throbber

`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MISSOURI
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`
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`
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`
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`Case No. _______________
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`TRIPLE S FARMS, LLC,
`
`
`Plaintiff,
`
`
`v.
`
`
`DELAVAL INC., WEST AGRO, INC.,
`DELAVAL INTERNATIONAL AB,
`DELAVAL HOLDING BV, DELAVAL
`HOLDING AB, and TETRA LAVAL
`INTERNATIONAL SA,
`
`
`Defendants.
`
`
`
`
`CLASS ACTION COMPLAINT
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`Plaintiff Triple S Farms, LLC (“Plaintiff”) brings this action individually and on behalf of
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`all others similarly situated against DeLaval Inc., West Agro, Inc., DeLaval International AB,
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`DeLaval Holding BV, DeLaval Holding AB, and Tetra Laval International SA (“Defendants” or
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`“DeLaval”) and states as follows:
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`NATURE OF THE ACTION
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`1.
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`This lawsuit is the second chapter of litigation against DeLaval regarding its robotic
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`or voluntary milking systems (“VMS”), as this lawsuit follows the first chapter on the DeLaval
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`VMSTM Classic (the “Classic”), Bishop, et al. v. DeLaval Inc., et al., Case No. 5:19-cv-06129-
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`SRB. Bishop litigated the defectiveness of the first version of the robot—the Classic—which
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`DeLaval released in the United States in 2007. This lawsuit relates to the DeLaval VMSTM V300
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`(the “V300”), which DeLaval released in the United States in 2018 claiming it was a substantial
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`upgrade to the Classic. Much of the discovery conducted in Bishop is directly relevant to the claims
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`asserted below and will be used to show that nearly all of the defects present in the Classic
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`1
`Case 4:22-cv-00309-HFS Document 1 Filed 05/09/22 Page 1 of 56
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`22-cv-309
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`remained in the V300 and that the international defendants named herein are subject to jurisdiction
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`in this District and liable for the harm caused by the V300 to U.S. dairy farmers.
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`2.
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`DeLaval designed, manufactured, marketed, sold, distributed, and installed the
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`V300. Like the Classic, the V300 is a robotic milking system purportedly designed to optimize
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`quality milk yield by fully automating the milking process, so dairy producers can remove the
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`manual or human tasks of milking typically required by a conventional milking system (“CMS”).
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`3.
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`DeLaval uniformly and deceptively, falsely, and misleadingly marketed and
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`represented that the V300 would, among other things, perform three essential functions: (1) wash
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`with a sanitizing solution, fore-strip and dry each lactating teat before milking; (2) completely milk
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`each lactating quarter in a manner that prevents contamination of milk and milking equipment;
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`and (3) post-spray teat disinfectant on each teat after milking. At the same time, DeLaval
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`knowingly concealed from Plaintiff and the proposed Class that the V300 was defective and
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`incapable of successfully performing these functions, including according to industry standards.
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`4.
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`In reliance on DeLaval’s misrepresentations and concealment, Plaintiff and many
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`other dairy farmers purchased V300 at costs exceeding hundreds of thousands of dollars and
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`expended additional costs to design, modify, retrofit, or build new barns to install the V300, which
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`caused economic harm to Plaintiff and physical harm to its property.
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`5.
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`After inducing Plaintiff and other dairy farmers to purchase the V300 based on
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`these misrepresentations and concealments, DeLaval delivered a product that was defectively
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`designed, had defects in material, manufacture, and workmanship, failed to conform to their
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`express and implied warranties, and failed to perform as uniformly marketed and represented.
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`Among other defects, the V300 suffers from the defects identified herein.
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`2
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`6.
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`Given the defects concealed from Plaintiff and the Class, the V300 cannot meet the
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`industry standards for producing Grade A milk. Consequently, Plaintiff and others dairy farmers
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`suffered harm in the form of impaired cow health, milk quality, and milk production and, more
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`specifically, elevated bacteria levels and mastitis rates, causing elevated somatic cell counts,
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`decreased milk production, and a host of other harms to both cows and milk quality.
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`7.
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`Dairy farms like Plaintiff that continue to milk with V300 despite its defectiveness
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`are dependent on DeLaval. As DeLaval provides parts and service for the V300. This dependence
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`is heightened by the fact that dairy cows must be timely milked each day or else they will develop
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`mastitis and other serious health issues or death. Farmers are also dependent on DeLaval because
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`their barns were designed or retrofitted specifically to accommodate the V300. Without additional
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`costs or further economic harm, these barns cannot be used to milk cows by alternative methods.
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`Thus, DeLaval knowingly created a situation where dairy farmers cannot transition to another
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`milking system without additional costs or ongoing harm.
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`JURISDICTION AND VENUE
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`Jurisdiction and venue are proper in this Court.
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`This Court has jurisdiction over this lawsuit under the Class Action Fairness Act,
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`8.
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`9.
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`28 U.S.C. § 1332, because this is a proposed class action in which: (1) there are at least 100 class
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`members; (2) the combined claims of class members exceed $5,000,000.00, exclusive of interest,
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`attorneys’ fees, and costs; and (3) DeLaval and class members are domiciled in different states.
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`10.
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`11.
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`As alleged herein, this Court has personal jurisdiction over each named defendant.
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`Venue is proper pursuant in this District under 28 U.S.C. § 1391(b) because a
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`substantial part of the conduct at issue in this case occurred in this District.
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`Plaintiff
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`PARTIES
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`12.
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`Plaintiff Triple S Farms, LLC (“Plaintiff” or “Triple S”) is a dairy farm located and
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`operating at 24376 343rd Avenue, Belgrade, Minnesota 56312 (“Triple S Farm”).
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`13.
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`At all times hereinafter mentioned, Robert Scherping (“Scherping”) is the Chief
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`Executive Officer of Triple S Farm, LLC.
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`14.
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`At all times hereinafter mentioned, Paul Stang, Roger Stang, and Charles Stang (the
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`“Stangs”) were agents, employees, and/or servants of Triple S.
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`15.
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`The terms “Plaintiff” and “Triple S” includes Triple S Farms, LLC, Scherping, and
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`the Stangs.
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`Defendants
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`16.
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`DeLaval Inc. is a Delaware corporation with its principal place of business at 11100
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`N Congress Ave, Kansas City, Missouri 64153, and is, therefore, “at home” in this District with
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`sufficient minimum contacts in Missouri to render the exercise of jurisdiction by this Court proper
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`and necessary; develops, designs, manufactures, advertises, sells, promotes, services, maintains,
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`repairs, distributes, and installs equipment and systems for milk production and animal husbandry
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`markets, including, but not limited to, voluntary milking systems; and is a wholly owned subsidiary
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`of DeLaval Holding BV.
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`17. West Agro, Inc. is a Delaware corporation with its principal place of business at
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`11100 N Congress Ave, Kansas City, Missouri 64153, and is, therefore, “at home” in this District
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`with sufficient minimum contacts in Missouri to render the exercise of jurisdiction by this Court
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`proper and necessary; develops, designs, manufactures, advertises, sells, promotes, services,
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`maintains, repairs, distributes, and installs equipment and systems for milk production and animal
`
`4
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`husbandry markets, including, but not limited to, voluntary milking systems; does business under
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`the fictitious name, “DeLaval Manufacturing,” registered in Missouri and from the same address
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`as West Agro, Inc.; and is a wholly owned subsidiary of DeLaval Inc.
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`18.
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`DeLaval International AB is a company founded under the laws of Sweden with its
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`principal place of business located in Tumba, Sweden; develops, designs, manufactures,
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`advertises, sells, promotes, services, maintains, repairs, distributes, and installs equipment and
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`systems for milk production and animal husbandry markets, including, but not limited to, voluntary
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`milking systems; is registered to do business in the State of Missouri; and is a wholly owned
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`subsidiary of DeLaval Holding BV.
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`19.
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`On December 7, 2007, DeLaval International AB filed an Application for
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`Certificate of Authority for a Foreign For-Profit Corporation with the Missouri Secretary of State,
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`stating that the purpose of its business in Missouri is as the “[o]wner of inventory at the Missouri
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`physical location of 11100 North Congress Avenue, Kansas City MO 64153.” DeLaval
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`International AB has continuously renewed that application since 2007 and remains registered to
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`do business in Missouri.
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`20.
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`DeLaval Holding BV is the parent company for DeLaval Inc. and DeLaval
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`International AB and is a company founded under the laws of Netherlands with its principal place
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`of business located in Overijssel, Netherlands. On information and belief, DeLaval Holding BV is
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`a wholly owned subsidiary of DeLaval Holding AB.
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`21.
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`DeLaval Holding AB is the parent company for DeLaval Holding BV and is a
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`company founded under the laws of Sweden with its principal place of business located in Tumba,
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`Sweden. On information and belief, DeLaval Holding AB is a wholly owned subsidiary of Tetra
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`Laval International SA or Tetra Laval Group.
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`5
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`22.
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`Tetra Laval International SA is known as the Tetra Laval Group; is a company
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`founded under the laws of Switzerland with its principal place of business located in Pully,
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`Switzerland; and is the parent company for DeLaval Holding AB and, ultimately, DeLaval Inc.,
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`West Agro, Inc., DeLaval International AB, and DeLaval Holdings BV.
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`23.
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`The DeLaval entities, including West Agro, Inc., as part of the Tetra Laval Group,
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`hold themselves out as a single enterprise and a single entity—the DeLaval Group—despite the
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`technical existence of separate corporate structures. First, DeLaval Inc., West Agro, Inc., and
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`DeLaval International AB are mere divisions of DeLaval Holding BV or DeLaval Holding AB—
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`the DeLaval Group—which is a mere division of the Tetra Laval International AB (despite the
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`existence of technically, separate corporate structures). Second, there is a close, synergistic
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`relationship between the Defendants.
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`24.
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`The DeLaval Group maintains a single website in which it promotes “DeLaval”
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`without regard to its corporate form. The U.S. Facebook page for DeLaval points to this
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`website: www.delaval.com. The website describes “DeLaval” as “worldwide leaders in milking
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`equipment and solution for dairy farms.” Although it claims it is “headquartered in Tumba,” it says
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`it has “offices in more than 40 countries and employ over 4,500 staff globally.” It does not
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`distinguish employment based on corporate structure. Moreover, it solicits employees for
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`“DeLaval” generally without regard to corporate form. This includes seeking employees for work
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`in Kansas City, Missouri. For example, as of October 29, 2019, DeLaval was soliciting for an
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`accounting manager on its website to work in Kansas City, Missouri whose responsibilities would
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`span “(9) different countries across (11) regions in the Americas region.” The website does not
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`distinguish between any corporate entity, and characterizes the various subsidiaries all as
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`“divisions of the Tetra Laval Group.”
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`6
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`25.
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`In the 2018/2019 annual report (“18/19 Annual Report”) for the Tetra Laval Group,
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`the ultimate parent of all DeLaval entities, Tetra Laval Group describes DeLaval as one of its
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`“three industry groups” where the “head of each industry group has operational management
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`responsibility for the respective industry group and reports directly to the Tetra Laval Group
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`Board,” who is responsible for the overall strategy of the Group and for controlling and supervising
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`all
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`of
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`its
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`business
`
`operations.”
`
`18/19
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`Annual
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`Report
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`at
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`4.
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`See https://tlcomprod2.azureedge.net/static/documents/tetra-laval-2018-2019.pdf (last
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`visited
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`May 9, 2022). That person appears to be Joakim Rosengren, who is listed on DeLaval’s website
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`as the President & CEO of “DeLaval” without regard to corporate form. Rosengren is also listed
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`as the President of DeLaval International AB in its most recent registration filing with the Missouri
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`Secretary of State.
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`26.
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`On information and belief, the Tetra Laval Group controls the DeLaval Group, in
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`that it provides the cash necessary for the entities within the DeLaval Group, including DeLaval
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`Inc., to operate; requires approval of changes to legal structure; maintains how the board of the
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`DeLaval Group entities is composed; requires approval of any sale or acquisition related to
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`business assets; and directs how excess cash is handled.
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`27.
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`There is a commonality of management between and among Defendants. Fernando
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`Cuccioli is a member of the DeLaval Group “Executive Team” on its website and is also the
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`President and Chairman of the board of directors of DeLaval Inc., according to corporate
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`documents.
`
`See
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`http://www.delavalcorporate.com/DeLaval-company-about/how-we-are-
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`organised (last visited May 2, 2022).
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`28.
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`Although nominally President of DeLaval Inc., a separate corporation, DeLaval
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`publicly describes Cuccioli
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`as
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`“our Regional President
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`for North America.”
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`7
`Case 4:22-cv-00309-HFS Document 1 Filed 05/09/22 Page 7 of 56
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`See https://www.facebook.com/DeLavalUS/photos/a.805354006217677/998893120197097/?typ
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`e=1 (last visited May 9, 2022).
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`29.
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`In its Annual Report, DeLaval lists a single management team without regard for
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`corporate structure. 18/19 Annual Report at 45.
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`30.
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`In that same report, DeLaval is described as “a full-service supplier to dairy
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`farmers” and referred to as “the” company, which “develops, manufactures and markets equipment
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`and complete systems for milk production and animal husbandry.” 18/19 Annual Report at 5. This
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`includes DeLaval’s VMS robot products. Id. at 6; see also id. at 11 (again referring to DeLaval as
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`a single “company”).
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`31.
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`In that same report, DeLaval reports that twenty-one percent (21%) of its net sales
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`were made in the Americas, without regard to corporate form. Id. at 13. It refers to its “sales
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`organisation” [British English spelling] as an integrated unit with regard to corporate form,
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`describing it as “[t]he team” and “[o]ur entire sales organization” having been restructured. Id. at
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`43.
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`32.
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`DeLaval engages in a unified marketing image and corporate branding, including
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`for its V300 regardless of corporate form. Its corporate insignias, trademarks and logos appear
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`uniform regardless of corporate form, as shown by its website and the Tetra Laval Group annual
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`reports.
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`33.
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`DeLaval has an integrated sales and distribution system across the nominally
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`distinct corporate entities. For instance, DeLaval International AB holds the patents on the robots.
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`It purports to have designed and manufactured the classic VMS robots, while DeLaval Inc.
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`marketed, advertised, and sold the robots in the United States from its Kansas City, Missouri
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`principal place of business.
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`34.
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`DeLaval entities also used the same, or very similar marketing materials, across
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`corporate entities. For instance, marketing brochures distributed to dairy farmers in the United
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`States, including Plaintiff, contain British English spellings, suggesting strongly that DeLaval
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`Inc.’s parents, as well as DeLaval International AB, prepared those materials for use by DeLaval
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`Inc. in selling the robots.
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`35.
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`DeLaval Inc. performs business functions that its parents, as well as DeLaval
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`International AB, would ordinarily need to perform itself to market and sell its products in the
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`United States but for the existence of DeLaval Inc.
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`36.
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`On information and belief, DeLaval Inc. is the exclusive agent for marketing and
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`sales of classic VMS robots in the United States, and while DeLaval Inc. may distribute the robots
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`through third-party dealers, all dealers in the United States must go through DeLaval Inc. to get
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`and sell the robots.
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`37.
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`One or more VMS purchasers have heard technicians, who have visited their farms
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`to service their VMS robots, refer to the need to consult “Sweden” for technical assistance
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`regarding the robots. This likely refers to persons purportedly or nominally employed by the
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`DeLaval Group and, ultimately, the Tetra Laval Group.
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`38. Moreover, employees of DeLaval Inc. and employees of authorized dealers of
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`classic model VMS robots for DeLaval Inc. receive training on how to install, service and repair
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`classic model VMS robots in Sweden from DeLaval International AB, confirming that, despite the
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`technical existence of separate corporate structures, Defendants are and hold themselves out as, a
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`single enterprise.
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`9
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`39.
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`On information and belief, DeLaval International AB, as the owner of the patents
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`on the classic VMS robots, enters into a licensing arrangement with anyone who purchased a
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`classic VMS robot, including purchasers in the State of Missouri.
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`40.
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`The apparent uniformity of the design, marketing and sale of the classic VMS
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`robots strongly suggests that DeLaval Inc.’s parents, as well as DeLaval International AB, exert
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`substantial control over the Missouri-based DeLaval Inc. in its design, marketing, sale and
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`maintenance of the robots.
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`41.
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`For these reasons, DeLaval Inc. is a mere division of the DeLaval Group and,
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`ultimately, the Tetra Laval Group. It is a mere instrumentality or adjunct of the former and part of
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`a single, unified enterprise. The leadership of the DeLaval Group and, ultimately, the Tetra Laval
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`Group control and dominate the affairs of DeLaval Inc., including its affairs in Kansas City,
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`Missouri, such that they are the legal “alter egos” of DeLaval Inc., including West Agro, Inc.
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`42.
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`At all times mentioned, DeLaval offers, and holds itself out as specialists with
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`respect to, milking, milk production, herd management, feeding, milk cooling and storage, cow
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`comfort, barn and working environment design and solutions, milking equipment, and systems for
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`milk production, including voluntary milking systems.
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`43.
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`At all times, DeLaval held itself out to dairy farmers and the general public as
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`specialists providing integrated solutions designed to improve the production, quality and value of
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`milk produced by dairy farmers, the welfare of cows, and the overall quality of life of dairy
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`farmers, while decreasing the labor costs to operate dairy farms.
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`FACTUAL BACKGROUND
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`44.
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`DeLaval introduced the first automatic milking system in Europe in 1997 and
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`promotes itself as the worldwide leader in milking equipment and solutions for dairy farmers:
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`10
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`DeLaval is the worldwide leader in milking equipment and solutions for dairy
`farmers, which make sustainable food production possible, ensuring milk quality
`and animal health. DeLaval solutions are used by millions of dairy farmers around
`the globe every day. DeLaval was founded more than 130 years ago in Sweden,
`when the visionary Gustaf de Laval patented the cream separator. Today, DeLaval
`has 4,500 employees and operates in more than 100 markets. DeLaval, alongside
`Tetra Pak and Sidel, is part of the Tetra Laval Group.
`
`https://www.delaval.com/en-us/about-us/ (last visited May 2, 2022).
`
`45.
`
`Several years after DeLaval completed and installed the “first voluntary milking
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`system VMSTM” (the Classic) at its “own Hamra plant in Sweden,” it expanded distribution of the
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`Classic
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`to dairy
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`farmers
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`in
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`the United States, https://www.delaval.com/en-au/about-
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`delaval/AU/campaigns/20-years-of-vms/ (last visited May 2, 2022), and was subsequently sued in
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`a class action lawsuit for harms suffered by purchasers from day 1:
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`After inducing dairy farmers to purchase [the Classic], DeLaval delivered a product
`that was defectively designed, was not free from defects in material and
`workmanship, failed to conform to the express and implied warranties of DeLaval,
`and failed to perform as uniformly advertised, marketed and represented . . . .
`
`
`Terry Bishop, DVM, et al. v. DeLaval Inc., et al., United States District Court for the Western
`
`District of Missouri, Case No. 5:19-cv-06129, Doc. 204, ¶ 11 (“Bishop” or “Bishop Complaint”).
`
`46.
`
`The harms suffered by Classic purchasers stemmed from its failure to perform any
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`of its three “Essential Functions” (i.e., to: (1) wash with a sanitizing solution, fore-strip and dry
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`each lactating teat before milking; (2) completely milk each lactating quarter in a manner that
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`prevents contamination of milk and milking equipment; and (3) post-spray teat disinfectant on
`
`each teat after milking.
`
`47.
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`On or about 2011, DeLaval began developing a new milking system ultimately
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`known as the DeLaval VMSTM V300 (“V300”) in an attempt to rectify the defects with the Classic.
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`DeLaval touted that the V300 would, like the Classic, fully automate the milking process and
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`perform the Essential Functions of producing Grade A milk.
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`11
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`48.
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`DeLaval publicly introduced the V300 in or about June 2018, including on
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`DeLaval’s website, where it represented the V300 as an upgrade to the Classic (the “Press
`
`Release”). The Press Release stated that the “new DeLaval VMS
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`TM milking system V300 is
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`available now worldwide” and “ensures that dairy farming is a profitable option not only today but
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`also for generations to come,” as well as:
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`With up to 99% teat spray hit rate, real quarter milking, up 10% higher capacity
`from previous model with also lower running cost, up to 99.8% attachment rate, up
`to 50% faster attachment time, and with a potential of over 3,500kg of milk per day,
`the DeLaval VMS V300 system proves that the future of milking is already here.
`
`
`https://corporate.delaval.com/2018/06/delaval-introduces-its-new-robotic-milking-system-the-
`
`delaval-vms-milking-system-v300/ (last visited May 2, 2022).
`
`49. With respect to the Essential Functions, DeLaval uniformly marketed and
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`represented that V300 could: (1) individually clean, stimulate and fore-strip “each teat” before
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`milking; (2) have a teat milking cup attachment rate of 99.8% with detachment occurring at the
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`“right time,” which is once more than 70% of the milk in a particular mammary gland has been
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`removed according to industry standards; and (3) deliver pre- and post-spray teat disinfectant “to
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`each teat.”
`
`50.
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`DeLaval further uniformly represented that the V300 would exceed the
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`performance of the Classic by, inter alia, washing with a germicidal solution, fore-stripping and
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`drying each lactating teat before milking, such that each lactating teat is cleaner at the time of
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`milking, producing over 100 pounds of milk per cow per day, lower preliminary incubation counts,
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`and maintain somatic cell counts under 140,000 cells/mL.
`
`51.
`
`These representations turned out to be false. Despite the purported advancements
`
`that DeLaval claimed the V300 made “from [the] previous model,” the V300 was plagued by
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`virtually identical defects, lacking the ability to perform its Essential Functions. Such defects were
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`12
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`not disclosed to the general public, including prospective purchasers and purchasers (including
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`Plaintiff), despite DeLaval’s unique, peculiar and superior knowledge of them before any V300
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`were sold, including, but not limited to, the V300 sold to Plaintiff.
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`THE DECEPTIVE, FALSE AND MISLEADING
`DELAVAL MARKETING SCHEME
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`DeLaval misrepresented the V300’s abilities, benefits, capabilities and past
`
`52.
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`performance and at the same time concealed its unique, peculiar and superior knowledge of the
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`defects and problems with the V300 discussed herein. The only plausible reason to conceal these
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`defects was that DeLaval intended to defraud dairy farmers in the United States, including, but not
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`limited to, Plaintiff, by inducing them to expend vast sums of money to purchase and install V300.
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`53.
`
`DeLaval’s misrepresentations, including that the V300 would perform the Essential
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`Functions of cow milking, were publicly and broadly disseminated, including on its publicly
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`accessible website, in its brochures; on its YouTube channel, and in the United States Federal
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`Register, which were distributed or otherwise made available to prospective purchasers, including
`
`Plaintiff.
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`VMS V300 USA BROCHURE
`
`54.
`
`In a publication titled “VMS V300 USA Brochure” (“V300 Brochure”), DeLaval
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`represented that the “V300 is all about making dairy farming more personal. More accurate. More
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`profitable.” A copy of the V300 Brochure is publicly accessible through the DeLaval website at
`
`https://store.delaval.com/globalassets/inriverresources/pdfs/v/vms-v300-usa-brochure.pdf
`
`(last
`
`visited May 2, 2022).
`
`55.
`
`DeLaval falsely represented that the V300 was “a fully automated milking system
`
`that can generate better results for” the dairy farm; that the “V300 uses automation to make
`
`[farmers] less reliant on an uncertain future labor market, to keep [farmers] at the forefront of
`
`13
`Case 4:22-cv-00309-HFS Document 1 Filed 05/09/22 Page 13 of 56
`
`

`

`
`
`animal welfare and food safety issues, and to help ensure that dairy farming is a profitable option
`
`now, and an appealing lifestyle and care choice for the next generation,” which is an attempt to
`
`appeal to family-run farms, such the one operated by Plaintiff. DeLaval illustrates such purported
`
`benefits in the following chart:
`
`56.
`
`DeLaval also falsely represented that the V300 could perform the three Essential
`
`
`
`Functions.
`
`57.
`
`First, DeLaval represented that the DeLaval PureFlowTM individually cleans,
`
`stimulates and fore-strips “each teat” before milking. DeLaval specifically represented that the
`
`“exclusive, transparent” teat cleaning cup:
`
`allows you to see PureFlow in action, individually cleaning and stimulating each
`teat to improve letdown and productivity.
`
`Add to this the separation of foremilk, which is removed to a waste container via a
`separate line . . .
`
`
`14
`Case 4:22-cv-00309-HFS Document 1 Filed 05/09/22 Page 14 of 56
`
`

`

`
`
`58.
`
`Second, DeLaval represented that the V300 has a teat milking cup attachment rate
`
`of 99.8% and, with a dedicated “ICAR approved milk meter for each teat,” detaches each teat
`
`milking cup “at the right time, in the right way to protect the sensitive and valuable teats.” In the
`
`dairy industry, it is known that the “right time” to detach a milking cup is after more than 70% of
`
`the milk in a particular mammary gland has been removed, which represents a complete milking.
`
`59.
`
`Third, DeLaval represented that the V300 has 2-nozzles that deliver pre- and post-
`
`sprayed teat disinfectant “to each teat” with a “99% hit rate,” stating: “The VMS V300 has two
`
`nozzles you can program depending on your preferences or seasonal requirements. It delivers
`
`incredibly accurate pre and post spray to each teat, eliminating waste and coverage errors from
`
`targeting the whole udder, and ensuring a better result.”
`
`60.
`
`Even though these representations are false, DeLaval continues to make them on
`
`the version of the V300 Brochure currently available on its website.
`
`DeLaval YouTube Channel
`
`61.
`
`On its YouTube channel, DeLaval made similar misrepresentations regarding the
`
`V300s ability to perform the Essential Functions of milking a cow. One video is titled “DeLaval
`
`VMSTM milking system V300 – It all revolves around you”, is publicly available at
`
`https://www.youtube.com/watch?v=X4Dg9Ub-VOE and was published at DeLaval on June 27,
`
`2018 (the “June 27, 2018 Video”).
`
`62.
`
`DeLaval also published another video on July 11, 2018, which is titled “DeLaval
`
`VMSTM V300 | Unlock the True Potential of Voluntary Milking | DeLaval” and publicly available
`
`at https://www.youtube.com/watch?v=BKA267Jd3MA (the “July 11, 2018 Video”). Both videos
`
`(collectively, the “YouTube Videos”) misrepresent the ability and conceal the inability of V300 to
`
`perform its Essential Functions.
`
`15
`Case 4:22-cv-00309-HFS Document 1 Filed 05/09/22 Page 15 of 56
`
`

`

`
`
`63.
`
`First, in the July 11, 2018 Video, DeLaval represents that the PureFlow leaves teats
`
`cleaned, stimulated, pre-milked, dried and ready to be milked:
`
`64.
`
`Second, in the June 27, 2018 Video, DeLaval represents that the V300 has “smooth
`
`and fast 99.8% attachment rate.” Similarly, in the July 11, 2018 Video, DeLaval states that the
`
`camera on the robotic arm is a “New unique Vision System” that providers for a “99,8%
`
`attachment rate[,] Peace of mind[,] and Relaxed cows”:
`
`
`
`16
`Case 4:22-cv-00309-HFS Document 1 Filed 05/09/22 Page 16 of 56
`
`
`
`

`

`
`
`65.
`
`Third, in the June 27, 2018 Video, DeLaval states that the V300 has a “Targeted
`
`spray system” that delivers a 99% teat spray hit rate:
`
`66.
`
`The representations set forth in the June 27, 2018 Video and July 11, 2018 Video
`
`are unqualified guarantees that the V300 is capable of performing these functions on a farm that
`
`
`
`purchases the V300.
`
`DeLaval VMS V300 Teat Preparation Protocol U.S.A.
`
`67.
`
`Item 13r. of the Grade “A” Pasteurized Milk Ordinance requires manufactures of
`
`automatic milking installations (“AMI”) to “submit data to FDA to show that the teat prepping
`
`system employed in their milking system is equivalent to Item 13r., ADMINISTRATIVE
`
`PROCEDURES #4 . . .: “Teats shall be treated with a sanitizing solution just prior to the time of
`
`milking and shall be dry before milking.”
`
`68.
`
`DeLaval submitted a “Teat Preparation Protocol” to the FDA to show that the V300
`
`teat prepping system is equivalent to the Grade “A” Pasteurized Milk Ordinance, Section 7, Item
`
`13r., Administrative Procedure No. 4., which was issued by Chris Horton and approved by Epke
`
`Bosma on July 10, 2018. The protocol was accepted by the FDA on or about July 19, 2018 based
`
`on the Teat Preparation Protocol submitted by DeLaval.
`
`17
`Case 4:22-cv-00309-HFS Document 1 Filed 05/09/22 Page 17 of 56
`
`

`

`
`
`69.
`
`The Teat Preparation Summary of the Teat Preparation Protocol states: “The
`
`DeLaval V300 VMSTM Milk Stations use a single separate “Teat Cleaner” cup to wash the teats
`
`individually prior to milking . . . Per PMO procedure, teats shall be treated with a germicidal teat
`
`dip product onto the teat in sequence, prior to the time of milking.” The procedure by which teats
`
`are so treated is performed for “each teat” in lactation:
`
`A pressurized spray nozzle can optionally pre-spray a teat sanitizer product on the
`teats in sequence, prior to positioning the Teat Cleaner cup over the teat for washing
`sequentially each teat stored in memory as lactating.
`
`
`The Teat Preparation Protocol is available at https://fda.report/media/116157/Milk-M-I-18-16.pdf
`
`(“M-I-18-16”) (last visited May 2, 2022) (bold in original) (underline added).
`
`70.
`
`The Teat Preparation Procedure of the Teat Preparation Protocol states: “DeLaval
`
`V300 VMSTM Milk Stations use a multi-purpose robotic arm with an integrated spraying nozzle to
`
`apply optional Pre-Spray, as well as a robotic gripper to apply a specifically designed Teat Cleaner
`
`cup connected to a separate control system, delivering the following teat preparation steps:
`
`1. OPTIONAL Pre-Spray: A teat sanitizer product can be sprayed on all the teats
`in sequence after cow identification and cow pre-positioning functions deliver
`motion guidance to the robotic arm.
`
`2. STANDARD Cleaning Procedure: Begins with the robotic arm gripping the
`Teat Cleaner cup from its storage location outside the cow positioning stall,
`where it hangs upside-down, moving the Teat Cleaner cup to placement over
`the first teat.
`
`* * *
`6. When completed, the teat cleaning process removes pre-sprayed teat dip, if
`applied, together with soils, and leaves the teats washed with a germicidal
`solution, rinsed, fore-stripped, dried, and ready to be milked.
`
`7. The teat cleaner cup is applied to the other teats in sequence and the washing,
`ri

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