Jury returns $1.28 billion verdict

MONTGOMERY, Ala. -- Cattlemen won a landmark $1.28 billion price-manipulation verdict Tuesday against the nation's largest beef packer in a closely watched case that could affect the way other agricultural industries do business.

A federal court jury deliberated four days before agreeing with the cattlemen -- who claim to represent thousands of beef producers across the country -- that Tyson Fresh Meats Inc. used contracts with a select few ranchers to create a captive supply of cattle.

The cattlemen said that captive supply allowed Tyson to stay out of the cash market for cattle when prices were high and re-enter only when prices fell -- thereby keeping cattle prices low.

The verdict "really means that independent cattle business has an opportunity to survive, that consolidation will not continue in the feeding sector, and won't be forced by the packers," said cattlemen's attorney David Domina. "So we have an opportunity to keep our businesses and, in much of the Midwest, to keep those states going."

Attorneys for Tyson said they planned to appeal the verdict, which is a recommendation from the jury and could be lower than $1.28 billion. The final total will depend on the number of cattlemen affected and the amount of damages per animal, yet to be determined by the court.

"In my view, it's incompatible and inconsistent with the evidence," said Tyson attorney Thomas C. Green. "I suspect that there will be a lot more to say about this verdict before it's all over."

Several legal issues remain to be decided, most notably whether the judge will enter an order prohibiting certain uses of contracts.

An agricultural economist said an order restricting contracts will determine whether Tuesday's verdict affects the poultry or pork industries, both of which rely heavily on such contracts.

"If the judge comes out and prohibits these types of activities, the pork industry probably would feel it more so than others, including the cattle," said John Lawrence, director of the Iowa Beef Center at Iowa State University.

"Currently, something less than 15 percent of all the hogs are sold in the cash market. About 60 percent are on some type of contract," he said.

The impact of the verdict on consumers' pocketbooks, if any, will depend on the severity of any injunctive action, Lawrence said.

"I don't think we'll see much impact at the consumer level," he said. "If the long-term effect is to do away with the contracts altogether, then we're probably going to see some higher costs to achieve the same thing" in beef production.

Domina said visiting senior U.S. District Judge Lyle Strom likely will wait until after similar trials in Nebraska involving two other large packers, Swift & Co. and Excel Corp., before issuing any injunction. Spokesmen for both Excel and Swift declined comment.

The cattlemen will ask Strom to issue an order requiring that a "substantial amount" of the nation's cattle be bought on the cash market, not with contracts.

The court also must decide the size of the class. Beyond the six class representatives who in 1996 sued IBP Inc., which later merged with Tyson, no one knows how many ranchers sold cattle to Tyson during the class period of February 1994 to October 2002. The plaintiffs say the class could total as many as 30,000; Tyson contends that the number is much lower.

Springdale, Ark.-based Tyson said it does not expect the verdict to "materially impair" its liquidity or operations.

Mike Callicrate, who operates feed yards in Kansas and Colorado, called the verdict a "very rewarding" conclusion to eight years of lobbying against the use of marketing agreements. But he said he plans to continue working to reduce the dominance of the nation's largest packers.

"I want to see a breakup of these packers, and I want to see a lot more diverse food system, not a food system dependent upon a handful of companies who control the food supply and dictate the price to the consumer," Callicrate said.

Some other cattlemen, however, were less enthusiastic about the jury's finding.

"This is a bad verdict because cattle feeders have potentially lost their right to sell their cattle through very efficient and rewarding marketing agreements," said Mike Engler, president of Cactus Feeders. The Amarillo, Texas-based company is a major user of marketing agreements in the nation's largest beef-producing state.

Matt Brockman, spokesman for the Texas and Southwestern Cattle Raisers in Fort Worth, said the verdict is just one event in an ongoing debate.

"Obviously ours and everyone's overall objective is to have a marketplace that's free, competitive and fair to everyone," Brockman said.