Judge refuses to dismiss Lischewski case

Published on
May 28, 2019

Former Bumble Bee CEO Chris Lischewski’s request to have a charge of price-fixing dropped was rejected by the judge overseeing the case.

A federal grand jury indicted Lischewski in May 2018, with the U.S. Department of Justice accusing him of conspiring to fix prices on canned tuna in the United States. The charge carries a prison sentence of up to 10 years. 

Last month, Lischewski’s lawyers argued the charge should be dismissed because of its “duplicity” – that the single count against him contains allegations of multiple crimes. Specifically, the government’s charge contains allegations of both price-fixing and anti-competitive behavior in regard to FAD-free branding.

“Because these two aspects of the purported conspiracy the government chose to allege in a single count will require different evidence at trial, the sole count of the indictment should be dismissed,” Lischewski’s lawyers wrote in a motion to dismiss the case.

However, in a ruling on Friday, 24 May, U.S. District Court Judge Edward M. Chen of the Northern District of California dismissed their argument.

“The critical question is whether, under a fair reading of the indictment, the FAD agreement is alleged as merely one of the means of furthering the price-fixing conspiracy,” he wrote. “The court has no difficulty so reading the indictment. In addition to the plain text of the indictment, there is a logical relationship between the conduct … and the price-fixing scheme.  By removing a product (FAD-free branded tuna) from the market that was more expensive to product and less profitable than other items (as defendant asserts), the conspirators could increase profits for limiting consumer choice to traditional tuna products which were the subject of the alleged price-fixing. Also, it allowed the defendants to achieve greater control over the tuna market as a whole by limiting the arena of competition.”

While Chen offered his opinion as to why the case should not be dismissed before trial, he said the ultimate decision on the argument being made by Lischewski’s attorneys should be left up to the jury.

“Ultimately, whether the FAD agreements furthered the alleged conspiracy is a question of fact for the jury and not appropriate for determination by a motion to dismiss,” Chen wrote.

Chen also denied all other arguments made by Lischewski’s attorneys in their request for the case’s dismissal, including rejecting a claim that Lischewski’s statements on FADs are protected by the First Amendment and a separate claim that agreements on FADs took place outside the statute of limitations.

In a separate ruling, Chen denied Lischewski’s request – made last month – to obtain draft agreements and notes from negotiations with the prosecution’s key witnesses. In his ruling, Chen said the defense team had not presented a compelling argument that the materials they were requesting contained exculpatory evidence.

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