In Re: Term Commodities Cotton Futures Litigation

Background

Glencore Ltd. and Viterra B.V. (formerly Glencore Agriculture B.V.), collectively referred to as Glencore, are class members in this litigation. Glencore described itself as the largest class member, representing an estimated 30% to 35% of the class’s damages relating to the May and July 2011 ICE cotton futures contracts. The defendants stated that Glencore’s damages alone were at least $200 million.

A protective order had required several filings, expert opinions, and deposition testimony to remain sealed. The protective order generally prevented class members such as Glencore from accessing those materials unless the parties voluntarily agreed to disclose them. Glencore moved to intervene under Federal Rule of Civil Procedure 24(b)(1)(B), which allows a nonparty to join a case when it has a claim or defense sharing a legal or factual question with the main action. Glencore sought intervention only to obtain access to the sealed materials and evaluate whether to opt out of the class.

Before this order, a stipulated order gave Glencore access to several categories of materials, including unredacted deposition transcripts, expert reports, portions of an expert report, and references to Glencore or class representative Mark Allen. Glencore stated that the remaining disputed materials included the reports and testimony of Dr. Craig Pirrong, Peter Egli, Matthew A. Evans, Dr. John D. Finnerty, and William E. May. The court described Dr. Pirrong’s opinions as addressing defendants’ ability to influence prices, whether contract prices were artificially high, and causation.

Parties’ positions

Glencore argued that it needed the disputed materials to evaluate whether the class’s expert could be relied on at trial and how the expert opinions addressed Glencore’s own claims. It also pointed to issues involving Allen, who was a former Glencore trader and the sole class representative, and to possible individual defenses concerning Glencore’s conduct and damages.

The defendants consented to Glencore’s requested access. The plaintiffs opposed it, arguing that giving Glencore extensive access to sealed materials could prejudice the class if Glencore opted out and used the information while pursuing its own settlement.

Court’s analysis and ruling

The court held that Glencore met Rule 24(b)(1)(B)’s threshold requirements because it was the largest class member and had a serious, distinct interest in materials concerning Allen’s conduct, Glencore’s planning, and possible individual defenses. The court concluded that Glencore should have the opportunity to understand what the experts had said about issues specific to Glencore’s potential liability and damages.

The court rejected the plaintiffs’ prejudice argument. It stated that whether to opt out was Glencore’s decision, that the plaintiffs had not shown that settlement was imminent, and that Dr. Pirrong’s opinions and methods would eventually become public if presented as live trial testimony.

The court granted Glencore’s motion to intervene. It ordered the plaintiffs and defendants to provide Glencore’s counsel of record with electronic copies of the entirety of Dr. Pirrong’s reports and testimony and the reports and testimony responding to his opinions by October 13, 2023. Glencore and its counsel remained bound by the protective order.

The court separately denied without prejudice, with leave to renew at a later date, Glencore’s request to extend its class opt-out deadline to 70 days after the order’s issuance. The Clerk was directed to terminate the pending intervention motion.