In re Packaged Seafood Prods. Antitrust Litig., Case No.: 15–MD–2670 JLS (MDD)

• Court: United States District Courts. 9th Circuit. United States District Court (Southern District of California)
• Citation: 242 F.Supp.3d 1033
• Docket Number: Case No.: 15–MD–2670 JLS (MDD)
• Parties: IN RE: PACKAGED SEAFOOD PRODUCTS ANTITRUST LITIGATION
• Decision Date: 14 March 2017

242 F.Supp.3d 1033

IN RE: PACKAGED SEAFOOD PRODUCTS ANTITRUST LITIGATION

Case No.: 15–MD–2670 JLS (MDD)

United States District Court, S.D. California.

Signed March 14, 2017

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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' REMAINING MOTIONS TO DISMISS

Hon. Janis L. Sammartino, United States District Judge

Presently before the Court are:

(1) Defendant Thai Union Group PCL's Motion to Dismiss ("TUG MTD") (ECF No. 205) all claims asserted against Thai Union in the: (a) Consolidated Amended Complaint of Direct Action Plaintiffs ("DAP Compl.") (ECF No. 152); (b) Consolidated Class Complaint of Direct

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Purchaser Plaintiffs ("DPP Compl.") (ECF No. 147); (c) Consolidated Class Action Complaint of Indirect Purchaser Commercial Food Preparers Class ("CFP Compl.") (ECF No. 153); (d) Amended Complaint of Direct Action "Kroger" Plaintiffs ("Kroger Compl.") (The Kroger Co. et al. v. Bumble Bee Foods LLC et al. , 16–cv–51–JLS (MDD), ECF No. 19); (e) Amended Complaint of Direct Action Plaintiffs Meijer, Inc. and Meijer Distribution, Inc. ("Meijer Compl.") (Meijer, Inc. et al. v. Bumble Bee Foods LLC, et al. , 16–cv–398–JLS (MDD), ECF No. 11); (f) Amended Complaint of Direct Action Plaintiff Publix Super Markets, Inc. and Wakefern Food Corp. ("Publix Compl.") (Publix Super Markets, Inc. et al. v. Bumble Bee Foods LLC et al. , 16–cv–247–JLS (MDD), ECF No. 12); and (g) Direct Action Plaintiff Winn–Dixie Stores and Bi–Lo Holding, LLC's First Amended Complaint ("Winn–Dixie Compl.") (ECF No. 151);

(2) Defendant Dongwon Enterprise Co., Ltd.'s Motion to Dismiss ("Dongwon Enter. MTD") (ECF No. 206) all claims against Dongwon Industries and Dongwon Enterprise in the: (a) CFP Complaint; (b) DPP Complaint; (c) Kroger Complaint; (d) Meijer Complaint; (e) Publix Complaint; (f) Wegmans Amended Complaint ("Wegmans Compl.") (Wegmans Food Markets, Inc. v. Bumble Bee Foods, LLC et al. , 16–cv–264–JLS (MDD), ECF No. 11); (g) Affiliated Foods First Amended Complaint and Demand for Jury Trial ("Affiliated Foods Compl.") (ECF No. 152); and (h) Winn–Dixie Complaint;

(3) Defendants StarKist Co.'s, Dongwon Enterprise Co., Ltd.'s, Bumble Bee Foods, LLC's, Tri–Union Seasfoods, LLC's, Thai Union Group PCL's, and Del Monte Foods Company's Joint Motion to Dismiss¹ ("Joint MTD") (ECF No. 207) without further leave to amend the: (a) DPP Complaint; (b) CFP Complaint; (c) Consolidated Class Action Complaint of the Indirect Purchaser End Payer Plaintiffs ("EPP Compl.") (ECF No. 149); (d) Affiliated Foods' Complaint; (e) Wegmans Complaint; (f) Meijer Complaint; (g) Kroger Complaint; (h) Publix Complaint; (i) Winn–Dixie Complaint; (j) Plaintiff W. Lee Flowers & Co., Inc.'s Complaint and Demand for Jury Trial ("Flowers Compl.") (W. Lee Flowers & Co. v. Bumble Bee Foods, LLC, et al. , 16–cv–1226–JLS (MDD));

(4) Defendant Dongwon Industries Co., Ltd.'s Motion to Dismiss ("Dongwon Indus. MTD") (ECF No. 220) the Wegmans Complaint;

(5) DPPs' Omnibus Opposition to Motions to Dismiss ("DPP Opp'n") (ECF No. 226) above labeled as: (a) Joint MTD regarding the (i)

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Twombly Brief, (ii) Standing Brief, and (iii) SoL Brief; and (b) TUG MTD;

(6) CFPs' Memorandum of Law in Opposition to Defendants' Collective Motion to Dismiss Complaint ("CFP Opp'n") (ECF No. 227) above labeled as the: (a) Joint MTD regarding the (i) Twombly Brief, (ii) Standing Brief, (iii) SoL Brief, and (iv) State Law Brief; and (b) TUG MTD;

(7) Affiliated Foods Plaintiffs' Opposition to ("Affiliated Foods Opp'n") (ECF No. 228) the above-labeled Motions to Dismiss: (a) Joint MTD regarding the (i) Twombly Brief, (ii) Standing Brief, and (iii) SoL Brief; (b) TUG MTD; and (c) Dongwon Enterprise MTD;

(8) Certain Direct Action Plaintiffs' Consolidated Opposition to Defendants' Motions to Dismiss ("Certain DAPs Opp'n") (ECF No. 229) above labeled as the: (a) TUG MTD; (b) Dongwon Enterprise MTD; (c) Joint MTD regarding the (i) Twombly Brief; (d) Dongwon Industries MTD;

(9) Winn–Dixie Plaintiffs' Opposition ("Winn–Dixie Opp'n") (ECF No. 230) to the: (a) Joint MTD regarding the (i) Twombly Brief, (ii) Standing Brief, and (iii) SoL Brief; and (b) TUG MTD;

(10) EPPs' Memorandum of Points and Authorities in Opposition to Defendants' Joint Motions to Dismiss ("EPP Opp'n") above labeled as the Joint MTD regarding the (i) Twombly Brief, (ii) Standing Brief, (iii) SoL Brief, and (iv) State Law Brief;

(11) Reply Memorandum of Points and Authorities in Support of Motion to Dismiss Plaintiffs' Complaints Against Dongwon Industries Co., Ltd. and Dongwon Enterprise Co., Ltd. ("Dongwon Reply") (ECF No. 233);

(12) Defendant TUG PCL's Reply to Opposition to Motion to Dismiss ("TUG Reply") (ECF No. 235);

(13) Defendants' Reply Memorandum of Points and Authorities in Support of Joint Motion to Dismiss All Complaints (" Twombly Reply") (ECF No. 236);

(14) Reply Memorandum of Points and Authorities in Support of Defendants' Joint Motion to Dismiss Various Claims as Time Barred ("SoL Reply") (ECF No. 237);

(15) Reply Memorandum of Points and Authorities in Support of Defendants' Joint Motion to Dismiss EPPs' and CFPs' Consolidated Class Action Complaints ("State Law Reply") (ECF No. 238);

(16) Reply Memorandum of Points and Authorities in Support of Defendants' Joint Motion to Dismiss Plaintiffs' Complaints for Lack of Standing ("Standing Reply") (ECF No. 239).

BACKGROUND

In 2015, dozens of actions were instituted in federal district courts across the nation seeking various forms of relief relying on the same factual predicate: an alleged antitrust conspiracy, in violation of the Sherman Act and state antitrust law, regarding packaged seafood products. See generally Transfer Order (ECF No. 1). On December 9, 2015 the United States Judicial Panel on Multidistrict Litigation centralized pretrial proceedings ("In re Packaged Seafoods ") to this Court in the Southern District of California. (Id. at 1–2 ("The vast majority of the related actions are already pending in this district, most before Judge Janis L. Sammartino, who has the related cases before her.").)

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Several weeks later, the United States Government intervened in the action, noting that "[a] federal grand jury empanelled in the Northern District of California is investigating potential violations of the Sherman Act, 15 U.S.C. § 1, in the packaged seafood industry." (U.S. Notice of Mot. to Intervene 1, ECF No. 34.) The Court subsequently held several status conferences, (ECF Nos. 43, 108), appointed interim lead counsel, and set the leadership structure for purposes of pretrial proceedings, (ECF No. 119). In so doing, the Court divided the Plaintiffs into four groups:

• Direct Action Plaintiffs ("DAPs"), who are direct purchasers proceeding against Defendants individually;

• Direct Purchaser Plaintiffs ("DPPs"), who are direct purchasers proceeding on behalf of a putative class;

• Indirect Purchaser Commercial Food Preparer Plaintiffs ("CFPs"), who are indirect purchasers proceeding on behalf of a putative class; and

• Indirect Purchaser End Payer Plaintiffs ("EPPs"), who are indirect purchasers proceeding on behalf of a putative class.

(Order Appointing Interim Lead Counsel 1–2, ECF No. 119.)

Several months later, Plaintiffs, Defendants, and the United States entered into a joint stipulation regarding a limited stay of discovery, in effect until December 31, 2016, (Joint Stipulation re: Limited Stay of Discovery 1–3, ECF No. 130), which the Court approved, (ECF No. 137). Despite this limited stay, both Plaintiffs and Defendants agreed to the filing of amended complaints and motions to dismiss. (ECF Nos. 138, 142.) On November 21, 2016, Plaintiffs, Defendants, and the United States entered into a second joint stipulation regarding a limited stay of discovery, in effect for many factual matters until March 31, 2017, and in effect for all party depositions until September 30, 2017. (Joint Stipulation re: Second Limited Stay of Discovery 1–3, ECF No. 256.) The Court and the parties conferred at a November 29, 2016 Status Conference, (ECF Nos. 257, 262), and decided to bifurcate oral argument on the Motions to Dismiss according to the classification of "federal" versus "state" issues. The federal issues—which were the subject of the Court's first Order, (ECF No. 283)—encompassed (1) the sufficiency of all relevant Plaintiffs' allegations under the Sherman Act for monetary damages; (2) the sufficiency of all relevant Plaintiffs' allegations under the Sherman Act for injunctive relief; (3) all relevant Plaintiffs' standing to prosecute non-tuna claims; and (4) all statute-of-limitations issues related to the Sherman Act claims. The state-law issues—which were the subject of the subsequent oral argument, (Hr'g Tr., ECF No. 291), and are the subject of this corresponding Order—encompass (1) the sufficiency of relevant Plaintiffs' allegations of Defendants Dongwon's and TUG's (A) direct participation in or (B) vicarious liability via (i) alter ego or (ii) agency principles under the alleged conspiracy; (2) the legal permissibility of all relevant Plaintiffs' attempt to bring claims on behalf of a nationwide California class; (3) the sufficiency of all relevant Plaintiffs' allegations under the various state-law causes of action; (4) all relevant...