Full opinion text
REAVLEY, Circuit Judge: Once more a federal court is called to say that the purpose of the Packers and Stockyards Act of 1921 is to protect competition and, therefore, only those practices that will likely affect competition adversely violate the Act. That is this holding. This appeal is concerned only with § 202 of the Packers and Stockyards Act (“PSA”) enacted in 1921 to cope with market control of the meat packing industry by five companies. That section as it stands today, codified as 7 U.S.C. § 192, is set forth in the appendix and referred to hereafter as codified. Congress has amended the PSA multiple times since its passage, including additional provisions and refining much of its scope, changing jurisdiction of federal agencies and bringing additional industries under protection, standing today as 7 U.S.C. § 181 — § 229c. The language at issue in this case in § 192(a) and (b) remains as originally enacted without any significant change. This Appeal Plaintiffs “grow” chickens for the defendant poultry producer and brought this suit with several claims that included the defendant’s “deceptive, unlawful, unfair, capricious, arbitrary and discriminatory” conduct in violation of § 192(a) and (b). A specific complaint was that another grower was given a contract on preferable terms, violating the PSA because it was an unfair and deceptive trade practice. The defendant moved for summary judgment, arguing in part that the PSA requires a showing that the alleged practices have an adverse effect on competition. The district court denied the motion, holding that no showing of adverse effect on competition is necessary under § 192(a) or (b) of the PSA. That court then allowed an interlocutory appeal under 28 U.S.C. § 1292(b) to decide the question of “whether a plaintiff must prove an adverse effect on competition in order to prevail under 7 U.S.C. §§ 192(a)-(b).” This court granted permission to appeal. A panel of this court held that a plaintiff need not prove an adverse effect on competition to prevail under the statute. Wheeler v. Pilgrim’s Pride Corp., 586 F.3d 455 (5th Cir.2008). The en banc court granted rehearing and disagrees with the panel and district court. Judicial History The Supreme Court in 1922 The lengthy history in the courts began immediately after the PSA’s enactment with an effort to enjoin its enforcement because of unconstitutionality. The following year the Supreme Court upheld the PSA in Stafford v. Wallace. , Chief Justice Taft, author of the opinion for the Court, recounted efforts of the government to protect sellers of cattle and purchasers of meat from the control of the purchase of live stock and preparation, distribution, and sale of meat products by the five great packing companies. As the Chief Justice said, “[i]t is helpful for us in interpreting the effect and scope of the Act in order to determine its validity to know the conditions under which Congress acted.” The Chief Justice introduced the PSA as regulating “the business of the packers done in interstate commerce and forbidding] them to engage in [using words of subsection (a)] unfair, discriminatory, or deceptive practices in such commerce, or to subject any person to unreasonable prejudice therein, or to do any of a number of acts to control prices or establish a monopoly in the business.” He observed that the object of the PSA was to secure the flow of livestock from the farms and ranges to the slaughtering center and into meat products unburdened by collusion that unduly lowered the prices to the shipper and unduly increased the price to the consumer. Then the opinion turns to previous cases, particularly the 1905 case of Swift & Co. v. United States, where the Court enjoined violations of an anti-trust act of 1890 by those who refrained from bidding against each other in buying livestock and in fixing prices for the sale of fresh meat. The Supreme Court concluded: “It is manifest that Congress framed the Packers and Stockyards Act in keeping with the principles announced and applied in the opinion in the Swift ease.” We read this 1922 opinion of the Supreme Court to decide the PSA to be constitutional because it protects competition and opposes combinations in restraint of interstate trade. The Seventh Circuit The Seventh Circuit, where great packing companies have resided, has fielded most of the early cases applying the PSA. In 1939 it set aside an order of the Secretary of Agriculture against preferential discounts and trades allowed to some customers and not to others. Swift & Co. v. Wallace. The Secretary had declared that the fact of competition was not material, but the court held that the decision had to take into consideration the effect that this disparate treatment had upon competition between customers and between Swift and others. In 1961 that court upheld the Secretary’s order against a meat packer that had cut its prices to lessen or destroy competition with its competitor. Wilson & Co. v. Benson. In reply to Wilson’s argument that its price-cutting was not for the purpose of acquiring a monopoly or eliminating a competitor, and that the PSA did not prohibit a mere competitive injury or lessening of competition, the court said that the legislative history of the PSA supported a wider power to prohibit unfair methods of competition than did antecedent anti-trust legislation. In 1962 the Seventh Circuit held that an agreement to allow a competitor to bid to purchase hogs for itself and another violated § 192(a) of the PSA because the result was to eliminate competition, whereas the packer’s dissemination of price information to its dealers did not violate the PSA because the purpose was to consummate a sale rather than to compete. Swift & Co. v. United States. In 1968 the Seventh Circuit set aside an order of the Secretary of Agriculture stopping Armour and Company from giving consumers of its bacon a 50-cent refund. The Secretary deemed the practice to be unfair and a violation of § 192(a) of the PSA because its return on bacon sales was less than its costs. The court held that lack of fairness and an unreasonable preference did not prove a violation of (a) and (b) of the PSA because Armour’s refund program would not violate the Act absent an intent to eliminate competition or unless the effect might be to lessen competition. Lastly, the Seventh Circuit rejected a claim under the PSA for an “unfair and knowingly deceptive scheme” to sell “off-condition” hams, because there could be no legal claim under (a) of the PSA unless there was some intent to eliminate competition or unless the effect might lessen competition. Pac. Trading Co. v. Wilson & Co. Five Other Circuits The Eighth Circuit in Farrow v. United States Department of Agriculture held that a practice which is likely to reduce competition may be an unfair practice in violation of the PSA, even in the absence of evidence that it had that result. A later decision of that court, while affirming that rule, held that an agreement by feedlot owners to give a packing company a first refusal on the price for sale of cattle did not potentially suppress competition sufficiently to violate the PSA. IBP, Inc. v. Glickman. The Ninth. Circuit upheld the Secretary’s order against the practice of a group of packers who required auction stockyards to sell cattle subject to the cattle passing government inspection, holding that this was a conspiracy that created a likelihood that competitive harm would occur. Judge Sneed would have remanded for a further determination of the competitive effects. De Jong Packing Co. v. United States Dep’t of Agric. In Been v. O.K. Industries, the Tenth Circuit had before it an appeal with the same question as the one before us: does § 192(a) require proof that a practice injures or is likely to injure competition? That court recognized that Congress had listed specific acts in subsections (c), (d) and (e) that expressly restrain competition whereas the same is not true of subsections (a) and (b), but concluded that this meant it was left to the courts to determine what anti-competitive practices could be unfair, unjustly discriminatory or deceptive. The Tenth Circuit followed the holding of the other federal courts addressing this issue to require a plaintiff who challenges a practice under § 192(a) to show that the practice injures or is likely to injure competition. At trial of a case in the Eleventh Circuit the jury found that a poultry company had violated the PSA in terminating the plaintiffs’ poultry growing contracts without economic justification. The jury then awarded plaintiffs $164,000 in damages. The district court set aside the award, granting judgment as a matter of law and holding that plaintiffs failed to show that the termination had an effect on competition. The Eleventh Circuit affirmed after reviewing the judicial history and said that “[ejliminating the competitive impact requirement would ignore the long-time antitrust policies which formed the backbone of the PSA’s creation.” London v. Fieldale Farms Corp. The court concluded that the PSA required a plaintiff to show that the defendant’s deceptive or unfair practice adversely affects competition or is likely to adversely affect competition. This rule was applied by the Eleventh Circuit in Pickett v. Tyson Fresh Meats, Inc., where a jury found that Tyson’s marketing agreement method of cattle purchases caused the price of the cash market method, used in purchasing from plaintiff, to be lower. The jury found that plaintiff suffered substantial financial injury. The trial court rendered judgment for Tyson, and the court of appeals affirmed, because the evidence established that Tyson had a legitimate business interest justification for the market method, consistent with its need to meet competition. The court reiterated that the purpose of the PSA was not to upset the traditional principles of freedom of contract. To which it could be added: despite an unfair effect on the plaintiffs. The Fourth Circuit approved the trial court’s jury instruction requiring plaintiffs to prove defendants’ conduct was likely to affect competition adversely in order to prevail on their claims under § 192(a) of the PSA. Philson v. Goldsboro Milling Co. This opinion is unpublished, perhaps because the court thought no further precedent was needed on this issue. Congressional Experience and Acquiescence An understanding of Stafford v. Wallace, as Chief Justice Taft told, and all of the judicial decisions noted above, becomes clearer the more we see the concerns and actions of Congress in enacting and amending the PSA over the years. The story began with the growing control by five meat-packing conglomerates of the interstate food industries from 1890 to 1921. Despite the Sherman Act and Justice Department actions, by 1916 the Big Five controlled eighty percent of all interstate commerce in the meat market and slaughtered forty percent of all animals used for food in America. In 1917, President Woodrow Wilson directed the Federal Trade Commission to investigate the meat-packing industry to ascertain the facts about restraints of trade and what remedies could be taken. In 1919, the Commission published a six-volume, three-thousand page report, explaining how the Big Five dominated the interstate meatpacking market through anti-competitive monopolistic behavior. The PSA was the response of Congress. The legislative debate surrounding the PSA supports the conclusion that it was designed to combat restraints on trade, with everyone from the Secretary of Agriculture to members of Congress testifying to the need of this statute to promote healthy competition. When asked specifically what kind of “unfair, unjustly discriminatory, or deceptive practices” the statute was designed to combat, one of the authors — Representative Sydney Anderson — cited predatory purchasing patterns, “wiring on,” and “split shipments,” all of which were anticompetitive acts which were restraints of trade. After 1921 and up to 2002, Congress has amended § 192 seven times without making any changes that would affect the many court interpretations cited above. It is reasonable to conclude that Congress accepts the meaning of § 192(a) to require an effect on competition to be actionable because congressional silence in response to circuit unanimity “after years of judicial interpretation supports adherence to the traditional view.” General Dynamics Land Sys., Inc. v. Cline. Role of the Secretary of Agriculture When hearings were held on the original legislation, Henry C. Wallace, Secretary of Agriculture, testified in support of regulation of the meat-packing industry and said: “I believe in absolutely free competition. So far as you can do that by legislation I think it ought to be done[.]” The PSA then provided for complaints of § 192 violations to be brought before the Secretary, who could order the violations to cease. Failure to obey his order was penalized. Appeals went to a circuit court. In 1935 Congress added coverage of live poultry dealers or handlers to meat packers in the PSA. The Secretary is not delegated authority to adjudicate alleged violations of § 192 by live poultry dealers. Enforcement is now in the hands of the Secretary and by private suit in federal court. The Secretary has at times interpreted the PSA to prohibit the forbidden practices regardless of whether competitive injury is caused. The Seventh Circuit has had to correct that interpretation in the cases discussed above. In Armour and Company v. United States the court explained that “Congress gave the Secretary no mandate to ignore the general outline of long-time antitrust policy by condemning practices which are neither deceptive nor injurious to competition nor intended to be so by the party charged.” The Government has appeared here as amicus to contend that the courts have had the PSA wrong and that it should be construed to make unfair practices unlawful without regard to competition. It urges Chevron deference, but that is unwarranted where Congress has delegated no authority to change the meaning the courts have given to the statutory terms, as the Eleventh and Tenth Circuits have held. Decision We conclude that an anti-competitive effect is necessary for an actionable claim under the PSA in light of the Act’s history in Congress and its consistent interpretation by the other circuits. The anti-competitive behaviors of the big meat packing companies of the 1920s motivated Congress to pass the Act, and the Supreme Court in Stafford v. Wallace concluded that the Act was constitutional because of the anti-competitive concerns of Congress. It is those concerns which remain paramount in the Act today and which led so many of the circuits to reach the same conclusion. We agree with the view that referring to outside sources may be inappropriate when determining the meaning of an unambiguous statute. It is appropriate and necessary here, however, where § 192(a) and (b) of the PSA employs the terms “unfair,” “unjust,” “undue,” and “unreasonable.” Which meaning of “fair,” for example, do our dissenters choose in the four columns of Black’s Law Dictionary, Ninth Edition? It is apparent that these words do not “extend to the outer limits of [their] definitional possibilities.” Dolan v. U.S. Postal Service. Rather, their meaning “depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.” Given the clear antitrust context in which the PSA was passed, the placement of § 192(a) and (b) among other subsections that clearly require anticompetitive intent or effect, and the nearly ninety years of circuit precedent, we find too that a failure to include the likelihood of an anticompetitive effect as a factor actually goes against the meaning of the statute. The law rules best by being predictable and consistent. It is predictability that enables people to plan their investments and conduct, that encourages respect for law and its officials by treating citizens equally, and that enables an adversary to settle conflict without going to court in the hope of finding judges who will choose a favored result. Predictability requires the judge deciding a case to set her course to reach the judgment that another, fully informed of the evidence and precedent, would expect. Predictability must be the lodestar. We must not be affected by personal preference, or by different notions of justice or what the law ought to be. How then would an informed person predict the case before us to be decided? He would begin by expecting us to look to the opinions of other circuits for persuasive guidance, always chary to create a circuit split. Curr-Spec Partners, L.P. v. Comm’r; Alfaro v. Comm’r. After understanding the circumstances and concern of those responsible for this statute, he would add all that has been said and held by the Supreme Court and so many circuit courts nearly nine decades since the passage of the PSA, never changed by Congress. So informed, he could not expect a judge to interpret the statute by looking only at the bare words of § 192(a) and (b). Surely he would predict that the next court judgment would be consistent with the judgments of the other circuits. Ruling The order of the district court on the question presented was incorrect. To support a claim that a practice violates subsection (a) or (b) of § 192 there must be proof of injury, or likelihood of injury, to competition. Appendix Packers and Stockyards Act 7 U.S.C. § 192 § 192. Unlawful practices enumerated It shall be unlawful for any packer or swine contractor with respect to livestock, meats, meat food products, or livestock products in unmanufactured form, or for any live poultry dealer with respect to live poultry, to: (a) Engage in or use any unfair, unjustly discriminatory, or deceptive practice or device; or (b) Make or give any undue or unreasonable preference or advantage to any particular person or locality in any respect, or subject any particular person or locality to any undue or unreasonable prejudice or disadvantage in any respect; or (c) Sell or otherwise transfer to or for any other packer, swine contractor, or any live poultry dealer, or buy or otherwise receive from or for any other packer, swine contractor, or any live poultry dealer, any article for the purpose or with the effect of apportioning the supply between any such persons, if such apportionment has the tendency or effect of restraining commerce or of creating a monopoly; or (d) Sell or otherwise transfer to or for any other person, or buy or otherwise receive from or for any other person, any article for the purpose or with the effect of manipulating or controlling prices, or of creating a monopoly in the acquisition of, buying, selling, or dealing in, any article, or of restraining commerce; or (e) Engage in any course of business or do any act for the purpose or with the effect of manipulating or controlling prices, or of creating a monopoly in the acquisition of, buying, selling, or dealing in, any article, or of restraining commerce; or (f) Conspire, combine, agree, or arrange with any other person (1) to apportion territory for carrying on business, or (2) to apportion purchases or sales of any article, or (3) to manipulate or control prices; or (g) Conspire, combine, agree, or arrange with any other person to do, or aid or abet the doing of, any act made unlawful by subdivisions (a), (b), (c), (d), or (e) of this section. . Pub.L. No. 67-51, 42 Stat. 159. . 258 U.S. 495, 513, 42 S.Ct. 397, 401, 66 L.Ed. 735 (1922). . Id. (citing Chicago Bd. of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918)). . 258 U.S. at 513, 42 S.Ct. at 401. . 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518 (1905). . 258 U.S. at 520, 42 S.Ct. at 403. . 105 F.2d 848 (7th Cir.1939). . 286 F.2d 891 (7th Cir.1961). . 308 F.2d 849 (7th Cir.1962). . See Armour & Co. v. United States, 402 F.2d 712 (7th Cir.1968). . 547 F.2d 367 (7th Cir.1976). . 760 F.2d 211 (8th Cir.1985). . 187 F.3d 974 (8th Cir.1999). . 618 F.2d 1329 (9th Cir.1980). . 495 F.3d 1217 (10th Cir.2007). . 410 F.3d 1295, 1304 (11th Cir.2005). . 420 F.3d 1272 (11th Cir.2005). . No. 96-2542, 1998 WL 709324, 1998 U.S.App. Lexis 24630 (4th Cir. Oct. 5, 1998). . See 61 Cong. Rbc. 1864-66 (statement of Rep. Voigt); see also Current Legislation, 22 Colum. L.Rev. 68, 68-69 (1922) (describing the efforts and effect the Big Five had on the interstate food markets). . See 61 Cong. Rec. 1868 (statement of Rep. Voigt) (citing, inter alia, Report of the Federal Trade Commission on the Meat Packing Industry (1919)). . Letter from the FTC to the President (as reprinted in H.R.Rep. No. 66-1297, at 23 (1921)). . See Report of the Federal Trade Commission on the Meat Packing Industry (1919); see also Summary of the FTC Report 31-32 (as reprinted in H.R.Rep. No. 66-1297, at 24 (1921)) (stating that the monopoly of the Big Five “is not a casual agreement brought about by indirect and obscure methods, but a definite and positive conspiracy for the purpose of regulating purchases of live stock and controlling the price of meat ....”). . See, e.g., Meat Packer: Hearing on H.R. 14, H.R. 232, HR. 5034, H.R. 5692 B4ore the H. Comm, on Agrie., 67th Cong. 246 (1921) (statement of Henry C. Wallace, Secretary of Agriculture) ("I believe in absolute, free competition. So far as you can do that by legislation I think it ought to be done[.]”); id. at 26 (statement of Rep. Anderson) (“What this bill seeks to do is prohibit the particular conditions under which monopoly is built up, and to prevent a monopoly in the first place and to induce healthy competition.”); see also 61 Cong. Rec. 1801 (1921) (statement of Rep. Haugen) (stating that “the matters to be dealt with [in the packing industry] are great questions of combinations and monopolies and methods and practices of unfair competition, usually of great magnitude and country wide in their effect”); 61 Cong. Rec. 1863 (statement of Rep. Voigt) ("While there is a large number of meat packers in this country doing an interstate business, it is understood that this legislation is aimed at the so-called Big Five packers [who have] as complete a monopoly of the meat packing business as it is possible for a man or set of men to acquire or that they could wish for.”); 61 Cong. Rec. 1880 (statement of Rep. Hudspeth) (stating "if I understand this bill, if it has any power at all, it puts in the hands of the Secretary of Agriculture power in preventing combinations putting up prices of meat on the hoof.”). . See 61 Cong. Rec. 1888. (statement of Rep. Anderson). The predatory purchasing schemes Representative Anderson described involved packers purchasing goods and livestock at higher-than-market prices until competitors were driven out of business, followed by the packers immediately dropping the prices once the competitors had exited the market. See id. "Split shipments” involved “purchases, whereby, through the interchange of information, the split lots are made to sell at the same price on different markets regardless of how many packers are involved in marketing the purchase.” Methods of Meat Control Used by the Packers, As Set Forth by the Federal Trade Commission, N.Y. Times, Aug. 7, 1919. “Wiring on” involved a practice “whereby a shipper who forwards his live stock from one market to another for the purpose of securing a better price is punished regardless of which packer he sells to in the second market.” Id.; see also Stafford, 258 U.S. 495, 42 S.Ct. at 400, 66 L.Ed. 735. . See Pub.L. 74-272, 49 Stat. 649 (1935); Pub.L. 85-909, § 1, 72 Stat. 1749 (1958); Pub.L. 94-410, § 3, 90 Stat. 1249 (1976); Poultry Producers Financial Protection Act of 1987, Pub.L. 100-173, § 3, 101 Stat. 917 (1987); Food, Agriculture, Conservation, and Trade Act Amendments of 1991, Pub.L. 102-237, § 1008, 105 Stat. 1818, 1898 (1991); Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriation Act of 2000, Pub.L. 106-78, § 912, 113 Stat. 1135, 1205 (1999); Farm Security and Rural Investment Act of 2002, Pub.L. 107-171, § 10502, 116 Stat. 134, 509 (2002). . 540 U.S. 581, 593-94, 124 S.Ct. 1236, 1244-45, 157 L.Ed.2d 1094 (2004). . See Meat Packer: Hearing On H.R. 14, H.R. 232, H.R. 5034, H.R. 5692 Before the H. Comm, on Agrie., 67th Cong. 246 (statement of Henry C. Wallace, Secretary of Agriculture). . 7 U.S.C. § 193(a). . 7 U.S.C. § 209. . 402 F.2d at 722. . Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). . London, 410 F.3d at 1304; Been, 495 F.3d at 1227. . 546 U.S. 481, 486, 126 S.Ct. 1252, 1257, 163 L.Ed.2d 1079 (2006). . Id. . 579 F.3d 391, 399 n. 37 (5th Cir.2009). . 349 F.3d 225, 229 (5th Cir.2003).
EDITH H. JONES, Chief Judge, with whom REAVLEY, JERRY E. SMITH, and OWEN, Circuit Judges, join, concurring: I concur in Judge Reavley’s opinion but write separately to address in more detail the “plain meaning” of the Packers and Stockyards Act of 1921. The words of the Act are, on their face, empty vessels, but this does not leave courts “free to pour a vintage that we think better suits present-day tastes.” United States v. Sisson, 399 U.S. 267, 297, 90 S.Ct. 2117, 2133, 26 L.Ed.2d 608 (1970). Rather, we have a duty to give those words meaning consistent with their statutory and common-law antecedents, which were known well by the Members of the Congress that passed the Act. The words we are asked to interpret were terms of art, and their meanings were fixed by judicial definition and consistent usage. To ignore this evidence would be to turn the plain meaning rule on its head. Read in the proper context, these provisions concern only those business dealings that have an actual or potential effect on competition. As Judge Garza, writing in dissent, states, “Proper statutory analysis begins with the plain text of the statute.” “[I]n interpreting a statute a court should always turn first to one, cardinal canon before all the others .... [Cjourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, this first canon is also the last: ‘judicial inquiry is complete.’ ” Connecticut National Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (citations omitted). That we look primarily to the text, rather than attempt to divine Congress’s intentions otherwise, is the law of this circuit. See, e.g., In re Rogers, 513 F.3d 212, 225-26 (5th Cir.2008) (citing Lamie v. United States Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 1030, 157 L.Ed.2d 1024 (2004)). When the words are ambiguous or vague, however, our inquiry cannot end there. In this case, the language of §§ 202(a) and (b) of the Packers and Stockyards Act of 1921 (codified at 7 U.S.C. § 192) resists any attempt to discern its plain meaning: § 192. Unlawful practices enumerated It shall be unlawful for any packer or swine contractor with respect to livestock, meats, meat food products, or livestock products in unmanufactured form, or for any live poultry dealer with respect to live poultry, to: (a) Engage in or use any unfair, unjustly discriminatory, or deceptive practice or device; or (b) Make or give any undue or unreasonable preference or advantage to any particular person or locality in any respect, or subject any particular person or locality to any undue or unreasonable prejudice or disadvantage in any respect .... “Unfair,” “unjustly discriminatory,” “undue or unreasonable preference”: Read literally, they establish no standard at all. (The Act’s bar on “deceptive practice^],” by contrast, is clearer.) Does this mean that each court and jury must determine, in its unique estimation, what is unfair, unjust, undue, or unreasonable? If so, the law — what is allowed, what prohibited— would essentially become a matter of fact. Any contract within the Act’s ambit would be subject to challenge as putatively “unfair.” Even Judge Garza, who finds the words of §§ 202(a) and (b) to be unambiguous, rejects this result. Unfairness, he suggests, is a question for the trial court to be determined “in the context of industry standards, the economic justifications for the actions, and the motives and actions of those concerned.” Although not illogical, this gloss is also nowhere in the statute. It is in no way “plain” from the statutory text. Presumably, it does not encompass all contracts that are “unfair” or “unreasonable” because they confer some advantage on one party or another. Such a prohibition “would be violative of reason, because it would include all those contracts which are the very essence of trade.” United States v. Trans-Missouri Freight Association, 166 U.S. 290, 351, 17 S.Ct. 540, 563, 41 L.Ed. 1007 (1897) (White, J., dissenting). So by what objective criteria may these concepts be limited? As I explain below, Congress, by its use of legal terms that were well defined at the time, “certainly did not delegate any such free value-choosing role to the courts.” Robert Bork, The Antitrust Parauox 53 (1993). It would be a mistake to assume that the plain meaning rule requires interpretation of the PSA in a linguistic vacuum, ignoring how its terms were used by Congress or understood at the time of the Act’s passage. “Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.” Buckhannon Bd. and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 615, 121 S.Ct. 1835, 1846, 149 L.Ed.2d 855 (2001). It is therefore a strong presumption that adoption of the wording of a statute “carries with it the previous judicial interpretations of the wording.” Carolene Products Co. v. United States, 323 U.S. 18, 26, 65 S.Ct. 1, 5, 89 L.Ed. 15 (1944). In such borrowing, Congress “presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.” Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250, 96 L.Ed. 288 (1952). More poetically, “if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings its soil with it.” Moskal v. United States, 498 U.S. 103, 121, 111 S.Ct. 461, 472, 112 L.Ed.2d 449 (1990) (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). To be sure, this presumption is not inviolable. Its strength varies “with the similarity of the language, the established character of the decisions in the jurisdiction from which the language was adopted, and presence or lack of other indicia of intention.” Carolene Products, 323 U.S. at 26, 65 S.Ct. at 5. The Interstate Commerce Act of 1887 (“ICA”) and the Federal Trade Commission Act of 1913 (“FTCA”) provided the template for what became the PSA. The language of the PSA is more than just similar to the language of these predecessors; it follows their contours precisely. Consider the first paragraph (of two) of § 3 of the ICA: That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. That pattern is repeated in § 202(b) of the PSA: It shall be unlawful for any packer to ... (b) Make or give, in commerce, any undue or unreasonable preference or advantage to any particular person or locality in any respect whatsoever, or subject, in commerce, any particular person or locality to any undue or unreasonable prejudice of disadvantage in any respect whatsoever. One concerned trains; the other, meat-packers. Otherwise, they are identical. Similarly, § 202(a) of the PSA follows both the ICA and FTCA. That section prohibits “any unfair, unjustly discriminatory, or deceptive practice or device in commerce.” The term “unjustly discriminatory” can be traced to § 2 of the ICA, which defines and prohibits “unjust discrimination.” The entirety of the section, as well as the specific terms “unfair” and “deceptive,” are a slight variation on § 5 of the FTCA: “That unfair methods of competition in commerce are hereby declared unlawful.” Not only is the language of the PSA nearly identical to that of its predecessors, but this choice of terms was deliberate. Their meaning had been firmly established in numerous court decisions that placed definite limits on the authority of, respectively, the Interstate Commerce Commission and Federal Trade Commission. By 1921, the Supreme Court had spoken repeatedly on the ICA, FTCA, and other laws of Congress regulating competition— that is, the field of antitrust. The “character” of the terms borrowed for the PSA was, in the main, well-settled. Take “unfair,” the meaning of which had been the subject of the Court’s 1920 opinion in Federal Trade Commission v. Gratz: The words “unfair method of competition” are not defined by the statute and their exact meaning is in dispute. It is for the courts, not the commission, ultimately to determine as a matter of law what they include. They are clearly inapplicable to practices never heretofore regarded as opposed to good morals because characterized by deception, bad faith, fraud, or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly. The act was certainly not intended to fetter free and fair competition as commonly understood and practiced by honorable opponents in trade .... Nothing is alleged which would justify the conclusion that the public suffered injury or that competitors had reasonable ground for complaint. All question of monopoly or combination being out of the way, a private merchant, acting with entire good faith, may properly refuse to sell, except in conjunction, such closely associated articles as ties and bagging. If real competition is to continue, the right of the individual to exercise reasonable discretion in respect of his own business methods must be preserved. Federal Trade Commission v. Gratz, 253 U.S. 421, 427-28, 40 S.Ct. 572, 575, 64 L.Ed. 993 (1920). “Unfair” was not an inkblot in 1921. Congress could not have expected, then, that its use of the term would occasion a free-ranging inquiry into the equities of business practices; rather, Congress intended, and made plain by its choice of language, that injury to competition would be an element of the inquiry. The meaning of “undue or unreasonable preference” and the associated terms and concepts from § 3 of the ICA was, if anything, even more definite. These, too, incorporated the concept of competitive injury. Surveying the Supreme Court’s cases, Justice Owen Roberts described its consistent application of the term from 1896 onwards: The theory of the act is that the carriers in initiating rates may adjust them to competitive conditions, and that such action does not amount to undue discrimination; Texas & Pacific Ry. Co. v. Interstate Commerce Commission, 162 U.S. 197, 16 S.Ct. 666, 40 L.Ed. 940 [(1896)]. There the charging of rates on import traffic moving from a port on through bills of lading, much lower than those fixed for domestic transportation, was held not to amount as matter of law to discrimination forbidden by section 3. The carrier showed, in justification of the lower rates on import traffic, that, unless these were permitted, water and rail-and-water competition would divert the traffic away from the port of New Orleans and the carrier’s lines extending from that port. Since that decision it has been recognized that export and import shipments, although not made on through bills, might lawfully be transported at rates below those charged for domestic traffic between the same points. Interstate Commerce Comm. v. Baltimore & Ohio R.R. Co., 145 U.S. 263, 276, 12 S.Ct. 844, 36 L.Ed. 699 [(1892)]; Interstate Commerce Comm. v. Alabama Midland Ry. Co., 168 U.S. 144, 164, 18 S.Ct. 45, 42 L.Ed. 414 [(1897)]; Louisville & N.R. Co. v. Behlmer, 175 U.S. 648, 671, 20 S.Ct. 209, 44 L.Ed. 309 [(1900)]; Inter-Mountain Rate Cases, 234 U.S. 476, 483-485, 34 S.Ct. 986, 58 L.Ed. 1408 [(1914)]. Texas & P. Ry. Co. v. United States, 289 U.S. 627, 636-37, 53 S.Ct. 768, 771-72, 77 L.Ed. 1410 (1933). This was not, however, an innovation of the ICA but longstanding practice under the laws of Great Britain on which the ICA, and by extension the PSA, was patterned: In construing statutory provisions forbidding railway companies from giving any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatever, the English courts have held, after full consideration, that competition between rival lines is a fact to be considered, and that a preference or advantage thence arising is not necessarily undue or unreasonable. Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U.S. 144, 164, 18 S.Ct. 45, 48, 42 L.Ed. 414 (1897) (citations omitted). From the earliest cases, then, the Court recognized that the ICA was “not designed to prevent competition between different [rail] roads” and that actions undertaken in furtherance of such competition were therefore not undue or unreasonable preferences. Id. at 164-65, 18 S.Ct. at 48; see also Interstate Commerce Commission v. Chicago Great Western Ry. Co., 209 U.S. 108, 119, 28 S.Ct. 493, 495, 52 L.Ed. 705 (1908) (“in fixing their own rates, they [railroads] may take into account competition with other carriers, provided only that the competition is genuine, and not a pretense”). As for “unjustly discriminatory,” used in § 202(a) of the PSA, it was also a term of art, borrowed from § 2 of the ICA. Any independent meaning that it bears, however, is somewhat obscured by the tendency of courts to treat it as a creative variation on “undue and unreasonable preference,” thus reading §§ 2 and 3 of the ICA as one. But there were exceptions. In Chicago Great Western Ry. Co., the court considered the term apart from the language of § 3. The railway had, in seeming contravention of the statutory text, charged higher rates for the shipment of livestock than for dressed meats and prepared products (known as “packing-house products”). The ICC determined this to be a violation of both §§ 2 and 3. The Supreme Court rejected that result, holding that the railway’s honest competitive motive precluded a finding of unjust discrimination: An honest and fair motive was the cause of the change in rates, honest and fair on the part of the Great Western in its effort to secure more business, and equally honest and fair on the part of the other railway companies in the effort to retain as much of the business as was possible. In other words, this competition eliminates from the case an intent to do an unlawful act, and leaves for consideration only the question whether the rates as established do work an undue preference or discrimination .... Chicago Great Western Ry. Co., 209 U.S. at 122, 28 S.Ct. at 498. As further evidence that “unjust discrimination” is that which injures competition, the court held that, against the backdrop of a carrier’s near-absolute right to reduce rates, the ICC was empowered to prevent “excessively low,” or predatory, rates through its power to prevent unjust discrimination under § 2. Skinner & Eddy Corp. v. United States, 249 U.S. 557, 566, 39 S.Ct. 375, 378, 63 L.Ed. 772 (1919); id. at 567-68, 39 S.Ct. at 379 (§ 2 weighs against a proffered reading of the ICA that “would rather ensure monopoly than preserve competition”). Thus, it is apparent not only that the terms of art employed §§ 202(a) and (b) of the PSA were clearly defined in jurisprudence, but also that none could be read as prohibiting legitimate competitive activity. Congress knew that. The report of the House Committee on Agriculture which accompanied the PSA demonstrates Congress’s reliance on decisions construing the ICA and FTCA. Of the eight pages of the report concerning the PSA’s meatpacker provisions, six-and-a-half consist of a detailed exposition of Supreme Court decisions on the meaning and constitutionality of these earlier acts. H.R. Rep. No. 67-77, at 2-10 (1921). The decisions cited include: Interstate Commerce Commission v. Louisville & N.R. Co., 227 U.S. 88, 91, 33 S.Ct. 185, 187, 57 L.Ed. 431 (1913) (administrative decisions are reviewable by the courts and whether rates are unreasonable is “a matter of law”); Southern Pac. Co. v. Interstate Commerce Commission, 219 U.S. 433, 449-50, 31 S.Ct. 288, 293, 55 L.Ed. 283 (1911) (a rate change is not “unreasonable” merely because it may damage the interests of a rail customer); Federal Trade Commission v. Gratz, 253 U.S. 421, 428, 40 S.Ct. 572, 575, 64 L.Ed. 993 (1920) (no “unfair method of competition” under the FTCA when firm engaged in tying but it was not “alleged that they held a monopoly ... or had ability, purpose or intent to acquire one”); Interstate Commerce Commission v. Diffenbaugh, 222 U.S. 42, 46, 32 S.Ct. 22, 24, 56 L.Ed. 83 (1911) (despite the “permissive” phrasing of the prohibition on “any undue or unreasonable preference or advantage,” the ICA “does not attempt to equalize fortune, opportunities, or abilities”); Skinner & Eddy Corp. v. United States, 249 U.S. 557, 565-66, 39 S.Ct. 375, 378, 63 L.Ed. 772 (1919) (“the main source of the commission’s influence to prevent excessively low rates”- — • e.g., those intended to effect “the elimination of water competition”- — -“lies in its power to prevent unjust discrimination”). That Congress was deeply familiar with the Supreme Court’s competition jurisprudence is beyond doubt. And that Congress intended to adopt and apply large swaths of existing competition law to the packing industry is also apparent. The legislative history of the PSA is voluminous and (as for most laws) not entirely unambiguous, in certain respects. Where it lacks ambiguity, however, is in its reflection of the usage and plain meaning of words like “unfair” and “unreasonable” as used in § 202. As Judge Reavley’s opinion ably demonstrates, the immediate purpose of the PSA was to prevent the abuse of monopoly and restraint of trade by the “Big Five” meat-packers. See, e.g., Committee on Agriculture of the House of Representatives, Hearing on Meat Packers, May 2, 1921, at 12 (discussing, in brief, “the necessity for this legislation”: preventing the packers from “combination, apportionment of territory and of markets, as well as the oppression of competitors”). Achieving this purpose, supporters stated, would ultimately aid farmers and growers and reduce the price of food for consumers. See, e.g., Hearing on Meat Packers, at 54 (statement of National League of Women Voters); H.R. Rep. 85-1048, at 1 (1957). The means to these ends, it has been recognized, was to improve the competitive environment: The act provides that meatpackers subject to its provisions shall not engage in practices that restrain commerce or create a monopoly. They are prohibited from buying or selling any article for the purpose of or with the effect of manipulating or controlling prices in commerce. They are also prohibited from engaging in any unfair, deceptive, or unjustly discriminatory practice or device in the conduct of their business, or conspiring, combining, agreeing, or arranging with other persons to do any of these acts. Id. In sum, the evidence of Congress’s intent, while not itself dispositive, confirms, and does not repudiate, the view that the broad words of § 202 were to be considered in light of their established meanings, as terms of art limited to competitive wrongs. The structure of the statute does not countervail. The dissent suggests that, because §§ 202(c), (d), and (e) explicitly prohibit certain acts that have anticompetitive effect, (a) and (b) must strike at something different, apart from injury to competition. This construction is necessary, says the dissent, to prevent subsections (a) and (b) from swallowing, and rendering superfluous, subsections (c), (d), and (e). Further, it argues that subsection (e), rather than (a) and (b), is the true catch-all for anticompetitive behavior. That construction does not accord with the text of the statute. Subsection (c) proscribes the apportioning of supply in restraint of trade. Both subsections (d) and (e) proscribe manipulation of prices, and all three subsections proscribe specific actions that may create a monopoly. These subsections do not reach facts that may constitute certain familiar antitrust violations, e.g., refusals to deal, boycotts, non-price restraints such as credit or quality terms, tying agreements, even mergers or joint ventures. They simply do not cover the waterfront of anticompetitive behavior. Moreover, if (a) and (b) are to be read as literally as the dissent suggests, they seem to swallow (c), (d), and (e) and render those provisions superfluous. Similarly, if subsection (e) is a catch-all for anticompetitive behavior, it would render superfluous subsections (e) and (d). The more natural reading, which avoids these infirmities, is that subsections (a) and (b) are catch-all provisions, intended to cover whatever actions create an actual or potential restraint of trade. Subsections (c), (d), and (e) prohibit specific practices only if they adversely affect competition, while (a) and (b) still deal with the marketplace but in a broader way than (c), (d), and (e). None of the text is superfluous. Because of their provenance, the words of §§ 202(a) and (b) of the Packers and Stockyards Act are susceptible to a plain meaning: To prove that a practice is “unfair,” “unjustly discriminatory,” or an “undue or unreasonable preference,” a plaintiff must demonstrate an actual or potential adverse impact on competition. For this reason, as well as those identified by Judge Reavley, I believe that this court should decline this invitation to upset the Act’s long-established meaning. . As amended and codified. The amended text differs in no relevant respect from that enacted in 1921. See Packers and Stockyards Act of 1921, Pub.L. No. 67-51, § 202, 42 Stat. 159, 161 (1921); Pub.L. 74-272, 49 Stat. 648, 649 (1935) (amending § 202 to reach live poultry dealers and handlers); Pub.L. 85-909, § 1, 72 Stat. 1749 (1958) (amending § 202 to reach, inter alia, activities of packers relating to livestock and poultry). . See, e.g., A.L.A. Schechter Poultry Corporation v. United States, 295 U.S. 495, 530-33, 55 S.Ct. 837, 843-44, 79 L.Ed. 1570 (1935) (the term “fair competition” does not provide an “adequate definition of the subject to which the codes [promulgated under § 3 of the National Industrial Recovery Act] are to be addressed”). . Gratz was overruled by Federal Trade Commission v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972), on the basis of the FTC Act’s legislative history. That fact has little relevance to the established meaning of "unfair” at the time of the PSA’s enactment. Further, the grounds for S&H— that the FTC Act was intended by Congress as both an antitrust and a consumer-protection statute — do not apply to the PSA, which regulated the dealings of packers, and later of poultry processors, that operated at the manufacturer and wholesale levels. For these reasons, S&H is inapplicable. . Thus, it came to be that carriers could, in certain competitive circumstances, charge lower tariffs for longer than for shorter distance over the same track, despite § 4’s apparent prohibition on this practice. The court's explanation for this seeming departure from the statutory text is instructive: "In considering the act comprehensively it was pointed out that the generic provisions against preference and discrimination expressed in the 2d and 3d sections of the act were all-embracing, and were therefore operative upon the 4th section as well as upon all other provisions of the act.” United States v. Atchison, T. & S.F.R. Co. (Inter-Mountain Rate Cases), 234 U.S. 476, 482, 34 S.Ct. 986, 990, 58 L.Ed. 1408 (1914). This general rule was animated, and also limited, by the competitive-effects test the court considered inherent in §§ 2 and 3: [W]here competitive conditions authorized carriers to lower their rates to a particular place, the right to meet the competition by lowering rates to such place was not confined to shipments made from the point of origin of the competition, but empowered all carriers, in the interest of freedom of commerce and to afford enlarged opportunity to shippers, to accept, if they chose to do so, shipments to such competitive points at lower rates than their general tariff rates: a right which came aptly to be described as "market competition” because the practice served to enlarge markets and develop the freedom of traffic and intercourse. Id. at 483, 34 S.Ct. at 990. Congress subsequently amended the ICA to ratify this approach, as concerned competition between the railroads and cargo vessels. See Pub.L. No. 61-218, § 8, 36 Stat. 539, 547-48 (1910). . This was also the understanding of the Congress that amended the PSA to reach live poultry sales, as stated in a statutory finding. See Pub.L. 74-272, 49 Stat. 648 (1935) (stating the necessity of regulation to curb practices that resulted in producers "receiving prices far below the reasonable value of their live poultry” and "unduly and arbitrarily enhancing the cost to the consumers” and that were therefore an "undue restraint and unjust burden on interstate commerce”). . In this, the dissent abandons, in part, its hyper-literalism. To the dissent, § 202(e)'s prohibition on acts that have the effect of "restraining commerce” is merely a “ 'catchall' for the competitive injury sections.” But read literally, it is far more than that. The term "restraining commerce” is "broad enough to embrace every conceivable contract or combination which could be made concerning trade or commerce or the subjects of such commerce.” Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 60, 31 S.Ct. 502, 516, 55 L.Ed. 619 (1911). The simple formation of a partnership does, in a literal sense, restrain commerce: the partners agree not to compete against one another. Few would argue, though, that every partnership, or indeed every commercial contract, is a "restraint on commerce.”
EMILIO M. GARZA, Circuit Judge, with whom E. GRADY JOLLY, RHESA H. BARKSDALE, DENNIS, PRADO, JENNIFER W. ELROD and HAYNES, Circuit Judges, join, dissenting: This appeal presents a single narrow question, certified to us by the district court pursuant to 28 U.S.C. § 1292(b): whether a plaintiff must prove an adverse effect on competition to prevail in a suit alleging a violation of Packers and Stockyards Act Sections 202(a) and (b), 7 U.S.C. § 192(a) and (b), (“PSA”). The PSA provides: It shall be unlawful for any packer or swine contractor with respect to livestock, meats, meat food products, or livestock products in unmanufactured form, or for any live poultry dealer with respect to live poultry, to: (a) Engage in or use any unfair, unjustly discriminatory, or deceptive practice or device; or (b) Make or give any undue or unreasonable preference or advantage to any particular person or locality in any respect, or subject any particular person or locality to any undue or unreasonable prejudice or disadvantage in any respect; or (c) Sell or otherwise transfer to or for any other packer, swine contractor, or any live poultry dealer, or buy or otherwise receive from or for any other packer, swine contractor, or any live poultry dealer, any article for the purpose or with the effect of apportioning the supply between any such persons, if such apportionment has the tendency or effect of restraining commerce or of creating a monopoly; or (d) Sell or otherwise transfer to or for any other person, or buy or otherwise receive from or for any other person, any article for the purpose or with the effect of manipulating or controlling prices, or of creating a monopoly in the acquisition of, buying, selling, or dealing in, any article, or of restraining commerce; or (e) Engage in any course of business or do any act for the purpose or with the effect of manipulating or controlling prices, or of creating a monopoly in the acquisition of, buying, selling, or dealing in, any article, or of restraining commerce; or (f) Conspire, combine, agree, or arrange with any other person (1) to apportion territory for carrying on business, or (2) to apportion purchases or sales of any article; or (3) to manipulate or control prices; or (g) Conspire, combine, agree, or arrange with any other person to do, or aid or abet the doing of, any act made unlawful by subdivisions (a), (b), (c), (d), or (e) of this section. 7 U.S.C. § 192 (emphasis added). Because the unambiguous language of § 192 leads me to believe that § 192(a) and (b) do not require a showing of competitive injury, I respectfully dissent. I Plaintiffs-Appellees Cody Wheeler, Don Davis, and Davey Williams (together, the “Growers”) are farmers who grow chickens known as “broilers” for Defendant-Appellant Pilgrim’s Pride Corporation (“PPC”), a processor and dealer referred to as an “integrator” in the chicken industry. The Growers and PPC operate within a contractual relationship whereby PPC provides the Growers with the chicks, feed, and supplies required to raise chickens. In exchange, the Growers care for the chickens until they reach maturity, at which time they are returned to PPC. The chicks, maturing chickens, feed, and medicine remain the property of PPC at all times. This is known as the “grow-out” process. It takes approximately two months to grow-out a flock. The Growers’ operations (and the operations of other growers) are geographically clustered into areas called “complexes.” PPC compensates the Growers under a “tournament system.” In essence, PPC ranks the Growers against one another and against the other growers operating in their complex. PPC then compensates the Growers based on the quality of their broilers, the number that survive the grow-out process, and the amount of feed and supplies the Growers used. At least one grower operates under a different system from the Growers. Lonnie “Bo” Pilgrim (“Mr. Pilgrim”), PPC’s founder and chairman, purchases chicks, feed, and supplies from PPC rather than having them consigned to him. Operating in a different complex from the Growers, Mr. Pilgrim then raises the chickens at his farm and sells them back to PPC. Rather than compensating Mr. Pilgrim under the tournament system, PPC pays Mr. Pilgrim the lesser of a weekly quoted market price or 102% of his costs. According to the Growers’ pleadings, Mr. Pilgrim’s arrangement yields him higher compensation than they receive. The Growers further allege that PPC refused to offer them growing arrangements similar to Mr. Pilgrim’s. The Growers sued PPC under the PSA. Specifically, the Growers alleged that PPC’s refusal to afford them an opportunity to operate under the same terms as an insider, is “unfair and unjustly discriminatory” and affords Mr. Pilgrim an “undue or unreasonable preference or advantage” in violation of § 192(a) and (b). The Growers raised additional claims against PPC, as well, that need not be described in detail for the purposes of the appeal. PPC moved for summary judgment arguing that the Growers did not allege an adverse effect on competition, as required to prevail under § 192(a) and (b). The district court found no such requirement in the PSA and denied the motion for summary judgment. Pursuant to 28 U.S.C. § 1292(b), the district court then entered an order certifying the following issue for appeal: whether a plaintiff must prove an adverse effect on competition in order to prevail under 7 U.S.C. § 192(a) and (b). A panel of this court affirmed the district court’s order. Wheeler v. Pilgrim’s Pride Corp., 536 F.3d 455 (5th Cir.2008). The panel held that “the language of sections 192(a)-(b) is plain, clear, and unambiguous, and ... it does not require the Growers to prove an adverse effect on competition.” Id. at 460. It also addressed the PSA’s legislative history, not because it was necessary or proper in order to construe the statute, but because it was the panel’s “point of departure” from other circuit courts that have held an adverse effect on competition is required. Id. at 458, 461-62. The panel concluded that the legislative history does “not paint a clear picture of Congress’s intent,” id. at 462, and that it may be read to support the proposition that § 192(a) and (b) do not require a plaintiff to prove an adverse effect on competition. Id. at 461. Judge Reavley dissented stating: Sections 192(a) and (b) of the Packers and Stockyards Act may be read differently, and this panel majority reading is certainly reasonable. However, I incline to the meaning given “unfair” by the Tenth Circuit in Been v. O.K. Indus. Inc., 495 F.3d 1217 (10th Cir.2007) and, in any event, would not create a circuit split after so many contrary circuit decisions over many years. Id. at 462-63 (Reavley, J., dissenting). PPC petitioned the court for rehearing en banc. The court granted the petition and ordered that the appeal be reheard en banc. The parties and a number of amici curia submitted briefs. Following the en banc rehearing, the court voted to reverse the district court, holding that a competitive injury must be shown in order to state a claim under § 192(a) and (b). Because I believe that no such showing is required, I dissent. II Proper statutory analysis begins with the plain text of the statute. See Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193, 127 S.Ct. 2352, 2356, 168 L.Ed.2d 85 (2007) (“We begin, as always, with the text of the statute.”) (citation omitted); Watt v. Alaska, 451 U.S. 259, 265, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981) (“The starting point in every case involving construction of a statute is the language itself.”) (quotation omitted); see also In re Rogers, 513 F.3d 212, 225 (5th Cir.2008). “It is well established that when a statute’s language is plain, the sole function of the courts ... is to enforce it according to its terms.” Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (internal quotation marks and citation omitted). Section 192(a) prohibits “unfair, unjustly discriminatory, or deceptive” practices or devices. Section 192(b) prohibits “undue or unreasonable” preferences, advantages, or disadvantages. Neither section contains language limiting its application to only those acts or devices, which have an adverse effect on competition, such as “restraining commerce.” Under well-settled principles, courts must refrain from reading additional terms, such as those that would require an adverse effect on competition, into these sections. See Lamie, 540 U.S. at 538, 124 S.Ct. 1023 (holding that if the text evinces “a plain, nonabsurd meaning” then the court should not “read an absent word into the statute”); see also Bates v. United States, 522 U.S. 23, 29, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997) (holding that courts “ordinarily” should “resist reading words or elements into a statute that do not appear on its face”). The remaining parts of § 192 further support the view that subsections (a) and (b) do not require a plaintiff to prove