United States District Court, E.D. Kentucky, Northern Division, Covington
TRACY SIMPSON ET AL. PLAINTIFFS
CHAMPION PETFOODS USA, INC. ET AL. DEFENDANTS
MEMORANDUM OPINION AND ORDER
William O. Bertelsman, United States District Judge.
proposed class action involves alleged misrepresentations on
the package labeling for dog food. Plaintiffs allege in
particular that Defendant Champion Petfoods, Inc.
misrepresented the quality of its premium dry dog food by
labeling it as containing “fresh, raw, or dehydrated
ingredients” that are “regional” and
“deemed fit for human consumption prior to
assert the following six (6) counts:
Count I: Violation of the Kentucky Consumer Protection Act,
KRS § 367.120 et seq.
Count II: Violation of the Virginia Consumer Protection Act
of 1977, Va. Code § 59.1-196 et seq.
Count III: Breach of express warranty under Kentucky law, KRS
Count IV: Breach of express warranty under Virginia law, Va.
Code § 8.2-313 Count
V: Breach of implied warranty
Count VI: Fraudulent omission
Count VII: Unjust enrichment
January 8, 2019, this Court heard oral argument on
Defendants' first motion to dismiss. At the end of the
hearing, Plaintiffs' counsel made an oral request to
amend the complaint. (Doc. 26). That request was granted.
This matter is now before the Court on Defendants' motion
to dismiss the amended complaint (Doc. 32). The Court
dispenses with oral argument at this stage because the
materials before it adequately present the facts and legal
contentions, and argument would not aid the decisional
process. Accordingly, the matter is ripe for disposition.
reasons that follow, Defendants' motion to dismiss will
be granted in part and denied in part.
AND PROCEDURAL BACKGROUND
Champion Petfoods LP owns and controls Defendant Champion
Petfoods USA, Inc. (collectively “Champion”).
Champion manufactures, markets, and sells premium-priced dog
food throughout the United States, including in Kentucky and
Virginia, where, respectively, Plaintiff Tracy Simpson and
Danika Lolles purchased Champion's dog food from various
third-party pet food stores. (Doc. 29, ¶¶ 6-11).
dry dog food products are sold under two brand names:
“Orijen” and “Acana, ” both of which
contain substantially similar representations on the package
label. Id. at ¶¶ 1, 11, 15.
Representations on the Package Label
Original is labeled on the front of the package as
“BIOLOGICALLY APPROPRIATE™ DOG FOOD, ” a
purported trademark phrase. (Doc. 32-2 at 1); (Doc. 29,
back of the package, featured prominently under the caption
“TRUSTED EVERYWHERE, ” it reads:
ORIJEN IS THE FULLEST EXPRESSION OF OUR BIOLOGICALLY
APPROPRIATE™ AND FRESH REGIONAL INGREDIENTS COMMITMENT.
ORIJEN ORIGINAL features 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, so they're
bursting with goodness and taste.
(Doc. 32-2 at 2) (emphasis in original); (Doc. 29, ¶
13). The package label also represents that Orijen contains
“NO RENDERED POULTRY, FISH OR MEAT MEALS, ” and
instead, “features richly nourishing ratios of poultry,
organs and cartilage” and “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.” (Doc. 32-2 at 1-2) (emphasis added);
(Doc. 29, ¶ 13). Although these statements speak in
general terms, consumers are invited to “[r]ead [the]
ingredients” in the list conspicuously printed on the
package further represents the origin of the product
ingredients. Under the heading “FRESH REGIONAL
INGREDIENTS” it states: “GROWN CLOSE TO HOME - We
focus on local ingredients that are ethically raised by
people we know and trust, and delivered to our kitchens fresh
or raw each day.” (Doc. 32-2 at 2); (Doc. 29, ¶
13). This theme is reinforced by two similar statements: (a)
“INGREDIENTS WE LOVE FROM PEOPLE WE KNOW AND
TRUST”; and (b) “FRESH OR RAW INGREDIENTS FROM
LOCAL FARMS AND WATERS.” (Doc. 32-2 at 2); (Doc. 29,
¶ 13). In the same vein, under the heading “NEVER
OUTSOURCED, ” the label notes that the product is
“PREPARED EXCLUSIVELY IN OUR DOGSTAR KITCHENS - We
don't make foods for other companies and we don't
allow our foods to be made by anyone else.” (Doc. 32-2
at 2); (Doc. 29 at 7). And more particularly, “MADE IN
OUR USA KENTUCKY KITCHENS” is printed on the package.
(Doc. 32-2 at 1-2); (Doc. 29, ¶ 13).
Allegations as to the Falsity of Champion's
allege that Champion's representations are false and
deceptive. First, Plaintiffs claim Champion's products
contain “high levels of heavy metals.” (Doc. 29,
¶ 25). As factual backing for this assertion, Plaintiffs
reference Champion's own public disclosure, the
“White Paper, ” and include a table from that
publication listing the average concentration of arsenic,
lead, cadmium, and mercury in the finished
product of Acana and Orijen Original. (Doc. 29,
¶ 25); (Doc. 32-1 at 2).Plaintiffs' version of the
table omits the column that purports to provide the maximum
tolerable limits (“MTLs”) set by the Food and
Drug Administration (“FDA”) and the National
Research Council (“NRC”)-which indicates that the
heavy metals in Champion's products are substantially
below the MTLs.
Plaintiffs aver that the reported concentrations of these
metals “are excessive, ” “not suitable for
consumption by humans and are not of the quality represented
to consumers, ” and therefore “render
Champion's representations . . . false and
misleading.” (Doc. 29, ¶¶ 26, 30). In
support, Plaintiffs cite to the FDA's “Total Diet
Study” and include a table with figures from the
study indicating the concentration of the heavy metals found
in chicken, turkey, and eggs consumed by humans. Id.
at ¶ 28. The table, however, omits fish, which
according to the package label, constitutes 2.5 pounds of the
11 pounds of “fresh, raw, or dehydrated animal
ingredients” in a 13-pound bag of Orijen Original.
Id.; (Doc. 32-2 at 2).
Plaintiffs allege that Champion's products: (1) are
“made primarily from animal byproducts”; (2)
“contain ingredients of an inferior quality than those
represented” and that Champion “knowingly uses
expired ingredients”; (3) include ingredients that are
“heavily processed”; (4) contain “meal
ingredients and fats” obtained from “unsanitary
pet food rendering facilities around the world” or
rendering facilities that also process “animals that
died by means other than slaughter and diseased or spoiled
meats”; (5) contain “a variety of ingredients
that are frozen”; (6) “routinely” include
“‘regrinds' (i.e., items that were
not fit to be sold after their original preparation)”;
(7) are “contaminated with excessive quantities of hair
(for one ingredient, Champion's own specification allows
for 30 grams per pound to consist of hair), insects, plastic
ear tags from livestock, feathers, and bones”; (8) lack
“nutritious muscle meats” and instead
“include cartilage, bone, [and] filtering
organs”; and (9) incorporate ingredients that
arrive with bills of lading designating it as
“INEDIBLE” and “NOT FOR HUMAN
CONSUMPTION.” (Doc. 29, ¶¶ 2, 16-17, 21-24).
Plaintiffs allege Champion misrepresented that it uses
“regional” ingredients from “PEOPLE WE
TRUST.” Id. at ¶¶ 2, 18-19.
Plaintiffs aver this is false because: (1) Champion
“imports most of its ingredients from outside the
Commonwealth of Kentucky, ” a “substantial
portion” of which “are imported from outside the
United States and from as far away as New Zealand, Morocco,
Denmark, and Peru, ” and “the few ingredients
Champion sources from Kentucky are first shipped over 1, 000
miles away to New Bedford, Massachusetts for further
processing before being shipped to Champion's Kentucky
facility”; and (2) Champion obtains the ingredients it
uses “through a complex, convoluted supply chain where
Champion may be unaware of the origin of the
ingredient.” Id. at ¶¶ 2, 18-19.
short, Plaintiffs allege that contrary to the package
labeling, the “ingredients” prior to inclusion in
Champion's products “are not suitable for
consumption by humans and are not of the quality represented
to consumers.” Id. at ¶¶ 21, 30.
According to Plaintiffs, their injury stems from the fact
that they believed Champion's products were
“healthy, quality product[s] for [their] pet[s],
” and they paid a premium price they would not have
paid had they been aware of the alleged facts pertaining to
Champion's products. Id. at ¶¶ 3, 6-7.
They seek compensation for their loss and classwide treatment
for the thousands of estimated class members in Kentucky and
Virginia. Id. at ¶¶ 31, 33.
Federal Rules of Civil Procedure require that pleadings,
including complaints, contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this
requirement, a complaint must contain enough facts “to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
complaint may be deficient for failure “to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). Even though a “complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citations omitted).
Rule 12(b)(6) motion to dismiss, “all factual
allegations in the complaint must be presumed to be
true” and the court must draw all “reasonable
inferences” in favor of the non-moving party. Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross &
Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citation
omitted); Erickson v. Pardus, 551 U.S. 89, 94
(2007). To that end, a court must judge the sufficiency of a
complaint under a two-pronged approach: (1) disregard all
“legal conclusions” and “conclusory
statements”; and (2) determine whether the remaining
“well-pleaded factual allegations, ” accepted as
true, “plausibly give rise to entitlement to
relief.” Ashcroft v. Iqbal, 556 U.S. 662,
“only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Iqbal,
556 U.S. at 679 (citing Twombly, 550 U.S. at 556). A
claim becomes plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. at 678. That is, the
plaintiff's “[f]actual allegations must be enough
to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S.
at 555 (internal citations omitted). If, from the
well-pleaded facts, the court cannot “infer more than
the mere possibility of misconduct, the complaint has
alleged-but has not ‘show[n]'-‘that the
pleader is entitled to relief.'” Iqbal,
556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
Materials Properly Before the Court
motion to dismiss, materials outside the pleadings are
generally not considered. Fed. Rule Civ. P. 12(d);
Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673,
680 (6th Cir. 2011). But “a court may consider exhibits
attached to the complaint, public records, items appearing in
the record of the case, and exhibits attached to
defendant's motion to dismiss, so long as they
are referred to in the complaint and are central to the
claims contained therein, without converting the
motion to one for summary judgment.” E.g.,
Stein v. hhgregg, Inc., 873 F.3d 523, 528 (6th Cir.
2017) (emphasis added) (citation omitted). Put simply,
“if a plaintiff references or quotes certain documents,
or if public records refute a plaintiff's claim, a
defendant may attach those documents to its motion to
dismiss, and a court can then consider them in resolving the
Rule 12(b)(6) motion . . . Fairness and efficiency require
this practice.” In re Omnicare, Inc. Sec.
Litig., 769 F.3d 455, 466 (6th Cir. 2014).
the White Paper published by Champion, the FDA Diet Study,
and the package label are referenced in the First Amended
Complaint (the “Complaint”) and are central to
Plaintiffs' claims. (Doc. 29, ¶¶ 13-15, 25-28;
id. at 11 n.1). That Plaintiffs did not attach these
documents as exhibits to the Complaint is irrelevant.
Stein, 873 F.3d at 528 (plaintiff's failure to
attach compensation policy to complaint did not preclude its
consideration in resolving Rule 12(b)(6) motion because it
was “central to plaintiffs' case” in that it
was referenced in the complaint).
documents integral to the complaint may be relied upon, even
if they are not attached or incorporated by reference, it
must also be clear that there exist no material disputed
issues of fact regarding the relevance of the
document.” Ouwinga v. Benistar 419 Plan
Servs., 694 F.3d 783, 797 (6th Cir. 2012) (citation and
internal quotation marks omitted). Plaintiffs do not dispute
the validity of the White Paper. But, “[o]ther than the
raw numbers, ” Plaintiffs do dispute the statements and
MTLs in the White Paper. (Doc. 35 at 6-7).
the Court may not consider information in the White Paper
beyond the data included in the Complaint. Mediacom
Southeast LLC v. BellSouth Telcoms., Inc., 672 F.3d 396,
399 (6th Cir. 2012) (court could not refer to the settlement
agreement even though it was referred to in the complaint
because the parties disputed the “factual
contents” of the settlement agreement and “[i]t
would seem improper for the district court to credit the
factual recitations in the agreement-a self-serving document
drafted by the defendant . . . and to thus reject the
well-pleaded facts in the complaint”); Burns v.
United States, 542 Fed.Appx. 461, 466 (6th Cir. 2013)
(plaintiff disputed “the validity of the statements in
the document relied upon by Defendant”).
contrast, there is no dispute as to the factual contents of
the package label or the validity of the FDA Diet study. As
such, these documents are properly before the Court and may
be considered. Therefore, in deciding Champion's motion,
if the allegations of the Complaint are “contradicted
by documents attached to or necessarily implicated by the
pleadings, the latter controls over the former and a Rule
12(b)(6) dismissal may be based on the documents.”
See, e.g., 2 James Wm. Moore et al., Moore's
Federal Practice § 12.34(2) (Matthew Bender 3d ed. 2018)
(emphasis added) [hereinafter “Moore's”];
Kreipke v. Wayne State Univ., 807 F.3d 768, 782 (6th
Cir. 2015) (written instrument contradicted allegations in
complaint and court considered attachment as trumping
allegations), cert. denied, 137 S.Ct. 617 (2017).
Champion's Motion to Dismiss
parties evidently agree that Kentucky law applies to
Plaintiff Simpson's claims and Virginia law applies to
Plaintiff Lolles' claims. But there is no constitutional
problem “in applying [another state's] law if it is
not in conflict with that of any other jurisdiction connected
to this suit.” Phillips Petroleum Co. v.
Shutts, 472 U.S. 797, 816 (1985) (citation omitted).
matter, the privity requirement is the only real difference
between Virginia and Kentucky law. Otherwise, there is no
conflict. As such, the sufficiency of Simpson's and
Lolles' claims will be evaluated, respectively, under
Kentucky and Virginia law where the claim asserted implicates
the privity requirement.
The Kentucky Consumer Protection Act (“KCPA”)
Count I, Simpson alleges Champion violated the KCPA, KRS
§ 367.120 et seq., by virtue of the alleged
misrepresentations on Champion's product labels. (Doc.
29, ¶¶ 39-50).
KCPA was enacted “to give Kentucky consumers the
broadest possible protection for allegedly illegal
acts.” Stevens v. Motorists Mut. Ins. Co., 759
S.W.2d 819, 821 (Ky. 1988). It prohibits
“[unconscionable], false, misleading, or deceptive acts
or practices in the conduct of any trade or commerce.”
KRS § 367.170. To that end, the KCPA provides a private
right of action for any person who (1) purchases or leases
goods or services (2) for personal, family or household
purposes and (3) is injured as a result of a seller's
prohibited practice or act. KRS §
argues that the KCPA requires privity. (Doc. 32 at 12-14).
Plaintiffs disagree and cite to a handful of federal district
court cases. (Doc. 35 at 10). The Court agrees with Champion.
“An action under the KCPA requires privity of contract
between the parties.” PNC Bank, N.A. v.
Merenbloom, Nos. 15-6361, 16-5277, 2017 WL 3973962, at
*3 (6th Cir. June 16, 2017) (citing Skilcraft Sheetmetal,
Inc. v. Ky. Mach., Inc., 836 S.W.2d 907, 909 (Ky. Ct.
App. 1992)). Simpson's KCPA claim therefore fails because
she lacks privity with Champion.
is the seminal Kentucky case interpreting the scope of KRS
§ 367.220. ...