With food at the top of people's minds on the eve of Thanksgiving, a coalition of 55 farming, ranching and consumer groups filed an amicus brief with the U.S. Supreme Court, protesting allegedly anticompetitive practices by major food producers.
The groups want the high court to review Terry v. Tysons Farms, a case brought by a Tennessee chicken farmer against the Springdale, Ark.-based poultry giant.
The farmer, Alton Terry, had a contract to raise chickens for Tysons, but when he assumed a leadership role in a newly-formed regional poultry association, he alleged that Tysons illegally retaliated against him, ultimately terminating his contract.
Terry sued, charging that Tysons violated the Agricultural Fair Practices Act of 1967 and the Packers and Stockyards Act.
In 2009, the U.S. Court of Appeals for the 6th Circuit upheld a lower court decision dismissing the case and awarding attorney fees to Tysons. The company was represented by Jay Jorgensen of Sidley Austin, while Terry was represented by Cynthia Noles Johnson of Johnson Law P.C. in Cohutta, Ga. Justice Department lawyers Jonathan Levy and Michael Raab filed an amicus brief on behalf of the U.S. Department of Agriculture supporting Terry.
In an issue of first impression before the 6th Circuit, the court found that Terry’s case failed because the plaintiff “must allege an adverse effect on competition in order to state a claim” under the Packers and Stockyards Act. The court also noted that this question has come before seven of its sister circuits, and all reached the same conclusion.
“The district court properly determined that although Terry asserts a number of wrongful acts by Tyson, his complaint does not allege that Tyson's actions had an anticompetitive effect,” the court found.
Now, 55 groups representing more than 400,000 farmers want the Supreme Court to reverse this decision and interpret the statute more broadly.
"The Terry case is critical to fulfilling Congress' intent that the Packers and Stockyards Act serves to protect farmers from abusive practices by dominant processors,” said David Balto, a Washington-based solo practitioner and former Federal Trade Commission official who is representing the farm groups. “Unfortunately, some courts have mistakenly concluded that in order to prevail under the PSA, a farmer must demonstrate an antitrust violation. That conclusion would make those Congresssmen turn over in their graves. The PSA was passed because the antitrust laws had failed to protect farmers and Congress recognized the need for a separate statute to protect farmers."