How you can beat animal welfare activists in court
A legal expert explains the ways activists sue animal agriculture organizations and offers strategies for a successfully defense.
Animal welfare activists know their way around a courtroom, and a legal challenge – while surmountable – should be taken seriously.
That’s what Michelle Pardo, a partner at Norton Rose Fulbright’s Washington, D.C., office, told the Animal Ag Alliance Stakeholders Summit during a presentation on legal threats and how to defend against them. Pardo spoke as part of the May 3 and 4 event in Kansas City, Missouri, centered on joining the animal agriculture industry to discuss the collective struggle against animal activist groups.
Working behind the scenes
Pardo, who’s worked on several fronts of animal law and animal rights litigation, said activists groups often won’t file a lawsuit themselves. Instead, the lawsuit is brought up by someone who says they are negatively affected by the animal agriculture, or animal exhibiting, entity. While the plaintiff may seem independent of the organizations, often they are propped up financially, or advised behind the scenes, by major activist groups such as the Humane Society of the United States (HSUS).
Pardo said this strategy was deployed when an employee of Ringling Bros. and Barnum & Bailey Circus sued the company’s parent organization Feld Entertainment Inc. in 2003. During the years of litigation and discovery, Pardo said a scheme was uncovered where major activists groups were funneling money to the plaintiff – the key exhibit was a check signed by HSUS CEO Wayne Pacelle.
The discovery of the payment scheme doomed the original case, and Feld countered by accusing HSUS, the American Society for the Prevention of Cruelty to Animals (ASPCA) and other activist groups involved in the case of racketeering. In 2012, the groups paid a collective $25 million to Feld to settle that case. However, Pardo cautioned, cases don’t often end so poorly for the activists.
Animal activist’s strategies to get to court
The most common tactic used by activists today is going after a farm or brand based on supposed consumer fraud, such as a case recently filed against Sanderson Farms. In those cases, the plaintiff claims that the marketing, or a label claim, of a certain product doesn’t match up with the average consumer’s conception of what humane or proper treatment should be and is therefore deceptive. This feeds off of the average consumer’s growing appetite for knowledge of what goes into their food, how it’s raised and how it’s processed. Often, the cases will be filed in states with more liberal consumer protection laws.
Pardo said the goal of these type of lawsuits is to put the animal welfare process on trial. The challenge is to convince the court not to follow what is ultimately a subjective belief of what a particular person calls “natural” or “humane.”
What the activists are shooting for is injunctive relief, meaning the court forces a company to do something or stop doing something. In many cases, the goal is to change how a product is advertised or to get a refund for consumers who purchased a product that was allegedly falsely advertised. Other times, the activists’ goal is to get as many documents as possible through the discovery process, particularly those dealing with animal care, so they can be publicized or used for some other purpose.
How to defend
In these types of cases, Pardo said the best defense is simple compliance. If there’s a law on the books dealing with animal welfare, or if the company has a written policy on animal welfare, then it should be followed.
She said the defense team typically tries to keep the frame of an argument inside the legal standards and practices. This is done because activists will often bring up animal rights rhetoric and flawed science as well as quote animal welfare standards from other countries. Pardo said the goal is to keep the arguments centered on the pertinent laws.
If a lawsuit is possible, she advised to ask these 10 questions as well:
- Can the case be removed to federal court?
- Is the case subject to the Class Action Fairness Act?
- Does the plaintiff have standing to pursue the litigation? Meaning, do they have an injury in fact?
- Did the plaintiff actually rely on the statements complained of in making the purchase?
- Are the standards or practices upon which the statement is based available to the consumer?
- Are the statements complained of capable of objective verification or are they subjective?
- Are the claims preempted by federal law?
- Does a federal agency have “primary jurisdiction?”
- Do additional claims, such as negligent misrepresentation, contain required affirmative misrepresentations?
- Can this be litigated under a protective order?
If a farmer or company finds themselves facing an activist motivated lawsuit, Pardo urged them to find qualified, experienced legal help.
“Be smart. Know how deep the knowledge is of these activists in the litigation world,” she said. “They are very connected and sometimes 10 steps ahead of the folks they are suing.”