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In re Processed Egg Products Antitrust Litigation

United States District Court, E.D. Pennsylvania

October 31, 2019





         In an effort to crack an alleged conspiracy, the Direct Action Plaintiffs (DAPs) in this antitrust action seek to admit hundreds of co-conspirator statements against Defendants United Egg Producers (UEP), United States Egg Marketers (USEM), and Rose Acre Farms, Inc. To do so, the DAPs must prove the existence of the conspiracy they allege-a multi-pronged scheme to reduce the domestic supply of eggs as a means of increasing egg prices-by a preponderance of the evidence. To use the statements against each defendant, the DAPs must prove that each individual defendant knowingly agreed to join this overarching conspiratorial scheme. Finally, the DAPs must show that the statements were made by a co-conspirator in the course of and in furtherance of the overarching conspiracy.

         Because the DAPs have proven the existence of the conspiracy and each defendant's participation as required for this evidentiary ruling, many of these co-conspirator statements will be admissible at trial.

         I. Background

         This memorandum analyzes within the confines of the applicable rules of evidence whether an alleged conspiracy to reduce the domestic supply of eggs existed and if so, which defendants, if any, were members of the conspiracy. Because the analysis requires an extensive review of the evidence submitted by the parties, the Court provides only a brief Background.

         The DAPs allege that the defendants participated in a single conspiracy to reduce domestic egg supply to increase egg prices by using three general tactics: (1) a series of short-term egg-supply reduction measures, (2) a long-term plan to reduce the supply of eggs under the pretext of an "animal welfare program," and (3) exporting eggs at a loss.

         A. Short-term Supply-Reduction Measures

         The DAPs' conspiracy theory begins with UEP. UEP is a cooperative that provides services to its members, including lobbying and marketing, concerning principally animal welfare, food safety, and environmental issues. The DAPs allege that UEP members agreed to a series of short-term programs designed to immediately reduce the supply of eggs beginning in 1999. These measures were implemented by a committee within UEP known as the "Marketing Committee." Members of UEP were then to commit to implementing the measures. These measures included inducing hens to molt earlier than they naturally would, [1] slaughtering hens earlier, and reducing the hatching of chicks. UEP members were also encouraged to stop or slow considerably backfilling cages (that is, replacing dead hens with younger hens). These egg supply reduction measures reportedly succeeded in reducing flock size and driving the price of eggs up, and were implemented on a number of occasions.

         B. The Scheme to Reduce the Supply of Eggs Under the Pretext of a Certified Animal Welfare Program

         The DAPs allege that UEP went beyond these short-term measures to create and implement its own certified animal welfare program intended to reduce egg supply but operating under the guise of improving the welfare of hens. The program's alleged goal of reducing the egg supply primarily relied upon requirements for increased cage space per hen. Compliance with this program was monitored by monthly reporting requirements and periodic audits. The cage-space requirement was supplemented by three additional requirements that ensured the certified program would have its intended effect: (1) the "100% Rule," which required that all of a producer's facilities, including those of its affiliates, comply with the Certified Program's cage-space requirements in order for any egg from that producer to be "certified;" (2) a prohibition on backfilling within the certified program; and (3) a rule that failing to comply with the cage-space or backfilling requirements would result in an "automatic fail" of an audit under the certified program-even though other shortcomings under the program (such as improper lighting or handling) did not result in an "automatic fail." The Certified Program was promoted as an animal welfare program with labels to that effect on egg packaging.

         C. Egg Exports at a Loss

         The final component of the alleged conspiracy was the exporting of domestic eggs at a loss. The DAPs allege that egg producers exported their eggs into foreign markets to drive up the domestic price of eggs. The scheme, implemented by members of USEM and managed through UEP's Export Committee, required all USEM members to either export their own eggs at a loss or sell their eggs to UEP at domestic prices and later receive a bill for the difference between the domestic price and the export price. USEM members who did not contribute eggs to the export scheme contributed money to help fellow members bear the burden of the export losses.

         II. Legal Standard

         Typically, out-of-court statements offered for the truth of the matter asserted are inadmissible hearsay. Fed.R.Evid. 801(c). As explained in in United States v. Weaver, 507 F.3d 178 (3d Cir. 2007), out-of-court statements can be admitted as non-hearsay co-conspirator statements if the moving parties-here, the DAPs-prove "by a preponderance of evidence that: (1) a conspiracy existed; (2) the declarant and the party against whom the statement is offered were members of the conspiracy; (3) the statement was made in the course of the conspiracy; and (4) the statement was made in furtherance of the conspiracy."[2] Id. at 181 (citations omitted); see also Bourjaily v. United States, 483 U.S. 171, 175 (1987). When deciding preliminary questions concerning the admissibility of evidence, "Third Circuit law requires [that] the Court make rulings favorable to Plaintiffs if Plaintiffs have presented, by a preponderance of evidence, sufficient facts to warrant admissibility." In re Domestic Drywall Antitrust Litig., 163 F.Supp.3d 175, 229 (E.D. Pa. 2016). The Federal Rules of Evidence similarly favor admissibility. In re Flat Glass Antitrust Litig., 385 F.3d 350, 375-76 (3d Cir. 2004).

         For purposes of applying Federal Rule of Evidence 801(d)(2)(E), the quantity of evidence used to prove a conspiracy need not be great. The Third Circuit Court of Appeals "has held that the trial court's determination need only be supported by 'slight evidence.'" United States v. Savage, Nos. 7-550-03, 07-550-04, 07-550-05, 07-550-06, 2012 WL 5866068, at *2 (E.D. Pa. Nov. 20, 2012) (quoting United States v. Provenzano, 620 F.2d 985, 999 (3d Cir. 1980)). In making these factual determinations, a district court can consider the disputed hearsay statements themselves. See Fed. R. Evid. 801(d)(2); Bourjaily, 483 U.S. at 181 ("[A] court, in making a preliminary factual determination under Rule 801(d)(2)(E), may examine the hearsay statements sought to be admitted.")- However, the statements cannot on their own establish "the existence of the conspiracy or participation in it." Fed.R.Evid. 802(d)(2). Finally, the district court is to create a clear record of its preliminary factual findings.[3] See Domestic Drywall, 163 F.Supp.3d at 203.

         III. Discussion

         A. Defining Co-Conspirator "Statements"

         Before the Court can complete the required Weaver analysis for the disputed co-conspirator statements, it must first determine what constitutes a "statement" for the purposes of Rule 801(d)(2)(E).

         1. Scope of "Statement"

         The parties agree that the Court must determine the admissibility of each statement. They disagree, however, as to how narrowly the Court must construe the term "statement" in completing this determination. The defendants insist that the Court must engage in a sentence-by-sentence analysis, analyzing whether each one meets all the requirements of Rule 801(d)(2)(E). The DAPs contend that the Court can examine all of the statements in a single document together and then admit the whole document.

         In Williamson v. United States, 512 U.S. 594 (1994), the Supreme Court adopted a narrow definition of "statement" for the purposes of determining a statement's admissibility under Rule 804(b)(3), the "statement against interest" exception to hearsay. In determining whether an out-of-court confession was admissible, the Supreme Court held that "statement" means "a single declaration or remark" rather than "a report or narrative" under Rule 804(b)(3). Id. at 599. This precludes a district court from "assum[ing] for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession." Id. at 601. Rather, the district court must evaluate whether each statement in a confession is "truly self-inculpatory," a sometimes "fact-intensive inquiry, which would require careful examination of all the circumstances surrounding the criminal activity involved." Id. at 604.

         Whether the Supreme Court's "single declaration or remark" definition of "statement" applies broadly to all the hearsay-related rules or only to Rule 804(b)(3) as applied in Williamson is an open question. Promptly after Williamson, the Sixth Circuit Court of Appeals held that this narrow definition "extends to the other hearsay exceptions delineated in Rule 804," as well as "Article VIII (Hearsay) of the Federal Rules of Evidence, entirely." United States v. Canan, 48 F.3d 954, 960 (6th Cir. 1995). The court reasoned that "[t]his determination is consistent with the idea implicit in Rule 801(a): that there is an overarching and uniform definition of 'statement' applicable under all of the hearsay rules." Id. In contrast, the First Circuit Court of Appeals "has not yet determined whether the definition of 'statement' adopted for Rule 804(b)(3) in Williamson also applies Rule 804(b)(5)," let alone all the hearsay rules. United States v. Sposito, 106 F.3d 1042, 1048 (1st Cir. 1997). Neither the DAPs, the defendants, nor the Court have located any Third Circuit Court of Appeals precedent directly addressing this specific question. Courts in the Third Circuit, however, approach hearsay statements narrowly. See, e.g., Ciccarelli v. Gichner Sys. Grp., Inc., 862 F.Supp. 1293, 1298-99 (M.D. Pa. 1994) (finding immediately post- Williamson that a hearsay analysis under Rule 804(b)(3) requires the district court determine which words within individual sentences qualify as self-inculpatory).

         Due to the open nature of this question, the Court does not decide today whether the term "statement" must always be narrowly construed to require a sentence-by-sentence analysis under the hearsay and hearsay-related evidence rules. However, given the abundance of "statements" at issue here, however one might set the bar, and because the great number, length, and animated nature of the documents presented in this application to the Court, the Court accepts the task of analyzing each sentence individually for its admissibility. The Court's sentence-by-sentence analysis is detailed in the Appendix to this Memorandum.

         Even a sentence-by-sentence analysis, however, does not take place in a vacuum. The Supreme Court instructed in Williamson that determining whether a statement is self-inculpatory for the purposes of Rule 803(b)(3) "can only be determined by viewing it in context." 512 U.S. at 603. Such context is also required under Rule 801(d)(2)(E) for determining whether a statement is in furtherance of the conspiracy. See United States v. Duka, 671 F.3d 329, 348-49 (3d Cir. 2011) (finding that district court did not abuse its discretion in holding statements were made in furtherance of the conspiracy where the district court "found that, in the context of the overall conversation, the . . . statements [were] intended to reassure . . . and maintain trust within the conspiracy") (emphasis added); United States v. Gutierrez, 48 F.3d 1134, 1137 (10th Cir. 1995) ("When determining whether a statement was made in furtherance of a conspiracy we focus on the declarant's intent in making the statement. The determination must be made by examining the context in which the statement was made.") (citations omitted). Therefore, the Court will consider the context in which the statements were made.

         2. Non-Statements

         The defendants hope to save some of the disputed co-conspirator statements from admission under Rule 801(d)(2)(E) by arguing that they are not statements at all, rendering the hearsay rules inapplicable. The defendants are correct that if the offered evidence does not meet the definition of "statement," the hearsay rules do not control its admissibility. See Fed. R. Evid. 801 advisory committee's note ("The effect of the definition of 'statement' is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion.").

         Rule 801(a) defines "statement" as an "assertion" and "hearsay" as a statement that, in relevant part, "a party offers in evidence to prove the truth of the matter asserted in the statement." Fed.R.Evid. 801(a), (c). The defendants contend that a selection of the disputed co-conspirator "statements" are not assertions at all, but "questions, inquiries, requests, directions, or other types of statements that are not being offered for their truth" Def.s' Post-Hearing Mem. at 26 (Doc. No. 2007) (emphasis added). Therefore, the defendants argue that Rule 801 (d)(2)(E) cannot justify admission because each is not a "statement... offered against an opposing party and made by the party's coconspirator during and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E) (emphasis added).

         To be sure, Rule 801(d)(2)(E) is not the proper tool for admitting non-statements. But the defendants eluded a fox in the henhouse only to run straight into the butcher. Breaking their argument down to its core, the defendants are telling the Court that some of the disputed co-conspirator statements are not admissible under the hearsay rules because they are not hearsay to begin with. See United States v. Edwards, 792 F.3d 355, 357 n.2 (3d Cir. 2015) ("[A] statement is hearsay only if it is offered 'to prove the truth of the matter asserted.'") (quoting Fed.R.Evid. 801(c)(2)); United States v. Daniels, 48 Fed.Appx. 409, 412 (3d Cir. 2002) ("If a party does not offer a statement into evidence for the purpose of establishing the statement's truth, such statement does not constitute hearsay.") (citing United States v. Reynolds, 715 F.2d 99, 101 (3d Cir. 1983)). If the statements are not hearsay, then they are admissible evidence if relevant.[4] See FED. R. Evid. 402; see, e.g., United States v. Ballou, 59 F.Supp.3d 1038, 1073 (D.N.M. 2014) (admitting seven paragraphs of "commands, directives, or mandates" that "have no truth value, because they assert no facts" into evidence "because they are not 'assertions,' and thus not 'statements' under rule 801").

         Relatedly, the defendants argue that if the DAPs cannot admit the non-hearsay statements under Rule 801(d)(2)(E), then the jury should be instructed to consider the statements for only whatever limited purpose they are offered. A limiting instruction is appropriate when a statement that does have a truth value is offered for a purpose other than that truth, such as to show the effect on the listener. See, e.g., Marks v. Marina Dist. Dev. Co., LLC, 213 Fed.Appx. 147, 153-54 (3d Cir. 2007) (finding "consistent with the sound exercise of discretion" the district court's admission of testimony about a dispatch call that "was not being offered for the truth of the contents of the call, but to demonstrate their effect on the listener" where that testimony was immediately followed by a limiting instruction that "this aspect of [the witness's] testimony was only admissible for a limited purpose"). Here, however, the defendants' argument is that these statements are non-hearsay because they have no truth value to begin with. The Court fails to see why it would instruct the jury that it cannot consider statements for a truth value that they do not possess. Of course, should the DAPs seek to offer a hearsay statement for a non-hearsay purpose, the Court will consider a proper limiting instruction.

         Having decided on a context-driven sentence-by-sentence statement determination, the Court turns to the traditional Weaver analysis.

         B. Whether a Conspiracy Existed

         To admit co-conspirator statements, the Court must find "by a preponderance of proof that a conspiracy existed. Bourjaily, 483 U.S. at 175. To prevail on a Section 1 Sherman Act claim, a plaintiff must establish a "contract, combination ... or conspiracy" in the restraint of trade. 15 U.S.C. § 1. Two or more entities enter into a conspiracy when they reach an agreement or understanding to commit a common illicit scheme. Flat Glass, 385 F.3d at 356. "[T]he antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the [defendants] and others had a conscious commitment to a common scheme designed to achieve an unlawful objective." Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984) (quotation marks and citations omitted); see Ins. Brokerage Antitrust Litig., 618 F.3d 300, 315 (3d Cir. 2010) ("[T]he plaintiff must show that the defendant was a party to a contract, combination ... or conspiracy .... in other words, a unity of purpose or a common design and understanding or a meeting of minds or a conscious commitment to a common scheme.") (citations and quotation marks omitted).

         Direct evidence is evidence that "a reasonable finder of fact must be able to use ... to find a conspiracy with no further extrapolation." In re K-Dur Antitrust Litig, No. 1-1652, 2016 WL 755623, at *19 (D.N.J. Feb. 25, 2016) (citing Ins. Brokerage, 818 F.3d at 324 n. 23); see In re Baby Food Antitrust Litig, 166 F.3d 112, 118 (3d Cir. 1999) (defining direct evidence in a Section 1 conspiracy to be "evidence that is explicit and requires no inferences to establish the proposition or conclusion being asserted"). A "document or conversation explicitly manifesting the existence of the agreement in question" is direct evidence. Ins. Brokerage, 818 F.3d at 324 n. 23. However, of course, a plaintiff need not demonstrate the existence of a formal or written agreement to evidence a commonly held agreement between co-conspirators. United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174, 182 (3d Cir. 1970). A plaintiff can also rely upon circumstantial evidence, evidence which requires the finder of fact to make additional logical leaps to determine that a conspiracy occurred. Id.

         In determining whether a single conspiracy exists, the Third Circuit Court of Appeals has focused on "(1) whether there was a common goal among the conspirators; (2) whether the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators; and (3) the extent to which the participants overlap in the various dealings." United States v. Fattah, 914 F.3d 112, 168 (3d Cir. 2019). However, as already addressed in this litigation, "[a]ntitrust law has never required identical motives among conspirators, and even reluctant participants have been held liable for conspiracy." In re Processed Egg Products Antitrust Litig, 821 F.Supp.2d 709, 719 (E.D. Pa. 2011) (citations and quotation marks omitted) (alterations in original).

         The evidence issue raised here is all the more challenging because the statements are almost all presented in newsletters and similar publications disseminated by a trade association. A trade association "can only be held liable for concerted action if it acted as an entity[, ]" and concerted action does not necessarily "exist every time a trade association member speaks or acts." Alvord-Polk, Inc. v. F. Schumacher &C., 37 F.3d 996, 1007 (3d Cir. 1994) (citing Nanavati v. Burdette Memorial Hosp., 857 F.2d 96, 117-18 (3d Cir. 1988)). Likewise, "pertinent legal authority is clear that participation in a trade group association and/or attending trade group meetings, even those meetings where key facets of the conspiracy allegedly were adopted or advanced, are not enough on their own to give rise to the inference of agreement to the conspiracy." Processed Egg Prods., 821 F.Supp.2d at 722 (collecting cases) (emphasis in original).[5] Common membership, meeting attendance, and "adoption of the trade groups' suggestions" can, however, evidence "an opportunity to conspire" that the conspirator can then act upon to establish the common agreement. Ins. Brokerage, 618 F.3d at 349 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 567 n. 12 (2007); In re Elevator Antitrust Litig., 502 F.3d 47, 51 (2d Cir. 2007)) (emphasis added); see also Petruzzi's IGA Supermarkets, Inc. v. Darling-Del. Co., 998 F.2d 1224, 1242 n. 15 (3d Cir. 1993) ("Proof of opportunity to conspire, without more, will not sustain an inference that a conspiracy has taken place.") (citations and quotation marks omitted).

         In addition to establishing an opportunity to conspire, a plaintiff must evidence that alleged co-conspirators "acted other than independently" in adhering to the trade association's programming or guidelines.[6] Ins. Brokerage, 618 F.3d at 349. Joint action taken by competing members of a trade association on behalf of the association as an entity can satisfy the conspiratorial element of a Section 1 claim. Weiss v. York Hosp., 745 F.2d 786, 815-16 (3d Cir. 1984) (holding that coordinated actions by group of doctors, although each "an independent economic entity in competition with other doctors .... are subject to scrutiny under Section 1 of the Sherman Act") (citing Arizona v. Maricopa Cty. Med. Soc'y, 457 U.S. 332, 339 (1982); Nat'l Soc'y of Prof'l Eng'r v. United States, 435 U.S. 679, 682 (1978)); see also Alvord-Polk, Inc. v. F. Schumacher & C, 37 F.3d 996, 1007 (3d Cir. 1994) (noting that if individual competitors act together for a trade association that the association "has engaged in concerted action so as to trigger potential Section 1 liability").

         I. Overview

         Because the DAPs must prove that the conspiracy existed by a preponderance of the evidence, the Court examines the arguments and evidence presented by both the DAPs and the defendants. The DAPs presented an array of evidence[7] at the evidentiary hearing held on September 27, 2019 that they believe establishes the formation of the conspiracy.[8] In doing so, the DAPs submitted documents setting the stage for the conspiracy long before it was alleged to have officially hatched on May 15, 2000. In the 1980s, UEP called for an egg marketing order to restrict egg supply. The United States Department of Justice denied UEP's request because allowing the order would violate antitrust laws. Without assistance from the federal government to rely upon, the DAPs allege that UEP would later take its own measures to reduce egg supply.

         As early as 1999, UEP and its members apparently were facing a period of great oversupply in egg production that drove the cost of egg products down. Scrambling to increase profit margins, UEP and its horizontal competitors allegedly settled upon a conspiratorial scheme to reduce domestic egg supply as a means to increase domestic egg prices. Through its "United Voices" newsletters-the UEP-produced publication dispersed to UEP members and others-UEP urged its members to review their supply demand needs as a first step to maximizing economic returns. Soon thereafter, UEP also recommended that its members to do their part to reduce the egg supply. See DAPs' Formation Binder (hereinafter DAPs' Form. Bind.), United Voices Newsletter at 2 (July 5, 1999) (Tab 14) (noting that "[i]t's up to the individual producers to make [the] decision" whether they would "make the necessary adjustments to bring supply more in balance with demand"). UEP's general urging reductions for supply were soon followed by UEP's encouragement and instruction to participate in a broad supply-reducing conspiracy through three means: various short-term measures, the certified animal welfare program, and exporting eggs at a loss.

         Because the existence of a conspiracy cannot be established exclusively by the statements themselves, the focus is upon the evidence presented independent from the alleged co-conspirator statements. However, the admissible individual statements themselves-as detailed in the Appendix to this Memorandum-underscore the existence of the conspiracy. For the purposes of admitting co-conspirator statements, the DAPs have successfully proven to the Court for this purpose by a preponderance of the evidence that a conspiracy existed. By this ruling the Court is not usurping the jury's function of this point.

         2. Short-Term Supply Reduction Measures

         Facing oversupply throughout the egg industry, UEP turned first to short-term measures- including the early molting and slaughtering of hens-as a means to quickly reduce the egg supply. Through its "United Voices" newsletters, UEP implored its members to "do [their] part in early molting and early slaughter" to "adjust[] the supply side of the business" and ensure higher prices. DAPs' Form. Bind., United Voices Newsletter at 2 (Apr. 19, 1999) (Tab 7).[9] In May 1999, the UEP Board approved both of the short-term supply-reducing measures recommended by the Marketing Committee.[10] After receiving the Board's approval, UEP continued to heavily encourage its members to participate in additional molting and slaughtering initiatives.[11] At least some members did as instructed. See DAPs' Form. Bind., United Voices Newsletter at 1 (June 7, 1999) (Tab 11). Finally, Board members were further "urged... to maintain their supply reduction programs," DAPs' Bind., UEP Bd. Of Dir. Meeting Minutes (Feb. 24, 2000) (Tab 22). According to the DAPs, UEP also knew early on that these short-term measures would not be enough on their own to achieve long-term supply reduction. See DAPs' Form. Bind., United Voices Newsletter at 2 (Apr. 3, 2000) (Tab 24) "(A massive sell-off of hens or molting must occur following Easter week in order to avoid severe depressed prices. Long-term, the industry must address this over-supply problem or face continued survival of the fittest.").

         The defendants did not submit any evidence to demonstrate their lack of participation in implementing these short-term measures. Instead, they argue that UEP merely recommended voluntary actions-not agreements-and that the DAPs insufficiently showed any producers' adherence to the recommendations. The defendants' argument is unavailing. First, albeit voluntary, these joint actions taken by competing members of a trade association can be evidence of a conspiracy. See Weiss, 745 F.2d at 815-16. Second, UEP admitted that at least some producers did in fact adhere to UEP recommendations for the early molt and slaughtering of hens which were made as means to reduce supply. See DAPs' For. Bind., United Voices Newsletter at 1 (June 7, 1999) (Tab 11) ("The [Marketing] Committee applauded the actions taken by the members in following the early molt program .. . ."). Third, regardless of the official "voluntary nature" of the requested actions, UEP's communications suggest that the plan would only work if the members worked together. The Court is satisfied that the DAPs have shown by a preponderance of the evidence that the UEP-led short-term early molt and slaughter efforts were methods employed to advance a broader agreement to reduce the supply of eggs.

         3. Certified Animal Welfare Program

         The DAPs' theory of the conspiracy largely focuses on the UEP's adoption of its animal welfare guidelines and the creation of its Certified Program as a means to reduce egg supply under the guise of ensuring animal welfare. Disgruntled by the economic downturn in the egg market and realizing that short-term fixes would not be enough to alleviate his "concern[s] with the current economic conditions," UEP Chairman Ken Looper sought to develop a "supply program for board review." DAPs' Form. Bind., UEP Bd. of Dir. Meeting Minutes (May 12-13, 1999) (Tab 9). UEP created a Scientific Advisory Committee to recommend suggestions that the UEP's Producer Committee would later draft into UEP's animal welfare guidelines.[12] The DAPs argue that UEP created its Scientific Advisory Committee solely to lend artificial legitimacy to UEP's animal welfare guidelines. Among the Scientific Advisory Committee members was poultry specialist Donald Bell, an early advocate for implementing various supply-reducing measures into the poultry industry.[13]

         Gene Gregory, the Senior Vice President of the UEP, solicited Mr. Bell for a "12-month Supply Plan to Meet the Market Needs That Provides a Reasonable Return on Investment" and welcomed "any additional ideas." DAPs' Form. Bind., Letter from Gene Gregory to Don Bell and Lee Schrader (July 1, 1999) (Tab 12). In response, Mr. Bell wrote that "[c]orrection in the size of the nation's layer flock can be attained by one of several ways:

1. A sensible industry-wide growth policy must be adhered to. This requires industry-wide commitment to a "reasonable" growth rate at no more than 3 million hens per year.
2. Extra birds must be removed from the nation's flock permanently. An early molt is only a stop-gap way of correcting the problem. ...
3. A 2-3% reduction in chick purchases would help to lower the future flock size, but the ...

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