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`Case: 1:21-cv-01324-BYP Doc #: 1 Filed: 07/08/21 1 of 61. PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
`
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`NESTLÉ PURINA PETCARE
`COMPANY and NESTLÉ USA, INC.,
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`Plaintiffs,
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`v.
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`AGRI STATS, INC.; CLEMENS FOOD
`GROUP, LLC; CLEMENS FAMILY
`CORPORATION; HORMEL FOODS
`CORPORATION; JBS USA FOOD
`COMPANY; SEABOARD FOODS LLC;
`SMITHFIELD FOODS, INC.;TRIUMPH
`FOODS, LLC; TYSON FOODS, INC.;
`TYSON PREPARED FOODS, INC.; and
`TYSON FRESH MEATS, INC.,
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`Defendants.
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`Civil Action No.:
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`COMPLAINT
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`Jury Trial Demanded
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`1
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`Case: 1:21-cv-01324-BYP Doc #: 1 Filed: 07/08/21 2 of 61. PageID #: 2
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`I.
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`II.
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`III.
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`TABLE OF CONTENTS
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`Page(s)
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`NATURE OF ACTION ...................................................................................................4
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`JURISDICTION AND VENUE .......................................................................................6
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`PARTIES ........................................................................................................................7
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`A.
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`B.
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`Plaintiffs ..............................................................................................................7
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`Defendants ...........................................................................................................8
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`a.
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`b.
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`c.
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`d.
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`e.
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`f.
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`g.
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`h.
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`i.
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`Agri Stats .................................................................................................8
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`Clemens....................................................................................................8
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`Hormel .....................................................................................................9
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`JBS ......................................................................................................... 10
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`Seaboard ................................................................................................. 10
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`Smithfield ............................................................................................... 11
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`Triumph.................................................................................................. 11
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`Tyson ..................................................................................................... 12
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`Co-Conspirators ...................................................................................... 13
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`IV.
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`FACTUAL ALLEGATIONS ......................................................................................... 13
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`A.
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`B.
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`C.
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`D.
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`E.
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`F.
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`Agri Stats’ Detailed Reports Enable the Producer Defendants to
`Accurately Assess and Monitor their Competitors’ Production Levels ................ 17
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`The Producer Defendants’ Control Over the Production and Supply of
`Pork in the United States .................................................................................... 22
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`Vertically-Integrated Companies and the Control of Hog-Raising through
`Contract Growing ............................................................................................... 22
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`A Highly-Concentrated Industry ........................................................................ 26
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`Barriers to Entry................................................................................................. 27
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`Inelastic Demand and Standardized, Commodity Products Where Competition
` is Principally on Price ....................................................................................... 28
`2
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`Case: 1:21-cv-01324-BYP Doc #: 1 Filed: 07/08/21 3 of 61. PageID #: 3
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`G.
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`Opportunities to Collude at Industry Conferences and Trade Association
`Meetings ............................................................................................................ 29
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`V.
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`THE PRODUCER DEFENDANTS’ CURTAILMENT OF PORK
`PRODUCTION ............................................................................................................. 35
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`a.
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`b.
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`c.
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`d.
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`e.
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`f.
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`g.
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`h.
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`Smithfield ............................................................................................... 37
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`Tyson ..................................................................................................... 38
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`JBS ......................................................................................................... 38
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`Hormel ................................................................................................... 38
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`Seaboard ................................................................................................. 39
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`Triumph.................................................................................................. 39
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`Clemens.................................................................................................. 39
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`Co-Conspirator Indiana Packers .............................................................. 40
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`VI.
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`ABNORMAL PRICING AND THE EFFECT ON PLAINTIFFS IN THE FORM
`OF HIGHER PRICES .................................................................................................... 48
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`VII. OVERCHARGES FROM THE CARTEL REFLECTED IN HIGHER PORK
`PRICES PLAINTIFFS PAID ......................................................................................... 49
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`VIII. DOJ’S CRIMINAL ANTITRUST PROSECUTION IN BROILER CHICKENS
`SUPPORTS AN INFERENCE OF THE EXISTENCE OF A SIMILAR CONSPIRACY
`IN PORK………………………………………………………………………………..50
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`IX.
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`TOLLING OF THE STATUTE OF LIMITATIONS ...................................................... 52
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`A.
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`B.
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`American Pipe Tolling…………………………………………………………...52
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`Fraudulent Concealment…………………………………………………………52
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`X.
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`XI.
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`ANTITRUST INJURY .................................................................................................. 56
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`VIOLATION OF SECTION 1 OF THE SHERMAN ACT ............................................ 57
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`XII. REQUEST FOR RELIEF .............................................................................................. 58
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`XIII.
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`JURY TRIAL DEMANDED ......................................................................................... 59
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`3
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`market.
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`Case: 1:21-cv-01324-BYP Doc #: 1 Filed: 07/08/21 4 of 61. PageID #: 4
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`Plaintiffs Nestlé Purina PetCare Company and Nestlé USA, Inc. (collectively,
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`“Plaintiffs”) by and through their undersigned counsel, file this Complaint against the
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`Defendants identified below, for their illegal conspiracy, which increased the prices of pork sold
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`in the United States beginning at least as early as 2009 and continuing through the present.
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`Plaintiffs bring this action against Defendants for treble damages and for such other damages to
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`the maximum extent allowed under the antitrust laws of the United States, and demand a trial by
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`jury.
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`I.
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`NATURE OF ACTION
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`
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`1.
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`The pork producer defendants are the leading suppliers of pork in an industry with
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`approximately $20 billion in annual commerce in the United States. The United States pork
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`industry is highly concentrated, with a small number of large companies controlling the supply.
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`Defendants and their Co-Conspirators collectively control over 80 percent of the wholesale pork
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`2.
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`Defendants Agri Stats, Clemens, Hormel, JBS USA, Seaboard, Smithfield,
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`Triumph, and Tyson entered, along with Co-Conspirator Indiana Packers Corporation, into a
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`conspiracy from at least 2009 to the present (the “Conspiracy Period”) to fix, raise, maintain,
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`1 The defendants, other than Agri Stats, are referred to here
`and stabilize the price of pork.
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`1 For the purposes of this complaint, “pork” includes, but is not limited to, a variety of meat products from
`pigs (also referred to in the industry as porcine or swine) purchased fresh, frozen, processed, rendered or
`non-rendered, including but not limited to any and all processed pork products, (e.g., smoked ham, sausage,
`bacon, pepperoni, lunch meats), and other processed products and by-products containing pork. “Pork by-
`products” can include, but is not limited to, offal and individual parts or organs from pigs used in pet foods
`(e.g., livers, kidneys, lungs, hearts, cheeks) and/or rendered products (e.g., meat meals and bone meals).
`From time to time in this complaint, “pork” and “swine” are used interchangeably, particularly when
`referring to the pork or swine industry. See, e.g. DPP Class Memorandum of Points and Authorities in
`Support of Motion for Preliminary Approval of Class Settlement between Direct Purchaser Plaintiffs and
`Defendant JBS at 2, n.2, 0:18-cv-01776 (ECF 542), filed 12/01/20.
`4
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`collectively as the “Producer Defendants.”
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`3.
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`One method by which Defendants implemented and executed their conspiracy was
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`by coordinating output and limiting production with the intent and expected result of increasing
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`pork prices in the United States.
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`4.
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`In furtherance of their conspiracy, the Producer Defendants exchanged detailed,
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`competitively sensitive, and closely guarded non-public information, such as prices, capacity,
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`production, sales volume, and demand, including through their co-conspirator, Defendant Agri Stats.
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`5.
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`Beginning in at least 2009, Defendant Agri Stats began providing highly sensitive
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`“benchmarking” reports to the Producer Defendants. Legitimate benchmarking allows competitors to
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`compare
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`their profits or performance against that of other companies. Yet Agri Stats’ reports are
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`unlike those of lawful industry reports; rather, Agri Stats gathers detailed financial and production data
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`from each of the Producer Defendants and their Co-Conspirator Indiana Packers, standardizes this
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`information, and produces customized reports and graphs for the conspirators. The type of
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`information available in these reports is not the type of information that competitors would provide
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`each other in a normal, competitive market.
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`6.
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`On at least a monthly basis, and often far more frequently (e.g., weekly or every other
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`week), Agri Stats provides the Producer Defendants with current and forward-looking sensitive
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`information (such as profits, costs, prices and slaughter information), and regularly provides the keys
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`to deciphering which data belong to which participant. The effect of this information exchange was to
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`allow the pork producers to monitor each other’s production, and therefore control supply and price in
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`furtherance of their anticompetitive scheme.
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`7.
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`The data exchanged through Agri Stats also bears all the hallmarks of the
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`enforcement and implementation mechanism of a price-fixing scheme. First, the data are current and
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`forward-looking— which courts have consistently held has “the greatest potential for generating
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`anticompetitive effects.” Second, information contained in Agri Stats reports is specific to pork
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`producers—including information on profits, prices, costs, and production levels—instead of being
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`aggregated as industry averages to avoid transactional specificity and the easy identification of
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`specific producers. Third, none of the Agri Stats information was publicly available. Agri Stats is a
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`subscription service that required the Co-Conspirators to pay millions of dollars over the
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`Conspiracy Period—far in excess of any other pricing and production indices. Agri Stats ensured
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`that its detailed, sensitive business information was available only to the co-conspirators and not to
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`any buyers in the market. Defendants utilize the information exchanges through Agri Stats in
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`furtherance of their conspiracy to fix, raise, stabilize, and maintain artificially inflated prices for pork
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`sold in the United States.
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`8.
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`Defendants’ purposeful restriction of pork supply had the intended effect of
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`increasing pork prices to Plaintiffs. As a result of Defendants’ unlawful conduct, Plaintiffs paid
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`artificially inflated prices for pork during the Conspiracy Period. Such prices exceeded the amount
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`they would have paid if the price for pork had been determined by a competitive market. Thus,
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`Plaintiffs were injured in their businesses or property by Defendants’ unlawful conduct.
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`II.
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`
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`JURISDICTION AND VENUE
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`9.
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`This action arises under Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section
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`4 of the Clayton Act, 15 U.S.C. § 15(a), and seeks to recover treble damages, costs of suit, and
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`reasonable attorneys’ fees for the injuries sustained by Plaintiffs resulting from Defendants’
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`conspiracy to restrain trade in the pork market. The Court has subject matter jurisdiction under
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`28 U.S.C. §§ 1331, 1337(a), 1407, and 15 U.S.C. § 15.
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`10.
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`Venue is proper in this District under 15 U.S.C. §§ 15(a); 22 and 28 U.S.C. §§
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`1391(b); (c); and (d) because during the relevant period, Defendants resided, transacted business,
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`were found, or had agents in this District, and a substantial portion of Defendants’ alleged
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`wrongful conduct affecting interstate trade and commerce was carried out in this District.
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`11.
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`Defendants are amenable to service of process under Fed. R. Civ. P. 4(k)(1)(A)
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`and the Ohio long-arm statute R.C. § 2307.382, because each Defendant has transacted business
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`in this state and because the Ohio long-arm statute extends jurisdiction to the limits of Due
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`Process, and each Defendant has sufficient minimum contacts with the state of Ohio to satisfy
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`Due Process.
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`12.
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`This Court has personal jurisdiction over each Defendant because each Defendant
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`– throughout the U.S. and including in this District and the state of Ohio – has transacted
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`business, maintained substantial contacts, or committed overt acts in furtherance of its illegal
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`scheme and conspiracy. The alleged scheme and conspiracy have been directed at, and had the
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`intended effect of, causing injury to persons and entities residing in, located in, or doing business
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`throughout the U.S., including in this District and the state of Ohio.
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`III.
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`PARTIES
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`A.
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`13.
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`Plaintiffs
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`Plaintiff Nestlé Purina PetCare Company (“Nestlé Purina”) is a Missouri
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`corporation with its principal place of business in St. Louis, Missouri. Nestlé Purina is one of the
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`world’s largest producers of pet food, and has manufacturing facilities across the U.S. Its brands
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`include “Purina Dog Chow,” “Purina ONE,” “Purina Pro Plan,” “Friskies,” and “Fancy Feast.”
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`From 2009 to the present, Nestlé Purina purchased pork at artificially inflated prices directly from
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`various Defendants and their affiliates and Co-Conspirators, and it suffered injury to its business or
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`property as a direct and proximate result of Defendants’ wrongful conduct.
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`14.
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`Plaintiff Nestlé USA, Inc. (“Nestlé USA”) is a Delaware corporation with its
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`principal place of business in Arlington, Virginia. Nestlé USA has manufacturing facilities across
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`the U.S., including in Ohio, and its’ brands include Stouffer’s, Lean Cuisine, DiGiorno, Buitoni,
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`7
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`and Hot Pockets. From 2009 to the present, Nestlé USA purchased pork at artificially inflated
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`prices directly from various Defendants and their affiliates and Co-Conspirators, and it suffered
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`injury to its business or property as a direct and proximate result of Defendants’ wrongful conduct.
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`15.
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`Nestlé Purina and Nestlé USA bring this action on their own behalf and on behalf of
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`their respective subsidiaries, affiliates, other owned or controlled entities, and predecessors in
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`interest (hereinafter collectively referred to as “Plaintiffs”).
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`B.
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`Defendants
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`a.
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`Agri Stats
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`16.
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`Agri Stats, Inc. is an Indiana corporation located in Fort Wayne, Indiana and was,
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`for a portion of the Conspiracy Period, a subsidiary of Eli Lilly & Co., a publicly-held
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`corporation headquartered in Indianapolis. Agri Stats is now a wholly owned subsidiary of Agri
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`Stats Omega Holding Co. LP, a limited partnership based in Indiana. Agri Stats is a co-
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`conspirator of the Producer Defendants and has knowingly played an important and active role by
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`participating in and a facilitating the Producer Defendants’ collusive scheme detailed in this
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`Complaint. Agri Stats has a unique and deep relationship with the pork industry generally, and
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`specifically with each of the Defendants identified below, all of which are Agri Stats’ primary
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`customers.
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` Defendants Clemens, Hormel, JBS USA, Seaboard, Triumph, Smithfield, and
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`Tyson, and Co-Conspirator Indiana Packers, are all Agri Stats subscribers and report a wide variety
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`of information to Agri Stats, which, according to a 2016 Eli Lilly earnings call, is used by “over
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`90% of the poultry and pig market” in the United States.
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`17.
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`All of Agri Stats’ wrongful actions described in this Complaint are part of, and in
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`furtherance of, the unlawful conduct alleged herein, and were authorized, ordered, or engaged in
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`by Agri Stats’ various officers, agents, employers, or other representatives while actively engaged
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`in the management and operation of Agri Stats’ business affairs within the course and scope of
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`their duties and employment, or with Agri Stats’ actual apparent or ostensible authority. Agri
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`Stats used the instrumentalities of interstate commerce to facilitate the conspiracy, and its conduct
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`was within the flow of, was intended to, and did have a substantial effect on the interstate
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`commerce of the U.S., including in this District.
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`b.
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`Clemens
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`18.
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`Clemens Food Group, LLC is a limited-liability company headquartered in
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`Hatfield, Pennsylvania. During the Conspiracy Period, Clemens Food Group, LLC and/or its
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`predecessors, wholly owned or controlled subsidiaries, or affiliates sold pork in interstate
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`commerce, directly or through its wholly owned or controlled affiliates, to purchasers in the
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`United States, including in this District.
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`19.
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`The Clemens Family Corporation is a Pennsylvania corporation headquartered in
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`Hatfield, Pennsylvania, and the parent company of Clemens Food Group, LLC. During the
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`Conspiracy Period, The Clemens Family Corporation and/or its predecessors, wholly owned or
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`controlled subsidiaries, or affiliates sold pork in interstate commerce, directly or through its
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`wholly owned or controlled affiliates, to purchasers in the United States, including in this
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`District.
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`20.
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`The Clemens Food Group, LLC and the Clemens Family Corporation are referred
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`to here collectively as “Clemens.” Clemens reports a wide variety of pork data to Agri Stats,
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`including, without limitation, highly-detailed, confidential information regarding its production
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`and sales of pork.
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`c.
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`Hormel
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`21.
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`Hormel Foods Corporation is a Delaware corporation headquartered in Austin,
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`Minnesota. During the Conspiracy Period, Hormel Foods Corporation and/or its predecessors,
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`wholly owned or controlled subsidiaries, or affiliates, including but not limited to Hormel Foods,
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`9
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`LLC sold pork in interstate commerce, directly or through its wholly owned or controlled
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`affiliates, to purchasers in the United States, including in this District.
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`22.
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`Hormel Foods, LLC is a Minnesota corporation headquartered in Austin,
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`Minnesota. Hormel Foods, LLC is a wholly owned subsidiary of Defendant Hormel Foods
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`Corporation. During the Conspiracy Period, Hormel Foods Corporation and/or its predecessors,
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`wholly owned or controlled subsidiaries, or affiliates sold pork in interstate commerce, directly
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`or through its wholly owned or controlled affiliates, to purchasers in the United States, including
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`in this District.
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`23.
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`Hormel Foods, LLC and Hormel Foods Corporation are referred to here
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`collectively as “Hormel.” Hormel reports a wide variety of pork data to Agri Stats, including,
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`without limitation, highly-detailed, confidential information regarding its production and sales of
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`pork.
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`24.
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`d.
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`JBS
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`JBS USA Food Company is one of the world’s largest beef and pork processing
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`companies and a wholly owned subsidiary of JBS USA Food Company Holdings, which holds a
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`78.5 percent controlling interest in Pilgrim’s Pride Corporation, one of the largest chicken-
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`producing companies in the world w h i c h recently plead guilty to antitrust violations in the
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`broiler chickens market. JBS USA Food Company is a Delaware corporation, headquartered in
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`Greeley, Colorado, and reports a wide variety of pork data to Agri Stats, including, without
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`limitation, highly-detailed, confidential information regarding its production and sales of pork.
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`During the Conspiracy Period, JBS USA Food Company and/or its predecessors, wholly owned
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`or controlled subsidiaries, or affiliates (hereinafter collectively referred to as “JBS USA”) sold
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`pork in interstate commerce, directly or through its wholly owned or controlled affiliates, to
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`purchasers in the United States, including in this District.
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`10
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`Mission, Kansas, and is a wholly owned subsidiary of Seaboard Corporation. During the
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`Conspiracy Period, Seaboard Foods LLC and/or its predecessors, wholly owned or controlled
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`subsidiaries, or affiliates sold pork in interstate commerce, directly or through its wholly owned
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`or controlled affiliates, to purchasers in the United States, including in this District.
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`27.
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`Seaboard Corporation is a Delaware corporation headquartered in Merriam,
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`Kansas, and is the parent company of Seaboard Foods LLC. During the Conspiracy Period,
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`Seaboard Corporation and/or its predecessors, wholly owned or controlled subsidiaries, or
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`affiliates sold pork in interstate commerce, directly or through its wholly owned or controlled
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`affiliates, to purchasers in the United States, including in this District.
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`28.
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`Seaboard Corporation and Seaboard Foods LLC are referred to here collectively
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`as “Seaboard.” Seaboard reports a wide variety of pork data to Agri Stats, including, without
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`limitation, highly-detailed, confidential information regarding its production and sales of pork.
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`f.
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`Smithfield
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`29.
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`Smithfield Foods, Inc. is incorporated in the Commonwealth of Virginia, and an
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`indirect wholly owned subsidiary of WH Group Limited, a Chinese company. Smithfield Foods
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`is headquartered in Smithfield, Virginia, and reports a wide variety of pork data to Agri Stats,
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`including, without limitation, highly-detailed, confidential information regarding its production
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`and sales of pork. During the Conspiracy Period, Smithfield Foods, Inc. and/or its predecessors,
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`wholly owned or controlled subsidiaries, or affiliates sold pork in interstate commerce, directly
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`11
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`25.
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`Plaintiffs timely opted out and excluded themselves from the DPP class settlement
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`with JBS USA, which was preliminarily approved by the Court in In re: Pork Antitrust Litigation,
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`Case No. 0:18-cv-01776 (D. Minn.).
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`e.
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`Seaboard
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`26.
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`Seaboard Foods LLC is a limited-liability company headquartered in Shawnee
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`or through its wholly owned or controlled affiliates, to purchasers in the United States, including
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`in this District. Smithfield Foods has entered into an agreement to settle with the DPP class in In
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`re: Pork Antitrust Litigation, Case No. 0:18-cv-01776, ECF 815, (D. Minn.).
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`g.
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`Triumph
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`30.
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`Triumph Foods, LLC is a limited-liability company headquartered in St. Joseph,
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`Missouri, and reports a wide variety of pork data to Agri Stats, including, without limitation,
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`highly-detailed, confidential information regarding its production and sales of pork. During the
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`Conspiracy Period, Triumph Foods, LLC and/or its predecessors, wholly owned or controlled
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`subsidiaries, or affiliates (hereinafter collectively referred to as “Triumph”) sold pork in interstate
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`commerce, directly or through its wholly owned or controlled affiliates, to purchasers in the
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`United States, including in this District.
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`h.
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`Tyson
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`31.
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`Tyson Foods, Inc. is a publicly traded Delaware corporation headquartered in
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`Springdale, Arkansas. During the Conspiracy Period, Tyson Foods, Inc. and/or its predecessors,
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`wholly owned or controlled subsidiaries, or affiliates sold pork in interstate commerce, directly
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`or through its wholly owned or controlled affiliates, to purchasers in the United States, including
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`in this District.
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`32.
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`Tyson Prepared Foods, Inc.
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`is a Delaware corporation headquartered
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`in
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`Springdale, Arkansas and is a wholly-owned subsidiary of Tyson Foods, Inc. During the
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`Conspiracy Period, Tyson Prepared Foods, Inc. sold pork in interstate commerce, directly or
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`through its wholly-owned or controlled affiliates, to purchasers in the United States, including in
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`this District.
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`33.
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`Tyson Fresh Meats, Inc. is a Delaware corporation headquartered in Springdale,
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`Arkansas and is a wholly-owned subsidiary of Tyson Foods, Inc. During the Conspiracy Period,
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`12
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`Tyson Fresh Meats, Inc. sold pork in interstate commerce, directly or through its wholly-owned
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`or controlled affiliates, to purchasers in the United States, including in this District.
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`34.
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`Tyson Fresh Meats, Inc., Tyson Prepared Foods, Inc. and Tyson Foods, Inc. are
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`referred to here collectively as “Tyson.” Tyson reports a wide variety of pork data to Agri Stats,
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`including, without limitation, highly-detailed, confidential information regarding its production
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`and sales of pork.
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`i.
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`Co-Conspirators
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`35.
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`Co-Conspirator
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`Indiana Packers Corporation
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`is an
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`Indiana corporation
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`headquartered in Delphi, Indiana, and reports a wide variety of pork data to Agri Stats, including,
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`without limitation, highly-detailed, confidential information regarding its production and sales of
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`pork. During the Conspiracy Period, Indiana Packers Corporation and/or its predecessors, wholly
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`owned or controlled subsidiaries, or affiliates (hereinafter collectively referred to as “Indiana
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`Packers”) sold pork in interstate commerce, directly or through its wholly owned or controlled
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`affiliates, to purchasers in the United States. Indiana Packers Corporation’s parent companies
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`are Itoham Foods, Inc., Mitsubishi Corporation, and Mitsubishi Corporation (Americas).
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`36.
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`Various other persons, firms, and corporations not named as defendants have
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`performed acts and made statements in furtherance of the conspiracy. Defendants are jointly and
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`severally liable for the acts of their Co-Conspirators whether or not named as defendants in this
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`complaint. Throughout this Complaint, Indiana Packers and the other persons, firms, and
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`corporations not named as defendants that performed acts and made statements in furtherance of
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`the conspiracy are collectively referred to as “Co-Conspirators.”
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`IV.
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`FACTUAL ALLEGATIONS
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`37.
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`Starting in at least 2009 and continuing to the present, Defendants and their Co-
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`conspirators conspired to fix, raise, maintain and stabilize pork prices. To effectuate and ensure
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`the stability of their anticompetitive agreement, the Producer Defendants relied on a unique
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`industry data sharing service provided by Defendant Agri Stats, Inc. Agri Stats provided a
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`means for the Producer Defendants to obtain and monitor critical and competitively sensitive
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`business information regarding each other’s production metrics, thereby serving as a central and
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`critical part of Defendants’ price-fixing scheme, resulting
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`anticompetitive cartel.
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`in a stable and successful
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`38.
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`The Chicago Mercantile Exchange (“CME”), the U.S. Department of Agriculture
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`(“USDA”), and various other entities publish publically available aggregated daily, weekly,
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`monthly, and annual supply and pricing information concerning the U.S. pork industry,
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`including: the CME Lean Hog Index, which reflects prices paid for hogs in the U.S.; the CME
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`Pork Cutout Index, which reflects the prices paid for pork (a “cutout’ is the approximate value
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`of a hog calculated using the prices paid for wholesale cuts of pork); and USDA’s National
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`Daily Hog and Pork Summary. The pricing and production information in those reports and
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`indices is completely anonymous and aggregated (or averaged), and indeed the USDA reports
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`clearly state that certain prices are “not reported due to confidentiality.”
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`39.
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`Only Agri Stats receives from the Producer Defendants, and then provides to the
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`Producer Defendants, detailed
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`information
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`to
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`accurately determine producer-specific
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`production, costs, and general efficiency. Agri Stats is a company that generates confidential
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`pork industry data considerably more detailed than any similar types of available reports, and the
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`Agri Stats reports include the following data categories:
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`a)
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`b)
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`c)
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`Performance Summary;
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`Feed Mill;
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`Ingredient Purchasing;
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`d) Weaned-Pig Production;
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`e)
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`f)
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`Nursery;
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`Finishing;
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`g) Wean-to-Finish;
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`h) Market Haul; and
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`i)
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`Financial information, including profits and sales.
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`40.
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`Much of the information shared by Agri Stats and the Producer Defendants was
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`
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`unnecessary to achieve any benefits for pork producers. Exchanging individual company data
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`(particularly current data on prices and costs) is not required to achieve major efficiencies. In a
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`competitive market, the participants would closely protect such proprietary information from
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`disclosure as providing it to competitors would be disadvantageous—unless, of course, there is an
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`agreement that the competitors will use the information to the joint benefit of each other as was
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`the situation in the pork industry.
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`41.
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`Agri Stats describes itself as a “benchmarking” service that “allows organizations
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`to develop plans on how to adopt best practice, usually with the aim of increasing some aspect of
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`performance.” But describing Agri Stats as a “benchmarking” service does not accurately reflect
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`its critical role in the pork industry and the fundamental importance Agri Stats has to the
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`Producer Defendants.
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`42.
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`Beginning in 2008, after two decades focusing primarily on the poultry industry,
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`Agri Stats began selling its so-called “benchmarking” services to pork producers, including the
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`Defendants. Pork producers were told by Agri Stats’ Greg Bilbrey that “benchmarking in the
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`swine industry could range from simple production comparisons to elaborate and sophisticated
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`total production and financial comparisons. Each and every commercial swine operation is
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`encouraged to participate in some benchmarking effort.”
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`43.
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`Agri Stats emphasized to pork producers that sharing information through
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`“benchmarking” could help achieve the “ultimate goal [of]
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`increasing profitability— not
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`always increasing the level of production.” Agri Stats told the industry that each pig producer
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`“should be participating in some type of benchmarking. To gain maximum benefit, production,
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`cost, and financial performance should all be part of the benchmarking program. . . . Producer
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`groups could design and operate their own benchmarking effort,” and, most importantly, “[e]ach
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`participant has to commit” to ensure the accuracy and reliability of the data collected and
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`submitted to Agri Stats.
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`44.
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`Agri Stats collects data from the Producer Defendants, audits and verifies the
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`data, and ultimately reports back to the Producer Defendants detailed statistics on nearly every
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`operating metric within the industry. Agri Stats’ survey methodology involves—from and to the
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`Producer Defendants—direct electronic data submissions of
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`financial, production,