Mississippi native J. Dudley Butler is a notorious plaintiff’s attorney who has filed numerous lawsuits against poultry companies alleging unfair marketing and procurement practices.
Before his nomination by President Obama as Administrator of the Grain Inspection, Packers and Stockyard Administration (GIPSA) – an agency charged with monitoring the marketing of livestock, poultry, meat and other ag products and ensuring healthy competition — he was an attorney in the Butler Farm and Ranch Law Group in Canton, Mississippi and well-known to the meat and poultry industry. He was one of the “Johnnie Cochrans” of ag law: “Got a chicken? Got a case.”
His appointment as GIPSA Administrator was hailed by the populist group R-CALF USA (Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America), where he was previously a member, and by the Organization for Competitive Markets (OCM), which he helped to found. While Butler’s legal efforts to bring Packers and Stockyards Act cases against poultry companies failed, his nomination as GIPSA administrator made R-CALF and friends realize they had hit pay-dirt: The friendly lawyer who donated a saddle to their 2009 Convention fundraising auction now might be able to alter the very rules that had been an obstacle to success in court.
Attorney and fellow OCM Member Dave Domina also saw the potential for sealing legal victories: “This is a narrow moment in history when a difference can be made.”
Butler saw language in the 2008 Farm Bill that mandated GIPSA rulemaking on “undue preferences” as the train to which he could hitch a giant regulatory caboose. Instead of restricting himself to what Congress mandated, the proposal he shepherded to the Federal Register in June 2010 included language to reduce the legal obstacles he had encountered in court. Under such a scenario, the private practice to which we might return could be far more victorious in court – and far more lucrative.
When the rule finally became public, its staggering scope and impact prompted sharp criticism, especially in light of its lack of a meaningful economic impact analysis. In a move that shocked those who understand “the rules surrounding rulemaking,” Butler’s agency issued a “misconceptions and explanations” document to defuse criticism – something considered highly inappropriate once rulemaking is underway.
At the same time, many groups submitted requests for extension to the short, 60-day comment period – a common request when rules are significant. Butler replied to numerous livestock and poultry groups almost immediately and informed them there would be no extension. He forgot one critical to-do: a political reality check with his superiors. Given lawmakers’ growing understanding of the proposal’s impact and their expressions of concern, Butler’s superiors overruled his decision and granted a 90-day extension. But Butler’s stubborn refusal and knee-jerk response reveal much about the way he hopes to drive his train before he has to exit the administration.
It wasn’t long before folks in town smelled a rat.
In a highly contentious House Agriculture Committee hearing July 20, Livestock Subcommittee Chairman David Scott told Butler and Under Secretary Edward Avalos that they “very, very seriously overstepped their boundaries” and that was especially true, Scott said, given that some of the provisions in the proposed rule “were soundly rejected” by the House Agriculture Committee, the House, the Senate and conference committee during the 2008 Farm Bill debate. Reps. Minnick, Costa, Goodlatte and Chairman Peterson gave Butler a tongue-lashing that was likened by one member of the media to “breaking out a can of whoopass.”
Had the lawmakers followed some of Butler’s speaking engagements after his appointment, the proposal might not have been such a surprise.
In a speech to OCM in August 2009, Butler hinted at what the proposed rule might do. He suggested that the new proposal would be “a plaintiff lawyer’s dream.” He also talked about “real money:” “There are only certain things a violation of the regulation, if you will, written regulation, that they can fine on, I think a maximum is $11,000 that they can fine $11,000 a day, but the real money that you are talking about comes from the section dealing with damages, compensatory damages, to other types of damages that DOJ can either seek or you can seek in a private right of action.”
He urged members of OCM to file comments in support of the efforts: “Do not send us 700 letters that are exactly the same. If you can’t take the time to save your way of life and my way of life – I still live on my farm – I’m just transplanted to Washington right now, when I catch a plane this afternoon I’m going to New Orleans and drive to my farm, it is important to me. It’s important to my family so I’m begging you, sit down, take the time to write us some comments. Have friends write us a comment. Have consumers write us a comment not just from a producer standpoint. We need to hear from everybody.”
In private meetings, Butler has been known to refer to himself as “anointed,” and perhaps that self-importance has prevented the discretion that could have been his political savior.
In the Fall of 2009, Butler spoke at the Stockgrowers Annual Convention in Rapid City. At that time he was the newly appointed Administrator of the Grain Inspection, Packers and Stockyards Act. According to the High Plains Journal, “Butler made a special point of asking for comments and support from farmers and ranchers by way of letters, phone calls, etc. He said he needs to receive individual comments from individual producers with their own stories. He added this is absolutely necessary to getting his job done as there will undoubtedly be litigation from those who seek to defend the current status quo.”[8]
The challenge now before him is the growing awareness among Congress of just how misguided — and downright devastating – this rule will be if finalized. More than a quarter of the U.S. House of Representatives signed onto a letter telling Agriculture Secretary Vilsack that they were extremely concerned about the adverse economic impact of the rule. Numerous Senate letters and state delegation letters have been sent, too. Even Senator Charles Grassley (R-IA) sent a letter questioning why no economic analysis has been done.
If Butler is summoned back to the Hill to respond to the many new developments – including revelations about a tape of his 2009 speech to OCM where he called language in the forthcoming rule “a plaintiff laywer’s dream” – as Ricky Ricardo once said: “You got some splainin’ to do.”
In total, over 2 million jobs have been eliminated, in contrast to the over 3 million more jobs Americans were promised if Democrats’ 2009 stimulus plan passed. The only place in America that has exceeded its projected job growth following Democrats’ stimulus is Washington, D.C.