Case 1:20-cv-00365-ALB-JTA Document 1 Filed 05/29/20 Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF ALABAMA
`SOUTHERN DIVISION
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`CIVIL ACTION NO.
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`1:20−cv−365-ALB-JTA
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`CLASS ACTION
`Demand for Jury Trial
`
`CHRIS LOVE and
`RWE FARMS, LLC,
`
`Plaintiffs,
`
`v.
`
`UNITED STATES DEPARTMENT
`OF AGRICULTURE,
`
`SONNY PERDUE, in his official
`capacity as Secretary of the United
`States Department of Agriculture, and
`
`RICHARD FORDYCE, in his official
`capacity as Administrator of the Farm
`Service Agency,
`
`Defendants.
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`CLASS ACTION COMPLAIN.T
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`Plaintiffs Chris Love and RWE Farms, LLC (together, "Plaintiffs"), on behalf of
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`themselves and all others similarly situated, by and through their attorneys, bring this action
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`against the United States Department of Agriculture, Sonny Perdue, in his official capacity
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`as Secretary of the United States Department of Agriculture and Richard Fordyce, in his
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`official capacity as Administrator of the Farm Service Agency (collectively "USDA" or
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`"Defendants"), and hereby allege as follows:
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`NATURE OF THE CASE
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`1.
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`This is a class action lawsuit brought by Plaintiff farmers, individually and on
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`behalf of all other similarly situated farmers ("class members"), whose payments under
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`USDA's Noninsured Crop Disaster Assistance Program ("NAP") have been arbitrarily,
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`capriciously, willfully or negligently withheld in violation of the express and implied terms of
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`the NAP.
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`2.
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`Through information and belief, from approximately April 2017 until
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`approximately 2020, USDA has failed to adjudicate and timely pay valid NAP claims
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`submitted by Plaintiffs and members of the putative class. No adequate or lawful reason has
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`been given for USDA's refusal to timely adjudicate and pay these NAP claims.
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`3.
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`On behalf of themselves and Class Members, Plaintiffs have standing to bring
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`this lawsuit because they suffered actual damages as a direct and/or proximate result of
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`USDA's wrongful actions and/or inaction.
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`4.
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`USDA's wrongful actions and/or inaction and the resulting damage have
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`placed Plaintiffs and Class Members at an imminent, immediate, and continuing risk of
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`financial ruin, including the loss of their farming businesses. Even without such loss,
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`Plaintiffs and Class Members are entitled to relief and recovery, including statutory damages
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`as set forth herein.
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`5.
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`USDA's wrongful actions and/or inaction also constitute common law
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`negligence and negligence per se. Further, USDA's wrongful actions and/or inaction
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`constitute a breach of contract, breach of the duty of good faith and fair dealing, and
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`violations of Florida's Deceptive and Unfair Trade Practices Act.
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`6.
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`Plaintiffs, on behalf of themselves and the Class Members, seek declaratory
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`relief, actual damages, economic damages, statutory damages, nominal damages, exemplary
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`damages, injunctive relief, attomeys' fees, litigation expenses and costs of suit.
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`JURISDICTION AND VENUE,
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`7.
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`This action arises, at least partly, under federal law. The declaratory,
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`injunctive and other relief requested by Plaintiffs is authorized by 5 U.S.C. §§ 702, 704 and
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`706, 28 U.S.C. §§ 2201-02, and this Court's general equitable powers.
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`8.
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`This Court has subject matter jurisdiction over Plaintiffs' claims pursuant to 28
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`U.S.C. § 1331 (federal question) and § 1361 (federal officer).
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`9.
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`Venue is proper in the Middle District of Alabama pursuant to 28 U.S.C.
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`§1391(b)(2), (c)(1) and (e)(1) because Plaintiff Love resides in the Middle District of. Alabama
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`and a substantial part of the events or omissions giving rise to this action occurred in the
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`Middle District of Alabama.
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`10.
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`An actual, live controversy exists between the parties within the meaning of 28
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`U.S.C. § 2201.
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`11.
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`Plaintiffs seek fees, costs and expenses associated with this litigation pursuant
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`to the Equal Access to Justice Act, 28 U.S.C. § 2412 or other authority.
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`PARTIES
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`12.
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`Plaintiff Chris Love ("Love) is an Alabama citizen residing in the Middle
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`District of Alabama. Plaintiff Love is a farmer who applied for NAP, whose NAP application
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`was accepted, who paid the applicable NAP premium, who suffered a NAP covered loss, who
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`subrnitted a NAP claim during the relevant time period, and who has not received payment for
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`his NAP claim.
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`13.
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`Plaintiff RWE Farms, LLC ("RWE Farms") is a limited liability company
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`organized under the laws of the State of Florida and with its principal place of business in
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`Westville, Florida. Charles W. Ellenburg and Ralph Ellenburg, Jr., are members of RWE
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`Farms, LLC. Plaintiff RWE Farms conducts farming operations and applied for NAP, the
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`NAP application was accepted, and RWE Farms, LLC paid the applicable NAP premium,
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`RWE Farms, LLC suffered a NAP covered loss, and submitted a NAP claim during the
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`relevant time period, and has not received payment for its NAP claim.
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`14.
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`As a direct and/or proximate result of the USDA's wrongful actions and/or
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`inaction, each Plaintiff has suffered economic darnages relating to the USDA's failure to pay
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`their NAP claims.
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`15.
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`Defendant United States Department of Agriculture is a department in the U.S.
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`government charged with administering the NAP.
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`16.
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`Defendant Sonny Perdue ("Secretary") is sued in his official capacity as the
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`Secretary of the USDA. The Secretary is the official ultimately responsible for the USDA's
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`activities and policies and for compliance with the NAP.
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`17.
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`Defendant Richard Fordyce ("Administrate') is sued in his official capacity as
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`the Administrator of the Farm Service Agency of the USDA. The Administrator is legally
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`responsible for administering the NAP.
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`BACKGROUND FACTS
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`18.
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`NAP was created by the USDA to provide crop loss assistance to farmers who
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`are unable to obtain federal crop insurance for a particular crop. 7 U.S.C. § 7333. The Farm
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`Service Agency ("FSA”) issues regulations governing NAP. See 7 C.F.R. pt. 1437 (2019).1
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`NAP operates within the general supervision of the Commodity Credit Corporation ("CCC")
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`and is carried out by FSA. 7 C.F.R. § 1437.2(a) (2019). In addition to these regulations, FSA
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`issues a NAP Handbook that further sets rules for the program. See Noninsured Crop Disaster
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`Assistance Program for 2015 and Subsequent Years, 1-NAP (Revision 2) (Feb. 15, 2019).2 On
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`occasion, FSA also issues Notices that govern NAP. See, e.g., FSA notice NAP-200,
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`Reviewing Average Market Prices in NCT (June 11, 2019) (expires Dec. 1, 2019). In broad
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`terms, NAP provides financial assistance to farmers who experience low yields, loss of
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`1 The applications for coverage and acceptances occurred after 2015 and prior to the 2019
`amendments and thus earlier version of this Code are applicable to the claims herein and
`Plaintiffs do not concede that the 2019 amendments apply.
`2 https://www.fsa.usda.gov/FSA/webapp?ome&subject=empl&topic=hbk
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`inventory, or prevented planting due to an eligible cause of loss, such as an adverse natural
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`occurrence or damaging weather event.
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`19.
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`In order to be eligible to participate in NAP, a farmer must be an owner,
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`operator, landlord, tenant, or sharecropper and must have a valid share in the crop and also
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`share in the risk of producing the crop. 7 C.F.R. § 718.2 (2019); NAP Handbook, page 3-1,
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`para. 100.A (Feb. 15, 2019). Contract growers and legal entities can qualify as farmers under
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`NAP. See id. Plaintiff Love and Plaintiff RWE Farms are farmers in that they both own a
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`valid share in their crops and share in the risk of producing their crops.
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`20.
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`NAP offers two primary types of coverage levels for crop losses: (1) the Basic
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`50/55 NAP plan; and (2) a buy-up coverage plan. The traditional NAP coverage is known as
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`the basic 50/55 coverage plan. This plan provides payments based on the amount of loss the
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`fanner suffers relative to either the farrner's expected yield, the expected value of the crop's
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`inventory, the expected acreage to be planted, or the acreage intended for grazing. The farmer
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`is then paid for any eligible losses at a predetermined rate. Under the basic 50/55 coverage
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`plan, a farmer is eligible for NAP benefits for any losses that are more than 50 percent of the
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`farmer's approved expected yield. The farmer is paid for those losses at a rate of 55 percent of
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`the market price for the crop. Only if the farmer's loss is more than 50 percent of the approved
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`yield will he or she be eligible for basic 50/55 coverage.
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`21.
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`Following the enactment of the 2014 Farm Bill, NAP began offering
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`additional, higher levels of coverage under the NAP buy-up coverage plan. Farmers could
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`elect coverage for 50, 55, 60, or 65 percent of production at 100 percent of the average market
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`price for the designated crop. Under the 2014 Farm Bill, this buy-up coverage was available
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`for crop years 2015 through 2018. The 2018 Farm Bill re-authorized the availability of buy-up
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`coverage under the same terms as outlined in the 2014 Farm Bill. Under the NAP buy-up
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`coverage plans, low yield losses must be more than 50 percent for 50/100 coverage, 45 percent
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`for 55/100 coverage, 40 percent for 60/100 coverage, or 45 percent for 65/100 coverage.
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`22.
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`Plaintiff Love applied for NAP coverage for seedless watermelons and collard
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`greens in 2017 and Plaintiff RWE Farms applied for NAP coverage for cabbage in 2017 and
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`watermelons, cantaloupes, squash, zucchini, cucumbers, bell peppers, and jalapefio peppers in
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`2018. Plaintiff Love and Plaintiff RWE Farms NAP applications were accepted. Both
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`Plaintiff Love and RWE Farms paid the applicable NAP premiums.
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`23.
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`In order for a crop loss to be covered by NAP, three types of eligibility rules
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`apply. First, the specific crop must be eligible for assistance under NAP. Second, the crop loss
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`must be caused by a NAP-eligible cause of loss. Third, the farmer must be eligible for NAP
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`benefits. Plaintiffs meet each of these requirements and NAP accepted their applications
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`thereby promising insurance.
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`24.
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`In order for a specific crop to be eligible for NAP assistance, the crop must be
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`a commercial crop or other agricultural commodity and it must be produced for food, fiber or
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`as forage for animal consumption. Additionally, NAP coverage is only available if the crop is
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`not eligible for catastrophic crop insurance coverage ("CCIC") or federal crop insurance
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`coverage (`FCIC"). Plaintiff Love planted seedless watermelons and collard greens,
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`commercial crops produced for food and thus eligible for NAP assistance. CCIC and FCIC
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`were not available for Plaintiff Love's crop. Plaintiff RWE Farms planted cabbage in 2017
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`and watermelons, canteloupes, squash, zucchini, cucumbers, bell peppers, and jalapetio
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`peppers in 2018. All commercial crop produced for food and thus eligible for NAP assistance.
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`CCIC and FCIC were not available for Plaintiff RWE Farm's crop. Plaintiffs meet these
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`requirements and NAP accepted their applications thereby promising insurance.
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`25.
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`In order for a crop loss to be caused by a NAP-eligible loss, a covered crop
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`loss must occur during the coverage period and must result from damaging weather; adverse
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`natural occurrences, and related conditions that result from either of those. 7 C.F.R. §1437.10
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`(2019); NAP Handbook, page 2-9, para. 51.B (Feb. 15, 2019). A natural disaster can be
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`damaging weather, including, but not limited to, drought, hail, excessive moisture, freeze,
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`tornado, hurricane, excessive wind, insufficient chill hours, or any combination of these events.
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`An adverse natural occurrence can include an earthquake, flood, volcanic eruption, or any
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`combination of these events. Finally, a "related conditioe is a condition that must result from
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`either damaging weather or adverse natural occurrences. For example, heat, insect infestation,
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`disease, insufficient chill hours, or any cornbination of these events can be related conditions
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`so long as they occurred because of an adverse natural occurrence or damaging weather.
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`26.
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`Here, Plaintiff Love planted seedless watermelons and collard greens in 2017
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`and Plaintiff RWE Farms planted cabbage in 2017 and watermelons, cantaloupes, squash,
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`zucchini, cucumbers, bell peppers, and jalaperio peppers in 2018. These crops planted by
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`Plaintiffs are eligible for assistance under NAP.
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`27.
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`The crop loss suffered by Plaintiff Love occurred on April 7, 2017 with regard
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`to the collard greens and on June 23, 2017 with regard to the seedless watermelons and resulted
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`from damaging weather, adverse natural occurrences, and related conditions, specifically
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`excessive moisture in the form of precipitation with regard to the collard greens and excessive
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`moisture in the form of precipitation and excessive heat with regard to the seedless
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`watermelons.
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`28.
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`The crop loss suffered by Plaintiff RWE Farms occurred in February 2018 with
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`regard to the cabbage and in 2018 with regard to the watermelons, cantaloupes, squash,
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`zucchini, cucumbers, bell peppers, and jalaperio peppers and resulted from damaging weather,
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`adverse natural occurrences, and related conditions, specifically freezing weather with regard
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`to the cabbage in 2018 and excessive moisture with regard to the watermelons, cantaloupes,
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`squash, zucchini, cucumbers, bell peppers, and jalaperio peppers in 2018. The crop losses
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`suffered by Plaintiffs Love and RWE Farms constitute eligible causes of loss.
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`29.
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`Finally, in order for a farmer to be eligible for NAP coverage, the farmer must
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`have enrolled his, her or its crop in the NAP program and timely reported the crop loss.
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`Plaintiff Love enrolled his collard greens and seedless watermelon crops in the NAP program
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`on February 1, 2017 and timely reported his loss on April 7, 2017 with regard to the collard
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`greens and on June 23, 2017 with regard to the seedless watermelons. Plaintiff RWE Farms
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`enrolled its cabbage crop in August 2017 and its watermelons, cantaloupes, squash, zucchini,
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`cucumbers, bell peppers, and jalaperio peppers in February 2018 and timely reported their
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`losses. Therefore, Plaintiffs are eligible for NAP benefits.
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`30.
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`Losses are not covered under NAP if they are caused by the farmer or could
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`have been prevented by the farmer. Specifically excluded from NAP coverage are losses
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`caused by, inter alia, the following: neglect or malfeasance; failure to reseed or replant if
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`customary; failure to follow good farrning practices which include failing to use cultural
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`practices generally used for a crop to make normal progress toward maturity and produce an
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`approved yield. Neither Plaintiff Love's losses nor Plaintiff RWE Farrns' losses were caused
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`by neglect or malfeasance; failure to reseed or replant if customary; failure to follow good
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`farming practices or any other reason enumerated in 7 C.F.R. § 1437.10(d). Indeed, Plaintiffs
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`followed good farming practices.
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`31.
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`USDA failed to timely and properly adjudicate and pay Plaintiffs' NAP claims
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`as their claims are still unpaid as of the filing of this lawsuit.
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`32.
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`USDA's arbitrary, capricious, wrongful actions and/or inaction— to wit,
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`failing to timely and properly adjudicate and pay Plaintiffs' and Class Members' NAP
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`claims— directly and/or proximately caused the damages suffered by Plaintiffs and Class
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`Members. As a further direct and/or proximate result of USDA's arbitrary, capricious,
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`wrongful actions and/or inaction, Plaintiffs and Class Members have suffered, and will
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`continue to suffer, damages including, without limitation: (i) loss of revenue; ( i) the value of
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`their time seeking adjudication and payment of their NAP claims; (iii) inability to fully conduct
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`their ongoing farming operations and future farming operations.
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`CLASS ACTION ALLEGATIONS
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`33.
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`Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiffs bring this
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`class action as a class action on behalf of themselves and the following Class of similarly
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`situated individuals:
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`The Nationwide Class:
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`All persons located in the United States who applied for NAP, whose NAP
`application was accepted, who suffered a NAP covered loss, who submitted
`NAP claims, but who failed to receive NAP proceeds from six years prior to the
`filing of this Complaint to present.
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`The Florida Subclass:
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`All persons located in Florida who applied for NAP, whose NAP application
`was accepted, who suffered a NAP covered loss, who submitted NAP claims,
`but who failed to receive NAP proceeds from six years prior to the filing of this
`Complaint to present.
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`The Alabama Subclass:
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`All persons located in Alabama who applied for NAP, whose NAP application
`was accepted, who suffered a NAP covered loss, who submitted NAP claims,
`but who failed to receive NAP proceeds frorn six years prior to the filing of this
`Complaint to present.
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`Excluded from the Class are (i) any person or entity who is currently in bankruptcy or whose
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`claims in this proceeding have been discharged in a bankruptcy proceeding, and (ii) the Court,
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`Court personnel, and members of their immediate families.
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`34.
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`The putative Class is, through information and belief, comprised of several
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`thousand persons, perhaps tens of thousands, making joinder impracticable. Disposition of this
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`matter as a class action will provide substantial benefits and efficiencies to the Parties and the
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`Court.
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`35.
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`The rights of each Class Member were violated in a virtually identical manner
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`as a result of the USDA's arbitrary, capricious, willful, reckless, and/or negligent actions
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`and/or inaction.
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`36.
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`Questions of law and fact common to all Class Members exist and predominate
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`over any questions affecting only individual Class Members including, inter alia:
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`a) Whether the USDA violated the provisions of NAP by failing to timely and
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`properly pay Plaintiffs' and Class Members' NAP claims;
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`b) Whether the USDA's decision to refuse to timely and properly pay Plaintiffs' and
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`Class Members' NAP claims was arbitrary, capricious, willful, reckless, and/or
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`negligent;
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`c) Whether the USDA owed a duty to Plaintiffs and Class Members to timely and
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`properly pay NAP claims;
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`d) Whether the USDA breached its contractual duties under NAP by failing to timely
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`and properly pay Plaintiffs' and Class Members' NAP claims; and
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`e) Whether Plaintiffs and Class Members sustained damages as a result of the
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`USDA's failure to timely and properly pay NAP claims.
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`37.
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`Plaintiffs' clairns are typical of Class Members' claims in that Plaintiffs' claims
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`and Class Members' claims all arise from the USDA's failure to timely and properly pay NAP
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`claims.
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`38.
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`Plaintiffs and their counsel will fairly and adequately represent the interests of
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`Class Members. Plaintiffs have no interests antagonistic to, or in conflict with, Class
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`Members' interests. Plaintiffs' lawyers are experienced litigators and intend to vigorously
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`prosecute this action on behalf of Plaintiffs and Class Members.
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`39. A class action is superior to all other available methods for fairly and efficiently
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`adjudicating Plaintiffs' and Class Members' claims. Plaintiffs and Class Members have been
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`irreparably harmed as a result of the USDA's wrongful actions and/or inaction. Litigating this
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`case as a class action will reduce the possibility of repetitious litigation relating to the USDA's
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`failure to timely and properly pay Plaintiffs' and Class Members' NAP claims.
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`40.
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`Class certification, therefore, is appropriate pursuant to FED. R. Civ. P. 23(b)(3)
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`because the above common questions of law or fact predominate over any questions affecting
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`individual Class Members, and a class action is superior to other available methods for the fair
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`and efficient adjudication of this controversy.
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`41.
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`Class certification also is appropriate pursuant to FED. R. Civ. P. 23(b)(2)
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`because Defendant has acted or refused to act on grounds generally applicable to the class,
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`thereby making final injunctive relief appropriate with respect to the class as a whole.
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`42.
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`The expense and burden of litigation would substantially impair the ability of
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`Class Members to pursue individual lawsuits in order to vindicate their rights.
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`CLAIMS FOR RELIEF/CAUSES OF ACTION
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`COUNT I
`NEGLIGENCE/WANTONNESS
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`43.
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`The factual statements and allegations in the preceding paragraphs of this
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`Complaint are incorporated by reference.
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`44.
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`The USDA had a duty to exercise reasonable care in adjudicating Plaintiffs'
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`and Class Members' NAP claims and to pay those claims in a timely manner.
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`45.
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`The USDA negligently and/or wantonly violated its duty by failing to act
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`reasonably with respect to timely adjudicating and paying Plaintiffs' and Class Mernbers' NAP
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`claims.
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`46.
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`Alternatively, the USDA's conduct set forth herein was so reckless and so
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`charged with indifference to the consequences of its failure to exercise reasonable care in
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`timely adjudicating and paying Plaintiffs' and the Class Members' NAP claims as to amount to
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`wantonness.
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`47.
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`It was reasonably foreseeable that the USDA's failure to exercise reasonable
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`care in timely adjudicating and paying Plaintiffs' and Class Members' NAP claims would
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`result in financial damage to Plaintiffs and Class Members.
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`48.
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`Plaintiffs and the Class Members were (and continue to be) damaged as a
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`direct and/or proximate result of USDA's failure to timely adjudicate and pay their NAP
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`claims in the forrn of, inter alia, (i) loss of revenue; (ii) the value of their time seeking
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`adjudication and payment of their NAP claims; (iii) inability to fully conduct their ongoing
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`farming operations and future farming operations; and (iv) anxiety and emotional distress— for
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`which they are entitled to compensation.
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`49.
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`The USDA's wrongful actions and/or inaction (as described above) constituted
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`negligence and/or wantonness at common law.
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`COUNT II
`NEGLIGENCE PER SE
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`50.
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`The factual statements and allegations in the preceding paragraphs of this
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`Complaint are incorporated by reference.
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`51.
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`Federal statutory law and applicable regulations, including 7 U.S.C. § 7333 and
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`regulations promulgated thereunder, as referenced above, set forth and otherwise establish
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`duties that were applicable to the USDA's conduct and with which the USDA was obligated to
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`comply at all relevant times hereto.
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`52.
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`Defendant USDA violated these duties by failing to timely and properly
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`adjudicate and pay NAP claims, which resulted in financial damage to Plaintiffs' and the Class
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`Members.
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`53.
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`The purpose of 7 U.S.C. § 7333 and regulations promulgated thereunder, as
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`referenced above is to clearly define and limit the circumstances in which the USDA can
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`withhold NAP payments to farmers who submit valid and timely claims.
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`54.
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`The failure to timely adjudicate and pay the Plaintiffs' and Class Members'
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`NAP claims is exactly the type of conduct that the legislation referenced above was intended to
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`prohibit, and the harm at issue in this case that has been suffered by the Plaintiffs and Class
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`Members is the type of harm the legislation referenced above was intended to prevent.
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`55.
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`Plaintiffs and Class Members fall within the class of persons 7 U.S.C. § 7333
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`and regulations promulgated thereunder, as referenced above were intended to protect.
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`56.
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`The harm suffered and that may be suffered in the future by the Plaintiffs and
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`Class Members is the same type of harm 7 U.S.C. § 7333 and regulations promulgated
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`thereunder, as referenced above were intended to guard against.
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`57. As a direct and proximate result of the USDA's violation of 7 U.S.C. § 7333
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`and regulations promulgated thereunder, as referenced above, the Plaintiffs and Class Members
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`were damaged in the form of, without limitation, loss of income, out-of-pocket expenses,
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`anxiety, emotional distress, and other economic and noneconomic harm.
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`COUNT III
`BREACH OF EXPRESS OR IMPLIED C.ONTRACT
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`58.
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`The factual statements and allegations in the preceding paragraphs of this
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`Complaint are incorporated herein by reference.
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`59.
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`The USDA had a written agreement with the Plaintiffs and the Class Members
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`as set forth in the NAP contracts entered into by the parties.
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`60.
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`The NAP contracts provided to Plaintiffs and the Class Mernbers constitutes an
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`express\ contract. Plaintiffs and the Class Members fully discharged their obligations under the
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`contract.
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`61. USDA breached its contracts with the Plaintiffs and the Class Members by
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`failing to timely adjudicate and pay NAP claims.
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`62. As a direct and proximate result of Defendants' breach of its contracts with the
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`Plaintiffs and the Class Members, Plaintiffs and the Class Members have been damaged in an
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`amount to be proven at trial.
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`COUNT IV
`BREACH OF IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING
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`63.
`
`The factual statements and allegations in the preceding paragraphs of this
`
`Complaint are incorporated herein by reference.
`
`64.
`
`In every contract or agreement, including those NAP contracts at issue here,
`
`there is an implied promise of good faith and fair dealing, which rneans that each party will not
`
`do anything to unfairly interfere with the right of any other party to receive the benefits of the
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`contract.
`
`65. To the extent that the USDA contends that it had discretion to delay or deny
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`NAP claim payments to Plaintiffs, the law reads a duty of good faith into Defendants' exercise
`
`of such discretion in order that the agreement should not be rendered illusory. The USDA did
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`not act in good faith when it failed to timely adjudicate and pay Plaintiffs' NAP claims.
`
`66. As a direct and proximate result of the USDA's breach of the implied duty of
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`Case 1:20-cv-00365-ALB-JTA Document 1 Filed 05/29/20 Page 15 of 18
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`good faith and fair dealing, the Plaintiffs and Class Members were damaged in an amount to be
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`determined at trial.
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`COUNT V
`DECLARATORY JUDGMENT
`
`67.
`
`The factual statements and allegations in` the preceding paragraphs of this
`
`Complaint are incorporated herein by reference.
`
`68. An actual controversy has arisen and now exists between Plaintiffs and
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`Defendants concerning the adjudication and payment of Plaintiffs' NAP claims. Plaintiffs
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`desire and are entitled to a judicial declaration by this Court as to their rights and the
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`obligations of the USDA related to the timely adjudication and payment of their NAP claims.
`
`COUNT VI
`VIOLATION OF FLORIDA'S DECEPTIVE. AND
`UNFAIR TRADE PRACTICES ACT
`(Fla. Stat. § 501.201, et seq.)
`(On Behalf of Florida Subclass)
`
`69.
`
`The factual statements and allegations in the preceding paragraphs of this
`
`Complaint are incorporated herein by reference.
`
`70.
`
`Florida's Deceptive and Unfair Trade, Practices Act, FLA. STAT. § 501.201, et.
`
`seq. ("FDUTPA"), prohibits "[u]nfair methods of competition, unconscionable acts or
`
`practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce."
`
`Id. at § 501.204.
`
`71.
`
`The stated purpok of FDUTPA is to protect consumers from "those who
`
`engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or
`
`practices in the conduct of any trade or commerce." Id at § 501.202(2).
`
`72.
`
`Plaintiff RWE Farms is a "consume?' as defined by FDUTPA. Id at §
`
`501.203(7).
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`73. USDA made misleading and/or false representations about the NAP program to
`
`farmers, including Plaintiff and the Class members. Specifically, USDA represented to
`
`Plaintiff and the Class members that eligible NAP claims would be timely adjudicated and paid
`
`by the USDA.
`
`74. USDA had actual knowledge that said representations were false and/or
`
`misleading at the time it made said representations to the consuming public.
`
`75. As a result of the deceptive and unfair practices described above, Plaintiff and
`
`the Class members enrolled in the NAP, paid premiurns and suffered the losses at issue to their
`
`detriment.
`
`BELIEF REOUESIED
`
`76.
`
`The preceding factual statements and allegations are incorporated herein by
`
`reference.
`
`77.
`
`DAMAGES. As a direct and/or proximate result of the USDA's wrongful
`
`actions and/or inaction (as described above), Plaintiffs and Class Members suffered (and
`
`continue to suffer) damages in the form of, inter alia: (i) loss of revenue; (ii) the value of their
`
`time seeking adjudication and payment of their NAP claims; (iii) inability to fully conduct their
`
`ongoing farming operations and future farming operations; and (iv) anxiety and emotional
`
`distress— for which they are entitled to compensation. Plaintiffs and Class Members also are
`
`entitled to recover statutory damages and/or nominal damages. Plaintiffs' and Class Members'
`
`damages were foreseeable by the USDA.
`
`78.
`
`EXEMPLARY DAMAGES. Plaintiffs and Class Members also are entitled to
`
`exemplary damages as punishment and to deter such wrongful conduct in the future.
`
`79.
`
`INJUNCTIVE RELIEF. Plaintiffs and Class Members also are entitled to
`
`injunctive relief in the form of, without limitation, requiring USDA to, inter alia, promptly
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`Case 1:20-cv-00365-ALB-JTA Document 1 Filed 05/29/20 Page 17 of 18
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`adjudicate and pay all valid claims submitted under the NAP program.
`
`80.
`
`ATTORNEYS' FEES, LITIGATION EXPENSES AND COSTS. Plaintiffs
`
`and Class Members also are entitled to recover their attorneys' fees, litigation expenses and
`
`court costs in prosecuting this action pursuant to 28 U.S.C. § 2412 or other authority.
`
`WHEREFORE, Plaintiffs, on behalf of themselves and Class Members, respectfully
`
`request that (i) the USDA be cited to appear and answer this lawsuit, (ii) this action be
`
`certified as a class action, (iii) Plaintiffs be designated the Class Representatives, and (iv)
`
`Plaintiffs' counsel be appointed as Class Counsel. Plaintiffs, on behalf of themselves and
`
`Class Members, further request that upon final trial or hearing, judgment be awarded against
`
`USDA, in favor of Plaintiffs and the Class Members, for:
`
`(i)
`
`actual damages, consequential damages, statutory damages and/or nominal
`
`damages in an amount to be determined by the trier of fact;
`
`(ii)
`
`exemplary damages:
`
`(iii)
`
`injunctive relief as set forth above;
`
`(iv) pre- and post-judgment interest at the highest applicable legal rates;
`
`(v) attorneys' fees and litigation expenses incurred through trial and any appeals;
`
`(vi) costs of suit; and
`
`(vii) such other and further relief that this Court deems just and proper.
`
`JURY DEmAND
`
`Plaintiffs, on behalf of themselves and all others similarly situated, respectfully
`
`demand a trial by jury on all of the claims and causes of action so triable.
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`Case 1:20-cv-00365-ALB-JTA Document 1 Filed 05/29/20 Page 18 of 18
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`Respectfully submitted,
`
`Dustin J. Fo ler
`ASB- 8960-S69F
`BIJNTIN, ETHEREDGE & FOWLER, LLC
`Attorney for Defendant
`185 N. Oates Street
`Dothan, Alabama 36301
`Phone: (334) 793-3377
`Facsimile: (334) 793-7756
`
`Stephen T. Etheredge
`ASB-8149-H69S
`BUNTIN, ETHEREDGE & FOWLER, LLC
`Attorney for Defendant
`185 N. Oates Street
`Dothan, Alabama 36301
`Phone: (334) 793-3377
`Facsimile: (334) 793-7756
`
`Taylor C. Bartlett
`ASB-2365-A51B
`W. Lewis Garrison, Jr.
`HENINGER GARRISON DAVIS LLC
`2224 First Avenue North
`Birmingham, AL 35203
`Tel: (205) 326-3336
`Fax: (205) 380-8085
`Email: Taylor@hgdlawfirm.com
`Email: Lewis@hgdlawfirm.com
`
`James M. Terrell
`ASB-0887-L73J
`METHVIN, TERRELL, YANCEY,
`STEPHENS & MILLER, P.C.
`2201 Arlington Avenue South
`Birmingham, AL 35205
`Tel: (205) 939-0199
`Fax: (205) 939-0399
`Email: Jterrell@mtattorneys.com
`
`18
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`