United States et al. v. Dairy Farmers of America et al.; Response to Public Comments on the Proposed Final Judgment, 8010-8017 [07-709]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 72, Number 35 (Thursday, February 22, 2007)]
[Notices]
[Pages 8010-8017]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-709]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States et al. v. Dairy Farmers of America et al.; Response 
to Public Comments on the Proposed Final Judgment

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States hereby publishes the public comments 
received on the proposed Final Judgment in United States of America et 
al. v. Dairy Farmers of America, Inc. et al., Civil Action No. 6:03-
206-KSF and the responses to such public comments. On April 24, 2003, 
the United States and Commonwealth of Kentucky filed a Complaint 
alleging that the acquisition by Dairy Farmers of America (``DFA'') of 
an ownership interest in Southern Belle Dairy Co., LLC (``Southern 
Belle''), violated Section 7 of the Clayton Act, 15 U.S.C. 18. An 
Amended Complaint was filed on May 6, 2004. The proposed Final 
Judgment, filed on October 2, 2006, requires DFA to divest its interest 
in Southern Belle and use its best efforts to cause its partner, the 
Allen Family Limited Partnership, to divest its interest in Southern 
Belle. Public comment was invited within the statutory 60-day comment 
period. Copies of the Amended Complaint, proposed Final Judgment, 
Competitive Impact Statement, public comments and the United States' 
responses to such comments and other papers are currently available for 
inspection in Room 200 of the Antitrust Division, Department of 
Justice, 325 Seventh Street, NW., Washington, DC 20530, telephone: 
(202) 514-2481 and the Office of the Clerk of the United States 
District Court for the Eastern District of Kentucky, 310 South Main 
Street, London, Kentucky 40745.
    Copies of any of these materials may be obtained upon request and 
payment of a copying fee.

J. Robert Kramer II,
Director of Operations.
United States District Court Eastern District of Kentucky Southern 
Division at London

[Civil Action No.: 6:03-206-KSF]

    Pursuant to the requirements of the Antitrust Procedures and 
Penalties Act (``APPA'' or ``Tunney Act''), 15 U.S.C. 16(b)-(h), the 
United States hereby files comments received from members of the public 
concerning the proposed Final Judgment in this civil antitrust suit and 
the responses by the United States to these comments. The United States 
and Commonwealth of Kentucky will move the Court for entry of the 
proposed Final Judgment after the public comments and this Response 
have been published in the Federal Register, pursuant to 15 U.S.C. 
16(d).

I. Background

    The United States and Commonwealth of Kentucky (the ``government'') 
filed a civil antitrust Complaint under Section 15 of the Clayton Act, 
15 U.S.C. 25, on April 24, 2003, alleging that the acquisition by Dairy 
Farmers of America, Inc. (``DFA'') of its interest in Southern Belle 
Dairy Co., LLC (``Southern Belle'') violated Section 7 of the Clayton 
Act, 15 U.S.C. 18. An Amended Complaint was filed on May 6, 2004.
    The Amended Complaint alleged that the acquisition will likely 
substantially

[[Page 8011]]

lessen competition for the sale of milk to schools in one hundred 
school districts in eastern Kentucky and Tennessee. On August 31, 2004, 
the District Court granted summary judgment to DFA and Southern Belle. 
The government appealed, and on October 25, 2005, the Court of Appeals 
reversed the grant of summary judgment as to DFA and remanded the case 
for trial. The Court of Appeals affirmed the dismissal of Southern 
Belle, leaving DFA as the only defendant. See United States v. Dairy 
Farmers of America, Inc., 426 F.3d 850 (6th Cir. 2005).
    On October 2, 2006, the government filed a proposed Final Judgment 
that requires DFA to divest its interest in Southern Belle and use its 
best efforts to require its partner, the Allen Family Limited 
Partnership (``AFLP''), to divest its interest in Southern Belle. DFA 
proposed divesting its interest and AFLP's interest in Southern Belle 
to Prairie Farms Dairy, Inc. (``Prairie Farms''), and the government 
approved Prairie Farms as a suitable buyer of DFA's and AFLP's 
interests in Southern Belle.
    The government and DFA have stipulated that the proposed Final 
Judgment may be entered after compliance with the Tunney Act. Entry of 
the proposed Final Judgment would terminate this action, except that 
the Court would retain jurisdiction to construe, modify, or enforce the 
provisions of the proposed Final Judgment and to punish violations 
thereof.\1\
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    \1\ Prairie Farms and DFA executed a purchase agreement for 
Southern Belle's assets on October 2, 2006. In keeping with the 
United States' standard practice, the proposed Final Judgment does 
not prohibit the completion of the divestiture before it is entered. 
See ABA Section of Antitrust Law, Antitrust Law Developments 387 
(5th ed. 2002) (noting that ``[t]he Federal Trade Commission (as 
well as the Department of Justice) generally will permit the 
underlying transaction to close during the notice and comment 
period''). Such a prohibition could interfere with many time-
sensitive deals, prevent or delay the realization of substantial 
efficiencies, and delay effective relief.
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II. Standard of Judicial Review

    Upon the publication of the public comments and this Response, the 
United States will have fully complied with the Tunney Act and will 
move for entry of the proposed Final Judgment as being ``in the public 
interest.'' 15 U.S.C. 16(e), as amended. In making the ``public 
interest'' determination, the Court should apply a deferential standard 
and should withhold its approval only under very limited conditions. 
See, e.g., Mass. Sch. of Law at Andover, Inc. v. United States, 118 
F.3d 776, 783 (D.C. Cir. 1997). Specifically, the Court should review 
the proposed Final Judgment in light of the violations charged in the 
complaint. Id. (quoting United States v. Microsoft Corp., 56 F.3d 1448, 
1462 (D.C. Cir. 1995) (``Microsoft'')).
    Before entering the proposed Final Judgment, the Court is to 
determine whether the Judgment ``is in the public interest.'' 15 U.S.C. 
16(e). The Tunney Act states that, in making that determination, the 
Court may consider:
    (A) The competitive impact of such judgment, including termination 
of alleged violations, provisions for enforcement and modification, 
duration of relief sought, anticipated effects of alternative remedies 
actually considered, whether its terms are ambiguous, and any other 
competitive considerations bearing upon the adequacy of such judgment 
that the court deems necessary to a determination of whether the 
consent judgment is in the public interest; and
    (B) The impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and individuals 
alleging specific injury from the violations set forth in the complaint 
including consideration of the public benefit, if any, to be derived 
from a determination of the issues at trial.

15 U.S.C. 16(e)(1).
    The United States described the courts' application of the Tunney 
Act public interest standard in the Competitive Impact Statement filed 
with the Court on October 2, 2006.

III. Summary of Public Comments and Responses

    During the sixty-day comment period, the United States received 
four comments from dairy farmers in Kentucky, one comment from a former 
Southern Belle employee, one comment on behalf of a cooperative of 
dairy farmers in Kentucky, and one anonymous comment. These comments 
are attached in the accompanying Appendix. After reviewing the 
comments, the United States continues to believe that the proposed 
Final Judgment is in the public interest.

A. Southeast Graded Milk Producers Association

    Southeast Graded Milk Producers Association (``SEGMPA''), a 
cooperative of dairy farmers in Kentucky, submitted a comment which 
both thanked the government for challenging DFA's acquisition of its 
interest in Southern Belle, and expressed concerns about DFA's raw milk 
procurement practices. SEGMPA has been a long-time supplier of raw milk 
to Southern Belle. When SEGMPA tried to re-negotiate its supply 
contract with Southern Belle in 2006, Southern Belle decided not to 
renew the contract. SEGMPA then negotiated an agreement to supply raw 
milk to the Flav-O-Rich dairy in London, Kentucky. Flav-O-Rich is owned 
by National Dairy Holdings (``NDH''), which itself is 50%-owned by DFA. 
Shortly after the contract negotiations with Flav-O-Rich concluded, 
Flav-O-Rich told SEGMPA that it could not go through with the supply 
contract, since DFA is the raw milk supplier to NDH's dairies, 
including Flav-O-Rich. According to SEGMPA, this left it with no outlet 
for its members' raw milk other than Southern Belle. SEGMPA went back 
to Southern Belle, and although it was able to negotiate a new raw milk 
supply contract, it was on much less favorable terms than it had 
previously negotiated. SEGMPA is concerned that in the future it will 
not be allowed to compete with DFA for raw milk supply contracts at 
Southern Belle, and urges that the government ensure that there is 
competition for raw milk as well as for school milk.
    SEGMPA acknowledges in its comment that these raw milk concerns are 
different from the harm to competition for school milk alleged in the 
Amended Complaint and addressed by the proposed Final Judgment. While 
the government brought this case to protect competition in the market 
for the sale of milk served by schools in Kentucky and Tennessee, 
SEGMPA's concerns are about a different market, viz. the sale of raw 
milk to dairy processors like Southern Belle and Flav-O-Rich. Under the 
Tunney Act, however, a court's public interest determination is limited 
to whether the government's proposed Final Judgment remedies the 
violations alleged in its Amended Complaint. A review of the market for 
raw milk, which was not at issue in this litigation, would be 
inappropriate because it would construct a ``hypothetical case and then 
evaluate the decree against that case,'' something the Tunney Act does 
not authorize. Microsoft, 56 F.3d at 1459.

B. Carl Phelps

    A former Southern Belle employee, Carl Phelps, submitted a comment 
expressing concerns about the effect of the divestiture on the market 
for raw milk in Kentucky. As a Southern Belle employee, Mr. Phelps was 
the plant's contact with the dairy farmers that supplied Southern Belle 
with raw milk and the haulers that transported the milk from the farms 
to the Southern Belle plant in Somerset, Kentucky. When SEGMPA 
negotiated a milk

[[Page 8012]]

supply contract with Flav-O-Rich as a result of Southern Belle's 
decision not to renew its raw milk supply contract with SEGMPA, Mr. 
Phelps resigned from Southern Belle and joined Flav-O-Rich as a liaison 
between the plant and SEGMPA's members. Shortly after the contract 
negotiations with Flav-O-Rich concluded, Mr. Phelps was told that the 
contract between Flav-O-Rich and SEGMPA would not be finalized.
    Mr. Phelps's first concern is that, in the future, Prairie Farms 
will not contract with SEGMPA for Southern Belle's raw milk, but 
instead choose to supply the plant with raw milk from its own members 
or DFA. This would effectively leave SEGMPA no customers for its 
members' raw milk, forcing SEGMPA to fold and its members to either 
join DFA or Prairie Farms. Mr. Phelps is concerned about these 
alternatives because he understands that SEGMPA's members have 
approached Prairie Fanns about joining that co-op, but have been turned 
down. If SEGMPA were to shut down, Mr. Phelps contends that DFA would 
be the only outlet for SEGMPA's farmer members and would be able to 
reduce prices paid to farmers because it would have no competition.
    This concern about competition in the market for raw milk is not 
related to competition in the markets for school milk at issue in this 
case. Mr. Phelps, like SEGMPA and other commentors expressing concerns 
about competition in the market for the sale of raw milk, does not 
argue that the proposed Final Judgment is not ``within the reaches of 
public interest.'' Nor do they contest that because of their concerns 
about the market for raw milk, the divestitures required by the 
proposed Final Judgment will not remedy the competitive harm alleged in 
the Amended Complaint. Rather, Mr. Phelps and these other commentators 
raise competitive issues in markets separate and distinct from those 
relevant to this matter.
    Mr. Phelps's second concern is that, despite the divestiture of 
Southern Belle to Prairie Farms, DFA still may be able to influence 
Southern Belle's behavior in the school milk markets at issue because 
DFA and Prairie Farms are joint venture partners in the Roberts Dairy, 
Hiland Dairy, and Turner Dairy. He suggests that a third party monitor 
Prairie Farms to ensure that its operation of Southern Belle is totally 
independent of DFA, and that Southern Belle will compete with dairies 
partially owned by DFA, such as Flav-O-Rich.
    Mr. Phelps's concern that joint ventures between Prairie Farms and 
DFA will affect Prairie Farms' operation of Southern Belle was 
considered by the government when evaluating Prairie Farms as a 
potential purchaser of Southern Belle. The government believes that the 
joint ventures will not undermine the proposed relief for several 
reasons.
    First, these joint ventures involve dairies located in completely 
different geographic markets than those in which Southern Belle 
competes for school milk contracts. The Roberts and Hiland dairies, 
both 50%-owned by Prairie Farms and DFA, are located in Arkansas, Iowa, 
Kansas, Missouri, Nebraska, and Oklahoma. In addition, Prairie Farms 
recently acquired a partial ownership interest in the Turner dairy, 
which has plants in Arkansas, Kentucky, and Tennessee, and is 20%-owned 
by DFA. Turner's Kentucky plant is in Fulton, on the far western edge 
of the state, and does not compete against Southern Belle for school 
milk contracts.
    Second, because these joint ventures involve different markets, 
Prairie Farms will not have the same incentive to lessen competition 
between Southern Belle and Flav-O-Rich (or any other DFA-affiliated 
dairy) that led to the filing of this case. The government challenged 
DFA's acquisition of a 50% ownership interest in Southern Belle because 
DFA's partial ownership of both Southern Belle and Flav-O-Rich created 
a substantial incentive to reduce competition between those two 
dairies. The acquisition of Southern Belle by Prairie Farms has 
eliminated that common ownership between those two dairies. In the 
future, Prairie Farms will have a strong incentive to compete to obtain 
school milk contracts for its Southern Belle dairy at the expense of 
Flav-O-Rich. The dairies jointly owned by Prairie Farms and DFA do not 
compete for school milk contracts with Southern Belle, so Prairie Farms 
will not be able to reduce competition for school milk between Southern 
Belle and any of those dairies.
    Third, the government evaluated and approved Prairie Farms as a 
buyer of Southern Belle because it has a demonstrated ability to 
operate dairy processors and compete for school milk contracts 
independent of any influence or control by DFA. Prairie Farms, as an 
agricultural cooperative of dairy farmers, has an economic incentive to 
supply its processing plants with raw milk from its members, so it is 
not dependent on DFA for its raw milk supply to its wholly owned 
processing plants. Its dairies compete for school milk contracts, and 
there is no evidence that it competes less effectively in geographic 
markets where it competes against processing plants partially owned by 
DFA.
    Finally, the proposed Final Judgment protects against DFA's ability 
to exert control over Southern Belle. Section XI of the proposed Final 
Judgment prohibits DFA from reacquiring, directly or indirectly, any 
ownership interest in Southern Belle. As a result, if Prairie Farms 
transferred the assets of Southern Belle to one of its joint ventures 
with DFA, DFA would be in violation of the proposed Final Judgment. The 
government reviewed the terms of the proposed sale to Prairie Farms, 
and is confident that DFA will not retain any control over Southern 
Belle. If the government learned of any agreement prohibited by the 
proposed Final Judgment, pursuant to Section X it could inspect DFA's 
records and request reports from DFA regarding its compliance. 
Similarly, this Court retains jurisdiction under Section XII of the 
proposed Final Judgment to enforce the proposed Final Judgment and 
punish any violations. For these reasons, the government believes that 
Mr. Phelps's suggested modification to the proposed Final Judgment is 
not warranted.

C. William R. Sewell and Bill L. Guffey

    William R. Sewell and Bill Guffey, two dairy farmers from Kentucky, 
submitted comments raising the concern that the competition for raw 
milk in Kentucky could be lessened if SEGMPA is not able to supply 
Southern Belle with raw milk. As is the case with Carl Phelps's 
concerns about the market for raw milk, the concern expressed by 
Messrs. Sewell and Guffey does not address a violation alleged in the 
Amended Complaint, nor does their concern question whether the proposed 
Final Judgment remedies the harm alleged in the Amended Complaint.

D. Bradley J. Marcum

    Bradley J. Marcum, a dairy farmer from Alpha, Kentucky, submitted a 
comment expressing concerns about the raw milk purchasing practices for 
Southern Belle after its divestiture to Prairie Farms. He notes that 
Prairie Farms has retained many of Southern Belle's key employees, and 
suggests that, therefore, DFA still influences Southern Belle's 
decisions.
    To the extent that Mr. Marcum's comment suggests that the adequacy 
of the divestiture of Southern Belle to Prairie Farms as a remedy to 
the Amended Complaint's allegations is undermined by Prairie Farms' 
retention of Southern Belle's employees, the government disagrees. 
Permitting Southern Belle's new owner to retain the plant's existing 
employees allows it

[[Page 8013]]

to maintain the plant's customer accounts and keep its operations 
running smoothly with minimal interruption. The continued efficient 
operation of the Southern Belle dairy during the transition to a new 
owner was the reason why Section IV.F of the proposed Final Judgment 
was included. This section expressly allows a purchaser of Southern 
Belle to retain the plant's employees. Section IV.F also requires DFA 
to ``not interfere with any negotiations by the Acquirer to employ any 
employee whose primary responsibility is the production, sale, 
marketing or distribution of products from the Southern Belle Dairy.'' 
By retaining employees who have been responsible for Southern Belle's 
operations, marketing, and sales, but who no longer have any connection 
to DFA, Southern Belle is better able to compete against Flav-O-Rich 
and other processing plants for school milk and other accounts.

E. Ronald Patton

    Ronald Patton, a dairy farmer and past-president of SEGMPA, 
submitted a comment expressing concerns that other parties were not 
allowed to purchase DFA's interest in Southern Belle, including a local 
group of potential investors who wished to operate the Southern Belle 
plant independent of DFA or any other processing company. Mr. Patton is 
concerned that Prairie Farms' purchase from DFA of Southern Belle and 
its 2006 purchase from DFA of Turner Dairies indicates that other 
parties were foreclosed from bidding on Southern Belle.
    As described in Section IV of the proposed Final Judgment, DFA was 
required to inform ``any potentially qualified purchaser making inquiry 
regarding a possible purchase of the [Southern Belle dairy] that such 
assets are being offered for sale,'' and provide information about 
Southern Belle to all potential purchasers. The government, pursuant to 
Section IX.B-E of the proposed Final Judgment, received periodic 
updates on the inquiries DFA received from parties interested in 
purchasing Southern Belle, and the status of DFA's negotiations with 
those interested parties. Based on these updates, the government is 
aware that DFA received multiple offers to buy Southern Belle.
    The proposed Final Judgment does not require DFA to accept a 
particular offer, only that any acquirer of Southern Belle meet the 
conditions set out in Section IV.H(1)-(2). These provisions require 
Southern Belle to be sold to a purchaser who ``has the intent and 
capability (including the necessary managerial, operational, technical 
and financial capability) of competing effectively in school and fluid 
milk markets in Kentucky and Tennessee, * * * [and] that none of the 
terms of any agreement between [the purchaser] and DFA give DFA the 
ability to act unreasonably to raise the [purchaser's] costs, to lower 
the [purchaser's] efficiency, or otherwise to interfere with the 
ability of the [purchaser] to compete effectively.'' The government 
reviewed information from both DFA and Prairie Farms regarding the 
purchase of Southern Belle and the presence of Prairie Farms in school 
milk markets in Kentucky and Tennessee. As noted earlier, Prairie Farms 
owns and operates multiple dairy processing plants elsewhere in the 
country, and has the knowledge and expertise to operate the Southern 
Belle Dairy efficiently, including the dairy's school milk business. It 
also has the capacity to supply its dairies with raw milk independent 
of DFA, whether through its own members or through other suppliers such 
as SEGMPA. The purchase agreement between Prairie Farms and DFA has no 
terms or conditions that would adversely affect the costs, 
efficiencies, or ability of Southern Belle to compete effectively for 
school and fluid milk sales. Based on this information, the government 
approved Prairie Farms as a buyer of Southern Belle because it met the 
requirements of Section IV.H(1)-(2) of the proposed Final Judgment.

F. Anonymous

    The United States received an anonymous comment expressing the 
opinion that DFA agreed to sell Southern Belle to Prairie Farms because 
the sale would somehow allow DFA to eliminate SEGMPA as a competitor 
for raw milk contracts, and that Prairie Farms would refund the 
purchase price of the Southern Belle dairy back to DFA through some 
type of rebate mechanism. This commentor provides a lengthy history of 
Southern Belle, and suggests that DFA divested Southern Belle to 
Prairie Farms because it negotiated a side deal with Prairie Farms to 
have the new owner take steps to force SEGMPA out of business. The 
commentor, however, did not provide any evidence of such an agreement.
    This comment's concerns about the market for raw milk, like other 
comments discussed earlier, are not germane to the evaluation of the 
conduct alleged in the Amended Complaint and addressed by the proposed 
Final Judgment. The government has no evidence of a side agreement 
between Prairie Farms and DFA relating to the sale of Southern Belle. 
If there were credible evidence of such an agreement, the government 
could investigate any potential violations of the proposed Final 
Judgment pursuant to its inspection rights in Section X of the proposed 
Final Judgment, and if it believed any provisions of the proposed Final 
Judgment were violated, Section XII of the proposed Final Judgment 
allows this Court to fashion an appropriate remedy.

IV. Conclusion

    After careful consideration of the public comments, the United 
States concludes that entry of the proposed Final Judgment will provide 
an effective and appropriate remedy for the antitrust violations 
alleged in the Amended Complaint and is therefore in the public 
interest. Accordingly, after publication of this Response in the 
Federal Register pursuant to 15 U.S.C. Sec.  16(b) and (d), the United 
States will move this Court to enter the Final Judgment.

Dated: February 7, 2007.

Respectfully Submitted,

Jon B. Jacobs,
Ihan Kim

Attorneys, Litigation I Section, Antitrust Division, United States 
Department of Justice, City Center Building, 1401 H Street, NW., Suite 
4000, Washington, DC 20530. 202-307-0001. (f) 202-307-5802. 
ihan.kim@usdoj.gov.

Certificate of Service

    This certifies that I caused a true and correct copy of the 
foregoing to be served on February 7, 2007, via electronic mail and 
first-class mail on the following:

David A. Owen, Esq., Greenebaum Doll & McDonald, PLLC, 300 West Vine 
Street--Suite 1100, Lexington, KY 40507. Telephone: 859-231-9500. 
Counsel for Dairy Farmers of America, Inc.
W. Todd Miller, Esq., Baker & Miller, PLLC, 2401 Pennsylvania Avenue, 
NW.--Suite 300, Washington, DC 20005. Telephone: 202-663-7820. Counsel 
for Dairy Farmers of America, Inc.
R. Kenyon Meyer, Esq., Dinsmore & Shohl LLP, 1400 PNC Plaza, 500 West 
Jefferson Street, Louisville, KY 40202. Telephone: 502-540-2300. 
Counsel for Chicago Tribune Company.
Charles E. Shivel, Jr., Esq., Stoll, Keenon & Park, LLP, 300 West Vine 
Street--Suite 2100, Lexington, KY 40507. Telephone: 859-231-3000. 
Counsel for Southern Belle Dairy Co., LLC
J. Jackson Eaton, III, Esq., Gross, McGinley, LaBarre & Eaton, LLP, PO 
Box 4060--33 South Seventh Street,

[[Page 8014]]

Allentown, PA 18105. Telephone: 610-820-5450. Counsel for Southern 
Belle Dairy Co., LLC.
Maryellen B. Mynear, Esq., Assistant Attorney General, Consumer 
Protection Division, Office of the Kentucky Attorney General, 1024 
Capital Center Drive, Suite 200. Telephone: 502-696-5389. Counsel for 
Commonwealth of Kentucky.

Ihan Kim

Appendix: Public Comments on the Proposed Final Judgment

Comment Submitted by Southeast Graded Milk Producers Association

Southeastern Graded Milk Producers Association

    P. O. Box 25, Somerset, Kentucky 42502
    Phone (606) 679-3504, Fax (606) 678-4696
    January 9, 2007

Hon. Mark J. Botti
Chief, Litigation I Section
Antitrust Division
U.S. Department of Justice
1401 H St. NW., Suite 4000
Washington, DC 20530

IN RE: United States of America, et al., vs. Dairy Farmers of 
America, Inc., U.S. District Court, Eastern District of Kentucky, 
London Division, Civil Action No.: 6:03-206-KSF

Dear Mr. Botti:

    The Association wishes to express its thanks and appreciation to 
the Antitrust Division for its pursuit of the foregoing matter. 
Without that, this small association of milk producers would have 
been swallowed up by Dairy Farmers of America.
    As I am sure you are aware, there is much more to be done to 
reign in the antitrust activities of Dairy Farmers of America, and 
we hope you will pursue that just as you did the above-styled 
action. About a year ago, when DFA owned 50% of the National Dairy 
Holdings plant in London, Kentucky, and 50% of Southern Belle Dairy 
in Somerset, Kentucky, we were able to work out a contract to supply 
milk to the NDH plant at London, Kentucky, whereby our producers 
received twenty (.20[cent]) cents per hundredweight more for their 
milk. DFA killed the contract. We then had no choice except Southern 
Belle Dairy and since there was no competition for our milk our 
producers lost the twenty (.20[cent]) cents per hundredweight. Since 
DFA still owns 50% of the London plant, we still have no competition 
for our milk.
    In other words, the foregoing lawsuit provides for competition 
for school milk, but does not address the problem of competition in 
the procurement of raw milk. That competition is stifled by the 
exclusive contracts that DFA has to supply milk to numerous plants. 
It is just such a contract that shut our association out of the NDA 
plant at London, Kentucky, which reduced our choice of plants to 
one. Each independent producer or association needs at least two (2) 
totally independent plants to which he could market his milk. Only 
then can the antitrust activities be controlled.
    Thanks again for what was done. Keep up the good work.

Very truly yours,

JOHN T. MANDT,

Secretary.

JTM: jlm

Comment Submitted by Carl Phelps

To: Hon. Mark J. Botti
Chief, Litigation I Section
Antitrust Division, U.S. Department of Justice
1401 H St. NW, Suite 4000
Washington, DC 20530

RE: United States of America, et al. vs. Dairy Farmers of America, 
Inc., U.S. District Court, Eastern District of Kentucky, London 
Division, Civil Action No.: 6:03-206-KSF

Dear Mr. Botti,

    I want to thank the DOJ's Antitrust Division for the interest 
you have shown regarding the ownership of Southern Belle Dairy. This 
is a step in the right direction but there is still more to do to 
ensure that the Southeastern Graded Milk Producers survive. I think 
a third party should be involved to make certain that Prairie Farms 
will not have contact with DFA because they do have joint ventures 
with them.
    I spent 30 years working at Southern Belle as a fieldman. I came 
to know and care deeply for the producers and always tried to make 
sure whatever I did was in their best interest. When Southern Belle 
was being run by the Shearer family, I didn't have a problem with 
this goal. When Southern Belle was purchased by DFA and Bob Allen, 
it seemed the best interest of the producers was of little concern. 
To my disappointment, I was told that I was not to get any more 
producers. I believe this was because they didn't want Southeastern 
to survive. I believe they wanted to control all of the raw milk 
supply and to force Southeastern producers to become DFA. When it 
came time to renew their contract with Southeastern, the producer 
board was told that they had a problem renewing their contract as it 
was. I feel that what it all boiled down to was they didn't really 
want to renew their contract which would have meant they had no 
where to sell their milk to and so would have been forced to become 
DFA members. Southeastern tried to find another place to market 
their milk. Southeastern negotiated with Charles Hyatt at Flav-O-
Rich Dairy in London, Kentucky about supplying milk to that plant. 
An agreement was made with National Dairy Holdings which owns Flav-
O-Rich to buy Southeastern's milk.
    Then, I was hired by Charles Hyatt as a fieldman for Flav-O-Rich 
Dairy to continue taking on producers for Southeastern and was told 
that I could take on all I could find to supply milk for the plant 
in London and a plant in Madisonville, Kentucky. I resigned from 
Southern Belle Dairy and was happy to do so, thinking the producers 
had a good deal and would be taken care of. Guess what? Flav-O-Rich 
Dairy is 50 percent owned by DFA. About a week after being hired, I 
was told the deal was off, that DFA wasn't going to furnish raw milk 
to the rest of their National Dairy Holdings plants if they let the 
Flav-O-Rich plant have Southeastern as their own raw milk supply. 
DFA got their way again. The producers wound up having to sign a 
contract that many were not happy with in order to have a place to 
sell their milk.
    After learning that Southern Belle had been purchased by Prairie 
Farms, I had high hopes for the producers and the milk haulers, as 
many have kept in contact with me. Producers and milk haulers have 
called me to tell me of their fear about their future with Southern 
Belle. Some employees were told their jobs would be moved to 
Illinois; this made them very nervous about losing their jobs. Some 
employees were even told not to associate with certain people such 
as myself, making them feel this could put their job in danger.
    The management at Southern Belle has known for a long time that 
I know the truth about their connection with DFA. Management seems 
to be troubled that I would try to help the producers. Since taking 
over Southern Belle on 10/01/06, producers and milk haulers have 
contacted Gary Lee, Vice President of Prairie Farms, about becoming 
Prairie Farms producers and they were turned down. Haulers also have 
talked to Gary Lee about taking on new members. Producers and 
haulers have been puzzled that they were not contacted about their 
future with the new owners, making them feel that they are of little 
concern.
    I wonder if there might have been a deal made under the table 
between DFA and Prairie Farms when Southern Belle was sold to them. 
Perhaps, Southern Belle was a gift to Prairie Farms. Raw milk 
credits could be part of the deal. If this deal is approved by the 
DOJ, I think DFA will have it made and the SEGMPA will be put in a 
situation that will eventually destroy them. After all, if they were 
gone, DFA would be the sole supplier to the Southern Belle plant 
owned by Prairie Farms with joint ventures with DFA and the Flav-O-
Rich plant in London, Kentucky (50 percent owned by DFA and 50 
percent by National Dairy Holdings). I think DFA would probably give 
up something now and if the DOJ approves this, it won't be long 
before another plan of action will start against the Southeastern 
Graded Milk Producer Association. Also, with Prairie Farms owning 
Southern Belle and having joint ventures with DFA, if the Federal 
Order System is voted out or changed in any way, SEGMPA producers 
would be better off selling their milk to Southern Belle with an 
owner who is not connected to DFA because there will be no 
competition and DFA can potentially pay producers whatever they want 
to.
    I hope that you will really think about what your decision will 
mean to the people who make up the Southeastern Graded Milk 
Producers Association. In my opinion, the only right way to resolve 
this is to make sure that whoever ends up with Southern Belle has no 
connection to DFA.

Thank you,

Carl Phelps,

6790 Hwy 1643, Somerset, KY 42501, 606-382-5836.

    If you have any questions, please feel free to contact me.

[[Page 8015]]

Comment Submitted by William R. Sewell

January 15, 2007

To: Hon. Mark J. Botti
Chief, Litigation I Section
Antitrust Division, U.S. Department of Justice
1401 H St. NW., Suite 4000
Washington, DC 20530

RE: United States of America, et al. vs. Dairy Farmers of America, 
Inc., U.S. District Court, Eastern District of Kentucky, London 
Division, Civil Action No.: 6:03-206-KSF

Dear Mr. Botti,

    I would like to express my concern about the future operation 
and working relationship between Southern Belle Dairy and the 
Southeastern Graded Milk Producers Association.
    I am in the third generation of my family as a producer of this 
operation. I have been told about things that have happened and 
directions that have been given that has caused me to ask the proper 
individuals to reinvestigate the situation.
    The future welfare of my family depends much on this ongoing 
operation.

William R. Sewell,

Producer #107.

Comment Submitted by Bill L. Guffey

Guffey Farms LLC
Bill Guffey
Rt 3 Box 301
Albany, KY 42602

January 12, 2007

Hon. Mark J. Botti
Chief, Litigation I Section
Antitrust Division
U.S. Department of Justice
1401 H St. NW. Suite 4000
Washington, DC 20530

IN RE: United States of America, et al Vs. Dairy Farmers of America, 
Inc., Eastern District of Kentucky, London Division, Civil Action 
No.: 6:03-206-KSF

Mr. Botti:

    I am writing the letter to express my thanks for initiating the 
Civil Action Suite against Dairy Farmers of America, Inc. by the 
Antitrust Division.
    However, the speedy sale of DFA's percent of interest in 
Southern Belle Dairy to Prairie Farms has raised concerns that this 
may only a deploy to lessen the investigation by the Antitrust 
Division. I would hope that this would not be the case and the 
Antitrust Division would continue to investigate DFA.
    Being a Dairy farmer and a former Board of Education member and 
chairman, I understand the real need for competition for raw milk 
and the need for competition on bids for school milk also. With the 
continuing investigation by the Antitrust division this is assured 
to happen.
    Thanks for reading this and your work on this matter.

Respectfully yours,

Bill L. Guffey.

Comment Submitted by Bradley J. Marcum

Bradley J. Marcum
HC-71 Box 454
Alpha, KY 42603
606.387.5193

January 10, 2007

Hon. Mark J. Botti
Chief, Litigation I Section
Antitrust Division
U.S. Department of Justice
1401 H St. NW. Suite 4000
Washington, DC 20530

IN RE: United States of America, et al vs. Dairy Farmers of America, 
Inc., U.S. District Court, Eastern District of Kentucky, London 
Division, Civil Action No.: 6:03-206-KSF

Dear Mr. Botti:

    I personally would like to express my gratitude and appreciation 
to the Antitrust Division for its incomparable pursuit of the 
abovementioned matter. The Antitrust Division has been an asset to 
dairy owners, such as me.
    Although the action of the Antitrust Division was beneficial in 
alleviating symptomatic problems that were occurring, the 
predominant problem remains. Dairy Farmers of America, Inc. still 
have an affluent influence upon decision making concerning the new 
plant of Prairie Farms, formally known as Southern Belle Dairy. 
Recently, it has been rumored that Prairie Farms have been 
manipulating individual producer pay price on raw milk. Some 
producers are receiving more than the contract allocated amount for 
raw milk; while others only receive a percentage of what the other 
producers are paid.
    To the naked eye, it is difficult to understand why Prairie 
Farms would allow such a discrepancy between individual producers, 
yet when you begin to look closer, the picture becomes clear. 
Although the Dairy Farmers of America, Inc. were ordered to recede 
from the area and Southern Belle Dairy, many associates and ``key'' 
employees remain the same. To put it frankly, names on uniforms have 
changed to Prairie Farms, yet policies and business remain the same.
    Thanks again for what was done. Keep up the good work.

Very truly yours,
Bradley J. Marcum.

Comment Submitted by Ronald Patton

5049 Hwy 490
East Bernstadt, KY 40729
January 12, 2007

Hon. Mark J. Botti,
Chief, Litigation I Section
Antitrust Division, U.S. Department of Justice
1401 H St., NW., Suite 4000
Washington, DC 20530

IN RE: United States of America, et al. vs. Dairy Farmers of 
America, Inc., U.S. District Court, Eastern District of Kentucky, 
London Division, Civil Action No.: 6:03-206-KSF

Dear Mr. Botti,

    I wish to express my gratitude to the Antitrust Division for 
their efforts in pursuing the above mentioned matter. Even though 
the sale of Southern Belle Dairy to Prairie Farms may appear to 
resolve the competition for school milk bids, several issues remain.
    My concern is that Dairy Farmers of America and Prairie Farms 
have made two transactions within the past year, The DFA sales of 
Turner Dairies and Southern Belle. Turner Dairies also has a milk 
processing plant in Kentucky. DFA's hasty sale of Southern Belle to 
Prairie Farms raises concerns that other interested parties were not 
allowed to make an offer for this plant. I am knowledgeable of at 
least one offer that was not acted upon by DFA. The offer was from a 
local group of business officials who desired to see the plant 
operate independently of DFA and its associated partners. The 
independent group would have assured competition for bids for school 
milk and retail sales, as well as ensuring a market through which 
local farmers could sell raw milk rather than to the mega-coops.
    It is imperative that the Antitrust Division investigate to 
ensure that the process under which Southern Belle Dairy was sold 
was fair and did not exclude other potential offers. It is my belief 
that the Antitrust Division has been lax regarding issues of the 
dairy industry, especially in area of raw milk procurement, which 
ultimately affects the price of school milk!
    Thank you for your attention to this matter. I look forward to 
discussing this matter further with you.

Sincerely,

Ronald Patton,

Past President, Southeastern Graded Milk Producers Assoc.

Comment Submitted by Anonymous

To: Hon. Mark J. Botti
Chief, Litigation I Section
Antitrust Division, U.S. Department of Justice
1401 H St., NW., Suite 4000
Washington, DC 20530

RE: United States of America, et al. vs. Dairy Farmers of America, 
Inc., U.S. District Court, Eastern District of Kentucky, London 
Division, Civil Action No.: 6:03-206-KSF

From: A VERY concerned citizen who would love to sign this comment 
but out of fear of being retaliated against it is probably in my 
best interest not to sign it.

Dear Mr. Botti,

    Please consider this information before giving final approval to 
the Prairie Farms purchase of Southern Belle Dairy.
    It seems to me that Dairy Farmer of America (DFA) and Robert 
Allen (Good Ole Bob) chose to sell to the entity that would serve 
their best interest * * * NOT the best interest of the public. I 
base this conclusion on the fact that at least one group that was 
interested was not even given the opportunity to submit a bid or 
make a proposal. Another interesting thing is I believe Prairie 
Farms would know exactly how that felt because I believe the very 
same thing happened to them when Suzia was forced to spin Southern 
Belle off in order to purchase Broughton Foods. Is it possible that 
Prairie Farms wasn't willing to play the DFA games at that time but 
for some reason they are willing to play those games now? The

[[Page 8016]]

game plan DFA has for the Southern Belle Dairy case, I believe, is 
to see the Southeastern Graded Milk Producers Association (SEGMPA) 
disappear. SEGMPA is a group of dairy farmers that has supplied 
Southern Belle for many years. It seems DFA has viewed SEGMPA as a 
thorn in their side for a long, long time.
    You will see in the following history how DFA had played a role 
in going to great and expensive lengths to see that Prairie Farms 
did not take ownership of Southern Belle. I never could understand 
this because DFA and Prairie Farms had some joint ventures that 
Prairie Farms managed. It is my belief, and I think it could be 
backed up with financial information from the two organizations, 
that DFA should have been very happy with those joint ventures with 
Prairie Farms. I heard in the past that there were years that had it 
not been for those joint ventures with Prairie Farms, DFA would have 
seen red ink instead of black ink on their financials. The following 
history will show how DFA went to great lengths to keep Prairie 
Farms from owning Southern Belle yet now they seem to have pushed 
Southern Belle to Prairie Farms. Why? Maybe because Leonard 
Southwell and Roger Capps (two long-time leaders of Prairie Farms) 
both passed away within the last six months. Maybe they knew better 
than to play the DFA games. I hope you find the following history 
helpful and not too boring.

Southern Belle History

    1951-1997: Family owned company, that family being the Ralph 
Shearer family. Very early on, Mr. Shearer recognized that the 
relationship between SEGMPA was vital to the company for two 
reasons.
    1.) From the get go, he felt a good, close relationship with 
these farmers and working together with them the dairy could have a 
raw supply with superior quality that would give Southern Belle an 
edge over its competition.
    2.) Then in the 60's, when the larger Co-ops became prevalent, 
he felt the relationship with SEGMPA became even more vital to the 
company. He felt these larger Co-ops would get into the processing 
side of the business, which they did. This along with all of the 
hidden charges the larger Co-ops had meant that SEGMPA would be able 
to supply the company at a fair price to the producers but also at a 
price where Southern Belle could remain competitive in the market 
place.
    1997: Because it became more and more difficult to survive as a 
stand alone dairy with Dean Foods and Suzia (a relatively young 
company but they were giving Dean Foods a run for their money to be 
the largest fluid milk processor in the country), both were buying 
every dairy they could get their hands on. Martin Shearer had 
replaced his father, Ralph, as president of Southern Belle back in 
the 80's and Ralph Shearer passed away in the early to mid 90's. It 
was at this time Martin felt the best thing for the company was to 
join other dairies in some type of merger or sell to someone who had 
other plants before Dean and Suzia owned every dairy in the country. 
This led to the Shearer family selling the dairy to Broughton Foods 
in Marietta, Ohio. Broughton had a plant in Marietta and a plant in 
Charleston, West Virginia and would later buy a milk plant in Port 
Huron, Michigan and an ice cream plant in Burton, Michigan. 
Broughton was owned by a group of investors headed up by Marshall 
Reynolds of Huntington, West Virginia. Mr. Reynolds' right hand man 
at that time was Kirby Taylor. Kirby was also a stockholder in 
Broughton Foods. Martin Shearer remained as president of the 
Southern Belle division of Broughton Foods. Martin, following in his 
father's footsteps, continued the relationship with SEGMPA. He 
believed that relationship was good for both parties.
    1998: It became known in early April that Dean and Suzia were 
both interested in acquiring Broughton Foods. The winner of that 
bidding war was Suzia. The rest of 1998 was spent by Suzia and 
Broughton getting DOJ approval
    1999: Finally, in the spring approval to the deal was given but 
with one stipulation * * * that was Suzia was given six months plus 
a possible one month extension, it was warranted, to spin Southern 
Belle off. At that time the DOJ feared there would be no competition 
for the school milk business in parts of Kentucky and Tennessee 
because Suzia already owned Flav-O-Rich, a dairy located in London, 
Kentucky, thirty miles from the Southern Belle plant. Tracy Noll, 
with Suzia, who had played a role in the purchase of Broughton 
Foods, now was playing a role in spinning Southern Belle off. It was 
my understanding that Prairie Farms was interested in purchasing 
Southern Belle but was not given an opportunity to make a proposal. 
I wonder why. DFA, an investor in Suzia at the time and partner in 
joint ventures with Prairie Farms * * * STRANGE * * * No, I believe 
Suzia and DFA knew Prairie Farms would do what was best for Prairie 
Farms and the farmers who owned them (something DFA certainly 
doesn't understand) without any consideration of what was best for 
DFA or Suzia. The spin off was completed just as time was running 
out. If time had run out, DOJ had a trustee standing by to complete 
the spin off. Maybe it would have been best had they missed the 
deadline. Nevertheless, Southern Belle was purchased by a group of 
investors, several of which were former Broughton Foods 
stockholders. The group was headed up by Marshall Reynolds. Tracy 
Noll, for Suzia, and Kirby Taylor, for the investor group, played a 
significant role in the spin off. The price tag was $6,500,000., a 
very good deal for the investors. Martin Shearer remained on as 
President of the company and there were virtually no changes.
    2001: Marshall Reynolds decided it might be the right time to 
sell the company. Leonard Southwell and Roger Capps (two long-time 
leaders of Prairie Farms) visited the Southern Belle plant in 
Somerset, Kentucky and quickly made a $13,000,000. offer for the 
company. This seemed to be a fair price for Prairie Farms and a very 
nice return for the investors. Double your money in two years * * * 
not bad. So it looked like Prairie Farmers would own Southern Belle. 
Not so fast * * * Enter Tracy Noll, no longer with Suzia, now an 
owner in the newly born company called National Dairy Holdings (NDH) 
* * * yep, the same Tracy Noll that negotiated the sale of Broughton 
Foods to Suzia for $80 plus million, then negotiated the spin off of 
Southern Belle for $6,500,000., now back on the scene and upped the 
offer for Southern Belle to $19,000,000. I'll bet that pissed 
Prairie Farmers off. You see by this time Suzia had bought Dean the 
number (1) and number (2) in size as far as fluid milk processors in 
the country. As part of the Dean-Suzia deal, DFA had to sell their 
stock in Suzia * * * not to worry * * * they could re-invest now and 
own 50 percent of the newly formed NDH, who just happened to be the 
recipient of the dairies the new Dean had to spin off to gain DOJ 
approval. How nice this was for DFA; they now had 100 percent supply 
agreements with many of the new Dean company dairies and were 50 
percent owners in the newly formed NDH and held 100 percent supply 
agreements with most of the NDA plants. Sounds like a plan is coming 
together. By the way, if you're ever in a position to sell or buy a 
dairy, get Kirby Taylor, not Tracy Noll.
    1.) Kirby negotiates to sell Broughton Foods to Suzia, 
represented by Tracy Noll for $80 plus million. Southern Belle went 
with the deal.
    2.) Tracy Noll negotiates for Suzia to spin Southern Belle off 
to Kirby Taylor representing an investor group. The price: 
$6,500,000.
    3.) Kirby Taylor negotiates for the investor group and sells 
Southern Belle to none other than Trace Noll, now representing NDH 
for $19,000,000.

Good Job Kirby!

    I will have to commend Tracy Noll for having guts and a big set 
of you know what. Because you see * * * DOJ had required Suzia/Tracy 
Noll to spin off Southern Belle because they did not want the same 
company to own both Flav-O-Rich and Southern Belle. Guess what?? 
Flav-O-Rich was one of those plants spun off by the new Dean to NDH 
and part owner Tracy Noll and now he is about to buy Southern Belle. 
He must have figured because it was under the $50,000,000 threshold, 
DOJ couldn't stop it. Tracy Noll must have got nervous because on 
Friday before the Southern Belle Board was to meet to recommend the 
sale of NDH to stockholders, Kirby Taylor said, ``The deal to NDH 
has been handed off to DFA.'' If I were Prairie Farms, I would 
really be mad now. DFA, a partner to Prairie Farms, buys Southern 
Belle right out from under them. You now see what lengths DFA will 
go to keep Prairie Farms from having Southern Belle. On Tuesday 
before the Southern Belle Board meeting, enter Jerry Boss, 
representing DFA and Bob Allen. The next day Southern Belle voted to 
recommend the sale of the company to DFA. To no one's surprise, Bob 
Allen is going to be the managing partner for DFA. He invested 
$1,000,000. of his money to become a 50 percent owner in a 
$19,000,000. company. Good ole Bob, a perfect partner in the words 
of Gary Hanman (the head man of DFA). Good ole Bob must have seen $ 
signs, why not after walking away with $17,000,000. in a very short 
period of time in a deal very similar to this one and also with DFA 
that involved Tuscan

[[Page 8017]]

and Lehigh Dairies up in the northeast. Most anyone would be a 
perfect partner for an easy and quick $17,000,000.
    After the deal was complete and DFA and good ole Bob took over 
Southern Belle, good ole Bob almost immediately began laying the 
groundwork to give the SEGMPA two wonderful options:
    1.) Become a DFA producer or
    2.) Go fly a kite.
    It was also apparent soon after Bob took over that he needed 
someone to be his yes man because Martin Shearer just did not fit 
the bill. The yes man suddenly appeared * * * why, it's Mike 
Chandler right out of the sales department. Mike is the kind of guy 
that gives all salespeople a bad name. People say he would climb a 
tree to tell a lie. However, he was lacking when it came to speech 
because he couldn't say shit with a mouthful. Now this is where DOJ 
gets a well deserved Pat On The Back. Much to the surprise of DFA 
and good ole Bob, DOJ filed a lawsuit asking DFA to divest itself of 
its ownership in Southern Belle. Good ole Bob had to put the brakes 
on his plan. After all, it wouldn't look good if he sent Martin 
Shearer home and kicked the producers right between the legs, at 
least not right now. DFA and good ole Bob put up a good fight and 
finally finagled a judge into giving them a Summary Judgment. Good 
ole Bob must have known he was going to get it, as he sent Martin 
Shearer home before the Summary Judgment was made public and he put 
his yes man in place. When the Summary Judgment in favor of DFA and 
good ole Bob was made public, celebrations broke out to honor the 
victory over DOJ. After all, who is the DOJ that would question DFA 
and the perfect partner, good ole Bob.
    Here is another well-deserved Pat-On The Back for DOJ. You 
didn't quit. DOJ filed an appeal. The judge who was tricked by DFA 
and good ole Bob had his decision overturned. This really made DFA 
and good ole Bob mad. But what could they do? * * * Give up and 
agree to sell it and quickly find someone to move it to that would 
finish the job for them. Why after going to great and expensive 
lengths to keep Prairie Farms from owning Southern Belle do they 
quickly sell it to them without even giving one group a chance to 
make a proposal? I know opinions are like assholes; every body has 
one. Here's my opinion--Whatever Prairie Farms might have given will 
be returned to them in some way, probably in credits toward raw milk 
purchases, making the price tag this time around $00. plus keep 
lying Mike Chandler in charge to oversee DFA's best interests of 
seeing SEGMPA die a slow but sure death. At last, mission 
accomplished for DFA.
    Please do whatever it takes to see Southern Belle end up in the 
hands of someone who has (zero) connection to DFA. Thanks for 
listening.

A very concerned citizen

    P.S. Something else you may need to take a look at. Remember the 
children and families and taxpayers you were trying to protect when 
you made the new Dean spin off those plants.
    1.) The one in northern Alabama that needed to give Dean 
competition; you may not know but it's gone. Dean has North Alabama 
schools all to themselves now. Poor children.
    2.) The one in Virginia that was supposed to give Dean 
competition in parts of Virginia; you may not know but it's gone. 
Poor children.
    3.) The one in Indiana that was supposed to give Dean 
competition; you may not know it but it's gone. Poor children.
    You might ought to watch the rest that were spun off because 
some of them may soon disappear as well.
    Thanks again for listening.

[FR Doc. 07-709 Filed 2-21-07; 8:45 am]
BILLING CODE 4410-11-M