Case 3:21-cv-00022-RLY-MPB Document 1 Filed 01/28/21 Page 1 of 25 PageID #: 1
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF INDIANA
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`HARVEY E. WILLIAMS, OWEN WOODALL,
`VOLLIE GRIFFIN, MEL LAFEBRE, and
`CHRISTINA KENNEDY, on behalf of themselves
`and all others similarly situated,
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`Plaintiffs,
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`v.
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`MIDWESTERN PET FOODS, INC.,
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`Defendant.
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`CLASS ACTION COMPLAINT
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`DEMAND FOR JURY TRIAL
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`CASE NO. 3:21-cv-22
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`Plaintiffs Harvey E. Williams, Owen Woodall, Vollie Griffin, Mel LaFebre, and Christina
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`Kennedy (“Plaintiffs”), on behalf of themselves and all others similarly situated, bring this class action
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`suit for damages and equitable relief against Defendant Midwestern Pet Foods, Inc. (“Defendant”).
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`Plaintiffs allege the following based upon personal information as to allegations regarding themselves,
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`on the investigation of their counsel, and on information and belief as to all other allegations:
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`NATURE OF THE ACTION
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`1.
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`Plaintiffs Harvey E. Williams, Owen Woodall, Vollie Griffin, Mel LaFebre, and
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`Christina Kennedy bring this case on behalf of themselves and other all consumers nationwide who
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`bought Defendant’s pet food products containing excessive levels of Aflatoxin, a toxin created by the
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`mold Aspergillus flavus. At high levels, aflatoxin can result in illness and death.
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`2.
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`Defendant manufactures, warrants, advertises, and sells a variety of pet foods under
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`several brand names, including Sportmix CanineX, Earthborne Holistic, Pro Pac, Venture,
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`Wholesomes, Sportmix, Sportstrail, Splash, Nunn Better and Unrefined.
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`3.
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`On or around December 30, 2020, Defendant announced a recall of three formulas of
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`cat and dog food products; specifically, Sportmix Energy Plus, Sportmix Premium High Energy and
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`Sportmix Original Cat. According to Defendant’s news announcement, tests indicated that the
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`recalled products contained “levels of Aflatoxin that exceed acceptable limits.” Aflatoxin is a toxic
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`mold that can result in illness or death if ingested. On or around the same day, the Food and Drug
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`Administration (“FDA”) published news about Defendant’s recall and reported that several dogs have
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`fallen ill or died after consuming Defendant’s Sportmix products.
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`4.
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`On or around January 11, 2021, Defendant announced that it was expanding the list of
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`recalled pet foods.1 According to Defendant’s January 11, 2021 news release, the recalled products
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`were made with corn ingredients and were produced at its Chickasha Operations Facility in Oklahoma.
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`The recalled products all expire on or before July 9, 2022 and are identified as:
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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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`• Sportstrail, 50 lb. bag
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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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`1 https://www.fda.gov/animal-veterinary/outbreaks-and-advisories/fda-alert-certain-lots-sportmix-pet-
`food-recalled-potentially-fatal-levels-aflatoxin
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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. bag
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`The above products are hereinafter referred to as “Pet Food Products.”
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`5.
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`Defendant has marketed and advertised the Pet Food Products as suitable for animals,
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`has represented that the Pet Food Products provide targeted nutrition, and/or has guaranteed the Pet
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`Food Products for taste and nutrition. As alleged herein, Defendant’s marketing and advertising of the
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`Pet Food Products is false, deceptive, and misleading to reasonable consumers because the Pet Food
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`Products contained dangerous or toxic levels of Aflatoxin, and thus were not as advertised,
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`represented, or guaranteed.
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`6.
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`Plaintiffs and Class members would not have purchased the Pet Food Products had they
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`known the Products contained, or might have contained, dangerous or toxic levels of Aflatoxin and/or
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`that Defendant did not adequately test or inspect the Pet Food Products before selling them.
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`7.
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`Accordingly, Plaintiffs Harvey E. Williams bring this action and asserts claims on
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`behalf of themselves and all other similarly situated persons (defined below) for negligence, negligent
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`misrepresentation, fraud, and unjust enrichment.
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`JURISDICTION AND VENUE
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`8.
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`This Court has subject matter jurisdiction pursuant to the Class Action Fairness Act,
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`28 U.S.C. § 1332(d), because the aggregate amount in controversy exceeds $5 million, exclusive of
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`interests and costs; the number of members of the proposed Class exceeds 100; and many members of
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`the proposed Class are citizens of different states than the Defendant.
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`9.
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`This Court has personal jurisdiction over Defendant because Defendant is
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`headquartered in the State of Indiana, regularly conducts business in this Judicial District, and has
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`extensive contacts with this forum.
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`10.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391 as Defendant transacts
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`substantial business in this District.
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`11.
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`This Court has supplemental jurisdiction over the state law claims pursuant to
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`28 U.S.C. § 1367.
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`THE PARTIES
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`Plaintiffs
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`12.
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`Plaintiff Harvey E. Williams is a citizen of Georgia who resides in Baxley, Georgia.
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`Plaintiff bought and fed Defendant’s Sportmix Premium High Energy to his pet American Pitbull
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`Terriers—Jamaica, Red and Dozer—who were healthy before consuming the Sportmix Premium High
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`Energy food. Plaintiff bought the Sportmix Premium High Energy from Tractor Supply in Baxley,
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`Georgia in or around December 2020. After consuming the product, Jamaica, Red and Dozer
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`experienced sluggishness and gastrointestinal issues. Jamaica and Red passed away suddenly and
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`unexpectedly. Jamaica had given birth to a litter of eight puppies shortly after Christmas and all the
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`puppies also died suddenly and unexpected. Dozer ultimately recovered after he stopped consuming
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`the Sportmix Premium High Energy food.
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`13.
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`Before Defendant’s recalls, Plaintiff Williams was not aware nor had any knowledge
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`that Defendant’s recalled Sportmix Premium High Energy food might contain excessive levels of
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`Aflatoxin, or that Defendant did not adequately test or inspect the food before selling it. Defendant
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`did not disclose these material facts on the food label. Plaintiff would not have purchased the
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`Sportmix Premium High Energy food or fed it to Jamaica, Red, and Dozer had he known that the food
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`might contain excessive levels of Aflatoxin, or that Defendant did not adequately test or inspect the
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`food before selling. In buying the Sportmix Premium High Energy food, Plaintiff relied on the
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`representations on the food label.
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`14.
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`Plaintiff Owen Woodall is a citizen of North Carolina who resides in Dallas, North
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`Carolina. Plaintiff purchased and fed Defendant’s Sportmix Energy Plus to his pet Treeing Walker—
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`Billy—who was healthy before consuming the Sportmix Energy Plus food. Plaintiff bought the
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`Sportmix Energy Plus from Southern States in Dallas, North Carolina in or around November or
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`December 2020. After consuming the product, Billy experienced loss of appetite, weight loss,
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`gastrointestinal issues, and growths on his intestines and anus. Billy was treated by a veterinarian but
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`was ultimately euthanized in early January 2021. Plaintiff incurred expenses in connection with
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`veterinary treatment.
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`15.
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`Before Defendant’s recalls, Plaintiff Woodall was not aware nor had any knowledge
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`that Defendant’s recalled Sportmix Energy Plus food might contain excessive levels of Aflatoxin, or
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`that Defendant or that Defendant did not adequately test or inspect the food before selling it.
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`Defendant did not disclose these material facts on the food label. Plaintiff would not have purchased
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`the Sportmix Energy Plus food or fed it to Billy had he known that the food might contain excessive
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`levels of Aflatoxin, or that Defendant did not adequately test or inspect the food before selling. In
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`buying the Sportmix High Energy Plus food, Plaintiff relied on the representations on the food label.
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`16.
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`Plaintiff Vollie Griffin is a citizen of Texas, residing in Cuero, Texas. Plaintiff
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`purchased and fed Defendant’s Sportmix Energy Plus to her pet rottweiler—Bishop—who was healthy
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`before consuming the Sportmix Energy Plus. Plaintiff bought the Sportmix Energy Plus from Ful-O-
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`Pep in Cuero, Texas in or around December 2020. After consuming the product, Bishop experienced
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`skin issues, gastrointestinal problems, and swelling of his testicles requiring him to be neutered.
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`Bishop was seen by a veterinarian and prescribed medication for diarrhea but continues to suffer
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`symptoms. Plaintiff incurred expenses in connection with veterinary treatment.
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`17.
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`Before Defendant’s recalls, Plaintiff Griffin was not aware nor had any knowledge that
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`Defendant’s recalled Sportmix Energy Plus food might contain excessive levels of Aflatoxin, or that
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`Defendant did not adequately test or inspect the food before selling it. Defendant did not disclose
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`these material facts on the food label. Plaintiff would not have purchased the Sportmix Energy Plus or
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`fed it to Bishop had she known that the food might contain excess levels of Aflatoxin, or that
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`Defendant did not adequately test or inspect the food before selling. In buying the Sportmix Energy
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`Plus, Plaintiff relied on the representations on the food label.
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`18.
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`Plaintiff Mel LaFebre is a citizen of California, who resides in Valley Springs,
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`California. Plaintiff purchased and fed Defendant’s Sportmix Energy Plus to his pet Pitbull—Bella—
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` who was healthy before consuming the Sportmix Energy Plus. Plaintiff bought the Sportmix Energy
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`Plus online from Tractor Supply in or about December 2020. After consuming the product, Bella
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`experienced loss of appetite and gastrointestinal problems and passed away suddenly and
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`unexpectedly in January 2021. Plaintiff incurred veterinary expenses in connection with Bella’s
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`cremation.
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`19.
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`Before Defendant’s recalls, Plaintiff Lafebre was not aware nor had any knowledge that
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`Defendant’s recalled Sportmix Energy Plus food might contain excessive levels of Aflatoxin, or that
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`Defendant did not adequately test or inspect the food before selling. Defendant did not disclose these
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`material facts on the food label. Plaintiff would not have purchased the Sportmix or fed it to Bella had
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`he known that the food might contain excessive levels of Aflatoxin, or that Defendant did not
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`adequately test or inspect the food before selling. In buying the Sportmix Energy Plus, Plaintiff relied
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`on the representations on the food label.
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`20.
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`Plaintiff Christina Kennedy is a citizen of Pennsylvania who resides in Newtown,
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`Pennsylvania. Plaintiff purchased and fed Defendant’s Sportmix Stamina to her pet Great Dane—
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`Blu—who was healthy before consuming the Sportmix Stamina. Plaintiff bought the Sportmix
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`Stamina online from Chewy in or around December 2020. After consuming the product, Blu
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`experienced lethargy, loss of appetite, weight loss, gum discoloration, and gastrointestinal issues. Blu
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`was treated by a veterinarian and hospitalized. He developed aspirational pneumonia and was
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`diagnosed with gastritis. In discharge paperwork, the veterinarian noted possible food toxicity in
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`connection with Sportmix Stamina food and advised Plaintiff to feed Blu other food. Blu has
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`improved since switching to a different food. Plaintiff incurred expenses in connection with Blu’s
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`veterinary treatment.
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`21.
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`Before Defendant’s recalls, Plaintiff Kennedy was not aware nor had any knowledge
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`that Defendant’s recalled Sportmix Stamina food might contain excessive levels of Aflatoxin, or that
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`Defendant did not adequately test or inspect the food before selling. Defendant did not disclose these
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`material facts on the food label. Plaintiff would not have purchased the Sportmix Stamina or fed it to
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`Blu had she known that the food might contain excessive levels of Aflatoxin, or that Defendant did not
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`adequately test or inspect the food before selling. In buying the Sportmix Stamina, Plaintiff relied on
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`the representations on the food label.
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`Defendant Midwestern Pet Foods, Inc.
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`22.
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`Defendant Midwestern Pet Foods, Inc. is a domestic for-profit corporation registered in
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`Indiana, with its principal place of business located in Evansville, Indiana. Defendant does business
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`throughout the United States. Defendant’s pet food products are sold throughout the United States at
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`large and small retailers and online retailers, such as Amazon.com and Chewy.com.
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`FACTUAL ALLEGATIONS
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`The Pet Food Products
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`23.
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`Defendant manufacturers and sells dog and cat food, including canned and dried foods,
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`and treats. Defendant touts itself as a family owned business since 1926. It claims that over the years,
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`it has “learned a lot about family, pet companions and making high-quality pet food and treats.”
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`24.
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`Defendants have several brands of pet food, including the following: Sportmix
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`CanineX, Earthborne Holistic, Pro Pac Ultimates, Venture, Wholesomes, Sportmix, Unrefined,
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`Sportstrail, Nunn better Hunter’s Select, and Splash Fat Cat.
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`25.
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`Defendant markets, advertises, represents, and warrants its food products, including the
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`Pet Food Products, as being fit for pets such as fish, cats, and dogs. Many of its dried pet foods are
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`sold in large bags up to 50 lbs.
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`26.
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` For example, with regarding to the Sportmix brand, on the front of the food product
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`label Defendant includes an illustration of a dog, thereby indicating that the food is suitable for dogs.
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`Defendant also advertises on the front of the Sportmix food label, “TARGETED NUTRITION FOR
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`DOGS,” in bold, conspicuous font. Further, Defendant states on the front of the Sportmix dog food
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`labels, “100% Guaranteed for Taste & Nutrition.” Image 1 below depicts a sample of the Sportmix
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`dog food label at issue:
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`Image 1
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`27.
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`Defendant also touts several claimed benefits of its Sportmix dog food on its website.
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`Sportmix is sold in different formulas, including: Energy Plus, High Energy Adult Chunk, High
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`Energy, Maintenance, Stamina and Puppy Small Bits. Each of these formulas is advertised as being
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`nutritious for specific types of dogs. For example, Energy Plus is “formulated for highly active dogs
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`needed a maximum level of energy,” such as dogs participating in competitive events or high stress
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`working dogs. All of the Sportmix formulas are advertised on Defendant’s website as being
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`“formulated to meet the nutrition levels established by the AAFCO Dog Food Nutrient Profiles” for
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`maintenance, except for the Puppy Small Bites formula, which Defendant says is “formulated to meet
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`the nutritional levels established by the AAFCO Dog Food Nutrient Profiles” for lactation/gestation
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`and growth of dogs.
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`28.
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`Regarding the Sportmix cat food, on the front of the food product label Defendant
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`includes an illustration of a cat, thereby indicating that the food is suitable for cats. Defendant also
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`advertises on the front of the Sportmix cat food label, “TARGETED NUTRITION FOR CATS AND
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`KITTENS,” in bold, conspicuous font. Further, Defendant states on the front of the Sportmix cat food
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`labels, “100% Guaranteed for Taste & Nutrition.” Image 2 below depicts a sample of the Sportmix cat
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`food label at issue:
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`Image 2
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`29.
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`Defendant also touts several claimed benefits of its Sportmix cat food on its website.
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`Sportmix for cats is sold in only one formula: Original Recipe. Specifically, Defendant says the
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`Original Recipe cat food is “formulated to ensure 100% complete and balanced nutrition for your cat,
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`supplying essential nutrients need to promote strong muscles and bones, a glossy coat and bright
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`eyes.” Further, Defendant claims that Sportmix cat food is “formulated to meet the nutrition levels
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`established by the AAFCO Dog [sic] Food Nutrient Profiles for all life states.”
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`30.
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`As to the Nunn better dog food, on the front of the food product label Defendant
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`includes an illustration of a dog, thereby indicating that the food is suitable for dogs. Defendant also
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`advertises on the front of the Nunn better dog food label, “Complete & Balanced Nutrition,” and
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`“100% Guaranteed.” Image 3 below depicts a sample of the Nunn better dog food label at issue:
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`Image 3
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`31.
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`Regarding the Pro Pac Dog food, on the front of the food product label Defendant
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`includes an illustration of a dog, thereby indicating that the food is suitable for dogs. Defendant also
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`advertises on the front of the Pro Pac Dog food label, “100% Guaranteed Taste & Nutrition.” Image 4
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`below depicts a sample of the Pro Pac Dog food label at issue:
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`32.
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`Defendant’s Sportstrail dog food on the front of the food label includes an illustration
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`of hunting dogs, thereby indicating that the food is suitable for dogs. Image 5 below depicts a sample
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`of the Sportstrail dog food label at issue:
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`33.
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`Defendant’s Splash Fat Cat fish food on the front of the food label includes an
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`illustration of a fish with the words below “For All Fresh Water Fish,” thereby indicating that the food
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`is suitable for all fresh water fish. Image 6 below depicts a sample of the Splash Fat Cat fish food
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`label at issue:
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`34.
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`Defendant also represents on its website for Sportmix that it has a board-certified
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`nutritionist on staff who creates its pet food recipes.2
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`35. Moreover, in a published interview with Defendant’s marketing coordinator, Katie
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`McNulty, McNulty stated the Defendant’s pet food products are manufactured in four “state-of-the-
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`art” kitchens in Indiana, Illinois, Oklahoma, and New York. McNulty also emphasized that the
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`company does not co-manufacture foods for other companies. “This gives consumers peace of mind
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`2 https://www.sportmix.com/faq/
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`as we can focus on crafting wholesome recipes, choosing trustworthy ingredient sources, and
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`producing safe and nutritious food.”
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`Pet Foods with Aflatoxins are Unsafe and Dangerous
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`36. Mycotoxins are toxins naturally produced by molds (fungi) and grow in several foods,
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`such as cereals, dried fruits, nuts, and spices. According to a study conducted by the company Biomin
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`in 2010, mycotoxins are, often, present in animal feed and commodities. Biomin’s study showed that
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`out of 3,300 samples tested during a 12-month period in 2010, 78% tested positive for mycotoxin.
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`37.
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`There are several hundreds of different types of mycotoxins, but one of the most
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`dangerous to humans and animals is Aflatoxin. Aflatoxins are produced by the molds Aspergillus
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`flavus and Aspergillus parasiticus, which grow in grains, soil, and hay. Crops that are often affected
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`by Aflatoxins are cereal (corn, sorghum, wheat and rice), oilseeds (soybean, sunflower, and cotton
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`seeds), spices (chili peppers, ginger, turmeric, and coriander) and tree nuts (almond, walnut, pistachio
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`and coconut).
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`38.
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`Aflatoxin affects the liver of animals (more commonly dogs than cats) and is also
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`known as a cancer-causing agent. Because Aflatoxin affects mainly the liver, gastrointestinal and
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`reproductive issues may arise from consumption of the toxin. Symptoms of high levels of Aflatoxin
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`consumption include jaundice, anemia, fever, lethargy, bloody diarrhea, severe vomiting, and
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`discolored urine.
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`39.
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`Aflatoxin ends up in commercial pet food because of the ingredients that are used, such
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`as corn, rice, wheat cereals or soybeans. Processed pet foods containing corn (such as corn flour,
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`whole grain corn, and corn gluten meal) are likely to become contaminated with Aflatoxin. The toxin
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`often contaminates agricultural crops, like corn, before they are harvested due to certain conditions
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`like high temperatures, excessive drought periods, or pre-harvest contamination by insects. Aflatoxin
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`may also develop if crops are wet for a long time, or they may develop on stored crops where there is
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`moisture resulting in mold development. An absence of visible mold does not guarantee freedom from
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`Mycotoxins, including Aflatoxins.
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`40.
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`The presence of Aflatoxins in pet foods is well known. In 1998, 2005, 2011, and 2013,
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`there were extensive recalls due to the Aflatoxins in dog and cat foods. In 2020, several pet foods
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`were reported as having extensive Aflatoxins. For example, in September 2020, Sunshine Mills, Inc.
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`identified and recalled certain brands of pet food made with corn as containing high levels of
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`Aflatoxin. It later expanded that recall in October 2020 to include 15 brands.
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`The Recalls
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`41.
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`On or around December 30, 2020, Defendant announced a recall, in cooperation with
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`the FDA, of five cat and dog food products it had manufactured that were distributed nationally to
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`retail stores and online retailers. Defendant issued the recall based on tests showing that the following
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`Pet Food Products contained unacceptable levels of Aflatoxin:
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`• 50# Sportmix Energy Plus Lots Exp. 03/02/22/05/L2, 03/02/22/05/L3,
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`03/03/22/05/L2
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`• 44# Sportmix Energy Plus Lots 03/02/22/L3
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`• 50# Sportmix Premium High Energy Lots 03/03/22/05/L3
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`• 44# Sportmix Premium High Energy Lots 03/03/22/05/L3
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`• 31# Sportmix Original Cat Lots 03/03/22/05/L3
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`42.
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`In the news release announcing the recall, Defendant instructed pet parents not to “feed
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`the recalled products to your pets or any other animals. Destroy the products in a way that children,
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`pets, and wildlife cannot access them. Wash and sanitize pet food bowls, cups and storage
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`containers.”
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`43.
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`On or around January 11, 2021, Defendant expanded the December 30, 2020 recall
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`considerably. Specifically, Defendant expanded the recall to cover all corn products with expiration
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`dates before 07/09/22 that were produced at the company’s Chickasha Operations Facility in
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`Oklahoma. As of January 11, 2021, Defendant’s recall covers a total of 20 different cat and dog food
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`products distributed and sold nationally. The products are:
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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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`• Sportstrail 50
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`Case 3:21-cv-00022-RLY-MPB Document 1 Filed 01/28/21 Page 16 of 25 PageID #: 16
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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. bag
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`44.
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`Defendant’s expanded recall was issued after more than 70 dogs died and another 80
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`fell ill, reportedly from consuming the Pet Food Products. At the time of the first recall in December
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`2020, the FDA was alerted to reports that about 28 dogs had died and eight others became ill after
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`consuming the Pet Food Products.
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`45.
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`The FDA has warned retailers and distributors to immediately remove recalled lots
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`from shelves and their inventory and warned retailers and distributors against selling or donating them.
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`46.
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`For pets that have consumed the Pet Food Products, the FDA has identified symptoms
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`of aflatoxin poisoning as including “sluggishness, loss of appetite, vomiting, jaundice (yellowish tint
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`to the eyes, gums, or skin due to liver damage), and/or diarrhea. The FDA instructed pet parents
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`whose pets have exhibited the foregoing signs to contact their veterinarian immediately.
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`47.
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`Further, the FDA has instructed pet parents to stop feeding the recalled products to pets
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`and other animals and to destroy the recalled food such that children, pets, and wildlife do not have
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`access. Additionally, the FDA has instructed pet parents to wash and sanitize food bowls, cups, and
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`storage containers, and to always wash and sanitize hands after touching any of the recalled foods or
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`utensils that may have come into contact with the recall food.
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`48.
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`As a result of buying Defendant’s contaminated Products, Plaintiffs and all others
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`similarly situated consumers have incurred substantial expenses, including the cost of the Pet Food
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`Products, veterinary bills to address the adverse health issues associated with their dogs consuming
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`Defendant’s Pet Food Products, and other related expenses.
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`CLASS ACTION ALLEGATIONS
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`49.
`
`Plaintiffs bring this action on behalf of themselves and on behalf of the following
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`proposed Class initially defined as follows: All persons residing in the United States who
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`purchased for personal, family, or household use, Defendant’s pet food products containing corn
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`with expiration dates on or before July 9, 2022 manufactured in its Chickasha, Oklahoma
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`facility (“Nationwide Class”).
`
`50.
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` Plaintiffs also bring this action on behalf of themselves and a state class defined as
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`follows: All persons residing in California who purchased for personal, family, or household use,
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`Defendant’s pet food products containing corn with expiration dates on or before July 9, 2022
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`manufactured in its Chickasha, Oklahoma facility (“California State Class”).
`
`51.
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`Excluded from the proposed Nationwide and California Classes (collectively referred to
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`herein as “Class” unless otherwise noted) are Defendant, their parents, subsidiaries, affiliates, officers,
`
`and directors, any entity in which Defendant has a controlling interest, and all judges assigned to hear
`
`any aspect of this litigation, as well as their immediate family members.
`
`52.
`
`Plaintiffs reserve the right to re-define any of the Class definitions prior to class
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`certification and after having the opportunity to conduct discovery. Unless otherwise noted, the
`
`proposed Classes will be collectively referred to herein as the “Class.”
`
`53.
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`This action has been properly brought and may properly be maintained as a class action
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`under Rule 23(a)(1-4), Rule 23(b)(1), (2), or (3), and/or Rule 23(c)(4) of the Federal Rules of Civil
`
`Procedure.
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`Case 3:21-cv-00022-RLY-MPB Document 1 Filed 01/28/21 Page 18 of 25 PageID #: 18
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`Numerosity of the Proposed Class
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`(Fed. R. Civ. P. 23(a)(1))
`
`54.
`
`The members of the Class are so numerous that their individual joinder would be
`
`impracticable. The Class comprises at least hundreds of thousands of consumers. The precise number
`
`of Class members, and their addresses, are unknown to Plaintiffs at this time, but can be ascertained
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`from Defendant’s records and/or retailer records. The members of the Class may be notified of the
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`pendency of this action by mail or email, supplemented (if deemed necessary or appropriate by the
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`Court) by published notice.
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`Predominance of Common Questions of Fact and Law
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`(Fed. R. Civ. P. 23(a)(2); 23(b)(3))
`
`55.
`
`Common questions of law and fact exist as to all members of the Class. These
`
`questions predominate over the questions affecting only individual members of the Class. The
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`common legal and factual questions include, without limitation:
`
`(a) Whether Defendant knew or should have known that the Products contained
`
`unacceptable levels of Aflatoxin that rendered its Pet Food Products unsafe and unsuitable for dog
`
`consumption;
`
`(b) Whether Defendant failed to employ quality control measures and failed to properly
`
`test and/or inspect its Pet Food Products before distribution and sale;
`
`(c)
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`The date on which Defendant learned or should have learned of the unacceptable levels
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`of Aflatoxin in its Pet Food Products;
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`(d) Whether Defendant made affirmative misrepresentations and/or false and misleading
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`statements regarding the Pet Food Products;
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`(e) Whether Defendant failed to disclose material facts regarding the Pet Food Products;
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`(f) Whether Defendant was negligent in producing the Pet Food Products;
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`(g) Whether Defendant made negligent misrepresentations in connection with the
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`distribution and sale of the Pet Food Products;
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`(h) Whether Defendant breached express warranties;
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`(i) Whether Defendant breached the implied warranty of merchantability;
`
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`Case 3:21-cv-00022-RLY-MPB Document 1 Filed 01/28/21 Page 19 of 25 PageID #: 19
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`(j) Whether Defendant violated the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et
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`seq.;
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`(k) Whether Defendant violated the state consumer protection statutes alleged herein;
`
`(l) Whether Defendant was unjustly enriched;
`
`(m)
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`The nature of the relief, including damages and equitable relief, to which Plaintiffs and
`
`the members of the Class are entitled; and
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`(n) Whether Defendant is liable for attorneys’ fees and costs.
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`Typicality of Claims
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`(Fed. R. Civ. P. 23(a)(3))
`
`56.
`
`Plaintiffs’ claims are typical of the claims of the Class because Plaintiffs, like all other
`
`Class members, purchased Defendant’s Products, suffered damages as a result of those purchases, and
`
`seeks the same relief as the proposed Class members.
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`Adequacy of Representation
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`(Fed. R. Civ. P. 23(a)(4))
`
`57.
`
`Plaintiffs are adequate representatives of the Class because their interests do not
`
`conflict with the interests of the members of the Class and they have retained counsel competent and
`
`experienced in complex class action and consumer litigation.
`
`58.
`
`Plaintiffs and their counsel will fairly and adequately protect the interest of the
`
`members of the Class.
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`Superiority of a Class Action
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`(Fed. R. Civ. P. 23(b)(3))
`
`59.
`
`A class action is superior to other available means for the fair and efficient adjudication
`
`of the claims of Plaintiffs and members of the Class. There is no special interest in Class members
`
`individually controlling the prosecution of separate actions. The damages suffered by individual
`
`members of the Class, while significant, are small given the burden and expense of individual
`
`prosecution of the complex and extensive litigation necessitated by Def