In re: Farm-Raised Salmon and Salmon Products Litigation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-21551-CIV-ALTONAGA/Louis

In re:

FARM-RAISED SALMON

AND SALMON PRODUCTS

ANTITRUST LITIGATION

_____________________________/

ORDER

THIS CAUSE is before the Court on Defendants’1 Motion to Dismiss the Second

Consolidated Amended Direct Purchaser Class Action Complaint for Failure to State Claim [ECF

No. 296], filed on January 15, 2021. Plaintiffs2 filed an Opposition [ECF No. 298] to the Motion;

to which Defendants filed a Reply [ECF No. 304]. The Court has carefully considered the Second

Consolidated Amended Direct Purchaser Class Action Complaint (“SCAC”) [ECF Nos. 246, 251-

1],3 the parties’ written submissions, the record, and applicable law. For the following reasons,

the Motion is denied.

I. BACKGROUND

This class action is brought on behalf of direct purchasers of farm-raised Atlantic salmon4

1 Defendants are Mowi ASA; Mowi USA, LLC; Marine Harvest Canada, Inc.; Mowi Ducktrap, LLC; Grieg

Seafood ASA; Grieg Seafood BC Ltd.; Ocean Quality AS; Ocean Quality North America Inc.; Ocean

Quality USA Inc.; Ocean Quality Premium Brands, Inc; SalMar ASA; Lerøy Seafood AS; Lerøy Seafood

USA Inc.; Cermaq Group AS; Cermaq US LLC; Cermaq Canada Ltd.; Cermaq Norway AS; and entities

owned or controlled by them (collectively, “Defendants”). (See SCAC ¶ 1).

2 Plaintiffs are Euclid Fish Company; Euro USA Inc.; Schneider’s Fish and Sea Food Corporation; Beacon

Fisheries, Inc.; Cape Florida Seafood; The Fishing Line LLC; and Hesh’s Seafood, Inc. (collectively,

“Plaintiffs”). (See SCAC ¶ 1).

3 Citations to the SCAC are to the unredacted version. (See [ECF No. 251-1]). The Court uses the

pagination generated by the electronic CM/ECF database, which appears in the headers of all court filings.

4 The term “salmon” refers to “Atlantic salmon.” (SCAC 5 n.2 (quotation marks omitted)).

and salmon products asserting claims against Defendants for violations of sections 1 and 3 of the

Sherman Act, see 15 U.S.C. §§ 1, 3. (See SCAC ¶ 3 & n.2). Defendants allegedly engaged in the

unlawful coordination of prices charged to direct purchasers of salmon between April 10, 2013

and the present. (See id.). Plaintiffs allege Defendants have been engaging in the following

misconduct:

• Applying a coordinated strategy to fix, raise, or stabilize spot prices of farmed

Norwegian salmon through inter-competitor transactions reported to the

NASDAQ[5] Salmon Index,[6] which is used as the reference point by

Defendants to set the prices of salmon and salmon products worldwide[; and]

• Coordinating sales prices and exchanging commercially sensitive information

through in-person meetings and telephonic and written communications in

order to reduce competition between Defendants within the European Union for

salmon, and thereby facilitating supra-competitive spot pricing reported by the

N[ASDAQ] Salmon Index.

(Id. ¶ 7 (alterations added)).

The parties.

The Plaintiffs. Plaintiffs are Ohio, New York, Florida, New Jersey, and Pennsylvania

corporations. (See id. ¶¶ 15–21). Plaintiffs are direct purchasers of salmon that have suffered

monetary losses as a result of Defendants’ antitrust violations. (See id.). Plaintiffs seek to

represent a class “consisting of all persons and entities in the United States, its territories, and the

District of Columbia who directly purchased farm-raised Atlantic salmon or products derived

therefrom from one or more Defendants and/or entities owned or controlled by them from April

10, 2013 until the effects of the anticompetitive conduct alleged herein cease[.]” (Id. ¶ 9 (alteration

5 The National Association of Securities Dealers Automated Quotations Exchange (“NASDAQ”).

6 The NASDAQ Salmon Index “is the weighted average of weekly reported sales prices and corresponding

volumes in fresh Atlantic Superior Salmon, head on gutted reported to NASDAQ’s offices in Copenhagen,

Denmark by a panel of Norwegian salmon exporters and salmon producers with export licenses.” (Id. 1

n.1).

added)).

The Defendants.7 Defendants include the world’s leading salmon producers and their

subsidiaries and affiliates. (See id. ¶¶ 22–101).

The Mowi Defendants.8 Defendant, Mowi ASA, is a “global corporate brand” and the

largest producer of salmon. (Id. ¶ 23 (quotation marks omitted)). Mowi ASA operates through

numerous subsidiaries and divisions in 25 countries, including the United States. (See id. ¶ 25; see

also id. ¶¶ 26–48). Defendants, Mowi USA, LLC; Mowi Ducktrap, LLC; and Marine Harvest

Canada, Inc., are wholly owned and controlled subsidiaries of Mowi ASA. (See id. ¶¶ 41–48).

The Grieg Defendants.9 Defendant, Grieg ASA, is one of the world’s leading fish farming

companies specializing in salmon. (See id. ¶ 49). Defendant, Grieg Seafood BC Ltd., a wholly

owned and controlled subsidiary of Grieg ASA, farms salmon on 22 sites in British Columbia.

(See id. ¶ 61). Grieg ASA targets and sells its salmon to the United States using its sales and

distribution agent, Defendant, Ocean Quality AS. (See id. ¶¶ 50–54). Ocean Quality AS operates

in the United States and Canada through three wholly owned subsidiaries: Defendants, Ocean

Quality North America Inc., Ocean Quality USA Inc., and Ocean Quality Premium Brands.10 (See

id. ¶ 50).

The SalMar Defendant. Defendant, SalMar ASA (“SalMar”), a foreign corporation, is one

7 On March 6, 2020, Plaintiffs filed a Notice of Voluntary Dismissal Without Prejudice [ECF No. 196],

dismissing the claims asserted against Defendant, Scottish Sea Farms Ltd. (“Scottish Sea Farms”).

8 Mowi ASA; Mowi USA, LLC; Mowi Ducktrap, LLC; and Marine Harvest Canada, Inc. are collectively

referred to as “Mowi[.]”

9 Grieg Seafood ASA (“Grieg ASA”); Grieg Seafood BC Ltd.; Ocean Quality AS; Ocean Quality North

America Inc.; Ocean Quality USA Inc.; and Ocean Quality Premium Brands, Inc. are collectively referred

to as “Grieg[.]” (See SCAC ¶ 72).

10 The term “Ocean Quality” refers to Ocean Quality AS acting on behalf of itself; Ocean Quality North

America Inc.; Ocean Quality USA Inc.; Ocean Quality Premium Brands, Inc.; and Grieg ASA. (See SCAC

¶ 72).

of the world’s largest and most efficient producers of salmon. (See id. ¶¶ 73–74). SalMar targets

and transacts business in the United States, including Florida. (See id. ¶¶ 76–78).

The Lerøy Defendants.11 Defendant, Lerøy Seafood Group ASA, a seafood production and

distribution company, is the world’s second largest salmon and trout farming company. (See id. ¶

81–82). Defendant, Lerøy Seafood USA Inc., is the U.S. distribution subsidiary for Lerøy Seafood

Group ASA. (See id. ¶¶ 84–85). Lerøy Seafood USA Inc. sells and distributes Lerøy Seafood

Group ASA’s farmed salmon throughout the United States. (See id.).

The Cermaq Defendants.12 Defendant, Cermaq Group AS, is the parent company of

Defendants, Cermaq US LLC, Cermaq Canada Ltd., and Cermaq Norway AS. (See id. ¶¶ 91, 97).

Cermaq operates the third-largest salmon farming, processing, and sales company in the world.

(See id. ¶ 93). Its sales to U.S. customers sometimes account for more than double its sales within

Norway and up to nearly 25 percent of the group’s global revenues. (See id. ¶ 96).

Agents and co-conspirators. Defendants’ alleged acts “were authorized, ordered, or done

by their officers, agents, employees, or representatives, while actively engaged in the management

and operation of the respective Defendants’ businesses or affairs.” (Id. ¶ 98; see also id. ¶ 101).

The Defendant parent entities exercise dominance and control over all their subsidiary entities;

and the subsidiary entities have a unity of purpose and interest with their respective parents. (See

id. ¶ 98). The “subsidiaries played a critical role in the conspiracy in that they (as well as the

respective parent Defendants) sold price-fixed salmon and products derived therefrom to direct

purchasers outside Defendants’ conspiracy in the United States, including Florida.” (Id.; see also

id. ¶ 99).

11 Lerøy Seafood AS and Lerøy Seafood USA Inc. are collectively referred to as “Lerøy[.]”

12 Cermaq Group AS, Cermaq US LLC, Cermaq Canada Ltd., and Cermaq Norway AS are collectively

referred to as “Cermaq[.]”

The facts.

The European Commission and the Department of Justice investigations. Plaintiffs’

allegations parallel those of the European Commission (“EC”) in the European Union and the

Department of Justice (“DOJ”) in the United States, both of which are investigating illegal

anticompetitive behavior in the farmed salmon market. (See id. ¶ 102).

In February 2019, the EC opened an antitrust investigation into the world’s major

producers of farm-raised salmon after “receiv[ing] information . . . that Norwegian producers of

farmed Atlantic salmon participate or ha[d] participated in anti-competitive agreements and/or

concerted practices related to different ways of price coordination in order to sustain and possibly

increase the prices for Norwegian salmon.” (Id. ¶ 103 (alterations added; other alteration adopted);

see also id. ¶ 5). In its letters announcing the investigation, the EC raised concerns that the

Norwegian producers: (1) “coordinat[ed] sales prices and exchang[ed] commercially sensitive

information;” (2) “agree[d] to purchase production from other competitors when these other

competitors sell at lower prices;” and (3) “appl[ied] a coordinated strategy to increase spot prices

of farmed Norwegian salmon in order to secure higher price levels for long-term contracts.” (Id.

¶ 104 (alterations added)).

The EC raided Mowi, Grieg, and SalMar’s operations due to concerns that the companies

may have violated European Union antitrust rules that prohibit cartels and restrict business

practices. (See id. ¶¶ 105–08). The EC also inspected Scottish Sea Farms, a company jointly

owned by Lerøy and SalMar, but not Cermaq, as it has no facilities within the European Union.

(See id. ¶¶ 80, 109–10, 112). To justify the raids, the EC “must have reasonable grounds for

suspecting an infringement of the competition rules; it must be borne in mind that the inspections

carried out by the [EC] are intended to enable it to gather the necessary documentary evidence to

check the actual existence and scope of a given factual and legal situation concerning which it

already possesses certain information.” (Id. ¶ 111 (alteration added; other alteration adopted;

quotation marks omitted)). The SCAC details two historical antitrust investigations within the

salmon industry occurring in 1992 and 2003. (See id. ¶¶ 113–14).

In the United States, the DOJ is investigating the same potential illegal practices the EC is

investigating in Europe. (See id. ¶¶ 117–21). In November 2019, the DOJ issued grand jury

subpoenas to Mowi, Grieg, Lerøy, SalMar, and Ocean Quality seeking information on practices

similar to those being investigated by the EC. (See id.). The fact that the subpoenas in question

were issued by a criminal grand jury indicates the DOJ is considering a criminal prosecution

against Defendants. (See id. ¶ 122). The issuance of the subpoenas to Mowi, Grieg, Lerøy, SalMar

and Ocean Quality reasonably supports collusion. (See id. ¶¶ 117–21).

Either after the EC raids or after the DOJ-issued subpoenas, several developments occurred

at certain Defendant companies that were unusual and suspicious. (See id. ¶ 123). By way of

examples: (1) executives at Mowi ASA and Ocean Quality AS either resigned without any

explanation or abruptly left for undisclosed reasons (see id. ¶¶ 124–26); (2) Grieg ASA abruptly

terminated its joint venture with non-party, Bremnes Fryseri AS in Ocean Quality AS (see id. ¶¶

51, 127); and (3) Mowi unilaterally withdrew from the Global Salmon Initiative (“GSI”), an

organization developed by Mowi ASA’s CEO and whose members included the Norwegian

entities for Mowi, Grieg, Lerøy, Cermaq, and SalMar (see id. ¶ 128).

The market allegations. The salmon market is susceptible to manipulation by Norway’s

major salmon producers because, in large part, “the spot market for salmon in Oslo, Norway is the

most important benchmark for salmon prices around the globe[.]” (Id. ¶ 129 (alteration added)).

The NASDAQ Salmon Index’s formulated spot price directly serves as the benchmark price for

the sale of salmon around the world, including in the United States. (See id. ¶¶ 129–30).

In 2012, the “key players” in the salmon industry were involved in a process to replace the

existing price index (where independent salmon exporters reported purchase prices) with a new

index based on spot sales prices paid to salmon producers with export licenses and subsidiaries or

affiliates of such producers that engaged in exportation, such as the Defendants. (Id. ¶ 131

(quotation marks omitted)). The “key players” — vertically integrated companies like the

Norwegian Defendants13 — insisted they wanted a uniform salmon price, something that would

facilitate spot market manipulation. (Id. ¶ 132 (quotation marks omitted)). The NASDAQ Salmon

Index, formally unveiled in April 2013, provided Defendants the direct ability to impact and

influence the market through their purchases of salmon on the spot market. (See id. ¶¶ 131–33).

Under the new approach, an Advisory Panel consisting of 10 companies (exporters

representing 50–60 percent of all Norwegian salmon) would report on a weekly basis spot prices

for head on gutted Fresh Atlantic Superior Salmon during the previous week. (See id. ¶¶ 129,

134–35). This information was then compiled into an overall Index price, with separate weighted

average prices for salmon from Norway across 10 different weight classes (1 to 2 kilograms to

over 9 kilograms). (See id. ¶ 135). Mowi, SalMar, Cermaq, and Ocean Quality were members of

the Advisory Panel during the period alleged in the SCAC.14 (See id. ¶¶ 136–37). Mowi’s

subsidiary, Nova Sea, of which Mowi owns nearly 50 percent, was a reporting member of the

Advisory Panel. (See id. ¶ 136). The NASDAQ Salmon Index Advisory Panel “manipulated the

index price for salmon through their weekly reports on their spot sales and could thereby increase

13 The “Norwegian Defendants” are Mowi ASA, Grieg ASA, Ocean Quality AS, SalMar, Lerøy Seafood

AS, and Cermaq Group AS.

14 Although Lerøy did not serve on the panel, Scottish Sea Farms represented its interests. (See SCAC ¶¶

80, 136, 155).

prices across the industry, including to customers in the United States.” (Id. ¶ 138; see also, e.g.,

id. ¶¶ 139–52).

The SCAC identifies Morpol ASA (“Morpol”), of which Mowi owns 48.5 percent and

exercised effective (and later, majority) control, as a key player in the manipulation of the

NASDAQ Salmon Index. (See, e.g., id. ¶¶ 8, 27, 29, 30, 132, 140–41, 143, 147, 151, 184). Morpol

was the single largest buyer on the spot market; in 2014, for example, Morpol’s purchases

constituted approximately 70% of the spot market commerce. (See id. ¶¶ 147–48). Morpol’s

“transactions with Mowi and the other Defendants set the NASDAQ Salmon Index price to which

Defendants’ prices, including contract prices, were pegged, and thus, none of Morpol’s

competitors were in a position to obtain materially better pricing than the supra-competitive pricing

Morpol accepted as the dominant purchaser of salmon on the spot market.” (Id. ¶ 150).

The SCAC states:

There is no legitimate pro-competitive justification for the key industry

players — the Norwegian Defendants here — to sell substantial quantities of

salmon to Morpol on the spot market. Mowi was fully capable of supplying

Morpol’s salmon requirements through internal transfers, rather than through spot

market purchases (which were then used to set salmon prices worldwide). In fact,

Morpol’s salmon needs amounted to only approximately 10% of Mowi’s salmon

production on an annual basis. Likewise, SalMar and other vertically integrated

Defendants had their own “value-added” subsidiaries like Morpol, and instead of

directing that salmon to those subsidiaries (or other non-competitor customers),

sold the product on the spot market to Morpol. Morpol’s spot market purchases

create the appearance of greater consumer demand for these fish than actually is

present in the market and that increases and/or stabilizes salmon prices at supra-

competitive levels when these spot trades are reported to market participants.

(Id. ¶ 151).

Interfirm and intrafirm communications and the Russian ban. Norway’s farmed salmon

industry “is very close-knit, with executives often moving from a position at one Defendant to a

position at another and executives at the Defendant companies talking freely to each other about

price or competition.” (Id. ¶ 153). As early as 2013, top management from each of the Defendant

companies met and discussed issues impacting the industry, including the potential for a Russian

ban of imports of salmon, and cooperation efforts. (See, e.g., id. ¶¶ 154, 156). The SCAC includes

details of emails and communications among Defendants — including the names of people

involved, dates of conversations, and topics of discussion — that, according to Plaintiffs, support

an inference of collusion. (See id. ¶¶ 154–57, 162–64, 167, 175–85).

For example, the SCAC states:

[O]n April 4, 2014, SalMar’s Witzøe [(SalMar’s largest shareholder)]

explained to its CEO Nordhammer that he had attended a dinner meeting with

Lerøy’s [CEO] Beltestad, during which they discussed a pricing model for their

salmon based on NASDAQ spot prices. Around the same time, Witzøe and

Beltestad were communicating with Jim Gallagher of [Scottish Sea Farms] via

email. In one of those emails, Gallagher referenced a recent conversation with

Witzøe, and perhaps Beltestad as well, regarding NASDAQ prices. Gallagher

confirmed that, as they had discussed, [Scottish Sea Farms] would make sure its

prices were ahead of NASDAQ prices on a week-to-week basis. He also directly

asked Witzøe to contact Beltestad to confirm what prices Lerøy was offering.

These conversations reflect these Defendants’ understanding of the importance of

pricing above NASDAQ prices and their open-book approach to dealing with one

another to ensure pricing conformed to prices reported by the NASDAQ salmon

index.

(Id. ¶ 162 (alterations added)).

In August 2014, Russia banned imports of Norwegian seafood in response to economic

sanctions imposed by the United States and European Union; the Russian ban was extended in

July 2015 and remains in effect. (See id. ¶¶ 165, 172). Mowi, SalMar, Ocean Quality, Grieg, and

Lerøy participated in an emergency meeting to discuss the Russian ban and the potential fall-out

on prices, agreeing “on the importance of not talking down prices.” (Id. ¶ 165). Defendants’ prices

ramped drastically upward in 2014 and 2015 despite Norwegian salmon producers losing their

biggest traditional customer, Russia; the price increases resulted in huge profits for Defendants.

(See id. ¶¶ 166–68, 170–71, 173). At this time, “one would have expected that each of the

Norwegian Defendants would compete more vigorously with each other on prices in an effort to

increase sales and thereby wrest market share from their rivals[;] [t]hat did not happen.” (Id. ¶ 173

(alterations added)). Instead, Defendants reacted by continuing their meetings and colluding

together. (See id. ¶¶ 173–85).

Trade Associations and Industry Organizations. During the period alleged in the SCAC,

Norway’s key players in the farmed salmon industry and their subsidiaries transitioned from a

culture of competition to one of cooperation. (See id. ¶ 188). Defendants were members of various

trade associations and had the opportunity to exchange commercially sensitive information at trade

association meetings. (See id. ¶¶ 186–87, 190–96, 200–02).

The SCAC provides details regarding the Norwegian Seafood Council (the “NSC”), a trade

organization that is the industry’s main source for market insight based on statistics, trade

information, consumption, and consumer insight. (See id. ¶¶ 186, 194–95). SAS Data

Management, a data analytics firm, created a database and analytical tools for the NSC that allow

industry members to share current individualized computer data, including pricing data. (See id.

¶ 186). The practice of providing horizontal competitors real-time ongoing price and market share

data — a practice to which these competitors obviously agreed — is “a real cause for concern.”

(See id. ¶ 196; see also id. ¶¶ 195, 197–99). Information exchanges “can be powerful evidence of

an agreement to fix prices because the antitrust concern is that information exchanges may

facilitate anticompetitive harm by advancing competing sellers’ ability either to collude or to

tacitly coordinate in a manner that lessens competition.” (Id. ¶ 198 (alteration adopted; quotation

marks omitted); see also id. ¶¶ 197, 199).

The Davidsen presentation and Global Salmon Initiative. At a 2016 speech, the Deputy

Managing Director of the Norwegian Seafood Federation, Trond Davidsen, announced the

Norwegian salmon industry had “moved from battling each other in trade wars to cooperating[;]”

that “cross border activity in the industry has moved the whole industry into a new way of

thinking[;]” this “will probably decrease the risk of any battles between the producing countries in

the future[;]” and “that we need to develop our industry to meet the global demand rather than

fight each other.” (Id. ¶¶ 187–88 (alterations added)). Davidsen’s reference to “trade wars” or

“battles” or “fighting” are code words for price competition. (Id. ¶ 189 (alteration adopted;

quotation marks omitted)).

The commitment to cooperation is reflected in the activities of the GSI. (See id. ¶ 190). In

2013, a small group of executives of farming salmon companies formed the GSI to engage in

“precompetitive cooperation.” (Id. ¶ 191 (quotation marks omitted)). Mowi, SalMar, Grieg, and

Lerøy were original members of the GSI. (See id.). “The closer cooperation of the Defendants,

and particularly their executives, through the GSI strengthened the substantial inter-competitor

relationships that already existed between them and allowed them to successfully implement the

anticompetitive conduct alleged” in the SCAC. (Id.). In July 2020, Mowi abandoned the GSI in

the wake of ongoing investigations in two continents. (See id. ¶ 192).

The North Atlantic Seafood Forum. The North Atlantic Seafood Forum is the world’s

largest seafood business conference and is held every March in Bergen, Norway. (See id. ¶ 200).

The conference is sponsored by major players in the salmon industry, including Grieg, Mowi, and

Lerøy. (See id.). Representatives of at least one Defendant (and typically many more) also

attended networking sessions and workshops devoted to particular industry sectors. (See id. ¶¶

201–02). One such parallel session attended by Defendants’ representatives during the conspiracy

period was devoted to “global salmon supply, markets and prices.” (Id. ¶ 201 (quotation marks

omitted)).

Parallel pricing and record profitability. Plaintiffs include pricing charts illustrating the

Norwegian Defendants15 all increased their wholesale salmon prices at roughly the same time and

at similar levels. (See id. ¶¶ 204–09; id., App. A [ECF No. 251-2]). These “price increases — and

Defendants’ coordinated behavior that caused them — have come at the expense of Plaintiffs and

the class, who have paid more for salmon than they otherwise would have in the absence of

Defendants’ anticompetitive conduct.” (SCAC ¶ 210). Defendants “reported record profits during

the conspiracy period, in part through manipulation of the NASDAQ Salmon Index prices and the

use of them to set wholesale prices.” (Id. ¶ 203). Most Defendants more than doubled their profits

in the relevant period. (See id. ¶¶ 211–17).

Pricing behavior and cost factors. Defendants frequently and falsely asserted “cost

increases justified their price increases, but their own data disproves their purported justification.”

(Id. ¶ 218). Plaintiffs provide charts showing Defendants’ pricing behavior is not justified by cost

factors. (See id. ¶¶ 218–20). Nor can increased demand explain Defendants’ price increases since

mid-2013. (See id. ¶ 221). Plaintiffs rely on spot price charts for 2014, 2015, and 2016, which,

according to Plaintiffs, “depict how Defendants managed to avoid a catastrophic drop in prices

after the 2014 Russian ban was implemented and how they began to raise prices (measured on a

weekly basis) beyond the prior five-year averages[.]” (Id. ¶ 222 (alteration added); see also id. ¶¶

223–25).

Farm-raised salmon market structure. The structure and characteristics of the Atlantic

salmon market facilitate collusion, including (1) high industry concentration; (2) barriers to new

entry; (3) a commoditized product and price correlation; and (4) perishable products and inelastic

production. (See id. ¶¶ 226–28).

Industry concentration. A highly concentrated market is more susceptible to collusion and

15 Plaintiffs do not provide specific wholesale pricing for Cermaq and SalMar. (See SCAC ¶ 203).

anticompetitive practices. (See id. ¶ 229). In recent years, there has been significant and rapid

consolidation of salmon farming operations around the globe. (See id. ¶¶ 230–31). Norway’s

salmon industry is dominated by Mowi, Lerøy, SalMar, Cermaq, and Grieg. (See id. ¶¶ 232–35;

see also id. ¶ 252 (emphasizing chart that illustrates Norway’s dominance in the global salmon

industry, with about 52 percent of supply)).

Barriers to new entry. Significant barriers to entry suppress competition in markets; here,

the farming salmon market has high entrance barriers. (See id. ¶ 236). Specifically, the production

of farm-raised salmon is capital intensive, must occur in appropriate geographic locations, and is

a lengthy process. (See id. ¶¶ 237–44). All of these operate as barriers to entry. (See id.).

Commodity product and price correlation. A market involving a commodity-like product,

like salmon, is more susceptible to collusion. (See id. ¶¶ 245–46). Commodity products “are

fungible, and consumers and other purchasers have a variety of supply options which makes raising

prices by any one supplier difficult in the absence of a conspiracy.” (Id. ¶ 245).

The NASDAQ Salmon Index serves as the price for salmon across the globe. (See id. ¶

246). Because prices are linked across the globe, Defendants closely monitor these prices. (See

id. ¶ 247). Anticompetitive conduct affecting salmon prices in one market will affect global prices.

(See id. ¶ 248). The Norwegian salmon gate prices are strongly linked, and Defendants’ collusion

on Norwegian prices directly affects prices for farmed salmon raised elsewhere under the “law of

one price.” (Id. ¶ 249 (quotation marks omitted); see also id. ¶¶ 250–51).

Perishable products and inelastic production. Salmon is perishable and marketed fresh;

as such, all production in one period must be consumed in the same period. (See id. ¶ 253). The

supplied quantity is also inelastic because “the production level is difficult and expensive to adjust

as the planning/production cycle is three years long.” (Id.). Plaintiffs state:

[I]n the absence of coordinated conduct among producers, Defendants are

price-takers and cannot control the price of their product. They are unable to reduce

the supply of salmon in the short term to raise prices unilaterally, and they must sell

during a very short window while their product is fit for human consumption. In

the long term, Defendants would have limited incentives to restrict supply when

prices are high, thus creating an oversupply in the market that would depress prices

in the absence of collusion. These market constraints make the market more

susceptible to collusion than markets where goods are not perishable and

production levels can be rapidly modulated. . . . As claimed price-takers,

Defendants had every incentive to collude to ensure that the price they took in the

market was as high as they could collectively get it.

(Id. ¶ 254 (alterations added)).

Direct purchasers in the United States. Defendants’ activities, including those undertaken

overseas, impact direct purchasers of farm-raised salmon and products derived therefrom in the

United States. (See id. ¶ 255). The United States is the second largest global market behind only

the European Union. (See id. ¶¶ 255–56). Defendants’ own documents and communications

reflect anticompetitive conduct in Europe impacted sales in the United States due to the control

exercised by the parent entities in Norway. (See id. ¶¶ 257–64).

Tolling of the statute of limitations. Plaintiffs’ claims are not barred by the applicable four-

year statute of limitations both under the injury discovery rule and the doctrine of fraudulent

concealment. (See id. ¶ 265). Plaintiffs allege Defendants took affirmative acts to mislead them.

(See id. ¶¶ 267–70, 272–73). Plaintiffs were unaware of Defendants’ conspiracy and could not

have learned of it through the exercise of due diligence until February 2019, when the EC

commenced its investigation. (See id. ¶¶ 266, 274).

Injury and proposed class. The named Plaintiffs claim to have “sustained injury to their

businesses or property, having paid higher prices for salmon and products derived therefrom than

they would have paid in the absence of Defendants’ illegal contract, combination, or conspiracy,

and, as a result, have suffered damages[.]” (Id. ¶ 290 (alteration added); see also id. ¶¶ 287–89).

They seek to certify the following class:

All persons and entities in the United States who purchased farm-raised

Atlantic salmon and/or products derived therefrom directly from Defendants, any

current or former subsidiary or affiliate of Defendants, or any co-conspirator,

between April 10, 2013 until the effects of the anticompetitive conduct alleged

herein cease. Excluded from the Class are Defendants, Defendants’ parent

companies, subsidiaries, affiliates, officers, directors, employees, assigns,

successors, agents, or co-conspirators, and the Court and its staff.

(Id. ¶ 275; see also id. ¶¶ 276–82).

The SCAC and Defendants’ Motion. The SCAC alleges violations of sections 1 and 3 of

the Sherman Act, see 15 U.S.C. §§ 1, 3. (See SCAC ¶¶ 3, 291–99). Defendants jointly move to

dismiss the SCAC. (See generally Mot.). They argue: (1) Plaintiffs fail to allege direct evidence

of an agreement; (2) Plaintiffs do not plead parallel conduct or plus factors sufficient to sustain a

Sherman Act claim without direct evidence; and (3) the class members’ claims are time-barred.

(See generally Mot.; Reply).

II. STANDARD

“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (alteration added; quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). Although this pleading standard “does not require ‘detailed factual allegations,’

. . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.

(alteration added) (quoting Twombly, 550 U.S. at 555). Pleadings must contain “more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Twombly, 550 U.S. at 555 (citation omitted). Indeed, “only a complaint that states a plausible

claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S.

at 556).

To meet this “plausibility standard,” a plaintiff must “plead[] factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. at 678 (alteration added; citing Twombly, 550 U.S. at 556). “The mere possibility the defendant

acted unlawfully is insufficient to survive a motion to dismiss.” Sinaltrainal v. Coca-Cola Co.,

578 F.3d 1252, 1261 (11th Cir. 2009) (citation omitted), abrogated on other grounds by Mohamad

v. Palestinian Auth., 566 U.S. 449 (2012).

When reviewing a motion to dismiss, a court construes the complaint in the light most

favorable to the plaintiff and takes the factual allegations as true. See Brooks v. Blue Cross & Blue

Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc., 835 F.2d

270, 272 (11th Cir. 1988)).

III. ANALYSIS

As stated, Plaintiffs assert claims under sections 1 and 3 of the Sherman Act, 15 U.S.C. §§

1, 3. (See SCAC ¶¶ 3, 291–99).

The Sherman Act. Section 1 of the Sherman Act provides “[e]very contract, combination

. . . , or conspiracy, in restraint of trade or commerce among the several States, or with foreign

nations, is declared to be illegal.”16 15 U.S.C. § 1 (alterations added). “Despite the different

terminology, there is no magic unique to each term in [section] 1; the terms ‘contract,’

‘combination,’ and ‘conspiracy’ are used interchangeably to capture the concept of concerted

action, that is an ‘agreement.’” Am. Contractors Supply, LLC v. HD Supply Constr. Supply, Ltd.,

-- F.3d --, 2021 WL 822194, at *5 (11th Cir. Mar. 4, 2021) (alteration added; some quotation marks

and citation omitted). “The purpose of the Sherman Act is to protect consumers from injury that

16 Because section 3 of the Sherman Act merely extends section 1’s prohibitions to U.S. territories and the

District of Columbia, the Court analyzes Plaintiffs’ claims under section 1’s standards. See Robinson v.

Jackson Hewitt, Inc., No. 19-9066, 2019 WL 5617512, at *5 n.7 (D.N.J. Oct. 31, 2019) (analyzing the

plaintiffs’ section 3 claims under the same standards as it did the plaintiffs’ section 1 claims because section

3’s language is virtually the same as section 1’s); Spinelli v. Nat’l Football League, 96 F. Supp. 3d 81, 107

n.10 (S.D.N.Y. 2015) (“Substantively, . . . Section 3 claims are analyzed in the same manner as Section 1

claims.” (alteration added; citation omitted)).

results from diminished competition.” Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328,

334–35 (7th Cir. 2012) (citation omitted). “[T]he Supreme Court has long concluded that

Congress intended only to prohibit ‘unreasonable’ restraints on trade.” Quality Auto Painting Ctr.

of Roselle, Inc. v. State Farm Indem. Co., 917 F.3d 1249, 1260 (11th Cir. 2019) (alteration added;

citation omitted). Thus, section 1 “prohibits (1) conspiracies that (2) unreasonably (3) restrain

interstate or foreign trade.” Id. (citation omitted).

Adequately stating a section 1 claim “requires a complaint with enough factual matter

(taken as true) to suggest that an agreement was made.” Twombly, 550 U.S. at 556. The “crucial

question” with regard to a conspiracy claim under section 1 “is whether the challenged

anticompetitive conduct stems from independent decision or from an agreement, tacit or

express[.]” Id. at 553 (alteration added; other alteration adopted; quotation marks and citation

omitted). To prove an antitrust conspiracy, the plaintiff “should present direct or circumstantial

evidence that reasonably tends to prove that the [defendant] and others had a conscious

commitment to a common scheme designed to achieve an unlawful objective.” Monsanto Co. v.

Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984) (alteration added; quotation marks and citations

omitted).

“Direct evidence of an agreement is explicit and requires no inferences to establish the

proposition or conclusion being asserted.” In re Loc. TV Advert. Antitrust Litig., No. 18 C 6785,

2020 WL 6557665, at *7 (N.D. Ill. Nov. 6, 2020) (quotation marks and citations omitted); see also

Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 136 (2d Cir. 2013) (“[A] plaintiff

may . . . assert direct evidence that the defendants entered into an agreement in violation of the

antitrust laws. . . . Such evidence would consist, for example, of a recorded phone call in which

two competitors agreed to fix prices at a certain level.” (alterations added; citation omitted)). “[I]t

is only in rare cases that a plaintiff can establish the existence of a conspiracy by showing an

explicit agreement; most conspiracies are inferred from the behavior of the alleged conspirators.”

Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1573 (11th Cir. 1991) (alteration added;

citation omitted).

As an alternative, a plaintiff “may present circumstantial facts supporting the inference that

a conspiracy existed.” Gamm v. Sanderson Farms, Inc., 944 F.3d 455, 465 (2d Cir. 2019)

(quotation marks and citation omitted). A conspiracy “may be inferred on the basis of conscious

parallelism,[17] when such interdependent conduct is accompanied by circumstantial evidence and

plus factors such as defendants’ use of facilitating practices.” Todd v. Exxon Corp., 275 F.3d 191,

198 (2d Cir. 2001) (alteration added; citations omitted). In other words, “[a]llegations of parallel

conduct . . . are insufficient standing alone to raise an inference of conspiracy[;]” rather, “a plaintiff

must allege sufficient plus factors to make the parallel conduct more probative of conspiracy than

of conscious parallelism.” Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co.,

953 F.3d 707, 726 (11th Cir. 2020) (alterations added; quotation marks and citations omitted).

Such plus factors “may include: a common motive to conspire, evidence that shows that the parallel

acts were against the apparent individual economic self-interest of the alleged conspirators, and

evidence of a high level of interfirm communications.” Citigroup, Inc., 709 F.3d at 136 (quotation

marks, citation, and footnote call number omitted); see also In re Delta/AirTran Baggage Fee

Antitrust Litig., 733 F. Supp. 2d 1348, 1360 (N.D. Ga. 2010) (explaining circumstantial evidence

can include “speeches at industry conferences, announcements of future prices, statements on

17 Conscious parallelism is a “process, not in itself unlawful, by which firms in a concentrated market might

in effect share monopoly power, setting their prices at a profit-maximizing, supracompetitive level by

recognizing their shared economic interests and their interdependence with respect to price and output

decisions.” Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 (1993) (citation

omitted).

earnings calls, and in other public ways” (collecting cases)).

Discussion. Defendants raise three principal arguments in support of their request that the

Court dismiss the SCAC.18 (See generally Mot.; Reply). First, Defendants contend Plaintiffs fail

to allege parallel conduct. (See Mot. 17–22). Second, Defendants insist even if parallel conduct

is sufficiently alleged, Plaintiffs do not include allegations of the plus factors necessary to suggest

a conspiracy. (See id. 22–42). Third, Defendants maintain Plaintiffs’ claims are time-barred. (See

id. 42–47). The Court addresses each argument in turn.

Parallel conduct. Defendants contend Plaintiffs do not plead enough parallel conduct in

the form of increased spot prices or other pricing of salmon. (See id. 17–22; Reply 8–12).

“A plaintiff establishes parallel conduct when it pleads facts indicating that the defendants

acted similarly.” SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 427 (4th Cir. 2015)

(quotation marks and citations omitted). “Parallel conduct occurs when competitors act similarly

or follow the same course of action — for example, adopting similar policies at or around the same

time in response to similar market conditions.” Jones v. Micron Tech. Inc., 400 F. Supp. 3d 897,

915 (N.D. Cal. 2019) (citations omitted). Examples of parallel conduct allegations that suffice

under the Twombly standard include “parallel behavior that would probably not result from chance,

coincidence, independent responses to common stimuli, or mere interdependence unaided by an

advance understanding among the parties[;]” and “complex and historically unprecedented

changes in pricing structure made at the very same time by multiple competitors, and made for no

other discernible reason[.]” Twombly, 550 U.S. at 556 n.4 (alterations added; quotation marks and

citations omitted).

18 As noted, Defendants also contend “Plaintiffs do not allege direct evidence that Defendants agreed to fix

prices.” (Mot. 15–17). Plaintiffs concede they offer no direct evidence that Defendants have entered into

a price-fixing agreement. (See Resp. 19 (stating Plaintiffs need not allege direct evidence of a conspiracy)).

The parallel conduct element of Plaintiffs’ claims anchors on Defendants’ alleged collusive

manipulation of the NASDAQ Salmon Index and coordinated price increases. (See Resp. 19–36).

Plaintiffs first cite the Defendants’ (or their co-venturers’) purported scheme to manipulate

the spot price for salmon by submitting noncompetitive prices to the NASDAQ Salmon Index, all

in an effort to increase salmon prices. (See SCAC ¶¶ 129, 138–39, 258–64). The NASDAQ

Salmon Index serves as the benchmark price for the sale of salmon around the world, including in

the United States. (See id. ¶ 129). The Index is based on (1) sales prices paid to salmon producers

with export licenses and subsidiaries or affiliates of such producers that engaged in exportation,

such as Defendants; and (2) weekly reports of actual physical transactions by an Advisory Panel

of 10 Norwegian salmon producers or exporters. (See id. ¶¶ 131–32, 134–36). The SCAC details

Defendants’ membership in the NASDAQ Salmon Index’s Advisory Panel; and it alleges Mowi,

its partial subsidiary Nova Sea, SalMar (who represented Lerøy’s interest), Cermaq, and Ocean

Quality AS (formerly co-owned and controlled by Grieg) held positions on the Advisory Panel.

(See id. ¶¶ 136–37).

According to the SCAC, starting in April 2013, Defendants assumed the role of price

makers once they joined the Advisory Panel and acquired the ability to manipulate the weekly spot

prices reported by the NASDAQ. (See id. ¶¶ 131–32, 136–38). Plaintiffs allege Norway’s salmon

producers — and specifically, Defendants — rigged the spot market by using subsidiary

companies to fix, raise, or stabilize the spot prices for salmon. (See id. ¶¶ 140, 145–46, 150–51).

By way of example, Morpol, a subsidiary of Mowi and one of the world’s largest buyers

of salmon, is identified as a key player in the inflation of prices for salmon around the world,

including the United States. (See id. ¶¶ 29–30, 141, 148). Plaintiffs state “Morpol was the single

largest buyer on the spot market, and the prices it paid for salmon heavily influenced the index

prices reported by the NASDAQ Salmon Index[,]” emphasizing the fact that “Morpol’s purchases

constituted approximately 70% of the spot market commerce in 2014 alone.” (Id. ¶ 148 (alteration

added)). These spot market purchases, all of which were not legitimate arms’-length transactions,

created the appearance of greater consumer demand than actually was present in the market and

increased and/or stabilized salmon prices at supra-competitive levels when these spot trades were

submitted to the NASDAQ Salmon Index price and then, in turn, reported to market participants.

(See id. ¶¶ 8, 30, 142–43, 146, 148–49; see also id. ¶ 30 (citing article describing how in a week

where Morpol did not purchase salmon on the spot market, prices fell); id. ¶ 150 (“Morpol’s

transactions with . . . Defendants set the NASDAQ Salmon Index price to which Defendants’

prices, including contract prices, were pegged, and thus, none of Morpol’s competitors were in a

position to obtain materially better pricing than the supra-competitive pricing Morpol accepted as

the dominant purchaser of salmon on the spot market.” (alteration added))).

Morpol’s spot market purchases were not limited to transactions with Mowi, its parent

company; “[i]ndeed, in 2014, Morpol purchased on the spot market: nearly nine million kg of fish

from [Mowi]; nearly 3.3 million kg from Lerøy; nearly 3 million kg from Cermaq; nearly 2.6

million kg from SalMar; and nearly 700,000 kg from Ocean Quality.” (Id. ¶ 147 (alterations

added)). Plaintiffs allege Norway’s salmon producers19 engaged in the same type of conduct, at

19 Defendants complain that Plaintiffs simply point to “vague third-party statements that unnamed

‘companies in Norway’ and ‘major players’ made spot market purchases via ‘a truckload here and a

truckload there.’” (Reply 9). Yet, Plaintiffs allege (and provide a chart illustrating) “Norway’s salmon

industry is dominated by Defendants[,] Mowi, Lerøy, SalMar, Cermaq, and Grieg[.]” (SCAC ¶ 232

(alterations added); see also id. ¶ 228 (“[T]he Norwegian farmed salmon industry is dominated by a few

top producers with a number of smaller players[.]” (alterations added)); id. ¶ 231 (“[T]he Norwegian

Defendants dominate the market.” (alteration added)); Resp. 29 (“Defendants, according to the SCAC, are

the five largest players in the Norwegian farmed salmon market; they account for nearly 83% of production

among the top ten players as listed by Mowi.” (citing SCAC ¶ 232))). Norway’s salmon producers and

major players by definition include Mowi, Lerøy, SalMar, Cermaq, and Grieg. (See SCAC ¶ 232).

Plaintiffs’ allegations suggest Defendants, not just Morpol and Mowi, were engaging in spot market

purchases in order to keep the Index price — and by extension, their prices — high.

(or near) the same time, in the same market.20 (See id. ¶ 140 (“Since at least 2014, . . . Norway’s

salmon producers, including Mowi, have been rigging the spot market by using subsidiary

companies . . . to fix, raise, or stabilize the spot price for salmon.” (alterations added)); id. ¶ 144

(“In 2017, . . . . Stale Hoyem [], general manager of Suempol Norway, one of the biggest smoked

salmon producers in Poland and Europe, . . . [stated] one [] thing that affects prices is that some of

the major players choose to create their own purchasing departments buying a truckload here and

a truckload there[,] . . . suggesting this ‘daily’ practice is heavily influencing prices on the spot

market.” (alterations added; alteration adopted; quotation marks omitted))). Plaintiffs further

highlight Defendants’ coordinated efforts, discussions, and cooperation to engage in this course of

conduct. (See, e.g., id. ¶¶ 146, 152, 154, 162, 164–65, 167–68, 185).

Plaintiffs bolster their spot market allegations with examples of parallel price movements

by several Defendants — namely, Mowi, Lerøy, and Ocean Quality AS21 — during the class

period. The SCAC includes charts of: (1) 2018 U.S wholesale prices for 3/4 kilogram salmon sold

by Mowi, Lerøy, and Ocean Quality AS (see id. ¶¶ 204, 207; App. A 11–12); (2) 2015–2018 U.S.

wholesale prices for 4/5 kilogram sold by Mowi and Lerøy (see SCAC ¶ 205; App. A 3, 6, 9); (3)

2015–2018 U.S. wholesale prices for 5/6 kilogram sold by Mowi and Lerøy (see SCAC ¶ 206;

20 Defendants insist these allegations do not hint at parallel conduct. (See Mot. 18–19; Reply 8). Defendants

contend Plaintiffs do not (1) “point to any parallel spot market sales or purchases by Defendants[;]” (2)

“explain how spot market sales by Defendants that are not members of the NASDAQ Salmon Index Panel

could support the alleged conspiracy[;]” (3) “provide any facts to support their conclusory assertion that

spot sales were made at ‘supra-competitive’ prices[;]” or (4) “allege any specific spot market sales to

Morpol.” (Mot. 18–19 (alterations added; emphasis omitted)). It appears Defendants consider Plaintiffs’

allegations individually — not as a whole. The Court is unconvinced such an exacting pleading standard

applies and declines to parse Plaintiffs’ allegations to determine whether each allegation is plausible. Cf.

Starr v. Sony BMG Music Ent., 592 F.3d 314, 325 (2d Cir. 2010) (rejecting the defendants’ contention that

Twombly requires a plaintiff resting on allegations of parallel conduct to identify a “specific time, place or

person involved in each conspiracy allegation”).

21 (See SCAC ¶ 50 (“Grieg ASA targets and sells its salmon to the United States, including Florida, using

its majority-owned sales agent, Ocean Quality AS[.]” (alteration added))).

App. A 4, 7, 10); (4) 2015–2017 U.S. wholesale prices for 3/4 kilogram salmon sold by Mowi and

Lerøy (see App. A 2, 5, 8); (5) 2018 U.S. wholesale prices for 4/5 kilogram salmon sold by Mowi,

Lerøy, and Ocean Quality AS (see id. 13); and (6) 2018 U.S. wholesale prices for 5/6 kilogram

salmon sold by Mowi, Lerøy, and Ocean Quality AS (see id. 14). Plaintiffs maintain “[a]ll of these

charts show parallel pricing movements by several of [] Defendants and provide strong evidence

that United States wholesale prices (including contract prices) for salmon sold by [] Defendants

were highly correlated and that these prices were directly linked by Defendants to Index prices.”22,

23 (Resp. 26 (alterations added); see also SCAC ¶ 207 (noting “there is a striking similarity in the

United States wholesale pricing . . . for each of these Defendants” during the class period, and

these wholesale prices “closely parallel the published NASDAQ Salmon Index prices” (alteration

added)); id. ¶¶ 139, 258–63).

Plaintiffs also include charts of spot market activity in 2013–2016 that “depict[] how spot

prices, measured on [a] weekly basis[,] . . . began to dramatically separate from their five-year

average starting in spring of 2013, when NASDAQ became the primary benchmark[.]” (SCAC ¶¶

22 Defendants insist that Plaintiffs fail to allege parallel pricing by any Defendant (see Mot. 19); yet

Defendants admit Plaintiffs’ charts indicate Defendants’ pricing moved, at times, in similar directions.

(Compare Mot. 21 (“The S[C]AC thus alleges nothing more than that the pricing purportedly offered by

certain Defendants has moved at times in similar directions[.]” (alterations and emphasis added)), and

Reply 11 (“Plaintiffs’ graphs show nothing more than that certain Defendants’ purported pricing at times

has moved in similar directions[.]” (alteration and emphasis added))), with SD3, LLC, 801 F.3d at 427

(stating as a general rule, “[a] plaintiff establishes parallel conduct when it pleads facts indicating that the

defendants acted ‘similarly.’” (alteration and emphasis added; citations omitted)).

23 Defendants also contend Plaintiffs’ pricing charts show Defendants’ prices “were rarely the same” and

“often moved in different directions[.]” (Mot. 20 (alteration added; emphasis omitted)). Plaintiffs are not

required to plead parallel conduct that is simultaneous or identical. See, e.g., In re Domestic Airline Travel

Antitrust Litig., 221 F. Supp. 3d 46, 69 (D.D.C. 2016) (“Plaintiffs do not need to demonstrate that

Defendants cut or limited capacity in exactly the same way in order to adequately allege parallel conduct.”

(collecting cases)); In re Blood Reagents Antitrust Litig., 756 F. Supp. 2d 623, 630 (E.D. Pa. 2010)

(“Plaintiffs are not required to plead simultaneous price increases — or that the price increases were

identical — in order to demonstrate parallel conduct.” (citation omitted)); City of Moundridge v. Exxon

Mobil Corp., No. Civ. A. 04-940, 2009 WL 5385975, at *5 (D.D.C. Sept. 30, 2009) (“Price-fixing can

occur even though the price increases are not identical in absolute or relative terms.” (citations omitted)).

208, 222–23 (alterations added)); see also id. ¶ 210 (alleging “[t]hese price increases — and

Defendants’ coordinated behavior that caused them — have come at the expense of Plaintiffs and

the Class” (alteration added))). Plaintiffs support their parallel pricing allegations with

Defendants’ contemporaneous earnings reports, which reflect record profits during the class

period.24 (See id. ¶¶ 211–17). They allege Defendants attributed these unprecedented earnings to

high prices, which, according to Plaintiffs, were a product of the noncompetitive spot prices

reported on the NASDAQ Salmon Index. (See id. ¶¶ 139, 210, 215–16).

The Court finds Plaintiffs adequately allege parallel conduct by Defendants.25 Plaintiffs’

facts, taken together, sufficiently show Defendants engaged in parallel conduct by coordinating

spot market price increases through inter-competitor (and subsidiary) sales to influence the

NASDAQ Salmon Index price, which, in turn, increased the price of salmon across the industry

24 Defendants maintain “allegations that individual Defendants increased profits over time . . . do not support

an inference of conspiracy.” (Mot. 22 (alteration added; citing In re Generic Pharms. Pricing Antitrust

Litig., 386 F. Supp. 3d 477, 483 (E.D. Pa. 2019) (“[The plaintiffs] ha[ve] not directed the [c]ourt to any

authority that would support the proposition that [the defendants’] conduct . . . was parallel to the

manufacturer [d]efendants’ conduct simply because each are alleged to have seen increased profits.”

(alterations added))). Although at first glance the point is alluring, the plaintiffs in In re Generic

Pharmaceuticals Pricing Antitrust Litigation, unlike Plaintiffs here, “ma[d]e[] no explicit allegations of

parallel conduct by [the defendants].” 386 F. Supp. 3d at 483 (alterations added). Plaintiffs’ allegations of

increased profits are relevant when considering the entirety of the SCAC’s parallel conduct allegations —

especially given the allegations Defendants attributed those unprecedented earnings to high spot market

prices. (See SCAC ¶¶ 139, 210, 215–16).

25 Defendants contend Plaintiffs insufficiently allege SalMar, Grieg, and Cermaq’s participation in the

conspiracy, citing “Plaintiffs[’] fail[ure] to allege any pricing behavior at all” for these Defendants. (Mot.

19 (alterations added; original emphasis); see also Reply 11). If Plaintiffs’ parallel conduct allegations

hinged on pricing charts, the Court would likely agree with Defendants. Unfortunately for these

Defendants, that is not the case. (See, e.g., SCAC ¶ 136 (alleging SalMar and Cermaq were members of

the Advisory Panel); id. ¶¶ 139–40, 144, 147, 150, 152, 185 (discussing Defendants’ alleged involvement

with the NASDAQ Salmon Index and the spot market); id. ¶¶ 204, 207; App. 11–14 (providing wholesale

pricing data for Grieg’s sales agent in the United States, Ocean Quality AS); SCAC ¶¶ 208–09 (supplying

charts of spot market activity in 2013–2016); id. ¶¶ 213, 215–16 (providing earnings reports for these

Defendants and alleging these unprecedented earnings were a product of the noncompetitive spot prices

reported on the NASDAQ Salmon Index); Resp. 16 (collecting allegations)). These allegations plausibly

tie SalMar, Grieg, and Cermaq to the conspiracy.

(including in the United States) as illustrated by Defendants’ correlated pricing and earnings

reports. (See, e.g., SCAC ¶¶ 29–30, 129–32, 134–52, 154, 162, 164–65, 167–68, 185, 204–07,

211–17, 228, 231–32, 257–64; App. A 2–14). Stated differently, Plaintiffs provide enough parallel

conduct allegations with respect to spot prices and other pricing of salmon. Plaintiffs thus clear

the first hurdle.

Plus factors. Plaintiffs’ parallel conduct allegations are not enough to raise an inference

of conspiracy. See, e.g., Auto. Alignment & Body Serv., Inc., 953 F.3d at 726 (citation omitted).

Plaintiffs put forth additional circumstantial evidence they claim suggests an illegal agreement: (1)

significant price increases for salmon relative to the period before the Index was created, despite

stable or declining costs and a substantial reduction in demand due to the Russian ban; (2) the

structural characteristics of the salmon market; (3) Defendants’ transition from historically battling

each other in the pre-conspiracy period to cooperating during the conspiracy period; (4) the

Norwegian Defendants’ sales of salmon at artificially high prices to competitors; (5) interfirm and

intrafirm communications; (6) Defendants’ access to each other’s sensitive pricing and market

share information; (7) Defendants’ membership in trade organizations; and (8) ongoing parallel

antitrust investigations by the EC and DOJ. (See Resp. 21, 37). In rebuttal, Defendants insist these

“purported ‘facts’ do not support [Plaintiffs’] claim[s].” (Mot. 23 (alterations added); see also id.

23–42; Reply 13–23).

Market dynamics and conditions. Plaintiffs describe characteristics of the salmon market

which they contend support the plausibility of the alleged conspiracy. (See SCAC ¶¶ 226–54).

They state “[t]he structure and other characteristics of the market for salmon — and particularly

the way in which pricing is established through NASDAQ Salmon [I]ndex prices — make it

conducive to anticompetitive conduct among Defendants and make collusion particularly

attractive.” (Id. ¶ 226 (alterations added)). Plaintiffs allege (1) the salmon market is characterized

by high market concentration, with Mowi, Lerøy, SalMar, Cermaq, and Grieg dominating the

salmon industry (see id. ¶¶ 229–35); (2) new entrants to the market are precluded by significant

barriers to entry, including costly and lengthy production costs and limited geographic locations

to farm salmon (see id. ¶¶ 236–44); (3) salmon is a commoditized product, with competition based

purely on price (see id. ¶¶ 245–53); and (4) price inelasticity (see id. ¶¶ 253–54).

Plaintiffs further allege Defendants’ price increases cannot be explained by market or

economic conditions. (See id. ¶¶ 157, 169–70, 172–73, 218–21). According to Plaintiffs,

Defendants raised their prices despite a reduced demand following the Russian import ban, which

ordinarily would not be expected of competitive salmon producers. (See id. ¶¶ 157, 169–70, 221;

see also id. ¶¶ 169–70 (explaining that in 2017, Russia’s import ban wiped out 10 percent of

Norway’s salmon market; and Norway lost 2.3 billion dollars from the fish trade with Russia); id.

¶ 173 (“[O]ne would have expected that each of the Norwegian Defendants would compete more

vigorously with each other on prices in an effort to increase sales and thereby wrest market share

from their rivals. That did not happen.” (alteration added))). Plaintiffs plead (and provide a chart

illustrating) Defendants’ price increases were not justified by cost factors. (See id. ¶¶ 218–19; see

also id. ¶ 219 (chart showing that pricing of feed components either stabilized or declined in the

period since mid-2015)). The Court agrees with Plaintiffs that these allegations contribute to their

circumstantial case.26

26 Defendants contend the SCAC’s “attempt to focus on a single source of demand, while ignoring other

supply and demand factors during the same period, renders Plaintiffs’ claim[s] implausible.” (Mot. 40

(alteration added; citing SCAC ¶¶ 8, 26, 82, 93, 161, 168, 237, 242, 246–48, 255–56)). The Court disagrees

the cited allegations render Plaintiffs’ claims implausible. Although Defendants insist “[t]he Russian

import ban impacted only a small portion of total global demand” (Mot. 38–39 (alteration added)), Plaintiffs

plausibly allege Defendants reacted to this constriction of the market by colluding together to manipulate

the NASDAQ Salmon Index in order to protect themselves from the effect of the ban. (See SCAC ¶¶ 8,

Deviations from pre-conspiracy behavior. Plaintiffs allege Defendants’ shift from

competition to cooperation and their coordinated price increases for salmon reflect a drastic change

from pre-conspiracy behavior. (See id. ¶¶ 188–89, 208–09, 220, 222–24). They emphasize a 2016

speech by the Deputy Managing Director of the Norwegian Seafood Federation, Trond Davidsen,

during which he explained “how the salmon industry in recent years ha[d] shifted from competition

to cooperation[.]” (Id. ¶ 188 (alterations added); id. (concluding “all parties involved in the salmon

business agree[d]” to focus on “develop[ing] [the] industry to meet the global demand rather than

fight each other.” (alterations added))). As to Defendants’ pricing behavior, Plaintiffs provide

charts comparing high spot market prices for Norwegian salmon in 2014–2016 with a 5-year

average of such prices. (See id. ¶¶ 208–09, 222–24; id. ¶ 222 (explaining these charts “depict how

Defendants . . . began to raise prices . . . beyond the prior five-year averages” (alterations added));

id. ¶ 223 (emphasizing the 2016 price comparison because Defendants took prices “well beyond

anything they had been able to achieve in the past.”)). Plaintiffs sufficiently plead Defendants’

shift from competition to cooperation and their pricing conduct constituted a change in behavior.

The Court thus considers these allegations with all other allegations to see if they are enough to

imply agreement.

Spot market transactions. Plaintiffs plausibly allege Defendants’ spot market transactions

to competitors constituted anticompetitive conduct. (See SCAC ¶¶ 147, 150–51, 185). Plaintiffs

explain “[t]here is no legitimate pro-competitive justification for the key industry players — the

Norwegian Defendants [] — to sell substantial quantities of salmon to Morpol on the spot

market[,]” citing (1) Morpol’s interests in keeping its costs to a minimum; (2) the fact Morpol is

not confronted with tight deadlines associated with fresh fish as a processor that specializes in

147, 156, 165, 167, 173; see also id. ¶¶ 8, 215–17 (explaining Defendants attributed high profits to market

and spot prices, not high production costs or strong demand)).

smoked seafood products; and (3) Defendants’ decision to sell salmon to Morpol at high spot prices

to set the Index price rather than directing that salmon to value-added subsidiaries or other non-

competitor customers. (Id. ¶ 151 (alterations added); see also id. ¶¶ 29, 150, 152). Rather than

be selective about when and how it acquired salmon, or obtain supply from its parent, Mowi,

Morpol allegedly paid supra-competitive prices to create the appearance of greater consumer

demand for these fish and, in doing so, elevated the benchmark prices for salmon around the globe.

(See id. ¶¶ 129, 149–51). Although Defendants offer legitimate reasons for these spot market

transactions (see Mot. 24–25), Plaintiffs need not rebut these reasons to defeat a motion to dismiss.

See In re Propranolol Antitrust Litig., 249 F. Supp. 3d 712, 721 (S.D.N.Y. 2017) (“At the motion

to dismiss stage, . . . plaintiffs need not offer evidence that tends to rule out the possibility that the

defendants were acting independently.” (alteration added; other alteration adopted; quotation

marks and citation omitted)).

Interfirm and intrafirm communications. Plaintiffs maintain the SCAC “plead[s] specific

communications among Defendants that support an inference of collusion.” (Resp. 33 (alteration

added)). Plaintiffs point to bilateral and multilateral agreements not to compete and a high level

of communications among Defendants (see, e.g., SCAC ¶¶ 153–56, 162–65, 174–84), including:

a 2013 lunch meeting between Mowi, Morpol, and Lerøy’s top management, during which they

discussed issues impacting the industry (see id. ¶ 154); 2013 and 2014 meetings between SalMar

and Lerøy, in which they discussed plans of non-competition and cooperation between the

companies (see id. ¶¶ 154–55, 162); and 2013–2017 meetings and dinners between certain

Defendants, during which they discussed not talking down prices in response to the Russian ban

(see id. ¶ 165), cooperation (see id. ¶¶ 163–64, 176, 178–82, 184), and strategic exchanges (see id.

¶¶ 164, 177, 183–84). Plaintiffs identify Defendants who were in attendance; the years of the

meetings, lunches, and dinners; and the contents of those communications. (See id. ¶¶ 154–56,

162–65, 174–81).

At this stage of the litigation, the Court finds the alleged substance and quantity of these

communications, and the players involved, support a reasonable inference of conspiracy. Cf. Iowa

Pub. Emps.’ Ret. Sys. v. Merrill Lynch, Pierce, Fenner & Smith Inc., 340 F. Supp. 3d 285, 322

(S.D.N.Y. 2018) (concluding the plaintiffs plausibly alleged “multiple interfirm meetings at

conferences, private dinners, and EquiLend board meetings, including the 2009 meeting convened

by Bank of America[;]” “meetings between Wipf and Conley[;]” “a 2009 meeting between Bank

of America and Goldman Sachs executives[;]” “meetings between Morgan Stanley, Goldman

Sachs, and other Defendants at private dinners and conferences[;]” and “meetings of EquiLend’s

Board” (alterations added)).

Participation in trade organizations and industry forums. Plaintiffs claim Defendants’

involvement in various trade associations and industry forums facilitated Defendants’ ability to

coordinate price increases and collude. (See Resp. 42–43). “[M]ere participation in trade-

organization meetings where information is exchanged and strategies are advocated does not

suggest an illegal agreement.” In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186,

1196 (9th Cir. 2015) (alteration added); see also Moss v. BMO Harris Bank, N.A., 258 F. Supp. 3d

289, 301 n.4 (E.D.N.Y. 2017) (noting a “defendant’s membership in a trade association hardly

renders plausible the conclusion that entity and certain other members are functioning as an

ongoing, organized, structured enterprise in conducting their business.” (quotation marks and

citations omitted)). However, “participation in a trade association, where [the] [d]efendants had

opportunities to exchange information or make agreements, coupled with allegations of parallel

conduct . . . , are sufficient to tie the[] defendants to the conspiracies.” Miami Prods. & Chem. Co.

v. Olin Corp., 449 F. Supp. 3d 136, 164 (W.D.N.Y. 2020) (alterations added; quotations marks

and citations omitted).

Plaintiffs allege Defendants belonged to trade and industry organizations — namely, the

NSC, the GSI, the Norwegian Seafood Federation, and the North Atlantic Seafood Forum — and

exchanged confidential company-specific information. (See SCAC ¶¶ 186–87, 190–96, 200–02).

According to Plaintiffs, NSC members, including the Norwegian Defendants, were able to receive

confidential information on the market shares and pricing of their individual competitors. (See id.

¶ 186; see also id. ¶ 195 (“SAS [Data Management, a data analytics vendor to the NSC,] touts how

it has given confidential ‘sensitive market insight’ to the NSC’s members, including . . . an

overview of their own market shares and a comparison of their prices with those of competitors.”

(alterations added))).

The SCAC includes allegations that the NSC sponsored quarterly market and leader group

meetings, during which NSC members — including key executives of Defendants — met and

discussed, among other topics, the “subject of industry cooperation.” (Id. ¶ 194; see also id. ¶ 165

(alleging Mowi, SalMar, Ocean Quality, Grieg, and Lerøy participated in an NSC emergency

meeting to “discuss the Russian ban and the potential fall-out on prices if the market was not

corrected.”); id. ¶¶ 200–02 (pleading the North Atlantic Seafood Forum held annual meetings

where Defendants’ key executives participated in “parallel sessions devoted to particular industry

sectors for the latest update on industry challenges, supply and market outlook, prices, innovation

and business, and sustainability issues.” (quotation marks omitted))). Plaintiffs further state the

activities of the GSI — to which Mowi, Grieg, Lerøy, and SalMar belonged — “strengthened the

substantial inter-competitor relationships that already existed between the[se] [Defendants] and

allowed them to successfully implement [] anticompetitive conduct[.]” (Id. ¶ 191 (alterations

added); see also id. (“Mowi[’s former CEO] is on record as stating that the efforts of the GSI could

be utilized as a means of increasing prices.” (alterations added))).

Plaintiffs’ allegations of Defendants’ involvement in various trade associations and

industry forums add plausibility. Plaintiffs do not merely allege Defendants were part of a

conspiracy because they belonged to trade and industry organizations; rather, Plaintiffs plead facts

indicating Defendants’ involvement in these organizations — in particular, meeting or speaking to

one another during the widely-attended conferences and/or sharing confidential company-specific

information — facilitated Defendants’ ability to coordinate price increases and conspire. (See id.

¶¶ 186–87, 190–96, 200–02).27 This plus factor suggests Defendants participated in a conspiracy.

Government investigations. Plaintiffs maintain the EC and DOJ investigations indicate an

agreement was made. (See Resp. 37–39). As both parties note, some courts have held that where

allegations are sparse, the existence of government inquiries are insufficient to raise an inference

of conspiracy; while others have held government investigations can bolster conspiracy

allegations. (Compare Mot. 25–27, and Reply 16–17 & nn.5–6, with Resp. 37–39 & n.18); see

27 Defendants contend “none of Plaintiffs’ allegations regarding Defendants’ communications and

participation in meetings go beyond mere opportunities to conspire” (Mot. 29 (emphasis omitted)); “it is

entirely appropriate for trade associations to discuss such industry issues, and Defendants’ participation in

those discussions does not support an inference of conspiracy” (id. 31); “the [SAS] database does not

provide access to company-specific real-time pricing” (id. 32 (alteration added)); and “unsupported

assertions . . . are entirely implausible given that . . . NSC is owned and operated by the Norwegian Ministry

of Trade, Industry and Fisheries, a governmental body; and [] participation in NSC is required by

Norwegian law” (id. 33 (alterations added)). As Plaintiffs persuasively argue, “[t]hese trade association

activities . . . constitute a recognized plus factor to be considered in the context of the totality of the facts

pled in the SCAC.” (Resp. 42 (alterations and emphasis added; footnote call number omitted)). Again,

Plaintiffs include additional details addressing Defendants’ joint involvement in trade associations and do

not simply rely on the fact Defendants belonged to these associations. Compare In re Interior Molded

Doors Antitrust Litig., No. 3:18-cv-00718, 2019 WL 4478734, at *5 (E.D. Va. Sept. 18, 2019) (“These two

things — the defendants’ mutual attendance of at least eight separate annual trade association meetings and

their history of swapping executives — make it more plausible that the alleged conspiracy spawned from

meetings at trade shows or conventions.”), with (SCAC ¶ 194 (mutual attendance at quarterly NSC

meetings), id. ¶¶ 200–02 (mutual attendance at annual North Atlantic Seafood Forum meetings), and id. ¶¶

153, 228 (noting the mobility among executives of certain Defendants)).

also, e.g., In re Loc. TV Advert. Antitrust Litig., 2020 WL 6557665, at *8 (collecting cases).

The SCAC details the ongoing concurrent investigations of price fixing in the salmon

market by both the EC and DOJ. (See SCAC ¶¶ 4–6, 102–28). Plaintiffs first highlight the EC’s

investigatory requests sent to Mowi ASA, Grieg ASA, SalMar, Lerøy Seafood AS in 2019, which

state these Defendants allegedly (1) “coordinat[ed] sales prices and exchang[ed] commercially

sensitive information;” (2) “agree[d] to purchase production from other competitors when these

other competitors sell at lower prices;” and (3) “appl[ied] a coordinated strategy to increase spot

prices of farmed Norwegian salmon in order to secure higher price levels for long-term contracts.”

(Id. ¶ 104 (alterations added); id. ¶¶ 106–09 (investigatory requests were accompanied by

inspections at Defendants’ facilities in the European Union); id. ¶ 115 (noting the current EC

investigation is examining price movements of Norwegian salmon after the Russian ban); id. ¶¶

257–64 (linking Defendants’ anticompetitive conduct in Europe to U.S. wholesale prices)).

Plaintiffs also emphasize the fact the DOJ issued grand jury subpoenas to Mowi, Grieg, SalMar,

Lerøy, and Ocean Quality seeking information on practices similar to those being investigated by

the EC. (See id. ¶ 116; see also id. ¶¶ 117–22 (enhancing grand jury subpoena allegations with

discussion of the DOJ policies regarding grand jury investigation and providing excerpts of certain

Defendants’ statements and press releases)).

Although the pendency of these government investigations is not determinative standing

alone, the Court considers these allegations with the other factors discussed. In doing so, the Court

finds this factor supports, albeit weakly, the plausibility of Plaintiffs’ antitrust conspiracy

allegations.28 See, e.g., In re Packaged Seafood Prods. Antitrust Litig., No. 15-md-2670, 2017

28 In re Florida Cement & Concrete Antitrust Litigation, 746 F. Supp. 2d 1291 (S.D. Fla. 2010) (“FCCAL”),

on which Defendants rely, is off point. There, the undersigned held (1) international government

investigations into conduct entirely separate from and not connected to that alleged in the pleading could

not support an inference of conspiracy; and (2) “the decision by the Florida Attorney General to investigate

WL 35571, at *8 (S.D. Cal. Jan. 3, 2017) (noting “it would be improper to draw a conclusion that

a pending government investigation on its own supplies sufficient factual material to survive a . .

. motion to dismiss” but nevertheless “consider[ing] the pending [government] investigation in

concert with [the] [p]laintiffs’ other allegations” (alterations added)).

Recap. Viewing the allegations together, and not in isolation, Plaintiffs allege a plausible

conspiracy existed through circumstantial facts. These facts include: (1) the Norwegian

Defendants’ (or their co-venturers’) participation in the NASDAQ Salmon Index; (2) Defendants’

coordinated manipulation of salmon prices by reporting inflated sales prices to the NASDAQ; (3)

the increase in prices for salmon despite stable or declining production costs and dwindling

demand due to the Russian ban; (4) Defendants’ use of spot market transactions to drive higher

Index prices; (5) interfirm and intrafirm communications discussing the avoidance of price

competition and encouraging cooperation; (6) U.S. pricing charts, which show parallel price

movements by several Defendants; (7) Defendants’ access to pricing and market-share

information; (8) Defendants’ transition from battling each other to cooperating during the relevant

period; and (9) parallel ongoing antitrust investigations by the EC and DOJ. (See generally SCAC;

Resp. 21). In sum, the SCAC contains enough factual material to “nudge[] [Plaintiffs’] claims

across the line from conceivable to plausible[.]” Twombly, 550 U.S. at 570 (alterations added).

Statute of limitations. “An antitrust action must be brought ‘within four years after the

cause of action accrues.’” Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1500 (11th

Cir. 1985) (quoting 15 U.S.C. § 15b). Defendants’ alleged anticompetitive conspiracy began on

one Defendant and one executive of that Defendant d[id] not make the conspiracy alleged . . . more plausible

because the outcome of the investigation [could not] be predicted.” Id. at 1315–16 (alterations added). The

allegations in FCCAL are not analogous to the allegations presented here. (See, e.g., SCAC ¶¶ 4–6, 102–

28, 257–64 (discussing the EC and DOJ’s decisions to investigate numerous Defendants, not one; and

providing connection between the international investigation of anticompetitive conduct and Defendants’

alleged conduct in the SCAC)).

April 10, 2013 and has continued to the present. (See SCAC ¶ 3). Plaintiffs filed this action on

April 23, 2019. (See generally Class Action Compl. [ECF No. 1]). Thus, if the statute of

limitations applies, the damages period would begin no earlier than April 23, 2015. (See Resp. 47;

Reply 25). Plaintiffs allege (1) the statute of limitations should be tolled because Defendants

fraudulently concealed the conspiracy and (2) a continuing antitrust violation.29 (See SCAC ¶¶ 3,

9, 265).

“Generally, a cause of action accrues and the statute begins to run when a defendant

commits an act that injures a plaintiff’s business.” Zenith Radio Corp. v. Hazeltine Rsch., Inc.,

401 U.S. 321, 338 (1971) (citations omitted). “In the context of a continuing conspiracy to violate

the antitrust laws, . . . each time a plaintiff is injured by an act of the defendants a cause of action

accrues . . . [and] the statute of limitations runs from the commission of the act.” Id. (alterations

added; citations omitted).

“When fraudulent concealment of antitrust-law violations occurs, it tolls the statute of

limitations.” Credit Bureau Servs., Inc. v. Experian Info. Sols., Inc., No. 12-61360-Civ, 2012 WL

6102068, at *12 (S.D. Fla. Dec. 7, 2012) (citation omitted). To avail itself of this doctrine, a

plaintiff must demonstrate that the defendant “concealed the conduct complained of, and that

plaintiff[] failed, despite the exercise of due diligence on [its] part, to discover the facts that form

the basis of [its] claim.” Morton’s Mkt., Inc. v. Gustafson’s Dairy, Inc., 198 F.3d 823, 832 (11th

Cir. 1999) (alterations added; other alteration adopted; quotation marks and citation omitted). “To

satisfy the due-diligence requirement, a plaintiff must demonstrate that once it either knew of its

claim or had notice sufficient to prompt it to investigate, it pursued the claim diligently.” Credit

29 Plaintiffs also seek refuge in the injury discovery rule. (See SCAC ¶ 265; Resp. 48 n.24). Since Plaintiffs

adequately allege Defendants concealed their conspiracy, the Court does not address Plaintiffs’ alternative

argument.

Bureau Servs., Inc., 2012 WL 6102068, at *12 (alteration adopted; quotation marks and citations

omitted). Ordinarily, whether a plaintiff is on “notice” of its claim is a question of fact. Id.

(quotation marks and citations omitted); see also Morton’s Mkt., Inc., 198 F.3d at 828 (“The

commencement of the statute of limitations is a question of fact.” (citation omitted)).

The SCAC contains no allegations conclusively establishing the action’s untimeliness.

(See generally SCAC). Plaintiffs sufficiently allege Defendants’ affirmative efforts to conceal and

cover up their anticompetitive conspiracy. (See, e.g., id. ¶¶ 267–71, 273 (identifying Defendants’

affirmatively misleading statements, which, according to Plaintiffs, obscured the anticompetitive

conduct that affected prices)). Plaintiffs proffer the Defendants’ anticompetitive conduct was only

discovered “through the exercise of due diligence [in] February [] 2019, when the EC commenced

its investigation.” (Id. ¶ 266 (alterations added); see also id. ¶¶ 267, 274). Plaintiffs’ allegations

are sufficient to survive Defendants’ Motion. In any event, “[a]s many courts have noted in the

antitrust conspiracy context, it is generally inappropriate to resolve the fact-intensive allegations

of fraudulent concealment at the motion to dismiss stage, particularly where the proof relating to

the extent of the fraudulent concealment is alleged to be largely in the hands of the alleged

conspirators.” In re Rubber Chems. Antitrust Litig., 504 F. Supp. 2d 777, 789 (N.D. Cal. 2007)

(alteration added; collecting cases).

Plaintiffs further plead a continuing violation. They state Defendants engaged in

anticompetitive conduct to inflate the price of salmon on April 10, 2013; that they continued

engaging in this conduct and raising prices through the present; and that Defendants directly sold

salmon and salmon products to Plaintiffs “between April 10, 2013 and the present.”30 (SCAC ¶

30 Defendants request the Court set the bounds of the damages period available to Plaintiffs. (See Reply 25

(“And in the event that the continuing violations doctrine were to apply, Plaintiffs themselves concede the

class period — and, accordingly, the damages period — would begin no earlier than April 23, 2015.”)).

CASE NO. 19-21551-CIV-ALTONAGA/Louis

3; see also id. | 9, 275). Given these allegations, Defendants’ statute-of-limitations position does

not provide a basis to dismiss Plaintiffs’ claims in their entirety.

IV. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendants’ Motion

to Dismiss the Second Consolidated Amended Direct Purchaser Class Action Complaint for

Failure to State Claim [ECF No. 296] is DENIED. Defendants have until and including April 6,

2021 to file separate answers to Plaintiffs’ Second Consolidated Amended Direct Purchaser Class

Action Complaint [ECF Nos. 246, 251-1]. A scheduling order will issue by separate order.

DONE AND ORDERED in Miami, Florida, this 23rd day of March, 2021.

loute. I. Bt

CECILIA M. ALTONAGA

UNITED STATES DISTRICT JUDGE

cc: counsel of record

The Court declines to do so at the motion-to-dismiss stage, especially given the other allegations that

Defendants concealed the anticompetitive conspiracy.

36