[Federal Register Volume 88, Number 103 (Tuesday, May 30, 2023)]
[Notices]
[Pages 34518-34522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11388]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Cargill Meat Solutions Corp., et al.; Response 
of the United States to Public Comments on the Proposed Final Judgments

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that the Response of the United 
States to Public Comments on (a) the proposed Final Judgment as to 
Defendants Cargill Meat Solutions Corp. and Cargill, Inc. 
(``Cargill''), Wayne Farms, LLC (``Wayne''), and Sanderson Farms, Inc. 
(``Sanderson'') (collectively, ``Processor Settling Defendants''); and 
(b) the proposed Final Judgment as to Webber, Meng, Sahl and Company, 
Inc., d/b/a WMS & Company, Inc. (``WMS'') and G. Jonathan Meng 
(``Meng'') (collectively, ``Consultant Settling Defendants'') has been 
filed with the United States District Court for the District of 
Maryland in United States of America v. Cargill Meat Solutions Corp., 
et al., Civil Action No. 22-cv-1821.
    Copies of the Public Comments and the United States' Response are 
available for inspection on the Antitrust Division's website at http://www.justice.gov/atr.

Suzanne Morris,
Deputy Director Civil Enforcement Operations, Antitrust Division.

United States District Court for the District of Maryland

    United States of America, Plaintiff, v. Cargill Meat Solutions 
Corporation, et al., Defendants.

Civil Action No.: 22-cv-1821

Response of Plaintiff United States to Public Comments on the Proposed 
Final Judgments

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h) (the ``Tunney Act''), the United States of America responds 
to the public comments received by the United States about (a) the 
proposed Final Judgment in this case as to Defendants Cargill Meat 
Solutions Corp. and Cargill, Inc. (``Cargill''), Wayne Farms, LLC 
(``Wayne''), and Sanderson Farms, Inc. (``Sanderson'') (collectively, 
``Processor Settling Defendants''); and (b) the proposed Final Judgment 
in this case as to Webber, Meng, Sahl and Company, Inc., d/b/a WMS & 
Company, Inc. (``WMS'') and G. Jonathan Meng (``Meng'') (collectively, 
``Consultant Settling Defendants''). The Processor Settling Defendants 
and the Consultant Settling Defendants are collectively the ``Settling 
Defendants.''
    After this Response has been published in the Federal Register, 
pursuant to 15 U.S.C. 16(d), the United States will move that the Court 
enter the proposed Final Judgments.\1\
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    \1\ On January 27, 2023, the United States moved the Court to 
permit the United States to publish the public comments on the 
Antitrust Division's website, due to the expense of publishing the 
comments in the Federal Register and the accessibility to the public 
of the Division's website. Those comments can be accessed at 
www.justice.gov/atr.
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    After careful consideration of the comments submitted, the United 
States continues to believe that the proposed remedies will address the 
harm alleged in the Complaint and are therefore in the public interest. 
The proposed Final Judgments will prevent the Settling Defendants from 
conspiring to (1) assist their competitors in making compensation 
decisions, (2) exchange current and future, disaggregated, and 
identifiable compensation information, and (3) facilitate this 
anticompetitive agreement. The United States appreciates that some 
commenters believe that other significant issues remain in the poultry 
industry. And the United States does not contend that the proposed 
Final Judgments address all potential issues in the poultry industry. 
The question before the court, however, is limited to whether the 
proposed Final Judgments appropriately address the antitrust claims 
alleged in the Complaint against the Settling Defendants. Upon a 
thorough review of the comments, the United States believes that the 
proposed Final Judgments do resolve those claims in the public 
interest.

I. Procedural History

    On July 25, 2022, the United States filed a civil Complaint against 
the Settling Defendants to enjoin them from collaborating on decisions 
about poultry plant worker compensation, including through the exchange 
of compensation information, which suppressed competition in the 
nationwide and local labor markets for poultry processing. The 
Complaint alleges that this conduct is anticompetitive and violates 
Section 1 of the Sherman Act, 15 U.S.C. 1. The Complaint also alleges 
that Defendants Sanderson and Wayne acted deceptively in the manner in 
which they compensated poultry growers in violation of Section 202(a) 
of the Packers and Stockyards Act, 1921, as amended and supplemented, 7 
U.S.C. 192(a) (the ``PSA''). As explained below, the proposed 
settlement as to the PSA claim is not subject to review under the 
Tunney Act.
    Contemporaneously, the United States filed the proposed Final 
Judgments as to the Processor Settling Defendants \2\ and the 
Consultant Settling Defendants, as well as Stipulations signed by these 
parties that consent to entry of the proposed Final Judgments after 
compliance with the requirements of the Tunney Act. (ECF 2 & 3.) On 
September 12, 2022, the United States filed a Competitive Impact 
Statement describing the proposed Final Judgments. (ECF 37.)
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    \2\ On July 22, 2022, the Processor Settling Defendants 
announced that a joint venture of Cargill and Wayne acquired 
Sanderson. The terms of the proposed Final Judgment apply to all 
successors of the Processor Settling Defendants.
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    The United States arranged for the publication of the Complaint, 
the proposed Final Judgments, and the Competitive Impact Statement in 
the Federal Register on September 16, 2022, and caused notice regarding 
the same, together with directions for the submission of written 
comments relating to the proposed Final

[[Page 34519]]

Judgments, to be published in The Washington Post every day from 
September 15-21, 2022. The 60-day period for public comment has now 
ended. The United States received five public comments in response, 
which are described below and attached as Exhibit A hereto.\3\
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    \3\ The United States received these public comments on October 
11, 2022, November 15, 2022 (two comments), November 16, 2022, and 
November 17, 2022. In Exhibit 1 attached herein, the United States 
has redacted any personally identifying information relating to the 
authors of the comments.
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II. Standard of Judicial Review

    The Clayton Act, as amended by the Tunney Act, requires that 
proposed consent judgments in cases brought by the United States under 
the antitrust laws be subject to a 60-day comment period, after which 
the court shall determine whether entry of the proposed Final Judgments 
``is in the public interest.'' 15 U.S.C. 16(e)(1). In making that 
determination, the court, in accordance with the statute as amended in 
2004, is required to consider:

    (A) the competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration of relief sought, anticipated effects of 
alternative remedies actually considered, whether its terms are 
ambiguous, and any other competitive considerations bearing upon the 
adequacy of such judgment that the court deems necessary to a 
determination of whether the consent judgment is in the public 
interest; and
    (B) the impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and 
individuals alleging specific injury from the violations set forth 
in the complaint including consideration of the public benefit, if 
any, to be derived from a determination of the issues at trial.

    15 U.S.C. 16(e)(1)(A) & (B).
    In considering these statutory factors, the court's inquiry is 
necessarily a limited one, because the government is entitled to 
``rather broad discretion to settle with the defendant within the 
reaches of the public interest.'' United States v. Microsoft Corp., 56 
F.3d 1448, 1461 (D.C. Cir. 1995); see generally United States v. U.S. 
Airways Grp., Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014) (explaining 
that the ``court's inquiry is limited'' in Tunney Act settlements); 
United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) 
(assessing public-interest standard under the Tunney Act); United 
States v. Charleston Area Med. Ctr., No. 2:16-cv-3664, 2016 WL 6156172, 
at *2 (S.D. W. Va. Oct. 21, 2016) (noting that in evaluating whether 
the proposed final judgment is in the public interest, the inquiry is 
``a narrow one'' and only requires the court to determine if the remedy 
effectively addresses the harm identified in the complaint); United 
States v. InBev N.V./S.A., No. 08-cv-1965, 2009 U.S. Dist. LEXIS 84787, 
at *3 (D.D.C. Aug. 11, 2009) (noting that the court's review of a 
consent judgment is limited, as the court only inquires ``into whether 
the government's determination that the proposed remedies will cure the 
antitrust violations alleged in the complaint was reasonable, and 
whether the mechanisms to enforce the final judgment are clear and 
manageable'').
    As the United States Court of Appeals for the District of Columbia 
Circuit has held, under the Tunney Act, a court considers the 
relationship between the remedy secured and the specific allegations in 
the government's complaint, whether the decree is sufficiently clear, 
whether its enforcement mechanisms are sufficient, and whether the 
decree may positively harm third parties, among other factors. See 
Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the 
relief secured by the decree, a court may not ``engage in an 
unrestricted evaluation of what relief would best serve the public.'' 
United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (quoting 
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see 
also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 
F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787, 
at *3. Instead,

[t]he balancing of competing social and political interests affected 
by a proposed antitrust consent decree must be left, in the first 
instance, to the discretion of the Attorney General. The court's 
role in protecting the public interest is one of insuring that the 
government has not breached its duty to the public in consenting to 
the decree. The court is required to determine not whether a 
particular decree is the one that will best serve society, but 
whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.

Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\4\
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    \4\ See also BNS, 858 F.2d at 464 (holding that the court's 
``ultimate authority under the [Tunney Act] is limited to approving 
or disapproving the consent decree''); United States v. Gillette 
Co., 406 F. Supp. 713, 716 (D. Mass. 1975) (noting that the court is 
constrained to ``look at the overall picture not hypercritically, 
nor with a microscope, but with an artist's reducing glass'').
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    In determining whether a proposed settlement is in the public 
interest, a district court ``must accord deference to the government's 
predictions about the efficacy of its remedies, and may not require 
that the remedies perfectly match the alleged violations.'' SBC 
Commc'ns, 489 F. Supp. 2d at 17; see also U.S. Airways, 38 F. Supp. 3d 
at 74-75 (noting that a court should not reject the proposed remedies 
because it believes others are preferable and that room must be made 
for the government to grant concessions in the negotiation process for 
settlements); Microsoft, 56 F.3d at 1461 (noting the need for courts to 
be ``deferential to the government's predictions as to the effect of 
the proposed remedies''); United States v. Archer-Daniels-Midland Co., 
272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant 
``due respect to the government's prediction as to the effect of 
proposed remedies, its perception of the market structure, and its 
views of the nature of the case''). The ultimate question is whether 
``the remedies [obtained in the decree are] so inconsonant with the 
allegations charged as to fall outside of the `reaches of the public 
interest.' '' Microsoft, 56 F.3d at 1461 (quoting United States v. 
Western Elec. Co., 900 F.2d 283, 309 (D.C. Cir. 1990)). To meet this 
standard, the United States ``need only provide a factual basis for 
concluding that the settlements are reasonably adequate remedies for 
the alleged harms.'' SBC Commc'ns, 489 F. Supp. 2d at 17.
    Moreover, the court's role under the Tunney Act is limited to 
reviewing the remedy in relationship to the violations that the United 
States has alleged in its complaint, and does not authorize the court 
to ``construct [its] own hypothetical case and then evaluate the decree 
against that case.'' Microsoft, 56 F.3d at 1459; see also U.S. Airways, 
38 F. Supp. 3d at 75 (noting that the court must simply determine 
whether there is a factual foundation for the government's decisions 
such that its conclusions regarding the proposed settlements are 
reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``the `public 
interest' is not to be measured by comparing the violations alleged in 
the complaint against those the court believes could have, or even 
should have, been alleged''). Because the ``court's authority to review 
the decree depends entirely on the government's exercising its 
prosecutorial discretion by bringing a case in the first place,'' it 
follows that ``the court is only authorized to review the decree 
itself,'' and not to ``effectively redraft the complaint'' to inquire 
into other matters that the United States did not pursue. Microsoft, 56 
F.3d at 1459-60.

[[Page 34520]]

    In its 2004 amendments to the Tunney Act,\5\ Congress made clear 
its intent to preserve the practical benefits of employing consent 
decrees in antitrust enforcement, stating that ``[n]othing in this 
section shall be construed to require the court to conduct an 
evidentiary hearing or to require the court to permit anyone to 
intervene.'' 15 U.S.C. 16(e)(2); see also U.S. Airways, 38 F. Supp. 3d 
at 76 (indicating that a court is not required to hold an evidentiary 
hearing or to permit intervenors as part of its review under the Tunney 
Act). This language made explicit what Congress intended when it first 
enacted the Tunney Act in 1974. As Senator Tunney explained: ``[t]he 
court is nowhere compelled to go to trial or to engage in extended 
proceedings which might have the effect of vitiating the benefits of 
prompt and less costly settlement through the consent decree process.'' 
119 Cong. Rec. 24,598 (1973) (statement of Sen. Tunney). Rather, the 
procedure for the public-interest determination is left to the 
discretion of the court, with the recognition that the court's ``scope 
of review remains sharply proscribed by precedent and the nature of 
Tunney Act proceedings.'' SBC Commc'ns, 489 F. Supp. 2d at 11. A court 
can make its public-interest determination based on the competitive 
impact statement and response to public comments alone. U.S. Airways, 
38 F. Supp. 3d at 76; see also United States v. Enova Corp., 107 F. 
Supp. 2d 10, 17 (D.D.C. 2000) (noting that the ``Tunney Act expressly 
allows the court to make its public interest determination on the basis 
of the competitive impact statement and response to comments alone''); 
S. Rep. No. 93-298 93d Cong., 1st Sess., at 6 (1973) (``Where the 
public interest can be meaningfully evaluated simply on the basis of 
briefs and oral arguments, that is the approach that should be 
utilized.'').
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    \5\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for a court to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. Compare 15 U.S.C. 
16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); see also SBC Commc'ns, 
489 F. Supp. 2d at 11 (concluding that the 2004 amendments 
``effected minimal changes'' to Tunney Act review).
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III. The Investigation, the Harm Alleged in the Complaint, and the 
Proposed Final Judgments

    The proposed Final Judgments are the culmination of a thorough, 
comprehensive investigation conducted by the Antitrust Division of the 
U.S. Department of Justice regarding the Settling Defendants' 
conspiracy to collaborate on decisions about poultry plant worker 
compensation, exchange compensation information, and facilitate such 
conduct through data consultants. Based on the evidence gathered, the 
United States concluded that this collaboration and information-sharing 
was anticompetitive and violated Section 1 of the Sherman Act, 15 
U.S.C. 1, because it suppressed competition in the nationwide and local 
labor markets for poultry processing plant workers. This conspiracy 
distorted the competitive process, disrupted the competitive mechanism 
for setting wages and benefits, and harmed a generation of poultry 
processing plant workers by unfairly suppressing their compensation.
    Specifically, the United States concluded that, from 2000 or 
before, the Processor Settling Defendants, Consulting Settling 
Defendants, and their poultry processing and consultant co-conspirators 
exchanged compensation information through the dissemination of survey 
reports in which they shared current and future, detailed, and 
identifiable plant-level and job-level compensation information for 
poultry processing plant workers. The shared information allowed 
poultry processors to determine the wages and benefits their 
competitors were paying--and planning to pay--for specific job 
categories at specific plants.
    The United States further concluded that the Processor Settling 
Defendants and their co-conspirators exchanged confidential, 
competitively sensitive information about poultry plant workers at 
annual meetings, which they attended in person. From at least 2000 to 
2002 and 2004 to 2019, the Consultant Settling Defendants facilitated, 
supervised, and participated in these annual in-person meetings among 
the Processor Settling Defendants and their co-conspirators and 
facilitated their exchange of information about poultry processing 
worker compensation information.
    The Processor Settling Defendants' and their co-conspirators' 
collaboration on compensation decisions and exchange of competitively 
sensitive compensation information extended beyond the shared survey 
reports and in-person annual meetings. The Processor Settling 
Defendants and their co-conspirators repeatedly contacted each other to 
seek and provide advice and assistance on poultry processing worker 
compensation decisions, including by sharing further non-public 
information regarding each other's wages and benefits. This 
demonstrates a clear agreement between competitors to ask for help with 
compensation decisions and to provide such help to others upon request.
    In sum, this conspiracy enabled the Processor Settling Defendants 
and their co-conspirators to collaborate with and assist their 
competitors in making decisions about worker compensation, including 
wages and benefits, and to exchange information about current and 
future compensation plans. Through this conspiracy, the Processor 
Settling Defendants artificially suppressed compensation for poultry 
processing workers.
    The proposed Final Judgments provide effective and appropriate 
remedies for this competitive harm. They have several components, which 
the Settling Defendants agreed to abide by during the pendency of the 
Tunney Act proceedings and which the Court ordered in the Stipulations 
and Orders of July 26, 2022 (ECF 11 & 12).
    Among other terms, the proposed Final Judgment for the Processor 
Settling Defendants requires the Processor Settling Defendants to:
    a. end their agreement to collaborate with and assist in making 
compensation decisions for poultry processing workers and their 
anticompetitive exchange of compensation information with other poultry 
processors;
    b. submit to a monitor (determined by the United States in its sole 
discretion) for a term of 10 years, who will examine the Processor 
Settling Defendants' compliance with both the terms of the proposed 
Final Judgment and U.S. federal antitrust law generally, across their 
entire poultry businesses; and
    c. provide significant and meaningful restitution to the poultry 
processing workers harmed by their anticompetitive conduct, who should 
have received competitive compensation for their valuable, difficult, 
and dangerous labor.
    The proposed Final Judgment for the Processor Settling Defendants 
also prohibits the Processor Settling Defendants from retaliating 
against any employee or third party for disclosing information to the 
monitor, an antitrust enforcement agency, or a legislature, among other 
terms.
    Under the proposed Final Judgment for the Consultant Settling 
Defendants, the Consultant Settling Defendants are restrained and 
enjoined from:
    a. providing survey services involving confidential competitively 
sensitive information;
    b. participating in non-public trade association meetings that 
involve either the exchange of confidential competitively sensitive 
information or involve the business of poultry processing; and

[[Page 34521]]

    c. engaging in non-public communications with any person engaged in 
the business of poultry processing other than as a party or fact 
witness in litigation, among other terms.
    Each proposed Final Judgment provides that it will expire 10 years 
from the date of its entry, except that after five years from the date 
of its entry, each Final Judgment may be terminated upon notice by the 
United States to the Court and the relevant Settling Defendants that 
continuation of the relevant Final Judgment is no longer necessary or 
in the public interest.

IV. Summary of Public Comments and the United States' Response

    The United States did not receive any public comments concerning 
the proposed Final Judgment relating to the Consultant Settling 
Defendants and received five comments concerning the proposed Final 
Judgment relating to the Processor Settling Defendants. These comments 
were submitted by Professor Peter C. Carstensen (``Carstensen 
Comment''); Ms. Trina B. McClendon (``McClendon Comment''); Farm Action 
(``Farm Action Comment''); the Campaign for Family Farms and the 
Environment (``CFFE Comment''); and the Campaign for Contract 
Agriculture Reform (``CCAR Comment'').
    Professor Carstensen is the Fred W. & Vi Miller Chair in Law 
Emeritus at University of Wisconsin Law School. While now retired, 
during his professional career Professor Carstensen specialized in 
antitrust law with a particular interest in competition issues in 
agricultural markets.\6\ He credits the United States for challenging 
the information-sharing conduct as anticompetitive and asks the 
Antitrust Division and the FTC to revisit its shared guidance ``to 
emphasize that such conduct among rivals is likely to be unlawful.'' 
\7\ He also approves of the provisions relating to the tournament 
system for poultry growers and the PSA.\8\ However, Professor 
Carstensen expresses concern that the United States has not yet brought 
suit against the other conspirators in the information-sharing conduct 
and asks the Court to seek assurance from the United States that it 
will.\9\ Finally, he argues that the proposed Final Judgment's 
prohibitions on exchanging information should forbid the exchange of 
confidential business information of any kind.\10\
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    \6\ Carstensen Comment at 1.
    \7\ Id. at 1-2.
    \8\ Id. at 2.
    \9\ Id.
    \10\ Id.
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    Ms. McClendon is the owner/operator of Trinity Poultry Farm, LLC, 
an eight-house poultry farm in Amite County, Mississippi, where she has 
grown chickens for Sanderson for two decades.\11\ Her comments argue 
``against the buyout of Sanderson Farms by Cargill and Continental 
Grain,'' \12\ and she encourages the United States to ``[s]top the 
consolidation of America's food and put the farmer first.'' \13\ Ms. 
McClendon also details problems with the tournament system for poultry 
growers--which she argues ``should be overhauled and reconstructed''--
including ``grower pay extortion by integrators'' and a ``lack of 
transparency.'' \14\ She asks that the United States ``reverse this 
proposed Final Judgment''; ``stop this buyout'' of Sanderson by Cargill 
and Wayne; ``strip these companies of their right to continue doing 
business unchecked''; and ``in addition to the $84 million fine that 
you assessed to these companies for wage suppression, an additional 
fine be assessed to directly aid all growers who have suffered for the 
last thirty years under the weight of undue and unfair pressure brought 
to bear by these corporate Goliath's.'' \15\ Ms. McClendon also warns 
that the Settling Defendants will ``manipulate this proposed Final 
Judgment to their benefit.'' \16\
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    \11\ McClendon Comment at 1.
    \12\ Id. at 1
    \13\ Id. at 2.
    \14\ Id. at 2-3; see generally id. at 3-7. While Ms. McClendon 
describes issues relating to the tournament system, she does not 
discuss the provisions of the proposed Final Judgments related to 
the tournament system and the PSA.
    \15\ Id. at 7.
    \16\ Id. at 1.
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    Farm Action is ``a farmer-led advocacy organization dedicated to 
building a food and agriculture system that works for everyday people 
instead of a handful of powerful corporations.'' \17\ Farm Action's 
comment asks the Court to enter the proposed Final Judgment ``in its 
entirety,'' calling it fair, adequate, and reasonable.\18\ Farm Action 
does not critique or suggest any changes to the proposed Final 
Judgments.
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    \17\ Farm Action Comment at 1.
    \18\ Id. at 25, 4.
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    CFFE is a coalition of state and national organizations that works 
``to support family farmers, rural communities and a vibrant, 
sustainable food system.'' \19\ CFFE approves of the Division's 
enforcement of the PSA and ``long overdue enforcement action with 
respect to how poultry companies treat both processing plant workers 
and contract poultry growers.'' \20\ CFFE calls for the court-appointed 
monitor to ensure that the parties do not attempt to evade the proposed 
Final Judgment's grower requirements.\21\ CFFE also asks the United 
States to expand its action under the PSA and its investigation into 
information-sharing related to plant worker compensation to include 
other growers and information-sharing related to growers.\22\ CFFE 
expresses disappointment that the United States did not challenge the 
Sanderson acquisition.\23\
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    \19\ CFFE Comment at 1.
    \20\ Id. at 2.
    \21\ Id. at 3.
    \22\ Id.
    \23\ Id. at 1.
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    CCAR ``represents farmers, ranchers, and poultry growers across the 
United States.'' \24\ CCAR ``greatly appreciate[s]'' and is ``very 
supportive'' of the provisions of the proposed Final Judgment ``that 
prohibit conduct that directly affects poultry growers,'' although it 
urges the court-appointed monitor to take care that the parties to 
which these provisions apply do not find a way to circumvent them.\25\ 
CCAR recommends the United States challenge future consolidation in 
agricultural markets and re-examine past mergers and states it was 
disappointed that the acquisition of Sanderson by Cargill and Wayne 
``was allowed to proceed.'' \26\ It also urges the Division to broaden 
its inquiry into information-sharing in the poultry industry to include 
sharing related to growers and production details.\27\
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    \24\ CCAR Comment at 1.
    \25\ Id. at 5-6.
    \26\ Id. at 4-5.
    \27\ Id. at 8.
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* * * * *
    While the United States takes seriously all of the issues raised in 
the public comments, much of the CCAR and CFFE Comments and all of the 
McClendon Comment focus on either the portion of the Processor Settling 
Defendants' proposed Final Judgment relating to the PSA or on the 
acquisition of Sanderson by Cargill and Wayne, rather than on whether 
the proposed Final Judgments adequately resolve the antitrust claims 
against the Settling Defendants for collaborating on decisions about 
poultry plant worker compensation, including through the exchange of 
compensation information, and facilitating this anticompetitive 
agreement.
    The Tunney Act applies only to final judgments or decrees in 
proceedings brought by the United States under the antitrust laws. See 
15 U.S.C. 16. The PSA is not an antitrust law. Thus, the provisions of 
the proposed Final

[[Page 34522]]

Judgments related to the PSA are not subject to Tunney Act review.\28\
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    \28\ Competitive Impact Statement at 3; see also 15 U.S.C. 
12(a). The PSA-related provisions include changes to compensation 
and disclosure requirements for Sanderson and Wayne growers.
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    Comments regarding the acquisition of Sanderson are also not 
subject to Tunney Act review in this matter because the Complaint does 
not challenge the Sanderson acquisition. Rather, the Complaint alleges 
that the Settling Defendants' multi-decade collaboration on 
compensation decisions, sharing of compensation information, and 
facilitation of such conduct was anticompetitive and that Wayne and 
Sanderson violated the Packers and Stockyards Act. Under the Tunney 
Act, the court reviews only whether the proposed remedies address the 
violations the United States has alleged in its complaint.\29\ 
Potential harms arising from that acquisition that were identified by 
some public comments are therefore outside the permissible scope of 
review under the Tunney Act.\30\
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    \29\ See Microsoft, 56 F.3d at 1459. Because the ``court's 
authority to review the decree depends entirely on the government's 
exercising its prosecutorial discretion by bringing a case in the 
first place,'' it follows that ``the court is only authorized to 
review the decree itself,'' and not to ``effectively redraft the 
complaint'' to inquire into other matters that the United States did 
not pursue. Id. at 1459-60.
    \30\ The United States has statutory authority to review certain 
proposed transactions under the Hart-Scott-Rodino Act, 15 U.S.C. 
18a, but contrary to some of the public comments the United States 
does not ``approve'' transactions. See, e.g., Steves and Sons, Inc. 
v. JELD-WEN, Inc., 988 F.3d 690, 713-14 (4th Cir. 2021) (``The 
Department's decision not to pursue the matter isn't probative as to 
the merger's legality because many factors may motivate such a 
decision, including the Department's limited resources.''); see also 
In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 664 
(7th Cir. 2002).
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    The United States understands that some of the commenters are 
advocating for additional enforcement in the poultry industry. Parts of 
the CCAR and CFFE Comments urge the United States to continue working 
to address ``the antitrust implications of industry data sharing 
activities.'' \31\ The Carstensen Comment focuses almost wholly on 
information-sharing; it asks the United States to continue pursuing 
other conspirators, to ``forbid any exchange of confidential business 
information of any kind'' between the Settling Defendants, and to 
``revisit [its] outdated guidance on information exchange to emphasize 
that such conduct among rivals is likely to be unlawful absent 
specific, limited justifications.'' \32\
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    \31\ CFFE Comment at 3 (highlighting the impact of such 
information-sharing on poultry growers); CCAR Comment at 8 
(recommending the United States ``consider the anti-trust 
implications of such data sharing arrangements regarding poultry 
growers and production details as well'').
    \32\ Carstensen Comment at 2.
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    The United States does not contend that the proposed Final 
Judgments resolve all issues in the poultry industry, but these 
comments are outside the scope of Tunney Act review. They concern 
conduct not challenged in the Complaint and thus do not provide a basis 
for measuring the relief included in the proposed Final Judgments.\33\ 
The proposed Final Judgments do address the claims raised against the 
Settling Defendants.
    Additionally, the United States believes the proposed Final 
Judgments demonstrate to companies both inside and outside the poultry 
industry that anticompetitive information-sharing risks significant 
legal consequences, and the broad scope of the monitor contained in the 
proposed Final Judgments provides protection against anticompetitive 
information-sharing in contexts other than poultry processing 
compensation. The United States takes the conduct alleged in the 
Complaint seriously; the investigation into such conduct is ongoing and 
the United States will pursue additional claims where the evidence and 
the law justifies action. Members of the public are encouraged to 
submit information about potentially unlawful exchanges of information 
between competitors to the Department of Justice Antitrust Division's 
Citizen Complaint Center (https://www.justice.gov/atr/citizen-complaint-center).

V. Conclusion

    After careful consideration of the public comments, the United 
States continues to believe the proposed Final Judgments provide an 
effective and appropriate remedy for the antitrust violations alleged 
in the Complaint and are therefore in the public interest. The United 
States will move this Court to enter the proposed Final Judgments after 
the public comments and this response are published as required by 15 
U.S.C. 16(d).

Dated: May 23, 2023.

Respectfully submitted,

FOR PLAINTIFF UNITED STATES OF AMERICA
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Kathleen Simpson Kiernan,

U.S. Department of Justice, Antitrust Division, Civil Conduct Task 
Force, 450 Fifth Street NW, Suite 8600, Washington, DC 20530, Tel: 
202-353-3100, Fax: 202-616-2441, Email: [email protected].

[FR Doc. 2023-11388 Filed 5-26-23; 8:45 am]
BILLING CODE 4410-11-P