United States District Court, D. Massachusetts
BARRY K. WINTERS, et al.
OCEAN SPRAY CRANBERRIES, INC.
MEMORANDUM OF DECISION
ZOBEL UNITED STATES SENIOR DISTRICT JUDGE
action, some fifty plaintiffs allege that defendant Ocean
Spray Cranberries, Inc., (“Ocean Spray”), an
agricultural cooperative, has unlawfully manipulated the
price of cranberry juice concentrate and discriminated
against “B Pool” members of the cooperative.
Plaintiffs identify themselves as about four B Pool growers
and approximately forty-seven independent cranberry growers
located in Oregon, Wisconsin, and
their Fourth Amended Complaint, plaintiffs bring three
claims: (1) that Ocean Spray engaged in unfair and deceptive
acts in violation of Massachusetts General Laws chapter 93A,
§ 11, thereby injuring the independent growers (Count
I); (2) that Ocean Spray engaged in a pattern of
anti-competitive conduct in violation of section 2 of the
Sherman Act, 15 U.S.C. § 2, thereby injuring both B pool
and independent growers (Count II); and (3) that Ocean Spray
retaliated against certain plaintiffs in violation of
Massachusetts General Laws chapter 93A, § 11 (Count
III). Docket # 253, at 21-26. Ocean Spray moves for summary
judgment on Counts I and II. Docket # 254. A number of
plaintiffs move for partial summary judgment on Count I.
Docket # 260. Ocean Spray moves to defer or deny
plaintiffs' Motion for Partial Summary Judgment. Docket #
relevant to the instant motions, the cranberry industry is
composed of three groups: growers, handlers, and consumers.
Growers produce raw cranberries. Handlers process raw
cranberries into consumer products (such as juice and
sweetened dried cranberries) and commodity ingredients (such
as cranberry concentrate or frozen cranberries). They then
sell the resulting products. Consumers are either households
or food processing companies.
Spray, a cooperative comprised of more than 700 grower
members,  is the largest cranberry handler in North
America. It sells both branded cranberry products, including
Craisins® and Ocean Spray beverages, and unbranded
commodity ingredients, including cranberry concentrate. The
Ocean Spray cooperative divides growers into two
“pools”: the A Pool and B Pool. Both pools
deliver raw cranberries to Ocean Spray. A Pool growers
deliver fruit that is largely used for Ocean Spray's
branded products for which they receive a share of the net
proceeds arising from these products; B Pool growers deliver
cranberries and then receive a share of Ocean Spray's net
proceeds from its resulting unbranded commodity ingredients.
outside of the Ocean Spray cooperative (“independent
growers”) deliver cranberries to “independent
handlers.” These handlers generally purchase the
cranberries from the growers for a specific price, though the
price may not be agreed at the time the growers deliver the
fruit. One independent handler, Cranberries Limited, Inc.
(“CLI”), has a Toll Processing Agreement
(“TPA”) with Ocean Spray. Under the TPA, Ocean
Spray processes CLI's cranberries into concentrate at an
Ocean Spray facility for a fee. Ocean Spray then returns the
concentrate to CLI who markets it. The TPA provides that
Ocean Spray will buy back whatever concentrate CLI cannot
in 2009, Ocean Spray began selling concentrate through
auctions. At these auctions, Ocean Spray offers a fixed
amount of concentrate at a given price, and buyers submit
bids for a given volume at that price. If the total volume of
concentrate bids exceed the volume offered at the auction,
the auctioneer raises the price, and the buyers submit new
bids. This process continues until the aggregate volume of
the bids is less than or equal to the volume of concentrate
offered at the auction. At this point, each buyer purchases
its bid volume at the auction's closing price.
October 27, 2012, “John Doe Growers 1-7” and
“John Doe B Pool Grower 1” filed a putative class
action with seven counts against Ocean Spray. Docket # 1. The
procedural history of the case since then is lengthy and
involved. To summarize, plaintiffs amended their complaint a
number of times, adding, inter alia, named plaintiffs and
additional counts. See Docket ## 28, 29, 34, 44.
Ocean Spray moved to dismiss all counts, Docket # 47, a
motion I allowed in part and denied in part, Docket # 78.
Subsequently, plaintiffs sought partial summary judgment on
two of the remaining counts, Docket # 102, and Ocean Spray
moved for summary judgment on all remaining counts, Docket #
115. I denied plaintiffs' motion, and I allowed Ocean
Spray's motion in part and denied it in part, allowing
three of plaintiffs' claims to go forward. Docket # 143.
moved to certify a proposed class of “[a]ll domestic
independent cranberry farmers and all B-Pool members of Ocean
Spray who received payment during the period August 2009 to
the present for cranberries delivered to a handler for the
purpose of processing the cranberries into
concentrate.” Docket # 195. I denied their motion on
May 10, 2016. Docket # 222. Following the denial of class
certification, plaintiffs further amended their complaint,
ultimately resulting in the current Fourth Amended Complaint.
Docket # 253.
judgment is appropriate when the moving party “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “An issue is ‘genuine'
for purposes of summary judgment if ‘the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party, ' and a ‘material fact' is one
which ‘might affect the outcome of the suit under the
governing law.'” Poulis-Minott v. Smith,
388 F.3d 354, 363 (1st Cir. 2004) (quoting Hayes v.
Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir. 1993)).
for summary judgment do not alter the basic Rule 56 standard,
but rather simply require us to determine whether either of
the parties deserves judgment as a matter of law on facts
that are not disputed.” Ferguson v. Gen. Star
Indem. Co., 582 F.Supp.2d 91, 98 (D. Mass. 2008)
(quoting Adria Int'l Grp., Inc. v. Ferré Dev.,
Inc., 241 F.3d 103, 107 (1st Cir. 2001)). “When
facing cross-motions for summary judgment, a court must rule
on each motion independently, deciding in each instance
whether the moving party has met its burden under Rule
56.” Id. (quoting Dan Barclay, Inc. v.
Stewart & Stevenson Servs., Inc., 761 F.Supp. 194,
197-98 (D. Mass. 1991)).
Ocean Spray's Motion for Summary Judgment
Spray moves for summary judgment on Counts I and II of
plaintiffs' Fourth Amended Complaint. I begin with Count
II, the federal claim in this case.
Count II - Violation of the Sherman Act, 15 U.S.C. §
Count II, plaintiffs allege Ocean Spray violated section 2 of
the Sherman Act, 15 U.S.C. § 2, by attempting “to
monopsonize the relevant cranberry market by fixing the
prices of fresh and processed cranberries to harm the
Plaintiffs.” Docket # 253, at ¶ 73.They claim Ocean
Spray began engaging in “anticompetitive schemes in
2009, ” when it started the auction. Id. at
¶ 34; see also id. at ¶ 59. At the first
auction, plaintiffs maintain, Ocean Spray set the opening
price “at a level significantly lower than the price
for cranberry juice concentrate that existed at that time in
the unrestrained market.” Id. at ¶ 64;
see also Docket # 44-2, at 38. Ocean Spray then set
the opening bid at the next auction lower than the final bid
from the previous auction. Docket # 253, at ¶
allege that through this auction, Ocean Spray “creates
an artificially low market price” for cranberry juice
concentrate. Id. at ¶ 56. This is because,
plaintiffs claim, the auction “sets the price for
cranberry juice concentrate for the industry.”
Id. at ¶ 63. Accordingly, by setting a low
concentrate price at the auction, Ocean Spray
“unlawfully suppress[es] the market price of
cranberries grown both by independent growers and by Ocean
Spray's own ‘B Pool' of cranberry
growers.” Id. at 3. Plaintiffs maintain that
Ocean Spray “creat[ed] a second-class membership within
the cooperative, the ‘B Pool, ' and discriminat[ed]
against them by returning a lower value for their fruit than
that received by the dominant and controlling members of the
cooperative, the ‘A Pool.'” Id. at
the motivation for such a scheme, plaintiffs claim that Ocean
Spray engaged in these “activities in order (1) to
prevent its grower members from leaving Ocean Spray's
cooperative in search of a fairer price for their crop; and
(2) to force independent growers either to go out of business
or to become members of Ocean Spray's cooperative.”
Id. at 3. Specifically, plaintiffs maintain that
“[t]his price-fixing has solidified the Defendant's
market dominance, discouraging the ‘B Pool' growers
from leaving the cooperative, and leaving independent growers
with no choice but to either exit the cranberry market
altogether or to join Ocean Spray at a significant financial
disadvantage as members of its disfavored and underpaid
‘B Pool.'” Id. at 5. This ultimately
benefits the A pool, plaintiffs say, because the “low
price, for predominately all growers outside of the A Pool,
creates a desire to return to or be part of the A Pool,
” which in turn, “enhances the amount of fruit
available to Ocean Spray branded products and creates a
monopsony power as Ocean Spray is the exceedingly dominant
handler.” Id. at ¶ 56. Further, when
independent growers leave the market, plaintiffs allege, A
pool members can “purchase the independent growers'
cranberry bogs at prices far below the value that would have
existed in the absence of Defendant's illegal
tactics.” Id. at ¶ 37. Plaintiffs also
suggest that the auction allows Ocean Spray “to obtain
additional supplies of cranberries at artificially depressed
prices.” Docket # 281, at 6; see also Docket #
253, at ¶ 48; Docket # 278, at 12.
bring their claim for damages under section four of the
Clayton Act, which allows “any person who shall be
injured in his business or property by reason of anything
forbidden in the antitrust laws” to bring suit.
See 15 U.S.C. § 15(a). Ocean Spray moves for
summary judgment on the basis that plaintiffs lack standing
to bring an antitrust claim. Plaintiffs include B pool
growers, non-CLI independent growers, and CLI growers. I
discuss each group's standing separately.
The B Pool Growers
the broad language of § 4, the Supreme Court has held
that § 4 of the Clayton Act does not ‘allow every
person tangentially affected by an antitrust violation to
maintain an action to recover threefold damages for the
injury to his business or property.'” Serpa
Corp. v. McWane, Inc., 199 F.3d 6, 9 (1st Cir. 1999)
(quoting Blue Shield of Va. v. McCready, 457 U.S.
465, 477 (1982)). “Instead, the Court has created a
comprehensive antitrust standing doctrine to determine which
persons are entitled to bring suit under the federal
antitrust statutes.” Id. at 10. Accordingly,
to bring a claim under the Clayton Act, a plaintiff must
establish not only harm but also that he or she “is a
proper party to bring a private antitrust action.”
Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters (“AGC”), 459
U.S. 519, 535 n.31 (1983); see also SAS of P.R., Inc. v.