Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Cal.: Milk consumers must establish state specific effects of defending producers’ conduct, (Jun 2, 2014)

By Greg Hammond, J.D.

Consumers in a putative class action law suit against various milk producers for conspiring to increase milk prices were required by the federal district court in Oakland, California, to file an additional brief detailing whether they have a reasonable method for calculating the impact of alleged antitrust violations on class members (Edwards v National Milk Producers Federation, May 29, 2014, White, J).

The case was before the district court on the consumers’ motion for class certification. The milk producers, in opposition, argued that the consumers’ expert, Dr. John Connor, should be excluded because the consumers failed to show their damages were calculated based on the conduct they were challenging as required by the Supreme Court’s decision in Comcast Corp. v Behrend.

According to the court, Dr. Connor incorrectly calculated the effects of the herd retirement program on a national level and then multiplied the calculation by the percentage of the population in states where the consumers brought their state-law claims. However, the court determined that the issue with such a calculation was that the consumers did not bring a federal antitrust claim, only state-law claims in some states. Consequently, the court found that because the calculations included the effects from non-illegal activity states, the consumers failed to demonstrate their damages stemmed from the milk producer’s actions that created the alleged legal liability.

The consumer’s additional brief must be filed no later than June 13, 2014, and must clarify whether they can set forth a method of calculation that captures the effects of the herd retirement program in states the consumers allege the milk producers violated antitrust laws. Consequently, the pending motions for class certification and to exclude Dr. Connor’s testimony were continued to a later date.

The case number is C 11-04766 JSW.

Attorneys: Steven N. Berk (Berk Law PLLC) for Matthew Edwards, Torah Montessori School, and Boys and Girls Club of the East Valley. Chong Seok Park (Steptoe and Johnson LLP) for Nat’l Milk Producers Federation. Jesse William Markham for Dairy Farmers of America, Inc. Clifford G. Tsan (Bond Schoeneck and King, PLLC) for Dairylea Cooperative Inc. Diane Curran Polletta (Shipman & Goodwin, LLP) and Jan Nielsen Little (Keker & Van Nest, LLP) for Agrimark, Inc. George Arnold Nicoud, III (Gibson, Dunn & Crutcher LLP) and Scott C. Solberg (Eimer Stahl, LLP) for Land O'Lakes, Inc.

Companies: National Milk Producers Federation; Dairy Farmers of America, Inc.; Dairylea Cooperative Inc.; Agrimark, Inc.; Land O'Lakes, Inc.

Cases: Antitrust CaliforniaNews