Maplevale Farms, Inc. v. Koch Foods, Inc. et al

MOTION

N.D. Ill.Apr 15, 2019

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION IN RE BROILER CHICKEN ANTITRUST LITIGATION _______________________________________ SHAMROCK FOODS COMPANY and UNITED FOOD SERVICE, INC.; Plaintiffs, v. TYSON FOODS, INC.; et al. Defendants. Case No: 1:16-cv-08637 Judge Thomas Durkin Case No: 1:18-cv-7284 SHAMROCK’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT Plaintiffs Shamrock Foods Company and United Food Service, Inc. (a wholly-owned subsidiary of Shamrock Foods Company, collectively “Shamrock”), through their undersigned counsel, and pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, respectfully move for leave to file instanter their Amended Complaint. In support, Shamrock states the following: 1. Shamrock seeks to amend its Complaint to add as Defendants additional companies that participated in the broiler chickens conspiracy (“the Conspiracy”) with the existing Defendants, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 4 of the Clayton Act, 15 U.S.C. § 15(a). These companies are: a. Amick Farms, LLC, The Amick Company, Inc., Amick-OSI Broilers, LLC, and Amick-OSI Processing, LLC (collectively, “Amick”); Case: 1:16-cv-08637 Document #: 2025 Filed: 04/15/19 Page 1 of 5 PageID #:89235 b. Case Foods, Inc., Case Farms, LLC, and Case Farms Processing, Inc. (collectively, “Case Foods”). 2. Shamrock filed its original Complaint against Defendants on October 31, 2018, alleging that they conspired and combined to restrain production and artificially inflate the prices of broiler chickens in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 4 of the Clayton Act, 15 U.S.C. § 15(a). 3. Shamrock’s Complaint included allegations that Amick and Case Foods were Co-Conspirators of the original named Defendants. 4. In the five months since Shamrock filed its Complaint, Shamrock and other Plaintiffs in related actions against Defendants have diligently engaged in discovery, including extensive written discovery, the production and review of copious documents and ESI, and the taking of many depositions of various Defendants and their employees. In the course of these discovery efforts, Shamrock has learned additional information to warrant adding Amick and Case Foods as named Defendants in this action. Shamrock therefore seeks leave of Court to file instanter its Amended Complaint. 5. The allegations in the Amended Complaint are the same as those contained in the original Complaint, except for the inclusion of additional details concerning Amick and Case Foods and their participation in Defendants’ conspiracy to restrain supply and increase prices for broiler chickens in the United States. Shamrock seeks to amend its Complaint only to add Amick and Case Foods as named Defendants and to include factual allegations necessary to support those entities’ participation in the Conspiracy. 6. For example, Shamrock alleges in the Amended Complaint that Amick and Case Foods coordinated production cuts and exchanged detailed confidential information about their Case: 1:16-cv-08637 Document #: 2025 Filed: 04/15/19 Page 2 of 5 PageID #:89236 pricing, capacity, production, and costs with competitors in order to artificially inflate the prices of broiler chickens in the United States. 7. Rule 15(a) of the Federal Rules of Civil Procedure provides that “[t]he court should freely give leave [to amend a complaint] when justice so requires.” Fed. R. Civ. P. 15(a). “In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962). 8. Justice requires that Shamrock be allowed to file the Amended Complaint. The information necessary to support the inclusion of Amick and Case Foods only recently came to light, in connection with discovery taken in the relatively brief period since Shamrock filed its Complaint. The Amended Complaint is not the result of undue delay, bad faith, or dilatory motive by Shamrock, and this is Shamrock’s first amendment. 9. The filing of Shamrock’s Amended Complaint will not unduly prejudice Defendants or delay the case. This Motion is timely filed, in accordance with the deadline set by the Court for amending complaints. The close of fact discovery is several months away. Many depositions remain to be taken. Additionally, the Court permitted Direct Purchaser Plaintiffs and Commercial and Institutional Indirect Purchaser Plaintiffs to amend their complaints to add Amick and Case Foods on January 15, 2019. Therefore, Amick and Case Foods are already participating in discovery and defending against this litigation. Case: 1:16-cv-08637 Document #: 2025 Filed: 04/15/19 Page 3 of 5 PageID #:89237 10. Further, Amick and Case Foods were included as Co-Conspirators in Shamrock’s original Complaint, and were therefore on notice since that time that they may be added as named Defendants in this action as discovery progressed. 16. Attached as Exhibits A and B to this Motion are redacted public versions of A) Shamrock’s Amended Complaint, and B) a redline of the Amended Complaint against the original Complaint, reflecting Shamrock’s new allegations, pursuant to this Court’s standing order. Shamrock will file un-redacted versions of the Amended Complaint and redline upon entry of an order granting Shamrock’s related Motion to File Under Seal. Shamrock will also deliver un-redacted courtesy copies of these documents to the Court. WHEREFORE, Shamrock respectfully requests that this Court enter an Order granting them leave to file instanter their Amended Complaint. DATED: April 15, 2019 BILZIN SUMBERG BAENA PRICE & AXELROD LLP By: /s/ Lori P. Lustrin Robert W. Turken (pro hac vice) Scott N. Wagner (pro hac vice) Lori P. Lustrin (pro hac vice) 1450 Brickell Ave Suite 2300 Miami, Florida 33131-3456 Tel: (305) 374-7580 Fax: (305) 374-7593 rturken@bilzin.com swagner@bilzin.com llustrin@bilzin.com CARPENTER LIPPS & LELAND LLP Josh Goldberg Steven C. Moeller 180 N. LaSalle Blvd., Suite 2105 Chicago, Illinois 60601-3129 Telephone: 312 777-4300 Facsimile: 312-777-4839 goldberg@carpenterlipps.com moeller@carpenterlipps.com Case: 1:16-cv-08637 Document #: 2025 Filed: 04/15/19 Page 4 of 5 PageID #:89238 Counsel for Plaintiffs Shamrock Foods Company and United Food Service, Inc. CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that a true and correct copy of the foregoing document was electronically served upon the parties and counsel of record on April 15, 2019. /s/ Lori P. Lustrin Lori P. Lustrin Case: 1:16-cv-08637 Document #: 2025 Filed: 04/15/19 Page 5 of 5 PageID #:89239