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Alex Brauer from Dallas’ Bailey Brauer Named to Texas Rising Stars List

DALLAS – Attorney Alexander M. Brauer, a name partner in the Dallas trial and appellate boutique Bailey Brauer PLLC, has been recognized on the 2015 Texas Rising Stars list for his work in litigation matters. This is the sixth consecutive year that Mr. Brauer has been selected by the publishers of Rising Stars, which honors young legal leaders. To be eligible for the exclusive annual listing, a candidate must be either 40 or younger or in practice for 10 years or less. No more than 2.5 percent of Texas lawyers are selected to Rising Stars, which is published by Thomson Reuters’ legal division. To compile the list, the publication conducts a statewide survey of lawyers. Mr. Brauer represents individual and corporate clients in high-stakes litigation at both the trial and appellate levels. Mr. Brauer and his colleagues have a track record of delivering exceptional results for clients, including: • Obtaining dismissal of a lawsuit filed against a Florida-based company after challenging the jurisdiction of Texas courts; • Obtaining a favorable ruling in bankruptcy court for the former parent of Furr’s Cafeteria against the purchaser of the company’s assets; • Defeating antitrust and deceptive trade practices claims filed by nearly 200 plaintiffs from Louisiana, Arkansas and Texas in one of the nation’s most challenging venues; • Successfully resolving claims of an alleged fraudulent investment scheme during a federal jury trial, and; • Defeating fraud and contract claims alleged against a technology company officer in a complex multi-party dispute stemming from the issuance of preferred stock. “Alex is an extraordinary lawyer who achieves great results for his clients,” says Bailey Brauer co-founder Clayton Bailey. “He has had great success over his past 10-plus years of practicing, so

March 11th, 2015|Categories: Cases, News|

‘Shadow Banking’ Leads to Plunge in Texas Business Bankruptcy Filings

By Mark Curriden Senior Writer at The Texas Lawbook DALLAS (Jan. 13) – Former American Airlines General Counsel Gary Kennedy told a private gathering last month of a hundred internal legal and corporate advisers for Energy Future Holdings that the utility should brace itself for the “almost unimaginable costs” of being in U.S. Bankruptcy Court. “Our legal bills in the bankruptcy case at American Airlines ran about $500,000 a day,” Kennedy said, causing audible gasps from the EFH folks. “It has become too expensive to go bankrupt today. I tell people to avoid bankruptcy if at all possible because it is not a good time.” Apparently, a growing number of Texas business leaders agree. Hundreds of companies facing significant financial distress are bypassing federal bankruptcy courts as a means of restructuring debt and reorganizing their business models and are turning to private sources of relief instead. The number of Texas businesses filing for bankruptcy declined 20 percent in 2014 and plummeted more than 56 percent during the past five years, according to new statistics compiled by Androvett Legal Media. Legal and financial experts say the factors include a booming economy, dirt-low interest rates, an unprecedented access to cash through the emergence of a shadow banking system and the ballooning cost of litigating a case in bankruptcy court. But those same insiders predict that the plunging price of oil and gas will likely lead to a significant increase in new business bankruptcy filings in the next six months. “No business wants to go into Chapter 11 if they can help it,” says Martin Sosland, a partner in the Dallas office of Weil, Gotshal & Manges, which is widely acclaimed as one of the best bankruptcy law

January 14th, 2015|Categories: Cases, News|

Bailey Brauer Attorneys Defeat TracFone Injunction with Only 7 Days to Prepare

DALLAS – Attorneys from the Dallas complex litigation boutique Bailey Brauer PLLC defeated a motion by TracFone Wireless Inc. to enforce an injunction filed against two mobile phone resellers. Named partners Clayton Bailey and Alex Brauer and of counsel Ben Stewart were hired the day before Thanksgiving and took the case to trial only a week later. “We may not have had a traditional Thanksgiving this year, but we were highly motivated to prevent TracFone from obtaining a court order that would have been a massive overreach against our clients,” Mr. Bailey says. “Had TracFone won, our clients could have been held in contempt, possibly jailed, and forced to pay damages and attorneys’ fees – all for buying mobile phones that weren’t even listed in the injunction.” TracFone Wireless Inc. v. Vicki S. Brooks and Mohamed A. Mohamed was originally filed in 2008 in the U.S. District Court for the Northern District of Texas in Dallas. In the lawsuit, TracFone claimed that Ms. Brooks and Mr. Mohamed bought TracFone mobile phones in bulk, unlocked them to alter the software code so that other providers’ airtime could be loaded onto the phones, and then resold them. A default judgment was entered in September 2008 against the two defendants, along with an injunction prohibiting them from buying any TracFone products in the future. The case was dormant until earlier this year, when Ms. Brooks and Mr. Mohamed were allegedly seen buying TracFone products. TracFone then filed a motion to reopen the case and enforce the 2008 injunction by holding Ms. Brooks and Mr. Mohamed in contempt and awarding TracFone damages and attorneys’ fees. The two defendants appeared without an attorney at a preliminary hearing in November and

December 31st, 2014|Categories: Cases, News|

Bailey Brauer Helps Former Parent of Furr’s Cafeteria Prevail

DALLAS, Dec. 24, 2014 /PRNewswire/ -- Attorneys from the Dallas complex litigation boutique Bailey Brauer PLLC won a court battle over the filing and payment of back taxes for Buffet Partners L.P., the former parent company of Furr's Cafeteria. In a Dec. 17 ruling, Judge Harlin DeWayne Hale of the U.S. Bankruptcy Court for the Northern District of Texas ordered Atlanta-based Chatham Credit Management III LLC (CCM) to file and pay Buffet Partners' 2013 and 2014 taxes and preparation expenses, the combined total of which could be as much as $130,000. In April, CCM purchased the assets of San Antonio-based Buffet Partners, including Furr's Cafeteria, just two months after Buffet Partners filed for bankruptcy protection. Shortly after, CCM resold the same assets to Arizona-based Fresh Acquisitions LLC, which has since rebranded the Furr's franchise as Furr's Fresh Buffet. Although the purchase agreement between CCM and Buffet Partners required CCM to file Buffet Partners' tax returns and pay the taxes and preparation expenses, CCM repeatedly refused to do so, says Bailey Brauer named partner Alex Brauer. He represents Buffet Partners Holding Co. LLC (BPHC), which owns Buffet Partners and its general partner, Buffet G.P. Inc. BPHC did not file bankruptcy and participated solely as the equity interest holder of Buffet Partners and Buffet G.P. "Chatham Credit's purchase and immediate asset resale left Buffet Partners without the resources necessary to wind up their corporate affairs, including filing and paying their taxes," Mr. Brauer says. The situation was complicated by the fact that Chatham Credit is an affiliate of Chatham Capital Partners Inc., which holds the vast majority of Buffet Partners’ debt and essentially controls the company. "Chatham Capital has used its unique position to maximize its own recovery

December 31st, 2014|Categories: Cases, News|

Bailey Brauer Quarterly Newsletter – December 2014

Firm News - December 2014 The attorneys at Bailey Brauer obtained successful outcomes for several clients over the past quarter, including two notable examples. Defeating federal contempt allegations: Bailey Brauer was hired on the Wednesday before Thanksgiving to represent two individuals at a show cause hearing the following week. The defendants were facing contempt charges for allegedly violating a federal injunction. Attorneys Clayton Bailey, Ben Stewart and Alex Brauer, and Paralegal Brynn Long sprang into action over Thanksgiving weekend in preparation for the upcoming hearing. The federal magistrate judge found not only that our clients did not violate the injunction, but also that Bailey Brauer’s legal arguments carried the day and the injunction was unenforceable as written. Obtaining resolution of Furr’s Cafeteria bankruptcy issues: Within 90 days of being retained, Attorneys Ben Stewart and Alex Brauer obtained a favorable ruling in federal bankruptcy court requiring the investment fund controlling the bankrupt entities to pay administrative expenses and address outstanding tax issues. The ruling benefited limited partner investors represented by Bailey Brauer and allowed them to avoid potential tax liability. Is Your Injunction Enforceable? Injunctions are court orders that govern a party’s conduct. The most common form of injunction prevents a party from taking certain actions. An example is an injunction that prevents a person from buying or selling certain products. This is the type of injunction recently faced by two of Bailey Brauer’s clients. Because injunctions are orders issued by state or federal courts, they can be very powerful weapons. However, injunctions must meet certain requirements to be enforceable. Federal Rule of Civil Procedure 65 and Texas Rule of Civil Procedure 683 govern injunctions. They require, among other things, that the injunction: (a) state the

December 31st, 2014|Categories: Cases, News|

Bailey Brauer Quarterly Newsletter – September 2014

Firm News - September 2014 The attorneys at Bailey Brauer obtained successful outcomes for several clients over the past quarter. Examples include: - Defeating antitrust and deceptive trade practices claims of nearly 200 plaintiffs from Louisiana, Arkansas and Texas filed in one of the nation’s most challenging venues; - Successfully resolving claims of an alleged fraudulent investment scheme during a federal jury trial; and - Defeating fraud and contract claims alleged against a technology company officer in a complex multi-party dispute stemming from the issuance of preferred stock. Attorney Clayton Bailey was a guest speaker and provided a “Legal Update” at the U.S. Poultry & Egg Association’s 2014 Live Production and Welfare Seminar held in Nashville, Tennessee. As Hiring Improves, the Likelihood of Litigation Rises. As the jobless rate decreases, there has been an avalanche of lawsuits filed by former employers relying on the vagaries of trade secret and unfair competition laws to prevent the hiring of employees by competitors. What can you do to minimize your exposure? As the economy has improved over the last 18 months and individuals are joining new employers, we have noticed an uptick in lawsuits filed by employers accusing their former employees of stealing “trade secrets” or confidential and proprietary information. While many lawsuits may be necessary to shield against unlawful conduct, these lawsuits can unfortunately also be used by former employers as a sword to lash-out against the former employee that had the audacity to effectively “fire” his former employer. The lawsuits may also be used by companies to strike fear in competitors that might be contemplating issuing job offers to other current employees. The basic rule of fair competition for a departing employee is easy to state:

September 2nd, 2014|Categories: Cases, News|

Bailey Brauer Quarterly Newsletter – June 2014

Firm News - June 2014 Attorney Clayton Bailey and the Director of Litigation and Policy for the USDA's Grain Inspection, Packers and Stockyards Administration, Brett Offutt, co-authored a paper and discussed current legal issues impacting the agribusiness industry at the State Bar of Texas' 8th Annual John Hufaker Agricultural Law Seminar. Attorneys Alex Brauer and Ben Stewart’s representation of a Texas investment fund in a lawsuit filed against Hammerman & Gainer International, Inc. and various related entities and individuals was profiled by the Texas Lawbook on April 24, 2014. The legal representation provided by Bailey Brauer attorneys has resulted in over a dozen published opinions by federal and state courts in Texas and other jurisdictions. What are Your Rights as a Minority Owner of a Company? Claims for minority shareholder oppression no longer exist under Texas law. Are minority owners now left out in the cold when company insiders engage in bad acts? Not necessarily. When a minority owner of a Texas corporation, limited liability company or partnership disagrees with the actions taken by a majority owner, officer or director, he is generally left with two choices: (1) sell his interest in the company; or (2) go to court in an effort to change the behavior. Regarding the first option, the owner of a Texas partnership has a legal right to transfer or redeem his ownership interest. Unfortunately, owners of Texas corporations and limited liability companies do not. Assuming the company’s shares are not publicly traded and there is no contractual right to sell, the owner may have a very difficult, if not impossible, time selling his interest in the company. This is why it is extremely important to enter into an agreement governing the

June 2nd, 2014|Categories: Cases, News|

N. Texas Opportunity Fund Sues Hammerman & Gainer

© 2014 The Texas Lawbook. By Jeff Bounds Staff Writer for The Texas Lawbook (April 24) – A Dallas private equity fund is taking officials of a Louisiana company to task over allegations that they secretly set up a “shell” company to funnel money out of the business when the fund owned a piece of that company, court records show. The North Texas Opportunity Fund LP alleges in a petition filed April 9 in state district court in Dallas that officials of Hammerman & Gainer International Inc. surreptitiously set up the shell business partly so they could enrich themselves. Hammerman & Gainer previously was based in Irving, and shifted its headquarters to New Orleans in late 2008, court documents say. Additionally, the petition alleges, Hammerman & Gainer officials wanted to reduce the value of their company in anticipation of buying back the private equity fund’s 3 million preferred shares, for which it paid a total of $3 million between 2004 and 2005. “The fund was alerted by government authorities that Hammerman & Gainer and its related entities and principals were being investigated and hid revenue and profits from the fund. We believe they did hide revenue and profits, and we intend to aggressively pursue all of our claims,” said Arthur Hollingsworth, a partner at the fund, which has in excess of $25 million in capital under management. The fund previously sued the defendants over this same set of issues in 2012. North Texas Opportunity and the defendants agreed to postpone that litigation because of an on-going criminal investigation by the Internal Revenue Service, court documents show. North Texas Opportunity officials said in their petition this week that they received a grand jury subpoena from the

May 12th, 2014|Categories: Cases, News|

Dallas Trial Lawyer Alex Brauer Named Among Texas’ Top Young Attorneys

Complex commercial litigation attorney Alex Brauer, a founding partner of the trial and appellate law firm Bailey Brauer PLLC, is being recognized among the state's top up-and-coming attorneys in the 2014 Texas Rising Stars list published by Thomson Reuters' legal division. Less than 2.5 percent of Texas attorneys are chosen for the Rising Stars list, which will appear in the April 2014 issue of Texas Monthly and Texas Rising Stars magazines. The exclusive list is based on nominations from fellow lawyers and independent research that reviews lawyers' abilities in 12 key categories. In addition to results achieved for clients, the categories also include court experience and professional activity. This is Mr. Brauer's fifth consecutive appearance on the Texas Rising Stars list. Mr. Brauer has recently obtained several successful outcomes for Bailey Brauer clients in partnership and business disputes, and regularly defends and prosecutes claims of fraud, breach of contract, breach of fiduciary duty, conspiracy, theft of trade secrets, antitrust and RICO. He was also recently quoted, along with Bailey Brauer client Bath Fitter, in The Texas Lawbook on the successful use of alternative fee agreements in business litigation. Mr. Brauer is recognized on the 2014 Texas Rising Stars list based on his work in business litigation, general litigation and appellate law. In addition to successfully litigating and trying cases in federal and state courts throughout Texas, Louisiana, Arkansas, Nevada and Wisconsin, Mr. Brauer has an outstanding appellate track record representing clients before the 5th U.S. Circuit Court of Appeals and various Texas state intermediate appellate courts. 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. For more information, please contact Bailey Brauer

March 25th, 2014|Categories: News, Press Release|

Bailey Brauer Quarterly Newsletter – March 2014

Firm News - March 2014 Attorney Clayton Bailey has been recognized as a Client Service All-Star by The BTI Consulting Group of Wellesley, Mass. Attorney Bailey is one of only 330 attorneys nationwide to be recognized as a Client Service All-Star based on independent interviews with corporate counsel. Attorney Alex Brauer has been recognized as a 2014 Texas Rising Star by Thompson Reuters. This marks the fifth consecutive year that attorney Brauer has been recognized as a Rising Star. On February 14, 2014, attorney Brauer was quoted on alternative fee agreements in the Texas Lawbook. In December 2013, attorney Ben Stewart was interviewed by KLIF-AM’s Kurt Gilchrist regarding the lawsuit pitting Snuffer’s Restaurants, Inc. against Pat Snuffer. Attorney Paul Green was recently admitted to the United State District Courts for the Southern and Western Districts of Texas. No Confidentiality Agreement? You May Still Be Protected. One of your key employees just left and went to a competitor. Unfortunately, you never had her sign a confidentiality agreement. Is your confidential information in jeopardy? Maybe not. A best practice is to have employees working with your company’s confidential information (customer lists, bid processes, secret formulas, etc.) sign a confidentiality agreement. Even if this did not occur, however, your confidential information may still be protected. Under Texas law, a former employee may not divulge the trade secrets of his former employer. This is true even when there is no contract between the employee and employer prohibiting such disclosure. The primary issue then becomes whether your company’s confidential information qualifies as a trade secret. Many items may fall within the definition of a trade secret: customer lists; pricing information; customer preferences; and manufacturing processes to name a few. In

March 2nd, 2014|Categories: Cases, News|

Bailey Brauer’s Alex Brauer quoted on Alternative Fee Agreements in The Texas Lawbook

By Kerry Curry Special Contributing Writer for The Texas Lawbook February 14, 2014 – It’s been 20 years since Fred Bartlit and Philip Beck turned the typical law firm structure on its head and opened a firm that shunned the billable hour. Today, Bartlit remains revered for championing innovative price structuring in complex, high-stakes litigation, bringing national prominence to a firm that refuses to bill by the hour. But much time has passed, and Bartlit remains the exception, not the rule. While alternative fee arrangements have gained staying power, they show no evidence of overtaking the billable hour. Fred Bartlit “When we started in 1993, we felt we had a five-year window before our competition followed our innovation,” Bartlit said of his Denver/Chicago alternative fee law firm, Bartlit Beck Herman Palenchar & Scott LLP. “We were wrong.” Christopher Catapano, president of Bridgesphere, believes alternative fees have staying power and growth potential. The San Francisco-based consultant focuses on improving law firm financial performance. “Industry acceptance as to whether alternative fee arrangements are here to stay is — in some minds — still up for debate,” he said. “But I think if you look at the legal services industry and compare it to any well-developed industry in the United States, alternative fee arrangements are more than likely here to stay and more than likely a long-term reality that law firms will have to wrestle with.” The reasons are multifaceted. The legal industry has become more commoditized with lower barriers to entry and more standardized pricing, for example. In addition, during the Great Recession, corporations — especially large publically traded companies — took a fine-toothed comb to legal expenses, looking for ways to reduce costs. That scrutiny continues today. In some instances,

February 21st, 2014|Categories: Interview, News|

Dallas Trial Lawyer Clayton Bailey Recognized as Client Service All-Star

DALLAS – Attorney Clayton Bailey, co-founder of the Dallas complex commercial litigation and appellate boutique Bailey Brauer PLLC, has been recognized as a Client Service All-Star by The BTI Consulting Group of Wellesley, Mass. Mr. Bailey is one of only 330 attorneys nationwide to be recognized as a Client Service All-Star based on independent interviews with corporate counsel. “This elite group of standout attorneys – identified solely through unprompted client feedback – are recognized as delivering the absolute best client service,” BTI wrote in the Client Service All-Star executive summary. “No attorney can lobby to be added to the list, self-submit nominations or provide corporate counsel names to be interviewed. The only way to become a BTI Client Service All-Star is for corporate counsel to single out an attorney for a client service performance exceeding all others.” Mr. Bailey, who has extensive trial and appellate experience in complex litigation matters nationwide, was nominated by corporate counsel at a “Global 500” food processing company, according to BTI. “This is an incredible honor,” Mr. Bailey says. “Bailey Brauer’s legal team strives every day to deliver exceptional service and positive results to our clients, so it’s gratifying when our work is recognized by the people who are the main reason we come to work every day. This recognition proves what my law partner, Alex Brauer, and I said when we opened Bailey Brauer last year: Our clients can receive big-firm results and big-firm service in a more nimble and cost-effective small-firm environment.” In addition to his recognition by BTI, Mr. Bailey also has been named a Future Rising Star in Texas in the 2012 and 2013 editions of Benchmark Litigation, and as a Texas Local Litigation Star in

February 5th, 2014|Categories: News, Press Release|

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, rmurphy@dailypress.com 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, atwilliams@dailypress.com | 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|