United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
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.
STANDARD OF REVIEW
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).
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.
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.
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.
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.
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.
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
Count One - WDTPA
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.
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.
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.
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
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 ...