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Bottom Line: Pete and Gerry’s asks for PETA-backed lawsuit to be dismissed

  • John Lippman. Copyright (c) Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.



Valley News Business Writer
Saturday, May 25, 2019

A little puffery in self-promotion is no reason to make a federal case out of it.

That, at any rate, is one of the legal arguments Pete and Gerry’s Organic Eggs is marshaling in seeking dismissal of a lawsuit backed by the animal rights organization PETA Foundation, according to a four-page letter the company’s lawyer wrote last week to the New York federal judge assigned to the case.

A group of 10 consumers in five states, including New York and Massachusetts, allege in the complaint that the Grafton County organic egg marketing and distribution company misleads customers by promoting a false image of its ethical treatment of egg-laying hens.

The lawsuit, filed in March in federal court in New York, claims the plaintiffs were induced to buy Pete and Gerry’s eggs because of statements on the egg cartons and the company’s website like “we love our hens” and “they roam where they please,” among other effusions.

(A video surreptitiously recorded by a visitor to one of Peter and Gerry’s contract farms in Pennsylvania, the plaintiffs contend, shows hens packed like sardines in an overcrowded barn much of the day, contrary to the image of happy, healthy and carefree chickens the company promotes in its marketing materials.)

The plaintiffs allege that the images and statements Pete and Gerry’s employs in promoting its organic eggs run afoul of state consumer protection laws and state statutes against breach of express warranty, fraud and fraudulent misrepresentation.

Dismissing the claims in the PETA-backed lawsuit, Pete and Gerry’s in the letter to the judge said that each carton of eggs advertises the “certified humane” seal testifying to the ethical treatment of its hens — in other words, the tender images of chickens in hen heaven is in concord with the company’s documented and advertised standards.

The law surrounding what is prohibited factual overstatement in the marketing of products to mislead consumers and what amounts to innocuous “mere puffery” is complicated but federal courts have ruled the average person can distinguish the difference and companies cannot be held liable if their claims fall squarely into the latter category, as Pete and Gerry’s says its does.

“The things plaintiffs complain about on (Pete and Gerry’s) packaging — professions of “love” and images of children holding hens — constitute nonactionable puffery because a reasonable consumer would not interpret them as a factual claim to rely upon,” the company said in the May 20 court filing in U.S. District Court for the Southern District of New York. The letter cites case law that found instances in which claims made about a product did not constitute a “warranty” with the buyer.

There are additional reasons the “breach of warranty” claim should be tossed out, the company argues, including that “plaintiffs have failed to plead the requisite reliance and causation elements of a warranty claim” and plaintiffs “failed to allege they provided timely or sufficient notice of any breach of warranty.” Furthermore, Pete and Gerry’s argues, the PETA-backed complaint does not specifically identify which images shown in the lawsuit particular plaintiffs relied upon when they bought eggs.

Pete and Gerry’s is asking the federal judge in New York to approve transfer of the case to U.S. District Court in Concord because a “balancing of factors” such as “convenience of witnesses, location of sources of proof, interests of justice” make the Granite State a more appropriate venue for those considerations. Transferring the case to New Hampshire, the company argues, also would “alleviate personal jurisdiction issues” that make trying the suit in New York problematic, the letter said.

Pete and Gerry’s CEO Jesse LeFlamme has blasted the lawsuit, calling it a “publicity stunt” by PETA to advance its “very specific (vegan) agenda” and taking the organization to task for ignoring the hen welfare practices of the conventional battery-caged egg industry.

Lebanon’s dealership weighs move to White River Junction

In the wake of the economic rebound following the Great Recession, Sykes Mountain Avenue has become the new Auto Alley of the Upper Valley: Two dealerships have located there (Subaru and Chevrolet) and a third (Honda) is gearing up to dig ground and move from Lebanon.

Now a fourth may make the leap across the river: Key Auto Group is looking at moving either part or all of its Chrysler, Dodge, Jeep and Ram dealership on Route 120 in Lebanon that it recently acquired from Miller Auto to a location abutting where Key Auto is building its new Chevrolet dealership, said owner Anthony DiLorenzo.

“We have quickly outgrown our current location (in Lebanon) and are looking at options to move either all or some of the franchises to another location,” DiLorenzo informed me via email. He cautioned the contemplated move is in “the preliminary stages,” and he hasn’t yet sought approval from either Chrysler or the town of Hartford, both of whom would be required to sign-off on any plan.

Although DiLorenzo called Sykes Mountain Avenue “a good possibility” for the Chrysler franchises because it would be adjacent to his Chevrolet dealership, he nonetheless said that “we are also considering other locations.”

Meanwhile, brothers Allen and Charlie Hall, who closed Gateway Motors in February and merged the Ford dealership with the St. J Auto Ford franchise on Miracle Mile in Lebanon, have met with parties interested in leasing their building and lot on Sykes Mountain Avenue. Charlie Hall says a trucking trailer distributor visited the site recently to check out the property, but he and his brother still are winding down their business with Ford before they turn to securing a new tenant.

Combing brains and brawn

A new wellness and exercise studio is emphasizing it takes more than a couple dumbbells to get in shape.

Laleh Talebian, a Dartmouth-educated Ph.D in molecular and cellular biology, and Karlen Thyne, a personal trainer and award winning body builder, have opened DNA Dynamic Natural Athletes in the space formerly occupied by Curves on Route 5 in White River Junction. Describing itself as an “integrative wellness center and open exercise space,” DNA provides health evaluations along with nutrition plans, personal fitness coaching and endurance training.

“We take a holistic approach. No two people are alike,” Talebian said, in designing wellness and exercise programs geared to a member’s particular needs from weight management to specialized training to a patient recovering from illness.

Talebian and Thyne for the past three years have been operating their business out of a studio in Quechee. But, when Curves owner Tammy Latvis closed her franchise and the space became available, they jumped at securing the lease for the prime location (fitness buffs may remember Thyne, too, from when he ran the Pura Vida juice and smoothie bar at the River Valley Club).

Talebian said about 60 members from Curves have stayed on with DNA — including Latvis. Former Curves members also will see a familiar face: Crystal Sweet, certified personal trainer, who was on staff at Curves, will work part-time on the DNA team, Talebian said.

Have business news that you’d like to see reported? I want to hear from you. Please contact me at jlippman@vnews.com. All submissions are subject to reporting and editing.