Anticompetitive effect needed for P.S.A. claims

by Bryan Salvage
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WASHINGTON — A recent U.S. Court of Appeals for the Sixth Circuit ruling held that a plaintiff must demonstrate an anticompetitive effect to support a claim under the Packer and Stockyards Act (P.S.A.), according to an announcement from the American Meat Institute (A.M.I).

A three-judge panel, in its opinion in Terry v. Tyson Farms Inc., stated it was joining a "legion" of appellate court rulings which state that in order for a plaintiff to establish under Sections 202(a) or 202(b) of the Packers and Stockyards Act (P.S.A.) that a practice is "unfair, unjustly discriminatory, or deceptive, the plaintiff must show that the practice has an anticompetitive effect — that it adversely affects or is likely to adversely affect competition,” according to A.M.I.

A.M.I. and the National Chicken Council (N.C.C.) jointly submitted an amicus brief in the Terry case urging the Sixth Circuit to adopt the position taken by the other appellate courts. The Sixth Circuit agreed, stating that the "tide" of precedent had become a "tidal wave," with this decision coming on the heels of a recent decision in a Fifth Circuit case, Wheeler v. Pilgrim's Pride Corp., in which the Fifth Circuit came to the same conclusion and in which N.C.C. and A.M.I. also participated as amicus.

Eight federal appellate courts have now considered whether the P.S.A. requires a showing of anticompetitive effect with every circuit concluding such a showing is necessary. However, the plaintiffs in Terry still could file a petition for certiorari in the U.S. Supreme Court.

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