On Aug. 1, 2014, a dairy-marketing cooperative, a dairy processor, and a milk bottler petitioned the Supreme Court for a writ of certiorari of Dean Foods Co. v. Food Lion.1 The petitioning companies—Dean Foods Company (Dean), National Dairy Holdings, LP (NDH), and the Dairy Farmers of America, Inc. (DFA) (collectively, petitioners)—are milk wholesalers defending themselves against price-fixing allegations brought by dairy retailers. The companies initially received summary judgment on the price-fixing allegations, but the U.S. Court of Appeals for the Sixth Circuit reversed and held the case should be allowed to proceed to trial. Now, the companies seek to restore summary judgment, and specifically seek review of the question of “[w]hether…a plaintiff must produce evidence of causation to defeat a motion for summary judgment, or whether a court may instead presume causation at summary judgment and permit the case to proceed to trial based on that presumption.”2

The companies argue that the question represents a significant conflict among the federal courts of appeals: Some courts, including the Sixth Circuit in Dean Foods, will presume causation at summary judgment so long as plaintiffs introduce issues of material fact relating to illegal conduct and harm; other courts require proof of a causal nexus between alleged illegal behavior and harm before they will allow claims to withstand summary judgment; and still other courts vacillate between the two approaches. The companies analogize the issue to the Supreme Court’s recent decisions in Twombly and Comcast,3 which clarified standards of proof at the pleading and class certification stages (respectively), and urge the court to shed light on another of the “critical stages of the pretrial sequence.”

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