A Misguided Lawsuit by an Animal Welfare Organization

In 2011, an animal advocacy organization called “Compassion Over Killing” (“COK”) brought a lawsuit against a dairy organization called “Cooperatives Working Together” (“CWT”), alleging violations of federal antitrust law. CWT, which includes producers of approximately 70 percent of the nation’s dairy, offered small dairy farmers payouts in return for the smaller farmers’ agreeing to send their dairy herds to slaughter, thereby reducing the available supply of dairy and, the hope was, increasing its price. COK, through a law firm it hired, argued that CWT had engaged in price fixing in violation of federal law and the rights of consumers to the lower dairy prices that would otherwise have prevailed.

The case ultimately settled, with CWT agreeing to pay rebates to dairy consumers who had purchased their products during the period of allegedly inflated prices. The case has made it into the news recently because consumers have been collecting their rebates from the dairy conglomerate. In this column, I will examine whether the lawsuit made sense, as a matter of strategy, from the perspective of an organization dedicated to protecting the interests of animals, including dairy cattle.

CWT’s and COK’s Objectives

The one thing that is clear about this case is the motivation of CWT. Its goal was to raise the price of dairy products. Understanding the principle that reducing supply raises prices, CWT set about paying small dairy farmers to have their herds slaughtered and thereby cut the supply of dairy products entering the market.

According to Cheryl Leahy, General Counsel for COK, this move by CWT was harmful to both consumers and dairy cows. Through an exercise of its market power (given its control over 70 percent of the dairy market), it created higher prices for dairy consumers and thereby harmed them, and it paid farmers to have their dairy cows killed at a young age and thereby harmed the cattle as well. Bringing a lawsuit against CWT, COK reasoned, would therefore help dairy cattle by penalizing CWT for ordering the premature deaths of those cattle.

Because the cruelty of killing dairy cows does not violate the law, COK reasoned—understandably, perhaps—that its best bet in combating the cruelty would be to move against CWT for the harm it was inflicting on consumers. Though consumer protection was not its main objective, then, it could utilize the antitrust law and the corresponding protection of consumers to help protect cattle. Because the law does little to nothing to protect animals—particularly farmed animals—from being slaughtered, it made sense for COK to try to come up with a legally cognizable complaint about what CWT was doing and, in the process, have the nominally incidental (but truly intended) effect of benefiting cattle.

Problems With COK’s Strategy

There is nothing inherently suspect about utilizing a law intended for one purpose to help promote another purpose. This is especially going to be true of litigation intended to help animals, because it is humans rather than animals whose interests the law generally regards as worthy of protection. The question, then, is whether the use of antitrust law in this particular context was likely to help the animals whose wellbeing COK was aiming to further: the dairy cattle.

To answer this question, it is necessary to consider some facts about the dairy industry that may not be common knowledge. First, the dairy industry slaughters its cattle. People might imagine that dairy cows just give milk and therefore do not need to die as part of the industry. As it turns out, however, cows do not naturally “give milk” but must be impregnated and give birth in order to lactate, just like other mammals, including humans.

When they give birth, the odds are about 50/50 that the baby will be male, and the males are all slaughtered, typically as babies (aka “veal”), because they cannot, under any circumstances, “give milk.” Many female babies are killed as veal as well, because they are not all needed for the dairy herd. While (some of) the females are kept alive longer than the males, they too are slaughtered within approximately four years of their birth, because they are considered “spent” and no longer produce enough milk to economically justify their continued existence on this earth.

The reason it is necessary to understand the above facts about the dairy industry is that they help to illuminate the issue of whether CWT’s payment to small farmers to slaughter their herds constituted a special harm against the dairy cattle that would warrant COK’s efforts to intervene. Though COK, in its own publication, highlighted the fact that the dairy cattle to be slaughtered in response to CWT’s payment would be “young,” the reality is that if the cattle were permitted to live a little longer, they would have been impregnated and upwards of half of their (very young) babies would have been killed. Then, on top of that killing, the dairy cattle themselves would have had their lives taken after just a few years, though they could live to be about twenty years old if they were cared for as inherently valuable beings on a sanctuary instead of exploited and then slaughtered.

In addition, the dairy cattle would have suffered the terrible loss of having each and every one of their babies taken away from them after birth, so that the milk produced by nature to nourish bovine infants could be banked for sale to human consumers. Accordingly, it is not obvious that what CWT was paying the small farmers to do—slaughter their herds instead of using them to produce dairy products—was worse than what the small farmers would have been doing in the absence of CWT’s payment. Assuming COK was not going to be able to rescue the cattle at issue, it is therefore unclear why COK thought it would make sense to intervene in the actions of CWT.

Third Party Standing

Beyond considering whether COK was intervening in a “special harm” that deviated in an important way from the harm that ordinarily accompanies life as a dairy cow, it is useful to examine the harm to humans that COK was complaining about, to see how well this harm corresponded to what COK might have found objectionable in the treatment of the cattle. COK was complaining that CWT was harming dairy consumers by using its market power to deprive such consumers of the low prices that would, absent the killing of the small farmers’ herds, have resulted from the large quantity of dairy available to the public. A supply that outstrips demand naturally results in lower prices, and consumers like lower prices.

While it is no doubt true that consumers who want a product benefit from low prices and suffer a harm when those prices are artificially inflated, does this harm correlate with the harm inflicted on dairy cattle? In other words, do consumers of dairy products represent a good stand-in for dairy cattle because the interests of the two groups are, to some degree aligned? The short answer is absolutely not.

If we could ask dairy cattle what sort of prices they would like to see attached to the products of their tremendous suffering and pain, they would likely favor higher prices over lower ones. Why? Because when a product’s price rises, the result is to reduce demand for the product. All things being equal, then, it is better for dairy cattle that dairy products be expensive than that they be cheap, because cheaper products will yield greater demand, which will in turn motivate farmers to harm and then slaughter even more cattle than before.

The consumer of dairy products therefore, and not all that surprisingly, does not qualify as a good stand-in for the interests of dairy cattle. Such consumers, after all, are the very reason that dairy farmers do what they do to dairy cattle. Choosing to litigate for animals by nominally litigating on behalf of dairy consumers therefore makes little sense.

The Settlement

In learning that the lawsuit settled, I wondered whether perhaps in the settlement, COK managed to extract something from CWT that would benefit dairy cattle. So what did the settlement entail? It required CWT to pay rebates to consumers who had purchased dairy products during the relevant period (when CWT was allegedly driving dairy prices up by paying small farmers to have their herds slaughtered).

Consumers of dairy, in other words, would be able to recoup the losses they had suffered from CWT. Does this help dairy cattle? Not in any obvious way. Presumably, consumers of dairy products who were willing to pay the higher prices during the relevant period will now be prepared to buy even more dairy products with the infusion of cash coupled with the lower prices (due to the end of the program that had led to the increase in price in the first place). It is hard to imagine how any of this helps dairy cows.

One might wonder whether the publicity of the lawsuit perhaps served to let people know that dairy cattle are killed, something that many dairy consumers (especially vegetarian dairy consumers) may not realize. One of the functions served by an organization’s litigation can be to raise consciousness, even if nothing concrete happens to benefit the organization’s constituents in a direct way. The problem here, however, is that most people reading about or hearing reports of the lawsuit would come away believing that killing dairy cattle is something aberrant that CWT was paying for to artificially raise prices on dairy. The public, in other words, would imagine that the interests of dairy cattle and dairy consumers are in fact well aligned, because both suffered as a result of CWT’s program.

There is no reason to think that people learning about the lawsuit would come to see dairy as a whole as an industry that routinely slaughters baby animals and ultimately slaughters all of the animals in its “care.” That kind of revelation might inspire many dairy consumers to stop consuming dairy. As COK says in the same article outlining the story of its litigation against CWT, “[t]he best way we can help cows and opt out of supporting cruelty and corruption in animal agribusiness is by leaving animal products like dairy and meat off our plates. With so many delicious plant-based options available, it’s easier than ever before.”

Because the lawsuit highlights a seeming departure from the norm, the public message of the suit will likely be detrimental to the interests of dairy cattle rather than raising consciousness in a positive way. This makes me wonder why exactly COK thought it would be a good idea to bring the lawsuit that it brought against CWT and why it viewed the settlement on which the parties agreed to be at all helpful to animals.