In the

United States Court of Appeals For the Seventh Circuit ____________________

No. 22-1858 AMORY INVESTMENTS LLC, et al., Plaintiffs-Appellants,

v.

UTRECHT-AMERICA HOLDINGS, INC., et al., Defendants-Appellees. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16 C 8637 — Thomas M. Durkin, Judge. ____________________

ARGUED JANUARY 6, 2023 — DECIDED JULY 21, 2023 ____________________

Before EASTERBROOK, ST. EVE, and KIRSCH, Circuit Judges. EASTERBROOK, Circuit Judge. Plaintiffs contend in multiple consolidated suits that many firms in the broiler-chicken busi- ness formed a cartel. The district court concluded that these claims require a trial. In re Broiler Chicken Antitrust Litigation, 290 F. Supp. 3d 772 (N.D. Ill. 2017); 2023 U.S. Dist. LEXIS 113271 (N.D. Ill. June 30, 2023). Third-party discovery in that ongoing suit turned up evidence that Rabobank, a lender to 2 No. 22-1858

several broiler-chicken producers, urged at least two of them to cut production. This led some plaintiffs to add Rabobank as an additional defendant. (Like the district court, we use “Rabobank” as an umbrella term for Utrecht-America Hold- ings, Inc., and its subsidiaries Coöperatieve Rabobank, U.A.; Rabo AgriFinance LLC; Rabobank USA Financial Corp.; and Utrecht-America Finance Co.) But the district court deemed the complaint against Rabobank too thin to state a claim, and it dismissed an amended complaint as well. 2022 U.S. Dist. LEXIS 78421 (N.D. Ill. Feb. 11, 2022). The court entered a partial final judgment under Fed. R. Civ. P. 54(b), see 2022 U.S. Dist. LEXIS 78638 (N.D. Ill. Apr. 29, 2022), from which eight of the plaintiffs have appealed. Plaintiffs’ claims rest on §1 of the Sherman Act, 15 U.S.C. §1, which bans combinations and conspiracies in restraint of trade. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court recounted and reaffirmed a line of cases hold- ing that §1 forbids only agreements and does not reach uni- lateral action. To state a §1 claim, Twombly held, the complaint must plausibly allege that the defendants have agreed with each other, not simply that they have reduced output in par- allel or otherwise evinced an understanding that lower output implies higher prices and (potentially) higher profits. The district judge thought that the complaint against Ra- bobank foundered for the same reason as the complaint in Twombly: all the plaintiffs allege is that Rabobank set out to protect its interests through unilateral action. The complaint does not allege that Rabobank served as a conduit for the pro- ducers’ agreement, that it helped them coordinate their pro- duction and catch cheaters (the bane of any cartel), or even that Rabobank knew that the producers were coordinating No. 22-1858 3

among themselves. (The trial of the main claim lies ahead, and perhaps a jury will determine that the producers did not form a cartel. For current purposes, though, we must assume that they did—though we need not assume that Rabobank knew it, for the complaint does not allege that knowledge.) Although the district court dismissed the complaint against Rabobank on the pleadings, it effectively granted summary judgment. The two procedures merged because, be- fore filing their complaint against Rabobank, plaintiffs had the benefit of discovery against Rabobank in the main suit against the producers. So if there is a plausible claim to be made, the district judge thought, plaintiffs should not have had any trouble making it. Yet the complaint does not allege that Rabobank facilitated an agreement among producers or helped with its enforcement. Instead the complaint alleges two varieties of evidence. One is a flurry of emails among managers and other employ- ees at Rabobank observing that lower output and higher prices in the broiler-chicken market would improve the bank’s chance of collecting its loans. The other is a pair of emails from Adriaan Weststrate, the head of Rabobank’s poul- try-lending section, to executives at producers Perdue and Pil- grim’s Pride. Weststrate told Perdue: “You can count on us to help you in any way possible to get through this down cycle, including preaching the gospel to other poultry companies.” The next day Weststrate used the same word in an email to an executive at Pilgrim’s Pride, telling him that chicken price in- creases and corn price decreases were “unfortunately un- likely so we are left with the old ‘production cuts’ gospel!!” Like the district judge, we see in these emails nothing but unilateral action by Rabobank. The intra-Rabobank emails 4 No. 22-1858

could not have promoted or facilitated cooperation among producers. And Weststrate’s two messages did nothing be- yond remind the producers of something they doubtless learned in Economics 101: as long as demand curves slope downward, lower output implies higher prices. Delivering a lesson in microeconomics does not violate the Sherman Act. A violation depends on agreement, as Twombly stressed, and unilateral action or advice differs from agreement. See also, e.g., United States v. Colgate & Co., 250 U.S. 300 (1919). That’s really all there is to the claim against Rabobank. We do not doubt that banks and other intermediaries can be liable under §1 if they facilitate the making or enforcement of an agreement among producers. But the only evidence to which this complaint adverts does not plausibly imply that Ra- bobank did any such thing, so the judgment in its favor is AFFIRMED.