Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 1 of 68
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` 
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`
`Civil Action No.:
`
`SAMANTHA JERDING, individually and
`on behalf of a class of similarly situated
`individuals,
`
`
`
`
`CHAMPION PETFOODS USA, INC. and
`CHAMPION PETFOODS LP,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`Plaintiff,
`
`Defendants,
`
`
`CLASS ACTION COMPLAINT
`
`
`
`
`
`
`
`
`532424.1
`
`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 2 of 68
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`1.
`
`Plaintiff Samantha Jerding, individually and on behalf of all others similarly
`
`situated, by and through her undersigned attorneys, bring this Class Action Complaint against
`
`Defendants Champion Petfoods USA, Inc. and Champion Petfoods LP ("Defendants"), for their
`
`negligent, reckless, and/or intentional practice of misrepresenting and failing to fully disclose the
`
`presence of heavy metals and toxins in their pet food sold throughout the United States. Plaintiff
`
`seeks both injunctive and monetary relief on behalf of the proposed Class (defined below),
`
`including requiring full disclosure of all such substances in its marketing, advertising, and labeling
`
`and restoring monies to the members of the proposed Class. Plaintiff alleges the following based
`
`upon personal knowledge as well as investigation by her counsel and as to all other matters, upon
`
`information and belief. Plaintiff believes that substantial evidentiary support will exist for the
`
`allegations set forth herein after a reasonable opportunity for discovery.
`
`DEFENDANTS MARKET THEMSELVES AS ONLY SELLING PREMIUM DOG FOOD
`WITH THE SIMPLE MISSION OF "TO BE TRUSTED BY PET LOVERS"
`
`2.
`
`Defendants manufacture, market, advertise, label, distribute, and sell pet food under
`
`the brand names Acana and Orijen throughout the United States, including in this District.
`
`3.
`
`Defendants have created a niche in the pet food market by "making biologically
`
`'appropriate' pet food- as close to what animals would eat in nature as possible- and producing it
`
`using fresh, natural ingredients…" They then charge a premium for this purportedly higher-quality
`
`- 1 -
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`

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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 3 of 68
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`food. The founder of the company, Peter Muhlenfeld, said, "Our core family beliefs are []
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`entrenched in the company, and that is to make the very best food."1
`
`4.
`
`Defendants tout that "Biologically Appropriate™ ORIJEN represents a new class of
`
`food, designed to nourish dogs and cats according to their evolutionary adaptation to a diet rich
`
`and diverse in fresh meat and protein[]" and that it is "trusted by pet lovers everywhere."2
`
`5.
`
`Defendants' packaging and labels further emphasize fresh, quality, and properly
`
`sourced ingredients and even declares its dog food has "ingredients we love":
`
`
`
`                                                            
`1 The Globe and Mail, "How once-tiny pet-food maker took a bite of the global market," Jan. 16,
`2018,https://www.theglobeandmail.com/report-on-business/small-business/canadian-
`powerhouse-export-your-dog-is-eating-it/article37605774/ (last visited Feb. 6, 2018).
`
`2 https://www.orijen.ca/us/
`
`- 2 -
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`

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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 4 of 68
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`6.
`
`Yet nowhere in the labeling, advertising, statements, warranties and/or packaging
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`do Defendants disclose that the Contaminated Pet Foods (defined herein) contain levels of arsenic,
`
`mercury, lead, cadmium and/or BISPHENOL A ("BPA") — all known to pose health risks to
`
`humans and animals, including dogs:3
`
`arsenic ug
`per kg
`3256.40
`
`bpa ug per
`kg
`32.50
`
`cadmium ug
`per kg
`113.00
`
`mercury ug
`per kg
`51.20
`
`lead ug per
`kg
`249.30
`
`3169.80
`
`39.50
`
`200.50
`
`54.90
`
`Product
`Name
`Acana
`Regionals
`Wild Atlantic
`New England
`Fish and
`Fresh Greens
`Dry Dog
`Food
`Orijen Six
`Fish With
`New England
`Mackerel,
`Herring,
`Flounder,
`Redfish,
`Monkfish,
`Silver Hake
`Dry Dog
`Food
`Orijen
`Original
`Chicken,
`Turkey,
`Wild-Caught
`Fish, Eggs
`Dry Dog
`Food
`Orijen
`Regional Red
`Angus Beef,
`Boar, Goat,
`                                                            
`3 All the below pet food collectively is referred to as the "Contaminated Dog Foods."
`
`38.70
`
`489.80
`
`167.70
`
`907.60
`
`0.00
`
`93.20
`
`10.80
`
`849.40
`
`43.60
`
`123.10
`
`21.40
`
`- 3 -
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`

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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 5 of 68
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`
`Product
`Name
`Lamb, Pork,
`Mackerel Dry
`Dog Food
`Acana
`Regionals
`Meadowland
`with Poultry,
`Freshwater
`Fish and Eggs
`Dry Dog
`Food
`Acana
`Regionals
`Appalachian
`Ranch with
`Red Meats
`and
`Freshwater
`Catfish Dry
`Dog Food
`Acana
`Regionals
`Grasslands
`with Lamb,
`Trout, and
`Game Bird
`Dry Dog
`Food
`Orijen
`Regional Red
`Angus Beef,
`Ranch Raised
`Lamb, Wild
`Boar, Pork,
`Bison Dry
`Dog Food
`Acana
`Singles Duck
`and Pear
`Formula Dry
`Dog Food
`
`arsenic ug
`per kg
`
`bpa ug per
`kg
`
`cadmium ug
`per kg
`
`mercury ug
`per kg
`
`lead ug per
`kg
`
`846.40
`
`82.70
`
`37.50
`
`8.70
`
`489.00
`
`358.20
`
`82.90
`
`32.50
`
`14.90
`
`336.70
`
`262.80
`
`0.00
`
`30.60
`
`9.60
`
`305.00
`
`1066.50
`
`37.70
`
`62.10
`
`21.70
`
`138.50
`
`523.40
`
`102.70
`
`30.90
`
`15.40
`
`537.40
`
`- 4 -
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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 6 of 68
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`
`Product
`Name
`Acana
`Singles Lamb
`and Apple
`Formula Dry
`Dog Food
`Acana
`Heritage
`Free-Run
`Poultry
`Formula Dry
`Dog Food
`Acana
`Heritage
`Freshwater
`Fish Formula
`Dry Dog
`Food
`Orijen
`Tundra
`Freeze Dried
`Venison, Elk,
`Bison, Quail,
`Steelhead
`Trout Wet
`Dog Food
`Orijen Adult
`Dog Freeze
`Dried
`Chicken,
`Turkey,
`Wild-Caught
`Fish, Eggs
`Wet Dog
`Food
`Orijen
`Regional Red
`Freeze Dried
`Angus Beef,
`Ranch Raised
`Lamb, Wild
`Boar, Pork,
`
`arsenic ug
`per kg
`401.20
`
`bpa ug per
`kg
`73.20
`
`cadmium ug
`per kg
`35.00
`
`mercury ug
`per kg
`3.20
`
`lead ug per
`kg
`423.40
`
`292.90
`
`62.20
`
`27.80
`
`3.30
`
`290.20
`
`977.70
`
`0.00
`
`56.20
`
`27.40
`
`486.80
`
`23.13
`
`6.02
`
`27.64
`
`5.35
`
`12.26
`
`23.21
`
`13.41
`
`7.74
`
`9.45
`
`7.33
`
`102.66
`
`0.00
`
`23.40
`
`19.60
`
`16.85
`
`- 5 -
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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 7 of 68
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`
`Product
`Name
`Bison Wet
`Dog Food
`Orijen
`Regional Red
`Angus Beef,
`Ranch Raised
`Lamb, Wild
`Boar, Pork,
`Bison Dry
`Dog Food
`Orijen Six
`Fish Wild-
`Caught
`Regional
`Saltwater and
`Freshwater
`Fish Dry Dog
`Food
`Orijen
`Tundra Goat,
`Venison,
`Mutton,
`Bison, Arctic
`Char, Rabbit
`Dry Dog
`Food
`Orijen Grain
`Free Puppy
`Chicken,
`Turkey,
`Wild-Caught
`Fish, Eggs
`Dry Dog
`Food
`Acana
`Singles
`Mackerel and
`Greens
`Formula Dry
`Dog Food
`
`arsenic ug
`per kg
`
`bpa ug per
`kg
`
`cadmium ug
`per kg
`
`mercury ug
`per kg
`
`lead ug per
`kg
`
`1066.50
`
`37.70
`
`62.10
`
`21.70
`
`138.50
`
`2173.90
`
`39.70
`
`92.20
`
`58.80
`
`55.10
`
`1628.50
`
`40.30
`
`134.50
`
`43.60
`
`471.80
`
`791.20
`
`32.20
`
`87.20
`
`12.20
`
`490.80
`
`1510.70
`
`40.10
`
`112.20
`
`29.60
`
`251.10
`
`- 6 -
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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 8 of 68
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`
`
`Product
`Name
`Acana
`Heritage
`Meats
`Formula Dry
`Dog Food
`Acana
`Singles Pork
`and Squash
`Formula Dry
`Dog Food
`
`arsenic ug
`per kg
`384.80
`
`bpa ug per
`kg
`58.30
`
`cadmium ug
`per kg
`24.40
`
`mercury ug
`per kg
`6.40
`
`lead ug per
`kg
`1731.90
`
`373.70
`
`57.60
`
`25.60
`
`4.00
`
`329.60
`
`7.
`
`Defendants warrant, promise, represent,
`
`label and/or advertise
`
`that
`
`the
`
`Contaminated Pet Foods are free of any heavy metals and/or chemicals like BPA by assuring the
`
`food represents an evolutionary diet that mirrors that of a wolf – free of anything "nature did not
`
`intend for your dog to eat:"
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`- 7 -
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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 9 of 68
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`8.
`
` Defendants assert that: "Virtually All Of The Nutrients In Acana Are Natural And
`
`Not Synthetic."4 Defendants make a similar claim to the Orijen Dog Foods in maintaining that that
`
`the main source of any nutrient in Orijen is from a natural source.5
`
`9.
`
`Defendants further warrant, promise, represent, advertise and declare that the
`
`Contaminated Dog Foods are made with protein sources that are "Deemed fit for human
`
`consumption:"
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
`                                                            
`4 https://acana.com/wp-content/uploads/2015/10/DS-ACANA-Dog-Brochure-002.pdf
`
`5 https://www.orijen.ca/us/foods/dog-food/dry-dog-food/tundra/
`
`- 8 -
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`

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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 10 of 68
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`THE INCLUSION OF HEAVY METALS, BPA AND ANY OTHER CHEMICALS AT
`ANY LEVEL WOULD BE MATERIAL TO A REASONABLE CONSUMER BASED ON
`THE INHERENT AND KNOWN RISKS OF CONSUMPTION AND/OR EXPOSURE
`
`
`Heavy Metals
`
`
`10.
`
`Based on the risks associated with exposure to higher levels of arsenic, both the
`
`U.S. Environmental Protection Agency ("EPA") and U.S. Food and Drug Administration ("FDA")
`
`have set limits concerning the allowable limit of arsenic at 10 parts per billion ("ppb") for human
`
`consumption in apple juice (regulated by the FDA) and drinking water (regulating by the EPA).6
`
`11. Moreover, the FDA is considering limiting the action level for arsenic in rice
`
`cereals for infants to 100 ppb.7
`
`12.
`
`The Contaminated Dog Foods also contain lead, which is another carcinogen and
`
`developmental toxin known to cause health problems. Exposure to lead in food builds up over
`
`time. Buildup can and has been scientifically demonstrated to lead to the development of chronic
`
`poisoning, cancer, developmental, and reproductive disorders, as well as serious injuries to the
`
`nervous system, and other organs and body systems.
`
`13.
`
`The Contaminated Dog Foods also contain mercury, which can cause damage to
`
`the cardiovascular system, nervous system, kidneys, and digestive tract in dogs. Continued
`
`exposure can also injure the inner surfaces of the digestive tract and abdominal cavity, causing
`
`                                                            
`6 The FDA has taken action based on consumer products exceeding this limit, including testing
`and sending warning letters to the manufacturers. See, e.g., Warning Letter from FDA to Valley
`Processing, Inc. (June 2, 2016), https://www.fda.gov/iceci/enforcementactions/warningletters
`/2016/ucm506526.htm.
`
`7 FDA, Draft Guidance for Industry: Inorganic Arsenic in Rice Cereals for Infants: Action Level
`(Apr. 2016), https://www.fda.gov/downloads/Food/GuidanceRegulation/GuidanceDocuments
`RegulatoryInformation/UCM493152.pdf.
`
`- 9 -
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`

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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 11 of 68
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`lesions and inflammation. There have also been reports of lesions in the central nervous system
`
`(spinal cord and brain), kidneys, and renal glands.8
`
`14.
`
`Finally, the Contaminated Dog Foods contain cadmium which has been observed
`
`to cause anemia, liver disease, and nerve or brain damage in animals eating or drinking cadmium.
`
`The U.S. Department of Health and Human Services has determined that cadmium and cadmium
`
`compounds are known human carcinogens and the EPA has likewise determined that cadmium is
`
`a probable human carcinogen. 9
`
`15.
`
`Indeed, the FDA has acknowledged that “exposure to [these four heavy] metals are
`
`likely to have the most significant impact on public health” and has prioritized them in connection
`
`with its heavy metals workgroup looking to reduce the risks associated with human consumption
`
`of heavy metals.10
`
`16.
`
`Despite the known risks of exposure to these heavy metals, Defendants have
`
`negligently, recklessly, and/or knowingly sold the Contaminated Dog Foods without disclosing
`
`they contain levels of arsenic, mercury, cadmium and lead to consumers like Plaintiff. Indeed,
`
`Defendants have publicly acknowledged that consumers "have deep feelings and a sense of
`
`responsibility for the well-being of their dogs and cats."11
`
`                                                            
`8 https://wagwalking.com/condition/mercury-poisoning
`
`9 https://www.atsdr.cdc.gov/phs/phs.asp?id=46&tid=15
`
`10 https://www.fda.gov/Food/FoodborneIllnessContaminants/Metals/default.htm
`
`11 https://www.theglobeandmail.com/amp/report-on-business/small-business/canadian-
`powerhouse-export-your-dog-is-eating-it/article37605774/
` 
`
`- 10 -
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`

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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 12 of 68
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`17. Moreover, Defendants own actions show their knowledge that a reasonable
`
`consumer would care about the inclusion of heavy metals as they specifically addressed this
`
`concern on its website by touting that they require their suppliers “provide heavy metals and
`
`mercury test results, for which we also test our final food products.”12
`
`18.
`
`Additionally, Defendants knew or should have been aware that a consumer would
`
`be feeding the Contaminated Dog Foods multiple times each day to his or her dog, making it the
`
`main, if not only, source of food for the dog. This leads to repeated exposure of the heavy metals
`
`to the dog.
`
`19.
`
`Defendants have wrongfully and misleadingly advertised and sold
`
`the
`
`Contaminated Dog Foods without any label or warning indicating to consumers that these products
`
`contain heavy metals, or that these toxins can over time accumulate in the dog's body to the point
`
`where poisoning, injury, and/or disease can occur.
`
`20.
`
`Defendants' omissions are material, false, misleading, and reasonably likely to
`
`deceive the public. This is true especially in light of the long-standing campaign by Defendants
`
`to market the Contaminated Dog Foods as healthy and safe to induce consumers, such as Plaintiff,
`
`to purchase the products. For instance, Defendants market the Contaminated Dog Foods as
`
`"Biologically Appropriate," using "Fresh Regional Ingredients" comprised of 100 percent meat,
`
`poultry, fish, and/or vegetables, both on the products' packaging and on Defendants' websites.
`
`                                                            
`12https://doodlekisses.com/forum/topics/keeping-my-dog-on-an-orijen-six-fish-
`diet?groupUrl=thefoodgroup
`
`- 11 -
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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 13 of 68
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`21. Moreover, Defendants devote significant web and packaging space to the
`
`marketing of their DogStar® Kitchens, which they tell consumers "are the most advanced pet food
`
`kitchens on earth, with standards that rival the human food processing industry."
`
`22.
`
`Defendants state on their website that the Orijen pet foods "feature[] unmatched
`
`and unique inclusions of meat, naturally providing everything your dog or cat needs to thrive."
`
`Defendants further promise on the products' packaging and on its website that its Orijen and Acana
`
`foods are "guaranteed" to "keep your dog happy, healthy, and strong."
`
`23.
`
`Using such descriptions and promises makes Defendants' advertising campaign
`
`deceptive based on presence of heavy metals in the Contaminated Dog Foods. Reasonable
`
`consumers, like Plaintiff, would consider the mere inclusion of heavy metals in the Contaminated
`
`Dog Foods as a material fact in considering what pet food to purchase. Defendants' above-
`
`referenced statements, representations, partial disclosures, and omissions are false, misleading,
`
`and crafted to deceive the public as they create an image that the Contaminated Dog Foods are
`
`healthy, safe, and free of contaminants such as arsenic and lead. Moreover, Defendants knew or
`
`should have reasonably expected that the presence of heavy metals in its Contaminated Dog Foods
`
`is something an average consumer would consider in purchasing dog food. Defendants'
`
`representations and omissions are false, misleading, and reasonably likely to deceive the public.
`
`24. Moreover, a reasonable consumer, such as Plaintiff and other members of the Class
`
`(as defined herein), would have no reason to not believe and/or anticipate that the Contaminated
`
`Dog Foods are ""Biologically Appropriate" foods that use "Fresh Regional Ingredients" consisting
`
`only of meat, poultry, fish, and vegetables. Non-disclosure and/or concealment of the toxins in
`
`the Contaminated Dog Foods coupled with the misrepresentations alleged herein by Defendants
`
`- 12 -
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`

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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 14 of 68
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`suggesting that the food provides complete health and is safe is intended to and does, in fact, cause
`
`consumers to purchase a product Plaintiff and members of the class not have bought if the true
`
`quality and ingredients were disclosed. As a result of these false or misleading statements and
`
`omissions, Defendants have generated substantial sales of the Contaminated Dog Foods.
`
`25.
`
`The expectations of reasonable consumers and deception of these consumers by
`
`Defendants' advertising, misrepresentations, packaging, labeling is further highlighted by the
`
`public reaction to the allegations in this lawsuit as reported by various websites.
`
`26.
`
`Plaintiff brings this action individually and on behalf of all other similarly situated
`
`consumers within Colorado who purchased the Contaminated Dog Foods, in order to cause the
`
`disclosure of the presence of heavy metals that pose a known risk to both humans and animals in
`
`the Contaminated Dog Foods, to correct the false and misleading perception Defendants have
`
`created in the minds of consumers that the Contaminated Dog Foods are high quality, safe, and
`
`healthy and to obtain redress for those who have purchased the Contaminated Dog Foods.
`
`Bisphenol A ("BPA")
`
`27.
`
`The dangers of BPA in human food are recognized by the FDA, along with various
`
`states. For instance, manufacturers and wholesalers are prohibited from selling any children's
`
`products that contain BPA and any infant formula, baby food, or toddler food stored in containers
`
`with intentionally added BPA
`
`28.
`
`Still, certain Contaminated Dog Foods are sold by Defendants that contain levels
`
`of BPA—an industrial chemical that "'is an endocrine disruptor. It's an industrial chemical that
`
`according to Medical News Today' . . . interferes with the production, secretion, transport, action,
`
`- 13 -
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`

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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 15 of 68
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`function and elimination of natural hormones.'"13 BPA has been linked to various health issues,
`
`including reproductive disorders, heart disease, diabetes, cancer, and neurological problems.14
`
`29.
`
`Despite the presence of this harmful chemical, Defendants prominently warrant,
`
`claim, feature, represent, advertise, or otherwise market the Contaminated Dog Foods as made
`
`from "Biologically Appropriate" and "Fresh Regional Ingredients" consisting entirely of fresh
`
`meat, poultry, fish, and vegetables. Indeed, each bag prominently displays the percentage of these
`
`ingredients on the front.
`
`30.
`
`Defendants' website and packaging also warrants, claims, features, represents,
`
`advertises, or otherwise markets that its products are natural. In fact, Orijen's slogan is "Nourish
`
`as Nature Intended."
`
`
`
`                                                            
`13Dr. Karen Beeker, A Major Heads Up: Don't Feed This to Your Dog, Healthy Pets (Feb. 13,
`2017), https://healthypets.mercola.com/sites/healthypets/archive/2017/02/13/dogs-canned-food-
`dangers.aspx.
`14 Christian Nordquist, Bisphenol A: How Does It Affect Our Health? Medical News Today (May
`24, 2017), https://www.medicalnewstoday.com/articles/221205.php.
`
`- 14 -
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`

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`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 16 of 68
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`
`31.
`
`In promoting their promise, warranty, claim, representation, advertisement, or
`
`otherwise marketing that the Contaminated Dog Foods are safe and pure, Defendants further assure
`
`its customers:
`
`Equipped with state-of-the-art fresh food processing technologies, our DogStar®
`kitchens feature 25,000 square feet of cooler space, capable of holding over 500,000
`pounds of fresh local meats, fish and poultry, plus fresh whole local fruits and
`vegetables.
`Unmatched by any pet food maker, our ingredients are deemed fit for human
`consumption when they arrive at our kitchens fresh, bursting with goodness, and
`typically within 48 hours from when they were harvested.
`32.
`To this end, Defendants' websites further warrants, claims, features, represents,
`
`advertises, or otherwise markets that the Contaminated Dog Foods are manufactured in such a way
`
`that would prevent BPA forming by closely monitoring temperatures and quality:
`
`"[O]ur unique Votator Heat Exchangers bring chilled fresh ingredients to room
`temperature without introducing water or steam, which enables us to add even
`more fresh meats into our foods."
`"Referred to as 'the most significant preconditioning development for extrusion
`cooking in the last 20 years,' our High Intensity Preconditioners were custom-
`built for DogStar®, feeding fresh meats from the Votators to Extruders at rates
`previously unheard of, and without high temperatures."
`"At the heart of our kitchens is a twin thermal extruder which is fed fresh
`ingredients from our High Intensity Preconditioner.
`The first of its kind in North America, it took 11 months to build, and features
`custom steam injection to enable very high fresh meat inclusions and a gentle
`cooking process which helps further reduce the carbohydrates in our foods and
`preserves their natural goodness."
`33.
`Thus, Defendants engaged in deceptive advertising and labeling practice by
`
`expressly warranting, claiming, stating, featuring, representing, advertising, or otherwise
`
`marketing on Acana and Orijen labels and related websites that the Contaminated Dog Foods are
`
`natural, fit for human consumption, fit for canine consumption, and made from "Biologically
`
`- 15 -
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`

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`Appropriate" and "Fresh Regional Ingredients" consisting entirely of fresh meat, poultry, fish, and
`
`vegetables when they contain the non-naturally occurring chemical BPA.
`
`34.
`
`Based on these false representations, Defendants charge a premium, knowing that
`
`the claimed natural make-up of the Contaminated Dog Foods (as well as all of the other alleged
`
`false and/or misleading representations discussed herein) is something an average consumer would
`
`consider as a reason in picking a more expensive dog food. By negligently and/or deceptively
`
`representing, marketing, and advertising the Contaminated Dog Foods as natural, fit for human
`
`consumption, fit for canine consumption, and made from "Biologically Appropriate" and "Fresh
`
`Regional Ingredients" consisting entirely of fresh meat, poultry, fish, and vegetables, Defendants
`
`wrongfully capitalized on, and reaped enormous profits from, consumers' strong preference for
`
`natural pet food products.
`
`35.
`
`Plaintiff brings this action individually and on behalf of all other similarly situated
`
`consumers within Colorado who purchased the Contaminated Dog Foods, in order to cause the
`
`disclosure of the presence of BPA that pose a known risk to both humans and animals in the
`
`Contaminated Dog Foods, to correct the false and misleading perception Defendants have created
`
`in the minds of consumers that the Contaminated Dog Foods are high quality, safe, and healthy
`
`and to obtain redress for those who have purchased the Contaminated Dog Foods.
`
`JURISDICTION AND VENUE
`
`36.
`
`This Court has original jurisdiction over all causes of action asserted herein under
`
`the Class Action Fairness Act, 28 U.S.C. §1332(d)(2), because the matter in controversy exceeds
`
`the sum or value of $5,000,000 exclusive of interest and costs and more than two-thirds of the
`
`- 16 -
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`

`

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`Class reside in states other than the states in which Defendants are citizens and in which this case
`
`is filed, and therefore any exemptions to jurisdiction under 28 U.S.C. §1332(d) do not apply.
`
`37.
`
`Venue is proper in this Court pursuant to 28 U.S.C. §1391, because Plaintiff is a
`
`citizen of the State of Colorado and suffered injury as a result of Defendants' acts in this district,
`
`many of the acts and transactions giving rise to this action occurred in this district, Defendants
`
`conduct substantial business in this district, Defendants have intentionally availed themselves of
`
`the laws and markets of this district, and Defendants are subject to personal jurisdiction in this
`
`district.
`
`PARTIES
`
`38.
`
`Plaintiff Samantha Jerding ("Plaintiff") is, and at all times relevant hereto has been,
`
`a citizen of the state of Colorado. Plaintiff purchased the following Contaminated Dog Foods and
`
`fed the food to her two dogs, Maddox and Bailey: Acana Meadowland with Poultry, Freshwater
`
`Fish and Eggs. Plaintiff purchased Contaminated Dog Foods twice per month (priced at around
`
`$70-80 per bag), on average, between January 1, 2018, and approximately March 1, 2018, when
`
`she discovered that the food was contaminated. Plaintiff purchased the Contaminated Dog Foods
`
`from Duke Dog Wash in Wheat Ridge, Colorado. Prior to purchasing the Contaminated Dog
`
`Foods, Plaintiff saw the products the nutritional claims on the packaging, which she relied on in
`
`deciding to purchase the Contaminated Dog Foods. During that time, based on the false and
`
`misleading claims, warranties, representations, advertisements and other marketing by
`
`Defendants, Plaintiff was unaware that the Contaminated Dog Foods contained any level of heavy
`
`metals, chemicals or toxins and would not have purchased the food if that was fully disclosed.
`
`- 17 -
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`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 19 of 68
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`Plaintiff was injured by paying a premium for the Contaminated Dog Foods that have no or de
`
`minimis value based on the presence of the alleged heavy metals, chemicals and toxins.
`
`39.
`
`As the result of Defendants' negligent, reckless, and/or knowingly deceptive
`
`conduct as alleged herein, Plaintiff was injured when she paid the purchase price or a price
`
`premium for the Contaminated Dog Foods that did not deliver what was promised. She paid the
`
`premium price on the assumption that the labeling of the Contaminated Dog Foods was accurate
`
`and that it was healthy, superior quality, natural, and safe for dogs to ingest. Plaintiff would not
`
`have paid this money had she known that the Contaminated Dog Foods contained any levels of the
`
`heavy metals, chemicals and/or toxins. Plaintiff was further injured because the Contaminated Dog
`
`Foods that have no or de minimis value based on the presence of the alleged heavy metals,
`
`chemicals and toxins. Damages can be calculated through expert testimony at trial. Further,
`
`should Plaintiff encounter the Contaminated Dog Foods in the future, she could not rely on the
`
`truthfulness of the packaging, absent corrective changes to the packaging and advertising of the
`
`Contaminated Dog Foods.
`
`40.
`
`Defendant Champion Petfoods USA Inc. ("Champion USA") is incorporated in
`
`Delaware. Its headquarters and principal place of business, as of March 2016, is located at 12871
`
`Bowling Green Road, Auburn, KY 42206. Since that time, all Contaminated Pet Foods sold in the
`
`United States are manufactured, sourced and sold by Champion USA. .
`
`41.
`
`Defendant Champion Petfoods LP ("Champion Canada") is a Canadian limited
`
`partnership with its headquarters and principal place of business located at 11403-186 St NW,
`
`Edmonton, Alberta T5S 2W6. Defendant Champion Canada wholly owns, operates, and/or
`
`- 18 -
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`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 20 of 68
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` 
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`controls Defendant Champion USA. Prior to March 2016, all Contaminated Pet Foods sold in the
`
`United States were manufactured, sourced and sold by Champion Canada.
`
`42.
`
`Defendants formulate, develop, manufacture, label, distribute, market, advertise,
`
`and sell the Contaminated Dog Foods under the dog food brand names Orijen and Acana
`
`throughout the United States, including in this District, during Class Period (defined below). The
`
`advertising, labeling, and packaging for the Contaminated Dog Foods, relied upon by Plaintiff,
`
`was prepared, reviewed, and/or approved by Defendants and their agents, and was disseminated
`
`by Defendants and their agents through marketing, advertising, packaging, and labeling that
`
`contained the misrepresentations alleged herein. The marketing, advertising, packaging and
`
`labeling for the Contaminated Dog Foods was designed to encourage consumers to purchase the
`
`Contaminated Dog Foods and reasonably misled the reasonable consumer, i.e., Plaintiff and the
`
`Class, into purchasing the Contaminated Dog Foods. Defendants own, manufacture, and distribute
`
`the Contaminated Dog Foods, and created, allowed, negligently oversaw, and/or authorized the
`
`unlawful, fraudulent, unfair, misleading, and/or deceptive labeling and advertising for the
`
`Contaminated Dog Foods.
`
`FACTUAL ALLEGATIONS
`
`The Contaminated Dog Foods
`
`43.
`
`The Contaminated Dog Foods include the following:
`
`
`
`
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`- 19 -
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`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 21 of 68
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`
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`(a) Acana Regionals Appalachian Ranch with Ranch-Raised Red Meats &
`
`Freshwater Catfish
`
`
`
`
`
`- 20 -
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`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 22 of 68
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`(b) Acana Regionals Grasslands with Grass-Fed Kentucky Lamb, Freshwater
`
`Trout & Game Bird
`
`
`
`
`
`
`
`
`
`
`
`- 21 -
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`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 23 of 68
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` 
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`
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`(c) Acana Regionals Meadowland with Free-Run Poultry, Freshwater Fish, and
`
`Nest-Laid Eggs
`
`
`
`
`
`
`
`- 22 -
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`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 24 of 68
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`(d) Acana Regionals Wild Atlantic with New Wild New England Fish & Fresh
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`Kentucky Greens
`
`
`
`
`
`
`
`
`
`- 23 -
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`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 25 of 68
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` 
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`(e) Orijen Original with Fresh Free-Run Chicken and Turkey, Wild-Caught
`
`Fish and Nest-Laid Eggs
`
`
`
`
`
`
`
`- 24 -
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`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 26 of 68
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` 
`
`
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`(f) Orijen Regional Red with Angus Beef, Wild Boar, Boer Goat, Romney
`
`Lamb, Yorkshire Pork & Wild Mackerel
`
`
`
`
`
`
`
`- 25 -
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`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 27 of 68
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` 
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`
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`(g) Orijen Regional Red Angus Beef, Ranch Raised Lamb, Wild Boar, Pork,
`
`Bison Dry Dog Food
`
`
`
`
`
`- 26 -
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`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 28 of 68
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` 
`
`
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`(h) Orijen Six Fish with New England Mackerel, Herring, Flounder, Redfish,
`
`Monkfish and Silver Hake:
`
`
`
`
`
`
`
`- 27 -
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`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 29 of 68
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` 
`
`
`
`(i) Acana Singles Duck and Pear Formula Dry Dog Food
`
`
`
`
`
`- 28 -
`
`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 30 of 68
`
` 
`
`(j) Acana Singles Lamb and Apple Formula Dry Dog Food
`
`
`
`
`
`
`
`- 29 -
`
`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 31 of 68
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` 
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`(k) Acana Heritage Free-Run Poultry Formula Dry Dog Food
`
`
`
`
`
`- 30 -
`
`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 32 of 68
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` 
`
`(l) Acana Heritage Freshwater Fish Formula Dry Dog Food
`
`
`
`
`
`- 31 -
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`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 33 of 68
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` 
`
`(m) Orijen Tundra Freeze Dried Venison, Elk, Bison, Quail, Steelhead Trout
`
`Wet Dog Food
`
`
`
`(n) Orijen Adult Dog Freeze Dried Chicken, Turkey, Wild Caught Fish, Eggs
`
`Wet Dog Food
`
`
`
`- 32 -
`
`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 34 of 68
`
` 
`
`(o) Orijen Regional Red Freeze Dried Angus Beef, Ranch Raised Lamb,
`
`Wild Boar, Pork, Bison Wet Dog Food
`
`
`
`(p) Orijen Regional Red Angus Beef, Ranch Raised Lamb, Wild Boar, Pork,
`
`Bison Dry Dog Food
`
`
`
`- 33 -
`
`

`

`Case 1:18-cv-02756-DDD-MEH Document 1 Filed 10/29/18 USDC Colorado Page 35 of 68
`
` 
`
`(q) Orijen Six Fish Wild-Caught Regiona