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Monday, August 19, 2019

Class counsel in herd retirement case denies confidentiality breached by expert

Federal Court

By Record News | Aug 5, 2019


EAST ST. LOUIS – Tennessee lawyer Charles Barrett confirmed an anonymous tip that economist Mark Dwyer worked on a class action about milk, but he denied that Dwyer breached any confidentiality. 

Responding to a motion for an investigation at U.S. district court on July 31 in an antitrust claim, Barrett wrote that defendants should have thrown a letter about Dwyer in the trash. 

He wrote that Russell Lamb, the expert for the class on damages, advised Dwyer about a confidentiality order in February, and that in March, Dwyer executed a contract with a confidentiality clause. 

Barrett and 17 colleagues represent a class claiming the National Milk Producers Association led a conspiracy to restrict the milk supply. 

Lead plaintiff First Impressions Salon, from Vermont, claims the association violated antitrust law through a herd retirement program from 2008 to 2013. 

The class seeks damages from Cooperatives Working Together, a group of 33 cooperatives that carried out the program. 

The class also seeks damages from three of those cooperatives, Land O’ Lakes, Agri-Mark, and Dairy Farmers of America Inc. 

District Judge Nancy Rosenstengel certified two classes in 2017, one for those who bought butter and one for those who bought cheese. 

Lamb submitted a report this May 3, and defendants deposed him on May 17. 

They moved to exclude his report on May 31, claiming he improperly recalculated prices that regulators set. 

On July 23, defendants received an anonymous letter stating Lamb didn’t write the report. 

The author wrote that Dwyer was not an employee of Lamb’s firm, Monument Group, and that he didn’t sign a confidentiality agreement. 

The author also wrote that Dwyer sent email to Monument and staff circulated it. 

On July 24, Milk Producer Association counsel Jonathan Sallet of Washington asked Rosenstengel for a chance to investigate. 

Sallet wrote that Lamb testified that he received assistance from staff and didn’t identify Dwyer or any other firm who assisted him. 

Barrett replied that, “The real purpose behind their motion appears to be to tarnish plaintiffs’ counsel.” 

He also wrote that Lamb considers Dwyer a member of Monument’s staff; that Monument lists Dwyer as its employee on billing statements; that Dwyer’s company is an independent contractor of Monument; that Dwyer had no involvement in an initial report of Jan. 4; that Dwyer was requested to comment on reports of defense experts; that Dwyer didn’t write the May 3 report or review it and that it consisted of 205 paragraphs, and Dwyer contributed material that appeared in 24 paragraphs. 

“Any language Dwyer suggested was carefully reviewed and approved by Lamb and other Monument staff working under his direction,” Barrett wrote. 

He wrote that Monument billed plaintiffs for 9,303 hours through May 3, and that Dwyer expended 62.6 of those hours. 

He wrote that Dwyer received the defense reports and Lamb’s initial report only after he executed a contract with Monument. 

“He did not receive any documents or data produced in discovery, except as referenced in those reports,” Barrett wrote. 

He wrote that Dwyer agreed to be bound by the confidentiality order. 

“He has not disclosed the materials he received to anyone, nor will he,” he wrote. 

“Lamb answered truthfully at his deposition, because he understood the questions to be asking whether he had consulted with economists not affiliated with Monument, and he considers Dwyer to be part of Monument’s staff. 

“When asked about staff at Monument who assisted him, he recalled at the time the names of three, but not all persons, including Dwyer.”

Rosenstengel has set trial to run from Oct. 1 to Oct. 11.         

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