Terry v. Tyson Farms, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0127p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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ALTON T. TERRY,
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Plaintiff-Appellant,
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No. 08-5577
v.
,
>
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Defendant-Appellee. -
TYSON FARMS, INC.,
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Appeal from the United States District Court
for the Eastern District of Tennessee at Winchester.
No. 08-00003—Harry S. Mattice, Jr., District Judge.
Argued: March 4, 2009
Decided and Filed: May 10, 2010
Before: NORRIS, COOK, and GRIFFIN, Circuit Judges.

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COUNSEL
ARGUED: Cynthia Noles Johnson, JOHNSON LAW, P.C., Cohutta, Georgia, for
Appellant. Jay T. Jorgensen, SIDLEY AUSTIN LLP, Washington, D.C., for Appellee.
Jonathan H. Levy, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC, for
Amicus Curiae. ON BRIEF: Cynthia Noles Johnson, JOHNSON LAW, P.C., Cohutta,
Georgia, Russell D. Hedges, MOORE & HEDGES, Tullahoma, Tennessee, for Appellant.
Jay T. Jorgensen, Carter G. Phillips, SIDLEY AUSTIN LLP, Washington, D.C., Travis R.
McDonough, Roger W. Dickson, Zachary H. Greene, MILLER & MARTIN PLLC,
Chattanooga, Tennessee, for Appellee. Jonathan H. Levy, Michael S. Raab, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, DC, for Amicus Curiae.
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OPINION
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GRIFFIN, Circuit Judge. Plaintiff Alton T. Terry, a Tennessee poultry farmer,
entered into a contract with defendant Tyson Farms, Inc., the nation’s largest poultry
processing firm, to raise chickens. The present action evolved from purportedly unlawful

1
No. 08-5577 Terry v. Tyson Farms, Inc. Page 2

retaliatory actions taken by Tyson against Terry in response to his affiliation with, and
leadership role in, a newly organized regional growers’ association. Terry brought suit
under the Agricultural Fair Practices Act of 1967 (“AFPA”), 7 U.S.C. § 2303, alleging
unlawful interference and discrimination based on his membership in the growers’
association; and the Packers and Stockyards Act (“PSA”), 7 U.S.C. §§ 192(a) and (b),
alleging that Tyson engaged in unfair, discriminatory or deceptive practices, and subjected
him to undue or unreasonable prejudice or disadvantage.

Tyson moved to dismiss Terry’s complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). The district court granted the motion as to both claims and entered
judgment in favor of Tyson. In doing so, the court determined that Terry failed to allege his
involvement with an “association of producers,” as defined and required by the AFPA,
7 U.S.C. § 2302(c) (2008). The district court also awarded Tyson attorney’s fees incurred
in defending against Terry’s AFPA claim, pursuant to 7 U.S.C. § 2305(a). With respect to
Terry’s PSA claim, the district court held that proof of injury to competition is a necessary
element of a claim under 7 U.S.C. §§ 192(a) and (b) and, because Terry failed to plead that
Tyson’s actions had an adverse effect on competition, this count likewise must be dismissed
for failure to state a claim.

Terry now appeals the dismissal of his complaint and the district court’s award of
attorney’s fees to Tyson. For the following reasons, we affirm.

I.

In our de novo review of the district court’s grant of Tyson’s motion to dismiss under
Rule 12(b)(6), we construe Terry’s complaint in the light most favorable to him and accept
his well-pled factual allegations as true. Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th
Cir. 2008).

In 2001, Terry bought a poultry farm in Tennessee and entered into an agreement
with Tyson, which contracts with independent growers to raise broiler chickens owned and
provided by the company. Tyson provides the chicks, feed, and technical advice; the
responsibility of the grower is to raise the chickens to a target processing weight and then
return the mature birds to Tyson. Tyson pays its growers according to a formula that
No. 08-5577 Terry v. Tyson Farms, Inc. Page 3

measures the relative productivity of the growers by comparing the amount of feed provided
and the weight of the chickens upon their return to the processing plant. Consequently, the
weight of the chickens at the end of the grow-out period is an important factor in the
compensation equation, and federal regulations provide that weighing is to occur
1
immediately upon arrival at the processor’s plant. See 9 C.F.R. § 201.82(b). A grower is
entitled to watch his birds being weighed. See 9 C.F.R. § 201.108-1(e)(4).2 Tyson’s
alleged failure to promptly weigh Terry’s chickens and allow Terry access to the
weighing of his birds began the chain of events that culminated in this lawsuit.

Before he purchased the farm, Terry researched the poultry business, reviewed
the seller’s production records, and spoke with Tyson’s production manager at its
Shelbyville, Tennessee, complex about Tyson’s intent to continue its placement of
chickens at the farm following the sale. The production manager assured Terry that the
farm and equipment were in excellent condition and that it was a top-producing farm.
These assurances lead Terry to believe that the farm would need no substantial
improvements in the near future. In the summer of 2001, Terry and his family moved
to the farm, and he took over management of the poultry flock.

Terry thereafter became aware of numerous problems that poultry growers were
experiencing with Tyson and other poultry processors. In 2002, Terry attended a
conference in North Carolina with other contract growers, attorneys representing
growers, and representatives of farmers’ organizations. The purpose of the conference
was to address the problems faced by growers in their dealings with processors and to
provide guidelines for the organization of grower associations. After the conference,
Terry became actively involved in organizing the poultry growers in his area into what
ultimately became the Tennessee Poultry Growers Association (“TPGA”). In 2004, he

1
9 C.F.R. § 201.82(b) provides: “Whenever live poultry is obtained under a poultry growing
arrangement, the poultry shall be transported promptly after loading and the gross weight for grower
payment purposes shall be determined immediately upon arrival at the processing plant, holding yard, or
other scale normally used for such purpose.”
2
9 C.F.R. § 201.108-1(e)(4) states in pertinent part: “Poultry growers . . . are entitled to observe
the balancing, weighing, and recording procedures. A weigher shall not deny such persons that right or
withhold from them any information pertaining to the weight.”
No. 08-5577 Terry v. Tyson Farms, Inc. Page 4

was elected chairman of the directors for the TPGA. In his capacity as a TPGA officer,
Terry educated poultry growers about their rights under federal law and reported
complaints about Tyson to officials at the Packers and Stockyards Administration in
Washington, D.C.

Meanwhile, Terry became concerned that his poultry was not being weighed
promptly upon arrival at the Tyson plant, as required by his contract and federal
regulations. In August and December of 2004, he went to Tyson’s plant to watch his
birds being weighed, but he was denied access. He complained to a federal official and
requested that a letter be sent to Tyson. On February 13, 2005, Terry followed a truck
loaded with his poultry to Tyson’s processing plant. When he arrived at the plant at 2:00
a.m., he was told that his chickens would not be weighed until after 4:00 a.m. When
Terry returned at 4:00 a.m., he was once again denied access to the plant. Plaintiff called
an agent with the Grain Inspection Division of the Packers and Stockyards
Administration, who told Terry that he was in route to the plant and would find out why
Terry was not allowed to observe the weighing of his poultry.

Later that same week, Terry met with Tyson’s local managers. Following the
meeting, Tyson delayed its placement of birds on Terry’s farm for a full flock rotation,
costing Terry $30,000 in lost compensation. When Terry met with Tyson’s managers
again on March 28, 2005, they informed him that Tyson made a “company decision” to
discontinue the placement of birds at his farm after he made the weighing complaint.
Terry asked for, but was refused, compensation for the damages he sustained as a result
of the missed flock.

On January 11, 2006, Tyson notified Terry that his contract would not be
renewed, allegedly because of his confrontational behavior toward Tyson’s
representatives and his failure to make “costly and unnecessary” changes to his poultry
operation, despite the fact that Terry was a successful poultry producer and was “well
above average” in the grower rankings. Terry avers that “[t]he reasons provided by
Tyson for termination of [his] contract were false and pretextual to disguise Tyson’s real
reason, which was to thwart [his] efforts to organize growers, and in retaliation for [his]
No. 08-5577 Terry v. Tyson Farms, Inc. Page 5

complaints to the Packers [and] Stockyards Administration.” Terry subsequently
advertised his farm for sale, but claims that he has been unable to sell it due to Tyson’s
demands for costly upgrades as a condition to the continued placement of poultry at the
farm. This lawsuit followed.

II.

“[T]o survive a motion to dismiss, the complaint must contain either direct or
inferential allegations respecting all material elements to sustain a recovery under some
viable legal theory.” Tam Travel, Inc. v. Delta Airlines, Inc., 583 F.3d 896, 903 (6th Cir.
2009) (citation omitted). “We need not accept as true legal conclusions or unwarranted
factual inferences, and conclusory allegations or legal conclusions masquerading as
factual allegations will not suffice.” Id. (citations and internal quotation marks omitted).
“[T]he complaint’s ‘[f]actual allegations must be enough to raise a right to relief above
the speculative level,’ and ‘state a claim to relief that is plausible on its face.’” Id.
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)).

The parties to this appeal do not dispute the factual specificity of Terry’s
allegations. Rather, at issue is whether Terry’s complaint contains adequate “direct or
inferential allegations respecting all material elements to sustain a recovery” under the
AFPA and PSA. Tam Travel, Inc., 583 F.3d at 903. With regard to the latter statute,
however, we must first settle the question whether a showing of injury to competition
is a necessary element of a claim under the PSA.

III.

This case poses a matter of first impression in this circuit: whether a plaintiff
asserting unfair discriminatory practices or undue preference under §§ 202(a) and (b) of
the PSA must allege an adverse effect on competition in order to state a claim. This
issue is not novel to other courts; it has been addressed by seven of our sister circuits,
with consonant results. All of these courts of appeals unanimously agree that an
anticompetitive effect is necessary for an actionable claim under subsections (a) and (b).
For the reasons that follow, we join this legion.
No. 08-5577 Terry v. Tyson Farms, Inc. Page 6

Section 202 of the PSA, codified at 7 U.S.C. § 192, provides:

It shall be unlawful for any packer or swine contractor with respect to
livestock, meats, meat food products, or livestock products in
unmanufactured form, or for any live poultry dealer with respect to live
poultry, to:
(a) Engage in or use any unfair, unjustly discriminatory,
or deceptive practice or device; or
(b) Make or give any undue or unreasonable preference
or advantage to any particular person or locality in any
respect, or subject any particular person or locality to any
undue or unreasonable prejudice or disadvantage in any
respect; or
(c) Sell or otherwise transfer to or for any other packer,
swine contractor, or any live poultry dealer, or buy or
otherwise receive from or for any other packer, swine
contractor, or any live poultry dealer, any article for the
purpose or with the effect of apportioning the supply
between any such persons, if such apportionment has the
tendency or effect of restraining commerce or of creating
a monopoly; or
(d) Sell or otherwise transfer to or for any other person,
or buy or otherwise receive from or for any other person,
any article for the purpose or with the effect of
manipulating or controlling prices, or of creating a
monopoly in the acquisition of, buying, selling, or dealing
in, any article, or of restraining commerce; or
(e) Engage in any course of business or do any act for the
purpose or with the effect of manipulating or controlling
prices, or of creating a monopoly in the acquisition of,
buying, selling, or dealing in, any article, or of restraining
commerce; or
(f) Conspire, combine, agree, or arrange with any other
person (1) to apportion territory for carrying on business,
or (2) to apportion purchases or sales of any article, or
(3) to manipulate or control prices; or
(g) Conspire, combine, agree, or arrange with any other
person to do, or aid or abet the doing of, any act made
unlawful by subdivisions (a), (b), (c), (d), or (e) of this
section.
No. 08-5577 Terry v. Tyson Farms, Inc. Page 7

7 U.S.C. § 192 (hereinafter “§ 192”).

Terry alleges in Count Two of his complaint that “[d]efendant violated the [PSA]
by engaging in unfair, unjustly discriminatory, or deceptive practices or devises [sic] in
violation of § 202 of the [PSA], 7 U.S.C. § 192(a); and by subjecting Plaintiff to undue
or unreasonable prejudice or disadvantage in violation of 7 U.S.C. § 192(b).” However,
Tyson argued, and the district court agreed, that because the PSA is essentially an
antitrust statute, subsections (a) and (b) require a party to allege an adverse effect on
competition in order to sustain a cause of action. The district court dismissed Terry’s
PSA claim for failure to allege such anticompetitive activity on Tyson’s part. In
reaching this conclusion, the court noted the dearth of Sixth Circuit precedent on this
issue and followed the prevailing tide of other circuit court decisions that have held that
subsections (a) and (b) of § 192 require an anticompetitive effect.

The tide has now become a tidal wave, with the recent issuance of the Fifth
Circuit Court of Appeals’ en banc decision in Wheeler v. Pilgrim’s Pride Corp., 591
F.3d 355 (5th Cir. 2009) (en banc), in which that court joined the ranks of all other
federal appellate courts that have addressed this precise issue when it held that “the
purpose of the Packers and Stockyards Act of 1921 is to protect competition and,
therefore, only those practices that will likely affect competition adversely violate the
Act.” Wheeler, 591 F.3d at 357. All told, seven circuits – the Fourth, Fifth, Seventh,
Eighth, Ninth, Tenth, and Eleventh Circuits – have now weighed in on this issue, with
unanimous results. See Wheeler, 591 F.3d 355; Been v. O.K. Indus., Inc., 495 F.3d 1217,
1230 (10th Cir. 2007); Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272, 1280 (11th
Cir. 2005), cert. denied, 547 U.S. 1040 (2006); London v. Fieldale Farms Corp., 410
F.3d 1295, 1303 (11th Cir. 2005), cert. denied, 546 U.S. 1034 (2005); IBP, Inc. v.
Glickman, 187 F.3d 974, 977 (8th Cir. 1999); Philson v. Goldsboro Milling Co., Nos.
96-2542, 96-2631, 164 F.3d 625, 1998 WL 709324, at *4-5 (4th Cir. Oct. 5, 1998)
(unpublished table decision); Jackson v. Swift Eckrich, Inc., 53 F.3d 1452, 1458 (8th Cir.
1995); Farrow v. United States Dep’t of Agric., 760 F.2d 211, 215 (8th Cir. 1985);
DeJong Packing Co. v. United States Dep’t of Agric., 618 F.2d 1329, 1336-37 (9th Cir.
No. 08-5577 Terry v. Tyson Farms, Inc. Page 8

1980), cert. denied, 449 U.S. 1061 (1980); and Pac. Trading Co. v. Wilson & Co., 547
F.2d 367, 369-70 (7th Cir. 1976).

In this appeal, Terry, joined by amicus curiae United States Department of
Agriculture (“USDA”), seeks to persuade us to adopt the decidedly minority view
embraced by some district courts and vigorously articulated by Judge Garza, along with
six of his colleagues, in his dissenting opinion in Wheeler. See Wheeler, 591 F.3d at 371
(Garza, J., dissenting). See also Schumacher v. Tyson Fresh Meats, Inc., 434 F. Supp.
2d 748, 754 (D.S.D. 2006) (holding that Ҥ 192(a)[] does not prohibit only those unfair
and deceptive practices which adversely affect competition”); Kinkaid v. John Morrell
& Co., 321 F. Supp. 2d 1090, 1102 (N.D. Iowa 2004) (“[T]his court finds that only a
strained reading of the statute could require that practices that are ‘unfair’ or ‘deceptive’
within the meaning of § 192(a) must also be ‘monopolistic’ or ‘anticompetitive’ to be
prohibited.”); Gerace v. Utica Veal Co., Inc., 580 F. Supp. 1465, 1469-70 (N.D.N.Y.
1984) (holding that it is unnecessary to allege restraint of trade or hindrance of
competition under § 192(a)).

Ultimately, Terry and the USDA would have this court deviate from the course
taken by the seven other circuits that have spoken on this issue, thus creating a conflict.
We decline to do so. “[W]hile we recognize that we are not bound by the law of other
Circuits, this court has also routinely looked to the majority position of other Circuits in
resolving undecided issues of law. We also take note of the importance of maintaining
harmony among the Circuits on issues of law.” Wong v. Partygaming Ltd., 589 F.3d
821, 827-28 (6th Cir. 2009) (citations omitted); see also United States v. Washington,
584 F.3d 693, 698 (6th Cir. 2009) (“[T]his court routinely looks to our sister circuits for
guidance when we encounter a legal question that we have not previously passed
upon.”). As one court has explained, this is more than a courtesy:

As a general matter, we do not create conflicts among the circuits
without strong cause. We adhere to this view because federal law (unlike
state law) is supposed to be unitary. It would, of course, be foolhardy to
suggest that we should blindly adhere to another circuit court’s decision
as a fail-safe method of preventing intercircuit conflict. Congress has
created multiple and co-equal intermediate federal appellate courts, each
No. 08-5577 Terry v. Tyson Farms, Inc. Page 9

with an equal power and duty to decide the cases properly brought before
it. This regime, by design, embraces the possibility of a considered
difference in views among the circuit courts on a given question; a policy
of blind adherence to the decision of another circuit, apart from any
utility it might have in promoting uniformity and predictability in
outcome, would flout the manifest will of Congress. As then-Judge
Ginsburg had occasion to observe in In re Korean Air Lines Disaster,
“each [federal court] has an obligation to engage independently in
reasoned analysis.” 829 F.2d 1171, 1176 (D.C. Cir. 1987), aff’d, 490
U.S. 122 [] (1989). At the same time, the interest that all prospective
parties before the court have in uniformity and predictability of outcome
must be given its due. We thus temper the independence of the analysis
in which we engage by according great weight to the decisions of other
circuits on the same question.

Washington Energy Co. v. United States, 94 F.3d 1557, 1561 (Fed. Cir. 1996).3 Indeed,
the Wheeler court was sensitive to the vast body of cohesive precedent when it pointed
out that “[p]redictability must be the lodestar.” Wheeler, 591 F.3d at 363.

As the next in line to interpret § 192.s requirements, we, too, assign great weight
to the unanimity of thought that precedes our own determination of this issue. Needless
to say, “[w]e are not merely to count noses.” United States v. Hill, 48 F.3d 228, 232 (7th
Cir. 1995).4 However, the rationale employed by our sister circuits is well-reasoned and
grounded on sound principles of statutory construction. Moreover, under the
fundamental principle of stare decisis, we deem the construction of this nearly 90-year-

3
See also Admiral Fin. Corp. v. United States, 378 F.3d 1336, 1340 (Fed. Cir. 2004) (“[W]e
accord great weight to the decisions of our sister circuits when the same or similar issues come before us,
and we do not create conflicts among the circuits without strong cause.”) (internal quotation marks
omitted); Am. Vantage Cos., Inc. v. Table Mountain Rancheria, 292 F.3d 1091, 1098 (9th Cir. 2002)
(“[A]lthough we are by no means compelled to follow the decisions of other circuits, there is virtue in
uniformity of federal law as construed by the federal circuits.”) (citation and internal quotation marks
omitted); United States v. Auginash, 266 F.3d 781, 784 (8th Cir. 2001) (“Although we are not bound by
another circuit’s decision, we adhere to the policy that a sister circuit’s reasoned decision deserves great
weight and precedential value. As an appellate court, we strive to maintain uniformity in the law among
the circuits, wherever reasoned analysis will allow, thus avoiding unnecessary burdens on the Supreme
Court docket.”) (internal quotations marks omitted); Mayer v. Spanel Int’l Ltd., 51 F.3d 670, 675 (7th Cir.
1995) (“We do not create conflicts among the circuits without strong cause.”); Int’l Soc’y for Krishna
Consciousness, Inc. v. Lee, 925 F.2d 576, 580 (2d Cir. 1991) (“Where there is the considerable weight of
unanimous authority, we believe that creation of such a circuit conflict must be based on an abiding
conviction that the view of several other courts is unreasonable, lest the Supreme Court’s ability to resolve
conflicts among the circuits be impaired by the sheer number of such conflicts.”).
4
“[W]e are not constrained to follow [the views of our sister circuits] if, in our opinion, they are
based upon an incomplete or incorrect analysis.” Nixon v. Kent County, 76 F.3d 1381, 1388 (6th Cir.
1996) (citation omitted).
No. 08-5577 Terry v. Tyson Farms, Inc. Page 10

old statute to be a matter of settled law. We therefore join these circuits and hold that
in order to succeed on a claim under §§ 192(a) and (b) of the PSA, a plaintiff must show
an adverse effect on competition.

In the present case, the district court properly determined that although Terry
asserts a number of wrongful acts by Tyson, his complaint does not allege that Tyson’s
actions had an anticompetitive effect: “Plaintiff focuses solely on how Defendant’s
action harmed him as an individual grower. He makes no allegations regarding the
effect of Defendant’s actions on the pricing of poultry or on overall competition in the
poultry industry.” Accordingly, the district court did not err in granting Tyson’s motion
to dismiss Terry’s PSA claim.

IV.

Congress enacted the AFPA in 1968 to “protect[] the right of farmers and other
producers of agricultural commodities to join cooperative associations through which
to market their products,” and “to rectify a perceived imbalance in bargaining position
between producers and processors of such products.” Mich. Canners and Freezers
Ass’n, Inc. v. Agric. Mktg. and Bargaining Bd., 467 U.S. 461, 464 (1984) (footnotes
omitted). “[T]he Act’s principal purpose is to protect individual producers from
interference by processors when deciding whether to belong to a producers’ association
. . . .” Id.; see also Newark Gardens, Inc. v. Mich. Potato Indus. Comm’n, 847 F.2d
1201, 1203 (6th Cir. 1988); 7 U.S.C. § 2301 (“Because agricultural products are
produced by numerous individual farmers, the marketing and bargaining position of
individual farmers will be adversely affected unless they are free to join together
voluntarily in cooperative organizations as authorized by law.”). Consistent with these
aims, the AFPA proscribes certain actions by processors, known as “handlers” under the
Act:

It shall be unlawful for any handler knowingly to engage or permit any
employee or agent to engage in the following practices:
(a) To coerce any producer in the exercise of his right to
join and belong to or to refrain from joining or belonging
No. 08-5577 Terry v. Tyson Farms, Inc. Page 11

to an association of producers, or to refuse to deal with
any producer because of the exercise of his right to join
and belong to such an association; or
(b) To discriminate against any producer with respect to
price, quantity, quality, or other terms of purchase,
acquisition, or other handling of agricultural products
because of his membership in or contract with an
association of producers[.]

7 U.S.C. §§ 2303(a) and (b).

In Count One of his complaint, Terry alleges that Tyson violated § 2303 by
“knowingly permitting its employee or agent to coerce and intimidate Plaintiff in the
exercise of his right to join and belong to an association of producers and by
discriminating against Plaintiff with respect to the quantity and quality of poultry and
feed supplied to Plaintiff because of his membership in an association of producers.”

The parties do not dispute that Tyson is a “handler” and Terry is a “producer,”
as defined by the AFPA. See 7 U.S.C. §§ 2302(3)(A) and(4) (defining these respective
terms). Rather, the dispositive issue is whether the association with which Terry was
affiliated – the TPGA – satisfies the AFPA’s definition of an “association of producers,”
so as to bring his allegations of coercion and discrimination under the protective
umbrella of the statute. During the time period relevant to this cause of action, the
AFPA defined an “association of producers” as “any association of producers of
agricultural products engaged in marketing, bargaining, shipping, or processing as
defined in section 1141j(a) of Title 12, or in section 291 of this title.” 7 U.S.C. § 2302(c)
(emphasis added).5

5
The recently enacted Food, Conservation, and Energy Act of 2008 expanded the definition of
“association of producers” to include “an organization whose membership is exclusively limited to
agricultural producers and dedicated to promoting the common interest and general welfare of producers
of agricultural products.” 7 U.S.C. § 2302(2)(B). See Pub. L. 110-234, § 11003(6)(B), and Pub. L. 110-
246, § 11003(6)(B) (redesignating former subsection (c) of § 2302 as paragraph 2 and added subparagraphs
(A) and (B)). The issue of retroactive application of this amendment, effective May 22, 2008, has not been
raised by Terry on appeal and hence is forfeited. See generally United States v. Johnson, 440 F.3d 832,
845-46 (6th Cir. 2006) (“[A]n appellant abandons all issues not raised and argued in its initial brief on
appeal.”) (citation and quotation marks omitted); Farm Labor Org. Comm. v. Ohio State Highway Patrol,
308 F.3d 523, 544 n.8 (6th Cir. 2002) (“It is well established that an issue not raised in a party’s briefs on
appeal may be deemed waived.”).
No. 08-5577 Terry v. Tyson Farms, Inc. Page 12

Section 2302(c) of the AFPA cross-references two other statutes, the Agricultural
Marketing Act of 1929 (“AMA”) and the Capper-Volstead Act, which define similar
farming associations. The AMA was enacted to promote the efficient production and
distribution of agricultural commodities, in part, by permitting producers to organize
“cooperative associations” to assist in bringing products to market. 12 U.S.C.
§ 1141(a)(3); see Fairdale Farms, Inc. v. Yankee Milk, Inc., 635 F.2d 1037, 1042 (2d
Cir. 1980) (observing that the declared policy of the AMA is “to promote the effective
merchandising of agricultural commodities” through “a farm marketing system of
producer-owned and producer-controlled cooperative associations.”). The AMA defines
the term “cooperative association” as

any association in which farmers act together in processing, preparing for
market, handling, and/or marketing the farm products of persons so
engaged, and also means any association in which farmers act together
in purchasing, testing, grading, processing, distributing, and/or furnishing
farm supplies and/or farm business services . . . .

12 U.S.C. § 1141j(a).

The Capper-Volstead Act “removed from the proscription of the antitrust laws
cooperatives formed by certain agricultural producers that otherwise would be directly
competing with each other in efforts to bring their goods to market.” Nat’l Broiler Mktg.
Ass’n v. United States, 436 U.S. 816, 822 (1978) (footnote omitted). It was passed by
Congress in 1922 “to make it clear that the formation of an agricultural organization with
capital would not result in a violation of the antitrust laws, and that the organization,
without antitrust consequences, could perform certain functions in preparing produce for
market.” Id. at 824; see also Newark Gardens, Inc., 847 F.2d at 1208 (noting that the
Capper-Volstead Act “exempts agricultural cooperatives from the antitrust laws”). The
Capper-Volstead Act includes within its scope agricultural producers who “act together
in associations . . . in collectively processing, preparing for market, handling, and
marketing [farm products] in interstate and foreign commerce.” 7 U.S.C. § 291. “The
real sense behind such an association and the prime purpose of the persons so banding
together is to accomplish a common objective – collective marketing. It is a collection
No. 08-5577 Terry v. Tyson Farms, Inc. Page 13

of producers cooperating to sell the goods they have produced.” United States v. Elm
Springs Farm, Inc., 38 F. Supp. 508, 511 (D. Mass. 1941); see also Alexander v. Nat’l
Farmers Org., 687 F.2d 1173, 1185 (8th Cir. 1982) (“The unmistakable purpose of the
Capper-Volstead Act is to permit farmers and only farmers to band together and benefit
economically from collective marketing of their products.”).

In its motion to dismiss, Tyson argued that the TPGA does not qualify as an
AFPA “association of producers” because Terry does not allege that the TPGA engaged
in the requisite “marketing, bargaining, shipping, or processing” activities enumerated
in § 2302(c); instead, Terry’s complaint avers only that the TPGA gathered information,
educated its members, and reported complaints about Tyson and other processors to the
government – functions purportedly outside of the purview of the AFPA.

The district court examined Terry’s complaint and, relying on the plain language
of § 2302(c), agreed with Tyson that the TPGA does not fall within the statutory
definition of an “association of producers”:

Interpreting § 2302(c), the United States Court of Appeals for the Sixth
Circuit has held that a state-run potato commission was not an
“association of producers” because it did not engage in marketing,
bargaining, shipping or processing of agricultural products. Newark
Gardens, Inc. v. Mich. Potato Indus. Comm’n, 847 F.2d 1201, 1206 (6th
Cir. 1988).
In his capacity as president of the TPGA, Plaintiff “gathered information
from other growers about problems they were having with Tyson” and
reported these complaints to government agencies. (Complaint, Court
Doc. 1, ¶ 13.). Plaintiff also “educated other growers about federal laws
prohibiting abuse of growers in the poultry industry.” (Id. at ¶ 14.).
Plaintiff distributed video tapes to other growers that reported on
problems in the poultry industry. (Id. at ¶ 15.). From the allegations in
Plaintiff’s complaint, it appears that TPGA is principally involved with
educating growers about their rights and assisting growers with enforcing
their rights by reporting producers’ violations to federal agencies.
Defendant argues that TPGA’s “educational and informational efforts
and, to the extent that they exist, its government complaints, do not
qualify it as an ‘association of producers’” under the AFPA. (Court Doc.
11 at 7.). The statutory language is clear that an “association of
producers” includes only those organizations that engage in “marketing,
No. 08-5577 Terry v. Tyson Farms, Inc. Page 14

bargaining, shipping or processing” of agricultural products. 7 U.S.C.
§ 2302(c). The Court must therefore evaluate whether the TPGA is
involved with any of the specified activities.
“Marketing” is “the act of buying and selling in a market; the commercial
functions involved in transferring goods from producer to consumer.”
The American Heritage Dictionary of the English Language 1072 (4th
ed. 2000). No reasonable inference can be drawn from the allegations in
the complaint that the TPGA engages in buying or selling of goods in a
market or in the commercial functions involved with transferring goods
from producer to consumer. The actions of the TPGA do not, therefore,
qualify as marketing under § 2302.
“Shipping” is “the act or business of transporting goods.” Id. at 1607.
“Producing” is “to bring forth, yield; to manufacture; to cause to occur
or exist; to make or yield products or a product.” Id. at 1399. No
reasonable inference can be drawn from the complaint that the TPGA is
involved with shipping or producing agricultural goods under § 2302.
“Bargaining” is “to negotiate the terms of an agreement, as to sell or
exchange; to engage in collective bargaining; to arrive at an agreement.”
Id. at 144. There is no allegation that TPGA negotiates on behalf of any
of its members or, as discussed above, sells or exchanges agricultural
goods. “Collective bargaining” is “negotiation between organized
workers and their employer or employers to determine wages, hours,
rules, and working conditions.” Id. at 362. Although it appears that
Plaintiff, in his role as president of TPGA, discussed issues such as
working conditions and federal laws with other growers, there is no
allegation that he ever discussed those issues with Defendant. Moreover,
the relationship between Plaintiff and Defendant is not that of
employer/employee but of two commercial organizations under
contractual obligations to each other. There is no indication from the
allegations in the complaint that TPGA had any interaction with
Defendant and could not, therefore, have collectively bargained with
Defendant. As such, there is no indication that TPGA engaged in
“bargaining,” collective or otherwise, with regard to agricultural products
as required by § 2302.
The district court further determined that the TPGA’s educational and
enforcement activities did not otherwise fall within the cross-referenced definitions set
forth in the AMA and Capper-Volstead Act, and observed that “[t]here is no apparent
policy reason that the activities of the TPGA would be subject to antitrust laws and
therefore no need to establish an exemption for such activities.” Therefore, because a
No. 08-5577 Terry v. Tyson Farms, Inc. Page 15

material element of Terry’s AFPA claim was fatally lacking, the district court dismissed
Terry’s AFPA claim. We affirm the district court’s sound decision.

Terry argues that in granting Tyson’s motion to dismiss, the district court
employed a pleading standard that is too exacting under Twombly. He contends that “[a]
plausible reading of [his] [c]omplaint is that one of the purposes of [the TPGA] was to
strengthen the marketing and bargaining position of the growers who were organizing
to address common grievances and concerns in their relationship with Tyson” and,
therefore, the TPGA qualifies as an “association of producers.” According to Terry, the
district court’s “narrow” construction of the AFPA is at odds with the remedial purpose
of the statute, i.e., to prevent processors from using their superior bargaining position to
the detriment of producers. Terry maintains that Tyson has effectively chilled the ability
of its contract growers to form an association for their mutual benefit and increase their
bargaining power, thereby defying the protective goals of the AFPA.

However, Terry’s interpretation of the AFPA disregards the plain language of the
statute, see Thompson v. N. Am. Stainless, 567 F.3d 804, 807 (6th Cir. 2009) (en banc),
and the germane maxim expressio unius est exclusio alterius (“the expression of one
thing is the exclusion of others”), Millsaps v. Thompson, 259 F.3d 535, 546 (6th Cir.
2001), that “justif[ies] the inference that [activities] not mentioned were excluded by
deliberate choice, not inadvertence . . . .” City of Cleveland v. Ohio, 508 F.3d 827, 847
(6th Cir. 2007) (citation and internal quotation marks omitted). Terry’s complaint does
not allege that the TPGA engaged in any of the primary functions of an “association of
producers” enumerated in the AFPA or related statutes. Moreover, Terry’s stance is
contradictory to our prior decision in Newark Gardens.

In Newark Gardens, the plaintiff, a Michigan potato-farming business, brought
suit against the Michigan Potato Industry Commission, alleging that certain provisions
of a Michigan statute that required potato producers to pay a promotional assessment to
the commission was in conflict with and, thus, preempted by the AFPA. Newark
Gardens, 847 F.2d at 1201. The plaintiff argued that it was being coerced into joining
or belonging to an “association of producers” in violation of § 2303(a) of the AFPA, or
No. 08-5577 Terry v. Tyson Farms, Inc. Page 16

maintaining a “marketing contract with an association of producers” in violation of
§ 2303(c). Id. at 1207. The express purpose of the Potato Commission was to “foster,
develop, and promote the potato industry through research, promotion, advertising,
market expansion, development of new markets, education, and the development and
dissemination of market and industry information.” Id. at 1202 (quoting MICH. COMP.
LAWS § 290.423(1)). We rejected the plaintiff’s “expansive interpretation of the
definition of ‘association of producers,’” namely, its argument that because the Potato
Commission supplied “market information,” it therefore engaged in “marketing” under
the AFPA:

The district court concluded that [the] definitional sections [of the AFPA,
AMA and Capper-Volstead Act] described traditional cooperatives
among farmers and did not contemplate governmental commodity
promotion boards such as the Potato Commission . . . . The district court
found that the Potato Commission was not within “the cooperative
association tradition” because it did not engage in collective bargaining
on behalf of farmers, nor did it perform any act which involved the sale
or transfer of title in potatoes from grower to shipper to retailer to
consumer. Therefore, since the Commission did not fit within the
definitions contained in 7 U.S.C. § 291 or 12 U.S.C. § 1141j(a), the court
reasoned that it was not an “association of producers” within the meaning
of the AFPA as defined in 7 U.S.C. § 2302(c). We agree.

Id. at 1208.

We therefore affirmed the district court’s grant of summary judgment to the
defendant. Id. at 1210. In so holding, we distinguished Treasure Valley Potato
Bargaining Ass’n v. Ore-Ida Foods, Inc., 497 F.2d 203 (9th Cir. 1974), in which the
Ninth Circuit Court of Appeals held that two potato-growers’ associations engaged in
“marketing” within the meaning of the Capper-Volstead Act and therefore were immune
from antitrust prosecution. The Ninth Circuit broadly construed the term “marketing”
and concluded that even though the associations “did not collectively process, prepare
for market, handle or actually sell potatoes,”6 their activities nonetheless constituted
marketing because each association “negotiat[ed] contracts for the sale of potatoes by

6
These activities were carried out by the individual members.
No. 08-5577 Terry v. Tyson Farms, Inc. Page 17

its members,” which “necessarily require[d] supplying market information and
performing other acts that are part of the aggregate of functions involved in the
transferring of title to the potatoes.” Treasure Valley, 497 F.2d at 215.

In Newark Gardens, we concluded that “[t]he collective bargaining activities of
the associations which represented the farmers in Treasure Valley are clearly
distinguishable from the activities of the Potato Commission . . . . These bargaining
associations which negotiated with the processors on behalf of the farmers were within
the traditional definition of cooperative associations.” Newark Gardens, 847 F.2d at
1209. By contrast, the Potato Commission “does not attempt to dictate the price, terms,
or timing of the sale of potatoes in Michigan.” Id. at 1206. “Potato producers are free
to sell to whomever they choose at whatever price they negotiate.” Id.7

As our decision in Newark Gardens makes clear, the term “association of
producers” includes only those organizations that are directly involved with bringing
farmers’ products to market. The TPGA, according to Terry’s well-pled allegations,
simply does not fit this profile. Like the Potato Commission in Newark Gardens, the
TPGA neither negotiates with poultry processors nor “perform[s] any act which
involve[s] the sale or transfer of title in [poultry] from grower to shipper to retailer to
consumer.” Id. at 1208. Nothing in Terry’s complaint suggests that the TPGA is
primarily engaged in one or more of the AFPA’s designated activities, i.e., “marketing,
bargaining, shipping or processing” its members’ agricultural products. 7 U.S.C.
§ 2302(c). Cf. I.C.C. v. Jamestown Farmers Union Federated Coop. Transp. Ass’n, 57
F. Supp. 749, 753 (D. Minn. 1944), aff’d 151 F.2d 403 (8th Cir. 1945) (“[I]f the

7
This distinction drawn in Newark Gardens is equally applicable to other cases which have found
that an association has engaged in “marketing” under the Capper-Volstead Act. See, e.g., Fairdale Farms,
Inc., 635 F.2d at 1040 (eschewing a “hyper-technical reading” of the Capper-Volstead Act in determining
that cooperative associations organized for the sole purpose of fixing prices were engaged in marketing
and therefore entitled to antitrust protection under the act); Agritronics Corp. v. Nat’l Dairy Herd Ass’n,
Inc., 914 F. Supp. 814, 825 (N.D.N.Y. 1996) (“In the case at bar, the Complaint by its own terms states
that defendants are in the business of ‘testing milk and providing the “official” milk production records
for dairy farmers.’ As such, each defendant [association] clearly has demonstrated that it is performing
a ‘marketing’ function within the meaning of the . . . Capper-Volstead Act[].”); N. Cal. Supermarkets, Inc.
v. Cent. Cal. Lettuce Producers Coop., 413 F. Supp. 984, 991-92 (N.D. Cal. 1976) (citing Treasure Valley
and holding that activities of lettuce producers’ cooperative association fell within protective scope of
Capper-Volstead Act because, even though the cooperative did not grow, ship, sell, or negotiate the sale
of products in its own name, it set prices, supplied market information, and performed other acts related
to the transfer of title of the products).
No. 08-5577 Terry v. Tyson Farms, Inc. Page 18

cooperative is predominantly engaged in one or more of the activities specified in the
[AMA], . . . such association does not lose its fundamental character as a cooperative”
by engaging in other activities incidental to the primary statutory activity.). Rather, it
is an organization principally involved with educating growers about their rights and
assisting growers in the enforcement of those rights by reporting processors’ violations
to federal authorities. The fact that the TPGA’s educational and policing activities may
have the incidental benefit of increasing the growers’ bargaining power, as Terry posits,
does not bring it within the AFPA’s definition of “association of producers,” because,
as Newark Gardens demonstrates, such an association must itself bargain or market on
behalf of its members.

Terry has failed to allege that Tyson’s unlawful actions stem from his
involvement with an AFPA-protected “association of producers.” Consequently, his
complaint is deficient, in that it does not “contain either direct or inferential allegations
respecting all material elements to sustain a recovery under some viable legal theory.”
Tam Travel, Inc., 583 F.3d at 903 (citation omitted). We therefore affirm the district
court’s dismissal of his AFPA claim pursuant to Rule 12(b)(6). Cf. Leonhardt v.
Western Sugar Co., 160 F.3d 631, 637 (10th Cir. 1998), abrogated on other grounds by
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005) (“The prohibition on
the making of ‘false reports’ [under § 2303(e) of the AFPA] . . . appl[ies] only to false
reports about associations of producers or handlers which are intended to influence or
that have the effect of influencing a producer’s decision to join an association. Because
plaintiffs’ complaint made no allegation concerning membership in such an association,
we affirm the district court’s dismissal of plaintiffs’ AFPA claim for failure to state a
claim.”).

V.

Next, Terry appeals the district court’s award of attorney’s fees to Tyson for its
legal costs incurred in defending against Terry’s AFPA claim. The AFPA’s fee-shifting
provision states that “[i]n any action commenced pursuant hereto, the court, in its
discretion, may allow the prevailing party a reasonable attorney’s fee as part of the
No. 08-5577 Terry v. Tyson Farms, Inc. Page 19

costs.” 7 U.S.C. § 2305(a). Terry maintains that we should apply the standard set forth
in Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412 (1978), in which the Supreme
Court, in the context of a Title VII civil rights case, held that a prevailing defendant
should be awarded attorney’s fees only “upon a finding that the plaintiff’s action was
frivolous, unreasonable, or without foundation,” so as not to discourage civil rights
plaintiffs or “undercut the efforts of Congress to promote the vigorous enforcement of
the provisions of Title VII.” Christiansburg Garment Co., 434 U.S. at 421-22. See also
Garner v. Cuyahoga County Juvenile Court, 554 F.3d 624, 635-36 (6th Cir. 2009)
(applying Christiansburg standard to a claim under 42 U.S.C. § 1988). Terry asserts that
“[a]n award of fees to a prevailing defendant under a lesser standard than that established
by Christiansburg would deter producers such as Terry from acting to enforce their
rights under the AFPA, thus defeating the very purpose of the Act – to prevent
processors from chilling producers from joining together with other growers.”

However, Terry failed to raise this issue in a timely manner for the district
court’s consideration; hence, it is not properly preserved for our review. See Foster v.
Barilow, 6 F.3d 405, 407-08 (6th Cir. 1993) (holding that issue regarding whether
attorney’s fees could be awarded to prevailing defendants in an action under the Fair
Housing Act, without a determination that the claim was frivolous, groundless, or
unreasonable, was forfeited on appeal because it was not raised in the district court); see
also Smoot v. United Transp. Union, 246 F.3d 633, 648 (6th Cir. 2001) (declining to
consider the plaintiff’s appellate challenge to award of attorney’s fees where the plaintiff
failed to raise an objection in the district court); Moore v. Int’l Bhd. of Elec. Workers,
Local 58, 60 F. App’x 581, 582 (6th Cir. 2003) (unpublished) (affirming district court’s
judgment in favor of defendants where the plaintiff “failed to timely respond to the
defendants’ motion for attorneys’ fees in the district court, [and thus] waived any
objection he had to the defendants’ application for and the district court’s award of
attorneys’ fees”).

Moreover, there is no reason to deviate from the general forfeiture rule in this
case. When faced with an identical unpreserved challenge to an award of attorney’s fees
No. 08-5577 Terry v. Tyson Farms, Inc. Page 20

to the prevailing defendants in Foster, we declined to apply the “narrow” exceptions to
the forfeiture rule because “the issue was not developed with sufficient clarity and
completeness in the district court” and “a ruling in favor of the [plaintiffs] would require
further litigation in the district court on the frivolousness issue,” thereby prolonging the
litigation. Foster, 6 F.3d at 407-08 (internal quotation marks omitted).

We decline to address Terry’s argument under these similar circumstances, where
a remand to the district court for further development of the record on the question of
bad faith would be necessary.

Terry offers no other reasons why the district court abused its discretion in
awarding attorney’s fees to Tyson, as the prevailing party, under § 2305(a). In fact, our
review of the record indicates that both the magistrate judge, to whom the matter was
referred, and the district court thoroughly evaluated Tyson’s counsel’s billing records,
required itemization of AFPA-related fees and a local attorney’s affidavit attesting to the
reasonableness of the charged hourly rate,8 and then evaluated the requested fees using
the accepted “lodestar” calculation method. See generally B & G Mining, Inc. v. Dir.,
Office of Workers’ Comp. Programs, 522 F.3d 657, 661-63 (6th Cir. 2008); Moore v.
Freeman, 355 F.3d 558, 565-66 (6th Cir. 2004); Paschal v. Flagstar Bank, FSB, 297
F.3d 431, 434-35 (6th Cir. 2002); and Reed v. Rhodes, 179 F.3d 453, 471-73 (6th Cir.
1999). We therefore will not disturb the award.

VI.

For the reasons stated, we affirm the judgment of the district court.

8
Tyson’s proffered attorney’s fees incurred in defending against both the AFPA and PSA claims
totaled $57,455.00. Tyson asserted that $27,461.00, or 47.8% of the total, was for fees incurred in
defending the AFPA claim. The district court adopted the magistrate judge’s report and recommendation
advising that Tyson should be awarded its requested amount of AFPA fees.