Wheeler v. Pilgrim's Pride Corp.

claims) (unsecured pro their rata recov- because Class 5 is im- tors would know unliquidated claim becomes ery until paired, while 7 and prop- Classes 8 receive Despite uncertainty and lack of (causes fixed. action) erty from the estate. ex formula to convert an articulated ante law is contrary posi- settled to their executory damages contract’s into dol- tion. Because Class voted favor of the however, lars, impediment no there is plan, the absolute rule priority unambigu- confirming reorganization plan a ously does not apply Class claims. way. in this unsecured claims treated Ahlers, Worthington Norwest Bank v. also contend that the Appellants absence 963, 966, mechanism violates of a conversion (“the (1988) priority L.Ed.2d absolute 1123(a)(4), requires U.S.C. a provides dissenting rule class of “provide same treatment for the Plan provided unsecured must be creditors for particular or each claim interest of class” any junior full before can class receive holder to less agrees unless the favorable any property reorganiza- or retain under a According Appellants, with- treatment. (internal plan”) quotation tion and citations out a mechanism for conversion Classes omitted) added). (emphasis parties cannot determine if this fulfilled. provision will be This argument CONCLUSION 1123(a)(4) only re- is meritless. Section quires within equal treatment members Although delays measuring Class 7 having pri- class. Despite equal the same claims, the Plan properly specifies the ority, 7 and 8 are Class Class different treatment of 7 and Classes 8 and otherwise classes, “pro and the treats Plan them 1123(a)(3), complies §§ with 11 U.S.C. 510(b). required rata” as 11 U.S.C. 1129(a)(1). 1123(a)(4), Appellants’ oth- objections Plan er to the are meritless. B. members’ disclosures Subcommittee Accordingly, judgment of the bank- next assert Appellants ruptcy court is with 11 comply Plan does not U.S.C. AFFIRMED. 1129(a)(5)(A)(i) it fails to dis because Equity close the affiliation of the Subcom will be responsible

mittee members who pursuing litigation the securities 1129(a)(5)(A)(i) Section re

conclusion.

quires Plan to disclose: Cody WHEELER; Davis; Davey Don identity and affiliations of indi- Williams, Plaintiffs-Appellees, serve, proposed

vidual after confirma- director, officer, plan, tion of the as a debtor, an voting trustee of the affiliate CORP., PRIDE PILGRIM’S joint plan in a participating the debtor Defendant-Appellant. debtor, with the successor to the under plan debtor No. 07-40651. The Subcommittee members hold none Appeals, United States Court of Plan Accordingly, positions.

these Fifth Circuit. 1129(a)(5)(A)®. does not violate 15, 2009. Dec. Priority C. Rule Absolute contention Appellants’ final plan priority violates the absolute rule Tidwell, Tidwell, &

Kelly Brant Patton TX, Bass, Texarkana, Michael Christopher Bradley F. Loose Car- (argued), Thomas Liddell, Weber, Locke, Lord, Bissell & roll Dallas, L.L.P., TX, Plaintiffs-Appel- for lees. (ar- Bailey Taylor, D. E. Clayton

Mark Brauer, Douglas Alexander Max gued), McKenzie, Jay Utley, Forrest Baker & Dallas, L.L.P., TX, Parker Ains- Jennifer Knowles, worth, Wilson, Sheehy, Robert- Cornelius, TX, Pilgrim’s for Tyler, &son Corp. Pride Levy (argued), Heuer Michael Jonathan Justice, Staff, Raab, Dept, App. S. Div., DC, Washington, for U.S. Civ. Firm, Lange, Lance Belin Law Des IA, Moines, for Nat. Pork Producers Council, Amicus Curiae. Kushner, Frances

Gary J. Lorane He- Hartson, L.L.P., (argued), Hogan bert & DC, Institute, Am. Meat Washington, for Amicus Curiae. Tauber, E. Lackey, E. Michael

Andrew L.L.P., Jr., Brown, Washington, Mayer DC, Cargill Corp., Ami- for Meat Solutions cus Curiae. Austin, Sidley

Jay Jorgensen, Thomas L.L.P., Christopher MacAvoy, James LLP, DC, Tyson for Howrey Washington, Foods, Inc., Amicus Curiae. LLP, Ganzfried, Howrey Joseph

Jerrold DC, Poultry Foster Washington, for Farms, Amicus Curiae. Appeal Balto, Law David A.

David A. Office of This DC, Balto, Farming, for Washington, “grow” Plaintiffs chickens the defen- Organizations, Ranching, and Consumer producer brought dant poultry Amicus Curiae. suit with several claims that included the unlawful, unfair, “deceptive,

defendant’s capricious, arbitrary discriminatory” and 192(a) (b). § conduct violation of and A specific complaint another grow- was that given preferable er was a contract on JONES, Judge, Before Chief and terms, violating the PSA because it was an JOLLY, SMITH, REAVLEY, DAVIS, deceptive practice. unfair and trade The WIENER, BARKSDALE, GARZA, summary judgment, defendant moved for DENNIS, BENAVIDES, STEWART, in part that arguing requires the PSA ELROD, PRADO, OWEN, SOUTHWICK showing alleged practices have an HAYNES, and Judges.* Circuit effect adverse on competition. The dis- motion, trict court denied the holding that REAVLEY, Judge: Circuit showing no of adverse effect on competi- (b) necessary § tion is under of Once more a federal court is called to That PSA. court then allowed an in- say that the and Packers terlocutory appeal under U.S.C. Stockyards Act 1921 is to com- protect of 1292(b) § to question decide the therefore, and, petition only prac- those a plaintiff “whether an prove must adverse likely competition tices that will affect ad- effect on in order to prevail versely the Act. is violate That 192(a)-(b).” §§ under 7 U.S.C. This court holding. granted permission appeal. § appeal only This is concerned A panel this court that a plaintiff held Stockyards and Act Packers prove need not effect adverse on com (“PSA”) cope enacted in 19211to with mar- petition prevail under the statute. ket packing industry control of the meat Pilgrim’s v. Corp., Wheeler Pride (5th .2008). companies. five That section as it Cir en The banc court granted rehearing disagrees today, stands and with the codified as 7 U.S.C. panel and district court. set forth in appendix and referred to hereafter as codified. Congress has History Judicial amended the multiple times since its passage, including provisions additional Supreme The Court in 1922 refining scope, changing much its lengthy history began the courts jurisdiction agencies bring- of federal immediately after the PSA’s enactment ing additional under protection, industries with an effort enjoin its enforcement standing today U.S.C. 229c. 181— unconstitutionality. because of The follow- issue in language at this case ing year Supreme upheld Court Wallace.2, originally remains as en- PSA in Chief Justice Stafford any significant Taft, acted without change. Court, author of the opinion * Judge Judge KING and CLEMENT did not 2. 258 U.S. participate in this decision. L.Ed. 735 Pub.L. No. Stat. 159. opinion this 1922 of the Su- to We read government efforts of the

recounted to be the PSA purchasers preme Court decide cattle protect sellers competi- purchase protects because it control constitutional meat distribution, preparation, stock restraint opposes live tion and combinations great by the five products of meat and sale trade. of interstate the Chief Justice companies. As packing The Seventh Circuit interpreting said, helpful for us “[i]t in order to scope of the Act effect Circuit, great pack The Seventh where know the condi- validity its determine resided, have has fielded ing companies acted.”3 under tions the PSA. early applying the cases most of as the PSA aside an of the Secre Justice introduced In 1939 it set order The Chief packers “the of regulating Agriculture against preferential business tary and for- in interstate commerce cus done trades to some and allowed discounts [using to words bidding] engage them v. not to others. & Co. tomers and Swift (a)] discriminatory, or unfair, of subsection had declared Secretary The Wallace.7 commerce, or practices in such deceptive mate competition fact of not that the was any person to unreasonable subject to rial, decision the court held that the but therein, a number to do prejudice effect take into consideration the had to a prices to control or establish of acts upon disparate treatment had that in the He observed monopoly business.”4 and be competition between customers to object of the was secure that the and In 1961 that others. tween Swift farms and of livestock from the the flow Secretary’s against upheld the order court into and slaughtering to the center ranges to prices that had cut its packer a meat by collusion products meat unburdened destroy its com lessen ship- unduly prices lowered the to In & v. Benson.8 petitor. Wilson Co. unduly price to the increased the per argument price- that its reply to Wilson’s consumer. acquir purpose was not for the cutting previous opinion turns to Then eliminating competi a ing monopoly a cases, & particularly the 1905 case of tor, a prohibit Swift that the PSA did not States,5 where the Court Co. v. United lessening of competitive injury mere act of enjoined violations of an anti-trust legisla that the competition, the court said bidding by those who refrained from history supported of the PSA a wider tive buying each other in livestock against com prohibit unfair methods of power prices for of fresh meat. fixing the sale leg anti-trust petition than did antecedent held In 1962 Circuit “It islation. Seventh Supreme The Court concluded: competitor agreement that an allow Pack- framed the manifest hogs itself and another purchase with bid to Stockyards keeping Act in ers and in violated the PSA because applied principles announced competition, to eliminate where opinion in the ease.”6 result was Swift at at 403. (citing Chicago Trade v. United 6. 258 U.S. Id. Bd. of States, 38 S.Ct. (1918)). L.Ed. Cir.1939). (7th 7. 105 F.2d 848 at 401. 4. 258 U.S. 42 S.Ct. (7th Cir.1961). 8. 286 F.2d 891 49 L.Ed. 518 5. 196 in price potentially suppress competition dissemination of did not packer’s IBP, did not sufficiently to its dealers violate formation violate PSA. Inc. was to consum v. PSA because Glickman.13 to compete. rather than mate sale Swift upheld Circuit the Secre Ninth. States.9 & Co. v. United tary’s order against practice of a group packers required an who stock the Seventh Circuit set aside auction Agriculture stop- yards subject sell Secretary order of the cattle to the cattle passing government inspection, ping Company giving holding Armour and conspiracy that this was a of its bacon a 50-cent refund.10 created a consumers Secretary likelihood that harm practice deemed the to be would oc Judge cur. unfair violation of Sneed would have remanded for a further competi its return on bacon determination of the PSA because sales Jong Packing its costs. The court tive effects. De less than held Co. Unit Dep’t lack ed States pref- Agric.14 of fairness and unreasonable (a) prove erence did a violation of Industries,15 In Been v. O.K. the Tenth (b) of the PSA because Armour’s refund Circuit had it an appeal before with the program not violate the Act would absent question same as the one before us: does un- competition to eliminate intent 192(a) require proof practice that a in- might less be to lessen competi- the effect jures injure or is likely competition? to Lastly, rejected tion. the Circuit Seventh That recognized court that Congress had a claim the for an “unfair and under (c), (d) specific listed acts in subsections knowingly deceptive scheme” to sell “off- (e) expressly competition that restrain hams, there no condition” because could be whereas the same is not true of subsec- (a) legal under the claim PSA unless (a) (b), tions that but concluded compe- there was some intent to eliminate meant was left the courts to deter- to might tition or unless the effect lessen anti-competitive practices mine what could Trading Pac. competition. Co. v. Wilson unfair, unjustly discriminatory or de- & Co.11 ceptive. The Tenth Circuit followed the Five Other Circuits holding the other federal courts ad- dressing plaintiff to this issue a Eighth The Circuit in Farrow v. United challenges practice who a under Agriculture States held Department of injures that practice show the or is likely that a practice reduce likely injure competition. may competition practice be an unfair in PSA, the in violation of At trial of a in the even absence case Eleventh Circuit jury poultry that it that A company evidence had result.12 found that a had court, affirming later of that while terminating plain- decision violated PSA in rule, that held that an agreement by poultry growing feed- tiffs’ contracts without to give packing company justification. jury lot owners a economic then $164,000 first on the price plaintiffs damages. refusal sale of cattle awarded (7th 1962). (8th 1999). 308 F.2d Cir. 13. 187 F.3d 974 Cir. 9. States,

10. See & Co. United Armour v. 1980). (9th F.2d Cir. 14. (7th 1968). F.2d Cir. (10th Cir.2007). (7th Cir.1976). F.3d 1217 15. 11. F.2d (8th 1985). Cir. likely to award, prove conduct was defendants’ aside court set The district adversely matter of order to judgment as a law affect granting that failed show plaintiffs holding their claims under prevail on competi- had an effect termination Milling v. Philson Goldsboro PSA. after affirmed The Eleventh Circuit tion. perhaps opinion unpublished, Co.18 This judicial history and said reviewing the thought prec- no further the court because impact re- “[ejliminating needed on this issue. edent was long-time anti- ignore would quirement the backbone policies which formed trust Congressional Experience London v. Fiel- PSA’s creation.” Acquiescence Corp.16 The court concluded Farms dale plaintiff to show required that the PSA Wallace, understanding of v. An Stafford deceptive or unfair the defendant’s told, Taft and all of the as Chief Justice adversely competition or is affects practice above, judicial decisions noted becomes adversely competition. affect likely to clearer more we see the concerns and by the Eleventh applied This rule was enacting actions Meats, Tyson Fresh Pickett Circuit over years. the PSA amending Inc.,17 jury Tyson’s found where growing con- story began with the marketing agreement method of cattle conglomerates of meat-packing trol five of the cash price caused the purchases food from 1890 to interstate industries method, purchasing market used Act and Despite 1921.19 the Sherman Jus- jury The to be lower. found plaintiff, actions, the by Big tice 1916 Department inju suffered financial plaintiff substantial eighty Five of all inter- percent controlled judgment trial ry. The court rendered in the market and state commerce meat affirmed, appeals and the of Tyson, court slaughtered forty percent of all animals Ty the established that evidence because 1917, used in America.20 In Presi- legitimate jus interest for food son had business method, the tification for market consis the Feder- dent Woodrow Wilson directed its meet competition. with need to investigate tent the al Trade Commission to that the of The court reiterated industry to ascertain the meat-packing the upset was not to traditional the PSA facts restraints of trade what about of of contract. To principles freedom 1919, remedies could be taken.21 the despite unfair it could be added: six-volume, published three- Commission plaintiffs. on the effect how page report, explaining the thousand Big interstate meat- Five dominated the trial approved The Fourth Circuit the anti-competitive packing through market jury requiring plaintiffs instruction court’s Cong. (statement (11th Cir.2005). Rep. of 20. See 61 16. Rec. alia, Voigt) (citing, Report the inter of Federal Cir.2005). (11th 420 F.3d 1272 17. Packing on Meat In- Trade Commission the (1919)). dustry 96-2542, No. 1998 WL 18. (4th 5, 1998). U.S.App. Lexis 24630 Cir. Oct. (as the FTC to the President Letter from 21. (statement of Cong. H.R.Rep. See 61 Rbc. 1864-66 19. 66-1297, reprinted No. Legislation, Voigt); see Current Rep. also (1921)). (1922) (describing L.Rev. the 68-69 Colum. Big and effect Five had on the efforts the markets). food interstate combat, monopolistic designed behavior.22 statute was one of the Representative Sydney authors — of response Congress. The PSA was predatory Anderson —cited purchasing legislative surrounding debate patterns, on,” “wiring “split ship- supports the conclusion it was ments,” all of which anticompetitive were trade, designed to restraints on combat acts which were restraints of trade.24 everyone Secretary Agri- from the of of Congress testifying up culture members After 1921 and Congress has promote need of this statute amended seven times without mak- healthy competition.23 ing specif- any changes When asked that would affect “unfair, ically unjustly many what kind of interpretations dis- court cited above.25 criminatory, deceptive It practices” the is reasonable to conclude that Cong. Report (statement 22. See of Federal Trade Commis- 24. See 61 Rep. 1888. of Rec. (1919); Industry Packing Anderson). sion on the Meat see predatory purchasing (as Summary Report also of the FTC 31-32 Representative schemes Anderson described H.R.Rep. reprinted in at No. packers purchasing goods involved and live- (1921)) (stating monopoly Big that the higher-than-market stock at prices until com- agreement Five brought “is not a casual business, petitors driven were out of followed methods, by about indirect obscure but a by packers immediately dropping the positive conspiracy pur- definite and for the prices competitors once the had exited the pose regulating purchases live stock and "Split market. shipments” See id. involved ....”). controlling price of meat “purchases, whereby, through the inter- information, change split lots are made See, e.g., Hearing 23. Meat Packer: on H.R. price to sell at the same on different markets H.R. H.R. HR. H. B4ore Comm, regardless many packers (1921) of how are involved Agrie., Cong. 246 67th (statement Wallace, marketing purchase.” Henry Secretary C. Methods Meat absolute, ("I Agriculture) Packers, believe in free com- Control Used As Set Forth petition. you by legisla- Commission, So far as can do that the Federal Trade N.Y. Times, done[.]”); ought tion think it to be id. at I Aug. “Wiring prac- on” involved a (statement Anderson) (“What Rep. this bill shipper tice “whereby who forwards his live prohibit particular seeks to do is condi- stock from one to market another for the up, monopoly tions under which built and is securing price punished of a better is prevent monopoly place to in the and first regardless packer of which he sells to in the healthy competition.”); to induce see also 61 Id.; Stafford, second market.” see also 258 Cong. (1921) (statement Rep. Rec. 1801 of 495, 400, 42 at 66 L.Ed. Haugen) (stating that “the matters to be dealt packing industry] great the ques- [in are 74-272, (1935); 25. See Pub.L. 49 Stat. 649 monopolies tions of combinations and 85-909, 1, (1958); § Pub.L. 72 1749 Stat. practices competition, methods and of unfair 94-410, 3, (1976); § Pub.L. 90 Stat. 1249 usually great magnitude country of wide Poultry Producers Financial Act Protection of Cong. effect”); (state- in their 1863 Rec. 1987, 100-173, 3,§ Pub.L. Stat. ("While Voigt) Rep. large ment of there is Food, (1987); Conservation, Agriculture, packers country doing number of meat in this 1991, Trade Act Amendments of Pub.L. 102- business, an interstate it is understood that 237, (1991); § 105 Stat. legislation Big aimed is at the so-called Agriculture, Development, Rural Food and packers complete Five [who have] as a mo- Administration, Drug Agencies and Related nopoly packing of the meat as it business 106-78, possible Appropriation Act acquire for a man or set to of Pub.L. of men Cong. for.”); (1999); § wish could 113 Stat. Farm Rec. (statement Rep. (stating Hudspeth) of "if Security and Rural Investment Act of bill, any power I all, understand this if it has at Pub.L. 116 Stat. puts Secretary it in the hands of the of Agriculture power preventing in combinations hoof.”). putting up prices of the meat on general ignore mandate the outline of to no to accepts meaning the long-time policy by to be actionable antitrust condemn- competition an effect on response in deceptive silence are congressional ing practices which neither because judicial unanimity years “after injurious to circuit nor intended nor to to interpretation supports adherence charged.”30 party so to be Dynamics traditional view.” General appeared The has Government Sys., v. Cline.26 Land Inc. contend that the courts here as amicus to wrong and that it should have had Secretary Agriculture Role unfair un practices be construed to make original hearings were held on the When to It regard competition. lawful without Wallace, Secretary of Henry C. legislation, deference, un but that is urges Chevron31 regula- Agriculture, support testified Congress delegated where has warranted industry and said: meat-packing tion of the authority change meaning no absolutely competition. “I believe in free terms, given statutory have to the courts I by legislation far as can do that you So the Eleventh and Tenth have Circuits to be The PSA ought think done[.]”27 held.32 complaints of 192 vio- provided then Secretary, brought lations before Decision cease. could order the violations to

who obey penalized. his order Failure anti-competi that an We conclude Appeals went to a circuit court. necessary for effect is an actionable tive light Act’s coverage In 1935 added of live claim under the PSA Congress pack- meat in poultry history dealers or handlers to and its consistent Secretary The ers the PSA. the other circuits. The terpretation by delegated authority adjudicate alleged anti-competitive meat big behaviors deal- poultry violations of live companies packing 1920s motivated is now in the hands of ers.28 Enforcement Act, Congress to the Su pass Secretary by private suit feder- preme Court in con Wallace Stafford al court.29 Act be cluded was constitutional the anti-competitive cause of concerns of Secretary interpreted has times It re Congress. is those concerns which prohibit prac- the PSA the forbidden paramount today main in the Act regardless competitive in- tices of whether many which led so of the circuits to reach jury is has caused. Seventh Circuit agree the the same conclusion. We had to correct that the interpretation referring may that to outside view sources cases above. In Armour and discussed inappropriate determining the Company the court ex- be when v. United States gave Secretary meaning of It is plained “Congress unambiguous that the statute. 593-94, 26. 30. 402 F.2d at 722. (2004). L.Ed.2d 1094 U.S.A., 31. Chevron Inc. v. Natural Res. Def. 27. See Meat Packer: Hearing H.R. On H.R. Council, Inc., 5034, H.R. 5692 the H. H.R. Before 81 L.Ed.2d 694 Comm, (statement Cong. 67th Agrie., Wallace, Henry Agricul- Secretary C. of 1304; Been, London, F.3d at 32. ture). at 1227. 193(a). § 28. 7 U.S.C. § 29. U.S.C. here, however, necessary and

appropriate How then would an informed person 192(a) (b) § predict PSA em- case where and of the before us to be decided? “unfair,” “unjust,” begin by terms “un- He would ploys expecting us to look to due,” opinions meaning “unreasonable.” other circuits for persua- and Which “fair,” guidance, always sive chary to example, for do our dissenters create Partners, circuit split. Curr-Spec L.P. v. in the four columns of Black’s Law choose Comm’r;35 v. Comm’r.36 After un- Dictionary, apparent Ninth Edition? It is Alfaro derstanding circumstances and concern words to that these do not “extend responsible statute, of those for he possibili- of [their] outer limits definitional would add all that has been said held Dolan v. Service.33 ties.” U.S. Postal Supreme Court many and so circuit Rather, their meaning “depends upon nearly nine pas- courts decades since the text, reading statutory whole consider- PSA, sage changed of the never by Con- statute, ing the and context of the informed, gress. he expect So could not any consulting precedents or authori- judge interpret to the statute looking analysis.”34 ties that inform the Given the (b). only bare § at the words of clear antitrust context in which the PSA Surely would predict he next placement passed, court judgment would be consistent with (b) among other clearly subsections that judgments other circuits. effect, anticompetitive intent nearly ninety years prec- and the of circuit Ruling

edent, we find too that a failure include anticompetitive the likelihood of an effect The order of the district court on the actually goes against as a factor the mean- question presented was sup- incorrect. To the statute. ing of port practice a claim that a sub- violates (a) section law rules there must be by being predictable best proof injury, injury, likelihood of predictability and consistent. It competition. people plan enables their investments conduct, encourages respect by treating its law and officials citizens Appendix equally, adversary that enables an going settle conflict without to court Stockyards Packers and Act hope finding judges who choose will requires result. U.S.C. Predictability

favored judge deciding a case to set her course to practices 192. Unlawful enumerated another, judgment fully reach the in- precedent, formed evidence and It shall unlawful for packer expect. Predictability would must be the livestock, respect swine contractor with lodestar. We must not by meats, be affected food products, meat or livestock personal preference, or different no- products form, in unmanufactured or for justice ought tions of or what the to any law live dealer poultry respect with to live be. poultry, to: 481, 486, 1252, 1257, (5th Cir.2009). 33. U.S. 126 S.Ct. 35. 579 F.3d 399 n. 37 163 L.Ed.2d 1079 (5th Cir.2003). 36. 349 F.3d Id. of, unfair, act made (a) doing any un- or abet the any in use aid Engage or (c), (d), (a), (b), unlawful subdivisions discriminatory, deceptive prac- or justly (e) or of this section. device; or tice or unrea- give any undue or Make or JONES, Judge, H. Chief with EDITH any to preference advantage or sonable SMITH, REAVLEY, whom JERRY E. any in re- locality or particular person OWEN, Judges, join, Circuit any particular person subject or spect, concurring: locality any to undue or unreasonable or Reavley’s in but Judge opinion I concur disadvantage any in re- or prejudice separately to address in more detail write or spect; the “plain meaning” the Packers

(c) for to or Sell or otherwise transfer Stockyards 1921. The Act of words contractor, or face, vessels, other swine any packer, are, but empty on their Act dealer, buy live or or other- a any poultry pour this does not leave courts “free to present- think better any pack- vintage from or for other we suits wise receive Sisson, States v. United er, contractor, day tastes.” any poultry or live swine 2117, 2133, 26 dealer, purpose for or any article the (1970). Rather, a we have L.Ed.2d apportioning sup- the with effect of duty give meaning to consis- those words any persons, if such ply between such statutory with their and common-law tent tendency or ef- apportionment has antecedents, by the were known well creat- restraining fect of commerce or of passed Members a or ing monopoly; interpret are to Act. words we asked (d) to or for Sell or otherwise transfer art, meanings were terms of their buy any other or or otherwise person, by judicial were fixed definition and consis- any person, receive from or for other usage. ignore this evidence would tent To any purpose or with article for turn rule on its plain meaning be to controlling of manipulating effect or context, these proper head. Read in the creating monopoly or prices, only business provisions concern those of, dealing acquisition buying, selling, or an actual dealings potential have or in, any article, restraining com- or competition. effect on merce; or dissent, Garza, Judge writing As (e) any Engage course of business states, “Proper statutory begins analysis any or with the or do act for plain “[I]n with text statute.” controlling of manipulating effect or al- a court should interpreting a statute creating monopoly or prices, one, ways turn cardinal canon be- first of, dealing acquisition buying, selling, or [Cjourts all the .... must fore others in, article, any restraining or of com- legislature says that a in a statute presume merce; or it means what what means and statute (f) combine, or ar- Conspire, agree, says there. the words of a statute When (1) range any person ap- other also unambiguous, are this first canon is ” territory carrying on busi- portion ‘judicial inquiry complete.’ the last: (2) ness, apportion purchases Germain, Bank National Connecticut (3) article, manipulate sales 249, 253-54, prices; or control omitted). (1992) (citations 117 L.Ed.2d 391 combine, (g) or ar- Conspire, agree, text, rather primarily That we look do, any person other or range with inten- attempt Congress’s than to divine otherwise, undue, tions is the law of this unjust, circuit. so, or unreasonable? If See, e.g., In re Rogers, 513 F.3d 225- allowed, law—what is prohibited— what (5th Cir.2008) (citing Lamie v. United essentially would become a matter of fact. Trustee, 526, 534, States S.Ct. Any contract within the Act’s ambit would (2004)). 1023, 1030, 157L.Ed.2d 1024 subject challenge putatively “un- fair.” When the words ambiguous are or however,

vague, inquiry our Garza, cannot end Judge Even who finds the words case, there. language this (b) §§ of of to be unambiguous, (b) §§ of the Packers and rejects Unfairness, this result. he sug- (codified Stockyards Act of 1921 at 7 gests, is a question for the trial court to be 192) § any attempt U.S.C. resists to dis- determined “in the context of industry plain cern its meaning: standards, justifications economic for actions, practices 192. Unlawful and the motives and actions of enumerat- ed1 those concerned.” Although not illogical, gloss is It shall also nowhere in any be unlawful for packer or statute. It in way is no “plain” swine respect contractor with the statutory live- stock, text. meats, Presumably, meat products, food or does not encompass all products livestock contracts that are “unfair” or unmanufactured “unrea- form, or sonable” any poultry live because dealer with confer some advan- respect poultry, tage to live on party to: one or another. Such a prohibition

(a) “would be reason, violative of Engage unfair, or use any un- because it would include all those justly contracts discriminatory, or deceptive which are the very practice device; essence of or or trade.” United States v. Trans-Missouri Freight give any Make or undue or unrea- Association, 290, 351, 166 U.S. preference sonable or advantage to (1897) (White, L.Ed. 1007 J., any particular person locality dissenting). objective So what criteria any respect, subject any particular may these concepts be limited? As I ex- person locality undue or below, plain Congress, by legal its use of unreasonable prejudice or disadvan- terms were well time, defined at the tage any respect .... “certainly delegate did not any such free “Unfair,” “unjustly discriminatory,” “un- value-choosing role to the courts.” Robert due or preference”: unreasonable Read Bork, Parauox The Antitrust literally, they establish no standard at all.2 (The Act’s bar “deceptive practice^],” It would abe mistake to assume that the contrast, clearer.) Does this plain mean meaning requires interpretation rule that each court jury determine, must vacuum, of the PSA in a linguistic ignoring unique estimation, its unfair, what how its terms were by Congress used See, 1. As amended and codified. The amended e.g., Poultry A.L.A. Corpora- Schechter text respect differs in no relevant from that States, 495, 530-33, tion v. United enacted in 1921. See Stockyards Packers and 837, 843-44, (1935) (the 79 L.Ed. 1570 67-51, Act of Pub.L. No. 42 Stat. competition” term provide “fair does not (1921); 74-272, Pub.L. 49 Stat. “adequate subject definition of the to (1935) (amending § 202 to reach live [promulgated codes under 3 of the Na- handlers); poultry dealers and Pub.L. Recovery tional Industrial Act] are to be ad- (1958) (amending § Stat. 1749 202 to dressed”). reach, alia, inter packers relating activities of poultry). to livestock and any for com- That it shall be unlawful pas- at the time of the Act’s understood acquired spe- provisions mon carrier to the of sage. subject have “Words legal in the context must meaning any cialized to undue or give this act make or legal meaning.” Buck- accorded their be or to preference advantage unreasonable Home, Inc. v. Care West firm, hannon Bd. and any particular company, person, Hu- Virginia Department Health and any locality, particular or or corporation, of Resources, 598, 615, man traffic, in any respect of description (2001). 1835, 1846, 149 L.Ed.2d 855 S.Ct. whatsoever, subject any or particular to strong presumption It is therefore firm, corporation, or person, company, the of a statute “car- adoption wording of any of locality, particular description or previous judicial interpreta- ries with it traffic, any or undue unreasonable wording.” of Carolene Products tions in prejudice disadvantage any respect or States, 18, 26, 65 Co. v. United 323 U.S. whatsoever. (1944). 1, 5, L.Ed. 15 such S.Ct. 202(b) That is in of the pattern repeated borrowing, Congress knows “presumably PSA: adopts the cluster of ideas were any It packer shall be unlawful word in the attached to each borrowed commerce, any ... Make or in give, it body learning from which was taken preference undue or unreasonable or ad- convey meaning its to the use will any person or lo- vantage particular judicial unless instructed.” mind otherwise whatsoever, cality respect or sub- States, Morissette v. United 342 U.S. commerce, ject, any particular person 240, 250, L.Ed. 288 S.Ct. locality any undue unreasonable “if a is poetically, obviously More word prejudice disadvantage any respect source, transplanted legal from another whatsoever. legisla- common or other whether the law tion, it its soil it.” Moskal v. brings trains; other, One concerned meat- States, 103, 121, United Otherwise, packers. they are identical. (1990) (quoting 112 L.Ed.2d 449 Similarly, of the follows Frankfurter, Felix Some on Reflections both the ICA FTCA. That section Statutes, Reading 47 Colum. L. Rev. “any unfair, prohibits unjustly discrimina- (1947)). sure, To pre- tory, deceptive practice device sumption strength Its is inviolable. “unjustly commerce.” The term discrimi- similarity language, varies “with the of the ICA, § 2 natory” can be traced to the established character of the decisions prohibits “unjust which dis- defines and jurisdiction from the language in the section, entirety crimination.” The adopted, presence or lack of was other specific well as terms “unfair” Products, indicia intention.” Carolene are a “deceptive,” slight variation on 5 323 U.S. at 65 S.Ct. at 5. “That com- FTCA: unfair methods of Act of 1887 Interstate Commerce petition hereby in commerce are declared (“ICA”) the Federal Trade Commis- unlawful.” (“FTCA”) Act provided sion of 1913 only language of the PSA Not the PSA. The template for what became nearly predecessors, to that of its identical language just the PSA more than choice predeces- but this of terms deliberate. language similar of these firmly sors; meaning Their precisely. their contours had been established follows (of two) placed numerous court decisions that paragraph Consider the first of, authority respec- 3 of ICA: definite limits respect discretion in tively, the Interstate Commerce Commis- sonable of his own preserved. business methods and Federal Trade Commission. must sion Gratz, Trade Federal Commission v. spoken By Supreme Court had 421, 427-28, U.S. 40 S.Ct. ICA, FTCA, repeatedly on the and other (1920).3 L.Ed. 993 “Unfair” was not an Congress regulating competition— of laws in 1921. Congress inkblot could not have is, the field of antitrust. The “charac- that then, that expected, its use of the term borrowed for the PSA ter” terms free-ranging inquiry would occasion a into was, main, “un- in the well-settled. Take equities rather, of business practices; fair,” of meaning which had been the intended, made plain by its subject opinion of the Court’s 1920 in Fed- language, injury competi- choice of that Trade eral Commission Gratz: of tion would be element the inquiry. competi- The words “unfair method of meaning of “undue or unreasonable by tion” are not defined the statute and preference” and the associated terms and meaning It dispute. their exact is is was, from 3 of concepts any- the ICA if commission, courts, for the not the ulti- These, thing, too, more even definite. in- mately of law to determine as matter corporated concept competitive of inju- clearly They what include. are ry. Surveying Supreme cases, Court’s inapplicable practices never hereto- Justice Owen Roberts described its consis- regarded opposed good fore morals as tent application of the term from 1896 by deception, because characterized bad onwards: faith, fraud, against or as oppression, theory of the act that the carriers public policy dangerous because their initiating adjust may rates them to tendency unduly competition hinder conditions, and that such ac- monopoly. or create The act cer- tion not amount does to undue discrimi- tainly not to fetter and fair intended free nation; Ry. Texas & Co. v. In- Pacific competition commonly as understood Commission, terstate Commerce practiced by opponents honorable U.S. 40 L.Ed. 940 .... trade [(1896)]. charging There rates on Nothing justify which alleged would import moving port traffic from a on public the conclusion that suffered bills of much through lading, lower than injury competitors or that reason- had transportation, those fixed for domestic ground complaint. able for All question was held to amount as matter of law out monopoly being or combination to discrimination section forbidden 3. merchant, way, private acting showed, justification The carrier faith, good may properly entire traffic, refuse that, import the lower rates on sell, conjunction, except closely such these permitted, unless were water and bagging. as associated articles ties and competition rail-and-water would divert continue, If competition real is to away port the traffic from the of New right of the individual to rea- extending exercise Orleans the carrier’s lines by Congress Com- was overruled Federal Trade that the FTC Act was intended Gratz Co., Sperry consumer-protection mission v. Hutchinson & both an antitrust and a PSA, (1972), apply regu- L.Ed.2d statute —do not to the legislative history. dealings packers, the basis Act’s of the FTC lated the and later of processors, poultry operated That fact has little relevance to the at the established man- meaning of "unfair” at the time the PSA’s ufacturer wholesale levels. For these Further, reasons, grounds inapplicable. enactment. S&H— S&H is whatever, held, English courts have that decision port. Since im- consideration, export full recognized

has been after on although not made shipments, port consid- rival lines is fact to be between bills, trans- through might lawfully be ered, advantage preference and that a or charged for at rates below those ported necessarily is not undue arising thence the same traffic between domestic or unreasonable. v. Commerce Comm. points. Interstate v. Ala- Interstate Commerce Commission Co., R.R. 145 U.S. Baltimore & Ohio Co., 144, 164, Ry. 168 bama Midland U.S. 844, 276, 699 263, 36 L.Ed. 12 S.Ct. (cita- (1897) 45, 48, 42 L.Ed. 414 18 [(1892)]; v. Comm. Interstate Commerce omitted). cases, From the tions earliest Co., 144, Ry. 168 U.S. Alabama Midland then, recognized the ICA the Court that [(1897)]; 164, 45, 42 18 S.Ct. L.Ed. prevent competition “not designed was Behlmer, v. N.R. Co. Louisville & [rail] between different roads” 648, 671, 209, 20 S.Ct. 44 L.Ed. U.S. in actions undertaken furtherance of such Cases, [(1900)]; Rate Inter-Mountain competition were therefore not undue 483-485, 986, 34 S.Ct. 164-65, at preferences.4 unreasonable Id. [(1914)]. L.Ed. 1408 48; at see also Com- 18 S.Ct. Interstate States, P. Ry. Texas & Co. United Chicago merce Commission v. Great West- 768, 771-72, 627, 636-37, 53 S.Ct. U.S. Co., 108, 119, Ry. 28 S.Ct. ern U.S. (1933). however, not, This L.Ed. was (1908) (“in fixing 52 L.Ed. 705 longstanding an innovation of the ICA but rates, they may take their own [railroads] on the laws of Great Britain practice under account carri- competition into with other PSA, ICA, by the the extension

which ers, only competition that the provided patterned: genuine, pretense”). not statutory for- construing provisions In discriminatory,” for used in “unjustly As bidding railway companies giving from PSA, of it was term of the also a preference undue or unreasonable art, Any § 2 of borrowed the ICA. in advantage any partic- to or favor of bears, meaning that independent howev- person company, any particu- ular traffic, er, description any respect by tendency is somewhat obscured lar Thus, could, competitive [W]here it came to be carriers conditions authorized circumstances, charge competitive particular their certain carriers to lower rates to a longer place, right competition dis- to meet lower tariffs for than for shorter track, despite ap- lowering place tance over the same 4’s rates to such was not con- parent prohibition practice. shipments point this made fined from the explanation seeming departure origin competition, empowered this court's but carriers, statutory "In con- all from the text is instructive: in the interest of freedom sidering point- enlarged opportu- comprehensively the act it was commerce and to afford provisions against nity accept, generic shippers, ed out chose to if so, preference expressed points shipments do to such and discrimination general all- the 2d and 3d sections of the act were at lower rates than their tariff rates: embracing, operative right aptly and were therefore which came to be described as practice upon upon competition” as well all other "market 4th section as because provisions enlarge develop Atchi- of the act.” United States v. served markets and son, (Inter-Mountain T. & Co. Rate freedom of traffic and intercourse. S.F.R. Cases), Congress at 990. Id. 34 S.Ct. subse- (1914). ap- general quently ratify 58 L.Ed. 1408 This rule was amended the ICA to limited, animated, competi- proach, between and also concerned cargo inherent Pub.L. tive-effects test the court considered the railroads and vessels. See §§ 2 and No. 36 Stat. 547-48 3: Thus, apparent only it is treat it as a creative variation of courts to §§ terms of art employed preference,” and unreasonable on “undue clearly jurispru- PSA were defined in §§ 2 the ICA as one. reading and 3 of thus dence, but also that none could be read as Chicago exceptions. But were there prohibiting legitimate competitive activity. Co., Ry. the court consid- Great Western apart language from the ered the term that. report knew had, seeming railway contra- 3. The on Agriculture House Committee text, charged statutory high- accompanied the PSA Con- vention demonstrates gress’s construing decisions livestock than reliance on shipment er rates for of ICA and Of the of eight pages FTCA. products prepared meats and dressed report concerning meatpacker the PSA’s (known products”). “packing-house as provisions, six-and-a-half of a consist de- be a violation The determined this to ICC Supreme tailed exposition Court deci- Supreme §§ 2 and 3. Court of both meaning constitutionality sions on the result, that the rail- rejected holding that Rep. 67-77, of these earlier acts. H.R. No. way’s precluded motive honest at 2-10 The decisions cited in- unjust discrimination: finding of clude: Interstate Commerce Commission fair was the An motive cause honest Co., 88, 91, v. Louisville & N.R. 227 U.S. rates, change in honest and fair of the 187, (1913) 185, 33 S.Ct. 57 L.Ed. 431 of the Great Western in its part on the (administrative are decisions reviewable business, secure more effort to the courts and whether are rates unrea- equally part honest and fair on law”); sonable is “a matter of Southern in railway companies the effort the other Pac. Co. v. Interstate Commerce Commis- as much of to retain the business was sion, 433, 449-50, 219 U.S. 31 S.Ct. words, competi- In other possible. (1911) (a change 55 L.Ed. 283 rate is tion eliminates from the case an intent not merely may because “unreasonable” act, customer); to do an unlawful and leaves for damage the interests of a rail Gratz, only question whether Federal Trade Commission v. consideration 575, 64 U.S. 40 S.Ct. L.Ed. as established do work an un- rates (1920) (no competi- “unfair method of preference due or discrimination .... engaged tion” under the FTCA when firm Co., Ry. Western Chicago Great tying not “alleged but it was at at 28 S.Ct. 498. As further evi- ability, pur- held a ... or monopoly had “unjust dence that discrimination” is one”); pose acquire or intent to Interstate injures competition, the court held Diffenbaugh, Commerce Commission v. that, against backdrop of a carrier’s 42, 46, 22, 24, 222 U.S. S.Ct. 56 L.Ed. 83 rates, right to reduce near-absolute (1911) “permissive” phrasing (despite empowered prevent ICC was “exces- prohibition “any or unrea- undue low,” sively predatory, through or rates its or preference advantage,” sonable the ICA unjust power to un- prevent discrimination fortune, equalize op- “does not attempt Eddy Corp. der & v. United Skinner abilities”); & portunities, Eddy or Skinner States, 557, 566, 375, 378, 249 U.S. States, Corp. United 565- (1919); (1919) 63 L.Ed. 772 id. at 39 S.Ct. 63 L.Ed. 772 (§ (“the weighs against proffered commission’s main in- source the ICA that “would rather reading excessively fluence to rates”-—(cid:127) prevent low monopoly competi- preserve e.g., ensure than those to effect “the elimina- intended tion”). competition”- tion of its water —-“lies discrimination”). provides meatpackers The act sub- prevent unjust

power deeply with Congress ject provisions engage familiar to its shall not That competition jurispru- Supreme or cre- practices Court’s that restrain commerce beyond is They dence doubt. monopoly. prohibited ate a are selling any for the buying from or article adopt And intended manipu- or with effect of compe- apply large existing swaths lating controlling prices or in commerce. also packing industry law the tition They engaging prohibited are also history of the apparent. legislative unfair, unjustly any deceptive, dis- laws) (as is voluminous and for most criminatory in the practice device entirely re- unambiguous, in certain business, conspiring, conduct their spects. ambiguity, Where it lacks howev- combining, agreeing, arranging er, usage reflection its persons other to do of these acts. meaning of words like “unfair” plain used in 202. As “unreasonable” as Id.5 Judge Reavley’s opinion ably demon- sum, In of in- Congress’s the evidence strates, the immediate of the PSA confirms, tent, dispositive, while not itself and prevent monopoly the abuse of that the repudiate, and does view of Five” meat- “Big restraint trade consid- broad words of 202 were to be See, packers. e.g., Agricul- on Committee in light meanings, of their established ered Representatives, ture the House of competitive as terms art limited to Packers, Hearing May on Meat wrongs. brief, necessity for (discussing, “the does not The structure statute legislation”: preventing packers this that, suggests countervail. The dissent “combination, apportionment from of terri- (e) 202(c), (d), §§ and explicitly because markets, tory oppres- and of as well as the anticompeti- prohibit certain acts have competitors”). Achieving pur- sion of (a) (b) effect, must strike at some- tive and stated, ultimately pose, supporters would different, from to com- thing apart injury farmers growers aid and and reduce necessary, See, petition. This construction is e.g., for price food consumers. (a) (state- dissent, Packers, says prevent Hearing subsections on Meat at 54 (b) swallowing, rendering and and League ment National of Women Vot- (e). (1957). (c), (d), ers); 85-1048, superfluous, H.R. The subsections and Rep. at 1 Further, (e), ends, it recog- argues means to it subsection these has been (a) (b), nized, was envi- rather than and is the true catch-all improve anticompetitive ronment: behavior.6 understanding prohibition 5. This was Con- also the on acts that have the effect “ gress that live "restraining amended PSA to reach merely commerce” is 'catch sales, finding. poultry statutory in a as stated competitive injury all' for the But sections.” (1935) (stat- See Pub.L. 49 Stat. 648 literally, is far more The read than that. ing necessity regulation prac- to curb "restraining term commerce” "broad producers "receiving tices that resulted enough every to embrace conceivable con prices far below the reasonable value of their tract or be made combination could "unduly poultry” arbitrarily live en- and and concerning subjects or commerce or the trade hancing and that the cost to consumers” N.J. of such commerce.” Standard Oil Co. of unjust were therefore an "undue restraint and States, v. United commerce”). burden interstate simple 55 L.Ed. 619 forma sense, does, partnership tion of a a literal this, abandons, part, dissent its partners agree not to restrain commerce: dissent, 202(e)'s hyper-literalism. To the That GARZA, construction does not accord with EMILIO M. Circuit Judge, (c) the text of the statute. Subsection JOLLY, with whom E. GRADY RHESA proscribes apportioning supply BARKSDALE, DENNIS, H. PRADO, (d) restraint of trade. Both subsections JENNIFER W. HAYNES, ELROD and (e) proscribe manipulation of prices, Judges, join, Circuit dissenting: and all three proscribe specific subsections appeal presents This a single narrow may monopoly. actions create question, certified to us the district These subsections do not reach facts that pursuant 1292(b): court 28 U.S.C. may constitute certain familiar antitrust plaintiff whether a prove must an adverse violations, deal, e.g., boycotts, refusals to effect on prevail in a suit non-price restraints such as credit qual- alleging a violation of Packers and Stock- ity terms, tying agreements, mergers even yards (b), Act Sections joint They ventures. simply do not U.S.C. (“PSA”). (b), cover the waterfront of anticompetitive pro- be- (a) Moreover, havior. if are to be vides: literally

read suggests, as the dissent It shall be unlawful for any packer or (e) (c), (d), seem to swallow swine contractor respect to live- provisions render those superfluous. Sim- stock, meats, meat products, food (e) if ilarly, subsection is a catch-all for products livestock in unmanufactured behavior, anticompetitive it would render form, or for live poultry dealer with (e) (d). superfluous subsections and respect to poultry, live to: The more natural reading, which avoids (a) Engage unfair, in or use any un- infirmities, (a) these subsections justly discriminatory, or (b) deceptive provisions, and are catch-all intended practice device; or or to cover whatever actions create an actual potential or restraint of trade. Subsec- (b) give any Make or undue or unrea- (e) (c), (d), tions prohibit specific prac- preference sonable or advantage only they tices if adversely affect competi- any particular person locality or (a) tion, (b) while still deal with the any respect, subject or any par- marketplace (c), but in a way broader than ticular person or locality to any (e). (d), and None of the text superflu- undue or prejudice unreasonable ous. disadvantage any or respect; or provenance, Because of their the words (c) or Sell otherwise transfer to or for §§ of the Packers and any packer, other swine contrac- Stockyards susceptible Act are plain to a tor, any dealer, or live poultry or meaning: prove practice To that a is “un- buy or otherwise receive from or fair,” “unjustly discriminatory,” or an any for other packer, swine con- “undue or preference,” unreasonable a tractor, any dealer, or plaintiff poultry live must demonstrate an actual or any purpose article potential for the impact competition. adverse or reason, apportioning For with the effect as well as those identi- supply fied Judge Reavley, I any believe that this between such per- sons, court should decline this invitation if up- apportionment such has long-established tendency set the Act’s meaning. or effect of re- compete against contract, every one Few another. would deed commercial is a "re- argue, though, every partnership, or in- straint on commerce.” “Growers”)

straining grow commerce or of creat- are farmers who chickens ing monopoly; Defendant-Appel- a or known as “broilers” for (“PPC”), lant Pilgrim’s Corporation Pride (d) or otherwise transfer or for Sell processor a dealer referred to as person, buy or any other or other- industry. in the chicken “integrator” any receive from or for other wise PPC a con- operate Growers and within pur- person, any for the article relationship whereby pro- tractual PPC pose manip- with the effect of or chicks, feed, vides the Growers with the ulating controlling prices, or or required supplies to raise chickens. creating monopoly in the exchange, In for the of, Growers care acquisition buying, selling, or they maturity, until reach at in, article, chickens or re- dealing any which time are returned to PPC. straining commerce; or chicks, chickens, feed, maturing (e) any Engage course business remain property medicine of PPC any or act or do all This is the “grow-out” times. known as manipulating the effect of with process. approximately It two takes controlling prices, or of or creat- grow-out months to a flock. The Growers’ monopoly ing acquisition (and operations operations of other of, in, buying, selling, dealing growers) are clustered into geographically article, restraining any or of com- “complexes.”1 compen- areas called PPC merce; or sates the Growers under “tournament (f) combine, Conspire, agree, ar- essence, system.” PPC ranks (1) any range person other against against Growers one another and territory for apportion carrying on growers operating other their com- business, (2) apportion pur- plex. then compensates PPC the Growers article; chases or sales of broilers, the quality based on of their (3) manipulate prices; to or control that grow-out process, number survive the and amount of and supplies feed combine, (g) Conspire, agree, or ar- Growers used. any do, range person other to of, doing any or aid or abet the act grower operates At one a least under (a), unlawful made subdivisions system different from the Lon- Growers. (d), (e) (b), (c), of this (“Mr. section. nie Pilgrim Pilgrim”), “Bo” PPC’s chairman, chicks, purchases founder and added). (emphasis § 7 U.S.C. Be- feed, supplies and from PPC rather than unambiguous language § cause the him. having consigned Operating them to 192(a) (b) me § leads to believe that and Growers, in a complex different from not require showing do Mr. then Pilgrim raises the chickens at his injury, I respectfully dissent. farm sells them and back to PPC. Rather I than compensating Pilgrim Mr. under Wheeler, Plaintiffs-Appellees Cody system, pays Don tournament Pilgrim PPC Mr. Davis, Williams Davey (together, weekly quoted price and the lesser of a market mill, production operations processing plant. pro- 1. PPC’s broiler are and PPC Because feed, complexes, expensive subdivided into numerous vides the which is to trans- many regions port, requires growers are located in different it who raise broilers "complex” particular United Each complex States. has at least for a to be located within farm, farm, pullet fifty hatchery, complex one and breeder feed miles its feed mill. According to biguous, or 102% of his costs. and ... it does not require the Pilgrim’s arrange- Mr. pleadings, prove Growers’ Growers to an adverse effect on higher compensation him than yields ment competition.” Id. at 460. It also ad- allege receive. The Growers further legislative dressed the PSA’s history, not growing refused to offer them PPC necessary because was proper or- arrangements Pilgrim’s. similar to Mr. statute, der to construe the but because it panel’s was the “point departure”

The Growers sued PPC under the PSA. other circuit courts have held an ad- Specifically, alleged the Growers verse effect on competition required. opportuni- PPC’s refusal to afford them an Id. at 461-62. panel concluded ty operate under the same terms as an legislative history that the insider, paint does “not unjustly is “unfair and discrimina- picture Congress’s intent,” clear id. at tory” Pilgrim and affords Mr. an “undue may and that it preference support or unreasonable be read to advantage” 192(a) (b).2 192(a) (b) § proposition in violation of do not against plaintiff Growers raised additional claims prove an adverse PPC, well, as that need not be described effect on competition. Id. at Judge purposes detail for the appeal. Reavley PPC dissented stating: summary judgment moved for arguing 192(a) Sections of the Packers allege that the Growers did not an adverse Stockyards Act may be read differ- competition, required effect on pre- ently, panel and this majority reading is (b). vail under The district certainly However, reasonable. I incline requirement court found no such in the meaning given “unfair” PSA and summary denied the motion for Tenth Circuit in Been v. O.K. Indus. judgment. Pursuant 28 U.S.C. Inc., (10th Cir.2007) and, 495 F.3d 1217 1292(b), the district court then entered event, would not create a circuit an order certifying following issue for split many contrary after so circuit deci- appeal: plaintiff prove whether a must sions over many years. adverse effect on in order to J., (Reavley, Id. at 462-63 dissenting). (b). prevail under 7 U.S.C. petitioned PPC panel A the court for rehearing this court affirmed the dis- trict en banc. The Pilgrim’s granted petition court’s order. court Wheeler (5th Cir.2008). Corp., Pride appeal F.3d 455 and ordered that the be reheard en panel language held that “the parties of sec- banc. The and a number of amici 192(a)-(b) clear, plain, tions is and unam- curia submitted Following briefs.3 the en Been, (Hartz, J„ 2. The section of the ap- PSA relevant to this PSA.” 495 F.3d at 1239 peal is codified in the United States Code at 7 concurring/dissenting); see also United States refer, times, 192(a) § § U.S.C. 192. I at to 218, 227-28, Corp., v. Mead 533 U.S. 121 (b) (the "PSA”) ("subsec- simply and as or as 2164, (2001) (Courts S.Ct. 150 L.Ed.2d 292 (a) (b)”). tions and generally give weight considerable to an exec department’s utive construction of a statute it 3. The Government filed an amicus brief in administer). is entrusted to The USDA "has arguing give this case that the court should consistently position taken the that in order to deference to the USDA’s construction of the prove any practice is 'unfair' under require PSA. showing The USDA does not a 202(a) (7 192(a)) (7 §§ 312(a) § U.S.C. or 192(a) (b). competitive injury under or 213(a)) Act, U.S.C. necessary it is not Although the USDAis not entitled to Chevron intent, prove predatory to injury, unambiguous, deference because the PSA is give injury "respect experi- the court should likelihood of ....” In re to the Ozark Co., expertise 336, regarding County ence and Agric. of the USDA Cattle 49 Dec. 365 Lamie, tition, into these sections. See voted to reverse rehearing, the court banc court, 538, (holding that if holding competi- that a S.Ct. 1023 U.S. the district to state injury plain, be shown order text evinces “a nonabsurd mean- tive must (b). I Because an a claim under then the court should not “read ing” I showing required, statute”); is that no such believe into the see also absent word States, 23, 29, dissent. Bates v. United (1997) (holding 139 L.Ed.2d 215 S.Ct. II “ordinarily” that courts should “resist statutory analysis begins with Proper reading or elements into a statute words the statute. See Perma- plain face”). text of appear that do not on its Na- India to the United nent Mission of further remaining parts York, New 551 U.S. City v. tions (a) that subsections support the view (2007) 2352, 2356, 168 L.Ed.2d 85 127 S.Ct. (b) require plaintiff prove not do (“We always, with the text of the begin, as competition. effect on Subsec- adverse statute.”) (citation omitted); Watt v. Alas- (a) (b), (c)-(e), tions unlike subsections ka, 101 S.Ct. 451 U.S. acts, only those which have the prohibit (“The (1981) starting point L.Ed.2d 80 “restraining effect of commerce” or which every involving construction of a stat- case injury, produce another common antitrust itself.”) language (quotation ute is “creating monopoly.” If Con- such omitted); Rogers, see also In re scope to limit the gress had intended (5th Cir.2008). “It is well estab- (a) (b) prohibit only subsections language a statute’s is lished when “restraining those acts with the effect of ... function of the courts is plain, sole commerce,” it could have included the according to enforce it to its terms.” La- employed language same subsections Trustee, 526, 534, 124 mie v. U.S. 540 U.S. -(e). (c) Congress did not. This omission (2004) (inter- 157 L.Ed.2d strong Congress evidence did omitted). quotation nal marks and citation (a) intend subsections “unfair, unjustly prohibits Section com- plaintiff prove an adverse effect on discriminatory, deceptive” practices States, 192(b) petition. See Russello United prohibits devices. Section “undue 78 L.Ed.2d preferences, advantages, or unreasonable” (1983) (“ par- includes ‘Where disadvantages. Neither section con- language ticular in one section of a statute language limiting application tains its it in another section of the same devices, but omits only those acts or which have an Act, it generally presumed Con- competition, adverse effect on such as “re- intentionally gress purposely well-settled acts straining commerce.” Under ” disparate inclusion or exclusion.’ principles, courts must refrain from read- terms, Bo, Wong ing (quoting additional such as those that United States v. Kim (5th Cir.1972))).4 720, 472 722 require compe- would an adverse effect on F.2d Simi- (1 990) Co., Comm’n, 229, (5th Cir.2005); (quoting In re Corn State 45 408 F.3d 236 Meat 995, (1986)); M/V, Agric. Dec. 1023 see 1 Pignone, also SpA v. Storman Nuovo Asia al., Agricultural John Davidson et 374, Cir.2002); H. (5th F.3d n. 16 United Law 3.47, (1981). at 244 States v. Juvenile No. 118 F.3d Shear, Cir.1997); (5th United States v. consistently applied We 4. have this canon of (5th Cir.1992); F.2d In re Timbers of deciding Wong Kim Bo. construction since Assocs., Ltd., Inwood Forest 793 F.2d See, e.g., Mukasey, Arif (5th Cir.1986). (5th Cir.2007); Comacho v. Tex. Workforce drews, larly, Congress if had intended for the “restraining to read commerce”

courts into L.Ed.2d 339 PSA, every then section there is no majority’s Under the reading, Congress why Congress reason would have included did not specific need to include anticompet “restraining only commerce” subsec- language any itive subsection because (c)-(e). By judicially engrafting tions an effectively limited the competitive PSA to competition requirement adverse effect on injury through a series of committee dis (a) (b) onto subsections when Con- cussions and reports. house This of one, intentionally gress majori- omitted begs course question why Congress ty oversteps proper its role of interpreting chose to any anticompetitive include lan Bo, the statute as written. Wong See Kim if guage at all it was so clear that competi at 722. F.2d permeated tive harm the entire statute. (a) Other words used in subsections By holding that the subsections with no (b) further requiring rebut construction mention of harm nonetheless competitive injury. example, For subsec- require a showing of competitive injury, (a) tion it unlawful engage makes in or majority superfluous renders the ex any “deceptive practice.” use It defies press anticompetitive language in subsec common sense that meant to al- (c)-(e). should, however, tions Courts at deceptive practices, low some long so tempt give every effect to clause and they adversely competition, did not affect Inc., word of a statute. TRW 534 U.S. at prohibiting while others that did impact 31, 122 competition. majority If the is correct to (a) require construe competi- subsection wrought The violence the statute injury, practices tive then deceptive majority’s interpretation is even more adversely do not affect competition are (e), clear when one considers subsection permissible light under the PSA. of which broadly prohibits persons from en- (a) plain language of subsections gaging “in course of business or ... (b), this makes no prohibitions sense: any act” that has as its or effect (a) (b) listed in subsections are stated “manipulating controlling prices, or of bans, as absolute unlike prohibitions creating monopoly ... or of restraining (c) (e), listed in through subsections 192(e) commerce.” 7 (emphasis U.S.C. only bar conduct if it adversely affects added). If, holds, majority as the subsec- (b) Indeed, competition. subsection pro- (a) (b) tions specific also hibits preferences unreasonable or advan- prohibited competition, conduct to affect tages, and undue or preju- unreasonable then those subsections are rendered super- disadvantage, dice or any respect.” “in entirety fluous their because would language, This creating unqualified pro- (e). completely subsumed subsection practices, hibition of listed is inconsistent (e) Subsection any act for prohibits with, and would superfluous be rendered purpose or with the effect of manipulating by, qualification only those listed controlling prices or restraining com- practices adversely affect merce, which would cover all of the acts prohibited. are It is a precept basic (a) specified in if they subsections statutory give construction that we should required also an anticompetitive effect. every effect to clause and word of a statute possible where and should not Borrowing construe the Tenth Circuit’s way Industries, Inc., statutes in a opinion renders words or Been v. O.K (10th 1217, clauses superfluous. Cir.2007), TRW Inc. v. An- 495 F.3d 1229 PPC 376 (b) (a) and de- into subsections by sug- quirement problem to overcome this

tries (b) (a) were and in the name unique that subsections their function gesting stroys not a for behavior as “catch-all” meant already ex- creating a “catch-all” that of (c)-(e). But, it by subsections covered (e). in subsection ists (e), that subsection quite obvious seems § beyond text of Looking the or purpose prohibits act for PSA, I find further parts of other or control- manipulating the effect of 192(a) (b) re § do not evidence commerce, is the restraining or ling prices injury. showing competitive a of quire injury sec- for the “catch-all” 213(a) 192(a), pro § § example, like For pur- act for the By prohibiting any tions. in or engaging manipulating with the effect of covered entities from pose or hibits controlling prices restraining unfair, com- discriminatory, “any unjustly using ” (e) merce, anticompeti- reaches subsection .... deceptive practice or device more not tive behavior reached 213(a). 213(a) § § has Although U.S.C. anticompetitive of sub- specific provisions 192(a), §as courts have language the same (d). (c) hand, On the other sections it to an adverse not construed (a) written, reach subsections instance, competition.5 For effect by sub- clearly conduct that is not reached USDA, failure v. that a Bovman we stated (c)-(e), which are limited to anti- sections payment shipper by a prompt to make to a instance, a competitive behavior. For a subject to “would be person the PSA contract, in this such as at issue the one deceptive under proscribed practice case, giving preferential treatment Cir.1966). 213(a).” (5th § F.2d largest of a com- founder shareholder to make no prompt payment Failure pany might well be “unfair” within competitive injury, yet involves way (a), satisfy not meaning subsection but 213(a). § “unfair” Be found to be under “restraining requirement commerce” 192(a) virtually § identical cause contains (c)-(e). Likewise, limiting of subsections language, it should be construed differ preferential system to allegedly pay an See, Reliant ently. e.g., Corp. Powerex v. company insiders without a valid business Inc., Servs., 224, 232, 127 Energy 551 U.S. might for constitute justification doing so (2007) (“A 2411, 168 L.Ed.2d preference” an “undue or unreasonable statutory construc principle standard (b), meaning even within of subsection provides tion words identical re- though “restraining commerce” should phrases within same statute (c)-(e) quirement of subsections could not normally given meaning.”). the same to follow majority’s be met. decision Further, writing competitive injury Congress provides example Been in a re- See, Comm’n, Cir.1984) USDA, (9th e.g., v. Livestock Glover 808-09 Butz Co., (market agent by failing § violated (1973) (incorrect weighing L.Ed.2d 142 consignors pur- the actual inform that he was violated, among provisions, livestock other livestock); Berg- Wyk chaser of their Van v. 213(a)); Spencer § v. Livestock Comm’n Co. Cir.1978) land, (8th F.2d 704-05 (9th Dept. Agric., 841 F.2d 1454-55 213(a)); (failure pay violated livestock Cir.1988) (upholding finding of a Bros., v. F.2d United States Donahue violation "where evidence establishes (8th Cir.1932) ship- (commingling 1022-23 practice, deceptive whether or not it harmed pers’ funds was "unfair” and violation v. competitors”); consumers Peterman "prohibition 213 because USDA, Cir.1985) (10th F.2d protect ship- against practices unfair is to ("bait-and-switch” decep was an "unfair pers”). 192(a)); practice” tive Bosma under 228b-l(b), §in practice” an “unfair which 543 U.S. 125 S.Ct. prompt payment poultry (2004)(“Given concerns live L.Ed.2d 548 the clear mean provides dealers in cash sales. It text, ing of the there is no need to ... “any delay attempt delay” collection consult the purpose of at [the statute] “shall of funds such sales be considered Lamie, all.”); 540 U.S. at 124 S.Ct. practice’ an ‘unfair violation of this (holding unless statute is “am Nothing in this chapter. section shall be biguous issue,” point at a court meaning deemed to limit the of the term legislative history should not resort to practice’ ‘unfair as used in this chapter.” it); interpreting Rogers, 513 F.3d at 225- 228b-l(b). pay U.S.C. The failure to Inc., (citing Carrieri v. Jobs.com grower promptly appar- one would have no (5th Cir.2004)) F.3d 518-19 (“Only on competition; yet ent adverse effect application after principles of statu Congress expressly states that it is an construction, tory including the canons of “unfair practice” under the PSA. Because construction, and after a conclusion that within identical words the same statute ambiguous the statute is may the court given meaning, should be the same “unfair legislative turn to history.”); Guilzon v. 192(a) §in practice” likewise cannot re- C.I.R., (5th 823 n. 11 Cir. quire competitive injury. See Powerex 1993) (citation omitted) (“Fifth Corp., 551 U.S. at Circuit law when, crystal here, is clear that PPC, majority, Neither nor the oth language of a unambiguous, statute is provided er circuits have an alternative Court has no need to and will not defer to 192(a) reading plain of the text of legislative extrinsic aids or history.”). (b), choosing to divine meaning instead of the from selected portions of its history

legislative and cases based on that Ill PSA, history. The plain language of the however, is clear. Some subsections con majority and the circuits on which it “restraining language tain commerce” and relies forsake the plain language approach, give some do not. We have to effect to and instead delve into the historical cir Bo, Wong this difference. See Kim surrounding passage cumstances at reading F.2d 722. The most natural is meaning. statute to determine its This that those subsections with the “restrain methodology directly opposed to our ing language require compet commerce” case law and the case law Supreme injury itive and those without it do not. Servs., Inc., Court. See Aviall 543 U.S. at majority’s Because the construction of the 577; Hammack v. Baroid straightforward PSA avoids this conclusion (5th Cir.1998) Corp., 142 F.3d only by reading absent terms into the stat (noting that underlying “theories of intent ute, rejected. it should be The district or purpose trump cannot statutory lan correctly court held that the language of guage”). history Because policy con (b) clear, plain, and unam siderations lend support conflicting in biguous, require and that does not terpretations, such an “creates approach prove Growers adverse effect on clarity more confusion than about the con competition. Because Lamie, gressional intent.” plainly, clearly, unambiguously do not confusion, 124 S.Ct. 1023. This unlike competition, an adverse effect on I plain language, proper is not a go would so hold and no basis further. See Indus., Servs., Inc., Cooper Inc. v. Aviall which to construe the statute. competition was the PSA’s true that fair only need point, one illustrate To House described “legislative “primary purpose,” histo- primary two consider the our as well: upon purposes bases which other ry” “policy” findings of an rest their sister circuits this Act is to purpose of primary competition requirement. effect on adverse and fair trade competition assure fair (1958), First, rely H.R. 85-1048 they on and in marketing in livestock practices primary purpose [the “the which states: objec- industry. The meatpacking fair competition fair is to assure PSA] ranch- safeguard farmers and tive is to marketing and in livestock practices trade the true receiving less than against ers 1. industry.” Id. at meatpacking in the and to market value of their livestock Wallace, Second, rely on v. Stafford against unfair protect consumers 258 U.S. practices marketing in business (1922), that the which observed L.Ed. meats, is also etc. Protection poultry, passing feared “chief evil” provided to members of the livestock industry of meat monopoly was the un- marketing and meat industries from spoke obviously, Congress Most packers. unjustly fair, deceptive, discriminato- the PSA’s assuring fair ry, compet- monopolistic practices of only not as the PSA’s “primary” purpose, itors, large or small. spoke of Supreme and the Court purpose, which against as the “chief’ evil monopoly “only” evil. protects, not as the

the PSA meatpackers sub- provides The act Thus, authority for foreclos- is no Stafford ject provisions engage shall not to its protects against view that the PSA ing the cre- that restrain commerce or practices that have no adverse effect on com- harms They prohibited monopoly. ate are Moreover, a closer look petition. See id. any article for the buying selling or Report House shows no intention to manipu- purpose of or with the effect much as other circuits limit the PSA as controlling prices commerce. lating or argue. engag- prohibited from They are also very passages Report of the House unfair, deceptive, unjust- ing rely may upon which our sister circuits discriminatory practice ly device in contrary proposition; support read to business, conspir- the conduct of their namely, that do not re- combining, agreeing, arranging ing, an adverse effect quire plaintiff prove any of these persons with other to do First, competition. “primary pur- acts. competi- pose of this Act is to assure fair (emphasis at 1-2 H.R.Rep. H.R. No. 85-1048 practices.” tion and fair trade 85- added). (1957), support the passages these reprinted at 1 While added). is to primary purpose that the PSA’s (emphasis view U.S.S.C.A.N. fur- competition, goes fan* the PSA very upon protect In the sentence which the other “protect much evi- ther. It also was intended place emphasis circuits so prac- from unfair business that does not consumers dence of second tices,”6 of the livestock protect if it were members involve harm. Even concurrence, Sperry & Hutchinson Judge at- Trade Commission In her Chief Jones Co., Act, S.Ct 31 L.Ed.2d tempts distinguish the FTC (1972) (discussed infra), from the PSA Supreme interpreted Court has not to suggesting the FTC Act was intended competition, "that an adverse affect on see Federal marketing ‘primary’ and meat industries from “un or the concerns ‘chief] of our fair, deceptive, unjustly discriminato legislators by which governed.” we are ry” prohibit meatpackers, and to practices, Servs., Inc., Oncale v. Sundowner Offshore generally, “engaging from more 523 U.S. 118 S.Ct. 140 L.Ed.2d unfair, deceptive, unjustly discriminato

ry practice or device in the conduct of Indeed, by using

their business.” Id. rv “unfair, prohibited” separate “also de unjustly ceptive, discriminatory practice In reading an adverse effect on competi describing inju from language and device” (b), requirement tion into competition “restrain[ing] ries to such as departed other circuits have from this ba commerce,” “creating] monopoly,” and majority sic rule. The now decides to “manipulating controlling prices,” Con suit, on, others, relying among follow re gress evinced its intent for the PSA to cent decisions from the Tenth and Elev sweep broadly only inju more than those London, Pickett, enth Circuits: and Been.7 which have an com ries adverse effect on beyond These decisions reached the PSA’s Id.; petition. Spencer see Livestock text, unambiguous clear and choosing in Dep’t. Agric., Comm’n Co. v. 841 F.2d guided by stead to be legislative history its (9th Cir.1988) (observing policy They considerations. should primary purpose while the PSA’s was to guided by have been Cooper, text. See fair prevent assure mo 577; Lamie, at U.S. 125 S.Ct. nopolistic practices, sought pro it also 1023; U.S. at 124 S.Ct. Rogers, 513 protection deceptive vide from unfair and 225-26; Guilzon, F.3d at 985 F.2d at 823 tactics). business n. 11. passages Report These from the House London, ignored the court the “cardi- paint picture, do not argued by the clear statutory nal canon” of construction: fol- majority, Congress a singular had unambiguous low the words of the statute.8 Instead, passing the PSA. Germain, See Connecticut Nat. Bank v. uncertainty. point. reveal That is the 249, 253-54, “These uncertainties illustrate difficul- (1992) (“[I]n L.Ed.2d 391 interpreting a ty relying legislative history here and always statute a court should turn first to advantage of our determination to rest one, cardinal canon before all ... others holding statutory our on the text.” La- legislature says a statute what it mie, means at S.Ct. 1023. Es- and means in a says statute what pecially Congress’s where intentions and there.”). Instead, the court chose equivocal, concerns are it is better to be guided by legislative the PSA’s guided by plain language history, and the basic precept: ultimately provisions ancestry,” “policy “it is “antitrust consider- London, principal our laws rather than the [or the ations.” 410 F.3d at 1307. Even Corp., as both antitrust and a consum- 7. London v. Fieldale Farms 410 F.3d (11th Cir.2005); Tyson er-protection Pickett v. statute” Fresh whereas the PSA was Inc., Meats, (11th Cir.2005); 420 F.3d 1272 solely directed at antitrust. Given that one of Been, 495 F.3d 1217. specifically purposes enumerated of the "protect PSA was to consumers from unfair and, merely 8. Pickett followed London there- practices,” supposed business distinction fore, its construction of the PSA is flawed for not, Judge suggests, does as Chief Jones ren- Pickett, the same reasons. See 420 F.3d at Sperry inapplicable. der & Hutchinson 1279-80. anti- than a mirror of the “nothing more so, purposes analysis of its laws”). Lastly, Been did legislative trust where ignores portion statute text, statutory at 1302 briefly See id. inter- history and case law. address catch-all, H.R.Rep. No. (citing portions selected preting to be other ignoring while wrong analysis simply 85-1048 its Stafford and cases state report II, of that parts pp. Part supra, See explained above. protect was to purpose of the PSA another 8-9. and unfair busi- deceptive producers Been, Pickett, in engage and London practices).9 ness analysis plain language no of the almost it too logic is flawed because Been’s PSA, on preferring instead to focus analyzed plain text properly never history Although legislative purpose. it relied on the the statute and because purport legis- to be rich with opinions Been, in 495 analysis unsound London. analysis history purpose, lative their London, Been at 1228-29. As F.3d history ignores legislative sections of the of the PSA’s portions failed to address reading of the support that an alternate sup history and that legislative Stafford analysis little textual do PSA. What (a) and port a conclusion that subsections (a) suggesting that subsection is perform, injury. Id. require competitive not do PSA, wrong. for the is Be- the “catch-all” at Been also strained to distin 1232-33. nothing holdings cause their warrants cases that came guish other Tenth Circuit plain language from the departure (at contrary conclusions. Id. at 1230 statute, majority’s to follow decision Peterman v. tempting distinguish imprudent. our sister circuits is See So- (10th USDA, Cir.1985), 770 F.2d 888 I, v. Recovery branes Pool LLC Todd & tactic violated held that a “bait and switch” 216, Corp., 509 F.3d 226 Hughes Constr. 192(a)’s deceptive practice with ban (5th Cir.2007). Fur competitive injury). out mention of

ther, backdrop Been focuses on the PSA’s V laws, why in antitrust but never addresses {Been) the Tenth and Eleventh While if it were in Congress enacted London) Circuits10 have held only pre-existing {Pickett tended to mirror laws. competitive injury required that a is under Id. at But see In re Cattle Western (1988) Co., PSA, 992, circuits have not defini- Agric. (reject 47 other Dec. 1052 competitive that a ing tively showing that would treat the PSA as held arguments remaining e.g., Spencer Circuit is the circuit 9. See Livestock Comm’n Co. v. 10. The Fourth 1451, (9th likely competitive Dep’t Agric., held that a effect is 841 F.2d 1455 to have violation, Cir.1988) required (rejecting argument the PSA to find a PSA but it did so effect, unpublished opinion. requires proof anticompetitive In Philson v. of an a short Co., 625, Milling which the based on an “in Goldsboro 164 F.3d 1998 court found was 24630, U.S.App. complete understanding objectives WL LEXIS 1998 USDA, (4th 5, 1998) Act”); (unpublished), *11 Cir. Oct. Bosma v. 754 F.2d 808 (9th Cir.1984); Wilcox, upheld jury 630 F.2d court the trial court’s instruction Rice v. (8th Cir.1980); competi Wyk Bergland, requiring proof likely v. of a effect on Van Cir.1978); (8th Valley With no F.2d tion to find a violation. Solomon Feedlot, Butz, (10th analysis, simply v. the court cited Farrow Inc. v. 557 F.2d States, USDA, (8th Cir.1985) Cir.1977); F.2d & Co. v. United Swift USDA, (6th (7th Cir.1968) (all reaching v. F.2d Parchman conclusion); Been, Cir.1988) Farrow) support (quoting its con same 495 F.3d at 1241-42 (Hartz, J., (same). concurring/dissenting) clusion. necessary for a likely injury all the violation. arguing injury required. addressing The court was conduct that ninety years have the last cases for circuit to fall into an antitrust frame- appeared competi- showing uniformly required (an agreement between two livestock work majority misconstrues injury, tive compete against each dealers not to other v. Jong Packing De Co. such as cases auction), at a purchases certain and the USDA, IBP, USDA, Inc. v. v. Farrow degree court’s discussion centered on the Glickman, Company Armour and (whether required of evidence the harm held Although those courts States. United merely poten- actual or could be had to be vi- injured competition would conduct tial) type (competitive of harm and not the PSA, they did not hold such olate the otherwise) A required. that the statute every case. injury required is a element injury in the con- discussion the Ninth Circuit De example, For facially anticompetitive text of a violation applied an antitrust Jong Packing Co. ineluctably lead to the conclusion does antitrust analysis based on statute’s anticompetitive that the PSA is limited to background but did not hold that PSA injury. Eighth The most recent Circuit anticompetitive conduct. only prohibits issue, IBP case to address the v. Glick- (9th Cir.1980). 618 F.2d 1336-37 man, similarly equivocal; it held that There, question involved the conduct “right agreement a of first refusal” be- change to coerce a “concerted efforts group meatpack- tween a of feedlots and a facially appeared practices,” market give ing company, prefer- which did some surprising It is not anticompetitive. to be meatpaeker ence to the but did not do so competitive harm that the court discussed “unduly, required for a violation of the facially anticompeti- a dealing when Act,” “potentially suppress did not or re- that a violation. The court held “rea- tive competition pro- duce sufficient to be that harm to the mar- sonable likelihood” by the Act.” scribed 977 to find a ket would occur was sufficient (8th Cir.1999). that a Holding violation 192(a). §of Id. A more recent violation potentially suppresses or reduces Case, Spencer Ninth Livestock Circuit pro- would be sufficient to be Co., that the “was not Comm’n held by the PSA does not mandate the scribed merely prevent monopolistic to intended converse. While Farrow and Glickman practices, protect but also to the livestock injures competition hold that an act that deceptive market from unfair and business PSA, may they be unfair under the do not (finding tactics.” 841 F.2d at 1455 that the injure hold that all unfair acts must com- challenged deceptive practice act was a petition. regardless § of whether it

under 213 A Eighth third Circuit case cited competitors). consumers or harmed support prop- PPC offers even less for the proposition Farroto is often cited for the requires competitive osition that the PSA practice injure likely that a must or be injury showing. In Jackson v. Eck- Swift injure competition Inc., in order to be consid- rich, court affirmed the district that, law, ered unfair under the PSA. 760 F.2d holding court’s as a matter of (8th Cir.1985). fact, In the court held “the claimed actions ... were neither de- 213(a) ‘unfair’ under if it practice injurious competition, nor ceptive “[a] unfair, injures likely injure competition.” unjust or is they were or unreasonable.” (8th Cir.1995) Co., (citing DeJong Packing (quoting Id. at 214 F.3d Inc., 1336-37). context, Swift-Eckrich, holding In F.2d at Jackson (em- (W.D.Ark.1993) necessarily imply injury F.Supp. does not 192(a) (b) added)). holding that and circuit this court’s The district phasis “unfair, injury. unjust showing competitive separated thus courts “decep- did, holdings actions from those if of other unreasonable” Even competition,” implying injurious to circuit of its tive or circuits do not relieve this necessary, of either was but showing that a cor- responsibility attempt to reach the Although both necessarily both. not on the well-established rect result based the defen- ultimately found courts statutory interpretation. Pre- methods violate did not dant’s actions it dictability may important, but does competitive , even mentioned neither trump the correct result. See Aviall not injury its discussion. Servs., (relying plain text to L.Ed.2d 548 on Armour, the Seventh Circuit focused circuit deci- contrary reverse scores of deciding harm in competitive the lack of sions). purchasers

that a 50-cent rebate not “unfair” under bacon was thick-cut (7th (b). 402 F.2d 712 Cir. VI 1968). allegations Given that the involved

price cutting, Judge explained the focus on As Hartz in his well- Been, again surprising. concurrence, harm When the reasoned 495 F.3d at price cutting involves alleged (Hartz, J., unfairness concurring/dissenting), necessarily requires inquiry preda into construction of the PSA that does not re- injury it tory competitive intent or because quire competitive injury is further bol- distinguish between is often difficult by Supreme interpreta- stered the Court’s healthy pricing practices. predatory and language tion of similar the Federal fact, alleging price 720. In a claim Id. at Act”). (“FTC Trade Commission Act Us- fits much better within subsection cutting similar of the ing language (c), require competitive injury, which does 45(a)(1) PSA, § provides: of the FTC Act (a). than it subsection ArmowSs does competition “unfair in or af- methods analysis is thus muddied the fact that it commerce, fecting deceptive and unfair or involves a claim that should have been commerce, practices affecting acts or in or brought competitive under one of the sub hereby are declared unlawful.” 15 U.S.C. many sections. Armour also suffers from 45(a)(1); Armour, see 402 F.2d at 722 problems plague of the same London. (“Section 202(a) liberally should be read instance, plain it For failed to construe the enough types to take care of the of anti- language of the statute and instead at practices properly ‘un- competitive deemed tempted to determine the of the (15 by the Federal fair’ Trade Commission through viewed an antitrust lens. Id. PSA 45) and also to of the U.S.C. reach (construing at 722 the PSA as if it were injuries special mischiefs and inherent law). merely another antitrust Further traffic.”). poultry Compari- livestock more, jurispru the Seventh Circuit’s PSA son of the PSA to the FTC Act is warrant- far from uniform or clear. dence is See offspring ed because the is an PSA Meats, Inc., Tyson Schumacher v. Fresh Been, (Hartz, FTC Act. 495 F.3d at (D.S.D.2006). 748, F.Supp.2d J., concurring'dissenting). The short, enacted 1921 because the antitrust laws although

In have several circuits and the Act alone were deemed inad- competition that harm FTC practices held PSA, equate dealing packing with the meat meaning are unfair within the ah, necessarily industry. 1 H. Davidson et AG- holdings support these do not John 3.02, Co., 392, 396, at 187 Picture Adv. Serv. 344 U.S. RICULTURAL LAW (1953). 361, (1981). 73 S.Ct. L.Ed. history interpreta- of the Court’s Co., Sperry In FTC v. & Hutchinson the Sperry Act tions of the FTC & Hutch- rejected Supreme argu- Court history on that have inson’s comments similarly provision that this worded ment particular implications interpreting required proof Act of an anti- of the FTC original PSA. The version of the FTC 233, 239-40, effect. 405 U.S. Act, enacted in did not include the (1972). L.Ed.2d 170 92 S.Ct. language empowering prevent FTC (“FTC”) Federal Trade Commission had “unfair or deceptive practices acts prohibiting an order certain ac- entered commerce”; Act provided power only (S&H), Sperry Hutchinson tions of & to prevent competition “unfair methods of claiming it had violated the FTC Act in commerce.”11 Federal Trade Commis- operation “to attempting suppress Act, 63-203, § sion Pub.L. No. 38 Stat. stamp exchanges and other ‘free trading year before redemption of open’ stamps.” Id. PSA, Supreme enactment of the Court challenged the 92 S.Ct. 898. S&H adopted limiting interpretation of “unfair The Fifth vacated the or- order. Circuit competition,” restricting methods of only halt der and held that the FTC could practices covered to those “heretofore re- conduct that “violated either the letter or garded opposed good morals because of the antitrust laws.” Id. at spirit faith, by deception, characterized bad appealed 898. The FTC oppression, against public fraud or or as Supreme Court and there admitted policy dangerous tendency because of their conduct violated neither the S&H’s unduly to hinder create mo- laws; spirit nor antitrust letter but Gratz, nopoly.” FTC v. rather, power given contended (1920); 64 L.Ed. 993 see by to the FTC the FTC Act was not Hutchinson, Sperry & 405 U.S. at 92 to antitrust at limited violations. Id. Later, however, Supreme S.Ct. 898. Supreme agreed, 92 S.Ct. 898. The Court in changed Kep- Court course FTC v. R.F. holding “empower[s] that the FTC Act Bro., Inc., pel & 54 S.Ct. proscribe practices as unfair or [FTC] Sperry 78 L.Ed. 814 See Hutch- & in deceptive upon their effect consumers inson, 242-43, at U.S. S.Ct. 898. regardless quality of their nature or as a Keppel, marketing the Court held competitive practices their effect on though scheme could be unfair even it did added). competition.” (emphasis Id. “anticompetitive consequences not have af- approach Sperry This flexible in & Hutch- ter the manner of the antitrust laws.” 405 inson also reaffirmed the Court’s earlier at U.S. S.Ct. 898. Court then holding point that where a method “[t]he Keppel “perspec- noted that the decision’s ‘unfair’ becomes within legislatively tive” of the FTC Act “was meaning of the Act will often turn on the confirmed” in 1938when amend- situation, exigencies particular of a trade ed adding phrase the Act “unfair or practices, practical requirements or the of deceptive practices” original acts or to the question.” competition.” the business in v. Motion ban on “unfair methods of FTC glosses Notably, Judge Chief "terms of art” in the FTC Act. She 11. Jones’ used over this by collapsing discussion makes no mention of the distinc- critical difference "terms of art” competition” markedly interpretations tion between "unfair method of different into a term, single deceptive practices” generic as "unfair.” and "unfair or acts or omitted). (internal VII quotation marks Id. thought the “unfair The Court policy argu- a number of PPC makes language did practices” acts or deceptive favoring a construction that re- ments anticompetitive conduct. See require First, injury. following quires competitive 192(a) §in language original id. The Been, PPC contends that the London “[e]ngage it unlawful to the PSA made may require written it to statutory text as unfair, discriminatory, unjustly

or use for claims defend federal causes of action or device in com- deceptive practice 67-51, otherwise have been state law that would merce.” Pub.L. No. Stat. London, Been, 1304; ... practice “unfair ... com- at 161. The issues. F.3d very language (“Not con- language merce” 495 F.3d at 1229 show- Supreme Sperry Court & strued injury or the ing likelihood requiring an “effect on Hutchinson as not make a federal case out of thereof would at 92 S.Ct. competition.” U.S. contract.”). every breach of But the fact language of PSA more may poultry that a statute burden live clearly require- competitive-effect omits a improper; not mean that it is dealers does language Act ment than does the FTC Congress could well have concluded Been, 495 F.3d at Keppel. construed justified protect were such burdens (Hartz, J., coneurring/dissenting) Furthermore, growers. Supreme not use the (noting does FTC nar- previously Court has refused add competi- “unfair language Act’s methods (RICO), rowing to a statute de- language tion”). Thus, substantially in construing the contention that the statute as spite Act, language similar in the FTC the Su- to turn an written threatened abundance rejected argu- preme squarely Court viola- garden-variety disputes local into prohibit prac- ment that the FTC cannot Bridge of federal law. v. Phoe- tions See being proof tice unfair there is unless Corp., 553 nix Bond & Indem. anticompetitive effect. And the PSA 2131, 2145, 170 L.Ed.2d grants authority regulate than broader (2008). PPC also fears the effects of a statutes, previously including the enacted “standardless” definition “unfair.” FTC Act. H.R. REP. NO. However, “unfair” degree to the (1921) (noting that the PSA “is most standardless, unlikely it is to remain so comprehensive measure and extends far- terms, long. statutory Like most those any previous regula- ther than law the receive within the PSA will definition and business, private peace, tion of in time of through language refinement except possibly the interstate commerce itself, agency adjudication, regula- statute act”). If language the same under the tion, Here, judicial proceedings.12 Act not im- FTC does adverse question of whether PPC’s different treat- pact competition, on then it should not be hand, Growers, differently construed under the PSA. ment of the on one and Mr. London, example, interpretation view in where the For the USDA's was reflected provide guidance. position challenged the PSA can some USDA took the that the specifically Government noted in its amicus brief that the act violated the statute because it (but sole) justification. agrees primary USDA a valid economic not lacked Secretary regula- of the PSA is to foster of the USDA has also issued and, reason, practices policy clarifying for that that have the tions statements 192(a). See, potential e.g., §§ efficiency to enhance should 9 C.F.R. 201.98- not be 201.100, 201.108-1, 203.2(c), 203.7(c), condemned as "unfair” under the PSA with- out consideration of effects. This 203.10.

385 other, in indulges “unfair” or oth- lower court an erroneous inter- Pilgrim, on the Welden, pretation.” in of the statute should be United States v. 377 erwise violation 95, 12, 1082, remand in the context of n. 12 determined on U.S. 103 84 S.Ct. omitted). standards, (1964)(citation justifica- industry the economic “To L.Ed.2d 152 actions, the motives by for the explain tions the cause of non-action Con- actions of those concerned.13 gress Congress light when itself sheds no into speculative is to venture unrealities policy in all underlying

An flaw of PPC’s in quicksand ... walk when [Courts] they implicitly urge us arguments is [they] try to find the absence of correc- plain language construe the not to legislation controlling legal princi- tive statute, instead, to substitute our own but Hallock, 106, ple.” Helvering v. for those of Con policy determinations 120-21, 84 604 S.Ct. L.Ed. Courts, however, cannot take the gress. Supreme As the has Court stated: place Congress deciding matters Hill, Valley Auth. v. policy. Tenn. many This Court has times reconsidered 153, 194-95, 98 S.Ct. 57 L.Ed.2d U.S. statutory constructions that have been (1978); INS, 171 see also Moosa v. passively by Congress. Congres- abided Cir.1999) (Courts (5th “will F.3d frequently sional inaction un- betokens second-guess policy prop such choices not awareness, preoccupation, paralysis. branch”). A erly legislative made Allen, Zuber v. n. U.S. appraisal court’s “individual of the wisdom (1969) (internal 314, 24 L.Ed.2d 345 particular or unwisdom of a course con omitted); quotes see also Prostar v. Mas- sciously selected is to be (5th Cir.2001) 239 F.3d sachi process interpreting in the put aside (“Inertia legislative pro- is endemic to the Hill, 437 U.S. at statute.” cess, rendering congressional inaction a 2279; see also Tel. Co. Southwest Gen. interpretive guide.”). By problematic giv- (5th States, v. United silence, significance ing Congressional (“The Cir.1971) expediency wisdom or of a majority improperly bases its decision regulation open given law or speculation plain rather than the text of courts.”). question Because Con the statute. gress’s expressed unambigu mandate is terms, act ous this court should not as a VIII Congress’s “committee of review” for wis reasons, foregoing respectfully For the I Hill, enacting dom the PSA. holding dissent from the of the court. I 98 S.Ct. 2279. would affirm the order of the district Furthermore, contrary majority’s to the court. it is not reasonable to conclude suggestion, Congress’s failure to amend the PSA be taken as silent ratification. should expect Congress should “not

Courts every

make an affirmative move time a concurrence, Judge nity giving 13. In her Chief Jones re- on remand to show that Mr. Pil- peatedly that the PSA cannot read as states grim growers a different contract than other prohibiting legitimate competitive activity or industry "unfair” in the was not context of stemming acts from an honest and fair com- standards, justifications the economic for the point petitive way is in no in- motive. This actions, and the motives and actions of those compatible reading with the dissent’s concerned. noted, opportu- PSA. As PPC would have the

Case Details

Case Name: Wheeler v. Pilgrim's Pride Corp.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 15, 2009

Citation: 591 F.3d 355

Docket Number: 07-40651

Court Abbreviation: 5th Cir.