United States District Court, W.D. Pennsylvania
Bissoon United States District Judge.
before the Court is Defendants' Motion to Dismiss
Plaintiffs' Class Action Complaint (“Motion to
Dismiss, ” Doc. 36). For the reasons below,
Defendants' Motion to Dismiss will be granted in part,
and denied in part.
5, 2018, Plaintiffs Anthony Cesare, Elizabeth Donatucci and
Taylor Kennedy (“Plaintiffs”) filed a Class
Action Complaint on behalf of a putative class of
Pennsylvania purchasers of dog food from Defendants Champion
Petfoods USA Inc. and Champion Petfoods LP
(“Defendants” or “Champion”). On
February 26, 2019, Plaintiffs filed a Motion for Leave to
File an Amended Complaint, which was granted on the same day,
and the attached Amended Complaint (“FAC, ” Doc.
29-1) was deemed filed.
alleges that Defendants, nationwide sellers of premium-priced
dry dog foods under the Orijen and Acana brand names
(“Products”), have misrepresented the Products to
sell them at higher prices-that is, more than four times the
prices of their competitors. ¶¶1-2. Contrary to
Defendants' representations, Plaintiffs claim that
“the Products do not mirror what a dog would eat in the
wild because they contain virtually no animal muscle meat and
instead consist largely of animal waste and
byproducts”; “[t]he Products are not made from
ingredients that are fresh and regionally sourced and,
instead, contain ingredients sourced from foreign suppliers
and shipped through middle men throughout the
continent”; and “[t]he Products are also not made
from ingredients of a quality fit for human consumption, as
evidenced by the fact that the Products contain levels of
heavy metals exponentially higher than those found in foods
consumed by humans.” Id. at ¶2.
state that “Champion touts its products as ‘The
World's Best Petfood, '” (id. at
¶ 11), and that the Products' packaging materials
contain various misrepresentations regarding their quality
and ingredients, (id. at ¶¶ 12-14). For
example, Plaintiffs claim that the packaging of one of the
Products, Acana Appalachian Ranch Regional, states that it is
“‘Biologically Appropriate', contains
‘Unmatched Regional Ingredients,' uses ingredients
that are ‘Never Outsourced,' and is filled with
ingredients that are ‘Delivered Fresh or Raw in
Wholeprey ratios, and brimming with goodness and
taste.'” Id. at ¶12.
claim that another variety of Acana “states that the
product is ‘bursting with richly nourishing meat and
protein from free-run chicken, whole, nest-laid eggs and
wild-caught flounder-all delivered fresh from our region so
they're loaded with goodness and taste, '” and
“further boasting that all content is ‘from
poultry, fish and eggs passed fit for human
consumption.'” FAC ¶16.
according to Plaintiffs, the packaging of another Product,
Orjen Original dry dog food, “touts the food as
‘the fullest expression of our biologically appropriate
and fresh regional ingredients commitment,' and further
describes its supposed ‘unmatched inclusions of
free-run poultry, wild-caught fish and whole nest-laid eggs -
sustainably farmed or fished in our region and delivered
daily, fresh or raw and preservative-free.”
Id. at ¶¶13-15.
contend that each of these claims were false and misleading.
• “biologically appropriate” - Plaintiffs
contend that the Products were made “primarily from
animal byproducts obtained from pet food processors
throughout the world, ” containing virtually no muscle
meat, and “made from ingredients of a quality much
inferior to that represented by Champion” such as
“cartilage, bone [and] filtering organs…”
Id. at ¶¶17, 25.
• “fresh” - Plaintiffs contend that
Defendant “(a) knowingly uses expired ingredients in
the Products; (b) obtains meal ingredients and fats from
unsanitary pet food rendering facilities around the world;
(c) uses a variety of ingredients that are frozen; and (d)
routinely utilizes “regrinds” (i.e., items that
were not fit to be sold after their original preparation) in
the Products, even if the Product is a different diet from
the ‘regrind.'” Id. at ¶18.
• “regional” - Plaintiffs contend that
Defendant mainly imports its ingredients from outside the
Commonwealth of Kentucky, with many of those ingredients
imported from outside the United States, including from areas
as far as New Zealand. Plaintiffs also contend that the
“few ingredients” sourced from Kentucky are
processed in Massachusetts before being shipped back to
Defendant's facility in Kentucky. Id. at
allegations give rise to six Counts against Defendants, all
under Pennsylvania law: (I) violation of Pennsylvania's
Unfair Trade Practices and Consumer Protection Law, 73 Pa.
C.S. §§ 201-1 et seq. (the
“UTPCPL”); (II) breach of express warranty; (III)
breach of implied warranty; (IV) fraudulent omission; (V)
unjust enrichment; and (VI) negligent misrepresentation. FAC
Motion to Dismiss rests on seven arguments: (1) All claims in
the First Amended Complaint (“FAC”) fail to state
a claim for relief; (2) The economic loss doctrine bars the
UTPCPL, fraudulent omission and negligent misrepresentation
claims; (3) Plaintiffs fail to plead the UTPCPL, fraudulent
omission and negligent misrepresentation claims with
sufficient particularity to satisfy Federal Rule of Civil
Procedure 9(b); (4) Plaintiffs' fraudulent omission claim
fails because they do not allege that Defendants had a duty
to disclose; (5) Plaintiffs' breach of express warranty
claim fails because they have not pleaded the existence of a
warranty or facts suggesting that any of Defendants'
statements are untrue; (6) Plaintiffs' breach of implied
warranty claim fails because they do not allege that the dog
food was unmerchantable or unfit for its ordinary use; and
(7) Plaintiffs' unjust enrichment claim fails because
they have not pleaded facts establishing that it would be
inequitable for Defendants to retain any benefits conferred.
Motion to Dismiss at ¶1.
threshold matter, the Court will address Defendants' Rule
12(b)(6) argument, before addressing the merits of each
individual count. Defendants argue that Plaintiffs cannot
state any claims on either the alleged presence of heavy
metals or based on the ingredients in the Products purchased.
Defendants state that Plaintiffs have failed to show that the
heavy metal content of Defendants' Products are
“exponentially high” compared to reported
averages in human foods, and cite its publicly available
White Paper, published in May 2017, to support its
contention. Def. Mem. at 7-8.
to Defendants, the White Paper states that the presence of
certain heavy metals is within the maximum tolerable limits
established by the Federal Drug Administration in its Target
Animal Safety Review Memorandum. Id. at 4.
Plaintiffs respond that the presence of higher levels of
heavy metals in Defendants' Products goes against
Defendants' claims that their Products consist of
“human-grade ingredients prior to inclusion in the
Products.” Pl. Opp. at 5. They also oppose
Defendants' usage of the White Paper to support their
arguments about the heavy metals in their Products.
Id. at 7.
Court finds that Plaintiff has opened the door to the
admittance of the White Paper. Plaintiffs cite the White
Paper as part of the FAC to support their allegations that
Defendants' Products contain “high levels of heavy
metals.” FAC at ¶26. As this is an explicit basis
for Plaintiffs' claims, the very case cited by Plaintiff
supports admitting the White Paper. The general concern about
courts looking to documents outside the complaint, lack of
notice to the plaintiff, “is dissipated where plaintiff
has actual notice … and has relied upon these
documents in framing the complaint.” In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426
(3d Cir. 1997) (internal quotations and citations omitted).
“may consider an undisputedly authentic document that a
defendant attaches as an exhibit to a motion to dismiss if
the plaintiff's claims are based on the document.”
Id. (internal quotations and citations omitted).
While the facts in the White Paper are in dispute, neither
party disputes the authenticity of the actual White Paper
itself, and the Court will admit the White Paper.
the Court agrees with the rationale in Reitman, and
that Defendants' citations to the White Paper “do
not prove whether the alleged statements are deceptive,
misleading, or false, especially in light of contradicting
allegations in the [FAC].” Reitman v. Champion
Petfoods, USA, Inc., 2019 WL 1670718, at *3 (C. D. Cal.
Feb. 6, 2019).
Defendants' claim in the White Paper that its Products
purportedly contain heavy metal under the maximum tolerable
limits for animal safety do not contradict Plaintiffs'
claims that the heavy metal occurred in levels significantly
higher than those safe for human consumption. The Court finds
Plaintiffs' argument that the presence of significantly
higher levels of heavy metals than those found in human foods
is a sufficient fact that, taken as true, forms a plausible
claim that Defendants' statements that its Products
consist of “human grade ingredients prior to inclusion
in the Products” were deceptive and misleading.
the Court finds that Plaintiffs have alleged sufficient facts
with respect to their claims that Defendants' marketing
of the ingredients in their Products is false and misleading.
Plaintiffs have alleged that contrary to Defendants'
claims, ingredients are not “fresh” but are
“expired”; rather than being “regional,
” ingredients are mostly “import[ed]…from
outside the Commonwealth of Kentucky” with “a
substantial portion [being] imported from outside the United
States”; instead of being supplied by “PEOPLE WE
TRUST, ” ingredients are acquired through a
“complex, convoluted supply chain” with multiple
processors that Defendants may be unaware of; and that
ingredients are “clearly [designated by bills of
lading] to be inedible and unfit for human consumption”
before inclusion in the Products. FAC ¶¶18-20, 22,
28-29. These facts, if true, are sufficient under
Count I: UTPCPL
allege that Defendants have violated the UTPCPL by
“lying about the quality of their products” and
“engag[ing] in deceptive conduct which created the
likelihood that Plaintiffs would misunderstand the nature of
the Products…” and that “Defendants[']
products were nothing like they were warranted and
represented.” FAC ¶43. Plaintiffs allege that such
actions constituted “unfair or deceptive acts or
practices” under the following provisions of the
(v) Representing that goods or services
have…characteristics, ingredients, [or]