Blueberry antitrust lawsuit gets OK to move to jury trial Grower’s case against Down East processors meets requirements

As Maine’s wild blueberry harvest swings into full production, a judge has ruled that an antitrust class-action lawsuit alleging price fixing by four blueberry processors can proceed to a jury trial.

The lawsuit was filed in Knox County Superior Court in February 2000 by Nathan Pease, a Knox County blueberry grower, against Jasper Wyman & Son of Milbridge, Cherryfield Foods Inc. of Cherryfield, Merrill Blueberry Farms Inc. and Allen’s Blueberry Freezer Inc. of Ellsworth.

Pease – who later amended his suit to include three other Knox County growers – alleges that the four companies conspired to set artificially low field prices for Maine’s wild blueberry crop in 1996 through 1999.

On Friday, Superior Court Justice Joseph Jabar ruled that Pease’s addition of the other growers to his suit met the legal requirements for a class action. Jabar also denied a motion for summary judgment by the blueberry companies.

In denying that motion – which would have ended the case – Jabar said that while the plaintiffs had no direct evidence that the companies agreed beforehand on the price they would pay growers, there was enough circumstantial evidence to allow the case to go to a trial.

Among the circumstantial evidence is the similarity in the field price that each of the companies paid during the four-year period in conjunction with allegations that the companies had an agreement not to solicit growers from other companies, the judge said.

While price similarity is understandable in a highly competitive market, an agreement not to solicit each other’s growers would be an allocation of markets, which is a violation of antitrust law, Jabar said.

Ed Flanagan, chief executive officer for Jasper Wyman & Son, said Tuesday that no such agreement exists and that the four companies do compete for growers – particularly large growers or cooperatives that include large numbers of growers.

“During the period in question, Wyman successfully took Pleasant River Cooperative and Foggy Bottom Co-op away from its former processor,” Flanagan said. “If that’s not competition, I don’t know what is.”

Ragnar Kamp, director of operations for Cherryfield Foods, said his company had no comment on the judge’s decision. Daniel Pileggi, a lawyer representing Merrill Blueberry Farms, said the company is “terribly disappointed” in Jabar’s ruling, but that judges are justified in letting a case go to trial if they believe there are any facts that could possibly support the plaintiff’s allegations.

“We don’t believe there are, but we’re now moving forward to a trial to show the claims are unfounded,” Pileggi said.

A call to Allen’s Blueberry Freezer was not returned.

The class-action suit against the four processing companies alleges that the four companies process 85 percent of all wild blueberries grown in Maine.

Unlike cultivated blueberries, where almost half of the annual harvest is sold fresh, most of Maine’s wild crop is processed for commercial use – usually by individually quick-freezing the berries within hours of the time the fruit leaves the field.

The allegations in the lawsuit center on the way the majority of Maine’s 500-plus wild blueberry growers are paid for their annual crops.

Historically, growers receive an initial payment of 25 cents a pound when the fruit is delivered to the plant or a receiving station for one of the companies. That initial payment is to cover the grower’s harvest costs.

The field price – the total amount per pound that growers will receive for that year’s crop – is not determined until the harvest has been completed and the fruit begins to sell – with most growers receiving a supplemental payment in the fall or winter.

The lawsuit alleges that the four companies determine what that price will be among themselves and there isk no negotiation with growers.