Tyson Foods 2009 Annual Report Download - page 78

78
land and the natural resources (including lakes and waterways) contained therein. Oklahoma seeks wide-ranging relief, including
injunctive relief, compensatory damages in excess of $800 million, an unspecified amount in punitive damages and attorneys' fees.
We and the other defendants have denied liability, asserted various defenses, and filed a third-party complaint that asserts claims
against other persons and entities whose activities may have contributed to the pollution alleged in the amended complaint. The
district court has stayed proceedings on the third party complaint pending resolution of Oklahoma's claims against the defendants. On
October 31, 2008, the defendants filed a motion to dismiss for failure to join the Cherokee Nation as a required party or, in the
alternative, for judgment as a matter of law based on the plaintiffs' lack of standing. This motion was granted in part and denied in
part on July 22, 2009. In its ruling, the district court dismissed Oklahoma's claims for monetary damages but denied the motion with
respect to the claims for injunctive relief. On September 2, 2009, the Cherokee Nation filed a motion to intervene in the
lawsuit. Their motion to intervene was denied on September 15, 2009 and the Cherokee Nation filed a notice of appeal of that ruling
on September 17, 2009. A non-jury trial of the case began on September 24, 2009 and is ongoing.
In 2008, the following thirteen (13) separate lawsuits were filed, with the various plaintiffs alleging that Tyson falsely advertised
chicken products as “raised without antibiotics” in violation of various state consumer protection statutes: (Cutsail v. Tyson,
08CV01643 (D. Md.); Cohen v. Tyson, 4:08CV0366 (E.D. Ark.); Wright v. Tyson, 08CV3022 (D. N.J.); Wilson v. Tyson,
4:08CV0587 (E.D. Ark.); Gupton v. Tyson, 4:08CV0588 (E.D. Ark.); Kranish v. Tyson, 08CV01619 (D. Md.); Latimer v. Tyson,
4:08CV004051 (W.D. Ark.); Zukowosky v. Tyson, 4:08CV0584 (E,D, Ark.); Brickerd v. Tyson, 08CV1796 (D. Md.); Court v.
Tyson, 08CV03592 (W.D. Wash.); Epstein v. Tyson, 08CV2800 (N.D. Cal.); Johnson v. Tyson, 08CV291 (D. Idaho); and Mize v.
Tyson, 08CV4051 (W.D. Ark.)) Plaintiffs in each of these cases seek to pursue claims on behalf of themselves and proposed classes
of other similarly situated consumers. Plaintiffs in each of these cases seek compensatory and punitive damages in an unspecified
amount in excess of $5,000,000. Plaintiffs in two of these cases, Cutsail v. Tyson and Cohen v. Tyson, petitioned the Judicial Panel
on Multidistrict Litigation to transfer all of these actions to a single court for consolidated or coordinated pretrial proceedings
pursuant to 28 U.S.C. 1407. On October 17, 2008, the Judicial Panel granted the multidistrict litigation petitions and transferred the
pending cases to the District of Maryland. A trial date has not been set. On December 29, 2008, Plaintiff Gupton filed a voluntary
dismissal of all her claims. On December 30, 2008, Plaintiffs Latimer and Mize filed voluntary dismissals of their claims. These three
cases were subsequently dismissed. Discovery is ongoing in the case.
In September 2009, the National Water Commission (“CONAGUA”), an agency of the Mexican government's Ministry of the
Environment and Natural Resources, sent an observation letter to our Mexican subsidiary, Tyson de Mexico (“TdM”), with respect to
TdM's water usage at certain water wells that are part of its poultry production operations. This letter was in response to TdM's
previous submission to CONAGUA of requested information relating to water usage from these wells from 2004 to 2007. In the
observation letter, which contains an initial finding of facts, CONAGUA alleges that TdM may have failed to (i) report accurate water
volume usage, (ii) install measuring equipment, (iii) provide evidence of water use exemptions, (iv) pay for applicable usage, and (v)
properly measure water volume, all as required under water deeds held by TdM. On October 15, 2009, TdM responded to
CONAGUA, denying the allegations as presented.