Ben Stewart on Snuffer’s v. Snuffer Lawsuit

Bailey Brauer Counsel Ben Stewart joined KLIF-AM’s Kurt Gilchrist to discuss the local lawsuit pitting Snuffer’s Restaurants, Inc., against Pat Snuffer, who lost control of the Snuffer’s name after Snuffer’s Restaurants filed for bankruptcy earlier this year. Mr. Snuffer planned to open a new Snuffer’s in the original lower Greenville Ave. location, but the new owner of Snuffer’s Restaurants, Firebird Restaurant Group, demanded that Mr. Snuffer stop using the Snuffer’s name. In an apparent attempt to comply with the demand, Mr. Snuffer changed the name of his new restaurant to Pat’s Burgers & Cheddar Fries. Snuffer’s Restaurants then filed suit and obtained a temporary restraining order against Mr. Snuffer to prevent Pat’s from opening. The plaintiffs’ biggest challenge is likely to be its trademark and trade dress violation claims, Mr. Stewart said. “The Snuffer’s brand isn’t as well-known as some of the others,” he explained, referencing McDonald’s Golden Arches and the brown background and distinctive blue font on a Snickers candy bar wrapper. “You know what a McDonald’s looks like. When you drive past those arches, you know . . . Snuffer’s hasn’t reached that level.” Neither Mr. Stewart nor Bailey Brauer PLLC are involved in the Snuffer’s litigation.

December 11th, 2013|Categories: Cases, Interview, News|

Litigation Attorney Benjamin L. Stewart Joins Bailey Brauer Law Firm in Dallas

DALLAS – Bailey Brauer PLLC, a complex commercial litigation and appellate boutique, is pleased to announce that Benjamin L. Stewart has joined the firm as Counsel. Mr. Stewart represents corporate clients and individuals in complex commercial and bankruptcy litigation matters. He has successfully litigated cases in federal courts in Texas, Colorado and Delaware and in state courts throughout Texas. Mr. Stewart has also assisted companies with internal and government investigations, including responding to civil investigative demands from the U.S. Securities and Exchange Commission and the U.S. Commodity Futures Trading Commission. “Ben brings experience and skills far beyond his years,” says Bailey Brauer co-founder Alex Brauer. “He has the creativity and depth of expertise our clients need, and we’re excited to have him join us.” Mr. Brauer and Mr. Stewart met in 2008, when a client they both represented filed for bankruptcy. Mr. Stewart’s firm at the time, Weil Gotshal & Manges, served as bankruptcy counsel. “We found ourselves together in court on that matter quite a few times, and it became clear that we wanted to work with Ben again,” says Bailey Brauer co-founder Clayton Bailey. “We’ve kept in touch over the years, and now is the perfect time for him to come on-board.” Mr. Stewart is a member of the Federal Bar Association and serves on the Publications Committee of the Younger Lawyers Division of the FBA. He is also a member of the Texas Bar Foundation and volunteers with Texas Lawyers for Texas Veterans. Mr. Stewart received a Bachelor of Arts in 2001 from East Texas Baptist University. He earned his law degree in 2004 from Columbia Law School, where he was a Harlan Fiske Stone Scholar and served as a moot court

November 14th, 2013|Categories: Interview, News, Press Release|

Can Smithfield meet Chinese demand without driving up U.S. prices?

September 29, 2013|By Ryan Murphy, It's official: Smithfield Foods now belongs to Chinese pork giant Shuanghui International Holdings. The sale was approved by an overwhelming majority of shareholders on Tuesday, and with it came access to the burgeoning Chinese pork markets that Smithfield executives had been heralding as huge new source of potential profit. That raises two questions: Now that Smithfield has access, does it have the capacity to meet the demand? And will satisfying the Chinese demand increase the price of a ham in an American supermarket? Smithfield Foods chief executive Larry Pope told the Daily Press in June that the merger could temporarily increase the price of pork products in the U.S., but said farmers and processors would ramp up production and prices would settle over time. U.S. farmers would benefit from the increased demand for their products, he said. Smithfield owns 400 hog farms and contracts with 2,000 more. It employs more than 46,000 people internationally, 3,700 in Virginia. In a report to stockholders last year, Smithfield said its hog farms produce 15.8 million hogs annually. The pork segment of the company processed 27.7 million hogs in fiscal year 2012, the report said, and exports made up 18 percent of the company's pork sales for that year. The report said the total capacity of Smithfield's processing plants is about 110,000 hogs per day, or about 40 million each year. It would seem the infrastructure is in place to boost production. According to the U.S. Bureau of Labor and Statistics' Consumer Price Index, pork products in America have held fairly steady over the last year. Pork prices overall increased 1.7 percent between August 2012 and August 2013, led by an 8.2 percent increase in bacon and related

September 29th, 2013|Categories: News|Tags: |

WattAgNet interviews Clayton Bailey regarding new agribusiness regulations

What new GIPSA regulations mean for poultry industry Clayton Bailey discusses the new Grain Inspection, Packers & Stockyards Administration (GIPSA) final rules for 2013; both the feed weighing and scaling provisions and the ruling that pullets and breeders are now out of the scope of GIPSA regulations. Bailey is a partner in the Dallas law firm of Bailey Brauer PLLC. 2013-09-18

September 18th, 2013|Categories: Interview, News|

Bailey Brauer’s Clayton Bailey analyzes recent Fifth Circuit win

Bailey Brauer’s Clayton Bailey analyzes recent Fifth Circuit win for the Agriculture and Food Committee of the American Bar Association Section of Antitrust Law. Fifth Circuit reverses $25 million chicken price fixing lawsuit under PSA § 192(e) On August 27, 2013, the U.S. Fifth Circuit Court of Appeals issued an opinion reversing a judgment in excess of $25 million in favor of more than 90 contract poultry growers who alleged that Pilgrim’s Pride Corporation attempted to manipulate chicken prices in violation of Section 192(e) of the Packers and Stockyards Act, 1921 (“PSA”) by idling certain chicken processing plants and terminating the growers’ poultry grower agreements. The Fifth Circuit’s decision, styled Agerton, et al. v. Pilgrim’s Pride Corporation, No. 12-40085, 2013 WL 4523500 (5th Cir. Aug. 27, 2013), reverses and renders judgment in Pilgrim’s Pride’s favor nearly two years after a magistrate judge issued findings of fact and conclusions of law imposing liability on the company because the plant idlings and concomitant termination of the growers’ contracts presented the likelihood of an anticompetitive effect. The growers’ Section 192(e) claims stem from Pilgrim’s Pride’s restructuring efforts after seeking voluntary bankruptcy protection under Chapter 11 of the U.S. Bankruptcy Code in December 2008. According to the Agerton opinion, “[t]he primary reason” for the company’s weak financial condition “appeared to be the company’s over-extension into the commodity chicken market,” of which Pilgrim’s Pride apparently “held an estimated 50% market share.” Id. at *1. Pilgrim’s Pride targeted for idling operations “unnecessarily producing a surplus of commodity chicken at great cost to itself.” Id. As Pilgrim’s Pride idled the facilities, it also terminated the poultry grower agreements of local poultry growers who raised poultry for processing at the plants. Id. Despite

September 3rd, 2013|Categories: Judgment, News|

Smithfield Foods investor to propose rival merger

Starboard Value will oppose sale at Sept. 24 meeting, trying to buy time to firm up rival offer September 03, 2013|By Allison T. Williams, | 757-247-4535 | Daily Press Starboard Value LP, a New York investment company that owns 5.7 percent of Smithfield Foods Inc., says it will vote against a Chinese buyer's proposed takeover of the world's largest pork producer this month. In an open letter to Smithfield stockholders, Starboard said it is working with several third parties to produce an "alternative, all-cash proposal from a single entity" to counter Shuanghui International Holdings Ltd.'s proposed $4.7 billion cash acquisition of Smithfield Foods. The letter was filed Tuesday with the U.S. Securities and Exchange Commission. The vote is expected to occur Sept. 24 during Smithfield-based company's annual shareholders meeting at the Richmond offices of law firm McGuire Woods. Jeffery C. Smith, managing member of Starboard, wrote in the letter that his firm has received nonbinded written indications of interest from companies that collectively could exceed Shuanghui's deal to pay Smithfield stockholders $34 per share. Smith said it is likely that Starboard's proposal would be "superior" for stockholders, but that it needs additional time to produce its rival merger proposal. Under Smithfield and Shuanghui's merger agreement, the deal can be finalized as late as Nov. 29, Smith said. Starboard will vote against the merger on Sept. 24 in an effort to buy time to complete and submit its rival agreement. "Starboard is generally supportive of a sale of Smithfield … but we believe the board failed to run a full and fair process to sell the company … to ensure shareholders realized the highest possible price," Smith said. If unable to come up with a better acquisition

September 3rd, 2013|Categories: News|Tags: |

Bailey Brauer’s work in Fifth Circuit Court of Appeals recognized by Wolters Kluwers Antitrust Daily

From Antitrust Law Daily, August 29, 2013 Chicken supplier's efforts to reduce supply, increase prices not anticompetitive By Jeffrey May, J.D. One of the world’s largest suppliers of processed chicken did not violate Section 192(e) of the Packers and Stockyards Act of 1921 (PSA) by reducing its commodity chicken output in an ultimately unsuccessful attempt to avoid bankruptcy, the U.S. Court of Appeals in New Orleans has ruled. Section 192(e) of the PSA proscribes only anticompetitive conduct, and the defending supplier's conduct was “merely the legitimate response of a rational market participant to changes in a dynamic market.” A lower court's finding that Pilgrim’s Pride Corporation (PPC) idled chicken processing facilities in an unlawful attempt to manipulate or control poultry prices was reversed, and judgment was entered in favor of PPC (In the Matter of: Pilgrim’s Pride Corp., August 27, 2013, Per curiam). Facing severe economic difficulties in 2008, PPC shut down several processing and distribution facilities and restructured supply contracts, among other things, to stem its losses. These measures proved ineffective, and PPC filed for Chapter 11 bankruptcy relief in December 2008. Among the shuttered facilities was an El Dorado, Arkansas, processing complex. As a result of the facility’s closure, the husbandry services of some 163 contract chicken growers were no longer needed, and PPC rejected all related poultry grower agreements. In response to the termination of their growing agreements, a group of the affected chicken growers filed suit under the PSA, alleging that PPC had engaged in a course of business for the purpose of “manipulating or controlling prices” in violation of PSA § 192(e). After the lower court found that PPC violated the PSA, the complaining chicken growers were awarded over $25

August 29th, 2013|Categories: News|

Rainmaker Q&A: Bailey Brauer’s Clayton Bailey

Law360, New York (July 19, 2013, 9:58 AM ET) -- A partner at Bailey Brauer PLLC, Clayton E. Bailey relies on his 17 years of trial experience to guide clients in complex commercial litigation and appeals, and provide customized expertise to clients in the agribusiness industry. Renowned for his candid, plain-spoken advice, Clayton Bailey has litigated, tried and appealed cases involving contract disputes, business torts, RICO, ERISA, employment law, trade secrets, deceptive trade practices, fraud, breach of fiduciary duty, antitrust and wrongful death, and has successfully defended against putative class actions. His work on a Packers and Stockyards Act case not only benefitted his client, but also resulted in an influential appellate ruling that cemented the law protecting the entire agribusiness industry. A member of the Litigation Counsel of America and the Trial Law Institute, Bailey has been selected numerous times for inclusion in Texas Super Lawyers and was highlighted as the “Appellate Lawyer of the Week” by Texas Lawyer for his work as lead appellate counsel in a case before the U.S. Court of Appeals for the Fifth Circuit. Previously, Bailey was a partner at Baker & McKenzie, where he was the leader of the Dallas office’s litigation section. He graduated with honors from SMU Dedman School of Law. Q: How did you become a rainmaker? It boils down to satisfaction, success and security. Satisfaction: I enjoy being around people, and I love helping them resolve problems they had assumed were unresolvable. I also enjoy the point in every process when you have mastered a topic and are then able to transfer into a “creative” stage, developing new ideas that advance an issue to a new level. Rainmaking allows me to be around people and be creative. Whether it’s networking at an event, having a meal or drink with

August 28th, 2013|Categories: Interview, News|

Rainmaker Q&A: Bailey & Brauer’s Alex Brauer

Law360, New York (August 28, 2013, 12:44 PM ET) -- Alexander M. Brauer is a founding partner of Bailey & Brauer PLLC in Dallas, Texas. He represents businesses and individuals in various high-stakes litigation matters. He has successfully litigated and tried cases in federal and state courts throughout Texas, Louisiana, Arkansas and Nevada. Brauer also has a stellar record representing clients in appeals before the United States Fifth Circuit Court of Appeals and various Texas state intermediate appellate courts. Because of his success, Alex Brauer has been consistently recognized as a Texas Rising Star, as published in Thompson Reuters, every year since 2010. Brauer also serves on numerous committees such as the Dallas Bar Association’s Judiciary Committee and Fee Disputes Committee. He graduated cum laude from Florida State University and from the Georgetown University Law Center, where he served as executive editor of a law journal. Brauer’s practice focuses on defending and prosecuting complex commercial litigation matters involving claims of fraud, breach of contract, business torts, breach of fiduciary duty, conspiracy, deceptive trade practices, theft of trade secrets, RICO, antitrust, and violations of the Fair Labor Standards Act and the Packers and Stockyards Act. He has successfully defended against class and collective actions, and also represents parties in complex tort matters, including negligence and wrongful death cases. Q: How did you become a rainmaker? A: Doing exceptional work and providing extraordinary service, from day one, is the price of entry. And that’s the case whether you’re working directly for a client or you’re doing work for other attorneys at your firm. If a lawyer refers work to me for the first time, I’m just as concerned with doing a great job so that attorney will look good and continue to refer me business as I am with doing a great

August 28th, 2013|Categories: News|

5th Circ. Tosses $25M Antitrust Fine Against Pilgrim’s Pride

By Jonathan Randles Law360, New York (August 28, 2013, 1:21 PM ET) -- The Fifth Circuit on Tuesday struck down a $25 million judgment against Pilgrim's Pride Corp., ruling the chicken producer's decision to suspend operations at its Arkansas plant — a move intended to increase poultry prices — did not violate U.S. antitrust laws. The ruling overturns a penalty issued in 2011 against Pilgrim's Pride over its decision to cut costs by suspending operations at several of its facilities shortly after the company filed for bankruptcy. Pilgrim's Pride was producing more chicken than the market demanded and “wisely” chose to scale back production to try and save the business, the Fifth Circuit said. “PPC’s conduct was merely the legitimate response of a rational market participant to changes in a dynamic market,” the Fifth Circuit said. “If a firm inadvertently overproduces a good and drives down prices, it does not break the law by cutting production so that prices may recover.” Pilgrim's Pride had been found liable under the Packers and Stockyards Act, which prohibits meat producers from manipulating market prices. The appeal stems from a former Texas federal judge's finding that Pilgrim's Pride had violated the law because the company had hoped by reducing its output it would increase chicken prices. The Fifth Circuit said the lower court's analysis was too simplistic. The PSA, as an antitrust statute, is intended to protect market competition, and not necessarily low prices, the appeals court said. Therefore, Pilgrim's Pride's attempt to raise prices, by itself, is not a violation of the law, the ruling said. The Texas court needed to go deeper and determine whether the decision by Pilgrim's Pride to idle its Arkansas plant was intended

August 28th, 2013|Categories: Judgment, News|

5th Circuit Reverses $25 Million Judgment Against Pilgrim’s Pride

By Mark Curriden, JD Senior Writer for The Texas Lawbook (August 28) – More than 500 chicken growers in Arkansas, Louisiana and Texas claim that Pilgrim’s Pride Corporation (PPC) violated a 92-year-old federal law when it closed some of its chicken processing plants in 2009 in order to reduce chicken supplies in an effort to increase prices. Two years ago, a federal magistrate in Marshall agreed and awarded about one-third of them $25 million in damages, ruling that Pilgrim’s Pride illegally attempted to manipulate and control poultry prices by improperly shutting down some of its operations. But on Tuesday, the U.S. Court of Appeals for the Fifth Circuit reversed that decision, ruling that the poultry business founded in Pittsburgh, Texas in 1946 was within its legal rights to close the processing facilities in an effort to stem its losses and streamline operations. “PPC’s conduct was merely the legitimate response of a rational market participant to changes in a dynamic market,” Judge Eugene Davis and Judge Jerry Smith wrote in a unanimous opinion. “If a firm inadvertently over- produces a good and drives down prices, it does not break the law by cutting production so that prices may recover.” Judge Edith Jones participated in oral argument but did not participate in the decision. No explanation is given in the decision for her absence, which usually means a judge has discovered a conflict of interest and voluntarily recused themselves from the proceedings. Alex Brauer and Clayton Bailey of Dallas-based Bailey Brauer were the lead lawyers representing Pilgrim’s Pride. Other lawyers involved in the case include Dave Parham, Jennifer McCollum, Mike Pollard and Bill Roppolo of Baker McKenzie. Dallas plaintiff’s lawyer Mark Bordeur represents the chicken growers. Pilgrim’s Pride, which is

August 28th, 2013|Categories: News|Tags: , , , , , |

New pig virus is spreading across the country

Isle of Wight hog farmers using disinfectants, extra restrictions to protect herds July 23, 2013|By Allison T. Williams and Michael Welles Shapiro, | 757-247-4535 ISLE OF WIGHT — A virus that has killed thousands of young pigs in 15 states has now leaped from the Midwest to North Carolina. The states affected include eight where a Smithfield Foods hog-raising subsidiary has facilities. The company says none of its 12 sow farms — company-owned facilities where sows give birth to piglets — have been affected. Murphy-Brown, Smithfield's North Carolina-based hog farming unit, owns 460 farms and contracts with 2,100 farmers in 12 states. It has directed its farmers to take steps to protect their herds from the virus. No visitors are allowed and people who work with the animals wear boots and are sprayed with disinfectant whenever they leave a pig enclosure. Porcine epidemic diarrhea virus, known as PEDV, causes severe diarrhea and vomiting. Although pigs of all ages can be infected with the virus, older pigs have stronger immune systems and become more resistant to the disease, said Harry Snelson, a veterinarian and communications director for the American Association of Swine Veterinarians. "The highest mortality rate is in infected piglets younger than seven days," Snelson said. Entire herds of young pigs have died from the virus, particularly in the Midwestern states that are among the country's top pork producers. Previously, the virus was only found in Europe and China, where it killed more than a million young pigs last year. Researchers do not know how the virus reached the United States, but it is moving rapidly. It was first confirmed in Arkansas in May. By the end of June, it had spread to more

July 23rd, 2013|Categories: News|

Baker & McKenzie Alums Form Dallas Trial Boutique

By Jess Davis Law360, Dallas (July 09, 2013, 8:43 PM ET) -- A pair of former Baker & McKenzie LLP attorneys have opened a trial and appellate boutique in Dallas focused on complex commercial litigation and agricultural business, known as Bailey Brauer PLLC, the firm said Tuesday. Clayton Bailey, the former head of Baker & McKenzie’s Dallas litigation group, and Alex Brauer opened shop in mid-May with just one associate but plan to grow the boutique into a litigation and appeals powerhouse. They said working in a smaller firm allowed them to provide the same quality of legal expertise at a more cost-effective price for clients and gave them more freedom to provide alternative fee arrangements. A smaller firm also helps the attorneys avoid the complicated conflicts that sometimes forced them to turn down business at Baker & McKenzie, which now refers them some cases it cannot take, Brauer said. “The freedom and flexibility to work with clients on payment options or how to handle a case, and to be nimble and quick without a lot of big global politics to go through or conflicts checks before taking a case has made it a lot more fun and enjoyable,” Brauer told Law360. The two worked often together at Baker & McKenzie and racked up a string of wins at trials and in the appellate courts, including more than a dozen published opinions. Their clients include Pilgrim’s Pride Corp., Durez Corp., Harrell Nut Co., Sage Western Investments and Lone Star Investment Advisors, among others. “Together, we proved our mettle at one of the world’s largest law firms,” Bailey said in a statement. “And we will continue to deliver that kind of sophisticated, aggressive and creative work at Bailey Brauer.” The firm is expecting a decision shortly from the Fifth Circuit

July 9th, 2013|Categories: News|

Sale of Smithfield Farms About More Than Ham

Androvett News Dallas Attorney Clayton Bailey says Sale of Smithfield Farms About More Than Ham The proposed sale of Smithfield Farms, the country's largest pork producer, to China's Shuanghui International for $7.1 billion ultimately may be positive for the American pork market, but it is nevertheless a complicated transaction unfolding in a difficult political climate, says Clayton Bailey, a name partner in the Dallas litigation boutique Bailey Brauer PLLC. Bailey, who has significant experience handling agribusiness litigation, says the simmering distrust between the United States and China over trade secret matters, combined with Americans' concern over Shuanghui's track record on food safety issues, mean that the Smithfield transaction is more than "just business." He continues, "There's no denying that, by further opening the Chinese market to American pork exports, it could be a boon for U.S. pork producers, but the big question is how will Americans feel about eating pork that's being produced by a company that's owned by the Chinese?" — For more information, contact Amy Hunt at 800-559-4534 or

June 26th, 2013|Categories: News|Tags: , |