United States District Court, C.D. Illinois
January 22, 2004.
IN RE: HIGH FRUCTOSE CORN SYRUP ANTITRUST LITIGATION, THIS DOCUMENT RELATES TO ALL ACTIONS
The opinion of the court was delivered by: MICHAEL MIHM, District Judge Page 2
[EDITORS' NOTE: THIS PAGE CONTAINED ATTORNEYS' NAME.]
This matter is before the Court on Staley's Motion for Certification
Pursuant to 28 U.S.C. § 1292(b). For the reasons set forth below, the
Motion for Certification Pursuant to 28 U.S.C. § 1292(b) [#1036] is
Section 1292(b) provides in relevant part:
When a district judge, in making in a civil action an
order not otherwise appealable under this section,
shall be of the opinion that such order involves a
controlling question of law as to which there is
substantial ground for difference of opinion and that
an immediate appeal from the order may materially
advance the ultimate termination of the litigation, he
shall so state in writing in such order. . . .
28 U.S.C. § 1292(b). Staley proposes the following question for
certification based on the Court's November 25, 2003, and January 6,
Whether the district court has the authority to
impanel two juries in a civil antitrust case when
there is an extraordinary amount of highly prejudicial
evidence that is admissible against one defendant but
is not admissible against the remaining defendants?
After careful consideration, the Court finds the proposed question to
be appropriate for certification
with slight modification.
The Court previously concluded that the Non-ADM Defendants' Motion for
Severance must be denied on the grounds that the Court did not believe
that there was adequate authority for severing civil defendants under
Rule 21 on what is essentially a unitary antitrust conspiracy claim under
Hebel v. Ebersole, 542 F.2d 14, 17 (7th Cir. 1976), and Rice v. Sunrise
Express. Inc., 209 F.3d 1008, 1016 (7th Cir. 2000). Central to the
Court's decision was the finding that this case does not present the type
of discrete claims separable in law and logic that could properly be
severed in the manner suggested, as it would appear that when considering
the conduct of any single Defendant, the jury will necessarily be
considering the conduct of all of the Defendants, as the expert witnesses
agree that the conspiracy alleged in this case was only possible if all
of the Defendants participated in the conspiracy. The Court also rejected
a request to use the Court's inherent authority to accomplish the same
The question of whether the Non-ADM Defendants can be severed for
purposes of trial is "controlling" under 28 U.S.C. § 1292(b), because it
presents a pure question of law concerning the interpretation of Rule 21
and the scope of a court's common law inherent authority. There is
substantial ground for difference of opinion as to whether the Court's
discretion can appropriately be used to sever a defendant over which the
Court has proper jurisdiction in a multi-defendant civil antitrust
conspiracy case by impaneling two juries to sit simultaneously. In fact,
the question appears to be an issue of first impression in this circuit.
Furthermore, the resolution of this question "is quite likely to affect
the further course of the litigation." Sokaogon Gaming Entertainment
Corp. v. Tushie-Montgomery Assoc., Inc., 86 F.3d 656, 659 (7th Cir.
1996). If the Seventh Circuit were to hold that the Court had the power
to sever the Non-ADM Defendants and proceed to trial before two
separately impaneled juries, the Court would not hesitate to enter an
order reconsidering its
decision on the Motion for Severance and order precisely that result.
Proceeding to trial before two juries would most fairly balance the
competing interests presented in this case, where the potential for
prejudicial spillover from the vast amount of highly prejudicial evidence
admissible only against ADM cannot be overstated, and the nature of the
evidence is such that limiting instructions may well be ineffective. This
result would protect the Non-ADM Defendants' right to a fair trial
without burdening Plaintiffs with the time, expense, and delay of
presenting their case twice or compromising judicial economy.
As correctly noted by Staley in its motion, a substantial portion of
the evidence Plaintiffs intend to present at trial comes from the
Department of Justice investigation and subsequent prosecution of ADM in
the lysine and citric acid markets and has been found to be admissible
against ADM only. If the Court is correct that it does not have the power
to grant the requested severance, the evidentiary basis of this case will
be fundamentally changed because a good amount of this evidence that
Plaintiffs would otherwise be entitled to admit against ADM will
necessarily be excluded, as the probative value of such evidence is
substantially outweighed by the danger of unfair prejudice to the Non-ADM
Defendants in a joint trial under Federal Rule of Civil Procedure 403.
This Court is of the opinion that its November 25, 2003, and January 6,
2004, Orders present a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal
may materially advance the ultimate termination of this litigation. Thus,
pursuant to 28 U.S.C. § 1292(b), the Court certifies the following
Whether the district court has the authority, either
pursuant to Rule 21 or under its common law inherent
authority, to effect a severance of three defendants
from the fourth by impaneling two juries to sit
simultaneously in a civil antitrust conspiracy case
when there is an
extraordinary amount of highly prejudicial evidence
that is admissible against one defendant but is not
admissible against the remaining defendants?
Given that this case has now been pending for more than eight years, the
Court is hopeful that the Court of Appeals will make every effort to
handle this question in an expedited manner so that the case may proceed
to trial set to begin on September 8, 2004.
Accordingly, the Motion for Certification Pursuant to 28 U.S.C. § 1292(b)
[#1036] is GRANTED.
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