Wednesday, October 29, 2014

Case against allegedly contaminated jerky treats proceeds

In re Milo’s Dog Treats Consolidated Cases, 9 F.Supp.3d 523 (W.D. Pa. 2014)

The court adopted the magistrate judge’s recommendation to grant defendants’ motion to dismiss unjust enrichment claims, but to deny the motion as to the consumer protection and warranty claims in this dog jerky contamination case.

Plaintiff Funke sued on behalf of a class of purchasers of chicken and beef jerky dog treats from Milo’s Kitchen, owned by Del Monte.  She alleged that defendants misrepresented the quality of the treats, that they contained contaminants, and that after she fed the treats to her dog it became sick and ultimately had to be euthanized.  Among the allegedly false/misleading claims on the products’ packaging and associated websites: “100% Real—Wholesome and Delicious;” the ingredient list; “Milo’s Kitchen Home–Style Dog Treats are 100% real jerky, sausage slices, and meatballs;” each piece of Milo’s Kitchen Chicken Jerky “is made with whole fillets of 100% real jerky and the quality and care your dog deserves,” without any artificial chicken flavors or filler ingredients; and claims that their products comply with USDA, FDA and other food safety rules.

The FDA released numerous cautions to consumers about illness in dogs after consuming jerky treats made in China, as defendants’ were.  Defendants’ statements that neither the FDA nor the American Veterinarian Medical Association have been able to identify the cause of the illnesses or a connection between the illnesses and the jerky treats and that no contaminants have been found despite extensive testing were allegedly deceptive.  Funke further alleged that Milo’s safety process was deficient and that the FDA investigation failing to detect contaminants was fundamentally flawed.  Moreover, defendants allegedly failed to respond adequately once the contamination was found.

Funke brought the usual statutory California claims.  Defendants argued that the alleged misrepresentations were mere puffery.  Along with those listed above, plaintiff identified other alleged misrepresentations: that defendants started making Milo’s Kitchen dog treats because they believed dogs deserve treats made with the same quality of ingredients and care that their owners want in their food; the jerky treats are good for pets; and dogs deserve only the best with your food and deserve to enjoy snacks that not only look like jerky, sausage slices and meatballs, but actually are 100% real jerky, sausage slices and meatballs.

Other than the statements about defendants’ motivations for making the treats and the claim that they’re “good for pets,” each of these appeared verifiable and sufficiently specific to induce reliance. Moreover, even the statements that were puffery standing alone could contribute to the deceptive context of the packaging as a whole.

Funke also satisfied Rule 9(b) by alleging that defendants “engaged in a continuous course of conduct since 2007 (the when), whereby they have made misrepresentations on the jerky treat packaging and on their websites (the where), that their products are wholesome, safe, and that they otherwise have characteristics and qualities that they do not have which is likely to mislead the public (the what), and that these misrepresentations are false because many of the packages of jerky treats contain contaminants (the how).”  Funke also adequately alleged reliance.

Plaintiff Ruff’s claims fared similarly.  (Her dog also died.)  She challenged similar claims, including statements that the product is “100% REAL”; that it was made with “the quality and care your dog deserves”; and that the jerky treats are “wholesome natural treats.”  She also challenged Milo’s response to the FDA’s warnings as misleadingly downplaying the evidence and failing to warn consumers of the dangers.  She contended that neither she nor any reasonable person would have bought the jerky treats if they had known of the material risk of serious harm to their pets.  Along with the usual California claims, she alleged negligence and strict product liability.

The court found that Ruff adequately alleged a defect and proximate cause.  While an accident alone isn’t sufficient to prove a defect, defects can be alleged by circumstantial evidence such as that present here: Ruff bought a package of treats which she fed to her healthy dog; with no other material changes to its diet, it fell ill; it died from kidney failure within one week of consuming the treats; since Nov. 2011, the FDA has logged over 900 reports of illness and death from kidney failure in pets after consumption of jerky treats.

The court also found that Ruff could represent a nationwide class for her California UCL and CLRA claims, even though she wasn’t a California resident.  California law may be applied when the defendant is a California corporation, as here, and some or all of the alleged misconduct emanated from California, as alleged here, where Ruff pled that California was the headquarters for Del Monte’s US marketing and that the California location provides all customer support and makes all corporate decisions regarding marketing.  She could also bring a North Carolina UDTPA claim, because she lived there.

Ruff’s Magnuson-Moss Warranty Act claims for breach of the implied warranty of merchantability survived even though there was no privity.  The rule requiring privity has an exception for “foodstuffs,” and there was no reason to limit that exception to human food.

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