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`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`Case No.
`COMPLAINT FOR DECLARATORY
`AND INJUCTIVE RELIEF
`
`JURY TRIAL DEMANDED
`
`TYSON FOODS, INC.,
`Plaintiff,
`
`vs.
`COSTCO WHOLESALE CORPORATION,
`Defendant.
`
`
`
`Plaintiff Tyson Foods, Inc. (“Tyson”), by and through its undersigned counsel, hereby
`respectfully submits this Complaint seeking declaratory and injunctive relief against Defendant
`Costco Wholesale Corporation (“Costco”) and alleges the following:
`NATURE OF THE CASE
`On December 10, 2021, Costco submitted a Demand for Arbitration and a
`1.
`Statement of Claim (together, “Demand”) to the American Arbitration Association (“AAA”)
`asserting a single cause of action against Tyson under the Sherman Act and seeking claimed
`damages under the Clayton Act (the “Claim”).
`2.
`Costco premised its asserted right to arbitrate the Claim on two documents, a two-
`page, fully-executed “Vendor Agreement” dated August 24, 1995 among Tyson, Costco, and
`“The Price Company,” (the “1995 Vendor Agreement”) and an unsigned document titled
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 1
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

`

`
`
`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 2 of 14
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`“Costco Wholesale Standard Terms (2019) (U.S. and its Territories)” that makes no mention of
`Tyson (the “2019 Standard Terms”). The 1995 Vendor Agreement incorporates by reference
`certain documents, and defines those documents, together with the 1995 Vendor Agreement
`itself, to constitute the “Agreement Documents” that collectively form the parties’ contract.
`3.
`After Tyson challenged the sufficiency of Costco’s submission before the AAA
`on grounds that, inter alia, Costco had failed to establish the existence of an enforceable
`arbitration agreement, Costco disclosed a document titled “PriceCostco STANDARD TERMS”
`dated “May 1994” (the “1994 Standard Terms”) that it contends was part of the original
`Agreement Documents between Tyson and Costco. Costco also disclosed additional versions of
`its purported standard terms from 2000 to 2017, none of which referenced, or was signed by,
`Tyson.
`
`The 1995 Vendor Agreement expressly states that the Agreement Documents can
`4.
`be amended only in a writing signed by an authorized official from both Tyson and Costco.
`5.
`In its Demand, Costco failed to establish that the 1995 Vendor Agreement and the
`2019 Standard Terms form an enforceable agreement between Costco and Tyson to arbitrate the
`Claim under the 2019 Standard Terms. Costco has provided no evidence that the parties ever
`amended the Agreement Documents through a writing signed by authorized officials from Tyson
`and Costco, as is expressly required under the terms of the 1995 Vendor Agreement.
`6.
`Through this action, Tyson seeks a declaration that it has not agreed to arbitrate
`Costco’s Claim under the 2019 Standard Terms, and it is therefore not obligated to do so. Tyson
`seeks permanent injunctive relief barring Costco from arbitrating under the 2019 Standard Terms
`and also seeks a preliminary injunction staying Costco’s arbitration (“the Arbitration”) pending a
`ruling on Tyson’s request for declaratory and permanent injunctive relief.
`7.
`The Court's determination that Tyson and Costco have not agreed to arbitrate
`under the 2019 Standard Terms will have significant consequences for the parties given the
`differences among the various versions of Costco’s standard terms.
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 2
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

`

`
`
`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 3 of 14
`
`Most notably, the 1994 Standard Terms, which Costco has not invoked in its
`8.
`Demand, operate as an absolute bar to Costco’s Claim. The 1994 Standard Terms require the
`parties to raise arbitrable claims promptly or else forfeit them entirely—if a party fails to bring
`an arbitrable claim within 180 days after the claim is known and fully accrued, the 1994
`Standard Terms impose an absolute bar to the claim.
`THE PARTIES
`Plaintiff Tyson is a corporation organized and existing under the laws of the State
`9.
`of Delaware with its principal place of business located at 2200 West Don Tyson Parkway in
`Springdale, Arkansas.
`10.
`At all relevant times, Tyson has engaged in the business of supplying broiler
`chicken products in the United States.
`11.
`Upon information and belief, Defendant Costco is a corporation organized and
`existing under the laws of the State of Washington with its principal place of business located in
`Issaquah, Washington.
`12.
`Upon information and belief, at all relevant times, Costco has been engaged in the
`business of purchasing broiler chicken products and reselling them to consumers in the United
`States.
`
`JURISDICTION AND VENUE
`This is an action for a declaratory judgment and injunctive relief pursuant to the
`13.
`Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. This Court has subject matter jurisdiction
`over this matter under 28 U.S.C. § 1331 because Costco asserts that the underlying Claim arises
`under the laws of the United States, including the Sherman Act and the Clayton Act.
`14.
`Additionally, this Court has subject matter jurisdiction over this matter under 28
`U.S.C. § 1332 because the parties are citizens of different states and the amount in controversy
`exceeds $75,000, exclusive of interest and costs.
`
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 3
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

`

`
`
`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 4 of 14
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`This Court has personal jurisdiction over Costco in this case because Costco has
`15.
`its principal place of business in this District.
`16.
`This Court also has personal jurisdiction over Costco in this case because Costco
`has purposefully availed itself of the privilege of conducting business in this District, including
`by ordering broiler chicken products from Tyson from its offices in this District, selling Tyson’s
`broiler chicken products to consumers in this District, and communicating with Tyson about its
`broiler chicken products from this District; and because both Costco’s Claim and the claim for
`declaratory relief in this case arise from these activities.
`17.
`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because a
`substantial part of the events giving rise to Costco’s Claim and to this case occurred in this
`District.
`
`BACKGROUND
`The Broiler Chicken Litigation
`On September 2, 2016, a putative class of direct purchasers of broiler chicken
`18.
`products filed a complaint against Tyson, three of its affiliates, more than a dozen other
`corporate families of broiler chicken producers, and a benchmarking service called Agri Stats,
`Inc., in the United States District Court for the Northern District of Illinois.
`19.
`This case, which remains pending today, is known as In re Broiler Chicken
`Antitrust Litigation, No. 1:16-cv-08637 (N.D. Ill.), or the Broilers case, and it is assigned to the
`Hon. Thomas M. Durkin.
`20.
`Costco was an absent member of the putative direct purchaser class when the
`Broilers case began. On November 20, 2017, the End User Consumer Plaintiffs served Costco
`with a third-party subpoena requesting the preservation of documents. This was followed by a
`request to produce documents on January 30, 2018.
`21.
`In January 2020, Tyson reached a settlement with the putative direct purchaser
`class in the Broilers case.
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 4
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

`

`
`
`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 5 of 14
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`Judge Durkin granted preliminary and final approval to Tyson’s settlement with
`22.
`the direct purchaser class, and approved a distribution plan for the settlement proceeds.
`23.
`Costco opted out of Tyson’s direct purchaser class settlement on May 14, 2021.
`24.
`Costco then filed its own direct action complaint on August 27, 2021, Costco
`Wholesale Corp. v. Koch Foods, Inc., No. 1:21-cv-04611 (N.D. Ill.), which was consolidated
`into the Broilers case on or about August 31, 2021.
`25.
`Costco’s complaint in the Broilers case alleges, among other things, that
`producers of broiler chicken products engaged in an overarching conspiracy to inflate prices by
`reducing output, manipulating a price index known as the Georgia Dock, and rigging bids.
`26.
`Costco’s complaint in the Broilers case names entities from fourteen corporate
`families as defendants and identifies entities from seven other corporate families as
`non-defendant co-conspirators.
`27.
`Tyson and its affiliate Keystone are among the alleged non-defendant
`co-conspirators identified in Costco’s complaint in the Broilers case.
`Costco’s Arbitration Demand
`On or about December 10, 2021, Costco submitted its Demand to the AAA.
`28.
`The Claim in Costco’s Demand substantively mirrors the overarching conspiracy
`29.
`claim Costco has asserted in the Broilers case.
`30.
`Among other things, Costco’s Demand alleges an overarching conspiracy to
`artificially raise prices that was achieved by at least the following three primary mechanisms:
`(1) an agreement to reduce the supply of broiler chickens, (2) manipulation of the Georgia Dock
`index, and (3) bid rigging.
`31.
`Costco’s Demand further alleges that the following producer families participated
`in the claimed conspiracy: Tyson, Pilgrim’s Pride, Perdue, Sanderson Farms, Koch Foods,
`Wayne Farms, House of Raeford, Claxton Poultry, Fieldale Farms, Foster Farms, Harrison
`Poultry, Mar-Jac Poultry, Mountaire, O.K. Foods, Simmons, Keystone, Amick, Case Farms,
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 5
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

`

`
`
`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 6 of 14
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`George’s, and Peco. All of these corporate families are named as defendants or co-conspirators
`in Costco’s complaint in the Broilers case.
`32.
`Costco’s Demand claims that, as a result of the alleged overarching conspiracy,
`Tyson overcharged Costco on broiler chicken sales between 2008 and 2019.
`33.
`Like its complaint in the Broilers case, Costco’s Demand seeks treble damages,
`costs, and attorneys’ fees.
`
`The Vendor Agreement
`Costco’s Demand asserts that Costco and Tyson agreed to arbitrate Costco’s
`34.
`Claim under an alleged agreement comprised of the 1995 Vendor Agreement and the 2019
`Standard Terms.
`35.
`In support of this claimed arbitration right, Costco submitted with its Demand two
`documents—the 1995 Vendor Agreement and the 2019 Standard Terms— claiming that Tyson is
`bound to arbitrate according to the 2019 Standard Terms and that the 2019 Standard Terms are
`incorporated into the 1995 Vendor Agreement.
`36.
`The 1995 Vendor Agreement is a two-page document consisting of a title; an
`introductory clause naming Tyson, Costco and “The Price Company” as parties; six paragraphs;
`and signature blocks.
`37.
`The 1995 Vendor Agreement is signed by representatives of the parties.
`38.
`The 1995 Vendor Agreement provides that all sales and deliveries of all products
`by Tyson to Costco, and all purchase orders by Costco to Tyson, will be covered by and subject
`to the terms of a set of documents collectively defined as the “Agreement Documents.”
`39.
`The Agreement Documents include the 1995 Vendor Agreement and the attached
`1994 Standard Terms as well as certain other enumerated documents.
`40.
`The 1995 Vendor Agreement provides that the Agreement Documents
`collectively are an agreement between Tyson and Costco, are part of the 1995 Vendor
`Agreement, and are incorporated into the 1995 Vendor Agreement by reference.
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 6
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

`

`
`
`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 7 of 14
`
`The 1995 Vendor Agreement provides that disputes shall be resolved under
`41.
`paragraphs 20 and 21 of the Standard Terms.
`42.
`The 1995 Vendor Agreement contains an integration clause providing that the
`Agreement Documents supersede all terms in invoices and other forms, and all prior oral or
`written communications between Tyson and Costco, for the matters covered in the Agreement
`Documents.
`The 1995 Vendor Agreement further provides that the Agreement Documents can
`43.
`be amended only in a writing signed by an authorized official of Tyson and Costco.
`44.
`The 1994 Standard Terms similarly provide that they apply to every shipment or
`sale from Tyson to Costco unless otherwise agreed in a writing signed by Tyson and Costco.
`45.
`Costco did not submit with its Demand a complete set of the Agreement
`Documents as they existed on August 24, 1995.
`46.
`Costco therefore did not submit with its Demand a complete copy of the
`agreement that existed as of August 24, 1995.
`Tyson Did Not Agree To The 2019 Standard Terms
`Costco did, however, submit with its Demand the 2019 Standard Terms.
`47.
`Costco alleges that the 2019 Standard Terms are incorporated into the 1995
`48.
`Vendor Agreement and that they require Tyson to arbitrate Costco’s Claim pursuant to the
`specific terms included in the 2019 Standard Terms.
`49.
`Costco has provided no documentation to substantiate its allegation that the 2019
`Standard Terms were, at any point, part of any agreement between Costco and Tyson.
`50.
`The 2019 Standard Terms document that Costco provided with its Demand is
`unsigned.
`The 2019 Standard Terms document that Costco provided with its Demand makes
`51.
`no reference to Tyson.
`
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 7
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

`

`
`
`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 8 of 14
`
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`The 2019 Standard Terms document that Costco provided with its Demand makes
`52.
`no reference to “The Price Company.”
`53.
`The footer of the 2019 Standard Terms document that Costco provided with its
`Demand indicates that the complete 2019 Standard Terms document has seventeen pages.
`54.
`The 2019 Standard Terms document that Costco provided with its Demand has
`only sixteen pages.
`55.
`The 2019 Standard Terms document that Costco provided with its Demand is
`therefore incomplete.
`56.
`To the best of Tyson’s knowledge, neither the Vendor Agreement nor the original
`Agreement Documents have ever been amended in a writing signed by an authorized official of
`Costco and Tyson at any time since the Agreement was entered into on August 24 1995, whether
`in connection with the 2019 Standard Terms or at any other time.
`57.
`The 2019 Standard Terms therefore are not—and never have been—part of the
`Agreement Documents comprising the contract between Tyson and Costco.
`Tyson’s Objections
`Shortly after receiving Costco’s Demand, Tyson’s counsel wrote to Costco’s
`58.
`counsel about Costco’s Claim on December 17, 2021.
`59.
`Among other things, Tyson’s counsel objected to proceeding with the Arbitration
`on the basis that Costco had not satisfied its burden of alleging a valid agreement to arbitrate the
`Claim under the 2019 Standard Terms.
`60.
`Tyson also offered to waive any right to arbitrate that might exist and instead to
`resolve Costco’s Claim as part of the ongoing Broilers case to which both companies are parties.
`61.
`On December 21, 2021, Tyson wrote to Alisa Bacon Sullivan, the AAA
`administrator with responsibility for Costco’s Arbitration, to express Tyson’s objection to
`proceeding with the Arbitration given Costco’s failure to sufficiently demonstrate the existence
`of a right to arbitrate under the 2019 Standard Terms.
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 8
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

`

`
`
`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 9 of 14
`
`Tyson submitted a further written objection to the AAA proceeding with Costco’s
`62.
`Arbitration on December 27, 2021.
`63.
`Given Tyson’s continued objections, Ms. Sullivan responded on December 27,
`2021, that the AAA would refer to its Administrative Review Committee (“ARC”) the question
`whether Costco had met its filing requirements under the AAA’s Commercial Arbitration Rules.
`64.
`Tyson made a submission to the ARC on January 5, 2022, reiterating its position
`that the AAA could not properly proceed, attaching its prior objections, and reserving all rights.
`65.
`Costco also made a submission to the ARC on January 5, 2022.
`66.
`Costco’s January 5, 2022 submission attached six exhibits—the 1995 Vendor
`Agreement, the 2019 Standard Terms, and four other versions of Costco’s standard terms that
`Costco claims have been in effect since the Vendor Agreement was executed in 1995.
`67.
`Costco’s January 5, 2022 submission alleged that:
`a.
`Each time Costco updates or revises its Standard Terms, it is Costco’s
`practice to transmit a cover letter to all active vendors with a copy of the new and revised
`Standard Terms.
`Costco’s cover letter informs the vendors that the Standard Terms have
`b.
`been updated and the updated Standard Terms replace the previous version of the Standard
`Terms.
`
`Costco followed its standard practice with Tyson and provided copies of
`c.
`the amendments to Tyson.
`d.
`The Standard Terms are available to Tyson online through the vendor
`portal section of Costco’s website.
`68.
`Costco did not provide any evidence that the 1995 Vendor Agreement and the
`original Agreement Documents had ever been amended in a writing signed by an authorized
`official of Costco and Tyson.
`
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 9
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

`

`
`
`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 10 of 14
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`On January 12, 2022, Ms. Sullivan of the AAA advised Tyson and Costco that the
`69.
`ARC had decided that Costco had sufficiently alleged the existence of an agreement to arbitrate
`and therefore the AAA would move forward with the Arbitration.
`70.
`Tyson has participated in the Arbitration under protest, repeating and preserving
`its objections to the Arbitration.
`Tyson’s Motion for Injunctions
`On January 13, 2022, Tyson filed a motion seeking injunctive relief from Judge
`71.
`Durkin to enjoin Costco from proceeding with the Arbitration.
`72.
`In particular, Tyson moved that:
`a.
`Judge Durkin should enter a preliminary injunction enjoining Costco from
`proceeding with the Arbitration—or, at least, enjoining any bid-rigging discovery during the
`Arbitration—until bid-rigging discovery can proceed without interfering with Judge Durkin’s
`case management orders; and
`b.
`Judge Durkin should enter a permanent injunction enjoining Costco from
`proceeding with the Arbitration because Costco has waived any right it otherwise had to arbitrate
`through its significant litigation conduct in the United States District Court for the Northern
`District of Illinois.
`73.
`In opposing Tyson’s motion, Costco conceded that it was appropriate for Judge
`Durkin to decide the two specific issues that Tyson raised “as a matter of efficiency and comity,
`because [Judge Durkin] is deeply familiar with the Broiler Chicken case and because Tyson’s
`motion implicates certain prior orders of [Judge Durkin’s] Court.”
`74.
`During oral argument on Tyson’s motion, Costco agreed that Judge Durkin should
`also decide any disputes about discovery in the Arbitration.
`75.
`Costco otherwise reserved “its right to enforce all contractual terms in any and all
`other context,” indicating its position that other court disputes relating to the Arbitration should
`be litigated “in the federal and state courts in King County, Washington.”
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 10
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

`

`
`
`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 11 of 14
`
`Consistent with Costco’s reservation, the question raised in this case—namely,
`76.
`whether the parties agreed in a signed writing to incorporate the 2019 Standard Terms into their
`Vendor Agreement—is a question that should be decided by this Court, and therefore Tyson
`reserved that issue for this Court and did not submit it to Judge Durkin for decision.
`77.
`During oral argument on Tyson’s motion, Costco represented to Judge Durkin
`that it would not seek any discovery in the Arbitration that it would be forbidden from seeking in
`the Broilers case by Judge Durkin’s case management orders.
`78.
`Based on Costco’s representation, Judge Durkin denied Tyson’s motion for
`injunctive relief on February 8, 2022.
`
`COUNT I
`DECLARATORY JUDGMENT
`Tyson repeats and realleges the allegations contained in Paragraph 1 through
`79.
`Paragraph 78 as if set forth fully herein.
`80.
`A real and substantial controversy exists between Tyson and Costco regarding
`whether Tyson is obligated to arbitrate Costco’s Claim before the AAA under the 2019 Standard
`Terms.
`This Court’s determination about whether the parties are obligated to arbitrate
`81.
`under the 2019 Standard Terms will have significant effects on both parties.
`82.
`Examples of the relevant differences between the 1994 Standard Terms and the
`2019 Standard Terms are found in Paragraph 83 through Paragraph 88.
`83.
`The 1994 Standard Terms impose an absolute bar on claims asserted 180 days or
`more from the date the claims are known and fully accrued; the 2019 Standard Terms do not.
`84.
`The 1994 Standard Terms do not include any provision for third party discovery;
`the 2019 Standard Terms expressly permit the arbitrator to order third party discovery to the
`fullest extent allowed by federal law and the laws of the State of Washington.
`
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 11
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

`

`
`
`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 12 of 14
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`The 1994 Standard Terms contain a limitation of liability provision specifying
`85.
`that the arbitrator may not award punitive damages; the 2019 Standard Terms contain an entire
`paragraph excluding any special, consequential, incidental, indirect, punitive, exemplary or other
`enhanced damages.
`86.
`Although the 1994 Standard Terms allow the prevailing party in arbitration to
`recover reasonable attorneys’ fees, the 2019 Standard Terms also allow the recovery of costs and
`expenses, and they define recoverable expenses to include fees for expert witnesses.
`87.
`The 2019 Standard Terms expressly delegate the determination of arbitrability
`issues to the arbitrator, but the 1994 Standard Terms do not.
`88.
`The 1994 Standard Terms are silent about joining other parties to an arbitration,
`while the 2019 Standard Terms expressly provide that other parties may be joined to the extent
`necessary to resolve a dispute.
`89.
`Tyson is entitled to a declaration that the 2019 Standard Terms are not part of any
`agreement between Tyson and Costco.
`90.
`Tyson is entitled to injunctive relief barring Costco from arbitrating its Claim
`under the 2019 Standard Terms.
`
`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff Tyson Foods, Inc. prays that this Court will enter judgment in
`its favor and against Defendant Costco Wholesale Corporation and award the following relief:
`1.
`A declaration that there is no agreement between Costco and Tyson that includes
`the 2019 Standard Terms;
`2.
`A preliminary injunction staying the AAA arbitration initiated by Costco pending
`the Court’s determination of the issues raised in this complaint;
`3.
`A permanent injunction prohibiting Costco from arbitrating its Claim against
`Tyson under the 2019 Standard Terms;
`4.
`Such costs as are taxable to a prevailing party;
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 12
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

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`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 13 of 14
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`Reasonable attorneys’ fees and such other remedies as may be available pursuant
`5.
`to contract; and
`6.
`Such other and further relief as the Court deems just and proper.
`DEMAND FOR JURY TRIAL
`Plaintiff Tyson Foods, Inc. demands a trial by jury on all issues so triable.
`REQUEST FOR SPEEDY HEARING
`Plaintiff Tyson Foods, Inc. requests “a speedy hearing of [this] declaratory-judgment
`action” pursuant to Federal Rule of Civil Procedure 57.
`DATED this 17th day of February, 2022.
`
`
`
`
`
`
`s/ Brian W. Esler
`Brian W. Esler, WSBA No. 22168
`MILLER NASH LLP
`Pier 70
`2801 Alaskan Way, Suite 300
`Seattle, WA 98121-1128
`Tel: (206) 624-8300
`Fax: (206) 340-9599
`Email: brian.esler@millernash.com
`Attorneys for Plaintiff
`
`Rachel J. Adcox (pro hac vice to be filed)
`Bradley D. Justus (pro hac vice to be filed)
`Kenina J. Lee (pro hac vice to be filed)
`AXINN, VELTROP & HARKRIDER LLP
`1901 L Street NW
`Washington, D.C. 20036
`T. 202-912-4700
`radcox@axinn.com
`bjustus@axinn.com
`klee@axinn.com
`
`John M. Tanski (pro hac vice to be filed)
`AXINN, VELTROP & HARKRIDER LLP
`90 State House Square
`Hartford, CT 06103
`T. 860-275-8175
`jtanski@axinn.com
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 13
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`

`

`Case 2:22-cv-00192 Document 1 Filed 02/17/22 Page 14 of 14
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`
`Denise L. Plunkett (pro hac vice to be filed)
`AXINN, VELTROP & HARKRIDER LLP
`114 West 47th Street
`New York, NY 10036
`T. 212-728-2331
`
`
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 14
`
`
`
`
`MILLER NASH LLP
`ATTORNEYS AT LAW
`T: 206.624.8300 | F: 206.340.9599
`PIER 70
`2801 ALASKAN WAY, SUITE 300
`SEATTLE, WASHINGTON 98121
`
`