Antitrust Law Daily Wrap Up, ANTITRUST NEWS: High Court asked to provide guidance on summary judgment standard, (Aug 7, 2014)

By Jeffrey May, J.D.

A raw milk supplier and two milk processors accused of conspiring to lessen competition for sales of processed milk to retailers in the Southeast have asked the U.S. Supreme Court to resolve a disagreement in the lower courts as to the showing an antitrust plaintiff must make in order to defeat summary judgment on the element of causation (Dean Foods Co. v. Food Lion, LLC, Dkt. No. 14-110).

At issue is a decision of the U.S. Court of Appeals in Cincinnati reversing summary judgment in favor of the defendants—raw milk supplier Dairy Farmers of America, Inc. (DFA) and processors Dean Foods Company and National Dairy Holdings, L.P. Dean, DFA, and National Dairy filed a petition for certiorari with the High Court on August 1, questioning the summary judgment standard applied by the appellate court in a putative class action brought on behalf of retailers of processed milk.

In seeking summary judgment, the defendants had argued that the retailers could not establish a genuine issue of material fact on the issue of causation. Noting that courts in the Sixth Circuit were “generally reluctant to use summary judgment dispositions in antitrust actions,” the appellate court concluded that summary judgment was not warranted based on the lack of antitrust injury.

The appellate court decided that the district court incorrectly rejected the retailers’ injury expert. According to the appellate court, the expert's analysis revealed three conclusions which, taken together, could be viewed as evidence of antitrust injury: (1) the retailers purchased processed milk from the defendants; (2) the plaintiffs were charged 7.9 percent more for milk than an econometric analysis could justify; and (3) evidence indicated a conspiracy to avoid competing vigorously.

In their petition for review, the petitioners question whether summary judgment should be disfavored in antitrust cases. They also take issue with what they call a “presumption” of causation. In addition, they contend that the plaintiffs’ expert's model was “useless” for purposes of establishing causation because it took into account lawful conduct or theories of liability that were rejected and not at issue in the appeal.

Specifically, the petitioners ask whether, in antitrust or other cases in which the plaintiff must prove causation in fact as an element of the claim, a plaintiff must produce evidence of causation to defeat a motion for summary judgment, or whether a court may instead presume causation at summary judgment and permit the case to proceed to trial based on that presumption.

“Some circuits correctly require an antitrust plaintiff opposing summary judgment to produce not only evidence of the defendants’ alleged anticompetitive conduct and evidence of injury to the plaintiff, but also evidence of a causal link between the two,” according to the petitioners. “Other circuits—including the Sixth Circuit in this case—permit a plaintiff to reach a jury without any evidence of that causal link, effectively presuming causation and foreclosing summary judgment unless the defendant disproves it.”

“In Twombly and Comcast, the Court underscored the importance of rigorous enforcement of the standards governing pleading and class certification in antitrust and other civil cases,” the petitioners contend. “There is a similar need for the Court's intervention here.”

Attorneys: Seth P. Waxman (Wilmer Cutler Pickering Hale and Dorr LLP) for Dean Foods Co., National Dairy Holdings, L.P., Dairy Farmers of America, Inc.

Companies: Food Lion, LLC; Dean Foods Co.; National Dairy Holdings, L.P.; Dairy Farmers of America, Inc.

News: Antitrust