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Winters v. Ocean Spray Cranberries, Inc.

United States District Court, D. Massachusetts

October 31, 2017

BARRY K. WINTERS, et al.
v.
OCEAN SPRAY CRANBERRIES, INC.

          MEMORANDUM OF DECISION

          RYA W. ZOBEL UNITED STATES SENIOR DISTRICT JUDGE

         In this 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 Massachusetts.[1]

         In 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 # 268.

         I. Background

         As 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.

         Ocean Spray, a cooperative comprised of more than 700 grower members, [2] 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.

         Growers 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 sell.

         Beginning 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.

         On 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.

         Plaintiffs 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.

         II. Standard

         Summary 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)).

         “Cross-motions 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)).

         III. Ocean Spray's Motion for Summary Judgment

         Ocean 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.

         A. Count II - Violation of the Sherman Act, 15 U.S.C. § 2

         In 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.[3]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 ¶ 65.[4]

         Plaintiffs 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 4.[5]

         As to 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.

         Plaintiffs 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.[6] Plaintiffs include B pool growers, non-CLI independent growers, and CLI growers. I discuss each group's standing separately.[7]

         1. The B Pool Growers

         “Despite 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. ...


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