chocolate
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The chocolate price-fixing multidistrict litigation hasn’t wrapped just yet.

Nearly 20 supermarkets, pharmacies and wholesalers—including Safeway, CVS, Rite Aid and Walgreens—have appealed a Middle District of Pennsylvania judge’s ruling tossing 91 price-fixing cases filed against Hershey, Mars and Nestle, the makers of three-quarters of America’s chocolate.

Meanwhile, the defendant chocolatiers are seeking to recover from the plaintiffs the costs of electronic discovery, depositions and other expenses incurred thus far in the litigation, arguing they’re entitled to reimbursement because the case against them was dismissed on summary judgment.

On May 16, “individual purchaser” class plaintiffs The Kroger Co., Safeway Inc., Walgreen Co., Hy-Vee Inc., Albertsons, the Great Atlantic and Pacific Tea Co., HEB Grocery Co., Giant Eagle Inc., United Supermarkets, Meijer Inc., Meijer Distribution Inc., Publix Super Markets Inc., SuperValu Inc., Affiliated Foods Inc., CVS Pharmacy, Longs Drug Stores California Inc., Rite Aid Corp., Rite Aid Headquarters Corp. and the Golub Corp. filed notices of appeal to the U.S. Court of Appeals for the Third Circuit.

That same day, the Hershey, Mars and Nestle defendants filed bills of costs, seeking reimbursement of their e-discovery costs and other litigation expenses from all of the individual purchaser and direct purchaser class plaintiffs “jointly and severally.”

The defendants argued in a joint memorandum in support of their bills of costs that, because those plaintiffs—referred to collectively as the “direct plaintiff groups”—relied on the same evidence and the same legal theory, they all used the same discovery.

“The direct plaintiff groups also cannot deny that they were substantially involved in discovery,” the defendants said in the memorandum May 16. “The direct plaintiff groups issued more than 70 document requests that called for the production of millions of pages of documents, served deposition notices for more than 35 witnesses, and frequently sought to move the case forward over objections from defendants.”

In February, U.S. District Chief Judge Christopher C. Conner of the Middle District of Pennsylvania granted the defendants’ motions for summary judgment, tossing 91 cases claiming that the confectioners fixed prices between 2002 and 2007.

Conner issued an order in April dismissing the plaintiffs’ claims with prejudice and entering judgment in favor of the defendants.

The allegations, brought by dozens of grocery stores, pharmacies and direct purchasers that bought chocolate during that time period, were based largely on a parallel investigation in Canada, which led to a guilty plea by Hershey Canada last year and has charges pending against the Canadian affiliates of Mars and Nestle.

“Initially, plaintiffs’ claims of a domestic price-fixing conspiracy were quite plausible,” Conner said in his February decision granting summary judgment in In re Chocolate Confectionary Antitrust Litigation. “The Canadian trade spend conspiracy raised the specter of Sherman Act violations in our contiguous marketplace. Litigation and merits discovery properly ensued. But, at the end of the day, the probata could not match the allegata.”

Conner held oral arguments on the six motions to dismiss in the multidistrict litigation in October 2013 and was told by the parties the following month that the final court-ordered mediation session hadn’t resulted in an agreement. He granted all six motions for summary judgment Feb. 26.

“Specifically, plaintiffs contend that defendants were in possession of one another’s pricing information prior to formal price increase announcements and, spurred by the success of a price-fixing conspiracy among their affiliates in Canada, tacitly agreed to follow in lockstep any list price increases initiated by competitors,” Conner said.

Noting that years of litigation and extensive discovery had fully developed the record, Conner said the “plaintiffs cannot establish that defendants’ actions were more likely than not the result of concerted and collusive action.”

The plaintiffs identified price increases in 2002, 2004 and 2007 as incidents that demonstrate price-fixing among America’s biggest chocolate producers. Hershey holds 42 percent of the domestic market, Mars has 28 percent and Nestle has 8 percent, according to the opinion. Although it’s third in the United States, Nestle is the market leader in Canada, Conner said in a footnote.

But the manufacturers pointed to historic patterns of price increases where one company raises its prices and competitors quickly follow, according to Conner.

“As an explanation for these pricing actions,” Conner said, “defendants cite to rising production and ingredient costs and posit that the increases were determined independently of one another, in a manner consistent with each company’s best interests.”

However, “plaintiffs alleged broadly that the overlap of economic, operational, and managerial factors between the two markets is ‘so extensive’ as to effectively eviscerate the border between the countries, merging the domestic and Canadian chocolate markets into a ‘single market.’ This theory quickly withered on the vine in the absence of any factual support,” Conner said.

The judge repeatedly noted the extent of discovery in the case and the absence of any concrete evidence of a price-fixing scheme.

“Despite diligent efforts on the part of plaintiffs counsel and nearly unfettered access to defendants’ records, plaintiffs are before the court with nothing more than speculation as to the who, what, when, where, and how of the communications that allegedly facilitated the parallel price increases,” Conner said. “Nothing scandalous or improper has been discovered within our borders, and no evidence permits a reasonable inference of a price-fixing agreement.”

Counsel for the Nestle defendants, Peter E. Moll of Cadwalader, Wickersham & Taft in Washington, D.C., said that, as the prevailing parties, the defendants are entitled to recover litigation costs.

As for the appeals, Moll declined to comment except to say, “The determination whether to appeal was one for the plaintiffs to make.”

Counsel for the Mars defendants, David Marx Jr. of McDermott Will & Emery in Chicago, and counsel for the Hershey defendants, William F. Cavanaugh Jr. of Patterson Belknap Webb & Tyler in New York, could not be reached for comment on the notices of appeal and bills of costs at press time.

Counsel for plaintiffs Kroger, Safeway, Walgreens, Hy-Vee, Albertsons, Great Atlantic and HEB, Scott E. Perwin of Kenny Nachwalter in Miami, could not be reached for comment.

Counsel for Giant Eagle, Bernard D. Marcus of Marcus & Shapira in Pittsburgh, and counsel for United Supermarkets, Lawrence A. Gaydos of Haynes and Boone in Dallas, also could not be reached.

Counsel for Meijer, Meijer Distribution, Publix, SuperValu and Affiliated Foods, Joseph M. Vanek of Vanek, Vickers & Masini in Chicago, and counsel for CVS, Longs, Rite Aid and Golub, Eric L. Bloom of Hangley Aronchick Segal Pudlin & Schiller in Harrisburg, also could not be reached.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI. •