‘New Dairy’ announced as winning bidder for all assets June 15. UPDATE: Sale hearing rescheduled a second time, now set for June 23 at 11 a.m. EDT in Delaware Bankruptcy Court. Milk cooperative SMI files post-auction objection, noting several irregularities with the auction process that had gone private in final days. SMI asserts that their bid on the Winterhaven, Florida plant was not appropriately considered, that they were ignored in the “behind the scenes” negotiations between Borden (debtor) and several other bidders, and that potentially other bidders were also left out of the process due to an alleged lack of transparency and lack of contract and other information needed to formulate appropriate bids.

By Sherry Bunting, Farmshine, June 19, 2020 edition

WILMINGTON, Del. — A team led by Gregg Engles — the transformative ex-CEO of what was modern-day Dean Foods — is poised to gain control of Borden Dairy Company, which includes six of the 11 plants the DOJ required Engles’ Suiza / Dean merger to divest in 2001 to then DFA-led National Dairy.

Pending bankruptcy court approval, the Borden Dairy Company and its iconic mascot Elsie will be purchased by New Dairy OpCo, LLC. The company referred to as “New Dairy” in court documents was formed June 1 by KKR & Co., a major creditor in the Borden bankruptcy joining forces with Capitol Peak Partners, a firm founded by Engles and his partner Ed Fugger, a former executive with Engles in the 2012 Dean spin off WhiteWave.

Borden named New Dairy as the successful bidder in bankruptcy court documents filed Monday afternoon, June 15.

A sale hearing is rescheduled for Thursday, June 19 (now rescheduled to June 23) in the U.S. Bankruptcy Court of Delaware with Judge Christopher Sontchi presiding.

The price to acquire Borden was not disclosed, but creditor KKR offered its sizable debt in the purchase of the assets, according to court documents.

The assets include Borden’s 12 plants in nine states from Ohio through the deep South and Southeast, 91 branches and other assets, as well as the Borden mascot Elsie.

Named by Borden as next-high bidder was GH Acquisitions and Prairie Farms Dairy. On May 1, Prairie Farms, the Illinois-based cooperative marketing products in 14 states, had successfully purchased eight former Dean Foods plants as part of the Southern Foods Group bankruptcy in Houston.

Sources indicate that if the Borden sale to New Dairy is approved by the bankruptcy court Friday, Gregg Engles is the likely new chairman.

Engles, a 1980s Dallas-based ice company consolidator has been referred to as “the great consolidator” turned “milkman to the nation.” He has been credited in various writings with the transformation and consolidation of the fluid milk business, a process that began when he and his partners purchased Suiza Dairy in San Juan, Puerto Rico in the early 1990s.

Engles built Suiza up to over 60 plants by methodically buying the leading plant in a region and those around it to streamline at a time when Wal-Mart and other companies were consolidating the retail grocery sector.

In 2001, Dallas-based Suiza was the largest milk company acquiring the number two Chicago-based Dean Foods. The merged companies operated under the Dean Foods name, and when Howard Dean retired in 2002, Engles became chairman and CEO of the new empire, including the Silk plant-based beverages Engles purchased shares of in 2001 and Dean wholly owned and began expanding in 2002.

The 2001 Suiza / Dean merger, incidentally, led the Department of Justice (DOJ) to require divestiture of about 10% of the two companies’ combined 100-plus milk plant holdings. The 11 identified plants were purchased by National Dairy Holdings, an investor group led by Dairy Farmers of America (DFA), which had 50% ownership at the time it acquired the Dean-divested plants.

By 2009, DFA had over 87% ownership of National Dairy LLC, which had grown to 18 plants with Borden, Dairy Fresh, Flav-O-Rich, Meyer Dairy, Dairymens, Velda Farms and Coburg Dairy brands, and that year sold to Mexico’s largest processor Grupo Lala.

In 2016, Lala spun off National Dairy as Borden Dairy in its new U.S. division through acquisition of Laguna Dairy. In 2017, the Borden Dairy Company transferred to its major investor and current owner ACON Investments.

Six of the 11 plants from the 2001 Dean / Suiza divestiture (two in Florida, one in Kentucky, one in Ohio, one in South Carolina and one in Alabama) are a core of present-day Borden’s 12 plants. National Dairy is also listed as one of the associated legal entities that together comprise the Borden Dairy Company Chapter 11 bankruptcy reorganization filed Jan. 5, 2020 in Wilmington, Delaware.

Both Dean Foods and Borden Dairy Company (National Dairy) have been headquartered in Dallas, Texas since 2001-02.

According to Capitol Peak’s website, where a colorful and complex graphic depicts 30 years of Engles’ experience in dairy industry acquisitions, mergers, capital structure, category expansions and spin offs, Engles not only consolidated the fluid milk industry, but also was instrumental in expanding organic and plant-based brands. These were combined and spun off as standalone WhiteWave in 2012 with Dean retaining a majority interest.

That’s the point in time when Engles left Dean Foods to be chairman and CEO of WhiteWave, which he later sold to Danone for $12.5 billion in 2017 — the year Engles, who sits on the Danone board today, founded Capitol Peak, the entity that has now teamed up with KKR to buy Borden.

At the time of his departure from Dean Foods in 2012, a New York Times article revealed Engles earned as much as $156 million across the post-merger 2002-12 decade with Dean.

Engles’ tenure with Dean Foods also saw the filing of both the Southeast and Northeast class-action Antitrust Lawsuits that alleged anti-competitive behavior between then Dean CEO Engles and then DFA CEO Gary Hanman. Plaintiff dairy farmers alleged the anti-competitive market behavior caused economic losses and structural change that restricted market access as DFA followed a parallel course, building its national cooperative business in a similar regional merge-acquire-streamline fashion as Dean did with milk plants and companies.

According to biographies about Engles, small family-owned dairy companies were attracted to sell to Dean Foods where some could continue to operate with access to capital and technologies. The same has been said by smaller regional milk cooperative members over the years, where a merger with DFA was attractive due to promises of facility upgrades. Not always did those promises come true, and often those markets were swallowed and absorbed.

Both antitrust cases were eventually settled separately by defendants Dean Foods and DFA / DMS. However, a civil case brought in 2016 by farmers who requested exemption from the Northeast “class” is currently headed to jury trial in Vermont vs. defendant DFA / DMS.

The other half of the Borden buying equation — KKR — has a history with the Borden name.

According to Borden’s website and elsewhere, KKR (Kohlberg Krvais Robers), a global investment firm headquartered in New York, had purchased the original Borden Inc. in 1995 for $2 billion and sold off the varied conglomerate in pieces by the time the landmark Suiza / Dean merger occurred in 2001.

Borden as a brand, and Elsie the cow, no longer autonomous, were still popular but faded from the spotlight. DFA began using the brand for cheese, and in 2009, came out with Borden Essentials, including a “Kid-Builders” cheese line. DFA still uses the Borden brand for cheese today.

As noted, the present-day Borden fluid milk and cream business that is being sold in bankruptcy, traces its current business genesis to the April 2001 formation of National Dairy — the group of investors led by DFA to purchase Crowley and Kemps (Marigold), and later that year (November) the 11 plants divested from the Dean / Suiza merger to satisfy the DOJ.

In 2004, HP Hood acquired Kemps and Crowley from National Dairy (with Hood later trading Kemps back to DFA). Other mergers, acquisitions and spin offs as mentioned above eventually left six of the 11 Dean-divested plants among the core of what is now the Borden Dairy Company.

Borden’s current CEO Tony Sarsam, who took the helm in March 2018, was vocal a year ago in a Food Dive article about the company’s renewed direction to refresh Borden’s branding, bring research and marketing to innovation in the fluid milk sector with a commitment to traditional dairy.

Over the past year, Borden come out with new messaging, reintroduced its mascot Elsie to the public with a modern day twist, and launched new products like the “Kid-Builders” line of 2% fat, no sugar added, flavored milks in attractive individual serving chugs for children as well as new whole milk flavors inspired by the Texas State Fair.

In fact, when Borden filed for Chapter 11 bankruptcy protection in January, the company stated in press releases its intention to come out of the restructure stronger. At one point in the concurrent Dean Foods bankruptcy sale, investors and creditors even looked at ways to have Borden buy Dean. A sale of Borden was not on the radar.

Most in the industry could see the handwriting on the wall for Dean Foods as the large national commodity model had been dealt a stiff blow by Wal-Mart on the one hand, consumers seeking ‘local’ regional brands on the other hand and intrusion by non-dairy alternatives reducing volume to some degree in the background.

But Borden’s bankruptcy filing in January caught many by surprise, as did the sale and auction announcement filed with the court May 5, just four days after the Dean sale was consummated primarily to DFA.

In April, Borden had applied for milk contracts through the USDA Coronavirus Food Assistance Program (CFAP), and on May 12, USDA awarded Borden the lion’s share of the contracts — to the tune of $147 million – to distribute milk through the CFAP Farmers to Families Food Box Program May 15 through June 30.

Even so, on May 22, Borden’s auction procedures were announced. The auction closed June 13, with New Dairy announced June 15 as successful bidder, pending bankruptcy approval.

There are no reports at this juncture of any missed payments to Borden direct dairy producers. Several small claims have been filed on the bankruptcy docket by DFA for Borden milk testing at DFA-owned laboratories, and substantial claims have been filed from milk transport companies, including those like NDH Transport that are now part of the overall Borden Dairy Company bankruptcy restructure.

As for federal order pool payments, USDA AMS indicated this week that they will be filing proofs of claim by the July 3 deadline for monies due the Producer Settlement Funds and other FMMO and Dairy Research and Promotion-related accounts, but the amounts were not disclosed. Substantial claims have been filed for these payments in the separate Dean Foods bankruptcy.

Borden’s 12 milk plants are located in Dothan, Alabama; Decatur, Georgia; Miami and Winter Haven, Florida; London, Kentucky; Lafayette, Louisiana; Hattiesburg, Missouri; Cleveland, Ohio; North Charleston, South Carolina; and Austin, Dallas and Conroe, Texas. They are predominantly fluid milk plants, also making cream, condensed and cultured dairy products.

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