Guebert on Pickett

[Econ101]

The Prairie Star: Montana Ag Newspaper



Ag News: Columnists

U.S. Court to agribusiness: Go forth and make serfs of all

By Alan Guebert, Columnist
Thursday, September 1, 2005 12:12 PM MDT








On Aug. 16, a three-judge panel for the 11th Circuit U.S. Court of Appeals in Atlanta effectively killed the Packers and Stockyards Act (PSA) of 1921, largely gutted the U.S. Department of Agriculture's mandate to "promote fair and competitive trading practices for the overall benefit of consumers and American agriculture," and gave agbiz giants permission to run U.S ag markets like wholly-owned subsidiaries.

And it was all done in the name of "efficiency," a word not found in either the PSA or the U.S. Constitution.

How in the world did a lawsuit against Tyson Fresh Meats - where a jury in February 2004 found Tyson's use of contracted cattle cut cash cattle prices and awarded cattlemen $1.28 billion because of it - end up granting giant meatpackers market power they could only dream of?

Simple, says Roger McEowen, an ag law professor at Iowa State University.


"The judges in this case created a standard that isn't in the Packers and Stockyards Act; a standard that says 'The PSA exists to aid efficiency so packers can compete with each other.'"

Michael Stumo, legal counsel for the Organization for Competitive Markets who participated in the original Alabama lawsuit against Tyson, called Pickett that handed Tyson a $1.28 billion lump to the head, agrees.

"The appellate court basically changed a competition enforcement statute, the PSA, into and efficiency statute." In doing so, the court said that if there is a "business justification" - here, efficiency - for violating the PSA, then no violation occurs.

This standard, adds Stumo, "is not in the Packers and Stockyards Act text nor is it in antitrust law. But the 11th Circuit believes it should be no matter that a jury has already said it's not and the actual law says it's not."

Indeed, the decision (www.ca11.uscourts.

gov/opinions/ops/200412137.pdf) is remarkable for not only what it includes but also what it excludes.

For example, nowhere in its 33 pages is there one reference to any of the amicus briefs submitted to the court in support of the jury's original judgment against Tyson.

Somehow, though, the court did find space - and, more importantly, a reason - to include the trial judge's snide and away-from-the-jury characterization of Auburn University's Dr. C. Robert Taylor, Pickett's expert witness who proved to the jury that Tyson's use of captive cattle led to 5 percent lower cash cattle prices.

The remark - "I'd say, Dr. Taylor, you're nuts." - is not only silly, wrong and inflammatory, it's immaterial. That's why the jury never heard it.

Also, the Aug. 16 opinion chastises David Domina, one of plaintiff Pickett's lead attorneys in the case, for his opening statement the court characterizes as "emotional."

So what? The court's view of Domina's statement has nothing to do with its task: determine if the case was decided fairly and correctly under the law, not whether an attorney reaches for a jury's heartstrings or even stands on his head in the attempt.

"This is a very hostile opinion," says Peter Carstensen, a professor at the University of Wisconsin's law school and an antitrust specialist, "that shows a profound failure on the part of the court to understand that a legal framework is absolutely essential to make markets work."

Like McEowen and Stumo, Carstensen views the decision as a gut-splitter for PSA and its overarching USDA agency, GIPSA, the Grain Inspection, Packers and Stockyards Administration.

"This opinion basically creates a lawless market because it says that if a meatpacker's conduct is consistent with some business purpose, then anything goes - even serfdom."

As such, the PSA is functionally dead, he says, and the "only thing that can salvage it is if someone pours a hardening agent into backbones at USDA so it stands up and writes tough rules on marketing contracts."

But, he adds, given the fact that USDA itself is largely a captive of meatpackers, "That's not going to happen."

Congress can make it happen, though, by resuscitating, then updating, the Packers and Stockyards Act in the 2007 Farm Bill.

Let's start by calling it the Anti-Serfdom Act.

© 2005 ag comm

 

[Sandhusker]

Are these gentlemen part of the packer conspiracy too, SH?

Do you want to tell us how they are wrong? Agman?

 

[CattleCo]

Sandy,
I can hardly wait for the responses!!! Combines are rolling in Illinois. I am sure Agman is sleeping with his DTN Monitor. Are we having fun now.....?? How are the fall pasture conditions in your part of the world?

 

[agman]

Are these gentlemen part of the packer conspiracy too, SH?

Do you want to tell us how they are wrong? Agman?

They are all party to the same ideology, the OCM. Have you ever heard any of these people speak? It is always blame the corporation or the govenment. I quess the revelation that Stumo was party to the plaintiffs court action contradicts OCM's claim of lack of OCM involvement.

Do you actually think a group of OCM lawyers will admit they lost because they had no case to begin with? The only thing proved in this case was that Dr Taylor did not even test his own theories for validity. He stated as such under oath. Yet the losers cling to an untruth regarding what he claims to have proven to the court and the jurors. In direct answer to your question, yes, I do believe these people are part of the packer conspiracy too. Where do you think they get their information from?

 

[Econ101]

Agman, what are you, a totalitarianist? What is wrong with competitive markets? All I hear from you is that you want everyone to compete for your benefit. The essence of the Pickett case is that there was not enough competition in the cash market for that market to be an accurate representation of the supply\demand equilibrium.

It was proven that there was a decrease in the over all cash market price and therefore a sign of market manipulation. Only true competition brings us the supply/demand equilibrium that maximizes an economy's wealth generating capacity. It could be argued that in the case of captive supply, there is predatory pricing against the cash market and that is illegal under the Clayton Act. The fact that Tyson did not present one scintilla of evidence that the captive supplies (where were their contracts of grid pricing for the captive supplies?) were priced higher than the cash market due to quality/ yield considerations and not market manipulation is ample evidence of market manipulation.

Since the court likes to quote the Robinson-Patman Act, they should quote the burden of proof required on the defendent in the act.

A lack of evidence is evidence itself.

The case was made to the jury and they decided. The appellate court showed their ignorance of the economic issues in their Robinson-Patman example and yet upheld the decision of Judge Strom with not one scintilla of evidence that Taylor was incorrect in his work. This is a judiciary that was influenced to make this decision- it looks suspiciously like someone other than the three judges influenced the decision behind closed doors. They need to be asked how they came up with their appellate decision and be held accountable for it.

Appellate decisons that overturn jury verdicts and make new law must have more than a lot of legal mumbo jumbo and this one did not. Again, there was not one scintilla of evidence presented in trial that was contridicted, only new hurdles to be overcome by the plaintiffs. It is unfortunate that these hurdles were not presented at trial-- just used after the trial where the arguments are behind closed doors. Those judges need to disclose where their ruling came from. There needs to be an investigation into influences behind closed doors and answers to why they were not in open courtroom.

I know what they will find if they have a real investigation into this decision and it isn't pretty.

 

[pointrider]

Let me ask you this, folks. Why do you never hear all these groups on both sides talking about the natural variation in profitability in commodity agriculture, and how that affects what happens in court cases, markets, etc., etc.?

I'll tell you why. Because, on the average over the years (if you plot a trend line through the highs and lows of the market and consider average markets), two-thirds of the producers out there never make any money! They are looking for something to save them, be it a lawsuit or some new reg that will require that all cattle be sold through local auction barns which they believe will bring them more for their cattle.

You can have your arguments all day and all week, and personally I don't care if you are having fun. But most of you are missing the point in your arguments. I think deep in your gut you know and believe what I am saying, but you still need to have your say and your fun. And so be it. The point is that variation in profitability between individual operations is causing consolidation and most of the knee-jerk reactions we see and hear about as a result. It's an illusion. Most of the folks involved in the Pickett case are lashing out at the system because of what is happening to them.

Do you think that there are people out there who are smart enough to recognize this (such as R-CALF), and figure out how to capitalize on it - even to the point of filing lawsuits?

 

[Sandhusker]

Are these gentlemen part of the packer conspiracy too, SH?

Do you want to tell us how they are wrong? Agman?

They are all party to the same ideology, the OCM. Have you ever heard any of these people speak? It is always blame the corporation or the govenment. I quess the revelation that Stumo was party to the plaintiffs court action contradicts OCM's claim of lack of OCM involvement.

Do you actually think a group of OCM lawyers will admit they lost because they had no case to begin with? The only thing proved in this case was that Dr Taylor did not even test his own theories for validity. He stated as such under oath. Yet the losers cling to an untruth regarding what he claims to have proven to the court and the jurors. In direct answer to your question, yes, I do believe these people are part of the packer conspiracy too. Where do you think they get their information from?

So now you believe in the great anti-packer conspiracy, too? :roll:

A group of OCM lawyers, huh? Roger McEowen is an ag law professor at Iowa State University. Peter Carstensen is a professor at the University of Wisconsin's law school and an antitrust specialist. Dr. Taylor teaches economics at Auburn. Could you point out for me which of these three gents are OCM lawyers?

 

[ocm]

Are these gentlemen part of the packer conspiracy too, SH?

Do you want to tell us how they are wrong? Agman?

They are all party to the same ideology, the OCM. Have you ever heard any of these people speak? It is always blame the corporation or the govenment. I quess the revelation that Stumo was party to the plaintiffs court action contradicts OCM's claim of lack of OCM involvement.

Have you seen what Steve Dittmer wrote about this year's August OCM meeting? Probably not, because he didn't report anything about it even though he was there. This is another situation where silence peaks volumes. If Dittmer could have found liberal dirt to smear them with this year he would have--but he didn't, because he couldn't.

As for OCM's involvement in Pickett, they talked about the case a lot. Nothing financial, ever.

At this years meeting the Pickett case was talked about (or the issues it raises). The idea of efficiency(improperly defined, by the way) displacing competition was brought out. For example if we wanted efficient trials we would dispense with juries. If we wanted efficient legislatures, they would have only one member. We are not interested (as a matter of policy and law) in efficiency. [Watch somebody take that one out of context] We are interested in liberty. Sometimes liberty is a bit inefficient in the short term.

Balance of power was discussed. Balance of power in government requires competition in government (Madison in Federalist 51). Balance of power in business requires the government to mandate honesty and competition in order to prevent excess power in business. This is absolutely necessary. Otherwise you have economic anarchy, econimic gangsterism. It's as necessary as the military going into New Orleans to stop the anarchy.

These are not liberal views. They are 100% consistent with the views of the founders of this country and the people who passed the anti-trust laws of a few decades ago.

You have taken a position that suggests that you believe that business should be left alone because in business power does not corrupt. It does. And it does just as badly as it does in government! Therefore power limitations are absolutely necessary. Those power limitations come in the form of governmental requirements of competition and honesty.

You need to get up to date on OCM, the marjority of their membership is moderate to conservative Republican. Remember it was started by Fred Stokes--not Ralph Nader.

Sandhusker, I will admit that OCM is conspiring to spread the news that we need to stop the economic anarchists. Lots of conservatives are signing on.

If you want to see what a conservative (with no relationship to OCM) says about efficiency, try this link.

http://www.newsmax.com/archives/articles/2005/9/5/213640.shtml

So, is Stumo like him or is he like Stumo?

 

[agman]

It was proven that there was a decrease in the over all cash market price and therefore a sign of market manipulation.
Since the court likes to quote the Robinson-Patman Act, they should quote the burden of proof required on the defendent in the act.

A lack of evidence is evidence itself.

I know what they will find if they have a real investigation into this decision and it isn't pretty.

What was proven by theories that were untested-absolutely nothing? Taylor provided evidence of nothing but his failed research.

A lack of evidence is what "evidence itself"? I agree, it is lack of evidence!!! What a play on words. I am certain in the world of assumptions, accusations and conspiracies that you live in you have a perfectly plausible conspiracy theory. I am anxious for you to reveal to the world what you think you know. Only then will the world learn how truly little you really know and how transparent you really are. Tap...tap....give the world a break.

If you rally want to question a judge or judges you might begin with Cebull's opinion. Approximately two-thirds of which was taken verbatim, including spelling errors, from the plaintiffs. Do you care to comment or are you absent that information since you have likely never read his opinion either? Who was the conspirator in that case?

 

[Anonymous]

Guebert is a blamer and writes for blamers. Long on rhetoric and short on facts. This piece is one more example of opinion after opinion with no supporting facts. Typical of the blaming segment of our industry.

Econ. 101: "What is wrong with competitive markets?"

Nothing! Our markets are competitive.

What's wrong with those who do not believe our markets are competitive, having to prove that allegation with supporting facts?

Econ. 101: "The essence of the Pickett case is that there was not enough competition in the cash market for that market to be an accurate representation of the supply\demand equilibrium."

Which the plaintiffs and you could not prove.

Econ. 101: "It was proven that there was a decrease in the over all cash market price and therefore a sign of market manipulation."

OH BULLSH*T!

A decrease in the cash market is a sign of a decrease in the boxed beef market. Only a complete idiot wouldn't understand that.

Econ. 101: "Only true competition brings us the supply/demand equilibrium that maximizes an economy's wealth generating capacity."

That's exactly what we have.

Econ. 101: "The fact that Tyson did not present one scintilla of evidence that the captive supplies (where were their contracts of grid pricing for the captive supplies?) were priced higher than the cash market due to quality/ yield considerations and not market manipulation is ample evidence of market manipulation."

Econ. 101: "A lack of evidence is evidence itself."

THE BURDEN OF PROOF FALLS ON THE ACCUSER, NOT THE ACCUSED YOU @%!$&*!@$!

When will you ever get that through your thick head?

It is not Tyson's responsibility to prove their innocense, it is the packer blamer's responsibility to proove Tyson's guilt.

Are you really that ignorant?

Econ. 101: "This is a judiciary that was influenced to make this decision- it looks suspiciously like someone other than the three judges influenced the decision behind closed doors."

Another shot from the grassy knoll!

Translation: I am a conspiracy theorist who believes in the presumption of guilt.

Econ. 101: "Again, there was not one scintilla of evidence presented in trial that was contridicted, only new hurdles to be overcome by the plaintiffs."

How the hell would you know? You already admitted you haven't even read the court proceedings YET YOU KNOW WHAT WAS PRESENTED???

Here's a shovel, dig yourself in deeper.


STILL NOBODY HAS PRESENTED ONE STITCH OF EVIDENCE TO PROVE THE MARKET MANIPULATION CONSPIRACTY THEORY. THE BURDEN OF PROOF FALLS ON THE ACCUSERS, NOT THE ACCUSED!


OCM,

You can spew all the bullsh*t you want about OCM taking a conservative position but nobody with any common sense is going to buy it.

Your position is clear.

LARGE CORPORATIONS ARE EVIL.

PRESUMPTION OF GUILT.

MORE GOVERNMENT MANDATES.

"SOCIALIZED CATTLE MARKETING"

There is not one stitch of conservativism in OCM's position. They lean so far to the left they need training wheels to keep from tipping over.

Conservativism is the attitude that if packers are manipulating markets, YOU NEED TO PROVE THAT WITH COLD HARD FACTS.

Conservativism is the attitude that if you believe packers are making so much money, you invest in a packing company.

Conservativism is wanting less government intervention into our lives, not more.

Conservativism does not believe in punishing achievement, regulating prosperity, and shoring up poor management.

Conservatism takes a "what can I do to help myself" attitude while OCM's position is "what can the government do to help me".

You aren't fooling anyone OCM. OCM is liberal through and through.




~SH~

 

[Econ101]

Guebert is a blamer and writes for blamers. Long on rhetoric and short on facts. This piece is one more example of opinion after opinion with no supporting facts. Typical of the blaming segment of our industry.

Econ. 101: "What is wrong with competitive markets?"

Nothing! Our markets are competitive.

What's wrong with those who do not believe our markets are competitive, having to prove that allegation with supporting facts?

Econ. 101: "The essence of the Pickett case is that there was not enough competition in the cash market for that market to be an accurate representation of the supply\demand equilibrium."

Which the plaintiffs and you could not prove.

Econ. 101: "It was proven that there was a decrease in the over all cash market price and therefore a sign of market manipulation."

OH BULLSH*T!

A decrease in the cash market is a sign of a decrease in the boxed beef market. Only a complete idiot wouldn't understand that.

Econ. 101: "Only true competition brings us the supply/demand equilibrium that maximizes an economy's wealth generating capacity."

That's exactly what we have.

Econ. 101: "The fact that Tyson did not present one scintilla of evidence that the captive supplies (where were their contracts of grid pricing for the captive supplies?) were priced higher than the cash market due to quality/ yield considerations and not market manipulation is ample evidence of market manipulation."

Econ. 101: "A lack of evidence is evidence itself."

THE BURDEN OF PROOF FALLS ON THE ACCUSER, NOT THE ACCUSED YOU @%!$&*!@$!

When will you ever get that through your thick head?

It is not Tyson's responsibility to prove their innocense, it is the packer blamer's responsibility to proove Tyson's guilt.

Are you really that ignorant?

Econ. 101: "This is a judiciary that was influenced to make this decision- it looks suspiciously like someone other than the three judges influenced the decision behind closed doors."

Another shot from the grassy knoll!

Translation: I am a conspiracy theorist who believes in the presumption of guilt.

Econ. 101: "Again, there was not one scintilla of evidence presented in trial that was contridicted, only new hurdles to be overcome by the plaintiffs."

How the hell would you know? You already admitted you haven't even read the court proceedings YET YOU KNOW WHAT WAS PRESENTED???

Here's a shovel, dig yourself in deeper.


STILL NOBODY HAS PRESENTED ONE STITCH OF EVIDENCE TO PROVE THE MARKET MANIPULATION CONSPIRACTY THEORY. THE BURDEN OF PROOF FALLS ON THE ACCUSERS, NOT THE ACCUSED!


OCM,

You can spew all the bullsh*t you want about OCM taking a conservative position but nobody with any common sense is going to buy it.

Your position is clear.

LARGE CORPORATIONS ARE EVIL.

PRESUMPTION OF GUILT.

MORE GOVERNMENT MANDATES.

"SOCIALIZED CATTLE MARKETING"

There is not one stitch of conservativism in OCM's position. They lean so far to the left they need training wheels to keep from tipping over.

Conservativism is the attitude that if packers are manipulating markets, YOU NEED TO PROVE THAT WITH COLD HARD FACTS.

Conservativism is the attitude that if you believe packers are making so much money, you invest in a packing company.

Conservativism is wanting less government intervention into our lives, not more.

Conservativism does not believe in punishing achievement, regulating prosperity, and shoring up poor management.

Conservatism takes a "what can I do to help myself" attitude while OCM's position is "what can the government do to help me".

You aren't fooling anyone OCM. OCM is liberal through and through.




~SH~

I guess anyone who does not believe your SH-- is a liberal packer blamer.
Watch out, the known response to market power and its exercise is breaking up the monopsony or oligopsony. Then you would have to compete instead of playing market games.

 

[Anonymous]

Kindergarten Econ.: "I guess anyone who does not believe your SH-- is a liberal packer blamer."

When you can contradict anything I have stated with facts to the contrary, step up to the plate. Until such time, keep making your discrediting little statements and prove your inability to back your position.

Anyone who blames packers of market manipulation without the proof to back it and anyone who thinks that more government mandates is the solution to their "PERCEIVED" problems is a liberal packer blamer.

Tell it like it is, not how you want it to be Kindergarten.

Kindergarten Econ.: "Watch out, the known response to market power and its exercise is breaking up the monopsony or oligopsony. Then you would have to compete instead of playing market games."

Breaking up the major packing companies would decrease competition, not increase it. Unfortunately, you are simply too ignorant to understand the negative consequences to your emotionally charged actions.

BTW, my only connections to the packing industry are selling fat cattle to them through formula/grid pricing and the cash markets.

Not surprising that you would try to make the packer connection implication considering how conspiracy oriented you have already proven yourself to be.

WRONG AGAIN, IMAGINE THAT!


~SH~

 

[Sandhusker]

SH, If you were robbed at gunpoint and the judge at the trial told the jurors that they would have to agree that the robber lacked a legitimate use for the gun, would you feel you were getting a fair shake?

 

[Anonymous]

For the 18th time, what is your proof to back the Pickett plaintiff's market manipulation conspiracy theory?


~SH~

 

[Sandhusker]

SH, If you were robbed at gunpoint and the judge at the trial told the jurors that they would have to agree that the robber lacked a legitimate use for the gun, would you feel you were getting a fair shake?

 

[ocm]

For the 18th time, what is your proof to back the Pickett plaintiff's market manipulation conspiracy theory?


~SH~

Please omit the word "conspiracy". There was no conspiracy.

Just answer two questions.

Did the plaintiffs TRY to prove anything at trial, or did they just sit there silently?

If they TRIED and did not sit there silently, what did they TRY to prove (in your opinion) and what did they say?

 

[ocm]

I just noticed something.

For the 16th time, what was the evidence presented in Pickett vs. ibp that supported the plaintiff's "market manipulation" allegation that was believed by the jury?

For the 17th time, what was the evidence presented in Pickett vs. ibp that supported the plaintiff's "market manipulation" allegation that was believed by the jury?

For the 18th time, what is your proof to back the Pickett plaintiff's market manipulation conspiracy theory?

Is the problem here that you are laboring under the false impression that evidence=proof?

Evidence is information provided in court to prove a point. Even if evidence presented in court is false it is still evidence nonetheless. You have been taking the ABSURD position that NO evidence was presented in court with the purpose of proving Tyson's price manipulation. Evidence WAS presented. The Jury believed it. The fact that YOU believe the evidence to be false does not make it stop being evidence. No wonder you're so hard to communicate with.

Keep it up and we can eventually get around to discussing the meaning of the word "is."

 

[Anonymous]

Sandman, For the 19th time, what is your proof to back the Pickett plaintiff's market manipulation conspiracy theory?


OCM, If there was no conspiracy, provide the facts that were presented in court and quit dancing.

OCM: "Did the plaintiffs TRY to prove anything at trial, or did they just sit there silently?"

They tried to create the "ILLUSION" of market manipulation so they had someone to blame.

OCM: "If they TRIED and did not sit there silently, what did they TRY to prove (in your opinion) and what did they say?"

YOU TELL ME!!!

You are the one defending their position, WHAT WAS THE EVIDENCE TO SUPPORT THEIR POSITION.

THAT'S TWENTY TIMES!!!

Dance, dance, dance!


~SH~

 

[Anonymous]

OCM: "You have been taking the ABSURD position that NO evidence was presented in court with the purpose of proving Tyson's price manipulation. Evidence WAS presented. The Jury believed it. The fact that YOU believe the evidence to be false does not make it stop being evidence. No wonder you're so hard to communicate with."

For the 21st time, what was the EVIDENCE presented in court, by the plaintiffs, that proved that Tyson was guilty of market manipulation?

Quit dancing and answer the question!



~SH~

 

[Sandhusker]

Dr. Taylor's testimony is the evidence that backs Pickett. Why do you ask such obvious questions?

SH, If you were robbed at gunpoint and the judge at the trial told the jurors that they would have to agree that the robber lacked a legitimate use for the gun, would you feel you were getting a fair shake?