Amid the fallout from undercover videos showing the abuse of calves at Fair Oaks Farms, the Indiana dairy operation’s owners are being sued by at least one milk consumer who says he was deceived by claims it provided a high caliber of care for its animals.
The federal class-action lawsuit from California resident Alain Michael names Mike and Sue McCloskey, Fair Oaks’ owners, and Fairlife, a Chicago-based milk company, as defendants. It was filed in Chicago on June 11 and alleges fraud and unjust enrichment.
The lawsuit accuses Fairlife of misleading advertising for promising “extraordinary” treatment of its cows, calling that promise a "sham."
It says the McCloskeys, as spokespersons for the brand and overseers of the farm that supplied Fairlife’s milk, were involved in the “day-to-day decision-making concerning the marketing and labeling” of the products.
Fairlife told IndyStar that company officials are aware of the lawsuit and are reviewing it.
"Fairlife is committed to the humane and compassionate care of animals," it said in a statement.
Fairlife said it discontinued the use of milk from Fair Oaks Farms and said it is in the process of auditing all 30 of its supplying farms by July 6.
A spokesman for the McCloskeys has not responded to IndyStar's request for comment. Court records don't list an attorney for the defendants.
In a statement posted Wednesday on its website, Fairlife said officials have seen the videos made public by the Miami-based animal welfare group Animal Recovery Mission.
The first video shows Fair Oaks Farms workers allegedly abusing calves and using drugs at the farm. The second one shows additional abuse against animals, more alleged drug use and poor living conditions for the animals.
The latest video, which was posted to Vimeo late Tuesday, shows graphic images of alleged abuse toward sick and injured cows as they're being milked.
The complaint says the McCloskeys and Fair Oaks “preyed” on consumers’ desire for dairy products sourced from farms that ensure “high levels of animal welfare” by making such animal-welfare claims a central tenant of their labeling campaign. Michael bought Fairlife’s milk product because he believed them, the lawsuit says.
All the while, Fair Oaks’ cows were being tortured and abused, the lawsuit says. The complaint details the abuse seen in ARM’s videos. It also centers on Fairlife’s label, which says “extraordinary care and comfort for our cows" and is plastered with the word "promise," according to the complaint.
“We’d love to have you visit our flagship farm in Indiana so you can see for yourself!” — the label says, according to the lawsuit. Just below Mike and Sue McCloskey’s signatures, the label displays an image of Fair Oaks Farms, the complaint says.
The suit notes a statement from Mike McCloskey, who took responsibility for the abuse on Fair Oaks Farms’ website. McCloskey said the abuse “goes against everything that we stand for in regards to responsible cow care and comfort.”
But the complaint says McCloskey’s words fell short. It says he then “went on to excuse the animal abuse by blaming a few bad apples, even though the abuse was rampant and known and approved by management.”
Indianapolis attorney Colin Flora, who among other things, specializes in class-action cases, told IndyStar the case has a decent chance of success, but could encounter a hurdle called the puffery defense.
Puffery consists of "empty superlatives on which no reasonable person would rely," according to an Indiana Supreme Court opinion. It's like a car salesman saying that he is selling a "sporty car at great value price," Flora said.
"It's an objective versus subjective representation," Flora said. "Often when you say something is good quality, there’s no objective quality of that. It's subjective," he said. "So when they say the cattle are treated with extraordinary care, is there an objective measure it can be held up against?"
This week, police arrested one of three suspects charged with abusing animals in connection with the videos. On Wednesday, ARM indicated it may release more videos.
"It’d be one thing if there were some claims and the (suspects) got arrested," Flora said. "But we’ve got video."