Antitrust Law Daily Wrap Up, ANTITRUST—M.D. Pa.: Chocolate candy makers entitled to video deposition costs in price fixing class action, (Dec 14, 2015)

By Linda O’Brien, J.D., LL.M.

Manufacturers of chocolate confectionary products, which were previously granted summary judgment in class action price fixing charges under Section 1 of the Sherman Act, were entitled to reimbursement for video deposition costs incurred with respect to claims by the individual and direct purchaser plaintiffs, according to the federal district court in Harrisburg, Pennsylvania (In re Chocolate Confectionary Antitrust Litigation, December 11, 2015, Connor, C.).

Retail grocers, convenience stores, and distributors that purchased directly from Nestle, U.S.A., The Hershey Co., and Mars, Inc. had alleged that the candy makers conspired to fix prices in violation of Section 1 of the Sherman Act and the Ohio Valentine Act. Specifically, the plaintiffs claimed that the candy companies were in possession of one another’s pricing information and conspired to raise the prices of their chocolate products.

In a February 2014 decision, the court entered summary judgment on the Sherman Act claims, finding that the plaintiffs failed to produce sufficient evidence of a price fixing agreement. The defendants filed a joint motion in May 2014, seeking judicial approval of over $142,000 in video deposition costs incurred throughout the course of the litigation. In September 2015, the U.S. Court of Appeals in Philadelphia affirmed the court’s summary judgment decision.

Prior court approval. Federal Rule of Civil Procedure Rule 54 provides that costs should be allowed to the prevailing party unless a federal statute, rule, or a court order provides otherwise, the court explained. The plaintiffs’ contention that the defendants failed to seek court approval prior to filing their motion for costs was rejected. The court noted that Rule 54 did not restrict the timing for approval and the interests of judicial economy supported an interpretation of the rule to allow a prevailing party to seek judicial approval of video deposition costs by a separate motion filed after entry of judgment but before the taxation of costs. Such an interpretation asserted by the plaintiffs would require the court to determine the proprietary of costs before they were incurred or the prevailing party was identified.

Reasonable necessity. The plaintiffs’ argument that the defendants did not establish individual necessity for videotaping any of the depositions included in their bill of costs was also rejected. Given the anticipated length of the litigation and initial uncertainty on how the consolidated cases would proceed, the court found it was reasonable to preserve key witness testimony in both electronic and print formats. Thus, taxation of the video deposition or stenographic transcription services costs for witness testimony for the class certification hearing and for the defendants’ various experts was authorized. However, for all other witnesses, the defendants must elect to request taxation of either video deposition or stenographic transcription services expenses, but not both.

Equitable apportionment. Finally, the plaintiffs’ request that the total award of deposition costs should be reduced by fifty percent was denied. According to the court, the taxation of video deposition and stenographic transcription services costs for authorized for only 13 of the more than 140 depositions identified by the defendants and those witnesses were central to the plaintiffs’ class certification and merits arguments.

Pursuant to the court’s order, video deposition costs were authorized to Nestlé in the amount of $9,619.50; to Mars in the amount of $7,433.75; and to Hershey in the amount of $4,503.50.

The case is No. 1:08-mdl-01935-CCC.

Attorneys: Daniel A. Small (Cohen Milstein Sellers & Toll PLLC) for Katherine Woodman. Alejandro H. Cruz (Patterson Belknap Webb & Tyler LLP) for The Hershey Co. Brian J. McMahon (Gibbons PC) for Mars, Inc. Carmine R. Zarlenga (Mayer Brown) for Nestle U.S.A., Inc. Bridget E. Montgomery (Eckert Seamans Cherin & Mellott, LLC) for Cadbury Adams Canada, Inc. Alan R. Boynton, Jr. (McNees Wallace & Nurick LLC) for Hershey Canada, Inc.

Companies: The Hershey Co.; Mars, Inc.; Nestle U.S.A., Inc.; Cadbury Adams Canada, Inc.; Hershey Canada, Inc.

Cases: Antitrust PennsylvaniaNews