Antitrust and Unfair Competition Law

Talking Turkey: Sufficient Circumstantial Evidence Alleged with Additional “Plus Factors”

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Cheryl Johnson

By Cheryl Johnson

In the Turkey Antitrust Litigation, Plaintiffs alleged that Agri Stats which provided non-public pricing and supply information to the turkey industry, together with turkey suppliers controlling eighty percent of the U.S. turkey market, conspired to exchange competitive information.  The conspiracy was challenged on both a rule of reason and per se basis.  The court dismissed the per se challenge, finding it conclusory and not plausible, while allowing the conspiracy claim to proceed under a rule of reason standard. After discovery, plaintiffs filed an amended 600-page complaint, with one claim attacking the information-exchange conspiracy on a rule of reason basis, and a second claim alleging a per se price fixing conspiracy.  Defendants moved to dismiss the amended per se claim, which Judge Kendall in Chicago rejected after finding that the pleadings alleged sufficient circumstantial evidence of the price fixing conspiracy, with parallel conduct and additional “plus factors” indicative of an agreement. In re Turkey Antitrust Litigation, No. 19 C8318, 2022 WL 17093359, *6-7, 11 (N.D. Ill. Nov. 21, 2022).

Despite a conceded lack of “direct evidence” of a conspiracy, Defendants (save one) were each alleged to have participated in coordinated turkey supply reductions followed by increased prices; neither simultaneous nor similar manners of restricting supply were required to sufficiently allege parallel conduct. Id. at *7. The court also rejected the suggestion that plaintiffs’ substantial completion of discovery at the time their complaint was amended should alter the pleading stage standard used in analyzing a dismissal motion. Id. at*9.


For “plus factors,” plaintiffs alleged frequent and direct information exchanges on turkey pricing and production cuts, encouragements of codefendants to reduce turkey productions, and the “central role” played by Agri Stats that distributed an unusual amount of private information about industry pricing and output while noting specific increased pricing opportunities. Id. at *10.  Defendants’ atypical trade association participation was also cited as a ‘plus factor’, particularly given that the trade association hired Agri Stats to report on industry expectations, and created a Turkey Demand Enhancement Team with some defendant members with the assistance of Agri Stats to urge members to substitute “coopetition” for competition and to maintain historic profit levels in the industry. Id. at *3, 4, 10. 

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