UNITED STATED DISTRICT COURT DISTRICT OF MASSACHUSETTS · UNITED STATED DISTRICT COURT DISTRICT OF...

UNITED STATED DISTRICT COURTDISTRICT OF MASSACHUSETTS

Barry K. Winters d/b/a BKW Farms,Stacy Preston Winters,Paul D. Sogn and Rachelle D. Sogn d/b/aWintersogn Farm, LLCMichael A. Webb,Rickard W. Jackson,Jackson Farms, Inc.,James M. Schaer,Julie A. Schaer,Scott R. Vierck,Fred P. Bussmann,John L. Meyer,John L. Meyer Cranberries, Inc.,Christian M. Bussmann, andDeanna M. Bussmann,Charles V. Goldsworthy and Timothy R.Goldsworthy d/b/a ThunderLake-TomahawkCranberries, Inc., andH.E. Querry, Inc., on behalf of themselves andall other similarly situated as a class,

Plaintiffs,v.

Ocean Spray Cranberries, Inc., an agriculturalcooperative, andOcean Spray Brands, LLC, a limited liabilitycompany,

Defendants.

C.A. 1:12-CV-12016-RWZ

Honorable Rya W. Zobel

PLAINTIFFS’ MEMORANDUM IN OPPOSITIONTO DEFENDANTS’ MOTION TO DISMISS

Case 1:12-cv-12016-RWZ Document 53 Filed 04/08/13 of 25

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TABLE OF CONTENTS

INDEX OF AUTHORITIES......................................................................................................... iii

INTRODUCTION ......................................................................................................................... 1

STANDARD OF REVIEW ........................................................................................................... 2

ARGUMENT................................................................................................................................. 2

I. “MUTUAL BENEFIT” MEANS SHARING IN THE PROFITS ONSUBSTANTIALLY THE SAME FOOTING AND DISTRIBUTING THELARGEST RETURN POSSIBLE TO THE COOPERATIVE’SGROWERS………………………………………………………………………..2

A. “Mutual Benefit” Means Cooperative Members are to “Share in theProfits on Substantially the Same Footing.”………………………………2

B. Ocean Spray Cranberries Is Not Operating for the Mutual Benefit ofthe B Pool Growers, and Is Not Entitled to AntitrustImmunity…………………………………………………………………..5

C. Plaintiffs Can Assert Claims Based on Ocean Spray Cranberries’ Failureto Adhere to Capper-Volstead’s “Mutual Benefit” Requirement…………6

II. PLAINTIFFS HAVE PROPERLY ALLEGED CLAIMS UNDERCHAPTER 93A…………………………………………………………………...9

A. Defendants’ Discriminatory and Retaliatory Termination of B PoolContracts is Actionable Under Chapter 93A…………………………….11

III. PLAINTIFFS’ ANTITRUST ALLEGATIONS ARE SUFFICIENT TOSURVIVE A MOTION TO DISMISS…………………………………………..12

A. Plaintiffs Have Alleged A Conspiracy Involving Ocean SprayBrands. ..................................................................................................... 12

B. Plaintiffs Have Alleged Exclusionary Conduct, Antitrust Injury, andCausation………………………………………………………………..15

C. Defendants’ Pricing Structure Harms Competition and Violatesthe Antitrust Laws………………………………………………………17

IV. THE B POOL PLAINTIFFS HAVE STANDING TO ENFORCE THEFINAL JUDGMENT……………………………………………………………18

V. COUNTS VII AND XII ASSERT CAUSES OF ACTION SEPARATE FROMTHE OTHER COUNTS OF THE COMPLAINT……………………….……19

CONCLUSION............................................................................................................................ 20


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INDEX OF AUTHORITIES

Page(s)CASES

Allen v. Dairy Farmers of Am., Inc., 748 F. Supp. 2d 323 (D. Vt. 2010)........4, 5, 6, 13, 15, 16, 17

Am. Needle, Inc. v. NFL, 130 S. Ct. 2201 (2010) ..........................................................................15

Appraisers Coal. v. Appraisal Inst., 845 F. Supp. 592 (N.D. Ill. 1994) ........................................15

Commercial Union Ins. Co. v. Seven Provinces Ins. Co., 217 F.3d 33 (1st Cir. 2000)...................9

Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733 (2008) ..............................................9, 10

Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690 (1962)............................13

Copperweld Corp v. Independence Tube Corp., 467 U.S. 752 (1984)....................................14, 15

Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760 (1986) ...................................10

Grant v. News Group Boston, Inc., 55 F.3d 1 (1st Cir. 1995) .........................................................2

Herold v. Park View Building & Loan Ass’n, 210 F. 577 (3d Cir. 1914)........................................3

In re Fresh & Process Potatoes Antitrust Litig., 2012 WL 3067580 (D. Idaho July 27,2012) ........................................................................................................................................15

In re Mushroom Direct Purchaser Antitrust Litig., 514 F. Supp. 2d 683 (E.D. Pa. 2007)....5, 6, 16

Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979 (9th Cir. 2000) .....................................17

Liu v. Amerco, 677 F.3d 489 (1st Cir. 2012) .......................................................................9, 10, 19

Marketing Assistance Plan, Inc. v. Associated Milk Products, Inc., 338 F. Supp. 1019(S.D. Tex. 1972).........................................................................................................................8

Md. & Va. Milk Producers Ass’n v. United States, 362 U.S. 458 (1960)..................................5, 14

Morris v. BAC Home Loans Servicing, L.P., 775 F. Supp. 2d 255. (D. Mass. 2011)....................10

Nat’l Broiler Mktg. Ass’n v. United States, 436 U.S. 816 (1978)....................................................6

Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1 (1st Cir. 2011) ............................................2, 13

Processed Egg, 821 F. Supp. 2d ....................................................................................................13

Quincy Cablesystems, Inc. v. Sully’s Bar, Inc., 684 F. Supp. 1138 (D. Mass. 1988)................9, 10


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Ripplemeyer v. Nat'l Grape Co-op. Ass'n, Inc., 807 F. Supp. 1439 (W.D. Ark. 1992) ...........11, 12

SEC v. Prudential Securities, Inc., 136 F.3d 153 (D.C. Cir. 1998) ...............................................18

Standard Oil Co. of N.J. v. United States, 221 U.S. 1 (1911)..........................................................3

Sullivan v. NFL, 34 F.3d 1091 (1st Cir. 1994).........................................................................16, 17

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ...............................................13

United States v. Merriam, 263 U.S. 179 (1923) ..............................................................................3

United States v. Munoz-Franco, 487 F.3d 25 (1st Cir. 2007)........................................................13

United States v. Rock Royal Co-Op., Inc., 307 U.S. 533 (1939) .....................................................4

STATUTES

7 U.S.C. § 291..................................................................................................................................2

7 U.S.C. § 2301..............................................................................................................................11

7 U.S.C. § 2303(c) .........................................................................................................................11

Agricultural Fair Practices Act, 7 U.S.C. § 2301, et seq. ....................................................9, 11, 12

Tariff Act, 36 Stat. 112 ....................................................................................................................3

COURT RULES

Fed. R. Civ. P. 12(b)(6)................................................................................................................1, 2

Fed. R. Civ. P. 15(a) ..................................................................................................................2, 19

Fed. R. Civ. P. 71...........................................................................................................................19

Rule 8(a)(2) ......................................................................................................................................2


1

INTRODUCTION

Defendants’ motion to dismiss relies on both an inaccurate depiction of Plaintiffs’

allegations and a selective disregard of the legal authorities that directly undermine Defendants’

arguments. Contrary to Defendants’ contentions, Plaintiffs have clearly and sufficiently alleged

their legal claims. Plaintiffs specifically allege that although Defendant Ocean Spray

Cranberries, Inc. (“Ocean Spray”) markets both A and B Pool members’ cranberries, Ocean

Spray does not distribute the returns obtained from the growers’ identical fruit in a mutually

beneficial fashion. Rather, Ocean Spray’s pricing structure operates to obtain higher prices for

the A pool growers at the B pool growers’ expense, thereby depriving the B Pool of the “mutual

benefit” required under the Capper-Volstead Act. Further, Plaintiffs’ Complaint alleges that

Defendants Ocean Spray and Ocean Spray Brands, LLC (“Ocean Spray Brands”), along with the

cooperative’s managers and board of directors (all members of the A Pool), conspired to obtain

higher profits for Ocean Spray’s branded products, and that Defendants’ anti-competitive and

predatory price fixing has forced independent cranberry growers to either join Ocean Spray’s

disfavored B Pool or to exit the cranberry market altogether. Finally, the Complaint alleges that

Ocean Spray manipulates supply and demand in the cranberry market through its predatory

pricing policies, its sham “auctions,” and the discriminatory B Pool structure. The allegations set

forth in Plaintiffs’ Complaint are more than sufficient to survive a motion to dismiss under Fed.

R. Civ. P. 12(b)(6).

Because of Defendants’ myopic reading of both Plaintiffs’ Complaint and the legal

authorities is insufficient to carry Defendants’ heavy burden under Fed. R. Civ. P. 12(b)(6), this

Court must deny Defendants’ motion.


2

STANDARD OF REVIEW

“Dismissal of a complaint pursuant to Rule 12(b)(6) is inappropriate if the complaint

satisfies Rule 8(a)(2)’s requirement of ‘a short and plain statement of the claim showing that the

pleader is entitled to relief.’” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir.

2011) (quoting Fed. R. Civ. P. 8(a)(2)). A “short and plain” statement needs only enough detail

to provide defendant with fair notice of the nature of the claim and the grounds upon which it

rests, and must contain enough factual material “to raise a right to relief above the speculative

level on the assumption that all the allegations in the complaint are true (even if doubtful in

fact).” Id. “The make-or-break standard . . . is that the combined allegations, taken as true, must

state a plausible, not a merely conceivable, case for relief.” Id. (quoting Sepulveda-Villarini v.

Dep’t of Educ. of P.R., 628 F.3d 25, 30 (1st Cir. 2010)). The relevant inquiry when considering

a 12(b)(6) motion focuses on the reasonableness of the inference of liability that the plaintiff is

asking the court to draw from the facts alleged in the complaint. Id. at 13. Rule 15(a) provides

that “leave [to amend] shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a)(3);

see also Grant v. News Group Boston, Inc., 55 F.3d 1, 5 (1st Cir. 1995).

ARGUMENT

I. “MUTUAL BENEFIT” MEANS SHARING IN THE PROFITS ONSUBSTANTIALLY THE SAME FOOTING AND DISTRIBUTING THELARGEST RETURN POSSIBLE TO THE COOPERATIVE’S GROWERS.

A. “Mutual Benefit” Means Cooperative Members are to “Share in the Profitson Substantially the Same Footing.”

The Capper-Volstead Act (“Capper-Volstead” or “Act”) requires agricultural

cooperatives to be “operated for the mutual benefit of the members, thereof, as such

producers.” 7 U.S.C. § 291 (emphasis added). Defendants argue that the phrase “mutual

benefit” under the Capper-Volstead Act does not mean that payments to all of Defendants’


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members must be substantially equal. Rather, they read the phrase as if it did not include the

word “mutual,” and argue that “mutual benefit of the members” means the same as “benefit of

the members.” From this, Defendants assert that as long as non-growers do not receive the

benefit of the cooperative’s sales, Defendants are in compliance with the Act’s “mutual benefit”

requirement and are immunized from antitrust liability. These arguments are unsupported both

by the law and Congressional intent.

Less than ten years before Congress enacted Capper-Volstead, the Third Circuit

interpreted the phrase “mutual benefit” in the Tariff Act, 36 Stat. 112:

Congress intended the word ‘mutual’ to mean ‘substantially equal,’ and that abuilding association is organized and operated according to the mutual benefit ofits members when they share in the profits on substantially the same footing.Exact equality is probably not possible . . . but an approximate equality,sufficiently close for all purposes, is certainly not beyond the reach ofcalculation.

Herold v. Park View Building & Loan Ass’n, 210 F. 577, 582 (3d Cir. 1914) (emphasis added).1

Congress is presumed to have intended this meaning of “mutual benefit” when it enacted the

Capper-Volstead Act.2 United States v. Merriam, 263 U.S. 179, 187 (1923); Standard Oil Co. of

N.J. v. United States, 221 U.S. 1, 59 (1911).

1 The court rejected the district court’s ruling that the “word ‘mutual’ cannot always beconsidered a synonym of ‘equal.’” Parkview Bldg. & Loan Ass’n v. Herold, 203 F. 876, 879(1913).2 Contrary to Defendants’ argument, Waters and Alexander do not stand for the proposition thatthe Act “does not mandate a cooperative make equal payments to all of its members.” ECF # 48at 12. None of the plaintiffs in those cases alleged, as Plaintiffs do here, that they were not paidon an equal basis with other cooperative members. Rather, the courts were asked to determine if,when a cooperative creates another entity through which the cooperative’s members are paid, theAct’s “mutual benefit” requirement is violated. Alexander v. Nat’l Farmers Org., 687 F.2d 1173,1184-85 (8th Cir. 1982) (describing claims brought in Alexander and Waters v. Nat’l FarmersOrg., Inc., 328 F. Supp. 1229 (S.D. Ind. 1971)).


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After Capper-Volstead’s enactment, the Supreme Court further clarified that “mutual

benefit” as used in the Act meant distributing the largest return possible to the cooperative’s

members:

The producer cooperative seeks to return to its members the largest possibleportion of the dollar necessarily spent by the consumer for the product withdeductions only for modest distribution costs, without profit to the membershipcooperative and with limited profit to the stock cooperative. It is organized byproducers for their mutual benefit. For that reason, it may be assumed thatit will seek to distribute the largest amount to its patrons.

United States v. Rock Royal Co-Op., Inc., 307 U.S. 533, 564 (1939) (emphasis added). 3

Defendants’ argument that “mutual benefit” means “only” that producers—as opposed to

non-growers—should receive the financial benefits of the cooperative (ECF # 48 at 12)

contradicts Supreme Court precedent:

Nor does the proviso in § 1 – “[t]hat such associations are operated for the mutualbenefit of the members thereof” – broaden the earlier language. That provision,in conjunction with the other prerequisites for qualification under the Act . . . wasdesigned to insure that qualifying associations be truly organized andcontrolled by, and for, producers. In short, Congress was aware that evenorganizations of producers could serve a purpose other than the mutualobtaining of a fair return to their members, as producers, or be controlled bypersons other than producers, and the proviso adds a measure of insurance thatsuch organizations do not gain the Act’s benefits.

Case-Swayne Co. v. Sunkist Growers, Inc.¸ 389 U.S. 384, 393-94 (1967) (emphasis added).4

Defendants’ narrow construction of “mutual benefit” is further undermined by a recent district

3 The Supreme Court used the phrase “uniform price” to refer to a provision in the milkmarketing order at issue in the case. Rock Royal, 307 U.S. at 554-55, 560. The marketing orderexempted agricultural cooperatives that qualified under the Capper-Volstead Act from theorder’s uniform price provision. Id. at 542 n.4. Some milk producers argued the exemption fromthe uniform price provision was discriminatory. The Court rejected the argument: “We do notfind an unreasonable discrimination in excepting producers’ cooperatives from the requirementsto pay a uniform price.” Id. at 565.4 Defendants’ argument is not saved by their selective and biased excerpting of this passage. SeeECF # 48 at 12 (“noting that Congress intended the ‘mutual benefit’ condition only ‘to insurethat qualifying associations be truly organized and controlled by, and for, producers’”) (emphasisadded).


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court ruling that a cooperative was not acting for the mutual benefit of its members when it

depressed the members’ prices. See Allen v. Dairy Farmers of Am., Inc., 748 F. Supp. 2d 323,

346 (D. Vt. 2010).5 Plaintiffs have likewise alleged that Ocean Spray’s A and B Pool structure

serves a purpose other than the mutual obtaining of a fair return for a subset of its membership

(the B Pool). ECF # 44, ¶¶ 27-28, 32, 40, 42-51, 71, 73-80.

B. Ocean Spray Cranberries Is Not Operating for the Mutual Benefit of the BPool Growers, and Is Not Entitled to Antitrust Immunity.

Capper-Volstead was not intended to create an absolute shield from antitrust liability for

agricultural cooperatives, and cooperatives are not immune when they engage in predatory,

competition-stifling practices directed at restraining trade or monopolizing the market by

unlawful means. Md. & Va. Milk Producers Ass’n v. United States, 362 U.S. 458, 465-66

(1960). Plaintiffs have alleged that Defendants engaged in anticompetitive and predatory

practices to eliminate the independent cranberry growers from the market or force them to join

the cooperative. ECF # 44, ¶¶ 27, 49-50, 53-54, 56, 81-90. Plaintiffs have also alleged that

Defendants depressed the price of commodities to the detriment of the B Pool and the benefit of

the A Pool. ECF # 44, ¶¶ 27-33, 38-51, 70-80. Plaintiffs’ allegations are sufficient to survive a

motion to dismiss. See Allen, 748 F. Supp. 2d at 346; In re Mushroom Direct Purchaser

Antitrust Litig., 514 F. Supp. 2d 683, 694 (E.D. Pa. 2007).6

5 The court in Allen held: “Here, plaintiffs have pled their way around Capper-Volsteadimmunity sufficient to survive a motion to dismiss. They allege that [the cooperative] does notqualify as a Capper-Volstead entity . . . and that the members of [a pricing agency comprised ofdefendant and four other cooperatives] have not acted for their dairy farmer members’benefit but rather have agreed to fix, reduce, stabilize or maintain at artificially depressed valuesthe over-order premiums paid to dairy farmers in the Northeast.” 748 F. Supp. 2d at 346 (internalquotes omitted) (emphasis added).6 As the court stated in In re Mushroom, the “Act and its legislative history do not suggest acongressional desire to vest cooperatives with unrestricted power to restrain trade or to achieve amonopoly by preying on independent producers . . . intent on carrying on their own businesses intheir own legitimate way.” 514 F. Supp. 2d at 694 (internal citations omitted).


6

Furthermore, Defendants have not shown they are entitled to Capper-Volstead’s

affirmative defense. Defendants simply argue that Plaintiffs have not adequately alleged that the

immunity does not apply. ECF # 48 at 12. Because Defendants have not met their burden to

prove the affirmative defense applies, Defendants’ motion should be denied. Allen, 748 F. Supp.

2d at 345 n. 17; In re Mushroom, 514 F. Supp. 2d at 692-94.

C. Plaintiffs Can Assert Claims Based on Ocean Spray Cranberries’ Failure toAdhere to Capper-Volstead’s “Mutual Benefit” Requirement.

Plaintiffs’ Complaint alleges that Ocean Spray—a cooperative that unquestionably avails

itself of Capper-Volstead’s antitrust exemptions—has violated the Act’s “mutual benefit”

requirement by discriminating against members of the cooperative’s B Pool and by paying the B

Pool less for its cranberries than what is received by the cooperative’s A Pool. ECF # 44, ¶¶ 27-

33, 39-51, 70-80. Because Defendants do not treat the B Pool in substantially the same way as

the A Pool, the B Pool has been financially harmed. Id. at ¶¶ 47, 49-50, 80.

Defendants’ argument that they can violate the Act with impunity and that a cause of

action under the Capper-Volstead Act is “legally baseless” ignores the cooperative principles

justifying the Act’s enactment. Indeed, the factual allegations underlying Plaintiffs’ Capper-

Volstead claim are precisely the type of financial inequalities among cooperative members that

the Act’s mutual benefit requirement prohibits. These claims exist separate and apart from

Plaintiffs’ antitrust claims.

Congress enacted Capper-Volstead to protect the grower-members of cooperatives,

allowing farmers to shore up their economic power so they could “bolster their market strength

and to improve their ability to weather adverse economic periods.” Nat’l Broiler Mktg. Ass’n v.


7

United States, 436 U.S. 816, 824-26 (1978).7 The Capper-Volstead’s focus on shoring up

individual farmers’ strength through a collective association of farmers leaves little doubt that

the financial benefit that the Act contemplates must be enjoyed uniformly among cooperative

members. As the Supreme Court notes, the “mutual benefit” requirement acts as a “watchdog” to

insure cooperatives are not harming their own members: it “was designed to insure that

qualifying associations be truly organized and controlled . . . for [] producers” and “the proviso

adds a measure of insurance that [other] organizations do not gain the Act’s benefits.”

Case-Swayne, 389 U.S. at 393-94 (emphasis added). The Supreme Court’s description of the

purpose behind the inclusion of the phrase “mutual benefit” in the Act demonstrates that

Congress contemplated a private cause of action. By detailing the ways in which Ocean Spray’s

cooperative works not for the uniform benefit of its members but, rather, for the benefit of the A

Pool members at the expense of B Pool members, Plaintiffs’ Complaint states a cognizable cause

of action under the Capper-Volstead Act.

Defendants fail to cite to any decision holding that a private cause of action does not exist

under the Act. Neither the express language of the statute nor the legislative intent supporting it

suggests that the Act prohibits a private cause of action.8 Further, at least one federal court has

7 See also Alexander, 687 F.2d at 1185 (“The unmistakable purpose of the Capper-Volstead Actis to permit farmers . . . to band together and benefit economically from collective marketingof their products.” (emphasis added)); Sunkist Growers, Inc. v. F.T.C., 464 F. Supp. 302, 309(C.D. Cal. 1979) (recognizing that the purpose of Capper-Volstead is to improve the bargainingposition of farmers to increase farm income); 61 Cong. Rec. 1043 (1921) (“[t]he purpose of thisbill is to enable the farmers to organize in associations maintaining selling agencies and doinganything else that is necessary to enable them to increase the prices of their products”(emphasis added)); 62 Cong. Rec. 2059 (Senator Capper) (“[c]ooperation will . . . yield largerreturns to the man who produces by eliminating much of the excessive cost of distributionunder the present system in which speculation plays so dominant a part” (emphasis added)).8 Defendants’ reliance on In re Processed Egg Products is not dispositive. The court in that casesimply noted that there is no evidence that “Congress intended to create a cause of action that isexclusively federal and could serve as the basis for removal, or that Congress intended thesestatutes to completely preempt state remedies.” 836 F. Supp. 2d 290, 301-02 (E.D. Pa. 2011)(emphasis added). The court did not hold that there was no private cause of action under the Act,as that question was not before it.


8

allowed cooperative members to pursue claims for violations of the Act. In Marketing Assistance

Plan, Inc. v. Associated Milk Products, Inc., 338 F. Supp. 1019 (S.D. Tex. 1972), plaintiff

members of a milk cooperative brought an action against a competing cooperative based, inter

alia, on violations of the Capper-Volstead Act. Although the Marketing Assistance defendants

argued, as Ocean Spray does in its motion, that the court should dismiss the plaintiffs’ claims

because the Capper-Volstead Act failed to provide a private cause of action, the court denied

defendants’ motion and specifically allowed plaintiffs’ Capper-Volstead claims to move forward:

The defendant’s third contention is that neither the Capper-Volstead Act nor theAgricultural Marketing Association Act create a private cause of action forviolations of those statutes and the plaintiffs therefore lack standing. Theplaintiffs contend that they have an implied right to act as private attorneysgeneral in the same manner as private litigants in the field of securities litigation.There is no statutory or case authority for either proposition, but this does notmean that the plaintiffs are precluded from offering violations of these acts asproof of violations of the antitrust laws. The fact that the Secretary of Agricultureis empowered to issue cease-and-desist orders…does not preclude Sherman Actprosecutions for the same acts. If a violation of Capper-Volstead . . . isproven, that is the time to consider whether a private person is entitled to arecovery for consequential damages.

Id. at 1024 (citing Md. & Va. Milk Producers, 362 U.S. at 463) (emphasis added). The court

allowed plaintiffs to proceed with proving defendants’ liability under the Act, while expressing

skepticism that plaintiffs, as members of a different cooperative, could recover damages for a

competing cooperative’s failure to adhere to the “mutual benefit” provision. Because none of the

cases that Ocean Spray cites in its motion contravene this holding, this Court should follow

Marketing Assistance and allow Plaintiffs to proceed with their Capper-Volstead claims.

Marketing Assistance and the larger body of precedent illustrating the Act’s cooperative

purposes make clear that Plaintiffs’ Capper-Volstead Act claims are sufficient to survive Ocean

Spray’s 12(b)(6) motion.


9

II. PLAINTIFFS HAVE PROPERLY ALLEGED CLAIMS UNDER CHAPTER 93A.

Chapter 93A does not itself define “unfairness.” A practice may be deemed unfair if it is

“within at least the penumbra of some common-law statutory, or other established concept of

unfairness. . . .” Commercial Union Ins. Co. v. Seven Provinces Ins. Co., 217 F.3d 33, 40 (1st

Cir. 2000) (internal quotations omitted). In construing the meaning of “unfair trade practices,”

courts have relied on the Federal Trade Commission’s interpretations of Section 5 of the Federal

Trade Commission Act (15 U.S.C. § 45(a)(1)), as well as consent decrees and federal statutes.

See TJX Companies Retail Security Breach Litig., 564 F.3d 489, 496-97 (1st Cir. 2009);

Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 747-48 (2008) (using a consent

agreement as “evidence of existing policy and guidance provided to” an industry); Quincy

Cablesystems, Inc. v. Sully’s Bar, Inc., 684 F. Supp. 1138, 1143-44 (D. Mass. 1988) (finding

liability under 93A based on the Cable Communications Policy Act); Liu v. Amerco, 677 F.3d

489, 494-95 (1st Cir. 2012) (using the antitrust laws to set standard of unfairness). As such,

Plaintiffs have alleged unfair practices based on standards found in the Final Judgment (for

discrimination against the B Pool and improper pricing policies involving the fruit of non-

member growers), the Capper-Volstead Act (for failing to provide the B Pool with “mutual

benefit”), and the federal antitrust statutes. ECF # 44, ¶¶ 23-25, 27, 31-32, 39-40, 47, 97-98, 101-

102, 108, 111. Plaintiffs have also alleged unfair and improper retaliation and discrimination

against B Pool growers for bringing this suit based on the proscriptions found in the Agricultural

Fair Practices Act, 7 U.S.C. § 2301, et seq. (“AFPA”). ECF # 44, ¶¶ 149 (wrongful termination)

and 151 (intimidation and coercion); See Section II.A, infra. The Final Judgment and the federal

statute serve as evidence of existing policy and provide the relevant standards to be used under

Chapter 93A.


10

Defendants’ collateral attacks on Plaintiffs’ 93A claims—that Defendants’ conduct is not

sufficiently egregious, that Plaintiffs are prohibited from bringing 93A claims premised on the

same underlying conduct as other claims, and that claims not legally cognizable cannot form

basis of 93A claims—have no support in the law.9 Defendants’ wrongdoing is sufficiently

egregious—in fact, it is in direct violation of a Final Judgment in which it was a party, two

statutes proscribing the type of behavior in which cooperatives cannot engage, and the federal

antitrust statutes. See Fremont, 452 Mass. at 747-48; Quincy, 684 F. Supp. at 1143-44; Liu, 677

F.3d at 494-95. Plaintiffs can undoubtedly bring 93A claims premised on the same set of

underlying facts forming the basis for other claims. See Datacomm Interface, Inc. v.

Computerworld, Inc., 396 Mass. 760, 778 (1986) (recognizing that 93A provides relief which is

“in addition to, and not an alternative to, traditional tort . . . remedies”); Quincy, 684 F. Supp. at

1140-41, 1143-44 (same fact patterns used to find liability under the Federal Communications

Act and 93A). Finally, Chapter 93A claims may be based on a statute that does not allow a

private cause of action, or on claims that might not otherwise be cognizable. See Morris v. BAC

Home Loans Servicing, L.P., 775 F. Supp. 2d 255, 258-59. (D. Mass. 2011).

9 The cases Defendants cite do not stand for the proposition that relying on the same assertionsthat underlie other claims is insufficient to form the basis for a 93A claim. See ECF # 48 at 19.Nor do these cases stand for the proposition that no Chapter 93A claim can survive if relatedclaims – based on the same underlying facts – are “not cognizable.” Id. Rather, the cases standfor the proposition that the underlying assertions forming the basis of a 93A must rise to the levelof an “unfair or deceptive” act. Pimental v. Wachovia Mortgage Corp., 411 F. Supp. 2d 32, 40(D. Mass. 2006) (“This Court is asked to address whether [defendant’s] disbursement of loanfunds rightfully could be characterized as an ‘unfair and deceptive’ act”); Davis, Malm,D’Agostine P.C. v. Vale, No. 041495, 2005 WL 1155171, at *4 (Mass. Super. Ct. Mar. 31, 2005)(finding that the claims “fail because the facts do not support the required element that theconduct be unfair or otherwise unscrupulous”).


11

A. Defendants’ Discriminatory and Retaliatory Termination of B PoolContracts is Actionable Under Chapter 93A.

Plaintiffs’ retaliation claims are actionable under Chapter 93A. They are premised on the

standard of “unfairness” set forth in the AFPA. See 7 U.S.C. § 2301 (“[T]he purpose of this

chapter is to establish standards of fair practices required of all handlers in their dealings in

agricultural products.”). The AFPA specifically prohibits handlers, such as Ocean Spray,10 from

coercing or intimidating any grower into terminating or canceling a membership agreement or

marketing contract with a cooperative. See 7 U.S.C. § 2303(c). Defendants terminated the B

Pool growers’ contracts solely because the B Pool growers brought this litigation against

Defendants. ECF # 44, Exs. 22-23. Defendants gave no other justification for the termination.

Id. The fact that one of the B Pool growers also terminated the contract does not foreclose

Plaintiffs’ retaliation claims, as a violation of the AFPA includes situations in which a grower

terminates the contract.11 7 U.S.C. § 2303(c); see also Ripplemeyer v. Nat'l Grape Co-op. Ass'n,

Inc., 807 F. Supp. 1439, 1455 (W.D. Ark. 1992) (rejecting defendants’ arguments that there

could be no coercion “since all termination[s] [] were voluntary and thus, no injuries have been

suffered”). Defendants’ argument that the marketing agreement allowed Defendants to terminate

the B Pool growers’ memberships for other reasons is immaterial. In Ripplemeyer, the court held

that defendants, agricultural cooperatives, had the right to terminate marketing agreements with

their grower-members (plaintiffs). Id. at 1449-50. Nonetheless, the court denied defendants’

10 Ocean Spray Cranberries is a handler under the AFPA’s definition. See Butz v. Lawson MilkCo., 386 F Supp. 227, 235 (N.D. Ohio 1974).11 Defendants’ reliance on PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593 (1975), issimilarly defective. In PMP, the court held that a refusal to accept plaintiff’s advertising was“not within any recognized conception of unfairness, is neither immoral, unethical, oppressivenor unscrupulous, and would not cause substantial injury to consumers, competitors or otherbusinessmen.” Id. 596. Defendants ignore that they are not simply a corporation, but are also anagricultural cooperative and a handler. Defendants also ignore the intent behind their actions –to punish grower-members from suing the cooperative.


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motion as to plaintiffs’ claims under the AFPA. Id. at 1454-56. Defendants’ coercive conduct in

Ripplemeyer bears more than a passing resemblance to Ocean Spray’s retaliatory termination of

Plaintiff Wintersogn—and the coercive message that termination sends to other growers—in the

instant case.12

Defendants also argue that Plaintiffs are barred from bringing this retaliation claim since

the court denied Plaintiffs’ renewed motion for protective order. ECF # 48 at 20. The previous

motion sought to prevent Ocean Spray from engaging in retaliatory conduct when other B Pool

growers join this suit as plaintiffs. ECF # 40. It did not ask the Court to determine if Ocean

Spray’s conduct violates Chapter 93A. Because these motions do not advance the same

arguments, dismissal is not warranted.

III. PLAINTIFFS’ ANTITRUST ALLEGATIONS ARE SUFFICIENT TO SURVIVEA MOTION TO DISMISS.

A. Plaintiffs Have Alleged A Conspiracy Involving Ocean Spray Brands.

Defendants claim the allegations against Ocean Spray Brands are conclusory, and that

Plaintiffs’ Complaint does not contain allegations that Ocean Spray Brands engaged in any

conspiracy. In support of their arguments, Defendants limit their analysis to the allegations

12 Defendants have argued that Ripplemeyer is inapposite since the court ruled on a summarydisposition motion and the plaintiffs in that case had alleged additional facts not found inPlaintiffs’ complaint. ECF # 50-1 at 11. Those arguments are meritless. First, in Ripplemeyer,there were two motions before the court – defendants’ motion to dismiss and motion forsummary judgment – and the court’s AFPA analysis relied heavily on the allegations containedin the complaint. Id. at 1444. Second, like the plaintiffs in Ripplemeyer, Plaintiffs have allegedcoercion and intimidation. ECF # 44 ¶¶ 151-52. In light of case law describing the perniciousand egregious nature of such coercion, the allegations that Defendants intended to intimidate andcoerce Plaintiffs from withdrawing from the litigation (as well as intimidating and coercing otherB Pool growers from pursuing legal action against Ocean Spray Cranberries) (id. at ¶¶ 151-54,162), warrant denial of Defendants’ motion. See Shires v. Magnavox Co., 432 F. Supp. 231, 233(E.D. Tenn. 1976) (threats to terminate plaintiffs’ employment were “such an obstruction ofjudicial procedure as renders absolutely worthless all process of the court, which has beeninstituted for the enforcement and protection of the rights and the redress and the prevention ofthe wrongs of the litigants”).


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contained on pages 32-35 and 37-40 of the Complaint. Defendants ignore all other allegations,

particularly those providing the factual basis for the conspiracy. The Court should reject

Defendants’ myopic analysis of the Complaint. See Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308, 326 (2007) (“[T]he court’s job is not to scrutinize each allegation in isolation but

to assess all the allegations holistically”). This principle applies in particular to antitrust

allegations, which cannot be evaluated on a piecemeal basis. See Continental Ore Co. v. Union

Carbide & Carbon Corp., 370 U.S. 690, 699 (1962); Ocasio-Hernandez, 640 F.3d at 14 (court

must “evaluate the cumulative effect of the factual allegations”).

Plaintiffs have sufficiently alleged that Ocean Spray Brands conspired to fix prices and to

monopolize and monopsonize the cranberry market. See, e.g. United States v. Munoz-Franco,

487 F.3d 25, 45-46 (1st Cir. 2007);13 Allen, 748 F. Supp. 2d at 346. Plaintiffs have alleged that

Ocean Spray Brands engaged in concerted action to increase the profits of Ocean Spray’s

branded products, that there was an economic incentive for Ocean Spray Brands to participate in

the conspiracy, and that Defendants benefited from the elimination of independent growers and

from having a pool of cranberries that could be used to manipulate cranberry prices. ECF # 44 at

¶¶ 38-39, 49-50, 78, 80-81. Plaintiffs have also alleged that Ocean Spray Brands’ interests are

not aligned with the interests of the B Pool and conflict with the Capper-Volstead’s requirement

that a cooperative’s actions should mutually benefit all members. Id. at ¶¶ 72, 78-80.

That Ocean Spray Cranberries acted in furtherance of the conspiracy—such as by

establishing the discriminatory A and B Pools, setting rules that arbitrarily limited membership

into the A Pool, and running a sham auction—does not negate Ocean Spray Brands’ participation

13 As the First Circuit has stated, a “formal agreement is not required, rather ‘[t]he agreementmay be shown by a concert of action, all the parties working together understandingly, with asingle design for the accomplishment of a common purpose.’” Munoz-Franco, 487 F.3d at 45-46. (internal citations omitted) (quoting Am. Tobacco Co. v. United States, 147 F.2d 93, 107 (6thCir. 1944) and citing Am. Tobacco Co. v. United States, 328 U.S. 781, 809 (1946)).


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in the conspiracy. In re Processed Egg, 821 F. Supp. 2d at 742 (“[T]here is no requirement that

allegations pertaining to one defendant mirror those against other defendants in terms of specific

conduct or the ‘quantity’ of alleged ‘bad acts.’”).

Further, Plaintiffs’ use of the term “Defendants” does not warrant dismissal. Here,

“Defendants” refers to the two entities being sued that participated in the conspiracy. The

Complaint specifically identifies which Defendant undertook specific acts in furtherance of the

conspiracy, and uses “Defendants” to identify acts undertaken by both. The cases Defendants

cite in favor of dismissal are inapplicable here. Each of those cases involved more than two

defendants, unlike the instant case.14 The concerns that may arise when referring to “defendants”

rather than to individual defendants do not exist in this case, where “Defendants” comprises two

entities.

Finally, Plaintiffs’ conspiracy claims are not barred by Copperweld Corp v.

Independence Tube Corp., 467 U.S. 752, 771 (1984). The conspiracy Plaintiffs allege is not

simply between Ocean Spray Brands and Ocean Spray Cranberries, as Defendants incorrectly

represent to the Court. ECF # 48 at 2, 9-13. Rather, the Complaint alleges a conspiracy between

the Defendants and the cooperative’s managers and board of directors (who are also A Pool

growers and competitors of the B Pool). ECF # 44, ¶ 49.

Defendants’ arguments under Copperweld assume that the cooperative is a single entity,

and that it is protected under Capper-Volstead. Such assumptions ignore Plaintiffs’ allegations

that Capper-Volstead immunity does not apply for two reasons. First, Defendants’ predatory

14 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550 n.1 (2007) (four alleged conspirators);Invamed, Inc. v Barr Labs., Inc., 22 F. Supp. 2d 210, 213, 218 (S.D.N.Y. 1998) (five allegedconspirators); Precision Assocs., Inc. v. Panalpina World Tranps. (Holding) Ltd., No. 08-CV-42(JG(VVP), 2011 WL 7053807, at *19 (E.D.N.Y. Jan. 4, 2011) (over sixty-five allegedconspirators); Hinds County v. Wachovia Bank N.A., 620 F. Supp. 2d 499, 505-06 (S.D.N.Y.2009) (over thirty-five alleged conspirators); In re Processed Egg Prods., 821 F. Supp. 2d at 745(three entities).


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conduct falls outside the immunity. See ECF # 44, ¶ 70; Md. & Va. Milk Producers, 362 U.S. at

465-66. Second, Capper-Volstead immunity does not apply since Ocean Spray Cranberries is

not acting for the mutual benefit of its B Pool members. See ECF # 44 ¶¶ 71-80; Allen, 748 F.

Supp. 2d at 346.

Furthermore, the cursory application of Copperweld that Defendants recommend is

inappropriate when a defendant is an organization comprised of competitors. Am. Needle, Inc. v.

NFL, 130 S. Ct. 2201, 2209 (2010) (finding that “concerted action under § 1 does not turn simply

on whether the parties involved are legally distinct entities,” but instead on a “functional

consideration of how the parties involved . . . actually operate”). It is “substance, not form, [that]

should determine whether a[n] . . . entity is capable of conspiring.” Id. at 2211 (quoting

Copperweld, 467 U.S. at 773). Plaintiffs have alleged that Defendants, as well as the

cooperative’s managers and directors (who are A Pool growers), have a personal stake in, and

are benefiting from the conspiracy. ECF # 44 ¶¶ 71-80. Under such allegations, the Court

should not apply Copperweld at the pleadings stage. See Am. Needle, 130 S. Ct. at 2212-17; In

re Fresh & Process Potatoes Antitrust Litig., 2012 WL 3067580, at *9-11 (D. Idaho July 27,

2012); Appraisers Coal. v. Appraisal Inst., 845 F. Supp. 592, 603-04 (N.D. Ill. 1994).

B. Plaintiffs Have Alleged Exclusionary Conduct, Antitrust Injury, andCausation.

Defendants wrongly argue that Plaintiffs have not alleged exclusionary conduct, antitrust

injury, or causal connection between Defendants’ illegal practices and Plaintiffs’ injuries.

Defendants’ arguments are based on a selective reading of the Complaint, which leads

Defendants to the erroneous conclusion that Plaintiffs are simply complaining about receiving

low prices for their cranberries. They are not. Plaintiffs do not merely allege that Defendants’

competitors are harmed by lower prices. Plaintiffs allege that Defendants’ predatory conduct and


16

illegal price fixing has reduced competition in the market by forcing growers to exit the market

or join Ocean Spray’s cooperative. ECF # 44, ¶¶ 53-54, 89-90. Defendants’ actions harm

consumers, since the departure of growers from the cranberry market leads to less competition in

the market and, therefore, to reduced output. Plaintiffs have alleged further harm to consumers,

since consumers are not benefitting from the lower costs of commodity cranberries, and since the

quality of Ocean Spray’s branded products has decreased due to lower cranberry content. ECF #

44, ¶ 55. Finally, Plaintiffs also allege that Defendants’ illegal conduct directly caused the

independent growers harm.15 ECF # 44, ¶¶ 27, 39, 49-50, 52-54, 81-90. These are sufficient

allegations of exclusionary conduct, antitrust injury, and causation.16 See In re Mushroom, 514

F. Supp. 2d at 694-96; Sullivan v. NFL, 34 F.3d 1091, 1096-97, 1103 (1st Cir. 1994).

15 “[W]ithin the context of a Rule 12(b)(6) motion to dismiss, the question is not whether theantitrust injury indeed occurred but whether plaintiffs allege facts from which antitrust injury canbe inferred.” In re Mushroom, 514 F. Supp. 2d at 696. Plaintiffs’ allegations of causation aresufficient at this stage of the litigation. See id.16 Again, the cases Defendants cite are distinguishable. In two cases, the courts held that theplaintiffs had not presented sufficient evidence at a jury trial. See Coastal Fuels of P.R., Inc. v.Caribbean Petrol. Corp., 79 F.3d 182, 186 (1st Cir. 1996); Weyerhaeuser Co. v. Ross-SimmonsHardwood Lumber Co., 549 U.S. 312, 314-15 (2007). In another case, the defendant was neithera consumer nor a competitor of the plaintiff, and the plaintiff had alleged only that it “sufferedunspecified injuries in its ‘business activities,’” and the court applied the policies underlyingIllinois Brick Co. v. Illinois, 431 U.S. 720 (1977), to dismiss the claims of a labor union forindirect damages. Associated Gen. Contractors of Cal. Inc. v. Cal. State Council of Carpenters,459 U.S. 519, 539, 541 (1983). Plaintiffs have alleged specific harm. ECF # 44, ¶¶ 27, 39, 47,49, 50, 52-55, 66, 71, 74, 80-85, 87, 89. In Austin v. Blue Cross & Blue Shield of Alabama, 903F.2d 1385, 1390 (11th Cir. 1990), the plaintiff failed to make any allegations that the defendanthad attempted to influence relationships between the plaintiffs and third parties. Plaintiffs havealleged that Defendants’ actions influenced relationships between Plaintiffs and Plaintiffs’buyers. ECF # 44, ¶¶ 27, 52, 68, 85, 89.


17

C. Defendants’ Pricing Structure Harms Competition and Violates the AntitrustLaws.

Defendants’ argument that low prices cannot form the basis of Plaintiffs’ antitrust claims

is unfounded in the law.17 Allen, 748 F. Supp. 2d at 344-46; Sullivan, 34 F.3d at 1101-02. In

Allen, plaintiffs alleged that defendants used their monopsony and monopoly power in the milk

distribution system by tying up access to milk bottling plants through unlawful exclusive supply

agreements and then using that monopsony power to force independent farmers to join the

cooperative or to market their milk through a marketing affiliate. Plaintiffs further alleged the

cooperative utilized the affiliate’s market power “to reduce fluid raw milk prices paid to its

members and other class members relative to what would have prevailed in a competitive

market” which “increased profits for defendants . . . .” Allen, 748 F. Supp. 2d at 331

(emphasis added). The court denied defendants’ motion to dismiss and held that plaintiffs had

sufficiently alleged Section 2 claims based on allegations that defendants “artificially” decreased

milk prices in order “to suppress competition . . .” Id. at 342-43. See also Knevelbaard Dairies

v. Kraft Foods, Inc., 232 F.3d 979, 987-88 (9th Cir. 2000) (“Since the plaintiffs allegedly were

subjected to artificially depressed milk prices, the injury flows from ‘that which makes the

conduct unlawful,’ i.e. from the collusive manipulation itself”).

Defendants claim that Plaintiffs must allege that Ocean Spray Cranberries’ prices are

below an appropriate measure of its costs and that Ocean Spray Cranberries can recoup its losses.

ECF # 48 at 14. Plaintiffs, however, have not alleged a predatory pricing claim in support of

their monopolization and monopsonization claims. Rather, Plaintiffs allege Ocean Spray

Cranberries “willfully and purposefully engaged in a pattern of anti-competitive conduct . . . in

17 The cases Defendants cite are factually inapposite. They involve maximum price setting orsetting a ceiling on prices. Atl. Richfield Co. v. USA Petrol. Co., 495 U.S. 328 (1990); Wagner v.Circle W. Mastiffs, 732 F. Supp. 2d 792 (S.D. Ohio 2010).


18

an attempt to monopolize the relevant cranberry market by fixing the prices of fresh and

processed cranberries to harm the Plaintiffs.” ECF # 44, ¶¶ 120, 125. Plaintiffs do not, as

Defendants argue, have to prove pricing below Ocean Spray Cranberries’ costs or recoupment

for their price fixing claims in order to succeed.18 See Sullivan, 34 F.3d at 1103; Allen, 748 F.

Supp. 2d at 323.

IV. THE B POOL PLAINTIFFS HAVE STANDING TO ENFORCE THEFINAL JUDGMENT.

Defendants’ argument that the B Pool Plaintiffs lack standing to sue for enforcement of

the Final Judgment ignores the clear language of the judgment. The Final Judgment prohibits

Defendants from “discriminating among members in the administration of any pooling of

cranberries.” See ECF # 44, Ex. 3 at § IV.F(2). It also prohibits Ocean Spray from paying

independent growers a price different than that obtained by the cooperative’s members. Id. at §

IV.F(1). Third parties to a consent decree can enforce the decree if there is a clear indication that

18 Defendants’ arguments are defective for another reason. Defendants ignore that the properanalysis is dependent on the relationships between Defendants, the directors (comprised of the APool which are the competitors of the B Pool), and the B Pool, as well as the conspiracy allegedbetween Defendants and the directors. See In re Diary Farmers of Am., Inc. Cheese AntitrustLitig., 767 F. Supp. 2d 880, 905-06 (N.D. Ill. 2011) (“[T]he facts of this case do not fit neatlyinto the prototypical descriptions of predatory pricing or predatory bidding schemes . . . .”); RockRoyal, 307 U.S. at 565 (explaining differences between cooperative and corporations in pricecutting). Ocean Spray Cranberries is not a competitor of the B Pool. It is a tool through whichthe directors/A Pool predatorily price the B Pool's fruit. Because Ocean Spray Cranberries,through the A Pool directors, markets the fruit of the B Pool, it is not Ocean Spray Cranberries'costs that are at issue. Nevertheless, Plaintiffs have sufficiently alleged predatory price fixing.They have alleged that Ocean Spray Cranberries sold the B Pool's fruit below the B Pool's cost ofproduction as well as the national average cost of production for all cranberry growers, includingthe A Pool. ECF # 44, ¶¶ 27, 39, 45-51. Plaintiffs have also sufficiently alleged recoupment.Plaintiffs alleged the directors, as A Pool members, benefited from the depressed pricing ofcommodity fruit by obtaining higher returns on the branded products, and since they had notlowered the price paid by consumers despite the lower commodity prices. ECF # 44, ¶¶ 42-50,55, 71, 74-80. Because of the unique relationship between the A and B Pool, the A Pool isrecouping losses at the same time they are depressing a rival’s prices.


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parties to the decree intended to allow third-party enforcement. See SEC v. Prudential Securities,

Inc., 136 F.3d 153, 158 (D.C. Cir. 1998).

The clear language of the Final Judgment shows the parties intended to give the Ocean

Spray cooperative members—such as the B Pool Plaintiffs—the right to enforce the Final

Judgment. The Final Judgment gives the parties—and by application of § III, the cooperative’s

members—the right to apply to the court “at any time for such further orders and directions as

may be necessary or appropriate for the construction or carrying out of this Final Judgment,”

including “for the enforcement of compliance therewith and punishment of violations

thereof.” Final Judgment at § X (emphasis added). The B Pool Plaintiffs are entitled to seek

enforcement and compliance with the Final Judgment. Fed. R. Civ. P. 71.19

V. COUNTS VII AND XII ASSERT CAUSES OF ACTION SEPARATE FROMTHE OTHER COUNTS OF THE COMPLAINT.

Counts VII and XII assert valid causes of action.20 Under Count VII, Plaintiffs bring ch.

93A claims premised upon Defendants’ attempted conspiracy and price-fixing and

monopolization and monopsonization schemes. See Liu, 677 F.3d 489. Under Count XII,

Plaintiffs bring claims under ch. 93A for Defendants’ failure to adhere to the Final Judgment’s

requirement to refrain from “receiving from any person not a member of [its cooperative] . . . any

cranberries except on the same terms or conditions as to payment . . . as would apply if such

person were a member.” ECF # 44, ¶¶ 24, 39(b) and (c). Defendants’ motion, however,

indicates that Defendants are unable to determine the basis for those counts, and it would be

19 Defendants’ emphasis on the age of the Final Judgment is irrelevant. See Florida Assoc. forRetarded Citizens, Inc. v. Bush, 246 F.3d 1296, 1298 (11th Cir. 2001) (“[T]he age of the case []does not provide a basis for declining to enforce an existing order of the court”).20 Plaintiffs agree Count VI should be dismissed.


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appropriate to allow Plaintiffs to amend those counts to clear up any apparent ambiguities.

Plaintiffs respectfully request leave to amend Counts VII and XII.21 Fed. R. Civ. P. 15(a)(3).

CONCLUSION

For the reasons stated above, Plaintiffs respectfully request that the Court deny

Defendants’ motion to dismiss in its entirety, or, in the alternative, grant Plaintiffs leave to

amend.

Respectfully submitted,

April 8, 2013

/s/ Arthur R. MillerArthur R. Miller, Esq.University Professor, NYU School of Law40 Washington Square South, Room 430FNew York, NY 10012(212) 992-8147

/s/ Norman JackmanNorman Jackman, Esq.JACKMAN & ROTH LLP1600 Massachusetts Avenue, Suite 502Cambridge, Massachusetts 02138(617) 682-8049

/s/Manuel C. HernandezManuel C. Hernandez, Esq., Pro Hac ViceHernandez and Associates, LLCP.O. Box 979Bandon, Oregon 97411(541) 347-2911

/s/Frederick J. Carleton/s/ Shala McKenzie KudlacFrederick J. Carleton, Esq., Pro Hac ViceShala McKenzie Kudlac, Esq., Pro Hac ViceCarleton Law OfficesP.O. Box 38Bandon, Oregon 97411(541) 347-2468

21 Plaintiffs also request leave to amend to fix inadvertent errors in the Complaint. For instance,Chart 2 (page 11) should read “Receipts per gallon” and not “Receipts per barrel.”


21

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent

electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)

and paper copies will be sent to those indicated as non-registered participants as of April 8, 2013.

/s/ Norman JackmanNorman Jackman

21,065,382.3\151442-00001


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