Case 1:20-cv-00461-RP Document 1 Filed 04/30/20 Page 1 of 17
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`Case No. 1:20-cv-00461
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`KENNETH BELL, SHERRY DABBS-
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`LAURY, CHARLENE DIRKS,
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`WENDY BROWN, and TONNIE
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`WALKER-BECK, on behalf of
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`themselves and all others similarly
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`situated,
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`Plaintiffs,
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`v.
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`CAL-MAINE FOODS, ROSE
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`ACRE FARMS, INC., HILLANDALE
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`FARMS, TRILLIUM FARM
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`HOLDINGS, LLC, REMBRANDT
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`ENTERPRISES, INC., HICKMAN
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`EGG RANCH, INC., DAYBREAK
`FOODS, INC., WEAVER BROS., INC., )
`SPARBOE FOODS CORP.,
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`HERBRUCK’S POULTY RANCH,
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`INC., CENTRUM VALLEY FARMS,
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`L.P., OPAL FOODS, LLC, MIDWEST
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`POULTRY SERVICES, L.P.,
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`COSTCO WHOLESARE CORP.,
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`ALBERTSON’S COMPANIES, INC.,
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`WAL-MART STORES, INC.,
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`THE KROGER CO.,
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`HEB GROCERY CO., L.P.,
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`BROOKSHIRE’S GROCERY CO.,
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`LOWE’S MARKETS, INC.
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`Defendants.
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`CLASS ACTION COMPLAINT
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`Case No. 1:20-cv-00461
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`)
`KENNETH BELL, SHERRY DABBS-
`)
`LAURY, CHARLENE DIRKS,
`
`)
`WENDY BROWN, and TONNIE
`
`)
`WALKER-BECK, on behalf of
`
`)
`themselves and all others similarly
`)
`situated,
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`
`
`
`)
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`
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`
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`
`
`)
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`Plaintiffs,
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`)
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`v.
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`)
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`CAL-MAINE FOODS, ROSE
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`ACRE FARMS, INC., HILLANDALE
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`FARMS, TRILLIUM FARM
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`HOLDINGS, LLC, REMBRANDT
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`ENTERPRISES, INC., HICKMAN
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`EGG RANCH, INC., DAYBREAK
`FOODS, INC., WEAVER BROS., INC., )
`SPARBOE FOODS CORP.,
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`HERBRUCK’S POULTY RANCH,
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`INC., CENTRUM VALLEY FARMS,
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`L.P., OPAL FOODS, LLC, MIDWEST
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`POULTRY SERVICES, L.P.,
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`COSTCO WHOLESARE CORP.,
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`ALBERTSON’S COMPANIES, INC.,
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`WAL-MART STORES, INC.,
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`THE KROGER CO.,
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`HEB GROCERY CO., L.P.,
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`BROOKSHIRE’S GROCERY CO.,
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`LOWE’S MARKETS, INC.
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`Defendants.
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`CLASS ACTION COMPLAINT
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`Case 1:20-cv-00461-RP Document 1 Filed 04/30/20 Page 2 of 17
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`1.
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`This statewide class action concerns the despicable and illegal practice
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`INTRODUCTION
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`of price-gouging of essential groceries, specifically eggs, in the midst of the ongoing
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`and unprecedented pandemic. Plaintiffs and the class they seek to represent bought
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`grossly marked-up eggs through the supply chain created by the defendants, which
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`includes producers, wholesalers, and retailers. Because consumers such as plaintiffs
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`lack access to information about which of the defendants, or all of them, participated
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`in the price-gouging resulting in a near-tripling of egg prices in the past 30 days,
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`plaintiffs have sued all the defendants in the alternative. Plaintiffs cannot assert that
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`every defendant engaged in price-gouging, but plaintiffs can and do assert that some
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`or all of these defendants illegally marked up egg prices following Governor
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`Abbott’s declaration of an emergency in violation of Texas law.
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`2.
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`The world is in the midst of a global pandemic involving a novel
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`coronavirus called COVID-19 that causes an often severe and sometimes fatal
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`respiratory infection. The outbreak originated in December, 2019, in Wuhan, Hubei
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`Province, China, and in short order the local epidemic spread globally and was
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`deemed a pandemic by the World Health Organization in March, 2020.
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`3.
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`The first reported case of COVID-19 in the United States was
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`diagnosed in Washington state in late January, 2020. The case involved a man who
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`had recently travelled to the epicenter of the outbreak in Wuhan. Although this was
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`the first case confirmed by the Centers for Disease Control, scientists and public
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`health officials now believe that there may have been other cases of COVID-19 in
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`the United States prior to that date.
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`4.
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`By mid-March 2020, there were reported cases in all 50 American
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`states. The federal government, most states, and many local governments called for
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`stay-at-home and social distancing measures designed to slow the spread of the
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`disease. Texas Governor Greg Abbott declared a state of emergency in this state on
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`March 13, 2020 and extended it on April 12, 2020. As of the writing of this
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`complaint, the vast majority of Americans are subject to similar measures. Even in
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`areas not subject to government-mandated stay-at-home orders, most people are
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`voluntarily staying at home except to shop for necessities and to go to work in
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`“essential” occupations such as healthcare and food sales and delivery services. The
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`undersigned counsel writing this complaint is doing so from his home office.
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`5.
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`The economic effect of the government-mandated and voluntary
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`measures to combat the pandemic has been extreme. Many are out of work. Many
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`have had their wages and salaries reduced. Bars and restaurants have been mostly
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`closed for weeks, some remaining open but limiting themselves to curbside delivery
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`and home delivery, and it is predicted many will never re-open. Professional and
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`college sports seasons have been canceled altogether, throwing many out of work.
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`Schools, colleges, and universities are now limited to online classes. Those in the
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`Case 1:20-cv-00461-RP Document 1 Filed 04/30/20 Page 4 of 17
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`business of putting on concerts, plays, and other forms of entertainment are idle as
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`public gatherings have been banned. All casinos are closed, throwing many more
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`out of work. The Riverwalk in San Antonio, Sixth Street in Austin, and other famous
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`Texas attractions are all deserted. Oil prices are at their lowest point in decades. The
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`stock market is in freefall.
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`6.
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`As in any time of economic turmoil, there are those who seek to profit
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`from the misery of millions. Defendants, who are producers, wholesalers, and
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`retailers of eggs, comprise one such set of actors seeking to unfairly profit from the
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`increased consumer demand for eggs in the midst of the ongoing crisis. Again,
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`because it is impossible for consumers such as plaintiffs to obtain information
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`concerning the secretive process of price-setting, this lawsuit does not assert that
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`each and every defendant engaged in price-gouging. Rather, plaintiffs assert that, at
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`a minimum, some of these defendants did so. This pleading in the alternative is
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`specifically authorized by Rule 20(2)(A) of the Federal Rules of Civil Procedure.
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`7.
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`Between the onset of the COVID-19 pandemic and March 30, 2020, the
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`price of eggs nearly tripled in Texas. In the weeks since, they have remained much
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`higher than their pre-emergency prices. Some or all of the defendants are engaging
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`in price-gouging prohibited by Texas law. Plaintiffs allege this because of the
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`undeniable fact that egg prices nearly tripled after the emergency declaration.
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`Case 1:20-cv-00461-RP Document 1 Filed 04/30/20 Page 5 of 17
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`PARTIES
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`8.
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`Plaintiff Kenneth Bell purchased eggs at a store owned or operated by
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`defendant HEB Grocery Co., LP, at a grossly inflated price after the declaration of
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`emergency by Governor Abbott.
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`9.
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`Plaintiff Sherry Dabbs-Laury purchased eggs at stores owned or
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`operated by defendants Lowe’s Markets Inc., Costco Wholesale Corp., Walmart
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`Stores, Inc., and The Kroger Company at grossly inflated prices after the declaration
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`of emergency by Governor Abbott.
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`10. Plaintiff Charlene Dirks purchased eggs at stores owned or operated by
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`defendants Brookshire’s Grocery Co., Walmart Stores, Inc., and The Kroger
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`Company at grossly inflated prices after the declaration of emergency by Governor
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`Abbott.
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`11. Plaintiff Wendy Brown purchased eggs at a store owned by defendant
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`Walmart Stores, Inc. at a grossly inflated price after the declaration of emergency by
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`Governor Abbott.
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`12. Plaintiff Tonnie Walker-Beck purchased eggs at a store owned by
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`defendant Albertson’s Companies, Inc. at a grossly inflated price after the
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`declaration of emergency by Governor Abbott
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`5
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`Case 1:20-cv-00461-RP Document 1 Filed 04/30/20 Page 6 of 17
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`13. Defendant Cal-Maine Foods, Inc. is a corporation organized under the
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`laws of Delaware with its principal place of business in Jackson, Mississippi. It is a
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`corporate citizen of Delaware and Mississippi.
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`14. Defendant Rose Acre Farms, Inc. is a corporation organized under the
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`laws of Indiana with its principal place of business in Seymour, Indiana. It is a
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`corporate citizen of Indiana.
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`15. Defendant Hillandale Farms is a corporation organized under the laws
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`of Ohio, with its principal place of business in Newark, Ohio. It is a corporate citizen
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`of Ohio.
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`16. Defendant Trillium Farm Holdings, LLC is an entity organized under
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`the laws of Ohio, with its principal place of business in Johnstown, Ohio. It is a
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`corporate citizen of Ohio.
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`17. Defendant Rembrandt Enterprises, Inc. is a corporation organized
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`under the laws of Iowa, with its principal place of business in Spirit Lake, Iowa. It
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`is a corporate citizen of Iowa.
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`18. Defendant Hickman’s Egg Ranch, Inc. is a corporation organized under
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`the laws of Arizona, with its principal place of business in Buckeye, Arizona. It is a
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`corporate citizen of Arizona.
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`19. Defendant Daybreak Foods, Inc. is a corporation organized under the
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`laws of Wisconsin, with its principal place of business in Lake Mills, Wisconsin. It
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`is a corporate citizen of Wisconsin.
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`20. Defendant Weaver Bros., Inc. is a corporation organized under the laws
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`of Ohio, with its principal place of business in Versailles, Ohio. It is a corporate
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`citizen of Ohio.
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`21. Defendant Sparboe Foods Corp. is a corporation organized under the
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`laws of Iowa, with its principal place of business in Litchfield, Minnesota. It is a
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`corporate citizen of Iowa and Minnesota.
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`22. Defendant Herbruck’s Poultry Ranch, Inc. is a corporation organized
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`under the laws of Michigan, with its principal place of business in Saranac,
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`Michigan. It is a corporate citizen of Michigan.
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`23. Defendant Centrum Valley Farms, L.P., is an entity organized under
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`the laws of Indiana, with its principal place of business in Clarion, Iowa. It is a
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`corporate citizen of Iowa and Indiana.
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`24. Defendant Opal Foods, LLC is an entity organized under the laws of
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`Delaware, with its principal place of business in Neosho, MO. It is a corporate citizen
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`of Delaware and Missouri.
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`25. Defendant Midwest Poultry Services, L.P., is an entity organized under
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`the laws of Indiana, with its principal place of business in Mentone, Indiana. It is a
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`corporate citizen of Indiana.
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`26. The defendants described in Paragraphs 15-27 are involved in egg
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`production, distribution, and wholesale delivery, and are in the supply chain bringing
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`eggs to market in the Western District of Texas.
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`27. Defendant Costco Wholesale Corp. is a corporation organized under
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`the laws of Washington with its principal place of business in Issaquah, Washington.
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`It is a corporate citizen of Washington.
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`28. Defendant Albertson’s Companies, Inc. is a corporation organized
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`under the laws of Delaware, with its principal place of business in Boise, Idaho. It is
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`a corporate citizen of Delaware and Idaho.
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`29. Defendant Wal-Mart Stores, Inc. is a corporation organized under the
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`laws of Delaware, with its principal place of business in Bentonville, Arkansas. It is
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`a corporate citizen of Delaware and Arkansas.
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`30. Defendant The Kroger Co. is a corporation organized under the laws of
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`Ohio, with its principal place of business in Cincinnati, Ohio. It is a corporate citizen
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`of Ohio.
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`31. Defendant HEB Grocery Co., L.P. is an entity organized under the laws
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`of Texas, with its principal place of business in San Antonio, Texas. It is a corporate
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`citizen of Texas.
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`32. Defendant Brookshire’s Grocery Co. is a corporation organized under
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`the laws of Texas, with its principal place of business in Tyler, Texas. It is a
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`corporate citizen of Texas.
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`33. Defendant Lowe’s Markets, Inc. is a corporation organized under the
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`laws of Texas, with its principal place of business in Littlefield, Texas.
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`34. The defendants described in paragraphs 29-34 are owners or operators
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`of retail stores or online retailers doing business in this district.
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` JURISDICTION AND VENUE
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`35.
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`Jurisdiction is proper in this Court under 28 U.S.C. § 1332 because the
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`claims in this case form part of a class action in which the amount in controversy
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`exceeds the sum of $5,000,000.00 and the members of the class include citizens of
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`different states than some or all of the defendants.
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`36. Venue is proper in this Court under 28 U.S.C. § 1391(b)(2) because a
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`substantial portion of the events giving rise to plaintiffs’ complaint occurred in this
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`district.
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`37. Each defendant, whether a retailer, wholesaler, or producer of eggs, is
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`in the business of supplying eggs to customers in this federal district. Each defendant
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`is part of the supply chain for eggs in Texas.
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`LEGAL FRAMEWORK AND BACKGROUND
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`38. The Texas Deceptive Trade Practices Act contains a section that
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`specifically addresses the pricing of necessities like food in an emergency situations.
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`Section 17.46(b)(27) of the Texas Business and Commerce Code prohibits “selling
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`or leasing fuel, food, medicine, lodging, building materials, construction tools, or
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`another necessity at an exorbitant or excessive price.”
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`39. This section applies when Section 17.4625 of the same code is
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`triggered. Section 17.4625 states that the “designated disaster period” begins, inter
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`alia, when the Governor issues a proclamation or executive order declaring the
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`disaster. This period ends thirty days after the disaster declaration expires.
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`40. Governor Greg Abbott issued a disaster declaration on March 13th, and
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`extended it for an additional 30 days on April 12th. See “Texas Gov. Greg Abbott
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`extends
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`disaster
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`declaration
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`for
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`30
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`days,”
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`available
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`at
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`https://abc13.com/coronavirus-covid-19-pandemic-texas-governor-abbott/6097736
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`41. Because a declared disaster has existed in this state since March 13th,
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`the provisions of Section 17.46(b)(27) have been in effect, making it unlawful for
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`anyone in the state to sell food at an exorbitant or excessive price.
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`42. Nothing in the Texas Code limits this provision to food or other
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`necessities being sold at retail, rather than by producers, distributors, or wholesalers.
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`On the contrary, the natural implication of the provision is that all sales at an
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`exorbitant or excessive price, at any level of the supply chain, are prohibited during
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`a declared disaster.
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`43. Before the pandemic, the price for generic eggs in Texas hovered near
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`$1.00 per dozen. During the month of March, that price nearly tripled to almost $3.00
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`per dozen. This increase has not been caused by an increase in the cost or difficulty
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`in producing eggs. Rather, it has been driven by increased demand, caused by the
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`emergency situation. The price-gouging statute exists to prevent unscrupulous
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`companies from taking advantage of such demand in emergencies. Yet many egg
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`producers, wholesalers, and retailers have done precisely that. Because the price
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`of eggs nearly tripled during the month of March, and have remained at excessive or
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`exorbitant prices to this day, it is clear that some defendant, or all of them, has
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`disregarded Texas law and taken outrageous advantage of the emergency situation
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`to profit from the misery of Texas residents.
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`44. Pursuant to Rule 20 of the Federal Rules of Civil Procedure, plaintiffs
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`may join all defendants against whom they seek relief jointly, severally, or in the
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`alternative, arising out of the same transaction or series of transactions. Plaintiffs’
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`purchases of eggs from retailers was part of a series of transactions that also included
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`any other sale of the eggs that occurred between their being laid and their arrival at
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`the point of retail sale. Plaintiffs seek relief in the alternative from any and all entities
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`that marked up the eggs more than ten percent during the COVID-19 emergency.
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`CLASS ALLEGATIONS
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`45. This statewide class action is maintainable against the defendants
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`pursuant to Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs seek to
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`represent the following class against each defendant:
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`All consumers who purchased eggs in the state of Texas that were sold,
`distributed, produced, or handled by any of the defendants during the
`state of emergency declared by Governor Greg Abbott on March 13,
`2020. All employees of the Court and plaintiffs’ counsel are excluded.
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`46. Because plaintiffs bring this case in the alternative against numerous
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`individual entities involved in selling eggs in Texas, plaintiffs anticipate that they
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`will seek to certify a number of subclasses against particular defendants.
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` 47. Pursuant to Rule 23(a)(1), the class is so numerous that joinder of all
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`class members is impracticable. Texas is the nation’s second most populous state,
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`with more than 28 million residents. Since the average per capita egg consumption
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`in the United States is more than 285 per year, this means that Texans purchase
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`almost
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`eight
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`billion
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`eggs
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`per
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`year.
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`See
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`https://www.statista.com/statistics/183678/per-capita-consumption-of-eggs-in-the-
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`us-since-2000/. The vast majority of these eggs are sold by the defendants named in
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`this lawsuit, who represent a large percentage of the Texas grocery market, as well
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`as the thirteen largest wholesalers of eggs in Texas. The number of people who
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`purchased eggs during the state of emergency is far too large for practicable joinder
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`in a single suit.
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`48.
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`Pursuant to Rule 23(a)(2), this case is predominated by questions of law
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`and fact common to all class members, including whether the defendants charged an
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`excessive or exorbitant price for eggs during the COVID-19 emergency.
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`49.
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`Pursuant to Rule 23(a)(3), the claims of the named plaintiffs are typical
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`of those of the class. Every member of the class is a consumer who purchased eggs
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`during the emergency.
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`50.
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`Pursuant to Rule 23(a)(4), the named plaintiffs will fairly and
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`adequately represent the interests of the class. The named plaintiffs have no interest
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`adverse to the interests of absent class members. The named plaintiffs have hired
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`experienced class action plaintiff lawyers as class counsel, who will diligently and
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`competently represent the interests of the class.
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`51.
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`Pursuant to Rule 23(b), questions of law and fact common to all class
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`members predominate over any questions affecting only individual class members.
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`The claims of the named plaintiff, like those of all class members, arise out of
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`conduct by one or more of the defendants to raise the price of eggs in Texas, affecting
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`all Texas consumers, and thus all class members, in the same fashion. For these
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`reasons, a class action is far superior to other available methods of adjudicating this
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`controversy. Individual lawsuits would be inefficient and duplicative by comparison.
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`COUNT ONE: VIOLATION OF THE TEXAS DECEPTIVE TRADE
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`PRACTICES ACT
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`CLAIM FOR INJUNCTIVE RELIEF
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`52.
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`Plaintiffs incorporate by reference the factual averments of the
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`preceding paragraphs as if fully set forth herein.
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`53. The Texas Deceptive Trade Practices Act (DTPA, Tex. Bus. &
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`Comm.Ed Code Chapter 17) prohibits businesses from engaging “false, misleading,
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`or deceptive practices,” and contains an illustrative list of such practices.
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`54.
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`One of the practices explicitly banned in the DTPA’s list is “selling or
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`leasing fuel, food, medicine, lodging, building materials, construction tools, or
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`another necessity at an exorbitant or excessive price.” Tex. Bus. & Comm. Code §
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`17.46(b)(27). Subsection 27 also bans “demanding an exorbitant or excessive price”
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`for such items. Id.
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`55.
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`One or more defendants violated § 17.46(b)(27) by unjustifiably raising
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`the price of eggs to an exorbitant or excessive price during the declared state of
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`emergency.
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`56.
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`Plaintiffs sent the notice required by Section 17.505 of the Business and
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`Professions Code prior to filing this action, and intend to proceed with the case sixty
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`Case 1:20-cv-00461-RP Document 1 Filed 04/30/20 Page 15 of 17
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`days after the date of the notice. In addition, plaintiffs sent a copy of these notices to
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`the Consumer Protection Division of the Texas Attorney General’s office.
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`57.
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`The Texas Deceptive Trade Practices Act Authorizes injunctive relief
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`for violation of any of the enumerated categories in Section 17.46 of the Business
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`and Professions Code. Tex. Bus. & Prof. Code 17.50(b)(2).
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`58.
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`Plaintiffs seek to enjoin all defendants from selling (at any level in the
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`supply chain) eggs at a price more than ten percent greater than the price of eggs
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`prior to the declaration of emergency on March 13, 2020.
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`COUNT TWO: VIOLATION OF THE TEXAS DECEPTIVE TRADE
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`PRACTICES ACT
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`CLAIM FOR DAMAGES, INCLUDING TREBLE DAMAGES
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`59.
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`Plaintiffs incorporate by reference and reallege all factual averments of
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`the preceding paragraphs as if fully set forth herein.
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`60. As explained in Count One, the defendants violated the Texas
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`Deceptive Trade Practices Act, specifically subsection 27 of Section 17.46(b) of the
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`Texas Business and Professions Code, by selling eggs at an exorbitant or excessive
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`price.
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`61. Defendants, or some of them, set the exorbitant or excessive price of
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`eggs intentionally.
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`62.
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`This intentional violation entitles plaintiffs and the class to damages,
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`including up to three times the excess amount paid for eggs during the emergency.
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`PRAYER FOR RELIEF
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`Plaintiff respectfully prays for the following relief,
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`(A) An order certifying the above-described class pursuant to Federal
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`Rule of Civil Procedure 23, with appropriate notice to absent class
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`members;
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`(B) An order appointing plaintiffs’ counsel as class counsel for the
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`statewide class;
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`(C) A declaratory ruling that the defendants have engaged in the
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`practices alleged herein in violation of Texas law;
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`(D) A permanent injunction enjoining defendants from selling eggs at
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`prices prohibited by Section 17.46(b)(27) of the Texas Business &
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`Professions Code for the remainder of the COVID-19 emergency;
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`(E) After a jury trial, and award of damages, including treble damages, to
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`plaintiffs and absent class members in an amount determined by the court
`
`pursuant to Texas law;
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`(F) Attorneys’ fees as authorized by Section 17.50(d) of the Texas
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`Business & Professions Code;
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`(G) Any further or different relief the Court may find appropriate.
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`
`
`16
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`
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`Case 1:20-cv-00461-RP Document 1 Filed 04/30/20 Page 17 of 17
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`Respectfully submitted,
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`
`
`/s/ Alexander McSwain
`ATTORNEY
`THE CARLSON LAW FIRM
`Texas State Bar No: 24106292
`100 E. Central Texas Expy
`Killeen, TX 76541
`Telephone: (800) 359-5690
`Facsimile: (254) 526-8204
`E-Mail:
`amcswain@carlsonattorneys.com
`
`John E. Norris
`(pro hac vice anticipated)
`DAVIS & NORRIS, LLP
`2154 Highland Avenue South
`Birmingham, AL 35205
`Telephone: 205.930.9900
`Facsimile: 205.930.9989
`jnorris@davisnorris.com
`
`ATTORNEYS FOR PLAINTIFFS
`
`
`
`
`
`
`
`
`17
`
`
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