Grocers who are plaintiffs and appellants in an antitrust lawsuit against United Egg Producers Inc., Rose Acre Farms, United States Egg Marketers, United Egg Producers, and other egg producers filed a petition for an en banc rehearing in the Third Circuit on Monday in another attempt to seek a ruling that there was a legal error in the way the jury was handled.
The decision the movants are asking the court to reconsider is a Third Circuit ruling from March 15 that affirmed an Eastern District of Pennsylvania ruling that the jury was properly instructed. The question of whether the jury was given poor information in its verdict form, however, has been part of the lawsuit for years. The question was appealed in January 2019 to the Third Circuit, which ruled in favor of the egg processing companies in July 2020.
In the present request, the grocers cited that the first question on the verdict form “required the jury to find that defendants had conspired in three ways in order to satisfy the ‘contract, combination … or conspiracy’ element of a Section 1 Sherman Act Claim.” They purported that this was an error and that only one of the three needed to be proven, which would not have been clear to the jury given the way it was phrased. They said a jury that was asked the correct question could have come to a different conclusion.
Paul E. Slater, counsel for Albertsons LLC and other grocers, in a statement included in the filing, said, “I express a belief, based on a reasoned and studied professional judgment, that the Panel decision is contrary to decisions of the (Third Circuit), and that consideration by the full Court is necessary to secure and maintain uniformity of decisions in this Court.” He claimed that the question of whether an error in the verdict form could cause a reversal is “of exceptional importance.”
The appellants argued that the law does not require them to “prove all the alleged forms of conspiratorial conduct” and that the question on the verdict form “constitutes reversible error as a matter of law.” They claimed that the defendants limited their output so that they could raise the price of eggs through various programs, all listed and explained in the petition.