Ehlers v. Ben & Jerry's Homemade Inc.
| Decision Date | 07 May 2020 |
| Docket Number | Case No. 2:19-cv-00194 |
| Court | U.S. District Court — District of Vermont |
| Parties | JAMES EHLERS, on behalf of himself and all others similarly situated, Plaintiff, v. BEN & JERRY'S HOMEMADE INC., and CONOPCO INC. d/b/a UNILEVER UNITED STATES, Defendants. |
(Doc. 9)
Plaintiff James Ehlers brings this action on behalf of a proposed class of similarly situated individuals against Ben & Jerry's Homemade Inc., ("Ben & Jerry's") and Conopco Inc., d/b/a Unilever United States ("Unilever" and collectively, "Defendants") alleging that Defendants' statements on Ben & Jerry's ice cream cartons and website that Ben & Jerry's sources dairy products from "happy cows" on "Caring Dairy" farms are materially misleading. Plaintiff alleges three causes of action against Defendants: violation of the Vermont Consumer Protection Act ("VCPA"), 9 V.S.A. §§ 2451-2480g (Count I); breach of an express warranty (Count II); and unjust enrichment (Count III). In addition to compensatory damages, Plaintiff seeks injunctive relief.
Pending before the court is Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) filed on January 13, 2020, in which Defendants argue that the description of cows as "happy" is a nonactionable opinion statement; that the alleged misrepresentation on Ben & Jerry's website regarding Caring Dairy standards is not misleading or material; that Plaintiff fails to state plausible claims for breach of an express warranty or unjust enrichment; and that Plaintiff does not have standing to pursue injunctive relief on behalf of himself or the proposed class. (Doc. 9.) On February 12, 2020, Plaintiff filed an opposition. Defendants filed a reply on February 26, 2020, at which time the court took the pending motion under advisement.
Plaintiff is represented by Kim Richman, Esq., Jay Shooster, Esq., and Joshua L. Simonds, Esq. Defendants are represented by Walter E. Judge, Jr., Esq., James P. Muehlberger, Esq., and Buffy J. Mims, Esq.
I. Allegations in the Complaint.
Plaintiff is a resident of Winooski, Vermont who purchases a variety of Ben & Jerry's ice creams from a Shaw's supermarket in Colchester, Vermont. Ben & Jerry's is an ice cream manufacturer incorporated in Vermont with its principal place of business in Burlington, Vermont and is a wholly owned subsidiary of Unilever, which is a New York corporation with its principal place of business in Englewood Cliffs, New Jersey. Plaintiff alleges that the court has subject matter jurisdiction pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d) ("CAFA") because the proposed class involves more than 100 members, because there is diversity of citizenship between Plaintiff and Unilever, and because the amount in controversy exceeds the sum of $5,000,000.
Ben & Jerry's was founded in 1978 in Burlington, Vermont by Ben Cohen and Jerry Greenfield. Plaintiff asserts that Ben & Jerry's rose to prominence in the 1980s and 1990s as a socially conscious, Vermont-based company which attracted consumers due to "the brand and all that it represented[.]" (Doc. 1 at 1, ¶ 2.) Plaintiff further alleges that Ben & Jerry's "reputation for being socially and environmentally conscious" was a "valuable and significant component of Unilever's acquisition of the brand[.]" Id. at 2, ¶ 4. Even though Mr. Cohen and Mr. Greenfield are no longer involved in the day-to-day management of Ben & Jerry's, Plaintiff asserts that Unilever "continues to capitalize" on Ben & Jerry's goodwill and reputation. Id. at 2, ¶ 6.
Plaintiff alleges that in the "past several years," Unilever has breached consumers' trust by representing on Ben & Jerry's ice cream packaging and website that Ben & Jerry's products are "sourced exclusively from 'happy cows' on Vermont dairies that participate in a special, humane 'Caring Dairy' program." Id. at 2, ¶ 7. Thisrepresentation is allegedly material to consumers who choose to purchase Ben & Jerry's products and who view Ben & Jerry's as a socially conscious, independent Vermont company. In reality, however, Plaintiff asserts that only a percentage of the milk used in Ben & Jerry's products is sourced from the Caring Dairy program, while the remainder comes from mass-production dairy operations, purportedly "exactly what consumers who choose Ben & Jerry's Products would like to avoid." Id. at 2-3, ¶ 8.
Ben & Jerry's ice cream packaging, signage in its retail locations, and take-away cups "present the Products as made with milk produced by 'happy cows'" and feature cartoon images of happy cows in green fields under blue skies in order to depict "happy animals." Id. at 6, ¶ 25. Plaintiff asserts these representations are prominent on Ben & Jerry's packaging and therefore necessarily seen by consumers. The text on the back of Ben & Jerry's cartons of ice cream states in relevant part: (Doc. 1 at 7, ¶ 25.)
The "benjerry.com" website to which the cartons direct consumers explains that "happy cows" are part of the Caring Dairy program, "a unique program that's helping farmers move toward more sustainable practices on the farm." Id. at 7, ¶ 27 (internal quotation marks and footnote omitted). Plaintiff alleges that these Caring Dairy representations are supported by assurances on the website which promote Ben & Jerry's "values-led sourcing" as well as its attempts to "reduce the environmental impact of our business." Id. at 7-8, ¶ 28 (internal quotation marks omitted). According to the "Caring Dairy" webpage, Caring Dairy "respects the farmer and their farmworkers, the planet and the cow[,]" id. at 9, ¶ 30 (internal quotation marks omitted), and further:
provides our farmers a program for evaluating, implementing and continuously improving sustainable agricultural practices on their farms. Our belief is that the future of dairy farming is to build soil health that includes increased cover crops, alternative tilling practices, rotational crops and grazing techniques. We also believe that high quality animal care is fundamental to the success of a farm, a well-cared for cow will produce a higher quality milk. And of course the importance of labor that supports theentire farm, from the farmer to the farmworker.
Id. at 9, ¶ 31 (footnote omitted).
Plaintiff asserts that "[u]ntil recently, and during the class period, Unilever's Ben & Jerry's website—the address of which is displayed to explain the 'happy cows' representation—told consumers that the 'Caring Dairy' program is 'required for all farmers.'" Id. at 8, ¶ 29. At the time, a webpage titled "Caring Dairy Standards" stated:
(Doc. 1 at 8, ¶ 29.) Plaintiff concedes that Unilever "appears to have removed this representation" after a non-profit organization filed a lawsuit against Ben & Jerry's in the District of Columbia Superior Court, alleging the phrase constituted a misrepresentation. Id.
Plaintiff alleges that Defendants' statements are "offered to explain the 'happy cows' of [Ben & Jerry's] Products' packaging" and are intended to project to consumers an "image of animal husbandry" that is more environmentally friendly than typical mass dairy production. Id. at 10, ¶ 34. Plaintiff asserts that when purchasing Ben & Jerry's products, he relied on these representations, as well as a "Caring Dairy" video on the website, which he understood to mean that the Ben & Jerry's ice cream he purchased was made with milk and cream "sourced exclusively from these 'happy cows' on 'Caring Dairy' farms." Id. at 4, ¶ 16.
In contrast to "what Unilever has told consumers," id. at 5, ¶ 24, Ben & Jerry's products are allegedly sourced from a mixture of Caring Dairy farms and mass-production facilities, including through a dairy cooperative in St. Albans, Vermont that has more than 360 members. As of January of 2017, Plaintiff alleges only ninetymembers, or less than twenty-five percent, were verified Caring Dairy farms. When processing the milk, St. Albans does not distinguish between the Caring Dairy farms and the mass-production facilities so that a "large percentage" of the milk and cream used in Ben & Jerry's products is thus allegedly sourced from the mass-production farms. Id. at 11, ¶ 40. Because the mass-production facilities allegedly employ "intensive cow confinement practices and extensive antibiotic use," Defendants' use of milk and cream from sources other than Caring Dairies allegedly constitutes a material omission. (Doc. 1 at 11, ¶ 41.)
Plaintiff further contends that Unilever knew that reasonable consumers relied on its representations and intended for consumers to purchase Ben & Jerry's products when they "might otherwise purchase a competing ice cream product," id. at 13, ¶ 50, and further knew consumers would pay more for products that were represented as socially responsible, thereby increasing the sales of Ben & Jerry's products while decreasing the sales of competitor products. Unilever has thus allegedly "profited enormously to the detriment of consumers from its falsely marketed products and its carefully orchestrated image for the Ben & Jerry's brand." Id. at ¶ 52.
According to the Complaint, Unilever "continues to conceal and suppress the true...
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