By Khorri Atkinson

Law360 (May 29, 2020, 4:05 PM EDT) -- Farmers and companies suing three of the largest players in the U.S. peanut shelling industry are asking a Virginia federal judge to postpone the start of their mid-January price-fixing trial for at least four months, citing coronavirus-related discovery challenges and an overlap with another case.

The plaintiffs, based in Alabama or Florida, told U.S. District Judge Raymond A. Jackson in a nine-page filing Thursday that the strain caused by the public health crisis warrants a delay of next year's trial from Jan. 19 to at least May 19. Their proposed antitrust class action accuses Birdsong Corp., Golden Peanut Co. LLC and Olam Peanut Shelling Co. Inc. subsidiary McCleskey Mills Inc. of running a scheme to stabilize and hold down the cost of farmers' raw and harvested peanuts.

The trial is projected to last up to four weeks, the motion noted. In the alternative, the peanut farmer challengers also suggested the start date could be extended to at least late March. This would avoid a conflict with another antitrust class action trial involving two major U.S. doormakers at the same district court because the presiding judge in that case recently moved the trial from January to February due to the pandemic, the filing said.

It further explained that several of the attorneys representing the peanut farmer plaintiffs are either co-lead, class or liaison counsel for the challengers in the doormakers' case, . According to the motion, "The probability of a conflict in the trial dates between this case and Doors would serve an injustice by unnecessarily depriving plaintiffs of key counsel."

Thursday's request comes as the federal court system and law firms continue to grapple with disruptions caused by the public health crisis. The virus has claimed over 100,000 lives in a span of less than four months and infected about 1.7 million people in the U.S. alone as of Wednesday, according to data from Johns Hopkins University.

In response to public gathering restrictions imposed to limit the spread of the pandemic, courts have been forced to call off onsite trials and other judicial proceedings and instead hold oral arguments remotely for some cases through teleconference and videoconference. Meanwhile, law firms have been implementing cost-cutting measures, such as layoffs, furloughs or salary cuts, in an attempt to weather the economic downturn in the wake of COVID-19.

In Thursday's motion, the peanut farmer challengers also pointed out that there are numerous upcoming deadlines and anticipated depositions that would require travel by attorneys and witnesses, including those who may be at higher risk of COVID-19 complications. Indeed, there are potential alternatives such as videoconferencing systems, but these options demand additional planning that requires a delay, they argued. 

The parties have initially set dates to conduct depositions, but they have been forced to continuously change those dates due to witness availability and childcare challenges, the motion added. And because the peanut giants are in COVID-19 hotspots, discovery proceedings have been complicated, "especially the timeline of third-party document negotiations and productions."

Birdsong, Golden Peanut and Olam will not oppose a delay of the trial, but the companies will separately ask Judge Jackson for a longer extension — until at least July 13, 2021, the filing said. The challengers also do not oppose the companies, but they wrote they believe a 120-day extension, at least, is appropriate "to help offset the prejudice of all these public health challenges the parties have encountered and unfortunately will continue to encounter." 

Counsel for the parties did not immediately reply Friday to requests for comment.

The antitrust action lodged in September initially accuses Birdsong and Golden Peanut of using their 80% to 90% market power in the industry to orchestrate the scheme to depress the price of runner peanuts, or raw peanuts still in the shell.

It also claimed the companies underreported and coordinated their inventory reports to the U.S. Department of Agriculture to create the false impression that the market is oversupplied. The suit said the farmers were given artificially low prices due to the "perceived oversupply" and that the two companies used trade groups as a conduit to carry out the conspiracy.

Birdsong, based in Virginia, and Golden Peanut, headquartered in Georgia and conducting business in Virginia, have maintained that the low prices were a result of economic conditions in the market and subsidy-based incentives provided in the 2014 Farm Bill. Both have moved to dismiss the case. Judge Jackson this month rejected their bid, ruling the suit contains factual allegations to support the plausible inference of a price-fixing conspiracy.

This week, the challengers added Olam as a defendant, telling the judge "preliminary discovery has made clear" that the global agribusiness operation participated in the alleged scheme through its Georgia-based subsidiary, McCleskey Mills.

The seven challengers are seeking to represent farmers who sold runner peanuts to the defendants or their co-conspirators in the U.S. — not named in the complaint — from at least as early as January 2014 until the present.

The farmers are represented by Kevin Funk and Wyatt B. Durrette Jr. of Durrette Arkema Gerson & Gill PC, Brian Clark, Stephanie Chen, Simeon Andrew Morbey and William Joseph Bruckner of Lockridge Grindal Nauen PLLP and Brian Michael Hogan, Jonathan Marc Jagher, Kimberly Ann Justice, Michael Eugene Moskovitz and Robert Joseph Wozniak of Freed Kanner London & Millen LLC.

Birdsong Corp. is represented by Patrick Hugh O'Donnell, Stephen Edward Noona, Clark James Belote and Kristan Boyd Burch of Kaufman & Canoles PC and Thomas Wofford Craddock of McGuire Craddock & Strother PC.

Golden Peanut Co. LLC is represented by Kevin Ross Powell II, Daniel E. Laytin, Robert Allen, Stacy Pepper and Taylor S. Rothman of Kirkland & Ellis LLP and Benjamin Lucas Hatch of McGuireWoods LLP.

Olam Peanut Shelling Co. Inc. is represented by Monica Shelton Call and Edward Charles Duckers of Stoel Rives LLP.

The case is In re: Peanut Farmers Antitrust Litigation, case number 2:19-cv-00463, in the U.S. District Court for the Eastern District of Virginia.

--Editing by Orlando Lorenzo.

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