United States District Court, E.D. Pennsylvania
IN RE PROCESSED EGG PRODUCTS ANTITRUST LITIGATION THIS DOCUMENT APPLIES TO: ALL DIRECT ACTION PLAINTIFF CASES
E.K. PRATTER UNITED STATES DISTRICT JUDGE
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
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.
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.
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
Short-term Supply-Reduction Measures
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,
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
The Scheme to Reduce the Supply of Eggs Under the Pretext of
a Certified Animal Welfare Program
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.
Egg Exports at a Loss
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.
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." 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).
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. See Domestic Drywall,
163 F.Supp.3d at 203.
Defining Co-Conspirator "Statements"
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).
Scope of "Statement"
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.
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.
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
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.
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.
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.").
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)
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. 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").
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.
decided on a context-driven sentence-by-sentence statement
determination, the Court turns to the traditional
Whether a Conspiracy Existed
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
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
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).
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). 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).
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. 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").
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 at the evidentiary hearing held on
September 27, 2019 that they believe establishes the
formation of the conspiracy. 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.
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.
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.
Short-Term Supply Reduction Measures
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). In May 1999, the UEP Board approved both
of the short-term supply-reducing measures recommended by the
Marketing Committee. After receiving the Board's
approval, UEP continued to heavily encourage its members to
participate in additional molting and slaughtering
initiatives. 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.").
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.
Certified Animal Welfare Program
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. 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
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 ...