NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

:

NADINE HEMY and NANCY CONNER, :

Individually and on behalf of themselves :

and all other similarly situated, :

:

Plaintiffs, :

:

v. : Civil Action No. 11-888 (MAS) (LHG)

:

PERDUE FARMS, INC., ABC : MEMORANDUM OPINION

CORPORATIONS 1 through 10 and :

JOHN DOES 1-10, :

:

Defendants. :

:

SHIPP, District Judge

This matter comes before the Court upon Defendant Perdue Farms, Inc.‟s (“Perdue” or 

“Defendant”), Motion to Dismiss (Def.‟s Mot. to Dismiss, ECF No. 45) Plaintiffs Nadine 

Hemy‟s (“Hemy”) and Nancy Conner‟s (“Conner”) (collectively, “Plaintiffs”) Third Amended 

Complaint (TAC, ECF No. 42). Plaintiffs filed Opposition to the Motion. (Pls.‟ Opp‟n, ECF No. 

47.) Defendant filed a Reply Brief. (Def.‟s Reply, ECF No. 51.) 

Plaintiffs subsequently submitted a Motion for Leave to File a Supplemental Brief (Mot. 

for Leave, ECF No. 55) that was opposed by Perdue (Opp‟n to Leave, ECF No. 56). Plaintiffs

filed a Reply to Defendant‟s Opposition to the Motion for Leave to File a Supplemental Brief. 

(Reply to Opp‟n to Leave, ECF No. 59.) 

The Court has carefully considered the Parties‟ submissions and decided the matter 

without oral argument pursuant to Federal Rule of Civil Procedure (“Rule”) 78. For good cause 

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shown, Defendant‟s Motion to Dismiss is DENIED. Additionally, Plaintiffs‟ Motion to File a 

Supplemental Brief is DENIED.

I. Background

This matter concerns a proposed class action alleging that Perdue “Harvestland” brand 

products mislead consumers about the “humane” treatment of chickens, purported endorsement 

by the United States Department of Agriculture (“USDA”) and any distinction as between the 

treatment of chickens sold under Perdue‟s Harvestland brand and competitors‟ chickens. 

Plaintiffs allege that from September 2009 through the present, Perdue has labeled its 

Harvestland brand chicken products as “humanely raised” and “USDA Process Verified.” These 

claims are alleged to be false and deceptive by Plaintiffs. In support of these allegations, 

Plaintiffs rely upon the National Chicken Council‟s (“NCC”) Animal Welfare Guidelines and 

Audit Checklist for Broilers. According to Plaintiffs, NCC Guidelines “codify industry norms.” 

Plaintiff Hemy purchased Harvestland chicken products bearing the Humanely Raised

and USDA Process Verified labels. Plaintiff Hemy alleges that she would not have purchased the 

“premium-priced” chicken if she knew the chicken was “not in fact treated humanely” or 

differently from other chicken on the market, throughout the chicken‟s life. (TAC ¶ 13.) Plaintiff 

Conner alleges substantially the same injury. (TAC ¶ 16.) 

NCC-designed Guidelines

Plaintiffs allege the NCC standard is the basis for Perdue‟s Humanely Raised claim and is

nothing more than the industry standard which “necessitate[s] inhumane treatment” and allows

“non-compliance” by way of “huge loopholes.” (TAC ¶¶ 27, 49.) Plaintiffs allege that 

Harvestland brand chickens are: shackled by their legs, upside-down, while fully conscious; 

electrically shocked before being effectively rendered unconscious; cut ineffectively or partially 

while fully conscious; drowned/scalded while conscious; stored in trucks for hours under 

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excessive temperatures; subject to lighting conditions which result in eye disorders; injured in 

the process of being removed from their shells; subject to health problems and deformities due to 

selective breeding; and provided no veterinary care. (TAC ¶¶ 28-37.)

Plaintiffs allege Perdue‟s program is in all relevant respects identical to the NCC 

Guidelines by way of citation to: (1) a May 28, 2010 letter from Perdue‟s General Counsel 

reflecting that the NCC Guidelines are the basis for humane care . . .”; (2) a December 17, 2008 

document entitled “Audit Section Weekly Activity” indicating that Perdue‟s processes associated 

with the Humanely Raised claim are based on the Animal Welfare Guidelines; (3) a March 12, 

2010 e-mail message from a Perdue Regional Veterinary Services Manager stating that the 

“Humanely Raised” Process Verified Program (“PVP”) audit criteria instrument is the same 

criteria as the NCC audit instrument; and (4) a document received pursuant to a December 2011

Freedom of Information Act (“FOIA”) request allegedly supporting that, with the exception of 

the removal of point values, the NCC Audit Checklist is identical to the criteria for the 

Humanely Raised PVP standards. (TAC ¶¶ 39-44.)

Plaintiffs allege that the NCC Guidelines are followed by “virtually every other mass 

chicken producer in the nation.” (TAC ¶ 53.) Plaintiffs further allege that the NCC Guidelines 

sanction cruel practices and that Defendant has violated these “already-low” standards. (TAC 

¶¶ 56-58.)

Plaintiffs allegedly believed that the “Humanely Raised” label meant that chickens were 

treated humanely throughout life, including a “quick and painless death.” (TAC ¶¶ 59-60.) 

Plaintiffs assert that a survey of 209 members of an online consumer panel demonstrate that their

beliefs were reasonable. (Pls.‟ Opp‟n 29-30.)

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USDA Process Verified

Plaintiffs‟ Third Amended Complaint alleges that they interpreted the USDA Process 

Verified label claim, made in conjunction with the “Humanely Raised” claim to mean 

Harvestland chickens were approved and endorsed by the USDA as Humanely Raised. (TAC 

¶¶ 99-100.) Plaintiffs assert that the USDA Process Verified label is a marketing tool used in 

conjunction with the USDA Agricultural Marketing Service‟s (“AMS”) Process Verified 

Program. (TAC ¶ 102.) According to Plaintiffs, the “processes” to be “verified” are defined by 

the company itself. (TAC ¶ 103.) Plaintiffs, therefore, allege that neither AMS nor any other 

service within the USDA deems Defendant‟s conduct to be humane and that the USDA Process 

Verified claims are therefore misleading. (TAC ¶¶ 104-108.)

Perdue’s Harvestland Chicken as Compared to that of Competitors

Relying on the aforementioned survey, Plaintiffs contend that their interpretation of the 

label that Defendant‟s chicken was better than others on the market, or higher quality, was 

objectively reasonable. (TAC ¶¶ 107-109.) Plaintiffs allege that Perdue removed the Humanely 

Raised label from other Perdue products. (TAC ¶ 111.) Plaintiffs‟ Third Amended Complaint

cites to internet message boards for the proposition that Defendant‟s Harvestland product is 

perceived as desirable despite it not being materially different from other poultry products. (TAC 

¶¶ 112-116.) 

“Premium Price” for Harvestland Brand Chicken

Plaintiffs assert they have been damaged in the amount of the difference between 

Harvestland chicken and the retail value of standard, mass produced chicken not marketed as 

Humanely Raised. (TAC ¶¶ 123-128.)

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Plaintiffs‟ Third Amended Complaint asserts four counts: (1) violation of N.J. Stat. Ann. 

§ 56:8-1, et seq., the New Jersey Consumer Fraud Act (“NJCFA”), (2) Fraud in the Inducement, 

(3) Negligent Misrepresentation, and (4) Breach of Express Warranty. 

II. Procedural History

The procedural history of the instant matter is informative. This case was removed from 

the New Jersey Superior Court on February 17, 2011. (ECF No. 1.) On April 1, 2011, Defendant

filed a Motion to Dismiss Plaintiffs‟ First Amended Complaint. (ECF No. 9-1.) 

On November 30, 2011, Hon. Freda L. Wolfson, U.S.D.J., issued an Opinion and Order 

regarding Defendant‟s Motion to Dismiss Plaintiffs‟ First Amended Complaint. (ECF Nos. 29, 

30.) Certain of Plaintiffs‟ claims were dismissed with prejudice. However, the Court allowed 

Plaintiffs to rectify specific infirmities in the First Amended Complaint. Plaintiffs were 

permitted to re-plead allegations relating to their “Humanely Raised” claim. Plaintiffs were 

similarly permitted to re-plead their “USDA Process Verified” claims as they related to Perdue‟s 

website and Facebook page. Hemy v. Perdue Farms, Inc., No. 11-888 (FLW), 2011 WL 

6002463, at *15 (D.N.J. Nov. 30, 2011). 

On February 13, 2012, Plaintiffs filed a Second Amended Complaint. (ECF No. 32.) On 

April 27, 2012, Plaintiffs moved for leave to file a Third Amended Complaint. (ECF No. 34.) 

The Court granted Plaintiffs Leave to File a Third Amended Complaint on July 27, 2012. (ECF 

No. 40.) Plaintiffs subsequently filed their Third Amended Complaint, and the instant Motion to 

Dismiss pursuant to Rule 12(b)(6) followed. (ECF Nos. 42, 45.) Thereafter, Plaintiffs filed a 

Motion to file a Supplemental Brief. (ECF No. 55.) 

III. Plaintiffs’ Motion for Leave to File a Supplemental Brief

As a preliminary matter, Plaintiffs‟ motion for leave to file a supplemental brief must be 

denied. Essentially, Plaintiffs‟ motion is the result of their receipt of “new information” via a 

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FOIA request. (ECF No. 55-1.) Plaintiffs argue that this new information speaks directly to the 

NCC standards and Perdue‟s best practices. (Id.) Plaintiffs‟ Motion relies upon audit reports and 

Defendant‟s “Humanely Raised” manual. (Id.) Plaintiffs‟ brief explicitly states: “[i]n sum, the 

FOIA information provides further reason for this Court to deny Perdue‟s Motion to Dismiss in 

its entirety.” (Id. 4). 

In opposition, Defendant argues that Plaintiffs‟ motion for leave to file a supplemental 

brief “attempts to add „new information‟” to the “allegations in the Third Amended Complaint.” 

(ECF No. 56, 1.) The Court finds that this attempted injection of new information, or facts, runs 

afoul of Third Circuit precedent holding that “it is axiomatic that the complaint may not be 

amended by the briefs in opposition to a motion to dismiss.” See Zimmerman v. PepsiCo., Inc., 

836 F.2d 173, 181 (3d Cir. 1988). As such, Plaintiffs‟ Motion for Leave to File a Supplemental 

Brief is denied.

IV. Analysis 

“Federal Rule of Civil Procedure 8(a)(2) requires only „a short and plain statement of the 

claim showing that the pleader is entitled to relief,‟ in order to give the defendant fair notice of 

what the . . . claim is and the grounds on which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). On a motion to dismiss for 

failure to state a claim, a “defendant bears the burden of showing that no claim has been 

presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). 

A district court conducts a three-part analysis when considering a Rule 12(b)(6) motion. 

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court must „take note of the 

elements a plaintiff must plead to state a claim.‟” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 

675 (2009)). Second, the court must accept as true all of a plaintiff‟s well-pleaded factual 

allegations and construe the complaint in the light most favorable to the plaintiff. Fowler v. 

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UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). The court, however, must disregard any 

conclusory allegations proffered in the complaint. Id. For example, the court is free to ignore 

legal conclusions or factually unsupported accusations which merely state that “the-defendantunlawfully-harmed-me.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Finally, once 

the well-pleaded facts have been identified and the conclusory allegations ignored, a court must 

next determine whether the “facts alleged in the complaint are sufficient to show that plaintiff 

has a „plausible claim for relief.‟” Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 679). 

Determining plausibility is a “context-specific task which requires the reviewing court to 

draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Plausibility, 

however, “is not akin to a „probability requirement,‟ but it asks for more than a sheer possibility 

that a defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 545). In the 

end, facts which only suggest the “mere possibility of misconduct” fail to show that the plaintiff 

is entitled to relief. Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 679).

Further, an allegation of fraud must meet the pleading requirements of Rule 9(b), which 

provides, in relevant part: “a party must state with particularity the circumstances constituting 

fraud or mistake.” 

It is well-established that NJCFA claims must meet the heightened pleading 

requirements of Fed. R. Civ. P. 9(b). See, e.g., Frederico v. Home Depot, 507 

F.3d 188, 200 (3d Cir. 2007); Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282 

(D.N.J. Nov. 30, 2009). To satisfy this heightened pleading standard, a plaintiff 

“must state the circumstances of the alleged fraud with sufficient particularity to 

place the defendant on notice of the „precise misconduct with which [it is] 

charged.‟ Specifically, the plaintiff must plead or allege the “date, time and place 

of the alleged fraud or otherwise inject precision or some measure of 

substantiation into a fraud allegation.” Frederico, 507 F.3d at 200. Indeed, the 

Third Circuit has advised that, at a minimum, a plaintiff must support allegations 

of fraud with all the essential factual background that would accompany “„the first 

paragraph of any newspaper story‟—that is, the „who, what, when, where and 

how‟ of the events at issue.” In re Suprema Specialties, Inc. Sec. Litig., 438 F.3d 

256, 276-77 (3d Cir. 2006) (citations omitted), abrogated on other grounds by 

Tellabs, Inc. v. Makor Issues & Rights, L.T.D., 551 U.S. 308, 322-23 (2007). A 

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complaint must do more than assert generalized facts, it must allege facts specific 

to the plaintiff. 

Hemy, 2011 WL 6002463, at *13.

A. Count I: New Jersey Consumer Fraud Act (NJCFA)

As set forth in Judge Wolfson‟s thorough Opinion, Plaintiffs must demonstrate three 

elements in order to state a prima facie case under the NJCFA: (1) unlawful conduct by the 

Defendant; (2) an ascertainable loss by Plaintiffs; and (3) a causal connection between the 

Defendant‟s unlawful conduct and Plaintiffs‟ ascertainable loss. Hemy, 2011 WL 6002463, at 

*12 (internal citations omitted). 

In sum, Plaintiffs allege in the Third Amended Complaint that Perdue‟s Harvestland 

chickens were not humanely raised and that the standard by which the label is affixed is 

materially the same as the industry standard. In other words, Plaintiffs argue that Perdue‟s 

Harvestland chicken products are purportedly humanely raised chickens, which would create 

additional value from the perspective of the consumer, yet the Humanely Raised label is the 

result of guidelines substantially similar to the NCC Guidelines that are used essentially 

industry-wide. Plaintiffs further allege that the USDA Process Verified label attached to the 

packaging of Harvestland chickens near the Humanely Raised label was reasonably interpreted 

by Plaintiffs to mean that the USDA Process Verification process certified as true Defendant‟s 

Humanely Raised label.

1. Humanely Raised Label

Judge Wolfson dismissed without prejudice an earlier derivation of Plaintiffs‟ Humanely 

Raised claim on multiple grounds. 

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a. Allegations with Regard to Harvestland Products Only

Judge Wolfson held that Plaintiffs failed to “limit their allegations of inhumane treatment 

and slaughtering to Harvestland products.” Plaintiffs were granted leave to “provide more details 

about the audits and Perdue‟s practices, but limited to Harvestland products only.” In compliance 

with Judge Wolfson‟s mandate, Plaintiffs‟ Third Amended Complaint is limited to Defendant‟s 

Harvestland products. 

b. NCC Guidelines

Plaintiffs allege that Perdue‟s Humanely Raised claim as it relates to Harvestland chicken 

products is based on the NCC Guidelines, which are merely a codification of the industry 

standard and “necessitate” inhumane treatment of chickens. (TAC ¶¶ 27-38.) 

In response, Perdue argues that Plaintiffs fail to allege any facts to support their assertion 

that the NCC Guidelines sanction or require inhumane treatment, or that inhumane raising or 

slaughtering practices took place at any Harvestland processing facilities. (Def.‟s Mot. to 

Dismiss 8-10, 20.) Defendant argues that the Third Amended Complaint “does not allege a 

single instance in which a „Harvestland‟ chicken was treated in an inhumane fashion.” (Def.‟s

Mot. to Dismiss 20.) 

Plaintiffs derive their allegations regarding Perdue‟s best practices being essentially 

identical to the NCC Guidelines from a number of documents, including the following: (1) an 

audit checklist obtained from USDA AMS in response to a request made under FOIA, (2) an email message from a Perdue employee, and (3) correspondence from Perdue‟s general counsel. 

Plaintiffs argue that these documents individually and collectively support that the NCC 

Guidelines are materially the same as the criteria used for Perdue‟s Humanely Raised claim.

As it relates to the audit checklist, Perdue argues that “merely using the same checklist 

does not mean the programs are administered in the same way.” (Def.‟s Reply 7.) This, 

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however, misses the point. The issue before the Court is not whether as a matter of fact Perdue‟s 

PVP program acts in a manner identical to that of the NCC Guidelines. Rather, at the Motion to 

Dismiss stage the inquiry for the Court is whether Plaintiffs have sufficiently pled allegations 

supported by facts which render its claim for relief plausible. 

Plaintiffs further allege that an e-mail message from David Hermes, a Regional Services 

Manager at a complex that processes Harvestland chicken products, supports that there is no 

“meaningful difference between the company‟s Humanely Raised PVP standards and the NCC 

standards.” (TAC ¶ 43.)

Similarly, the letter from Perdue‟s General Counsel stating that the NCC guidelines 

represent the “basis” for the Humanely Raised program, construed in favor of Plaintiffs, factually 

supports Plaintiffs‟ allegations. (TAC ¶ 41.) Accordingly, Plaintiffs have pled sufficient facts 

that the checklist utilized for Perdue‟s PVP program is analogous to that of the NCC to support 

their allegations. 

c. Audit Reports Relying on the Treatment and Facilities of 

Perdue and/or Harvestland Chickens 

With respect to the audit reports, Plaintiffs allege that they reveal that Perdue‟s chickens 

were subjected to inhumane conditions. In response, Defendant argues that of the five alleged 

audit reports, only one relates to Harvestland chickens and does not reflect any practice Plaintiffs 

claim is inhumane. Defendant also states that all of the reports relied upon by Plaintiffs were

conducted prior to approval of the facilities into the PVP and prior to Defendant‟s use of the 

Humanely Raised label. (Def.‟s Mot. to Dismiss 18.) Defendant deems it fatal to Plaintiffs‟ claim 

that the single audit of a facility that produces Harvestland chickens did not reveal any of the 

allegations raised in the Third Amended Complaint. (Id.) 

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Plaintiffs allege that the audit reports were timely in that the majority of the audits took 

place in April 2010, after Defendant began producing Harvestland chicken in September 2009. 

(Pls.‟ Opp‟n 27.) Additionally, Plaintiffs allege that their claims of inhumane treatment are not 

dependent on the audit reports. Plaintiffs further allege that they have set forth facts 

demonstrating a reasonable basis for the belief that Perdue‟s chickens, irrespective of brand, are 

subjected to the same manner of treatment. 

Preliminarily, the Court accepts Plaintiffs‟ factual allegations as true. As such, the audit 

reports, as alleged, occurred during the relevant period, i.e., after Perdue began the production of 

Harvestland chicken. However, the Court has before it at best a limited factual basis to conclude 

that Harvestland chickens were treated in the same manner as Perdue chickens more generally. 

Nevertheless, Plaintiffs cannot be expected to plead facts solely within the Defendant‟s 

knowledge. Hughes v. Panasonic Consumer Elec., Co., No. 10-846, 2011 WL 2976839, at *13 

(D.N.J. July 21, 2011). Thus, Plaintiffs have pled a plausible claim for relief in that they have 

alleged that the manner of treatment is not distinguishable. The veracity of such claim, which is 

greatly disputed by Defendant, is not within the province of the Court at this procedural juncture.

d. Whether “Humanely Raised” Label is Applicable to 

 Slaughter Allegations

Additionally, as it relates to the Humanely Raised label, Judge Wolfson found that 

Plaintiffs failed to sufficiently plead that they and similarly situated consumers believe that the

Humanely Raised label includes the slaughtering process. In addition, Judge Wolfson declined to 

apply an expansive reading of humanely “raised” to include the slaughtering process. Hemy, 

2011 WL 6002463, at *15. (“[T]he meaning Plaintiffs would have the Court attach to „raised‟ is 

not the commonly understood definition of that term.”) Judge Wolfson afforded Plaintiffs leave 

to allege “facts from which the Court could infer” that a reasonable consumer would believe that 

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the “humanely raised” label encompasses humane slaughtering processes. Id. at 17. Perdue

renews its previous argument stating, “Plaintiffs have still failed to allege facts showing that 

consumers ascribe a broader meaning to the term raised than dictionaries and other authoritative 

sources.” (Def.‟s Mot. to Dismiss 22.) 

In response, Plaintiffs argue that the reasonable consumer would expect that humanely 

raised chickens “would not be shackled upside-down, electronically shocked, or bled to death 

while fully conscious and in intense prolonged pain[.]” (Pls.‟ Opp‟n 28.) Plaintiffs cite generally 

to an unprovided internet survey which sets forth the “gory details” of their allegations. Hemy, 

2011 WL 6002463, at *17 (“. . . Plaintiffs‟ “reasonable consumer” allegations, [] contain gory 

details about specific alleged slaughtering practices . . . . ). Plaintiffs correctly note “the

definition of both „raising‟ and „slaughter‟ are contested terms.” (Pls.‟ Opp‟n 29.) The Court 

must construe the facts in the light most favorable to the Plaintiffs. In light of this controlling 

standard, the Court finds that it is plausible for the reasonable consumer to construe the 

Humanely Raised label as speaking to Perdue‟s processes up until the time of death, including 

slaughter. (TAC ¶¶ 73-92.)

In sum, Plaintiffs have properly limited their claims to reflect only Harvestland chicken 

products. Further, Plaintiffs‟ argument that the NCC Guidelines and Defendant‟s PVP standards 

are essentially identical is sufficiently pled. Plaintiffs‟ reliance on the audit reports for Perdue 

chickens, generally, as opposed to strictly Harvestland chickens is problematic but not fatal to 

Plaintiffs‟ Humanely Raised claim at this stage of the proceedings. In addition, the internet 

survey is sufficient to show a plausible claim for relief where the components of the survey 

quoted in the Third Amended Complaint factually support the contention that a reasonable 

consumer may believe that the slaughtering process is encompassed by Perdue‟s Humanely 

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Raised label. Accordingly, as it relates to Plaintiffs‟ Humanely Raised claim, Perdue‟s Motion to 

Dismiss is denied. 

2. USDA Process Verified Label

Plaintiffs claim that the USDA Process Verified label, in concert with the “Humanely 

Raised” label, “created the impression in their minds that an unbiased third party was certifying 

Perdue‟s claims.” Hemy, 2011 WL 6002463, at *20 (internal citations omitted); (TAC ¶¶ 99, 

100); (Pls.‟ Opp‟n 13.) Judge Wolfson dismissed this claim without prejudice, holding that 

“missing from Plaintiffs‟ Amended Complaint are allegations that the USDA-shield 

misrepresentations are related to Perdue‟s use of the „Humanely Raised‟ . . . label[], and with 

respect to the website and Facebook allegations, in particular, Plaintiffs have failed to plead 

those allegations with particularity.” Hemy, 2011 WL 6002463, at *20. Judge Wolfson clarified, 

“the only allegations that may potentially be re-pled are the „Humanely Raised‟ allegations and 

the USDA shield website and Facebook allegations.” Id.

Plaintiffs‟ Third Amended Complaint is silent with regard to any claims stemming from 

the USDA shield website or Facebook advertisements. Rather, Plaintiffs argue that the proximity 

of the labels render Plaintiffs‟ interpretation of the label objectively reasonable. (TAC ¶¶ 101, 

109.) In support of this contention, Plaintiffs rely upon an internet survey indicating “58% of 

consumers believe that the USDA Process Verified shield meant that the company meets the 

standards for the treatment of chickens developed by the USDA itself.” (Id.) 

Perdue argues that Plaintiffs have disregarded Judge Wolfson‟s Opinion and Order. In 

essence, Perdue states Plaintiffs abandoned their USDA shield website and/or Facebook page

claims, and instead allege in the same manner that was dismissed before, that the USDA Process 

Verified label means that the USDA endorsed Perdue‟s procedures as it relates to its Humanely 

Raised label of Harvestland products. (Def.‟s Mot. to Dismiss 27-29.)

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Judge Wolfson noted “several problems with Plaintiffs‟ USDA shield allegations.” Hemy, 

2011 WL 6002463, at *20. Among Judge Wolfson‟s concerns was that “many of Plaintiffs‟ 

allegations do not contain specific facts from which it could be inferred that Perdue‟s advertising 

statements suggested to a reasonable consumer that the USDA certified Perdue‟s use of the 

„Humanely Raised‟ . . . label[].” Id. Notably, Judge Wolfson held that even though “Perdue was 

granted permission to use the shield [that] does not completely undermine Plaintiffs‟ allegation 

that the combination of the shield and the „Humanely Raised‟ labels . . . created the impression in 

their minds that an unbiased third party was certifying Perdue‟s claim.” Hemy, 2011 WL 

6002463, at *20 (emphasis added). Judge Wolfson‟s Opinion determined that “what is missing 

from Plaintiffs‟ Amended Complaint are allegations that the USDA-shield misrepresentations are 

related to Perdue‟s use of the „Humanely Raised‟ . . . labels . . . .” Id. 

Plaintiffs‟ excerpts of an internet survey referenced in the Third Amended Complaint 

factually support Plaintiffs‟ contention that they believed that the USDA Process Verified label 

in conjunction with the Humanely Raised label meant that the Harvestland chickens were 

“approved and endorsed” by the USDA. (TAC ¶ 99-100.) The survey contends that “58% of 

consumers believe that the USDA Process Verified shield meant that the company meets 

standards for the treatment of chickens developed by the USDA itself.” (TAC ¶ 101.) 

Accordingly, Plaintiffs‟ NJCFA claims with regard to both the Humanely Raised label 

and USDA Process Verified label are sufficiently pled and Defendant‟s Motion to Dismiss with 

regard to same is denied. 

Finally, and as explained below, with regard to Plaintiffs‟ additional claims of Fraud in 

the Inducement, Negligent Misrepresentation, and Breach of Express Warranty, by limiting their 

allegations to Harvestland products, and for the reasons stated above with regard to the NJCFA

claim, Plaintiffs have rectified the concerns highlighted by Judge Wolfson. Additionally, 

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Plaintiffs have sufficiently pled that Defendant‟s Humanely Raised statement is false or 

misleading thus alleviating Defendant‟s primary contention with regard to the remaining Counts 

of the Third Amended Complaint. 

B. Count II: Fraud in the Inducement

Perdue moves to dismiss Count II of Plaintiffs‟ Third Amended Complaint, which sets 

forth Plaintiffs‟ common law fraud claim. “Common law fraud involves a more onerous standard 

than a claim for fraud under the [NJ]CFA.” Mason v. Costco Wholesale Corp., No. 09-361

(JLL), 2009 U.S. Dist. LEXIS 76176, at *18 (D.N.J. Aug. 26, 2009) (internal citation omitted). 

“[T]he elements of common law fraud are: (1) a material misrepresentation of a presently 

existing or past fact; (2) knowledge of falsity; (3) an intention that the other person rely on it; 

(4) reasonable reliance thereon by the other person; and (5) resulting damages.” Va. Sur. Co. v. 

Macedo, No. 08-5586 (GEB), 2011 U.S. Dist. LEXIS 49077, at *56 (D.N.J. May 6, 2011) 

(internal quotation omitted).

As aforementioned, Rule 9(b) requires that in all averments of fraud or mistake, the 

circumstances constituting fraud or mistake shall be stated with particularity. Plaintiffs allege 

that such statement is knowingly false where Defendant was aware of its raising and slaughtering 

processes, and that same were not “humane.” Plaintiffs further assert that Defendant sought for 

consumers to rely upon these statements so that they would be willing to pay the “premium” cost 

of Perdue‟s Harvestland brand chicken. Plaintiffs‟ Third Amended Complaint identifies the dates 

and locations of purchase of Perdue‟s Harvestland brand chicken. Plaintiffs further allege that 

they reasonably relied on Perdue‟s Harvestland chicken labels stating that the product was 

Humanely Raised and USDA Process Verified to their detriment in the amount of the difference 

in cost between Perdue‟s Harvestland brand chicken and the retail value of standard, mass 

produced chicken not marketed as Humanely Raised. For purposes of this motion, Plaintiffs have 

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sufficiently pled that the Defendant‟s claims constitute a material misrepresentation. 

Accordingly, as it relates to Count II of the Third Amended Complaint, Defendant‟s Motion to 

Dismiss is denied.

C. Count III: Negligent Misrepresentation

“Under New Jersey law, a claim for negligent misrepresentation requires a plaintiff to 

establish that defendant made an incorrect statement, upon which he or she justifiably relied, 

causing economic loss.” Dist. 1199P Health & Welfare Plan v. Janssen, L.P., 784 F. Supp. 2d 

508, 532 (D.N.J. 2011) (internal citations omitted). “[T]o prove a claim of negligent 

misrepresentation, a plaintiff must demonstrate that: 1) the defendant negligently provided false 

information; 2) the plaintiff was a reasonably foreseeable recipient of that information; 3) the 

plaintiff justifiably relied on the information; and 4) the false statements were a proximate cause 

of the plaintiff's damages.” McCall v. Metro. Life Ins. Co., 956 F. Supp. 1172, 1186 (D.N.J. 

1996) (internal citation omitted).

For the reasons detailed above, and as applied to Plaintiffs‟ NJCFA and Fraud claims, 

Plaintiffs have pled sufficient facts for their negligent misrepresentation claim to withstand a 

motion to dismiss. 

D. Count IV: Breach of Express Warranty

The elements of a breach of express warranty claim are as follows: “(1) a contract 

between the parties; (2) a breach of that contract; (3) damages flowing therefrom; and (4) that the 

party stating the claim performed its own contractual obligations.” Frederico, 507 F.3d at 203

(citation omitted). 

Plaintiffs have sufficiently alleged that the Humanely Raised label on Harvestland 

chicken products create an express warranty. (TAC ¶ 162.) As noted in Judge Wolfson‟s 

Opinion, an advertisement may create an express warranty. Cipollone v. Liggett Grp., Inc., 893 

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F.2d 541, 575-76 (3d Cir. 1990), rev’d in part on other grounds, 505 U.S. 504 (1992). Once 

more, Plaintiffs‟ allegations in the Third Amended Complaint are responsive to Judge Wolfson‟s 

Opinion and Order that the claims be limited to Harvestland chicken products only. 

Plaintiffs have sufficiently pled that a reasonable consumer may have interpreted the 

Humanely Raised label to include the processes to which the chicken is exposed throughout its 

life, including slaughter. Plaintiffs have fulfilled their obligations under the contract by paying 

the purchase price and have alleged damages derived therefrom. Specifically, Plaintiffs allege 

damage in the increased cost paid for Perdue‟s Harvestland brand chicken, as compared to the 

cost of the actual retail value of standard, mass produced chickens not labeled “Humanely 

Raised.” Thus, Defendant‟s Motion to Dismiss Count IV is denied.

V. Conclusion

For the reasons set forth above, and for other good cause shown, Defendant‟s Motion to 

Dismiss Plaintiffs‟ Third Amended Complaint is DENIED. Plaintiffs‟ Motion for Leave to File a 

Supplemental Brief is DENIED. An order consistent with this Opinion will be filed. 

s/ Michael A. Shipp

MICHAEL A. SHIPP

UNITED STATES DISTRICT JUDGE

Dated: March 31, 2013

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