Shana E. Scarlett

Exhibit 274 to a declaration Shana E. Scarlett filed on November 18, 2022, in In re Pork Antitrust Litigation was an internal Hormel email from 2015. “Markets have quickly risen which will force us to move our retails up,” it said, and “we expect the rest of the category to follow.” Between those two sentences the email set the number: “We need to move from $2.55 to $2.75/unit cost.” In March 2023, when Judge John R. Tunheim of the federal court in Minnesota certified a class of consumers who had bought pork from grocers and other resellers, he quoted the email among the evidence that market prices generally set each processor’s prices, so that the conspiracy the consumers alleged, if proven, would have raised prices across the board. For the point that the processors generally priced from the USDA base market price, with adjustments, he cited Exhibit 273 to the same declaration, seven lines of testimony.

Hagens Berman Sobol Shapiro filed the consumers’ class action in the District of Minnesota on June 28, 2018. It alleged that the country’s largest pork processors had controlled their output in lockstep to raise prices and had monitored one another’s production through Agri Stats, a company that collected competitively sensitive data from the processors and returned it to them in detailed reports. Scarlett was on the team that developed and filed the case. The consumers were “the first to file a complaint against the pork industry,” she later wrote, and they found the conspiracy with investigators and economists, without a Justice Department investigation or a leniency applicant to point the way. Scarlett represented the consumers through the pleadings, class certification and summary judgment, and she is one of the co-lead counsel the court appointed, with the Minneapolis firm Gustafson Gluek, to represent them.

All of the defendants still in the case have now agreed to settle with the consumers. The processors’ settlements total $212,065,000. Judge Tunheim gave final approval to the first two, with JBS and Smithfield, in 2022 and 2023; the other five, along with a settlement in which Agri Stats pays no money but agrees that any pork reports it publishes will carry aggregated, aged data and no sales reports, await a final approval hearing scheduled for December 11, 2026.

Sow Herds and Benchmarking Reports

The consumers’ case rested on what the processors did with their hog herds. Together the processors controlled more than 80 percent of the wholesale pork market. The consumers alleged that Smithfield had cut its domestic supply by two million market hogs a year, that Tyson had cut its sows by more than 25 percent between 2008 and 2009, and that Triumph Foods had reduced its herd by 24,500 sows in 2009. JBS, the plaintiffs alleged, reduced its sows in 2016 despite rising consumer demand and then reported that “pork prices were 18% higher year on year at the end of 2016, on the back of increased demand and output restrictions.”

Through Agri Stats’ benchmarking reports, they alleged, the processors could decipher which figures belonged to which competitor and so monitor one another’s production; the processors’ public statements about the need to cut production, they alleged, were aimed at one another and signaled solidarity. In October 2020 Judge Tunheim denied the processors’ joint motion to dismiss, holding that the amended complaints “sufficiently plead parallel conduct and a continuing violation to state plausible Sherman Act claims.”

Smithfield’s $75 Million and Two Trial Witnesses

The first processor to settle with the consumers was JBS, which agreed in 2021 to pay $20 million and to cooperate in the case against the others. When Judge Tunheim approved that settlement in September 2022, notice had gone by email to more than 100,000 people and by publication in English and Spanish to millions more, reaching an estimated 81.1 percent of the class, and no class member had opted out.

Smithfield, the largest of the processors, came next. Its talks with the consumers began in August 2021 and quickly stalled. They resumed in March 2022, and on April 18, 2022, at a mediation before the retired judge Layn Phillips, the two sides agreed on the material terms; they signed the agreement on August 4. Smithfield agreed to pay $75 million and to help the consumers prove their case against the rest: to pass along the discovery it gave other plaintiffs and the materials it gave government agencies pursuing similar allegations, to let the consumers take part in depositions of up to five of its witnesses, to help authenticate its documents for summary judgment or trial, and to bring two current employees to testify live at a trial, one to authenticate documents and one as a fact witness.

On September 27, 2022, Scarlett signed the motion and the supporting memorandum asking Judge Tunheim to approve the deal. The consumers priced it against Smithfield’s size: about $2.36 million for each point of its adjusted share of the market, compared with about $1 million a point for JBS. By then they had taken more than 60 depositions of the processors’ employees and alleged co-conspirators and had collected about 856 gigabytes of data, most of it from non-parties. That day Scarlett said: “Antitrust violations pose serious consequences for everyday consumers, and often they have absolutely no knowledge of the scheme behind the price tag.”

Judge Tunheim gave final approval to the Smithfield settlement on April 11, 2023. “The settlement class members’ positive reaction supports final approval,” he wrote; of millions of potential class members, “three have opted out, and none have objected.”

An Overcharge Passed Through to Shoppers

Certifying a class of consumers required proof of a different kind. The consumers bought pork through resellers, so they had to show that an overcharge imposed on the processors’ direct customers was passed on to them. Their economist, Dr. Hal Singer, built a multiple regression analysis that controlled for many factors that could lawfully raise pork prices, found that the processors had overcharged direct purchasers by about 12.8 to 15.3 percent, and traced those overcharges to indirect purchasers. He corroborated his findings with data from thirty-nine industry participants representing resellers across the pork supply chain. Judge Tunheim held that the analysis “satisfies the burden that indirect purchasers have to show both common impact and pass-through.”

The processors argued that too many members of the proposed classes had suffered no injury. Judge Tunheim answered: “Common questions predominate, so the alleged small number of uninjured class members is insufficient to defeat class certification.” The class he certified is made up of end consumers—people who bought pork indirectly from the processors, for their own use, at the last link in the distribution chain.

The processors also argued that the class could never be identified, because few shoppers keep records of the pork they buy, and fewer could say whether a defendant or some other packer had processed it. Judge Tunheim pointed to Dr. Singer’s testimony and to the class representatives’ own. Most of the twenty-nine consumers who had agreed to serve as representatives bought several pork products routinely, and from the same brands, so consumers could identify themselves as class members by affidavit.

The consumers also asked to try a second theory as a class: that the exchange of information through Agri Stats was itself an unreasonable restraint of trade, to be judged under the rule of reason. That theory required a market common to every class member. Judge Tunheim allowed that a consumer in Alabama “would likely not view pork sold in California as a viable alternative,” but held that to end the analysis there “would be to overlook the very purpose of the geographic market.” For that point he relied on Judge Stephanie A. Gallagher’s September 2020 opinion in Jien v. Perdue Farms, the Maryland wage case in which Scarlett represented poultry plant workers, which had treated the continental United States as the market for processing workers because the processors set pay on a national scale. The pork processors also operated nationally, so their market was the whole country, and it took in raw bacon and fresh or frozen bellies, loins, shoulders, ribs and pork chops. On March 29, 2023, Judge Tunheim certified the consumers’ class and appointed Hagens Berman and Gustafson Gluek as its counsel.

Seventy Percent of the Hogs

The defendants moved for summary judgment in June 2024. Judge Tunheim worked through a record of about 55,000 pages and nearly forty filings, and he heard nearly eight hours of argument over two days, December 12 and 13, 2024.

At summary judgment, which Judge Tunheim decided in a 232-page order in March 2025, the processors argued that the plaintiffs’ conspiracy theory ignored the role of “thousands of independent hog producers, who accounted for 70% of U.S. hog production during the Relevant Period.” Judge Tunheim pointed to evidence that the processors could control hog supply regardless. Some were vertically integrated, controlling “the entire life cycle of a hog, from hog production to harvest,” and could restrict supply directly by cutting their own production and by using contract restraints on the independent farmers who raised hogs for them; their market share let them influence supply indirectly, through prices. He noted that Smithfield had liquidated 130,000 sows in 2009, about 13 percent of its sow herd.

The judge wrote that “there is evidence suggesting that Defendants were communicating with one another about their harvest schedules and putting pressure on one another to reduce slaughter capacity.” He also wrote that the plaintiffs “have presented evidence that Defendants were able to make up higher costs from elevated hog prices by inflating pork prices.”

He wrote that Tyson’s “use and comprehensive deanonymization of Agri Stats reports is highly suspicious.” Tyson had made its full participation in Agri Stats depend on its rivals joining too, and the judge quoted the messages: “When I agreed to add the balance of our plants, you made the commitment to get JBS and Hormel completely onboard as well. How do we resolve?” and “Talk to me ‘after’ you get the Seaboard and Triumph commitments . . . Did you get Hormel to join Agristats yet??” A Tyson accountant turned the reports into spreadsheets of competitors’ yields, prices and costs, month by month and plant by plant, and assigned plant names to the anonymous participants. “Each non-Tyson participant on this file with a ‘name’ is a best guess,” one file read. Another tracked those competitors’ prices and rank every month for two years. Dr. Cabral, an economist the consumers relied on, found that the accountant’s guesses were right about 60 percent of the time.

Tyson answered that it used the reports to run its own plants better, looking for savings in freight, hog procurement, line speed and carcass and belly yields. Judge Tunheim acknowledged the lawful uses but wrote that he could not ignore “the suspiciousness of Tyson’s conduct.” Tyson, he noted, had called Agri Stats “the bible.” The evidence, he held, supported a reasonable inference that Tyson “used Agri Stats reports to monitor the conspiracy and keep domestic prices high.”

A Rule-of-Reason Claim for a Jury

The same opinion set out the two ways an exchange of information can figure in an antitrust case. It can serve as evidence of a price-fixing conspiracy; or, “if no price-fixing agreement can be proven, the information exchange can itself be an agreement, but its restraint on the market must be evaluated under the rule of reason.” The consumers had pleaded that second claim—that the exchange of information through Agri Stats reports unreasonably restrained competition in the U.S. pork industry—and had supported it with expert evidence. “Unlike the Consumer IPPs, who have provided expert evidence to support their rule of reason analysis,” Judge Tunheim wrote, the direct-action plaintiffs “have not provided similar evidence sufficient to recover on this alternative basis at trial.” The consumer class was the only group of plaintiffs permitted to proceed under the rule of reason. In Maryland, Judge Gallagher had allowed the poultry plant workers to plead the same kind of claim against Agri Stats.

Before the hearing, the United States filed a statement of interest. It took no side on the pending motions, but it told the court that a standalone information exchange is judged under a flexible rule of reason that weighs how sensitive, detailed, public and recent the shared data are. It warned: “Whether the shared information is aggregated is thus not a safe harbor from liability.”

Judge Tunheim found that the features of the Agri Stats reports posed a threat to competition. The data averaged about 45 days old, but monthly reports issued in mid-month carried figures only two weeks old, and a Data Miner tool let subscribers compare their own sales with competitors’ before the printed reports came out; Tyson described it as a pricing report “used extensively by [Tyson’s] pricing desk.” Only subscribers could see the reports, and Agri Stats sold them mostly to pork packers. If the USDA published the same kind of information, the judge wrote, he found it “difficult to understand why the Processor Defendants would pay large amounts of money to gain access to data that they could have otherwise accessed publicly for free.”

The economists the consumers relied on tied the reports to prices. Dr. Cabral explained that Agri Stats built price indexes so that each processor could compare its prices with the industry average for like products. Sales priced below the average were treated as “economic opportunities” for increases, and as the lowest-priced sales moved up to the average, “the new average price will be higher.” He pointed to a Smithfield presentation of price opportunities drawn from Agri Stats data and to Clemens emails in which an employee “increased the pricing significantly” after an Agri Stats review. Dr. Singer calculated that the consumer class had been overcharged by 12 percent, roughly $3 billion, over the class period.

The processors defended the reports as tools for cutting costs. The consumers answered that the savings came out of plant workers’ pay, since up to 70 percent of the processors’ costs went to labor, and they pointed the court to Brown v. JBS USA Food Co. in Colorado and to Jien in Maryland, the wage cases in which Scarlett represented beef, pork and poultry plant workers. Judge Tunheim wrote that he had “considered the alleged harm in the pork packing labor market as evidence undercutting Defendants’ arguments that Agri Stats reports have procompetitive benefits,” and he left the weighing of those benefits to a jury.

At the last step, the consumers had to show that whatever good the reports did could be achieved with less harm to competition. Dr. Cabral proposed six changes: drop the participant lists, stop reporting results company by company, open the reports to every market participant, pork buyers included, aggregate the export reports, tighten electronic security so that employees who changed firms could not reach old records, and wait longer before publishing. The processors called his proposals economic theory. Judge Tunheim held that a jury could weigh them, denied the processors’ motion on the rule-of-reason claim, and left for trial the question whether Agri Stats reports unreasonably restrained trade in the pork industry.

Chicken Executives and a $50 Tablet

Scarlett is Canadian, the daughter of the Canadian jurist Edward D. Scarlett. She earned a B.A. at the University of British Columbia and a J.D. at Stanford Law School, and between 2001 and 2007 she was an associate at Lieff Cabraser Heimann & Bernstein, Milberg Weiss Bershad Hynes & Lerach and Coughlin Stoia Geller Rudman & Robbins. She is now the managing partner of Hagens Berman’s Berkeley office, and her practice is devoted to representing plaintiffs, chiefly in antitrust cases.

In December 2019 Judge William Alsup of the Northern District of California appointed her one of the lead counsel for direct purchasers of Glumetza, a diabetes drug. The purchasers alleged that Santarus and Assertio had paid the generic maker Lupin to stay off the market until February 2016, promising not to sell an authorized generic of their own for a year after Lupin launched, and that in mid-2015, before generic competition arrived, Bausch raised the price of a tablet from about $6 to more than $50. Judge Alsup certified the class in August 2020. Weeks before the trial date the defendants agreed to settlements totaling $453.85 million, and in February 2022 he gave them final approval.

Besides the pork case, she has been co-lead counsel for purchaser classes in price-fixing cases against chicken, beef and turkey processors, and for plant workers in wage cases in Maryland and Colorado against many of the same companies. In the chicken case, in the Northern District of Illinois, she deposed processor executives and oversaw the motion for class certification. In the consumers’ beef case, settlements with Tyson for $55 million and Cargill for $32.5 million received final approval on May 27, 2026.

From Poultry Lines to Nuclear Plants

In Jien v. Perdue Farms, in the District of Maryland, Scarlett was co-lead counsel for poultry plant workers with Brent Johnson of Cohen Milstein Sellers & Toll and George Farah of Handley Farah & Anderson. The workers alleged that the largest poultry processors had conspired to hold down pay in their plants, in part by using Agri Stats to exchange current, plant-specific compensation data every month. The processors agreed to settlements totaling $398.05 million; on June 5, 2025, Judge Gallagher granted them final approval and appointed the three firms settlement class counsel. Agri Stats later settled with the workers by agreeing to remove labor information from its reports.

When the settlements were announced in January 2025, Scarlett pointed to the workers’ lack of alternatives: “In many instances, the jobs workers are able to find at processing plants may be their only options.” She said her team was proud of its work on the case, “including the investigation by the Department of Justice that was spurred from our findings.”

In November 2022 Hagens Berman filed a wage case for beef and pork plant workers in federal court in Colorado, Brown v. JBS USA Food Co., and Scarlett is co-lead counsel for the class. The workers allege that processors producing about 80 percent of the red meat sold in the United States, at roughly 140 plants, suppressed pay through secret meetings, compensation data shared through the consultant Webber, Meng, Sahl and Company and through Agri Stats, and agreements not to poach one another’s employees. The settlement class takes in workers in slaughtering, cutting and further processing, machine repair and line supervision at the defendants’ beef and pork plants from January 1, 2000, to February 27, 2024. Tyson ($72.5 million), JBS ($55 million), Cargill ($29.75 million), National Beef ($14.2 million) and other processors have agreed to settlements totaling $202.8 million, and Judge Philip A. Brimmer has scheduled a hearing on final approval for November 13, 2026.

The National Beef, Cargill and Hormel settlement agreements, $57.45 million together, went to Judge Brimmer for preliminary approval in September 2024 as exhibits to Scarlett’s declaration. When he preliminarily approved the workers’ settlement with Agri Stats on April 16, 2026, he appointed Hagens Berman co-lead counsel for the settlement class.

Scarlett is also among the lawyers for workers at nuclear power plants in Dorrell v. Constellation Energy Corp., filed in federal court in Maryland in July 2025 with lawyers from Handley Farah & Anderson and Cohen Milstein. Leo Dorrell was paid hourly by Virginia Electric & Power Company, a Dominion Energy subsidiary; John Dunn worked for Entergy. They allege that twenty-six nuclear power companies and two consulting firms held down pay by posting collective bargaining agreements to a password-protected website, by circulating compensation comparison reports that included “disaggregated and deanonymized information about Nuclear Defendants’ current wages,” and by holding annual meetings “where they discussed, suppressed, and fixed Class Members’ compensation.”

Pro Rata by Pork Bought

By the time Judge Tunheim ruled at summary judgment, the consumers had also settled with Hormel and Seaboard, for $4.465 million and $10 million. Clemens Food Group agreed in April 2025 to pay $13.5 million. Tyson, the last publicly traded company in the case, agreed in October 2025 to pay $85 million, the largest of the consumers’ settlements, and Judge Tunheim preliminarily approved it on November 7, 2025.

That left Triumph Foods and Agri Stats, and a trial. Judge Tunheim had set a trial in the pork case for May 4, 2026, and the consumers, Scarlett wrote, were preparing “at breakneck speed for a trial in 2026.” In December 2025 the Justice Department, which had its own suit against Agri Stats before the same judge, asked him to try the government’s case on that date; in February 2026 he scheduled it to begin May 4, leaving the timing of the pork jury trial to be set separately.

Scarlett described the last of those negotiations in a declaration she signed in Berkeley on March 31, 2026. The same day she and Joshua J. Rissman of Gustafson Gluek signed the motion asking Judge Tunheim to approve the Triumph and Agri Stats settlements. Talks with Triumph Foods began in June 2024 and ended with an agreement executed on March 3, 2026. Triumph agreed to pay $4.1 million and to cooperate at the trial against Agri Stats “with the authentication and admission of up to 50 documents.” The negotiations with Agri Stats, she wrote, went on for multiple months, if not years, before the parties reached a settlement on March 30, 2026. The two sides had first discussed a resolution in November 2024 and reached an impasse; talks went on through 2025 “with many stops and starts” over the reforms, and only in the spring of 2026, with a trial date set, did they spend weeks on the details, with economists helping the consumers identify the data fields the agreement would cover.

“These settlements are the last for the Consumer IPP class in this long-running litigation,” she wrote. Beside each payment she listed the processor’s adjusted share of the market: Smithfield 31.6 percent, JBS 22.6, Tyson 19.9, Seaboard 7.9, Triumph 7.6, Clemens 5.8 and Hormel 4.6. By then the consumers had deposed more than 90 of the defendants’ witnesses and 10 non-parties, received nearly 4 million documents and subpoenaed 79 non-parties. Judge Tunheim preliminarily approved both settlements on May 5, 2026. Consumers have until October 29, 2026, to file claims on the later settlements, ahead of the December 11 hearing on final approval.

The class covered by the later settlements takes in anyone who bought raw pork bacon, or raw pork made from bellies, loins, shoulders or ribs, or pork chops, indirectly and for personal consumption between June 28, 2014, and June 30, 2018, in twenty-three states and the District of Columbia whose laws allow indirect purchasers to recover damages. A claimant’s share would be pro rata, in proportion to the amount of pork bought, and those settlements take effect only if Judge Tunheim approves them and any appeals are resolved.

What Agri Stats May Put in a Pork Report

If Judge Tunheim approves it, the Agri Stats settlement will set rules for the reports themselves. Agri Stats agreed that every data value in its pork reports would combine data from at least three entities, with no entity supplying more than 70 percent; that every data field would consist of data at least 45 days old on average; that participant lists and flags would come out of the reports; and that it would stop publishing sales reports and non-public price data. It also agreed to retain an experienced outside attorney responsible for antitrust compliance and to train its employees in antitrust compliance every year. Agri Stats settled the chicken and turkey price cases in March 2026 as well, with conduct reforms of their own; Scarlett is co-lead counsel for purchaser classes in those cases too.

Agri Stats has said that it does not currently publish U.S. pork processing reports and has no plans to resume them. The rules apply if it does, for five years from the day it starts again, and it must give class counsel two weeks’ notice first. Its reports may carry no actual price or production-volume figures for any competitor or plant, and any category in which a value would rest on fewer than three firms must be suppressed. The consumers, Scarlett wrote, believe the reform “will have an enormous impact on pork pricing and pork production” if Agri Stats restarts its pork program.

Three of the six changes Dr. Cabral had proposed at summary judgment are in those terms: the participant lists come out, company-by-company results give way to figures pooled from at least three firms, and the data must age before any subscriber sees it.

The Justice Department sued Agri Stats on September 28, 2023, in the District of Minnesota, where the case was assigned to Judge Tunheim, and California, Minnesota, North Carolina, Tennessee, Texas and Utah joined the suit that November. The government alleged that Agri Stats had recruited the nation’s largest meat processors to send it competitively sensitive information about prices, output, costs and profit margins, which it redistributed among them, and that it “refused to sell its information to meat purchasers, as well as farmers, workers, and other entities.” Under the proposed final judgment filed in May 2026, Agri Stats could no longer offer sales reports; could report production, cost and labor data only as industry averages, overall or by quartile; would have to make every statistic at least 45 days old on average, and at least 90 days old for data on production decisions; and would operate under a monitor for up to seven years. It would also have to stop reporting the number and identity of a report’s participants and offer most of its reports to any interested purchaser on “reasonable and non-discriminatory terms,” a change Dr. Cabral had also proposed. The judgment takes effect only if the court enters it after a period of public comment.

When the Agri Stats settlements in the chicken, turkey and pork price cases were announced in March 2026, Scarlett said the cases had “directly contributed to a public shift in policy on how sensitive competitive data can be used.” In 2024 she served on the California Law Revision Commission working group that reported on concentration and competition in California; its report cited Agri Stats as an information-sharing service through which competitively sensitive data can be provided directly across large industries.