throbber
Case: 20-1045 Document: 103-1 Page: 1 Date Filed: 03/29/2021
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`Nos. 20-1045, 20-1127
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`
`
`IN THE
`United States Court of Appeals
`FOR THE THIRD CIRCUIT
`____________________________
`IN RE: PROCESSED EGG PRODUCTS ANTITRUST LITIGATION
`
`THE KROGER CO., ET AL., SUPERVALU INC., PUBLIX SUPER MARKETS, INC.,
` GIANT EAGLE, INC., ROUNDY’S SUPERMARKETS, INC., & WINN-DIXIE STORES, INC.
`
`
`
`v.
`
`UNITED EGG PRODUCERS, INC., ET AL.,
`
`Appellants/Cross-Appellees,
`
`Appellees/Cross-Appellants.
`
`________________________
`
`On Appeal from the U.S. District Court
`For the Eastern District of Pennsylvania
`Hon. Gene E.K. Pratter
`Case No: 08-md-2002
`
`
`
`
`
`APPELLANTS/CROSS-APPELLEES’ PETITION FOR REHEARING EN BANC
`
`William J. Blechman, Esquire
`Douglas J. Patton, Esquire
`Michael A. Ponzoli, Esquire
`KENNY NACHWALTER, P.A.
`1441 Brickell Avenue, Suite 1100
`Miami, Florida 33131
`Tel: (305) 373-1000
`Fax: (305) 372-1861
`E-mail: wblechman@knpa.com
`
`dpatton@knpa.com
`
`mponzoli@knpa.com
`Counsel for Appellants/Cross-Appellees The
`Kroger Co., Safeway Inc., Roundy’s
`Supermarkets, Inc., Walgreen Co., Hy-Vee,
`
`Paul E. Slater, Esquire
`David P. Germaine, Esquire
`SPERLING & SLATER P.C.
`55 West Monroe Street
`Suite 3200
`Chicago, Illinois 60603
`Tel: (312) 641-3200
`Fax: (312) 641-6492
`E-mail: pes@sperling-law.com
` dgermaine@sperling-law.com
`Counsel for Appellants/Cross-Appellees
`SuperValu Inc. and Publix Super
`Markets, Inc.
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`

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`Case: 20-1045 Document: 103-1 Page: 2 Date Filed: 03/29/2021
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`Inc., Albertsons LLC, The Great Atlantic &
`Pacific Tea Company, Inc. and H.E. Butt
`Grocery Company
`
`
`
`
`
`
`Moira Cain-Mannix, Esquire
`Brian C. Hill, Esquire
`MARCUS & SHAPIRA LLP
`301 Grant Street
`One Oxford Center, 35th Floor
`Pittsburgh, PA 15219
`Tel: (412) 471-3490
`Fax: (412) 391-2315
`E-mail: cain-mannix@marcus-shapira.com
`hill@marcus-shapira.com
`Counsel for Appellant/Cross-Appellee Giant
`Eagle, Inc.
`
`
`Patrick J. Ahern, Esquire
`AHERN AND ASSOCIATES, P.C.
`8 South Michigan Avenue
`Suite 3600
`Chicago, Illinois 60603
`Tel: (312) 404-3760
`E-mail:
`patrick.ahern@ahernandassociatespc.com
`Counsel for Appellant/Cross-Appellee
`Winn-Dixie Stores, Inc.
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`Case: 20-1045 Document: 103-1 Page: 3 Date Filed: 03/29/2021
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`TABLE OF CONTENTS
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`
`
`I. Preliminary Statement – The Issue Presented for En Banc Review ............ 1
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`II. Factual Background .......................................................................................... 3
`
`III. The Panel Opinion ............................................................................................. 7
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`IV. Argument ............................................................................................................ 9
`
`
`A. The Law Does Not Require a Plaintiff to Prove All the Alleged
` Forms of Conspiratorial Conduct .......................................................... 9
`
`B. Question 1 of the Verdict Form Constitutes Reversible Error as a
` Matter of Law ........................................................................................ 10
`
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`1. The Authority cited by the Panel does not support its Opinion .... 10
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`2. Third Circuit precedent requires reversal ...................................... 11
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`V. Conclusion ........................................................................................................ 14
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`i
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`

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`Case: 20-1045 Document: 103-1 Page: 4 Date Filed: 03/29/2021
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`TABLE OF AUTHORITIES
`
`Armstrong v. Burdette Tomlin Memorial Hosp.,
`438 F.3d 240 (3d Cir. 2006) ..................................................................... 2, 11, 12, 13
`
`Harvey v. Plains Twp. Police Dept.,
`635 F.3d 606 (3d Cir. 2011) ............................................................... 2, 11, 12, 13, 14
`
`U.S. v. American Radiator & Standard Sanitary Corp.,
`433 F.2d 174 (3d Cir. 1970) ................................................................................. 9, 10
`
`U.S. v. Espino, 892 F.3d 1048 (9th Cir. 2018) .................................................... 10, 11
`
`U.S. v. Jones, 664 F.3d 966 (5th Cir. 2011) ........................................................ 10, 11
`
`U.S. v. U.S. Gypsum Co., 600 F.2d 414 (3d Cir. 1979) ........................................... 10
`
`
`
`
`
`
`
`
`ii
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`

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`Case: 20-1045 Document: 103-1 Page: 5 Date Filed: 03/29/2021
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`Statement of Counsel pursuant to Third Circuit Local Appellate Rule 35.1
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`
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`I express a belief, based on a reasoned and studied professional judgment,
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`that the Panel decision is contrary to decisions of the United States Court of
`
`Appeals for the Third Circuit, and that consideration by the full Court is necessary
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`to secure and maintain uniformity of decisions in this Court, i.e., the Panel’s
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`decision is contrary to Armstrong v. Burdette Tomlin Memorial Hospital, 438 F.3d
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`240 (3d Cir. 2006), and Harvey v. Plains Twp. Police Dept., 635 F.3d 606 (3d Cir.
`
`2011).
`
`In addition, I believe that this appeal involves a question of exceptional
`
`importance, i.e., whether a verdict form based on an error of law requires reversal
`
`where a reasonable jury could have decided the case for the Appellant if the error
`
`of law had not been made.
`
`
`
`
`
`
`
`
`
`s/ Paul E. Slater
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`

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`Case: 20-1045 Document: 103-1 Page: 6 Date Filed: 03/29/2021
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`I.
`
`Preliminary Statement – The Issue Presented for En Banc Review
`
`
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`The plaintiff-appellants (“plaintiffs”)1 sued defendant-appellees
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`(“defendants”) for entering into a conspiracy to suppress the output and raise the
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`price of eggs. Plaintiffs alleged defendants did this by agreeing or conspiring to
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`engage in three forms of output suppression. Over plaintiffs’ objection, Question 1
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`of the jury verdict form asked whether plaintiffs had proved that defendants
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`conspired to engage in all three forms of output suppression. If the jury answered
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`“No,” the case was over, even though the jury might have found defendants
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`conspired to engage in one or two of the three forms of output suppression. The
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`jury answered “No” to Question 1. (Panel Opinion (“Op.”) at 6).
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`The Panel assumed that Question 1 of the verdict form was erroneous as a
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`matter of law. (Op. 8). Nonetheless, in a seven-page “not precedential” opinion,
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`the Panel affirmed the judgement on the ground that “an error in a verdict form is
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`harmless if the jury got the correct information elsewhere.” (Op. 7). The Panel
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`reasoned that, even though Jury Instruction No. 16 – like Question 1 of the verdict
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`form – required that plaintiffs prove defendants conspired to engage in all three of
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`the output-suppressing programs (Op. 5), the error was harmless because another
`
`
`The plaintiffs are: Kroger Co.; Safeway, Inc.; Walgreens Co.; Hy-Vee, Inc.;
`1
`Albertsons LLC, The Great Atlantic & Pacific Tea Company; H.E. Butt Grocery
`Co.; Roundy’s Supermarkets, Inc.; Publix Super Markets, Inc.; Supervalu, Inc.;
`Giant Eagle, Inc.; and Winn-Dixie Stores, Inc.
`
`
`
`

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`Case: 20-1045 Document: 103-1 Page: 7 Date Filed: 03/29/2021
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`instruction (Instruction 17) stated that it is “not necessary that all means and
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`methods claimed by the plaintiffs were agreed upon by each individual defendant.”
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`(Op. 8; Appx 48). On that basis, the Panel held that the error in Question 1 of the
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`verdict form did not require reversal. (Op. 8).
`
`As explained more fully below, the Panel Opinion is erroneous for three
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`reasons:
`
`1. The two out-of-Circuit decisions relied on by the Panel for the
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`proposition that “an error in a verdict form is harmless if the jury got the
`
`correct information elsewhere” do not support the stated proposition.
`
`2. The controlling law in this Circuit is set forth in Armstrong v. Burdette
`
`Tomlin Memorial Hosp., 438 F.3d 240, 245-46 (3d Cir. 2006), and
`
`Harvey v. Plains Twp. Police Dept., 635 F.3d 606, 610, 611-12 (3d Cir.
`
`2011). Both cases hold that, as a matter of law, reversible error occurs
`
`when a jury interrogatory: (1) requires the jurors to make a factual
`
`finding not required by the elements of the claim; and (2) a reasonable
`
`jury could have answered the interrogatory in favor of the appellant if the
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`jury had been properly asked to determine only the required elements of
`
`the claim. Here, a reasonable jury could easily have decided Question 1
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`in plaintiffs’ favor if it had been properly asked whether plaintiffs proved
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`that defendants conspired in one or more of the three ways alleged.
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`
`
`2
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`

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`Case: 20-1045 Document: 103-1 Page: 8 Date Filed: 03/29/2021
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`3. Instruction No. 17 could not possibly have cured the error made in
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`Question 1. The jury had to answer the question put before it. It could
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`not hypothesize and then answer a different question – no matter what
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`Instruction No. 17 said. Furthermore, Instruction No. 17 merely states “it
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`is not necessary for all the means or methods claimed by the plaintiffs
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`were agreed upon by each individual Defendant....” (Op. 8 (emphasis
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`added)). Nowhere does it state, or even imply, that a conspiracy could be
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`found if plaintiffs proved defendants had agreed to engage in just one of
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`the three forms of output-suppressing conduct.
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`II.
`
`Factual Background
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`Plaintiffs are chain grocery stores that purchase eggs from producers.
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`Defendant Rose Acre Farms is the second largest egg producer in the United
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`States. The other two defendants are egg producer trade associations – the United
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`States Egg Marketers (“USEM”) and the United Egg Producers (“USP”) (Op. 4-5).
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`Plaintiffs allege that egg producers, including Rose Acre, conspired or
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`agreed through and with the UEP and the USEM to suppress the output so as to
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`raise the price of eggs in violation of Section 1 of the Sherman Act (15 U.S.C. §1).
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`Plaintiffs allege that this horizontal price-fixing conspiracy was carried out through
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`three programs: (1) the UEP short-term supply reduction recommendations; (2) the
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`3
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`

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`Case: 20-1045 Document: 103-1 Page: 9 Date Filed: 03/29/2021
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`UEP Certified Egg Program; and (3) the USEM export program. (Op. 5). These
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`three programs operated as follows:
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`UEP Short-Term Measures: The UEP Marketing Committee
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`recommended that UEP members slaughter hens and reduce the chick hatch in
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`order to reduce the supply of eggs. (Appx 3316). Egg producers told the UEP of
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`their “intention” and “commitment” to follow those recommendations and the
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`identity of the committed producers was published in the UEP newsletter. (Appx
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`3495; Appx 3893; Op. 5).
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`UEP Certified Program: The UEP Certified Egg Program allows egg
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`producers who agree in writing to adhere to the rules of the Certified Program to
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`display the “UEP Certified Eggs” label on their product. (Appx 3875; Appx 3886;
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`Appx 2236). Several of the agreed-upon rules (e.g., cage space rules, 100% rule,
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`and no-backfilling rule) reduced the output of eggs and thus increased egg prices.
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`(Appx 3812 (UEP stated: “the industry successfully held hen numbers down”
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`leading to “a huge improvement in industry revenue”)). The UEP’s economist
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`proposed that the Certified Program require each hen be allotted a minimum
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`amount of cage space so that “millions of extra birds would be eliminated” (Appx
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`3335) and “surplus product problems” solved. (Appx 2376). The Program’s 100%
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`rule requires Program members to adhere to the cage-space rules on all the eggs
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`the member produces, even if those eggs are sold without the Certified label.
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`4
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`

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`Case: 20-1045 Document: 103-1 Page: 10 Date Filed: 03/29/2021
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`(Appx 3773-3775; Appx 1765 at 114). The Program’s no-backfilling rule prevents
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`producers from replacing a hen that has died by putting a new hen in the cage.
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`(Appx 3878). The no-backfilling rule was added to the Program rules because the
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`UEP recognized that backfilling increased output and was “causing … poor
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`pricing.” (Appx 3823). At trial, Rose Acre admitted that the Certified Egg
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`Program was meant “to manage supply of eggs and raise price.” (Appx 1813 at
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`64; see also Appx 1820 at 89; Appx 4148; Appx 3748; Op. 5).
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`USEM Export Program: The USEM is an egg producer trade association
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`managed by the UEP (Appx 3404). Under the USEM Export Program, producers
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`executed written agreements to provide eggs to the USEM for shipment out of the
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`U.S. (Appx 4146; Appx 1833-1835 at 5-7). The UEP told producers that USEM
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`exports “tighten[] the supply and result in a higher market for all egg prices” and
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`that “the primary reason to be a supporter of the export effort is to help improve
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`your egg price….” (Appx 3378-3383). Rose Acre’s CEO admitted that the
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`purpose of the export program was “to remove surplus [eggs] from the U.S.
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`market.” (Appx 1836-1840 at 12-15, 18; Op. 5).
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`At trial, defendants proposed a verdict form that asked the jury whether
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`plaintiffs had proved a “single” conspiracy in which defendants conspired to
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`engage in all three forms of output-suppressing conduct. (Appx 1479-80).
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`Plaintiffs objected on the ground that they only had to prove defendants conspired
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`
`
`5
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`

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`Case: 20-1045 Document: 103-1 Page: 11 Date Filed: 03/29/2021
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`to engage in one or more of the three alleged forms of output-suppressing conduct
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`to satisfy the “contract, combination … or conspiracy” element of Section 1 of the
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`Sherman Act. The trial court disagreed. Question 1 of the verdict form, therefore,
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`asked the jury:
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`Do you unanimously find, by a preponderance of the evidence, that
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`there was a conspiracy to reduce the supply of eggs comprised of (1)
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`recommended short-term supply measures, (2) the United Egg
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`Producers (UEP) Certified Program as challenged, and (3) the United
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`Egg Marketers (USEM) exports?
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`YES ______
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`NO ______
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`The jury checked “No” and the verdict form directed them to proceed no further.
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`(Appx 2, Appx 4622).
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`The District Court’s error in Question 1 was repeated in the instructions.
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`Over plaintiffs’ objection, the jury was instructed (Instruction No. 16) that all three
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`forms of output-suppressing activity had to be analyzed “together” and that the
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`three programs “must all be part of a single conspiracy” (emphasis added) (Op. 5;
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`Appx 44-45).2 Plaintiffs objected and argued, correctly, that, even if they failed to
`
`
`Instruction 16 stated in full:
`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
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`6
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`2
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`

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`Case: 20-1045 Document: 103-1 Page: 12 Date Filed: 03/29/2021
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`prove defendants agreed to all three of the programs, any “two or even one could
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`still be a conspiracy” and “there doesn’t have to be one conspiracy that has all
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`three of these elements.” (Appx 2896-2897 at 273-274). The trial court
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`acknowledged that plaintiffs had made a “well articulated” objection, but declined
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`to change the verdict form or the instructions. (Appx 3179 at 83).3
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`III. The Panel Opinion
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`On appeal, plaintiffs argued that: Question 1 of the verdict form was
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`erroneous as a matter of law; the plaintiffs did not have to prove the defendants had
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`conspired in all three of the alleged ways; and that proof defendants conspired to
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`engage in any “one or more” of the three programs would satisfy the contract,
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`combination or conspiracy element of Section 1 of the Sherman Act. (Op. 7). The
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`Panel did not disagree. In fact, it assumed that Question 1 of the verdict form and
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`Instruction No. 16 were both legally erroneous. (Op. 8: “assuming error in
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`Instruction 16 and Question 1…”).
`
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`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.
`(Op. 5) (emphasis added).
`3
`Defendants took maximum advantage of the court’s error and argued to the
`jury that if plaintiffs “don’t prove that these three alleged restraints were part of a
`single conspiracy they haven’t proven that there was a conspiracy.” ECF 2123 at
`147-48.
`
`
`
`7
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`

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`Case: 20-1045 Document: 103-1 Page: 13 Date Filed: 03/29/2021
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`Nonetheless, the Panel held that Question 1 of the verdict form did not
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`constitute reversible error. (Op. 7). The Panel based that holding on two out-of-
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`Circuit decisions, which the Panel cited for the proposition that “an error in a
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`verdict form is harmless if the jury got the correct information elsewhere.” (Op.
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`7). The Panel held that test was satisfied by Instruction No. 17 – which merely
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`stated that not every defendant had to agree to every method used to carry out the
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`conspiracy. Nowhere did Instruction No. 17 contradict the requirement of the
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`verdict form (and Instruction No. 16) that plaintiffs had to prove defendants
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`conspired in all three of the ways alleged. Nor did it state that a conspiracy could
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`be found if defendants agreed to engage in one or more of the three forms of
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`output-suppressing conduct alleged. Furthermore, even if Instruction No. 17 had
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`contradicted Question 1 of the verdict form, the Panel Opinion never explains how
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`the jury could have answered a different question that the one it was asked. The
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`jury was asked if all three forms of conspiratorial conduct had been proved. The
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`jurors could not answer “Yes” if they believed plaintiffs had only proved
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`defendants conspired to engage in one or two, but not all three, of the alleged
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`forms of output-suppressing conduct.
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`8
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`

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`Case: 20-1045 Document: 103-1 Page: 14 Date Filed: 03/29/2021
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`IV. Argument
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`A. The Law Does Not Require a Plaintiff to Prove All the Alleged Forms
`of Conspiratorial Conduct
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`Question 1 of the verdict form asked the jury to determine whether plaintiffs
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`had proved a conspiracy “comprised of” (1) the short-term measures, (2) the
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`Certified Program “and” (3) the USEM exports. The term “comprise” means
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`“consisting of.” Black’s Law Dictionary (11th ed. 2015). Thus, Question 1 asked
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`whether plaintiffs had proved a conspiracy “consisting of” item 1, item 2 “and”
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`item 3. The use of the conjunctive form and term “comprise” clearly required that
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`the jury find the defendants had conspired in all three ways before it could find any
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`conspiracy.
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`Third Circuit precedent holds that where a conspiracy to fix prices through
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`several forms of conduct is alleged that the plaintiff is under no obligation to prove
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`defendants conspired in all of those ways. In U.S. v. American Radiator &
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`Standard Sanitary Corp., 433 F.2d 174 (3d Cir. 1970), the Government filed a one-
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`count claim asserting defendants conspired to fix the price of plumbing fixtures.
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`Id. at 180. The Government alleged that the price-fixing was carried out in “four
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`‘phases’”: (1) an agreement to fix the price of enameled bathtubs; (2) an
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`agreement to fix the price of cast iron bathtubs; (3) an agreement to increase the
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`price of vitreous china fixtures (id. at 181-85); and (4) an agreement to limit
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`discounts off of list price (id. at 185-88). This Court held that the Government was
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`
`
`9
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`

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`Case: 20-1045 Document: 103-1 Page: 15 Date Filed: 03/29/2021
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`not obligated to prove that defendants conspired to engage in all of the “phases”
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`alleged. Id. at 182 (“we note that the Government was not required to prove … all
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`the means and methods alleged…”). Similarly, in U.S. v. U.S. Gypsum Co., 600
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`F.2d 414 (3d Cir. 1979), the Government alleged defendants conspired to raise the
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`prices of gypsum board through 13 forms of conduct. Id. at 416. The defendants
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`argued they were entitled to judgment unless the Government proved they had
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`conspired to raise prices by all 13 of the alleged methods. Id. at 418-19. This
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`Court disagreed and stated “the failure of the Government to prove that defendants
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`engaged in each of the thirteen specific means is not fatal” because the plaintiff “is
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`under no obligation to prove every overt act alleged.” Id. at 419. In the current
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`case, contrary to Question 1 of the verdict form, plaintiffs were not obligated to
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`prove that defendants conspired to engage in all three of the output-suppressing
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`methods alleged in order to prove that a contract, combination or conspiracy
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`existed. A conspiracy to engage in any one of those forms of conduct is sufficient.
`
`B. Question 1 of the Verdict Form Constitutes Reversible Error as a
`Matter of Law
`
`1. The Authority cited by the Panel does not support its Opinion
`
`The Panel Opinion holds that “an error in a verdict form is harmless if the
`
`jury got the correct information elsewhere.” (Op. 7). In support of that
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`proposition, the Panel cites U.S. v. Espino, 892 F.3d 1048, 1053 (9th Cir. 2018),
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`and U.S. v. Jones, 664 F.3d 966, 982 (5th Cir. 2011). Neither of those cases was
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`
`
`10
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`

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`Case: 20-1045 Document: 103-1 Page: 16 Date Filed: 03/29/2021
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`cited or discussed by the parties and neither supports the proposition for which it is
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`cited by the Panel.
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`In Espino, the appellant, unlike the plaintiffs here, did not object to the
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`verdict form at trial. As a result, the standard of appellate review was “plain error”
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`(892 F.3d at 1051) rather than the more lenient test of abuse of discretion
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`applicable here. (Op. 6). Furthermore, Espino nowhere holds that a verdict form
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`error is harmless if “the jury got the correct information elsewhere.” To the
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`contrary, Espino holds that even under the more stringent plain error test, an error
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`is reversible if it “affected the appellants’ substantial rights” (892 F.3d at 1052) – a
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`test that plaintiffs herein easily meet.
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`In Jones, the verdict form did not misstate the elements of the claim. It
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`contained ambiguous language that the appellate court held would not have misled
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`the jury in light of the clear instructions on that point. 664 F.3d at 981-82.
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`Furthermore, the Jones court held that where a question to the jury misstated the
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`law, even instructions that expressly contradicted that misstatement would not save
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`the judgment from reversal because it “was not an error that can be considered
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`harmless” and constituted “an abuse of discretion,” as a matter of law. Id.
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`2. Third Circuit precedent requires reversal
`
`The controlling Third Circuit precedents are Armstrong v. Burdette Tomlin
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`Mem’l Hosp., 438 F.3d 240 (3d Cir. 2006), and Harvey v. Plains Twp. Police
`
`
`
`11
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`

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`Case: 20-1045 Document: 103-1 Page: 17 Date Filed: 03/29/2021
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`Dep’t, 635 F.3d 606 (3d Cir. 2011). In Armstrong, the verdict form asked the jury
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`whether it had found an “extra element” that was not a legally required element of
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`the claim. The jury found the extra element had not been proved, ending the
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`deliberations. This Court held that it reviews the “formulation of jury
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`interrogatories for abuse of discretion” and that reversible error occurs when a
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`reasonable jury could have answered a legally proper question for the appellant.
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`438 F.3d at 246. More specifically, this Court stated that because the verdict form:
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`erroneously forced [plaintiff] to demonstrate an element that [the] law
`does not require, and because … but for this error a reasonable jury
`could have found in favor of [plaintiff] we reverse and remand for a
`new trial.
`
`
`Id.
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`The rule announced in Harvey is to the same effect. As it had in Armstrong,
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`this Court held that the erroneous verdict form question had improperly “forced the
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`outcome of the case” to be determined by factual findings not required by the law.
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`635 F.3d at 612. Harvey bears significant similarity to the current case. The
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`misstatement of law in the verdict form question was repeated in one of the jury
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`instructions, but a different instruction correctly stated the law. Id. at 610. Unlike
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`the plaintiffs in the current case, the plaintiff in Harvey failed to object to the
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`erroneous verdict form question and thus had to satisfy the more stringent “plain
`
`error” test. Id. at 609. Under these circumstances – and despite the fact that the
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`“jury got the correct information elsewhere” (Op. 7) – this Court held that a verdict
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`12
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`Case: 20-1045 Document: 103-1 Page: 18 Date Filed: 03/29/2021
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`form that misstates the law constitutes “plain error” because “if the Court had
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`provided a proper verdict form, the jury might have reached a different result.” Id.
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`at 612-13. Indeed, this Court held that any other ruling “would result in a
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`miscarriage of justice.” Id. at 613.
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`In the current case, as in both Armstrong and Harvey, the verdict form
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`question required the jury to make a finding that was not a legally required element
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`of the claim. The only remaining issue, under the test announced in both of those
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`cases, is whether a reasonable jury could have answered Question 1 of the verdict
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`form differently if the jury had not been required to find defendants had conspired
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`in all three of the ways alleged.
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`Here, the jury could easily have found that defendants agreed or conspired in
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`at least one of the three ways alleged. Marcus Rust, the President and CEO of
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`Rose Acre, admitted at trial that the UEP members are competitors (Appx 1813)
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`and that Rose Acre and the other participants in the UEP Certified Egg Program
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`signed written agreements with the UEP (which, itself, is composed of egg
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`producers-competitors) in which they all “agreed to follow the rules of the
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`Certified Program,” including the cage-space requirements, the 100% rule and the
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`no-backfilling rule. (Appx 814-17; Appx 3559; ECF 2107 at 70-71; ECF 2079 at
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`24-36). In light of those admissions, it cannot credibly be argued that a reasonable
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`13
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`Case: 20-1045 Document: 103-1 Page: 19 Date Filed: 03/29/2021
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`jury could not have found that egg producers through the UEP entered into an
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`agreement or conspiracy to adhere to the rules of the Certified Program.4
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`V. Conclusion
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`Question 1 of the verdict form required the jury to find that defendants had
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`conspired in three ways in order to satisfy the “contract, combination … or
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`conspiracy” element of a Section 1 Sherman Act claim. This was an error of law,
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`as any one of the three forms of conspiratorial conduct would have sufficed. A
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`reasonable jury “may have reached a different result” (Harvey, 653 F.3d at 612-13)
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`if Question 1 had asked the right question – i.e., whether defendants had conspired
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`in one or more of the three ways alleged. Plaintiffs respectfully submit that the
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`Panel Opinion is contrary to the controlling law in this Circuit and that
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`reconsideration by the full Court is necessary to secure and maintain uniformity of
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`this Court’s decisions.
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`4
`In denying defendants’ motion for summary judgment, the trial court held
`that a reasonable jury could find that Rose Acre conspired with the UEP by
`becoming a member and agreeing to adhere to its rules. (Appx 1117; Appx 1100).
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`14
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`Case: 20-1045 Document: 103-1 Page: 20 Date Filed: 03/29/2021
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`Dated: March 29, 2021
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`Respectfully submitted,
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`By: Paul E. Slater
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`William J. Blechman, Esquire
`Douglas J. Patton, Esquire
`Michael A. Ponzoli, Esquire
`KENNY NACHWALTER, P.A.
`1441 Brickell Avenue, Suite 1100
`Miami, Florida 33131
`Tel: (305) 373-1000
`Fax: (305) 372-1861
`E-mail: wblechman@knpa.com
`
`dpatton@knpa.com
`
`mponzoli@knpa.com
`
`
`
`Moira Cain-Mannix, Esquire
`Brian C. Hill, Esquire
`MARCUS & SHAPIRA LLP
`301 Grant Street
`One Oxford Center, 35th Floor
`Pittsburgh, PA 15219
`Tel: (412) 471-3490
`Fax: (412) 391-2315
`E-mail: cain-mannix@marcus-
`shapira.com
`hill@marcus-shapira.com
`
`
`Paul E. Slater, Esquire
`Joseph M. Vanek, Esquire
`David P. Germaine, Esquire
`John Bjork, Esquire
`Matthew T. Slater, Esquire
`SPERLING & SLATER P.C.
`55 West Monroe Street
`Suite 3200
`Chicago, Illinois 60603
`Tel: (312) 641-3200
`Fax: (312) 641-6492
`E-mail: pes@sperling-law.com
` jvanek@sperling-law.com
` dgermaine@sperling-law.com
` jbjork@sperling-law.com
` mslater@sperling-law.com
`
`
`Patrick J. Ahern, Esquire
`AHERN AND ASSOCIATES, P.C.
`8 South Michigan Avenue
`Suite 3600
`Chicago, Illinois 60603
`Tel: (312) 404-3760
`E-mail:
`patrick.ahern@ahernandassociatespc.com
`
`
`Counsel for Petitioners
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`
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`15
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`

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`Case: 20-1045 Document: 103-1 Page: 21 Date Filed: 03/29/2021
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`Certificate of Compliance with Type-Volume Limitation, Typeface
`Requirements, and Type-Style Requirements
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`This document complies with the word limit of Fed.R.App.P. 32(a)(7)
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`because, excluding the parts of the document exempted by Fed.R.App.P. 32(f), this
`document contains 3,369 words.
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`
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`This document complies with the typeface requirements of Fed.R.App.P.
`32(a)(5) and the type-style requirements of Fed.R.App.P. 32(a)(6) because this
`document has been prepared in in a proportionally spaced typeface using Word
`2016 in 14-point Times New Roman.
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`s/ Paul E. Slater
`Attorney for Petitioners
`March 29, 2021
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`Case: 20-1045 Document: 103-1 Page: 22 Date Filed: 03/29/2021
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`Certificate of Service
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`I, Paul E. Slater, an attorney, certify that on March 29, 2021, I caused the
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`foregoing Appellants/Cross-Appellees’ Petition for Rehearing En Banc to be
`filed and served upon counsel of record using the Court’s electronic filing service.
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`s/ Paul E. Slater
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`2
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`

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