Attorney provides tips on new government regulations for poultry growing contracts NASHVILLE, Tennessee – With the U.S. Grain Inspection, Packers and Stockyards Administration (GIPSA) planning to introduce new regulations for poultry growing contracts, the U.S. Poultry & Egg Association recently called on attorney Clayton Bailey of Dallas’ Bailey Brauer PLLC to explain what the changes may mean for the industry. Watt Ag Net, one of the leading news sources for the global poultry, pig and animal feed markets, published a feature story about Mr. Bailey’s presentation at the Poultry & Egg Association’s 2016 Live Production and Welfare Seminar in Nashville, Tennessee. In the article, he is quoted as telling attendees: “GIPSA is looking into contracts and ready to conduct audits. So don’t be surprised if you get a telephone call from GIPSA soon saying that the agency wants to come to your offices to review documents.” Mr. Bailey is one of the country’s most-experienced attorneys when it comes to the Packers and Stockyards Act of 1921, the federal law designed to insure effective competition and integrity in the nation’s livestock, meat and poultry markets. He has successfully represented some of the world’s top poultry, pork and beef companies in GIPSA-related issues for decades. During his presentation, Mr. Bailey noted three changes that are expected from GIPSA this fall, including new requirements that: poultry companies report to appropriate state agencies any time a growing contract is terminated based on a grower’s violation of state environmental laws; poultry companies provide their growing contracts to GIPSA for publication; and poultry growers be ranked alongside those with similar housing in the tournament systems that determine flock settlements. Mr. Bailey also told attendees that GIPSA auditors will be setting their

Bailey Brauer PLLC: Grower’s actions violated animal welfare standards DALLAS – A federal judge in the Eastern District of Oklahoma has dismissed a poultry grower’s breach of contract claim against OK Foods Inc. of Fort Smith, Arkansas, after the company severed ties with the grower amid concerns over animal welfare standards. The company terminated its grower’s agreement with Earl Oldham of Stigler, Oklahoma, just over a year into the three-year agreement following the drowning deaths of an estimated 19,000 broiler chickens during a May 2015 rainstorm. It was the second mass die-off in five years blamed on groundwater flooding at the farm. After realizing the water was rising in his three poultry houses, Mr. Oldham requested the company remove all chickens from his property. Upon arrival, a company representative discovered that many of the chickens had already died. OK Foods took immediate steps to relocate the surviving chickens to a nearby poultry farm. After OK Foods notified Mr. Oldham that his contract would be terminated, the grower filed a breach of contract suit. The lawsuit dismissal follows a summary judgment motion filed by OK Foods’ attorney Clayton Bailey of Dallas’ Bailey Brauer PLLC. In granting the summary judgment, the court threw out Mr. Oldham’s claims seeking nearly $330,000 in lost-profit damages. “Mr. Oldham in essence moved to terminate the contract with his demands to remove the broilers from the farm, something OK Foods was more than willing to oblige,” says Mr. Bailey. He noted that the swift termination of the contract was in accordance with animal welfare policies implemented by OK Foods CEO and President Trent Goins, Vice President of Live Operations Gary Hogue and Director of Broiler and Hatchery Operations Kelly Garris. “OK Foods

Bailey Brauer PLLC represented Pilgrim’s in antitrust lawsuit DALLAS – A federal judge in Marshall, Texas, ruled in favor of Pilgrim’s Pride Corp. in a $500 million antitrust lawsuit filed by a group of poultry growers who accused the company of unfair trade practices and manipulating poultry prices. Pilgrim’s originally was sued by more than 500 plaintiffs who were current or former chicken growers in Texas, Louisiana and Arkansas, each of whom sought approximately $1 million in damages. They claimed, among other things, that Pilgrim’s forced them to spend millions of dollars to upgrade their operations before the company stopped doing business with them. The plaintiffs alleged Pilgrim’s made the move in order to manipulate poultry prices by reducing availability. The lawsuit claimed Pilgrim’s violated the Packers and Stockyards Act of 1921, which governs the interstate purchase and sales of livestock, poultry and swine. The case is Adams, et al. v. Pilgrim’s Pride Corp., No. 2:09-CV-00397, and was decided in the U.S. District Court for the Eastern District of Texas in Marshall. Pilgrim’s lead counsel was Clayton Bailey of Dallas’ Bailey Brauer PLLC. Pilgrim’s argued that it ceased operations with the facilities not to cause the chicken growers’ financial harm or manipulate the market, but rather because of market forces that led Pilgrim’s to file for bankruptcy protection shortly before the growers filed their lawsuit. In the opinion issued April 22, U.S. Magistrate Judge Roy Payne ruled in favor of Mr. Bailey’s client by dismissing the plaintiffs’ claims and holding that Pilgrim’s did not violate the Packers and Stockyards Act. In the seven-page ruling, Judge Payne agreed that Pilgrim’s shut down its operations at the contested facilities in response to “extrinsic market forces” and that

DALLAS and LOUISVILLE, Kentucky – The Louisville Board of Zoning Adjustment has approved JBS Swift’s proposal to implement a new, more humane slaughter method at the company’s pork processing plant in the city’s Butchertown neighborhood. The new system, approved April 17, will use carbon dioxide to render the hogs unconscious and unable to feel pain. The company needed zoning board approval to make room for a new building and equipment needed for the new system. Animal welfare experts say the carbon dioxide process is more humane and reduces the amount of stress for the animals. The method also is safer for Swift employees, who previously used approved electric devices for the same purpose. The change will make the Butchertown plant’s methods consistent with JBS’ three other U.S. facilities. “The carbon dioxide process is the preferred method because it reduces stress on the animals and is safer for workers,” says Clayton Bailey, name partner in the Dallas complex litigation boutique Bailey Brauer PLLC and one of the attorneys representing Swift before the zoning board. “We’re pleased that the board approved the plan.” In addition to Mr. Bailey, Swift was represented by attorneys Glenn Price and Bart Greenwald, from the Louisville office of Frost Brown Todd LLP. Bailey Brauer PLLC is committed to providing efficient, effective legal representation in high-stakes litigation. Led by experienced trial and appellate lawyers Clayton Bailey and Alex Brauer, the firm focuses on complex commercial litigation, agribusiness, appeals, and class and collective actions.

DALLAS – Lawyers from the complex litigation boutique Bailey Brauer PLLC have asked a Dallas judge to affirm a $46 million arbitration award against Merchant Customer Exchange LLC (MCX), a joint venture of some of the nation’s largest retailers, including Wal-Mart, Target, Hobby Lobby and Best Buy. The filing is the latest volley in a dispute between Boston-based MCX and Bailey Brauer’s client Gemalto NV, a worldwide developer of digital payment technologies. In 2013, MCX contracted with Gemalto to develop a mobile payment platform that could be used at the roughly 40 retailers that make up the MCX consortium. In February 2014, MCX canceled its contract with Gemalto and hired competitor Paydiant to complete the work. Shortly thereafter, Gemalto filed an arbitration claim against MCX, seeking $40 million in damages, plus interest, attorney’s fees and expenses based on the wrongful termination of the contract. On March 18, 2016, a three-member arbitration panel unanimously found for Gemalto, awarding the company $42.8 million and an additional $3 million in attorney’s fees. On April 4, MCX filed a new lawsuit in Dallas state court seeking to vacate the arbitration award. Gemalto called on Bailey Brauer’s Clayton Bailey and Ben Stewart to assist the company in the state court dispute. Gemalto’s response, filed April 14, asserts that the arbitration panel did not exceed its authority in issuing the award and that the court should therefore uphold it. Mr. Bailey and Mr. Stewart also successfully prosecuted a discovery battle in Delaware superior court over the production of documents pertaining to MCX’s communications with Paydiant while MCX was still under contract with Gemalto. The arbitration panel’s award included Bailey Brauer’s attorney’s fees in the Delaware dispute. In the underlying arbitration proceeding,

DALLAS – JBS USA LLC and Swift Pork Co. have successfully resolved a 10-year dispute over Swift’s use of a parking lot near JBS’ pork processing plant in the Butchertown area of Louisville, Kentucky. On Jan. 12, the Louisville Board of Zoning Adjustment (BOZA) granted Swift a conditional use permit to use the lot as a staging area for trucks awaiting pick up by grocery stores and other buyers of Swift brand processed pork. Among other improvements, Swift has agreed to install clean combustion technology on trucks in the staging area; install a tall wooden fence around the lot; add a landscaped buffer zone; and refrain from operating within 100 feet of homes between 10 p.m. and 7 a.m. The plant’s use of the lot has been in dispute since 2006, when the Butchertown Neighborhood Association Inc. and individual residents filed a lawsuit against Swift and the Louisville/Jefferson County Metro Government, which leased the parking lot to Swift. Neighbors complained about noise and diesel emissions from truck engines, among other issues. The lawsuit sat mostly dormant until 2013, when the plaintiffs amended their filing to include Swift’s parent company, JBS USA, as a defendant. Around the same time, Swift and JBS brought in their longtime litigation counsel Clayton Bailey from the Dallas complex litigation boutique Bailey Brauer PLLC to serve as co-counsel with fellow attorneys Glenn Price and Bart Greenwald from the Louisville office of Frost Brown Todd LLP. JBS and Swift defeated the lawsuit in March 2015, but still needed BOZA to grant its conditional use permit, which happened in January. “This has been a lengthy and complex dispute,” says Mr. Bailey. “But my clients weren’t going to back down, nor should they have.

Bailey Brauer PLLC co-founder recognized for commercial litigation expertise DALLAS – Attorney Alex Brauer, co-founder of the complex litigation boutique Bailey Brauer PLLC, has been named to D Magazine’s exclusive list of the Best Lawyers in Dallas for 2016 based on his work for clients in commercial litigation. Mr. Brauer’s broad commercial litigation practice includes representing clients in a wide range of industries. His current representations include, among others, an investment fund that was defrauded out of millions of dollars; a telecom company based in China involved in a dispute with a Brazilian supplier; and a commercial real estate brokerage firm in a tortious interference and breach of contract lawsuit. “I’m thankful to my peers and colleagues who voted for me,” says Mr. Brauer. “To be named among the city’s top lawyers is particularly gratifying when you consider the many excellent attorneys who are being recognized.” In addition to the recent D Magazine honors, Mr. Brauer has earned selection on the Texas Rising Stars list published by Thomson Reuters each year since 2010. A cum laude graduate of Florida State University, he completed his law degree at the Georgetown University Law Center, where he served as a law journal executive editor. To learn more about Mr. Brauer and his background, please see his Attorney Bio on this website. To compile the annual list of the top lawyers in Dallas, D Magazine editors solicited nominations from lawyers across North Texas. A handpicked panel of attorneys then worked with the magazine’s staff to determine the final list, which includes attorneys involved in a wide range of practice areas. The complete list is featured in the May 2016 edition of D Magazine and is available online at www.dmagazine.com.

Firm News As of this month, it has been over two and a half years since Bailey Brauer was formed in May of 2013. We have a tremendous team and appreciate the opportunity to work with our clients to obtain great results. We would like to thank our clients and friends and wish you much success in 2016. Can a defendant moot a class action by making an offer of judgment to the class representative for the full amount of damages available? Class action lawsuits can be very expensive to defend against. Defendants therefore seek every opportunity to end such lawsuits as quickly as possible. One strategy recently employed is to offer the class representative all damages to which she would be entitled and argue that the lawsuit is therefore moot. The Supreme Court recently heard oral argument on this issue and will decide whether the strategy can be successful going forward in early 2016. One of the mechanisms available to a defendant in federal court is Federal Rule of Civil Procedure 68 (“Rule 68”). Under Rule 68, a party defending against a claim can make an “offer of judgment” to the other side offering to allow judgment to be entered against the defendant on specified terms. If the plaintiff accepts the offer within 14 days, the court enters judgment against the defendant and the case is over. Why would a defendant make such an offer as opposed to forcing the plaintiff to convince a jury or judge to award a judgment? The reason is that an unaccepted offer creates risk for the plaintiff. If the plaintiff does not accept the defendant’s offer within 14 days and the judgment the plaintiff eventually obtains from the