Friday, August 6, 2010

Court Case

On August 4, 2010 Judge Greer hand down a Summary Judgment in
Food Lion, LLC, et al. ) v. Dean Foods Company, et al., )
No. 2:07-CV-188

This case is a parallel case to the Southeast dairy farmer case. Supermarkets are alleging Dean and DFA "fixed" prices:

This multi-district class action antitrust case involves allegations by plaintiffs Food Lion, LLC (“Food Lion”) and Fidel Breto, d/b/a Family Foods (“Breto”), on behalf of themselves and a class of all others similarly situated, 1 purchasers of processed milk, involving allegations against Dean Foods Company (“Dean”), Dairy Farmers of America, Inc. (“DFA”), National Dairy Holdings, L.P.(“NDH”), Dairy Marketing Services, LLC (“DMS”), and Southern Marketing Agency, Inc. (“SMA”) (collectively, “defendants”) for violations of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2.

The supermarkets are represented by one of the most reputable firms in antitrust, Akin Gump.

His Honor is not fully happy with the Plaintiffs. Most particularly he takes some shots at the plaintiff's "expert.":

In deposition, Professor Froeb admitted that he did not consider the relevant market in that context but rather that he used a “different approach” in arriving at his conclusions. Professor Froeb also admits that he did not assess the “commercial realities,” Id., but rather relied solely on his theoretical model. Such an approach may be academically acceptable; it does not, however, comply with the Supreme Court’s dictates with respect
to construction of the relevant geographic market. Furthermore, Professor Froeb’s construction of his model with reference to a single customer, Food Lion, also does not comply with the relevant legal requirements. Professor Froeb admitted that he constructed his model with reference solely to “the regions where Dean and Food Lion engage in the sale and purchase of milk.”

I would go a step further and say "such an approach" is practically required in academia. The difficulty of obtaining an "expert" cannot be overstated.

In any event the Judge dropped SMA as a defendant. He also dropped most of the claims (in large part because of the "expert"). He did leave one claim stand:

In Count I of the amended complaint, plaintiffs allege a violation of § 1 of the Sherman Act by Dean, DFA and NDH. More specifically, the plaintiffs allege a horizontal agreement among Dean, DFA and NDH to lessen competition for sales of processed milk to retailers in the southeast and, in fact, not to compete for such sales.

The case will move forward on the one count.

Visions of paint drying are appropriate.

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