On November 10, 2021, AAI hosted its 15th annual Private Antitrust Enforcement Conference featuring experts and thought-leaders from across the antitrust community, including enforcement, advocacy, and academia. The panel “Breakfast, Lunch, and Dinner: A Spotlight on Antitrust in the Protein Industry” discussed the common facts, themes, and issues across the various antitrust enforcement actions in the protein industry. The panelists analyzed the role of information exchanges in agricultural and labor competition, the evolving treatment under antitrust and other laws of such exchanges, and applicable safe harbors and guidelines. Panelists assessed the legal treatment of information exchanges and when exchanges are treated as per se illegal and when they are evaluated under the rule of reason.
Among other things, the panelists debated what courts are getting right and what they are getting wrong in this area, and whether an agreement to exchange information should itself be considered a naked restraint on trade. The panelist also delved into the role of judgment sharing agreements and litigation funding on the progression of the protein antitrust cases, including the extent to which these devices shape litigation strategy and also, in the longer term, may pose a threat to the class action model for antitrust enforcement. Finally, the panelists touched on the role of non-compete agreements and hiring patterns in the poultry industry and how they helped facilitate various agreements.
Highlights From the Speakers:
Gary I. Smith Jr., Partner, Hausfeld
“[An information exchange] creates some really powerful incentives, right? It’s like you’ve gotten a taste, and you want little more, and eventually you’ve certainly crossed a line.”
Peter C. Carstensen, Fred W & Vi Miller Chair in Law Emeritus, University of Wisconsin Law School
“This is the central function of information exchange of the sort that Agristats provided: firms with roughly similar market costs–confronting commodity markets–if they can exchange enough information, can restrain competition, even if you have fairly large number of competitors.”
Dai Wai Chin Feman, Director of Commercial Litigation Strategies, Parabellum Capital LLC
“There’s obviously some concern of free-riding here by class counsel, and that can be a thing, but there also can be contributions by all these opt-outs to the overall enforcement and it could have good benefits. I think it’s going to take time to figure out what the true effects of all this are.”
Brian D. Clark, Partner, Lockridge Grindal Nauen P.L.L.P.
“I really do think it’s at least a useful exercise to think about Agristats and some of these information exchanges as gateways to a lot of more hardcore cartel activity.”
Ellen Meriwether, Partner, Cafferty Clobes Meriwether & Sprengel LLP
“You must be quoting Adam Smith in your briefs. He has that famous quote: ‘If rivals meet they’re going to engage in anticompetitive agreements. That’s what happens.’”