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Price Fixing in the Food Industry

When people think about this year’s food industry trends, they may envision app-based grocery delivery services, the Keto diet, and restaurants that serve all locally-sourced ingredients.

But inside federal courthouses across the country, the Department of Justice and civil plaintiffs have been highlighting a darker trend within the food business: price fixing.

Under United States antitrust law, price fixing is defined as an agreement among competitors that raises, lowers, or stabilizes prices or competitive terms. The U.S. antitrust laws require that each company establish prices on its own without agreeing with a competitor on a price to charge consumers. The driving force behind our antitrust laws is simple: when competitors agree to restrict competition and inhibit a free market, it results in higher prices. And an agreement to restrict production, sales, or output of a product or service is just as illegal as direct price fixing because reducing the supply of a product or service drives up its price.

In January 2018, poultry distributors filed civil lawsuits against seventeen of the country’s largest wholesale chicken producers, including Tyson, Pilgrim’s Pride, and Perdue. The lawsuits allege that poultry manufacturers worked together for years to both restrict the supply of chickens being raised and manipulate an index of chicken prices used by the industry. The allegations against the poultry giants are disturbing: plaintiffs contend that manufacturers went so far as to destroy breeder hens and kill newly-hatched chicks in an effort to reduce their supply chain.

In May 2018, the CEO of Bumble Bee Foods became the fourth tuna industry executive to be criminally charged with fixing the price of canned tuna fish. Bumble Bee pleaded guilty in May 2017 to conspiring to fix tuna prices and paid a $25 million fine. On October 18, 2018, federal prosecutors announced that StarKist had also agreed to plead guilty, and would be facing a fine of up to $100 million. Two former Bumble Bee executives and a former StarKist executive have also each pleaded guilty to price-fixing charges. So far, more than 70 civil lawsuits have been filed against Bumble Bee, Starkist, and Chicken of the Sea arising out of this conspiracy.

Additionally, in July 2018, nine pork producers were named as defendants in a new lawsuit accusing them of colluding to limit pork production, with the “intent and expected result” of increasing pork prices.

Price fixing of food products isn’t limited to the United States. Earlier this year, the Competition Bureau of Canada announced its investigation against leading Canadian wholesalers and retailers for engaging in a fifteen year conspiracy to fix the price of bread products sold in grocery stores.

© 2020 Bilzin Sumberg Baena Price & Axelrod LLPNational Law Review, Volume VIII, Number 299


About this Author

Lori Lustrin, Commercial Litigation Attorney, Bilzin Sumberg Law Firm

Lori is a general commercial litigator who focuses on complex class-action and plaintiff opt-out antitrust litigation in federal court. In addition to antitrust work, her class action experience includes defending clients in the consumer products, homebuilding, real estate investment, and food and beverage industries.

Lori has also taken an interest in the emerging area of healthcare antitrust litigation and she has authored several articles on the subject. In addition to her varied federal court work, Lori has substantial experience in complex business litigation...

Melissa Pallet-Vasquez, Litigation Attorney, Bilzin Sumberg Law Firm

Melissa Pallett-Vasquez is a Partner in Bilzin Sumberg's Litigation Group. She handles complex commercial litigation matters, class actions and arbitrations, often on behalf of clients from Canada. Melissa represents clients in a number of areas including real estate-related contracts, partnership and joint venture agreements, defense of intentional tort claims, internal investigations and intellectual property litigation. Melissa has substantial courtroom experience, including numerous federal and state trials, as well as international and domestic arbitrations, and in certain cases, appeal.

Melissa's significant ties in Canada and her fluency in French are particularly helpful in assisting her international clients with their legal needs in the South Florida business community. Melissa is consistently recognized for her expertise, having been named a "40 Under 40" honoree by both the Daily Business Review and the South Florida Business Journal. Since 2010, she has been recognized by Florida Super Lawyers as a "Florida Rising Star."

Ilana Drescher, Bilzin Sumberg Law Firm, New Jersey, Corporate and Litigation Law Attorney

Having served as a law clerk to Judge William J. Martini of the U.S. District Court for the District of New Jersey, Ilana leverages her firsthand federal court experience when handling her cases. During her tenure as a law clerk, Ilana managed a diverse caseload including a major antitrust trial. Ilana guides clients through complex business litigation and antitrust disputes.

A strong writer, Ilana honed the art of persuasive writing during her time with the Court and as a member of the Executive Board for the Journal of Legislation and Public...