A Minnesota federal court recently certified several classes of plaintiffs asserting antitrust claims against America’s largest pork producers and integrators.  In re Pork Antitrust Litig., C.A. No. 18-1776 (D. Minn. Mar. 29, 2023).

Each class of plaintiff asserted a per se theory of harm that defendants conspired to limit the supply of pork and thereby fix prices in violation of federal and state antitrust laws.  Plaintiffs further alleged that defendants coordinated output and limited production with the intent and expected result of increasing pork prices in the United States.  The court readily found that these claims were suitable for class treatment.

However, one of the classes—the indirect purchasers, representing the end-purchasers of pork products—also asserted a theory of harm that defendants conspired to participate in an anticompetitive information exchange.  Such claims are typically evaluated under a rule of reason analysis.  The court observed that a “rule of reason claim cannot be certified as a class unless the proposed class members can show commonality—meaning that they participated in the same geographic market and product market.”  As a result, the rule of reason often “raises more individualized issues precluding class certification’” (quoting Conrad v. Jimmy John’s Franchise, LLC, No. 18-133, 2021 WL 3268339, at *10 (S.D. Ill. July 30, 2021)).  Here, however, the court credited expert testimony that class members participate in the same geographic and product market, which was a national market for certain specified pork products that together constituted “a comparable cluster of products.”

It is likely that other plaintiffs contemplating class claims predicted on conduct subject to the rule of reason may be encouraged by this court’s decision.  The court’s finding of commonality based in part on a product market defined by reference to a “cluster” of not necessarily interchangeable pork products may provide guidance for other plaintiffs looking to show commonality in similar contexts.