Rare dismissal of criminal antitrust charge against chicken supply executive

On October 17, 2022, Davis Polk secured the dismissal of criminal charges brought by the Department of Justice, Antitrust Division, against our client, Jason McGuire, an executive in the chicken supply industry, for allegedly participating in a wide-ranging conspiracy to fix prices and rig bids for broiler chicken products. This dismissal followed an October 14 decision by the presiding judge, Hon. Daniel D. Domenico of the U.S. District Court for the District of Colorado, which effectively rendered much of the government’s evidence inadmissible based on a finding that the government had not sufficiently proved the existence of the charged conspiracy.

The Court’s decision concerned the admissibility of 294 statements (including emails, texts, cooperator testimony and other evidence) under the hearsay exception for purported co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E). In the Fifth and Tenth Circuits, to admit such statements at trial, the government must prove the existence of a conspiracy by a preponderance of the evidence in a pre-trial James hearing. A James hearing is often a fait accompli in favor of the government. A complete victory after such a hearing is nearly unprecedented.

After conducting a day-long James hearing and considering Davis Polk’s voluminous pre- and post-hearing briefing, Judge Domenico found that the government had not proved the existence of the charged conspiracy. Accordingly, Judge Domenico ruled that none of the emails, texts and statements offered by the government under the hearsay exception for co-conspirator statements was admissible at trial. In his written opinion, Judge Domenico characterized the government’s evidence as “too attenuated” or “cryptic” to support an inference of a conspiracy. Judge Domenico also credited the defendants’ evidence that “market conditions, as opposed to collusion,” adequately explained price increases in the broiler chicken industry during the relevant time period. The government’s motion to dismiss the case acknowledged this ruling as its catalyst.

The Davis Polk team included partners D. Jarrett Arp, Tatiana R. Martins, Greg D. Andres, Paul J. Nathanson and Uzo Asonye, counsel Matthew Cormack, associates Isaac M. Gelbfish, Matthew Stratis Vasilakos, Dan Peck, Kate Mathews, Kyle Victor, Leigh M. Terry Brinkerhoff, Kevin E. Sette, Laixin Li, Kelsey R. Roth, Benjamin M. Miller and Meghan Patzer. Members of the Davis Polk team are based in the New York and Washington DC offices.