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Weaver v. Champion Petfoods USA Inc.

United States District Court, E.D. Wisconsin

July 1, 2019

SCOTT WEAVER, Plaintiff,


          J. P. Stadtmueller U.S. District Judge.

         1. INTRODUCTION

         Plaintiff filed this class action on December 18, 2018. (Docket #1). In the second amended complaint, Plaintiff's operative pleading, he alleges that Defendants misrepresented the presence of certain contaminants in their dog foods, to the detriment of a class of consumers who believed they were buying a premium product free of such impurities. (Docket #23). Similar allegations have been leveled against Defendants in other actions in this District and across the country. Defendants moved to dismiss the second amended complaint on April 4, 2019. (Docket #26). For the reasons stated below, Defendants' motion must be granted in part and denied in part.[1]


         Defendants have moved to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6). FRCP 12(b)(6) provides for dismissal of complaints which fail to state a viable claim for relief. Fed.R.Civ.P. 12(b)(6). In 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 [his] 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 his claim that would entitle him to the relief requested.” Enger v. Chicago Carriage Cab Corp., 812 F.3d 565, 568 (7th Cir. 2016).

         3. RELEVANT FACTS

         Accepting the truth of Plaintiff's well-pleaded allegations and drawing all reasonable inferences in his favor, the relevant facts are as follows. Defendants sell pet food under the Orijen and Acana brand names throughout the United States. (Docket #23 at 2). They tout their products as being of high quality, including that they are “biologically appropriate” and made from fresh, regionally-sourced ingredients. Id. According to Plaintiff, however, the pet foods are contaminated with harmful heavy metals, pentobarbital, a chemical used to euthanize animals, Bisphenol A (“BPA”), an industrial chemical which is “an endocrine disruptor, ” and non-regional and non-fresh ingredients. Id. at 3, 39.

         The products' packaging does not disclose the presence of these impurities, and Defendants do not test all of their products for such impurities. Id. at 6. Defendants nevertheless warrant, via the products' packaging, that they are selling a premium, healthy product. Id. at 6-9. Plaintiff claims that Defendants are hiding the existence and extent of contaminants in their products, and otherwise exaggerating or misrepresenting the quality of their products, to the detriment of Wisconsin consumers. Id. at 9. In other words, “Plaintiff was injured when he paid the purchase price or a price premium for the Contaminated Dog Foods that did not deliver what was promised.” Id. at 11.

         Plaintiff further alleges that the heavy metals and other chemicals listed above are potentially harmful to humans and pets. Id. at 31-39. This danger stands in contrast to Defendants' advertising for the products, which promotes the products' healthfulness and proximity to nature. Id. at 40-44. Plaintiffs also contend that Defendants falsely assert their compliance with European Union's standards for healthy pet food. Id. at 45-46. Plaintiff alleges that a reasonable consumer would have no reason to suspect, in light of Defendants' numerous representations of quality, that the products were contaminated or harmful in any way. Id. at 51-54. Those consumers would, therefore, be happy to pay a premium price for the products. Id.

         Plaintiff also alleges that Defendants should have expected consumers' reliance on their marketing statements, while simultaneously knowing that those statements were false. Id. at 55-57. Indeed, Plaintiff notes that Defendants' website asserts that they test their ingredients and final products for heavy metals, thus revealing an expectation that consumers would want to know such information. Id. at 34. Additionally, Plaintiff contends that privity exists between Defendants and consumers of their products because Defendants control where and how the products are sold, intend that consumers see their advertisements, and intend that consumers purchase the products. Id. at 58-59.

         4. ANALYSIS

         Plaintiff asserts five distinct claims for relief based on his core theory that Defendants' products are contaminated. Count One alleges a violation of the Wisconsin Deceptive Trade Practices Act (“WDTPA”), Wis.Stat. § 100.18(1), which prohibits false or misleading statements in the sale of goods to consumers. Id. at 62-65. Count Two states that Defendants have made, and breached, numerous express warranties to consumers. Id. at 65- 68. Count Three accuses Defendants of fraud by failing to disclose that their products are contaminated. Id. at 68-69. Count Four alleges negligence, and Count Five asserts that Defendants have been unjustly enriched. Id. at 69- 72.

         Defendants seek dismissal of each claim. (Docket #27). Other than agreeing to voluntarily dismiss the negligence claim in Count Four, (Docket #29 at 22), Plaintiff opposes Defendants' arguments. The Court will address each claim in turn. The Court notes that it recently dealt with nearly identical claims and arguments in Kellie Loeb v. Champion Petfoods USA Inc. et al., 18-CV-494-JPS (E.D. Wis.), in addressing both a motion to dismiss and a motion for summary judgment. See Loeb v. Champion Petfoods USA Inc., No. 18-CV-494-JPS, 2018 WL 2745254 (E.D. Wis. June 7, 2018) (hereinafter “Loeb I, ” deciding the motion to dismiss); Loeb v. Champion Petfoods USA Inc., 359 F.Supp.3d 597 (E.D. Wis. 2019) (hereinafter “Loeb II, ” deciding the motion for summary judgment). The passages below may, therefore, be somewhat duplicative of the Loeb decisions where appropriate.

         4.1 Count One - WDTPA

         The purpose of the WDTPA “is to deter sellers from making false and misleading representations in order to protect the public.” Novell v. Migliaccio, 749 N.W.2d 544, 550 (Wis. 2008). Toward that end, Section 100.18 prohibits the use of marketing statements for products or services which “contain[ ] any assertion, representation or statement of fact which is untrue, deceptive or misleading.” Wis.Stat. § 100.18(1). A cause of action pursuant to Section 100.18 requires proof of three elements: “(1) the defendant made a representation to the public with the intent to induce an obligation, (2) the representation was ‘untrue, deceptive or misleading,' and (3) the representation materially induced (caused) a pecuniary loss to the plaintiff.” Novell, 749 N.W.2d at 553.

         Understanding Plaintiff's instant claim requires a brief historical detour. In her complaint, Loeb alleged that Defendants violated the WDTPA by selling pet foods containing excessive or dangerous levels of heavy metals, which rendered false their advertisements of premium quality. Loeb I, 2018 WL 2745254, at *2. Defendants moved to dismiss the claim asserting, inter alia, that Loeb had failed to plead any standard by which one could assess whether the heavy metal concentrations were in fact excessive or dangerous. Id. at *5. The Court rejected this contention, concluding that Loeb's allegations stated a claim for relief, and that she was free to marshal evidence to support those allegations. Id. at *5-6.

         Defendants later sought summary judgment on Loeb's WDTPA claim. They offered expert testimony to the effect that the heavy metal levels in their products were neither dangerous nor excessive. Loeb II, 359 F.Supp.3d at 603-04. Loeb did not submit any evidence to contradict Defendants' expert. Id. The Court held that without such evidence, the WDTPA claim had to be dismissed. Id. In other words, Loeb had expressly tied her claim to the theory of excessive and dangerous heavy metal concentrations, but had failed to support that theory when the time came. Id. at 604.

         The Court emphasized that Loeb did not “plead a simpler form of her claim: that [Defendants' pet food] is misleadingly advertised as healthy because of mere presence of any heavy metals.” Id. She did not, the Court surmised, because that theory is “absurd.” Id. at 605 n.7. The Court explained:

If a WDTPA claim would lie whenever a product is marketed as healthful, but nevertheless contains naturally occurring heavy metals at levels not shown to be harmful, then in light of the data [showing that heavy metals exist in many consumer food products], consumers would have grounds to sue the manufacturer of nearly every product in a typical grocery store. True, [Loeb] need not show actual injury to herself or her pets. But she must at least offer some evidence of potential harm to establish a form of genuine deception on Defendants' part. Otherwise, every manufacturer ...

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