Colella's Super Market, Inc. v. SuperValu, Inc., No. 15-3089 (8th Cir. 2017)
Annotate this CasePlaintiffs, retail grocers, filed putative class actions against two large full-line wholesale grocers, alleging that the wholesalers' contract to exchange retailer supply agreements constituted market allocation in violation of the Sherman Act, 15 U.S.C. 1. Plaintiffs formed the Midwest Class and the New England Class, each class having an Arbitration Subclass of retailers who had arbitration agreements with their current (post-swap) wholesaler. The district court dismissed the purported representatives of the Arbitration Subclasses and the court reversed. At that point, the district court had rejected the proposed Midwest and New England classes and granted defendants' motion for summary judgment. The court reversed, ordering the district court to consider a narrower Midwest class. On remand, Colella moved to intervene to join Village Market, the New England Arbitration Subclass representative, in seeking to certify a narrower New England class. The district court denied the motion and announced that it would not consider any new class of New England plaintiffs. The court concluded that it does not have discretion to hear Village Market's appeal under Rule 23(f). The court explained that an order that leaves class-action status unchanged from what was determined by a prior order was not an order granting or denying class action certification. The court also concluded that the district court did not abuse its discretion by denying Colella's motion to intervene as time-barred. Accordingly, the court affirmed the judgment.
Court Description: Riley, Author, with Colloton and Kelly, Circuit Judges] Civil case - Antitrust. For the court's prior opinions concerning the proper classes see King Cole Foods, Inc. v. SuperValu, Inc, 707 F.3d 917 (8th Cir. 2013) and D&G, Inc. v. SuperValu, Inc. 752 F.3d 728 (8th Cir. 2014). On remand, the district court denied Colella's Super Markets motion to intervene to join a request to certify a narrower New England class and announced it would not consider any new definition of a class of New England plaintiffs; this court has no discretion to hear Village Market's appeal of the court's announcement that it would refuse to consider certifying the Greater Boston class as an order that leaves class-action status unchanged from what was determined by a prior order is not an order "granting or denying class certification" for purposes of an interlocutory appeal under Rule 23(f); the district court did not abuse its discretion in denying Colella's motion to intervene as untimely. Judge Colloton, concurring in the judgment.
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