An order signed on Tuesday in an antitrust case denied the plaintiff grocers’ request for rehearing en banc following the appellate panel’s finding that there was no reversible error in the jury instruction that the appellants took issue with. The 2008 antitrust case accused the egg producer defendants of entering into a conspiracy to suppress the output and raise the price of eggs. The case went to trial in late 2019.
In their petition for rehearing, the appellants, one dozen supermarkets and convenience store chains, asked the Third Circuit to rehear the case. As previously reported, the mid-March decision, written by Circuit Judge Paul B. Matey, concluded that the alleged error on the jury verdict form, assuming it was one, was harmless because the jury got the correct information elsewhere on the form.
The court’s opinion explained that in order to find the defendants liable for antitrust conspiracy, the jury had to answer “Yes” to the form’s Question 1 asking whether the three alleged restraints on trade were part of a single antitrust conspiracy. The jury answered the question in the negative, thereby siding with the defendants.
In their petition for rehearing, the appellants asserted that the opinion was erroneous because the court wrongly relied on out-of-circuit precedent. Controlling precedent, they argued, would have led to court to find reversible error because had the jury instruction been structured differently, a “reasonable jury could easily have decided Question 1 in plaintiffs’ favor.”
They next argued that jury Instruction No. 17 could not possibly have corrected the error made in Question 1 because nowhere did the instruction “state, or even imply, that a conspiracy could be found if plaintiffs proved defendants had agreed to engage in just one of the three forms of output-suppressing conduct.”
In the one-page opinion denying rehearing, Judge Matey explained that the petition had been submitted to the judges who participated in the decision and “to all other available circuit judges of the Court in regular active service.” Reportedly, no concurring judge asked for rehearing, and a majority of the judges in regular service and not disqualified did not vote for rehearing en banc.
The petitioners are represented by Sperling & Slater P.C., Kenny Nachwalter P.A., Marcus & Shapira LLP, and Ahern and Associates P.C.
