In re Catfish Antitrust Litigation, Master No. 2:92cv73-D-O. MDL 928.

• Decision Date: 17 November 1995
• Docket Number: Master No. 2:92cv73-D-O. MDL 928.
• Citation: 908 F. Supp. 400
• Parties: In re CATFISH ANTITRUST LITIGATION. This Document Relates To "All Actions".
• Court: U.S. District Court — Northern District of Mississippi

908 F. Supp. 400

In re CATFISH ANTITRUST LITIGATION This Document Relates To "All Actions".

Master No. 2:92cv73-D-O. MDL 928.

United States District Court, N.D. Mississippi, Delta Division.

November 17, 1995.

COPYRIGHT MATERIAL OMITTED

Richard A. Lockridge, Schatz Paquin Lockridge, Grindal & Holstein, Minneapolis, Minnesota, Edward A. Moss, Holcomb, Dunbar, Connell, Chaffin & Willard, Oxford, Mississippi, for plaintiff.

Stephen Lee Thomas, Greenville, Mississippi, for defendants.

MEMORANDUM OPINION

DAVIDSON, District Judge.

Presently before the court are motions of the defendants ConAgra, Country Skillet, Delta Pride, Hormel and Farm Fresh for the entry of summary judgment on their behalf. Pursuant to this opinion, the court shall hold in abeyance a portion of the motions and shall deny the remainder.

BACKGROUND¹

I. THE CATFISH PRICE-FIXING CONSPIRACY

A. PROLOGUE

The named plaintiffs in this litigation are food distributors who purchased catfish and catfish products from 1981 until 1990, from various companies that were engaged in the business of processing and selling farm raised catfish and catfish products. The plaintiffs invoke section 4 of the Clayton Act (15 U.S.C. § 15) as a means to recover treble damages, costs of suit, and attorneys' fees for the defendants' alleged violations of section 1 of the Sherman Act. The sum and substance of the plaintiffs' consolidated complaint is that the defendants have engaged in a combination and conspiracy, since at least 1981 through 1990, to suppress and eliminate competition in the catfish industry by fixing prices of catfish and catfish products sold throughout the United States. It is alleged that the defendants agreed to establish minimum prices for catfish and certain catfish products and to adhere to the established minimum prices. As a consequence, plaintiffs allege injury in that the prices paid for catfish were artificially high and at non-competitive levels.

The factual background surrounding this litigation is, to say the least, colossal. The undersigned does not have adequate time to restate the entire history of this controversy for the purposes of the motions at bar. Thankfully, such is not necessary, and the court will strive for brevity when possible. Only so much of the facts as are required for this court's ruling will be mentioned today as necessary. It will be beneficial, however, for the court to first briefly mention the various persons and entities involved in this matter.

B. THE PLAYERS — DEFENDANTS AND THEIR AGENTS/EMPLOYEES

The catfish industry is interwoven in many respects, and as is the case of many industries, many of the persons involved have worked for more than one of the defendants during the time of the charged conspiracy. This recitation of names and dates will be important in determining what evidence of conspiratorial activity can be attributed to the various defendants.

a. DELTA PRIDE CATFISH, INC.

Representatives for Delta Pride (DP) include Samuel Hinote (1980-90), Larry Joiner (1984-93), William Dauler (1982-1988), Harry T. McNamee (1988-present), Lee Stovall (1988-present), Michael L. Brown (1988-present), Kimberly Stewart Cox (1983-88), Robert Meyer (1988-89), Ken Crawford (1984-present), John "Buddy" Moses (1986-90), and Walter "Smitty" Reeves (1983-88).

b. CONAGRA, INC. and COUNTRY SKILLET CATFISH COMPANY²

Representatives for ConAgra (CA) include Samuel Hinote (1967-80), Paul C. Barrett (1976-80), Joseph T. Glover, Sr. (1968), Henry Williams (1973-75) and Harry T. McNamee, Jr. (1982). Representatives for Country Skillet include Richard D. "Dickie" Stevens (1986-91), John Hammond (1983-85), John Tallent (1986), E.W. "Pete" Ellis (1981-86), William Dauler (1977-81; 1990-present), Michael L. Brown (1984-88), and Michael Mauney (1981-83; 1987-90).

c. HORMEL FOODS CORPORATION

Representatives for Hormel Foods (HF) include Joseph T. Glover, Sr. (1983-87), James Rieth (1963-present), James Hoffman (1975-present), William Hunter, Mark Englehardt (1981-present), James Cole (1959-1983; 1986-present), James Collins, and William McCormack (1973-86).

d. FARM FRESH CATFISH COMPANY

Representatives for Farm Fresh (FFC) include Everett J. "Jack" Perkins (1976-83), Joseph T. Glover, Sr. (1970-87), Don Haynie (1985-present), Joseph T. Glover, Jr. (1972-75), Thomas A. Rhodes (1981-85), Thomas R. "Randy" Rhodes (1984-85), Larry Joiner (1979-84), Harry T. McNamee, Jr. (1985), Lee Stovall (1985-88), James Rieth (1984-86), James Hoffman (1984-86), William Hunter, Mark Englehardt (1985-88), James Cole (1986-88), James Collins (1988-91), Kimberly Stewart Cox (1979-83), Ken Crawford (1977-84), Walter "Smitty" Reeves (1979-83), and Michael Mauney (1983-84).

e. SIMMONS FARM RAISED CATFISH, INC.

The representative for Simmons Farm Raised Catfish (SC) is its founder Harry D. Simmons, Jr. (1982-present).

f. FRESHWATER FARMS, INC.

The representative for Freshwater Farms (FFs) is Henry Williams (1986-present).

g. SOUTHERN PRIDE CATFISH CO., INC.

Representatives of Southern Pride (SP) include Joseph T. Glover, Jr. (1986-present), Thomas A. Rhodes (1985-91) and Thomas R. "Randy" Rhodes (1986-present).

h. MAGNOLIA PROCESSING, INC.

The representative for Magnolia Processing (MP) is its founder William Gidden (1983-present).

The parties have included more detailed information concerning these individuals which is not required to be set forth again here. If further information becomes necessary, it will be set out by the court.

DISCUSSION

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F.R.C.P. 56(c). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once a properly supported motion for summary judgment is presented, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir.1994). "Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Federal Sav. & Loan Ins. v. Krajl, 968 F.2d 500, 503 (5th Cir.1992). The facts are reviewed drawing all reasonable inferences in favor of the party opposing the motion. Matagorda County v. Russell Law, 19 F.3d 215, 217 (5th Cir.1994); King v. Chide, 974 F.2d 653, 656 (5th Cir.1992).

III. THE PLAINTIFFS' CLAYTON ACT CLAIM

A. THE LEGAL STANDARD

The plaintiffs' primary claim is that "the defendants and their co-conspirators entered into and engaged in a combination, and conspiracy to suppress and eliminate competition by fixing prices of catfish and catfish products directly sold throughout the United States." Plaintiffs' Fifth Amended Complaint, ¶ 30. Section 4(a) of the Clayton Act provides that:

Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any District Court of the United States ... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee....

15 U.S.C. § 15(a) (Supp.1995). In order for a plaintiff to recover compensatory damages, "private antitrust liability ... requires the showing of (1) a violation of the antitrust laws, (2) the fact of damage, and (3) some indication of the amount of damage." In re Corrugated Container Antitrust Litigation, 756 F.2d 411, 416 (5th Cir.1985) (quoting Nichols v. Mobile Bd. of Realtors, 675 F.2d 671, 675-76 (5th Cir.1982)). The alleged antitrust violation involved in the case at bar is one in which the plaintiffs charge that the defendants conspired to fix prices of catfish products in violation of the Sherman Act, 15 U.S.C. § 1.³ Therefore, in order to establish liability under the Clayton Act, the plaintiffs must prove the existence of a conspiracy to fix prices and that "the conspiracy in fact affected the prices paid," operating as a restraint of trade.⁴Corrugated Container, 756 F.2d at 416.

B. THE EVIDENCE

The plaintiffs' proof of the creation and furtherance of this conspiracy falls into different categories, but face-to-face meetings and telephone conversations are the real substance of the evidence in this regard. The face-to-face meetings appear to be the most probative, but the telephone conversations are not without evidentiary worth.

1. TELEPHONE CONTACT

The plaintiffs have presented a voluminous record of telephone calls and facsimile transmissions between the various defendants from early in 1981 through the summer of 1995. A vast number of these contacts occurred during the existence of the alleged conspiracy. While the plaintiffs cannot always provide specific details concerning the calls, the evidence of such communications can be nonetheless telling. At the least, the sheer number of contacts between competitors, when considered with all of the other available evidence, is circumstantial evidence of the existence of a conspiracy such as the one charged. In addition, a number of the calls coincide temporally with other evidence which lends probative weight to such an inference.

2. THE MEETINGS

The most direct evidence of conspiratorial acts stems from meetings held by representatives of the various defendants. Many of these meetings can be summarized as follows:

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