United States District Court, D. Minnesota
In re Wholesale Grocery Products Antitrust Litigation This Order Relates to All Actions
Joseph Bruckner, Esq., Elizabeth R. Odette, Esq., and Kate M.
Baxter-Kauf, Esq., Lockridge Grindal Nauen PLLP, Minneapolis,
MN; Richard B. Drubel, Esq., Matthew J. Henken, Esq., and
Jonathan R. Voegele, Esq., Boies, Schiller & Flexner LLP,
Hanover, NH; and Daniel A. Kotchen, Esq., and Daniel L. Low,
Esq., Kotchen & Low LLP, Washington, DC, on behalf of the
T. Dangel III, Esq., Dangel & Mattchen, Edgartown, MA, on
behalf of Plaintiffs DeLuca's Market Corp., JFM Market,
Inc., and MJF Market, Inc.
R. Lueck, Esq., Stephen P. Safranski, Esq., Jeffrey S.
Gleason, Esq., Lisa L. Beane, Esq., Eric P. Barstad, Esq.,
and Geoffrey H. Kozen, Esq., Robins Kaplan LLP, Minneapolis,
MN, on behalf of Defendant SuperValu, Inc.
J. Lender, Esq., Eric S. Hochstadt, Esq., and Luna Ngan
Barrington, Esq., Weil, Gotshal & Manges LLP, New York,
NY; Erik T. Koons, Esq., Andrew L. Lucarelli, Esq., and Aaron
S. Rabinowitz, Esq., Baker Botts LLP, Washington, DC; and
Todd A. Wind, Esq., and Nicole M. Moen, Esq., Fredrikson
& Byron, PA, Minneapolis, MN, on behalf of Defendant
C&S Wholesale Grocers, Inc.
MONTGOMERY U.S. DISTRICT JUDGE.
November 26, 2018, the Clerk of Court entered two Cost
Judgments for Defendant C&S Wholesale Grocers, Inc.
(“C&S”) [Docket Nos. 1337, 1338] and two Cost
Judgments for Defendant SuperValu, Inc.
(“SuperValu”) [Docket Nos. 1339, 1340]. Motions
for review of the Cost Judgments have been filed by SuperValu
[Docket No. 1341], C&S [Docket No. 1345], Plaintiff
DeLuca's Corporation (“DeLuca's”) [Docket
No. 1351],  Plaintiffs JFM Market, Inc. and MFJ
Market, Inc. (collectively, “Village Market”)
[Docket No. 1358], and jointly by Village Market and
DeLuca's [Docket No. 1363]. For the reasons stated below,
SuperValu and C&S' Motions are granted in part and
denied in part, DeLuca's Motion is denied, Village
Market's Motion is granted in part and denied in part,
and the joint Motion by Village Market and DeLuca's is
granted in part and denied in part.
multi-district litigation consolidated four putative class
action lawsuits brought in 2009 by retail grocers in New
England and the Midwest. Plaintiffs alleged that Defendants
C&S and SuperValu conspired to allocate customers and
territories in the New England and Midwest wholesale grocery
markets, and that Defendants used the allocation to eliminate
competition and charge the retailers supra-competitive
prices. Second Consol. Am. Class Action Compl. [Docket No.
99] ¶¶ 34-44.
Consolidated Class Action Complaint alleged two broad
putative classes: (1) retailers who purchased products or
related services from Defendants in the Midwest market (the
“Midwest Class”); and (2) retailers who purchased
such products or services in the New England market (the
“New England Class”). See id. ¶ 67.
Retailer D&G, Inc. (“D&G”) was a named
plaintiff in the Midwest Class, and DeLuca's was a named
plaintiff in the New England Class. Id. ¶ 71.
Both classes included a subclass of retailers who were party
to an arbitration agreement with a Defendant during the class
period. Id. Village Market was a named plaintiff in
the New England arbitration subclass. Id.
December 2009, the Court entered a pretrial order appointing
three firms as Co-Lead Counsel in this case. See
Pretrial Order No. 1 [Docket No. 15]. Among the firms
appointed as Co-Lead Counsel was DeLuca's
2011, while the parties were engaged in fact discovery, the
Court dismissed the claims of Village Market and other
arbitration subclass plaintiffs in favor of arbitration, and
continued adjudicating the claims of the two lead plaintiffs,
D&G and DeLuca's. See In re Wholesale Grocery
Prods. Antitrust Litig., No. 09-MD-2090, 2011 WL
9558054, at *3-*4 (D. Minn. July 5, 2011). Village Market
appealed the dismissal of its claims to the Eighth Circuit.
16, 2012, this Court denied class certification of both
proposed classes, determining that the plaintiffs could not
show class-wide impact through common evidence. See In re
Wholesale Grocery Prods. Antitrust Litig., No.
09-MD-2090, 2012 WL 3031085 (D. Minn. July 25, 2012)
(redacted). The Court found that the “formulaic
nature” of SuperValu's pricing method used in the
Midwest market made a better case for certification of the
Midwest Class than the New England Class. Id. at
*16. Nevertheless, the Midwest Class could not prove impact
by common evidence because each of SuperValu's
distribution centers across the Midwest inserted different
values into the pricing formula, requiring an analysis of
each distribution center's fees and competitive
conditions. Id. Following this ruling, D&G
requested leave to move for certification of a narrower
Midwest class of grocers who were charged using formulaic
pricing and supplied by SuperValu's Champaign, Illinois
distribution center. See Letter, Aug. 31, 2012
[Docket No. 362] (“August 2012 Letter”).
DeLuca's made no request for a narrower New England
January 11, 2013, the Court granted summary judgment for
C&S and SuperValu against D&G and DeLuca's.
In re Wholesale Grocery Prods. Antitrust Litig., No.
09-MD-2090, 2013 WL 140285 (D. Minn. Jan. 11, 2013). Based on
the grant of summary judgment to Defendants, the Court denied
D&G's request for renewed class certification of the
narrower Midwest Class as moot. Id. at *15. D&G
appealed both the summary judgment ruling and the denial of
Midwest class certification. Notice of Appeal [Docket No.
429]. DeLuca's did not appeal the January 2013 Order.
February 13, 2013, while the summary judgment and Midwest
Class certification appeal was pending, the Eighth Circuit
reversed the dismissal of the arbitration subclass plaintiffs
and remanded with instructions to consider whether some of
these plaintiffs' arbitration agreements, including
Village Market's agreement, were enforceable under a
“successor-in-interest” theory. King Cole
Foods, Inc. v. SuperValu, Inc., 707 F.3d 917 (8th Cir.
2013). This Court later ruled, and the Eighth Circuit
affirmed, that arbitration was not compelled under a
successor-in-interest theory. See In re Wholesale Grocery
Prods. Antitrust Litig., No. 09-MD-2090, 2015 WL 1191826
(D. Minn. March 16, 2015); aff'd, In re
Wholesale Grocery Prod. Antitrust Litig., 850 F.3d 344,
348 (8th Cir. 2017), amended (May 1, 2017).
February 15, 2013, SuperValu and C&S timely filed Bills
of Costs against D&G and DeLuca's. See
SuperValu 2013 Bill of Costs [Docket No. 439]; C&S 2013
Bill of Costs [Docket No. 440]. Due to the pendency of
D&G's appeal and the remand of Village Market and
other plaintiffs' claims at that time, the Court held the
2013 Bills of Costs in abeyance.
2014, the Eighth Circuit reversed summary judgment against
D&G and remanded to the district court to consider
whether to certify a narrower class of Midwest Plaintiffs
that was based on which Midwest distribution center a
plaintiff utilized. See In re Wholesale Grocery Prod.
Antitrust Litig., 752 F.3d 728 (8th Cir. 2014).
the reversal of summary judgment against D&G, the Midwest
Plaintiffs' claims proceeded on a different schedule than
the New England Plaintiffs' claims. See Letter,
Oct. 3, 2014 [Docket No. 487] at 2. Additionally, the Midwest
Plaintiffs continued to be represented by Lead Counsel, but
New England plaintiff Village Market was represented by its
individual counsel, Dangel & Mattchen. Id.
Nevertheless, the New England and Midwest Plaintiffs agreed
to coordinate discovery of their cases. Id.
September 7, 2016, the Court certified five classes of
Midwest Plaintiffs. See Mem. Op. Order, Sept. 7,
2016 [Docket No. 647]. In July 2017, a settlement was reached
between D&G on behalf of the Champaign DC Non-Arbitration
Class and Supervalu. Under the Settlement Agreement [Docket
No. 823, Attach. 1], SuperValu agreed to pay $8.75 million,
and further agreed that “with respect to the Action,
including this Settlement Agreement, Supervalu shall bear its
own costs and attorneys' fees.” Settlement
Agreement at 16. In return, D&G and the Champaign
Non-Arbitration Class agreed to release their claims against
SuperValu. Id. at 9, 11. The Court granted final
approval of the Settlement Agreement on November 16, 2017.
See Order Granting Mot. Final Approval Settlement
[Docket No. 897]. The Midwest Plaintiffs continued to
litigate their claims against C&S, and Village Market
continued to litigate its claims against SuperValu.
April 2018, the Court held a jury trial on the Midwest
Plaintiffs' claims against C&S. The jury returned a
verdict for C&S on April 19, 2018. An amended final
judgment for C&S was entered on May 23, 2018. Am. J.
[Docket No. 1273]. C&S timely filed a 2018 Bill of Costs
[Docket No. 1270] against the Midwest Plaintiffs and renewed
its request for the costs itemized in its 2013 Bill of Costs.
27, 2018, the Court granted summary judgment to SuperValu on
Village Market's claims. Redacted Mem. Op. Order [Docket
No. 1308]. Judgment for SuperValu was entered on July 30,
2018. J. [Docket No. 1304]. SuperValu timely filed a 2018
Bill of Costs [Docket No. 1317] against Village Market and
renewed its request for the costs itemized in its 2013 Bill
November 26, 2018, the Court entered Cost Judgments on
Defendants' 2013 and 2018 Bills of Costs as follows:
Bill of Cost
Midwest Plaintiffs, DeLuca's
Village Market, DeLuca's
to review the Cost Judgments have been filed by DeLuca's,
Village Market, and both Defendants.
Rule of Civil Procedure 54(d)(1) provides in relevant part:
“Unless a federal statute, these rules, or a court
order provides otherwise, costs-other than attorney's
fees-should be allowed to the prevailing party.” A cost
award must, however, fit within the categories of taxable
costs enumerated in 28 U.S.C. § 1920. Little Rock
Cardiology Clinic PA v. Baptist Health, 591 F.3d 591,
601 (8th Cir. 2009). The Supreme Court has emphasized that
taxable costs under § 1920 “are limited to
relatively minor, incidental expenses, ” and “are
a fraction of the nontaxable expenses borne by litigants for
attorneys, experts, consultants, and investigators.”
Taniguchi v. Kan.Pac. Saipan, Ltd., 566 U.S. 560,
the district court has discretion in awarding costs,
“the Rules presume that the prevailing party is
entitled to costs.” Lochridge v. Lindsey Mgmt.
Co., 824 F.3d 780, 783 (8th Cir. 2016) (quoting
Reger v. Nemours Found., Inc., 599 F.3d 285, 289 (3d
Cir. 2010)). A losing party bears the burden of overcoming
the presumption that the prevailing party may recover all of
its allowable costs. Stanley v. Cottrell, Inc., 784
F.3d 454, 464 (8th Cir. 2015). A district court reviews a
clerk's taxation of costs de novo. Farmer v. Arabian
Am. Oil Co., 379 U.S. 227, 233 (1964).
C&S' Cost Judgments
for review of C&S' Cost Judgments have been filed by
DeLuca's and C&S.
DeLuca's Motion for Review
seeks review of the Cost Judgment awarding $33, 585.07
jointly and severally against DeLuca's and the Midwest
Plaintiffs for amounts claimed in C&S' 2013 Bill of
Costs. See Cost Judgment [Docket No. 1337].
DeLuca's argues that it should not be held liable on the
Cost Judgment. DeLuca's states that the Midwest
Plaintiffs do not object to DeLuca's being removed as a
contends it is not liable on the Cost Judgment because: its
counsel did not play a prominent role in determining what
discovery would be sought; the only discovery costs
DeLuca's incurred were $1, 015.50 for its own deposition;
and DeLuca's stood to gain only a fraction of the damages
sought by the Midwest and New England classes.
further argues that it could face financial ruin if it is
held jointly and severally liable with the Midwest
Plaintiffs. DeLuca's argues that if the Midwest
Plaintiffs appeal the Cost Judgments and seek a stay, or if
Eighth Circuit reverses the judgment against the Midwest
Plaintiffs, then C&S would be allowed to seek full costs
against DeLuca's and potentially put it out of business.
DeLuca's asks to be removed from the Cost Judgment so
that it may “be free from the risk and worry of perhaps
being left alone to pay all of the costs.” DeLuca's
Mem. Supp. Mot. Review [Docket No. 1352] at 4.
opposes the Motion, arguing that DeLuca's actively
participated in this case from 2009 to 2013 and should be
held jointly and severally liable for the costs C&S
incurred to defend this action during that time. C&S also
argues that financial hardship does not release DeLuca's
from the Cost Judgment.
Eighth Circuit, “[j]oint and several liability for
costs is the general rule unless equity otherwise
dictates.” Concord Boat Corp. v. Brunswick
Corp., 309 F.3d 494, 497 (8th Cir. 2002). Individual pro
rata liability is “inconsistent with the presumption
embodied in Rule 54(d) of the Federal Rules of Civil
Procedure that a prevailing party is entitled to recover all
of its costs, ” because pro rata liability shifts the
expense of collection and the risk of noncollection to the
prevailing party. Id. In circumstances where all
plaintiffs “were represented by the same counsel, had
common theories of liability, and sought the same discovery,
” joint liability is appropriate because no individual
plaintiff can be considered to have generated more costs than
any other. Id. Even if individual plaintiffs seek
varying amounts of damages, an exception to joint and several
liability is not justified because such an exception would
swallow the default rule. Id.
has not met its burden of showing that the Court should
depart from the default rule of joint and several liability.
Contrary to DeLuca's arguments that its counsel had a
minimal role in determining the discovery to be sought and
that it incurred almost no discovery costs, DeLuca's
chosen counsel-Meredith Cohen Greenfogel & Skirnick, P.C.
-sought the position and was appointed as co-lead counsel in
this multidistrict litigation in 2009, and was expressly
responsible for coordinating discovery and other activities.
See Pretrial Order No. 1 at 3-4. Additionally,
DeLuca's asserted the same theory of liability as all
other plaintiffs and benefitted from the discovery obtained
on behalf of all plaintiffs. That DeLuca's may have been
seeking less damages than other plaintiffs does not warrant
an exception to the default rule of joint and several
liability. See Concord Boat, 309 F.3d at 497
(“The district court's reason for allocating costs
individually-that the [plaintiffs] sought varying amounts of
damages-is not a sufficient reason to depart from [the
unpersuasive is DeLuca's argument that it will
potentially suffer financial hardship if the Midwest
Plaintiffs prevail on appeal and DeLuca's is forced to
pay the Cost Judgment on its own. DeLuca's has not
provided an affidavit or other evidence showing that it is
financially incapable of satisfying the Cost Judgment, and
even if it had, financial hardship is not a defense to a cost
award. See In re Derailment Cases, 417 F.3d 840, 845
(8th Cir. 2005) (citing cases where costs were awarded
against “indigent prisoners” and an individual
plaintiff with “limited financial resources”).
Additionally, although “[j]oint and several liability
should not unfairly force any [individual plaintiff] to bear
the costs alone, ” the solution is not to shift the
risk of noncollection to the prevailing party by allocating
costs individually. Concord Boat, 309 F.3d at 497.
Rather, the losing parties should “allocate the risk of
costs among themselves, ” and “any party
satisfying the judgment ...