Submitted: May 17, 2016
from United States District Court for the District of
Minnesota - Minneapolis
RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
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 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.
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.
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
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.
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.
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.
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.
issues on remand were referred to a magistrate. 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.
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