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    Antitrust Law Daily Wrap Up, ANTITRUST—D. Minn.: Stay granted in retailer suit against grocery wholesalers, (Dec 16, 2013)

    Law Firms Mentioned:Baker Botts LLP | Boies, Schiller & Flexner LLP | Kotchen & Low LLP | Lockridge Grindal Nauen PLLP | Meredith & Associates | Robins, Kaplan, Miller & Ciresi LLP
    Organizations Mentioned:C&S Wholesale Grocers, Inc. | Fredrikson & Byron, PA | Kotchen & Low, LLP | Lockridge Grindal Nauen, PLLP | Robins, Kaplan, Miller & Ciresi, LLP | Schiller & Flexner, LLP | Supervalu, Inc.

    By Jeffrey May, J.D.

    In an antitrust action alleging that two of the nation’s largest full-line grocery wholesalers—SuperValu, Inc. and C&S Wholesale Grocers, Inc.—conspired to allocate markets and customers, the federal district court in Minneapolis ...

    By Jeffrey May, J.D.

    In an antitrust action alleging that two of the nation’s largest full-line grocery wholesalers—SuperValu, Inc. and C&S Wholesale Grocers, Inc.—conspired to allocate markets and customers, the federal district court in Minneapolis has granted the wholesalers’ motion for a stay of proceedings pending an appeal before the U.S. Court of Appeals in St. Louis. Currently on appeal is the district court’s January 11 decision, granting the wholesalers’ motion for summary judgment as to the claims brought by complaining retailers who were not parties to arbitration agreements with the wholesalers (In re Wholesale Grocery Products Antitrust Litigation, December 13, 2013, Montgomery, A.).

    Retailers in the Midwest and New England brought four actions, alleging that they were charged supra-competitive prices as a result of the defendants’ alleged conspiracy. Several of the plaintiffs who had entered into arbitration agreements with one or the other defendant had their claims dismissed by the district court in 2011 based on the arbitration agreements. The district court held that the non-signatory wholesaler could invoke equitable estoppel to compel the retailers to arbitrate their antitrust claims and that the arbitration agreements were enforceable.

    In February 2013, the appellate court reversed the lower court’s holding that nonsignatory wholesalers could enforce the retailers’ arbitration agreements. It remanded for further proceedings on the enforceability of the arbitration agreements.

    The district court has now stayed proceedings for these “arbitration plaintiffs” pending the appeal of the grant of summary judgment in favor of the defendants. The equities favored staying the case.

    Because the arbitration plaintiffs had claims identical to those already rejected, the Eighth Circuit’s decision would resolve the issue of the appropriate antitrust analysis—rule of reason or per se analysis—to be applied here. Moreover, if the appealing retailer’s arguments were rejected, then the district court could use the Eighth Circuit’s direction in issuing timely decisions with regard to the arbitration plaintiffs’ claims.

    The court also noted that further delay was likely to be relatively brief and any potential prejudice would be minimal. The appellate court had already heard oral argument on November 21.

    The case is No. 09-MD-2090 ADM/AJB.

    Attorneys: Joseph Bruckner (Lockridge Grindal Nauen PLLP), Richard B. Drubel (Boies, Schiller & Flexner LLP), Daniel A. Kotchen (Kotchen & Low LLP) and, Joel C. Meredith (Meredith & Associates) for plaintiffs. Damien A. Riehl (Robins, Kaplan, Miller & Ciresi LLP) for Supervalu, Inc. Charles A. Loughlin (Baker Botts LLP) and Todd A. Wind (Fredrikson & Byron, PA) for C&S Wholesale Grocers, Inc.

    Companies: Supervalu, Inc.; C&S Wholesale Grocers, Inc.

    Cases: Antitrust MinnesotaNews

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