Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 1 of 21 PageID #: 1
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF INDIANA
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`TIFFANY CARLSON, on behalf of herself
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`and all others similarly situated,
`
`
`
`
`
`
`Plaintiff,
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`
`
`v.
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`Civil Action No.:
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` 3:21-cv-00007
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`CLASS ACTION
`
`
`
`
`
`
`MIDWESTERN PET FOODS, INC.,
`
`JURY TRIAL DEMANDED
`
`Defendant.
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`CLASS ACTION COMPLAINT
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`Plaintiff Tiffany Carlson (“Plaintiff”), individually and on behalf of all others similarly
`
`situated (the “Class,” as defined below), brings this Class Action Complaint against Midwestern
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`Pet Foods, Inc. (“Midwestern” or “Defendant”). Plaintiff bases these allegations on personal
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`knowledge as to matters related to and known to her. As to all other matters, Plaintiff bases her
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`allegations on information and belief and through investigation of her counsel. Plaintiff believes
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`substantial evidentiary support exists for the allegations below.
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`NATURE OF THE ACTION
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`Midwestern is a manufacturer and seller of pet foods.
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`Despite representations and express warranties regarding the safety and quality of
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`these pet foods and regarding Midwestern manufacturing processes to create these pet foods,
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`Midwestern manufactured and sold dog and cat food containing Aflatoxin (“Sportmix Products”
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`

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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 2 of 21 PageID #: 2
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`or “Products”).1
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`
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`Aflatoxin is a toxin produced by the mold Aspergillus flavus, which can grow on
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`corn and other grains used as ingredients in pet food. At high levels, aflatoxin can cause illness
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`or death in pets.
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`
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`Because the Products contained or may have contained Aflatoxin, pet owners
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`throughout the United States purchased Sportmix Products that were misrepresented and that did
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`not conform to express warranties.
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`
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`This is a class action lawsuit on behalf of pet owners who purchased Sportmix
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`Products manufactured with undisclosed ingredients, which increased the risk of injury or death
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`to their pets, or which caused actual injury or the death of their pets.
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`PARTIES
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`
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`Plaintiff Tiffany Carlson is a citizen of Michigan and resides in Leonard, Michigan.
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`
`1 “Sportmix Products” include: Sportmix Premium Energy Plus dog food; Sportmix Premium High
`Energy dog food; Sportmix Premium Maintenance dog food; Sportmix Premium Stamina dog
`food; Sportmix Premium Puppy Small Bites; Sportmix Original High Protein dog food; Sportmix
`Original Bite Size dog food; Sportmix Gourmet Mix cat food; Sportmix Original cat food; Pro Pac
`Adult Mini Chunk, 40 lb. bag; Pro Pac Performance Puppy, 40 lb. bag; Splash Fat Cat 32%, 50 lb.
`bag; Nunn Better Maintenance, 50 lb. bag; Sportmix Original Cat, 15 lb. bag; Sportmix Original
`Cat, 31 lb. bag; Sportmix Maintenance, 44 lb. bag; Sportmix Maintenance, 50 lb. bag; Sportmix
`High Protein, 50 lb. bag; Sportmix Energy Plus, 44 lb. bag; Sportmix Energy Plus, 50 lb. bag;
`Sportmix Stamina, 44 lb. bag; Sportmix Stamina, 50 lb. bag; Sportmix Bite Size, 40 lb. bag;
`Sportmix Bite Size, 44 lb. bag; Sportmix High Energy, 44 lb. bag; Sportmix High Energy, 50 lb.
`bag; Sportmix Premium Puppy, 16.5 lb. bag; Sportmix Premium Puppy, 33 lb. bagPro Pac Adult
`Mini Chunk dog food; Pro Pac Performance Puppy; Splash Fat Cat 32%; Nunn Better Maintenance
`dog food; Sportmix Original Cat food; Sportmix Original Cat, 31 lb. bag; Sportmix Maintenance,
`44 lb. bag; Sportmix Maintenance, 50 lb. bag; Sportmix High Protein, 50 lb. bag; Sportmix Energy
`Plus, 44 lb. bag; Sportmix Energy Plus, 50 lb. bag; Sportmix Stamina, 44 lb. bag; Sportmix
`Stamina, 50 lb. bag; Sportmix Bite Size, 40 lb. bag; Sportmix Bite Size, 44 lb. bag; Sportmix High
`Energy, 44 lb. bag; Sportmix High Energy, 50 lb. bag; Sportmix Premium Puppy, 16.5 lb. bag;
`Sportmix Premium Puppy, 33 lb. bag. The Sportmix Products at issue have an expiration date on
`or before July 9, 2022, and have "05" in the date or lot code. Plaintiff reserves the right to amend
`this definition as necessary (The list of Defendant’s recalled dog and cat food products, originally
`recalled on December 30, 2020, was expanded on January 12, 2021).
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`2
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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 3 of 21 PageID #: 3
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`Plaintiff has two dogs—one is a great dane and the other is a lab and beagle mix. Prior to the recall
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`at issue, the only dog food Plaintiff fed to her two dogs was SportMix Premium High Energy dog
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`food manufactured by Defendant. Thus, at various times during the period beginning when
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`Sportmix Products were offered for sale and continuing at least through the date of the most recent
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`recall update (currently January 12, 2021) (the “Relevant Time Period”), Plaintiff purchased
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`Sportmix Products and suffered economic damages related to the purchase of the Sportmix
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`Products. More specifically, Plaintiff purchased the Sportmix Products from Chewy.com and from
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`Chapter Supply. Plaintiff’s dates of purchase include but are not limited to November 14th and
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`28th, 2020 and December 22nd, 2020. As a result of consuming Sportmix Products, both dogs
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`became sick with constant diarrhea, which they both still have. Because her dogs were quite ill
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`and had lost substantial weight, Plaintiff had a virtual visit with her veterinarian. During this
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`appointment, the veterinarian told Plaintiff to stop feeding the Sportmix Products to the dogs which
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`Plaintiff did; however, both dogs remain sick. In fact, one of Plaintiff’s dogs is a service dog for
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`her son; however, because of the illnesses described above the dog can no longer accompany
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`Plaintiff’s son to school.
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`
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`Defendant Midwestern Pet Foods, Inc. is a corporation organized under the laws of
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`Indiana. Midwestern’s principal place of business is located at 9634 Hedden Road, Evansville,
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`Indiana 47725.
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`JURISDICTION AND VENUE
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`
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`This Court has personal jurisdiction over Defendant Midwestern because
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`Midwestern is headquartered within this District and much of the conduct at issue occurred in this
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`District.
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`
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`This Court has original subject-matter jurisdiction over this proposed class action
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`3
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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 4 of 21 PageID #: 4
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`pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d), which provides for the
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`original jurisdiction of the federal district courts over “any civil action in which the matter in
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`controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and [that] is
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`a class action in which . . . any member of a class of plaintiffs is a citizen of a State different from
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`any defendant.” 28 U.S.C. § 1332(d)(2)(A). Because the proposed Class that Plaintiff seeks to
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`represent includes residents from throughout the United States, the Class necessarily includes
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`citizens from States other than the State of which Midwestern is a citizen. Further, Plaintiff alleges
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`the matter in controversy exceeds $5,000,000.00 in the aggregate, exclusive of interest and costs.
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`Finally, “the number of members of all proposed plaintiff classes in the aggregate” is greater than
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`100. See 28 U.S.C. § 1332(d)(5)(B).
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`
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`Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because Defendant is
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`headquartered within this District and much of the conduct at issue occurred in this District.
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`FACTUAL ALLEGATIONS
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`
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`Defendant Markets and Sells Pet Foods as Premium, Health-Based Products
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` Midwestern is a leading North American producer of pet food products sold in the
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`United States and around the world. Upon information and belief, it produces and sells hundreds
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`of thousands of containers of cat and dog food annually.
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` Midwestern holds itself out to the public as a producer of safe, nutritious, and high-
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`quality pet food. As part of its marketing and sales, Midwestern makes numerous representations
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`and express warranties about the quality of its dog food and its manufacturing facilities and
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`processes.
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` Midwestern manufactures, produces, markets, distributes, and/or sells dog food
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`products under various brand names, including “Sportmix.”
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`4
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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 5 of 21 PageID #: 5
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` Midwestern promotes and prices the Products as “premium” dog food by, among
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`other things, uniformly labeling their products as providing “Targeted Nutrition” for dogs and cats.
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`The product labels further uniformly represent that the pet foods are “100% Guaranteed Taste &
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`Nutrition.”
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` Midwestern claims that its products “are subject to rigorous testing in independent
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`laboratories to ensure quality nutrition and safety.”2 “We create our own nutritious dry recipes and
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`treats, selectively choose our ingredients, and prepare our foods with care in our 4 family-owned
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`kitchens.”3
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` Midwestern represents that its Sportmix Premium Energy Plus dog food is
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`“formulated for highly active dogs needing a maximum high level of energy” and “to meet the
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`nutritional levels established by the AAFCO Dog Food Nutrient Profiles for maintenance.”4
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` Midwestern similarly represents that its Sportmix Premium High Energy recipe is
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`“formulated for adult dogs who require extra protein and fat in their diet due to their level of
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`activity or living environment” and “to meet the nutrition levels established by the AAFCO Dog
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`Food Nutrient Profiles for maintenance.”5
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` Midwestern represents that its Sportmix Premium Maintenance is “formulated for
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`adult dogs who require a lower level of energy and protein due to their activity level or living
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`environment” and “to meet the nutritional levels established by the AAFCO Dog Food Nutrient
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`2 https://midwesternpetfoods.com/#about-us (last visited Jan. 8, 2021)
`3 Id.
`4 https://www.sportmix.com/dog-food/premium-formulas/energy-plus-adult-mini-chunk/
`visited Jan. 8, 2021)
`5 https://www.sportmix.com/dog-food/premium-formulas/high-energy-adult-mini-chunk/
`visited Jan. 8, 2021)
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`(last
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`(last
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`5
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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 6 of 21 PageID #: 6
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`Profiles for maintenance.”6
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` Midwestern represents that its Sportmix Premium Stamina dog food is “formulated
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`for physically active dogs that require a sustained level of endurance” and “to meet the nutritional
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`levels established by the AAFCO Dog Food Nutrient Profiles for maintenance.”7
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` Midwestern represents that its Sportmix Premium Puppy Small Bites dog food is
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`“formulated for puppy’s first full year of growth” and “to meet the nutritional levels established
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`by the AAFCO Dog Food Nutrient Profiles for lactation/gestation and growth of dogs.”8
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` Midwestern represents that its Sportmax Original High Protein dog food is
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`“designed to provide extra energy for highly active dogs requiring more protein in their diet.”9
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` Midwestern represents that its Sportmax Original Bite Size dog food is “formulated
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`to provide your normally active dog with 100% complete and balanced nutrition for a healthy life”
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`and “to meet the nutritional levels established by the AAFCO Dog Food Nutrient Profiles for
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`maintenance.”10
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` Midwestern represents that its Sportmix Original Recipe cat food is “formulated to
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`ensure 100% complete and balanced nutrition for your cat, supplying essential nutrients needed to
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`promote strong muscles and bones, a glossy coat and bright eyes” and to “meet the nutrition levels
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`established by the AAFCO Dog Food Nutrient Profiles for all life stages.”11
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` Midwestern represents that its Sportmix Gourmet Mix cat food is “[f]ormulated
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`6 https://www.sportmix.com/dog-food/premium-formulas/maintenance-adult-mini-chunk/ (last
`visited Jan. 8, 2021).
`7 https://www.sportmix.com/dog-food/premium-formulas/stamina-adult-mini-chunk/ (last visited
`Jan. 8. 2021).
`8 https://www.sportmix.com/dog-food/premium-formulas/puppy-small-bites/ (last visited Jan. 8,
`2021).
`9 https://www.sportmix.com/dog-food/original-formulas/high-protein/ (last visited Jan. 8, 2021).
`10 https://www.sportmix.com/dog-food/original-formulas/bite-size/ (last visited Jan. 8, 2021).
`11 https://www.sportmix.com/cat-food/original-recipe/ (last visited Jan. 8, 2021).
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`6
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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 7 of 21 PageID #: 7
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`with a special balance of protein, fat, vitamins and minerals” to “suppl[y] a 100% complete and
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`balanced diet” and “meet the nutritional levels established by the AAFCO Dog Food Nutrient
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`Profiles for all life stages.”12
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`Because of these quality promises, consumers are willing to pay a premium price
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`for Sportmix Products, and Sportmix Products are often triple the cost of similar dog foods.
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`
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`Defendant’s Recall of Certain Sportmix Products Because of Aflatoxin
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`On December 30, 2020, Midwestern announced a recall of certain lots of Sportmix
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`Products after the U.S. Food and Drug Administration (“FDA”) was alerted about reports of at
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`least 28 dogs that have died and eight that have fallen ill after consuming Sportmix Products.13
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`The FDA recall now indicates that the approximate number of pets believe to have died is now at
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`least 70 and that at least 80 pets are believed to have become sick after consuming Sportmix
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`Products.14
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` Multiple product samples were tested by the Missouri Department of Agriculture
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`and found to contain very high levels of aflatoxin.15 The following state Departments of
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`Agriculture are cooperating with the FDA: Missouri, Oklahoma, Arkansas, Kansas, Kentucky,
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`Louisiana, New Mexico, Oregon, Texas, and Washington.16
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`The list of recalled dry pet food products announced by Midwestern Pet Food, Inc.
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`on December 30, 2020 is:
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`•
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`Sportmix Energy Plus, 50 lb. bag
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`12 https://www.sportmix.com/cat-food/gourmet-mix/ (last visited Jan. 8, 2021).
`13 https://www.fda.gov/animal-veterinary/outbreaks-and-advisories/fda-alert-certain-lots-sportmi
`x-pet-food-recalled-potentially-fatal-levels-aflatoxin (last visited Jan. 7, 2021)
`14 Id.
`15 Id.
`16 Id.
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`7
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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 8 of 21 PageID #: 8
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`Exp 03/02/22/05/L2
`
`o
`o
`Sportmix Energy Plus, 44 lb. bag
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`Exp 03/02/22/05/L3
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`Exp 03/02/22/05/L3
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`o
`Sportmix Premium High Energy, 50 lb. bag
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`Exp 03/03/22/05/L3
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`o
`Sportmix Premium High Energy, 44 lb. bag
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`Exp 03/03/22/05/L3
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`o
`Sportmix Original Cat, 31 lb. bag
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`Exp 03/03/22/05/L3
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`o
`Sportmix Original Cat, 15 lb. bag
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`•
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`•
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`•
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`•
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`•
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`Exp 03/03/22/05/L2
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`o
`o
`In announcing the recall, Midwestern acknowledged that affected “Products were
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`Exp 03/03/22/05/L317
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`
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`distributed nationally to online distributors and retail stores.”18
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`
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`On January 12, 2021, the list of recalled dry pet food was expanded to include:
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`•
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`•
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`•
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`•
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`Pro Pac Adult Mini Chunk, 40 lb. bag
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`Pro Pac Performance Puppy, 40 lb. bag
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`Splash Fat Cat 32%, 50 lb. bag
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`Nunn Better Maintenance, 50 lb. bag
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`17 Lot code information may be found on the back of bag and will appear in a three-line code, with
`the top line in format “EXP 03/03/22/05/L#/B###/HH:MM.”
`18 https://midwesternpetfoods.com/midwestern-pet-foods-voluntarily-recalls-pet-food-recal l-for-
`aflatoxin-health-risk/ (last visited Jan. 7, 2021).
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`8
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`•
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`•
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`•
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`•
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`•
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`•
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`•
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`Sportmix Original Cat, 15 lb. bag
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`Sportmix Original Cat, 31 lb. bag
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`Sportmix Maintenance, 44 lb. bag
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`Sportmix Maintenance, 50 lb. bag
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`Sportmix High Protein, 50 lb. bag
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`Sportmix Energy Plus, 44 lb. bag
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`Sportmix Energy Plus, 50 lb. bag
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`Sportmix Stamina, 44 lb. bag
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`Sportmix Stamina, 50 lb. bag
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`Sportmix Bite Size, 40 lb. bag
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`Sportmix Bite Size, 44 lb. bag
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`Sportmix High Energy, 44 lb. bag
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`Sportmix High Energy, 50 lb. bag
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`Sportmix Premium Puppy, 16.5 lb. bag
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`Sportmix Premium Puppy, 33 lb. bag19
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`
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`The Products Harmed and Even Killed Pets
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`
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`Aflatoxin is a toxin produced by the mold Aspergillus flavus and at high levels it
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`can cause illness and death in pets. The toxin can be present even if there is no visible mold.
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`
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`Pets are highly susceptible to aflatoxin poisoning because, unlike people, who eat
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`a varied diet, pets generally eat the same food continuously over extended periods of time. If a
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`pet’s food contains aflatoxin, the toxin could accumulate in the pet’s system as they continue to
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`19 https://www.fda.gov/animal-veterinary/outbreaks-and-advisories/fda-alert-certain-lots-sportmi
`x-pet-food-recalled-potentially-fatal-levels-aflatoxin (last visited Jan. 13, 2021).
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`9
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`eat the same food.
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`Pets with aflatoxin poisoning may experience symptoms such as sluggishness, loss
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`of appetite, vomiting, jaundice (yellowish tint to the eyes, gums or skin due to liver damage),
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`and/or diarrhea. In some cases, this toxicity can cause long-term liver issues and/or death. Some
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`pets suffer liver damage without showing any symptoms.
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`According to the FDA, pet owners whose pets have been eating the recalled
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`products should contact their veterinarians, especially if they are showing signs of illness.20
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`
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`Every purchaser of the recalled Products lost money by purchasing toxic food that
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`was misrepresented. They additionally incurred costs associated with replacing the Products with
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`a safe pet food (including sales tax or similar taxes); and incidental transaction costs associated
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`with purchasing safe, non-contaminated pet food and/or in securing a refund for the Product.
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`
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`In addition, Plaintiff and Class members also incurred damages related to the
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`sickness and/or death of their pets. These expenses include the substantial costs associated with
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`obtaining veterinarian services, medications, and treatment, as well as expenses related to the
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`burial/disposition and/or replacing beloved pets. These Class members also endured the distress
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`of losing a beloved pet.
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`Defendant manufactured, marketed, advertised, warranted, and sold, either directly
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`or through its authorized distribution channels, the Products that caused Plaintiff’s and the Class
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`members’ damages. Plaintiff and the Class members have been or will be forced to pay for damage
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`caused by the Aflatoxin in the Products.
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`Defendant knew or should have known about the risks of injury, illness, or death
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`20 https://www.fda.gov/animal-veterinary/outbreaks-and-advisories/fda-alert-certain-lots-sportmi
`x-pet-food-recalled-potentially-fatal-levels-aflatoxin (last visited Jan. 7, 2021).
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`posed by the Products before it sold them to Plaintiff and Class members who ultimately fed the
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`Products to their pets.
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`In conjunction with each sale, Defendant marketed, advertised, and warranted that
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`the Products were fit for the ordinary purpose for which such goods are used, i.e., consumption by
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`household pets, and were free from defects.
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`The Products were intended to be placed in the stream of commerce and distributed,
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`offered for sale, and sold to Plaintiff and the Class members throughout the United States.
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`CLASS ACTION ALLEGATIONS
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`
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`Pursuant to Rule 23(a) and (b)(2) and (b)(3) of the Federal Rules of Civil Procedure,
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`Plaintiff brings this action on behalf of a proposed class defined as follows:
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`The Nationwide Class. All persons who purchased Sportmix Products in the
`United States within the Relevant Time Period.
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`Excluded from the Nationwide Class are: (a) Defendant, Defendant’s board
`members, executive-level officers, and attorneys, and immediate family members
`of any of the foregoing persons; (b) governmental entities; (c) the Court, the Court’s
`immediate family, and the Court staff; and (d) any person that timely and properly
`excludes himself or herself from the Class in accordance with Court-approved
`procedures.
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`
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`Plaintiff also seeks certification of a Michigan Subclass defined as:
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`
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`All persons residing in Michigan who purchased Sportmix Products within the
`Relevant Time Period.
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`Excluded from the Michigan Subclass are: (a) Defendant, Defendant’s board
`members, executive-level officers, and attorneys, and immediate family
`members of any of the foregoing persons; (b) governmental entities; (c) the
`Court, the Court’s immediate family, and the Court staff; and (d) any person
`that timely and properly excludes himself or herself from the Class in
`accordance with Court-approved procedures.
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`Plaintiff reserves the right to alter the Class definitions as they deem necessary at
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`
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`any time to the full extent that the Federal Rules of Civil Procedure, the Local Rules of the United
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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 12 of 21 PageID #: 12
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`States District Court for the Southern District of Indiana, and applicable precedent allow.
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`
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`Certification of Plaintiff’s claims for class-wide treatment is appropriate because
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`Plaintiff can prove the elements of the claims on a class-wide basis using the same evidence as
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`individual Class members21 would use to prove those elements in individual actions alleging the
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`same claims.
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`Numerosity - Rule 23(a)(1): The size of the Nationwide Class and Michigan
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`Subclass is so large that joinder of all Class members is impracticable. Due to the nature of
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`Defendant’s business and the size of the recalls, Plaintiff believes there are hundreds or thousands
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`of Class members geographically dispersed throughout the United States and that there are
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`thousands of members of the Michigan Subclass.
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`Existence and Predominance of Common Questions of Law and Fact - Rule
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`23(a)(2), (b)(3): There are questions of law and fact common to the Nationwide Class and the
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`Michigan Subclass. These questions predominate over any questions affecting only individual
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`Class members. Common legal and factual questions include but are not limited to:
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`a.
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`b.
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`c.
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`d.
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`e.
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`f.
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`whether Defendant sold pet food Products containing aflatoxin;
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`whether Defendant advertised, represented, or held itself out as producing or
`manufacturing pet food Products that were safe for pets to consume;
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`whether Defendant expressly warranted the Products;
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`whether Defendant purported to disclaim any express warranty;
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`whether Defendant purported to disclaim any implied warranty;
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`whether any limitation on warranty fails to meet its essential purpose;
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`g.
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`whether Defendant intended for Plaintiff, the Class members, and others to
`purchase the Products;
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`21 The use of the term “Class members” is intended to include members of the Nationwide Class
`and the Michigan Subclass.
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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 13 of 21 PageID #: 13
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`h.
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`i.
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`j.
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`k.
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`l.
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`m.
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`n.
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`o.
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`whether Defendant intended or foresaw that Plaintiff, the Class members, and
`others would feed the Products to their pets;
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`whether and in what manner Defendant was negligent in manufacturing or
`processing the Products;
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`whether using the Products as intended (to feed pets) resulted in injury or
`damages to the Injured Pet Class members;
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`whether Defendant’s negligence proximately caused loss, injury, or damages to
`the Class members;
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`whether the Class members suffered direct losses or damages;
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`whether the Class members suffered indirect losses or damages;
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`whether the Class members are entitled to actual or other forms of damages and
`other monetary relief; and
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`whether the Class members are entitled to equitable relief, including but not
`limited to injunctive relief and equitable restitution.
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`Defendant engaged in a common course of conduct in contravention of the laws
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`Plaintiff seeks to enforce individually and on behalf of the Class members. Similar or identical
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`violations of law, business practices, and injuries are involved. Individual questions, if any, pale
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`by comparison, in both quality and quantity, to the numerous common questions that dominate
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`this action. Moreover, the common questions will yield common answers that will substantially
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`advance the resolution of the case.
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`Typicality - Rule 23(a)(3): Plaintiff’s claims are typical of the claims of the Class
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`members because Defendant injured all Class members through the uniform misconduct
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`described herein; all Class members suffered injury due to Defendant’s defective Products; and
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`Plaintiff seeks the same relief as the Class members. Furthermore, there are no defenses available
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`to Defendant that are unique to Plaintiff.
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`
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`Adequacy of Representation - Rule 23(a)(4): Plaintiff is a fair and adequate
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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 14 of 21 PageID #: 14
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`representative of the Class members because Plaintiff’s interests do not conflict with the Class
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`members’ interests. Plaintiff will prosecute this action vigorously and are highly motivated to
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`seek redress against Defendant. Furthermore, Plaintiff has selected competent counsel who are
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`experienced in class action and other complex litigation. Plaintiff and their counsel are committed
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`to prosecuting this action vigorously on behalf of the Class and have the resources to do so.
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`Superiority - Rule 23(b)(3): The class action mechanism is superior to other
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`available means for the fair and efficient adjudication of this controversy for reasons including
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`but not limited to the following:
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`a.
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`The damages individual Class members suffered are small compared to the
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`burden and expense of individual prosecution of the complex and extensive
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`litigation needed to address Defendant’s conduct.
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`b.
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`Further, it would be virtually impossible for the Class members individually to
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`redress effectively the wrongs done to them. Even if Class members themselves
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`could afford such
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`individual
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`litigation,
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`the court system could not.
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`Individualized litigation would unnecessarily increase the delay and expense to
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`all parties and to the court system and presents a potential for inconsistent or
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`contradictory rulings and judgments. By contrast, the class action device
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`presents far fewer management difficulties, allows the hearing of claims which
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`might otherwise go unaddressed because of the relative expense of bringing
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`individual lawsuits, and provides the benefits of single adjudication, economies
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`of scale, and comprehensive supervision by a single court.
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`c.
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`The prosecution of separate actions by individual Class members would create
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`a risk of inconsistent or varying adjudications, which would establish
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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 15 of 21 PageID #: 15
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`incompatible standards of conduct for Defendant.
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`d.
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`The prosecution of separate actions by individual Class members would create
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`a risk of adjudications with respect to them that would, as a practical matter, be
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`dispositive of the interests of other Class members not parties to the
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`adjudications or that would substantively impair or impede their ability to
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`protect their interests.
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`
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`Notice: Plaintiff and her counsel anticipate that notice to the proposed Class
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`members will be effectuated through recognized, Court-approved notice dissemination methods,
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`which may include United States mail, electronic mail, Internet postings, and/or published notice.
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`CAUSES OF ACTION
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`COUNT 1
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`NEGLIGENCE
`(On behalf of the Nationwide Class and Michigan Subclass)
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`Plaintiff incorporates by reference and realleges all paragraphs previously alleged
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`Plaintiff brings this claim for negligence against Defendant on behalf of each
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`
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`herein.
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`
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`
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`member of the Nationwide Class and each member of the Michigan Subclass.
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`
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`Plaintiff and the Class members, as pet owners, were within the foreseeable zone
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`of risk of injury or other losses in the event Defendant’s Products were defective or contaminated
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`or otherwise negligently formulated, manufactured, or produced, which risks Defendant knew or
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`should have known.
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`
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`Defendant owed Plaintiff and the Class members a duty to offer only safe, non-
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`contaminated products for consumption by Plaintiff’s and the Class members’ household pets.
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`
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`Through its failure to exercise due care, Defendant breached this duty by producing,
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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 16 of 21 PageID #: 16
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`processing, manufacturing, and offering for sale the Products in a defective condition that was
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`unhealthy and injurious to Plaintiff’s and the Class members’ pets.
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`
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`Additionally, Defendant breached its duty of care to Plaintiff and the Class
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`members by failing to use sufficient quality control, perform adequate testing, proper
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`manufacturing, production, or processing, and by failing to take sufficient measures to prevent
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`the Products from being offered for sale, sold, or fed to pets.
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`
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`Defendant knew, or in the exercise of reasonable care should have known, that the
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`Products presented an unacceptable risk of harm to the pets of Plaintiff and the Class members
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`and would result in damage that was foreseeable and reasonably avoidable.
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`
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`As a direct and proximate result of Defendant’s negligence, Plaintiff and the Class
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`members have suffered loss and damages.
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`
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`
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`herein.
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`Therefore, Plaintiff prays for relief as set forth below.
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`COUNT 2
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`STRICT PRODUCT LIABILITY
`(On behalf of the Michigan Subclass)
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`Plaintiff incorporates by reference and realleges all paragraphs previously alleged
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`Plaintiff brings this claim for strict product liability design defect against Defendant
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`on behalf of each member of the Michigan Subclass.
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`Defendant is the producer, manufacturer, and/or distributor of the Products.
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`Defendant’s Products left Defendant’s possession in an unreasonably dangerous
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`
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`
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`condition.
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`
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`Defendant’s products reached Plaintiff and the Michigan Subclass members
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`without substantial change in condition, as expected.
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`
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`The Products, which, among other potential defects, contained aflatoxin, were in
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`an unreasonably dangerous condition because (a) they failed to perform as safely as an ordinary
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`consumer would expect when used as intended or when used in a manner reasonably foreseeable
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`to Defendant; and (b) because the foreseeable risks of using the Products outweighed the benefits
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`of their use.
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`
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`Plaintiff and the Michigan Subclass members used the products as intended and in
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`a manner reasonably foreseeable to Defendant.
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`
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`As the direct and foreseeable result of the defective condition of the Products as
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`produced, manufactured, and/or distributed by Defendant, Plaintiff and the Michigan Subclass
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`members suffered damages.
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`
`
`
`
`
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`herein.
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`Therefore, Plaintiff prays for relief as set forth below.
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`COUNT 3
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`UNJUST ENRICHMENT
`(On behalf of the Nationwide Class and Michigan Subclass)
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`Plaintiff incorporates by reference and realleges all paragraphs previously alleged
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`Plaintiff brings this claim for unjust enrichment against Defendant on behalf of the
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`Nationwide Class and the Michigan Subclass.
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`
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`As a direct, proximate, and foreseeable result of Defendant’s acts and otherwise
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`wrongful conduct, Plaintiff and the Class members conferred a benefit on Defendant and
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`consequently suffered damages. Defendant profited and benefited from the sale of the Products,
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`even as the Products caused Plaintiff and the Class members to incur damages.
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`
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`Defendant voluntarily accepted and retained these profits and benefits, derived
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`from Plaintiff and the Class members, with full knowledge and awareness that as a result of
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`Case 3:21-cv-00007-RLY-MPB Document 1 Filed 01/13/21 Page 18 of 21 PageID #: 18
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`Defendant’s wrongdoing, consumers including Plaintiff and the Class members were not
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`receiving Products of the quality, nature, fitness, or value that had been represented by Defendant
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`or that reasonable consumers expected. Plaintiff and the Class members purchased pet food that
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`they expected would be safe and healthy for their pets and instead have now had to endure the
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`serious injury, illness, hospitalization, and/or death of their beloved pets.
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`
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`Defendant continues to possess monies paid by Plaintiff and the Class members to
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`which Defendant is not entitled.
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`
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`Under the circumstances it would be inequitable for Defendant to retain the benefits
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`conferred upon it and Defendant’s retention of these benefits