On Thursday, tuna maker Bumble Bee Foods (Bumble Bee) announced that it has filed for Chapter 11 bankruptcy protection, according to a CNBC report. Pursuant to the bankruptcy agreement, FCF Fishery, a Taiwan-based fishery and the company’s largest creditor, will be purchasing its assets for approximately $925 million.
Specifically, FCF Fishery will be putting up $275 million in cash and $638.5 million in debt. However, the risk is that now that FCF’s bids are public, there’s always the potential for other companies to present higher or better-looking offers while the company is undergoing bankruptcy protection through the power of the “automatic stay.”
The “Automatic Stay”
The U.S. Bankruptcy Code provides for a remedy under 11 U.S.C. §362 known as the “automatic stay.” The automatic stay comes into effect immediately upon the debtor’s bankruptcy filing without the need for any court order.
But to those following the company’s year-long history of addressing and settling criminal and civil lawsuits related to antitrust and price-fixing allegations, this news doesn’t really come as much of a shock.
For those wondering why this company is making bigger headlines, Bumble Bee, along with two of its competitors, Chicken of the Sea and Starkist contribute 80 percent to the industry’s tuna that is sold in cans and pouches—and with the three biggest tuna distributors conspiring to increase and fix its prices—a big no no and a huge antitrust issue that violates the very sanctity of our free market.
Since 2017, the company has been subject to heavy legal sanctions by the U.S. Department of Justice, pleading guilty to price-fixing and forming a cartel with Chicken of the Sea and Starkist. The company was fined $25 million by the DOJ, according to the bankruptcy filing.
But aside from its legal and criminal troubles, the company also has a plate full of civil lawsuits to address, also related to anti-trust violations and price-fixing.
Sysco and U.S. Foods v. Bumble Bee and Chicken of the Sea and Starkist
Earlier this year, Bumble Bee settled another lawsuit with Sysco and U.S. Foods, the U.S.’s largest food distributors, out of court in a confidential settlement agreement.
Sysco Corp., a Houston-based food distributor, along with U.S. Foods, have alleged that the corporate owners of Bumble Bee, StarKist, and Chicken of the Sea conspired to raise its prices, despite the drop in demand for tuna sold in cans and pouches, to help sway profits, knowing that the three companies supply about 80 percent of the nation’s processed tuna.
According to the U.S. Department of Agriculture, data shows that consumption of canned tuna has dropped 42% per capita from the last 30 years through 2016. And for some reason, millennials are being blamed, according to a Wall Street Journal report. For some reason, younger consumers just want fresher or more convenient options.
“A lot of millennials don’t even own can openers,” said Andy Mecs, the vice president of marketing and innovation for Starkist. And he’s not wrong. Ironically, I own an electric can opener, because who has the time to manually open them these days.
But whether we are talking about these tuna companies or other packaged food brands such as Campbell Soup and Kraft Heinz, younger consumers have an evolving taste bud that forces the industry to cater to these changing tastes much faster than anticipated.
Convenience will always trump logic, there’s no doubt about that. Recognizing the impulsive nature of younger consumers, you have to hand it to Bumble Bee, Starkist, and Chicken of the Sea for trying to turn the tuna industry around—but hell, do it legally.
The companies, which filed separate lawsuits, alleged that the tuna manufacturers, including Chicken of the Sea and Starkist recognized the importance its products had with consumers, as consumers would use them interchangeably.
The answer to this, unethically of course, was to for the three companies along with their parent companies, to fix their prices so no one company could raise its prices above the other, without the risk of customers abandoning its product. In other words—completely illegal, unethical, and anti-competitive conduct that defeats the very purpose of competition and our free market economy.
“The solution they embraced in 2004 was to enter into an unlawful agreement to increase prices of shelf-stable tuna sold to plaintiff and others in the United States by, among other conduct, coordinating price increase announcements or pricing terms, secretly and collusively exchanging pricing information and prospective pricing announcements and business plans, and collectively reducing quantity and restraining output,” the US Foods complaint said.
Back in January, Starkist settled its civil lawsuit with Walmart on…wait for it…price-fixing allegations, agreeing to pay Walmart $20.5 million to resolve all of the company’s antitrust claims brought by Walmart.