The trial in the antitrust litigation stemming from allegations that mushroom farmers conspired to fix prices is set to begin May 20, and U.S. District Senior Judge Berle M. Schiller of the Eastern District of Pennsylvania plans to oversee the proceedings.
Schiller on Tuesday denied a request to step down from the case after one of the defendants demanded his recusal, alleging he had participated in ex parte communications with some of the parties engaged in settlement talks.
In a six-page ruling in In re Mushroom Direct Purchaser Antitrust Litigation, Schiller said he disagreed with defendant M.D. Basciani’s characterization of the settlement talks as “ex parte” and said the defendant failed to establish why recusal was necessary.
“This court finds no reasonable person with knowledge of all the facts would perceive an appearance of bias in these circumstances,” Schiller said.
M.D. Basciani & Sons, which is one of several mushroom growers that had been sued for alleged price-fixing, filed a motion last week saying Schiller needed to step down from the case after he allegedly took a phone call and had a meeting with plaintiffs counsel Bruce Gerstein of Garwin Gerstein & Fisher, and Berger Montague attorney H. Laddie Montague, who is lead counsel for a group of defendants.
M.D. Basciani & Sons is being represented by Kennett Square attorney Thomas K. Schindler and Donna M. Albani of Glen Mills.
Schiller acknowledged there was a meeting including himself, Montague and Gerstein. But he said he had not been obliged to give notice to Albani.
Montague and Gerstein said in court papers that the talks were in reference to claims in the matter that did not involve Albani’s client, M.D. Basciani & Sons.
The mushroom grower’s attorneys first learned about the alleged ex parte conversations by chance, according to the motion, from Stevens & Lee attorney William DeStefano, who was representing another defendant. DeStefano, M.D. Basciani & Sons’ lawyers said, called Albani to notify her that his clients were in settlement talks, and mentioned that Montague and Gerstein had attended a meeting with Schiller in late April.
M.D. Basciani & Sons’ motion said that since neither Schiller, nor the attorneys, notified M.D. Basciani & Sons about the meeting or conversations, the conversations were ex parte communication. The motion further said that M.D. Basciani & Sons had been prejudiced by the alleged ex parte communications because, given the settlement talks, some defendants had no incentive to vigorously argue their motions in limine.
Letters Gerstein and Montague filed with the court in early May, however, rejected the notion that there was any ex parte communication, and said the meeting was held to discuss settlement negotiations that had nothing to do with M.D. Basciani & Sons.
In his ruling Tuesday, Schiller also said the allegations only tangentially dealt with him.
“Counsel for M.D. Basciani was present at the argument on the motions in limine and had an opportunity to be heard with respect to any point raised (or not raised) by counsel for certain defendants in court,” Schiller said. “M.D. Basciani did not then and still has not raised any specific concerns with respect to the arguments presented by certain defendants’ counsel or with the court’s rulings on the motions in limine.”
Schindler and Montague did not return a call for comment. Gerstein declined to comment outside of the filings.