In re: Processed Egg Prods. Antitrust Litig. — antitrust — reversal — Stark D. Del. by designation

The Third Circuit today reversed a district court’s grant of summary judgement in favor of the defendant in an antitrust price-fixing case. The court rejected the district court’s conclusion that the end purchasers of the product (eggs) lacked standing to challenge to supplier’s alleged supply collusion.

The allegations could make a cynic of you:

Egg producers participating in the certification program were required to increase their hens’ cage sizes and refrain from replacing hens that died with another laying hen (a practice known as “backfilling”). It is alleged that the animal welfare rationale offered for these practices is merely a pretext for the true goal of reducing egg supply to drive up egg prices.

The court defined the issue as one of first impression in the circuit:

whether a direct purchaser of a product that includes a pricefixed input has antitrust standing to pursue a claim against the party that sold the product to the purchaser, where the seller is a participant in the price-fixing conspiracy, but where the product also includes some amount of price-fixed input supplied by a third-party non-conspirator.

Joining Stark were Smith and Fuentes. Arguing counsel were Michael Brody of Jenner & Block for the purchasers and Carrie Mahan of Weil Gotshal for the suppliers.

Garza v. Citigroup — civil — affirmance — Conti WDPA

The lucid introduction:

Under Federal Rule of Civil Procedure 41(d), a district court may order a plaintiff who voluntarily dismisses an action and files a second action against the same defendant based upon a claim asserted in the first action to pay the “costs” incurred by the defendant in the first action. The issue presented (one of first impression in this Court) is whether a district court may award attorneys’ fees as “costs” under Rule 41(d). We conclude that attorneys’ fees may only be awarded as “costs” under Rule 41(d) when the substantive statute under which the lawsuit was filed defines costs to include attorneys’ fees. Because no such statute is involved here, and no other basis upon which attorneys’ fees may be awarded was properly raised with the United States District Court for the District of Delaware, we will affirm the decision of the District Court denying the request for attorneys’ fees.

In so ruling, the court joined a middle-ground position taken by the Fourth and Seventh Circuits, splitting with the Eighth Circuit on one side and the Sixth Circuit on the other.

The court also held that the appellant had waived an argument by failing to raise it below and first raising it in its reply brief. (Notable, given that the appellant was represented by a large firm.)

Joining Conti were Ambro and Krause. Arguing counsel were Bruce Birenboim of Paul Weiss for the appellant and Susan Burke of Maryland for the appellee.