Antitrust Law Daily Wrap Up, ANTITRUST—D. Ida.: ‘Highly confidential’ documents properly designated in potato price fixing suit, (Jul 20, 2016)

By Jeffrey May, J.D.

In a price fixing action against potato producers, the federal district court in Boise, Idaho, did not require a complaining retailer-owned cooperative to re-designate certain documents produced in discovery as "confidential" instead of "highly confidential" in order to allow review of the documents by the defendants’ internal counsel. The court denied the motion of Idahoan Foods to modify the designation of 13 spreadsheets of transactional data from Associated Wholesale Grocers, Inc.’s archived database reflecting its purchases of potato products from Idahoan (In re Fresh and Process Potatoes Antitrust Litigation, July 18, 2016, Winmill, B.).

Associated Wholesale Grocers (AWG) was among a number of direct and indirect purchasers of potatoes that sued farmer cooperative United Potato Growers of America, Inc., potato producers, and a distributor for conspiring to reduce the supply of potatoes in order to raise prices in violation of federal and state antitrust law. Specifically, the plaintiffs alleged that the producers formed cooperatives for the purpose of increasing the price of potatoes through supply management. Although a $19.5 million settlement was approved in a direct purchaser class action late last year, AWG has continued to pursue its claims.

The court ruled that AWG had a justified and good faith belief that the information in question was indeed "highly confidential." Under the protective order reached in the suit, documents designated highly confidential could not be disclosed to the parties or to the parties’ internal counsel, and their legal, investigative, technical, administrative, and other support staff engaged in the conduct of this litigation. Highly confidential material, according to the protective order, included competitive or highly sensitive information.

AWG’s documents included "actual historical or projected sales volumes, actual or proposed customer contracts, pricing or similar competitively sensitive materials," the court found. According to AWG, the spreadsheets revealed aspects of its purchasing strategy, trends, and goals which it believed were competitively sensitive. In any event, AWG agreed to allow Idahoan, but not the other defendants, to see the documents. This compromise was sufficient to allow Idahoan to defend itself in this case, the court noted.

Final judgment. Separately, the court granted AWG’s motion for entry of a final judgment under Federal Rule of Civil Procedure 54(b) on defending distributor Potandon Produce LLC’s counterclaim under the Kansas Restraint of Trade Act. In July 2015, the court ruled that the rule of reason applied to the counterclaim. It entered summary judgment in favor of AWG on Potandon’s counterclaim.

With final judgment entered, Potandon would be able to appeal the decision. The court, however, refused Potandon’s request to stay the proceedings related to the counterclaim, including any petition for fees, until the appeal was resolved. The prevailing party had an interest in the prompt payment of its costs, the court noted.

The case is No. 4:13-cv-00251-BLW-CWD.

Attorneys: Patrick J. Stueve (Stueve Siegel Hanson LLP) Sylvia M. Sokol (Constantine Canon, LLP) for Associated Wholesale Grocers, Inc. Steven B. Andersen (Andersen Schwartzman Woodard Brailsford, PLLC) for United Potato Growers of America Inc. Neil D. McFeeley (Eberle, Berlin, Kading, Turnbow, & McKlveen, Chartered) and James A. Wilson (Vorys, Sater, Seymour and Pease LLP) for Idahoan Foods LLC.

Companies: Associated Wholesale Grocers, Inc.; United Potato Growers of America Inc.; Idahoan Foods LLC; Potandon Produce LLC

Cases: Antitrust IdahoNews