CASE 0:18-cv-01776-JRT-HB Document 513 Filed 06/16/20 Page 1 of 2
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`DONALD G. HEEMAN
`DIRECT DIAL: 612.268.7005
`dheeman@spencerfane.com
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`June 16, 2020
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`VIA ECF
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`Honorable John R. Tunheim
`Chief U.S. District Judge, District of Minnesota
`U.S. Courthouse, Suite 15
`300 South Fourth Street
`Minneapolis, MN 55415
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`Re:
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`In re Pork Antitrust Litig., No. 18-cv-1776 (JRT/HB); Commonwealth of Puerto Rico
`v. Agri Stats, Inc., et al., No. 19-cv-2723 (JRT/HB); Winn-Dixie Stores, Inc. v. Agri
`Stats, Inc., et al., No. 19-cv-1578 (JRT/HB)
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`Dear Chief Judge Tunheim:
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`I represent the JBS USA Food Company in the above-listed cases, and write on behalf of all
`Defendants in response to the letter to Your Honor of June 10, 2020, from Direct Purchaser Class
`Plaintiffs, on behalf of all Plaintiffs (Doc. 512). Plaintiffs submitted with their letter the May 14,
`2020 decision of the Eastern District of Virginia in D&M Farms v. Birdsong Corp., Case No. 2:19-
`cv-463, 2020 WL 2501444 (E.D. Va.), and a copy of a June 5, 2020 Wall Street Journal article
`regarding civil subpoenas to beef processors.
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`D&M Farms is distinguishable from these cases because the D&M Farms plaintiffs’ complaint set
`forth specific factual allegations of parallel conduct by the defendants there. The D&M Farms
`court noted that, “Critically, the Complaint alleges that Defendants released identical shelling
`contract price offers on the same day, year after year . . . .” 2020 WL 2501444, at *3 (emphasis
`added); see also id. (“[T]he Complaint outlines facts that support the plausible inference of a price
`fixing conspiracy by . . . connecting Defendants’ simultaneously issued price offers to the broader
`context of the Runner peanut market”) (emphasis added). Here, Plaintiffs make no such allegations
`to support an assertion of parallel conduct. See generally Mem. in Supp. of Defs’ Joint Mot. to
`Dismiss the Federal Law Claims in Pls.’ Am. Compls. (Doc. 439), at 7-26. If anything, D&M
`Farms shows the extent to which Plaintiffs’ allegations of parallel conduct fall far short of a
`sufficiently pleaded Section 1 claim.
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`Separately, this Court has previously recognized that, at the motion to dismiss stage, it is entitled
`to take notice of documents or information in exhibits to Plaintiffs’ Complaints or that are
`necessarily embraced by them. In re Pork Antitrust Litig., 2019 WL 3752497, at *5 (D. Minn.
`Aug. 8, 2019), citing Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999); see
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`CASE 0:18-cv-01776-JRT-HB Document 513 Filed 06/16/20 Page 2 of 2
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`June 16, 2020
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`also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 n.13 (2007) (“the District Court was entitled
`to take notice of the full contents of the published articles referenced in the complaint, from which
`the truncated quotations were drawn”). The Eighth Circuit has also held that, at the motion to
`dismiss stage, the Court “should consider whether there are lawful, ‘obvious alternative
`explanation[s]’ for the alleged conduct.” McDonough v. Anoka Cty., 799 F.3d 931, 946 (8th Cir.
`2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009)). The D&M Farms decision is of little
`persuasive value on these subjects.
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`As highlighted during the motion to dismiss hearing, the only materials Defendants have asked the
`Court to consider are those permitted to be considered under the foregoing authorities and other
`case law. As Defendants noted during oral argument, “[e]very single document [Defendants] spoke
`about . . . was a document that was quoted from, cited or attached to the complaint . . . , [e]very
`single document referenced had a citation to the complaint, the paragraph where it appears.” Tr. at
`87 (May 13, 2020).
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`Finally, nothing in the June 5, 2020 Wall Street Journal article can salvage Plaintiffs’ claims. The
`article does not even mention most of the Defendants in this litigation. In any event, and even if
`the unattributed hearsay in the article about the scope of government civil subpoenas to certain
`parties were assumed to be true, a government request for information does not transform
`otherwise implausible allegations into plausible ones – as numerous courts have recognized. See,
`e.g., Wash. Cty. Health Care Auth., Inc. v. Baxter, Int’l Inc., 2020 WL 1666454, at *9 (N.D. Ill.
`Apr. 3, 2020) (allegations that the government issued requests “add no meat to the bone: they
`merely reflect that [requests] were issued,” which “shed[s] no light whatsoever on whether the
`defendants engaged in an antirust conspiracy”); In re Florida Cement & Concrete Antitrust Litig.,
`746 F. Supp. 2d 1291, 1316 (S.D. Fla. 2010) (government agency investigation “does not make
`the conspiracy alleged in this case more plausible because the outcome of the investigation cannot
`be predicted”); Superior Offshore Int’l, Inc. v. Bristow Group Inc., 738 F. Supp. 2d 505, 517 (D.
`Del. 2010) (“[T]he initiation of the DOJ’s investigation and Defendants’ receipt of document
`subpoenas . . . do not enhance the plausibility of Plaintiff’s claim and do not warrant subjecting
`Defendants to the burdens of antitrust discovery.”); In re Flash Memory Antitrust Litig., 643 F.
`Supp. 2d 1133, 1149 n.11 (N.D. Cal. 2009) (“[T]he mere fact that an investigation is under way is
`not by itself an appropriate consideration for purposes of determining the adequacy of the
`pleadings.”).
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`Respectfully submitted,
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`/s/ Donald G. Heeman
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`Donald G. Heeman
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