Animal Activist Group’s “Open Rescue” Violates California’s Unfair Competition Law

by Michelle C. Pardo

Animal activist group Direct Action Everywhere (“DxE”), which made headlines for its members’ multiple criminal charges as a result of trespassing and removing animals from agriculture operations, has been enjoined for its violation of California’s Unfair Competition Law (“UCL”) for its “open rescue” actions against Diestel Turkey Ranch.  After targeting Diestel’s turkey farms with its tactics, and launching an “investigation” of its turkey raising practices, back in January of 2017, DxE sued Diestel in the Alameda County Superior Court under the UCL and the False Advertising Law (FAL).  DxE alleged that Diestel Turkey Ranch’s marketing had made misleading and deceptive claims about how its turkeys are raised.  Direct Action Everywhere SF Bay Area v. Diestel Turkey Ranch (RG17847475) (Superior Court, Alameda County).

The California UCL and other consumer fraud statutes have been a mainstay of animal rights litigation, as groups have tried to use the statutes to litigate their animal rights’ agendas when they otherwise would not have a private cause of action to sue over animal welfare or have been unsuccessful in banning the use of animals in the legislature.  Animal activists have targeted welfare and humane claims by agriculture producers as a direct threat to their vegan and animal liberation agendas.  DxE’s Organizer Handbook states: “we believe that humane meat is the wobbly linchpin holding together the whole system of meat.”  DxE’s founder, Wayne Hsuing, recently lost a bid to become the mayor of Berkeley, California, and had stepped down from his DxE leadership role in 2019 in advance of multiple criminal trials for his prior “rescue” acts.

DxE alleged that Diestel’s marketing claims that its turkeys were “thoughtfully raised” “chemical free” “antibiotic free,” and that Dietsel operated a “family farm” that employs “sustainable” practices, were fraudulent and misleading to consumers.  Diestel participated in an animal welfare certifying program through Global Animal Partnership (GAP).  Believing Diestel’s turkey welfare claims to be false, DxE set out to “investigate” Diestel’s farms (often entering agriculture properties unlawfully, at night, and sometimes without protective clothing that violated biosecurity protocols) to videotape and “rescue” some of its turkeys.  After nine months of targeting Diestel, including multiple trips to its farms and six unauthorized intrusions, DxE found welfare issues with ten out of approximately 50-60,000 birds.  Diestel asserted counterclaims against DxE for trespass, conversation and its own UCL claim under the “unlawful” prong for DxE members’ illegal entry and taking of its animals.

Following an eight-day trial, the court issued a Statement of Decision on November 23, 2020.  On DxE’s UCL and FAL claims, the court found that DxE did not have standing to sue, as it had not relied to its detriment on any of Diestel’s statements.

The court stated:

“It is not actionable reliance under the law to intentionally divert resources or suffer economic harm in order to attempt to prove your pre-existing belief that advertising is false.”

Finding that DxE had standing to pursue its UCL “unlawful” and “unfair” claim (based on California’s animal cruelty and neglect statutes), the court nonetheless found that on the underlying cruelty/neglect claims, the overwhelming weight of evidence favored Diestel.  Astonishingly, DxE made no attempt at trial to prove the predicate animal cruelty and neglect claims (leading the court to find that it had “abandoned” them) and the court found that the testimony by Diestel’s fact and expert witnesses established that the turkeys were provided with good welfare.  As for the ten turkeys that were found with issues, the court expressed a pragmatic view, stating:

“These are as likely as not the harsh realities of an imperfect world and natural selection, which may occur whether one is born on a commercial turkey ranch or on the wilds of the Serengeti.”

DxE was unsuccessful on all of its claims.  However, the court found in favor of Diestel on its trespass and conversion claims (awarding nominal damages).  Significantly, it also entered judgment for Dietsel on its UCL “unlawful” claim and enjoined DxE from entering Diestel’s properties and prohibited its unlawful seizure (“open rescue”) of turkeys.  DxE also will be responsible for Dietsel’s costs.

“According to plaintiffs Organizer’s Handbook and the New Activist’s Handbook and the evidence presented at trial, the court finds DxE is engaged in the unlawful business practices of trespass and theft, which it calls open rescues. Cross-defendant Wayne Hsiung admitted he acted in this case and in others as an agent of DxE in carrying out these unlawful business practices. The undisputed evidence in this case was that Hsiung violated the biosecurity protocols for the turkey barns and put the turkeys at risk for disease vectors and pathogens.”

The court noted the unfortunate irony of the animal activists actions:

“Given DxE and Hsiung’ s professed care and concern for the turkeys, one cannot help but wonder how it would have impacted them if their reckless disregard for the turkeys’ biosecurity had resulted in the premature deaths of thousands of the had they been infected with some avian flu or pathogen by their trespass and been put down.”

The court warned DxE of the monetary consequences that could follow with subsequent violations of the injunction.

The court’s decision is notable for highlighting the gross hypocrisy of DxE’s actions.  Whether the injunction will stop DxE — or other extremist groups — from engaging in illegal activity is yet to be determined.  However, it should send a message to animal activists that the UCL is not an easy vehicle for litigating its philosophical agendas, particularly without offering any credible evidence of abuse.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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