United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
filed this class action on March 28, 2018. (Docket #1). She
alleges that she and her fellow class members purchased
Defendants' dog foods because Defendants advertise them
as high-quality products which contain ingredients fit for
human consumption. This latter assertion is, of course,
merely an advertising ploy-people are not expected to eat the
dog food. Nevertheless, Plaintiff maintains that
Defendants' representations of quality are false, because
the dog food contains high levels of poisonous heavy metals.
Defendants moved to dismiss Plaintiff's complaint on
April 13, 2018, for failure to state any viable claims for
relief and lack of constitutional standing on Plaintiff's
part. (Docket #8). The motion is now fully briefed, and for
the reasons stated below, it must be granted in part and
denied in part.
STANDARD OF REVIEW
have moved to dismiss Plaintiff's complaint pursuant to
Federal Rules of Civil Procedure (“FRCP”)
12(b)(1) and (6). FRCP 12(b)(1) allows for dismissal of
actions over which the Court lacks subject-matter
jurisdiction. Fed.R.Civ.P. 12(b)(1). This includes cases in
which the plaintiff lacks standing. Am. Civil Liberties
Union of Ill. v. Alvarez, 679 F.3d 583, 588, 590-91 (7th
Cir. 2012). FRCP 12(b)(6) provides for dismissal of
complaints which fail to state a viable claim for relief.
reviewing Plaintiff's complaint, the Court is required to
“accept as true all of the well-pleaded facts in the
complaint and draw all reasonable inferences in [her]
favor[.]” Kubiak v. City of Chicago, 810 F.3d
476, 480-81 (7th Cir. 2016) (citation omitted). To state a
viable claim, a complaint must provide “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). In other
words, the complaint must give “fair notice of what the
. . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). The allegations must “plausibly
suggest that the plaintiff has a right to relief, raising
that possibility above a speculative level[.]”
Kubiak, 810 F.3d at 480 (quotation omitted).
Ultimately, dismissal is only appropriate “if it
appears beyond doubt that the plaintiff could prove no set of
facts in support of [her] claim that would entitle [her] to
the relief requested.” Enger v. Chicago Carriage
Cab Corp., 812 F.3d 565, 568 (7th Cir. 2016).
the truth of Plaintiff's well-pleaded allegations and
drawing all reasonable inferences in her favor, the relevant
facts are as follows. Defendants sell dog food under the
Orijen and Acana brand names throughout the United States.
(Docket #1 at 3). Plaintiff has purchased Orijen repeatedly
for her dogs and did so as recently as March 2018.
Id. at 2. Both brands are far more expensive than
other kinds of dog food, but Plaintiff bought Orijen in
reliance on its advertised quality. Id. at 1-3.
packaging for both products offers representations of their
high quality. Id. at 3-4. Defendants claim that they
provide “The World's Best Petfood.”
Id. at 3. Orijen is touted as “the fullest
expression of our biologically appropriate and fresh regional
ingredients commitment, ” containing “unmatched
inclusions of free-run poultry, wild-caught fish and whole
nest-laid eggs-sustainably farmed or fished in our region and
delivered daily, fresh or raw and preservative-free.”
Id. Orijen further claims that it “features
fresh, raw or dehydrated ingredients from minimally processed
poultry, fish and eggs that are deemed fit for human
consumption prior to inclusion in our foods.”
Id. Similarly, Acana is “bursting with richly
nourishing meat and protein from free-run chicken, whole,
nest-laid eggs and wild-caught flounder-all delivered fresh
from our region so they're loaded with goodness and
taste.” Id. at 4. As with Orijen, Acana is
made “from poultry, fish and eggs passed fit for human
asserts that, contrary to Defendants' representations,
the products are not of high quality. Id. Rather,
they contain “excessive” and
“dangerous” levels of arsenic, lead, cadmium, and
mercury, rendering them unfit for human consumption.
Id. at 4-5. Plaintiff claims that these heavy metals
can cause severe health problems for dogs. Id. at 5.
Further, because “[h]eavy metals tend to accumulate in
dogs and other animals, . . . long-term exposure to even
small quantities of heavy metals can cause deleterious health
discovered the heavy metal levels in the products by
reference to a white paper published by Defendants themselves
(the “White Paper”). Id. at 4; (Docket
#10). A “white paper” is a marketing tool used to
promote a product or service, usually founded on some
empirical data. Defendants' White Paper, essentially a
four-page pamphlet, sets forth the results of some
third-party studies conducted on the heavy metal levels in
Orijen and Acana. Id. The White Paper discloses the
arsenic, lead, cadmium, and mercury concentrations found in
the dog foods and explains how those are well below dangerous
cites the FDA's “Total Diet Study, ”
published in April 2014 and revised in April 2017, in an
effort to contradict the White Paper's conclusions (the
“Study”). According to the Study, poultry, fish,
and eggs meant for human consumption have on average far
lower levels of heavy metals than those found in
Defendants' products. (Docket #1 at 4-5). This is
important for Orijen and Acana because both are primarily
composed of allegedly contaminated meat and eggs.
Id. at 4.
generally alleges that Defendants' marketing is both
false and misleading, and that she and the class members
acted in reliance on Defendants' representations in
paying a premium for the dog food. She brings specific claims
in five counts. Count One is for violation of the Wisconsin
Deceptive Trade Practices Act (“WDTPA”). (Docket
#1 at 8). As the name implies, the WDTPA prohibits untrue or
deceptive advertisements. Wis.Stat. § 100.18(1). Count
Two is nearly identical, contending that Defendants'
false statements violate Wisconsin Administrative Code §
ATCP 90.02, which governs consumer product packaging. (Docket
#1 at 8-9). If true, this would entitle Plaintiff to damages
under the Wisconsin Unfair Trade Practices Act
(“WUTPA”). Wis.Stat. § 100.20(5). Counts
Three and Four are for breach of express and implied
warranties. (Docket #1 at 9-11). Count Five asserts that
Defendants have been unjustly enriched by their deceptive
marketing scheme. Id. at 12.
Court's first concern is with the material by which
Defendants' motion, and Plaintiff's complaint, should
be assessed. Normally, this would be only the allegations of
the complaint. E.E.O.C. v. Concentra Health Servs.,
Inc., 496 F.3d 773, 776 (7th Cir. 2007). However,
Defendants assert that the White Paper demonstrates the
implausibility of Plaintiff's allegations, and thus the
propriety of dismissing this action. See, e.g.,
(Docket #9 at 11-15). When a defendant offers arguments in
support of a motion to dismiss which go beyond the
complaint's allegations, a court has two options: 1)
ignore the outside materials; or 2) if it wants to consider
the documents in deciding the motion, the court must convert
the motion to one for summary judgment and allow the
plaintiff adequate time to conduct discovery to prepare a
response. Fed.R.Civ.P. 12(d).
maintain that the Court need not convert their motion to a
summary judgment posture in light of an exception to FRCP
12(d)'s otherwise clear command. The Seventh Circuit has
long held that “[d]ocuments that a defendant attaches
to a motion to dismiss are considered part of the pleadings
if they are referred to in the plaintiff's complaint and
are central to her claim.” Venture Assoc. Corp. v.
Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.
1993). The White Paper is indeed referenced by
Plaintiff's complaint and, at least at this stage,
appears to be central to her claims.
fail to account, however, for the final requirement of this
doctrine. The document in question must be “concededly
authentic” and “prove that [Plaintiff's]
claim ha[s] no merit.” Tierney v. Vahle, 304
F.3d 734, 738 (7th Cir. 2002); Bogie v. Rosenberg,
705 F.3d 603, 609 (7th Cir. 2013) (“When an exhibit
incontrovertibly contradicts the allegations in the
complaint, the exhibit ordinarily controls, even when
considering a motion to dismiss.”) (emphasis added).
Defendants, heedless of this rule, rest their position on the
assumption that the White Paper not only conflicts with, but
indisputably proves the meritlessness of
Plaintiff's allegations. For example, in their opening
brief, Defendants argue:
[A]s explained in detail in the White Paper and set forth
more fully below, Champion's products are anything but
dangerous. In the White Paper, Champion disclosed that its
products contain arsenic, cadmium, lead, and mercury, which
are all from natural sources. In fact, as discussed in the
White Paper, any pet food made from natural sources will have
some levels of heavy metals such as arsenic, cadmium, lead,
and mercury because these metals are naturally present ...