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Government Motions to Submit Final Judgment in DFA Antitrust Lawsuit

Milk jars.

Front view of a drinking glass, a bottle and a jug filled with fresh organic vegan milks surrounded by oat flakes, soy beans, quinoa seeds, rice grains, spelt grains, hazelnuts, almonds and coconuts pieces. Low key DSLR photo taken with Canon EOS 6D Mark II and Canon EF 24-105 mm f/4L

The United States filed a motion and memorandum supporting an entry of final judgment in an antitrust lawsuit against Dairy Farmers of America Inc. and Dean Foods Company on Tuesday in the Illinois Northern District Court. The plaintiffs were seeking to stop a purchase of Dean Foods’ dairy plants by DFA, alleging it would constitute antitrust activity in the milk industry.  The proposed Final Judgement would require the defendants to “divest Dean’s fluid milk processing plance, ancillary facilities, and related tangible and intangible assets” in three cities, Franklin, Mass.; DePere, Wis.; and Harvard, Ill.. The proposed judgment would also appoint a divestiture trustee.

The Commonwealth of Massachusetts and the State of Wisconsin are also plaintiffs in the case, the parties filed a complaint against the companies in May 2020. This complaint followed Dean Foods Company filing for bankruptcy in November 2019, and DFA’s purchase of 44 plants after a bankruptcy court-ordered auction for $433 million. Reportedly no other bidders sought all of the plants. 

The complaint alleged that the two defendants previously competed to sell milk and that the transaction would “substantially lessen competition for the processing and sale of fluid milk,” causing higher prices and lower quality. 

Reportedly, the final judgment in the case could be entered after a motion from either party or the court, after proving compliance with the Antitrust Procedures and Penalties Act (APPA), without any further consultation between the parties. A Certificate of Compliance was filed with the motion, stating that the plaintiffs allowed for a 60-day period for submission of comments related to the final judgment. According to the filing, one comment was received and published in the Federal Register. The court can now enter the judgment if it decides it is in the public interest. The proposed final judgment was filed on May 26 and September 14. 

The United States argued that entry of the judgement is “in the public interest” because it “is designed to eliminate the likely anticompetitive effects of the acquisition alleged by the United States.” Other lawsuits have been filed against Dairy Farmers of America for the alleged antitrust activity, including one filed in the Middle District of North Carolina by Food Lion LLC and Maryland and Virginia Milk Producers Cooperative Association. 

The United States of America is represented by the Department of Justice Antitrust Division, Massachusetts is represented by its Attorney General’s Office, and Wisconsin is represented by its Department of Justice. Dairy Farmers of America is represented by Lathan & Watkins and Baker & Miller. Dean Foods Company is represented by Davis, Polk & Wardwell. 

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