4/18/2012 - Fresh Del Monte Pineapple Litigation
On April 18, 2012, Judge Donald W. Hafele of 15th Circuit Court in Florida issued a written order denying certification of a class of indirect purchasers of Fresh Del Monte Pineapples in Florida. Judge Hafele wrote, “Dr. Reiff concludes, and the Court agrees, that [plaintiffs’ expert] does not provide either theoretical or empirical support for his assumption of a constant 100% pass-through rate.” On March 7, 2012, Judge P. J. McGuinness of the First Appellate District of California affirmed a similar denial of certification of a class of indirect purchasers of Fresh Del Monte Pineapples in California. These cases are the first two of a number of state indirect purchaser class actions stemming from the Fresh Del Monte Pineapples Antitrust Litigation, in which plaintiffs allege that Del Monte had created a monopoly for extra sweet whole pineapples by improperly using its claimed patent rights over a particular strain of pineapples. Compass Lexecon expert, Bradley Reiff was retained by Del Monte to testify on indirect purchaser class issues. In rejecting certification, the courts cited Dr. Reiff’s analysis of pass-through of the alleged overcharge. The California appellate decision stated, “In rejecting the opinion of plaintiffs’ expert, the trial court found in substance that the declaration of defendants’ expert [Bradley Reiff] persuasively demonstrated that a presumption of a one hundred percent pass-through of overcharges from retailers to consumers was not supported by either economic theory or an empirical analysis of the available data between wholesale price changes and retail price changes across time and location.” The Florida and California decisions followed a similar ruling in Federal court in 2008, which also relied on Dr. Reiff’s testimony in rejecting the indirect purchasers class. The Compass Lexecon team included Heather Spang in our Chicago office. Compass Lexecon worked with David Barrett, Carl Goldfarb, Stuart Singer and Carlos Sires of Boies, Schiller & Flexner LLP.