There’s a brilliant skit from the comedy series Portlandia featuring two diners in a restaurant asking about the chicken on the menu.
The chicken was “fed a diet a sheep’s milk, soy and hazelnuts,” the server tells them, and had four acres to roam free.
The server then hands the couple a folder. “The chicken you’ll be enjoying tonight, his name was Colin. Here are his papers.”
“He looks like a happy little guy, running around. Did he have a lot of other chickens as friends?” the man inquires.
“I don’t know that I can speak to that level of intimate knowledge about him,” the server said regretfully. “They do a lot to make sure that their chickens are very happy.”
The couple then leaves the restaurant and drives 30 miles to the farm to examine the conditions themselves before ordering the dish.
The scenario is over the top, but it points to a valid question: What does it mean to raise an animal “humanely” for slaughter?
Poultry giant Foster Farms and the American Humane Association were hit with a would-be class action in Los Angeles County Superior Court that addressed the issue head-on.
In a big win for defense counsel from Mayer Brown and Duane Morris, Judge John Shepard Wiley Jr. last week dismissed the case on summary judgment, concluding that “what is ‘humane’ is subjective and debated, not objective and scientific.”
Foster Farms and the American Humane Association were sued by Los Angeles resident Carol Leining, who said she paid a premium for chicken labeled "American Humane® Certified," believing this meant that the birds “lived a life without disease and discomfort and were afforded a quick and painless death.”
In a twist, she was represented by Drinker Biddle & Wreath, a law firm that’s usually on the defense in class actions. (On its website,the firm boasts, “Class actions pose exceptional challenges and threaten extraordinary liabilities. Few firms can match our experience in defending such cases.”)
The complaint is a disturbing read. It details forced molting of female chickens brought on by 10-14 days of food deprivation; maceration, or inserting live male chicks into high-speed grinders; beak trimming; de-toeing of roosters and other procedures.
About 20,000 chickens may live together in a barn, “forced to lie in their own excrement … constantly inhaling harmful bacteria.” At the end of their short lives, they are “shackled upside down and run through a bath of electrified water which may or may not adequately stun them before their necks are slit by a machine.” Some are still alive when they’re dunked into vats of scalding water.
All this, and these chickens still get the American Humane Association’s blessing—for which the association is paid $375,000 a year by Foster Farms.
Leining’s lawyers from Drinker Biddle—Sheldon Eisenberg, Erin E. McCracken and Jessica Medina—allege that the “humane” certification is deceptive and misleading, and that the standards “fall well short of a reasonable consumer's expectations for humane treatment.”
They argued Foster Farms is liable under the doctrines of negligent representation, breach of express warranty, breach of the implied warranty of merchantability and California’s Business and Professions Code section 17200. The American Humane Association was hit with a negligent misrepresentation claim.
In defending the suit, Mayer Brown’s Carmine Zarlenga, Donald Falk, Dale Giali and Elizabeth Crepps took an unconventional tack. Rather than focusing first on denying class certification, they went straight for summary judgment.
“The case involved a legal issue, and summary judgment is better for dealing with legal issues,” said Zarlenga, who has counted Foster Farms as a client since 1996. “The real issue was a misguided effort of a consumer and her law firm to impose their own subjective beliefs of what is ‘humane’ on the rest of the world.”
In siding with the defense, Wiley offered a thoughtful, detailed opinion.
“George Orwell, for instance, ridiculed vegetarians as food-cranks, people out of touch with common humanity,” he wrote. “Robert Nozick, on the other hand, concluded that ‘the extra benefits Americans today can gain from eating animals do NOT justify doing it. So we shouldn’t.’ Cass Sunstein contrasts Kant and Bentham on animal rights: their views were night and day. Steven Wise and Guy Francione argue animals bear independent rights, while Richard Posner and Richard Epstein reject that view.” (Citations omitted.)
In evaluating the American Humane Association’s process for granting “humane” certification, Wiley focused on three issues: “It must be independent; it must take reasonable steps; and it must involve some level of expertise.”
The association, which was represented by Michelle C. Pardo, Rebecca E. Bazan, and Daniel Terzian of Duane Morris, met all three requirements, the judge determined.
Founded in 1877, the American Humane Association was the first such national organization in the country. Its work goes far beyond poultry—everything from rescuing homeless pets to protecting animals used in motion pictures.
As awful as the complaint makes the chickens’ living conditions sound, the association does require they are fed a wholesome diet and have plentiful fresh water. Their living environment must be kept at a comfortable temperature, with adequate ventilation, lighting and space.
They also require the producers to capture the chickens for transport in low lighting to minimize fear, and to limit the duration of transport. An animal welfare officer must oversee the processing of chickens into meat, to limit distress and discomfort. And the association conducts periodic on-site audits to make sure its standards are being followed.
“Whether American Humane Association’s standards were ‘the best’ is not relevant,” Wiley wrote.
The judge also blasted the plaintiff’s expert, Leah Garces, as an “opinionated but insubstantial dilettante,” and struck her testimony entirely.
Indeed, in reading the opinion you get the sense that Garces might have tipped the scales to the defense.
Wiley’s exposition here is worth keeping in mind: “Garces is partisan advocate, and her points are properly in a lawyer’s brief, not an expert’s declaration,” he wrote. “Garces exemplifies the ancient and classical problem with expert witnesses, which is unreliable partisanship…And the highly partisan character of expert testimony can imperil the search for truth."
“Reprinted with permission from the May 31, 2018 edition of Law.com’s Litigation Daily © 2018 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.”