ORLANDO, Fla. (Legal Newsline) – Class action lawyers are copying PETA’s work – and each other’s – to attack us in court, an organic egg company is arguing.
Pete and Gerry’s Organics filed a motion to dismiss a Florida class action on June 27, noting the lawyers in that case have copied a lawsuit filed in New York federal court April 2021. The suits allege poor treatment of chickens despite claims the eggs are from free range birds.
The firm Bursor & Fisher filed the New York case, which is still pending after a judge denied the defendant’s motion to dismiss. The Florida case is being pursued by William Wright of West Palm Beach and Telfer, Faherty & Anderson of Titusville.
“This copycat complaint is a word-for-word replication – typos and all – of allegations previously made in a putative class action… itself a copycat of dismissed claims made by consumers regarding the advertising and labeling of Nellie’s Free Range Eggs,” the motion to dismiss says.
“As a result, it contains several of the same flaws of those complaints, including a lack of specificity that fails to meet the necessary pleading standard for fraud.”
People for the Ethical Treatment of Animals teamed with Wigdor LLP to file the first case against Pete And Gerry’s in 2019. PETA claimed to have footage of up to 20,000 hens being housed in sheds that were so small they couldn’t spread their wings or make their way to an outdoor space that Nellie’s advertises.
“Such confinement leads to stress and trauma that in turn causes them further pain in the form of fighting, feather pecking and self-mutilation,” PETA’s suit said.
But the case wasn’t certified as a class action before it apparently settled in May 2020. The New York case picked up the class action baton a year later, and the Florida case followed.
Pete and Gerry’s argued in its recent motion to dismiss the Florida case that its advertisements about its treatment of chickens are protected by the doctrine of puffery and that the plaintiff’s claims aren’t true.
“(T)he challenged statements are accurate; Plaintiff does not allege any indication that the statements on the Nellie’s packaging were false,” the motion says. “Indeed, Nellie’s labeling comports with federal labeling requirements in similar industries.
“But even to the extent that Plaintiff argues about the interpretation of Nellie’s accurate statements, the challenged statements can be understood to be nonactionable puffery, because a reasonable consumer would not understand them to be making objective factual claims about Nellie’s hens that could be proven true or false.”
Judge Vincent Briccetti, the judge handling the New York case, rejected the puffery argument on Feb. 28.
“Plaintiff also plausibly alleges the term ‘free-range’ is not mere puffery. According to plaintiff, ‘free-range’ is an affirmative claim about a product’s qualities—i.e., that the eggs were produced by hens with extended access to indoor and outdoor space—and is, therefore, not ‘an exaggeration or overstatement expressed in broad, vague, and commendatory language,’” he wrote.
The firm Preti Flaherty is representing Pete and Gerry’s.