Former Pilgrim’s Pride CEO Jayson Penn has moved to intervene in In Re Broiler Chicken Antitrust Litigation, the sweeping class action accusing the nation’s largest chicken producers of engaging in a conspiracy to fix and maintain product prices, among other things. The motion to intervene and for a protective order staying Penn’s deposition pending the resolution of his criminal case comes in response to the plaintiffs’ request that Penn sit a 14-hour deposition, allegedly in view of his “importance to the case.”
In his April 29 filing, Penn asserted that because he is facing a criminal antitrust suit by the federal government following his June 2020 indictment for bid-rigging and price-fixing, the plaintiffs’ request pushes him in an unfair position. Further, he is a defendant in related federal securities class action and a state shareholder derivative action.
As such, allowing his deposition to proceed now allegedly would present him with a “Hobson’s Choice”: being “forced to choose between invoking his Fifth Amendment privilege (thereby exposing him to a potential adverse inference in the two civil cases in which he is a defendant) or waiving his privilege and testifying substantively (thereby prejudicing his defense in the criminal action),” according to the motion.
Penn asserted that he is legally entitled to intervene because he has a “significant, protectable interest” in the litigation. The motion further argued that the court should enter a protective order because “many of the same considerations that militate in favor of granting Mr. Penn leave to intervene also support the issuance of a protective order staying his deposition.”
One of those factors is the overlap between the cases. Reportedly, their relatedness poses a risk that the government might use civil discovery to obtain evidence and information for its criminal prosecution, and thereby circumvent Fifth Amendment rights against self-incrimination. In addition, Penn claimed that the public interest tips in his favor because of the need to ensure that the criminal proceeding continues untainted by civil litigation.
The plaintiffs’ interests are “neutral,” the motion stated, because they can wait to depose Penn until the criminal proceeding concludes. Penn also pointed out that, in the interim, he has agreed to move forward with other requested discovery.
Jayson Penn is represented by O’Melveny & Myers LLP.