Brown et al v. JBS USA Food Company et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 22-cv-02946-PAB-STV
RON BROWN, and
MINKA GARMON, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
JBS USA FOOD COMPANY,
TYSON FOODS, INC.,
CARGILL, INC.,
CARGILL MEAT SOLUTIONS CORP.,
HORMEL FOODS CORP.,
ROCHELLE FOODS, LLC,
AMERICAN FOODS GROUP, LLC,
TRIUMPH FOODS, LLC,
SEABOARD FOODS, LLC,
NATIONAL BEEF PACKING CO., LLC,
SMITHFIELD FOODS INC.,
SMITHFIELD PACKAGED MEATS CORP.,
AGRI BEEF CO.,
WASHINGTON BEEF, LLC,
PERDUE FARMS, INC.,
GREATER OMAHA PACKING CO., INC.,
INDIANA PACKERS CORPORATION,
QUALITY PORK PROCESSORS, INC.,
AGRI STATS, INC., and
WEBBER, MENG, SAHL AND COMPANY, INC., d/b/a/ WMS & Company, Inc.,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
The matters before the Court are Defendant Greater Omaha Packing Co., Inc.’s
Motion to Dismiss [Docket No. 338] and IPC’s Motion to Dismiss for Failure to State a
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Claim, or in the Alternative, Motion for a More Definite Statement [Docket No. 339]. The
Court has jurisdiction pursuant to 28 U.S.C. § 1331.
I. 	BACKGROUND
A. Factual Background 1
This case arises out of class action antitrust claims against defendants for
allegedly suppressing the wages of the employees at beef- and pork-processing plants
across the United States. See Docket No. 260 at 7. The Court has discussed at length
the allegations against defendants in the Court’s previous orders on defendants motions
to dismiss. See Docket Nos. 219, 220, 400. Therefore, the Court discusses only those
allegations relevant to the motions to dismiss filed by defendants Greater Omaha
Packing Co., Inc. (“Omaha Packing”) and Indiana Packers Corporation (“Indiana
Packers”). Docket Nos. 338, 339.
Plaintiffs Ron Brown and Minka Garmon bring claims on behalf of themselves
individually and on behalf of a class consisting of all individuals employed by
defendants, their subsidiaries, and related entities at beef- and pork-processing plants
in the continental United States from January 1, 2000 to the present day (the “class
period”). Docket No. 260 at 7. Defendants include fourteen red meat processors 2 and
several of their subsidiaries (the “processor defendants”), including Omaha Packing and
Indiana Packers. Id. at 7-8, ¶ 2. In addition to the processor defendants, the amended
complaint names two consulting companies as defendants, Agri Stats, Inc. (“Agri Stats”)
and Webber, Meng, Sahl and Company, Inc. (“WMS”). Id.
1 The Court assumes that the well-pleaded allegations in plaintiffs’ amended
complaint are true in considering the motion to dismiss. Brown v. Montoya, 662 F.3d
1152, 1162 (10th Cir. 2011).
2 Plaintiffs define red meat as beef and pork. Docket No. 260 at 7.
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Processor defendants collectively produce approximately 80 percent of the red
meat that is sold in the United States. Id. Processor defendants own and operate
approximately 140 red meat processing plants in the continental United States. Id. at 8,
¶ 3. Processor defendants employed hundreds of thousands of the members of the
class during the class period in various positions and compensated these employees
with benefits and either hourly wages or an annual salary. Id., ¶¶ 3-4.
Since 2000, defendants have conspired to fix and depress the wages of their
employees at processor defendants’ red meat processing plants, which has been
facilitated by their exchange of non-public compensation data via Agri Stats, WMS, and
surveys called the “Beef Industry Wage Indexes” (“BIWI”) and “Pork Industry Wage
Indexes” (“PIWI”). Id. at 8-15, ¶¶ 6-26.
From 2000 to 2019, processor defendants directly exchanged sensitive
compensation data, including the amount and dates of planned future hourly wage
increases, through BIWI/PIWI surveys conducted by Tyson Foods Inc. (“Tyson”). Id. at
8-9, ¶ 6. Participating processor defendants provided their sensitive compensation
information directly to Tyson in private communications for the purpose of assembling
the BIWI and PIWI surveys. Id. at 130, ¶ 401. Such data was often transmitted by
telephone rather than by written communication. Id. Each BIWI and PIWI was labeled
“CONFIDENTIAL,” and processor defendants agreed not to share the compensation
data beyond those processors that participated in the surveys. Id. at 64, ¶ 176.
The BIWI/PIWI surveys provided fully disaggregated compensation data to
participating processor defendants. Id. at 9, ¶ 7. The BIWI and PIWI reports identified
how much each participating processor defendant was currently paying and would be
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paying in the future to hourly-paid workers at each of processor defendant’s red meat
processing plants. Id. Each version of the BIWI and PIWI included a calculated
weighted average for base wages and reported future wages. Id. at 65, ¶¶ 180-81.
Processor defendants employ rigid compensation structures “that key off the ‘base’ rate,
depending on the workers’ duration of experience,” such that “if the ‘base’ rate for a
Processor defendants’ red meat plant is artificially suppressed, then all hourly wages
paid to processing workers in that plant are artificially suppressed.” Id. at 68, ¶ 187.
The BIWI and PIWI surveys were conducted on at least an annual basis during
every year within the class period, sometimes as many as four times a year. Id. at 9-10,
¶ 9. The surveys were initiated by a processor defendant’s request for an updated
survey, which coincided with that processor defendant’s upcoming union negotiation or
annual compensation review. Id. Processor defendants used the two indices when
they were conducting internal wage reviews to modify their compensation schedules
and when negotiating with unions to establish wage schedules in collective bargaining
agreements. Id. at 68, ¶ 186.
From 2014 to 2019, different groups of processor defendants designed and
participated in an annual “Red Meat Industry Compensation Survey,” in which they
exchanged detailed current and future information about wages, salaries, and benefits
provided to their workers at red meat processing facilities. Id. at 69, ¶¶ 188-89.
Participants referred to themselves as the “Red Meat Survey Group.” Id. at 71, ¶ 193.
WMS participated in the Red Meat Industry Compensation Survey by distributing
survey questionnaires to the participating processor defendants, compiling survey
results reports, and distributing those reports to participants each year. Id. at 69-70,
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¶ 190. Processor defendants, however, collectively managed and controlled the annual
Red Meat Industry Compensation Surveys and determined who could join the Red Meat
Survey Group. Id. at 71-72, ¶¶ 193, 200-01. The Red Meat Industry Compensation
Survey provided data on base salary, the bonus paid across all survey participants, total
compensation, target opportunity percent, maximum opportunity percent, and base
salary policy. Id. at 77-78, ¶ 222. The Red Meat Industry Compensation Surveys that
were distributed from 2014 to 2017 included data on planned future salary increases by
processor defendants. Id. at 81, ¶ 240.
Representatives from processor defendants attended and participated in annual
in-person “Red Meat Industry Compensation Meetings.” Id. at 86-87, ¶¶ 259-61. The
meetings consisted of multiple roundtable sessions during which executives from the
Red Meat Survey Group would discuss the results of that year’s Red Meat Industry
Compensation Survey as well as current and future compensation practices at their
respective firms. Id. at 88, ¶ 266. The Red Meat Industry Compensation Meetings were
accompanied by “off-the-books dinners and other activities that preceded the Meetings
themselves.” Id. at 92, ¶ 285.
At the Red Meat Industry Compensation Meetings, Jonathan Meng, president of
WMS, was invited to attend one or both of the first two sessions and, during those
sessions, he presented a summary of the results of the Red Meat Industry
Compensation Survey. Id. at 69, 88, ¶¶ 190, 268-69. In 2014, 2015, and 2017, after
presenting the survey results, Meng left, and the remaining sessions proceeded without
him. Id. at 90, ¶¶ 278-79. In the sessions without Meng, plaintiffs allege that executives
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from processor defendants agreed upon and suppressed the wages, salaries, bonuses,
and benefits they would provide to employees at red meat processing plants. Id., ¶ 278.
Throughout the class period, senior executives of processor defendants who had
the authority to determine or influence the compensation of members of the class
contacted one another in order to align their current and future compensation practices.
Id. at 96, ¶ 300.
Agri Stats describes itself as a “management and benchmarking company” that
“provides consultation on data analysis, action plan development and management
practices of participating companies,” with a mission to “[i]mprove the bottom line
profitability for our participants by providing accurate and timely comparative data while
preserving confidentiality of individual companies.” Id. at 99-100, ¶ 312. Agri Stats
facilitates the exchange of recent and current competitively sensitive information
between competitors. Id. at 100, ¶ 315. To maintain secrecy, Agri Stats requires that
its subscribers share their own data in order to receive data on their competitors and
does not sell its data to the public. Id. 100-01, ¶¶ 316-17. Processor defendants in the
pork industry exchanged detailed and competitively sensitive compensation data each
month by way of a subscription to Agri Stats. Id. at 99, ¶ 309. The pork processor
defendants used the data from Agri Stats to suppress compensation and to confirm that
no conspirator deviated from the compensation-fixing conspiracy. Id. at 107, ¶ 337.
As a result of the conspiracy to depress wages, processor defendants
simultaneously and in parallel limited annual wage increases to members of the class.
Id. at 108, ¶ 341. Wages were lower than they would have been in the absence of a
conspiracy. Id. For example, in 2017, base wages were increased by only 2% at 17
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red meat processing plants operated by several processor defendants. Id. at 108-09,
¶ 343. In 2018, base wages were increased by only 2% in 17 plants, including some of
the plants that only received a 2% increase in base wages in 2017. Id. at 108-09,
¶¶ 343-44.
Greater Omaha is a Nebraska corporation that participated in the conspiracy to
fix and depress compensation to red meat processing plant workers by exchanging
current and future compensation information via BIWI surveys at least in 2000, 2004,
2006-2009, 2011-2015, and 2019. Id. at 34-35, ¶¶ 66-67. Greater Omaha’s job
postings advertised that they offer a “Competitive Base Salary;” “Vision, Medical and
Dental Coverage;” “Paid Time Off;” and a “401(k)” for which “[c]ompany match starts
after the first year of service.” Id. at 127-29, ¶ 396.
Indiana Packers is a Delaware corporation headquartered in Indiana. Id. at 36,
¶ 70. Indiana Packers participated in the conspiracy to fix and depress compensation to
red meat processing plant workers by exchanging current and future compensation
information via PIWI surveys at least in 2000, 2002, 2005-2009, 2011, 2013, and 2019.
Id. 36-37, ¶ 71. During the class period, Indiana Packers also subscribed to Agri Stats
to exchange current, disaggregated, readily decodable, and plant-specific compensation
data with competing pork processors on a monthly basis. Id.
Plaintiffs bring two claims against defendants. First, plaintiffs bring a claim under
§ 1 of the Sherman Act, 15 U.S.C. § 1, for defendants entering “into a continuing
agreement, understanding, and conspiracy in restraint of trade to fix, depress, maintain,
and stabilize the compensation paid to workers at their red meat processing plants in
the continental United States” (the “per se claim”). Docket No. 260 at 138, ¶ 431.
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Plaintiffs also bring a claim under § 1 of the Sherman Act for defendants entering into “a
continuing agreement to regularly exchange detailed, timely, competitively sensitive,
and non-public information about the compensation being paid or to be paid to their
employees at red meat processing plants in the continental United States” which
plaintiffs allege “is an unreasonable restraint of trade” (the “rule of reason claim”). Id. at
140, ¶ 437.
B. Procedural Background
On November 11, 2022, plaintiffs filed their original complaint, in which they
brought claims based on defendants’ use of WMS and Agri Stats to exchange
compensation data and suppress wages from 2014 to the present. See Docket No. 1 at
1, 121-29, ¶¶ 400-26. On February 17, 2023, defendants filed a joint motion to dismiss,
arguing that plaintiffs had failed to state plausible claims for relief and that plaintiffs’
claims were barred by the statute of limitations. See Docket No. 164 at 9-40. Individual
defendants filed supplemental motions to dismiss. Docket Nos. 159, 160, 161, 162,
163, 165, 166. On September 27, 2023, the Court ruled on the motions to dismiss.
Docket Nos. 219, 220. The Court found that plaintiffs’ claims were not time-barred and
that they had plausibly stated their first and second claims as to every defendant then
part of the case except defendant Iowa Premium, LLC, who the Court dismissed from
the case. See Docket Nos. 219, 220.
On January 11, 2024, the parties filed a stipulated motion to grant plaintiffs leave
to amend their complaint. Docket No. 257 at 2, ¶ 3. On January 12, 2024, plaintiffs
filed an amended complaint in which they added allegations regarding the BIWI/PIWI
surveys, extended the class period from 2014 to 2000, and added five new defendants,
including Greater Omaha and Indiana Packers. See generally id.
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On February 6, 2024, Magistrate Judge Scott Varholak granted a motion to file a
joint motion to dismiss on behalf of all of the defendants except (1) JBS USA Food
Company; Perdue Farms, Inc.; Seaboard Foods, LLC; Triumph Foods, LLC; and
Webber, Meng, Sahl and Company, Inc., who all had reached a settlement agreement
with plaintiffs, and (2) Greater Omaha Packing Co., who, at that time, had not appeared
in the case. Docket No. 286. Judge Varholak’s order permitted the individual
defendants to file supplemental motions to dismiss. Id.
On April 5, 2024, defendants filed their joint motion to dismiss, which argued that
plaintiffs’ claims should be dismissed as they relate to the new allegations in the
amended complaint and as they relate to the expanded time period covered by plaintiffs’
claims. Docket No. 337 at 7. That same day Indiana Packers and Greater Omaha filed
supplemental motions to dismiss. 3 Docket Nos. 338, 339. Plaintiffs responded to
Indiana Packers’ and Greater Omaha’s motions to dismiss, Docket Nos. 346, 347, and
Indiana Packers and Greater Omaha replied. Docket Nos. 354, 357.
On March 26, 2025, the Court ruled on the second joint motion to dismiss.
Docket No. 400. The Court found that plaintiffs had not plausibly alleged a single
conspiracy to fix and depress wages at the processor defendants’ meat packing plants.
Id. at 23. Instead, because the allegations in the complaint demonstrated that non-
participants in the BIWI/PIWI surveys and the Red Meat Industry Compensation
Surveys were excluded from each other’s information, the amended complaint alleges
two parallel conspiracies to fix and depress wages (the “BIWI/PIWI conspiracy” and the
3 In the Court’s order ruling on the joint motion to dismiss, the Court granted
Greater Omaha’s request to join the joint motion to dismiss. Docket No. 400 at 2 n.1.
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“WMS conspiracy”). Id. at 23-27. The Court found that, while plaintiffs have plausibly
alleged their claims based on the BIWI/PIWI conspiracy, they have failed to
demonstrate the statute of limitations should be tolled from 2000 to the present due to
defendants’ fraudulent concealment. Id. at 54-63. The Court granted in part and denied
in part defendants’ joint motion to dismiss and dismissed plaintiffs’ claims based on the
BIWI/PIWI conspiracy for the period from 2000 to 2020 as to every defendant. Id. at 64.
II. 	LEGAL STANDARD
A. Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege
enough factual matter that, taken as true, makes the plaintiff’s “claim to relief . . .
plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The ‘plausibility’ standard
requires that relief must plausibly follow from the facts alleged, not that the facts
themselves be plausible.” RE/MAX, LLC v. Quicken Loans Inc., 295 F. Supp. 3d 1163,
1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)).
Generally, “[s]pecific facts are not necessary; the statement need only ‘give the
defendant fair notice of what the claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at
555) (alterations omitted). However, a plaintiff still must provide “supporting factual
averments” with his allegations. Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir.
2009) (“conclusory allegations without supporting factual averments are insufficient to
state a claim on which relief can be based” (citation omitted)). The court need not
accept conclusory allegations. Moffet v. Halliburton Energy Servs., Inc., 291 F.3d 1227,
1232 (10th Cir. 2002). “[W]here the well-pleaded facts do not permit the court to infer
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more than the mere possibility of misconduct, the complaint has alleged – but it has not
shown – that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (quotations and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A
plaintiff must nudge [his] claims across the line from conceivable to plausible in order to
survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s
allegations are “so general that they encompass a wide swath of conduct, much of it
innocent,” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191
(quotations omitted). Thus, even though modern rules of pleading are somewhat
forgiving, “a complaint still must contain either direct or inferential allegations respecting
all the material elements necessary to sustain a recovery under some viable legal
theory.” Bryson, 534 F.3d at 1286 (alterations omitted). An affirmative defense, such
as the statute of limitations, may be considered on a motion to dismiss under Rule
12(b)(6) only when a plaintiff admits every element of the affirmative defense in the
complaint. Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018)
(citing Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004)).
B. Sherman Act
Section 1 of the Sherman Act states that “[e]very contract, combination in the
form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the
several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. “While
the text of the Sherman Act could perhaps be interpreted to proscribe all contracts, the
Supreme Court has repeated time and again that § 1 outlaw[s] only unreasonable
restraints of trade.” United States v. Kemp & Assocs., Inc., 907 F.3d 1264, 1272 (10th
Cir. 2018) (internal quotations marks omitted). Certain restraints are unreasonable per
se “because they ‘always or almost always tend to restrict competition and decrease
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output.’” See Ohio v. Am. Express Co., 585 U.S. 529, 540 (2018) (quoting Bus. Elec.
Corp. v. Sharp Elec. Corp., 485 U.S. 717, 723 (1988)). Horizontal restraints “imposed
by agreement between competitors” qualify as “unreasonable per se.” Id. at 2284
(quoting Sharp, 485 U.S. at 730). “Restraints that are not unreasonable per se are
judged under the rule of reason” which “requires courts to conduct a fact-specific
assessment of market power and market structure to assess the restraint’s actual effect
on competition.” Id. (internal citations, quotations, and alterations omitted).
“The essence of a claim of a violation of Section 1 of the Sherman Act is the
agreement itself.” Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1082
(10th Cir. 2006). “The plausibility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 556); see also Llacua v. W. Range
Ass’n, 930 F.3d 1161, 1179 n.28 (10th Cir. 2019) (observing that it is erroneous to use a
probability standard to assess allegations in a Sherman Act claim). An agreement can
be shown through direct or indirect evidence. Champagne Metals, 458 F.3d at 1082.
“Direct facts are explicit and require no inferences. Direct evidence of a § 1 agreement
may take the form of a written contract or agreement, such as association rules, or
admissions of an agreement. In contrast, circumstantial facts require inferences to
show that an anti-competitive agreement exists.” Llacua, 930 F.3d at 1174 n.24
(internal citations, quotations, and alterations omitted). Twombly provides a rule for
determining whether plaintiff has sufficiently pled a claim of an agreement in violation of
the Sherman Act with circumstantial evidence, namely that “mere allegations of parallel
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conduct, absent additional contextual facts, fail to state a plausible conspiracy claim.”
See id. at 1174-75 (quoting Twombly, 550 U.S. at 556-57).
III. 	ANALYSIS
A. Statute of Limitations
Indiana Packers and Greater Omaha argue that the statute of limitations bars
plaintiffs’ claims against them. Docket No. 338 at 7; Docket No. 339 at 7 n.7; Docket
No. 343 at 14. Under the Clayton Act, 15 U.S.C. § 15b, a claim under the Sherman Act
“shall be forever barred unless commenced within four years after the cause of action
accrued.” Auraria Student Housing at the Regency, LLC, v. Campus Village
Apartments, LLC, 843 F.3d 1225, 1247 (10th Cir. 2016) (quoting 15 U.S.C. § 15b).
“[A]n overt act will restart the statute of limitations under the continuing conspiracy
exception when the act is (1) ‘a new and independent act that is not merely a
reaffirmation of a previous act’; and (2) the act ‘inflict[s] new and accumulating injury on
the plaintiff.’” Id. at 1248 (quoting Kaw Valley Elec. Coop. Co. v. Kansas Elec. Power
Coop., Inc., 872 F.2d 931, 933 (10th Cir. 1989)).
In the Court’s order on the second joint motion to dismiss, the Court found that
the amended complaint did not relate back to the filing of the original complaint under
Federal Rule of Civil Procedure 15(c). Docket No. 400 at 52-54; see also Fed. R. Civ.
P. 15(c)(1)(B) (“[a]n amendment to a pleading relates back to the date of the original
pleading when: . . . the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out – or attempted to be set out – in the original
pleading.”). Therefore, the Court concluded that the statute of limitations bars plaintiffs’
claims based on the BIWI/PIWI survey allegations for causes of action that accrued
before January 12, 2020. Docket No. 400 at 54.
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Indiana Packers and Greater Omaha argue that the last BIWI/PIWI surveys
identified in the amended complaint occurred in 2019 and therefore the claims against
them are time-barred. Docket No. 338 at 7; Docket No. 339 at 7 n.7. However, as
discussed in the Court’s order on the second joint motion to dismiss, while the amended
complaint does identify specific BIWI/PIWI surveys by date, the amended complaint
also alleges that the BIWI/PIWI surveys were conducted every year within the class
period and sometimes as many as four times a year. Docket No. 260 at 9, ¶ 9; Docket
No. 400 at 32. Moreover, as to Indiana Packers and Greater Omaha, the allegations in
the amended complaint allege that these defendants participated in “at least” the
surveys identified between 2000 and 2019, but it does not allege that these are the only
surveys in which they participated. Docket No. 260 at 34-37, ¶¶ 67, 69, 71. While a
statute of limitations defense may be resolved on a Rule 12(b)(6) motion when “the
dates given in the complaint make clear that the right sued upon has been
extinguished,” Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016),
here the allegations in the amended complaint do not make clear that Indiana Packers
and Greater Omaha did not participate in BIWI/PIWI surveys after 2019. Instead,
defendants’ statute of limitations defense raises an issue of fact. The Court will next
consider separately Indiana Packers’ and Greater Omaha’s motions to dismiss.
B. Greater Omaha
Greater Omaha argues that plaintiffs have failed to plausibly allege that it was
part of the conspiracy to fix and depress wages. Docket No. 338 at 3. First, Greater
Omaha argues that plaintiffs’ first claim fails to plausibly allege either direct or indirect
evidence of a conspiracy. Id. at 3-5. The Court has found that plaintiffs’ allegations lack
direct evidence of an agreement to depress and fix wages. Docket No. 219 at 20-21;
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Docket No. 400 at 29 n.12. Greater Omaha also argues that the amended complaint
fails to allege indirect evidence of a conspiracy because there are no allegations of
either parallel conduct or plus factors related specifically to the BIWI/PIWI surveys.
Docket No. 338 at 4-5. However, the Court has already rejected this argument, which
was made in defendants’ joint motion to dismiss and repeated in Greater Omaha’s
individual motion. Id.; Docket No. 337 at 18-24. As the Court discussed in its recent
order on the second joint motion to dismiss, Docket No. 400 at 29-39, plaintiffs have
alleged both parallel conduct and plus factors for this conspiracy through their
allegations regarding instances of wage depression in 2017 and 2018 and the exchange
of future compensation data. These allegations apply equally to Greater Omaha, who is
alleged to have participated in the exchange of BIWI surveys since at least 2000.
Docket No. 260 at 34-35, ¶¶ 66-67.
Greater Omaha next argues that, regardless of whether plaintiffs have plausibly
alleged their first claim for relief as to other defendants, plaintiffs “fail to plead facts
sufficient to support an inference that Greater Omaha joined any alleged conspiracy.”
Docket No. 338 at 4. Greater Omaha maintains that, “[s]ince liability hinges on a
conspirator’s ‘conscious commitment to a common scheme,’ courts must analyze
whether a complaint sufficiently alleges each separate defendant’s ‘conscious
commitment’ to the alleged conspiracy.” Id. at 2 (quoting Monsanto Co. v. Spray-Rite
Serv. Corp., 465 U.S. 752, 764 (1984)). Greater Omaha asserts that,
since Greater Omaha is not alleged to have participated in the [Red Meat
Industry Compensation Surveys], “Plaintiffs’ allegations that defendants
controlled the [Red Meat Industry Compensation Surveys] and deanonymized
the results at in-person meetings” and communicated during “roundtable
sessions” cannot be imputed to Greater Omaha “to support an inference of an
agreement” – especially considering Plaintiffs allege there existed “strict rules
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for . . . admission into and continued membership in the [Red Meat Industry
Compensation Surveys]” premised on participants’ attendance at [Red Meat
Industry Compensation Surveys] meetings, which would have prohibited Greater
Omaha from receiving the information allegedly exchanged through the [Red
Meat Industry Compensation Surveys].
Id. at 5 (quoting Docket No. 219 at 26, 28-29; citing Docket No. 260 at 34-35, 69-108,
112-16 ¶¶ 67, 188-340, 353).
Plaintiffs respond that they are not required to make allegations of either direct or
indirect evidence of a conspiracy as to each defendant. Docket No. 346 at 2. Plaintiffs
point out that in the Court’s order on the first set of individual motions to dismiss, Docket
No. 220, the Court rejected a similar argument, finding that “in a case involving an
alleged conspiracy among multiple actors and multiple acts[ ] ‘plaintiffs should be given
the full benefit of their proof without tightly compartmentalizing the various factual
components and wiping the slate clean after scrutiny of each. The character and effect
of a conspiracy are not to be judged by dismembering it as a whole.’” Id. at 1 (quoting
Docket No. 220 at 28 (quoting Heartland Surgical Specialty Hosp., LLC v. Midwest Div.,
Inc., 527 F. Supp. 2d 1257, 1293 (D. Kan. 2007))). Plaintiffs maintain that the
allegations in the complaint show that Greater Omaha “joined the conspiracy and
played a role in it.” Id. at 3. Specifically, plaintiffs assert that they “allege that Greater
Omaha engaged in multiple overt acts in furtherance of the conspiracy by participating
in at least 12 exchanges of current and future compensation data with other competing
Defendants through the BIWI during a 19 year period.” Id. They assert that “no courts
require plaintiffs to allege that each defendant participated in every facet of a wage-
fixing conspiracy; rather, they have long recognized that ‘[p]articipation by each
conspirator in every detail in the execution of the conspiracy is unnecessary.’” Id. at 3-4
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(quoting In re Broiler Antitrust Litig., 290 F. Supp. 3d 772, 803 (N.D. Ill. 2017)). Plaintiffs
argue that “[t]he allegations of Greater Omaha’s longstanding and consistent BIWI
participation are more than sufficient to make it plausible that Greater Omaha played
some role in the conspiracy.” Id. at 4.
At issue is whether these allegations are sufficient to show that Greater Omaha
joined the BIWI/PIWI conspiracy and the WMS conspiracy. Jung v. Ass’n of Am. Med.
Colleges, 300 F. Supp. 2d 119, 164 n.27 (D.D.C. 2004) (just because “a plaintiff need
not allege overt acts committed by each defendant in furtherance of a conspiracy” does
not mean “that plaintiffs need not plead that an individual defendant was a participant in
the conspiracy in the first instance”); see also Abraham v. Intermountain Health Care
Inc., 461 F.3d 1249, 1257 (10th Cir. 2006) (citing Monsanto, 465 U.S. at 764).
On a motion to dismiss, “a plaintiff’s pleading burden is to offer allegations that
plausibly suggest that the defendant agreed to the conspiracy, which, in the antitrust
context, is a conscious commitment to a common scheme designed to achieve an
unlawful objective.” In re Processed Egg Prod. Antitrust Litig., 821 F. Supp. 2d 709, 719
(E.D. Pa. 2011). Plaintiffs bear the “burden of adequately alleging that a conspiracy to
restrain trade existed in the first instance and that each defendant knowingly joined or
agreed to participate in the conspiracy.” Jung, 300 F. Supp. 2d at 161; In re TFT-LCD
(Flat Panel) Antitrust Litig., 586 F. Supp. 2d 1109, 1117 (N.D. Cal. 2008) (“the complaint
‘must allege that each individual defendant joined the conspiracy and played some role
in it because, at the heart of an antitrust conspiracy is an agreement and a conscious
decision by each defendant to join it’” (quoting In re Elec. Carbon Prods. Antitrust Litig.,
333 F. Supp. 2d 303, 311-12 (D.N.J. 2004)). Allegations that an individual defendant
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had the opportunity to join a conspiracy “are not enough, in and of themselves, to
support an inference that [a defendant] joined the conspiracy.” In re Processed Egg
Prod. Antitrust Litig., 902 F. Supp. 2d 704, 716 (E.D. Pa. 2012). Instead, plaintiffs must
allege facts that plausibly suggest that the individual defendant took advantage of the
opportunity to join the conspiracy and agreed to the common scheme. See, e.g., id.
(“The Winn–Dixie Complaint also alleges that Sparboe belonged to the UEP, served in
leadership positions within the UEP, and attended various meetings in which the
conspiracy was discussed. While such allegations are not enough, in and of
themselves, to support an inference that Sparboe joined the conspiracy, they do
indicate that Sparboe had an opportunity to do so. And by alleging that Sparboe
participated in the chick hatch reduction and a supply adjustment program, the Winn–
Dixie Plaintiffs plausibly suggest that Sparboe took advantage of this opportunity and
agreed to a common scheme to restrict the supply of eggs.”) (internal citations omitted).
In the Court’s order on the second joint motion to dismiss, the Court explained
that the sharing of future compensation data is “considered especially anticompetitive.”
Docket No. 400 at 38 (quoting Todd v. Exxon Corp., 275 F.3d 191, 211-12 (2d Cir.
2001)). The Court found that, because sharing future compensation data with
competitors would ordinarily place a company at a disadvantage, sharing such
information generally would not occur “unaided by an advance understanding among
the parties” and is conduct that indicates the sort of “sense of obligation that one
generally associates with agreement.” Id. at 37-38 (quoting In re Broiler Chicken
Antitrust Litig., 290 F. Supp. 3d 772, 790 (N.D. Ill. 2017)). The amended complaint
alleges that Greater Omaha participated in BIWI surveys at least in 2000, 2004, 2006-
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2009, 2011-2015, and 2019. Docket No. 260 at 34-35, ¶¶ 66-67. The amended
complaint also alleges that BIWI surveys contained sensitive compensation data,
including the amount and dates of planned future hourly wage increases. Id. at 8-9, ¶ 6.
The Court finds that these allegations are sufficient to plausibly allege that Greater
Omaha knowingly joined the BIWI/PIWI conspiracy because it is unlikely to have shared
its competitively sensitive compensation data without an advance agreement between
defendants to use the information for their mutual benefit, such as using the information
to depress wages.
However, the amended complaint also alleges that participants in the Red Meat
Survey Group “consisted exclusively of red meat processors that the Group recruited
after ensuring that they met the Group’s membership criteria”, including “that a
prospective member needed to have a red meat slaughter facility, a case-ready plant, or
a red meat cook plant.” Id. at 71-72, ¶¶ 193, 196-97 (the Red Meat Survey Group
“developed strict rules for a red meat processor’s admission into and continued
membership” in the group). Processor defendants who did not become members of the
group, did not pay an annual due, and did not attend in-person meetings had no access
to the compensation information circulated through the Red Meat Industry
Compensation Surveys. Id. at 71-72, ¶¶ 195, 198. There are no allegations in the
amended complaint that Greater Omaha was recruited into the Red Meat Survey
Group, that it exchanged competitively sensitive information through the Red Meat
Industry Compensation Surveys, or that it attended Red Meat Industry Compensation
Meetings. The amended complaint therefore does not plausibly allege that Greater
Omaha joined the WMS conspiracy. The Court will dismiss plaintiffs’ first and second
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claims against Greater Omaha to the extent they are based on its participation in the
WMS conspiracy.
Finally, Greater Omaha argues that plaintiffs have failed to plausibly allege their
second claim for relief against Greater Omaha because plaintiffs have not alleged
anticompetitive effects stemming from the BIWI/PIWI surveys. Docket No. 338 at 7.
Greater Omaha contends that “the failure of Plaintiffs’ allegations is more profound
regarding Greater Omaha” and that the Court should therefore dismiss plaintiffs’ second
claim as to it. Id. at 6. In the Court’s prior order on the joint motion to dismiss, the Court
found that plaintiffs plausibly state their rule of reason claim. Docket No. 400 at 39-45.
The Court rejected defendants’ argument that plaintiffs had failed to plausibly allege
anticompetitive effects from their agreement to exchange non-public, competitively
sensitive compensation data. Id. at 42. Instead, the Court found that plaintiffs have
plausibly alleged direct evidence of anticompetitive effects because plaintiffs’ allegations
of specific wage suppression at certain plants were attributed to both conspiracies. Id.
Moreover, the Court found that plaintiffs had plausibly alleged indirect evidence of
anticompetitive effects because the amended complaint alleged sufficient market share
among defendants and that defendants had exchanged future compensation data. Id.
at 43-45. Greater Omaha has not shown why, at the motion to dismiss stage, these
allegations are insufficient to state plaintiffs’ second claim against Greater Omaha.
Therefore, the Court will deny Greater Omaha’s motion to the extent it seeks to dismiss
plaintiffs’ claims based on its participation in the BIWI/PIWI conspiracy.
C. Indiana Packers
Indiana Packers claims that the few references to it in the amended complaint
“lack well-pled factual allegations linking [Indiana Packers] to any anticompetitive
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agreement to exchange wage data, let alone a sprawling, 20-year, industry-wide
conspiracy to suppress wages.” Docket No. 339 at 1. Indiana Packers argues that the
amended complaint asserts that defendants conspired to fix and depress wages
through the exchange of competitively sensitive information via WMS, Agri Stats, and
BIWI/PIWI surveys, but the amended complaint alleges that Indiana Packers
participated in only Agri Stats and PIWI surveys. Id. at 1-2. As such, Indiana Packers
maintains that plaintiffs cannot rely on their WMS allegations to support their conspiracy
claims against it. Id. at 2.
Indiana Packers asserts that plaintiffs’ conspiracy claims are implausible
because the complaint does not show direct evidence of Indiana Packers harming
competition or that Indiana Packers had the market power necessary to support an
indirect inference of harm. Id. at 3. However, Indiana Packers’ argument regarding
market power misses the point. While it is true that, “[i]n the absence of a horizontal
conspiracy, grouping the [defendants’] market share together is inappropriate,”
Bookhouse of Stuyvesant Plaza, Inc. v. Amazon.com, Inc., 985 F. Supp. 2d 612, 622
(S.D.N.Y. 2013) (citing Wellnx Life Sciences Inc. v. Iovate Health Sciences Research
Inc., 516 F. Supp. 2d 270, 294 (S.D.N.Y. 2007)), here, plaintiffs allege a horizontal
conspiracy to depress wages across red meat processing plants. See, e.g., Buccaneer
Energy (USA) Inc. v. Gunnison Energy Corp., 846 F.3d 1297, 1316 (10th Cir. 2017)
(analyzing defendants market power collectively); In re Disposable Contact Lens
Antitrust, 215 F. Supp. 3d 1272, 1302 (M.D. Fla. 2016) (“To establish potential harm, a
plaintiff must define the relevant market and establish that the defendants possessed
power in that market, and make specific allegations linking market power to harm to
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competition in that market.” (citation and quotation omitted)). Indiana Packers
acknowledges that the amended complaint alleges that the other defendants “dominate
the pork industry,” Docket No. 339 at 3 (citing 260 at 107, ¶ 338), and defendants’
market power could only be greater by including Indiana Packers in the conspiracy.
Next, Indiana Packers argues that, because the allegations regarding the
BIWI/PIWI surveys make general allegations regarding their contents, but do not
specifically include Indiana Packers, plaintiffs do not plausibly allege their conspiracy
claims as to Indiana Packers. Id. at 4. Indiana Packers focuses on plaintiffs’ allegation
that
[e]ach BIWI and PIWI also included a column that reported future wages.
Specifically, Defendant Processors reported, for each plant, the “next scheduled
increase.” Under this column, a Defendant Processor would report a certain
dollar amount for a future wage increase, as well as a date for the next
scheduled increase. Accordingly, the BIWI and PIWI reports allowed
participating Defendant Processors not only to compare their current hourly
wages at each of their respective red meat processing plants, but also to
compare planned future wage increases at those plants.
Id. at 5 (quoting Docket No. 260 at 65, ¶ 181). Indiana Packers claims that the
“allegation comes nowhere close to providing the required detail needed to state a claim
as to IPC.” Id. Specifically, Indiana Packers argues that this allegation is insufficient
because it does not allege that any PIWI reports contained Indiana Packers’ next
scheduled increase, or that Tyson communicated with anyone at Indiana Packers. Id.
at 5-6. However, the allegations in the amended complaint are sufficient to show that
Indiana Packers participated in the PIWI survey exchanges. The amended complaint
generally describes what information was contained in the PIWI surveys, including the
exchange of present and future compensation data. Docket No. 260 at 65, ¶ 181. The
amended complaint also alleges that participants were required to provide such
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information in order to receive it from other participants and that Tyson conducted the
surveys. Id. at 8-9, ¶¶ 6, 8. Finally, the amended complaint alleges that Indiana
Packers participated in PIWI surveys at least in 2000, 2002, 2005-2009, 2011, 2013,
and 2019. Id. 36-37, ¶ 71. As discussed above, this is sufficient to plausibly allege that
Indiana Packers joined the BIWI/PIWI conspiracy. Therefore, the Court will not dismiss
plaintiffs’ claims against Indiana Packers based on its participation in the BIWI/PIWI
conspiracy.
Indiana Packers contends that mere participation in Agri Stats is insufficient to
show that they participated in either a conspiracy to depress wages or to share
competitively sensitive information. Docket No. 339 at 3. The amended complaint
alleges that, during the class period, “Indiana Packers subscribed to Agri Stats to
exchange current, disaggregated, readily decodable and plant-specific compensation
data with competing pork processors on a monthly basis.” Docket No. 260 at 36-37,
¶ 71. Because the Court has found that the amended complaint alleges two separate
conspiracies, the question remains whether this allegation is sufficient to allege that
Indiana Packers joined the WMS conspiracy. Plaintiffs argue that they have alleged a
single conspiracy to depress wages, which argument the Court has rejected, Docket
No. 400 at 23, and that plaintiffs have plausibly alleged that Indiana Packers was
involved in the conspiracy because Indiana Packers participated in PIWI surveys and
Agri Stats. Docket No. 347 at 3-7.
The Court finds that plaintiffs have failed to plausibly allege that Indiana Packers
participated in the WMS conspiracy. There are no allegations in the amended
complaint that Indiana Packers was recruited to join the Red Meat Survey Group, that it
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exchanged competitively sensitive information through the Red Meat Industry
Compensation Surveys, or that it attended Red Meat Industry Compensation Meetings.
Because Indiana Packers was excluded from the Red Meat Survey Group, it is not
plausible that it conspired with members of the group to fix and depress wages by
sharing wage information that Indiana Packers could not access. 4 Therefore, the Court
will dismiss plaintiffs’ first and second claims against Indiana Packers to the extent that
they are based on Indiana Packers’ participation in the WMS conspiracy. 5
IV. 	CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant Greater Omaha Packing Co., Inc.’s Motion to Dismiss
[Docket No. 338] is DENIED in part and GRANTED in part. It is further
4 The Court notes that each defendant is alleged to have either exchanged
compensation information through BIWI/PIWI surveys or through the Red Meat
Compensation Surveys. See Docket No. 351 at 19. For the reasons discussed in the
Court’s order on the first set of individual motions to dismiss, participation in the Red
Meat Compensation Surveys is sufficient to plausibly allege that a defendant joined the
WMS conspiracy. See Docket No. 220. As discussed above, participation in the
BIWI/PIWI surveys is sufficient to demonstrate participation in the BIWI/PIWI
conspiracy. Finally, the issue of whether plaintiffs have plausibly alleged that Agri Stats
joined either conspiracy or whether plaintiffs have plausibly stated their rule of reason
claim against Agri Stats is not before the Court.
5 Because the Court has found that plaintiffs plausibly allege their first and
second claims against Indiana Packers based on its participation in the BIWI/PIWI
conspiracy, the Court will deny Indiana Packers’ request for a more definite statement.
See Docket No. 339 at 7; May v. Rottinghaus Co., Inc., 394 F. Supp. 3d 1334, 1338 (D.
Kan. 2019) (a “motion for a more definite statement should not be granted merely
because the pleading lacks detail; rather, ‘the standard to be applied is whether the
claims alleged are sufficiently specific to enable a responsive pleading in the form of a
denial or admission.’” (quoting Creamer v. Ellis Ctny. Sheriff Dept., 2009 WL 484491, at
*1 (D. Kan. Feb. 26, 2009)).
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ORDERED that plaintiffs’ first and second claims against defendant Greater
Omaha Packing Co., Inc. are DISMISSED to the extent they are based on Greater
Omaha Packing Co., Inc.’s participation in the WMS conspiracy. It is further
ORDERED that IPC’s Motion to Dismiss for Failure to State a Claim, or in the
Alternative, Motion for a More Definite Statement [Docket No. 339] is DENIED in part
and GRANTED in part. It is further
ORDERED that plaintiffs’ first and second claims against defendant Indiana
Packers Corporation are DISMISSED to the extent they are based on Indiana Packers
Corporation’s participation in the WMS conspiracy.
DATED March 26, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
__________________________________________________________	_ _______________________________________________________________	_ _______________________________________________	_____________________________________
PHILIP A BRIMMER
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