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Carlin v DairyAmerica, Inc.

Case No. 10-16448 (C.A. 9, Aug. 7, 2012)

This appeal raises two issues: (1) whether the judicially created “filed rate doctrine,” which typically has been utilized in common carrier and public utility litigation, is applicable in a class action lawsuit seeking monetary and injunctive relief under state law arising from the misreporting of pricing data to the United States Department of Agriculture (“USDA”), where the data in turn were used to set a minimum price structure for raw milk sales; and (2) if the doctrine is applicable in that situation, whether the district court erred when it dismissed the plaintiffs’ state causes of action on the ground that the filed rate doctrine barred such claims, even though the court found that “[i]t is not disputed that [the] USDA determined that the rates calculated . . . were erroneous and that other rates should have applied based on corrected pricing inputs.”


I. Statutory and Regulatory Framework as to Milk Pricing

As observed in Zuber v. Allen, 396 U.S. 168, 172-73 (1969):

The two distinctive and essential phenomena of the milk industry are a basic two-price structure that permits a higher return for the same product, depending on its ultimate use, and the cyclical characteristic of production.

Milk has essentially two end uses: as a fluid staple of daily consumer diet, and as an ingredient in manufactured dairy products such as butter and cheese. Milk used in the consumer market has traditionally commanded a premium price, even though it is of no higher quality than milk used for manufacture. While cost differences account for part of the discrepancy in price, they do not explain the entire gap. At the same time the milk industry is characterized by periods of seasonal overproduction. The winter months are low in yield and conversely the summer months are fertile. In order to meet fluid demand which is relatively constant, sufficiently large herds must be maintained to supply winter needs. The result is oversupply in the more fruitful months. The historical tendency prior to regulation was for milk distributors, “handlers,” to take advantage of this surplus to obtain bargains during glut periods. Milk can be obtained from distant sources and handlers can afford to absorb transportation costs and still pay more to outlying farmers whose traditional outlet is the manufacturing market. [Footnote omitted.] To maintain income[,] farmers increase production and the disequilibrium snowballs.



Judge(s): George H. Wu
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Agriculture , Civil Remedies , Conflict of Laws , Torts
Circuit Court Judge(s)
Raymond Fisher
Johnnie Rawlinson
George Wu

Trial Court Judge(s)
Anthony Ishii

Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Christopher Heffelfinger Berman DeValerio
Anthony Phillips Berman DeValerio
Joseph Tabacco, Jr. Berman DeValerio
Jon Tostrud Case Lombardi and Pettit
Benjamin Brown Cohen Milstein Sellers & Toll PLLC
George Farah Cohen Milstein Sellers & Toll PLLC
Brent Johnson Cohen Milstein Sellers & Toll PLLC
Victoria Nugent Cohen Milstein Sellers & Toll PLLC
Daniel Small Cohen Milstein Sellers & Toll PLLC
Barton Goplerud Hudson Mallaney Shindler & Anderson PC
Juli E. Farris Keller Rohrback LLP
Mark Griffin Keller Rohrback LLP
Ron Kilgard Keller Rohrback LLP
Lynn Sarko Keller Rohrback LLP

Defendant Lawyer(s) Defendant Law Firm(s)
Allison Davis Davis Wright Tremaine LLP
Lawrence Cirelli Hanson Bridgett LLP
Anne Johnson Hanson Bridgett LLP
John Vlahos Hanson Bridgett LLP
Charles English, Jr. Ober Kaler Grimes & Shriver PC
John Steren Ober Kaler Grimes & Shriver PC
Wendy Yoviene Ober Kaler Grimes & Shriver PC



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“dynamic model.” but all parties are referring to the same phenomenon. fmmo formulas. but if plaintiffs seek to recover damages from defendants also note that other firms’ misstatements were included in ple [is] inapplicable to a putative class action suit.” marcus, those filed with the ferc despite the contention that, had the ly” approved the higher maturity standards they issued by his failing to food, conservation, and energy act of 2008, pub. l. no. explained the proper reporting criteria. way to ensure just and reasonable rates in the evolving natural gas market have been included. 8755carlin v. dairyamerica, inc. brown because ams only had the power to take nass data, dairymen of ariz. v. veneman, 279 f.3d 1160, 1164 (9th cir. 2002). the erned by a different “order” of the secretary. see, 1081, 1089 (9th cir. 2004) (“[t]he filed rate doctrine now appropriate regulatory agency. the rationale is that the regulatory gram of mandatory dairy product information reporting that and amounted to silence by ams. moreover, as plaintiffs venting discrimination by ensuring all ratepayers face the that the filed rate doctrine does not preempt or otherwise pose usda and subject to appropriate rulemaking proceedings noted above, dairyamerica sells about 75 percent of the nfdm produced within the geographic area covered by the proposed order and on or about april 20, 2007, nass requested that all 39 ing secret departures from such tariffs, and forbid- cream, soft cheeses, and related products, class iii tiffs’ right to proceed. the district court quotes cooperative power 19 duct. it is desirable that responsibility for harm should not be use (as reflected in minimum prices), while all pro- the handlers of at least 50 percent of the volume of milk “[r]eceive, investigate, and report complaints of violations to defendants-appellees. to the actions of the interstate commerce commis- tion, defendants’ arguments that judgment in favor of plain- that handlers pay different prices in different geo- transcript to usda. see id. §§ 900.9-900.10. dairy what rates would have been set but for the defendants’ misre- complaint was necessary to ‘ensure achievement of the act’s most funda- the third justification concerns the unnecessary interjection quarterly audits. — the secretary shall terize as “the division that the secretary charged with fmmo minimum of the misreporting. tiffs do not contend that the secretary did not have the statu- agreement would be aware of the violation.” 739 f.2d 390, 391 n.3 (8th the icc finds the rate to be unreasonable.” id. at 128. the shall take such actions as the secretary considers necessary to geographic areas, there is no indication of an overarching con- dlers to submit nass survey information according and (2) the policy considerations behind the doctrine do not more to outlying farmers whose traditional outlet is tion, calculated corrective prices for the periods when the for the misreporting, because (1) the nass issued retroactive trict court dismissed the monetary portions of all four claims producer has a quibble with fmmo prices. to the contrary, tain motor tariff bureau, inc., 690 f.2d 1240, 1266-67 (9th ams in order to create an unwavering price. rather, various data even if it knew they were unreliable) is incorrect. plain- and hence a simple recalculation of the fmmo rates would are allowed to intrude on this regime on occasion, that said prices be uniform except that adjustments can be bros. & elliott, inc., 521 u.s. 457, 461 (1997). section 8c of was to allow natural gas sales to proceed at market prices. see id. at 1041- right to collect a rate in excess of the filed rate [because it would”); in re lupron mktg. and sales prac. litig., 295 f. supp. 2d 148, interests” which justify or support the filed rate doctrine. day the question whether the filed rate doctrine applies in the face of ding rebates, preferences and all other forms of program, but erred by concluding that the doctrine applies to applied because, even with the nass recalculation, the dis- cus, however, qualified this holding: “we agree that ‘the con- istrator” selected by the secretary who is empowered, inter is unreasonable under controlling law, the filed rate doctrine co., 453 u.s. at 578-79 (permitting individual ratepayers or findings of substantial violations of rate-bureau agreements.” 8730 carlin v. dairyamerica, inc. of pricing data to the united states department of agriculture v. 1:09-cv-00430- relied on the prices of dairy commodities on established and exercise of their general jurisdiction.” id. at 309. in our consideration of deference to agencies’ greater expertise in rate-setting, pre- ducers in an area receive the same average, or active tariff rejection as a sanction for knowing violations of agreements” 8 trine as a bar under the facts of this case. of significance to this action, one of the major (1984), “[t]he ‘essential purpose [of this milk market order by ams’s mere revision of fmmo prices. this is certainly dakota utils. co. v. nw. pub. serv. co., 341 u.s. 246, 251- agriculture to issue “orders” applicable to “handlers” who sonable practice.” id. at 121. a carrier that had entered into embodied by the amaa. etc.), our decision is limited to the filed rate doctrine issues. 467 u.s. at 370. neither keogh nor maislin had the opportu- fmmos, (2) receive, investigate, and report violations to the extremely difficult because (1) any such case which led to a effect here. trict court also held that, while the filed rate doctrine purport- as observed in zuber v. allen, 396 u.s. 168, 172-73 vary amongst the eleven established milk marketing areas, [5] the proper inquiry, therefore, is whether the fmmo milk sold, regardless of the use to which their milk in august litig., 263 f. supp. 2d 172, 192 (d. mass. 2003) (holding that filed rate all the producers in a geographic area receive the between april 29, 2006, and april 14, 2007. at&t co., 512 u.s. 218, 234 (1994) (quoting sec. servs., ams did not have the authority to audit a reporting court did not find compelling the argument that the defen- pricing data are provided to the nass (some of which are obtain bargains during glut periods. milk can be 8770 carlin v. dairyamerica, inc. the filed tariff shield). in new york, new haven & hartford allege, and defendants do not appear to dispute, that dance with the purpose for which it is used, (2) set minimum did not apply to title insurance rates filed with state insurance of dairyamerica’s misstatements. the secretary then took authority to set rates under [a federal statute] and [the agency] action during the time period in question. assume no right to a different one on the ground that, in its chasers in the natural gas market would not further the pur- utilized by ams as a component of its formula for to the supreme court’s early cases involving the interstate milk that is intended for class i use, but they can a relic, open to repudiation by the fcc.”). in e. & j. gallo porting. for this reason, it would be unavailing for plaintiffs seems likely that any substitution effects would have been rel- see also kenneth bailey & peter tozer, an evaluation of federal upon the secretary of agriculture under this chapter, turn, delineate the raw milk rates. see 7 c.f.r. § 1000.50 dairyamerica’s misstatements alone had on the fmmo prices. also, as is to raise producer prices. block, 467 u.s. at 341-42. it inc., 497 u.s. 116, 126 (1990) (“the duty to file rates with 8746 carlin v. dairyamerica, inc. rate. see supra, at 126-128. by refusing to order collection of the bar the plaintiffs’ state-law claims in this case. the judgment claims in this case. area covered by the fmmo receive the same average, or [were] not considered.” the usda also sought to recalculate understated by $50 million . . . “ covering the period ever, the court specifically focused on the controlling statute doctrine is a judicial creation that arises from decisions inter- usda determined that the rates calculated . . . were errone- a curious interpretation of the pertinent regulations, i.e., 7 the supreme court in icc v. american trucking associa- had disapproved of the rates but then stated that “the issue vant period.” instead, it would face the same prices as trict court would have a great deal of trouble calculating dam- ratepayers.8 seeks to bring. rather, the courts have held that the see 7 c.f.r. § 1000.25(b) (2004). setting aside of the published rates, and (2) a finding that a additionally, under the amaa, the usda (via the ams and dairy farmers and the essential purpose of the fmmo scheme although the amaa mandates a minimum price, it erwise have prevailed, the amount recovered might, like a gallo relied on an earlier case involving market rates for electricity, plaintiffs also relied on our decision in wileman bros., which is read- tively as well as ordering any reparations based on the unlaw- plaintiffs cite to the supreme court’s decision in maislin 8767carlin v. dairyamerica, inc. thus, the initial raison d’être for the doctrine concerned sta- association v. ferc, which held that american trucking “approved retro- approximately ninety percent of the contracts exe- after the close of the evidentiary portion of the hear- but that does not preclude recovery where it is clear that some filed august 7, 2012 rozwadowski, and bryan wolfe, no. 10-16448 derived from the class iii and iv prices but class i e.g., 7 u.s.c. § 608c(5)(a); 7 c.f.r. § 1001.2. dmea which would increase the accuracy and reliability of usda was doing enough regulation to justify federal preemp- consideration of the underlying statutory scheme in which the ket), but it has already profited from the lower prices its mis- on the nature of the cause of action the plaintiff federal courts applying state law) could result in service rates 7 c.f.r. §§ 1000.70, 1000.76. again, the effect of poses of both the amaa/dmea and the filed rate doctrine defendant-appellee california dairies, inc. maintained ongoing oversight of the market and took corrective responses originally, the filed rate doctrine arose in the context of the the commission and the obligation to charge only those rates it is declared to be the policy of congress — setting process and issued orders in the form of the fmmos supreme court in stark v. wickard, 321 u.s. 288 (1944), held that pro- we need not address the issue of whether dairyamerica’s misreporting “blended” prices such that all producers of milk subject to a 24 would] ‘only accentuate[ ] the danger of conflict.’ . . . [and § 608c(5) and the usda has exercised that authority to create ket order may become effective, it must be approved arena, the filed rate doctrine continues to preempt any rate-setting activi- approximately 75 percent of the nfdm produced in the reference point for pricing transactions (be it a trade index, brick & tile co., 450 u.s. 311 (1981), the court rate at all; it would be paying damages corresponding to the others to attack a filed rate “would undermine the congressio- tiffs’ state law claims are preempted by the dmea. the dis- r. co. v. stroud, 267 u.s. 404, 408 (1925). dairy farmers. 06_19_2008.asp (last visited june 19, 2012). statutory and regulatory control. see, e.g., 7 u.s.c. § 608c(5). see 7 c.f.r. pts. 1001, 1005-07, particular fmmo receive a uniform price for the milk deliv- expertise or valid reason to interfere. see, e.g., montana- 110-234, § 1510(b), 122 stat. 9237 (codified at 7 u.s.c. issued only if the evidence adduced at the hearing are) subject to further negotiation between handlers and dairy unless the complaint fails to “state a claim to relief that is the internal controls for the survey and estimation changes in the minimum prices. producers benefit 40. plaintiffs argue that nass’s instructions were clear and that the fact which generate the rates also include the consideration of we are not persuaded that brown requires meaningful f.3d 1048, 1050 n.1 (9th cir. 2001) (“[w]e limit our review 8731carlin v. dairyamerica, inc. 8774 carlin v. dairyamerica, inc. iii. precedent does not require and policy consider- ing pricing information during the period of time relevant to the amaa (7 u.s.c. § 608c) authorizes the secretary of the secretary of agriculture has delegated his authority further, the three underlying justifications for the filed rate injunctive relief under state law arising from the misreporting administer the fmmos) had the authority to (1) make rules rates had not been “investigated and approved by the icc.” 8738 carlin v. dairyamerica, inc. that resulted in incorrect fmmo pricing and multimillion dol- represent the allowance for manufacturing raw milk vide, at best, vague guidance on the applicability of the filed reporting has allowed it to enjoy; damages would at least tions of the fmmo orders themselves, the amaa provides for civil pen- see verizon del., inc. v. covad commc’ns co., 377 f.3d thus, from the exaction of a rate higher than that which would oth- on behalf of a nationwide class of raw milk producers in fed- bar only claims that are based on minimum prices prices. retroactive adjustment of fmmo rates provides a producer receives, minimum prices in the form of seek to characterize these revisions as a wholesale repudia- of the district court dismissing the case is therefore reversed. 503 f.3d at 1039. we disagreed, emphasizing that the essen- “[a]ll of the funds in the fmmo pools for the 14-month conditions for agricultural commodities in interstate ducers could obtain judicial review of the secretary of agriculture’s prac- ron u.s.a. inc. v. natural resources defense council, inc., 467 ance have an inverse relationship to the resulting observed in gallo, “[m]isreported rates and rates reported for 8752 carlin v. dairyamerica, inc. the filed rate doctrine that has been utilized as a barrier to blended, price per unit of milk. finally, the fmmos (which under this subtitle.” pub. l. no. 106-532, § 273(c)(3), 114 actions to revise regulations to prevent such misreporting gallo, 503 f.3d at 1041 (quoting pub. util. dist. no. 1 of snohomish u.s. 156, 161-65 (1922); wegoland ltd. v. nynex corp., 27 ence would have given market participants a different set of ing filed rates to be subject to litigation in state courts (or in the court initially held that “the filed rate doctrine . . . con- yoviene and e. john steren, ober, kaler, grimes & shriver, submits a recommendation to usda. the recom- that would be furthered by the retroactive ‘rejection’ of the ii. the district court did not err in concluding that alleges that the secretary issued a rule that allowed for such review in treat as being correct and/or valid. rather, it was only after tain provisions which, inter alia: (1) classify milk in accor- agencies because, although the rates were filed with the state which it is declared to be the policy of congress to section 10762(e) did not authorize the commission to reject question, the minimum prices set by the fmmo’s line rate cases, 436 u.s. 631, 655 (1978)). the court found 8772 carlin v. dairyamerica, inc. 22 establish and maintain orderly marketing conditions and fair . . . . but by no conceivable proceeding could the question lished, and not adjusted, 30 or more days before the eral (“oig”) issued a report regarding “the april 2007 discov- unduly disrupt the congressional pricing scheme [would have to] determine whether a rate is discriminatory as a matter of law and cannot be collaterally challenged under erning when those varieties of fruits could be picked. wileman bros. did but immune from suit herein, (4) the price reporting program (quoting transmission agency v. sierra pac. power co., 295 preting federal statutes that give federal agencies exclusive bar in this case, since the usda has indicated that it would control the rates which defendants can charge customers, as a tariff usda has recognized that the fmmo rates based on cal tendency prior to regulation was for milk distrib- necessarily vary based on both the statutory framework within same price, and avoiding disruption of a congressional cy’s rules. further, the fmmos are not effective until the accord city of groton v. conn. light & power co., 662 f.2d 921, 929 milk, milk products, and prices paid by handlers to produc- proceeding before issuing a milk market order. the factors will impact pricing. plaintiffs argue that even if the filed rate doctrine applies cooperatives” and (2) california dairies, inc., one of the nine webdocs/26901-01-ir.pdf (last visited june 19, 2012). tion of the transaction. it appears undisputed that does not mandate a maximum price. handlers cannot charged. it is desirable, also, that there be definiteness of proof (and hence no controlling filed rates). see 7 c.f.r. subtit. b, the filed rate doctrine was inapplicable because “[t]he reported data do not bility or calculate damages. to hold otherwise would be an shows “that [it] will tend to effectuate the declared provides that state law, and some federal law (e.g. antitrust costs on producers. these “revisions” were, as ams made before the court is whether the disapproval of rates by the reg- first point and conclude that the second was satisfied. 8751carlin v. dairyamerica, inc. ties by the courts and bar federal antitrust claims under the filed rate were nectarine and plum growers who served as members of committees ognized that there are three “purposes” or “governmental period, the market administrators (who were empowered to office tel., inc., 524 u.s. 214, 223 (1998). in such situations, merce must fall when they conflict with or available at http://www.nass.usda.gov/newsroom/notices/ graphic areas. see 7 c.f.r. §§ 1000.50, 1000.52. that: “to the extent congress has given [a federal agency] for nfdm for forward sales contracts. forward sales does not apply to bar a private litigant’s rate-related claims if crimination and stabilizing rates.” (citations omitted)). northeast and other marketing areas; notice of 35,308. in essence, handlers retain from the average period between april 29, 2006 and april 14, 2007. we agree been set which remain somewhat unclear. calculating dam- “associated principles” of federal preemption, we concluded john j. vlahos (argued), lawrence m. cirelli and s. anne to rely on gallo’s dictum that “[w]e are aware of no basis for commerce act (“ica”). ark. la. gas co. v. hall, 453 u.s. producers for raw milk. id. however, a number of trial courts (in addition to the district pose[s] underlying the filed rate doctrine [are] impli- the entire marketing order or approving the amended as reasonable by that agency. see knevelbaard dairies v. kraft foods, under an fmmo, it does not apply to a challenge to a defen- lized in common carrier and public utility litigation, is appli- tified a precedent which holds that knowledge is determinative of plain- dmea, the status of the usda as an indispensable party, contracts are defined as contracts in which the sell- corp., 503 f.3d 1027, 1033 (9th cir. 2007): “the [filed rate] required because the reasonableness of the rate charged, which could only & hartford r.r. co., 200 u.s. at 391; at&t co. v. central stat. 2541. in 2008, the dmea was amended and bolstered heart of the statutory scheme. see, e.g., new york, new haven [12] the district court properly determined that the filed dairyamerica acknowledged its erroneous reporting, and (2) conclusion which clearly falls within an area of usda expertise, which the second major component of dairy market reg- 352. additionally, the prices that are set for raw milk under r.r. co. v. icc, 200 u.s. 361, 391 (1906), the court, in inter- ams saying “we made this data up,” ams would have been that the usda has, in at least 18 instances, used its discretion secretary, and (3) recommend amendments to the secretary. impose individualized reporting requirements on sellers of natural gas, it dairy america to nass had been provided accord- the rate scheme here differs from typical filed rates. while  was intentional because neither the district court nor the parties have iden- secretary has established a formula by which the (i.e., the natural gas act, 15 u.s.c. § 717 et seq.). it week price of nfdm by $0.0193 per pound during a period id. at i-ii. again to the purposes of the doctrine in the context of the mum dairy prices was not explicitly called a rejection, the in february 2008, the usda office of the inspector gen- in cases where there had been reporting problems, nass pro- obtained from distant sources and handlers can lished fmmo rates were incorrect due to defen- c.f.r. § 1000.9 (2012). with the agencies.” “at its most basic, the filed rate doctrine agency itself determined that the fmmo prices were incorrect defendants filed separate motions seeking dismissal of the as it incorporates the filed rate doctrine, forbids as discriminatory most courts would not possess. finally, the amaa and its once nass collects price and volume data, the ams uses dairy producers of reasonable payments for raw milk as fixed nfdm, and the “ams calculated that the errors in the report- tive products within each category. the survey infor- 5 8762 carlin v. dairyamerica, inc. (third alteration in original) (quoting in re trans alaska pipe- by other dairy firms for the same reporting period. rate doctrine applies to the amaa minimum milk pricing tiffs’ allegations as true and construe them in the light most sidered to be “thin markets” because only a small percent of the commodi- doctrine has been applied) and stabilizes prices by assuring relative prices for different classes of milk which in turn the rate has been “suspended” or “set aside” by the relevant gated until 2008. minimum prices. the revised figures issues by nass and then argue that plaintiffs might not ily distinguishable from the present case. in wileman bros., the defendants period covered by nass’ revision had previously been dis- immunity . . . are of such a nature that carriers who submit tariffs in sub- we review de novo challenges to a dismissal for failure to time they were filed. indeed, when members of congress, out- to the nass by dairyamerica were forward contracts, which under york mercantile exchanges, in the calculation of fmmo duction differentials, and other factors in creating the formu- they are the legal rates until suspended or set aside. amounts to a preclusive effect on state law rate-based claims. days of each month. 7 c.f.r. §§ 1000.25(b), 1000.53 (2012). into a finished product. changes to the make allow- c. §§ 608c(8), 608c(5)(b)(i). if the handlers with- statutory authority, or, to paraphrase gallo, whether the doctrine is applicable in the present amaa situation.14 12 industry as “make allowances” or “manufacturing washington, d.c., for defendant-appellee dairyamerica, inc. for plaintiffs’ claims, similarly, would require calculating 18 ence, and matters of judicial notice.” n.m. state inv. council, tions that would appear to require any formal process or par- 2009). as to each operative fmmo, there is a “market admin- 3. allowing plaintiffs’ claims to go forward would not of the creation of the records.” 7 u.s.c. § 1637b(c)(6). the recalculation of rates which would have been charged, even a preclusive bar to plaintiffs’ lawsuit, because: (1) the federal of different states, or charging the shipping companies with following the release of the inspection report, nass sent a rate retroactively. when the commission finds a of the harm that he has suffered as a result of the tortfeasor’s con- duct by that party.23 scheme for uniform price regulation. wegoland ltd., 27 f.3d prices for raw milk purchases; and thus “such rates are just doctrine is being applied and the justifications for the doc- fulness of past rates, the court concluded that a state court misrepresentation and negligent interference with prospective p.l.c., seattle, washington; j. barton goplerud, hudson, sive even if they were on point. they should be due to inaccurate reporting.6 observed that: plaintiffs challenge application of the filed rate doctrine dmea’s mandate is that the usda “shall establish a pro- mental objectives — to wit, the protection of the producers of milk and which the handlers and producers can deviate, albeit only in prices. given that incorrect nonfat dry milk prices whether an agency has suf- transgressions, dairyamerica obtained significant financial analysis, whether that rejection should eliminate the doc- provisions ‘to create strict filed rate requirements and to for- for the period covered by the nass revision was cerns for discrimination are substantially alleviated in [a] obligated to use that data to set prices. that is, to say the least, 8769carlin v. dairyamerica, inc. explained. for example, in keogh, it was held that a rate that according to the market value of the milk they use as reflected discrimination in the present context relates to the concern this regime is that handlers make payments which tion.” 690 f. supp. 2d at 1139. yet, as cited by plaintiffs, the enforcement mechanism or mechanism for compensating pro- the applicable statutes are minimum rates which can be (and trine’s preemptive bar, and, even if the bar is so removed, concomitant regulations establish a federal scheme as to uni- vary according to the market value of the milk they survey data, there is nothing to indicate a ‘statutory mandate’ 2002). “such review is generally limited to the face of the those products, multiplied by a “yield factor.” 7 cated. supplied by handlers such as the defendants) and that data are federal antitrust law or state law.” see also wah chang, 507 lar losses for dairy farmers. vided corrected data, and therefore nass will not issue a special terms and provisions”; (2) “[m]ake rules and regulations to the end-use-value of the milk they have purchased. easily stated: ‘[there] can be no divided the holdings in stark, we concluded that “judicial review of the producers’ opinion of the second circuit which interpreted square d to 386 (9th cir. 1992), where we held that the filed rate doctrine actions the usda would have taken had it had correct data ficiently rejected a rate for purposes of the filed rate doctrine 163 n.16 (d. mass. 2003); in re pharm. indus. average wholesale price the filed rate doctrine will be circumvented every time a milk dairyamerica, inc. (“dairyamerica”), a non-profit entity “es- secretary obtains the approval of handlers of at least 50 per- its terms seeks to prevent. shield: judicial enforcement for a deregulatory era, 56 congress passed the agricultural marketing agreement rate doctrine to the facts of this case, this court would look 8773carlin v. dairyamerica, inc. tablished by a group of nine dairy cooperatives for the pur- tial question was whether the market rates were authorized by the context of statutes such as the ica, the communications to be the policy of congress to establish in subsec- economic advantage, respectively, both under california com- discretion and promulgated regulations governing that rate to market rates for natural gas authorized by the federal the consumer price index, or the new york stock exchange) supp. 2d 262, 276 (d. conn. 2003) (holding that, while filed to establish and maintain such orderly marketing prices for each such use that handlers must pay, (3) require discussion 8757carlin v. dairyamerica, inc. was “doing enough regulation to justify federal preemption of state laws.” trine. sold in fluid form, class ii milk is used to make ice raw milk. tentative decision, 73 fed. reg. at nfdm data to fmmo prices was at all relevant times fixed defendants’ citations are to the federal register and, hence, judicially against direct attack is impenetrable. it turns away both fed- before: raymond c. fisher and johnnie b. rawlinson, dairy handlers did not supply it with accurate data on their trols for nonfat dry milk and the dairy products prices amaa and dmea are: (1) “to establish and maintain such of the producers.” 7 u. s. c. § 608c(9)(b). 2004), amended, 387 f.3d 966 (9th cir. 2004); brown v. mci whom it competes exorbitant prices, without justifications based declined to apply the filed rate doctrine to medicaid reimbursement rates mci telecomms. corp. v. 8777carlin v. dairyamerica, inc. pose of marketing dairy products manufactured by the quarterly conduct an audit of information submitted time they were filed and imposed significant and improper chased from producers by handlers where there can be no turning to the issue of the extent to which the federal fat, protein, solids not fat, and other solids, or skim- initially, the defendants contend that the issues disputed with any agency). furthermore, none of these cases address the doctrine the prices of certain cheeses, butter, non-fat dry doctrine apply to fmmo prices set under the amaa. the are fertile. in order to meet fluid demand which is speculation about agency decisions that keogh forbids. dants’ misreporting. the district court found that about 90 percent of the contracts reported u.s. at 370-71. the regulations in this case were similarly clear (“don’t in the minimum payments, but all the milk producers in the required to use “any particular form of regulation in its quest similarly noted that the filed rate doctrine as applied filed rate doctrine should be applied in class actions. in re the make allowance and the yield are fixed by id. at 1139-40. we disagree with the law. it based its authority to adopt that remedy on former 49 unlike the damages contemplated in by the handlers of at least 50% of the volume of milk american trucking and city of groton to hold that “rejection” our holding will not permit a flood of litigation such that in-person inspections of large dairy firms and their sales information with other related dairy market statistics. 8740 carlin v. dairyamerica, inc. fmmo prices were also incorrect. ams issued a § 608c(5). it is not disputed that the secretary exercised his establishing federal milk marketing order (fmmo) 15 decision making. 8739carlin v. dairyamerica, inc. of class iii and iv products, known in the milk 9 vately negotiated rates lower than those filed with the agency, u.s.c. § 608c(5). the amaa (and hence each fmmo) only nass survey that improperly included wholesale a. the filed rate doctrine factured dairy products such as butter and cheese. mandate of the amaa and the dmea, as well as the policies misstatements were knowing. the supreme court made a similar infer- inc., 631 n.w.2d 629, 633-35 (wis. ct. app. 2001); but see milk. these premiums are most typically paid for recognizes that its issued rates are in error due to the miscon- for publication the filed rate doctrine not only applies but functions so as to rate doctrine by arguing that they are not actually seeking to guidelines to which motor carrier rate bureaus had to comply for class iv products is the wholesale price for § 1637b(c)(3)(b)). the district court also held that the filed rate doctrine should preclude is nothing in the controlling statutes or concomitant regula- estate brought an action against the shipper to collect the dif- 8741carlin v. dairyamerica, inc. to evidence of market manipulation. see id. we thus concluded that, 17 ery of the error in the reporting of nonfat dry milk prices.” effect would have been without more facts. given that the dif- the pricing formulas are changed through formal maintained to supply winter needs. the result is would be contrary to those statutory purposes to hold that a they would have been otherwise. thus, because of its own clear, not necessarily complete since “reallocation effects filed rate solely because the parties had agreed to a lower rate, the that is not itself a ferc-approved rate.” gallo, 503 f.3d at dant’s misconduct (a breach of contract) had prevented the and there are also locations without any applicable fmmos 25 (sometimes referred to in pleadings as milk “han- “clearly warrant[ed] a tempering of the former harsh rule of ing meaningful agency review a sine qua non for the applica- ing of nonfat dry milk prices for the period april 29, 2006 accomplished through the “producer settlement ognized that the rates that were filed were incorrect at the mum prices for milk for class iii (hard cheese) and c.f.r. § 1000.50(l)-(o). class i and ii prices are (citations and internal quotation marks omitted). nos com- plaintiffs are “dairy farmers located in states other than form minimum pricing which should not generally be the sub- supp. 2d 880, 894-95 (n.d. ill. 2011); servais v. kraft foods, to the filed rate doctrine. 690 f. supp. 2d at 1140-41. the dis- parity prices as defined by section 1301(a)(1) of this reading of the case is overbroad. in maislin, the court noted the milk industry are a basic two-price structure that § 1000.54 (2012). section 1000.50 calculates rates based on in price, they do not explain the entire gap. at the from dairyamerica are clear: the usda would have other facts that plaintiffs could possibly plead that worldcom network servs., inc., 277 f.3d 1166, 1169 (9th cir. atively small.25 2 pay as much as they want. in times of relative scar- before calculating the blended price which resulted in a reduced price for fessions code § 17200 et seq.; and the fourth claim alleged the court noted that the agency itself had limited its rejection nated handlers. nass pricing data. to issues argued in a party’s opening brief.”). unfair business practices law, california business and pro- other forums about [its] wisdom.”9 for that reason the [amended complaint] will be dis- milk products.’ ” united dairymen, 279 f.3d at 1165 (quoting block, 467 under the scheme established by congress, the plaintiffs also cite three cases from the same district court which this lawsuit does not constitute a disruption of the congres- effective tariffs, but nevertheless found that the icc’s author- the manufacturing market. [footnote omitted.] to that “under [the act] the shipper was bound to pay the legal was competitive. see id. at 1042. third, although the ferc did not [fmmos] during the time between january 1, 2002 and april accepts and publishes it. see, e.g., sec. servs., inc., 511 u.s. petitors (though it is unclear how large that disadvantage (“nass”) to collect wholesale prices for representa- discriminate against them in comparison with other milk han- keogh, those in the present case are not “purely speculative” doctrine is to be applied strictly to prevent a plaintiff the filed rate doctrine applied to rates merely filed with the prices described in § 1000.50 is not available.” 7 c.f.r. 2007). however, the regulations implementing the dmea 8766 carlin v. dairyamerica, inc. report. 8753carlin v. dairyamerica, inc. alia, to: (1) “[a]dminister the order in accordance with its 7 allowed to charge (or pay) a different rate for that ser- tions, 467 u.s. 354 (1984), considered the related issue pacts of nass nonfat dry milk price and sales volume revisions on (alteration in original). commonly referred to as federal milk marketing orders ers of raw milk (i.e., dairy farmers) are regulated by what are specified public exchanges, including the chicago and new and regulations to effectuate the terms and provisions of the tory goals as to an orderly mandate of marketing conditions need to second-guess agency decision-making or speculate at six of the plants. nass contacted these plants and price discrimination or destabilization. is put. see 7 u.s.c. § 608c(5)(b); 7 c.f.r. below.”); u.s. ex rel. lee v. smithkline beecham, inc., 245 agency took steps to determine the effect of the misinforma- price paid, given that the fmmo merely sets a floor price. any application of reconsidered rates to prospective situations, doctrine. square d, 476 u.s. at 423. we have endorsed an a large dairy firm inappropriately included long- regulated under slightly different conditions, argued that the filed rate doctrine applied only to “only rates is conditioned upon at least two-thirds of the produc- c. meaningful review by the federal agency is not a in original); see also ark. dairy coop. ass’n, v. u.s. dep’t of plaintiffs argue that the prices dairyamerica reported to but still not going so far as holding that putative class action imposed until it has been proved with reasonable certainty that such a private contract went bankrupt, and its bankruptcy in chicago & north western transp. co. v. kalo defendants also cite montana-dakota utilities co. where the court wah chang cannot avoid the fact that it seeks what f.3d at 1225-26 (“the filed rate doctrine’s fortification minimum price structure for milk and milk products] is admit- that a shift in the filed rate would have had substitution effects24 gallo, the filed rate doctrine is applicable because congress cern the application of the filed rate doctrine and its preclu- the usda oig has stated: “given that incorrect nonfat dry milk prices lacked the authority to sanction dairyamerica,22 act, and legislation involving the ferc, where an anti- authority over interstate commerce, and . . . on an interpretation of the act that is contrary to the language and § 1000.50. each of eleven areas, generally known as could not be allowed “to award what amounts to a retroactive tabacco, jr., christopher t. heffelfinger and anthony d. original data were available, and enacted regulations and ing orders setting the prices for raw milk under the amaa. surveys to formulae specified by the fmmo. the sion, but the commission itself has no power to alter dairyamerica only, damages would be measured by the effect act . . . . [but that] the commission also has discretion to take letters to “dairy firms” (i.e., handlers) that reported nfdm 8727 by statute and regulation. defendants concede this, but argue being informed of the misreporting by dairyamerica, the [3] here, admittedly, the statutory scheme created by the applicable statute required the secretary to issue orders enced and corrupt organization act actions; it turns away in march 2007, dairyamerica’s misreporting was revealed from published tariffs filed with the icc, but also required for enforcement purposes, the dmea provides that “[e]ach rule-making hearings. see 7 c.f.r. §§ 900.3-900.18. setting specific prices to be paid for each class, the (2d cir. 1981): utilized along with “make allowances” and “yields” (which er’s unreasonable practice justifies departure from the filed tariff by the ams. additionally, the setting of minimum rates by the agency. allowance; and (3) a yield. see id. the levels of each unjustified monetary benefits to itself) should be able to avoid if dairyamerica had accurately reported nfdm prices, some 8745carlin v. dairyamerica, inc. that the doctrine precludes remedies which rely on a court’s for raw milk set under fmmos pursuant to the the maintenance of prices to farmers above the level tion, another round of comments follow, and a refer- c.f.r. §§ 1000.50 and 1000.54. indeed, during the relevant dairyamerica’s actions were willful or knowing. 690 f. supp. 2d at 1139- recover reparation.” id. at 129 (alteration in original).18 non-money equitable remedy available to plaintiffs. rejection of the minimum pricing structures set forth in milk will increase the price manufacturers must pay commission for determination.” id. at 163-64. tariffs that had been submitted in substantial violation of the central district of california, sitting by designation. of certain dairy products surveyed by the national a rate would be charged other than the rate adopted by the counsel ther, the set rates are not uniform across the nation. they can pay less than the blend price, but they are allowed to rates at issue. it is in precisely this scenario that maislin and as stated by the district court: force.” § 5 (a), 52 stat. 823, 15 u. s. c. § 717d (a) 8776 carlin v. dairyamerica, inc. scenario where a litigant is seeking to have a court substitute id. at 1131. on account of dairyamerica’s market domi- 8754 carlin v. dairyamerica, inc. means of formulas established in the fmmos is a matter whether thereafter a plaintiff should be allowed to recover eral agency from altering a filed rate retroactively or limits “the common rationale of these cases is raged by the uncompensated losses suffered by the milk pro- by the milkweed, a dairy industry publication. in april 2007, of these factors affect the price that plants pay for reporting process. furthermore, plaintiffs’ contention (that had a viable cause of action and a basis for the federal courts to exercise market information and ensure that ams sets correct and (and consequently the usda) was unable to publish revised trine. munications should, therefore, be read as rejecting any blan- § 912, p. 478.) however, “[t]here is no general requirement that allowances,” are intended to represent the costs to (100 pounds) of milk. usda accounts for the por- covered by the proposed order and at least two-thirds of the methodology includes formulas which are dependent 8749carlin v. dairyamerica, inc. approaching the level of prices which it is declared report were inadequate, as this error went undetected have set different prices had dairyamerica reported its data “impossible.” 260 u.s. at 164-65. to prevail in keogh, the rected pricing inputs.”2 that have addressed the issue, we do not read brown as mak- dlers/reporting firms to fill out “annual validation works- carrying out this section.” id. at 359-60. the court held that precluding the ferc from altering a published rate retroac- holding that the filed rate doctrine bars claims based on a [4] first, milk pricing is the subject of extensive federal review for the filed rate doctrine to apply in all cases, how- tary’s authorization) issued and enforced a “well-matured” standard gov- colls., inc., 540 f.3d 1049, 1061 (9th cir. 2008) (citing tel- more oversight responsibilities and more effective enforce- stantial violation of agreements will be aware of their transgressions.” 467 the filed rate doctrine to apply. first, the ferc determined that the best 461. as stated in block v. cmty. nutrition inst., 467 u.s. 340 damages award to the plaintiff shipper would operate as “a through april 14, 2007 had increased the average 2-week their case. caused producers to pay it. it would therefore not, as defen- ties were actually traded on them and, hence, they were subject to dairyamerica’s ceo confirmed that misreporting to the cost differences account for part of the discrepancy at the ultimate price determination. additionally, the formulas eral agency expertise (or primary jurisdiction). as observed in were factored into the fmmo formula, ams has stated that its published 52 (1951) (“we hold that the right to a reasonable rate is the this caused inaccurate nonfat dry milk aggregated ing under state law, not federal. hence, at this point, it is only this case presents a narrow exception to the general rule that ing to dmea procedures. plaintiffs contends [sic] instead gerald carlin, john rahm, paul cantly below spot prices during the time period in ket rule that discrimination is not a concern in class actions, flict with the federal interest in uniformity. see ark. la. gas “make allowances” and “yields” which are fixed by the agen- 1980, 49 u.s.c. § 10706(b)(3), congress set forth specific usda’s national agricultural statistics service (“nass”) the two distinctive and essential phenomena of the fmmos which, in turn, are utilized to establish minimum class action status alone is not enough to defeat the filed rate order. there is no vote on the amendment itself. if 8744 carlin v. dairyamerica, inc. commc’ns, inc. v. qwest corp., 460 f.3d 1075, 1084 (9th cir. 2006)), news release, nat’l agric. statistics serv., u.s. dep’t of agric., nass the usda which are, in part, dependent upon the receipt of inc. v. kmart corp., 511 u.s. 431, 440 (1994)) (internal quo- setting of minimum rates prevents discriminatory pricing undue discrimination. determination where congress had not granted such authority to the a matter of law, “[u]nless and until suspended or set aside.” 138 f.3d at 61 (first alteration in original) (emphasis added) approved it. 453 u.s. at 573-76, 584-85. in that case, the price structure for raw milk sales; and (2) if the doctrine is the district court correctly observed that “[t]he method by report to be released on june 19, 2008. however, no firms pro- §§ 1000.70, 1000.76. this payment equalization is the district court reasoned that “while the dmea sets forth ward, the agency would promulgate regulations providing for 8743carlin v. dairyamerica, inc. considered whether the filed rate doctrine applies to market- b. the filed rate doctrine applies to the minimum rates l. sarko, mark a. griffin, juli e. farris, keller rohrback fmmo prices were incorrect. according to the ams, this caused the total ferent rate than the one approved by the commis- with the following provision: before an agency’s rate “rejection” should be recognized will tions. see 909 f.2d at 337-38. same monthly average or “blended” price per unit of value of milk regulated under the fmmo program ject to regulation is not subject to antitrust liability to its custom- fraudulent conduct.” id. at 583 n.13. 2007. ams began performing audits on august 6, sales of nfdm for the entire class period. while plaintiffs pricing nass. nass agreed to summarize results of this process in a special (“fmmos”) issued by the usda pursuant to section 8c(5) of 16 intricate system for the setting of the prices. unlike the ferc “marketing orders promulgated pursuant to the amaa are a tively would be extremely limited and, hence, any attempt to manufactured product per year. the fmmo mini- inc., 232 f.3d 979, 992-93 (9th cir. 2000). would cure the deficiency. further, as noted, the 467 u.s. at 342 (alteration in original). plaintiffs’ claims here. 2007. between august 6, 2007, and september 30, court held that the filed rate doctrine prohibited a federally 497 u.s. at 129-30 (footnote omitted). under the keogh or “filed rate” doctrine, . . . a public utility sub- and conditions varying across jurisdictions, which would con- that a carrier engages in an unreasonable practice when it determine fmmo minimum prices. the dmea contains no as noted by the nass: and the protection of milk producers would both be served by mktg. coop. v. yeutter, 930 f.2d 466, 468-69 (6th cir. 1991): challenge a fixed rate at all. however, we have made it clear the precept is most often cited as the “filed rate doctrine,” although it 8758 carlin v. dairyamerica, inc. that the filed rate doctrine is not a bar. further, the statutory (2012). also, the rates consist of only minimum prices from rate doctrine does apply to challenges to milk pricing set nos commc’ns, 495 f.3d 1052, 1059 (9th cir. 2007) (citing u.s. 837, 843 (1984). would have produced losses or gains that cannot be captured opinion, it is the only or the more reasonable one.”). port applying it as a bar under the facts of this case. august 31, 2011—san francisco, california blended, price per unit of milk. therefore give favorable consideration to the motion but omits its qualification that the supreme court’s decision was premised difficult issues. they can only be correctly answered after [including nonfat dry milk products].). instead of ported lack of a private right of enforcement under the though the court found that “[i]t is not disputed that [the] act of 1937 (7 u.s.c. § 601 et seq.) (“amaa”) “in order to firms that had reported nfdm data review their weekly price cally describe the filed rate doctrine as having three purposes: the icc’s new remedy to be a “justifiable adjunct to its applying the wholesale prices reported in the weekly are low in yield and conversely the summer months the administrator for the agricultural marketing service § 602: different geographic areas of the united states are the harm resulted from the wrongful conduct of the person transaction is completed)?” contain the pricing formulas), while promulgated by the ever. in square d co. v. niagara frontier tariff bureau, inc., we disagree. for a century, this court has held that the act, dlers withdraw, according to whether their blend- court here) have held it does. see, e.g., in re se. milk antitrust nass are comparable to market-based rates like those in phillips, berman devalerio, san francisco, california; ron policy of this chapter with respect to such commodi- in original design, the [filed rate] doctrine was intended to serve [2] no supreme court or federal appellate court case has 8760 carlin v. dairyamerica, inc. and related justifications for the doctrine, i.e., federal preemp- tion (or the supremacy of federal law) and deference to fed- however, the plaintiffs here are proceed- and other records associated with the sale or storage of any rate; but if he could show that it was unreasonable he might 8764 carlin v. dairyamerica, inc. in a number of discrete markets . . . .” glickman, 521 u.s. at would be given that it controls 75 percent of the nfdm mar- very class of persons the statutory scheme was enacted to pro- are fixed by the agency’s rules) in pricing formulas which, in agric., 573 f.3d 815, 818 (d.c. cir. 2009). that any ‘filed rate’ — that is, one approved by the governing defendant’s conduct or the possibility of inequitable cir. 1982) (applying keogh’s policy considerations to deter- upon the input of sales prices and volumes supplied by desig- compensated for the harm and the injured party must establish cong., 1st sess., 3 (1935), and thereby to ensure that the ben- establishing minimum uniform prices for raw milk. 7 u.s.c. nity to address this issue of when an agency has taken suffi- that, because forward contract prices were signifi- at 1131. the cases were eventually consolidated. id. the right to the rate which the commission files or fixes, and that, ered to handlers regardless of the ultimate use of the milk. 7 the amounts subtracted from the average sale prices declined to order the lower court to direct an agency to make a retroactive and charged the icc, upon determining that a rate or practice the disequilibrium snowballs. volume and price statistics to be published weekly. schedule. but we need not resolve this issue today because we announced fmmo prices as a result of the discovery of their misreporting, not to be subject to challenge on antitrust, state law or most ference between the contract rate and the higher filed tariff. 8763carlin v. dairyamerica, inc. the district court’s dismissal decision is reported at carlin v. dmea, by compelling dairy firms to provide information to thus, like the district courts have been the case if the information provided by “the only practical means of advancing the interests created “filed rate doctrine,”1 effects might still have been significant. giannini, 909 f.2d 332, 337-38 (9th cir. 1990)).10 federally established “component prices” for butter- the amaa. 7 u.s.c. § 608c(5). the promulgation process is that “[i]f [one party] could recover . . . damages resulting if the acts of misreporting by the handler were considered to be viola- the record ty.” 7 u. s. c. § 608c(4). moreover, before any mar- nfdm data between january 4, 2002 and april 22, 2006, and, 8765carlin v. dairyamerica, inc. were set pursuant to an fmmo is also complicated, but is prices to nass. as a result, any increase in the sell- ing commercial transactions involving milk and milk prod- of daily consumer diet, and as an ingredient in manu- ulation is payment pooling. under this system, han- claims given the usda’s recognition that its pub- plaintiffs clearly underestimate the extent of the agency’s cream liquidation, 253 f. supp. 2d at 275: (emphasis added). plaintiffs filed an initial appeal, but their appeal was dis- court could exercise jurisdiction. the district court granted 8747carlin v. dairyamerica, inc. question cannot be considered in a vacuum; the steps required anthony w. ishii, united states district judge, presiding alties of up to $1,000 for each such violation. 7 u.s.c. § 608c(14)(b). authority. see id. at 1040-43.11 bility of the filed rate doctrine. see in re hawaiian & city, handlers can and do negotiate premiums, prices for nfdm than were reflected in contracts sion for such a review. in opposition, defendants point out whilst seeking to prevent unjust and unreasonable commerce as will establish, as the prices to farmers, son, topeka & santa fe ry. co., 284 u.s. 370, 384 (1932), rier to collection of the filed rate. we have never held that a carri- f.3d 918, 929-30 (9th cir. 2002)). it has generally been rec- published but not acted upon by the regulatory agency, because ers for rates or services provided under tariffs approved by the because the only issues on appeal raised by plaintiffs con- gallo too, we concluded that the ferc was doing enough regulation for 8735carlin v. dairyamerica, inc. ucts. see, e.g., 7 c.f.r. § 1000.50 (2012). prior to 2000, the which [the usda has] accomplished [the framework for a construction is rational and consistent with the statute. see chev- will not bar a plaintiff from seeking reparation from the impo- at least two-thirds of the affected dairy producers in the the district court summarized nass’s methods for collect- ally shared by all dairy farmers.” id. at 342 (second alteration doctrine at least in part because there were no filed rates. massachusetts ass’n, 573 f.3d at 818-19, as follows: received for their milk. adjustments in any of these b. the purposes of the amaa and dmea would not be bursed to the milk producers, and corrective disbursements to even more desirable, however, that an injured person not be must pay vary according to the end use of the milk, however, the court found that the icc had not found the rates were agencies, they “were not subjected to meaningful review by impose the order. but the secretary’s power to do so for the eastern district of california based on injuries arising from the imposition of those rates. justify applying the doctrine as a bar in this case. on the other hand, the aggregate effect of just receive, process, package, or redistribute milk or milk products.3 and dry whey, minus a set dollar amount for each of ment mechanisms. see 7 c.f.r. pt. 1170 (2012). issued an interpretive ruling wherein it proposed to adopt a true to some extent, but it is impossible to say how large this paid for raw milk, the court is not willing at this fmmos). ing price of manufactured goods used to produce tively.” 690 f. supp. 2d at 1139. the court relied on both apply to any of the three classes. thus, market forces authority (and its execution of those powers) in setting the rule; the product prices are determined weekly by rebate, operate to give him a preference over his trade com- way to remedy the injuries suffered by the milk producers, the id. at 578. based upon the plain text of the statute specifically farmers. those rates are not initially filed and reviewed by the tially millions of dollars in losses to dairy producers and at significant length and they would not therefore be particularly persua- a. the filed rate doctrine does not bar plaintiffs’ the acts of congress on that subject are higher rate its own mistakes (or bad acts) had previously dairy farmers of am., inc. cheese antitrust litig., 767 f. edly does not bar injunctive relief, the third cause of action — erence will be to the “filed rate doctrine.” erence because § 10701 does not specifically address the types of office of inspector gen., u.s. dep’t of agric., no. 26901-01- tiffs would have a discriminatory effect are weak. defendants “by proof the extent of the harm and the amount of money repre- mendation details the findings of fact, rationale, and milk is used to make butter and related products an upward direction (which favors the dairy producers). fur- vided the firms with their previously reported data and asked 8734 carlin v. dairyamerica, inc. powers such that “effective tariffs will be nullified only upon bilizing rates and preventing pricing discrimination amongst once it was determined that federal law required the pri- did far more than the ferc in the gallo case in this regard. v. mylan labs., 357 f. supp. 2d 314, 329 (d. mass. 2005) (holding that regulations for each designated region). to actually set the minimum prices, fmmos require the 8742 carlin v. dairyamerica, inc. (“usda”), where the data in turn were used to set a minimum action under this chapter which has for its purpose sition of the unreasonable rate. a “marketing area” or “milk marketing area,” is gov- 8750 carlin v. dairyamerica, inc. because the filed rate doctrine applies narrowly to depending on its ultimate use, and the cyclical char- ams did not and could not do anything but accept the nass authority over the subject area and even if the rates have been approved april 14, 2007.” further, on june 28, 2007, ams issued a report on “im- solely on the grounds that they were not justiciable pursuant minimum prices were authorized by the usda pursuant to its impact of not applying the filed rate doctrine. prices determined in classes iii and iv. wherein such relief was requested — was inadequately pled. fmmos have been issued which cover some, but not all, 7 u.s.c. § 608c(8). thus, the secretary exercises extensive secretary, on request, original contracts, agreements, receipts, for example, california has declined to create a state filed rate doctrine argued and submitted barred plaintiffs’ claims, (2) the dmea confers no right of defendants argue that the filed rate doctrine should be nass then aggregated the misreported data from reporting a higher price for the wholesale product ground that the filed rate doctrine barred such claims, even tion), and (2) in any such proceeding, “the commission the agency-set minimum prices for raw milk are and locations of delivery, and (4) provide for the use of that dairyamerica’s reporting errors were self-serving suggests that its aggrieved person to seek appropriate relief in the federal courts in the response to evidence of market manipulation. indeed, upon 8768 carlin v. dairyamerica, inc. plaintiffs initially attempt to avoid the strictures of the filed with a light hand, to authorize just and reasonable rates in the natural gas cent of the milk processed and two-thirds of the affected dairy do so would have to be explicitly executed and thoroughly authority vis-a-vis milk pricing in establishing the formulas in “[b]ecause ferc has not abdicated its responsibilities but has acted, albeit might, certainly, put it at a disadvantage relative to its com- ms referred to these as “reallocation” effects. defendants call them a wu, district judge: as categorized in four classes. see 7 u.s.c. heets” which included the question “[w]hen reporting nonfat 2. plaintiffs’ claims do not pose a significant risk of thus, the filed rate doctrine was not applicable to that situation. further, the secretary”; and (4) announce fmmo prices on designated u.s. at 352). benefits from the lowered prices, to the detriment of plaintiff has given the usda authority to set rates under 7 u.s.c. report long-term prices” is not a very hard instruction to understand), yet be able to get data from firms besides dairyamerica in discovery and and iv milk are the same in all areas. see 7 c.f.r. published rates for purposes of a lawsuit seeking recovery discrimination suffered by the dairy producers, not the han- have always been considered essential to preventing price dis- energy regulatory commission (“ferc”). the plaintiff dairy products during the 2-year period beginning on the date be assessed by the agency, was determinative as to whether the plaintiff speculation or hypothetical considerations of agency while it is in effect. the doctrine applies to rates that have been whether a hypothetical lower rate would under conceivable for the ninth circuit i. standard of review and applicable procedural law a lower rate. the icc argues that its conclusion is entitled to def- prices for agricultural commodities.” glickman v. wileman although the formulas used to set prices of class iii § 1637 et seq. (“dmea”), was enacted in part to give the (except where a different term is utilized within a quoted source), the ref- hold that the principle of nondiscrimination still suggests the prices are adjusted for the location of the handler so the fmmo prices.21 in the context of milk and milk products, “handler” is defined in 7 plaintiffs would have had to show not only that the rate would conclusion that the filed rate doctrine does not apply to bar process used by nass for the dairy products prices nass surveys were forward contracts that should ing knowledge. and since american trucking assumed knowledge, it did 14 liability because of the absence of a specific provision as to action was filed. consequently, this case does not involve a benjamin d. brown (argued), daniel a. small, victoria s. the ica prohibited both carriers and shippers from deviating (2007)). in undertaking this review, we will “accept the plain- of data reported to nass, he had the power to do so. hence would not be able to calculate accurate revised prices using the price of nfdm by $0.0218 per pound and the average 4-5 nal scheme of uniform rate regulation”). that conflict would allison a. davis, davis wright tremaine llp, san fran- to effectuate those requirements of the statutory scheme. part proposed rulemaking and tentative partial final discriminatory policy as to filed rates or tariffs lies at the very which provided for a particular, but partial, methodology for 8756 carlin v. dairyamerica, inc. dlers”) who produce a million pounds or more of 1996)), after the case where it was purportedly first established (i.e., maislin stands, in part, for the limited proposition that, where to instructions that, among other things, direct the however, unlike the natural gas act, there is nothing in the seller applied for a higher rate, the ferc would have rejected the suggestion that . . . the nondiscrimination princi- resulting fmmo prices. once the prices were reported to average prices for butter, nonfat dry milk, cheese, macy of filed rates and tariffs, there developed two additional context of the ica, setting aside or suspending the published the state.” id. at 394 (citing wileman bros. & elliott, inc. v. supports the conclusion that the usda rejected the fmmo which the agency acts and upon the purposes of the statute in elements, there are sufficient attributes which justify the that the carrier’s rates be nondiscriminatory and reasonable, the usda’s actions here constitute a sufficient rejection such the usda concluded that dairyamerica’s misreporting had relatively constant, sufficiently large herds must be damages arising from the incorrect prior rates are admittedly of the affected dairy producers in the region. 7 u. s. fat prices that are derived from those component state a claim under federal civil rule 12(b)(6). n.m. state missed with leave to amend. interstate commerce as will establish, as the prices to farmers, ence in american trucking, holding that “[t]he guidelines for antitrust cir. 1984) (per curiam). cooperative power contains no language requir- 1998).5 ferences in prices were two cents per pound of nfdm, it were authorized by the ferc in the exercise of its statutory ize brown as an “outlier” decision on the issue). ams calculated the increase in the prices of nfdm for the false pricing information to nass and then sent a letter to nass. 690 f. supp. 2d at 1131. pricing data from certain handlers. in such a situation, there the average nationwide wholesale prices from the report i (2008), available at http:// www.usda.gov/oig/ barring claims that such fictitious transactions damaged pur- deprived of substantial compensation merely because he cannot fictitious transactions are not [agency]-approved rates, and from bringing a cause of action whenever [the] pur- challenge a marketing order through administrative review. see united servs., inc. v. wash. natural gas co., 99 f.3d 937, 943 & n.7 (9th cir. 690 f. supp. 2d at 1130-31. nass required the han- acteristic of production. tion (1) of this section . . . and (b) authorizing no of the amount of damage as far as is reasonably possible. it is as stated in clemente v. state, 707 p.2d 818, 828 (cal. 1985): agency but rather are the product of formulas established by similarly, in gallo, we held that the filed rate doctrine applied them to calculate the fmmo minimum raw milk prices. non- law), may not be used to invalidate a filed rate nor to assume (1) through the exercise of the powers conferred a federal agency’s ability to set aside a published rate retroac- id. at 1141. tect. dlers. in any case, were damages assessed against it, though only in one direction. while the usda’s recalculation of mini- price information in their weekly submissions to las in the fmmos. also, the formulas do not consider only amaa or the dmea which specifically bars the usda from not have been reported in the nass surveys accord- region. see 7 u.s.c. § 608c(8). nevertheless, despite those ulating agency can be held by the courts to operate retroac- term forward contracted nonfat dry milk volume and regulatory programs, see 7 c.f.r. § 2.22(a)(1)(viii)(g) commanded a premium price, even though it is of no plaintiff seller from filing for a higher rate.16 except for review of the commission’s orders, the courts can and ii are derived by mathematic formulae from the [11] given that at the time of the misreporting the agency iv (dry milk and butter) products are determined by advanced prices based on the weighted average of noticeable. see 44 u.s.c. § 1507. facilitate private litigation (they deny, however, that such an interpretation test rates which the usda in its expertise has continued to the filed rate doctrine has been given an expansive reading u.s.c. § 10762(e), which provided that the “commission may tion of the price of milk that is attributable to the applicable in that situation, whether the district court erred ods of seasonal overproduction. the winter months is sometimes referenced as the “filed tariff doctrine” (see, e.g., davel addresses the issue of what specific steps an agency need take firm’s books when the misreporting occurred. the trative remedy, not to be construed as a denial of authority to the to apply in a uniform way within the monthly periods and the prices for forward contracts for nfdm. plaintiffs milk, and dry whey. usda then announces the up the filed rate doctrine in particular. this appeal raises two issues: (1) whether the judicially procedures for the submission and collection of milk pricing dants contend, “face higher/non-uniform prices for the rele- [7] the supreme court has said that the filed rate doctrine 8748 carlin v. dairyamerica, inc. lations, ams only has the power to do so “[i]f for any reason cable in a class action lawsuit seeking monetary and ject of conflicting interpretations. the court will ject of attack by ratepayers or others. as stated in 7 u.s.c. * the honorable george h. wu, united states district judge for the forward sales contracts generally reflected lower permits a higher return for the same product, court cannot determine at this point that there is no downward deviation in the rate. therefore, to paraphrase wholesale pricing inputs collected by nass for here to establish the formulas through which minimum prices action: the first and second claims for relief charged negligent vice/product provider with a federal agency, which in turn as noted in lowering the filed tariff shield, 56 vand. l. rev. at contaminated the minimum price setting process that this price payments to producers are less or greater than the secret negotiation and collection of rates lower than the filed ensure that all affected milk producers will be treated alike. permitted to be in excess of the minimum rates set under the doctrine did not apply because pharmaceutical companies do not file rates everyone else and also a separate damage award. that award or “supplied by conjecture,” and “proof of such facts” is not not an issue because their suit’s class-action allegations california who sold raw milk that was priced according to scheme is] to raise producer prices,’ s. rep. no. 1011, 74th 2007, ams visited seven plants reporting nonfat dry dairyamerica would not be paying a higher (discriminatory) destroy favoritism, these last being accomplished by vice/product other than the filed one. id. (“we have held these rate would be fair and proper. that is precisely what higher quality than milk used for manufacture. while public must be notified of these proceedings and pro- kilgard, keller rohrback p.l.c., phoenix, arizona; jon a. previous month. see 7 c.f.r. § 1000.50; milk in the while putative class action status does not resolve the ques- (9th cir. 1997) (en banc). plaintiffs then moved in the district supreme and exclusive.’ missouri pacific here based on the contention that the usda lacks “any actual collection and input of certain economic information regard- 8737carlin v. dairyamerica, inc. assert sovereign power to commandeer power contracts.” functions in the telecommunications field as an anomaly. it is program of audits was not completed until july beginning in march 2009, each plaintiff filed a class action partially cancel out this undeserved benefit. [9] neither keogh, maislin, nor american trucking trading & mktg., llc, 507 f.3d 1222, 1225 (9th cir. 2007) plausible on its face,” bell atl. corp. v. twombly, 550 u.s. preting the ica, stated: jurisdiction to set rates for specified utilities, originally milk is used to produce harder cheeses, and class iv plaintiffs’ claim for damages because they had not alleged that iowa, for the plaintiffs-appellants. ticular expression for the agency’s retroactively setting aside usda the authority to make the reporting of dairy product appellate court does not consider an issue not passed upon will . . . provide timely, accurate, and reliable market informa- regions of the united states.4 petitors.” id. at 163. plaintiffs contend that discrimination is requiring the publication of tariffs, and by prohibit- of the rates they did charge. wah chang would inev- correctly. we know that prices would have been different but . . . . favorable to plaintiffs,” gompper v. visx, inc., 298 f.3d 893, consequently, state efforts to regulate com- herein were settled by ark. la. gas co., where the supreme agricultural statistics service (“nass”); (2) a make ducers who receive prices for their milk that are lower than practices that are to be considered unreasonable and because its at 435. thereafter, the carrier (and its customer) is not plaintiffs counter that, under the relevant implementing regu- decision, 73 fed. reg. 35,306, 35,308 (june 20, unjust enrichment under california common law. tostrud, case lombardi and pettit, honolulu, hawaii; lynn agency. keogh, 260 u.s. at 163.15 ing maislin indus., 497 u.s. at 127)). in turn, the rate is held for prescription drugs. each case, however, rejected the application of the ing that the carrier engaged in an unreasonable practice should, 6 exercise it to address problems as to the agency-set minimum sive effect in the present case and because the district court 1048 n.15. still, as discussed below, it is a different situation was created to stop the “destabilizing competition” among fmmo prices were rejected by the agency such that the filed like a finding that the filed rate is unreasonable, disentitle the car- known as “over-order” prices, for the sale of the cisco, california; charles m. english (argued), wendy m. under the fmmos, a dairy plant pays, and a dairy costs of the manufacturing process through the make eral and state antitrust actions; it turns away racketeer influ- of the filed rate doctrine more generally, are furthered by our through april 14, 2007, and submit revisions. on june 28, bar fmmo price-related claims. here, we are faced with the inv. council v. ernst & young llp, 641 f.3d 1089, 1094 (9th pursuant to the dmea, weekly surveys are con- 20 exercise of mechanical formalism in contravention of the pur- of the courts into the rate-making process where they have no federal agency in question.” wah chang v. duke energy rate unreasonable, it “shall determine the just and dairyamerica’s erroneous reports were incorrect, and (3) per- 2007. thus, even if the secretary did not choose to review the accuracy c. the purposes of the filed rate doctrine do not sup- one or two data points but a large number of them to arrive two regulatory mechanisms: price fixing and pay- 8761carlin v. dairyamerica, inc. plaintiffs did not initiate this lawsuit to challenge the agen- california dairies, inc., opinion complaint, materials incorporated into the complaint by refer- creates no legal obligation on defendants’ part, and (5) plain- 2007, ams instituted a new auditing process which included opinion by judge wu 14 months of misstated prices was $50 million, so substitution handler who misreports required data (which results in poten- the court is also mindful that the filed rate doc- ducted by the national agricultural statistics service agency determines the legal rate and the utility must collect it 2000, but the rulemaking necessary to implement a efits and burdens of the milk market are fairly and proportion- if the plaintiff is not directly challenging the filed rate: verify the accuracy of the information submitted or reported results. nor does the doctrine’s application depend 8732 carlin v. dairyamerica, inc. reject a previously filed rate. in the motor carrier act of tion generally. legal authority to meaningfully review the substance of the of the agency’s actions is necessary for their claims to succeed). not only do the courts lack authority to impose a dif- ferent rate. id. at 164. in the present case, by contrast, the ages. plaintiffs counter that the formula used to convert including public hearing and comment, must be approved by of 14 months.” lar case is not determined by the culpability of the orderly marketing conditions for agricultural commodities in through rate-setting procedures involving the filing of rates tedly complex.” 690 f. supp. 2d at 1130. a description of milk volume and price statistics. based on these vis- wah chang cannot do. and application in this circuit, even in the face of “debate in the facts of this case, therefore, do not justify applying the background 4 scale, for a long period of time, or even in terms of the actual ing an administrative determination that the order is including data for sales of this type since 2002. (1969): wholesale price the amount set by the make allow- [10] the usda adequately expressed its disapproval of described in block as follows: dlers. however, as observed above, the prohibition against the accuracy of data collected by the nass. however, plain- nature of the tort and the circumstances permit.” (rest.2d torts, further, the amaa (which is the underlying legislation) authority was included in the dairy marketing act of amaa had given producers “definite personal rights” and “the silence of the usda clearly had statutory authority. plaintiffs’ complaint 2000 version of the dmea also provided that “[t]he secretary regarding the extent to which an agency can retroactively ous statements from legislators which suggest that the circuit judges, and george h. wu, district judge.* ment. see 7 u. s. c. § 608c(3). an order may be handler to exclude from the survey wholesale prices regulated seller of natural gas from charging higher rates than lockyer v. dynegy, inc., 375 f.3d 831, 849 n.16 (9th cir. the statute allows the agency to decide that a published tariff (albeit to a more limited extent than other situations where the amaa. “statutory mandate” would be furthered by the retroactive prices for raw milk under the fmmos, such that the filed rate eral court based on diversity jurisdiction. see 690 f. supp. 2d response to a growing trend wherein carriers and shippers pri- “decid[e] if the collection of undercharges would be an unrea- determined it was competitive,” 503 f.3d at 1042, the usda agency recognized that earlier filed rates were incorrect at the violates the statute, with prescribing the subsequent rate or ing to instructions. under the negotiated rates policy, the icc has determined that it did. computation of the fmmo minimum price for milk where the agency itself in the context of the amaa/dmea [1] as we observed in e. & j. gallo winery v. encana furtherance of which the agency acts. in american trucking, adhering to the tariff rate in virtually all cases,” and so it tors that are used in the pricing formulas: (1) prices 3 for raw milk were significantly lower than would straightforward incentive for reporting firms to obey the ward pricing sales (sales in which the selling price is estab- then the agency cannot effectively suspend or set aside the icc has permitted the very price discrimination that the act by eagle coop. ass’n v. connor, 553 f.3d 467, 482 (7th cir. or rejecting milk prices that have been incorrectly set as a it is not disputed that, during the time in question, nass. see id. every friday morning, nass reports ment of the cases dealing with the filed rate doctrine arise in stein sellers & toll pllc, washington, d.c.; joseph j. gressional or agency intent for uniformity on a nationwide 2008) (“tentative decision”). the formulas for 23 reasonable rate . . . to be thereafter observed and in title [7 u.s.c. § 1301(a)]. of either party for interlocutory appeal on the issue because the usda itself had no mechanism for retroactive sanctions, mon law; the third claim asserted violation of california’s same activity.” id. at 318-319. dep’t of agric., 576 f. supp. 2d 147, 152 (d.d.c. 2008), afford to absorb transportation costs and still pay 8733carlin v. dairyamerica, inc. endum on the order, as amended, is held. producers unreasonable but rather that the carrier had engaged in an unreasonable practice to be followed. 497 u.s. at 119-20. in 1986, in nfdm [nonfat dry milk]. the dmea requires han- announced different fmmo prices, ones more favorable to lated by federal statute is filed by a carrier or other ser- 42. second, the ferc reviewed the natural gas market and determined it the energy companies should have charged instead did not rule on defendants’ other defenses (such as the pur- winery, 503 f.3d at 1035, after reviewing the doctrine and retroactive remedies, even after the agency has found miscon- minimum milk prices. see, e.g., 63 fed. reg. 35,564 (june 30, through the fmmos) sets minimum prices for raw milk pur- cy’s authority to set minimum milk prices or to directly con- ducers, asked what plans the agency had to remedy the nass, was intended to help ams produce more accurate since the cases cited by both plaintiffs and defendants pro- tory authority to review the accuracy of nass data.12 nugent, george f. farah and brent w. johnson, cohen mil- result of misreporting by certain handlers. further, the statu- ination, such as a railroad charging different rates to customers state tort actions; and it even turns away state attempts to constitute a] usurpation of federal authority.” id. at 584.17 plaintiffs reason, it could only have attempted to calculate revised rates to the commission argues that under the filed rate doctrine, a find- duct of the enriched party. minimum prices paid to milk producers noticeably lower than private enforcement, (3) the usda is an indispensable party parity prices,” 7 u.s.c. § 602(1), and (2) “the protection of part of that methodology is provided in ark. dairy coop. from lower make allowances, and manufacturers present statutory scheme. clipper exxpress v. rocky moun- the ferc. see id. we explained that the ferc was not dairy america submitted pricing information to the regulatory agency — is per se reasonable and unassailable in 895 (9th cir. 2002), and will hold a dismissal inappropriate putative class action’ . . . . however, the supreme court has hillside dairy inc. v. lyons, 539 u.s. 59, 61 (2003). interstate commerce commission (“icc”), even when those allowance. when the price of manufactured goods is reject a tariff submitted to it by a common carrier . . . if that programs, a division of usda, then prepares and 964 (1986): 30, 2007.” 690 f. supp. 2d at 1129-30. defendants are: (1) 8775carlin v. dairyamerica, inc. the district court’s decision. ii. factual and procedural background from 2002 until april 2007. price oversight and enforcement”) did not reject or change previously generally subject to the filed rate doctrine. federal order prices” which was based on revisions due to the discovery that were completed at or near the time of the trans- 476 u.s. 409, 417 n.19 (1986), the supreme court held that ous and that other rates should have applied based on cor- conclude that the justification for departure from the filed tariff on the cost of providing service to the customer. otherwise rejecting the filed rate, it is noted that a large seg- 8736 carlin v. dairyamerica, inc. about what the agency would have done in order to assess lia- united states court of appeals cant in scope and undisputed between the parties, (2) the practice. it then held that: nfdm data or fmmo prices for that period.7 at 21. all of these goals would be implicated by a reversal of benefit from higher make allowances. the yield fac- cir. 2011). that standard is applied to a district court’s dis- have been different had the defendants’ misconduct not attempts to collect the filed rate after the parties have negotiated tor represents the amount of a manufactured dairy keogh recognized that the filed rate doctrine should not bar the fmmos which in turn set the parameters for the issued senting adequate compensation with as much certainty as the cnty. v. dynegy power mktg., inc., 384 f.3d 756, 760 (9th cir. 2004)). in the origin and justifications for the doctrine can be traced plaintiffs-appellants, usdc no. raw milk and, ultimately, how much producers revising rates where handlers have supplied incorrect data to commission) is deemed reasonable and non-discriminatory as parties and an administrative law judge certifies the [8] as discussed above, the primary purposes of the the court in ark. la. gas co. also noted that “[w]e save for another vided an opportunity for public hearing and com- if they had not, to provide corrected data. none of the dairy for example, there is no fmmo covering the state of california. see two weeks of nass prices. id. the make allowances prove with complete certainty the extent of harm he has suf- cooperatives. id. at 1130. it is alleged that dairyamerica sells 260 u.s. at 160-63. however, the court observed that in the ing oversight of the market and initiated remedial actions in congress as to judicial review is, at any rate in the absence of an adminis- prerequisite to the application of the filed rate doc- potential price manipulation). plug them into a predetermined formula, and then publish the imposing consequences on handlers for misreporting data20 of whether the filed rate doctrine bars plaintiffs’ cuted by dairy america and reported in the weekly the legal authority for its decision. see id. § 900.12. records. fund” into which handlers pay, or from which han- application of the doctrine to the amaa milk pricing situa- wah chang, 507 f.3d at 1226. establishing damage amounts 10 rates, was to secure equality of rates as to all, and to that have been literally filed with and approved by ferc.” the handlers of making the end dairy products from while the defendants argue that the ams (which defendants charac- sional pricing scheme embodied in the amaa. as we occurred, but that the icc would have disapproved of that dif- (2011), and, in turn, the under secretary has delegated it to application of the filed rate doctrine in any particu- to change the price data it used to calculate milk prices.13 tariff violates this section or regulation of the commission nass, in other words, the rest of the pricing was mechanical tariff for purposes of a legal action for damages would be minimum pricing structures set forth in the fmmo’s in ques- unusual situation where (1) the misreporting is both signifi- appeal from the united states district court becomes a final rule. see id. §§ 900.300-311. vand. l. rev. 1591, 1598-99 (2003) (henceforth lowering explicitly disapprove them, as he could have done under applicable regula- argue, ams did not have (at that time) the power to review tains an important caveat: the filed rate is not enforceable if its, ams notified nass of reporting discrepancies ations do not support applying the filed rate doc- when it dismissed the plaintiffs’ state causes of action on the accurate prices. where it was held that the filed rate doctrine applied because the ferc nity from antitrust claims on the simple basis that the secretary had “tacit- on the assumption that “any carrier in substantial violation of a rate-bureau producers were no longer possible.” but the usda also rec- reversed and remanded. defendants counter that the supreme court has ruled that see maislin indus., u.s., inc. v. primary steel, (alterations in original and parallel citations omitted). allow- amounts to having the courts determine what rates § 608c(5)(a); 7 c.f.r. § 1000.40 (class i milk is schedule that the icc set forth in its negotiated rates policy rests report on june 28, 2007 stating: “the total classified nass’ published nonfat dry milk price statistics are as follows: rate doctrine would be inapplicable. it found that the usda structure of the statute as a whole and the requirements that make dant’s artificially inflated wholesale milk prices, which are not only examined the dairy products market, but also took lenging prices that were rejected by the relevant agency. that ment pooling. the minimum prices that handlers f.3d 17, 18 (2d cir. 1994) (“simply stated, the doctrine holds them to review and submit appropriate corrections. ch. x (2012); hillside dairy inc., 539 u.s. at 61. addition- not involve a tariff or rate submitted to or issued by a federal agency. itself. is that ams did recognize and attempt to estimate the impact preference over his trade competitors” and vitiate the para- the referendum passes, the order is adopted and fmmo prices would have been different. that price differ- 641 f.3d at 1094; see also metzler inv. gmbh v. corinthian damage has occurred.26 pose of the filed rate doctrine.” 503 f.3d at 1045. moreover, ir, inspection report: survey and estimation internal con- united states. frontier tariff bureau, inc., 476 u.s. 409, 417-24 (1986); but conditions have been discriminatory, be submitted to the the producers of milk and milk products,” block, 467 u.s. at 2007, nass published “revised prices and sales volume” for doctrine.” id. not produce an accurate measure of damages. in other words, jurisdiction. id. at 253-54. to ensure reasonable rates.” id. it mattered only that the rates as a sword to protect consumers from monopolistic price discrim- tation marks omitted); see also square d co. v. niagara revised prices for part of the relevant period after raised, however, usda recaptures the cost by which typically has been uti- point to make the determination that there are no price for each class is determined monthly based on 571, 577 (1981); see jim rossi, lowering the filed tariff in the weekly nass surveys were forward contracts which should not tion, and defendants as a mere speculative exercise, the reality 1030, 1032-33, 1124, 1126, 1131, 1135 (2012) (setting price 1245-46 (w.d. wash. 2010) (collecting cases that character- for the proposition that the doctrine does not bar claims chal- i. statutory and regulatory framework as to milk ity “is not bounded by the powers expressly enumerated in the fered.” (rest.2d torts, § 912, com. a, at p. 479.) 1. assessing damages would not require excessive labs, inc. v. makor issues & rights, ltd., 551 u.s. 308, 322 secretary must conduct an appropriate rulemaking situation, the usda responded by ensuring that, moving for- prices. see 7 c.f.r. § 1000.50. there are three fac- bid equitable defenses to collection of the filed tariff.’ ” (quot- see singleton v. wulff, 428 u.s. 106, 120 (1976) (“[a] federal aff’d, 573 f.3d 815 (d.c. cir. 2009), as follows: the process utilized by the ams during the relevant period has exercised that authority, such rates are just and reasonable judicial proceedings brought by ratepayers.”). as noted in ice 8729carlin v. dairyamerica, inc. 21 nance, its erroneous reports had the effect of pushing fmmo dmea procedures were not to be included in the data provided to the or reported under this subtitle and compare such status is irrelevant to our inquiry into the discriminatory nass. we found that this dairy firm has been oversupply in the more fruitful months. the histori- the holding of that case was that the defendants could not establish immu- court went on to quote from arizona grocery co. v. atchi- the dairy market enhancement act of 2000, 7 u.s.c. among its findings were: 8771carlin v. dairyamerica, inc. effectuate the terms and provisions of the order”; (3) species of economic regulation that has displaced competition agency must indicate that it is suspending, setting aside or 544, 570 (2007). milk used in the consumer market has traditionally nantahala power & light co. v. thornburg, 476 u.s. 953, and sales volume submissions for the period of april 29, 2006 maintain income[,] farmers increase production and ages would not, therefore, involve the kind of “hypothetical” establish in subsection (1) of this section. other grounds. see, e.g., keogh v. chi. & nw. ry. co., 260 awi-dlbdairyamerica, inc. and information asking whether they had correctly related the a private litigant from pursuing claims involving those rates. additionally, as in gallo, the usda here maintained ongo- ance and transfer the balance to producers. pricing.” they rely on brown v. ticor title ins. co., 982 f.2d order reform, 84 j. dairy sci. 974, 977 (2001) (indicating that nass had under the amaa to the under secretary for marketing and amendments to the fmmos for improved oversight of the in the context of filed rate doctrine analysis necessarily appointed by the secretary of agriculture and who (without the secre- after dairy programs has issued its recommenda- before it can be deemed to have “rejected” a rate. such a example, the handlers do not submit rates or prices to the fmmos in question.19 the amaa contains no provision under which milk producers can involves (1) the agency’s (presumably formal) suspension or ers consenting to its promulgation and upon his mak- dry milk sales data to nass, did you or can you: exclude for- facing a referendum must choose between voting out (citation omitted). mallaney, shindler and anderson, pc, west des moines, this large dairy firm with the weekly data submitted section 8c(5) of the amaa requires that the fmmos con- in general, one who has been tortiously injured is entitled to be (now codified at 7 c.f.r. part 1170 (2012)) were not promul- obviously, where the controlling statute prohibits the fed- (2) to protect the interest of the consumer by (a) this action (and the parties have not disputed that summary) mation is gathered from product manufacturers guamanian cabotage antitrust litig., 754 f. supp. 2d 1239, amended class action complaint contains four causes of product that can be produced per hundredweight entire lawsuit on five grounds: (1) the filed rate doctrine federal law: keogh v. chi. & nw. ry. co., 260 u.s. 156 (1922)). as used herein mitting the rate-related claims to move forward is the only court to dismiss their complaint with prejudice so that this and reasonable as a matter of law.” 503 f.3d at 1035. be prevented by treating the filed rates as having what some uncertainty can arise in any calculations of damages, utors, “handlers,” to take advantage of this surplus to id. at 1140. in so ruling, the district court noted that: tion of state laws. see gallo, 503 f.3d at 1041. we conclude itably drag the courts into a determination of what is filed with the icc (and, after hearings, is approved by the johnson, hanson bridgett llp, san francisco, california, for into account volume, location, grade/quality of the milk, pro- order. see wmx techs., inc. v. miller, 104 f.3d 1133, 1136 fmmo minimum prices for products in classes i value of milk to be understated by $50 million between april 29, 2006 and a price or pricing constituent required for computing the 1 made for production differentials, grade or quality of the milk, will not issue special report on nonfat dry milk prices (june 19, 2008), sion assisted in the enforcement of the supremacy of marcus v. at&t corp., 138 f.3d 46, 61 (2d cir. 1998)). mar- ally, the individual handlers make payments which vary 26 from recurring. the usda took no further action, noting that and, on rarer occasions, as the “keogh doctrine” (see, e.g., cost mgmt. ing price is set more than 30 days before the comple- tion.” 7 u.s.c. § 1637b(a). their complaint includes numer- dlers pay prices according to the end use of milk, but interfere with federal authority over the dairyamerica, inc., 690 f. supp. 2d 1128 (e.d. cal. 2010). (citations omitted). even where the tariffs are filed with the state regulatory agency having [t]he great purpose of the act to regulate commerce, litig., 801 f. supp. 2d 705, 732-34 (e.d. tenn. 2011); in re hold their consent, the secretary may nevertheless trine consists of a body of law that has been the sub- missal based on the filed rate doctrine. california ex rel. in gallo which merely “reviewed the natural gas market and 11 same time the milk industry is characterized by peri- missed because the district court’s ruling was not a final to the commission’s express statutory power.’ ” id. at 364-65 mount purpose of the ica (i.e., preventing pricing discrimina- established a new policy whereby in referenced cases it would ing, exceptions and comments are filed by interested new remedy wherein it would retroactively reject “effective” tice of deducting certain administrative expenses from the settlement fund during the applicable time frame, contain any explicit provi- its evaluation of a proper rate for the agency’s determination. cient steps to officially disapprove a rate. we conclude that (footnotes omitted)). the amaa and its implementing regulations use following paradigm. a rate or tariff within an industry regu- agency. 341 u.s. at 254. it was noted that the agency’s decision was congress undoubtedly intended the fmmos’ minimum prices served by giving the filed rate doctrine preemptive express statutory mandate.” 467 u.s. at 370. prices for the whole class period, but could not do so because to agency-set milk prices in general, it should not serve as a contend that awarding damages against dairyamerica would 8759carlin v. dairyamerica, inc. opinion filed rate doctrine preemptively. the district court would not milk has essentially two end uses: as a fluid staple requires a minimum price. as observed in farmer union milk ice cream liquidation, inc. v. land o’lakes, inc., 253 f. the district court here considered the issue of whether the firms provided corrected information, and, hence, the nass fat dry milk (“nfdm”) prices are one factor used by ams to in order to receive antitrust immunity. in response, the icc were factored into the fmmo formula, the published producers within the geographic territory subject to the order. first, the agency promulgated regulations which created an the producers. it is only the specific prices that would have amaa does not present the typical filed rate scenario. for they argue that the usda’s implementing regulations did not, id. at 583. how- 1599: class iii and iv milk are based on the nationwide discriminatory pricing under the amaa is concerned with that motion. plaintiffs then filed a timely notice of appeal. the icc concluded that changes in the motor carrier industry adequately summarized in ark. dairy coop., inc. v. u.s. 13 the injured person should prove with like definiteness the extent (“ams”). 7 c.f.r. § 2.79(a)(8)(viii) (2011); see also white [reporting firm] . . . shall maintain, and make available to the not reach the question of whether damages could be recovered without it. information mandatory. see 72 fed. reg. 36,341 (july 3, [6] in sum, the usda did possess the authority and did tiffs’ argument is essentially that, had dairyamerica provided minimum prices under the fmmos. indeed, the usda here in the united states, and approximately 90 percent of its contracts reported mine that the filed rate doctrine was not a bar). courts typi- the producers. the court found a basis for judicial review because the actions that are ‘legitimate, reasonable, and direct[ly] adjunct been using such exchanges for pricing information but that they were con-

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