A top Justice Department official says the Biden administration is taking an aggressive approach to agricultural antitrust issues, pursuing even particularly difficult cases to help protect American farmers and promote competition within the industry.
“We're willing to go even where we face some legal obstacles,” Deputy Assistant Attorney General Michael Kades told members of the National Farmers Union at their annual meeting this week in San Francisco. “Even when the facts are complicated or the law is challenging, we need to—and are committed to—pursuing meritorious cases.”
Kades said the division is pursing Packers and Stockyards Act cases and pushing back against “unduly narrow” interpretations of the law that he says allow violations to occur.
The department has expressed interest in several agricultural issues in the last couple of years, investigating price-fixing claims and filing briefs in relevant court cases.
Kades pointed to a recent statement of interest the department filed in rebuttal to John Deere’s claim of a safe harbor exemption in a court case surrounding equipment manufacturers' repair policies, and what Kade called a “groundbreaking” decree in an $85 million settlement agreement with a poultry processing company last summer.
Some of the division’s previous efforts involving agriculture, however, have not panned out in its favor. DOJ's attempt to convict five former and current executives of Pilgrim’s Pride and Claxton Poultry Farms of allegedly conspiring to fix prices failed three times in federal court.
“The commitment to antitrust enforcement and promoting competition and protecting American farmers to be successful needs to go beyond the antitrust division,” he said, noting President Joe Biden’s executive order on enhancing competition through a whole-of-government approach. “I don't want anyone here to think we're done in this industry. We still have plenty of work to do.”
The department has also been actively investigating price fixing claims in both the poultry industry and, according to documents obtained by Agri-Pulse, the beef sector.
Kades would not discuss ongoing investigations, but did say a significant number of attorneys and staff are working on ag-related issues—from enforcement to filing statements and engaging on policy. He rattled off a number of “concerns” department has heard from farmers: poultry processors potentially depressing wages of their workers and limiting competition for contract growers, beef packers allegedly “distorting” competition in the livestock market and dominant seed companies possibly using intellectual property to “forestall competition.”
He also encouraged NFU members to reach out directly to Chan Mazumdar, the division’s special counsel for agriculture.
“We are committed to enforcing the law,” said Kades. “Protecting competition in agriculture is at the top of our priority list.”
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NFU President Rob Larew described successful meetings recently with DOJ leadership, in which he gained strong engagement from the deputy assistant attorney general. NFU has seen a similar emphasis on competition with the Federal Trade Commission, the U.S. Trade Representative’s office, the Surface Transportation Board and other agencies.
In prerecorded remarks to the convention, Biden pledged to protect small farmers through Inflation Reduction Act investments.
“We're promoting competition and fairness for farmers,” he said. “You feed and fuel the nation. We rely on you.”
Meanwhile, Rep. Nancy Pelosi, D-Calif, rallied the farmers in person and highlighted Democratic priorities for competition, conservation and climate, drawing a standing ovation from the audience.
NFU members also heard from the lead attorney in a lawsuit charging the four largest beef packers with using their market power to unlawfully agree to reduce slaughter volumes to drive down cattle prices, while increasing the price of beef.
“The goal of the case is, yes, pressure for reform in the markets, but also compensation to cattle sellers,” said Thomas Undlin, a partner at Robins Kaplan LLP. “We challenged the cartel behavior through a private suit, but even a massive one like this is only one piece of the puzzle.”
Undlin said that even if the lawsuits are successful, they often result in only partial satisfaction for the victim. He argued that reform in the markets is much more important in the “fight against too much concentration, too much market power.” He called NFU’s advocacy on that front “absolutely critical.”
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