August 2013 – Bailey Brauer

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