personal stake in the adjudication of the class members’ claims?” MTD Op. II at 5-6
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`(quoting In re Asacol Antitrust Litigation, 907 F.3d 42, 49 (1st Cir. 2018)). This Court previously
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`answered that question in the negative, and does so again now.
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`The TAC adequately alleges that workers at Defendant Processors’ poultry processing
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`plants, hatcheries, and feed mills were similarly injured by Defendants’ anticompetitive conduct
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`effectuated
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`through Compensation Meetings, Compensation Surveys, plant-to-plant
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`communications, executive-to-executive communications, and extensive data sharing. The TAC
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`makes clear that Defendants’ conduct was targeted with equal force against workers at processing
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`plants, feed mills, and hatcheries alike. See, e.g., TAC ¶ 242 (alleging that Defendants collected
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`and shared detailed survey data regarding positions at poultry processing plants, hatcheries, and
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`feed mills); see also id. ¶ 236 (alleging that Defendants required as a condition of entry into the
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`Survey Group that an entity managed all three of poultry processing plants, hatcheries, and feed
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`mills). Crucially, the TAC also alleges that as a result of Defendants’ conduct, poultry processing,
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`hatchery, and feed mill workers suffered artificially depressed wage rates, and that these injuries
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`were similarly exacerbated by workers’ vulnerable positions in society and lack of readily
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`alternative employment. Id. ¶¶ 195-97, 455-57. Taken together, then, the TAC alleges that
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`processing plant, hatchery, and feed mill workers were: employed by the same entities, which
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`acted upon them in the same ways, and thereby caused the same injuries. As such, Plaintiffs have
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`alleged an adequate personal stake in the adjudication of hatcheries and feed mills workers’ claims.
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`Defendants’ emphasis on the potential dissimilarities among these workers’ jobs, skills,
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`and employment alternatives does not change this conclusion. In their motion, Defendants argue
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`that the TAC fails to allege that poultry processing workers, hatchery and feed mill employees: (1)
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`are employed at the same locations; (2) perform similar job functions; (3) work on the same
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`products; or (4) are subject to the same factors that differentiate processing plant employees from
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`other minimum wage employment. ECF 630 at 6-8. To some extent, Defendants’ assertions are
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`contradicted by the TAC itself. See TAC ¶ 167 (alleging that “processing plants, hatcheries, and
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`feed mills are usually located in very close proximity, on a shared site.”); id. ¶ 195-97, 455-57
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`(alleging that workers at processing plants, feed mills, and hatcheries have industry-specific skills,
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`and limited alternative options for employment). More fundamentally, however, Defendants fail
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`to demonstrate how these differences, to the extent they exist, create divergent interests such that
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`named Plaintiffs lack a sufficient personal stake in the adjudication of the claims. It is true, for
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`instance, that a hatchery employee works with eggs on a day-to-day basis, whereas a processing
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`plant worker deals with poultry carcasses. Whether targeted against poultry workers handling
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`carcasses or eggs, however, Defendants’ alleged anticompetitive conduct implicates a similar set
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`of concerns and interests. See Gratz v. Bollinger, 539 U.S. 244, 265 (2003) (concluding that a
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`“University’s use of race in undergraduate transfer admissions does not implicate a significantly
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`different set of concerns than does its use of race in undergraduate freshman admissions.”). This
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`is particularly true where, as here, Plaintiffs have alleged that Defendants’ anticompetitive conduct
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`inflicted the same injuries across all categories of workers.
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`Notably, albeit somewhat puzzlingly given that their motion is styled under Rule 12(b)(1),
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`Defendants devote significant portions of their briefing to arguing that “Plaintiffs’ proposed
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`national labor market comprising only poultry processing, feed mill, and hatchery workers is
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`facially implausible and Plaintiffs have not sufficiently alleged its existence.” ECF 630 at 8-10;
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`ECF 674 at 7-10. Defendants justify their fixation on the TAC’s alleged market by claiming that
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`the “argument simply identifies the absence of a plausible relevant market . . . as an indicator of
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`8
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`the divergent interests between named Plaintiffs and feed mill and hatchery workers.” ECF 674
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`at 7. Defendants’ position fails on at least three grounds. First and foremost, Defendants’
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`argument is contingent on a finding that TAC’s alleged product or geographic market is
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`implausible; but this Court has not made, nor has it been asked to make, such a determination. If
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`Defendants wished to contest the legal adequacy of the TAC’s alleged markets, they could have
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`appropriately done so through a motion to dismiss for failure to state a claim under Rule 12(b)(6).
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`Having declined to do so, Defendants cannot now undermine the alleged market through the guise
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`of a challenge to standing.4 Second, even were this Court to examine the TAC’s alleged market
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`at this juncture, it would not alter the conclusion that Defendant Processors’ hatchery, feed mill,
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`and processing workers are alleged to have incurred the same injuries due to identical
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`anticompetitive conduct on Defendants’ part. The ultimate merits of the alleged market for
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`purposes of a rule of reason claim does not bear on this determination. Third and finally,
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`Defendants’ prediction that the alleged market will create, “different—and potentially
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`conflicting—interests in answering such questions as the size and scope of a potential geographic
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`labor market, [and] the types of jobs that are reasonably interchangeable . . .” is both speculative
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`and premature. ECF 674 at 7. Indeed, these technical and legalistic concerns are precisely the
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`type of issues that the “class certification” approach reserves for the Rule 23(a) analysis. Singh,
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`510 F. Supp. 3d at 319 (“Most jurisdictions, however, have adopted a ‘class certification’
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`approach, allowing an action to proceed once the named plaintiff demonstrates her individual
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`4 Insofar as Defendants recycle arguments regarding Plaintiffs’ geographic market, see, e.g., ECF
`630 at 9 n.4, this Court rejects them on the same reasoning as described in MTD Op. I at 21-23.
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`9
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`standing to bring a claim, leaving for the Rule 23(a) analysis questions about commonality,
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`typicality, and adequacy of representation.”).5
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`This Court will accordingly deny Defendants’ motion under 12(b)(1). To the extent that
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`Defendants dispute that Plaintiffs are competent to represent the claims of persons employed at
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`Defendant Processors’ hatcheries and feed mills, they may raise such challenges in the context of
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`a class certification motion pursuant to Fed. R. Civ. P. 23.
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`III. PERSONAL JURISDICTION
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`A. Legal Standard
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`Next, this Court considers the portion of Foster’s motion that challenges this Court’s
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`exercise of personal jurisdiction to adjudicate Plaintiffs’ claims against it.
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`Under Rule 12(b)(2), the burden is “on the plaintiff ultimately to prove the existence of a
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`ground for jurisdiction by a preponderance of the evidence.” Combs v. Bakker, 886 F.2d 673, 676
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`(4th Cir. 1989); see Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014);
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`Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citing
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`Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993)). When “a district court decides
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`a pretrial personal jurisdiction motion without conducting an evidentiary hearing, the plaintiff need
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`5 The cases cited by Defendants do not compel a different result. Much of this caselaw stands for
`the wholly uncontested principle that “a class representative must be a part of the class and possess
`the same interest and suffer the same injury as the class members.” ECF 674 at 8 (quoting Gen.
`Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982) and citing Hawkins v. Comparet-Cassani, 251
`F.3d 1230, 1238 (9th Cir. 2001)). Consistent with that basic proposition, this Court finds that
`Plaintiffs have standing because they have alleged the same injury: artificially depressed
`compensation due to Defendants’ anticompetitive conduct. Nor is this an instance where pursuing
`claims on behalf of hatchery or feed mill employees would require “[e]ntirely unique evidence” to
`prove. Id. (quoting Dimuro v. Clinique Labs., LLC, 572 F. App’x 27, 29 (2d Cir. 2014)). To the
`contrary, Plaintiffs have alleged that the same methods were used to implement the scheme against
`hatchery, feed mill, and processing plant employees. As such, there will likely be considerable
`overlap between the evidence required to prove the claims as to each category of worker.
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`only make a prima facie showing of personal jurisdiction.” Carefirst of Md., 334 F.3d at 396
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`(citing Combs, 886 F.2d at 676). To determine whether the plaintiff has met this burden, “the court
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`must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume
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`credibility, and draw the most favorable inferences for the existence of jurisdiction.” Combs, 886
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`F.2d at 676. The court need not “look solely to the plaintiff’s proof in drawing” all reasonable
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`inferences in plaintiff’s favor, and may also look at the defendant’s proffered proof and assertions
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`regarding defendant’s lack of contacts with the forum state. Mylan Labs., 2 F.3d at 62.
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`B. Analysis
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`A federal court has personal jurisdiction over a nonresident defendant if: “(1) an applicable
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`state long-arm statute confers jurisdiction and (2) the assertion of that jurisdiction is consistent
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`with constitutional due process.” Perdue Foods LLC v. BRF S.A., 814 F.3d 185, 188 (4th Cir.
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`2016). Courts must address both prongs of the personal jurisdiction analysis, despite Maryland
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`courts consistently holding that the state’s long-arm statute “authorize[s] the exercise of personal
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`jurisdiction to the full extent allowable under the Due Process Clause.” Bond v. Messerman, 391
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`Md. 706, 721, 895 A.2d 990, 999 (2006). To satisfy the first prong, a plaintiff must identify a
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`provision in the Maryland long-arm statute that authorizes jurisdiction. Ottenheimer Publishers,
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`Inc. v. Playmore, Inc., 158 F. Supp. 2d 649, 652 (D. Md. 2001). Under the second prong, a plaintiff
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`must demonstrate that a defendant has “certain minimum contacts . . . such that the maintenance
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`of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co.
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`v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
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`A court may exercise two types of personal jurisdiction: general or specific. Bristol-Myers
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`Squibb Co. v. Superior Court of California, San Francisco Cty. (“BMS”), 137 S. Ct. 1773, 1780
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`(2017). General jurisdiction is limited to instances where “the continuous corporate operations
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`within a state [are] so substantial and of such a nature as to justify suit against [defendant] on
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`causes of action arising from dealings entirely distinct from those activities.” Int’l Shoe, 326 U.S.
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`at 318. The paradigm bases for a corporation’s general jurisdiction are its place of incorporation
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`and principal place of business. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Specific
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`jurisdiction, likewise, arises where there is “an affiliation between the forum and the underlying
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`controversy.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). The
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`Fourth Circuit has enumerated three factors to assess specific jurisdiction: “(1) the extent to which
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`the defendant purposefully availed itself of the privilege of conducting activities in the State; (2)
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`whether the plaintiffs’ claims arise out of those activities directed at the State; and (3) whether the
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`exercise of personal jurisdiction would be constitutionally reasonable.” Consulting Eng’rs Corp.
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`v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009) (quoting ALS Scan, Inc. v. Digital Serv.
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`Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002)).
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`Foster argues that this Court does not have general or specific jurisdiction over it for
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`purposes of this action. Plaintiffs do not appear to dispute a lack of general jurisdiction. Instead,
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`Plaintiffs offer two bases for the exercise of specific personal jurisdiction over Foster: (1)
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`Maryland’s long-arm statute, which has been interpreted to include the conspiracy theory of
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`personal jurisdiction, and (2) Section 12 of the Clayton Act, 15 U.S.C. § 22. The Court finds
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`Plaintiffs’ first argument to be both persuasive and dispositive.6
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`6 The parties dispute whether Section 12 authorizes nationwide service of process, or whether it
`must be read in conjunction with its venue clause, thereby authorizing service of process only if
`the suit was brought in the proper Clayton Act venue. Compare ECF 654 at 3, with ECF 675 at 5.
`See DataCell ehf. v. Visa, Inc., 2015 WL 4624714, at *4 (E.D. Va. July 30, 2015) (outlining circuit
`split). Because Plaintiffs have established personal jurisdiction on the basis of a conspiracy theory,
`it is unnecessary to reach the parties’ Clayton Act arguments.
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`i. Conspiracy Theory of Personal Jurisdiction
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`Maryland’s long-arm statute confers personal jurisdiction “over a person, who directly or
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`by an agent . . . [c]auses tortious injury in the State by an act or omission in the State.” Md. Code
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`Ann., Cts. & Jud. Proc. § 6-103(b) (emphasis added). The State’s highest court has determined
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`that a co-conspirator falls within the definition of an “agent” for purposes of its long-arm statute.
`
`Mackey v. Compass Mktg., Inc., 391 Md. 117, 142, 892 A.2d 479, 493 (2006) (“a conspirator who
`
`performs an act in furtherance of the conspiracy does so as an agent for his co-conspirators.”).
`
`This “conspiracy theory” of personal jurisdiction recognizes that certain acts of a co-conspirator
`
`done in furtherance of a conspiracy may be attributed to another co-conspirator for purposes of a
`
`jurisdictional analysis. Id. at 484. To establish personal jurisdiction under this theory, a plaintiff
`
`must make a threshold showing that:
`
`(1) two or more individuals conspire to do something;
`
`(2) that they could reasonably expect to lead to consequences in a particular
`forum, if
`
`(3) one co-conspirator commits overt acts in furtherance of the conspiracy, and
`
`(4) those acts are of a type which, if committed by a non-resident, would subject
`the non-resident to personal jurisdiction under the long-arm statute of the
`forum state . . .
`
`Id. at 486 (quoting Cawley v. Bloch, 544 F. Supp. 133, 135 (D. Md. 1982)). If a plaintiff
`
`demonstrates these conditions, then a co-conspirator’s conduct is “attributable to the other co-
`
`conspirators, who thus become subject to personal jurisdiction in the forum, even if they have no
`
`direct contacts with the forum.” Id.
`
`
`
`The first, third, and fourth elements of this standard are easily satisfied. Plaintiffs allege
`
`with specificity that Foster conspired with other Defendants to artificially depress workers’ wages
`
`and unlawfully exchange wage compensation information. See, e.g., TAC ¶ 69. In furtherance of
`
`13
`
`

`

`Case 1:19-cv-02521-SAG Document 695 Filed 07/19/22 Page 14 of 33
`
`the conspiracy, Plaintiffs allege that several Defendant Processors—namely, Perdue Farms,
`
`Perdue Foods, Allen Harim, and Amick Farms—artificially suppressed the wages of persons in
`
`Maryland. Id. ¶ 26 (alleging that Perdue Farms and Perdue Foods used their headquarters in
`
`Salisbury, Maryland to implement and coordinate unlawful trade restraints.). Because these overt
`
`acts allegedly caused tortious injury to persons in the State, they would plainly be sufficient to
`
`extend this Court’s personal jurisdiction over nonresident entities such as Foster if they had been
`
`committed by Foster directly. See Md. Code Ann., Cts. & Jud. Proc. § 6-103(b).
`
`
`
`Finally, the second element is an objective one, which is satisfied by a showing that “a
`
`reasonable person in the defendant’s position would have anticipated a co-conspirator committing
`
`an act in furtherance of the conspiracy within the forum jurisdiction.” Gold v. Gold, 2017 WL
`
`2061480, at *2 (D. Md. May 15, 2017) (citing Mackey, 892 A.2d at 486). “This hypothetical
`
`‘reasonable person’ must form the pertinent expectation at the time the agreement with the co-
`
`conspirator was formed.” Ultimate Outdoor Movies, LLC v. FunFlicks, LLC, 2019 WL 2233535,
`
`at *8 (D. Md. May 23, 2019) (quoting Gold, 2017 WL 2061480, at *3) (emphasis in Gold) (internal
`
`quotation marks omitted). This requirement ensures that an out-of-forum co-conspirator has
`
`purposely availed itself of “the privilege of conducting activities in the forum and therefore has
`
`fair warning that she could be subject to suit there.” Gold, 2017 WL 2061480, at *3. Here,
`
`Plaintiffs allege that Foster attended every Compensation Meeting held between 2001 and 2019;
`
`also present at each of these meetings was one of Foster’s alleged co-conspirators, Perdue Farms,
`
`a Maryland entity. TAC ¶¶ 35, 69. Critically, during most of that period, Foster served together
`
`with Perdue Farms or Perdue Foods on the Compensation Survey’s three-to-five person Steering
`
`Committee. Id. ¶ 230. Put differently, Foster is alleged to have served among the small leadership
`
`group implementing the conspiracy alongside Maryland entities for the better part of two decades.
`
`14
`
`

`

`Case 1:19-cv-02521-SAG Document 695 Filed 07/19/22 Page 15 of 33
`
`At the time it joined the conspiracy, then, a reasonable entity in Foster’s position would have
`
`anticipated that its Maryland co-conspirators would further their unlawful agreement in this State.
`
`
`
`Foster does not dispute that any particular element of the conspiracy theory of personal
`
`jurisdiction is satisfied. Rather, Foster argues that the doctrine offends due process, and did not
`
`survive the Supreme Court’s rulings in Walden v. Fiore, 571 U.S. 277 (2014) and BMS, 137 S. Ct.
`
`1773 at 1781. Foster recognizes that courts in this district have repeatedly relied on Maryland’s
`
`conspiracy theory of personal jurisdiction after the issuance of the Supreme Court’s rulings in
`
`Walden and BMS. See, e.g., Ultimate Outdoor Movies, 2019 WL 2233535, at *5; Coastal Labs.,
`
`Inc. v. Jolly, 502 F. Supp. 3d 1003, 1020-21 (D. Md. 2020); Felichko v. Schechter, 2019 WL
`
`1318109 at *8 (D. Md. Mar. 22, 2019). Nonetheless, Foster argues that this caselaw is inapplicable
`
`because these courts were not presented with the antecedent question of the doctrine’s continuing
`
`vitality. Foster’s position is unpersuasive.
`
`A brief examination of Walden and BMS reveals the flaws in Foster’s argument. Walden
`
`concerned a law enforcement officer from Georgia that allegedly drafted a false and misleading
`
`affidavit regarding two individuals who had previously told the officer that they lived in California
`
`and Nevada. Id. at 280-81. The Supreme Court reversed the Ninth Circuit’s finding that a district
`
`court in Nevada could exercise personal jurisdiction over the officer merely because his affidavit
`
`was submitted with the knowledge that it would affect persons in Nevada. In its decision, the
`
`Court emphasized that for purposes of a jurisdictional “minimum

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