Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 1 of 25
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`
`
`CONSTANCE MOGULL, individually and on
`behalf of all others similarly situated,
`
` Plaintiff,
`
`v.
`
`PETE AND GERRY’S ORGANICS, LLC,
`
` Defendant.
`
`
`
` CASE NO.
`
`
`CLASS ACTION COMPLAINT
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`Plaintiff Constance Mogull (“Plaintiff” or “Ms. Mogull”), by and through her attorneys,
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`makes the following allegations pursuant to the investigation of her counsel and based upon
`
`information and belief, except as to allegations specifically pertaining to herself and her counsel,
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`which are based on personal knowledge, against Defendant Pete and Gerry’s Organics, LLC
`
`(“Nellie’s” or “Defendant”).
`
`NATURE OF THE ACTION
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`1.
`
`This is a class action lawsuit on behalf of purchasers of Nellie’s Free Range Eggs
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`(the “Eggs”) in the United States.
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`2.
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`Defendant, the distributor of the Eggs, falsely markets them as being “Free
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`Range” eggs from hens raised in humane living conditions.
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`3.
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`In fact, while boasting about the living conditions of Nellies’ hens, Defendant
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`goes as far as to draw a contrast between its farms with other farms with purportedly less
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`humane conditions:
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`Most hens don’t have it as good as Nellie’s. 9 out of 10 hens in the
`U.S. are kept in tiny cages at giant egg factories housing millions
`of birds. Sadly, even “cage-free” is now being used to describe
`hens that are crowded into large, stacked cages on factory farms,
`who never see the sun. Nellie’s small family farms are all
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`1
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 2 of 25
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`Certified Human Free-Range. Our hens can peck, perch, and play
`on plenty of green grass.
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`2
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 3 of 25
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`4.
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`This statement and this imagery are reinforced by Defendants’ further statements
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`that the Eggs come from “Outdoor Forage” hens.
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`5.
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`These representations led Plaintiff and other reasonable consumers to understand
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`that Defendant’s hens had space to move around both indoors and outdoors, that the hens in fact
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`spent time outdoors, and that Defendant’s hens have better lives than other hens because they
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`have more access to the outdoors.
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`6.
`
`Unfortunately for consumers, none of this is accurate. Defendant’s portrait of a
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`its hens’ Free Range” lifestyle is far from the reality. Defendant’s hens are crammed into sheds
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`up to 20,000 at a time, preventing them from extending their wings, foraging or making their
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`way to the outdoor space Defendant advertises so prominently.
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`3
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`

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`
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`7.
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`These conditions are a very far cry from the impression reasonable consumers
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`gain from Defendant’s representations and photographs on the Eggs’ packaging.
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`8.
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`Media on Defendant’s own website provides powerful evidence of how
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`consumers interpret its claim that the Eggs are “free range.” In a video found on the Nellie’s
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`YouTube Channel titled “Nellie’s Free Range Eggs – Understanding Eggs,” Nellie’s purports to
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`provide a “Helpful explanation of some of the terms used on egg cartons and their validity from
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`Nellie's Free Range Eggs.”1
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`9.
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`The video discusses the difference between specialized egg labels: “all natural
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`farm fresh,” “cage free,” and “free range.”2 The narrator describes a “cage free” hen as “still
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`liv[ing] inside a space much like a large overcrowded warehouse”—deeming it “still a pretty
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`grim existence” because “she’ll never get to see the outdoors or have the environment she needs
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`to act like a normal hen.” For comparison, the video includes an image of a cage free farm:3
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`1 https://www.youtube.com/watch?v=b62wACS0ln0 (last visited March 23, 2021)
`2 Id.
`3 Id.
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`4
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 5 of 25
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`In contrast, the video argues, the “hen that made [a Nellie’s egg]? Well, she’s one happpy hen.
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`Our free-range hens get to live their lives like real hens, with access to pasture everyday in good
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`weather. Our hens can spread their wings, forage in the fields, or scratch in the dirt.”4 This
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`narration is accompanied with a series of images purportedly depicting Nellie’s farms:
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`4 Id.
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`5
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 6 of 25
`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 6 of 25
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`Well, she's one happyr hen, our free-range
`hens get to live their lives like real
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`Nellie's Free Range Eggs - Understanding Eggs
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`wings, forage in the fields or scratch in the
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`Nellie's Free Range Eggs ~ Understanding Eggs
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 7 of 25
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`Notably, the interior of a Nellie’s henhouse is never shown in the video. The video ends with a
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`comparison of “all natural,” “cage free” and Nellie’s Free Range Eggs, and shows that only
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`Nellie’s eggs come from “small farms” where the birds are given “room to stretch” and “outdoor
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`access.”5
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`10.
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`Defendant’s practices clearly do not live up to its own interpretation of the term
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`“Free Range” and the Eggs’ packaging images:
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`5 Id.
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`7
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 8 of 25
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`11.
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`As shown in the above image comparisons, the conditions in Defendant’s
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`henhouses are virtually indistinguishable as those from the example they show as being not “Free
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`Range” where hens are essentially “liv[ing] inside a space much like a large overcrowded
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`warehouse.” Nellie’s itself describes this as a “grim existence” for these hens. But contrary to
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`its packaging representations, that is precisely how Nellie’s own hens live.
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`12.
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`Further exacerbating the issue, Defendant’s hens can only get outside through
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`small hatches cut at intervals along the sides of the shed. The hatches are closed all winter and
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`8
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 9 of 25
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`during inclement weather. In pleasant weather the hatches are closed at night and are not opened
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`until 1 pm the next day.
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`9
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 10 of 25
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`13.
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`Because of this overcrowding and limited time that the hatches are open, many of
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`Defendant’s hens are unable to ever access the hatches or the outdoor space Defendant advertises
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`so prominently.
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`10
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`14.
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`A 2016 consumer survey conducted at the University of Bath found that the top
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`reason consumers purchase eggs labeled as “free range” is because “Hens are happier.”6
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`
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`15.
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`But Nellie’s hens are not happier. They live under conditions comparable to those
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`that Defendant itself has labeled as a “grim existence.”
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`16.
`
`The disconnect between Nellie’s representations about the Eggs and reality is
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`demonstrated by a video where shoppers exiting a Brooklyn, New York Whole Foods
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`supermarket were asked if they had purchased Nellie’s Eggs. Shoppers who answered in the
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`affirmative were asked why they chose Nellie’s, and their answers included “I do look for ‘free
`
`6 https://purehost.bath.ac.uk/ws/files/158352483/Accepted_Version.pdf (last visited March 23,
`2021)
`
`11
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`

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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 12 of 25
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`range.’ I just feel like it’s less cruel[,]” and “‘Free range’ because I care about the animals and
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`how they are treated.”7
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`
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`7 https://www.youtube.com/watch?v=x9GksLy2R3A (last visited March 23, 2021)
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`12
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 13 of 25
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`
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`17.
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`The same Nellie’s Eggs purchasers were then shown video of the actual
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`conditions on Nellie’s farms, and asked for their thoughts. Their responses included “Well I
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`think it’s really deceptive. That’s disgusting what you showed me[,]” “Another big lie[,]” “It’s
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`definitely less ‘free range’ than you think[,]” and “It’s awful. That is not what I imagined ‘free
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`range’ to be.” 8
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`8 Id.
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`13
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 14 of 25
`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 14 of 25
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` }
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`1:17:224
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`Shoppers React to Nellie's ”Free Range" Eggs
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`14
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 15 of 25
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`18. When asked the question “After seeing this, would you buy Nellie’s again?” all of
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`the customers in the video answered that they would not.9
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`9 Id.
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`15
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 16 of 25
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`19.
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`Consumers like Plaintiff pay more for Nellie’s Eggs than eggs that do not purport
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`to be Free Range and bear images invoking extension outdoor space:
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`Egg Brand10
`
`Carton
`
`Claims
`
`Price11
`
`Nellie’s Free-
`Range Grade A
`Large Brown Eggs
`– 12ct
`
`Grade A large
`eggs – 12ct –
`Good & Gather
`
`Cage-Free Grade
`A Large Brown
`Eggs – 12ct –
`Good & Gather
`
`Eggland’s Best
`Grade A Large
`Eggs – 12ct
`
`Organic Cage-Free
`Fresh Grade A
`large Brown Eggs
`– 12 ct – Good &
`Gather
`
`
`See supra
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`$4.79
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`
`
`
`
`
`
`
`
`“Large Fresh
`Grade A Eggs”
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`“Cage free”
`“contains 250mg
`Omega-3 Fatty
`Acid & 300ug
`Lutein Per Egg”
`“Now! For Your
`Nutritious Diet”
`
`“Excellent source
`of… Vitamins D,
`E, B2, B12, B5”
`
`“Plus- 125mg
`Omega 3, 25% less
`Saturated Fat than
`Regular Eggs”
`
`“Most Trusted By
`Shoppers”
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`“Organic”
`
`“Cage free”
`
`
`
`$2.29
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`$2.59
`
`$2.79
`
`$3.39
`
`
`10 For the purpose of equal comparison, all eggs selected are “Grade A” and size “large”
`11 Prices from target.com using zip code 10106 on 4/9/2021
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`16
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 17 of 25
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`20.
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`Plaintiff is a purchaser of Nellie’s Eggs who asserts claims for fraud, breach of
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`express warranty, and violations the consumer protection laws of the state of New York, on
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`behalf of herself and all similarly situated purchasers of the Eggs.
`
`PARTIES
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`21.
`
`Plaintiff Constance Mogull is a resident of Mamaroneck, New York. Ms. Mogull
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`purchased the Eggs on many occasions throughout 2018 and 2019 from Stop and Shop in
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`Larchmont, NY. Prior to purchasing the Eggs, Plaintiff carefully viewed and read the Eggs’
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`labeling, including the representations that the Eggs are “Free Range,” that “Most hens don’t
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`have it as good as Nellie’s…. Our hens can peck, perch, and play on plenty of green grass[,]” and
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`that the Eggs are from “Outdoor Forage, 100% Vegetarian Feed” hens, and the accompanying
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`photographs and imagery. Plaintiff understood these statements and the photographs on the
`
`packaging to mean that Defendant’s hens had space to move around both indoors and outdoors,
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`that the hens in fact spent time outdoors, and that Defendant’s hens have better lives than other
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`hens because they have more access to the outdoors.
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`22.
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`Defendant Pete and Gerry’s Organics, LLC is a New Hampshire corporation
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`headquartered in Monroe, New Hampshire. Pete and Gerry’s is one of the nation’s largest sellers
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`of eggs, with $177 million in reported sales revenue in 2017.
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`23.
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`Defendants sell Nellie’s eggs in more than 9,600 retailers across the country. As
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`of 2017, Nellie’s represented that it produces its eggs through a network of “family” farms
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`located in 12 states, including New York, Pennsylvania, New Jersey, and Vermont.
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`17
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 18 of 25
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`JURISDICTION AND VENUE
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`24.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(d)
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`because there are more than 100 class members and the aggregate amount in controversy exceeds
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`$5,000,000.00, exclusive of interest, fees, and costs, and at least one Class member is a citizen of
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`a state different from Defendant.
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`25.
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`This Court has personal jurisdiction over Defendant because Defendant conducts
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`business in New York. Defendant has marketed, promoted, distributed, and sold the Eggs in
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`New York, rendering exercise of jurisdiction by New York courts permissible.
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`26.
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` Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 because this
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`is a judicial district in which a substantial part of the events or omissions giving rise to the claim
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`occurred.
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`27.
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`All conditions precedent necessary for filing this Complaint have been satisfied
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`and/or such conditions have been waived by the conduct of the Defendant.
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`CLASS REPRESENTATION ALLEGATIONS
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`28.
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`Plaintiff seeks to represent a class defined as all persons in the United States who
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`purchased the Eggs (the “Class”). Excluded from the Class are persons who made such purchase
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`for purpose of resale.
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`29.
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`Plaintiff also seeks to represent a subclass defined as all Class members who
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`purchased the Eggs in New York (the “New York Subclass”).
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`30. Members of the Class and New York Subclass are so numerous that their
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`individual joinder herein is impracticable. On information and belief, members of the Class and
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`New York Subclass number in the millions. The precise number of Class members and their
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`identities are unknown to Plaintiff at this time but may be determined through discovery. Class
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`18
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`members may be notified of the pendency of this action by mail and/or publication through the
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`distribution records of Defendant and third-party retailers and vendors.
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`31.
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`Common questions of law and fact exist as to all Class members and predominate
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`over questions affecting only individual Class members. Common legal and factual questions
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`include, but are not limited to whether Defendant’s labeling, marketing and promotion of the
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`Devices is false and misleading.
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`32.
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`The claims of the named Plaintiff are typical of the claims of the Class in that the
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`named Plaintiff was exposed to Defendant’s false and misleading marketing and promotional
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`materials and representations, purchased the Eggs, and suffered a loss as a result of that
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`purchase.
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`33.
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`Plaintiff is an adequate representative of the Class and New York Subclass
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`because her interests do not conflict with the interests of the Class members she seeks to
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`represent, she has retained competent counsel experienced in prosecuting class actions, and she
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`intends to prosecute this action vigorously. The interests of Class members will be fairly and
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`adequately protected by Plaintiff and her counsel.
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`34.
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`The class mechanism is superior to other available means for the fair and efficient
`
`adjudication of the claims of Class members. Each individual Class member may lack the
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`resources to undergo the burden and expense of individual prosecution of the complex and
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`extensive litigation necessary to establish Defendant’s liability. Individualized litigation
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`increases the delay and expense to all parties and multiplies the burden on the judicial system
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`presented by the complex legal and factual issues of this case. Individualized litigation also
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`presents a potential for inconsistent or contradictory judgments. In contrast, the class action
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`device presents far fewer management difficulties and provides the benefits of single
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`adjudication, economy of scale, and comprehensive supervision by a single court on the issue of
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`19
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 20 of 25
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`Defendant’s liability. Class treatment of the liability issues will ensure that all claims and
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`claimants are before this Court for consistent adjudication of the liability issues.
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`COUNT I
`Deceptive Acts Or Practices, New York Gen. Bus. Law § 349
`Plaintiff incorporates by reference and re-alleges each and every allegation set
`
`35.
`
`forth above as though fully set forth herein.
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`36.
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`Plaintiff brings this claim individually and on behalf of members of the New York
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`Subclass against Defendant.
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`37.
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`By the acts and conduct alleged herein, Defendant committed unfair or deceptive
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`acts and practices by making false representations on the label of the Eggs.
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`38.
`
`39.
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`The foregoing deceptive acts and practices were directed at consumers.
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`The foregoing deceptive acts and practices are misleading in a material way
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`because they fundamentally misrepresent the production and quality of the Eggs.
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`40.
`
`Plaintiff and members of the New York Subclass were injured as a result because
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`(a) they would not have purchased the Eggs if they had known that the Nellie’s representations
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`with regard to their hens and Egg production were false, and (b) they overpaid for the Eggs on
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`account of Nellie’s representations.
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`41.
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`On behalf of herself and other members of the New York Subclass, Plaintiff seeks
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`to enjoin the unlawful acts and practices described herein, to recover their actual damages or fifty
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`dollars, whichever is greater, three times actual damages, reasonable attorneys’ fees and costs,
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`and an order enjoining Defendant’s deceptive conduct, and any other just and proper relief
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`available under Section 349 of the New York General Business Law.
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`20
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 21 of 25
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`COUNT II
`False Advertising, New York Gen. Bus. Law § 350
`Plaintiff incorporates by reference and re-alleges each and every allegation set
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`42.
`
`forth above as though fully set forth herein.
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`43.
`
`Plaintiff brings this claim individually and on behalf of members of the New York
`
`Subclass against Defendant.
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`44.
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`Based on the foregoing, Defendant has engaged in consumer-oriented conduct
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`that is deceptive or misleading in a material way which constitutes false advertising in violation
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`of Section 350 of the New York General Business Law by misrepresenting that the Eggs are
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`“Free Range,” that “Most hens don’t have it as good as Nellie’s…. Our hens can peck, perch,
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`and play on plenty of green grass[,]” and that the Eggs come from “Outdoor Forage, 100%
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`Vegetarian Feed” hens. The packaging similarly contained misleading images of hens living
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`outdoors, as alleged above.
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`45.
`
`Plaintiff understood these statements and the photographs on the packaging to
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`mean that Defendant’s hens had space to move around both indoors and outdoors, that the hens
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`in fact spent time outdoors, and that Defendant’s hens have better lives than other hens because
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`they have more access to the outdoors.
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`46.
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`The foregoing advertising was directed at consumers and was likely to mislead a
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`reasonable consumer acting reasonably under the circumstances.
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`47.
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`This misrepresentation has resulted in consumer injury or harm to the public
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`interest.
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`48.
`
`As a result of this misrepresentation, Plaintiff and members of the New York
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`Subclass have suffered economic injury because (a) they would not have purchased the Eggs if
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`they had known that the Nellie’s representations with regard to their hens and Egg production
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`were false, and (b) they overpaid for the Eggs on account of the misrepresentation.
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`21
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 22 of 25
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`49.
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`On behalf of herself and other members of the New York Subclass, Plaintiff seeks
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`to enjoin the unlawful acts and practices described herein, to recover their actual damages or five
`
`hundred dollars, whichever is greater, three times actual damages, and reasonable attorneys’ fees
`
`and costs, and an order enjoining Defendant’s deceptive conduct, and any other just and proper
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`relief available under Section 350 of the New York General Business Law.
`
`COUNT III
`Breach of Express Warranty
`Plaintiff incorporates by reference and re-alleges each and every allegation set
`
`50.
`
`forth above as though fully set forth herein.
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`51.
`
`Plaintiff brings this claim individually and on behalf of members of the Class and
`
`New York Subclass against Defendant.
`
`52.
`
`In connection with the sale of the Eggs, Defendant, as the producer, marketer,
`
`distributor, and/or seller issued written warranties by representing that the Eggs are “Free Range”
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`and that “Most hens don’t have it as good as Nellie’s…. Our hens can peck, perch, and play on
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`plenty of green grass.” The packaging similarly contained misleading images of hens living
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`outdoors, as alleged above.
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`53.
`
`In fact, the Eggs do not conform to the above-referenced representations because
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`Nellie’s hens are instead crammed into sheds up to 20,000 at a time, preventing them from
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`extending their wings, foraging or making their way to the outdoor space that Defendant
`
`advertises so prominently.
`
`54.
`
`Plaintiff and the members of the proposed Class and the New York Subclass were
`
`injured as a direct and proximate result of Defendant’s breach because (a) they would not have
`
`purchased the Eggs if they had known that the Nellie’s representations with regard to their hens
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`22
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 23 of 25
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`and Egg production were false, and (b) they overpaid for the Eggs on account of the
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`misrepresentations.
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`55.
`
`Plaintiff’s counsel notified Defendant of her claims in a demand letter shortly
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`after learning about its breach of warranty, sent via FedEx, on February 19, 2021.
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`
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`56.
`
` COUNT IV
`
`
`
`
` Fraud
`
`
`
`Plaintiff hereby incorporates by reference and re-alleges each and every allegation
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`set forth above as though fully set forth herein.
`
`57.
`
`Plaintiff brings this claim individually and on behalf of the members of the
`
`proposed Class and New York Subclass against Defendant.
`
`58.
`
`As discussed above, Defendant misrepresented on the Egg’s packaging that the
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`Eggs are “Free Range” and that “Most hens don’t have it as good as Nellie’s…. Our hens can
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`peck, perch, and play on plenty of green grass.” The packaging similarly contained misleading
`
`images of hens living outdoors, as alleged above.
`
`59.
`
`The false and misleading representations and omissions were made with
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`knowledge of their falsehood. Defendant is a top distributor of eggs in the United States that is
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`undoubtedly aware of its farmers’ practices. Nonetheless, Defendant continues to sell its Eggs to
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`unsuspecting consumers using these false and misleading representations and omissions.
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`60.
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`Nellies is aware of how the term “Free Range” is perceived by consumers, as
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`evidenced by their website and other promotional materials.
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`61.
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`The false and misleading representations and omissions were made by Defendant,
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`upon which Plaintiff and members of the proposed Class and New York Subclass reasonably and
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`justifiably relied, and were intended to induce and actually induced Plaintiff and members of the
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`proposed Class and New York Subclass to purchase the Devices.
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`23
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 24 of 25
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`62.
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`The fraudulent actions of Defendant caused damage to Plaintiff and members of
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`the proposed Class and New York Subclass, who are entitled to damages and other legal and
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`equitable relief as a result.
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`RELIEF DEMANDED
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`63. WHEREFORE, Plaintiff, individually and on behalf of all others similarly
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`situated, seeks judgment against Defendant, as follows:
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`a.
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`b.
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`c.
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`d.
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`e.
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`f.
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`g.
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`h.
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`For an order certifying the nationwide Class and the New York Subclass
`under Rule 23 of the Federal Rules of Civil Procedure and naming
`Plaintiff as representatives of the Class and New York Subclass and
`Plaintiff’s attorneys as Class Counsel to represent the Class and New York
`Subclass members;
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`For an order declaring that Defendant’s conduct violates the statutes
`referenced herein;
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`For an order finding in favor of Plaintiff, the nationwide Class, and the
`New York Subclass on all causes of action asserted herein;
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`For compensatory, statutory, and punitive damages in amounts to be
`determined by the Court and/or jury;
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`For prejudgment interest on all amounts awarded;
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`For an order of restitution and all other forms of equitable monetary relief;
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`For an order enjoining Defendant from continuing the illegal practices
`detailed herein and compelling Defendant to undertake a corrective
`advertising campaign; and
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`For an order awarding Plaintiff and the Class and New York Subclass their
`reasonable attorneys’ fees and expenses and costs of suit.
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`JURY TRIAL DEMANDED
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`Plaintiff demands a trial by jury on all claims so triable.
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`Dated: April 21, 2021
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`Respectfully submitted,
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`BURSOR & FISHER, P.A.
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`24
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`Case 7:21-cv-03521 Document 1 Filed 04/21/21 Page 25 of 25
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`By: /s/ Yitzchak Kopel
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`Yitzchak Kopel
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`Scott A. Bursor
`Yitzchak Kopel
`888 Seventh Avenue
`New York, NY 10019
`Tel: (646) 837-7150
`Fax: (212) 989-9163
`E-Mail: scott@bursor.com
` ykopel@bursor.com
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`Attorneys for Plaintiff
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`25
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