United States Court of Appeals

For the Eighth Circuit

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No. 15-3089

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In re: Wholesale Grocery Products Antitrust Litigation

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Colella’s Super Market, Inc.

lllllllllllllllllllllMovant - Appellant

v.

SuperValu, Inc.; C&S Wholesale Grocers, Inc.

lllllllllllllllllllllDefendants - Appellees

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No. 15-3174

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In re: Wholesale Grocery Products Antitrust Litigation

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JFM Market, Inc.; MFJ Market, Inc.

lllllllllllllllllllllPlaintiffs - Appellants

v.

SuperValu, Inc.

lllllllllllllllllllllDefendant - Appellee
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Appeals from United States District Court 

for the District of Minnesota - Minneapolis

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Submitted: May 17, 2016

Filed: March 1, 2017

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Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

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RILEY, Chief Judge.

Several retail grocers sued two large full-line wholesale grocers for violation

of the Sherman Act, 15 U.S.C. §§ 1, et seq. The retailers sought to represent two

putative classes, the Midwest class and the New England class. Each class had an

Arbitration Subclass of retailers who had arbitration agreements with their respective

wholesaler. The district court dismissed the purported representatives of the

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Arbitration Subclasses from the case, and we reversed. See In re Wholesale Grocery

Prods. Antitrust Litig., No. 09-MD-2090, 2011 WL 9558054, at *1 (D. Minn. July 5,

2011) (unreported); King Cole Foods, Inc. v. SuperValu, Inc. (In re Wholesale

Grocery Prods. Antitrust Litig.), 707 F.3d 917, 919 (8th Cir. 2013). 

By then the district court had rejected the proposed Midwest and New England

classes and granted the defendants’ motion for summary judgment. See In re

Wholesale Grocery Prods. Antitrust Litig., No. 09-MD-2090, 2012 WL 3031085, at

*8 (D. Minn. July 25, 2012) (unreported); In re Wholesale Grocery Prods. Antitrust

Litig., No. 09-MD-2090, 2013 WL 140285, at *1 (D. Minn. Jan. 11, 2013)

The Honorable Ann D. Montgomery, United States District Judge for the

1

District of Minnesota.

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(unreported). The Midwest class representative appealed, but the New England class

representative did not. We reversed, ordering the district court to consider a narrower

Midwest class. See D & G, Inc. v. SuperValu, Inc. (In re Wholesale Grocery Prods.

Antitrust Litig.), 752 F.3d 728, 729, 736 (8th Cir. 2014). On remand, Colella’s Super

Market, Inc. (Colella) moved to intervene to join MFJ Market, Inc. and JFM Market,

Inc. (collectively, Village Market), the New England Arbitration Subclass

representative, in seeking to certify a narrower New England class. The district court

denied the motion and announced it would not consider any new class of New

England plaintiffs. Before us are Village Market’s and Colella’s consolidated

appeals.2

I. BACKGROUND

In 2003, wholesale grocery suppliers SuperValu, Inc. (SuperValu) and C&S

Wholesale Grocers, Inc. (C&S) (collectively, appellees or wholesalers) entered into

an Asset Exchange Agreement (AEA). C&S had recently purchased Fleming

Companies, Inc.’s (Fleming) Midwest wholesale grocery business assets out of

bankruptcy. In the AEA, C&S sold Fleming to SuperValu and C&S purchased

SuperValu’s New England business. Among the assets exchanged were supply

agreements and arbitration agreements between each wholesaler and a number of its

retail customers(the swap). The AEA also contained allegedly secret reciprocal noncompete provisions. Several retailers sued SuperValu and C&S, alleging the AEA

We have appellate jurisdiction of Colella’s appeal under 28 U.S.C. § 1291. 

2

See also Am. Civil Liberties Union of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d

1088, 1092 n.2 (8th Cir. 2011) (“The district court’s order denying the . . . motion to

intervene of right is immediately appealable as a final judgment.”). We address our

lack of authority to hear Village Market’s appeal below. We need not decide whether

the relevant time limit is jurisdictional or could have been forfeited, because in this

case it was timely raised and preserved. Cf., e.g., Coco v. Inc. Vill. of Belle Terre,

448 F.3d 490, 491-92 (2d Cir. 2006) (per curiam) (reserving the question in similar

circumstances).

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violated the Sherman Act, 15 U.S.C. §§ 1, etseq., because it unlawfully allocated the

New England market to C&S and the Midwest market to SuperValu.

The retailer-plaintiffs proposed two classes: Midwest SuperValu customers and

New England C&S customers. DeLuca’s Corporation (DeLuca) was the putative

New England class representative and D&G, Inc. (D&G) was the putative Midwest

class representative. Each class had an “Arbitration Subclass” of retailers who had

arbitration agreements with their current wholesaler during the class period, and thus

could only sue their pre-swap wholesaler. Village Market was the representative of

the putative New England Arbitration Subclass. 

In July 2011, the Arbitration Subclasses were dismissed from the case, the

district court having determined the nonsignatory defendants (the pre-swap

wholesalers) could each enforce against the plaintiffs the arbitration agreementsthey

had assigned to the other. See In re Wholesale Grocery Prods. Antitrust Litig., 2011

WL 9558054, at *3, *6. In February 2013, we reversed. See In re Wholesale Grocery

Prods. Antitrust Litig., 707 F.3d at 919. 

By the time the Arbitration Subclasses were reinstated in February 2013, the

class certification for the broader New England and Midwest classes had been denied,

and the district court had granted summary judgment in favor of the defendants

against D&G and DeLuca as individual plaintiffs (in July 2012 and January 2013,

respectively). See In re Wholesale Grocery Prods. Antitrust Litig., 2012 WL

3031085, at *8; In re Wholesale Grocery Prods. Antitrust Litig., 2013 WL 140285,

at *1. D&G appealed the summary judgment ruling, but DeLuca did not. 

In May 2014, we affirmed the district court’s denial of the Midwest class

certification, but reversed and remanded the grant of summary judgment against

D&G, and ordered the district court to consider a narrower class of Midwest plaintiffs

(Champaign class). See In re Wholesale Grocery Prods. Antitrust Litig., 752 F.3d at

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736. The case was remanded on August 26, 2014, after rehearing and rehearing en

banc were denied. 

The issues on remand were referred to a magistrate. The issue of the

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Champaign class was pending, and an additional complaint had been filed by two

putative classes of Midwest plaintiffs. Nemecek Markets, Inc. (Nemecek) proposed

to represent a class of retailers serviced by SuperValu’s Green Bay, Wisconsin,

distribution center. Elkhorn-Lueptows, Inc., Jefferson Lueptows, Inc., and East Troy

Lueptows, Inc. (collectively, Lueptows) proposed to represent a class of retailers

serviced by SuperValu’s Pleasant Prairie, Wisconsin, distribution center. On October

24, 2014, Colella moved to intervene to seek certification of a narrower New England

class (Greater Boston class) in concert with Village Market, the New England

Arbitration Subclass representative. 

The magistrate judge permitted the Midwestern Champaign, Nemecek, and

Lueptows plaintiffs to seek certification of their narrower classes. The magistrate

judge denied Colella’s motion to intervene. The distinguishing factor was that the

district court’s rejection of the broader New England class had never been appealed. 

While we remanded the question of the Midwest class certification after D&G

appealed, there was no such order relating to the New England class. The magistrate

judge noted “Defendants have litigated this matter without the involvement of New

England Plaintiffs since February 2013 and without Colella’s involvement since the

litigation’s inception.” The magistrate judge decided Colella’s motion was untimely,

and even if it were timely, Colella would have no right to intervene. The magistrate

judge explained “Colella’s has not provided reason for unduly delaying its attempt

to intervene. . . . If an unnamed class member wished to appeal the . . . denial [of class

Meanwhile,the issue ofthe Arbitration Subclasses was back before the district

3

court on remand. The district court rejected two alternative theories offered by the

wholesalers in support of their motion to dismiss the Arbitration Subclasses, and the

wholesalers appealed again. In a separate opinion, we affirmed.

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certification], it would have been appropriate to seek intervention” within thirty days

of the district court’s order. Moreover, Colella was not entitled to intervene as a

matter of right because it had no recognized interest in the litigation since the New

England plaintiffs were out of the case. The magistrate judge reasoned Colella was

free to file its own suit and would suffer “no preclusive effect” of the previous case

since Colella was “a non-party and absent putative class member.” 

The parties presented to the district court objections to the magistrate judge’s

rulings. SuperValu was concerned the magistrate judge’s order did not explicitly

determine whether the New England plaintiffs would be permitted to seek

certification of a narrower class and requested the district court clarify they could not. 

The district court ruled the magistrate judge “sufficiently and correctly determined

that the New England Plaintiffs may not relitigate certification for a New England

Class” and agreed with the magistrate judge that allowing Colella to intervene

“‘would give New England Plaintiffs an unwarranted second bite at the classcertification apple.’” The district court explained that the New England Arbitration

Subclass’s interests were protected by the broader New England class even while the

subclass had been dismissed from the case and not yet reinstated. The district court

also rejectedColella’s and Village Market’s argument that D&G represented the New

England class’s interests when it appealed the denial of certification as to the

Midwest class. The district court accepted the magistrate judge’s recommendation

that the Midwest plaintiffs be permitted to seek certification of narrower classes. 

Colella and Village Market (appellants) appeal, arguing they should not be

bound by DeLuca’s failure to appeal the denial of the New England class

certification, because Village Market, asthe Arbitration Subclassrepresentative, had

been dismissed from the case and was not reinstated by our ruling until after the

larger class was denied certification.

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II. DISCUSSION

A. Interlocutory Appeal on Class Certification

Except in a few special situations, we do not review district court rulings that

are not yet final. See 28 U.S.C. §§ 1291, 1292. We “may,” however, “permit an

appeal from an order granting or denying class-action certification” under Federal

Rule of Civil Procedure 23(f), if the would-be appellant petitions for permission

“within 14 days after the order is entered.” Village Market filed such a petition after

the district court entered its order refusing to consider certifying the Greater Boston

class. That ruling did not purport to be “an order granting or denying class-action

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certification.” Fed. R. Civ. P. 23(f). Nor did it function as one, as by “open[ing] up

[a] class to individuals . . . beyond the more limited group [originally included],”

Glover v. Standard Fed. Bank, 283 F.3d 953, 959 (8th Cir. 2002), or otherwise

“‘materially altering a previous order granting or denying class certification,’”

Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 559 (7th Cir. 2016) (quoting Matz v.

Household Int’l Tax Reduction Inv. Plan, 687 F.3d 824, 826 (7th Cir. 2012)). Rather,

right or wrong, the district court emphatically left the status quo—no class

certification for the New England plaintiffs—untouched (and untouchable): “the

denial of a New England Class was not appealed and is final, and the New England

Plaintiffs are not permitted to pursue class certification of a narrower New England

Class.”

We therefore have no discretion to hear Village Market’s appeal under Rule

23(f), as our sister circuits have unanimously concluded in analogous situations. See,

e.g., id. at 559-60 (dismissing an attempted appeal because “the district court made

no ruling that altered, in any meaningful sense, its earlier decision”); Nucor Corp. v.

Brown, 760 F.3d 341, 343 (4th Cir. 2014) (“The district court’s post-certification

We are not bound by the summary decision of an administrative panel of this 4

court to grant Village Market’s petition and docket its appeal. See In re Rodriquez,

258 F.3d 757, 758-59 (8th Cir. 2001) (per curiam).

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orders never altered the status of the [relevant] class and thus were not orders

granting or denying certification as to that class.”); Fleischman v. Albany Med. Ctr.,

639 F.3d 28, 30-31 (2d Cir. 2011) (per curiam); In re DC Water & Sewer Auth., 561

F.3d 494, 496-97 (D.C. Cir. 2009); Gutierrez v. Johnson & Johnson, 523 F.3d 187,

194 (3d Cir. 2008); Jenkins v. BellSouth Corp., 491 F.3d 1288, 1291-92 (11th Cir.

2007); Carpenter v. BoeingCo., 456 F.3d 1183, 1191-92 (10th Cir. 2006); McNamara

v. Felderhof, 410 F.3d 277, 281 (5th Cir. 2005). By its clear terms Rule 23(f) has no

application in the absence of “an order granting or denying class-action certification,”

and the only such order here was the district court’s original rejection of the New

England class, which was entered many more than fourteen days before Village

Market filed its petition.

That Village Market planned to seek consideration of the “much narrower”

Greater Boston class, rather than “re-litigat[ion] [of] the same class of all New

England grocers which was previously denied,” as emphasized in its briefing, is no

reason to treat the district court’s later order as “granting or denying class-action

certification.” What mattersis not what Village Market wanted, but what the district

court actually did in the order at issue. Otherwise, if a dissatisfied party could reset

the clock simply by coming up with a new way of defining a class and having the

district court reject it, Rule 23(f)’s strict time limit for seeking interlocutory review

of a class-certification decision would be so easily circumvented as to be practically

meaningless. See, e.g., DC Water & Sewer Auth., 561 F.3d at 496-97 (“To hold

otherwise would leave Rule 23(f)’s deadline toothless.”); Carpenter, 456 F.3d at 1191

(“We recognize that Rule 23(c)(1)(C) permits the district court to alter or amend a

certification decision. And parties may suggest such changes as the factual record

and legal theories develop. All we are saying isthat there can be no Rule 23(f) appeal

from the denial of such a suggestion. An order that leaves class-action status

unchanged from what was determined by a prior order is not an order ‘granting or

denying class action certification.’”); cf. Fleischman, 639 F.3d at 30-31 (dismissing

an attempted appeal by plaintiffs who, like Village Market, unsuccessfully sought

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certification of a new, narrower class after the district court first refused to certify a

broad class on certain issues).

In reaching this conclusion, we express no view on the substantive concerns

Village Market raises—particularly the significance of its not having been a party to

the case while class-certification was litigated, the logic of making filing (and

presumably losing) an appeal from the original denial of certification a prerequisite

to trying to cure the defects of the overbroad New England class by proposing a

narrower alternative, and the propriety offoreclosing any further consideration of any

New England class regardless of how the case develops. Nor do we opine on the

availability of other forms of prejudgment relief in light of Village Market’s

consistent and exclusive reliance on Rule 23(f) as the vehicle for its challenge here

to the district court’s ruling. But we must dismiss this appeal.

B. Intervention

The district court’s ruling on the timeliness of a motion to intervene is

reviewed for abuse of discretion. See Am. Civil Liberties Union of Minn. v. Tarek

ibn Ziyad Acad., 643 F.3d 1088, 1093 (8th Cir. 2011). In determining the timeliness

of a motion to intervene, “the district court should specifically consider:(1) the extent

the litigation has progressed at the time of the motion to intervene; (2) the prospective

intervenor’s knowledge of the litigation; (3) the reason for the delay in seeking

intervention; and (4) whether the delay in seeking intervention may prejudice the

existing parties.” Id. at 1094. 

We first consider the progression of the litigation. The magistrate judge

observed this litigation was fairly advanced because “[t]he parties have briefed and

argued motions to dismiss, motions for summary judgment, and motions for class

certification; they have engaged in extensive discovery to support those motions; and

they have twice argued this case before the Eighth Circuit.” Cf. WaterLegacy v.

EPA, 300 F.R.D. 332, 343 (D. Minn. 2014) (highlighting “the parties have engaged

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in no discovery or motion practice and no proceedings regarding the merits of the

litigation have occurred”). This is not necessarily determinative, as an intervention

motion is not necessarily untimely even where the “litigation is nearly wrapped up”

or where the motion is “postjudgment or even post-appeal.” Tweedle v. State Farm

Fire & Cas. Co., 527 F.3d 664, 671 (8th Cir. 2008). 

Second, we consider Colella’s knowledge of the litigation, which the parties

dispute. This factor often weighs heavily in cases where the would-be intervenor was

aware of the litigation for a significant period of time before attempting to intervene. 

See, e.g., U.S. Bank Nat’l Ass’n v. State Farm Fire & Cas. Co., 765 F.3d 867, 869-70

(8thCir. 2014) (noting would-be intervenor knew oflitigation for twenty-one months

before filing its motion); Tarek ibn Ziyad Acad., 643 F.3d at 1094 (observing

potential intervenors knew of suit for fourteen months before filing motion). 

Here, the district court observed that “Colella’s counsel has participated in this

case since its inception, having served as counsel for DeLuca’s,” but counsel’s

knowledge before Colella became a client is not relevant. (Emphasis added). And

the magistrate judge proceeded under the impression that “[t]he parties agree that

Colella’s had knowledge of this litigation long before it moved to intervene.” 

Colella’s president signed an affidavit averring she “only learned of the existence of

the case in October, 2014.” It appearsthe district court did not consider this affidavit. 

Although we are concerned by this point, appellants in their opening brief do not

deny Colella knew about the litigation, and they only explicitly challenge the district

court’s failure to address the affidavit in their reply brief. See, e.g., Neb. State

Legislative Bd., United Transp. Union v. Slater, 245 F.3d 656, 658 & n.3 (8th Cir.

2001) (“‘[C]laims not raised in an initial brief are waived, and we generally do not

consider issuesraised for the first time on appeal in a reply brief.’” (quoting Mahaney

v. Warren County, 206 F.3d 770, 771 n.2 (8th Cir. 2000))). 

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The third factor, the reason for the delay in seeking intervention, is only

applicable to the extent Colella was in fact aware of thislitigation before it attempted

to intervene, as appellees assert and the district court concluded. Even some of

appellants’ arguments with respect to this prong of the analysis seem to accept the

premise that Colella was long aware of the litigation. Colella moved to intervene on

October 24, 2014, and appellants assert it could not reasonably have done so sooner. 

The district court agreed the pending appeal prevented Colella from pursuing

intervention between February 2013 and August 2014, but decided “Colella’s fail[ed]

to provide a convincing reason for not intervening before February 2013.” 

Appellants explain Colella had no reason “to intervene before the [summary

judgment order] went up on appeal in February, 2013. To the contrary, until the case

was dismissed, [Colella’s] rights were fully protected by the existing class action in

which New England representatives sought to represent all New England retail

grocers.” (Citation omitted). But appellants do not adequately explain why Colella

thought its interests were protected from July/August 2012 to February 2013. The 5

New England class certification was denied in July 2012, and in August 2012, D&G

asked for permission to certify a narrower class of Midwest plaintiffs. By August

2012, the district court explained, “there was absolutely no doubt that D&G was not

serving as class plaintiff for retailersin New England.” Appellants point out DeLuca

participated in the summary judgment proceedings, but once class certification had

been denied, DeLuca was acting as an individual plaintiff. As appellees argue,

“[o]nce the district court denied certification, ‘the putative class members had no

reason to assume that their rights were being protected. . . . [T]hey were notified that

they were no longer parties to the suit and they should have realized that they were

Colella was not a member of the New England Arbitration Subclass, which 5

would have prevented it from moving to intervene until our February 2013 opinion

reinstated the Arbitration Subclasses.

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obligated to file individual suits or intervene in the action.’” (Quoting Taylor v. 6

United Parcel Serv., Inc., 554 F.3d 510, 520 (5th Cir. 2008)).

Fourth, we consider the potential prejudice to appellees if Colella is permitted

to intervene, a factorthe district court concluded “disfavors intervention.” According

to appellants, “[a]dding Colella’s to the litigation will entail comparatively trivial

time and expense” because “the Defendants have all of Colella’s records of past

dealings, including full transactional records” and “Colella’s will provide no new

theories to the case.” Cf. Tarek ibn Ziyad Acad., 643 F.3d at 1094-95 (explaining

introduction of a new legal theory could support a finding of prejudice). Colella

points out it “is bound by the prior rulings and discovery,” including the future

discovery schedule, “so this Court’s and the District Court’s rulings on summary

judgment and discovery do not have to be revisited.” 

Ultimately, we are unpersuaded by appellants’ argument that the district court

abused its discretion in determining Colella’s motion to intervene was untimely. 

Although we are concerned by the district court not explicitly addressing Colella’s

affidavit concerning its knowledge ofthe litigation, Colella’s incomplete explanation 

about its knowledge of the litigation and its reason for any delay leaves us with more

questions than answers. We affirm the district court’s denial of Colella’s motion to

intervene as not an abuse of discretion.

Appellees insist “it [also] borders on preposterous for Colella’s counsel, who 6

also represented DeLuca’s, to argue that he was unaware until after the appellate

deadline expired whether his own client would continue to pursue class certification

or appeal from the judgment against it.” Also questionable is appellants’ insistence

that D&G’s notice of appeal fromthe summary judgment order did not “sen[d] a clear

signal that [Colella’s] legitimate interests on appeal—those relating to summary

judgment—were not protected.” Appellants contend D&G’s counsel was appointed

aslead counsel for the entire case. There were three co-lead counsel, which included

D&G’s counsel and DeLuca’s counsel. 

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III. CONCLUSION

Village Market’s appeal is dismissed. The judgment of the district court is

affirmed.

COLLOTON, Circuit Judge, concurring in the judgment.

I concur in the dismissal of Village Market’s appeal for lack of jurisdiction. 

Alternatively, even treating Village Market’s appeal as a petition for writ of

mandamus, I would deny relief. For the reasons stated in the separate opinion in No.

15-1786, Millennium Operations, Inc. v. SuperValu, Inc., Village Market should be

compelled to arbitrate its dispute with SuperValu pursuant to the arbitration

agreement between the parties. The district court thus did not err in declining to

permit Village Market to seek certification of a class in federal court.

Although I doubt that the motion of Colella’s Supermarket, Inc., to intervene

was untimely, once Village Market is compelled to arbitrate its dispute with

SuperValu, Colella’s is not entitled to intervene in this action. With Village Market

directed to arbitrate, Colella’s has no interest relating to the transaction which is the

subject of the remaining action, and disposition of the remaining action would not

impair or impede Colella’s ability to protect its interest. See Fed. R. Civ. P. 24(a). 

Colella’s is free to pursue its claim against SuperValu in a separate action.

For these reasons, I concur in the judgment.

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