Brian D. Clark

Hurricane Michael, a Category 5 storm, struck the Florida panhandle, southern Georgia and Alabama on October 10 and 11, 2018, during the peanut harvest. University of Florida economists put the farm losses in Jackson County, Florida, at $51 million, $8 million of it in peanuts, and Florida’s peanut losses at $19 million, a 45 percent loss in the areas where hurricane-force winds struck. A shortage of runners, the peanut type grown on about 80 percent of the country’s peanut acreage, was expected to follow. The shortage never came, and the prices shellers paid farmers for runners did not move. Runner growers who sued in 2019 told a federal court that the missing shortage was how they had discovered what they alleged was a conspiracy among the shellers to hold those prices down, and that since 2014 the prices had stayed “remarkably flat and unchanged, despite significant supply disruptions.”

Two Jackson County growers, Mark Hasty and Dustin Land, and their partnership, D&M Farms, filed the first complaint against Birdsong Corporation and Golden Peanut Company in the federal court in Norfolk on September 5, 2019. The gap between the storm’s damage and runner prices and inventory levels, they told the court, “led Plaintiffs to begin investigating the legitimacy of Defendants’ Runner prices.” Brian D. Clark of Lockridge Grindal Nauen in Minneapolis was among their lawyers on that complaint, and the farmers added Olam Peanut Shelling Company the following spring. Clark and Kimberly A. Justice of Freed Kanner London & Millen were appointed interim co-lead counsel, and in December 2020 Judge Raymond A. Jackson of the Eastern District of Virginia named the two of them co-lead counsel for the settlement class. Eighteen months after the first complaint, the three shellers had agreed to pay a combined $102.75 million. When the American Antitrust Institute honored the farmers’ lawyers in 2021, it cited “the homegrown investigation that led to the case” and the “use of phone records to establish conspiratorial conduct.”

In September 2020 Clark signed the sworn declaration that put the farmers’ class-certification evidence before Judge Jackson: an economist’s report, deposition transcripts of Golden Peanut procurement officials, documents the shellers themselves had produced, summaries of Golden Peanut buyers’ phone calls with competitors, and a Verizon Wireless call record. In July 2021 he appeared for the class when the court approved the last settlement. Discovery in the case ran through transaction data, email, a wireless carrier’s call records and messages retrieved from the farmers’ own devices. Clark, who co-chairs his firm’s antitrust practice, also leads its e-discovery practice group.

Three Buyers for the Runner Crop

Shellers stand between the peanut farmer and the food company: growers sell them raw, harvested runners, which the shellers process and sell on. Peanuts, the farmers’ complaint noted, are the twelfth most valuable cash crop in the United States, worth $1.1 billion to $1.4 billion a year at the farm, and the complaint described a market with few buyers for that crop. Birdsong and Golden Peanut, a wholly owned subsidiary of Archer Daniels Midland, together held 80 to 90 percent of peanut shelling, the complaint alleged, and Olam, a subsidiary of Singapore-based Olam International, held at least 10 percent. In 1970, the complaint said, there had been 92 active shelling companies. Golden Peanut bought Dothan Oil Mill in 1992 and Clint Williams Company out of bankruptcy in 2015. Olam’s parent announced in 2014 that it was acquiring McCleskey Mills, then the third-largest sheller, bought Brooks Peanut Company, then the sixth-largest, in 2016, and merged the two under the Olam name in December 2018.

Peanut shellers had faced a federal antitrust case before. In June 1972 Attorney General Richard G. Kleindienst announced civil suits against two shellers’ trade associations. One, the Southeastern Peanut Association, had about 57 member firms in Georgia, Florida and Alabama, whose 1970 sales of about $144 million amounted to about 45 percent of all sales of edible peanuts grown in the United States. The government charged that each association and its members had agreed on terms for selling shelled peanuts: a uniform commission rate for brokers, the amounts contract prices would rise when delivery was delayed or fall for damaged peanuts, and other uniform terms. The Southeastern association consented to a judgment, entered in January 1973 by Judge Wilbur D. Owens Jr. of the Middle District of Georgia, that barred it from setting or recommending brokers’ commissions, price adjustments for changed delivery dates or damaged peanuts, and credit terms. The 2019 case concerned the other end of the sheller’s business, the price paid to the farmer.

A grower selling runners had little room to bargain. Peanuts have no futures market or public exchange, and the complaint called price discovery difficult. From the 1930s until 2002, federal marketing quotas controlled supply and prices; the 2002 Farm Bill ended the quotas and set a marketing loan rate of $355 a ton, a rate the 2014 Farm Bill left unchanged. The loan rate works as a floor because the government takes ownership of the crop if prices fall below it. Above that floor, farmers sign shelling contracts, and in practice, the complaint said, “farmers merely receive pre-printed forms to complete and sign.” The buying points where farmers deliver their crop either contract exclusively with one sheller or are owned by one, and they have no authority to set the price.

The farmers alleged that the three shellers offered nearly identical contracts, often on the same day, and released option contracts after National Peanut Buying Points Association conferences that all three sponsored and attended. They alleged that the shellers “over-reported Peanut and Runner inventory numbers to the USDA to create the false impression of an oversupplied market,” then “capitalized on the perceived oversupply to offer artificially low Runner prices to farmers,” and “under-reported Peanut and Runner prices to the USDA to further suppress prices and keep them low and less volatile.” The farmers placed the motive in 2011 through 2013, when drastic weather-related price changes made it difficult for the shellers to manage risk and plan production. The first complaint gave the size of those swings: the prices shellers paid for runners had risen from $448 to $736 a ton in three years, and the USDA’s weekly national posted price for runners passed $1,200 a ton in 2011.

The first complaint described how the 2016 crop was contracted. That spring, it said, Birdsong and Golden Peanut announced a contract price of $375 a ton on the same day. The shellers told farmers that if they waited they “would not be able to sell their Peanuts or find a storage warehouse,” the complaint alleged, and offered so-called “I love you money” loyalty payments of about $20 to $40 a ton. In July the USDA’s Peanut Stocks and Processing report, built on inventory figures the shellers supply to the government voluntarily and confidentially, “grossly overstated” the peanut supply by more than 750,000 tons, the farmers alleged, and in December the USDA held a seminar with the American Peanut Shellers Association to teach shellers “how to properly fill out the required forms.” A 2009 USDA audit, the complaint noted, had already found the data “incomplete, outdated, and unverifiable.”

The farmers described what the low prices had cost them. “The effect of Defendants’ conspiracy has been devastating to many farmers,” their complaint said; it had led “numerous farmers to borrow from generations of equity built up in their land,” and smaller farmers were being run out of business as that equity ran out. Two months before the first complaint, the farmers noted, The Peanut Grower had reported that average prices had “decreased to the lowest price[s] in modern history.”

“Fundamentals of Oversupply”

Birdsong and Golden Peanut moved to dismiss. Their explanation for the low, steady prices was the market itself: natural market forces and the subsidies in the 2014 Farm Bill—in Birdsong’s brief, the “fundamentals of oversupply” and the growing incentives the Farm Bill created. They asked the court to consider exhibits drawn, they said, from official government reports and statistics, among them the National Agricultural Statistics Service data the complaint itself relied on.

Judge Jackson denied both motions in May 2020. Price-fixing is a per se violation of the Sherman Act, he wrote, so the only question was whether the complaint pleaded facts supporting an inference that the conspiracy existed. It did so in three ways: it supplied a motive, the stabilization of runner prices; it tied the shellers’ simultaneously issued price offers to the broader runner market; and it alleged efforts to coordinate those offers, with geographic proximity and the social and professional associations of the shellers’ leadership supplying the opportunity. The shellers’ account of the data did not definitively contradict the farmers’ price and inventory figures with an “obvious alternative explanation” for depressed runner prices. None of the complaint’s allegations sufficed “when considered in isolation,” the court wrote, but “the totality of the factual assertions within the Complaint give rise to the plausible inference of a price fixing conspiracy.”

Later that month the farmers filed a second amended complaint adding Olam. Two more growers, Lonnie Gilbert and Daniel Howell, with Howell’s Rocky Creek Peanut Farms, had joined as plaintiffs in April. The American Antitrust Institute’s 2021 award citation read the case as a signal that “anticompetitive actors cannot use complicated government subsidy programs to shield themselves from antitrust liability.”

Birdsong’s 2010–2012 Data

Showing that prices were depressed meant showing what they would have been without the alleged agreement, and the farmers set out to build that comparison from the shellers’ own records. On May 29, 2020, the farmers moved to compel Birdsong to produce transaction data for the three non-runner peanut types and for January 1, 2010 through December 31, 2012, the years before the alleged conspiracy, so their economist could set a benchmark period for a “before-and-during” regression. Birdsong objected that the other peanut types were outside the case and that the earlier years were irrelevant because they preceded the conspiracy, though it did not argue that producing the data would be unduly burdensome.

Magistrate Judge Lawrence R. Leonard granted the motion on July 24, 2020. The “threshold for relevance is not a high one,” he wrote. The farmers had explained how non-runner prices could serve as a benchmark for runner prices under an accepted antitrust damages method, and the 2010–2012 data bore on the price volatility that allegedly motivated the conspiracy. The “party resisting discovery has the burden of establishing that the production should not be required,” and Birdsong had not carried it.

“A Usually Reliable Source”

“As a whole,” Clark told the court in his September 2020 declaration, “we have worked to obtain well over 1 million documents in Discovery from Defendants and over a dozen third parties.” By then the farmers’ lawyers had deposed five of the shellers’ witnesses and were scheduling 25 more depositions of the shellers and third parties.

In their class-certification brief, the farmers described a routine that, they said, repeated throughout the class period: “the price-setting executive (VP of Procurement) of a Defendant corporation asks a subordinate (area procurement manager) for a competitor’s pricing information. The subordinate contacts the competitor to obtain the desired information. The competitor’s pricing (current and future) is then reported back to the senior executive as coming from a ‘reliable source.’” The pricing reached the executive, the brief said, “shortly after – or even contemporaneously with – the subordinate having a phone call and/or exchanging a text message with the ‘competitor,’” and the executive used it “in setting artificially low Runner prices.”

Judge Jackson cited exchanges of that kind when he certified the class. An Olam employee wrote to a Birdsong employee that “[i]t is always a pleasure to break bread together and talk about the industry and where we are and where we are going.” A Golden Peanut employee asked a Birdsong employee, “[w]hat are you paying for Seg 2 & 3?” The Birdsong employee answered, “175.” In a Golden Peanut email, an employee reported that Olam had set a purchase price of “$400 for 2016 in all areas,” attributing the figure to “a usually reliable source.” The farmers set those emails against Golden Peanut’s and ADM’s own “Antitrust 101” guidelines, which told employees not to “obtain information about a competitor’s prices directly from the competitor.”

The phone evidence came through depositions and third-party records. The farmers’ lawyers deposed Golden Peanut’s former vice president of procurement and a current and a former area procurement manager in July and August 2020. At each manager’s deposition they marked as an exhibit a summary, prepared under Federal Rule of Evidence 1006, of that manager’s phone calls with competitors; the rule lets a party prove the content of records too voluminous to examine conveniently in court through a summary. Clark attached both summaries to his declaration, together with a Verizon Wireless record of an August 1, 2018 call involving one of the managers.

“I Love Depositions”

“I love depositions,” Clark told Minnesota Lawyer in 2018, the year before the peanut case was filed. “They’re an amazing opportunity, to put somebody in the deposition chair and do your best to seek the truth.” He had gone to law school, he said, “to pursue a career in environmental litigation.” Before that he was an AmeriCorps volunteer in Alaska and, for a couple of summers, a canoe guide at a camp in the Boundary Waters Canoe Area Wilderness of northern Minnesota, where he was also married. He graduated summa cum laude and Phi Beta Kappa from Luther College in 2005 and magna cum laude from the University of Minnesota Law School in 2009, where he was a member of the Order of the Coif and co-editor-in-chief of the Minnesota Journal of International Law, and he was admitted to practice in Minnesota that October. Early in his practice he worked on election recounts with David Lillehaug, later a justice of the Minnesota Supreme Court.

He tells law students that e-discovery is “one of the few areas an attorney in their first five years of practice can stand out”; in his own case, he said, a leadership role came “within a month or so of starting at my firm.” For five years he taught an e-discovery seminar at the University of Minnesota Law School. He served on the steering committee of the Sedona Conference’s Working Group 1, whose drafting teams write guidance on electronic discovery, and he was on the drafting team for a 2018 Sedona Conference Journal primer on responding to discovery requests under Federal Rule of Civil Procedure 34(b)(2). He founded, with Annika Martin as co-founder, the Complex Litigation E-Discovery Forum, which has hundreds of members and admits only plaintiff-side lawyers and litigation-support professionals, and he served as its president; he is now its immediate past president. The forum says it was created to address “a critical gap in the legal industry: a lack of resources and dedicated education for plaintiff-side attorneys and litigation support professionals who manage e-discovery in complex cases.”

He has called the plaintiffs’ class-action work the part of his practice he particularly loves. “We work with many small- to medium-sized businesses and when they or we see a wrong, the class-action tool lets us find a remedy for them and everybody else who has been harmed in the same way,” he said. “It feels like you’re in the role in a class-action context of a private attorney general.” At Lockridge Grindal Nauen his antitrust cases have involved chicken, pork, beef and turkey as well as peanuts.

Hasty, Land, Gilbert and Howell

Discovery also reached the farmers who had brought the case. “Named Plaintiffs in this action have significantly advanced this litigation on behalf of the putative class of peanut farmers,” Clark told the court, and he described each of them. Mark Hasty, of Jackson County, Florida, had farmed on his own for over a decade in Alabama and Florida and relied on farming to support his family; Clark wrote that he “was fascinated by farming equipment early in his childhood and followed his father and grandfather to learn as much as possible about the trade.” Dustin Land, also of Jackson County, had farmed his entire life in Alabama and Florida and grew up on his father’s farm; he and Hasty operated D&M Farms, the first-named plaintiff. Lonnie Gilbert, another Jackson County grower, had farmed on his own for almost a decade, had been a first responder, worked as an emergency vehicle technician, and in 2018 testified before Congress to help increase access to health care in the rural United States. Daniel Howell of Houston County, Alabama, a former peanut farmer, had taken over his father-in-law’s crop and cattle operation, whose herd the American Angus Association designated a “Historic Angus Herd” in 2007, and sold runners through Rocky Creek Peanut Farms.

Hasty and Land belonged to the third and fourth generations of their families in agriculture. Hasty had worked in corrections before he returned to full-time farming in 2009, and Land grew his first crop in 2010. They helped each other for years before merging their operations in 2017 as D&M Farms.

Each of them answered the shellers’ interrogatories and document requests, and each worked with counsel “and its e-discovery partners” to retrieve emails, text messages and other data from devices in their possession. By September 2020 Hasty had produced more than 2,100 pages, Land more than 6,700, D&M Farms more than 8,400, Gilbert more than 5,300, and Howell and Rocky Creek together more than 5,100. The shellers had set their depositions: Howell’s for September 8, 2020, Hasty’s and D&M Farms’ for September 16, Gilbert’s for September 24, and Land’s for October.

Simeon Morbey of Lockridge Grindal Nauen prepared four of the farmers for their depositions by the shellers’ lawyers—Golden Peanut was represented by Kirkland & Ellis, Olam by Latham & Watkins and Birdsong by Kaufman & Canoles—and defended each of them, work for which the American Antitrust Institute gave him its 2021 award for outstanding antitrust litigation achievement by a young lawyer. The shellers did not contest the farmers’ fitness to represent the class. “Notably,” Judge Jackson wrote, “Defendants do not challenge the adequacy of Plaintiffs or Plaintiffs’ counsel.” In 2018 Clark had described that arrangement: “You have the benefit of working with a small group of named representatives but attaining relief for a far broader group of people.”

18.1 Percent

The farmers’ economist, Dr. Michael A. Williams, worked in two steps. He first identified features of the runner market that made collusion more likely: high concentration among buyers, barriers to entering the shelling business, a commodity crop, repeated sales by the same farmers to the same shellers, relatively inelastic supply, and industry trade associations. He then built a regression model comparing prices in the alleged conspiracy period with benchmark periods and estimated what farmers would have been paid without the agreement. He concluded that the alleged conspiracy “depressed farmer stock runner peanut prices below competitive levels by 18.1%,” and that 99.8 percent of the proposed class had been affected.

The shellers challenged both steps. The communications, they argued, reflected “legitimate business relationships” and were lawful. Their expert, Dr. Michelle Burtis, disagreed with Williams’ findings. The shellers argued that Williams had built a model that “manufactures common impact by applying the same average underpayment rate to all growers,” Burtis said the error in his 99.8 percent figure could range from “at least 50% to as high as 97%,” and the shellers said the model did not account for differences among farmers’ contracts, the 2014 Farm Bill, and other forces acting on runner prices.

The shellers asked for a hearing on the motion. Judge Jackson found one unnecessary, decided the motion on the papers, and granted class certification on December 2, 2020. Whether the shellers’ communications were lawful “remains to be seen,” he wrote, but “the underlying facts (i.e. the emails and other documents) are not in dispute.” The farmers, he found, had set forth “a myriad of common evidence such as emails, conversations, and deposition testimony in which Defendants discuss competitors’ prices in a manner that can be perceived as a means to collude,” and the shellers had not offered enough to undermine the court’s reliance on those emails and on Williams’ analysis of the market. On impact, the question at certification was whether injury was “capable of proof at trial through evidence that is common to the class rather than individual.” A regression comparing actual prices with those in a but-for world was one accepted way to make that showing, and Williams’ model, the court found, separated out variables unrelated to the farmers’ theory of liability and “utilizes fixed effect variables to ensure consistency.”

The certified class took in every person or entity in the United States that sold raw, harvested runners to any of the three shellers from January 1, 2014 through December 31, 2019—by the farmers’ count, “almost 12,000 farmers that are geographically dispersed across the Southern and Southeastern U.S.” The farmers had argued that because some growers’ individual damages were too small to support a separate suit, “a class action is virtually the only means of redress.”

Set for Trial in Norfolk

Two of the shellers settled while certification was pending. Olam agreed to pay $7.75 million in October 2020 and Birdsong $50 million in November, and both agreed to cooperate in the prosecution of the claims against Golden Peanut. Golden Peanut kept litigating. On December 16, 2020, two weeks after certification, it petitioned the Fourth Circuit for permission to appeal the class order, and it moved for summary judgment and to exclude the farmers’ economist. The case was ready for trial in January 2021 and then set for a rescheduled trial in June. The farmers’ lawyers had spent nearly $1.4 million on experts and more than $125,000 on jury consultation and trial graphics, and Clark had told the court in September 2020 that the trial team included Robert Connolly, “the former head of the Department of Justice Antitrust Division Philadelphia Field Office.”

Against Golden Peanut the farmers had the shellers’ emails, the managers’ depositions, the phone-record summaries and an economist’s regression. Clark later took up, with two co-authors, the question of how complex evidence reaches a jury. In a 2025 article in the ABA’s Antitrust magazine, he, his partner Kyle Pozan and Susan Macpherson argued for interim statements—explanations or summaries that counsel deliver during trial to tie individual pieces of evidence to each side’s account of the case. They drew on the Seventh Circuit’s American Jury Project, which tested interim statements in 17 jury trials between October 2005 and April 2008: more than 90 percent of jurors reported the statements helpful, and more than 85 percent of the judges who oversaw those trials believed the statements increased jurors’ understanding. An attorney, they wrote, “might deliver an interim statement to clarify complex expert testimony, immediately linking it to earlier fact witness testimony and broader case themes.”

On February 26, 2021, at Golden Peanut’s request, the Fourth Circuit stayed its appeal. Golden Peanut, which like the other shellers denied the farmers’ allegations, settled in March 2021, with discovery closed for months, certification decided and summary judgment fully briefed. After negotiations assisted by the mediator Eric D. Green, it signed an agreement on March 4 to pay $45 million, bringing the three settlements to $102.75 million.

Divided by Runners Sold

Judge Jackson approved the Olam and Birdsong settlements on April 5, 2021. Notice had gone to 9,369 prospective class members beginning January 12. At the fairness hearing on March 25 the parties reported no objections from any class member, and three individuals or entities opted out. The court found that the parties had nearly completed fact and expert discovery when they settled and that further litigation would be lengthy, complex and expensive.

At certification the farmers had told the court that the shellers’ own transactional purchase and contract data identified every member of the class. The notice the farmers’ lawyers filed with the Golden Peanut settlement included a three-page grower claim form. On May 14, 2021, the claims administrator, Angeion Group, mailed the notice to every potential class member found in the shellers’ data, with the claim form already filled in with that grower’s sales. Summary notices went out by email, press release, banner ads and social media, and the Georgia Peanut Commission reminded growers that claims were due July 13.

The Golden Peanut settlement received final approval on July 26, 2021, at a ten-minute hearing in Norfolk at which Clark, Justice, William London and liaison counsel Wyatt Durrette appeared for the class. Judge Jackson signed the approval order the next day. “Adjudication of plaintiffs’ claims has already proven costly,” he wrote, and “future appeals of any jury outcome are not only possible, but likely given the amount of money at stake.” The court closed the case that day, twenty-two months after the first complaint was filed.

The approved plan divides the money by what each farmer sold. After attorneys’ fees, litigation and administration costs, and service awards for the class representatives, the fund and its accrued interest will be “allocated among approved claimants” in proportion to each claimant’s recognized sales of runners to the three shellers during the class period. Angeion received 10,120 claims. It recommended approving 5,121 of them, covering about $2.91 billion in runner sales, and disallowing 4,999 for missing information or documentation, sales to other buyers, ineligible products, withdrawals and duplicates; no claimant contested its determinations. On November 24, 2021, Judge Jackson approved the 5,121 claims and authorized distribution of the fund’s balance, less a $100,000 reserve, to those growers “pro rata to the extent of their allowed sales,” to be made “as soon as can be reasonably accomplished.”

Four years after the case closed, Land and Hasty were still farming in Jackson County. At the Jackson County Farm City Banquet in 2025 they were named the county’s Cotton Farmers of the Year; D&M Farms by then covered 5,100 acres, about 60 percent of it irrigated.