Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 1 of 30 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

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1 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 1 of 30 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Barry K. Winters d/b/a BKW Farms, Stacy Preston Winters, Paul D. Sogn and Rachelle D. Sogn d/b/a Wintersogn Farm, LLC, Michael A. Webb, Rickard W. Jackson, Jackson Farms, Inc., James M. Schaer, Julie A Schaer, Scott R. Vierck, Fred P. Bussman, John L. Meyer, John L. Meyer Cranberries, Inc., Christopher M. Bussman, Deanna M. Bussman, Charles V. Goldsworthy and Timothy R. Goldsworthy d/b/a ThunderLake- Tomahawk Cranberries, Inc. and H.E. Querry, Inc. on behalf of themselves and all others similarly situated as a class, Plaintiffs, Civil Action No. 1:12-cv RWZ Oral Argument Requested v. Ocean Spray Cranberries, Inc., an agricultural cooperative, and Ocean Spray Brands, LLC, a limited liability company, Defendants. MEMORANDUM IN SUPPORT OF OCEAN SPRAY CRANBERRIES, INC. AND OCEAN SPRAY BRANDS, LLC S MOTION TO DISMISS

2 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 2 of 30 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii INTRODUCTION...1 STANDARD OF REVIEW...1 ARGUMENT...2 I. PLAINTIFFS DO NOT PLAUSIBLY STATE A CLAIM FOR RELIEF AGAINST OCEAN SPRAY BRANDS, LLC BECAUSE THEY DO NOT ALLEGE THAT OCEAN SPRAY BRANDS ENGAGED IN ANY ILLEGAL CONDUCT...2 II. PLAINTIFFS CLAIMS IN SEVERAL COUNTS FAIL BECAUSE THEY DO NOT INVOKE ANY STATUTE OR COMMON LAW UNDER WHICH THEY CAN STATE A CLAIM (COUNTS I, II, VI, VII, XII)...3 A. The Capper-Volstead Act Is An Affirmative Defense To A Claim That An Agricultural Cooperative Has Violated The Antitrust Laws And Not A Statute That The Cooperative Can Violate (Counts I, II)...3 B. Plaintiffs Catch-All Counts Do Not Assert Causes Of Action Separate From Those In Other Counts Of The Complaint (Counts VI, VII, XII)...6 III. PLAINTIFFS CANNOT BASE ANY CAUSE OF ACTION ON OCEAN SPRAY S ALLEGED VIOLATION OF A CONSENT DECREE (COUNTS III, V)...6 A. Plaintiffs Claim That Ocean Spray Violated Chapter 93A Because It Supposedly Violated The Consent Decree Is Wrong As A Matter Of Law...7 B. Plaintiffs Were Not Parties To The Consent Decree, And Thus Have No Standing To Seek To Enforce It...7 C. Rule 71 Does Not Provide Plaintiffs With An Independent Basis To Claim That They Have A Right To Enforce The Consent Decree...8 IV. PLAINTIFFS CLAIMS THAT OCEAN SPRAY AND OCEAN SPRAY BRANDS CONSPIRED WITH EACH OTHER ARE NOT COGNIZABLE AS A MATTER LAW (COUNTS X, XI)...9 V. PLAINTIFFS CLAIM THAT OCEAN SPRAY AND OCEAN SPRAY BRANDS CONSPIRED TO FIX PRICES ALSO FAILS BECAUSE PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED FACTS THAT THE DEFENDANTS ENGAGED IN ANY CONDUCT NOT IMMUNIZED UNDER THE CAPPER-VOLSTEAD ACT...10

3 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 3 of 30 A. The Capper-Volstead Act Exempts Ocean Spray (And Its Wholly Owned Subsidiary) From Liability Under Section 1 Of The Sherman Act For Setting The Price At Which Ocean Spray Sells Cranberry Concentrate...10 B. Plaintiffs Have Not Alleged Facts That Undermine Ocean Spray s Capper- Volstead Act Immunity...12 VI. VII. VIII. IX. PLAINTIFFS SECTION 2 CLAIMS FAIL BECAUSE THEY DO NOT ALLEGE THAT OCEAN SPRAY ENGAGED IN EXCLUSIONARY CONDUCT (COUNTS VIII, IX)...13 THE COURT ALSO SHOULD DISMISS ALL OF PLAINTIFFS SHERMAN ACT CLAIMS BECAUSE PLAINTIFFS DO NOT ALLEGE AN ANTITRUST INJURY (COUNTS VIII, IX, X, XI)...16 PLAINTIFFS DO NOT ALLEGE THAT EITHER DEFENDANT ENGAGED IN ANY CONDUCT THAT RISES TO THE LEVEL OF A VIOLATION OF CHAPTER 93A (COUNT IV)...18 THE SOGN AND WINTERS PLAINTIFFS CLAIM THAT OCEAN SPRAY UNLAWFULLY TERMINATED THEIR CONTRACTS IS NOT ACTIONABLE AS A MATTER OF LAW (COUNT XIII)...19 CONCLUSION...20 ii

4 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 4 of 30 TABLE OF AUTHORITIES CASES Page(s) Aiken v. City of Memphis, 37 F.3d 1155 (6th Cir. 1994)...8 Alexander v. National Farmers Organization, 687 F.2d 1173 (8th Cir. Mo. 1982)...4, 12, 13 Allen v. Dairy Farmers of America, Inc., 748 F. Supp. 2d 323 (D. Vt. 2010)...4 Americana Industries Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625 (1st Cir. 1977)...15, 17 Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519 (1983)...18 Astra Media Group, LLC v. Clear Channel Taxi Media, LLC, 679 F. Supp. 2d 413 (S.D.N.Y. 2009)...15 Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328 (1990)...16, 17 Austin v. Blue Cross & Blue Shield, 903 F.2d 1385 (11th Cir. 1990)...18 Banco Santander de P.R. v. Lopez-Stubbe (In re Colonial Mortgage Bankers Corp.), 324 F.3d 12 (1st Cir. 2003) Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227 (1st Cir. 1983)...15 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)...1 Biovail Corp. International v. Hoechst Aktiengesellschaft, 49 F. Supp. 2d 750 (D.N.J. 1999)...8 Blake v. Professional Coin Grading Service, No WGY, 2012 U.S. Dist. LEXIS (D. Mass. Oct. 16, 2012)...8 iii

5 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 5 of 30 Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975)...8 Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993)...14 Brown v. America Honda (In re New Motor Vehicles Canadian Export Antitrust Litigation), 522 F.3d 6 (1st Cir. 2008)...16 Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977)...16 C.B. Trucking, Inc. v. Waste Management, Inc., 944 F. Supp. 66 (D. Mass. 1996), aff'd, 137 F.3d 41 (1st Cir. 1998)...15 CCBN.com, Inc. v. Thomson Finance, Inc., 270 F. Supp. 2d 146 (D. Mass. 2003)...14 C.R. Bard, Inc. v. Medical Electronics Corp., 529 F. Supp D. Mass Case-Swayne Co. v. Sunkist Growers, Inc., 389 U.S. 384 (1967)...12 Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 79 F.3d 182 (1st Cir. 1996)...14 Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984)...10 DJ Manufacturing Corp. v. Tex-Shield, Inc., 275 F. Supp. 2d 109 (D.P.R. 2002), overruled on other grounds, 337 F.3d 56 (1st Cir. 2003)...14 Data Processing Finance & General Corp. v. IBM Corp., 430 F.2d 1277 (8th Cir. 1970)...8 Davis, Malm, D Agostine P.C. v. Vale, No , 2005 WL (Mass. Super. Ct. Mar. 31, 2005)...19 Fairdale Farms, Inc. v. Yankee Milk, Inc., 635 F.2d 1037 (2d Cir. 1980)...16 GMO Trust v. ICAP Plc, No DPW, 2012 U.S. Dist. LEXIS (D. Mass. Oct. 18, 2012)...18 iv

6 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 6 of 30 GVF Cannery, Inc. v. California Tomato Growers Association, 511 F. Supp. 711 (N.D. Cal. 1981)...11, 12 Gagliardi v. Sullivan, 513 F.3d 301 (1st Cir. 2008)...1 Garshman v. Universal Resources Holding, Inc., 824 F.2d 223 (3d Cir. 1987)...11 High-Tech Communications, Inc. v. Panasonic Co., No , 1995 WL (E.D. La. Feb. 15, 1995)...20 Hinds County v. Wachovia Bank N.A., 620 F. Supp. 2d 499 (S.D.N.Y. 2009)...3 In re Processed Egg Products Antitrust Litigation, 836 F. Supp. 2d 290 (E.D. Pa. 2011) In re Processed Egg Products Antitrust Litigation, 821 F. Supp. 2d 709 (E.D. Pa. 2011)...3 Invamed, Inc. v. Barr Laboratories, Inc., 22 F. Supp. 2d 210 (S.D.N.Y. 1998)...2, 6 Jackson v. Astrue, No. 3:08-cv-461-J-34TEM, 2011 U.S. Dist. LEXIS 8552 (M.D. Fla. Jan. 28, 2011)...9 Lasky v. Quinlan, 558 F.2d 1133 (2d Cir. 1977)...9 Laudano v. 214 South Street Corp., 608 F. Supp. 2d 185 (D. Mass. 2009)...20 Maryland & Virginia Milk Producers Ass n v. United States, 362 U.S. 458 (1960)...4, 11 National Union Electric Corp. v. Emerson Electric Co., No. 81 C 1912, 1981 U.S. Dist. LEXIS (N.D. Ill. July 23, 1981)...8 New York News, Inc. v. Kheel, 972 F.2d 482 (2d Cir. 1992)...9 Odishelidze v. Aetna Life & Casualty Co., 853 F.2d 21 (1st Cir. 1988)...10 v

7 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 7 of 30 PMP Associates, Inc. v. Globe Newspaper Co., 321 N.E.2d 915 (Mass. 1975)...19 Pimental v. Wachovia Mortgage Corp., 411 F. Supp. 2d 32 (D. Mass. 2006)...19 Port Drum Co. v. Umphrey, 852 F.2d 148 (5th Cir. 1988)...9 Precision Associates, Inc. v. Panalpina World Transport (Holding) Ltd., 08-CV (JG) (VVP), 2012 U.S. Dist. LEXIS (E.D.N.Y. Aug. 13, 2012)...3 Sanchez v. Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009)...2 Sterling Merchandising, Inc. v. Nestle, S.A., 656 F.3d 112 (1st Cir. 2011)...16 Sterling Merchandising, Inc. v. Nestle, S.A., 724 F. Supp. 2d 245 (D.P.R. 2010), aff'd, 656 F.3d 112 (1st Cir. 2011)...10 Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931)...16 Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19 (1962)...5 Town of Concord v. Boston Edison Co., 915 F. 2d 17 (1st Cir. 1990)...14 United States v. National Cranberry Ass n, No S, 1957 U.S. Dist. LEXIS 4199 (D. Mass. Oct. 28, 1957)...6 Wagner v. Circle W Mastiffs, 732 F. Supp. 2d 792 (S.D. Ohio 2010)...16 Waters v. National Farmers Organization, Inc., 328 F. Supp (S.D. Ind. 1971)...12, 13 Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 549 U.S. 312 (2007)...14, 15 Williams v Columbia Pike Corp., 891 F. Supp (E.D. Va. 1995)...11 vi

8 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 8 of 30 Yachting Promotions, Inc. v. Broward Yachts, Inc., 792 So. 2d 660 (Fla. Dist. Ct. App. 2001)...20 Zurich American Insurance Co. v. Watts Regulator Co., 796 F. Supp. 2d 240 (D. Mass. 2011)...7, 18 OTHER AUTHORITIES Fed. R. Civ. P H.R. Rep. No (1921)...12 Mass. Gen. Laws ch. 93A, 2(a)...7, 18 Mass. Gen. Laws ch. 93A, , 18 7 U.S.C , U.S.C U.S.C. 2072(b)...9 vii

9 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 9 of 30 INTRODUCTION Plaintiffs complaint, while styled as an action for violations of multiple statutes and a 55-year-old consent decree, is in reality a wholesale attack on Ocean Spray s success in building an iconic, world-wide brand of cranberry based products. Ocean Spray is an agricultural cooperative composed of over 700 cranberry growers. The plaintiffs are disgruntled cranberry growers who want to get paid more for their crop. Most of them sell their cranberries to middlemen. The others are members of Ocean Spray s B Pool. Pursuant to a contract with Ocean Spray, the B Pool plaintiffs grow cranberries that Ocean Spray uses to make cranberry concentrate. Plaintiffs primary complaint is that Ocean Spray sells cranberry juice concentrate to its own customers at low prices and that, as a result, plaintiffs have lost a great deal of money. Blissfully ignoring the laws of supply and demand that, in the real world, are responsible for the prices for many agricultural commodity products, including cranberries, plaintiffs seek this Court s intervention to stop Ocean Spray from offering competitive prices. Fortunately, neither the antitrust laws nor Massachusetts state law is available to assist plaintiffs in this endeavor. STANDARD OF REVIEW To survive a motion to dismiss, plaintiffs must allege a cognizable claim for relief. Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008). That means that, at a minimum, a complaint must contain the elements necessary to sustain recovery under some actionable legal theory. Id. (citation omitted) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, (2007) (holding that a complaint must contain enough facts to state a claim to relief that is plausible on its face. ). Plaintiffs have not met this basic pleading standard for any of the counts in their complaint.

10 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 10 of 30 ARGUMENT I. PLAINTIFFS DO NOT PLAUSIBLY STATE A CLAIM FOR RELIEF AGAINST OCEAN SPRAY BRANDS, LLC BECAUSE THEY DO NOT ALLEGE THAT OCEAN SPRAY BRANDS ENGAGED IN ANY ILLEGAL CONDUCT Plaintiffs purport to assert multiple claims against Ocean Spray Brands, LLC, an entity that, they concede, is a wholly owned subsidiary of Ocean Spray. Compl. 10. They claim in conclusory fashion in Counts X and XI that Ocean Spray Brands conspired with Ocean Spray to fix prices and to monopolize and monopsonize the cranberry market. Compl. 10, , They also assert claims against Ocean Spray Brands under Massachusetts General Laws Chapter 93A (Counts IV and V) and bring three counts against the company that do not identify any particular causes of action (Counts VI, VII and XII). But legal conclusions do not suffice to state a claim under Twombly that is sufficient to withstand dismissal under Rule 12(b)(6). Instead, plaintiffs must plead factual content that allows the court to draw the reasonable inference that [Ocean Spray Brands] is liable for the misconduct alleged. Sanchez v. Pereira-Castillo, 590 F.3d 31, 48 (1st Cir. 2009). Here, however, plaintiffs do not allege that Ocean Spray Brands actually engaged in any of the conduct that allegedly gives rise to their claims. Plaintiffs allege that Ocean Spray set up the A and B Pools and their payment structure (id. 42, 74), that Ocean Spray established rules regarding membership in the A Pool (id. 46), and that Ocean Spray runs the alleged sham auctions that are the foundation of plaintiffs price fixing claim. Id They also claim that Ocean Spray is the alleged monopolist and monopsonist, not Ocean Spray Brands. Id A plaintiff does not state a claim against a corporation through allegations that a related entity violated the law. Invamed, Inc. v. Barr Labs., Inc., 22 F. Supp. 2d 210, (S.D.N.Y. 1998) ( [Plaintiff] cannot rely on its allegation that... another defendant engaged in monopolistic practices... to satisfy its requirement that [affiliated companies] too [engaged in 2

11 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 11 of 30 such conduct]. ); Precision Assocs. v. Panalpina World Transp. (Holding) Ltd., No. 08-CV (JG) (VVP), 2012 U.S. Dist. LEXIS , at *10-13 (E.D.N.Y. Aug. 13, 2012) (adopting magistrate s order and rejecting plaintiffs group pleading by families of affiliated companies because the bare allegation that one defendant is the subsidiary of another and therefore also participated in a conspiracy fails to satisfy Twombly). Plaintiffs repeated allegations that defendants engaged in a conspiracy and that defendants actions constitute unfair and deceptive practices do not save their claims against Ocean Spray Brands. See, e.g., Compl. 50, 52, 56, 130, 131, 137, 138, and 144. A plaintiff must allege facts that relate separately to each defendant to satisfy Twombly. See, e.g., Hinds Cnty. v. Wachovia Bank, 620 F. Supp. 2d 499, 530 (S.D.N.Y. 2009) (dismissing claims that asserted only conclusory and perfunctory allegations as to all defendants, but failed to allege facts regarding each particular defendant s involvement in the alleged conspiracy); In re Processed Egg Prods. Antitrust Litig., 821 F. Supp. 2d 709, 720, (E.D. Pa. 2011) (granting motion to dismiss certain entities for group pleading because more than mere repetitive generic reference to Defendants tacked on to a conclusory verb form is needed to connect an individual defendant to an actual agreement in an antitrust conspiracy, and [s]imply using the global term defendants... without any specific allegations that would tie each particular defendant to the conspiracy is not sufficient (citation omitted)). II. PLAINTIFFS CLAIMS IN SEVERAL COUNTS FAIL BECAUSE THEY DO NOT INVOKE ANY STATUTE OR COMMON LAW UNDER WHICH THEY CAN STATE A CLAIM (COUNTS I, II, VI, VII, XII) A. The Capper-Volstead Act Is An Affirmative Defense To A Claim That An Agricultural Cooperative Has Violated The Antitrust Laws And Not A Statute That The Cooperative Can Violate (Counts I, II) Count I of the complaint, entitled Violation of Capper-Volstead Act alleges that Ocean Spray s actions in fail[ing] to administer the cooperative for the mutual benefit of its B pool 3

12 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 12 of 30 members constitute violations of the Capper-Volstead Act. Compl Count II alleges that Ocean Spray s violation of the Capper-Volstead Act has injured Plaintiffs and the members of the B Pool Class. Id. 97. Each count seeks $120,000,000 and an injunction for the same alleged violation of the Capper-Volstead Act. Id. 95, 98. These claims are legally baseless. The Capper-Volstead Act gives persons engaged in the production of agricultural products an affirmative defense to a claim that their conduct violates the antitrust laws. Alexander v. Nat l Farmers Org., 687 F.2d 1173, 1184 (8th Cir. 1982) ( the exemption is an affirmative defense ); Allen v. Dairy Farmers of Am., Inc., 748 F. Supp. 2d 323, 345 (D. Vt. 2010) ( Capper-Volstead immunity [is] an affirmative defense to be established by a defendant seeking its protections (citing cases)). The Capper-Volstead Act was designed to expand the cooperative exemption of Section 6 of the Clayton Act, 15 U.S.C. 17 (providing that neither agricultural organizations nor their members shall be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws ). Md. & Va. Milk Producers Ass n v. United States, 362 U.S. 458, (1960). The effect of these statutes is to enable farmers, dairymen, growers and other producers of agricultural products to work together to market their products and sell those products at the prices that they choose. Because it is an affirmative defense to an antitrust claim against an agricultural cooperative, the Capper-Volstead Act does not create a cause of action; it is a shield, not a sword. In In re Processed Egg Products Antitrust Litigation, the defendant agricultural cooperatives argued that they had lawfully removed a case alleging that they had violated the Kansas Antitrust Act to a federal court, because they intended to assert that their conduct was exempt from antitrust liability under the Capper-Volstead Act. 836 F. Supp. 2d 290, 293 (E.D. Pa. 2011). The court noted that the Act would completely preempt state antitrust laws (and thus 4

13 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 13 of 30 justify removal) if it contained civil enforcement provisions within the scope of which plaintiffs claim falls and evidenced a clear indication that Congress intended that the federal remedy be exclusive. Id. at 300. The court explained that the defendants appear to recognize that any federal cause of action in antitrust cases involving agricultural producers arises under the Sherman Act, not the Capper-Volstead Act or similar federal law and they conceded that federal antitrust law does not preempt all state antitrust law. Id. at 301 & n.13. Since the Capper-Volstead Act does not create a cause of action, the court held that defendants had not identified a federal cause of action that preempted the state antitrust claim at issue and that the defense did not support removal. Moreover, the Capper-Volstead Act does not contain any provisions that an agricultural cooperative can violate. The Act provides that [p]ersons engaged in the production of agricultural products... may act together in associations,... may have marketing agencies in common[,]... and may make the necessary contracts and agreements to effect such purposes, if they satisfy certain conditions. 1 7 U.S.C Thus, if the members of an agricultural cooperative choose to satisfy the Act s conditions, they are immune from liability for collective activities that might otherwise violate the antitrust laws. If they do not satisfy the conditions, the Act does not insulate their activities from potential antitrust scrutiny. Sunkist Growers, Inc. v. Winckler & Smith Citrus Prods. Co., 370 U.S. 19, (1962). But there is nothing in the Act 1 The Act allows producers to engage in the described conduct [p]rovided, however that the association is operated for the mutual benefit of the members thereof, as such producers, and conform[s] to one or both of the following requirements: First[:] That no member of the association is allowed more than one vote because of the amount of stock or membership capital he may own therein, or, Second[:] That the association does not pay dividends on stock or membership capital in excess of 8 per centum per annum. 7 U.S.C The Act provides the additional condition that the association shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members. Id. 5

14 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 14 of 30 that mandates that the members of an agricultural cooperative do anything. Plaintiffs cannot use the Act to sue Ocean Spray for failing to do something that it is has no legal obligation to do. Finally, there is no basis for plaintiffs claim that the alleged violation establishes a cause of action under Chapter 93A. Plaintiffs do not suggest how the alleged failure to satisfy the Capper-Volstead Act s conditions is unfair and deceptive, or supports a claim independent of their other 93A claims. The Court should dismiss both counts. B. Plaintiffs Catch-All Counts Do Not Assert Causes Of Action Separate From Those In Other Counts Of The Complaint (Counts VI, VII, XII) Plaintiffs claim that Ocean Spray and Ocean Spray Brands alleged violations of the Capper-Volstead Act, the consent decree, the Sherman Act, and Chapter 93A show a deliberate disregard for the law and Defendants responsibilities under it. Compl. Counts VI, VII and XII, 116, 118, 144. But plaintiffs do not assert any statutory or common law cause of action that arises from a defendant s deliberate disregard of any other laws, or of the consent decree that plaintiffs reference. Thus, plaintiffs claims in these catch-all counts are simply restatements of their other claims, and the Court should dismiss them as redundant. See, e.g., Invamed, 22 F. Supp. 2d at 217 (claims that are redundant and duplicative are subject to dismissal; a plaintiff may not plead the same claim more than once ). III. PLAINTIFFS CANNOT BASE ANY CAUSE OF ACTION ON OCEAN SPRAY S ALLEGED VIOLATION OF A CONSENT DECREE (COUNTS III, V) Plaintiffs allege in two counts that Ocean Spray has violated a 55-year-old consent decree 2 between the Antitrust Division of the Department of Justice and Ocean Spray s predecessor. Count III asserts that Ocean Spray has violated Chapter 93A because its B Pool structure supposedly discriminates against Ocean Spray s B Pool members in violation of the 2 The consent decree is reported at United States v. National Cranberry Ass n, No S, 1957 U.S. Dist. LEXIS 4199 (D. Mass. Oct. 28, 1957) ( Consent Decree ). 6

15 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 15 of 30 consent decree. Compl Count V asserts a Chapter 93A claim based on Ocean Spray s alleged sales of its cranberry juice concentrate to other processors in violation of the consent decree. Id Plaintiffs claim that they have standing to sue to enforce the consent decree under Rule 71 of the Federal Rules of Civil Procedure. Id Ocean Spray will demonstrate that it has not violated the consent decree in either particular, if necessary. But, as a matter of law, a violation of a consent decree does not itself constitute a violation of Chapter 93A or give plaintiffs standing to assert rights under it. A. Plaintiffs Claim That Ocean Spray Violated Chapter 93A Because It Supposedly Violated The Consent Decree Is Wrong As A Matter Of Law Plaintiffs cannot maintain a claim under Chapter 93A based solely on the allegation that Ocean Spray has violated a 55-year old federal consent decree. To state a violation of Chapter 93A, plaintiffs must allege conduct that is unfair or deceptive. Mass. Gen. Laws ch. 93A, 2(a), 11; see also Zurich Am. Ins. Co. v. Watts Regulator Co., 796 F. Supp. 2d 240, 244 (D. Mass. 2011). Here, plaintiffs do not allege how the violation of the consent decree (as opposed to the conduct that they challenge) is itself unfair or deceptive, and thus they have not stated a claim under Chapter 93A. B. Plaintiffs Were Not Parties To The Consent Decree, And Thus Have No Standing To Seek To Enforce It To the extent that Counts III and V attempt to enforce the consent decree, plaintiffs have no standing to do so. The consent decree provides that [j]urisdiction is retained for the purpose of enabling any of the parties to this Final Judgment to apply to this Court at any time for such further orders and directions as may be necessary or appropriate... for the enforcement of compliance with it. Consent Decree X (emphasis added). Plaintiffs were not parties to the consent decree, and therefore the decree itself precludes them from enforcing its terms. Id. Moreover, both the Supreme Court and this Court have held that third parties like 7

16 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 16 of 30 plaintiffs do not have standing to enforce a consent decree between the government and another party. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975) (holding that a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it ); Aiken v. City of Memphis, 37 F.3d 1155, 1168 (6th Cir. 1994) ( The plain language of Blue Chip indicates that even intended third-party beneficiaries of a consent decree lack standing to enforce its terms. ); Blake v. Prof l Coin Grading Serv., No WGY, 2012 U.S. Dist. LEXIS , at *37 n.12 (D. Mass. Oct. 16, 2012) (same). Thus, because plaintiffs were not parties to the decree, they do not have standing to enforce any violations of it even if they benefit from its provisions explicitly. Data Processing Fin. & Gen. Corp. v. IBM Corp., 430 F.2d 1277, 1278 (8th Cir. 1970) (affirming dismissal of claim for breach of consent decree, despite provision in decree that specifically benefitted the plaintiff); Nat l Union Elec. Corp. v. Emerson Elec. Co., No. 81 C 1912, 1981 U.S. Dist. LEXIS 14709, at *6 (N.D. Ill. July 23, 1981) (dismissing claim to enforce consent decree by an explicit beneficiary of the decree based on well-settled authority that a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it ); Biovail Corp. Int l v. Hoechst Aktiengesellschaft, 49 F. Supp. 2d 750, 762 (D.N.J. 1999) (same). This is because antitrust consent decrees are entered to benefit the public by remedying alleged antitrust violations, and not to benefit competitors. Biovail, 49 F. Supp. 2d at 764. C. Rule 71 Does Not Provide Plaintiffs With An Independent Basis To Claim That They Have A Right To Enforce The Consent Decree Rule 71 does not give plaintiffs standing to assert a claim that the consent decree itself does not provide to them. Rule 71 merely provides a mechanism for asserting a cause of action that otherwise exists. The rule provides that [w]hen an order grants relief for a nonparty... the 8

17 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 17 of 30 procedure for enforcing the order is the same as for a party. Fed. R. Civ. P. 71. The purpose of this rule is to allow a non-party who has a right to enforce a court order the ability to do so through the same procedure that the parties to the court order would have. See Lasky v. Quinlan, 558 F.2d 1133, 1137 (2d Cir. 1977) ( It seems clear that Rule 71 was intended to assure that process be made available to enforce court orders in favor of and against persons who are properly affected by them, even if they are not parties to the action... [but] it cannot be used by a party to enforce an order in an action in which he no longer has standing to sue. ); Jackson v. Astrue, No. 3:08-cv-461-J-34TEM, 2011 U.S. Dist. LEXIS 8552 (M.D. Fla. Jan. 28, 2011) ( Rule 71 does not undertake to say when an order can be made in favor of or against a person not a party. The rule merely provides that when this can be done nonparties have recourse to, and are subject to, process in the same measure as parties. (citations omitted) (internal quotation marks omitted)). The consent decree here does not grant[] relief to any non-party, and thus Rule 71 does not apply. 3 IV. PLAINTIFFS CLAIMS THAT OCEAN SPRAY AND OCEAN SPRAY BRANDS CONSPIRED WITH EACH OTHER ARE NOT COGNIZABLE AS A MATTER LAW (COUNTS X, XI) Plaintiffs claim that Ocean Spray and Ocean Spray Brands conspired to monopolize and monopsonize the cranberry market to allow Ocean Spray to attain monopoly and monopsony power. Compl. Count X, Plaintiffs also allege that Ocean Spray and Ocean Spray Brands conspired to fix the price that plaintiffs received for their fresh and processed cranberries 3 The Rules Enabling Act precludes any broader interpretation of the Rule. 28 U.S.C. 2072(b) (the federal rules shall not abridge, enlarge or modify any substantive right ); cf. Port Drum Co. v. Umphrey, 852 F.2d 148, 149 (5th Cir. 1988) (holding that a rule of civil procedure is a regulator of a party s proceedings once that party is in federal court pursuant to another, independent jurisdictional grant ); N.Y. News, Inc. v. Kheel, 972 F.2d 482, 486 (2d Cir. 1992) ( The Federal Rules of Civil Procedure are procedural in nature and do not provide substantive rights. ). 9

18 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 18 of 30 in violation of Section 1 of the Sherman Act. Id. Count XI, Plaintiffs concede that Ocean Spray Brands is a wholly owned subsidiary of Ocean Spray (Compl. 10), and this concession is absolutely fatal to both conspiracy claims. The Supreme Court held in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771 (1984), that a parent cannot conspire with its own subsidiary because they are a single enterprise and are, therefore, incapable of conspiring with each other as a matter of law. Indeed, the very notion of an agreement in Sherman Act terms between a parent and a wholly owned subsidiary lacks meaning.... [I]n reality a parent and a wholly owned subsidiary always have a unity of purpose or a common design. Id.; see also Odishelidze v. Aetna Life & Cas. Co., 853 F.2d 21, 23 (1st Cir. 1988) (affirming dismissal of antitrust conspiracy claim based on Copperweld, explaining that for 1 purposes, the activities of a corporation and its wholly owned subsidiaries are viewed as that of a single enterprise ). This conclusion applies equally to conspiracies to fix prices and to monopolize. Sterling Merch., Inc. v. Nestle, S.A., 724 F. Supp. 2d 245, 273 (D.P.R. 2010) (dismissing conspiracy claims against a parent and its subsidiary because Copperweld applies to both Section 1 and Section 2 claims ), aff d, 656 F.3d 112 (1st Cir. 2011). V. PLAINTIFFS CLAIM THAT OCEAN SPRAY AND OCEAN SPRAY BRANDS CONSPIRED TO FIX PRICES ALSO FAILS BECAUSE PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED FACTS THAT THE DEFENDANTS ENGAGED IN ANY CONDUCT NOT IMMUNIZED UNDER THE CAPPER-VOLSTEAD ACT A. The Capper-Volstead Act Exempts Ocean Spray (And Its Wholly Owned Subsidiary) From Liability Under Section 1 Of The Sherman Act For Setting The Price At Which Ocean Spray Sells Cranberry Concentrate Even if Ocean Spray Brands and Ocean Spray could conspire with each other, plaintiffs allegations that Ocean Spray fixed the price at which it sells cranberry concentrate at auction do not state a claim under Section 1. 10

19 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 19 of 30 Plaintiffs allege that Ocean Spray predatorily set[s] the cranberry prices at which it will sell concentrate through the auction. Compl. Intro. However, even if plaintiffs had accurately described the auction in the third amended complaint (and they did not), Ocean Spray s selection of the price at which it is willing to sell its products is not a violation of the antitrust laws. The price-fixing that is within the scope of the per se prohibition of 1... is an agreement to fix the price to be charged in transactions with third parties, not between contracting parties themselves. Garshman v. Universal Res. Holding, Inc. 824 F.2d 223, 231 (3d Cir. 1987); see also Williams v Columbia Pike Corp., 891 F. Supp. 1169, 1176, 1177 & n.14 (E.D. Va. 1995) (dismissing Section 1 claim against defendants who merely set a price to effect a sale on the ground that the Sherman Act does not, of course, prohibit price-fixing agreements between the buyer and seller of an asset ). To the extent that plaintiffs are alleging that Ocean Spray s grower-members and Ocean Spray Brands agreed upon the price to charge for concentrate at the auction, the Court must dismiss the claim because the Capper-Volstead Act expressly protects the joint activity of cooperative members in setting the price at which their products are sold. See Md. & Va. Milk Producers, 362 U.S. at 466; GVF Cannery, Inc. v. Calif. Tomato Growers Ass n, 511 F. Supp. 711 (N.D. Cal. 1981) (dismissing Section 1 claim against agricultural cooperatives, in part, because price fixing is a legitimate purpose under the Capper-Volstead Act). Here, plaintiffs concede that Ocean Spray is an agricultural cooperative. Compl. 9. Thus, their complaint must allege facts that would plausibly establish the basis for their claim that Ocean Spray and its grower-members are not entitled to Capper-Volstead Act immunity. 4 4 Although the Capper-Volstead Act is an affirmative defense to a Section 1 claim, a court may dismiss a complaint based on an affirmative defense when the complaint alleges facts that conclusively establish the defense. Banco Santander de P.R. v. Lopez-Stubbe (In re Colonial 11

20 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 20 of 30 B. Plaintiffs Have Not Alleged Facts That Undermine Ocean Spray s Capper- Volstead Act Immunity Plaintiffs claim that the Capper-Volstead Act does not protect Ocean Spray because Ocean Spray does not operat[e]... for the mutual benefit of the members thereof. Compl. 71. They claim that Ocean Spray is organized to increase the profitability of the Ocean Spray branded products to the detriment of the B Pool growers and to the benefit of the A Pool (Id.), and that Ocean Spray, Ocean Spray Brands, and their board members and managers have economic interests that conflict with those of the B Pool, and thus, have not acted for the B Pool members benefit. Compl. 80. These allegations do not save their claim. The mutual benefit requirement of the Capper-Volstead Act does not mandate that a cooperative make equal payments to all of its members. 7 U.S.C. 291; cf. Waters v. Nat l Farmers Org., Inc., 328 F. Supp. 1229, 1245 (S.D. Ind. 1971); Alexander v. Nat l Farmers Org., 687 F.2d 1173, (8th Cir. 1982). The clause states that cooperatives must be operated for the mutual benefit of the members thereof, as such producers. 7 U.S.C. 291 (emphasis added; clause omitted from third amended complaint). Congress enacted the provision because it was concerned that cooperatives would share their proceeds with non-producers, and thus the purpose of the mutual benefit requirement was to ensure that only producers, in their capacity as such, would receive the financial benefits of their collaboration. Case-Swayne Co. v. Sunkist Growers, Inc., 389 U.S. 384, (1967) (noting that Congress intended the mutual benefit condition only to insure that qualifying associations be truly organized and controlled by, and for, producers ); see also H.R. Rep. No (1921). Courts have rejected attempts to interpret the mutual benefit requirement more broadly. Mortg. Bankers Corp.), 324 F.3d 12, 16 (1st Cir. 2003); see also GVF Cannery, 511 F. Supp. at (granting dismissal because the complaint s allegations themselves failed to overcome Capper-Volstead Act immunity). 12

21 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 21 of 30 In Waters and Alexander, for example, the plaintiffs claimed that the National Farmers Organization did not satisfy the requirement because it did not pay dividends to its members based on the cooperative s annual proceeds, but instead paid the members through a third party. Waters, 328 F. Supp. at 1233; Alexander, 687 F.2d at Both courts rejected that argument and held that the mutual benefit provision does not require a cooperative to make or be authorized to make distributions to its members, of its income or property, by way of dividends or otherwise. Waters, 328 F. Supp. at Plaintiffs do not allege that any non-growers receive the financial benefits of Ocean Spray s sales, or that the growers receive those benefits in any capacity other than as growers. Plaintiffs do not allege that the creation of the A and B Pool structure or the auction allows Ocean Spray to transfer the benefits of the cooperative outside of the cooperative as a whole. Thus, plaintiffs claim boils down to an assertion that Ocean Spray has lost its immunity for price fixing because B Pool members have a different contractual relationship with Ocean Spray than A Pool members do. As the complaint alleges, B Pool members agreed by contract that Ocean Spray would use their cranberries for non-value added, commodity cranberry concentrate, whereas Ocean Spray uses the A Pool members cranberries for its branded products. Compl. 42. Those allegations do not at all suggest that the cooperative is not operating for the mutual benefit of its members, as producers, and thus plaintiffs price fixing claim fails for this independent reason. VI. PLAINTIFFS SECTION 2 CLAIMS FAIL BECAUSE THEY DO NOT ALLEGE THAT OCEAN SPRAY ENGAGED IN EXCLUSIONARY CONDUCT (COUNTS VIII, IX) Plaintiffs third amended complaint contains two additional counts that assert violations of Section 2 s prohibition on monopolies and monopolization: Counts VIII and IX. Both of these claims fail as a matter of law. 13

22 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 22 of 30 To state a claim for monopolization or monopsonization, a plaintiff must allege that the defendant has engaged in impermissible exclusionary practices with the design or effect of protecting or enhancing its monopoly [or monopsony] position in a properly defined relevant market in which the defendant has market power. Coastal Fuels of P.R., Inc. v. Caribbean Petrol. Corp., 79 F.3d 182, (1st Cir. 1996); see also Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 549 U.S. 312, 319, (2007) (applying the same in the monopsony context). 5 But plaintiffs do not accuse Ocean Spray of exclusionary conduct. Plaintiffs complain that Ocean Spray s constant need for more cranberries led it to set up a pool whose cranberries are sold to the commodity market through an auction that has resulted in lower prices. Compl. Intro. But this conduct does not violate the antitrust laws. Low prices benefit consumers. Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 223 (1993). Thus, a firm s sale of its products at low prices is only exclusionary or anticompetitive if it harms the competitive process ; it harms that process when it obstructs the achievement of competition s basic goals lower prices, better products, and more efficient production methods. Town of Concord v. Boston Edison Co., 915 F. 2d 17, (1st Cir. 1990). Thus, to state a claim for monopolization or attempted monopolization on the basis of the prices that a firm charges for its products, a plaintiff must allege that the defendants prices are below an appropriate measure of the defendant s costs and that, once its below-cost prices have eliminated its competition, the defendant can and will seek to recoup 5 An attempt to monopolize claim requires the plaintiff to allege the same elements that a monopolization claim requires. C.R. Bard, Inc. v. Med. Elecs. Corp., 529 F. Supp. 1382, 1390 D. Mass. 1982); DJ Mfg.Corp. v. Tex-Shield, Inc., 275 F. Supp. 2d 109, (D.P.R. 2002), overruled on other grounds, 337 F.3d 56 (1st Cir. 2003). Thus, courts dismiss attempted monopolization claims that suffer from the same insufficiencies as a monopolization claim. See CCBN.com, Inc. v. Thomson Fin., Inc., 270 F. Supp. 2d 146, (D. Mass. 2003) (analyzing and dismissing plaintiffs Section 2 monopolization and attempted monopolization claims jointly for failure to sufficiently allege the relevant market and market power). 14

23 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 23 of 30 its investment in below-cost prices through future high prices. See id.; see also Astra Media Grp., LLC v. Clear Channel Taxi Media, LLC, 679 F. Supp. 2d 413, (S.D.N.Y. 2009) (dismissing predatory pricing claim that contained conclusory allegations of below-cost pricing and did not plead recoupment). A complaint that alleges low prices without these facts reflect[s] no more than the sort of healthy competition which the antitrust laws are designed to foster. Americana Indus. Inc. v. Wometco de P.R., Inc., 556 F.2d 625, (1st Cir. 1977). Here, plaintiffs claim only that the prices that they received did not cover their respective costs of producing cranberries or that they fell below average national production costs. Compl. 39(c), 53, 85. But the relevant question is whether the complaint alleges that the auction price is below Ocean Spray s variable costs to produce concentrate. Plaintiffs do not allege anything about Ocean Spray s costs. Thus, their Section 2 claim fails for this additional reason. See Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227, (1st Cir. 1983) (rejecting Section 2 claim based on allegedly predatory pricing that was above defendant s incremental and average costs); see also C.B. Trucking, Inc. v. Waste Mgmt., Inc., 944 F. Supp. 66, 68 (D. Mass. 1996) (rejecting predatory pricing claim where defendants low bid prices were not below its own costs and plaintiffs did not establish that defendant could recoup its losses), aff d, 137 F.3d 41 (1st Cir. 1998). Moreover, plaintiffs do not allege facts that would support a claim that Ocean Spray could or would recoup its losses once its competitors are eliminated. Thus, their claim that Ocean Spray sold concentrate at lower prices is legally meaningless. Plaintiffs claim that Ocean Spray s scheme was motivated by its need for more fruit to support the brand is equally irrelevant. Weyerhaeuser, 549 U.S. 312 (reversing jury verdict that permitted plaintiff to recover damages for monopolization under a theory that the defendant had purchased logs at a predatorily high rate to put the plaintiff competitor out of business). 15

24 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 24 of 30 Moreover, plaintiffs failure to allege that Ocean Spray engaged in exclusionary conduct also means that they have not alleged facts that establish the basis for their claim that Ocean Spray has lost its Capper-Volstead Act protection for these claims. See, e.g., Fairdale Farms, Inc. v. Yankee Milk, Inc., 635 F.2d 1037, 1045 (2d Cir. 1980) (holding that the Capper-Volstead Act allows agricultural cooperatives to acquire and maintain monopoly power, as long as they do so without engaging in predatory tactics). Thus, the Court should dismiss Counts VIII and IX for this reason as well. VII. THE COURT ALSO SHOULD DISMISS ALL OF PLAINTIFFS SHERMAN ACT CLAIMS BECAUSE PLAINTIFFS DO NOT ALLEGE AN ANTITRUST INJURY (COUNTS VIII, IX, X, XI) An antitrust plaintiff must allege more than that the defendant violated the antitrust laws to bring an antitrust claim (and plaintiffs have not, of course, alleged that here). Under Section 4 of the Clayton Act (the statute that authorizes private parties to bring claims under the Sherman Act), a plaintiff also must allege that it has suffered injury in its business or property by reason of conduct that the antitrust laws forbid. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, (1977). The first requirement injury to business or property is called impact or the fact of damage. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562 (1931); Brown v. Am. Honda (In re New Motor Vehicles Canadian Exp. Antitrust Litig.), 522 F.3d 6, 19 n.18 (1st Cir. 2008). The second requirement that the injury occur by reason of [something] forbidden in the antitrust laws is called antitrust injury. Brunswick Corp. 429 U.S. at ; Sterling Merch., Inc. v. Nestle, S.A., 656 F.3d 112, 125 (1st Cir. 2011). The necessary antitrust injury to a competitor does not flow from the competitordefendant s sale of products at low prices. Atl. Richfield Co. v. USA Petrol. Co., 495 U.S. 328, (1990) ( ARCO ); see also Wagner v. Circle W Mastiffs, 732 F. Supp. 2d 792, 802 (S.D. Ohio 2010) (holding that a competitor s inability to charge more (provided the price is at a 16

25 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 25 of 30 nonpredatory level) is not an injury protected under antitrust laws ). In ARCO, an independent gasoline retailer alleged that it lost money because the defendant prohibited its branded dealers from selling gas above a certain price, and, to compete with those branded dealers, the plaintiff had to sell at the same price. Id. at The Supreme Court held that, although the plaintiff had lost money because of the price fixing, that loss resulted from the low but non-predatory prices of its rivals, not from an anticompetitive aspect of the defendant's conduct. Id. at Similarly, in Americana Industries, the plaintiff alleged that the defendant priced its movie theater tickets at low prices to drive the plaintiff out of business and destroy competition. 556 F.2d at 627. The plaintiff lowered its ticket prices to meet the defendant s, then sued based on its alleged losses. Id. The court held that even if the defendant acted with malice and a specific intent to put the plaintiff out of business, there was no allegation that the prices were predatory, and thus illegal under the antitrust laws. Id. at The court explained that low prices that are not below the seller s costs do not harm competition; they enhance it. Id. The court concluded that the defendant s alleged conduct was consistent with perfectly lawful conduct and affirmed dismissal. Id. at 628. Here, plaintiffs allege that Ocean Spray sold concentrate at prices lower than plaintiffs would prefer. Compl. Intro. While such an allegation may establish the fact of injury (if they had alleged an antitrust violation at all), it does not suffice to allege an antitrust injury. Plaintiffs must allege lost profits from conduct that the antitrust laws forbid. They have not done so. While the above issue applies to all of the plaintiffs, the independent grower plaintiffs have an additional problem. They claim injury because they did not make as much money as they would have liked when they sold their cranberries to handlers. They claim that, supposedly, the price that Ocean Spray charges to its concentrate customers at auction causes other 17

26 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 26 of 30 concentrate buyers to quote the same low price to the processors who sell concentrate made from the independent growers cranberries (so that such unnamed processors can compete with Ocean Spray). Those low prices, in turn, cause those processors to demand that independent growers charge less for their cranberries. This chain of causation is too remote to give the independent growers standing to sue. See Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, (1983); Austin v. Blue Cross & Blue Shield, 903 F.2d 1385, 1389, (11th Cir. 1990) (finding the causal connection between the plaintiffs alleged injuries and the alleged anticompetitive conduct was at best remote and tenuous ). VIII. PLAINTIFFS DO NOT ALLEGE THAT EITHER DEFENDANT ENGAGED IN ANY CONDUCT THAT RISES TO THE LEVEL OF A VIOLATION OF CHAPTER 93A (COUNT IV) The independent grower plaintiffs claim that Ocean Spray s and Ocean Spray Brands actions constitute unfair and deceptive acts and practices in violation of Chapter 93A, Section See, e.g., Compl. Count IV, To state a claim under 93A, a plaintiff must allege conduct that falls within the penumbra of some common-law, statutory, or other established concept of unfairness or is immoral, unethical, oppressive or unscrupulous. Zurich Am. Ins., 796 F. Supp. 2d at 244 (citation omitted) (internal quotation marks omitted). The conduct must attain a level of rascality that would raise an eyebrow to the rough and tumble of the world of commerce. Id. (citation omitted) (internal quotation marks omitted); see also GMO Trust v. ICAP Plc, No DPW, 2012 U.S. Dist. LEXIS , at *29-31 (D. Mass. Oct. 18, 2012) ( to establish a violation of chapter 93A, the defendant s conduct must be not only wrong, but also egregiously wrong (citation omitted)). 6 Section 2(a) of Chapter 93A declares unlawful unfair or deceptive acts or practices in the conduct of any trade or commerce and Section 11 extends Section 2 s general protection to commercial parties. Mass. Gen. Laws ch. 93A, 2(a),

27 Case 1:12-cv RWZ Document 48 Filed 03/18/13 Page 27 of 30 A 93A claim that simply repeats the same assertions that underlie a plaintiff s common law or statutory claims is not enough to overcome dismissal when the other claims themselves are not cognizable. Davis, Malm, D Agostine P.C. v. Vale, No , 2005 WL , at *4 (Mass. Super. Ct. Mar. 31, 2005) (dismissing 93A claim because the mere repetition of the assertions underlying the plaintiffs common law claims was not enough to support the required element that the conduct be unfair or otherwise unscrupulous); Pimental v. Wachovia Mortg. Corp., 411 F. Supp. 2d 32, 40 (D. Mass. 2006) (dismissing 93A claim based on breach of contract and negligence claims on the ground that those claims were not sustainable, and therefore, there was no basis for finding the defendant liable under Chapter 93A). As in those cases, plaintiffs base their 93A claims here on the same conduct that they challenge under the Sherman Act. They do not allege any facts that separately support a claim that Ocean Spray engaged in the type of unfair and unscrupulous conduct that 93A prohibits. IX. THE SOGN AND WINTERS PLAINTIFFS CLAIM THAT OCEAN SPRAY UNLAWFULLY TERMINATED THEIR CONTRACTS IS NOT ACTIONABLE AS A MATTER OF LAW (COUNT XIII) Plaintiffs Barry K. Winters, d/b/a BKW Farms, and Paul D. Sogn, d/b/a Wintersogn Farm, LLC bring a separate count that alleges that Ocean Spray violated 93A when Ocean Spray exercised its contractual right to give notice that it would not renew their Cranberry Marketing Agreements. Compl. Count XIII, This claim is not actionable because a party does not engage in unlawful, or unfair and deceptive, conduct when it exercises a contractual right that permits it to not renew a contract. The Massachusetts Supreme Court held in PMP Assocs., Inc. v. Globe Newspaper Co., 321 N.E. 2d 915, 918 (Mass. 1975), that a refusal to deal, without a showing of monopolistic purpose or concerted effort to hinder free trade, is not an unfair trade practice under G.L. c. 93A, and is therefore not actionable. Winters and Sogn do not claim that Ocean Spray s decision not to renew their contracts was for a monopolistic purpose or the 19