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Thursday, December 7, 2023
Courthouse News Service
Thursday, December 7, 2023 | Back issues
Courthouse News Service Courthouse News Service

Billions at Stake in Potato Antitrust Case

POCATELLO, Idaho (CN) - In a five-year long antitrust lawsuit in the potato industry, a federal judge ordered 105 more documents to be handed over to prosecutors.

Nearing the end of a two-year discovery dispute, U.S. District Judge Candy Dale ruled on March 17 that of 111 documents split into seven subcategories, only five documents and one email are not protected from disclosure.

Billions of dollars are at stake.

According to a 2010 report from the U.S. Potato Board, the average U.S. citizen ate 20¼ lbs. of fresh potatoes that year, and domestic revenue from fresh potatoes was $33 billion. Domestic revenue from processed potatoes that year (frozen and chips) came to $12.5 billion, with per capita consumption of 5.86 lbs. of processed potatoes, according to the Potato Board.

Dale said the five documents, in the possession of third-party Randon Wilson and his law firm, Jones Waldo, are communications that defendant United Potato Growers of America (UPGA) shared with its accountants and that there is no federal law that recognizes accountant-client privilege.

Even if there were such a law, Dale ruled, in this case, "the information was freely shared with UPGA's accountants, and therefore the privilege was waived because it was shared with third parties."

Voluntary disclosure of privileged attorney communication to a third party constitutes waiver of privilege, Dale said, citing Weil v. Investment/Indicators, Research & Management (9th Circ. 1981).

Associated Wholesale Grocers filed an antitrust lawsuit against United Potato Growers in 2010, claiming that the group acts as a potato "cartel" that controls 80 percent of the potato industry and uses physical and non-physical intimidation to compel independent growers to join.

"It's a massive case," Philip Gordon, counsel for a then-growing list of plaintiffs, told Courthouse News in February 2011.

A December 2011 case management session, presided over by U.S. District Judge B. Lynn Winmill, involved 27 attorneys from across the nation and another 15 by phone.

The antitrust complaint claims the defendants conspired to fix, raise, maintain and stabilize the prices paid for fresh and processed potatoes, and that the cartel acts in "classic cartel behavior," monitoring compliance of cartel directives through the use of satellite imagery, flyovers, inspections of confidential reports to the Farm Service Agency, and that it "punishes" violators.

United Potato Growers and codefendant United Potato Growers of Idaho are accused of bribing, threatening and coercing independent growers who resist membership in the cartel.

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