Domina Law Group pc llo - Professional Malpractice, Agricultural Trial Practice, Class Actions/Antitrust, Dairy Law, Unfair Competition, Trial Practice, Complex Litigation, Personal Injury, Wrongful Death, Referral Cases

DOMINA LAW Group pc llo Delivers Invited Paper Concerning Client Selection & Sorting Client Selection Criteria

While DOMINA LAW Group pc llo’s lawyers do not focus or concentrate on employment law issues, the firm’s practice and methods are of interest to other lawyers in broad settings. This interest led to an invitation by the Nebraska State Bar Association’s Employment Law Section for David Domina and Brian Jorde to prepare and present a paper dealing with a topic receiving little focus in legal education settings. The topic is screening prospective clients, selecting and accepting cases, and identifying criteria. The paper and the seminar, at which it is presented, includes ethical considerations.

“Sorting Wheat from Chaff,” the title of Domina and Jorde’s paper, outlines objective and subjective criteria and describes how cases are screened and selected for interest. It makes recommendations to lawyers and deals with legal ethics. The paper may be read here.

September 7, 2010

DOMINA LAW Group pc llo is a firm of trial lawyers. We specialize in complex litigation on a national basis. Our lawyers are ethical, aggressive, and committed to providing spirit and vitality to the judicial system and our client’s legal rights.

David Domina Speaks at Department of Justice and USDA Workshop Focused on Competition Issues in the Livestock Industry

Fort Collins, CO - The Department of Justice and the U.S. Department of Agriculture (USDA) held the fourth of five joint public workshops to explore the appropriate role for antitrust and regulatory enforcement in American agriculture. The workshop, led by Agriculture Secretary Tom Vilsack and U.S. Attorney General Eric Holder, examined competition in the livestock industry and featured panel discussions on trends in the livestock industry, market consolidation and market transparency. The workshop also included opportunities for public comments.

Secretary Vilsack and Attorney General Holder began the workshop with opening remarks before leading a roundtable discussion, in which Christine Varney, Assistant Attorney General for the Antitrust Division, participated with other federal and state officials, on competition issues in agriculture and the livestock industry.

The conference was the fourth in a series of workshops intended to promote dialogue among interested parties and foster learning with a diverse group of stakeholders regarding competition and regulatory issues in the agricultural marketplace. These workshops are the first-ever to be held by the Department of Justice and the USDA to discuss competition and regulatory issues in the agriculture industry. Additional information about the workshops can be found at www.justice.gov/atr/public/workshops/ag2010/index.htm#overview.

"Ultimately, today's conversation is about much more than simply last year's trends or this year's challenges. It's about livelihoods, families, this region's economy and our centuries-old American way of life," said Attorney General Holder. "We've made these workshops a cabinet-level priority so that we can most effectively and efficiently determine how to ensure a fairer, more competitive marketplace for producers and consumers alike."

After the roundtable discussion, a panel of producers and feeders from throughout the country shared their first-hand experiences and perspectives on the industry.

In the afternoon, another panel discussed trends in the livestock industry, including issues associated with contracting, price transparency and the effects of concentration. David A. Domina, a lawyer with DOMINA LAW Group pc llo and a prominent proponent of the need for price transparency in all markets, discussed the danger of four (4) corporations controlling over 80% of America’s beef market.

Domina asked the audience of 2000, “Who here feels more safe as an American knowing only six (6) financial institutions control greater than 60% of all bank deposits in the US,” and when not one person raised their hand Domina concluded, “so why does it make any sense at all for Americans to allow fewer companies to control a greater percentage of our food supply?”

Agriculture Secretary Tom Vilsack commented on the current market conditions by stating, "Given the consolidation that has taken place in the livestock industry over the past decades, it is critical to ensure a fair market still exists to give all players an honest chance at success." Vilsack continued, "a fair and competitive marketplace is important not only for producers, but also for consumers, and today's open and transparent dialogue with ranchers, farmers, academics and other industry stakeholders will provide us with a understanding of the complex issues in this important industry."

Videos and transcripts from today's workshop will be available for review at a later date on the Antitrust Division's website at www.justice.gov/atr/public/workshops/ag2010/index.htm#dates
Individuals seeking more information on the workshops should contact
agriculturalworkshops@usdoj.gov
More Links about the USDA-DOJ Workshops
http://www.wallacesfarmer.com/story.aspx/fourth/of/five/usdadoj/workshops/held/8/41537
Photographs from USDA-DOJ Fort Collins, CO Workshop
http://www.flickr.com/photos/zimmcomm/4932785199/in/set-72157624690482337
Report From Fort Collins: Beef, the Law and Rural Communities
http://www.dailyyonder.com/report-fort-collins-beef-law-and-rural-communities/2010/08/26/2908

September 2, 2010

Domina Taylor Market Concentration Work Continues: Restoring Economic Health to Beef Markets

David Domina and Dr Robert Taylor released their extensive report on the status of livestocks markets August 24, three days before the U S Attorney General and the U S Secretary of Agriculture attend a joint US DOJ and USDA workshop in Ft Collins CO on Friday. Domina will appear on a hand picked panel of eight (8) persons to discuss cattle and swine markets before and with federal officials.

Domina, and Auburn University's Alfa Eminent Scholar, Ag Economist C Robert Taylor explain the status of beef and swine markets, and offer solutions. Read the Domina Taylor report here.

August 25, 2010

Court Awards Judgment, Fees, and Punitive Damages for Failure to Pay Compensation

When DOMINA LAW Group pc llo’s client’s employment with a Nebraska engineering firm deeply involved in the ethanol industry ended, the firm apparently thought it had sidestepped its obligation to pay its departed business originator, as promised. But, that expectation ended, abruptly, when the District Court in Douglas County rendered judgment for the firm’s client.

George worked for the engineering firm under a contract requiring it pay him commissions for work he originated, processed, and developed. This led the company to major, lucrative engineering projects. George landed the projects for the firm. He noticed, once projects came into the office, he was distanced from them by firm managers. But, George continued with his work – which was to get business in the door.

Things slowed down despite George’s best efforts. The economy changed. New construction of plants, like those in which the firm specialized, particularly in the ethanol industry, fell off. George found himself without work. He also found the firm refused to pay him.

This is when DOMINA LAW Group pc llo and George became acquainted. For George, the acquaintance bore fruit when, in mid-August 2010, judgment was entered in George’s favor for amounts exceeding his expectations when he hired the firm.

When the case was over, George won:

Unpaid Commissions
$385,208.18
Attorney’s fees, awarded under a statute providing for the recovery of attorney’s fees in cases where compensation is not paid as required
$102,553.04
Punitive damages to be paid to the State School Fund
$25,000.00
Court costs
$736.00
Total
$513,497.22

Terry A. White and David A. Domina handled the matter for George. Ms. White explained, “Our client fully performed his obligations to his employer. The employer did not perform for him. The court made it right.”

The case, scheduled for presentation to a jury, is unusual because it includes an award of funds to the State Common School Fund to support the public schools.

This unique feature drew a comment from Terry White, too. “Nebraska’s long standing public policy has not allowed private litigants to recover punitive damages. But, the state’s law, in certain expressed circumstances, does permit recovery of punitive damages for the benefit of the State’s Common School Fund. The idea is punitive damages should not enrich a victim. The victim should simply recover compensation. But, where reprehensible conduct occurs, and still no public policy is violated and no crime committed, then punitive damages, payable to the state, are an important deterrent and provide a powerful incentive to make people behave themselves.”

August, 2010

Tenacious Service Produces Recovery in Bankruptcy Fraud Litigation

When a creditor from outside the area found itself with an uncollectible debt from a commercial business transaction, it contacted DOMINA LAW Group pc llo for collection efforts. The debt, claimed due from a licensed professional person in Lincoln and his spouse, was surrounded by unusual circumstances. The debt, arising from a loan, appeared to have a routine, ordinary course of business basis. It involved refinancing and looked straightforward. But, after the debt was contracted and before lien papers were executed or filed, suddenly a new debt was incurred; it was due to a failed Nebraska bank. The new debt appeared to have no commercial basis, and by “mere coincidence” was in the precise amount of the debt due to DOMINA LAW Group pc llo’s client.

“Something smelled from the beginning,” Brian Jorde of DLGpc observed. “We went to work on it.”

Jorde and Mark Raffety pursued the matter in State Court. The debtor and his spouse filed bankruptcy. There, more unusual things happened. Bankruptcy schedules were irregular and debt did not appear fully disclosed. At best, circumstances were “odd.”

“We insisted we get the information needed to understand these entries,” Mark Raffety said. Jorde added, “We forced production of the tax returns and could see, then, matters didn’t match up.”

“Two or three times along the way our client gave up,” Jorde said. “So, we converted the matter from a unit billing to a contingent fee arrangement in order to make it possible for the client to go forward.”

DOMINA LAW Group pc llo then filed a complaint to deny the debtor’s discharge in bankruptcy. They asserted bankruptcy fraud. “The peculiar circumstances surrounding this arrangement mounted. And as they did, we became more and more convinced something was wrong,” Raffety said.

Trial on the complaint to deny discharge commenced in early August 2010. “We had no choice but to call the debtors as our primary witnesses and make our case through their own mouths,” Brian Jorde explained. “Examination of the debtors did not go well for them. The discrepancies in the timing, entries on the bankruptcy schedules, the tax returns, and in the records of the failed bank were too inexplicable and made too little sense,” Jorde said.

At the end of “an examination obviously very difficult for the debtor,” the case was settled. Jorde and Raffety found their determination paid off.

“Mark and I are pleased to have a client who is delighted to make its point and is making a financial recovery. We hope this effort will deter others from similar conduct, and we know the debtors, who attempted the end run, are chagrined by the outcome, as they should be,” completed Jorde, who conducted the debtor’s examination.

August, 2010

University of Tennessee Economist Cites Taylor Domina Work

Highly regarded and widely read University of Tennessee economist Dr Daryll Ray chose to devote a series of columns to the work of Dr Robert Taylor and David A Domina on problems affecting market concentration in American Agriculture.

Read July 16, 2010 Column Read July 9, 2010 Column Read July 2, 2010 Column
Read June 25, 2010 Column Read June 18, 2010 Column Read June 11, 2010 Column

OCM's Study of New USDA Market Fairness Rules Produces Vigorous Compliments for USDA

Last Friday, US Secretary of Agriculture Tom Vilsack announced new Rules to address the problem of increased contracting in the marketing and production of livestock and agriculture. The Organization for Competitive Markets applauded the Department's efforts.

The applause grew louder after OCM's General Counsel, and its Senior Economics Fellow, studied the Rules. It called the Rules “major steps in the direction of a functioning marketplace”.

OCM’s General Counsel, Dave Domina commented: "Dr. Robert Taylor and I have had the privilege of studying and writing extensively about market concentration, and the problem of contracting between large producers and large packers to control the movement of meat animals to slaughter. We have expressed our grave concern about the trends in the courts, and the variance between their trends and the obvious history of the Packers and Stockyards Act. Now, these new Rules pointedly provide new tools to help producers assure market fairness."

Dr. Robert Taylor, an agricultural economist and the Alpha Eminent Scholar at Auburn University, noted that "a single producer cannot reasonably be expected to prove predatory intent, or competitive injury to the market place, when attempting to find redress from a packer's pointed attempts to harm that producer. Yet, in recent years, courts have required such proof.

Domina and Taylor said “the new Rules , particularly in 7 CFR § 201.210, aggressively address this problem, and express the Department's strong view that the courts have drifted in the wrong direction. Sectoin 201.211 establishes criteria to be used in determining when improper preferences or advantages have been conferred. These are powerful tools."

The Organization for Competitive Markets has provided seminars and sponsored extensive writing in the area of market fairness and competition. OCM President Randy Stevenson hailed the new Rules as "a significant move in the right direction. We believe poultry, pork and beef producers all gain significantly at leveling the playing field and achieving real fairness," Stevenson said.

Domina, a lawyer whose practice has included trial of Packers and Stockyards Act cases, noted that "the new regulations address, squarely, the fact that a number of US Circuit Courts of Appeal have not given deference to USDA's agency interpretation of the Packers and Stockyards Act. The new Rules specifically recite that this failure by the courts has frustrated the Agency's enforcement capabilities. The Agency is right.”

Dr Taylor explained the economics problem of requiring one producer to prove that a processor’s misconduct against him can be redressed only if the whole market is harmed. “Where one producer is singled out, and retaliated against, but cannot have a remedy unless that single producer can prove that the packer's conduct harmed the entire marketplace, and the price of the entire commodity, then the courts have marginalized the statute. The regulations address this problem forcefully."

President Stevens, joined by OCM Director Fred Stokes, complimented the USDA on thoughtful, and informed, rulemaking. "OCM is gratified by the Agency's determination to stand up for producers. Only market fairness at the producer level can yield market fairness for consumers.”

Stevenson concluded, “If packers are so big and powerful that they can suppress the people who raise the food, inevitably they, joined by giant retailers, will gouge consumers as well. Today, the USDA took a giant step in the direction of protecting the American public, including both the producers and consumers of the nation's meat supply."

Link to USDA article Link to NY Times article

June, 2010

The Nebraska Supreme Court Announces Major Change in State's Real Estate Law.
DOMINA LAW Group pc llo Client Prevails.

" 'The reign of terror of the rule against perpetuities has ended.' This is what the Nebraska Supreme Court's June 18, 2010 decision in Bauermeister v Waste Management Co., 280 Neb 1, --- NW2d --- (2010) means," said Dave Domina. Domina and DOMINA LAW Group pc llo argued the case for the Bauermeisters at the trial court, in the Court of Appeals, and in the Supreme Court.

The Supreme Court's decision to review the Court of Appeals placed squarely at issue whether an option in a purchase agreement, involving a Douglas County, Nebraska farm containing the largest landfill in the State, barred exercise of the seller's right to repurchase the land under the ancient "rule against perpetuities." Generally, the rule against perpetuities prohibits the creation of future interests or estates which, possibly, might not become vested within lives in being plus 21 years. The justification for the rule has been public policy against restricting the alienation of the sale of land.

The Supreme Court, reversing the Nebraska Court of Appeals, noted that the rationale for the rule against perpetuities is no longer as vibrant as other public policy considerations. The Court noted that, within a few weeks after the 1989 contract between the Bauermeisters and Waste Management was executed, Nebraska's Legislature adopted a version of a uniform state rule against perpetuities, which was narrower than the common law rule.

The Court noted that courts across the United States have abandoned the common law rule against perpetuities in a series of decisions. The Nebraska Supreme Court joined the trend in the law at moving away from the rule against perpetuities, restricting its applicability, and limiting the common law rule to the scope of the 1989 Nebraska statute.

The Court concluded, "It would not be prudent to now deny [the Bauermeisters] the benefit of their bargain while allowing Waste Management to avoid the terms of [its] agreement."

While the Supreme Court's decision was, on its face, limited to the terms of the contract between the parties, the decision is "strong precedent for the idea that the rule against perpetuities no longer inflicts its terror against parties engaging in commercial real estate contracts," Domina concluded.

Watch the Oral Argument here

June 18, 2010

Watch, Listen to Fascinating Nebraska Supreme Court Argument—
Could Dirty Politics Get a Political Party Sued?

A fascinating oral argument presented by DOMINA LAW Group pc llo’s David A. Domina asks the Nebraska Supreme Court to hold that dirty politics, involving lies, should subject the perpetrator to potential civil liability. Click here to watch the argument heard by the Supreme Court which now has the important decision under advisement.

DOMINA LAW Group pc llo expects the Supreme Court’s decision to break ground and be announced by the end of the summer.

June 16, 2010

Midwestern Clients Affected by BP Oil Spill Urged To Investigate Remedies

DOMINA LAW Group pc llo announced to its clients, and others who regularly read its website, concerning their legal rights against Transocean Co., and British Petroleum. Many Midwestern companies, ranging from shipping companies to importers of seafood from the Gulf or rice from Louisiana, and “others whose interests we cannot imagine,” may have substantial losses, including lost profits and commercial losses, against Transocean and British Petroleum.

Claims must be processed on an urgent basis.

Transocean filed a “limitation action” in the United States District Court in Houston. The “limitation action” seeks to extinguish all liability against Transocean, at or above a minimum cap on all liabilities of $27 million. This aspect of the case is unlikely to succeed, but another aspect has already resulted in court orders which could adversely impact Midwestern businesses for millions of dollars.

The federal court in the Transocean case exercised its authority by issuing an order shortening the statute of limitations in the limitation action. The federal court’s order, issued in Case No. 10-1721, In Re Complaint & Petition of Triton Asset Leasing GmbH, Transocean Holdings LLC, et al., was issued May 13, 2010. The order requires published notice of the complaint and limitations on claims, and it orders claims must be filed “with the Clerk of this Court and… a copy thereof to Attorney In Charge for Petitioner on or before the 15th day of November 2010… or be forever barred….”

The required legal notice will be published in the Houston Chronicle, but not elsewhere.

David Domina of DOMINA LAW Group pc llo said, “We urge our clients to contact us, and others to contact their lawyers, about these difficult matters and make them aware of In Re Complaint of Triton in federal court in Houston, and concern yourself with the federal statute providing a limitation of liability for matters occurring in the open sea.” See 46 USC §§ 30501 et seq. & Rule F of the Supplemental Rules for Certain Admiralty & Maritime Claims of the Federal Rules of Civil Procedure.

These are complex matters and prompt attention to them is urged.

DOMINA LAW Group pc llo consults with gulf coast lawyers on matters of concern to its clients in the gulf coast and on matters related to maritime issues. In the past, it has worked with Arnold & Itkin, LLP, Houston, Texas, and Sussman & Godfrey, LLP, Houston, Texas.

May, 2010

Report Issued on Restoring Economic Health to Contract Poultry Production

      Auburn University's widely published Agricultural Economist Dr C Robert Taylor, and David Domina of DOMINA LAW Group pc llo released a comprehensive study of the state of poultry production in the United States. The Paper was filed with the U S Department of Justice and the U S Department of Agriculture as a prelude to a May 21, 2010 scheduled workshop on poultry markets and legal issues. The Study may be read here.

      U S Attorney General Eric Holder, U S Secretary of Agriculture Tom Vilsack, and Deputy Attorney General for Antitrust Enforcement Christine Varney will attend the Conference in Alabama. Dr. Taylor will serve as a panelist and spokesman.

      The Domina & Taylor Study finds, among other things, that:

1. The domestic poultry meat industry is integrated vertically. This means ownership and control of essentially all aspects of production in the vertical chain from baby chick to processed broilers and wholesale poultry products is held by poultry companies. These companies are commonly known as “integrators.” The poultry industry, which includes broiler, turkey and egg production, is the most vertically integrated of all major agricultural industries.

2. Integrators generally own or control the breeding flock, hatcheries, chicks, assignment of baby chicks to growers, feedmills, feed ingredients, transportation of feed, and processing (slaughter) plants. These companies, integrating all decision making affecting poultry production, direct the course of action in all key areas of production: placement of baby chicks, the number of chicks placed with each grower, what birds are fed, and when birds ready for processing will be picked up from the grower. Integrators also dictate physical size and equipment specifications for grow out house and equipment. Locations or placements of grow out facilities are fully dictated by the integrators.

3. Under the dominant business arrangement, the integrator owns the chicks and the feed, while farmers, commonly called contract growers, carry out actual production, or grow out, from chicks to birds ready for processing. If the bird dies, it becomes the grower’s property and responsibility. This is achieved by paying the grower or producer for only what is returned when the birds reach slaughter weight.

4. The integrator directs and oversees the production process and serves as overlord to the contract grower. Company representatives (called service technicians) typically visit each producer and grow out house weekly to supervise the grower’s work and check on litter, waste and dead birds.

5. Integrator representatives also give directives governing maintenance and upgrades of facilities. They police the handcuffing provisions in nonnegotiable standardized contracts integrators demand of growers. “This network of company specialists (i.e. service technicians) comprises the command-and-control structure that specifies the grower’s production process.”

Domina & Taylor concluded their Study with these comments and recommendations:

“We believe that the following changes would go far to restore competition and fairness in the poultry industry. The changes might make it possible to avoid the necessity to split integrators into smaller units. Information is power. Information asymmetry is a power imbalance. Eliminating the huge power imbalance in the poultry industry is imperative. Steps that need to be taken are

USDA must collect and publicly report average contract pay by region, at least annually
Grower settlement must be required to include basic information, such as breed, strain and sex of chicks, health and feeding histories.
Growers must have means to validate essential payment computation parameters. Transparency and validation must be required.
Detailed information—AgriStats – now available to integrators to share with each other must be made public promptly. This must become USDA NASS data.
More information like the Alabama Farm Business Analysis Association managerial records need to be publicly provided along with educational programs on the true economics (not just cash-flow) of poultry production.
Growers should be less trusting of representations made by integrators, or get such representations in writing.
Contract reform must occur. Grower contracts must have legally controlling criteria; a balance of power in contracting is needed.
Pre-dispute mandatory arbitration provisions and waivers to the right to trial by jury at the time of contracting must not be allowed to continue. The use of the courts and the right to trial by jury are basic to the American system.
Contract must clearly state who owns used litter and waste, and not just who is responsible for disposal of waste and dead birds.
Contracts must be publicly available. Legislation similar to the swine contract library must be enacted.
Bankers must “wake-up.” Routinely making 10-15 year loans on the basis of a contract that only guarantees a single flock of birds is not a sound banking practice. Multi-year contracts that guarantee only a single flock of birds do not solve the bankers or growers problems. Contracts need to guarantee a minimum number of flocks over a long enough time period to at least insure loan repayment.
Banking credit standards must be adjusted to analyze long-term risks and rewards for the banker and the grower over the term of the loan, and the capital asset’s, useful life. This can be done with banking credit regulations that will not be an onerous burden.
Contracts must be for longer time periods, and must include grower renewal options and prohibitions against assignment by the integrator to a shell entity or financially weak successor. Contracts should permit the integrator to “buy out” of the contract at a declining rate over the life of a house.”

May, 2010