PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2257
No. 09-2258
___________
IN RE: MUSHROOM DIRECT PURCHASER
ANTITRUST LITIGATION
EASTERN MUSHROOM MARKETING COOPERATIVE
INC; KAOLIN MUSHROOM FARMS INC; TO-JO FRESH
MUSHROOMS INC; CARDILE MUSHROOMS INC;
CARDILE BROS. MUSHROOMS PACKAGING;
MONTEREY MUSHROOMS INC; PHILLIPS
MUSHROOMS FARMS, L.P.; MODERN MUSHROOM
FARMS INC; SHER-ROCKEE MUSHROOM FARM; C&C
CARRIAGE MUSHROOM CO; JOHN PIA;
BROWNSTONE MUSHROOM FARMS INC; COUNTRY
FRESH MUSHROOM CO; ROBERT a. FERANTO, JR., t/a/
Bella Mushroom Farms; FOREST MUSHROOM INC;
GASPARI BROS. INC; GINO GASPARI & SONS, INC;
GIORGIO MUSHROOM COMPANY; GIORGIO FOODS
INC; HARVEST FRESH FARMS INC; LEONE PIZZINI
AND SON, INC; LOUIS M. MARSON, JR., INC; LRP
MUSHROOMS INC; LRP-M MUSHROOMS LLC;
OAKSHIRE MUSHROOM FARM, INC; MICHAEL PIA;
SOUTH MILL MUSHROOM SALES, INC; UNITED
MUSHROOM FARMS COOPERATIVE, INC;
Appellants
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 06-cv-00620)
District Judge: Honorable Thomas N. O‟Neill, Junior
___________
Argued April 28, 2011
Before: BARRY, HARDIMAN and
TASHIMA,* Circuit Judges.
(Filed: August 23, 2011)
Barry L. Refsin [Argued]
Hangley, Aronchick, Segal & Pudlin
One Logan Square
18th & Cherry Streets, 27th Floor
Philadelphia, PA 19103-0000
David M. Buckner
Adam M. Moskowitz
Thomas A. Tucker Ronzetti
Kozyak Tropin & Throckmorton
2525 Ponce De Leon Boulevard
9th Floor
Miami, FL 33134
*
Honorable A. Wallace Tashima, Senior Judge of the
United States Court of Appeals for the Ninth Circuit, sitting
by designation.
2
John G. Odom
Stuart E. Des Roches
Andrew W. Kelly
John A. Meade
Odom & Des Roches
650 Poydras Street
Suite 2020, Poydras Center
New Orleans, LA 70130-0000
Manuel J. Dominguez
Berman DeValerio
4280 Professional Center Drive
Suite 350
Palm Beach Gardens, FL 33410
W. Ross Foote
David P. Smith
Percy Smith & Foote
P.O. Box 1632
Alexandria, LA 71309
Bruce E. Gerstein
Kevin S. Landau
Noah Silverman
Garwin Gerstein & Fisher
1501 Broadway
Suite 1416
New York, NY 10036-0000
Attorneys for Direct Purchaser Class Plaintiffs,
Plaintiff-Appellee
David P. Germaine
Vanek, Vickers & Masini
3
111 South Wacker Drive
Suite 4050
Chicago, IL 60606
Ira N. Richards
Trujillo, Rodriguez & Richards
1717 Arch Street
Suite 3838
Philadelphia, PA 19103-0000
Attorneys for Publix Super Markets, Inc., Plaintiff-
Appellee
Moira E. Cain-Mannix
Scott D. Livingston
Bernard D. Marcus
Marcus & Shapira
301 Grant Street
One Oxford Centre, 35th Floor
Pittsburgh, PA 15219-0000
Attorneys for Giant Eagle, Inc., Plaintiff-Appellee
William A. DeStefano [Argued]
Terri A. Pawelski
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102-2555
Martin I. Twersky [Argued]
H. Laddie Montague, Jr.
Berger & Montague
1622 Locust Street
Philadelphia, PA 19103
4
Attorneys for Mushroom Cooperative Defendants,
Defendant-Appellant
Jacqueline P. Rubin
Moses Silverman
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Attorneys for Giorgi Mushroom Co., and Giorgio
Foods, Inc., Defendant-Appellant
Mark A. Wachlin
Dilworth Paxson
1500 Market Street
Suite 3500E
Philadelphia, PA 19102
Terri A. Pawelski
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102-2555
Attorneys for Franklin Farms, Inc., Defendant
William A. DeStefano [Argued]
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102-2555
Attorneys for Creekside Mushrooms, Defendant
5
William A. DeStefano [Argued]
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102-2555
D. Richard Funk
Conner & Winters
One Williams Center
Suite 4000
Tulsa, OK 74172-0000
Attorneys for JM Farms, Inc., Defendant
William A. DeStefano [Argued]
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102-2555
Neill C. Kling
Francis P. Newell
Harkins Cunningham
2005 Market Street
2800 One Commerce Square
Philadelphia, PA 19103-0000
Martin I. Twersky [Argued]
Berger & Montague
1622 Locust Street
Philadelphia, PA 19103
Attorneys for Kitchen Pride Mushrooms, Defendant
6
William A. DeStefano [Argued]
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102-2555
Joel I. Fishbein
Rosen, Moss, Snyder & Bleefeld
8380 Old York Road
Suite 410
Elkins Park, PA 19027-0000
Jeffrey A. Krawitz
Silverman, Bernheim & Vogel
Two Penn Center Plaza
Suite 910
Philadelphia, PA 19102-0000
Martin I. Twersky [Argued]
Berger & Montague
1622 Locust Street
Philadelphia, PA 19103
Attorneys for Mario Cutone Mushroom Co., Defendant
William A. DeStefano [Argued]
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102-2555
Attorneys for Masha & Toto, Inc., TA M&T
Mushrooms, Defendants
7
William A. DeStefano [Argued]
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102-2555
Amy R. Richter
621 Southwest Morrison Street
Portland, OR 97205
Martin I. Twersky [Argued]
Berger & Montague
1622 Locust Street
Philadelphia, PA 19103
Attorneys for Mushroom Alliance, Inc., Defendant
William A. DeStefano [Argued]
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102-2555
Attorneys for W&P Mushrooms, Inc., Defendant
Donna M. Albani
11 Hampton Lane
Glen Mills, PA 19432
William A. DeStefano [Argued]
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102-2555
8
Thomas K. Schindler
Reger Rizzo & Darnall
158 West Gay Street
Suite 210
West Chester, PA 19380
Martin I. Twersky [Argued]
Berger & Montague
1622 Locust Street
Philadelphia, PA 19103
Attorneys for M.D. Basciani & Sons, Inc., Defendant-
Appellant
Donald M. Barnes
Salvatore A. Romano
Porter, Wright, Morris & Arthur
1919 Pennsylvania Avenue, N.W.
Suite 500
Washington, DC 20006-0000
Attorneys for Eastern Mushroom Marketing Coop,
Defendant-Appellant
James A. Backstrom, Jr.
Suite 200
1500 John F. Kennedy Boulevard
Two Penn Center Plaza
Philadelphia, PA 19102-0000
Christopher E. Ondeck
Crowell & Moring
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2505
9
Attorneys for Amicus Curiae National Council of
Farmer Cooperatives
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
The Capper-Volstead Act of 1922 allows certain
agricultural producers to form cooperatives without incurring
antitrust liability. This appeal presents the novel question of
whether a prejudgment order denying an agricultural
cooperative the protections of the Capper-Volstead Act is
immediately appealable under the collateral order doctrine.
We hold it is not.
I
In late 2000, a group of mushroom farmers and related
entities, most of whom are located in southeastern
Pennsylvania, formed the Eastern Mushroom Marketing
Cooperative (EMMC). The members of EMMC established
minimum pricing policies and programs to improve their
position in the market for raw, fresh mushrooms. Pursuant to
one such program, EMMC purchased properties (typically
from bankrupt mushroom farmers) and resold them with deed
restrictions that prohibited mushroom farming. In 2003, the
Antitrust Division of the United States Department of Justice
(DOJ) initiated an investigation of EMMC. United States v.
E. Mushroom Mktg. Coop., Inc., Civil Action No. 04-5829,
2005 WL 3412413 (E.D. Pa. Sept. 9, 2005) (Mushroom I).
Following its investigation, DOJ filed a Competitive Impact
10
Statement that concluded, inter alia, that EMMC was an
agricultural cooperative organized pursuant to the Capper-
Volstead Act (the Act), 7 U.S.C. §§ 291-92. In 2005, EMMC
and DOJ entered into a consent judgment that required
EMMC to nullify the deed restrictions on six parcels it had
sold and prohibited it from placing restrictions on parcels sold
within ten years.1 Mushroom I, 2005 WL 3412413.
Soon after the consent judgment was filed, various
private parties brought their own antitrust suits against
EMMC and its members. In June 2006, the District Court
consolidated seven class actions and one non-class action
previously filed against EMMC and its members.
Consequently, a group of mushroom purchasers, including
mushroom wholesalers and large supermarkets (Purchasers),
filed an amended antitrust class action against EMMC, thirty-
seven members, officers and affiliates of members, and
unidentified members and/or co-conspirators (Growers),
alleging a conspiracy in violation of sections 1 and 2 of the
Sherman Act and section 7 of the Clayton Act. See 15 U.S.C.
§§ 1, 2, 18. Unlike the DOJ action, this consolidated class
action alleged antitrust violations involving both EMMC‟s
1
The final judgment was “without trial or adjudication
of any issue of fact or law,” Mushroom I, 2005 WL 3412413,
at *1, and the Competitive Impact Statement specified that
“the Final Judgment has no prima facie effect in any
subsequent lawsuits that may be brought against [EMMC,]”
Competitive Impact Statement at 6, Mushroom I (No. 04-
5829), ECF No. 2 (citing 15 U.S.C. § 16(a)). Neither DOJ
determination—that EMMC acted anticompetitively or that
EMMC was a properly formed Capper-Volstead
cooperative—is binding upon the District Court or this Court.
11
property purchase program and its minimum pricing policies.
Although the specifics of the Purchasers‟ complaint are not
germane to our decision regarding the jurisdictional question,
the District Court‟s summary provides useful background
information. The Purchasers alleged that the Growers
launched a “supply control” campaign by using
membership funds [from EMMC] collected
during 2001 and 2002 to acquire and
subsequently dismantle non-EMMC mushroom
growing operations in order to support and
maintain artificial price increases. [The
Purchasers] allege that the EMMC repeatedly
would purchase a mushroom farm or a parcel of
farmland and then sell or exchange that farm or
parcel at a loss, attaching a permanent or long-
term deed restriction to the land prohibiting the
conduct of any business related to the growing
of mushrooms. . . .
[The Purchasers] further allege that [the
Growers] collectively interfered with non-
EMMC growers that sought to sell at prices
below those set by the EMMC and pressured
independent growers to join the EMMC. The
pressure and coercion tactics alleged include
threatening and/or implementing a group
boycott in which EMMC members would not
sell mushrooms to assist independent growers
in satisfying their short-term supply needs
and/or selling mushrooms to independent
growers at inflated prices.
12
In re Mushroom Direct Purchaser Antitrust Litig., 621 F.
Supp. 2d 274, 279 (E.D. Pa. 2009) (Mushroom II).
The District Court, after ruling on the Growers‟
motions to dismiss, bifurcated discovery and entertained
cross-motions for partial summary judgment on the
preliminary question of whether the Growers were exempt
from the antitrust claims under the Capper-Volstead Act. The
Court denied the Growers‟ motion and granted the
Purchasers‟ motion, holding that EMMC was not a proper
agricultural cooperative under the Capper-Volstead Act
because one member, M. Cutone Mushroom Co., Inc., was
not technically a grower of agricultural produce. Id. at 286.
The District Court further opined that “[e]ven if all EMMC
members satisfied the requirements to qualify the cooperative
for the Capper-Volstead exemption, the exemption does not
extend to protect cooperatives that conspire with non-
cooperatives,” and it found that the uncontested facts of the
case revealed an impermissible price-fixing conspiracy with a
non-member mushroom distribution company. Id. at 286-91.2
2
Because we hold that we do not have jurisdiction to
hear this question on interlocutory appeal, we do not opine on
the validity of the District Court‟s holding that EMMC was
not properly formed under the Capper-Volstead Act because
one of its members was not a grower of agricultural produce.
Mushroom II, 621 F. Supp. 2d at 286 n.13 (“I have found that
the EMMC is not exempt under Capper-Volstead by
including M. Cutone [Mushroom Co., Inc.] as a member
when it is not a grower . . . .”). We do note that, despite a
host of arguments pressed by the Purchasers in the court
below and on appeal, the ineligibility of M. Cutone was the
only basis for that holding. Id. (explaining that, having found
13
In response to the District Court‟s holding, the Growers filed
this appeal. The Purchasers moved to dismiss, claiming that
we lack jurisdiction to hear this case as an interlocutory
appeal.3
II
“We necessarily exercise de novo review over an
argument alleging a lack of appellate jurisdiction.” Montanez
v. Thompson, 603 F.3d 243, 248 (3d Cir. 2010). We have
“jurisdiction of appeals from all final decisions of the district
courts of the United States.” 28 U.S.C. § 1291 (emphasis
added). Despite this final order requirement, the collateral
order doctrine permits courts of appeals to hear interlocutory
appeals from “a small set of prejudgment orders that are
„collateral to‟ the merits of an action and „too important‟ to be
denied immediate review.” Mohawk Indus., Inc. v.
Carpenter, 130 S. Ct. 599, 603 (2009) (quoting Cohen v.
that one member of EMMC was not a grower, the District
Court need not extend its analysis to the Purchasers‟ other
allegations). Nor do we opine on the validity of the
alternative holding in the second half of the District Court‟s
opinion, which concerns a different question, whether
particular anticompetitive conduct by EMMC would be
covered by the Act‟s exemption if it did apply. Id. at 286-91.
3
The Mushroom Cooperative Defendants (EMMC and
28 companies and individuals) appealed under 28 U.S.C. §
1291, at case number 09-2257. M.D. Basciani & Sons, Inc.
appealed separately under § 1291, at case number 09-2258.
The appeals were consolidated and we refer to all appellants
as Appellants or Growers.
14
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). We
must decide whether an order denying the protections of the
Capper-Volstead Act falls within that “small set of
prejudgment orders.”
In Cohen, the Supreme Court established three
prerequisites to the application of the collateral order
doctrine. Cohen, 337 U.S. at 546. “[A] district court‟s order
must 1) conclusively determine the disputed question; 2)
resolve an important issue completely separate from the
merits of the action; and 3) be effectively unreviewable on
appeal from a final judgment.” Forsyth v. Kleindienst, 599
F.2d 1203, 1207 (3d Cir. 1979) (citing Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468-69 (1978); Cohen, 337 U.S. at
546).
The first requirement of the Cohen test is easily
satisfied because the District Court‟s order conclusively
determined the issue of the Growers‟ protection under the
Capper-Volstead Act. Whether the second requirement is met
is less clear because, while a “claim of immunity is
conceptually distinct from the merits of the plaintiff‟s claim
that his rights have been violated,” Mitchell v. Forsyth, 472
U.S. 511, 527-28 (1985), the alternative holding in the latter
half of the District Court‟s opinion includes findings
regarding a price-fixing conspiracy that are closely related to
the merits of the Purchasers‟ antitrust claims. We need not
resolve that question, however, because we hold that an order
denying a defendant the Capper-Volstead Act‟s protections is
not effectively unreviewable on appeal from final judgment
15
and therefore does not satisfy the third requirement of the
Cohen test.4
A
We begin with the Supreme Court‟s most recent
decision involving the collateral order doctrine. In holding
that disclosure orders adverse to the attorney-client privilege
are not immediately appealable, the Court wrote:
The justification for immediate appeal
must . . . be sufficiently strong to overcome the
usual benefits of deferring appeal until litigation
concludes. This requirement finds expression
in two of the three traditional Cohen conditions.
The second condition insists upon important
questions separate from the merits. More
significantly, the third Cohen question, whether
a right is adequately vindicable or effectively
reviewable, simply cannot be answered without
a judgment about the value of the interests that
would be lost through rigorous application of a
final judgment requirement. That a ruling may
burden litigants in ways that are only
imperfectly reparable by appellate reversal of a
final district court judgment . . . has never
4
The appeal must also present a “„serious and
unsettled‟” legal question. Kulwicki v. Dawson, 969 F.2d
1454, 1459 (3d Cir. 1992) (quoting Nixon v. Fitzgerald, 457
U.S. 731, 742 (1982)). There is no dispute that the question,
whether the arguably inadvertent inclusion of an ineligible
member strips an agricultural cooperative of Capper-Volstead
protection, is both serious and unsettled.
16
sufficed. Instead, the decisive consideration is
whether delaying review until the entry of final
judgment would imperil a substantial public
interest or some particular value of a high order.
In making this determination, we do not
engage in an individualized jurisdictional
inquiry. Rather, our focus is on the entire
category to which a claim belongs. As long as
the class of claims, taken as a whole, can be
adequately vindicated by other means, the
chance that the litigation at hand might be
speeded, or a particular injustic[e] averted, does
not provide a basis for jurisdiction under §
1291.
Mohawk Indus., 130 S. Ct. at 605-06 (alteration and second
omission in original) (citations and internal quotation marks
omitted).
One category of prejudgment order that long has been
recognized as giving rise to an interlocutory appeal is an
order denying a defendant immunity from suit; such a denial
is “effectively unreviewable on appeal from a final judgment”
in that an erroneous denial exposes the defendant to the
burden of litigation, thwarting the purpose of the immunity.
In Mitchell v. Forsyth, the Supreme Court expanded Cohen
and held that denials of qualified immunity are collateral
orders because an “essential attribute [of absolute and
qualified immunity is] an entitlement not to stand trial under
certain circumstances,” and qualified immunity is “an
immunity from suit rather than a mere defense to liability.”
472 U.S. at 525-26, 530. Other immunities from suit have
since been recognized, and orders denying those immunities
17
are also immediately appealable under the collateral order
doctrine. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144 (1993) (holding that Eleventh
Amendment sovereign immunity is an immunity from suit,
the denial of which is appealable as a collateral order); Oss
Nokalva, Inc. v. European Space Agency, 617 F.3d 756, 760-
61 (3d Cir. 2010) (International Organizations Immunities
Act); Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008)
(prosecutorial immunity); Fed. Ins. Co. v. Richard I. Rubin &
Co., Inc., 12 F.3d 1270, 1281 (3d Cir. 1993) (Foreign
Sovereign Immunities Act).
B
In support of their argument that we have jurisdiction
over this appeal, the Growers cite Mitchell v. Forsyth for the
proposition that “orders deciding assertions of immunity
generally qualify for immediate appeal.” Mushroom Coop.
Appellants‟ Br. at 56.
No court of appeals has addressed whether the
Capper-Volstead Act provides an immunity from suit, but we
considered an analogous question in We, Inc. v. City of
Philadelphia, 174 F.3d 322, 326 (3d Cir. 1999). There, we
held that a denial of immunity under the Noerr-Pennington
doctrine is not an immediately appealable collateral order.
The Noerr-Pennington doctrine provides an “immunity” from
antitrust laws for “[j]oint efforts to influence public officials .
. . even though intended to eliminate competition.” United
Mine Workers v. Pennington, 381 U.S. 657, 670 (1965); see
E. R.R. Presidents Conference v. Noerr Motor Freight, Inc.,
365 U.S. 127, 144 (1961). As we explained in We, Inc., this
immunity is predicated on two principles: the First
Amendment right to petition the government, and the
18
language of the Sherman Act indicating that Congress did not
intend it to restrict the political process. We, Inc., 174 F.3d at
326. Thus, we concluded that “a right not to be burdened
with a trial is simply not an aspect of [Noerr-Pennington]
protection.” Id. at 330. Mindful of this analogy—and of the
differences between the judicially-created Noerr-Pennington
doctrine and the Capper-Volstead Act—we turn to the
language of the Act and the Supreme Court cases interpreting
it.
The Capper-Volstead Act provides an exemption from
some of the antitrust prohibitions of the Sherman Act and the
Clayton Antitrust Act. The Sherman Act, enacted in 1890,
criminalizes certain anticompetitive business practices.5 The
Clayton Act, enacted in 1914, creates a private right of action
5
The Sherman Act provides, in relevant part:
§ 1. Trusts, etc., in restraint of trade illegal;
penalty
Every contract, combination in the form of trust
or otherwise, or conspiracy, in restraint of trade
or commerce among the several States, or with
foreign nations, is declared to be illegal. . . .
§ 2. Monopolizing trade a felony; penalty
Every person who shall monopolize, or attempt
to monopolize, or combine or conspire with any
other person or persons, to monopolize any part
of the trade or commerce among the several
States, or with foreign nations, shall be deemed
guilty of a felony . . . .
15 U.S.C. §§ 1-2.
19
for violations of the Sherman Act. 15 U.S.C. §§ 15, 26. “In
the early 1900‟s, when agricultural cooperatives were
growing in effectiveness, there was widespread concern
because the mere organization of farmers for mutual help was
often considered to be a violation of the antitrust laws.” Md.
& Va. Milk Producers Ass’n v. United States, 362 U.S. 458,
464 (1960). This concern led to the passage of section 6 of
the Clayton Act6 and eventually the Capper-Volstead Act in
1922. Id. at 464-66. The Capper-Volstead Act provides, in
relevant part:
6
Section 6 of the Clayton Act provides:
The labor of a human being is not a commodity
or article of commerce. Nothing contained in
the antitrust laws shall be construed to forbid
the existence and operation of labor,
agricultural, or horticultural organizations,
instituted for the purposes of mutual help, and
not having capital stock or conducted for profit,
or to forbid or restrain individual members of
such organizations from lawfully carrying out
the legitimate objects thereof; nor shall such
organizations, or the members thereof, be held
or construed to be illegal combinations or
conspiracies in restraint of trade, under the
antitrust laws.
15 U.S.C. § 17. The Capper-Volstead Act extended these
protections to agricultural cooperatives having capital stock.
20
Persons engaged in the production of
agricultural products as farmers, planters,
ranchmen, dairymen, nut or fruit growers may
act together in associations, corporate or
otherwise, with or without capital stock, in
collectively processing, preparing for market,
handling, and marketing in interstate and
foreign commerce, such products of persons so
engaged. Such associations may have marketing
agencies in common; and such associations and
their members may make the necessary
contracts and agreements to effect such
purposes: Provided, however, That such
associations are operated for the mutual benefit
of the members thereof, as such producers, and
conform to one or both of [certain]
requirements . . . .
7 U.S.C. § 291. Thus, the Capper-Volstead Act exempts
certain agricultural cooperatives from some of the provisions
of the antitrust laws, allowing farmers to act through
agricultural cooperatives with “the same unified competitive
advantage—and responsibility—available to businessmen
acting through corporations as entities.” Md. & Va. Milk
Producers, 362 U.S. at 466; see also Nat’l Broiler Mktg.
Ass’n v. United States, 436 U.S. 816, 822 (1978).
Significantly for our purposes, the Act does not explicitly
state whether the immunity it provides is one from suit or one
from liability.
The Supreme Court‟s descriptions of the protections
afforded by the Capper-Volstead Act inform our decision
regarding whether it provides an immunity from suit.
According to the Court, the Act does not “wholly . . . exempt
21
agricultural associations from the antitrust laws” because,
although it permits the creation of cooperatives, it does “not
leave co-operatives free to engage in practices against other
persons in order to monopolize trade, or restrain and suppress
competition with the cooperative.” Md. & Va. Milk
Producers, 362 U.S. at 463-68; see United States v. Borden
Co., 308 U.S. 188, 204-05 (1939) (“The right of these
agricultural producers thus to unite in preparing for market
and marketing their products, and to make the contracts
which are necessary for that collaboration, cannot be deemed
to authorize any combination or conspiracy with other
persons in restraint of trade that these producers may see fit to
devise.”); cf. Sunkist Growers, Inc. v. Winckler & Smith
Citrus Prods. Co., 370 U.S. 19, 27-28 (1962) (holding that
the individual members of the Sunkist-related cooperatives
cannot be held to have conspired with one another in restraint
of trade).7
The Growers correctly note that the Supreme Court
has occasionally referred to the Act as granting “immunity.”
But that “immunity” is properly understood as an immunity
from liability or from prosecution by the government, not an
immunity from civil suit. See Case-Swayne Co. v. Sunkist
7
We have characterized the function of the Act the
same way: “the Capper-Volstead Act permits producers of
agricultural products—including milk, mushrooms and
others—to enter into manufacturing and marketing
cooperatives without fear of violating antitrust laws.”
Cochran v. Veneman, 359 F.3d 263, 273 (3d Cir. 2004)
(emphasis added) (citation omitted), vacated on other
grounds, Lovell v. Cochran, 544 U.S. 1058 (2005).
22
Growers, Inc., 389 U.S. 384, 397 (1967) (Harlan, J.,
concurring in part and dissenting in part) (referring to
“immunity from liability under . . . the Sherman Act”);
Sunkist Growers v. Winckler, 370 U.S. at 27-28 (“Section 6 of
the Clayton Act provides, inter alia, that agricultural
organizations instituted for the purposes of mutual help shall
not be held or construed to be illegal combinations or
conspiracies in restraint of trade under the antitrust laws. The
Capper-Volstead Act sets out this immunity in greater
specificity . . . .”); Md. & Va. Milk Producers, 362 U.S. at
463-64 (referring to “immunity from prosecution” and
Congress‟s intent to “immunize . . . from prosecution”) (all
emphases added).8
* * *
8
The Growers argue that the Act‟s legislative history
indicates Congress‟s intent to immunize farmers from suit.
But the legislative history focuses on government
prosecution, not private suits. See 62 CONG. REC. 2059
(1922) (“[I]t seems evident that Congress intends that the
farmer shall not be prosecuted for acting collectively in the
marketing of his product.”). Although Senator Capper made
comments about protecting the American farmer from
“persecution by interests opposing him if he seeks to act
collectively through cooperative associations,” id. (remarks of
Sen. Capper), there is no indication that such “persecution”
includes the threat of private litigation. Furthermore, it would
be unreasonable to infer a Congressional intent to relieve
farmers entirely of the threat of suit, given the limited nature
of the exemption discussed above, which does not shield
them completely from the burdens of antitrust litigation.
23
Neither the language of the Capper-Volstead Act nor
Supreme Court cases interpreting it indicate that the Act
entitles an agricultural cooperative to avoid entirely the
burden of litigation. Because the Act does not provide an
immunity from suit, a district court order denying a defendant
its protections is not effectively unreviewable after final
judgment, and, therefore, is not a collateral order subject to
interlocutory review. Accordingly, we will dismiss this
appeal for lack of jurisdiction.
24