Big chicken executives acquitted on all price-fixing charges
After two previous mistrials and an unprecedented third trial whose necessity was questioned by a judge, five executives of major chicken processing companies were acquitted July 7 by a Denver jury on charges of price-fixing and collusion brought by the Justice Department.
The first two trials ended with hung juries. After the second mistrial, the Justice Department dismissed charges against five of the original 10 defendants but retained five defendants. Jurors acquitted all five: Pilgrim’s Pride retired CEO Bill Lovette and his successor Jayson Penn, Pilgrim’s sales executive Roger Austin, Claxton Poultry President Mikell Fries and Claxton sales executive Scott Brady.
Legal observers have called this the “criminal antitrust trial of the year.” The online publication Drovers, the nation’s oldest livestock publication, called the result a “stinging rebuke” for the government.
The O’Melveny law firm, which defended the executives, said, “This is an unprecedented case with an unprecedented result” and called it a “monumental victory.”
In 2020, the DOJ charged 10 individuals from five poultry producers with a wide-ranging conspiracy to rig bids and fix prices of broiler chickens. In December 2021, after a seven-week trial, the jury failed to reach a verdict as to any of the defendants—and the DOJ retried the case. In the second trial, despite five weeks of testimony, 34 witnesses and 600 trial exhibits, none of the defendants was convicted and the judge declared a mistrial.
When the DOJ said it would try the case for a third time with the five defendants, hoping that would simplify the case. Chief Judge Philip Brimmer ordered the assistant attorney general of the Antitrust Division to appear in his court within a week to “look him in the eye” and explain in open court why a third trial would be consistent with the Justice Manual’s admonition that prosecutors should only pursue cases they believe will result in a conviction.
The third trial, which the Wall Street Journal called “astonishing,” began in June 2022 and ended with acquittals for all the remaining defendants after a day and a half of deliberations.
The O’Melveny team representing former Pilgrim’s Pride CEO Jayson Penn was led by partners Michael Tubach and Anna Pletcher, counsel Brian Quinn, Scott Schaeffer, Kelse Moen, and associates Meg Tomlinson, Enoch Ajayi, John Gonzalez, Alex Trabolsi, Melissa Cassel, Chris Philips, and Khadija Syed.
“The DOJ never should have brought these charges. We are proud to have zealously defended Jayson Penn. And while this result is a long time coming, we are thrilled with the outcome of this unprecedented and unnecessary third trial,” said Tubach.
“Notwithstanding the high burden of proof, the DOJ typically comes to federal court with the cards stacked in its favor. And the challenge is even greater with retrials, which notoriously favor the government. This group of defense attorneys fought the odds—three times—and won,” added Pletcher.
The additional defendants in the case were represented by teams from Recht Kornfeld PC, Troutman Pepper, Reichman Jorgensen Lehman & Feldberg LLP, Harris St. Laurent, Moore & Van Allen PLLC, and Eytan Nielsen LLC.
David Murray can be reached at [email protected].
