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Simpson v. Champion Petfoods USA, Inc.

United States District Court, E.D. Kentucky, Northern Division, Covington

June 21, 2019



          William O. Bertelsman, United States District Judge.

         This 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 inclusion.”

         Plaintiffs 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 § 355.2-313
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

         On 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.

         For the reasons that follow, Defendants' motion to dismiss will be granted in part and denied in part.


         Defendant 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).

         Champion's 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.

         A. Representations on the Package Label

         Orijen 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, ¶ 13).[1]

         On the 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.[2]

         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).

         B. Allegations as to the Falsity of Champion's Representations

         Plaintiffs 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).[3]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.

         Notwithstanding, 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”[4] 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.[5] 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).

         Second, 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”;[6] 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).

         Lastly, 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.

         In 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.


         The 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 (2007).

         A 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).

         On a 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, 678-81 (2009).

         Accordingly, “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)).


         I. Materials Properly Before the Court

         On a 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).

         Here, 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).

         “While 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).

         Therefore, 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”).

         By 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).

         II. Champion's Motion to Dismiss

         The parties evidently agree that Kentucky law applies to Plaintiff Simpson's claims and Virginia law applies to Plaintiff Lolles' claims.[7] 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).

         In this 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.

         A. The Kentucky Consumer Protection Act (“KCPA”) (Count I)

         In 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).

         The 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 § 367.220(1).[8]

         Champion 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.

         Skilcraft is the seminal Kentucky case interpreting the scope of KRS ยง 367.220. ...

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