IN RE BABY FOOD ANTITRUST LITIGATION

Nos. 97-5609, 98-5125.

166 F.3d 112 (1999)

In re BABY FOOD ANTITRUST LITIGATION Jacob Blinder & Sons, Inc., Wiseway Super Food Center, Inc., Super Center, Inc., United Brothers Finer Foods, Inc., L.L. Harris Wholesale Grocery, Peter J. Schmitt & Co., 3932 Church Street Supermarket, Inc., Arleen Food Products Co., Inc., Rubin Brooks and Sons, Inc., Appellants. (D.C. Civil No. 92-cv-05495). Jacob Blinder & Sons, Inc., on behalf of itself and all others similarly situated, v. Gerber Products Company; H.J. Heinz Company; Ralston Purina Company; BNNC Corporation, (now dissolved) fka Beech-Nut-Nutrition fka Beech-Nut Foods Corporation (now dissolved) fka Baker/Beech-Nut Corporation (now dissolved) BCN Corporation, (now dissolved) fka Beech-Nut Corporation; Nestle Holdings, Inc.; (Newark New Jersey Civil No. 92-cv-05495). Peter J. Schmitt Co., on behalf of itself, v. Gerber Products Company; H.J. Heinz Company; Ralston Purina Company; BNNC Corporation, (now dissolved) aka Beech-Nut-Nutrition aka Beech-Nut Foods Corporation (now dissolved) aka Baker/Beech-Nut Corporation (now dissolved) BCN Corporation, (now dissolved) aka Beech-Nut Corporation; Nestle Holdings, Inc.; (Newark New Jersey Civil No. 93-cv-00047). Wiseway Super Food Center, Inc., on behalf of itself and all others similarly situated, v. Gerber Products Company; H.J. Heinz Company; Ralston Purina Company; BNNC Corporation, (now dissolved) aka Beech-Nut-Nutrition aka Beech-Nut Foods Corporation (now dissolved) aka Baker/Beech-Nut Corporation (now dissolved) BCN Corporation, (now dissolved) aka Beech-Nut Corporation; Nestle Holdings, Inc.; (Newark New Jersey Civil No. 93-cv-00048). Super Center, Inc., on behalf of itself and all others similarly situated, v. Gerber Products Company; H.J. Heinz Company; Ralston Purina Company; BNNC Corporation, (now dissolved) aka Beech-Nut-Nutrition aka Beech-Nut Foods Corporation (now dissolved) aka Baker/Beech-Nut Corporation (now dissolved) BCN Corporation, (now dissolved) aka Beech-Nut Corporation; Nestle Holdings, Inc.; (Newark New Jersey Civil No. 93-cv-00049). United Brothers Finer Foods, Inc., on behalf of itself and all others similarly situated, v. Gerber Products Company; H.J. Heinz Company; Ralston Purina Company; BNNC Corporation, (now dissolved) aka Beech-Nut-Nutrition aka Beech-Nut Foods Corporation (now dissolved) aka Baker/Beech-Nut Corporation (now dissolved) BCN Corporation, (now dissolved) aka Beech-Nut Corporation; Nestle Holdings, Inc.; (Newark New Jersey Civil No. 93-cv-00050). L.L. Harris Wholesale Grocery, a partnership, on behalf of itself and all others similarly situated, v. Gerber Products Company; H.J. Heinz Company; Ralston Purina Company; BNNC Corporation, (now dissolved) aka Beech-Nut-Nutrition Corporation (now dissolved) aka Beech-Nut Foods Corporation (now dissolved) aka Baker/Beech-Nut Corporation (now dissolved) BNC Corporation, aka Beech-Nut Corporation; (now dissolved); Nestle Holdings, Inc.; (Newark New Jersey Civil No. 93-cv-00051). 3932 Church Street Supermarket, Inc., an Illinois Corporation, on behalf of itself and all others similarly situated, v. Gerber Products Company; H.J. Heinz Company; Ralston Purina Company; BNNC Corporation, (formerly known successively as Baker/Beech-Nut Corporation, Beech Nut Foods Corporation, and Beech Nut Nutrition Corporation) (now dissolved); BNC Corporation, (formerly known as Beech-Nut Corporation) (now dissolved); Nestle Holdings, Inc.; (Newark New Jersey Civil No. 93-cv-0320). Arleen Food Products Co., Inc., on behalf of itself and all others similarly situated, v. Gerber Products Company; H.J. Heinz Company; Ralston Purina Company; BNNC Corporation, (formerly known successively as Baker/Beech-Nut Corporation, Beech-Nut Foods Corporation, and Beech-Nut Nutrition Corporation) (now dissolved); BNC Corporation, (formerly known as Beech-Nut Corporation) (now dissolved); Nestle Holdings, Inc.; (Newark New Jersey Civil No. 93-cv-0407). Rubin Brooks And Sons, Inc., on behalf of himself and all others similarly situated, v. Gerber Products Company; H.J. Heinz Company; Ralston Purina Company; BNNC Corporation, (formerly known successively as Baker/Beech-Nut Corporation, Beech-Nut Foods Corporation and Beech-Nut Nutrition Corporation) (now dissolved); BNC Corporation, (formerly known as Beech-Nut Corporation) (now dissolved); Nestle Holdings, Inc.; (Newark New Jersey Civil No. 93-cv-00802). Jacob Blinder & Sons, Inc., Wiseway Super Food Center, Inc., Super Center, Inc., United Brothers Finer Foods, Inc., L.L. Harris Wholesale Grocery, Peter J. Schmitt & Co., 3932 Church Street Supermarket, Inc., Arleen Food Products Co., Inc., Rubin Brooks and Sons, Inc., Appellants in No. 98-5125.

United States Court of Appeals, Third Circuit.

Decided January 12, 1999.


Attorney(s) appearing for the Case

Michael J. Freed, Much, Shelist, Freed, Denenberg, Ament, Bell & Rubenstein, Chicago, IL, Joel C. Meredith, Daniel B. Allanoff, Meredith, Cohen, Greenfogel & Skirnick, Philadelphia, PA, Joseph J. De Palma, Allyn Z. Lite, Goldstein, Lite & De Palma, Newark, NJ, Perry Goldberg, Granvil I. Specks, Specks & Goldberg, Dianne M. Nast, Roda & Nast, Lancaster, PA, Robert A. Skirnick (Argued), Meredith, Cohen, Greenfogel & Skirnick, New York, NY, for Appellants.

Arnold B. Calmann, Saiber, Schlesinger, Satz & Goldstein, Newark, NJ, Joseph A. Tate (Argued), Judy L. Leone, George G. Gordon, Dechert, Price & Rhoads, Philadelphia, PA, for Appellee Gerber Product Company.

Edward P. Henneberry (Argued), Keith E. Pugh, Jr., Robert L. Green, Jr., Ellen S. Winter, Howrey & Simon, Washington, DC; Matthew P. Boylan, Lowenstein Sandler, Roseland, NJ, for Appellee HJ Heinz Company.

Mary E. Kohart (Argued), Patrick T. Ryan, Patricia Proctor, Drinker, Biddle & Reath, Philadelphia, PA, for Appellee Ralston Purina Company.

Terrence C. Sheehy (Argued), Howrey & Simon, Washington, DC, for Appellees BNNC Corporation; BCN Corporation; and Nestle Holdings, Inc.

Before: BECKER, Chief Judge, ROSENN, Circuit Judge and KATZ, District Judge.


OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal, relating to a highly concentrated nationwide industry, raises interesting questions of proof and law in a hotly-contested antitrust action. The plaintiffs, direct purchasers of baby food from defendant manufacturers, include wholesalers, supermarket chains, and other direct purchasers. The defendants, nationally prominent corporations, are Gerber Products Company ("Gerber"), H.J. Heinz Co. ("Heinz...

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