CASE 0:23-cv-00014-JRT-JFD Doc. 9 Filed 01/04/23 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`IN RE PORK ANTITRUST LITIGATION
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`This Document Relates to: ALL ACTIONS
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`No. 18-1776 (JRT/HB)
`No. 21-2998 (JRT/HB)
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`MEMORANDUM OPINION AND ORDER
`CONSOLIDATING ACTIONS
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`The issue of whether to consolidate these actions for pretrial proceedings is before
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`the Court following the Court’s Briefing Order requesting the parties address whether the
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`member cases of ECF Case No. 18-1776 and ECF Case No. 21-2998 should be formally
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`consolidated into a single multidistrict litigation (MDL) or simply coordinated as much as
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`possible without formal consolidation. The Court will consolidate the cases for all future
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`pretrial proceedings into a single MDL because the Court concludes that consolidation
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`will best promote efficiency, prevent confusion and unnecessary complication, and
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`prevent duplicative or conflicting decisions.
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`BACKGROUND
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`Beginning in 2018, a series of class actions and individual actions were filed against
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`the leading American pork producers alleging the producers had engaged in a price fixing
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`conspiracy in violation of federal and state antitrust laws. (See, e.g., Case No. 18-1776,
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`Compl., June 28, 2018, Docket No. 1.) Pursuant to Federal Rule of Civil Procedure 42(a),
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`the Court began consolidating the related cases filed in the District of Minnesota for
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`pretrial proceedings in September 2018 under Case Number 181776. (Case No. 18-1776,
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`Initial Case Mgmt. Order, Sept. 21, 2018, Docket No. 85.) The Case Management Order
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`provided that related “actions later instituted in, removed to, or transferred to this Court”
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`under 28 U.S.C. § 1407 would be consolidated with 18-1776. (Id. ¶¶ 9–10.) This Order
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`also renamed the consolidated litigation “In Re Pork Antitrust Litigation.” (Id. ¶ 6.) As
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`more cases were filed in the District of Minnesota, the Court consolidated these cases.
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`(Case No. 18-1776, Order Stip. Regarding Consolidation, Jan. 21, 2021, Docket No. 644.)
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`In 2021, additional cases brought by individual plaintiffs were filed in other federal
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`district courts involving the same issues. In re Pork Direct & Indirect Purchaser Antitrust
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`Litig., No. 2998, 2021 WL 2369199, at *1 (J.P.M.L. June 9, 2021). Pursuant to 28 U.S.C.
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`§ 1407(a), the Judicial Panel on Multidistrict Litigation (“JPML”) formed MDL Number
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`2998 and transferred two cases to this Court on June 9, 2021, finding that the cases
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`involved common questions of fact and centralization in this Court would “serve the
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`convenience of the parties and witnesses and promote the just and efficient conduct of
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`this litigation.” Id. The JPML has continued transferring additional cases from other
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`districts to this Court. (E.g., Case No. 21-2998, Conditional Transfer Order, July 15, 2021,
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`Docket No. 8.)
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`In its initial Transfer Order, the JPML concluded that transfer to this Court would
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`best accomplish the purposes of MDL centralization under 28 U.S.C. § 1407, because this
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`Court has presided over the consolidated Minnesota litigation since 2018 including
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`dealing with motions to dismiss. In re Pork, 2021 WL 2369199, at *1. Specifically, it found
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`that centralizing the cases would prevent “duplicative pretrial proceedings and
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`potentially inconsistent pretrial rulings.” Id. Accordingly, the JPML transferred the
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`actions to this Court for “coordinated or consolidated pretrial proceedings” and named
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`the MDL it created “In re: Pork Antitrust Litigation.” Id. at *2.
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`The Court held a status conference on July 14, 2021, for all parties in both Case
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`Number 18-1776 and Case Number 21-2998. (Case No. 18-1776, Min. Entry Status Conf.,
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`July 14, 2021, Docket No. 835; Case No. 21-2998, Min. Entry Status Conf., July 14, 2021,
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`Docket No. 9.) The main purpose of this status conference was to determine the most
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`efficient and just manner of handling all the cases and how to best coordinate the MDL
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`and the previously filed cases. (See Case No. 18-1776, Tr. at 4:15–19, July 27, 2021,
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`Docket No. 839; Case No. 21-2998, Tr. at 4:15–19, July 27, 2021, Docket No. 14.) A central
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`question was whether the cases should be formally consolidated or just coordinated to
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`the greatest extent possible. The Court ordered the parties to address this question in
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`written submissions. (Case No. 18-1776, Briefing Order, Aug. 5, 2021, Docket No. 869;
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`Case No. 21-2998, Briefing Order, Aug. 5, 2021, Docket No. 23.)
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`In response, the parties took different positions:
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`• The Direct Purchaser Plaintiffs (“DPPs”) support consolidation. (Case No.
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`18-1776, DPPs’ Br. Regarding Consolidation, Aug. 19, 2021, Docket No. 895;
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`Case No. 21-2998, DPPs’ Br. Regarding Consolidation, Aug. 19, 2021, Docket
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`No. 35.)
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`• The Defendants support consolidation. (Case No. 18-1776, Defs.’ Br.
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`Regarding Consolidation, Aug. 19, 2021, Docket No. 896; Case No. 21-2998,
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`Aug. 19, 2021, Docket No. 31.)
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`• The Consumer Indirect Purchase Plaintiffs (“CIPs”) argued that regardless of
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`whether the Court coordinated or consolidated the cases, the JPML already
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`centralized the cases in an MDL and the Court should allow all parties to
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`benefit from MDL procedures. (Case No. 18-1776, CIPs’ Br. Regarding
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`Briefing Order, Aug. 19, 2021, Docket No. 897; Case No. 21-2998, CIPs’ Br.
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`Regarding Briefing Order, Aug. 19, 2021, Docket No. 33.)
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`• The Commercial and Institutional Indirect Purchaser Plaintiffs (“CIIPPs”)
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`support consolidation.
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` (Case No. 18-1776, CIIPPs’ Br. Regarding
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`Consolidation, Aug. 19, 2019, Docket No. 899; Case No. 21-2998, CIIPPs’ Br.
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`Regarding Consolidation, Aug. 19, 2019, Docket No. 36.)
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`• The MDL Direct Action Plaintiffs (“DAPs”), whose cases were specifically
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`transferred by the JPML, oppose consolidation. (Case No. 21-2998, MDL
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`DAPs’ Resp. Regarding Briefing Order, Aug. 19, 2019, Docket No. 32.)
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`DISCUSSION
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`If civil actions in different districts involve one or more common questions of fact,
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`the JPML may set up an MDL and transfer the actions to one district for coordinated or
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`consolidated pretrial proceeding if the JPML determines that this “will be for the
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`convenience of parties and witnesses and will promote the just and efficient conduct of
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`such actions.” 28 U.S.C. § 1407(a). The purpose of MDL centralization is to “eliminate
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`duplicative discovery, avoid inconsistent pretrial rulings, and conserve the resources of
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`the parties, their counsel and the judiciary.” In re Vioxx Prod. Liab. Litig., 360 F. Supp. 2d
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`1352, 1354 (J.P.M.L. 2005); see also In re Pork, 2021 WL 2369199, at *1. Once transferred,
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`the JPML leaves “the extent and manner of coordination or consolidation of these actions
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`to the discretion of the transferee court.” In re Vioxx, 360 F. Supp. 2d at 1354.
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`Under Federal Rule of Civil Procedure 42, if “actions before the court involve a
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`common question of law or fact, the court may: (1) join for hearing or trial any or all
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`matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders
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`to avoid unnecessary cost or delay.” Fed. R. Civ. P. 42(a). Rule 42 permits consolidation
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`even if the claims arise out of independent transactions. Madison v. Hennepin Cnty., No.
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`02-4756, 2003 WL 21639221, at *1 (D. Minn. July 1, 2003). When deciding whether to
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`consolidate cases, courts consider the risk of inconsistent rulings and the burden on and
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`cost to parties, witnesses, and the court. Chill v. Green Tree Fin. Corp., 181 F.R.D. 398,
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`405 (D. Minn. 1998) (citing Cantrell v. GAF, 999 F.2d 1007, 1011 (6th Cir. 1993)).
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`“Consolidation is inappropriate, however, if it leads to inefficiency, inconvenience, or
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`unfair prejudice to a party.” EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998). Under
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`Rule 42(a), “[d]istrict courts enjoy substantial discretion in deciding whether and to what
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`extent to consolidate cases.” Hall v. Hall, 138 S. Ct. 1118, 1131 (2018).
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`In sum, the purposes of forming MDLs through transfer by the JPML under 28
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`U.S.C. § 1407(a) and the purposes of Rule 42(a) consolidation are substantially identical
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`as is the discretion left to the district court on these matters.
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`The Court concludes that consolidation of all the related pork antitrust cases
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`pending in the District of Minnesota is the best method to fulfill these purposes. It would
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`be unwieldy and unnecessary for both the Court and the parties to attempt to maintain
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`these actions under two separate case numbers. The Court would have to issue different
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`scheduling orders, hear separate motions, and attempt to avoid inconsistent rulings.
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`Parties—and in some cases nonparties—would have to comply with two sets of orders
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`and file on multiple dockets after making changes to each filing. The cases raise identical
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`issues of fact, many identical issues of law, and other similar if not identical issues of law.
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`Consolidation will reduce the problems posed by having the cases on separate
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`dockets while addressing both similar and identical issues on each docket. The parties
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`and the Court will generally need to only file in one centralized place and will not have to
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`deal with making minor changes to satisfy the different case numbers. The parties,
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`affected nonparties, and the Court will generally need only follow developments on one
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`unified docket. This unified docket reduces the risk of a party or the Court making a filing
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`error, eliminating the need for additional proceedings to address these issues and the risk
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`of increased costs or prejudice affecting resolution of the cases on the merits. A
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`consolidated case will decrease the risk that the Court will inadvertently enter conflicting
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`or inconsistent rulings and, if the Court were to do so, centralizes and simplifies resolution
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`of these issues. Finally, as the parties supporting consolidation note, a protective order
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`applicable in one case would not necessarily apply in the other case, potentially increasing
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`the burdens on parties and nonparties and the legal risks to parties.
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`The process of deciding whether to consolidate these cases demonstrates why
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`consolidation will be the most efficient manner of managing these cases. Parties were
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`forced to file their briefs on multiple dockets. The Court had to review each submission
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`on each docket to ensure they were in fact identical. In the future, consolidation will
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`conserve resources for the parties and the Court by eliminating these redundancies
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`especially as the Court and parties deal with more complicated and substantive issues.
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`Consolidation of the cases into a single MDL has yet another advantage. An MDL
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`authorizes the Court to “exercise the powers of a district judge in any district for the
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`purpose of conducting pretrial depositions.” 28 U.S.C. § 1407(b) (emphasis added).
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`Consolidating the cases into the MDL will therefore further increase efficiency and
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`decrease the risk of inconsistent discovery rulings by eliminating the need for multiple
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`courts to get involved in addressing nonparty subpoenas.1
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`Finally, the Court concludes that consolidating all pending cases into one MDL is
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`consistent with the JPML’s orders creating the MDL and transferring cases from other
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`districts to this Court. Centralizing the DAP cases outside this district would have resulted
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`“in duplicative pretrial proceedings and potentially inconsistent pretrial rulings.” In re
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`Pork, 2021 WL 2369199, at *1. Consolidation further eliminates the need for duplicative
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`proceedings and the risk of inconsistency.
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`DAPs oppose consolidation for several reasons. First, the DAPs argue their pretrial
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`proceedings will be substantially different as they are not structured around class
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`certification issues. They argue that these class certification issues may also delay
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`resolution of their own cases as class certification issues are resolved. Second, they argue
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`that DAPs have a materially different procedural posture than the other cases and that
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`additional DAPs are in the process of being filed and transferred. They note that this
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`causes problem with the existing scheduling order because several dates have already or
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`will soon pass. Third, the DAPs argue they will be prejudiced by the existing case which
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`has been driven by issues related to class certification, by the existing orders that the
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` Although the language of 28 U.S.C. § 1407(b) only explicitly grants authority to the MDL judge to oversee
`nonparty depositions outside its district, this grant of authority is generally understood to apply to all pretrial
`proceedings including nonparty, document-only subpoenas. See United States ex rel. Pogue v. Diabetes Treatment
`Ctrs. of Am., Inc., 444 F.3d 462, 469 n.4 (6th Cir. 2006); In re Disposable Contact Lens Antitrust Litig., 306 F. Supp. 3d
`372, 378 (D.D.C. 2017) (collecting cases); In re Bank of N.Y. Mellon Corp. Forex Transactions Litig., No. 11-9175, 2014
`WL 2884726, at *1 (S.D.N.Y. June 26, 2014) (collecting cases).
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`DAPs did not participate in developing, and because DAPs have not yet engaged in early
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`discovery issues.
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`The Court recognizes that there may be some bumps on the consolidation road,
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`but still concludes it will be the smoothest, most efficient route to resolving this case.
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`First, the parties and the Court will need to harmonize the existing orders between the
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`cases. This, however, is a temporary burden that will be offset by the decreased burden
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`in the long term. Second, the differences between the cases may create individualized
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`discovery and motions issues that only apply to some parties. The Court, however, can
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`accommodate these issues as they arise or create separate tracks within the consolidated
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`case as necessary to ensure each member case is resolved on its own legal theories and
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`merits and decrease the risk of delay. See In re: Darvocet, Darvon & Propoxyphene Prod.
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`Liab. Litig., 780 F. Supp. 2d 1379, 1381 (J.P.M.L. 2011); In re: Checking Acct. Overdraft
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`Litig., 626 F. Supp. 2d 1333, 1335 (J.P.M.L. 2009). For example, if such differences become
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`unwieldy or issues such as those surrounding class certification create a risk of undue
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`delay or prejudice to the DAPs, the Court may create an expedited track for them within
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`the consolidated case or separate the cases again. Third, to the extent a party may be
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`prejudiced by an existing order, the Court can address this by issuing new orders. The
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`Court will ensure that no party is prejudiced or otherwise burdened to the extent
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`practicable by this Order by delaying deadlines, staying orders, and denying sanctions
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`against a party that cannot reasonably comply with a deadline or order due to this Order.
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`To ensure that these issues are addressed, the Court will order the parties to file motions
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`and otherwise notify the Court of the existing orders that they seek to modify or be
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`excused from complying with, and the Court will set a new case management conference
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`as soon as practicable after the receipt of these motions and objections.
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`CONCLUSION
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`The Court will consolidate all the related pork antitrust cases pending in the District
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`of Minnesota into a single MDL. The Court recognizes this will create some new case
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`management issues. Just like managing any complex litigation with numerous parties,
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`there is no perfect solution. The Court, however, concludes that consolidation is more
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`likely to fulfill the purposes of Rule 42 and 28 U.S.C. § 1407 by increasing efficiency,
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`decreasing the burdens and costs to parties, nonparties, witnesses, and the Court, and
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`decreasing the risk of inconsistent rulings.
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`The Court is committed to addressing any issues that arise to ensure the most
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`efficient and just outcome for all parties. It will do everything it can to resolve all member
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`cases efficiently and expeditiously including considering multiple timelines to resolve
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`pretrial disputes between the parties and to prevent unfair prejudice to any party.
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`ORDER
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`Based on the foregoing, and all the files, records, and proceedings herein, IT IS
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`HEREBY ORDERED that:
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`1. Civil case number 18-1776 and its member cases (18-1803, 18-1810, 18-1891, 18-
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`1946, 18-2008, 18-2044, 18-2058, 18-2113, 18-2337, 18-2338, 18-2390, 18-2405,
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`19-1578, 19-2723, and 20-2642) are consolidated with civil case number 21-
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`2998—the existing Multidistrict Litigation—and its member cases (21-1373, 21-
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`1374, 21-1454, 21-1605, 21-1697, 21-1715, 21-1872, 21-1873, 21-1874, 21-1875,
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`and 21-2046) for pretrial proceedings into a single multidistrict litigation.
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`2. The Clerk of Court is directed to consolidate the above cases for pretrial
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`proceedings before Chief Judge John R. Tunheim and Magistrate Judge Hildy
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`Bowbeer. The Clerk of Court is directed to transfer all documents in civil case
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`number 21-2998 to civil case number 18-1776. All future filings shall be filed in
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`civil case number 18-1776 and shall be considered filed in each individual case.
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`Future filings should not be separately docketed in the individual cases.
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`3. The Clerk of Court is directed to add all Plaintiffs, Defendants, and their attorneys
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`of record from civil case number 21-2998 to civil case number 18-1776 to the
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`extent they are not duplicative. All pro hac vice admissions in civil case number
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`21-2998 are valid for civil case number 18-1776.
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`4. The caption of civil case number 18-1776 will remain unchanged.
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`5. Civil case number 18-1776 is redesignated as the multidistrict litigation authorized
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`by the Judicial Panel on Multidistrict Litigation.
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`6. All existing orders and deadlines remain in effect on parties to whom they
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`previously applied.
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`7. As of twenty-one days from the date of this Order, all existing orders and deadlines
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`from case numbers 18-1776 and 21-2998 relating to pretrial matters will be
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`applied to all parties unless a party moves to amend an order or objects in writing
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`to the application of an order as it relates to the party before that date.
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`8. The terms of this Order automatically apply to actions later instituted in, removed
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`to, or transferred to this Court (including cases transferred for pretrial purposes
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`under 28 U.S.C. § 1407) that involve allegations of antitrust violations concerning
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`pork producers by Defendant entities in the above-references actions.
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`9. When an action that relates to the same subject matter as these consolidated
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`actions is hereafter filed in or transferred to this Court and assigned to the
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`undersigned, it shall be consolidated for pretrial purposes with the appropriate
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`group of actions.
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`10. Counsel must call to the attention of the Clerk the filing or transfer of any case that
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`might properly be consolidated with these actions and identify the group of actions
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`to which it belongs.
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`11. With respect to such newly filed or transferred actions, the Clerk of Court shall:
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`a. docket a copy of this Order in the separate file for such action,
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`b. make an appropriate entry in the docket for 0:18-cv-1776 that a new case has
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`been assigned, and
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`c. note on the docket of the new action that, upon entry of this Order, all papers
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`shall be filed in civil case number 18-cv-1776 and no further papers shall be
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`filed in that individual case docket.
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`DATED: November 12, 2021
`at Minneapolis, Minnesota.
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` ____
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`_____
`JOHN R. TUNHEIM
`Chief Judge
`United States District Court
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