1

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

KENNETH BELL, et al., on behalf §

of themselves, and all others similarly §

situated, §

§

Plaintiffs, §

§ A-20-CV-461-RP

v. §

§

CAL MAINE FOODS, INC., et al., §

§

Defendants. §

CLAIMANT’S OBJECTIONS TO MAGISTRATE’S REPORT AND 

RECOMMENDATION

I. Introduction

On July 14, 2021, U.S. Magistrate Judge Mark Lane issued a well-reasoned 

opinion recommending that this lawsuit be dismissed without prejudice for lack of 

subject-matter jurisdiction. Magistrate Judge Lane determined that Plaintiffs 

allegations’ concerning the Urner-Barry Index were insufficient to allege joint 

liability on the part of all defendants. Without such joint liability, it is impossible to 

aggregate the damages of all plaintiffs and the class or classes they seek to represent 

to reach the $5,000,000 amount-in-controversy threshold set by the Class Action 

Fairness Act. See 28 U.S.C. § 1332(d)(2). 

While Plaintiffs believe that all of the other Defendants did price gouge Texas 

consumers and that information demonstrating this may come out in discovery, we 

Case 1:20-cv-00461-RP Document 164 Filed 07/28/21 Page 1 of 10
2

accept that the information to plausibly plead the participation of Defendants other 

than Cal-Maine Foods (Cal-Maine), Centrum Valley Farms (Centrum), Trillium

Farm Holdings, LLC (Trillium), and Lucerne simply is not currently available.

However, Plaintiffs object to the Report & Recommendation as it pertains to these 

four Defendants. Without regard to the Urner-Barry question analyzed by Magistrate 

Judge Lane, the Amended Complaint sufficiently alleges five million dollars in 

controversy against Cal-Maine, Centrum, Trillium, and Lucerne.

II. Argument

A. The Defendants who handled, sold, or distributed the eggs Plaintiffs 

purchased are jointly liable.

As noted above, Magistrate Judge Lane determined that no joint liability

existed simply from participating in the Urner-Barry Index. As to several of the 

Defendants, this was the only allegation that Plaintiffs made in the Amended 

Complaint. However, Plaintiffs also allege, in allegations unrelated to Urner-Barry,

that each of them purchased eggs distributed by Cal-Maine, and that Defendants 

Centrum and Trillium participated with Cal-Maine in the production, packing, or 

distribution of the eggs purchased by Plaintiff Wendy Brown. (Doc. 119 at ¶ 58). 

The Amended Complaint further alleged that Defendant Lucerne participated with 

Cal-Maine in the production, packing, or distribution of the eggs purchased by 

Plaintiff Tonnie Walker-Beck. (Doc. 119 at ¶ 63). Because these Defendants were 

all directly involved in the distribution of eggs that Plaintiffs bought, they are jointly 

Case 1:20-cv-00461-RP Document 164 Filed 07/28/21 Page 2 of 10
3

liable for the harm that befell Plaintiffs when they were charged an excessive and 

exorbitant price in violation of the Texas Deceptive Trade Practices Act.

Magistrate Judge Lane did not analyze either the potential joint liability of the 

Defendants who directly handled eggs that Plaintiffs purchased or whether Plaintiffs 

alleged more than five million dollars in controversy with respect to those 

Defendants. As Magistrate Judge Lane noted, “claims against multiple defendants 

can be ‘aggregated for the purpose of meeting the jurisdictional requirement if the 

defendants are jointly liable to the plaintiff.” (Doc. 163 at 4 (quoting Hollinger v. 

Home State Cty. Mut. Ins. Co., No. 5:09-CV-118, 2010 WL 11530632, at *8 (E.D. 

Tex. Aug. 5, 2010))). In this case, the claims against Defendants Cal-Maine, 

Centrum, Trillium, and Lucerne may be aggregated because these Defendants are 

jointly liable. This aggregation has nothing to do with Plaintiffs’ allegations 

concerning the Urner-Barry Index and rests solely on the allegations that these 

Defendants were directly involved in distributing the eggs that Plaintiffs purchased, 

as evidenced by their names or plant codes appearing on egg cartons from those 

stores. As will be demonstrated below, the claims against these Defendants (and, in 

fact, against Cal-Maine by itself), place more than five million dollars in 

controversy.

Case 1:20-cv-00461-RP Document 164 Filed 07/28/21 Page 3 of 10
4

B. The amount-in-controversy regarding Defendants Cal-Maine, 

Lucerne, Centrum, and Trillium is greater than five million dollars.

The Amended Complaint also alleges facts sufficient to conclude that five 

million dollars have been placed in controversy with regard to eggs distributed by 

Cal-Maine, Lucerne, Centrum, and Trillium. Plaintiffs allege that the 28 million 

residents of Texas purchase approximately 285 eggs per capita each year, for a total 

of almost 8 billion eggs. Doing a little math reveals that each Texan buys an average 

of 2 dozen eggs a month, meaning that roughly 56 million dozen-egg packages are 

sold in Texas each month. Plaintiffs include purchasers from H-E-B, Kroger, 

Brookshire’s, Wal-Mart, and Randall’s, which is owned by Albertson’s, as well as 

Lowe’s Foods, a smaller store chain. These chains are among the largest Texas, and 

together make up a majority of the groceries sold in the state. In one list available 

online, Wal-Mart has 293 stores in Texas, H-E-B has 276, Kroger has 206, 

Albertsons has 149, and Brookshire’s has 78.

http://supermarketpage.com/state/TX/.

1 No other store chain has more than 54. Id. 

The stores that sold eggs to Plaintiffs have a total of 1,158 locations in Texas; all 

other supermarkets number fewer than 500 stores combined. Thus, it is likely a 

conservative estimate to say that the stores that sold to Plaintiffs and the class or 

1 This list is cited for convenience, but its numbers are almost certainly too low. H-E-B’s own website states that it 

has more than 340 stores, a few of which are in Mexico https://www.heb.com/static-page/article-template/OurStory. Statista states that there are more than 600 Wal-Mart Stores in Texas. 

https://www.statista.com/statistics/1167169/walmart-number-of-stores-by-state-us/. ScrapeHero lists Kroger with 

210 stores in Texas. https://www.scrapehero.com/kroger-store-locations/. 

Case 1:20-cv-00461-RP Document 164 Filed 07/28/21 Page 4 of 10
5

classes they seek to represent sold at least two-thirds of the eggs sold in Texas in the 

months following the declaration of emergency by Governor Abbott. Market data 

for the whole state is elusive, but in the Dallas market, where H-E-B has much less 

presence than most of the rest of the state, stores owned by these companies had a 

market share of 65.6% in 2019. See

https://www.dallasnews.com/business/retail/2019/08/11/grocery-store-warswalmart-central-market-post-big-gains-as-whole-foods-drops/. No reason exists to 

believe this changed significantly in 2020. 

Plaintiffs also alleged the approximate prices they paid, which increased by 

more than a dollar in every case, and by more than two dollars in some cases, in the

period immediately following the declaration of emergency. (Doc. 119 at ¶¶ 36, 41, 

46, 51, and 56.) In addition to alleging the approximate price paid by the individual 

Plaintiffs, Plaintiffs also include in their Amended Complaint a chart from the UrnerBarry Index showing the average price of a dozen eggs in Texas rose by nearly two 

dollars, and was more than a dollar higher than pre-pandemic levels for over a 

month. (Doc. 119 at ¶ 67)2 As noted above, during that month, Texans likely 

2 The magistrate judge noted that Defendants argue this is not the proper chart for Texas. Plaintiffs were initially

provided this chart by Urner-Barry, and went back to them to ask for the correct chart. Urner-Barry recently 

provided us with this chart, instead, which shows an almost identical spike in the immediate aftermath of the 

Case 1:20-cv-00461-RP Document 164 Filed 07/28/21 Page 5 of 10
6

purchased more than 50 million dozen eggs, and a reasonable estimate would be that 

they purchased approximately two-thirds of them from the stores that sold eggs to 

Plaintiffs, whom Plaintiffs allege got those eggs from Defendants Cal-Maine, 

Trillium, Centrum, and Lucerne.

The parties will almost certainly dispute how much of the price that was 

charged to Plaintiffs and the class they seek to represent can be considered excessive. 

However, in terms of the amount placed in controversy by Plaintiffs’ allegations, the 

math is overwhelming. If the average rise in price was one dollar a dozen (a 

conservative estimate given the prices alleged by Plaintiffs and reported by UrnerBarry), and Texans bought two thirds of 56 million dozen eggs from companies 

supplied by Defendants, that would mean roughly 37.5 million dollars in 

controversy. In other words, Plaintiffs’ math could be off by a factor of seven and 

pandemic declaration:

Case 1:20-cv-00461-RP Document 164 Filed 07/28/21 Page 6 of 10
7

the threshold for federal jurisdiction under CAFA would still be met. If just ten 

percent of the eggs sold in Texas were purchased by members of the putative class, 

the threshold would be met. 

C. Any supposed limitations on the class should be addressed at the class 

certification stage. 

Given this overwhelming mathematical evidence of the amount-incontroversy, any disputes about the size or scope of the class should be decided at 

the class certification stage. For example, Defendants will likely attempt to restrict 

the size of the class by arguing that only the specific type and packaging of eggs (as 

in the grade, size, and number of eggs in the package) purchased by the Plaintiffs 

should be included. However, under Rule 23 of the Federal Rules of Civil Procedure, 

a plaintiff can have standing to pursue the claims of putative class members who 

purchased substantially similar products. See, e.g., Browning v. Anheuser-Busch, 

LLC, --- F. Supp. 3d ---, 2021 WL 1940645 at *8 (W.D. Mo. May 13, 2021) 

(describing an approach that categorically rejects a plaintiff’s standing to pursue 

claims related to substantially similar unpurchased products as “irreconcilable with 

the Supreme Court’s decision in Gratz v. Bollinger” 539 U.S. 244, 265 (2003); 

Mednick v. Precor, Inc., 2014 WL 6474915 at *4 (N.D. Ill. Nov. 3, 2014); Clancy 

v. The Bromley Tea Co., 308 F.R.D. 564, 571 (N.D. Cal. 2013). As Clancy pointed 

out, this question is best resolved on class certification:

Case 1:20-cv-00461-RP Document 164 Filed 07/28/21 Page 7 of 10
8

Deciding at the pleading stage that a plaintiff cannot represent a class 

who purchased any different products than the plaintiff seems 

unwarranted, at least on the facts of this case. A plaintiff has sufficiently 

“typical” claims to represent a class if his claims “are reasonably coextensive with those of absent class members; they need not be 

substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 

(9th Cir.1998). Whether products are “sufficiently similar” is an 

appropriate inquiry, but it does not relate to standing: a plaintiff has no 

more standing to assert claims relating to a “similar” product he did not 

buy than he does to assert claims relating to a “dissimilar” product he 

did not buy. Seen this way, analyzing the “sufficient similarity” of the 

products is not a standing inquiry, but rather an early analysis of the 

typicality, adequacy, and commonality requirements of Rule 23.

Clancy v. The Bromley Tea Co., 308 F.R.D. 564, 571 (N.D. Cal. 2013). 

Thus, while Defendants can certainly raise arguments about typicality, 

adequacy, and commonality at the class certification stage, such arguments do not 

mean that Plaintiffs have not placed the claims of the entire putative class in 

controversy. The Fifth Circuit has stated that, in determining amount in controversy, 

“[t]he required ‘demonstration concerns what the plaintiff is claiming ... not whether 

the plaintiff is likely to win or be awarded everything he seeks.” Robertson v. Exxon 

Mobil Corp., 814 F.3d 236, 240 (quoting Berniard v. Dow Chem. Co., 481 Fed. 

Appx. 859, 862 (5th Cir. 2010). In this case, Plaintiffs have alleged a class that 

includes all eggs sold at an excessive price in the stores supplied by the Defendants. 

That likely includes stores that are not mentioned in the complaint, but even limiting 

it to the stores described above, a conservative estimate places the amount-incontroversy well over five million dollars. 

Case 1:20-cv-00461-RP Document 164 Filed 07/28/21 Page 8 of 10
9

III. Conclusion

Because Magistrate Judge Lane addressed only the Urner-Barry question as it 

relates to all Defendants, and has not had the opportunity to determine whether 

Plaintiffs alleged a sufficient amount-in-controversy with respect to those 

Defendants who supplied the eggs they purchased, Plaintiffs respectfully request that 

the Court remand this question to Magistrate Judge Lane for initial determination. 

To the extent that the Court wishes to make the determination itself, Plaintiffs 

believe the amount-in-controversy is clearly met, given the size of Texas’s egg 

market and the predominance of the remaining Defendants therein. In addition, if 

the Court prefers, Plaintiffs stand ready to amend the complaint to include additional 

facts about the potential size of the class and the amount-in-controversy, including 

all facts herein.

Respectfully submitted this 28th day of July, 2021,

/s/ Wesley W. Barnett

Attorney for Plaintiffs

OF COUNSEL:

Wesley W. Barnett

DAVIS & NORRIS, LLP

2154 Highland Avenue South

Birmingham, Alabama 35205

Telephone: 205.930.9900

Facsimile: 205.930.9989

Email: wbarnett@davisnorris.com

THE CARLSON LAW FIRM

100 E. Central Texas Expy

Case 1:20-cv-00461-RP Document 164 Filed 07/28/21 Page 9 of 10
10

Killeen, Texas 76541

Telephone: 254.526.5688

Facsimile: 254.526.8204

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing was electronically filed 

with the Clerk of Court via the CM/ECF system of the United States District Court 

for the Western District of Texas on July 28, 2021, and served on all counsel of 

record who are registered for electronic service. In addition, on July 28, 2021, a true 

and correct copy of the foregoing document was served on Christopher Ondeck and 

Stephen Chuk via electronic mail.

/s/ Wesley W. Barnett

Attorney for Plaintiffs

Case 1:20-cv-00461-RP Document 164 Filed 07/28/21 Page 10 of 10