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In re Wholesale Grocery Products Antitrust Litigation

United States Court of Appeals, Eighth Circuit

March 1, 2017

In re: Wholesale Grocery Products Antitrust Litigation
v.
SuperValu, Inc.; C&S Wholesale Grocers, Inc. Defendants-Appellees Colella's Super Market, Inc. Movant - Appellant In re: Wholesale Grocery Products Antitrust Litigation JFM Market, Inc.; MFJ Market, Inc. Plaintiffs - Appellants
v.
SuperValu, Inc. Defendant-Appellee

          Submitted: May 17, 2016

         Appeals from United States District Court for the District of Minnesota - Minneapolis

          Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

          RILEY, Chief Judge.

         Several retail grocers sued two large full-line wholesale grocers for violation of the Sherman Act, 15 U.S.C. §§ 1, et seq. The retailers sought to represent two putative classes, the Midwest class and the New England class. Each class had an Arbitration Subclass of retailers who had arbitration agreements with their respective wholesaler. The district court[1] dismissed the purported representatives of the Arbitration Subclasses from the case, and we reversed. See In re Wholesale Grocery Prods. Antitrust Litig., No. 09-MD-2090, 2011 WL 9558054, at *1 (D. Minn. July 5, 2011) (unreported); King Cole Foods, Inc. v. SuperValu, Inc. (In re Wholesale Grocery Prods. Antitrust Litig.), 707 F.3d 917, 919 (8th Cir. 2013).

         By then the district court had rejected the proposed Midwest and New England classes and granted the defendants' motion for summary judgment. See In re Wholesale Grocery Prods. Antitrust Litig., No. 09-MD-2090, 2012 WL 3031085, at *8 (D. Minn. July 25, 2012) (unreported); In re Wholesale Grocery Prods. Antitrust Litig., No. 09-MD-2090, 2013 WL 140285, at *1 (D. Minn. Jan. 11, 2013) (unreported). The Midwest class representative appealed, but the New England class representative did not. We reversed, ordering the district court to consider a narrower Midwest class. See D & G, Inc. v. SuperValu, Inc. (In re Wholesale Grocery Prods. Antitrust Litig.), 752 F.3d 728, 729, 736 (8th Cir. 2014). On remand, Colella's Super Market, Inc. (Colella) moved to intervene to join MFJ Market, Inc. and JFM Market, Inc. (collectively, Village Market), the New England Arbitration Subclass representative, in seeking to certify a narrower New England class. The district court denied the motion and announced it would not consider any new class of New England plaintiffs. Before us are Village Market's and Colella's consolidated appeals.[2]

         I. BACKGROUND

         In 2003, wholesale grocery suppliers SuperValu, Inc. (SuperValu) and C&S Wholesale Grocers, Inc. (C&S) (collectively, appellees or wholesalers) entered into an Asset Exchange Agreement (AEA). C&S had recently purchased Fleming Companies, Inc.'s (Fleming) Midwest wholesale grocery business assets out of bankruptcy. In the AEA, C&S sold Fleming to SuperValu and C&S purchased SuperValu's New England business. Among the assets exchanged were supply agreements and arbitration agreements between each wholesaler and a number of its retail customers (the swap). The AEA also contained allegedly secret reciprocal non-compete provisions. Several retailers sued SuperValu and C&S, alleging the AEA violated the Sherman Act, 15 U.S.C. §§ 1, et seq., because it unlawfully allocated the New England market to C&S and the Midwest market to SuperValu.

         The retailer-plaintiffs proposed two classes: Midwest SuperValu customers and New England C&S customers. DeLuca's Corporation (DeLuca) was the putative New England class representative and D&G, Inc. (D&G) was the putative Midwest class representative. Each class had an "Arbitration Subclass" of retailers who had arbitration agreements with their current wholesaler during the class period, and thus could only sue their pre-swap wholesaler. Village Market was the representative of the putative New England Arbitration Subclass.

         In July 2011, the Arbitration Subclasses were dismissed from the case, the district court having determined the nonsignatory defendants (the pre-swap wholesalers) could each enforce against the plaintiffs the arbitration agreements they had assigned to the other. See In re Wholesale Grocery Prods. Antitrust Litig., 2011 WL 9558054, at *3, *6. In February 2013, we reversed. See In re Wholesale Grocery Prods. Antitrust Litig., 707 F.3d at 919.

         By the time the Arbitration Subclasses were reinstated in February 2013, the class certification for the broader New England and Midwest classes had been denied, and the district court had granted summary judgment in favor of the defendants against D&G and DeLuca as individual plaintiffs (in July 2012 and January 2013, respectively). See In re Wholesale Grocery Prods. Antitrust Litig., 2012 WL 3031085, at *8; In re Wholesale Grocery Prods. Antitrust Litig., 2013 WL 140285, at *1. D&G appealed the summary judgment ruling, but DeLuca did not.

         In May 2014, we affirmed the district court's denial of the Midwest class certification, but reversed and remanded the grant of summary judgment against D&G, and ordered the district court to consider a narrower class of Midwest plaintiffs (Champaign class). See In re Wholesale Grocery Prods. Antitrust Litig., 752 F.3d at 736. The case was remanded on August 26, 2014, after rehearing and rehearing en banc were denied.

         The issues on remand were referred to a magistrate.[3] The issue of the Champaign class was pending, and an additional complaint had been filed by two putative classes of Midwest plaintiffs. Nemecek Markets, Inc. (Nemecek) proposed to represent a class of retailers serviced by SuperValu's Green Bay, Wisconsin, distribution center. Elkhorn-Lueptows, Inc., Jefferson Lueptows, Inc., and East Troy Lueptows, Inc. (collectively, Lueptows) proposed to represent a class of retailers serviced by SuperValu's Pleasant Prairie, Wisconsin, distribution center. On October 24, 2014, Colella moved to intervene to seek certification of a narrower New England class (Greater Boston class) in concert with Village Market, the New England Arbitration Subclass representative.

         The magistrate judge permitted the Midwestern Champaign, Nemecek, and Lueptows plaintiffs to seek certification of their narrower classes. The magistrate judge denied Colella's motion to intervene. The distinguishing factor was that the district court's rejection of the broader New England class had never been appealed. While we remanded the question of the Midwest class certification after D&G appealed, there was no such order relating to the New England class. The magistrate judge noted "Defendants have litigated this matter without the involvement of New England Plaintiffs since February 2013 and without Colella's involvement since the litigation's inception." The magistrate judge decided Colella's motion was untimely, and even if it were timely, Colella would have no right to intervene. The magistrate judge explained "Colella's has not provided reason for unduly delaying its attempt to intervene. . . . If an unnamed class member wished to appeal the . . . denial [of class certification], it would have been appropriate to seek intervention" within thirty days of the district court's order. Moreover, Colella was not entitled to intervene as a matter of right because it had no ...


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