Alleged Conspiracy in Antitrust Litigation

Edgeworth Chief Executive Officer Dr. John H. Johnson, working with Partner Matthew Milner, was retained by grocery wholesalers in an alleged conspiracy litigation matter.

C&S and SuperValu are two of the largest grocery wholesalers in the United States. The plaintiffs — retail grocers — alleged that C&S and SuperValu conspired by way of a 2003 Asset Exchange Agreement (the “AEA”) and ancillary non-competition covenants to allocate territories and customers. In the AEA, C&S acquired SuperValu’s New England wholesale grocery business and SuperValu acquired, from C&S, the former Midwest wholesale grocery business of Fleming, another major wholesaler that had gone bankrupt and which C&S had acquired in the bankruptcy proceeding. Plaintiffs claimed they were charged supra-competitive prices for wholesale grocery products and services as a result of the alleged conspiracy.

Dr. Johnson and Mr. Milner demonstrated the invalidity of plaintiffs’ assumption of class-wide impact by presenting analyses of actual transaction prices and pricing negotiations between the defendants and retailers. Minneapolis District Court Judge Anne D. Montgomery found that none of plaintiffs’ proposed methods for establishing class-wide impact was capable of doing so. The judge agreed with defendants and Dr. Johnson that “[t]he facts and circumstances of this case — with the potential for numerous factors affecting both the price each customer would receive in a competitive environment and the price each customer actually received — require a more searching analysis than merely assuming prices would rise for every class member because competition was reduced overall.”


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