Two Mistrials and An Innocent Client: How An All-Women Team Defeated a DOJ Criminal Conspiracy Charge in Broiler Chicken

An all-women litigation team pulled off the highly improbable: successfully extracting our client, a poultry industry sales executive, from a high-profile criminal antitrust case in which the US Department of Justice (DOJ) Antitrust Division alleged a total of 10 poultry processing executives were involved in a conspiracy to fix prices and rig bids for broiler chicken products. Rewarding this Herculean effort, Latham was crowned Winner of American Lawyer’s highly competitive Litigator of the Week contest.

The headline-grabbing antitrust matter kicked off in 2020, when the Antitrust Division filed criminal indictments against 10 poultry processing industry executives, alleging they conspired to fix prices and rig bids for broiler chicken products. The defendants were former sales executives for Tyson Foods, Pilgrim’s Pride, Claxton Poultry, Koch Foods, and George’s Inc.

At stake was the freedom of our client — who was facing up to 10 years in prison — accused of criminal actions he had neither the means nor motive to commit. As with the other defendants, he was also facing down devastating reputation damage and US$1 million or more in potential fines.

Following extensive motion practice and discovery, the DOJ and defense counsel presented their case to a jury in Colorado federal court over the course of seven weeks in Fall 2021. After nearly a week of deliberation, the jury was unable to render a verdict and a mistrial was declared. Our team later learned the jury had voted 9-3 in favor of acquitting our client.

The Antitrust Division made a second attempt at trial — again — against all 10 defendants. After six weeks of trial across February and March 2022, and in an almost unheard of turn of events, the new jury reported that they would not convict. Just one day later, on March 31, 2022, the DOJ voluntarily dismissed the charges, with prejudice, against our client and four other individuals. The case against the remaining five defendants is pending.

The team overcame a number of challenges:

• To help the jury keep track of the client amongst a sea of nine other defendants and more than a dozen defense counsel, the team made the strategic decision to have New York and Washington, D.C. partner and a former Antitrust Division prosecutor Liz Prewitt handle all the jury addresses and key witness examinations.
• With the client’s trust, Liz and team also decided to execute a very rare strategy: reserving the opening until after the government’s case-in-chief in order to move immediately to defense witnesses that would amplify Latham’s themes in testimony – making good on the promise to the jury right away.
• Both Denver trials were fully masked, making it that much more challenging for defense counsel to establish trust with the jury and in their clients.

While Prewitt served as lead trial counsel, the client’s vindication was the result of an extraordinary team effort. New York associate Caroline Rivera, assisted by New York associate Karen Kim, earned several battlefield promotions by knowing the facts cold and taking on responsibility for drafting witness examinations and legal briefs. The team was also supported by partners Marci LaBranche and Jamie Hubbard of Stimson Stancil LaBranche Hubbard.