Opinion
Civil Action No. 2:15–CV–32
12-19-2017
M & M POULTRY, INC., Plaintiff, v. PILGRIM'S PRIDE CORPORATION, Defendant.
J. Dudley Butler, Butler Farm & Ranch Law Group, PLLC, Benton, MS, Keith Lively, Doyle, Barlow & Mazard, PLLC, Washington, DC, Todd B. Johnson, Johnson Law, PLLC, Morgantown, WV, for Plaintiff. Benjamin L. Stewart, Pro Hac Vice, Clayton E. Bailey, Pro Hac Vice, Bailey Brauer PLLC, Dallas, TX, Jeffrey S. Zurbuch, Robert C. Chenoweth, Peter G. Zurbuch, Busch, Zurbuch & Thompson, PLLC, Elkins, WV, for Defendant.
J. Dudley Butler, Butler Farm & Ranch Law Group, PLLC, Benton, MS, Keith Lively, Doyle, Barlow & Mazard, PLLC, Washington, DC, Todd B. Johnson, Johnson Law, PLLC, Morgantown, WV, for Plaintiff.
Benjamin L. Stewart, Pro Hac Vice, Clayton E. Bailey, Pro Hac Vice, Bailey Brauer PLLC, Dallas, TX, Jeffrey S. Zurbuch, Robert C. Chenoweth, Peter G. Zurbuch, Busch, Zurbuch & Thompson, PLLC, Elkins, WV, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
JOHN PRESTON BAILEY, UNITED STATES DISTRICT JUDGE
On the 14th day of November, 2017, this matter came before this Court for a bench trial on four claims—(1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) tortious interference, and (4) a violation of § 192 of the Packers and Stockyard Act ("PSA"). The plaintiff was present by counsel Keith Lively, J. Dudley Butler, and Todd B. Johnson. The defendant was present by counsel Clayton Bailey, Ben Stewart, and Peter Zurbuch.
The plaintiff called thirteen witnesses and both parties submitted evidence. At the end of the plaintiff's case-in-chief, the defendant submitted a Motion for Judgment on Partial Findings [Doc. 171]. Having heard the evidence, reviewed the documents admitted into evidence, and reviewed the submissions of counsel, this Court makes the following finding of facts and conclusions of law:
FINDINGS OF FACT
1. Plaintiff M & M Poultry, Inc. ("M & M") is owned by John David Mongold ("Mongold"), and is a former independent contract poultry grower for Pilgrim's Pride Corporation's ("Pilgrim's") Moorefield, West Virginia complex ("the Complex").
2. M & M had six poultry houses. When Mongold inherited M & M from his father, there were five double-deck poultry houses and two residences on the property. Mongold built one single-deck poultry house in the late 1980s. All of the poultry houses were paid off in the 1980s,
before M & M entered into a contract with Pilgrim's.
3. M & M began to grow for Pilgrim's in 2001, after Pilgrim's purchased the previous owner of the Complex, WLR Foods, Inc. ("Wampler"). M & M had previously grown for Wampler, and for the owner of the Complex before Wampler, Rockingham Poultry Marketing Cooperative, Inc. ("Rockingham").
4. M & M grew flocks of chicks for Pilgrim's in accordance with Broiler Production Agreements ("BPAs"). Mongold signed multiple BPAs, in 2005, 2007, 2009, and 2012, as well as multiple amendments to the BPAs [Def. Exhibs. 1, 3, 4, 10]. Further, both Mongold and his son, Clint Mongold ("Clint"), signed forms acknowledging participation in animal welfare training programs [Def. Exhibs. 5, 6, 9].
5. The most recent BPA, signed in 2012, included an addendum titled "Broiler Production Payment Schedule." [Def. Exhib. 1]. The attachment clearly details the system that M & M would be paid under, and that M & M would be ranked against other growers and paid based on how it performed when compared to other growers who settled flocks of birds the same week as M & M. This system, called the "tournament system," has been used in the poultry industry for at least forty years and is standard in the poultry industry.
6. Under this system, the integrator sets a base pay per pound rate that it will pay growers. For every flock of chickens that settles in a week, the integrator sets aside a pool of money which represents the base pay rate multiplied by the total "Marketable Broiler Live Weight" for all of the growers settling in that week. The growers are then ranked against each other using the integrator's "weighted average formula cost," which calculates the cost of feed and medication required to grow the chicks. The pool of money is divided amongst the growers settling that week, with growers who performed better than the weighted average formula cost receiving more than base pay, and growers who performed below the average receiving less than base pay.
7. The BPA sets a minimum pay of 3.55 cents per pound, plus .2 cents per pound as an energy allowance. Thus, even if a grower's actual computed costs for a flock were more than 1.50 cents per pound greater than the average cost of all growers for a week (meaning that the grower's performance is at least 1.50 cents per pound worse than average), the grower would still receive 3.55 cents per pound plus the energy allowance, instead of the lesser amount they would receive based on actual performance.
8. While growing broilers for Rockingham and Wampler for thirty years, M & M was paid under the same system used by Pilgrim's.
9. In 1998, M & M took out a $200,000 loan, using the six poultry houses and other property as collateral. The loan was primarily used to build Mongold a personal residence. Sometime before 2000, Mongold also took out a $38,000 loan for upgrades to the poultry houses. These upgrades included replacing vents, purchasing static pressure machines, and installing some new fans. In 2007, Mongold replaced the feed system in the poultry houses at the
request of Pilgrim's. No other significant upgrades were made.
10. Mongold refinanced this loan at some point by taking out a new loan from the Grant County Bank ("GCB"). Mongold consolidated other personal debts at this time, and by 2006, the balance of the loan was more than $400,000.
11. A poultry house typically has an economic life of twenty to thirty years. A house exceeds its economic life when it ceases to produce sufficient annual revenue in its intended use to offset the costs of ownership, operation, and maintenance. For a poultry house to be economically viable past twenty to thirty years and avoid functional obsolescence, it must receive regular standard maintenance as well as structural improvements and new technology.
12. It is difficult to maintain the uniform environmental conditions necessary for optimal broiler growth in houses that are older than twenty to thirty years of age if the houses have not been maintained on a regular basis and have not had major structural improvements and new technologies installed. As a result, the grower will likely incur higher production costs for electricity and propane. The grower is also more likely to experience signs of poor bird performance, such as lower bird weights, higher feed conversion rates, decreased livability, and slower growth to the target weight.
13. M & M did not provide adequate regular maintenance for its six poultry houses. M & M did not provide any major structural improvements or implement new technologies after the limited upgrades made before 2000 and the replacement of the feed system, as would be necessary to prevent functional obsolescence.
14. M & M's poultry houses had exceeded their economically useful lives before the BPA was terminated, evidenced by the high cost of utilities and the decline in profits for M & M.
15. Under the BPA, Pilgrim's provides its own feed, medication, veterinary services, technicians, and chicks to the growers. The growers agree to follow Pilgrim's recommendations for various husbandry matters, including environment, sanitation, lighting, pest control, and biosecurity.
16. Once the broiler chicks are placed with growers, usually at a day or two old, Pilgrim's exclusively supplies feed for the chicks. There are several formulas that Pilgrim's uses for different purposes. While ingredients in the formulas may change depending on availability, the nutritional makeup remains substantially the same. When the ingredients change, the consistency of the feed may also differ.
17. The feed mill for the Complex ("feed mill") produced feed in bulk quantities, manufacturing several tons of feed every week. Pilgrim's would distribute and deliver the feed to its growers in the amount necessary for their flocks.
18. Pilgrim's owns or licenses the genetics of all of its poultry, the egg hatcheries, the hatched broiler chicks, and the grown broilers.
19. There can be variations in chicks, as in any other living beings, and some may be healthier or smaller
than others. Vitality and vigor of day-old chicks varies and is impacted by many factors, including the age of breeder hens. To maximize chick vitality and vigor, poultry companies will typically harvest hatching eggs from breeder hens for 39 to 41 weeks of the total time the hens are housed. Day-old chicks are processed at the hatchery for delivery to farms in an automated manner. Over multiple broiler flocks, chicks from different age hens tend to be randomly distributed to contract grower farms.
20. Under the BPA, Pilgrim's must "provide the Independent Grower with chicks placed from the hatchery without bias in their selection." [Def. Exhib. 1, ¶ (F)(1) ]. Growers are not given information about the health or age of the hens that laid the chicks they receive. The hatchery does not target growers to receive specific chicks when distributing the flocks.
21. Because chicks are hatched and placed in mass quantities and feed is produced in bulk, it would be difficult for Pilgrim's to target any grower to receive particular chicks or feed. Pilgrim's also has an economic incentive to produce consistently high quality chicks and feed for all complex growers so that it can produce high quality products for its customers and maintain business relationships with its customers.
22. Because chicks and feed are distributed randomly, a grower's management practices factor into performance. There are many factors within a grower's control that determine performance, including whether the grower (1) provides adequate housing to protect the birds from the elements, (2) keeps equipment in good working order, (3) maintains proper ventilation for the birds, (4) provides sufficient water and food, (5) ensures poultry houses are the appropriate temperature for the time of year and age of the birds, (6) maintains a stable and consistent environment throughout the poultry houses, (7) upgrades housing and equipment, (8) spends time in the poultry houses taking care of the birds and performing maintenance, and (9) responds quickly when something goes wrong inside a poultry house.
23. The reasons M & M consistently performed below average in the settlement and was often at or near the bottom is that Mongold did not follow good management practices, and M & M's poultry houses had exceeded their economically useful life spans. M & M often did not follow the directions of Pilgrim's service technicians, such as instructions for properly heating and ventilating the poultry houses. M & M also did not repair equipment timely, or sometimes did not repair equipment at all. Similarly, M & M did not update equipment and did not maintain the equipment in the manner necessary to provide a good habitat for the birds.
24. Before June 2014, when M & M was growing for Pilgrim's, the Complex had customer contracts for "small broilers." Small broilers are targeted to weigh an average of four pounds, and are used to supply the fast food and tray pack market segments. Pilgrim's selected a breed called "Cobb 500" from Cobb–Vantress, a poultry research
and development company, as the broilers for these segments. The Cobb 500 was selected because it provided Pilgrim's the best opportunity to reach the four pound target in a cost effective manner. This breed is used in the majority of small bird complexes in the United States that service the fast food and tray pack markets.
25. The 2012 BPA states that, "[t]he Independent Grower shall provide and maintain proper housing, equipment, litter, and utilities in accordance with the Company's specifications and applicable regulations." [Def. Exhib. 1, ¶ (G)(1) ]. M & M did not provide utilities in accordance with Pilgrim's specifications.
26. Pilgrim's repeatedly informed Mongold that he would have to pay his utilities on time so that it could be confident that the birds in his houses would be safe. Despite this, Mongold was serially delinquent in paying his utility bills. Mongold consistently failed to pay his utilities by the due date, and would instead pay them after he received a termination notice, on or shortly before the shut-off date.
27. In June of 2011, a Pilgrim's employee was on the M & M farm when the electric company arrived to disconnect the power. Because a Pilgrim's employee was on the farm when the electric company arrived and Pilgrim's had broilers in the poultry houses at the time, Pilgrim's intervened and paid more than $1,600 that was past due on M & M's account. As a result, the power was not disconnected. Electricity is necessary for many things, including running the fans in the poultry houses so that the birds do not suffocate and die.
28. While Mongold did have a large generator on the property in case of an emergency, given the repeated issues in maintaining utilities, the reliability of the generator in the case of shut-off was uncertain.
29. On August 30, 2011, the water company showed up to turn off service to the poultry houses because Mongold had not paid the bill. David Simerly, an M & M service technician, was on the farm at the time checking to see if the poultry houses were ready to receive chicks the next day. Because baby chicks require water to live, Pilgrim's had to determine whether the water would be on so that the chicks could be placed on M & M's farm safely or if they would have to be placed elsewhere. Pilgrim's called the water company the next day to guarantee that M & M would have water before it could place the chicks that were scheduled for delivery the next day.
30. Because both the electric and water companies showed up to terminate M & M's utility services within a few months of one another while Pilgrim's employees were present on the farm, and Pilgrim's had previously been contacted by M & M's propane supplier regarding M & M's non-payment, Pilgrim's reasonably believed that there was an ongoing threat to animal welfare. Pilgrim's believed it was necessary to intervene to ensure that the poultry in M & M's care would have electricity, water, and propane, and would not suffer an unnecessary, inhumane death.
31. By paying on the shut-off date, Mongold created a risk that a utility employee would arrive to shut off the water or electricity before M & M's payment could be made or reflected on the account.
32. While utilities were never shut off to the poultry houses, M & M consistently paid its bills close to the termination dates. Mongold made the decision to make the payments so late so that he would have funds if an emergency arose before that point, and consistently failed to pay bills by their initial due dates.
33. Pilgrim's gave Mongold two options to continue receiving birds under the contract: (1) obtain a written statement from each utility provider guaranteeing that the utilities would not be shut off while birds were in the houses, or (2) obtain a written statement from a lender that it would guarantee payment of M & M's utility bills.
34. M & M chose the second option, and obtained a letter from GCB guaranteeing that M & M's utilities would be paid. This arrangement lasted around two years. M & M would assign 100% of its flock proceeds to GCB. GCB would then determine which of M & M's checks would be allowed to clear and which would bounce, depending on how overdrawn the account was and how close M & M was to settling a flock.
35. This was necessary because M & M's account was consistently overdrawn—in 2012, the account was overdrawn for 359 of the 366 days. M & M incurred thousands of dollars in overdraft fees that year.
36. Once GCB received the assigned flock payment, it would then distribute the payment as needed. GCB would first pay itself the amount owed on the original loan. GCB would then reimburse itself for any utility bills that it paid on M & M's behalf, and then for any checks that GCB had paid on M & M's behalf when M & M's account was overdrawn. Any proceeds left after this process were reflected as a positive balance in M & M's account.
37. GCB eventually ended its business relationship with Mongold because it determined that Mongold was an inadequate business manager with an inability to balance a checkbook and because of M & M's long-standing poor financial condition. GCB was concerned that if it continued its extreme involvement in Mongold's finances, a fiduciary relationship would be created. GCB informed Mongold it would no longer guarantee utility payments, and encouraged Mongold to seek a new lender. Pilgrim's was notified of this termination.
38. Pilgrim's gave Mongold another chance to continue receiving birds, and offered him the same options as before: to obtain a guarantee from M & M's utility providers, or a guarantee of payment from another lender.
39. Mongold did not provide either, and instead sought to establish an escrow account at GCB to ensure that the electric bills would be paid. Despite this, Pilgrim's still did not terminate the BPA, and agreed to the escrow account plan.
40. Because Pilgrim's continued to receive termination notices from M & M's water provider, it required
Mongold to expand and fund the escrow account to also provide for payment of water bills.
41. Mongold initially funded the escrow account, but shortly after its creation, M & M did not deposit any more funds. In February of 2014, only a few months after the account was started, Pilgrim's received a termination notice from the electric company. The day before the electricity was scheduled to be shut off, Pilgrim's forwarded the termination notice to GCB to pay it from the escrow account, but there was no money in the account to pay the bill.
42. Later the same month, Pilgrim's sent another letter to M & M stating that it must timely pay its utility bills, and that if Pilgrim's received another termination notice or a refusal of service from the propane provider, Pilgrim's would consider the notice a breach of the BPA and would terminate the agreement after the current flock of chickens left M & M's houses.
43. In May of 2014, Pilgrim's received three more notices of termination from M & M's electric and water companies. Records from the electric company indicate that on or about May 20, service was shut off to Mongold's residential account was shut off for non-payment, and that Mongold was informed that the electric company could not guarantee same day reconnection of service [Def. Exhib. 53, pp.4–5]. The commercial account was scheduled for termination that same day, but Pilgrim's negotiated an extension and payment was made before the service was terminated. The electric company received a payment during the shut-off day on M & M's account, but without the extension, the power may have been shut off before Mongold could tender payment.
44. On May 28, 2014, Pilgrim's sent M & M another letter stating that M & M would have to provide a plan of action to assure Pilgrim's that M & M's utility bills would be paid on time so that Pilgrim's would not receive another termination of service notice, and that Pilgrim's would have to accept that plan before any further birds would be placed in M & M's poultry houses.
45. Mongold responded with a plan to use the same escrow account system that had previously failed. The plan would require Pilgrim's to supervise M & M's utilities and payment of bills, to forward termination notices to the bank so that they could be paid, and to trust that M & M would fund the escrow account for each flock of chickens. Pilgrim's did not accept this proposal.
46. On June 6, 2014, Pilgrim's sent a ninety-day notice of termination to M & M, as required by the BPA. In the same letter, Pilgrim's informed M & M that due to animal welfare concerns, it would be suspending placement of chicks during that period of time.
47. Pilgrim's stated that its refusal to place chicks with M & M during this period was due to animal welfare concerns. However, Pilgrim's willingness to work with M & M during the prior four years belies this claim, as Pilgrim's had dealt with Mongold's serial delinquency for that entire period and nothing had changed to suggest an imminent
threat to animal welfare that was any different than what Pilgrim's had managed for those four years.
48. The BPA states that Pilgrim's maintains a program that aims to avoid any unnecessary suffering to the broilers. Thus, while practices like culling and controlling light exposure may be necessary to efficiently grow poultry, allowing the birds to go without heat, air, or water is unnecessary suffering.
49. Poultry integrators aim to have broilers that are grown humanely by contract growers. These integrators, like Pilgrim's, have an economic interest in this, as many purchasers, like the fast food industry, may face intense scrutiny from their consumers regarding animal welfare or the quality of the birds.
50. At a minimum, adequate shelter, environmental control, nutrient and water availability, and husbandry requirements to ensure animal welfare of broilers during the grow-out phase are a necessity. Consequently, production agreements and contracts throughout the industry generally contain specific verbiage to that effect, and violation of any of those terms may constitute cause for termination.
51. Pilgrim's gave Mongold numerous opportunities, spanning four years, to avoid termination. Mongold participated in the Cost Improvement Program twice, but failed to complete it successfully the second time. Pilgrim's cooperated with Mongold and his bank to set up a system to ensure that bills were paid, which failed. Pilgrim's also allowed Mongold to set up an escrow account to ensure that his utility bills were paid. This plan failed because Mongold failed to fund the account. Pilgrim's actually paid utility bills to prevent cut-offs, and in other instances negotiated with the utility companies to prevent water or electricity from being shut off while the chickens were still in M & M's houses.
52. The BPA is consistent with accepted animal welfare guidelines, standards, and regulations. Ample evidence exists in the form of repeated termination notices from M & M's utility providers to recognize that the welfare of any flocks Pilgrim's placed at M & M would be at substantial risk for having one or more utility services terminated on very short notice, likely endangering the welfare of all broilers on the farm. M & M was repeatedly cautioned that its BPA would be terminated in the event that additional termination notices were received. And although several such termination notices for utility services continued to be received by Pilgrim's, M & M never provided Pilgrim's with a viable plan for correcting the problem or simply paid its bills by the due date.
53. Pilgrim's did not have monopsony power in the Moorefield, West Virginia, area. The vast majority of Complex growers have as many as eight different potential buyers for grower services, and other Complex growers have switched integrators in the past, and some have even switched back to Pilgrim's later.
54. The buyers of grower services in the Moorefield, West Virginia, area serve as competitor's for Pilgrim's
in the grower market and include poultry integrators like George's, Inc. and Perdue Farms. Both of these integrators operate poultry processing facilities in the region and are direct competitors of Pilgrim's. In the Moorefield region, there are also turkey processing facilities and organic chicken processing facilities.
55. The presence of other chicken and turkey operations serve as an economic constraint on any potential anti-competitive behavior on behalf of integrators generally, and the Pilgrim's Complex specifically.
56. Pilgrim's and other integrators are not restricted to operate within state borders. As a result, poultry, turkey, or other producers in West Virginia can contract with growers in Virginia and producers in Virginia can contract with producers in West Virginia.
57. The economic feasability of poultry integrators or other producers to contract with grower farms is largely determined by the distance between grower farms and the producer's facilities. Limiting the distance between grower farms and production facilities helps to ensure that fresh and healthy poultry is delivered to the facility.
58. Pilgrim's generally contracts with broiler growers whose farms are no more than fifty miles from its feed mills or processing plants. The furthest complex grower is fifty-seven direct miles and sixty-five driving miles from the Complex's processing plant.
59. Based upon the testimony of the plaintiff's expert, Dr. C. Robert Taylor, M & M would have received $219,846.81 in net pay over the fifteen flocks that could have been placed between the date of termination and the date of Dr. Taylor's report.
60. Dr. Taylor's calculation took into consideration average pay and flock variable expenses (such as propane and other utilities). Based on Dr. Taylor's calculations, M & M would have received a net pay of $14,656.44 per flock. M & M would generally receive six to seven flocks of birds in a year. During the ninety-day period where placement of chicks was suspended by Pilgrim's, M & M could have settled a flock of chickens and received another placement of chicks. Thus, M & M could have received one and a half more flocks during the ninety-day period of termination.
CONCLUSIONS OF LAW
1. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 – 1332.
2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391.
3. In a bench trial, the proper motion is a judgment on partial findings under Federal Rule of Civil Procedure 52(c) rather than for judgment as a matter of law under Rule 50.
4. Under Federal Rule of Civil Procedure 52(c), "If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue." Fed. R. Civ. P. 52(c).
5. Rule 52(c) expressly authorizes district judges to resolve disputed issues of fact. Id. ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.").
6. Any claims M & M might have had based on events that occurred before December 28, 2009, are barred by the Findings of Fact, Conclusions of Law and Order Confirming Debtors' Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code entered by the United States Bankruptcy Court for the Northern District of Texas, Fort Worth Division. These claims include, but are not limited to, M & M's assertions that Pilgrim's breached the BPA by requiring it to replace feeders and cover and/or move a pile of litter and/or compost sometime before 2008.
7. The statute of limitations bars damages for M & M's PSA claim before May 8, 2011.
8. The statute of limitations bars damages for M & M's tortious interference claim before May 8, 2013.
9. Pilgrim's did not breach the valid BPA by providing a ninety-day notice of termination based upon animal welfare concerns. A claim for breach of the covenant of good faith and fair dealing in West Virginia requires a predicate breach of contract claim to survive, and thus Pilgrim's did not breach the covenant of good faith and fair dealing by terminating the BPA.
10. Under the BPA, Pilgrim's could terminate without any cause so long as ninety days notice was given prior to the effective date of termination. The BPA required the written notice to state the effective date of termination, the reason(s) for termination, and appeal rights, if any. While the BPA states that the notice of termination must provide a "reason" for termination, there is no indication that the termination must rise to the level of "good cause."
11. Pilgrim's did have good cause to terminate the agreement, based upon the concern for animal welfare if utilities were to be terminated, Mongold's repeated failure to comply with the terms of the agreement, and Mongold's failure to work with Pilgrim's to solve the issues.
12. Pilgrim's letter, dated June 6, 2014 [Def. Exhib. 49], met the BPA's requirements.
13. Pilgrim's violated the BPA by failing to provide chicks during the ninety-day termination period.
14. By suspending chick placement during this period, Pilgrim's eliminated all duties and obligations under the BPA and effectively immediately terminated the BPA. By doing so, Pilgrim's rendered the termination period illusory.
15. M & M's damages for Pilgrim's breach of the BPA by suspending placement of chicks is equivalent to the net pay M & M would have received for one and a half flocks of chicks.
16. Based upon Dr. Taylor's determination of lost income net of variable expenses, M & M would have received $14,656.44 per flock. Therefore the damage award amounts to $21,984.66—the net pay resulting from settlement of a flock ($14,656.44) plus the net value of half of a settled flock ($7328.22).
17. Pilgrim's did not breach the covenant of good faith and fair dealing by suspending placement of chicks during the ninety day period.
18. M & M failed to establish any tortious interference. Specifically, M & M did not show an intentional act or interference, or that any interference caused harm, as is required to support a claim of tortious interference.
19. Pilgrim's did not intentionally interfere with M & M's business relationship with GCB.
20. Any interference in the banking relationship between M & M and GCB was caused by Mongold in order to meet Pilgrim's requirement of a guarantee against utility termination, necessitated by Mongold's failure to timely pay utilities.
21. The termination of M & M's business relationship with GCB was the result of the company's long-standing, deplorable financial condition, and not any intentional act of interference by Pilgrim's.
22. Any damages that M & M suffered from the termination of its business relationship was not caused by Pilgrim's.
23. M & M is not entitled to any damages on its claim for tortious interference.
24. Pilgrim's did not engage in or use any unfair, unjustly discriminatory, or deceptive practice or device in violation of PSA § 192(a).
25. Pilgrim's did not 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 in violation of PSA § 192(b).
26. There is no evidence that M & M was targeted to receive poor feed or chicks; rather, the testimony reflects that numerous growers consistently complained of poor chicks and poor feed. This testimony demonstrates no targeting of M & M, but simply the fact that there can be variations in chicks, as in every other living being, and in mass produced feed. Nor is there any evidence to suggest that M & M was targeted in any way—rather, the evidence shows that Pilgrim's made a significant effort to help Mongold and M & M remain in business, and sought to resolve the issues with M & M for several years before resorting to termination of the BPA.
27. There is no evidence to show that Pilgrim's used any natural variations in feed or chicks to discriminate against M & M or any other grower.
28. The tournament system is not novel or deceptive. This system has been used in the poultry industry for over forty years, and is still the standard system in the poultry industry.
29. Dr. Taylor's expert testimony concerning discrimination in the poultry industry failed to establish any unfair, unjustly discriminatory, or deceptive practices, or any unreasonable preference or advantage given to a person. Rather, his testimony established his general distaste for the system as a whole and his preference for a different formula.
30. M & M's near constant position at the bottom of the tournament was
not due to any form of unreasonable preference or advantage given to a person, or due to any unfair, unjustly discriminatory, or deceptive practices, but due to the age, condition, and obsolescence of its broiler houses, and poor management practice on the part of the operators of the facility.
31. M & M is not entitled to any damages on its claim for a violation of § 192 of the PSA.
CONCLUSION
For the reasons stated above, it is hereby ORDERED that:
A. Plaintiff is granted a judgment against the defendant in the amount of $21,984.66.
B. Defendant Pilgrim's Pride Corporation's Motion for Judgment on Partial Findings [Doc. 171] is GRANTED IN PART as to the plaintiff's claims for breach of the covenant of good faith and fair dealing, violation of the PSA, and tortious interference, and DENIED IN PART as to the plaintiff's claim for breach of contract as to the failure to place chicks during the notice period.
C. The Clerk is DIRECTED to enter a separate judgment consistent with this Order.
D. This matter be STRICKEN from the docket of this Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.