Shana E. Scarlett

BERKELEY - Shana E. Scarlett represents consumers bringing class actions accusing companies of price-fixing, wage suppression, cartel behavior and other antitrust violations. Over the last several years, she has noticed a dramatic change in her cases.

"It's been fascinating for me to watch companies' data replace the smoke-filled rooms that we saw 20 years ago," she said. That change in what her cases allege to be antitrust violations "is one of the most striking developments in my practice in the past five years."

Five years is about how long she has been suing meat producers and distributors for colluding to fix prices. She represents consumers in pork, beef and broiler chicken class actions and direct purchasers of wholesale turkeys in another class action.

A defendant in several of those cases is Agri Stats Inc., which she describes as "a very secret company" that collects detailed information from the agriculture companies that it then shares in reports to them. "It's our allegation that this information was too detailed, too current and allowed the defendants to see insights into their competitors they wouldn't otherwise be able to."

In May, a federal judge in Chicago certified classes in the broiler case. Scarlett has already recovered about $191 million in settlements for her clients there. In re Broiler Chicken Antitrust Litigation, 1:16-cv-08637 (N.D. Ill., filed Sept. 2, 2016) Earlier this month, she argued for preliminary approval of a settlement in the pork case. In re Pork Antitrust Litigation, 0:18-cv-01776 (D. Minn., filed June 28, 2018)

Scarlett alleges that similar information from a different data service was being shared among chicken slaughterhouse companies. "Those competitors then used that detailed information on a position-by-position basis to suppress wages of the workers in the poultry plants," she said. Jien v. Perdue Farms Inc., 1:19-cv-2521, (D.C. Md., filed Aug. 30, 2019).

There is a lot of data involved in these matters. Just for the pork case, she and her team sent out 79 subpoenas to defendants and nonparties and collected 847 gigabytes of raw data.

Data, and lots of it, also is at issue in the class action accusing Facebook of monopolization. Which data and how much "is literally the subject of discussions on a day-to-day basis," Scarlett said. Kupcho v. Facebook Inc., 3:20-cv-08815 (N.D. Cal., filed Dec. 11, 2020).

How competitors use data "will be the number one thing that I watch out for going forward," she said. "One way or the other, I hope that there's law that comes out of [these cases] that provides perhaps clarity for companies or clarity for the plaintiffs' bar."