Case 7:21-cv-05238-CS Document 22 Filed 04/18/22 Page 1 of 25
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`OPINION & ORDER
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`No. 21-CV-5238 (CS)
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`Plaintiff,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`PATRICIA DWYER, individually and on behalf of
`all others similarly situated,
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`- against -
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`ALLBIRDS, INC.,
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`Defendant.
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`-------------------------------------------------------------x
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`Appearances:
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`Spencer Sheehan
`Sheehan & Associates, P.C.
`Great Neck, New York
`Counsel for Plaintiff
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`Steven A. Zalesin
`Patterson Belknap Webb & Tyler LLP
`New York, New York
`Counsel for Defendant
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`Seibel, J.
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`Before the Court is Defendant’s motion to dismiss Plaintiff’s Amended Complaint. (ECF
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`No. 17.) For the following reasons, the motion is GRANTED.
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`I.
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`BACKGROUND
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`For purposes of this motion, the Court accepts as true the facts, but not the conclusions,
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`alleged by Plaintiff in the Amended Complaint. (ECF No. 14 (“AC”).)
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`Facts
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`Defendant Allbirds, Inc. is a Delaware corporation with its principal place of business in
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`San Francisco, California. (AC ¶ 83.) Defendant manufactures, markets, labels, and sells shoes
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`made from wool (the “Product”), (id. ¶ 1), typically priced at $95 per pair for new models, with
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`discounts available for older models, (id. ¶¶ 75, 86). Defendant sells the Product through its
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`website and brick-and-mortar stores, and also through third-party vendors. (Id. ¶ 85.) Plaintiff
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`Patricia Dwyer bought the Product, “on one or more occasions at one or more locations,
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`including in 2021, from stores including Walmart and Walmart.com.” (Id. ¶ 89.)
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`Defendant’s advertising focuses on the Product’s environmental impact, (id. ¶ 5), with
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`representations such as: “Sustainability Meets Style,” “Low Carbon Footprint,”
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`“Environmentally Friendly,” “Made with Sustainable Wool,” “Reversing Climate Change . . . ”
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`and “Our Sustainable Practices.” (Id. ¶ 6.) One such example was included in the Amended
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`Complaint:
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`(Id.) Defendant uses a life cycle assessment (“LCA”) tool to estimate its products’ carbon
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`footprint, which it defines as “the kg CO2e emitted to create our products.” (Id. ¶¶ 8-9.)1
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`Defendant also “measure[s] other greenhouse gases, like methane, and convert[s] them to CO2.”
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`(Id. ¶ 10.) Defendant states that the average carbon footprint of its products is 7.6 kg CO2e, (id.
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`¶ 12), and provides – presumably on its website, although the Amended Complaint does not say
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`– individual carbon footprint figures for particular products, breaking down the total CO2e into
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`categories for materials, manufacturing, use and “end of life,” with emissions from materials
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`1 CO2e refers to carbon dioxide equivalent emissions. (Id. ¶ 12.)
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`2
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`accounting for the most significant component. (Id. ¶¶ 13-14.) The calculation specifies that
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`“Allbirds transportation emissions are calculated separately and our entire footprint is offset to
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`zero.” (Id. ¶ 13.)
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`Plaintiff alleges that Defendant’s environmental claims are misleading, (id. ¶¶ 5-35),
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`taking issue with Defendant’s use of the Higg Material Sustainability Index (“Higg MSI”), a
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`standard developed by the Sustainable Apparel Coalition (“SAC”) to measure the environmental
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`impact of apparel materials. (Id. ¶¶ 15-16.) Plaintiff criticizes the Higg MSI’s methodology as
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`addressing only raw materials and lacking standards for comparing different materials, (id. ¶¶
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`17-18), and alleges that unnamed independent researchers find the Higg MSI to be “unsuitable
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`‘for public disclosure or comparative assertions,’” (id. ¶ 19). The SAC allegedly recognizes
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`these limitations and “is revamping the Higg MSI to incorporate ‘product level environmental
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`impacts.’” (Id. ¶ 21.)
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`Plaintiff also criticizes the LCA tool Defendant uses, (id. ¶¶ 22-35), noting that according
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`to People for the Ethical Treatment of Animals (“PETA”), “‘Allbirds’ [LCA] tool currently only
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`measures the carbon footprint of each product, meaning that it doesn’t assess any other
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`environmental impact of wool production, including on water, eutrophication, or land
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`occupation.’” (Id. ¶ 22; ECF No. 19-1 at 2.)2 According to Plaintiff, had Defendant calculated
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`the carbon footprint from sheep farming overall – including items such as methane emitted by
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`sheep and runoff of chemicals used in cleaning or pesticides – as opposed to the carbon footprint
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`from its products, the carbon footprint figures would be significantly higher. (AC ¶¶ 23-34.)
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`2 Eutrophication is defined in the Amended Complaint as “excessive richness of nutrients
`in a lake or other body of water, frequently due to runoff from the land, which causes a dense
`growth of plant life and death of animal life from lack of oxygen.” (AC ¶ 28.)
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`3
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`The LCA tool also allegedly uses data from several sources, and there are unspecified
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`“discrepancies in industry-sourced data,” purportedly “render[ing] it unreliable.” (Id. ¶ 35.)
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`Plaintiff also claims Defendant has made misleading animal welfare claims, (id. ¶¶ 36-
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`69), including “Our Sheep Live The Good Life,” (id. ¶ 36). This statement, which may come
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`from Defendant’s website – again, the Amended Complaint does not say – is followed by the
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`representation that Allbirds “work[s] with leading organizations like ZQ Merino to ensure our
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`wool is held to high standards of farming, land management and animal welfare.” (Id.)
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`Defendant runs advertisements showing sheep in pastoral settings, (id. ¶ 37), with quips such as,
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`“What if every time you got a haircut they made shoes out of it? That would be pretty cool,” (id.
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`¶ 38), and “Behind every shoe is a sheep. And behind every sheep, is another sheep, probably,”
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`(id. ¶ 39). Defendant has claimed – again, it is not clear where – that “its wool harvesting
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`practices [are] sustainable [and] humane,” and that it “intends to eventually source ‘only wool
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`from “regenerative” sources.’” (Id. ¶ 43.) Plaintiff alleges these statements are misleading, as
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`“[e]conomic realities dictate – and require – that all sheep bred for wool are also slaughtered and
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`sold for their meat,” (id. ¶ 41), and that investigations of more than 100 large-scale wool
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`operations have shown that “workers beat, stomped on, cut open the skin of, and slit the throats
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`of conscious, struggling sheep,” (id. ¶ 45; ECF No. 19-1 at 1).3 Plaintiff further notes the
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`existence of a painful procedure performed on sheep to discourage the nesting of parasitic
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`3 Plaintiff alleges that “most of [the large-scale wool operations inspected] had been
`promoted in the same terms used by Allbirds – as ‘sustainable’ and ‘responsible.’” (AC ¶ 45.)
`But the PETA blog post on which the Amended Complaint bases this allegation and from which
`it purports to quote says that investigators found the troubling practices at “more than 100 large
`operations investigators have visited – even so-called ‘sustainable’ and ‘responsible’ farms.”
`(ECF 19-1 at 1.) There is nothing in the post supporting the notion that “most” of the
`investigated farms were “so-called ‘sustainable’ and ‘responsible’ farms.”
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`4
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`blowflies on their bodies, (id. ¶¶ 47-52), and that sheep are often slaughtered for meat before
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`they would have died naturally, (id. ¶¶ 54-57).
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`Additionally, Plaintiff alleges that Defendant “passes the buck about its wool production
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`to ZQ Merino,” (id. ¶ 60); that sheep cannot “live the good life” when individual care cannot be
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`provided to sheep raised in large numbers, (id. ¶ 53); and that ZQ Merino’s certification does not
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`ensure that sheep “live the good life” because ZQ Merino audits farms only every three years,
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`(id. ¶ 63), and its website states that its program “does not extend to certification beyond the
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`farm gate, though we work with many long-term partners within the supply chain, who align
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`with ZQ values and adhere to our Rules of Engagement agreement,” (id. ¶ 64). This means,
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`according to PETA, that “slaughter and transportation – during which much abuse occurs – are
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`not necessarily covered under the ZQ certification.” (Id. ¶ 65; ECF No. 19-1 at 2.) PETA also
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`criticizes Defendant’s statement that its use of discarded crab shells is “better for the planet,”
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`arguing that the shells come from an “inherently harmful industry” that endangers crabs and
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`whales. (AC ¶¶ 68-69; ECF No. 19-1 at 2.)
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`According to Plaintiff, the value of the Product she purchased was materially less than its
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`value as represented by Defendant, (AC ¶ 72), and Defendant sold more of the Product at a
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`higher price than it would have “in the absence of this misconduct,” (id. ¶ 73). Had Plaintiff
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`known “the truth,” she would have not bought the Product or would have paid less for it. (Id.
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`¶ 74.)
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`Procedural History
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`Plaintiff filed the original complaint in this action on June 13, 2021, (ECF No. 1), and
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`Defendant answered on July 17, 2021, (ECF No. 7). On the same date, Defendant requested a
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`pre-motion conference in contemplation of a motion to dismiss. (ECF No. 8.)4 At the pre-
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`motion conference on August 11, 2021, the Court granted Plaintiff leave to amend the complaint.
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`(See ECF No. 13 at 6:14-22.) Plaintiff filed the Amended Complaint on August 25, 2021. (AC.)
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`The Amended Complaint seeks damages and injunctive relief for: (1) violations of Sections 349
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`and 350 of the New York General Business Law (“GBL”), which prohibit deceptive business
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`practices and false advertising; (2) breach of express warranty; (3) fraud; and (4) unjust
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`enrichment. (AC ¶¶ 102-117.) Plaintiff seeks to represent a class of all persons residing in New
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`York who have purchased the Product. (Id. ¶¶ 94-101.)5
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`II.
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`LEGAL STANDARD
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`“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
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`has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Id. “While a
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`complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
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`allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
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`more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
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`will not do.” Twombly, 550 U.S. at 555 (cleaned up). While Federal Rule of Civil Procedure 8
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`“marks a notable and generous departure from the hypertechnical, code-pleading regime of a
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`4 Defendant explained in its pre-motion letter that it had concurrently answered and
`requested a pre-motion conference in connection with its anticipated motion to dismiss, in order
`to prevent what it described as Plaintiff’s counsel’s practice of dismissing in one jurisdiction and
`refiling in another in an effort to forum-shop. (ECF No. 8 at 1.)
`5 At the August 11, 2021 conference, I divested my interest as a class member. (ECF No.
`13 at 2:16-23.)
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`6
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`prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more
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`than conclusions.” Iqbal, 556 U.S. at 678-79.
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`In considering whether a complaint states a claim upon which relief can be granted, the
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`court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not
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`entitled to the assumption of truth,” and then determines whether the remaining well-pleaded
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`factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679.
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`Deciding whether a complaint states a plausible claim for relief is “a context-specific task that
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`requires the reviewing court to draw on its judicial experience and common sense.” Id.
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`“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
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`misconduct, the complaint has alleged – but it has not ‘shown’ – ‘that the pleader is entitled to
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`relief.’” Id. (cleaned up) (quoting Fed. R. Civ. P. 8(a)(2)).
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`When deciding a motion to dismiss under Rule 12(b)(6):
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`a district court may consider the facts alleged in the complaint, documents
`attached to the complaint as exhibits, and documents incorporated by reference in
`the complaint. Where a document is not incorporated by reference, the court may
`nevertheless consider it where the complaint relies heavily upon its terms and
`effect, thereby rendering the document integral to the complaint. For a document
`to be considered integral to the complaint, the plaintiff must rely on the terms and
`effect of a document in drafting the complaint; mere notice or possession is not
`enough. And even if a document is integral to the complaint, it must be clear on
`the record that no dispute exists regarding the authenticity or accuracy of the
`document, and it must be clear that there exist no material disputed issues of fact
`regarding the relevance of the document.
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`United States of America ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021) (cleaned
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`up), petition for cert. filed, No. 21-1314 (Apr. 1, 2022). A court may also consider matters “of
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`which judicial notice may be taken under Fed. R. Evid. 201.” Kramer v. Time Warner, Inc., 937
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`F.2d 767, 773 (2d Cir.1991). This includes information on a party’s publicly available website,
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`as long as the authenticity of the site is not in dispute, but such information may be considered
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`only for the fact that it was said, not for its truth. Cotiviti, Inc. v. McDonald, No. 19-CV-6559,
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`2021 WL 2784529, at *6 (S.D.N.Y. July 2, 2021).
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`Defendant supplied, as attachments to the Declaration of Steven A. Zalesin in Support of
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`Defendant Allbirds’ Motion to Dismiss, (ECF No. 19), a PETA publication, (ECF No. 19-1), and
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`a document from Defendant’s website detailing the methodology Defendant uses to calculate the
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`Product’s carbon footprint, (ECF No. 19-8).6 I will consider the PETA publication because it is
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`integral to the complaint, in that it forms the factual basis for most of the allegations in the
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`Amended Complaint. Further, Plaintiff does not dispute her reliance on the publication, its
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`authenticity or its relevance. I also consider the methodology document, the authenticity of
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`which Plaintiff does not dispute, but only for the fact of its contents, not their truth. I am not
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`considering the remaining exhibits Defendant provided. (See ECF Nos. 19-2 through 19-7, 19-
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`9.)
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`III. DISCUSSION
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`New York General Business Law Claims
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`Plaintiff’s first cause of action arises under GBL §§ 349 and 350. Section 349 prohibits
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`“[d]eceptive acts or practices in the conduct of any business, trade, or commerce,” and Section
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`350 prohibits “[f]alse advertising in the conduct of any business, trade or commerce.” N.Y. Gen.
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`Bus. Law §§ 349(a), 350. To state a claim under either section, Plaintiff must show “first, that
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`the challenged act or practice was consumer-oriented; second, that it was misleading in a
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`material way; and third, that the plaintiff suffered injury as a result of the deceptive act.”
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`6 Citations to ECF No. 19-8 refer to the page numbers generated by the Court’s electronic
`filing system.
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`Izquierdo v. Mondelez Int’l, Inc., No. 16-CV-4697, 2016 WL 6459832, at *6 (S.D.N.Y. Oct. 26,
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`2016) (cleaned up); see Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015).
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`“A defendant engages in ‘consumer-oriented’ activity if [the company’s] actions cause
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`any ‘consumer injury or harm to the public interest.’” New York v. Feldman, 210 F. Supp. 2d
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`294, 301 (S.D.N.Y. 2002) (quoting Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264
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`(2d Cir. 1995)). This requirement is liberally construed, id., and “may be satisfied by showing
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`that the conduct at issue potentially affects similarly situated consumers,” Wilson v. Nw. Mut.
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`Ins. Co., 625 F.3d 54, 64 (2d Cir. 2010) (cleaned up). Defendant does not contest that its alleged
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`conduct was consumer-oriented. Plaintiff alleges that Defendant is responsible for
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`“manufactur[ing], market[ing], label[ing], and sell[ing]” the Product, which it sells through its
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`website, brick-and-mortar stores, and third-party sellers, (AC ¶¶ 1, 85), and these allegations
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`suffice to satisfy the first element of Plaintiff’s GBL claim, Brown v. Kerry Inc., No. 20-CV-
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`9730, 2021 WL 5446007, at *3 (S.D.N.Y. Nov. 22, 2021), report and recommendation adopted,
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`2022 WL 669880 (S.D.N.Y. Mar. 7, 2022); see Evergreen E. Coop. v. Bottomley Evergreens &
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`Farms, Inc., No. 20-CV-184, 2021 WL 1163799, at *3 (S.D.N.Y. Mar. 26, 2021) (labeling of
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`product for retail sale “plainly consumer-oriented”), appeal docketed, No. 21-2827 (2d Cir. Nov.
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`21, 2021).
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`New York courts apply an objective standard in determining whether acts or practices are
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`materially deceptive or misleading: whether the alleged act is “likely to mislead a reasonable
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`consumer acting reasonably under the circumstances.” Himmelstein, McConnell, Gribben,
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`Donoghue & Joseph, LLP v. Matthew Bender & Co., 37 N.Y.3d 169, 178 (2021) (cleaned up);
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`see Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007). To survive a motion to
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`dismiss, a plaintiff “must do more than plausibly allege that a label might conceivably be
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`misunderstood by some few consumers.” Sarr v. BEF Foods, Inc., No. 18-CV-6409, 2020 WL
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`729883, at *3 (E.D.N.Y. Feb. 13, 2020) (cleaned up). Rather, a plaintiff must “plausibly allege
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`that a significant portion of the general consuming public or of targeted customers, acting
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`reasonably in the circumstances, could be misled.” Id. (cleaned up). “Although the question of
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`whether a business practice or advertisement is misleading to a reasonable consumer is generally
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`a question of fact, it is ‘well settled that a court may determine as a matter of law that an
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`allegedly deceptive [practice] would not have misled a reasonable consumer.’” Wynn v. Topco
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`Assocs., LLC, No. 19-CV-11104, 2021 WL 168541, at *2 (S.D.N.Y. Jan. 19, 2021) (quoting Fink
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`v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (per curiam)).
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`Plaintiff’s allegations in support of her GBL claims are that Defendant markets the
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`Product using false, deceptive, and misleading statements about environmental impact and
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`animal welfare. (AC ¶¶ 5-74.) She fails to plausibly allege, however, that the statements to
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`which she points are materially misleading.
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`1.
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`Environmental Impact Claims
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`As to the allegedly misleading environmental impact claims, Plaintiff takes issue with
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`Defendant’s use of the LCA tool and the Higg MSI, which inform its calculation of the Product’s
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`carbon footprint. (Id. ¶¶ 8-19.) Plaintiff relies on a publication from PETA that states that the
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`LCA tool “currently only measures the carbon footprint of each product, meaning that it doesn’t
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`assess any other environmental impact of wool production, including on water, eutrophication, or
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`land occupation.” (Id. ¶ 22; ECF No. 19-1 at 2.) But this is a criticism of the tool’s
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`methodology, not a description of a false, deceptive, or misleading statement about the Product.7
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`7 Further, Plaintiff’s allegation that the LCA tool purportedly is unreliable because it
`“uses data from several sources, and there are discrepancies in industry-sourced data,” (AC ¶ 35;
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`Plaintiff does not allege that the calculations Defendant provides are wrong or that Defendant
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`falsely describes the way it undertakes those calculations. That Plaintiff and PETA believe that
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`Defendant should use a different method of measuring the Product’s carbon footprint, (see AC
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`¶¶ 17-19, 21-22; ECF No. 19-1 at 2), does not plausibly suggest that what Defendant in fact says
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`is materially misleading. “[T]he alleged inadequacy of the standards imposed is not enough to
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`render the statements actionable.” Lee v. Can. Goose US, Inc., No. 20-CV-9809, 2021 WL
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`2665955, at *6 (S.D.N.Y. June 29, 2021) (dismissing analogous claim under District of
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`Columbia law because although plaintiff “argues that [defendant’s] compliance, regulation, and
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`licensing are insufficient and unsatisfactory by some accounts,” plaintiff did not allege
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`defendant’s statements regarding them were inaccurate).
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`Plaintiff does not allege that a reasonable consumer would expect Defendant to use
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`another method of calculation or would be misled by Defendant’s use of the LCA tool or the
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`Higg MSI. In advertising the Product’s carbon footprint calculations, Defendant describes the
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`exact components of the calculation, (AC ¶ 13), and Plaintiff provides no facts suggesting that
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`Defendant is not calculating the carbon footprint as advertised. Indeed, Defendant on its website
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`provides consumers with details regarding the LCA tool’s methodology and the categories used
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`in its calculation, (see generally ECF No. 19-8), never indicating that it includes methane
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`emissions from land occupation or eutrophication,8 or that it accounts for the entire life-cycle of
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`ECF No. 19-1 at 2), is too vague to plausibly suggest a material misrepresentation. The
`Amended Complaint contains no facts regarding what the discrepancies are or how they render
`the tool unreliable. “New York courts routinely dismiss GBL claims where the allegations are
`insufficiently specific to establish a deceptive practice.” Canestaro v. Raymour & Flanigan
`Furniture Co., 984 N.Y.S.2d 630 (Table), 2013 WL 6985415, at *2 (Sup. Ct. 2013).
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`8 Defendant states that it does include methane emissions from the four categories in its
`calculations (materials, manufacturing, use and end of life) by converting them to carbon dioxide
`equivalents, (ECF No. 19-8 at 3), and Plaintiff nowhere alleges that it does not do so.
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`wool production. Defendant does not mislead the reasonable consumer because it makes clear
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`what is included in the carbon footprint calculation, and does not suggest that any factors are
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`included that really are not. Further, as Defendant argues, (D’s Mem. at 13-14), Plaintiff does
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`not allege that a reasonable consumer would expect a carbon footprint calculation for a shoe
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`manufacturer to include non-atmospheric inputs, such as land occupation and eutrophication, or
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`to include carbon generated from the production of raw materials before they come into the
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`manufacturer’s hands. In short, I agree with Defendant, (id. at 14), that it is not plausible that a
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`consumer would be misled into thinking that Defendant undertook its carbon-footprint
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`calculation in any manner other than the one it describes in its literature, and Plaintiff has not
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`suggested that Defendant does not in fact do it in that manner. See Gomez-Jimenez v. N.Y. L.
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`Sch., 956 N.Y.S.2d 54, 59 (App. Div. 2012) (“[A] party does not violate GBL 349 by simply
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`publishing truthful information and allowing consumers to make their own assumptions about
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`the nature of the information.”).
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`Nor does Plaintiff sufficiently allege that Defendant materially misleads a reasonable
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`consumer by relying on the Higg MSI to calculate the CO2e of its materials. That the Higg
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`MSI’s calculation does not go beyond raw materials, and that the number would be higher if it
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`included “the entire lifecycle of wool production,” (AC ¶ 34), is, again, simply a critique of its
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`methodology. “That the relevant standards may . . . be . . . inadequate does not render
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`[Defendant’s] representations as to compliance [with those standards] false or misleading.” Lee,
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`2021 WL 2665955, at *6. There may well be room for improvement in the Higg MSI, (see AC ¶
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`21), but that does not suggest that reliance on the current standard is deceptive. Defendant
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`discloses its reliance on the Higg MSI as its data source for measuring the CO2e of its materials,
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`(ECF No. 19-8 at 5), and Plaintiff provides no facts suggesting that a reasonable consumer would
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`understand a calculation of a material’s CO2e to include the CO2e generated before the material
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`came into existence or otherwise expect that a more expansive standard be used. Cf. Gedalia v.
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`Whole Foods Mkt. Servs., Inc., 53 F. Supp. 3d 943, 955 (S.D. Tex. 2014) (plaintiffs’ claims fail
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`under California’s “reasonable consumer” standard because they “offer no reason that the
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`reasonable consumer would assume 365 Brands organic products are any more organic than
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`what organic certifying agencies require”).
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`Plaintiff also argues that Defendant improperly omitted information relating to the
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`environmental impact of the wool industry’s methane emissions, land occupation, and
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`eutrophication. “[A] plaintiff can only state a claim for omission under the GBL where the
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`business alone possesses material information that is relevant to the consumer and fails to
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`provide this information.” Gordon v. Target Corp., No. 20-CV-9589, 2022 WL 836773, at *10
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`(S.D.N.Y. Mar. 18, 2022) (cleaned up); see Yodice v. Touro Coll. & Univ. Sys., No. 21-CV-2026,
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`2021 WL 5140058, at *5 (S.D.N.Y. Nov. 4, 2021). Defendant clearly did not alone possess the
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`allegedly omitted information, given that Plaintiff cites to environmental researchers, PETA, the
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`2017 Pulse of the Fashion Industry Report, “industry sources,” and the United Kingdom’s House
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`of Commons Environmental Audit Committee as discussing the environmental impact of the
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`wool industry and sheep farming. (See AC ¶¶ 19, 22-23, 25, 27); see Gordon, 2022 WL 836773,
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`at *11 (plaintiff failed to plausibly allege that defendant improperly omitted information because,
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`according to plaintiff, health experts had been publishing it for years). Plaintiff’s belief that “the
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`onus is on Defendant” to not omit this information because “[r]easonable consumers are not
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`likely to know of eutrophication and methane emissions from sheep,” (P’s Opp. at 10), is
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`insufficient to show Defendant materially misled reasonable consumers, see Gordon, 2022 WL
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`836773, at *11. There is no obligation under GBL § 349 or § 350 to provide whatever
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`Case 7:21-cv-05238-CS Document 22 Filed 04/18/22 Page 14 of 25
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`information a consumer might like to know. See Oswego Laborers’ Loc. 214 Pension Fund v.
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`Marine Midland Bank, N.A., 85 N.Y.2d 20, 26 (1995) (“In the case of omissions in particular . . .
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`[§ 349] surely does not require businesses to ascertain consumers’ individual needs and
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`guarantee that each consumer has all relevant information specific to its situation.”). Further,
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`Defendant’s literature states that the “materials” component of its carbon-footprint calculation
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`consists of the CO2e from the production, extraction, processing, and packaging of raw
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`materials. (ECF No. 19-8 at 3.) Plaintiff provides no basis to find it plausible that a reasonable
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`consumer would expect that calculation to include non-atmospheric effects or effects from the
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`farming that precedes the production of the raw materials.
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`2.
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`Animal Welfare Claims
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`Plaintiff takes issue with Defendant’s marketing scheme that involves depictions of
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`“happy” sheep in “pastoral settings,” alleging that they rest on “empty welfare policies that do
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`little to stop animal suffering.” (AC ¶¶ 37, 40.) But Plaintiff fails to identify any misstatement
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`in any advertisement that would deceive consumers. She points to two advertisements that show
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`sheep in a field, one of which says, “What if every time you got a haircut they made shoes out of
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`it? That would be pretty cool,” and the other of which says, “Behind every shoe is a sheep. And
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`behind every sheep, is another sheep, probably.” (AC ¶¶ 38-39.) These ads, which are
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`obviously intended to be humorous, make no representations at all. As Plaintiff concedes, (P’s
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`Opp. at 5), Defendant nowhere describes the sheep as “happy.” Instead, Plaintiff criticizes the
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`sheep industry and wool harvesting practices as a whole, (AC ¶¶ 41-42, 45-57), which does “not
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`satisfy Plaintiff’s burden to allege that a specific advertisement or statement by Defendant would
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`mislead a reasonable consumer as to the Product.” Gordon, 2022 WL 836773, at *10.
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`Case 7:21-cv-05238-CS Document 22 Filed 04/18/22 Page 15 of 25
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`Plaintiff also states that Defendant “has claimed that its wool harvesting practices is [sic]
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`sustainable, humane and that it intends to eventually source ‘only wool from “regenerative”
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`sources.’” (AC ¶ 43.)9 Plaintiff contends this statement is misleading, based on a PETA
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`publication that found cruelty to sheep at over 100 large-scale operations. (Id. ¶ 45; see ECF No.
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`19-1 at 1.) But Plaintiff pleads nothing related to the wool used by Defendant. Rather, “Plaintiff
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`seems to take issue with the [wool] industry as a whole.” Gordon, 2022 WL 836773, at *10.
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`The underlying evidence on which Plaintiff relies – the PETA posting – does not describe any
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`animal cruelty specific to Defendant or its products, and “allegations that the [wool] industry as a
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`whole deceives consumers do not satisfy Plaintiff’s burden to allege that a specific advertisement
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`or statement by Defendant would mislead a reasonable consumer as to the Product.” Id.; see
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`Podpeskar v. Dannon Co., Inc., No. 16-CV-8478, 2017 WL 6001845, at *4 (S.D.N.Y. Dec. 3,
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`2017) (claim dismissed where plaintiff alleged little about defendant’s specific practices;
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`“[r]ather, her argument is predicated on her own speculation that if the cows that produced the
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`milk that [the defendant] used to make its [product] ate food with GMOs or were fed antibiotics,
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`that their milk is necessarily not natural, nor is the yogurt that is made from it”).
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`9 Plaintiff challenges this alleged statement as concealing that Defendant’s sheep are not
`treated humanely. (AC ¶ 46-67.) She does not address the sustainability of Defendant’s wool
`harvesting (except as discussed in the previous section) and does not allege that Defendant did
`not in fact intend to eventually source its wool as described. I therefore limit my discussion to
`the allegation of inhumane treatment.
`Plaintiff does allege that “PETA also noted that Allbirds’ ‘use of discarded crab shells as
`‘better for the planet,’ is false, deceptive, and misleading,” (id. ¶ 68), because the crab industry is
`“inherently harmful,” (id. ¶ 69). The “inherent harm” comes from endangered whales being
`caught in crab fishing gear and the effects of climate change on crab populations. (Id.) These
`general, industry-wide criticisms of the crab business do not begin to suggest that Defendant
`recycling the shells is not better for the planet than leaving them as trash.
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`Case 7:21-cv-05238-CS Document 22 Filed 04/18/22 Page 16 of 25
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`The allegations here differ from those in Lee, where the plaintiff took issue with claims of
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`“ethical, responsible, and sustainable” sourcing of fur used in winter coats. 2021 WL 2665955,
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`at *2.10 The Lee court found that “[t]hough the allegations [were] thin,” the plaintiff had
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`plausibly pleaded that the defendant’s statements were misleading to reasonable consumers
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`because, although plaintiff did not explicitly allege that the defendant sourced fur using the
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`problematic methods plaintiff described, the plaintiff did allege that these methods were “used in
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`all Canadian provinces and across the U.S.” – from which the defendant sourced its fur – and
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`were “widely used in the U.S. and Canada, including by trappers who abide by the standards
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`cited by” the defendant. Id. at *7. Respectfully, I am not sure I would have reached the s