Eighth Circuit upholds dismissal of antitrust claims against Bayer CropScience

ST. LOUIS (CN) — The Eighth Circuit on Monday refused to revive antitrust claims against Bayer CropScience and 15 other agricultural manufacturers.

The claim came from a group of 28 farmers, who filed a consolidated class action in September 2021. The class claimed the defendants drove up prices by boycotting e-commerce competitors that market directly to farmers in favor of their tightly controlled distribution system.

But a unanimous three-judge panel in the Eighth Circuit was not swayed.

“Determining whether the complaint as a whole states a plausible claim for relief is a context-specific task that requires the court to draw on judicial experience and common sense,” U.S. Circuit Judge Steven M. Colloton, a George W. Bush appointee, wrote in the opinion. “Having reviewed the allegations, we agree with the district court that the plaintiffs failed adequately to plead parallel conduct by the defendants.”

The decision upheld a decision last year by U.S. District Judge Sarah Pitlyk to dismiss the farmers’ claims with prejudice, which prompted the appeal to the Eighth Circuit. Pitlyk, a Donald Trump appointee, found that they failed to assert parallel conduct, that the claims were largely conclusory and that the manufacturers avoided e-commerce competitors based on independent business decisions rather than a conspiracy.

Colloton, along with U.S. Circuit Judge Ralph R. Erickson, a Trump appointee, and U.S. Circuit Judge Bobby E. Shepherd, a Bush appointee, heard the plaintiff’s argument seeking to revive the case in November.

The heart of both sides’ arguments during that hearing was based on the Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly, which established that parallel conduct, absent evidence of agreement, is insufficient to sustain an antitrust action under the Sherman Act. The ruling also heightened the pleading requirement for federal civil cases by requiring plaintiffs to include enough facts in their complaint to make their claims plausible, not just possible or conceivable.

“Parallel conduct generally consists of acts that are similar in substance, executed under similar circumstances and close in time,” Colloton wrote. “Viewed in the context of the complaint as a whole, the allegations that refer to specific defendants do not plausibly suggest parallel conduct because they are not sufficiently similar to each other as to ‘substance, timing, or effect.’”

The ruling also addressed the plaintiffs’ claim that the District Court erred in dismissing the Sherman Act claim with prejudice without leave to amend the complaint.

“The plaintiffs maintain that the District Court incorrectly inferred that any amendment of the complaint would have been futile,” Colloton wrote. “The court observed that the amended complaint was the third attempt to state viable claims, that the plaintiffs were on notice of pleading deficiencies for months before they filed the operative amended complaint and that they did not supplement their pleadings with allegations sufficient to overcome the deficiencies.”

Bayer lauded the ruling in a statement.

“Bayer believes crop input markets are competitive, fair and diverse,” Bayer said. “Whether online or in-person, growers have many options to purchase agricultural products, and Bayer welcomes any business that enables us to better support growers.”

Sarah Sterling Aldridge of Barrett Law Group out of Lexington, Mississippi, who represented the plaintiffs before the Eighth Circuit, did not immediately respond to an email request for comment.

The defendants included Bayer CropScience LP, Bayer CropScience Inc., Corteva Inc., Cargill Incorporated, BASF Corporation, Syngenta Corporation, Winfield Solutions LLC, Univar Solutions USA LLC., Federated Co-Operatives Ltd., CHS Inc., Nutrien AG Solutions Inc., Growmark Inc., Simplot AB Retail Sub Inc., Tenkoz Inc., Pioneer Hi-Bred International Inc. and Growmark FS LLC.

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