Case: 20-1045 Document: 101 Page: 1 Date Filed: 03/15/2021
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`NOT PRECEDENTIAL
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`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
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`Nos. 20-1045, 20-1127
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`
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`In Re: PROCESSED EGG PRODUCTS ANTITRUST LITIGATION
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`THE KROGER CO.; SAFEWAY, INC.; ROUNDY’S SUPERMARKETS, INC.;
`WALGREEN CO.; HY-VEE, INC.; ALBERTSONS LLC; THE GREAT ATLANTIC &
`PACIFIC TEA COMPANY, INC.; H.E. BUTT GROCERY COMPANY; SUPERVALU
`INC.; PUBLIX SUPERMARKETS, INC.; GREAT EAGLE, INC.; WINN-DIXIE
`STORES, INC.,
`Appellants in 20-1045
`
`v.
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`ROSE ACRE FARMS; UNITED EGG PRODUCERS, INC.; UNITED STATES EGG
`MARKETERS, INC.
`
`Rose Acre Farms,
`Appellant in 20-1127
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`
`
`On Appeal from the United States District Court
`for the Eastern District of Pennsylvania
`(D.C. Civil No. 2-08-md-02002)
`District Judge: Hon. Gene E.K. Pratter
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`
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`
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`Argued January 26, 2021
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`Before: JORDAN, MATEY, Circuit Judges, and HORAN,* District Judge.
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`(Opinion filed: March 15, 2021)
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`
`
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`* Honorable Marilyn J. Horan, District Judge, United States District Court for the
`Western District of Pennsylvania, sitting by designation.
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`
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`NOT PRECEDENTIAL
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`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`
`
`
`
`
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`Nos. 20-1045, 20-1127
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`
`
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`
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`In Re: PROCESSED EGG PRODUCTS ANTITRUST LITIGATION
`
`THE KROGER CO.; SAFEWAY, INC.; ROUNDY’S SUPERMARKETS, INC.;
`WALGREEN CO.; HY-VEE, INC.; ALBERTSONS LLC; THE GREAT ATLANTIC &
`PACIFIC TEA COMPANY, INC.; H.E. BUTT GROCERY COMPANY; SUPERVALU
`INC.; PUBLIX SUPERMARKETS, INC.; GREAT EAGLE, INC.; WINN-DIXIE
`STORES, INC.,
`Appellants in 20-1045
`
`v.
`
`ROSE ACRE FARMS; UNITED EGG PRODUCERS, INC.; UNITED STATES EGG
`MARKETERS, INC.
`
`Rose Acre Farms,
`Appellant in 20-1127
`
`
`
`
`
`
`
`
`On Appeal from the United States District Court
`for the Eastern District of Pennsylvania
`(D.C. Civil No. 2-08-md-02002)
`District Judge: Hon. Gene E.K. Pratter
`
`
`
`
`
`
`Argued January 26, 2021
`
`Before: JORDAN, MATEY, Circuit Judges, and HORAN,* District Judge.
`
`(Opinion filed: March 15, 2021)
`
`
`
`
`* Honorable Marilyn J. Horan, District Judge, United States District Court for the
`Western District of Pennsylvania, sitting by designation.
`
`
`
`Case: 20-1045 Document: 101 Page: 2 Date Filed: 03/15/2021
`
`William J. Blechman
`Michael A. Ponzoli
`Kenny Nachwalter
`1441 Brickell Avenue
`Four Seasons Tower, Suite 1100
`Miami, FL 33131
`
`Paul E. Slater
`Sperling & Slater
`55 West Monroe Street, Suite 3200
`Chicago, IL 60603
`Counsel for Appellants/Cross-Appellees Kroger Co., Safeway Inc., Roundy’s
`Supermarkets, Inc., Walgreen Co., Hy Vee Inc., Albertsons LLC, Great
`Atlantic & Pacific Tea Co. Inc., and H.E. Butt Grocery Co.
`
`[ARGUED]
`
`[ARGUED]
`
`[ARGUED]
`
`
`David P. Germaine
`Paul E. Slater
`Sperling & Slater
`55 West Monroe Street, Suite 3200
`Chicago, IL 60603
`Counsel for Appellants/Cross-Appellees Supervalu Inc. and Publix Super
`Markets Inc.
`
`Moira E. Cain-Mannix
`Brian C. Hill
`Marcus & Shapira
`301 Grant Street
`One Oxford Centre, 35th Floor
`Pittsburgh, PA 15219
`
`Paul E. Slater
`Sperling & Slater
`55 West Monroe Street, Suite 3200
`Chicago, IL 60603
`Counsel for Appellant/Cross-Appellee Giant Eagle Inc.
`
`
`
`Patrick J. Ahern
`Ahern & Associates
`590 North Sheridan Road
`Lake Forest, IL 60045
`
`Paul E. Slater
`Sperling & Slater
`
`[ARGUED]
`
`
`
`2
`
`
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`Case: 20-1045 Document: 101 Page: 3 Date Filed: 03/15/2021
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`55 West Monroe Street, Suite 3200
`Chicago, IL 60603
`Counsel for Appellant/Cross-Appellee Winn Dixie Stores
`
`
`
`Donald M. Barnes
`[ARGUED]
`Jay L. Levine
`Porter Wright Morris & Arthur
`2020 K. Street, N.W.
`Suite 600
`Washington, DC 20006
`
`James A. King
`Porter Wright Morris & Arthur
`41 South High Street
`Suite 2900
`Columbus, OH 43215
`
`Leah A. Mintz
`Robert Palumbos
`Duane Morris
`30 South 17th Street
`Philadelphia PA 19103
`Counsel for Appellees/Cross-Appellant Rose Acre Farms Inc.
`
`
`
`Jan P. Levine
`Robin P. Sumner
`Troutman Pepper
`3000 Two Logan Square
`18th and Arch Streets
`Philadelphia, PA 19103
`
`Whitney R. Redding
`Pepper Hamilton
`501 Grant Street
`Union Trust Building, Suite 300
`Pittsburgh, PA 15219
`Counsel for Appellees/Cross-Appellants United Egg Producers and United
`States Egg Marketers, Inc.
`
`
`Michael A. Lindsay
`Dorsey & Whitney
`50 South Sixth Street
`Suite 1500
`
`
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`3
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`Case: 20-1045 Document: 101 Page: 4 Date Filed: 03/15/2021
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`Minneapolis, MN 55402
`Counsel for Amicus Curiae in Support of Appellees National Council of
`Farmer Cooperatives
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`OPINION**
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`
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`MATEY, Circuit Judge.
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`
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`We return for another chapter in the long-running dispute over allegations of
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`price-fixing in the egg industry. In this installment, the Appellants argue the District Court
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`improperly instructed the jury on the elements of an antitrust conspiracy. But the
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`instruction reflected both the case they tried and the law. And any murkiness around the
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`challenged instruction is more than clarified by the whole of the Court’s charge. So we will
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`affirm.
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`I. BACKGROUND
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` Over a decade ago, several large national grocery stores1 (together, “Appellants” or
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`“Direct Action Plaintiffs”), sued United Egg Producers (“UEP”), United States Egg
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`Marketers (“USEM”), and Rose Acre Farms,2 alleging a horizontal conspiracy to reduce
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`supply—and consequently inflate prices—of domestic eggs in violation of Section 1 of the
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`Sherman Act, 15 U.S.C. § 1. UEP and USEM are leading egg-producer trade groups, while
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`** This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
`not constitute binding precedent.
`1 Kroger Co., Safeway Inc., Walgreen Co., Hy-Vee, Inc., Albertsons LLC, the Great
`Atlantic & Pacific Tea Company, H.E. Butt Grocery Company, Roundy’s Supermarkets,
`Inc., Publix Super Markets, Inc., Supervalu Inc., Giant Eagle, Inc., and Winn-Dixie Stores,
`Inc.
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`2 Along with several other defendants, the remainder of whom settled prior to trial.
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`4
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`Case: 20-1045 Document: 101 Page: 5 Date Filed: 03/15/2021
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`Rose Acre Farms is the nation’s second largest egg producer.3 The Direct Action Plaintiffs
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`allege that, beginning in 1999, UEP, USEM, and Rose Acre hatched a plot to reduce egg
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`supply in three parts: (1) short-term supply measure recommendations, including early-
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`induced molting, early slaughter of hens, and reduced chick hatch rates; (2) the UEP
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`Certified Program, requiring producers to follow a list of guidelines like cage-space
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`restrictions; and (3) a coordinated export program to maintain a deflated domestic supply.
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`Like many Section 1 cases, the Appellants never found the smoking gun directly
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`proving a conspiracy. Instead, they presented evidence suggesting motive (higher prices)
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`and means (the three industry programs). Naturally, Appellees countered with evidence of
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`a mix of innocuous and laudable reasons for each.
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`Trial ran nearly a month and, relevant to this appeal, the District Court instructed
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`the jury:
`
`
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`Under the Sherman Act, a restraint of trade is illegal only if it
`is found to be unreasonable. Therefore, you must determine,
`first, whether there was a contract, agreement, combination, or
`conspiracy that restrained trade; and if so, second, whether the
`restraints challenged here—that is, A, the UEP recommended
`short-term measures; B, the UEP Certified Program as
`challenged; and C, the USEM export program—are together
`unreasonable. These three alleged restraints must all be part of
`a single conspiracy, as opposed to, for example, three different
`conspiracies that were independent of each other.
`
`
`3 A class of “direct purchasers” brought a similar suit. See In re Processed Egg
`Prods. Antitrust Litig., 962 F.3d 719, 721–22 (3d Cir. 2020) (“Processed Egg Products I”).
`The direct purchaser class action went to trial first; the jury returned a verdict for the
`Defendant-Appellees, and we later affirmed.
`
`
`
`5
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`
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`Case: 20-1045 Document: 101 Page: 6 Date Filed: 03/15/2021
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`(App. at 44–45.) (“Jury Instruction No. 16”). Similarly, the first question on the verdict
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`form asked:
`
`Do you unanimously find, by a preponderance of the evidence, that there was
`a conspiracy to reduce the supply of eggs comprised of (1) recommended
`short-term supply measures, (2) the United Egg Producers (UEP) Certified
`Program as challenged, and (3) United States Egg Marketers (USEM)
`exports?
`
`
`(App. at 2.) (“Question 1”). Appellants objected to the wording of the instructions and the
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`verdict form.
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`After a very brief deliberation, the jury answered “no” to Question 1, leaving no
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`need to answer the rest. The District Court entered judgment for the Defendant-Appellees.
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`The Direct Action Plaintiff-Appellants timely appealed.4
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`II. DISCUSSION
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`The Appellants make two arguments on appeal. First, the jury instructions and
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`verdict form did not match the law; second, the conduct was a per se violation of Section
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`1, so the District Court erred in instructing the jury on the rule of reason. But the jury
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`instructions, as a whole, accurately stated the law, and the rule of reason was the proper
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`mode of antitrust analysis.5
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`A.
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`The Jury Instructions
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`We review jury instructions and verdict forms for an abuse of discretion, but our
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`“review is plenary when the issue is whether the instructions misstated the law.” Armstrong
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`4 The District Court had jurisdiction under 28 U.S.C. § 1331, and we have
`jurisdiction under 28 U.S.C. § 1291.
`5 Because we affirm the judgment for the Appellees, we decline to consider the
`issues raised in their conditional cross-appeal.
`
`
`
`6
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`
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`Case: 20-1045 Document: 101 Page: 7 Date Filed: 03/15/2021
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`v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 245 (3d Cir. 2006); see Waldorf v. Shuta,
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`896 F.2d 723, 740 (3d Cir. 1990). Throughout, our focus is “whether the charge, ‘taken as
`
`a whole, properly apprise[d] the jury of the issues and the applicable law.’” Armstrong,
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`438 F.3d at 245 (quoting Smith v. Borough of Wilkinsburg, 147 F.3d 272, 275 (3d Cir.
`
`1998)).
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`Appellants argue that the use of the conjunctive “and” in Instruction No. 16 and
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`Question 1 “did not allow the jury to find an unlawful conspiracy unless [Appellants]
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`proved that all three mechanisms were agreed to and employed.” (Opening Br. at 13.) Not
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`so, respond Appellees, who note the use of “and” captured the case the Appellants sought
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`to prove. They reason that because the Direct Action Plaintiffs repeatedly defined the
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`alleged conspiracy by the three methods, the instruction and question naturally mirrored
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`their claims.
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`We evaluate jury instructions “as a whole,” Smith, 147 F.3d at 275, and cannot draw
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`conclusions based on one word in isolation. Looking at the instructions in total means that
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`even a single error will not invalidate the jury’s verdict “if it is highly probable that the
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`error did not affect the outcome of the case.” GN Netcom, Inc. v. Plantronics, Inc., 930
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`F.3d 76, 88 (3d Cir. 2019); see also Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 612
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`(3d Cir. 2011) (“When a jury instruction is erroneous, a new trial is warranted unless such
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`error is harmless.”). Similarly, an error in a verdict form is harmless if the jury got the
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`correct information elsewhere. See United States v. Espino, 892 F.3d 1048, 1053 (9th Cir.
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`2018); United States v. Jones, 664 F.3d 966, 982 (5th Cir. 2011).
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`7
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`Case: 20-1045 Document: 101 Page: 8 Date Filed: 03/15/2021
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`That is the case here. Even assuming error in Instruction No. 16 or Question 1, the
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`instructions as a whole accurately stated the law. While Instruction No. 16 and Question 1
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`both used the conjunctive “and,” the District Court repeatedly used disjunctive language
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`when instructing the jury on the means or methods used to carry out the conspiracy. The
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`District Court noted the Act “prohibits contracts, combinations, and conspiracies that
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`unreasonably restrain trade” and that a “conspiracy is an agreement or understanding
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`between two or more persons to do something illegal” without mention of any overt acts.
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`(App. at 43, 46.) The instructions repeatedly emphasized that the agreement was the
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`important component, not the acts used to carry out that agreement.
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`Most significantly, the District Court specifically told the jury:
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`It’s also not necessary that all of the means or methods claimed
`by the Plaintiffs were agreed upon by each individual
`Defendant to carry out the alleged conspiracy, nor that all the
`means or methods that were agreed upon were actually used or
`put into operation. . . . It is the agreement or the understanding
`to restrain trade by limiting egg supply that can constitute a
`conspiracy. Therefore, you may find a conspiracy existed
`regardless of whether it succeeded or failed.
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`(App. at 48.) No ambiguity here, and the Appellants did not need to prove the Appellees
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`used all three mechanisms to prove an illegal conspiracy.
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`
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`Taken together, the full jury instructions allow one construction that does not inject
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`an overt-act requirement into Section 1. It is, in short, simply the case the Direct Action
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`Plaintiffs chose to make.
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`8
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`Case: 20-1045 Document: 101 Page: 9 Date Filed: 03/15/2021
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`District Courts deserve, and receive, great latitude in the difficult task of crafting
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`jury instructions. Here, the Court here acted well within that discretion and, equally, in
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`accordance with law. For that reason, we will affirm the jury’s verdict.
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`B.
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`The Rule of Reason
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`Appellants argue the District Court erred by declining to instruct the jury that the
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`conduct here constituted a per se violation of the Section 1. Our review of the “selection
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`of a mode of antitrust analysis” is plenary. Processed Egg Products I, 962 F.3d at 726 n.7.
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`
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`Setting aside the fact that the jury said there was no conspiracy at all, our opinion in
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`Processed Egg Products I already answered the objection raised by the Appellants here.
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`There, we explained the rule of reason applied because the UEP Certified Program had
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`pro-competitive benefits and “was not an express agreement to reduce the supply of eggs,
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`much less to fix prices.” Id. at 728.
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`
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`The same is true here. Appellants argue for a different outcome because their request
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`more closely followed the Supreme Court’s language in United States v. Socony-Vacuum
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`Oil Co., 310 U.S. 150 (1940). But “the test for determining what constitutes per se unlawful
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`price-fixing is one of substance, not semantics.” United States v. Brown Univ., 5 F.3d 658,
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`670 (3d Cir. 1993). And the per se rule is “appropriate only after courts have had
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`considerable experience with the type of restraint at issue, and only if courts can predict
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`with confidence that it would be invalidated in all or almost all instances under the rule of
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`reason.” Leegin Creative Leather Prods. v. PSKS, Inc., 551 U.S. 877, 886–87 (2007)
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`(citations omitted).
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`9
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`Case: 20-1045 Document: 101 Page: 10 Date Filed: 03/15/2021
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`We have already evaluated the substance of the UEP Certified Program and
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`concluded that it does not fall into the narrow subset of “manifestly anticompetitive”
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`restraints. Id. at 886 (quoting Continental T.V. v. GTE Sylvania, Inc., 433 U.S. 36, 50
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`(1977)). Because there is no distinction between the restraints at issue in Processed Egg
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`Products I and those here, the District Court did not err by using the rule of reason.
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`For these reasons, we will affirm the judgment entered in favor of Appellees.
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`III. CONCLUSION
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`10
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