throbber
Case 3:21-cv-00009-RLY-MPB Document 1 Filed 01/15/21 Page 1 of 35 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF INDIANA
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`TAMMY JOHNSON, individually and on
`behalf of others similarly situated,
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` Plaintiff,
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`v.
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` Case No.: 3:21-cv-00009
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` CLASS ACTION
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` COMPLAINT AND JURY DEMAND
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`MIDWESTERN PET FOODS, INC., an
`Indiana Corporation.
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`Defendant.
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`Plaintiff Tammy Johnson (“Plaintiff” or “Plaintiff Johnson”) hereby files
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`this Complaint on behalf of herself and all others similarly situated, by and through
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`the undersigned attorneys, against Midwestern Pet Foods, Inc., (hereinafter,
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`“Midwestern” or “Defendant”) and alleges as follows based upon personal
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`knowledge as to herself and her own acts and experiences; and, as to all other
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`matters, upon information and belief based upon, inter alia, investigations
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`conducted by her attorneys.
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`INTRODUCTION
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`1.
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`This is a class action lawsuit brought by Plaintiff on behalf of herself
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`and a class of purchasers of dog and cat food manufactured by Midwestern Pet
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`Foods, Inc. (hereinafter, “Midwestern Pet Food” or “Products”), marketed and
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`distributed by the Defendant, which contain Aflatoxin, a toxin produced by the
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`mold variety Aspergillus flavus.
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`2.
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`The Midwestern Pet Food includes Products branded as Pro Pac,
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`Splash Fat Cat, Nunn Better, Sportstrail 50, and Sportmix.
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`3.
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`Defendant touts that it has been “making high-quality pet food &
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`treats” for generations.1
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`4.
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`Despite Defendant’s claim that its Products are high quality, when
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`pets ingest the Pet Food that is contaminated with Aflatoxin, it can result in serious
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`medical peril, including vomiting, loss of appetite, jaundice, diarrhea, colitis, liver
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`damage, and death.2
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`5.
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`According to the FDA, “As of January 11, 2021, FDA is aware of
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`more than 70 pets that have died and more than 80 pets that are sick after eating
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`Sportmix pet food.”3
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`6.
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`Based on Midwestern’s own pre-sale representations about health
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`testing and quality control measures, infra, it knew or should have known about the
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`1 https://midwesternpetfoods.com/.
`2 FDA ALERT: CERTAIN LOTS OF SPORTMIX PET FOOD RECALLED FOR POTENTIALLY FATAL
`LEVELS OF AFLATOXIN, https://www.fda.gov/animal-veterinary/outbreaks-and-advisories/fda-
`alert-certain-lots-sportmix-pet-food-recalled-potentially-fatal-levels-aflatoxin (last visited Jan.
`14, 2021).
`3 FDA ALERT: CERTAIN LOTS OF SPORTMIX PET FOOD RECALLED FOR POTENTIALLY FATAL
`LEVELS OF AFLATOXIN, https://www.fda.gov/animal-veterinary/outbreaks-and-advisories/fda-
`alert-certain-lots-sportmix-pet-food-recalled-potentially-fatal-levels-aflatoxin
` (last visited Jan. 14, 2021). Not all of these cases have been officially confirmed as aflatoxin
`poisoning through laboratory testing or veterinary record review. This count is approximate and
`may not reflect the total number of pets affected.
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`Aflatoxin contamination in the Midwestern Pet Food.
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`7.
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` Upon information and belief, Defendant failed to disclose and/or
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`actively concealed the known Aflatoxin contamination in the Midwestern Pet Food
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`and its health risk to consumers’ pets.
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`8.
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`As a result of Defendant’s business practices, Plaintiff’s and Class
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`members’ purchases of Midwestern Pet Food have caused them to suffer an
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`ascertainable loss of money and/or property.
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`9.
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`Had Plaintiff and other Class members known about the Aflatoxin
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`contamination of Midwestern Pet Food at the time of purchase, they would not
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`have purchased the Midwestern Pet Food, or would have paid substantially less for
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`it, and would have avoided the significant out-of-pocket expenses of providing
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`veterinary care to their pets as a result of their purchase of Midwestern Pet Food.
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`10. As a result of the Midwestern Pet Food contamination and the
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`considerable monetary costs associated with attempting to treat related symptoms
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`in their pets, Plaintiff and Class members have suffered injury in fact, incurred
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`damages and have otherwise been harmed by Defendant’s conduct.
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`11. Accordingly, Plaintiff brings this action to redress Defendant’s
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`violations of various state and federal consumer protection statutes, and to recover
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`for Defendant’s breach of express and implied warranties, common law fraud and
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`unjust enrichment.
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`JURISDICTION AND VENUE
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`12. This Court has subject matter jurisdiction over this action pursuant to
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`28 U.S.C. §1332 of the Class Action Fairness Act of 2005 because: (i) there are
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`100 or more class members, (ii) there is an aggregate amount in controversy
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`exceeding $5,000,000, exclusive of interest and costs, and (iii) there is minimal
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`diversity because Plaintiff and Defendant are citizens of different states. This Court
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`has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. §
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`1367.
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`13. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391
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`because Defendant transacts business in this District, maintains its corporate
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`headquarters in this District, is subject to personal jurisdiction in this District, and
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`therefore is deemed to be a citizen of this District. Additionally, Defendant has
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`advertised in this District and has received substantial revenue and profits from its
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`sales of Midwestern Pet Food in this District; therefore, a substantial part of the
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`events and/or omissions giving rise to the claims occurred, in part, within this
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`District.
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`14. This Court has personal jurisdiction over Defendant because:
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`Defendant’s corporate headquarters is located in this District; Defendant is
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`registered with the Indiana Secretary of State as a for-profit corporation permitted
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`to operate in Indiana; Defendant conducts substantial business in the District; a
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`substantial part of the acts and omissions complained of occurred in this District;
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`and Defendant has intentionally and purposefully placed Midwestern Pet Food into
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`the stream of commerce within Indiana and throughout the United States.
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`THE PARTIES
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`Plaintiff Tammy Johnson
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`15. Plaintiff Tammy Johnson (“Plaintiff” or “Johnson”) is a citizen of the
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`State of Georgia, and currently resides in Eastman, Georgia.
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`16. Plaintiff owns seven dogs, of which six are adult dogs, and one is a
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`six-month old puppy.
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`17. For approximately two years, Johnson has purchased two types of
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`Midwestern Pet Foods for her animals – SPORTMiX for her adult dogs, and
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`SPORTMiX Puppy Small for her puppy. She has generally purchased the Products
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`from Tractor Supply in Eastman, Georgia.
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`18. Prior to purchasing Midwestern Pet Food products, Plaintiff reviewed
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`and relied upon information furnished by Defendant, which did not disclose or
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`mention the health risks resulting from the Aflatoxin contamination of the
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`Products. Plaintiff viewed this information on the Midwestern Pet Food packaging
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`as well as on Defendant’s website.
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`19. During the week of January 3, 2021, Plaintiff noticed health problems
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`arising in several of her dogs, including vomiting and diarrhea. The dogs who had
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`gotten sick recovered on their own after several days of illness.
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`20. On January 13, 2021, Plaintiff’s puppy remained ill, so she contacted
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`her veterinarian’s office, Ocmulgee Veterinary Clinic in Eastman, Georgia, and
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`was advised that he needed treatment for colitis. Based on this advice, Plaintiff
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`purchased Metronidazole 250mg tablets from her veterinarian to treat her puppy’s
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`colitis.
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`21.
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` Plaintiff has been advised by her veterinarian that the puppy will also
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`have to undergo future testing for liver damage as a result of the colitis.
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`22. After receiving this diagnosis, Plaintiff returned the product to Tractor
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`Supply, where she had purchased it, and bought a more expensive brand, Purina
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`dog food, and paid the difference out-of-pocket.
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`23. Neither the Defendant, nor any of its agents, dealers or other
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`representatives, informed Plaintiff of the existence of the Aflatoxin contamination
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`of the Products prior to purchase. Had Defendant disclosed the contamination to
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`Plaintiff, Plaintiff would not have purchased Midwestern Pet Food, and would
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`have avoided the veterinary and other costs resulting from its use.
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`24. Plaintiff has suffered an ascertainable loss as a result of Defendant’s
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`omissions and/or misrepresentations associated with the Aflatoxin contamination
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`of the Products, including, but not limited to, the out-of-pocket expenses and loss
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`associated with the medical and veterinary expenses resulting from the Products,
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`and the cost of replacement dog food.
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`Defendant Midwestern Pet Foods, Inc.
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`25. Defendant Midwestern Pet Foods, Inc., is a domestic for-profit
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`corporation registered to do business in Indiana with its principal place of business
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`located at 9634 Hedden Road, Evansville, Indiana, 47725, USA.4
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`26. Defendant designs, manufactures, distributes, sells and warrants pet
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`foods, including Products branded as Pro Pac; Splash Fat Cat; Nunn Better;
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`Sportstrail 50; and SPORTMiX.
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`27. Upon information and belief, Defendant develops the Products’
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`directions, marketing materials, ingredient composition, safety guides, and other
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`accompanying product information for Midwestern Pet Food.
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`28. Defendant engages in continuous and substantial business throughout
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`the United States, including in Indiana.
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`FACTUAL ALLEGATIONS
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`A.
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`The Aflatoxin Contamination in Midwestern Pet Food
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`29. Midwestern Pet Foods, Inc. has been in business since 1926.5 It sells
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`numerous lines of pet food including SPORTMiX and other brands.
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`4 Public Business Search, INDIANA SECRETARY OF STATE,
`https://bsd.sos.in.gov/PublicBusinessSearch/BusinessFilings (search term: “Midwestern Pet
`Foods”) (last visited Jan. 14, 2020).
`5 MIDWESTERN PET FOODS – ABOUT US, https://midwesternpetfoods.com/#about-us (last visited
`Jan. 14, 2021).
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`30. Defendant touts that it creates its “own nutritious dry recipes and
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`treats and prepare[s its] foods in . . . 4 family-owned kitchens.”6
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`31.
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`In December 2020, the Food and Drug Administration (“FDA”)
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`reported that certain Midwestern Pet Food products produced in Defendant’s
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`Oklahoma production facility were contaminated with Aflatoxin.7
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`32. Aflatoxin is a mold-borne toxin which can contaminate grains, nuts,
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`and corn when they are inappropriately stored in conditions which facilitate fungal
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`growth.8 Aflatoxin is a formidable toxin and carcinogen which poses severe health
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`risks to humans and animals.9
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`33. On December 30, 2020, Defendant issued a recall for many products
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`in the Sportmix line, including certain lots of:
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`a. Sportmix Energy Plus (50 lb. and 44 lb. bags)
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`b. Sportmix Premium High Energy (50 lb. and 44 lb. bags)
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`c. Sportmix Original Cat (31 lb. and 15 lb. bags)10
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`6 https://midwesternpetfoods.com/.
`7 FDA ALERT: CERTAIN LOTS OF SPORTMIXPET FOOD RECALLED FOR POTENTIALLY FATAL
`LEVELS OF AFLATOXIN, https://www.fda.gov/animal-veterinary/outbreaks-and-advisories/fda-
`alert-certain-lots-sportmix-pet-food-recalled-potentially-fatal-levels-aflatoxin (last visited Jan.
`14, 2021).
`8 C.D. WILLIAMS & H. JAESHKE, FUNGAL HEPATOXINS (2011).
`9 C.D. WILLIAMS & H. JAESHKE, FUNGAL HEPATOXINS (2011).
`10 “Company Announcement: Midwestern Pet Foods Voluntarily Recalls Pet Food Recall for
`Aflatoxin Health Risk” (Dec. 30, 2020), attached as Exhibit A; see also, FDA ALERT: CERTAIN
`LOTS OF SPORTMIX PET FOOD RECALLED FOR POTENTIALLY FATAL LEVELS OF AFLATOXIN,
`https://www.fda.gov/animal-veterinary/outbreaks-and-advisories/fda-alert-certain-lots-sportmix-
`pet-food-recalled-potentially-fatal-levels-aflatoxin (last visited Jan. 14, 2021).
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`34. On January 11, 2021, Defendant expanded this recall to include
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`certain lots of:
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`a. Pro Pac Adult Mini Chunk
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`b. Pro Pac Performance Puppy
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`c. Splash Fat Cat 32%
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`d. Nunn Better Maintenance
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`e. Sportstrail 50
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`f. Sportmix Maintenance
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`g. Sportmix High Protein
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`h. Sportmix Stamina
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`i. Sportmix Bite Size
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`j. Sportmix High Energy
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`k. Sportmix Premium Puppy11
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`35. As a result of the Aflatoxin contamination of Midwestern Pet Foods,
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`the Products are unreasonably dangerous and unsuited for the ordinary and
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`intended purpose of providing nutrition to pets.
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`11 “Company Announcement: Midwestern Pet Foods Voluntarily Expands Recall of Pet Food for
`Aflatoxin Health Risk” (Jan. 11, 2021), attached as Exhibit B; see also, FDA ALERT: CERTAIN
`LOTS OF SPORTMIX PET FOOD RECALLED FOR POTENTIALLY FATAL LEVELS OF AFLATOXIN,
`https://www.fda.gov/animal-veterinary/outbreaks-and-advisories/fda-alert-certain-lots-sportmix-
`pet-food-recalled-potentially-fatal-levels-aflatoxin (last visited Jan. 14, 2021).
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`B. Defendant’s Knowledge of the Contaminated Products
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`36. At all times relevant to this Complaint, including prior to recalling the
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`Product and selling it to Plaintiff and Class Members, Defendant was or should
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`have been aware of the problems with the Midwestern Pet Food.
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`37. As a seasoned manufacturer with almost a century of experience in
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`making pet foods, Defendant analyzes the nutritional content of its products, and
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`conducts testing, including health and nutrition testing, on all of its products.
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`38. Defendant touts the nutrition and safeguards of its Products in
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`statements such as:
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`a. “Midwestern Pet Foods has quality control personnel and laboratories
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`at each plant to test incoming ingredients and finished products. This
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`ranges from managing guarantees, to testing things like degree of
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`cook and microbial confirmation for release. All of our plants are
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`FSMA-ready and follow the GMP regulations as put out through
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`FSMA and the FDA. Additionally, all of our safety technicians follow
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`all OSHA and state regulations.”
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`b. “All SPORTMIX foods are designed to provide complete and
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`balanced nutrition and meet Association of American Feed Control
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`Officials (AAFCO) requirements.”
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`c. “When introducing a new product, Association of American Feed
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`Control Officials (AAFCO) feeding trials are completed at a farm
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`with an in-home atmosphere that is non-invasive, non-lethal and cage-
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`free.”12
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`39. Through these quality control measures, Defendant knew or should
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`have known that the Midwestern Pet Food at issue was unsafe for pet consumption.
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`40. Plaintiff and Class members were without access to the information
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`concealed by Defendant as described herein, and therefore reasonably relied on
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`Defendant’s representations and warranties regarding the quality, nutrition, and
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`safety of Midwestern Pet Food. Had Plaintiff and Class members known of the
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`contamination and the potential harm posed by Midwestern Pet Food, they would
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`have taken steps to avoid that harm and/or not have purchased the Products at all.
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`41. Despite Defendant’s knowledge of the Aflatoxin contamination of
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`Midwestern Pet Food, it failed to either notify Plaintiff and Class members of the
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`nature and extent of the problems with the Product or to provide an adequate
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`remedy.
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`CLASS ACTION ALLEGATIONS
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`42. Plaintiff brings this action on her own behalf, and on behalf of the
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`following Class pursuant to FED. R. CIV. P. 23(a), 23(b)(2), and/or 23(b)(3).
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`Specifically, the Class consists of the following:
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`12 SPORTMIX – FAQ, https://www.sportmix.com/faq/ (last visited Jan. 14, 2021)
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`Nationwide Class:
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`All persons or entities in the United States who purchased Midwestern Pet
`Foods that were subject to Defendant’s December 30, 2020 and/or January
`11, 2021 recalls.
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`and/or, in the alternative,
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`Georgia Class:
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`All persons or entities in Georgia who purchased Midwestern Pet Foods that
`were subject to Defendant’s December 30, 2020 and/or January 11, 2021
`recalls.
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`and/or, in the alternative,
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`Indiana Class:
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`All persons or entities in Indiana who purchased Midwestern Pet Foods that
`were subject to Defendant’s December 30, 2020 and/or January 11, 2021
`recalls.
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`43. Together, the Nationwide Class, the Georgia Class, and the Indiana
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`Class will be referred to collectively as the “Class.” Excluded from the Class are
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`Defendant, its affiliates, employees, officers and directors, persons or entities that
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`purchased Midwestern Pet Food for resale, and the Judge(s) assigned to this case.
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`Plaintiff reserves the right to modify, change or expand the Class definition.
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`44. Numerosity: Upon information and belief, the Class is so numerous
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`that joinder of all members is impracticable. While the exact number and identities
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`of individual members of the Class are unknown at this time, such information
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`being in the sole possession of Defendant and obtainable by Plaintiff only through
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`the discovery process, Plaintiff believes that hundreds or thousands of
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`contaminated Products have been sold in each of the states that are the subject of
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`the Class.
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`45. Existence and Predominance of Common Questions of Fact and Law:
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`Common questions of law and fact exist as to all members of the Class. These
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`questions predominate over the questions affecting individual Class members.
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`These common legal and factual questions include, but are not limited to:
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`a. whether the Midwestern Pet Food purchased by Plaintiff and Class is
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`or was affected by Aflatoxin contamination;
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`b. whether Defendant knowingly failed to disclose the existence and
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`cause of the Aflatoxin contamination on Midwestern Pet Food and its
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`adverse medical effects on pets;
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`c. whether Defendant’s conduct violates the Georgia Fair Business
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`Practices Act, Ga. Code Ann. §§ 10-1-390, et seq;
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`d. whether Defendant’s conduct violates the Georgia Uniform Deceptive
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`Trade Practices Act, Ga. Code Ann. §§ 10-1-370, et seq.;
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`e. whether Defendant’s conduct violates the Indiana Deceptive
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`Consumer Sales Act, Ind. Code §§ 24-5-0.5-1, et seq.;
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`f. whether Defendant is strictly liable for the state statutory violations;
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`g. whether Defendant’s conduct constitutes negligence;
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`h. whether Defendant’s conduct constitutes a breach of express
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`warranty;
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`i. whether Defendant’s conduct constitutes a breach of implied
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`warranty;
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`j. whether Defendant’s conduct constitutes common law fraud;
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`k. whether Defendant’s conduct constitutes unjust enrichment; and
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`l. whether Plaintiff and Class members are entitled to monetary
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`damages and/or other remedies and, if so, the nature of any such
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`relief.
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`46. Typicality: All of Plaintiff’s claims are typical of the claims of the
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`Class since Plaintiff purchased contaminated Midwestern Pet Food, as did each
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`member of the Class. Furthermore, Plaintiff and all members of the Class sustained
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`monetary and economic injuries including, but not limited to, ascertainable loss
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`arising out of Defendant’s wrongful conduct. Plaintiff is advancing the same
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`claims and legal theories on behalf of herself and all absent Class members.
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`47. Adequacy: Plaintiff is an adequate representative because her interests
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`do not conflict with the interests of the Class that she seeks to represent, she has
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`retained counsel competent and highly experienced in complex class action
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`litigation, and she intends to prosecute this action vigorously. The interests of the
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`Class will be fairly and adequately protected by Plaintiff and her counsel.
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`48. Superiority: A class action is superior to all other available means of
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`fair and efficient adjudication of the claims of Plaintiff and members of the Class.
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`The injury suffered by each individual Class member is relatively small in
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`comparison to the burden and expense of individual prosecution of the complex
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`and extensive litigation necessitated by Defendant’s conduct. It would be virtually
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`impossible for members of the Class to individually and effectively redress the
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`wrongs done to them. Even if the members of the Class could afford such
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`individual litigation, the court system could not. Individualized litigation presents a
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`potential for inconsistent or contradictory judgments. Individualized litigation also
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`increases the delay and expense to all parties, and to the court system, presented by
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`the complex legal and factual issues of the case. By contrast, the class action
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`device presents far fewer management difficulties, and provides the benefits of
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`single adjudication, economy of scale, and comprehensive supervision by a single
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`court. Upon information and belief, members of the Class can be readily identified
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`and notified based on, inter alia, Defendant’s sale information and records, and
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`FDA complaints and communications.
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`49.
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` Defendant has acted, and refused to act, on grounds generally
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`applicable to the Class, thereby making appropriate final equitable relief with
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`respect to the Class as a whole.
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`VIOLATIONS ALLEGED
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`COUNT I
`VIOLATIONS OF GEORGIA FAIR BUSINESS PRACTICES ACT
`(Ga. Code Ann. §§ 10-1-390, et seq.)
`(Brought on Behalf of the Georgia Class)
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`50. Plaintiff incorporates by reference all allegations of the preceding
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`paragraphs as though fully set forth herein.
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`51. Defendant is a “person” as defined by the Georgia Fair Business
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`Practices Act (“Georgia FBPA”). Ga. Code Ann. § 10-1-392(a)(24).
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`52. Plaintiff and Class Members are “consumers” within the meaning of
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`the Georgia FBPA. Ga. Code Ann. § 10-1-392(a)(6).
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`53. The purchase of Midwestern Pet Food by Plaintiff and Class Members
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`constituted “consumer transactions” as defined by the Georgia FBPA. Ga. Code
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`Ann. § 10-1-392(a)(10).
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`54. The Georgia FBPA declares “[u]nfair or deceptive acts or practices in
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`the conduct of consumer transactions and consumer acts or practices in trade or
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`commerce” to be unlawful, Ga. Code Ann. § 10-1-393(a), including but not limited
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`to “representing that goods or services have sponsorship, approval, characteristics,
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`ingredients, uses, or benefits that they do not have,” “[r]epresenting that goods or
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`services are of a particular standard, quality, or grade … if they are of another,”
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`and “[a]dvertising goods or services with intent not to sell them as advertised,” id.
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`§§ 10-1-393(b)(5), (7) & (9).
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`Case 3:21-cv-00009-RLY-MPB Document 1 Filed 01/15/21 Page 17 of 35 PageID #: 17
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`55. Defendant represents on its website that it thoroughly tests its
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`products to ensure consumer satisfaction including in statements such as:
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`a. “Midwestern Pet Foods has quality control personnel and laboratories
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`at each plant to test incoming ingredients and finished products. This
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`ranges from managing guarantees, to testing things like degree of
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`cook and microbial confirmation for release. All of our plants are
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`FSMA-ready and follow the GMP regulations as put out through
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`FSMA and the FDA. Additionally, all of our safety technicians follow
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`all OSHA and state regulations.”
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`b. “All SPORTMIX foods are designed to provide complete and
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`balanced nutrition and meet Association of American Feed Control
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`Officials (AAFCO) requirements.”
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`c. “When introducing a new product, Association of American Feed
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`Control Officials (AAFCO) feeding trials are completed at a farm
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`with an in-home atmosphere that is non-invasive, non-lethal and cage-
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`free.”
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`56. By failing to disclose the Aflatoxin contamination of the Product to
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`Plaintiff and Class Members, Defendant violated the Georgia FBPA because
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`Defendant represented that Midwestern Pet Food had characteristics and benefits
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`that it does not have, and represented that the Products were of a particular
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`- 17 -
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`Case 3:21-cv-00009-RLY-MPB Document 1 Filed 01/15/21 Page 18 of 35 PageID #: 18
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`standard, quality, or grade (i.e., nutritious, balanced, etc.) when they were of
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`another. See Ga. Code Ann. §§ 10-1-393(b)(5) & (7).
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`57. Defendant advertised the Products as nutritious and of a good quality,
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`with the intent not to sell them as advertised, in violation of § 10-1-393(b)(9).
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`58. Defendant’s unfair and deceptive acts or practices occurred repeatedly
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`in Midwestern’s course of trade or business, were material, were capable of
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`deceiving a substantial portion of the purchasing public, and as a result, caused
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`economic harm to owners and purchasers of Midwestern Pet Food.
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`59. Through its product testing, Defendant knew or should have known
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`about the defective nature of the Midwestern Pet Food.
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`60. Defendant was under a duty to Plaintiff and Class Members to
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`disclose the defective nature of the Product, because:
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`a. Defendant was in a superior position to know the true state of facts
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`about Midwestern Pet Food.
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`b. Plaintiff and Class Members could not reasonably have been expected
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`to learn or discover that the Midwestern Pet Food was contaminated
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`until it actually caused adverse health effects in their pets; and
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`c. Defendant knew that Plaintiff and Class Members could not
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`reasonably have been expected to learn or discover that the
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`- 18 -
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`Case 3:21-cv-00009-RLY-MPB Document 1 Filed 01/15/21 Page 19 of 35 PageID #: 19
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`Midwestern Pet Food was contaminated until it actually caused
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`adverse health effects in their pets.
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`61. Defendant knew or should have known that its conduct violated the
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`Georgia FBPA.
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`62.
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`In failing to disclose the defective nature of Midwestern Pet Food,
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`Defendant knowingly and intentionally concealed material facts and breached its
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`duty not to do so.
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`63. The facts Defendant concealed from Plaintiff and Class Members are
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`material in that a reasonable consumer would have considered them to be
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`important in deciding whether to purchase the Product. Moreover, a reasonable
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`consumer would consider the contamination to be an undesirable quality, as
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`Plaintiff and Class Members did. Had Plaintiff and Class Members known about
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`the contamination, they would not have purchased the Product.
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`64. Plaintiff and Class Members, like all objectively reasonable
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`consumers, did not expect their pet food purchase to be contaminated. It is a
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`reasonable and objective consumer expectation for consumers to expect pet food
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`not to poison their pets.
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`65. As a result of Defendant’s misconduct, Plaintiff and Class Members
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`have been harmed and suffered actual damages including veterinary bills, medical
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`- 19 -
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`Case 3:21-cv-00009-RLY-MPB Document 1 Filed 01/15/21 Page 20 of 35 PageID #: 20
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`expenses, replacement pet food, and emotional anguish resulting from death or
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`illness of a cherished pet.
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`66. As a direct and proximate result of Defendant’s unfair or deceptive
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`acts or practices, Plaintiff and Class Members suffered and will continue to suffer
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`actual damages in that they have experienced and may continue to experience
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`ongoing medical expenses, and emotional anguish, due to damage to their pets’
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`health.
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`67. Defendant’s violations present a continuing risk to Plaintiff and to the
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`general public. Defendant’s unlawful acts and practices complained of herein
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`affect the public interest.
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`68. Thus, pursuant to Ga. Code Ann. § 10-1-399, Plaintiff seeks, in
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`addition to equitable relief, actual and statutory damages, attorneys’ fees and
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`expenses, treble damages, and punitive damages as permitted under the Georgia
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`FBPA and applicable law.
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`COUNT II
`VIOLATIONS OF THE GEORGIA
`UNIFORM DECEPTIVE TRADE PRACTICES ACT
`(Ga. Code Ann. §§ 10-1-370, et seq.)
`(On Behalf of the Georgia Class)
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` Plaintiff incorporates by reference all allegations of the preceding
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`69.
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`paragraphs as though fully set forth herein.
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`70. Plaintiff brings this claim on behalf of herself and the Georgia Class.
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`- 20 -
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`Case 3:21-cv-00009-RLY-MPB Document 1 Filed 01/15/21 Page 21 of 35 PageID #: 21
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`71. Defendant, Plaintiff, and Class members are “persons” within the
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`meaning of Georgia’s Uniform Deceptive Trade Practices Act (“Georgia
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`UDTPA”). Ga. Code Ann. § 10-1-371(5).
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`72. The Georgia UDTPA prohibits “deceptive trade practices” which
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`include the “misrepresentation of standard, quality, or grade of goods and
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`services,” “engaging in any other conduct which similar creates a likelihood of
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`confusion or misunderstanding,” and “representing that goods or services have
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`sponsorship, approval, characteristics, ingredients, uses, or benefits that they do not
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`have,” and “[a]dvertising goods or services with intent not to sell them as
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`advertised.” Ga. Code Ann. § 10-1-372.
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`73. By failing to disclose the defective nature of the Product to Plaintiff
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`and Class Members, Defendant engaged in deceptive trade practices in violation of
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`the Georgia UDTPA, because Defendant represented that the Class Vehicles had
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`characteristics and benefits that they do not have, and represented that the Class
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`Vehicles were of a particular standard, quality, or grade (i.e. nutritious and high-
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`quality, etc.) when they were of another. See Ga. Code Ann. §§ 10-1- 372(5), (7),
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`(9).
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`74. Defendant advertised Midwestern Pet Food as nutritious and of high
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`quality, with the intent not to sell the Products as advertised, in violation of Ga.
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`Code Ann. § 10-1-372(12). Defendant’s unfair and deceptive acts or practices
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`- 21 -
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`Case 3:21-cv-00009-RLY-MPB Document 1 Filed 01/15/21 Page 22 of 35 PageID #: 22
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`occurred repeatedly in Defendant’s course of trade or business, were material, were
`
`
`
`
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`capable of deceiving a substantial portion of the purchasing public, and as a result,
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`caused economic harm on owners and purchasers of Midwestern Pet Food.
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`75. Through Defendant’s product testing, it knew or should have known
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`about the defective nature of Midwestern Pet Food.
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`76. Defendant was under a duty to Plaintiff and Class Members to
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`disclose the defective nature of the Product, because:
`
`a. Defendant was in a superior position to know the true state of facts
`
`about Midwestern Pet Food.
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`b. Plaintiff and Class members could not reasonably have been expected
`
`to learn or discover that Midwestern Pet Food was contaminated until
`
`it actually caused adverse health effects in their pets; and
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`c. Defendant knew that Plaintiff and Class members could not
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`reasonably have been expected to learn or discover that Midwestern
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`Pet Food was contaminated until it actually caused adverse health
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`effects in their pets.
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`77. Thus, Defendant knew or should have known that its conduct violated
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`the Georgia UDTPA.
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`- 22 -
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`Case 3:21-cv-00009-RLY-MPB Document 1 Filed 01/15/21 Page 23 of 35 PageID #: 23
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`78.
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`In failing to disclose the defective nature of the Product, Defendant
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`knowingly and intentionally concealed material facts and breached its duty not to
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`do so.
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`79. The facts Defendant concealed from Plaintiff and Class Members are
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`material in that a reasonable consumer would have considered them to be
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`important in deciding whether to purchase the Product. Moreover, a reasonable
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`consumer would consider the c

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