1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOCKRIDGE GRINDAL NAUEN P.L.L.P. REBECCA A. PETERSON (241858) 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: [email protected][Additional Counsel on Signature Page] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION JENNIFER REITMAN, JENNIFER SONG, RACHEL COLANGELO, SAMANTHA JERDING, RICHARD CLAPP, ZACHARY CHERNIK, EMMA BERRY, PAM BLACKBURN, HOLLY RYDMAN, KIRSTEN PEDERSEN, RAMY SHAKER, and SCOTT WEAVER, individually and on behalf of a class of similarly situated individuals, PLAINTIFFS, V. CHAMPION PETFOODS USA, INC. and CHAMPION PETFOODS LP, DEFENDANTS. . ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:18-cv-01736-DOC-JPR AMENDED CLASS ACTION COMPLAINT FOR: (1) VIOLATION OF THE CALIFORNIA CONSUMER LEGAL REMEDIES ACT; (2) VIOLATION OF THE CALIFORNIA FALSE ADVERTISING LAW; (3) VIOLATION OF THE CALIFORNIA UNFAIR COMPETITION LAW; (4) VIOLATION OF THE MINNESOTA COMMERCIAL FEED LAW; (5) VIOLATION OF MINNESOTA UNLAWFUL TRADE PRACTICES ACT; (6) VIOLATION OF MINNESOTA UNIFORM DECEPTIVE TRADE PRACTICES ACT; (7) VIOLATION OF MINNESOTA FALSE STATEMENT IN ADVERTISING ACT; (8) VIOLATION OF MINNESOTA PREVENTION OF CONSUMER FRAUD; (9) VIOLATION OF NEW YORK GENERAL BUSINESS LAW § 349; (10) VIOLATION OF NEW YORK GENERAL BUSINESS LAW § 350; (11) BREACH OF EXPRESS WARRANTY; (12) VIOLATION OF THE FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT; (13) BREACH OF IMPLIED WARRANTY; (14) FRAUDULENT MISREPRESENTATION; (15) FRAUD BY OMISSION; (16) NEGLIGENT MISREPRESENTATION; (17) UNJUST ENRICHMENT; (18) VIOLATION OF COLORADO CONSUMER PROTECTION ACT; Case 2:18-cv-01736-DOC-JPR Document 39 Filed 04/19/18 Page 1 of 143 Page ID #:180
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LOCKRIDGE GRINDAL NAUEN P.L.L.P. REBECCA A. PETERSON (241858) 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: [email protected] [Additional Counsel on Signature Page] Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
JENNIFER REITMAN, JENNIFER SONG, RACHEL COLANGELO, SAMANTHA JERDING, RICHARD CLAPP, ZACHARY CHERNIK, EMMA BERRY, PAM BLACKBURN, HOLLY RYDMAN, KIRSTEN PEDERSEN, RAMY SHAKER, and SCOTT WEAVER, individually and on behalf of a class of similarly situated individuals, PLAINTIFFS, V. CHAMPION PETFOODS USA, INC. and CHAMPION PETFOODS LP, DEFENDANTS.
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Case No. 2:18-cv-01736-DOC-JPR AMENDED CLASS ACTION COMPLAINT FOR: (1) VIOLATION OF THE CALIFORNIA CONSUMER LEGAL REMEDIES ACT; (2) VIOLATION OF THE CALIFORNIA FALSE ADVERTISING LAW; (3) VIOLATION OF THE CALIFORNIA UNFAIR COMPETITION LAW; (4) VIOLATION OF THE MINNESOTA COMMERCIAL FEED LAW; (5) VIOLATION OF MINNESOTA UNLAWFUL TRADE PRACTICES ACT; (6) VIOLATION OF MINNESOTA UNIFORM DECEPTIVE TRADE PRACTICES ACT; (7) VIOLATION OF MINNESOTA FALSE STATEMENT IN ADVERTISING ACT; (8) VIOLATION OF MINNESOTA PREVENTION OF CONSUMER FRAUD; (9) VIOLATION OF NEW YORK GENERAL BUSINESS LAW § 349; (10) VIOLATION OF NEW YORK GENERAL BUSINESS LAW § 350; (11) BREACH OF EXPRESS WARRANTY; (12) VIOLATION OF THE FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT; (13) BREACH OF IMPLIED WARRANTY; (14) FRAUDULENT MISREPRESENTATION; (15) FRAUD BY OMISSION; (16) NEGLIGENT MISREPRESENTATION; (17) UNJUST ENRICHMENT; (18) VIOLATION OF COLORADO CONSUMER PROTECTION ACT;
Case 2:18-cv-01736-DOC-JPR Document 39 Filed 04/19/18 Page 1 of 143 Page ID #:180
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(19) VIOLATION OF MICHIGAN CONSUMER PROTECTION ACT; (20) VIOLATION OF WISCONSIN DECEPTIVE TRADE PRACTICES ACT; (21) VIOLATION OF ILLINOIS CONSUMER FRAUD AND DECEPTIVE BUSINESS PRACTICES ACT; (22) VIOLATION OF MASSACHUSETTS BREACH OF EXPRESS WARRANTY; (23) VIOLATION OF MASSACHUSETTS BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY; (24) VIOLATION OF MASSACHUSETTS NEGLIGENT MISREPRESENTATION; (25) VIOLATION OF MASSACHUSETTS INTENTIONAL MISREPRESENTATION; (26) VIOLATION OF MASSACHUSETTS FRAUDULENT MISREPRESENTATION; (27) VIOLATIONS OF WASHINGTON UNFAIR BUSINESS PRACTICES AND CONSUMER PROTECTION ACT; (28) WASHINGTON FRAUDULENT MISREPRESENTATION; (29) WASHINGTON NEGLIGENT MISREPRESENTATION; (30) WASHINGTON BREACH OF EXPRESS WARRANTY; (31) WASHINGTON BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY; (32) VIOLATION OF ALASKA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION ACT; (33) ALASKA FRAUDULENT MISREPRESENTATION; (34) ALASKA NEGLIGENT MISREPRESENTATION; (35) ALASKA BREACH OF EXPRESS WARRANTY; (36) ALASKA BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY; (37) IOWA FRAUDULENT MISREPRESENTATION; (38) IOWA NEGLIGENT MISREPRESENTATION; (39) IOWA BREACH OF EXPRESS WARRANTY; (40) IOWA BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY DEMAND FOR JURY TRIAL
Case 2:18-cv-01736-DOC-JPR Document 39 Filed 04/19/18 Page 2 of 143 Page ID #:181
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1. Plaintiffs Jennifer Reitman, Jennifer Song, Rachel Colangelo, Samantha
Jerding, Richard Clapp, Zachary Chernik, Emma Berry, Pam Blackburn, Holly Rydman,
Kirsten Pedersen, Ramy Shaker, and Scott Weaver, individually and on behalf of all others
similarly situated, by and through their undersigned attorneys, bring this Class Action
Complaint against Defendants Champion Petfoods USA, Inc. and Champion Petfoods LP
(“Defendants”), for their negligent, reckless, and/or intentional practice of misrepresenting
and failing to fully disclose the presence of heavy metals and toxins in their pet food sold
throughout the United States. Plaintiffs seek both injunctive and monetary relief on behalf
of the proposed Classes (defined below), including requiring full disclosure of all such
substances in its marketing, advertising, and labeling and restoring monies to the members
of the proposed Classes. Plaintiffs allege the following based upon personal knowledge as
well as investigation by their counsel and as to all other matters, upon information and
belief. Plaintiffs believe that substantial evidentiary support will exist for the allegations
set forth herein after a reasonable opportunity for discovery.
DEFENDANTS MARKET THEMSELVES AS ONLY SELLING PREMIUM DOG FOOD WITH THE SIMPLE MISSION OF “TO BE TRUSTED BY PET
LOVERS”
2. Defendants manufacture, market, advertise, label, distribute, and sell pet
food under the brand names Acana and Orijen throughout the United States, including in
this District.
3. Defendants have created a niche in the pet food market by “making
biologically ‘appropriate’ pet food- as close to what animals would eat in nature as
possible- and producing it using fresh, natural ingredients…” They then charge a premium
for this purportedly higher-quality food. The founder of the company, Peter Muhlenfeld,
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said, “Our core family beliefs are [] entrenched in the company, and that is to make the
very best food.”1
4. Defendants tout that “Biologically Appropriate™ ORIJEN represents a new
class of food, designed to nourish dogs and cats according to their evolutionary adaptation
to a diet rich and diverse in fresh meat and protein[]” and that it is “trusted by pet lovers
everywhere.”2
5. Defendants’ packaging and labels further emphasize fresh, quality, and
properly sourced ingredients and even declares its dog food has “ingredients we love”:
1 The Globe and Mail, “How once-tiny pet-food maker took a bite of the global market,” Jan. 16, 2018,https://www.theglobeandmail.com/report-on-business/small-business/canadian-powerhouse-export-your-dog-is-eating-it/article37605774/ (last visited Feb. 6, 2018).
2 https://www.orijen.ca/us/
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6. Yet nowhere in the labeling, advertising, statements, warranties and/or
packaging do Defendants disclose that the Contaminated Pet Foods (defined herein)
contain levels of arsenic, mercury, lead, cadmium and/or BISPHENOL A (“BPA”) — all
known to pose health risks to humans and animals, including dogs:3
Product Name
arsenic ug per
kg
bpa ug per
kg cadmium ug per kg
mercury ug per
kg lead ug per kg
Acana Regionals Wild Atlantic New England Fish and Fresh Greens Dry Dog Food
3256.40 32.50 113.00 51.20 249.30
Orijen Six Fish With New England Mackerel, Herring, Flounder, Redfish, Monkfish, Silver Hake Dry Dog Food
3169.80 39.50 200.50 54.90 38.70
Orijen Original Chicken, Turkey, Wild-Caught Fish, Eggs Dry Dog Food
907.60 0.00 93.20 10.80 489.80
3 All the below pet food collectively is referred to as the “Contaminated Dog Foods.” Discovery in this action likely will lead to the identification of additional products based on Defendants’ public acknowledgment that their foods do contain heavy metals.
Case 2:18-cv-01736-DOC-JPR Document 39 Filed 04/19/18 Page 5 of 143 Page ID #:184
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Product Name
arsenic ug per
kg
bpa ug per
kg cadmium ug per kg
mercury ug per
kg lead ug per kg
Orijen Regional Red Angus Beef, Boar, Goat, Lamb, Pork, Mackerel Dry Dog Food
849.40 43.60 123.10 21.40 167.70
Acana Regionals Meadowland with Poultry, Freshwater Fish and Eggs Dry Dog Food
846.40 82.70 37.50 8.70 489.00
Acana Regionals Appalachian Ranch with Red Meats and Freshwater Catfish Dry Dog Food
358.20 82.90 32.50 14.90 336.70
Acana Regionals Grasslands with Lamb, Trout, and Game Bird Dry Dog Food
Case 2:18-cv-01736-DOC-JPR Document 39 Filed 04/19/18 Page 10 of 143 Page ID #:189
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THE INCLUSION OF HEAVY METALS, BPA AND ANY OTHER CHEMICALS AT ANY LEVEL WOULD BE MATERIAL TO A REASONABLE CONSUMER
BASED ON THE INHERENT AND KNOWN RISKS OF CONSUMPTION AND/OR EXPOSURE
Heavy Metals
10. Based on the risks associated with exposure to higher levels of arsenic, both
the U.S. Environmental Protection Agency (“EPA”) and U.S. Food and Drug
Administration (“FDA”) have set limits concerning the allowable limit of arsenic at 10
parts per billion (“ppb”) for human consumption in apple juice (regulated by the FDA) and
drinking water (regulating by the EPA).6
6 The FDA has taken action based on consumer products exceeding this limit, including testing and sending warning letters to the manufacturers. See, e.g., Warning Letter from FDA to Valley
Case 2:18-cv-01736-DOC-JPR Document 39 Filed 04/19/18 Page 11 of 143 Page ID #:190
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11. Moreover, the FDA is considering limiting the action level for arsenic in rice
cereals for infants to 100 ppb7
12. The Contaminated Dog Foods also contain lead, which is another carcinogen
and developmental toxin known to cause health problems. Exposure to lead in food builds
up over time. Buildup can and has been scientifically demonstrated to lead to the
development of chronic poisoning, cancer, developmental, and reproductive disorders, as
well as serious injuries to the nervous system, and other organs and body systems.
13. The Contaminated Dog Foods also contain mercury, which can cause
damage to the cardiovascular system, nervous system, kidneys, and digestive tract in dogs.
Continued exposure can also injure the inner surfaces of the digestive tract and abdominal
cavity, causing lesions and inflammation. There have also been reports of lesions in the
central nervous system (spinal cord and brain), kidneys, and renal glands.8
14. Finally, the Contaminated Dog Foods contain cadmium which has been
observed to cause anemia, liver disease, and nerve or brain damage in animals eating or
drinking cadmium. The U.S. Department of Health and Human Services has determined
that cadmium and cadmium compounds are known human carcinogens and the EPA has
likewise determined that cadmium is a probable human carcinogen. 9
Processing, Inc. (June 2, 2016), https://www.fda.gov/iceci/enforcementactions/warningletters /2016/ucm506526.htm.
7 FDA, Draft Guidance for Industry: Inorganic Arsenic in Rice Cereals for Infants: Action Level (Apr. 2016), https://www.fda.gov/downloads/Food/GuidanceRegulation/GuidanceDocuments RegulatoryInformation/UCM493152.pdf. 8 https://wagwalking.com/condition/mercury-poisoning
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Defendants to market the Contaminated Dog Foods as healthy and safe to induce
consumers, such as Plaintiffs, to purchase the products. For instance, Defendants market
the Contaminated Dog Foods as “Biologically Appropriate,” using “Fresh Regional
Ingredients” comprised of 100 percent meat, poultry, fish, and/or vegetables, both on the
products’ packaging and on Defendants’ websites.
20. Moreover, Defendants devote significant web and packaging space to the
marketing of their DogStar® Kitchens, which they tell consumers “are the most advanced
pet food kitchens on earth, with standards that rival the human food processing industry.”
21. Defendants state on their website that the Orijen pet foods “feature[]
unmatched and unique inclusions of meat, naturally providing everything your dog or cat
needs to thrive.” Defendants further promise on the products’ packaging and on its website
that its Orijen and Acana foods are “guaranteed” to “keep your dog happy, healthy, and
strong.”
22. Using such descriptions and promises makes Defendants' advertising
campaign deceptive based on presence of heavy metals in the Contaminated Dog Foods.
Reasonable consumers, like Plaintiffs, would consider the mere inclusion of heavy metals
in the Contaminated Dog Foods as a material fact in considering what pet food to purchase.
Defendants' above-referenced statements, representations, partial disclosures, and
omissions are false, misleading, and crafted to deceive the public as they create an image
that the Contaminated Dog Foods are healthy, safe, and free of contaminants such as
arsenic and lead. Moreover, Defendants knew or should have reasonably expected that the
presence of heavy metals in its Contaminated Dog Foods is something an average
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consumer would consider in purchasing dog food. Defendants' representations and
omissions are false, misleading, and reasonably likely to deceive the public.
23. Moreover, a reasonable consumer, such as Plaintiffs and other members of
the Classes (as defined herein), would have no reason to not believe and/or anticipate that
the Contaminated Dog Foods are "“Biologically Appropriate” foods that use “Fresh
Regional Ingredients” consisting only of meat, poultry, fish, and vegetables. Non-
disclosure and/or concealment of the toxins in the Contaminated Dog Foods coupled with
the misrepresentations alleged herein by Defendants suggesting that the food provides
complete health and is safe is intended to and does, in fact, cause consumers to purchase a
product Plaintiffs and members of the classes not have bought if the true quality and
ingredients were disclosed. As a result of these false or misleading statements and
omissions, Defendants have generated substantial sales of the Contaminated Dog Foods.
24. The expectations of reasonable consumers and deception of these consumers
by Defendants’ advertising, misrepresentations, packaging, labeling is further highlighted
by the public reaction to this lawsuit as reported by various websites.
25. Plaintiffs bring this action individually and on behalf of all other similarly
situated consumers within California, Minnesota and Florida who purchased the
Contaminated Dog Foods, in order to cause the disclosure of the presence of heavy metals
that pose a known risk to both humans and animals in the Contaminated Dog Foods, to
correct the false and misleading perception Defendants have created in the minds of
consumers that the Contaminated Dog Foods are high quality, safe, and healthy and to
obtain redress for those who have purchased the Contaminated Dog Foods.
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Bisphenol A (“BPA”)
26. The dangers of BPA in human food are recognized by the FDA, along with
various states. For instance, manufacturers and wholesalers are prohibited from selling
any children’s products that contain BPA and any infant formula, baby food, or toddler
food stored in containers with intentionally added BPA
27. Still, certain Contaminated Dog Foods are sold by Defendants that contain
levels of BPA—an industrial chemical that “‘is an endocrine disruptor. It’s an industrial
chemical that according to Medical News Today’ . . . interferes with the production,
secretion, transport, action, function and elimination of natural hormones.’”12 BPA has
been linked to various health issues, including reproductive disorders, heart disease,
diabetes, cancer, and neurological problems.13
28. Despite the presence of this harmful chemical, Defendants prominently
warrant, claim, feature, represent, advertise, or otherwise market the Contaminated Dog
Foods as made from “Biologically Appropriate” and “Fresh Regional Ingredients”
consisting entirely of fresh meat, poultry, fish, and vegetables. Indeed, each bag
prominently displays the percentage of these ingredients on the front.
29. Defendants’ website and packaging also warrants, claims, features,
represents, advertises, or otherwise markets that its products are natural. In fact, Orijen’s
slogan is “Nourish as Nature Intended.”
12Dr. Karen Beeker, A Major Heads Up: Don't Feed This to Your Dog, Healthy Pets (Feb. 13, 2017), https://healthypets.mercola.com/sites/healthypets/archive/2017/02/13/dogs-canned-food-dangers.aspx. 13 Christian Nordquist, Bisphenol A: How Does It Affect Our Health? Medical News Today (May 24, 2017), https://www.medicalnewstoday.com/articles/221205.php.
Case 2:18-cv-01736-DOC-JPR Document 39 Filed 04/19/18 Page 16 of 143 Page ID #:195
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30. In promoting their promise, warranty, claim, representation, advertisement,
or otherwise marketing that the Contaminated Dog Foods are safe and pure, Defendants
further assure its customers:
Equipped with state-of-the-art fresh food processing technologies, our DogStar® kitchens feature 25,000 square feet of cooler space, capable of holding over 500,000 pounds of fresh local meats, fish and poultry, plus fresh whole local fruits and vegetables.
Unmatched by any pet food maker, our ingredients are deemed fit for human consumption when they arrive at our kitchens fresh, bursting with goodness, and typically within 48 hours from when they were harvested.
31. To this end, Defendants’ websites further warrants, claims, features,
represents, advertises, or otherwise markets that the Contaminated Dog Foods are
manufactured in such a way that would prevent BPA forming by closely monitoring
temperatures and quality:
“[O]ur unique Votator Heat Exchangers bring chilled fresh ingredients to room temperature without introducing water or steam, which enables us to add even more fresh meats into our foods.”
“Referred to as ‘the most significant preconditioning development for extrusion cooking in the last 20 years,’ our High Intensity Preconditioners
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were custom-built for DogStar®, feeding fresh meats from the Votators to Extruders at rates previously unheard of, and without high temperatures.”
“At the heart of our kitchens is a twin thermal extruder which is fed fresh ingredients from our High Intensity Preconditioner.
The first of its kind in North America, it took 11 months to build, and features custom steam injection to enable very high fresh meat inclusions and a gentle cooking process which helps further reduce the carbohydrates in our foods and preserves their natural goodness.”
32. Thus, Defendants engaged in deceptive advertising and labeling practice by
expressly warranting, claiming, stating, featuring, representing, advertising, or otherwise
marketing on Acana and Orijen labels and related websites that the Contaminated Dog
Foods are natural, fit for human consumption, fit for canine consumption, and made from
“Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh
meat, poultry, fish, and vegetables when they contain the non-naturally occurring chemical
BPA.
33. Based on these false representations, Defendants charge a premium, knowing
that the claimed natural make-up of the Contaminated Dog Foods (as well as all of the
other alleged false and/or misleading representations discussed herein) is something an
average consumer would consider as a reason in picking a more expensive dog food. By
negligently and/or deceptively representing, marketing, and advertising the Contaminated
Dog Foods as natural, fit for human consumption, fit for canine consumption, natural, and
made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting
entirely of fresh meat, poultry, fish, and vegetables, Defendants wrongfully capitalized on,
and reaped enormous profits from, consumers’ strong preference for natural pet food
products.
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34. Plaintiffs bring this action individually and on behalf of all other similarly
situated consumers within California, Minnesota and Florida who purchased the
Contaminated Dog Foods, in order to cause the disclosure of the presence of BPA that pose
a known risk to both humans and animals in the Contaminated Dog Foods, to correct the
false and misleading perception Defendants have created in the minds of consumers that
the Contaminated Dog Foods are high quality, safe, and healthy and to obtain redress for
those who have purchased the Contaminated Dog Foods.
JURISDICTION AND VENUE
35. This Court has original jurisdiction over all causes of action asserted herein
under the Class Action Fairness Act, 28 U.S.C. §1332(d)(2), because the matter in
controversy exceeds the sum or value of $5,000,000 exclusive of interest and costs and
more than two-thirds of the Classes reside in states other than the states in which
Defendants are citizens and in which this case is filed, and therefore any exemptions to
jurisdiction under 28 U.S.C. §1332(d) do not apply.
36. Venue is proper in this Court pursuant to 28 U.S.C. §1391, because Plaintiff
Reitman resides and suffered injury as a result of Defendants' acts in this district, many of
the acts and transactions giving rise to this action occurred in this district, Defendants
conduct substantial business in this district, Defendants have intentionally availed
themselves of the laws and markets of this district, and Defendants are subject to personal
jurisdiction in this district.
PARTIES
37. Plaintiff Jennifer Reitman (“Plaintiff Reitman”) is, and at all times relevant
hereto has been, a citizen of the state of California. Plaintiff Reitman purchased the
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following Contaminated Dog Foods for her two dogs, a German shepherd mix named
Goliath and a Husky mix named Laska: Orijen Six Fish With New England Mackerel,
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(s) Orijen Grain Free Puppy Chicken, Turkey, Wild-Caught Fish,
Eggs Dry Dog Food
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(t) Acana Singles Mackerel and Greens Formula Dry Dog Food
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(u) Acana Heritage Meats Formula Dry Dog Food
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(v) Acana Singles Pork and Squash Formula Dry Dog Food
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Heavy Metals Create Known Risks When Ingested
54. Toxins like arsenic, mercury, cadmium and lead can cause serious illness to
humans and animals. A company should be vigilant to take all reasonable steps to avoid
causing family pets to ingest these toxins.
55. Arsenic is a semi-metal element in the periodic table. It is odorless and
tasteless. Arsenic occurs naturally in the environment as an element of the earth's crust; it
is found in rocks, soil, water, air, plants, and animals. Arsenic is combined with other
elements such as oxygen, chlorine, and sulfur to form inorganic arsenic compounds.
Historically, arsenic compounds were used in many industries, including: (i) as a
preservative in pressure-treated lumber; (ii) as a preservative in animal hides; (iii) as an
additive to lead and copper for hardening; (iv) in glass manufacturing; (v) in pesticides;
(vi) in animal agriculture; and (vii) as arsine gas to enhance junctions in semiconductors.
The United States has canceled the approvals of some of these uses, such as arsenic-based
pesticides, for health and safety reasons. Some of these cancellations were based on
voluntary withdrawals by producers. For example, manufacturers of arsenic-based wood
preservatives voluntarily withdrew their products in 2003 due to safety concerns, and the
EPA signed the cancellation order. In the Notice of Cancellation Order, the EPA stated
that it “believes that reducing the potential residential exposure to a known human
carcinogen is desirable.” Arsenic is an element—it does not degrade or disappear.
56. Inorganic arsenic is a known cause of human cancer. The association
between inorganic arsenic and cancer is well documented. As early as 1879, high rates of
lung cancer in miners from the Kingdom of Saxony were attributed, in part, to inhaled
arsenic. By 1992, the combination of evidence from Taiwan and elsewhere was sufficient
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to conclude that ingested inorganic arsenic, such as is found in contaminated drinking water
and food, was likely to increase the incidence of several internal cancers. The scientific
link to skin and lung cancers is particularly strong and longstanding, and evidence supports
conclusions that arsenic may cause liver, bladder, kidney, and colon cancers as well.
57. Lead is a metallic substance formerly used as a pesticide in fruit orchards,
but the use of such pesticides is now prohibited in the United States. Lead, unlike many
other poisons, builds up in the body over time as the person is exposed to and ingests it,
resulting in a cumulative exposure which can, over time, become toxic and seriously
injurious to health. Lead poisoning can occur from ingestion of food or water containing
lead. Acute or chronic exposure to material amounts of lead can lead to severe brain and
kidney damage, among other issues, and ultimately cause death.
58. In recognition of the dangers of lead, the State of Minnesota has enacted the
Lead Poisoning Prevention Act. In 2014, the Minnesota Commissioner of Health defined,
under Minnesota Statute 144.9501, an “elevated blood lead level” as “a diagnostic blood
lead test with a result that is equal to or greater than five micrograms of lead per deciliter
of whole blood in any person.”
59. The State of Minnesota also recognizes the dangers of arsenic and prohibits
the sale or use of “any fertilizer containing more than 500 parts per million by weight of
arsenic.”
60. The FDA has set standards that regulate the maximum parts per billion of
lead permissible in water: bottled water cannot contain more than 5 ppb of total lead or 10
ppb of total arsenic. See 21 C.F.R. §165.110(b)(4)(iii)(A).
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61. Mercury is a known toxin that creates health risks to both humans and
animals. The impact of the various ways humans and animals are exposed and ingest
mercury has been studied for years. In fact, in as early as 1997, the EPA issued a report to
Congress that detailed the health risks to both humans and animals.14
62. Based on the toxicity and risks of Mercury, regulations have been enacted at
both the Federal and state level.
63. Cadmium is likewise a known toxin that creates risk when ingested by
animals or humans. It has been specifically noted that “Kidney and bone effects have []
been observed in laboratory animals ingesting cadmium. Anemia, liver disease, and nerve
or brain damage have been observed in animals eating or drinking cadmium.”15
Defendants Falsely Advertise the Contaminated Dog Foods as Nutritious, Superior Quality, Pure, and Healthy While Omitting Any Mention of the Heavy Metals, as Well as Claim the Foods Are Natural, Pure, and Safe Despite the Inclusion of the Industrial Chemical BPA
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Contaminated Dog Foods, are natural, fit for human consumption, fit for canine
consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients”
consisting entirely of fresh meat, poultry, fish, and vegetables, Defendants had a known
duty to ensure that there were no chemicals included in the Contaminated Dog Foods. In
fact, Defendants offered further assurances by representing that the quality control over the
manufacturing of the Contaminated Dog Foods as a rigid process free of outsourcing.
70. Defendants specifically promise on their website, “[W]e prepare ACANA
ourselves, in our own kitchens, where we oversee every detail of food preparation — from
where our ingredients come from, to every cooking, quality and food safety process.”
Similarly, Defendants promise that their “Dogstar® Kitchens have access to a myriad of
specialty family farms, with whom we partner for our supply of trusted ingredients.”
Finally, Defendants’ promise “[s]tandards that rival the human food processing industry
for authenticity, nutritional integrity, and food safety.” According to the Orijen and Acana
websites, Defendants use “feature state-of-the-art fresh food processing technologies.” As
such, Defendants knew or should have known that higher temperatures coupled with the
type of containers used in manufacturing create a real risk of BPA in their products.
71. The Contaminated Dog Foods are available at numerous retail and online
outlets in the United States, including California, Minnesota and Florida.
72. The Contaminated Dog Foods are widely advertised, and Defendants employ
a Chief Marketing Officer, a Vice President for Customer Engagement, and a Director of
Marketing in both the United States and Canada.
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73. The official websites for Acana and Orijen display the Contaminated Dog
Foods; descriptions and full lists of ingredients for the Contaminated Dog Foods and
includes the following promises:
74. Defendants’ websites repeat the false and misleading claims, warranties,
representations, advertisements, and other marketing about the Contaminated Dog Foods
benefits, quality, purity, and natural make-up, without any mention of the heavy metals
and/or BPA they contain. This is not surprising given that natural pet food sales represent
over $5.5 billion in the United States and have consistently risen over the years.17
17 Statista, Natural and Organic Pet Food Sales in the U.S. from 2009 to 2019, The Statistics Portal (accessed Oct. 25, 2017). https://www.statista.com/statistics/548957/us-sales-of-natural-and-organic-pet-food/
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75. Moreover, Defendants have themselves acknowledged the importance of
quality dog food to the reasonable consumer:
“Our No. 1 mandate is BAFRINO – biologically appropriate, fresh regional ingredients, never outsourced,” said Frank Burdzy, president and chief executive officer of Champion Petfoods in Canada, in an interview with the Daily News Monday prior to housewarming activities outside and inside the kitchens.
“We build relationships with our suppliers and farms and fisheries. We are trusted by pet owners,” Burdzy said.18
76. As a result of Defendants’ omissions, a reasonable consumer would have no
reason to suspect the presence of heavy metals and/or BPA in the Contaminated Dog Foods
without conducting his or her own scientific tests, or reviewing third-party scientific testing
of these products.
77. However, after conducting third-party scientific testing, it is clear that the
Contaminated Dog Foods does in fact contain levels both heavy metals and/or BPA.
NEWS (Jan. 5, 2016) available at http://www.bgdailynews.com/news/champion-petfoods-dogstar-kitchens-holds-housewarming/article_bf34275d-2242-5f3f-a9cc-14174235acc1.html?utm_medium=social&utm_source=email&utm_campaign=user-share (last accessed March 1, 2018).
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Defendants’ Statements and Omissions Violate California, Minnesota and Florida Laws
78. California, Minnesota and Florida laws are designed to ensure that a
company’s claims about its products are truthful and accurate. Defendants violated these
state laws by negligently, recklessly, and/or intentionally incorrectly claiming that the
Contaminated Dog Foods are pure, healthy, and safe for consumption and by not accurately
detailing that the products contain the toxic heavy metals and/or BPA. Defendants
misrepresented that the Contaminated Dog Foods are natural, fit for human consumption,
fit for canine consumption, and made from “Biologically Appropriate” and “Fresh
Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
“feature[] unmatched and unique inclusions of meat, naturally providing everything your
dog or cat needs to thrive;” and are “guaranteed” to “keep your dog happy, healthy, and
strong.”
79. Defendants' marketing and advertising campaign has been sufficiently
lengthy in duration, and widespread in dissemination, that it would be unrealistic to require
Plaintiffs to plead reliance upon each advertised misrepresentation.
80. Defendants have engaged in this long-term advertising campaign to convince
potential customers that the Contaminated Dog Foods were pure, healthy, safe for
consumption, and did not contain harmful ingredients such as arsenic and lead. Likewise,
Defendants have engaged in this long-term advertising campaign to convince potential
customers that the Contaminated Dog Foods are natural, pure, and safe despite the presence
of BPA in the food.
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Plaintiffs’ Reliance Was Reasonable and Foreseen By Defendants
81. Plaintiffs reasonably relied on Defendants’ own claims, warranties,
representations, advertisements, and other marketing concerning the particular qualities
and benefits of the Contaminated Dog Foods.
82. Plaintiffs relied upon Defendants’ false and/or misleading representations
alleged herein, including the websites and the Contaminated Dog Foods’ labels and
packaging in making their purchasing decisions.
83. Any reasonable consumer would consider the labeling of a product (as well
as the other false and/or misleading representations alleged herein) when deciding whether
to purchase. Here, Plaintiffs relied on the specific statements and misrepresentations by
Defendants that the Contaminated Dog Foods were natural, fit for human consumption, fit
for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional
Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables; “feature[ing]
unmatched and unique inclusions of meat, naturally providing everything your dog or cat
needs to thrive;” and were “guaranteed” to “keep your dog happy, healthy, and strong”
with no disclosure of the inclusion of heavy metals, including arsenic or lead, and BPA.
Defendants’ Knowledge and Notice of Their Breaches of Their Express and Implied Warranties
84. Defendants had sufficient notice of their breaches of express and implied
warranties. Defendants have, and had, exclusive knowledge of the physical and chemical
makeup of the Contaminated Dog Foods.
85. Additionally, Defendants received notice of the contaminants in their dog
and cat food, including the Contaminated Dog Foods, through the Clean Label Project,
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which found higher levels of heavy metals in its dog and cat food products. In fact,
Defendants actually responded to the Clean Label Project’s findings. Defendants spoke
with the Clean Label Project by phone regarding its findings and methodology, which
showed that Orijen pet foods have high levels of heavy metals compared to other pet foods.
The Clean Label Project informed Defendants that it compared Orijen pet foods to
competitors’ products and gave them a one-star rating, meaning they contained higher
levels of contaminants than other products on the market. 19 Defendants’ direct contact with
the Clean Label Project demonstrates its knowledge about the Contaminated Dog Foods.
86. Defendants also issued a white paper in defense of the Clean Label Project
findings that acknowledges that their products contain heavy metals.20 In that same White
Paper, Defendants state “[w]e systematically test ORIJEN and ACANA products for heavy
metals (arsenic, cadmium, lead and mercury) at two third-party laboratories.”
87. The White Paper discusses the sources of arsenic, cadmium, lead and
mercury, and what Defendants contend to be acceptable levels of those heavy metals in pet
food.
88. Defendants did not widely disseminate this White Paper or direct consumers
to this White Paper. Moreover, Defendants did not change their packaging or labeling to
include a disclaimer that the Contaminated Dog Foods contain any levels of the heavy
metals or include a copy of the White Paper findings on the packaging or labeling. Finally,
19 Clean Label Project, “Orijen: Why Aren’t You Listening to Your Customers?” http://www.cleanlabelproject.org/orijen-customers/ (last visited Feb. 6, 2018). 20http://www.championpetfoods.com/wp-content/themes/champion-petfoods/res/research/Champion-Petfoods-White-Paper-Heavy-Metals.pdf
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there is no disclosure as to whether the Contaminated Dog Foods tested were manufactured
in the United States or Canada.
89. Defendants likewise had knowledge of the potential risk and inclusion of
BPA in their Contaminated Dog Foods. Defendants have publicly stated they ask their
suppliers if the packaging contains BPA while at the same time admitting that they in fact
do not perform any tests to confirm that the Contaminated Dog Foods are BPA free.
Moreover, Defendants no longer boast about “exceeding” regulations when asked if the
Contaminated Pet Foods are BPA free.
Privity Exists with Plaintiffs and the Proposed Classes
90. Defendants knew that consumers such as Plaintiffs and the proposed Classes
would be the end purchasers of the Contaminated Dog Foods and the target of their
advertising and statements.
91. Defendants intended that the warranties, advertising, labeling, statements,
and representations would be considered by the end purchasers of the Contaminated Dog
Foods, including Plaintiffs and the proposed Classes.
92. Defendants directly marketed to Plaintiffs and the proposed Classes through
statements on their website, labeling, advertising, and packaging.
93. Plaintiffs and the proposed Class are the intended beneficiaries of the
expressed and implied warranties.
CLASS ACTION ALLEGATIONS
94. Plaintiffs bring this action individually and on behalf of the following Classes
pursuant to Rules 23(a) and 23(b)(2) and (3) of the Federal Rules of Civil Procedure:
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All persons who are citizens of the State of California who, from July 1, 2013, to the present, purchased the Contaminated Dog Foods for household or business use, and not for resale (the “California Class”);
All persons who are citizens of the State of Minnesota who, from July 1, 2013, to the present, purchased the Contaminated Dog Foods for household or business use, and not for resale (the “Minnesota Class”);
All persons who are citizens of the State of Florida who, from July 1, 2013, to the present, purchased the Contaminated Dog Foods for household or business use, and not for resale (the “Florida Class”);
All persons who are citizens of the State of New York who, from July 1, 2013, to the present, purchased the Contaminated Dog Foods for household or business use, and not for resale (the “New York Class”);
All persons who are citizens of the State of Colorado who, from July 1, 2013, to the present, purchased the Contaminated Dog Foods for household or business use, and not for resale (the “Colorado Class”);
All persons who are citizens of the State of Illinois who, from July 1, 2013, to the present, purchased the Contaminated Dog Foods for household or business use, and not for resale (the “Illinois Class”);
All persons who are citizens of the State of Massachusetts who, from July 1, 2013, to the present, purchased the Contaminated Dog Foods for household or business use, and not for resale (the “Massachusetts Class”);
All persons who are citizens of the State of Iowa who, from July 1, 2013, to the present, purchased the Contaminated Dog Foods for household or business use, and not for resale (the “Iowa Class”);
All persons who are citizens of the State of Washington who, from July 1, 2013, to the present, purchased the Contaminated Dog Foods for household or business use, and not for resale (the “Washington Class”);
All persons who are citizens of the State of Alaska who, from July 1, 2013, to the present, purchased the Contaminated Dog Foods for household or business use, and not for resale (the “Alaska Class”);
All persons who are citizens of the State of Michigan who, from July 1, 2013, to the present, purchased the Contaminated Dog Foods for household or business use, and not for resale (the “Michigan Class”); and
All persons who are citizens of the State of Wisconsin who, from July 1, 2013, to the present, purchased the Contaminated Dog Foods for household or business use, and not for resale (the “Wisconsin Class”) (collectively “Classes”).
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95. Excluded from the Classes are the Defendants, any parent companies,
conspirators, all governmental entities, and any judge, justice, or judicial officer presiding
over this matter.
96. This action is brought and may be properly maintained as a class action.
There is a well-defined community of interests in this litigation and the members of the
Classes are easily ascertainable.
97. The members in the proposed Classes are so numerous that individual joinder
of all members is impracticable, and the disposition of the claims of the members of all
Classes members in a single action will provide substantial benefits to the parties and
Court.
98. Questions of law and fact common to Plaintiffs and the Classes include, but
are not limited to, the following:
(a) whether Defendants owed a duty of care to Plaintiffs and the Classes;
(b) whether Defendants knew or should have known that the Contaminated Dog Foods contained heavy metals;
(c) whether Defendants knew or should have known that the Contaminated Dog Foods contained BPA;
(d) whether Defendants wrongfully represented and continue to represent that the Contaminated Dog Foods are natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(e) whether Defendants wrongfully represented and continue to represent that the Contaminated Dog Foods are healthy, superior quality, nutritious and safe for consumption;
(f) whether Defendants wrongfully represented and continue to represent that the Contaminated Dog Foods are natural;
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(g) whether Defendants wrongfully represented and continue to represent that the Contaminated Dog Foods are pure and safe;
(h) whether Defendants wrongfully represented and continue to represent that the manufacturing of the Contaminated Dog Foods is subjected to rigorous standards, including temperature;
(i) whether Defendants wrongfully failed to state that the Contaminated Dog Foods contained heavy metals and/or BPA;
(j) whether Defendants’ representations in advertising, warranties, packaging, and/or labeling are false, deceptive, and misleading;
(k) whether those representations are likely to deceive a reasonable consumer;
(l) whether a reasonable consumer would consider the presence of heavy metals and/or BPA as a material fact in purchasing pet food;
(m) whether Defendants had knowledge that those representations were false, deceptive, and misleading;
(n) whether Defendants continue to disseminate those representations despite knowledge that the representations are false, deceptive, and misleading;
(o) whether a representation that a product is healthy, superior quality, nutritious and safe for consumption and does not contain arsenic and/or lead is material to a reasonable consumer;
(p) whether Defendants’ representations and descriptions on the labeling of the Contaminated Dog Foods are likely to mislead, deceive, confuse, or confound consumers acting reasonably;
(q) whether Defendants violated various state laws, including California, Minnesota, Florida, New York, Colorado, Illinois, Massachusetts, Iowa, Washington, Alaska, Michigan, and Wisconsin;
(r) whether Defendants breached their express warranties;
(s) whether Defendants breached their implied warranties;
(t) whether Defendants engaged in unfair trade practices;
(u) whether Defendants engaged in false advertising;
(v) whether Defendants made negligent and/or fraudulent misrepresentations and/or omissions;
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(w) whether Plaintiffs and the members of the Classes are entitled to actual, statutory, and punitive damages; and
(x) whether Plaintiffs and members of the Classes are entitled to declaratory and injunctive relief.
99. Defendants engaged in a common course of conduct giving rise to the legal
rights sought to be enforced by Plaintiffs individually and on behalf of the other members
of the Classes. Identical statutory violations and business practices and harms are involved.
Individual questions, if any, are not prevalent in comparison to the numerous common
questions that dominate this action.
100. Plaintiffs’ claims are typical of those of the members of the Classes in that
they are based on the same underlying facts, events, and circumstances relating to
Defendants’ conduct.
101. Plaintiffs will fairly and adequately represent and protect the interests of the
Classes, have no interests incompatible with the interests of the Classes, and have retained
counsel competent and experienced in class action, consumer protection, and false
advertising litigation.
102. Class treatment is superior to other options for resolution of the controversy
because the relief sought for each member of the Classes is small such that, absent
representative litigation, it would be infeasible for members of the Classes to redress the
wrongs done to them.
103. Questions of law and fact common to the Classes predominate over any
questions affecting only individual members of the Classes.
104. As a result of the foregoing, class treatment is appropriate.
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CLAIMS FOR RELIEF
COUNT I Violations of California's Consumer Legal Remedies Act, California Civil Code
§§1750, Et Seq., Against Defendants on Behalf of the California Class
105. Plaintiff Reitman incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
106. Plaintiff Reitman and each California Class member is a "consumer," as that
term is defined in California Civil Code section 1761(d).
107. The Contaminated Dog Foods are "goods," as that term is defined in
California Civil Code section 1761(a).
108. Defendants are a "person" as that term is defined in California Civil Code
section 1761(c).
109. Plaintiff Reitman and each proposed California Class member's purchase of
Defendants' products constituted a "transaction," as that term is defined in California Civil
Code section 1761(e).
110. Defendants' conduct alleged herein violates the following provisions of
California's Consumer Legal Remedies Act (the "CLRA"):
(a) California Civil Code section 1770(a)(5), by negligently, recklessly, and/or intentionally representing that the Contaminated Dog Foods are nutritious, superior quality, pure, natural, healthy and safe for consumption and by failing to make any mention of the heavy metals and or BPA in the Contaminated Dog Foods;
(b) California Civil Code section 1770(a)(7), by negligently, recklessly,
and/or intentionally representing that the Contaminated Dog Foods were of a particular standard, quality, or grade, when they were of another;
(c) California Civil Code section 1770(a)(9), by negligently, recklessly,
and/or intentionally advertising the Contaminated Dog Foods with intent not to sell them as advertised; and
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(d) California Civil Code section 1770(a)(16), by representing that the Contaminated Dog Foods have been supplied in accordance with previous representations when they have not.
111. On March 7, 2018, counsel for Plaintiff Reitman and the California Class
sent Defendants written notice (via U.S. certified mail, return receipt requested) that they
are in violation of the CLRA by selling the Contaminated Pet Foods containing substances
including arsenic, lead, mercury, cadmium, and BPA while claiming, among other things,
that the Contaminated Pet Foods are “biologically appropriate.”
112. Defendants failed to provide appropriate relief for their violations of CLRA
sections 1770(a)(5), (7), (9), and (16) within thirty days of receipt of Plaintiffs’ March 7,
2018, notification. In accordance with CLRA section 1782(b), Plaintiffs and the California
Class are entitled, under CLRA section 1780, to recover and obtain the following relief for
Defendants’ violations of CLRA sections 1770(a)(5), (7), (9), and (16):
(a) Actual damages under CLRA section 1780(a)(1);
(b) Restitution of property under CLRA section 1780(a)(3);
(c) Punitive damages under CLRA section 1780(a)(4) and because Defendants have engaged in fraud, malice, or oppression; and
(d) Any other relief the Court deems proper under CLRA section 1780(a)(5).
113. As a direct and proximate result of these violations, Plaintiff Reitman and the
California Class have been harmed, and that harm will continue unless Defendants are
enjoined from using the misleading marketing described herein in any manner in
connection with the advertising and sale of the Contaminated Dog Foods.
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114. Plaintiff Reitman seek an award of attorneys' fees pursuant to, inter alia,
California Civil Code section 1780(e) and California Code of Civil Procedure section
1021.5.
COUNT II Violations of California False Advertising Law, California Business
& Professions Code §§17500, Et Seq., Against Defendants on Behalf of the California Class
115. Plaintiff Reitman incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
116. California's False Advertising Law prohibits any statement in connection
with the sale of goods "which is untrue or misleading." Cal. Bus. & Prof. Code §17500.
117. As set forth herein, Defendants' claims that the Contaminated Dog Foods are
nutritious, superior quality, pure, natural, healthy and safe for consumption are literally
false and likely to deceive the public.
118. Defendants' claims that the Contaminated Dog Foods are nutritious, of
superior quality, pure, natural, healthy and safe for consumption are untrue or misleading,
as is failing to make any mention of heavy metals and/or BPA in the Contaminated Dog
Foods.
119. Defendants knew, or reasonably should have known, that all these claims
were untrue or misleading.
120. Defendants' conduct is ongoing and continuing, such that prospective
injunctive relief is necessary, especially given Plaintiffs' desire to purchase these products
in the future if they can be assured that, so long as the Contaminated Dog Foods are, as
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advertised, nutritious, superior quality, pure, natural, healthy and safe for consumption and
do not contain the heavy metals and/or BPA
121. Plaintiffs and members of the California Class are entitled to injunctive and
equitable relief, and restitution in the amount they spent on the Contaminated Dog Foods.
COUNT III Violations of the Unfair Competition Law, California Business
& Professions Code §§17200, Et Seq., Against Defendants on Behalf of the California Class
122. Plaintiff Reitman incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
123. The Unfair Competition Law prohibits any "unlawful, unfair or fraudulent
business act or practice." Cal. Bus. & Prof. Code §17200.
Fraudulent
124. Defendants' statements that the Contaminated Dog Foods are nutritious,
superior quality, pure, natural, healthy and safe for consumption are literally false and
likely to deceive the public, as is Defendants' failing to make any mention of heavy metals
and/or BPA in the Contaminated Dog Foods.
Unlawful
125. As alleged herein, Defendants have advertised the Contaminated Dog Foods
with false or misleading claims, such that Defendants' actions as alleged herein violate at
least the following laws:
• The CLRA, California Business & Professions Code sections 1750, et seq.;
and
• The False Advertising Law, California Business & Professions Code
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sections 17500, et seq.
Unfair
126. Defendants' conduct with respect to the labeling, packaging, advertising,
marketing, and sale of the Contaminated Dog Foods is unfair because Defendants' conduct
was immoral, unethical, unscrupulous, or substantially injurious to consumers and the
utility of its conduct, if any, does not outweigh the gravity of the harm to its victims.
127. Defendants' conduct with respect to the labeling, packaging, advertising,
marketing, and sale of the Contaminated Dog Foods is also unfair because it violates public
policy as declared by specific constitutional, statutory, or regulatory provisions, including,
but not limited to, the False Advertising Law and the CLRA.
128. Defendants' conduct with respect to the labeling, packaging, advertising,
marketing, and sale of the Contaminated Dog Foods is also unfair because the consumer
injury is substantial, not outweighed by benefits to consumers or competition, and not one
consumers, themselves, can reasonably avoid.
129. In accordance with California Business & Professions Code section 17203,
Plaintiffs seek an order enjoining Defendants from continuing to conduct business through
fraudulent or unlawful acts and practices and to commence a corrective advertising
campaign. Defendants' conduct is ongoing and continuing, such that prospective injunctive
relief is necessary.
130. On behalf of herself and the California Class, Plaintiff also seeks an order for
the restitution of all monies from the sale the Contaminated Dog Foods, which were
unjustly acquired through acts of fraudulent, unfair, or unlawful competition.
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COUNT IV Violation of the Minnesota Commercial Feed Law Minn. Stat. § 25.31, et seq.
Against Defendants on Behalf of the Minnesota Class
131. Plaintiff Song incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
132. The Contaminated Dog Foods manufactured, distributed, marketed, and sold
by Defendants are “commercial feed” within the meaning of the Minnesota Commercial
Feed Law (MCFL).
133. The Contaminated Dog Foods are “misbranded”, within the meaning of the
MCFL, because it is, as described above, false, misleading, and deceptive with respect to
the Contaminated Dog Foods’ ingredients, composition, and suitability, they are.
134. The Contaminated Dogs Foods are “adulterated”, within the meaning of the
MCFL, because:
(a) They contain poisonous and deleterious substances rendering them injurious to the health of pets; and
(b) Their composition and quality fall below and differ from that which their labels purport and represent to process.
135. Defendants’ manufacture and distribution of these adulterated and
misbranded Contaminated Dog Foods are prohibited by and violations of the MCFL.
136. As a result of Defendants’ conduct, Plaintiff Song and the Minnesota Class
have suffered actual damages in that they have purchased Contaminated Dog Foods that is
worth less than the price they paid and that they would not have purchased at all had they
known of the presence of heavy metals and/or BPA. There is an association between
Defendants’ acts and omissions as alleged herein and the damages suffered by Plaintiffs
and the Minnesota Class.
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137. As a direct and proximate result of Defendants’ violations of the MCFL,
Plaintiff Song and the Minnesota Class have been injured, and that harm will continue
unless Defendants are enjoined from manufacturing, distributing, marketing and selling the
misbranded and adulterated Contaminated Dog Foods described herein.
138. Pursuant to Minn. Stat. § 8.31, subd. 3a, Plaintiffs and the Minnesota Class
seek actual damages, equitable relief, attorneys’ fees, costs, and any other just and proper
relief available thereunder for Defendants’ violations of the MCFL.
COUNT V Violation of Minnesota Unlawful Trade Practices Act Minn. Stat. § 325D.13, et seq.
Against Defendants on behalf of the Minnesota Class
139. Plaintiff Song incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
140. Defendants are “persons” within the meaning of the Minnesota Unlawful
Trade Practices Act (MUTPA).
141. Defendants violated the MUTPA by knowingly misrepresenting the true
quality and ingredients of the Contaminated Dog Foods by falsely claiming, on both the
labels and their websites, that their Contaminated Dog Foods are:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(d) “guaranteed to keep your dog healthy, happy and strong.”
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142. Defendants knew or should have known that the Contaminated Dog Foods
did not have the quality and ingredients described above because they contain levels of
various heavy metals and/or BPA.
143. Defendants’ misrepresentations, concealment, omissions, and other
deceptive conduct were likely to deceive or cause misunderstanding and did in fact deceive
Plaintiff Song and the Minnesota Class with respect to the Contaminated Dog Foods’
quality, ingredients, and suitability for consumption by dogs.
144. Defendants intended that Plaintiff Song and the Minnesota Class would rely
on Defendants’ misrepresentations, concealment, warranties, deceptions, and/or omissions
regarding the Contaminated Dog Foods’ quality, ingredients, and suitability for
consumption by dogs.
145. Defendants’ conduct and omissions described herein occurred repeatedly in
Defendants’ trade or business and were capable of deceiving a substantial portion of the
consuming public.
146. The facts concealed or not disclosed by Defendants were material facts in
that Plaintiff and any reasonable consumer would have considered them in deciding
whether to purchase the Contaminated Dog Foods. Had Plaintiff Song known the
Contaminated Dog Foods did not have the quality and ingredients advertised by
Defendants, she would not have purchased the Contaminated Dog Foods.
147. Defendants intended that Plaintiff Song would rely on the deception by
purchasing the Contaminated Dog Foods, unaware of the undisclosed material facts. This
conduct constitutes consumer fraud.
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148. Defendants’ unlawful conduct is continuing, with no indication that
Defendants intend to cease this fraudulent course of conduct.
149. As a result of Defendants’ conduct, Plaintiff Song and the Minnesota Class
have suffered actual damages in that they have purchased Contaminated Dog Foods that is
worth less than the price they paid and that they would not have purchased at all had they
known of the presence of heavy metals and/or BPA. There is an association between
Defendants’ acts and omissions as alleged herein and the damages suffered by Plaintiff and
the Minnesota Class.
150. As a direct and proximate result of Defendants’ violations of the MUTPA,
Plaintiff Song and the Minnesota Class have been injured, and that harm will continue
unless Defendants are enjoined from misrepresenting the quality and ingredients of their
Contaminated Dog Foods described herein.
151. Pursuant to Minn. Stat. § 8.31, subd. 3a, and § 325D.15, Plaintiff Song and
the Minnesota Class seek actual damages, injunctive and declaratory relief, attorneys’ fees,
costs, and any other just and proper relief available thereunder for Defendants’ violations
of the MUTPA.
COUNT VI Violation of Minnesota Uniform Deceptive Trade Practices Act
Minn. Stat. § 325D.43, et seq. Against Defendants on behalf of the Minnesota Class
152. Plaintiff Song incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
153. Defendants are “persons” within the meaning of the Minnesota Uniform
Deceptive Trade Practices Act (MUDTPA).
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154. Defendants willingly engaged in deceptive trade practices, in violation of the
MUDTPA, by:
(a) representing that their Contaminated Dog Foods have characteristics, ingredients, uses, and benefits that they do not have;
(b) representing that their Contaminated Dog Foods are of a superior standard, quality, and grade when they contain levels of various heavy metals and/or BPA; and
(c) representing that their Contaminated Dog Foods are of a natural when they contain BPA.
155. Defendants knew or should have known that the Contaminated Dog Foods
did not have the ingredients, uses, and benefits described herein because they contain levels
of various heavy metals and/or levels of BPA.
156. Defendants knew or should have known that the Contaminated Dog Foods
were not of a superior standard, quality, or grade because they contain levels of various
heavy metals and/or BPA that a reasonable consumer would consider material.
157. Defendants knew or should have known that the Contaminated Dog Foods
were not natural because they contain material levels of BPA.
158. Defendants’ misrepresentations, concealment, omissions, and other
deceptive conduct were likely to deceive or cause misunderstanding and did in fact deceive
Plaintiff Song and the Minnesota Class with respect to the Contaminated Dog Foods’
ingredients, uses, benefits, standards, quality, grade, and suitability for consumption by
dogs.
159. Defendants intended that Plaintiff and the Minnesota Class would rely on
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regarding the Contaminated Dog Foods’ ingredients, uses, benefits, standards, quality,
grade, and suitability for consumption by dogs.
160. Defendants’ conduct and omissions described herein occurred repeatedly in
Defendants’ trade or business and were capable of deceiving a substantial portion of the
consuming public.
161. The facts concealed or not disclosed by Defendants were material facts in
that Plaintiffs and any reasonable consumer would have considered them in deciding
whether to purchase the Contaminated Dog Foods. Had Plaintiff Song known the
Contaminated Dog Foods did not have the quality and ingredients advertised by
Defendants, she would not have purchased the Contaminated Dog Foods.
162. Defendants intended that Plaintiff Song and the Minnesota Class would rely
on the deception by purchasing the Contaminated Dog Foods, unaware of the undisclosed
material facts. This conduct constitutes consumer fraud.
163. Defendants’ unlawful conduct is continuing, with no indication that
Defendants intend to cease this fraudulent course of conduct.
164. As a result of Defendants’ conduct, Plaintiff Song and the Minnesota Class
have suffered actual damages in that they have purchased Contaminated Dog Foods that is
worth less than the price they paid and that they would not have purchased at all had they
known of levels of heavy metals and BPA. There is an association between Defendants’
acts and omissions as alleged herein and the damages suffered by Plaintiffs.
165. As a direct and proximate result of Defendants’ violations of the MUDTPA,
Plaintiff and the Minnesota Class have been injured, and that harm is likely to continue
unless Defendants are enjoined from misrepresenting the ingredients, uses, benefits,
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standards, quality, grade, and suitability for consumption by dogs of their Contaminated
Dog Foods described herein.
166. Pursuant to Minn. Stat. § 8.31, subd. 3a, and § 325D.45, Plaintiffs and the
Class seek actual damages, injunctive and declaratory relief, attorneys’ fees, costs, and any
other just and proper relief available thereunder for Defendants’ violations of the
MUDTPA.
COUNT VII Violation of Minnesota False Statement in Advertising Act
Minn. Stat. § 325F.67, et seq. Against Defendants on Behalf of the Minnesota Class
167. Plaintiff Song incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
168. Plaintiff Song purchased “goods”, specifically the Contaminated Dog Foods
discussed herein, is a “person” within the meaning of the False Statement in Advertising
Act (FSAA).
169. Plaintiff Song purchased the Contaminated Dog Foods through advertising
that contained numerous material assertions representations, and statements of fact made,
published, disseminated, circulated, and placed before the public by Defendants that were
untrue, deceptive, and misleading.
170. By engaging in the conduct herein, Defendants violated and continue to
violate Minn. Stat. § 325F.67.
171. Defendants' misrepresentations, knowing omissions, and use of other sharp
business practices include, by way of example, representations that the Contaminated Dog
Foods are:
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(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(d) “guaranteed to keep your dog healthy, happy and strong.”
172. Defendants, including its agents and distributors, also made untrue,
deceptive, and misleading assertions and representations about the Contaminated Dog
Foods by making and repeating the various statements about the alleged quality,
characteristics, and capabilities of the Contaminated Dog Foods referenced herein.
173. As a result of Defendants’ conduct, Plaintiff and the Minnesota Class have
suffered actual damages in that they have purchased Contaminated Dog Foods that is worth
less than the price they paid and that they would not have purchased at all had they known
of the presence of heavy metals and/or BPA. There is an association between Defendants’
acts and omissions as alleged herein and the damages suffered by Plaintiffs.
174. As a direct and proximate result of Defendants’ violations of the FSAA,
Plaintiff Song and the Minnesota Class have been injured, and that harm is likely to
continue unless Defendants are enjoined from misrepresenting the ingredients, uses,
benefits, standards, quality, grade, and suitability for consumption by dogs of their
Contaminated Dog Foods described herein.
175. Pursuant to Minn. Stat. § 8.31, subd. 3a, and § 325F.67, Plaintiff Song and
the Minnesota Class seek actual damages, injunctive and declaratory relief, attorneys’ fees,
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costs, and any other just and proper relief available thereunder for Defendants’ violations
of the FSAA.
COUNT VIII Violation of Minnesota Prevention of Consumer Fraud
Act Minn. Stat. § 325F.68, et seq. Against Defendants on Behalf of the Minnesota Class
176. Plaintiff Song incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
177. Plaintiff Song is a resident of the State of Minnesota.
178. Defendants are “persons” within the meaning of the Minnesota Prevention
of Consumer Fraud Act (MPCFA).
179. Defendants’ advertisements and representations with respect to the
Contaminated Dog Foods were made in connection with the sale of the Contaminated Dog
promises, misrepresentations, misleading statements, and deceptive practices in connection
with the sale of their Contaminated Dog Foods. Specifically, Defendants falsely
represented that its Contaminated Dog Foods are:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(d) “guaranteed to keep your dog healthy, happy and strong.”
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181. Defendants intended for Plaintiff Song and the Minnesota Class to rely on
and accept as true these advertisements and representations in deciding whether to purchase
the Contaminated Dog Foods.
182. Defendants’ unfair or deceptive acts or practices were likely to deceive
reasonable consumers about the Contaminated Dog Foods’ quality, ingredients, fitness for
consumption and, by extension, the true value of the Contaminated Dog Foods. Plaintiff
Song and the Minnesota Class relied on, and were in fact deceived by, Defendants’
advertisements and representations with respect to the Contaminated Dog Foods’ quality,
ingredients, and fitness for consumption in deciding to purchase them over competitors’
dog foods.
183. As a result of Defendants’ conduct, Plaintiff Song and the Minnesota Class
have suffered actual damages in that they have purchased Contaminated Dog Foods that is
worth less than the price they paid and that they would not have purchased at all had they
known of the levels of heavy metals and/or BPA. There is an association between
Defendants’ acts and omissions as alleged herein and the damages suffered by Plaintiff
Song.
184. As a direct and proximate result of Defendants’ violations of the MPCFA,
Plaintiff Song and the Minnesota Class have been injured, and that harm is likely to
continue unless Defendants are enjoined from misrepresenting the quality, ingredients, and
fitness for consumption of their Contaminated Dog Foods described herein.
185. Pursuant to Minn. Stat. § 8.31, subd. 3a, and § 325F.67, Plaintiff Song and
the Minnesota Class seek actual damages, injunctive and declaratory relief, attorneys’ fees,
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costs, and any other just and proper relief available thereunder for Defendants’ violations
of the MPCFA.
COUNT IX Violation of New York General Business Law § 349
186. Plaintiff Colangelo incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
187. Plaintiff Colangelo and the New York class members are “persons” within
the meaning of N.Y. Gen. Bus. § 349(h).
188. Each Defendant is a “person, firm, corporation or association or agent or
employee thereof” within the meaning of N.Y. Gen. Bus. § 349(b).
189. Defendants are exclusive distributor of Contaminated Dog Foods, thereby
creating a marketing partnership.
190. Under the New York Deceptive Acts & Practices Statute, “[d]eceptive acts
and practices in the conduct of any business, trade or commerce or in the furnishing of any
service” are unlawful. N.Y. Gen. Bus. § 349.
191. Defendants engaged in deceptive acts and practices in the conduct of
business, trade, and commerce by manufacturing, distributing, marketing, and selling
Contaminated Dog Foods to class members. Defendants’ claims that the Contaminated
Dog Foods are nutritious, of superior quality, pure, natural, healthy and safe for
consumption are untrue or misleading, as it fails to make any mention of heavy metals
and/or BPA in the Contaminated Dog Foods.
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192. Defendants had exclusive knowledge of the fact that Contaminated Dog
Foods are healthy and safe for consumption. Defendants failed to disclose these facts
despite having a duty to disclose this material information to Plaintiffs and class members.
193. Plaintiff Colangelo and the New York class members were unaware, and did
not have reasonable means of discovering, the material facts that Defendants both
misrepresented and failed to disclose.
194. Defendants’ failure to disclose material facts concerning performance and
the fact that Contaminated Dog Foods is unsafe and does not work as represented was
misleading in a material respect because a reasonable consumer acting reasonably under
the circumstances would have been misled by Defendants' conduct.
195. Defendants’ failure to disclose these material facts and their deceptive
conduct induced Plaintiff Colangelo and the proposed New York class members to
purchase Contaminated Dog Foods and pay a premium price for it.
196. These acts and practices were consumer-oriented because they had a broad
impact on consumers at large, affecting all purchasers of Contaminated Dog Foods,
including purchasers in the State of New York.
197. As a direct and proximate result of Defendants’ unlawful methods, acts, and
practices, Plaintiff Colangelo and the proposed New York class members were injured
because, among other reasons, they purchased Contaminated Dog Foods and did not
receive the full value of their purchase.
198. Defendants’ acts and practices were willful and knowing.
199. Plaintiff Colangelo and the New York class members are entitled to
injunctive relief, recovery of actual damages or fifty dollars per violation (whichever is
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greater), treble damages up to one thousand dollars, and their reasonable costs and
attorneys' fees. See N.Y. Gen. Bus. § 349(h).
COUNT X Violation of New York General Business Law § 350
200. Plaintiff Colangelo incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
201. Defendants’ labeling and advertisements contain untrue and materially
misleading statements concerning Contaminated Dog Foods. Specifically, Defendants’
claims that the Contaminated Dog Foods are nutritious, of superior quality, pure, natural,
healthy and safe for consumption are untrue or misleading, as it fails to make any mention
of heavy metals and/or BPA in the Contaminated Dog Foods.
202. Defendants made these material, untrue, and misleading statements and
misrepresentations in their advertising and Contaminated Dog Foods's packaging and
labeling. Defendants made these untrue and misleading statements and representations
willfully, wantonly, and with reckless disregard for the truth.
203. Defendants’ material misrepresentations were substantially uniform in
content, presentation, and impact upon consumers at large, including purchasers of
Contaminated Dog Foods in the State of New York. Moreover, all consumers purchasing
Contaminated Dog Foods were and continue to be exposed to Defendants’ material
misrepresentations.
204. Plaintiff Colangelo and the New York class members were induced to
purchased Contaminated Dog Foods by Defendants’ advertising, packaging, and labeling.
They have been injured as they relied upon the labeling, packaging, and advertising and
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paid a premium for the Contaminated Dog Foods, which does not have the characteristics
set forth in Defendants’ advertising. Accordingly, Plaintiff Colangelo and the New York
class members received less than what they bargained and paid for.
205. As a result of Defendants’ recurring and unlawful deceptive acts and
practices, Plaintiff Colangelo and the New York class members are entitled to monetary,
compensatory, treble and punitive damages; injunctive relief, restitution, and disgorgement
of all moneys obtained by means of Defendants’ unlawful conduct; and interest, attorneys’
fees, and costs.
COUNT XI Breach of Express Warranty Against Defendants on Behalf of the Classes
206. Plaintiffs incorporate by reference and reallege each and every allegation
contained above, as though fully set forth herein.
207. Defendants marketed and sold their Contaminated Dog Foods into the stream
of commerce with the intent that the Contaminated Dog Foods would be purchased by
Plaintiffs and the Classes.
208. c Defendants expressly warranted, advertised, and represented to Plaintiffs
and the Class that their Contaminated Dog Foods are:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) nutritious, superior quality, pure, natural, healthy and safe for consumption;
(d) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
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(e) “guaranteed to keep your dog healthy, happy and strong.”
209. Defendants made these express warranties regarding the Contaminated Dog
Foods’ quality, ingredients, and fitness for consumption in writing through their website,
advertisements, and marketing materials and on the Contaminated Dog Foods’ packaging
and labels. These express warranties became part of the basis of the bargain Plaintiffs and
the Classes entered into upon purchasing the Contaminated Dog Foods.
210. Defendants’ advertisements, warranties, and representations were made in
connection with the sale of the Contaminated Dog Foods to Plaintiffs and the Classes.
Plaintiffs and the Classes relied on Defendants’ advertisements, warranties, and
representations regarding the Contaminated Dog Foods in decided whether to purchase
Defendants’ products.
211. Defendants’ Contaminated Dog Foods do not conform to Defendants’
advertisements, warranties and representations in that they:
(a) are not natural or suitable for consumption by humans or canines;
(b) contain levels of various heavy metals; and
(c) contain levels of BPA.
212. Defendants were on notice of this breach as they were aware of the included
heavy metals and/or BPA in the Contaminated Dog Foods and based on the public
investigation by the Clean Label Product that showed their dog food products as unhealthy.
213. Privity exists because Defendants expressly warranted to Plaintiffs and the
Classes that the Contaminated Dog Foods were natural, suitable for consumption, and
contained only meat, poultry, fish, and/or vegetables, and guaranteed to keep dogs healthy,
happy, and strong.
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214. As a direct and proximate result of Defendants’ conduct, Plaintiffs and the
Classes have suffered actual damages in that they have purchased Contaminated Dog
Foods that is worth less than the price they paid and that they would not have purchased at
all had they known of the presence of heavy metals, and/or BPA.
215. Plaintiffs and the Classes seek actual damages, injunctive and declaratory
relief, attorneys’ fees, costs, and any other just and proper relief available thereunder for
Defendants’ failure to deliver goods conforming to their express warranties and resulting
breach.
COUNT XII Violation Of The Florida Deceptive And Unfair Trade Practices Fl. Stat. 501.201-
501.213, Against Defendants On Behalf Of The Florida Class
216. Plaintiff Clapp incorporates by reference each preceding and succeeding
paragraph as though fully set forth at length herein.
217. This is an action for relief under Section 501.201, et seq., Florida Statutes
(The Florida Deceptive and Unfair Trade Practices Act).
218. The purpose of the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”) is “to protect the consuming public and legitimate business enterprises from
those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair
acts or practices in the conduct of any trade or commerce.” FLA. STAT. § 501.202 (2).
219. Section 501.203(7), Florida Statutes defines “Consumer” as “an individual;
child, by and through its parent or legal guardian; firm; association; joint venture;
partnership; estate; trust; business trust; syndicate; fiduciary; corporation; or any other
group or combination.” Plaintiff Clapp and the Florida Class are “Consumers” within the
meaning of § 501.203(7), Florida Statutes.
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220. Section 501.203(8), Florida Statutes defines “Trade or Commerce” as “[T]he
advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or
otherwise, of any good or service, or any property, whether tangible or intangible, or any
other article, commodity, or thing of value, wherever situated.” “Trade or Commerce”
includes “the conduct of any trade or commerce, however denominated, including any
nonprofit or not-for-profit person or activity.” The advertising, soliciting, providing,
offering, or distribution of the Contaminated Dog Foods to Plaintiffs and the Florida Class
is “Trade or Commerce” within the meaning of section 501.203(8), Florida Statutes.
221. Section 501.204(1) provides that “unfair methods of competition,
unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of
any trade or commerce are hereby declared unlawful.”
222. Defendants have engaged in unfair competition and unfair, unlawful or
fraudulent business practices by the practices described above, and by knowingly,
intentionally and/or negligently concealing from Plaintiff Clapp and the Florida Class the
fact that the Contaminate Dog Foods contained heavy metals and/or BPA, which was not
readily discoverable. Defendants should have disclosed this information because it was in
a superior position to know the true facts related true make-up and ingredients of the
Contaminated Dog Foods, and Plaintiff Clapp and the Florida Class could not reasonably
be expected to learn or discover the true facts related to nutritional make-up, ingredients
and/or quality of the Contaminated Dog Foods.
223. The unconscionable, illegal, unfair and deceptive acts and practices of
Defendants violate the provisions of Florida’s Deceptive and Unfair Trade Practices Act.
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224. As a direct and proximate result of Defendant’s acts and omissions, Plaintiff
Clapp and the Florida Class have suffered or will suffer damages for which they are entitled
to relief pursuant to section 501.211(2), Florida Statutes, and which include, without
limitation, a full refund for the Contaminated Dog Foods they have purchased, all of which
constitute cognizable damages under the Florida Deceptive and Unfair Trade Practices Act
501.201, et seq.
225. Plaintiff Clapp and Florida are entitled to recover their reasonable attorneys’
fees pursuant to section 501.2105, Florida Statutes upon prevailing in this matter.
COUNT XIII Breach of Implied Warranty of Merchantability Against
Defendants on Behalf of the Classes
226. Plaintiffs incorporate by reference and reallege each and every allegation
contained above, as though fully set forth herein.
227. Defendants are merchants engaging in the sale of goods to Plaintiffs and the
Class.
228. There was a sale of goods from Defendants to Plaintiffs and the members of
the Classes.
229. At all times mentioned herein, Defendants manufactured or supplied the
Contaminated Dog Foods, and prior to the time the Contaminated Dog Foods were
purchased by Plaintiffs and the Classes, Defendants impliedly warranted to them that the
Contaminated Dog Foods were of merchantable quality, fit for their ordinary use
(consumption by dogs), and conformed to the promises and affirmations of fact made on
the Contaminated Dog Foods’ containers and labels, including that the food was:
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(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) nutritious, superior quality, pure, natural, healthy and safe for consumption;
(d) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(e) “guaranteed to keep your dog healthy, happy and strong.”
230. Plaintiffs and the Classes relied on Defendants’ promises and affirmations of
fact when they purchased the Contaminated Dog Foods.
231. The Contaminated Dog Foods were not fit for their ordinary use,
consumption by dogs, and did not conform to Defendants’ affirmations of fact and
promises as they contained heavy metals and/or BPA at material levels to a reasonable
consumer.
232. The Contaminated Dog Foods that Defendants delivered to Plaintiffs and the
Class also did not conform to affirmations of fact that they were natural because they
contained the industrial chemical BPA.
233. Defendants breached the implied warranties by selling the Contaminated
Dog Foods that failed to conform to the promises or affirmations of fact made on the
container or label as each product contained heavy metals and/or BPA.
234. Defendants were on notice of this breach as they were aware of the heavy
metals and/or BPA included in the Contaminated Dog Foods and CORE Ocean, and based
on the public investigation by the Clean Label Product that showed their dog food products
as unhealthy.
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235. Privity exists because Defendants impliedly warranted to Plaintiffs and the
Classes through the warranting, packaging, advertising, marketing, and labeling that the
Contaminated Dog Foods healthy, natural, and suitable for consumption and by failing to
make any mention of heavy metals or BPA.
236. As a direct and proximate result of Defendants’ conduct, Plaintiffs and the
Class have suffered actual damages in that they have purchased Contaminated Dog Foods
that is worth less than the price they paid and that they would have not have purchased at
all had they known of the presence of heavy metals and/or BPA.
237. Plaintiffs and the Classes seek actual damages, injunctive and declaratory
relief, attorneys’ fees, costs, and any other just and proper relief available thereunder for
Defendants’ failure to deliver goods conforming to their implied warranties and resulting
breach.
COUNT XIV Fraudulent Misrepresentation Against Defendants on
Behalf of the Classes
238. Plaintiffs incorporate by reference and reallege each and every allegation
contained above, as though fully set forth herein.
239. Defendants falsely represented to Plaintiffs and the Classes that their
Contaminated Dog Foods are:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) nutritious, superior quality, pure, natural, healthy and safe for consumption;
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(d) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(e) “guaranteed to keep your dog healthy, happy and strong.”
240. Defendants intentionally and knowingly made these misrepresentations to
induce Plaintiffs and the Classes to purchase their Contaminated Dog Foods.
241. Defendants knew that their representations about the Contaminated Dog
Foods were false in that the Contaminated Dog Foods contain levels of heavy metals and/or
BPA as well as chemical ingredients. Defendants allowed their packaging, labels,
advertisements, promotional materials, and website to intentionally mislead consumers,
such as Plaintiffs and the Classes.
242. Plaintiffs and the Classes did in fact rely on these misrepresentations and
purchased the Contaminated Dog Foods to their detriment. Given the deceptive manner in
which Defendants advertised, represented and otherwise promoted the Contaminated Dog
Foods, Plaintiffs and the Classes’ reliance on Defendants’ misrepresentations was
justifiable.
243. As a direct and proximate result of Defendants’ conduct, Plaintiffs and the
Classes have suffered actual damages in that they have purchased Contaminated Dog
Foods that is worth less than the price they paid and that they would not have purchased at
all had they known of the presence of heavy metals and/or BPA.
244. Plaintiffs and the Classes seek actual damages, injunctive and declaratory
relief, attorneys’ fees, costs, and any other just and proper relief available under the laws.
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COUNT XV Fraud by Omission Against Defendants on Behalf of the
Classes
245. Plaintiffs incorporate by reference and reallege each and every allegation
contained above, as though fully set forth herein.
246. Defendants concealed from and failed to disclose to Plaintiffs and the Classes
that their Contaminated Dog Foods contained heavy metals and/or BPA.
247. Defendants further concealed from and failed to disclose to Plaintiffs and the
Classes that their Contaminated Dog Foods contained chemical ingredients.
248. Defendants were under a duty to disclose to Plaintiffs and members of the
Classes the true quality, characteristics, ingredients and suitability of the Contaminated
Dog Foods because: (1) Defendants were in a superior position to know the true state of
facts about their product; (2) Defendants were in a superior position to know the actual
ingredients, characteristics, and suitability of the Contaminated Dog Foods; and (3)
Defendants knew that Plaintiffs and the Classes could not reasonably have been expected
to learn or discover that the Contaminated Dog Foods were misrepresented in the
packaging, labels, advertising, and website prior to purchasing the Contaminated Dog
Foods.
249. The facts concealed or not disclosed by Defendants to Plaintiffs and the
Classes are material in that a reasonable consumer would have considered them to be
important in deciding whether to purchase the Contaminated Dog Foods.
250. Plaintiffs and the Classes justifiably relied on the omissions of Defendants to
their detriment. The detriment is evident from the true quality, characteristics, and
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ingredients of the Contaminated Dog Foods, which is inferior than advertised and
represented by Defendants.
251. As a direct and proximate result of Defendants’ conduct, Plaintiffs and the
Classes have suffered actual damages in that they have purchased Contaminated Dog
Foods that is worth less than the price they paid and that they would not have purchased at
all had they known of the presence of heavy metals and/or BPA.
252. Plaintiffs and the Classes seek actual damages, injunctive and declaratory
relief, attorneys’ fees, costs, and any other just and proper relief available under the laws.
COUNT XVI Negligent Misrepresentation Against Defendants on
Behalf of the Classes
253. Plaintiffs incorporate by reference and reallege each and every allegation
contained above, as though fully set forth herein.
254. Defendants had a duty to Plaintiffs and the Classes to exercise reasonable
and ordinary care in the formulation, testing, formulation, manufacture, marketing,
distribution, and sale of the Contaminated Dog Foods.
255. Defendants breached their duty to Plaintiffs and the Classes by formulating,
testing, manufacturing, advertising, marketing, distributing, and selling a product to
Plaintiffs that is does not have the ingredients, qualities, characteristics, and suitability for
consumption that Defendants’ advertised and by failing to promptly remove the
Contaminated Dog Foods from the marketplace or to take other appropriate remedial
action.
256. Defendants knew or should have known that the ingredients, qualities, and
characteristics of the Contaminated Dog Foods were not as advertised or suitable for their
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intended use, consumption by dogs, and was otherwise not as warranted and represented
by Defendants. Specifically, Defendants knew or should have known that: (1) the certain
of the Contaminated Dog Foods were not natural because they contained levels of the
chemical BPA; (2) the Contaminated Dog Foods were not nutritious, superior quality, pure,
natural, healthy and safe for consumption because they contained high levels of heavy
metals; and (3) and the Contaminated Dog Foods were otherwise not as warranted and
represented by Defendants.
257. As a direct and proximate result of Defendants’ conduct, Plaintiffs and the
Classes have suffered actual damages in that they have purchased Contaminated Dog
Foods that is worth less than the price they paid and that they would not have purchased at
all had they known they contained heavy metals and/or BPA.
258. Plaintiffs and the Classes seek actual damages, injunctive and declaratory
relief, attorneys’ fees, costs, and any other just and proper relief available.
COUNT XVII Unjust Enrichment Against Defendants on Behalf of the
Classes
259. Plaintiffs incorporate by reference and reallege each and every allegation
contained above, as though fully set forth herein.
260. Substantial benefits have been conferred on Defendants by Plaintiffs and the
Classes through the purchase of the Contaminated Dog Foods. Defendants knowingly and
willingly accepted and enjoyed these benefits.
261. Defendants either knew or should have known that the payments rendered
by Plaintiffs were given and received with the expectation that the Contaminated Dog
Foods would have the qualities, characteristics, ingredients, and suitability for
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consumption represented and warranted by Defendants. As such, it would be inequitable
for Defendants to retain the benefit of the payments under these circumstances.
262. Defendants’ acceptance and retention of these benefits under the
circumstances alleged herein make it inequitable for Defendants to retain the benefits
without payment of the value to Plaintiffs and the Classes.
263. Plaintiffs and the Classes are entitled to recover from Defendants all amounts
wrongfully collected and improperly retained by Defendants, plus interest thereon.
264. Plaintiffs and the Classes seek actual damages, injunctive and declaratory
relief, attorneys’ fees, costs, and any other just and proper relief available under the laws.
COUNT XVIII Violation of Colorado Consumer Protection Act, Col. Rev. Stat. § 6-1-101, et seq. Against Defendants on Behalf of the
Colorado Class
265. Plaintiff Jerding incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
266. Defendants are “persons” within the meaning of the Colorado Consumer
Protection Act.
267. Defendants violated the Colorado Consumer Protection Act by knowingly
misrepresenting the true quality and ingredients of the Contaminated Dog Foods by falsely
claiming, on both the labels and their websites, that their Contaminated Dog Foods are:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
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(d) “guaranteed to keep your dog healthy, happy and strong.”
268. Defendants made these deceptive statements and misrepresentations in the
course of their business as manufacturers and sellers of the Contaminated Dog Foods.
269. Defendants knew or should have known that the Contaminated Dog Foods
did not have the quality and ingredients described above because they contain levels of
various heavy metals and/or BPA.
270. Defendants’ misrepresentations, concealment, omissions, and other
deceptive conduct were likely to deceive or cause misunderstanding and did in fact deceive
Plaintiff Jerding and the Colorado Class with respect to the Contaminated Dog Foods’
quality, ingredients, and suitability for consumption by dogs.
271. Defendants intended that Plaintiff Jerding and the Colorado Class would rely
on Defendants’ misrepresentations, concealment, warranties, deceptions, and/or omissions
regarding the Contaminated Dog Foods’ quality, ingredients, and suitability for
consumption by dogs.
272. Defendants’ conduct and omissions described herein occurred repeatedly in
Defendants’ trade or business and were capable of deceiving a substantial portion of the
consuming public.
273. The facts concealed or not disclosed by Defendants were material facts in
that Plaintiff and any reasonable consumer would have considered them in deciding
whether to purchase the Contaminated Dog Foods. Had Plaintiff Jerding known the
Contaminated Dog Foods did not have the quality and ingredients advertised by
Defendants, she would not have purchased the Contaminated Dog Foods.
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274. Defendants intended that Plaintiff Jerding would rely on the deception by
purchasing the Contaminated Dog Foods, unaware of the undisclosed material facts. This
conduct constitutes consumer fraud.
275. Defendants’ unlawful conduct is continuing, with no indication that
Defendants intend to cease this fraudulent course of conduct.
276. As a result of Defendants’ conduct, Plaintiff Jerding and the Colorado Class
have suffered actual damages in that they have purchased Contaminated Dog Foods that is
worth less than the price they paid and that they would not have purchased at all had they
known of the presence of heavy metals and/or BPA. There is an association between
Defendants’ acts and omissions as alleged herein and the damages suffered by Plaintiff
Jerding and the Colorado Class.
277. As a direct and proximate result of Defendants’ violations of the Colorado
Consumer Protection Act, Plaintiff Jerding and the Colorado Class have been injured, and
that harm will continue unless Defendants are enjoined from misrepresenting the quality
and ingredients of their Contaminated Dog Foods described herein.
COUNT XIX Violation of Michigan Consumer Protection Act, Mich. Comp. Laws Ann. § 445.901, et seq. Against Defendants
on Behalf of the Michigan Class
278. Plaintiff Shaker incorporate by reference and reallege each and every
allegation contained above, as though fully set forth herein.
279. Defendants violated the Michigan Consumer Protection Act by knowingly
misrepresenting the true quality and ingredients of the Contaminated Dog Foods by falsely
claiming, on both the labels and their websites, that their Contaminated Dog Foods are:
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(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(d) “guaranteed to keep your dog healthy, happy and strong.”
280. Defendants made these deceptive statements and misrepresentations in the
conduct of trade or commerce as manufacturers and sellers of the Contaminated Dog
Foods.
281. Defendants knew or should have known that the Contaminated Dog Foods
did not have the quality and ingredients described above because they contain levels of
various heavy metals and/or BPA.
282. Defendants’ pattern of knowing misrepresentations, concealment, omissions,
and other deceptive conduct were likely to deceive or cause misunderstanding and did in
fact deceive Plaintiff Shaker and the Michigan Class with respect to the Contaminated Dog
Foods’ quality, ingredients, and suitability for consumption by dogs.
283. Defendants intended that Plaintiff Shaker and the Michigan Class would rely
on Defendants’ misrepresentations, concealment, warranties, deceptions, and/or omissions
regarding the Contaminated Dog Foods’ quality, ingredients, and suitability for
consumption by dogs.
284. Defendants’ conduct and omissions described herein occurred repeatedly in
Defendants’ trade or business and were capable of deceiving a substantial portion of the
consuming public.
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285. The facts concealed or not disclosed by Defendants were material facts in
that Plaintiff Shaker and any reasonable consumer would have considered them in deciding
whether to purchase the Contaminated Dog Foods. Had Plaintiff Shaker known the
Contaminated Dog Foods did not have the quality and ingredients advertised by
Defendants, they would not have purchased the Contaminated Dog Foods for their
personal, family, or household use.
286. Defendants intended that Plaintiff Shaker would rely on the deception by
purchasing the Contaminated Dog Foods, unaware of the undisclosed material facts. This
conduct constitutes consumer fraud.
287. Defendants’ unlawful conduct is continuing, with no indication that
Defendants intend to cease this fraudulent course of conduct.
288. As a result of Defendants’ conduct, Plaintiff Shaker and the Michigan Class
have suffered actual damages in that they have purchased Contaminated Dog Foods that is
worth less than the price they paid and that they would not have purchased at all had they
known of the presence of heavy metals and/or BPA.
289. There is an association between Defendants’ acts and omissions as alleged
herein and the damages suffered by Plaintiff Shaker and the Michigan Class.
290. As a direct and proximate result of Defendants’ violations of the Michigan
Consumer Protection Act, Plaintiff Shaker and the Michigan Class have been injured, and
that harm will continue unless Defendants are enjoined from misrepresenting the quality
and ingredients of their Contaminated Dog Foods described herein.
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COUNT XX Violation of Wisconsin Deceptive Trade Practices Act,
Wisc. Stat. Ann. § 100.18, Against Defendants on Behalf of the Wisconsin Class
291. Plaintiff Weaver incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
292. The Wisconsin Deceptive Trade Practices Act (“WDTPA”), Wis. Stat. Ann.
§ 100.18, makes it unlawful to, inter alia, make any representation or statement of fact in
connection with the sale of any merchandise that is “untrue, deceptive or misleading.”
293. Defendants violated the WDTPA by representing to consumers that the
Contaminated Dog Foods were of a particular quality while Defendants knew or should
have known that they were of another. Defendants represented to the public, including
Plaintiff Weaver and the Wisconsin Class, that the Contaminated Dog Foods were
nutritious, superior quality, pure, natural, healthy and safe for consumption while failing
to make any mention of the heavy metals and/or BPA in the Contaminated Dog Foods.
294. Defendants’ misrepresentations were made to promote the sale of the
Contaminated Dog Foods to the public, including Plaintiff Weaver and the Wisconsin
Class. Defendants’ misrepresentations to the public about the Contaminated Dog Foods
include that they are:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(d) “guaranteed to keep your dog healthy, happy and strong.
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295. As a direct and proximate result of Defendants’ violations of the WDTPA,
Plaintiff Weaver and the Wisconsin Class have suffered actual damages in that they have
purchased Contaminated Dog Foods that is worth less than the price they paid and that they
would not have purchased at all had they known of the presence of heavy metals and/or
BPA. There is an association between Defendants’ acts and omissions as alleged herein
and the damages suffered by Plaintiff Weaver and the Wisconsin Class.
296. Pursuant to the WDTPA, Plaintiff Weaver and the Wisconsin Class seek
actual damages, attorneys’ fees, costs, and any other just and proper relief available
thereunder for Defendants’ violations of the WDTPA.
COUNT XXI Violations of Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill.
Comp. Stat. 505/1 et seq Against Defendant on Behalf of the Subclass
297. Plaintiff Chernik incorporates by reference and realleges every allegation set
forth in the preceding Paragraphs, as if set forth fully herein.
298. The conduct described in this Complaint constitutes a violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1 et seq.
(hereinafter, “ICFA”).
299. Defendants engaged in a deceptive act or practice in violation of the ICFA
by knowingly misrepresenting, concealing, or failing to disclose the Contaminated Dog
Foods’ true quality, ingredients, and suitability for consumption by dogs.
300. Specifically, Defendants falsely claim, on both their labels and their
websites, that their Contaminated Dog Foods are:
a. Natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
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b. Contain “only 1 supplement – zinc”; c. “[P]rovid[e] a natural source of virtually every nutrient your dog needs to
thrive”; and d. “[G]uaranteed to keep your dog healthy, happy and strong.” 301. Defendants’ unlawful conduct is continuing.
302. Defendants intended for Plaintiff Chernik and the Illinois Class Members to
rely on and accept as true these advertisements and representations in deciding whether to
purchase the Contaminated Dog Foods, and at what price.
303. Defendants’ misrepresentations, concealment, omissions, and other
deceptive conduct were likely to deceive consumers with respect to the Contaminated Dog
Foods’ quality, ingredients, and suitability for consumption by dogs.
304. Defendants’ misrepresentations, concealment, omissions, and other
deceptive conduct were likely to cause consumers to purchase and/or overpay for the
Contaminated Dog Foods.
305. Defendants’ misrepresentations, concealment, omissions, and other
deceptive acts occurred before Plaintiff Chernik and the Illinois Class decided to purchase
the Contaminated Dog Foods.
306. Defendants’ misrepresentations, concealment, omissions, and other
deceptive conduct did in fact deceive Plaintiff Chernik and the Illinois Class with respect
to the Contaminated Dog Foods’ quality, ingredients, and suitability for consumption by
dogs.
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307. Defendants’ misrepresentations, concealment, omissions, and other
deceptive conduct did in fact deceive and cause Plaintiff Chernik and the Illinois Class
members to purchase the Contaminated Dog Foods.
308. Defendants’ misrepresentations, concealment, omissions, and other
deceptive conduct did in fact deceive and cause Plaintiff and the Illinois Class members to
purchase and/or overpay for the Contaminated Dog Foods.
309. Defendants’ misrepresentations, concealment, omissions, and other
deceptive conduct described herein repeatedly occurred in Defendants’ trade or business
and were capable of deceiving a substantial portion of the consuming public.
310. The facts misrepresented, concealed, or not disclosed by Defendants with
respect to the presence of heavy metals and/or BPA are material facts because Plaintiff
Chernik and any reasonable consumer would have considered those facts important in
deciding whether to purchase the Contaminated Dog Foods, and at what price.
311. If Plaintiff Chernik and the Illinois Class Members had known that the
Contaminated Dog Foods did not in fact match the quality and ingredients described above,
they would not have paid the price premium they paid for the Contaminated Dog Foods.
312. If Plaintiff Chernik and the Illinois Class Members had known that the
Contaminated Dog Foods did not in fact match the quality and ingredients described above,
they would not have purchased the Contaminated Dog Foods at all.
313. As a result of Defendants’ conduct, Plaintiff Chernik and the Illinois Class
Members have suffered actual damages, in that they purchased Contaminated Dog Foods
at a price far greater than they would have paid if they had knowledge of the levels of heavy
metals and/or BPA present in the Contaminated Dog Foods.
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314. As a result of Defendants’ conduct, Plaintiff Chernik and the Illinois Class
Members have suffered actual damages, in that they purchased Contaminated Dog Foods
that they would not have purchased at all if they had knowledge of the levels of heavy
metals and/or BPA present in the Contaminated Dog Foods.
315. As a direct and proximate result of the deceptive, misleading, unfair, and
unconscionable practices of the Defendants set forth above, Plaintiff Chernik and Illinois
Class Members are entitled to actual damages, compensatory damages, penalties,
attorney’s fees, and costs, as set forth in Section 10a of the ICFA.
316. Defendants’ deceptive, misleading, unfair and unconscionable practices set
forth above were done willfully, wantonly and maliciously entitling Plaintiff Chernik and
the Illinois Class Members to an award of punitive damages.
COUNT XXII Breach of Express Warranty, ALM GL Ch. 106 § 2-313 Against Defendants on
Behalf of the Massachusetts Class
317. Plaintiff Berry incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
318. Defendants expressly warranted, advertised, and represented to Plaintiff
Berry and the Massachusetts Subclass that their Contaminated Dog Foods are:
a. Natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
b. Contain “only 1 supplement- zinc;”
c. Nutritious, superior quality, pure, natural, healthy, and safe for consumption;
d. “Provid[e] a natural source of virtually every nutrient your dog needs to
thrive; and
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e. “Guaranteed to keep your dog healthy, happy, and strong.”
319. Defendants made these express warranties regarding the quality, ingredients,
and fitness for consumption of the Contaminated Dog Foods in writing through their
website, advertisements, and marketing on the Contaminated Dog Foods’ packaging and
labels.
320. These express warranties became part of the basis of the bargain Plaintiff
Berry and the Massachusetts Subclass entered in to upon purchasing the Contaminated Dog
Foods.
321. Defendants’ advertisements, warranties, and representations were made in
connection with the sale of the Contaminated Dog Foods to Plaintiff Berry and the
Massachusetts Subclass, who relied on Defendants’ advertisements, warranties, and
representations regarding the Contaminated Dog Foods in deciding whether to purchase
the Defendants’ products.
322. Defendants’ Contaminated Dog Foods do not conform to the Defendants’
advertisements, warranties, and representations in that they:
a. Are not natural or suitable for consumption by humans or canines;
b. Contain levels of various heavy metals; and
c. Contain levels of BPA.
323. Defendants marketed and sold their Contaminated Dog Foods in to the
stream of commerce with the intent and reasonable expectation that the Contaminated Dog
Foods would be purchased by Plaintiff Berry and the members of the Massachusetts
Subclass.
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324. On the basis of these express warranties, Defendants sold the Contaminated
Dog Foods to Plaintiff Berry and the members of the Massachusetts Subclass.
325. Defendants were on notice of this breach as they were aware of the presence
of heavy metals and/or BPA in the Contaminated Dog Foods and based on the public
investigation by the Clean Label Project that showed their dog food products as unhealthy.
326. As a direct and proximate result of Defendants’ conduct, Plaintiff Berry and
the Massachusetts Subclass suffered actual damages in that they have purchased
Contaminated Dog Foods that is worth less than the price they paid and that they would
not have purchased at all had they known of the presence of the heavy metals and/or BPA.
327. Plaintiff Berry and the Massachusetts Subclass, seek actual damages,
injunctive and declaratory relief, attorney’s fees, costs, and any other just and proper relief
available thereunder for Defendants’ failure to deliver goods conforming to their express
warranties and resulting breach.
COUNT XXIII Breach of Implied Warranty of Merchantability, ALM GL Ch. 106 § 2-314 Against
Defendants on Behalf of the Massachusetts Class
328. Plaintiff Berry incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
329. Defendants are merchants engaging in the sale of goods, such as the
Contaminated Dog Foods, to Plaintiff Berry and the members of the Massachusetts
Subclass.
330. There was a sale of goods from Defendants to Plaintiff Berry and the
Massachusetts Subclass.
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331. At all times mentioned herein, Defendants manufactured or supplied the
Contaminated Dog Foods, and prior to the time the Contaminated Dog Foods were
purchased by Plaintiff Berry and the Massachusetts Subclass, Defendants impliedly
warranted to them that the Contaminated Dog Foods were of merchantable quality, fit for
their ordinary purpose (consumption by dogs), and conformed to the promises and
affirmations made on the Contaminated Dog Foods’ containers and labels, including that
the food was:
a. Natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
b. Contain “only 1 supplement- zinc;”
c. Nutritious, superior quality, pure, natural, healthy, and safe for consumption;
d. “Provid[e] a natural source of virtually every nutrient your dog needs to
thrive; and
e. “”Guaranteed to keep your dog healthy, happy, and strong.” 332. Plaintiff Berry and the Massachusetts Subclass relied on Defendants’
promises and affirmations of fact when they purchased the Contaminated Dog Foods.
333. The Contaminated Dog Foods were not fit for their ordinary purpose,
consumption by dogs, and did not conform to Defendants’ affirmations of fact and
promises as they contained heavy metals and/or BPA at material levels.
334. The Contaminated Dog Foods that Defendants delivered to Plaintiff Berry
and the Massachusetts Subclass also did not conform to the affirmations of fact that they
were natural because they contained the industrial chemical BPA.
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335. Defendants breached the implied warranties by selling the Contaminated
Dog Foods that failed to conform to the promises and affirmations of fact made on the
container or label as they contained heavy metals and/or BPA.
336. Defendants were on notice of this breach as they were aware of the heavy
metals and/or BPA present in the Contaminated Dog Foods and based on the public
investigation by the Clean Label Project that showed their dog food products were
unhealthy.
337. Defendants marketed and sold their Contaminated Dog Foods in to the
stream of commerce with the intent and reasonable expectation that the Contaminated Dog
Foods would be purchased by Plaintiff Berry and the members of the Massachusetts
Subclass.
338. As a direct and proximate result of Defendants’ conduct, Plaintiff Berry and
the Massachusetts Subclass have suffered actual damages in that they have purchased
Contaminated Dog Foods that are worth less than the price they paid and that they would
not have purchased at all had they known of the presence of heavy metals and/or BPA.
339. Plaintiff Berry and the Massachusetts Subclass seek actual damages,
injunctive and declaratory relief, attorney’s fees, costs, and any other just and proper relief
available thereunder for Defendants’ failure to deliver goods that conform to their implied
warranties and resulting breach.
COUNT XXIV Negligent Misrepresentation Against Defendants on Behalf of the Massachusetts
Class 340. Plaintiff Berry incorporates by references and realleges each and every
allegation contained above, as though fully set forth herein.
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341. Defendants had a duty to Plaintiff Berry and the members of the
Massachusetts Subclass to exercise reasonable and ordinary care in the formulation,
testing, manufacture, marketing, distribution, and sale of the Contaminated Dog Foods.
342. Defendants breached their duty to Plaintiff Berry and the members of the
Massachusetts Subclass by formulating, testing, manufacturing, advertising, marketing,
distributing, and selling products to Plaintiff Berry and the members of the Massachusetts
Subclass that do not contain the ingredients, qualities, characteristics, and are not suitable
for consumption as advertised by Defendants and by failing to promptly remove the
Contaminated Dog Foods from the marketplace or to take other appropriate remedial
action.
343. Defendants knew or should have known that the ingredients, qualities, and
characteristics of the Contaminated Dog Foods were not as advertised or suitable for their
intended use, consumption by dogs, and were otherwise not as warranted and represented
by Defendants. Specifically, Defendants knew or should have known that: (1) the certain
of the Contaminated Dog Foods were not natural because they contained levels of the
chemical BPA; (2) the Contaminated Dog Foods were not nutritious, superior quality, pure,
natural, healthy, and safe for consumption because they contained various levels of heavy
metals; and (3) and the Contaminated Dog Foods were otherwise not as warranted and
represented by Defendants.
344. As a direct and proximate result of Defendants’ conduct, Plaintiff Berry and
the Massachusetts Subclass have suffered actual damages in that they have purchased
Contaminated Dog Foods that is worth less than the price they paid and that they would
not have purchased at all had they known they contained heavy metals and/or BPA.
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345. Plaintiff Berry and the Massachusetts Subclass seek actual damages,
injunctive and declaratory relief, attorneys’ fees, costs, and any other just and proper relief
available.
COUNT XXV Intentional Misrepresentation Against Defendants on Behalf of the Massachusetts
Class
346. Plaintiff Berry incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
347. Defendants falsely represented to Plaintiff Berry and the Massachusetts
Subclass that their Contaminated Dog Foods are:
a. Natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
b. Contain “only 1 supplement- zinc;”
c. Nutritious, superior quality, pure, natural, healthy, and safe for consumption;
d. “Provid[e] a natural source of virtually every nutrient your dog needs to
thrive; and
e. “Guaranteed to keep your dog healthy, happy, and strong.” 348. Defendants intentionally made these misrepresentations to induce Plaintiff
Berry and the Massachusetts Subclass to purchase their Contaminated Dog Foods.
349. Defendants knew, should have known, or had the ability to reasonably
determine that such material representations of fact on their websites and in their
advertising and marketing were false or misleading or would have the tendency to be
misleading.
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350. Defendants knew or should have known about the presence of heavy metals
and/or BPA in the Contaminated Dog Foods and were on notice of such inclusions based
on the public investigation by the Clean Label Project that showed their dog food products
as unhealthy.
351. Defendants knew, should have known, or had the ability to reasonably
determine that their representations about the Contaminated Dog Foods were false because
the Contaminated Dog Foods contain levels of heavy metals and/or BPA. Defendants
allowed their packaging, labels, advertisements, promotional materials, and website to
intentionally mislead consumers, including Plaintiff Berry and the Massachusetts Subclass.
352. Plaintiff Berry and the Massachusetts Subclass did in fact rely on these
misrepresentations and purchased the Contaminated Dog Foods to their detriment. Given
the deceptive manner in which Defendants advertised, represented, and otherwise
promoted the Contaminated Dog Foods, Plaintiff Berry and the Massachusetts Subclass’
reliance on Defendants’ misrepresentations was justifiable.
353. Plaintiff Berry and the Massachusetts Subclass seek actual damages,
injunctive and declaratory relief, attorneys’ fees, costs, and any other just and proper relief
available under the laws.
COUNT XXVI Fraudulent Misrepresentation Against Defendants on Behalf of the Massachusetts
Subclass
354. Plaintiff Berry incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
355. Defendants falsely represented to Plaintiff Berry and the Massachusetts
Subclass that their Contaminated Dog Foods are:
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a. Natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
b. Contain “only 1 supplement- zinc;”
c. Nutritious, superior quality, pure, natural, healthy, and safe for consumption;
d. “Provid[e] a natural source of virtually every nutrient your dog needs to
thrive; and
e. “”Guaranteed to keep your dog healthy, happy, and strong.” 356. Defendants intentionally and knowingly made these misrepresentations to
induce Plaintiff Berry and the Massachusetts Subclass to purchase their Contaminated Dog
Foods.
357. Defendants knew about the presence of heavy metals and/or BPA in the
Contaminated Dog Foods and were on notice of such inclusions based on the public
investigation by the Clean Label Project that showed their dog food products as unhealthy.
358. Defendants knew that their representations about the Contaminated Dog
Foods were false in that the Contaminated Dog Foods contain levels of heavy metals and/or
BPA. Defendants allowed their packaging, labels, advertisements, promotional materials,
and website to intentionally mislead consumers, including Plaintiff Berry and the
Massachusetts Subclass.
359. Plaintiff Berry and the Massachusetts Subclass did in fact rely on these
misrepresentations and purchased the Contaminated Dog Foods to their detriment. Given
the deceptive manner in which Defendants advertised, represented, and otherwise
promoted the Contaminated Dog Foods, Plaintiff Berry and the Massachusetts Subclass’
reliance on Defendants’ misrepresentations was justifiable.
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360. As a direct and proximate result of Defendants’ conduct, Plaintiff Berry and
the Massachusetts Subclass have suffered actual damages in that they have purchased
Contaminated Dog Foods that is worth less than the price they paid and that they would
not have purchased at all had they known of the presence of heavy metals and/or BPA.
361. Plaintiff Berry and the Massachusetts Subclass seek actual damages,
injunctive and declaratory relief, attorneys’ fees, costs, and any other just and proper relief
available under the laws.
COUNT XXVII Violations of Washington's Unfair Business Practices and Consumer Protection Act,
Washington Rev. Code §§19.86.010, Et Seq., Against Defendants on Behalf of the Washington Class
362. Plaintiff Rydman incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
363. This is an action for relief under the Washington Unfair Business Practices
and Consumer Protection Act, Washington Rev. Code sections 19.86.010, et seq. (the
"WCPA").
364. Defendants, Plaintiff Rydman and each Washington Class member are each
a "person," as that term is defined in Washington Code section § 19.86.010(1).
365. Defendants engaged in "trade" or "commerce" under Washington Code
section § 19.86.010(2)
366. The WCPA states that “[u]nfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce are hereby declared
unlawful.” Wash. Code § 19.86.020.
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367. Defendants have engaged in unfair competition and unfair, unlawful,
deceptive or fraudulent business practices by the practices described above, and by
knowingly, intentionally and/or negligently concealing from Plaintiff Rydman and the
Washington Class the fact that the Contaminated Dog Foods contained heavy metals and/or
BPA, which was not readily discoverable. Defendants should have disclosed this
information because it was in a superior position to know the true facts related true make-
up and ingredients of the Contaminated Dog Foods, and Plaintiff Rydman and the
Washington Class could not reasonably be expected to learn or discover the true facts
related to nutritional make-up, ingredients and/or quality of the Contaminated Dog Foods.
368. The unconscionable, illegal, unfair and deceptive acts and practices of
Defendants violate the WCPA.
369. Pursuant to WCPA § 19.86.095, Plaintiff Rydman will serve the Washington
Attorney General with a copy of this complaint as Plaintiff Rydman and the Washington
Class members seek injunctive relief.
370. As a direct and proximate result of Defendants' conduct, Plaintiff Rydman
and the Washington Class have been damaged in an amount to be proven at trial, which
shall include, but is not limited to, all compensatory damages, incidental and consequential
damages, attorneys’ fees, costs, treble damages, and other damages allowed by law.
COUNT XXVIII Fraudulent Misrepresentation Against Defendants on
Behalf of the Washington Class
371. Plaintiff Rydman incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
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372. Defendants falsely represented to Plaintiff Rydman and the Washington
Class that their Contaminated Dog Foods are:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) nutritious, superior quality, pure, natural, healthy and safe for consumption;
(d) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(e) “guaranteed to keep your dog healthy, happy and strong.”
373. These false representations were material to Plaintiff Rydman and the
Washington Class.
374. Defendants intentionally and knowingly made these misrepresentations to
induce Plaintiffs and the Classes to purchase their Contaminated Dog Foods.
375. Defendants knew that their representations about the Contaminated Dog
Foods were false in that the Contaminated Dog Foods contain levels of heavy metals and/or
BPA as well as chemical ingredients. Defendants allowed their packaging, labels,
advertisements, promotional materials, and website to intentionally mislead consumers,
such as Plaintiff Rydman and the Washington Class.
376. Plaintiff Rydman and the Washington Class were ignorant of the falsity of
the representations made by Defendants about the Contaminated Dog Foods.
377. Plaintiff Rydman and the Washington Class did in fact rely on the truth of
these misrepresentations and purchased the Contaminated Dog Foods to their detriment.
Given the deceptive manner in which Defendants advertised, represented and otherwise
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promoted the Contaminated Dog Foods, Plaintiff Rydman and the Washington Class’
reliance on Defendants’ misrepresentations was justifiable.
378. As a direct and proximate result of Defendants’ conduct, Plaintiff Rydman
and the Washington Class have suffered actual damages in that they have purchased
Contaminated Dog Foods that is worth less than the price they paid and that they would
not have purchased at all had they known of the presence of heavy metals and/or BPA.
379. Plaintiff Rydman and the Washington Class seek actual damages, injunctive
and declaratory relief, attorneys’ fees, costs, and any other just and proper relief available
under the laws.
COUNT XXIX Negligent Misrepresentation Against Defendants on
Behalf of the Washington Class
380. Plaintiff Rydman incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
381. Defendants had a duty to Plaintiff Rydman and the Washington Class to
exercise reasonable and ordinary care in the formulation, testing, formulation,
manufacture, marketing, distribution, and sale of the Contaminated Dog Foods.
382. Defendants breached their duty to Plaintiff Rydman and the Washington
Class by formulating, testing, manufacturing, advertising, marketing, distributing, and
selling a product to Plaintiffs in the course of its business that did not have the ingredients,
qualities, characteristics, and suitability for consumption that Defendants’ advertised and
by failing to promptly remove the Contaminated Dog Foods from the marketplace or to
take other appropriate remedial action.
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383. Defendants knew or should have known that the ingredients, qualities, and
characteristics of the Contaminated Dog Foods were not as advertised or suitable for their
intended use, consumption by dogs, and was otherwise not as warranted and represented
by Defendants. Specifically, Defendants knew or should have known that: (1) the certain
of the Contaminated Dog Foods were not natural because they contained levels of the
chemical BPA; (2) the Contaminated Dog Foods were not nutritious, superior quality, pure,
natural, healthy and safe for consumption because they contained high levels of heavy
metals; and (3) and the Contaminated Dog Foods were otherwise not as warranted and
represented by Defendants. As such, Defendants failed to exercise reasonable care or
competence.
384. Plaintiff Rydman and the Washington Class did in fact rely on these
misrepresentations and purchased the Contaminated Dog Foods to their detriment. Given
the negligent manner in which Defendants advertised, represented and otherwise promoted
the Contaminated Dog Foods, Plaintiff Rydman and the Washington Class’ reliance on
Defendants’ misrepresentations was justifiable.
385. As a direct and proximate result of Defendants’ conduct, Plaintiffs and the
Classes have suffered actual damages in that they have purchased Contaminated Dog
Foods that is worth less than the price they paid and that they would not have purchased at
all had they known they contained heavy metals and/or BPA.
386. Plaintiff and the Washington Class seek actual damages, injunctive and
declaratory relief, attorneys’ fees, costs, and any other just and proper relief available.
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COUNT XXX (Breach of Express Warranty, Washington Code § 62A.2-313,
Against Defendant on Behalf of the Washington Class)
387. Plaintiff Rydman incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
388. Defendants marketed and sold their Contaminated Dog Foods into the stream
of commerce with the intent that the Contaminated Dog Foods would be purchased by
Plaintiff Rydman and the Washington Class.
389. Defendants expressly warranted, advertised, and represented to Plaintiffs and
the Class that their Contaminated Dog Foods are:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) nutritious, superior quality, pure, natural, healthy and safe for consumption;
(d) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(e) “guaranteed to keep your dog healthy, happy and strong.”
390. Defendants made these express warranties regarding the Contaminated Dog
Foods’ quality, ingredients, and fitness for consumption in writing through their website,
advertisements, and marketing materials and on the Contaminated Dog Foods’ packaging
and labels. These express warranties became part of the basis of the bargain Plaintiff
Rydman and the Washington Class entered into upon purchasing the Contaminated Dog
Foods.
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391. Defendants’ advertisements, warranties, and representations were made in
connection with the sale of the Contaminated Dog Foods to Plaintiff Rydman and the
Washington Class. Plaintiff Rydman and the Washington Class relied on Defendants’
advertisements, warranties, and representations regarding the Contaminated Dog Foods in
decided whether to purchase Defendants’ products.
392. Defendants’ Contaminated Dog Foods do not conform to Defendants’
advertisements, warranties and representations in that they:
(a) are not natural or suitable for consumption by humans or canines;
(b) contain levels of various heavy metals; and
(c) contain levels of BPA.
393. Defendants were on notice of this breach as they were aware of the included
heavy metals and/or BPA in the Contaminated Dog Foods and based on the public
investigation by the Clean Label Product that showed their dog food products as unhealthy.
394. Privity exists because Defendants expressly warranted to Plaintiff Rydman
and the Washington Class that the Contaminated Dog Foods were natural, suitable for
consumption, and contained only meat, poultry, fish, and/or vegetables, and guaranteed to
keep dogs healthy, happy, and strong.
395. As a direct and proximate result of Defendants’ conduct, Plaintiff Rydman
and the Washington Class have suffered actual damages in that they have purchased
Contaminated Dog Foods that is worth less than the price they paid and that they would
not have purchased at all had they known of the presence of heavy metals, and/or BPA.
396. Plaintiff Rydman and the Washington Class seek actual damages, injunctive
and declaratory relief, attorneys’ fees, costs, and any other just and proper relief available
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thereunder for Defendants’ failure to deliver goods conforming to their express warranties
and resulting breach.
COUNT XXXI (Breach of Implied Warranty of Merchantability, Washington Code § 62A.2-314,
Against Defendant on Behalf of the Washington Class)
397. Plaintiffs incorporate by reference and reallege each and every allegation
contained above, as though fully set forth herein.
398. Defendants are merchants engaging in the sale of goods to Plaintiff Rydman
and the Washington Class.
399. There was a sale of goods from Defendants to Plaintiff Rydman and members
of the Washington Class.
400. At all times mentioned herein, Defendants manufactured or supplied the
Contaminated Dog Foods, and prior to the time the Contaminated Dog Foods were
purchased by Plaintiff Rydman and the Washington Class, Defendants impliedly warranted
to them that the Contaminated Dog Foods were of merchantable quality, fit for their
ordinary use (consumption by dogs), and conformed to the promises and affirmations of
fact made on the Contaminated Dog Foods’ containers and labels, including that the food
was:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) nutritious, superior quality, pure, natural, healthy and safe for consumption;
(d) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
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(e) “guaranteed to keep your dog healthy, happy and strong.”
401. Plaintiff [NAME] and the Washington Class relied on Defendants’ promises
and affirmations of fact when they purchased the Contaminated Dog Foods.
402. The Contaminated Dog Foods were not fit for their ordinary use,
consumption by dogs, and did not conform to Defendants’ affirmations of fact and
promises as they contained heavy metals and/or BPA at material levels to a reasonable
consumer.
403. The Contaminated Dog Foods that Defendants delivered to Plaintiff Rydman
and the Washington Class also did not conform to affirmations of fact that they were natural
because they contained the industrial chemical BPA.
404. Defendants breached the implied warranties by selling the Contaminated
Dog Foods that failed to conform to the promises or affirmations of fact made on the
container or label as each product contained heavy metals and/or BPA.
405. Defendants were on notice of this breach as they were aware of the heavy
metals and/or BPA included in the Contaminated Dog Foods, and based on the public
investigation by the Clean Label Product that showed their dog food products as unhealthy.
406. Privity exists because Defendants impliedly warranted to Plaintiff Rydman
and the Washington Class through the warranting, packaging, advertising, marketing, and
labeling that the Contaminated Dog Foods healthy, natural, and suitable for consumption
and by failing to make any mention of heavy metals or BPA.
407. As a direct and proximate result of Defendants’ conduct, Plaintiff Rydman
and the Washington Class have suffered actual damages in that they have purchased
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Contaminated Dog Foods that is worth less than the price they paid and that they would
have not have purchased at all had they known of the presence of heavy metals and/or BPA.
408. Plaintiff Rydman and the Washington Class seek actual damages, injunctive
and declaratory relief, attorneys’ fees, costs, and any other just and proper relief available
thereunder for Defendants’ failure to deliver goods conforming to their implied warranties
and resulting breach.
COUNT XXXII Violations of Alaska's Unfair Trade Practices and Consumer Protection Act, Alaska
Statutes §§ 45.50.471, Et Seq., Against Defendants on Behalf of the Alaska Class
409. Plaintiff Pedersen incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
410. This is an action for relief under the Alaska Unfair Trade Practices and
Consumer Protection Act, Alaska Statutes sections 45.50.471, et seq. (the "ACPA").
411. Plaintiff Pedersen and each Alaska Class member is a "consumer," as that
term is defined in Alaska Statutes section § 45.50.561(a)(4).
412. The ACPA states that “[u]nfair methods of competition and unfair or
deceptive acts or practices in the conduct of trade or commerce are declared to be
unlawful.” Alaska Stat. § 45.50.471(a).
413. Defendants conduct alleged herein has violated the ACPA by engaging in the
following "unfair methods of competition" and "unfair or deceptive acts or practices"
specified under the ACPA:
(a) Alaska Statutes section 45.50.471(b)(4), representing that the Contaminated Dog Foods have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have;
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(b) Alaska Statutes section 45.50.471(b)(6), representing that the Contaminated Dog Foods are of a particular standard, quality, or grade;
(c) Alaska Statutes section 45.50.471(b)(8), advertising the Contaminated
Dog Foods with intent not to sell them as advertised;
(d) Alaska Statutes section 45.50.471(b)(11), engaging in any other conduct creating a likelihood of confusion or of misunderstanding and that misleads, deceives, or damages a buyer or a competitor in connection with the sale or advertisement of the Contaminated Dog Foods; and
(e) Alaska Statutes section 45.50.471(b)(12), using or employing deception,
fraud, false pretense, false promise, misrepresentation, or knowingly concealing, suppressing, or omitting a material fact with intent that others rely upon the concealment, suppression, or omission in connection with the sale or advertisement of the Contaminated Dog Foods whether or not a person has in fact been misled, deceived, or damaged.
414. The unconscionable, illegal, unfair and deceptive acts and practices of
Defendants violate the ACPA.
415. As a direct and proximate result of these violations, Plaintiff Pedersen and
the Alaska Class have been harmed, and that harm will continue unless Defendants are
enjoined from using the misleading marketing described herein in any manner in
connection with the advertising and sale of the Contaminated Dog Foods.
416. In accordance with Alaska Statutes section 45.50.531(a), Plaintiffs and the
California Class are entitled to recover three times their actual damages or $500, whichever
is greater, and the court may provide other relief it considers necessary and proper.
417. Plaintiff Pedersen also seeks an award of attorneys' fees and costs pursuant
to, inter alia, Alaska Statutes section 45.50.537(a).
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COUNT XXXIII Fraudulent Misrepresentation Against Defendants on
Behalf of the Alaska Class
418. Plaintiff Pedersen incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
419. Defendants falsely represented to Plaintiff Pedersen and the Alaska Class
that their Contaminated Dog Foods are:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) nutritious, superior quality, pure, natural, healthy and safe for consumption;
(d) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(e) “guaranteed to keep your dog healthy, happy and strong.”
420. Defendants intentionally and knowingly made these misrepresentations to
induce Plaintiffs and the Classes to purchase their Contaminated Dog Foods.
421. Defendants knew that their representations about the Contaminated Dog
Foods were false in that the Contaminated Dog Foods contain levels of heavy metals and/or
BPA as well as chemical ingredients. Defendants allowed their packaging, labels,
advertisements, promotional materials, and website to intentionally mislead consumers,
such as Plaintiff Pedersen and the Alaska Class.
422. Plaintiff Pedersen and the Alaska Class did in fact rely on these
misrepresentations and purchased the Contaminated Dog Foods to their detriment. Given
the deceptive manner in which Defendants advertised, represented and otherwise promoted
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the Contaminated Dog Foods, Plaintiff Pedersen and the Alaska Class’ reliance on
Defendants’ misrepresentations was justifiable.
423. As a direct and proximate result of Defendants’ conduct, Plaintiff Pedersen
and the Alaska Class have suffered actual damages in that they have purchased
Contaminated Dog Foods that is worth less than the price they paid and that they would
not have purchased at all had they known of the presence of heavy metals and/or BPA.
424. Plaintiff Pedersen and the Alaska Class seek actual damages, injunctive and
declaratory relief, attorneys’ fees, costs, and any other just and proper relief available under
the laws.
COUNT XXXIV Negligent Misrepresentation Against Defendants on
Behalf of the Alaska Class
425. Plaintiff Pedersen incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
426. Defendants had a duty to Plaintiff Pedersen and the Alaska Class to exercise
reasonable and ordinary care in the formulation, testing, formulation, manufacture,
marketing, distribution, and sale of the Contaminated Dog Foods.
427. Defendants breached their duty to Plaintiff Pedersen and the Alaska Class by
formulating, testing, manufacturing, advertising, marketing, distributing, and selling a
product to Plaintiffs in the course of its business that did not have the ingredients, qualities,
characteristics, and suitability for consumption that Defendants’ advertised and by failing
to promptly remove the Contaminated Dog Foods from the marketplace or to take other
appropriate remedial action.
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428. Defendants knew or should have known that the ingredients, qualities, and
characteristics of the Contaminated Dog Foods were not as advertised or suitable for their
intended use, consumption by dogs, and was otherwise not as warranted and represented
by Defendants. Specifically, Defendants knew or should have known that: (1) the certain
of the Contaminated Dog Foods were not natural because they contained levels of the
chemical BPA; (2) the Contaminated Dog Foods were not nutritious, superior quality, pure,
natural, healthy and safe for consumption because they contained high levels of heavy
metals; and (3) and the Contaminated Dog Foods were otherwise not as warranted and
represented by Defendants. As such, Defendants failed to exercise reasonable care or
competence.
429. Plaintiff Pedersen and the Alaska Class did in fact rely on these
misrepresentations and purchased the Contaminated Dog Foods to their detriment. Given
the negligent manner in which Defendants advertised, represented and otherwise promoted
the Contaminated Dog Foods, Plaintiff Pedersen and the Alaska Class’ reliance on
Defendants’ misrepresentations was justifiable.
430. As a direct and proximate result of Defendants’ conduct, Plaintiffs and the
Classes have suffered actual damages in that they have purchased Contaminated Dog
Foods that is worth less than the price they paid and that they would not have purchased at
all had they known they contained heavy metals and/or BPA.
431. Plaintiff Pedersen and the Alaska Class seek actual damages, injunctive and
declaratory relief, attorneys’ fees, costs, and any other just and proper relief available.
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COUNT XXXV (Breach of Express Warranty, Alaska Statutes § 45.02.313,
Against Defendant on Behalf of the Alaska Class)
432. Plaintiff Pedersen incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
433. Defendants marketed and sold their Contaminated Dog Foods into the stream
of commerce with the intent that the Contaminated Dog Foods would be purchased by
Plaintiff Pedersen and the Alaska Class.
434. Defendants expressly warranted, advertised, and represented to Plaintiffs and
the Class that their Contaminated Dog Foods are:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) nutritious, superior quality, pure, natural, healthy and safe for consumption;
(d) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(e) “guaranteed to keep your dog healthy, happy and strong.”
435. Defendants made these express warranties regarding the Contaminated Dog
Foods’ quality, ingredients, and fitness for consumption in writing through their website,
advertisements, and marketing materials and on the Contaminated Dog Foods’ packaging
and labels. These express warranties became part of the basis of the bargain Plaintiff
[NAME] and the Alaska Class entered into upon purchasing the Contaminated Dog Foods.
436. Defendants’ advertisements, warranties, and representations were made in
connection with the sale of the Contaminated Dog Foods to Plaintiff Pedersen and the
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Alaska Class. Plaintiff Pedersen and the Alaska Class relied on Defendants’
advertisements, warranties, and representations regarding the Contaminated Dog Foods in
decided whether to purchase Defendants’ products.
437. Defendants’ Contaminated Dog Foods do not conform to Defendants’
advertisements, warranties and representations in that they:
(a) are not natural or suitable for consumption by humans or canines;
(b) contain levels of various heavy metals; and
(c) contain levels of BPA.
438. Defendants were on notice of this breach as they were aware of the included
heavy metals and/or BPA in the Contaminated Dog Foods and based on the public
investigation by the Clean Label Product that showed their dog food products as unhealthy.
439. Privity exists because Defendants expressly warranted to Plaintiff Pedersen
and the Alaska Class that the Contaminated Dog Foods were natural, suitable for
consumption, and contained only meat, poultry, fish, and/or vegetables, and guaranteed to
keep dogs healthy, happy, and strong.
440. As a direct and proximate result of Defendants’ conduct, Plaintiff Pedersen
and the Alaska Class have suffered actual damages in that they have purchased
Contaminated Dog Foods that is worth less than the price they paid and that they would
not have purchased at all had they known of the presence of heavy metals, and/or BPA.
441. Plaintiff Pedersen and the Alaska Class seek actual damages, injunctive and
declaratory relief, attorneys’ fees, costs, and any other just and proper relief available
thereunder for Defendants’ failure to deliver goods conforming to their express warranties
and resulting breach.
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COUNT XXXVI (Breach of Implied Warranty of Merchantability, Alaska Statutes § 45.02.314,
Against Defendant on Behalf of the Alaska Class)
442. Plaintiff Pedersen incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
443. Defendants are merchants engaging in the sale of goods to Plaintiff Pedersen
and the Alaska Class.
444. There was a sale of goods from Defendants to Plaintiff Pedersen and
members of the Alaska Class.
445. At all times mentioned herein, Defendants manufactured or supplied the
Contaminated Dog Foods, and prior to the time the Contaminated Dog Foods were
purchased by Plaintiff Pedersen and the Alaska Class, Defendants impliedly warranted to
them that the Contaminated Dog Foods were of merchantable quality, fit for their ordinary
use (consumption by dogs), and conformed to the promises and affirmations of fact made
on the Contaminated Dog Foods’ containers and labels, including that the food was:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) nutritious, superior quality, pure, natural, healthy and safe for consumption;
(d) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(e) “guaranteed to keep your dog healthy, happy and strong.”
446. Plaintiff Pedersen and the Alaska Class relied on Defendants’ promises and
affirmations of fact when they purchased the Contaminated Dog Foods.
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447. The Contaminated Dog Foods were not fit for their ordinary use,
consumption by dogs, and did not conform to Defendants’ affirmations of fact and
promises as they contained heavy metals and/or BPA at material levels to a reasonable
consumer.
448. The Contaminated Dog Foods that Defendants delivered to Plaintiff Pedersen
and the Alaska Class also did not conform to affirmations of fact that they were natural
because they contained the industrial chemical BPA.
449. Defendants breached the implied warranties by selling the Contaminated
Dog Foods that failed to conform to the promises or affirmations of fact made on the
container or label as each product contained heavy metals and/or BPA.
450. Defendants were on notice of this breach as they were aware of the heavy
metals and/or BPA included in the Contaminated Dog Foods, and based on the public
investigation by the Clean Label Product that showed their dog food products as unhealthy.
451. Privity exists because Defendants impliedly warranted to Plaintiff Pedersen
and the Alaska Class through the warranting, packaging, advertising, marketing, and
labeling that the Contaminated Dog Foods healthy, natural, and suitable for consumption
and by failing to make any mention of heavy metals or BPA.
452. As a direct and proximate result of Defendants’ conduct, Plaintiff Pedersen
and the Alaska Class have suffered actual damages in that they have purchased
Contaminated Dog Foods that is worth less than the price they paid and that they would
have not have purchased at all had they known of the presence of heavy metals and/or BPA.
453. Plaintiff Pedersen and the Alaska Class seek actual damages, injunctive and
declaratory relief, attorneys’ fees, costs, and any other just and proper relief available
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thereunder for Defendants’ failure to deliver goods conforming to their implied warranties
and resulting breach.
COUNT XXXVII Fraudulent Misrepresentation Against Defendants on
Behalf of the Iowa Class
454. Plaintiff Blackburn incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
455. Defendants falsely represented to Plaintiff Blackburn and the Iowa Class that
their Contaminated Dog Foods are:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) nutritious, superior quality, pure, natural, healthy and safe for consumption;
(d) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(e) “guaranteed to keep your dog healthy, happy and strong.”
456. Defendants intentionally and knowingly made these misrepresentations to
induce Plaintiffs and the Classes to purchase their Contaminated Dog Foods.
457. Defendants knew that their representations about the Contaminated Dog
Foods were false in that the Contaminated Dog Foods contain levels of heavy metals and/or
BPA as well as chemical ingredients. Defendants allowed their packaging, labels,
advertisements, promotional materials, and website to intentionally mislead consumers,
such as Plaintiff Blackburn and the Iowa Class.
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458. Plaintiff Blackburn and the Iowa Class did in fact rely on these
misrepresentations and purchased the Contaminated Dog Foods to their detriment. Given
the deceptive manner in which Defendants advertised, represented and otherwise promoted
the Contaminated Dog Foods, Plaintiff Blackburn and the Iowa Class’ reliance on
Defendants’ misrepresentations was justifiable.
459. As a direct and proximate result of Defendants’ conduct, Plaintiff Blackburn
and the Iowa Class have suffered actual damages in that they have purchased Contaminated
Dog Foods that is worth less than the price they paid and that they would not have
purchased at all had they known of the presence of heavy metals and/or BPA.
460. Plaintiff Blackburn and the Iowa Class seek actual damages, injunctive and
declaratory relief, attorneys’ fees, costs, and any other just and proper relief available under
the laws.
COUNT XXXVIII Negligent Misrepresentation Against Defendants on
Behalf of the Iowa Class
461. Plaintiff Blackburn incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
462. Defendants had a duty to Plaintiff Blackburn and the Iowa Class to exercise
reasonable and ordinary care in the formulation, testing, formulation, manufacture,
marketing, distribution, and sale of the Contaminated Dog Foods.
463. Defendants breached their duty to Plaintiff Blackburn and the Iowa Class by
formulating, testing, manufacturing, advertising, marketing, distributing, and selling a
product to Plaintiffs that is does not have the ingredients, qualities, characteristics, and
suitability for consumption that Defendants’ advertised and by failing to promptly remove
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the Contaminated Dog Foods from the marketplace or to take other appropriate remedial
action.
464. Defendants knew or should have known that the ingredients, qualities, and
characteristics of the Contaminated Dog Foods were not as advertised or suitable for their
intended use, consumption by dogs, and was otherwise not as warranted and represented
by Defendants. Specifically, Defendants knew or should have known that: (1) the certain
of the Contaminated Dog Foods were not natural because they contained levels of the
chemical BPA; (2) the Contaminated Dog Foods were not nutritious, superior quality, pure,
natural, healthy and safe for consumption because they contained high levels of heavy
metals; and (3) and the Contaminated Dog Foods were otherwise not as warranted and
represented by Defendants.
465. Plaintiff Blackburn and the Iowa Class did in fact rely on these
misrepresentations and purchased the Contaminated Dog Foods to their detriment. Given
the negligent manner in which Defendants advertised, represented and otherwise promoted
the Contaminated Dog Foods, Plaintiff Blackburn and the Iowa Class’ reliance on
Defendants’ misrepresentations was justifiable.
466. As a direct and proximate result of Defendants’ conduct, Plaintiffs and the
Classes have suffered actual damages in that they have purchased Contaminated Dog
Foods that is worth less than the price they paid and that they would not have purchased at
all had they known they contained heavy metals and/or BPA.
467. Plaintiffs and the Classes seek actual damages, injunctive and declaratory
relief, attorneys’ fees, costs, and any other just and proper relief available.
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COUNT XXXIX (Breach of Express Warranty, Iowa Code § 554.2313,
Against Defendant on Behalf of the Iowa Class)
468. Plaintiff Blackburn incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
469. Defendants marketed and sold their Contaminated Dog Foods into the stream
of commerce with the intent that the Contaminated Dog Foods would be purchased by
Plaintiff [NAME] and the Iowa Class.
470. Defendants expressly warranted, advertised, and represented to Plaintiffs and
the Class that their Contaminated Dog Foods are:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) nutritious, superior quality, pure, natural, healthy and safe for consumption;
(d) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(e) “guaranteed to keep your dog healthy, happy and strong.”
471. Defendants made these express warranties regarding the Contaminated Dog
Foods’ quality, ingredients, and fitness for consumption in writing through their website,
advertisements, and marketing materials and on the Contaminated Dog Foods’ packaging
and labels. These express warranties became part of the basis of the bargain Plaintiff
Blackburn and the Iowa Class entered into upon purchasing the Contaminated Dog Foods.
472. Defendants’ advertisements, warranties, and representations were made in
connection with the sale of the Contaminated Dog Foods to Plaintiff Blackburn and the
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Iowa Class. Plaintiff Blackburn and the Iowa Class relied on Defendants’ advertisements,
warranties, and representations regarding the Contaminated Dog Foods in decided whether
to purchase Defendants’ products.
473. Defendants’ Contaminated Dog Foods do not conform to Defendants’
advertisements, warranties and representations in that they:
(a) are not natural or suitable for consumption by humans or canines;
(b) contain levels of various heavy metals; and
(c) contain levels of BPA.
474. Defendants were on notice of this breach as they were aware of the included
heavy metals and/or BPA in the Contaminated Dog Foods and based on the public
investigation by the Clean Label Product that showed their dog food products as unhealthy.
475. Privity exists because Defendants expressly warranted to Plaintiff Blackburn
and the Iowa Class that the Contaminated Dog Foods were natural, suitable for
consumption, and contained only meat, poultry, fish, and/or vegetables, and guaranteed to
keep dogs healthy, happy, and strong.
476. As a direct and proximate result of Defendants’ conduct, Plaintiff Blackburn
and the Iowa Class have suffered actual damages in that they have purchased Contaminated
Dog Foods that is worth less than the price they paid and that they would not have
purchased at all had they known of the presence of heavy metals, and/or BPA.
477. Plaintiff Blackburn and the Iowa Class seek actual damages, injunctive and
declaratory relief, attorneys’ fees, costs, and any other just and proper relief available
thereunder for Defendants’ failure to deliver goods conforming to their express warranties
and resulting breach.
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COUNT XL (Breach of Implied Warranty of Merchantability, Iowa Statutes § 554.2314, Against
Defendant on Behalf of the Iowa Class)
478. Plaintiff Blackburn incorporates by reference and realleges each and every
allegation contained above, as though fully set forth herein.
479. Defendants are merchants engaging in the sale of goods to Plaintiff
Blackburn and the Iowa Class.
480. There was a sale of goods from Defendants to Plaintiff Blackburn and
members of the Iowa Class.
481. At all times mentioned herein, Defendants manufactured or supplied the
Contaminated Dog Foods, and prior to the time the Contaminated Dog Foods were
purchased by Plaintiff Blackburn and the Iowa Class, Defendants impliedly warranted to
them that the Contaminated Dog Foods were of merchantable quality, fit for their ordinary
use (consumption by dogs), and conformed to the promises and affirmations of fact made
on the Contaminated Dog Foods’ containers and labels, including that the food was:
(a) natural, fit for human consumption, fit for canine consumption, and made from “Biologically Appropriate” and “Fresh Regional Ingredients” consisting entirely of fresh meat, poultry, fish, and vegetables;
(b) contain “only 1 supplement – zinc;”
(c) nutritious, superior quality, pure, natural, healthy and safe for consumption;
(d) “provid[e] a natural source of virtually every nutrient your dog needs to thrive;” and
(e) “guaranteed to keep your dog healthy, happy and strong.”
482. Plaintiff Blackburn and the Iowa Class relied on Defendants’ promises and
affirmations of fact when they purchased the Contaminated Dog Foods.
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483. The Contaminated Dog Foods were not fit for their ordinary use,
consumption by dogs, and did not conform to Defendants’ affirmations of fact and
promises as they contained heavy metals and/or BPA at material levels to a reasonable
consumer.
484. The Contaminated Dog Foods that Defendants delivered to Plaintiff
Blackburn and the Iowa Class also did not conform to affirmations of fact that they were
natural because they contained the industrial chemical BPA.
485. Defendants breached the implied warranties by selling the Contaminated
Dog Foods that failed to conform to the promises or affirmations of fact made on the
container or label as each product contained heavy metals and/or BPA.
486. Defendants were on notice of this breach as they were aware of the heavy
metals and/or BPA included in the Contaminated Dog Foods, and based on the public
investigation by the Clean Label Product that showed their dog food products as unhealthy.
487. Privity exists because Defendants impliedly warranted to Plaintiff Blackburn
and the Iowa Class through the warranting, packaging, advertising, marketing, and labeling
that the Contaminated Dog Foods healthy, natural, and suitable for consumption and by
failing to make any mention of heavy metals or BPA.
488. As a direct and proximate result of Defendants’ conduct, Plaintiff Blackburn
and the Iowa Class have suffered actual damages in that they have purchased Contaminated
Dog Foods that is worth less than the price they paid and that they would have not have
purchased at all had they known of the presence of heavy metals and/or BPA.
489. Plaintiff Blackburn and the Iowa Class seek actual damages, injunctive and
declaratory relief, attorneys’ fees, costs, and any other just and proper relief available
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thereunder for Defendants’ failure to deliver goods conforming to their implied warranties
and resulting breach.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, individually and on behalf of all others similarly situated,
pray for judgment against the Defendants as to each and every count, including:
A. An order declaring this action to be a proper class action, appointing
Plaintiffs and their counsel to represent the Classes, and requiring Defendants to bear the
costs of class notice;
B. An order enjoining Defendants from selling the Contaminated Dog Foods
until the levels of heavy metals and/or BPA are removed or full disclosure of the presence
of such appear on all labels, packaging and advertising;
C. An order enjoining Defendants from selling the Contaminated Dog Foods in
any manner suggesting or implying that they are healthy, natural, and safe for consumption;
D. An order requiring Defendants to engage in a corrective advertising
campaign and engage in any further necessary affirmative injunctive relief, such as
recalling existing products;
E. An order awarding declaratory relief, and any further retrospective or
prospective injunctive relief permitted by law or equity, including enjoining Defendants
from continuing the unlawful practices alleged herein, and injunctive relief to remedy
Defendants' past conduct;
F. An order requiring Defendants to pay restitution to restore all funds acquired
by means of any act or practice declared by this Court to be an unlawful, unfair, or
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fraudulent business act or practice, untrue or misleading advertising, or a violation of
California, Minnesota and Florida law, plus pre- and post-judgment interest thereon;
G. An order requiring Defendants to disgorge or return all monies, revenues,
and profits obtained by means of any wrongful or unlawful act or practice;
H. An order requiring Defendants to pay all actual and statutory damages
permitted under the counts alleged herein;
I. An order requiring Defendants to pay punitive damages on any count so
allowable;
J. An order awarding attorneys’ fees and costs, including the costs of pre-suit
investigation, to Plaintiffs and the Classes; and
K. An order providing for all other such equitable relief as may be just and
proper.
JURY DEMAND
Plaintiffs hereby demand a trial by jury on all issues so triable.
Dated: April 19, 2018 LOCKRIDGE GRINDAL NAUEN P.L.L.P. ROBERT K. SHELQUIST REBECCA A. PETERSON (241858)
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ROBBINS ARROYO LLP KEVIN A. SEELY (199982) STEVEN M. MCKANY (271405) 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 Facsimile: (619) 525-3991 E-mail: [email protected]
DANIEL E. GUSTAFSON KARLA M. GLUEK JOSEPH C. BOURNE (308196) RAINA C. BORRELLI Canadian Pacific Plaza 120 South 6th Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844 Facsimile: (612) 339-6622 E-mail: [email protected][email protected][email protected][email protected]
CUNEO GILBERT & LADUCA, LLP CHARLES LADUCA KATHERINE VAN DYCK 4725 Wisconsin Ave NW, Suite 200 Washington, DC 20016 Telephone: 202-789-3960 Facsimile: 202-789-1813 E-mail: [email protected][email protected]
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LITE DEPALMA GREENBERG, LLC JOSEPH DEPALMA SUSANA CRUZ HODGE 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623-3000 E-mail: [email protected][email protected]
STEPHENS & STEPHENS LLP CONRAD B. STEPHENS 505 South McClelland Street Santa Maria, CA 93454 Telephone: (805) 922-1951 E-mail: [email protected]
Attorneys for Plaintiffs
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