America’s 1.18 million practicing attorneys could realize a new lode of prospecting opportunity with implementation of the proposed Grain Inspection, Packers & Stockyards Administration (GIPSA) rule on livestock marketing. Among the folks making that estimation is no less than the head of GIPSA itself, J. Dudley Butler.

It’s just a few sentences captured in an audio clip of remarks he made before the Organization for Competitive Markets about a year ago. But, Butler, the former plaintiff’s attorney, made the remarks not as a representative of his law firm but as head of GIPSA.

“When you have a term like ‘unfair, unreasonable or undue prejudice,’ that’s a plaintiff lawyer’s dream,” Butler says in the clip. “We can get in front of a jury with that. We won’t get thrown out on what we call summary judgment because that’s a jury question.”

A big area of concern with the proposed rule has been fears over the ease with which antitrust lawsuits could seemingly be brought against packers for breach of contract, cases that under current rules would be handled in state courts. Some fear that the threat of pervasive litigation will spell the end of value-based marketing and thrust the U.S. beef industry back to a commodity market.

Among those who see such potential is Allie Devine, vice president and general counsel for the Kansas Livestock Association.

“In this proposed regulation, there is a lessening of the standards of what it takes to make a case, either by the government or by civil suits. The lessening of the standards is what opens the doors to trial lawyers,” Devine says.

“This is a pervasive invasion of government into private contractual relations in a way that we have not seen in this industry or in other sectors of the economy,” she says.

It doesn’t take much contemplation to foresee the potential – beyond well-meaning producers – for more of the unbridled litigation that has become such a popular tool of anti-meat groups.

Consider that the Humane Society of the U.S., for instance, with its annual budget of $130 million/year maintains a staff of more than a dozen lawyers, as well as more than 1,000 pro bono attorneys. Their self-professed job is to conduct “precedent-setting legal campaigns” on behalf of animals in state and federal courts and serve as the primary line of defense against legal attacks on legislative measures they don’t agree with.

But the potential reach of the law goes much further than just livestock production, Devine says.
“This rule shifts agriculture over into a new realm of regulatory framework that isn’t matched in any other industry. If this becomes the precedent for antitrust law, we have some serious concerns about how other industries in the U.S. will function,” she says.