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BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
In re Chicken Jerky Pet Treat Product Liability Litigation MDL No. _______
MOTION FOR TRANSFER OF ACTION, UNDER 28 U.S.C. §1407 AND RULE 6.2, FOR COORDINATED OR CONSOLIDATED PRETRIAL PROCEEDINGS
Dennis Adkins, Maria Higginbotham, Mary Ellis, Dwayne and Kaiya Holley, Deborah
Cowan, Barbara Pierpont and Cindi Farkas – who are plaintiffs in an action entitled Adkins et al
v. Nestle Purina Petcare Company et al, No. 1 : 12 CV 2781 (N.D.Ill.) – move that this Panel
enter an order, pursuant to 28 U.S.C. §1407, transferring for coordinated and consolidated pre-
trial proceedings an action entitled Mawaka v. Nestle Purina Petcare Company et al, No. 3 : 12
CV 880 VLB (D. Conn.) to the United States District Court for the Northern District of Illinois.
In Adkins – which was filed on April 18, 2012 – the plaintiffs have brought claims
against Nestle Purina Petcare Company (“Nestle Purina”), Waggin’ Train LLC (“Waggin’
Train”), Wal-Mart Stores Inc. (“Wal-Mart”), Target Corporation (“Target”), and Costco
Wholesale Corporation (“Costco”) relating to pet treats made from chicken jerky that were
allegedly unwholesome and unfit for consumption. In their amended complaint (Adkins Docket
No. 40), the Adkins plaintiffs claim that these defendants
(a) violated the Uniform Commercial Code (codified, e.g., as 810 ILCS 5/2-213 and
5/2-314), and the Magnuson-Moss Act (15 U.S.C. §2301 et seq.), as express and
implied warranties of merchantability were violated;
(b) committed common law fraud;
(c) were unjustly enriched by the sale of defective products;
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(d) negligently put class members’ pets at risk and, in some cases, injuring them;
(e) are strictly liable for the non-conforming products they manufactured, distributed
and sold to the general public; and
(f) violated the consumer protection and trade practice statutes of the Adkins
plaintiffs’ states of residence (including, inter alia, 815 Ill. Comp. Stat. 505/1 et
seq., Rev. Code Wash. §19.86.010 et seq., Cal. Civ. Code §1750 et seq., N.Y.
Gen. Bus. Law §349 et seq., Tex. Bus. & Comm. Code §17.41 et seq., 73 Pa. Stat.
§201-1 et seq., and N.J. Stat. §56:8-1 et seq.).
The Adkins plaintiffs seek relief for themselves, and for several classes that include consumers
nationwide who purchased Waggin’ Train chicken jerky dog treats and fed them to their pets.
In Mawaka – which was filed on June 14, 2012 – Elizabeth Mawaka claims that Nestle
Purina, Waggin’ Train, Wal-Mart and Sam’s Club Inc. are liable for the manufacture, marketing
and sale of chicken jerky dog treats that, like those sold to the Adkins plaintiffs, were
unwholesome and unfit for consumption. For herself, and a national class of consumers who
purchased Waggin’ Train chicken jerky dog treats, Ms. Mawaka seeks relief from defendants’
breach of implied warranties, and their negligent conduct. (Mawaka Docket No. 1.)
Adkins and Mawaka involve common questions of fact, and are pending in different
districts. Further, the plaintiffs in both cases seek to represent virtually identical classes. The
Adkins plaintiffs therefore respectfully submit to the Panel that transfer of Mawaka to the
Northern District of Illinois for coordinated, or consolidated, pretrial proceedings “will be for the
convenience of parties and witnesses and will promote the just and efficient conduct of the
actions.” 28 U.S.C. §1407(a).
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In further support, and in line with Rules 6.1 and 6.2, the Adkins plaintiffs attach to this
motion the following material:
(1) a supporting brief,
(2) a schedule giving the information required by Rule 6.1(b)(ii),
(3) a proof of service to all counsel involved (together with the certification required by Rule 4.1(b)), and
(4) a copy of all complaints and docket sheets for the actions involved.
The Adkins plaintiffs further state that these same materials shall be filed with the Clerks
of the United States District Courts for the Northern District of Illinois and the District of
Connecticut. Rule 6.2(a).
WHEREFORE, the Adkins plaintiffs respectfully request that the Mawaka action be
transferred to the Northern District of Illinois, for coordinated or consolidated pretrial
proceedings, pursuant to 28 U.S.C. §1407.
Dated: June 28, 2012 Respectfully submitted,
/s/ Thomas E. SouleThomas E. Soule
Thomas E. Soule Edelman, Combs, Latturner & Goodwin, LLC 120 South LaSalle Street, 18th Floor Chicago IL 60603 (312) 739-4200 (312) 419-0379 (fax) [email protected] for Dennis Adkins, Maria Higginbotham, Mary Ellis, Dwayne Holley,
Kaiya Holley, Deborah Cowan, Barbara Pierpont and Cindi Farkas
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BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
In re Chicken Jerky Pet Treat Product Liability Litigation MDL No. _______
BRIEF IN SUPPORT OF TRANSFER OF ACTION FOR COORDINATED OR CONSOLIDATED PRETRIAL PROCEEDINGS
Dennis Adkins, Maria Higginbotham, Mary Ellis, Dwayne and Kaiya Holley, Deborah
Cowan, Barbara Pierpont and Cindi Farkas – who are plaintiffs in an action entitled Adkins et al
v. Nestle Purina Petcare Company et al, No. 1 : 12 CV 2781 (N.D.Ill.) – respectfully submit this
brief in support of their motion to transfer the claims of Elizabeth Mawaka, brought in the case
of Mawaka v. Nestle Purina Petcare Company et al, No. 3 : 12 CV 880 VLB (D. Conn.) to the
United States District Court for the Northern District of Illinois for coordinated or consolidated
pretrial proceedings.
I. Background
On April 18, 2012, Dennis Adkins filed suit against Nestle Purina Petcare Company
(“Nestle Purina”), Waggin’ Train LLC (“Waggin’ Train”), and Wal-Mart Stores Inc. (“Wal-
Mart”) in the United States District Court for the Northern District of Illinois. His original
complaint (Adkins Docket No. 1) claimed that these defendants
(a) violated the Uniform Commercial Code (codified, e.g., as 810 ILCS 5/2-213 and
5/2-314) and the Magnuson-Moss Act (15 U.S.C. §2301 et seq.), as express and
implied warranties of merchantability were violated;
(b) committed common law fraud;
(c) were unjustly enriched by the sale of defective products;
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(d) negligently put class members’ pets at risk and, in some cases, injuring them;
(e) are strictly liable for the non-conforming products they manufactured, distributed
and sold to the general public; and
(f) violated the Illinois Consumer Fraud and Deceptive Business Practices Act (815
Ill. Comp. Stat. 505/1 et seq.) by their conduct.
These claims all related to chicken jerky dog treats marketed under the Waggin’ Train
brand, which Mr. Adkins purchased at a Wal-Mart store in Illinois. Waggin’ Train is a wholly-
owned subsidiary of Nestle Purina. Mr. Adkins claims that these defendants are liable to him for
damages, as one of his dogs became ill shortly after consuming the treats, and later died. Mr.
Adkins brought these claims for similarly situated persons across the United States.
On June 13, 2012, Mr. Adkins moved for leave to amend his complaint in order to join
seven new plaintiffs, who resided in six different states; the same amended complaint also added
Target Corporation (“Target”) and Costco Wholesale Corporation (“Costco”) as defendants.
(Adkins Docket No. 35.) Leave to amend was granted on June 27, 2012. The amended
complaint (Adkins Docket No. 40, which is attached hereto as Appendix A), makes essentially
the same claims as the original complaint, and added claims under the consumer protection
statutes of Washington, California, New York, Texas, Pennsylvania and New Jersey.1 All of the
Adkins plaintiffs are pursuing claims for putative classes of similarly situated persons across the
nation. To date, no responsive pleading has been filed in Adkins.
On June 14, 2012, Ms. Mawaka filed her complaint in the United States District Court for
the District of Connecticut. Like the Adkins plaintiffs, she claimed that she purchased Waggin’
1 See Rev. Code Wash. §19.86.010 et seq., Cal. Civ. Code §1750 et seq., N.Y. Gen. Bus. Law §349 et seq., Tex. Bus. & Comm. Code §17.41 et seq., 73 Pa. Stat. §201-1 et seq., and N.J. Stat. §56:8-1 et seq.
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Train chicken jerky dog treats, that she fed them to her pets, and that her pets became ill shortly
after consuming the treats; in fact, she claims that two of her pets died as a result of their
consumption of these treats. Her complaint (Mawaka Docket No. 1, which is attached hereto as
Appendix B) seeks relief for herself and a national class, from Waggin’ Train, Nestle Purina,
Wal-Mart and Sam’s Club Inc.,2 for their breach of implied warranties and their negligent
conduct. To date, no responsive pleading has been filed in Mawaka.
Adkins and Mawaka are in the same procedural posture. The factual claims made in the
cases are substantially identical. Further, the putative classes almost entirely overlap, as they
include consumers across the nation; the relief sought by the plaintiffs for those classes is also
virtually identical. Accordingly, transfer for coordinated, or consolidated, pretrial proceedings is
appropriate, as it will before for the convenience of parties and witnesses and will promote the
just and efficient conduct of such actions.” 28 U.S.C. §1407(a).
II. Argument
1. Common questions of fact
The claims made in Adkins and Mawaka will be decided on several common questions of
fact. These common factual issues include the following:
� whether “the products containing chicken jerky that were sold under the Waggin’
Train brand were not wholesome, were not nutritious, and were unhealthy”
(Adkins Docket No. 40, ¶29; see Mawaka Docket No. 1, ¶18);
2 On information and belief, there is no entity known as “Sam’s Club Inc.” that is registered as a business entity – in Connecticut, Arkansas or elsewhere. Sam’s Club is an assumed business name of Wal-Mart Stores Inc. as registered by several states, including its home state of Arkansas.
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� whether the representations made on the packaging for the Waggin’ Train dog
treats about the treats being wholesome, healthy and nutritious were false (Adkins
Docket No. 40, ¶¶25-28; see Mawaka Docket No. 1, ¶¶15-18);
� whether defendants continued to market and sell dog treats notwithstanding being
warned that the treats were unsuitable for consumption, and without testing the
products to ensure that the treats were not harmful (Adkins Docket No. 40, ¶¶30-
48; see Mawaka Docket No. 1, ¶¶17-20); and
� whether the retailers involved (Wal-Mart, Sam’s Club, Target and Costco) can be
held liable for their sale of Waggin’ Train dog treats, and their failure to warn
consumers of known health concerns (Adkins Docket No. 40, ¶¶22, 48; see
Mawaka Docket No. 1, ¶33(d)).
The resolution of these common questions of fact, and others raised in both actions, will
predominate over factual issues held by each individual plaintiff and by putative class members.
Indeed, these questions will determine whether consumers nationwide can recover from
defendants for alleged violations of common law and consumer protection statutes.
2. Convenience of parties and witnesses
One factor in considering whether transfer is appropriate, and to where transfer should be
made, is the convenience of parties and witnesses. 28 U.S.C. §1407(a). The parties are located
across the nation. Plaintiffs reside in Washington, California, Illinois, Pennsylvania, New Jersey,
New York and Connecticut. Defendants reside in Washington, Minnesota, Missouri, Arkansas
and South Carolina; Nestle Purina, the principal defendant in both cases, is located in Saint
Louis, Missouri. (See Adkins Docket No. 40, ¶¶5-23 and Mawaka Docket No. 1, ¶¶7-10.)
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Conducting pretrial proceedings in the Northern District of Illinois would serve the
interests of all concerned parties. Chicago, Illinois is centrally located, and thus more easily
accessible by air travel for any necessary court proceedings (such as, for example, settlement
conferences and hearings). In particular, it would be much easier for any representatives of
Nestle Purina, the main defendant, to travel from Saint Louis to Chicago, as opposed to Hartford,
Connecticut. Furthermore, all of the Adkins plaintiffs have already consented to have their cases
heard in the Northern District of Illinois, through their filing of their amended complaint.
Finally, the classes in both cases include consumers from across the country; having proceedings
take place in the center of the nation would be more efficient than the alternative.
3. Just and efficient conduct of litigation
28 U.S.C. §1407(a) also requires that the Panel consider whether transfer would
“promote the just and efficient conduct of such actions.” The basic objective is “a pretrial
program that ensures that pretrial proceedings are conducted in a streamlined manner leading to
the just and expeditious resolution of all actions to the overall benefit of the parties and the
judiciary.” In re Kentucky Grilled Chicken Coupon Marketing & Sales Practices Litigation, 659
F.Supp.2d 1366, 1367 (J.P.M.L. 2009). Here, resolution of the claims of all plaintiffs and
putative class members by a single Judge in a single proceeding, with a unified discovery and
case management structure, would (a) promote judicial economy and (b) ensure that conflicting
results are not reached, as identical factual, legal and procedural issues would arise in both cases.
The Adkins plaintiffs would respectfully submit that transfer of the Mawaka case to the
Northern District of Illinois would be appropriate given that Adkins predates Mawaka by
approximately two months. The venue of a first-filed case is a valid consideration as to the
location of consolidated or coordinated proceedings. See In re Kentucky Grilled Chicken, 659
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F.Supp.2d at 1368; and In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent
Litigation, 657 F.Supp.2d 1375, 1376 (J.P.M.L. 2009).
III. Conclusion
For the reasons stated herein, transfer of the Mawaka action to the United States District
Court for the Northern District of Illinois, pursuant to 28 U.S.C. §1407, is appropriate.
Dated: June 28, 2012 Respectfully submitted,
/s/ Thomas E. SouleThomas E. Soule
Thomas E. Soule Edelman, Combs, Latturner & Goodwin, LLC 120 South LaSalle Street, 18th Floor Chicago IL 60603 (312) 739-4200 (312) 419-0379 (fax) [email protected] for Dennis Adkins, Maria Higginbotham, Mary Ellis, Dwayne Holley,
Kaiya Holley, Deborah Cowan, Barbara Pierpont and Cindi Farkas
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BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
In re Chicken Jerky Pet Treat Product Liability Litigation MDL No. _______
SCHEDULE OF CASES
1. Dennis Adkins, Maria Higginbotham, Mary Ellis, Dwayne and Kaiya Holley, Deborah Cowan, Barbara Pierpont and Cindi Farkas, for themselves and several classes
-versus-
Nestle Purina Petcare Company, Waggin’ Train LLC, Wal-Mart Stores Inc., Target Corporation and Costco Wholesale Corporation
No. 1 : 12 CV 2781 (Northern District of Illinois, Eastern Division) Robert W. Gettleman, J., presiding
2. Elizabeth Mawaka, individually and on behalf of all others similarly situated
-versus-
Nestle Purina Petcare Company, Waggin’ Train LLC, Wal-Mart Stores Inc. and Sam’s Club Inc.
No. 3 : 12 CV 880 VLB (District of Connecticut, at Hartford) Vanessa L. Bryant, J., presiding
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BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
In re Chicken Jerky Pet Treat Product Liability Litigation MDL No. _______
APPEARANCE OF COUNSEL
Please enter my appearance on behalf of the following parties, all of whom are plaintiffs
in Adkins et al v. Nestle Purina Petcare Company et al, No. 1 : 12 CV 2871 (N.D.Ill.) –
Dennis Adkins
Maria Higginbotham
Mary Ellis
Dwayne Holley
Kaiya Holley
Deborah Cowan
Barbara Pierpont
Cindi Farkas
Dated: June 28, 2012 Respectfully submitted,
/s/ Thomas E. SouleThomas E. Soule
Thomas E. Soule Edelman, Combs, Latturner & Goodwin, LLC 120 South LaSalle Street, 18th Floor Chicago IL 60603 (312) 739-4200 (312) 419-0379 (fax) [email protected] for Dennis Adkins, Maria Higginbotham, Mary Ellis, Dwayne Holley,
Kaiya Holley, Deborah Cowan, Barbara Pierpont and Cindi Farkas
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BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
In re Chicken Jerky Pet Treat Product Liability Litigation MDL No. _______
PROOF OF SERVICE
I, Thomas E. Soule, counsel to Dennis Adkins, Maria Higginbotham, Mary Ellis, Dwayne Holley, Kaiya Holley, Deborah Cowan, Barbara Pierpont and Cindi Farkas, hereby certify that the preceding material was filed with the Panel on June 28, 2012 and served by the methods indicated below, on the same date. I further certify that, pursuant to Rule 4.1, I have transmitted a copy of the same papers to the clerk of each district court where an affected action is pending.
Dated: June 28, 2012 Respectfully submitted,
/s/ Thomas E. Soule Thomas E. Soule Thomas E. Soule Edelman, Combs, Latturner & Goodwin, LLC 120 South LaSalle Street, 18th Floor Chicago IL 60603 (312) 739-4200 (312) 419-0379 (fax) [email protected] for Dennis Adkins, Maria Higginbotham, Mary Ellis, Dwayne Holley,
Kaiya Holley, Deborah Cowan, Barbara Pierpont and Cindi Farkas
Service by CM/ECF filing Service by UPS overnight delivery
Thomas G. Bruton Robin D. Tabora Clerk, U.S. District Court Clerk, U.S. District Court Northern District of Illinois District of Connecticut Dirksen Federal Building, 20th Floor Ribicoff Federal Building 209 South Dearborn Street 450 Main Street
Chicago IL 60604 Hartford CT 06103
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Service by mail and electronic mail
Counsel for Dennis Adkins, Maria Counsel for Elizabeth Mawaka Higginbotham, Mary Ellis, DwayneHolley, Kaiya Holley, DeborahCowan, Barbara Pierpont and Cindi Farkas
Thomas E. Soule Bruce E. NewmanEdelman Combs Latturner & Goodwin LLC Brown, Paindiris & Scott, LLP 120 South LaSalle Street, 18th Floor 747 Stafford Avenue Chicago IL 60603 Bristol CT 06010 (312) 739-4200 (860) 583-5200 (312) 419-0379 (fax) (860) 589-5780 (fax) [email protected] [email protected]
Counsel for Nestle Purina, Waggin’ Train Counsel for Wal-Mart (doing business and Wal-Mart (doing business as as Wal-Mart and Sam’s Club Wal-Mart and Sam’s Club)
Craig A. Hoover Vincent J. Vigil Hogan Lovells LLP Gonzalez Saggio and Harlan LLC 555 13th Street NW Two Prudential Plaza Washington DC 20004 180 North Stetson Avenue, Suite 4525(202) 637-5600 Chicago IL 60601 (202) 637-5910 (fax) (312) 236-0475 [email protected] (312) 236-1750 (fax)
Service by personal service upon registered agent
Target Corporation Costco Wholesale Corporation c/o CT Corp. System (registered agent) c/o CT Corp. System (registered agent) 208 South LaSalle Street 208 South LaSalle Street Chicago IL 60604 Chicago IL 60604
Sam’s Club Inc. (also known as Wal-Mart Stores Inc.) c/o CT Corp. System (registered agent) 208 South LaSalle Street Chicago IL 60604
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APPENDIX A
Docket sheet and amended complaint inAdkins et al v. Nestle Purina Petcare Company et al
(No. 1 : 12 CV 2871 (N.D.Ill.))
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United States District CourtNorthern District of Illinois - CM/ECF LIVE, Ver 5.0.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:12-cv-02871
SCHENKIER
Adkins v. Nestle Purina Petcare Company et alAssigned to: Honorable Robert W. GettlemanCause: 28:1331 Federal Question
Date Filed: 04/18/2012Jury Demand: BothNature of Suit: 890 Other Statutory ActionsJurisdiction: Federal Question
Plaintiff Dennis Adkinsfor himself and other persons similarly situated
represented by Catherine Anne Ceko Edelman, Combs, Latturner & Goodwin LLC 120 S. LaSalle Suite 1800 Chicago, IL 60603 312-739-4200Email: [email protected] ATTORNEY TO BE NOTICED
Cathleen M. Combs Edelman, Combs, Latturner & Goodwin, LLC 120 South LaSalle Street 18th Floor Chicago, IL 60603 (312) 739-4200 Email: [email protected] ATTORNEY TO BE NOTICED
James O. Latturner Edelman, Combs, Latturner & Goodwin, LLC 120 South LaSalle Street 18th Floor Chicago, IL 60603 (312) 739-4200 Email: [email protected] ATTORNEY TO BE NOTICED
Tara Leigh Goodwin Edelman, Combs, Latturner & Goodwin, LLC 120 South LaSalle Street 18th Floor Chicago, IL 60603
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(312) 739-4200 Email: [email protected] ATTORNEY TO BE NOTICED
Thomas Everett Soule Edelman, Combs, Latturner & Goodwin, LLC 120 South LaSalle Street 18th Floor Chicago, IL 60603 (312) 739-4200 Email: [email protected] ATTORNEY TO BE NOTICED
Daniel A. Edelman Edelman, Combs, Latturner & Goodwin, LLC 120 South LaSalle Street 18th Floor Chicago, IL 60603 (312) 739-4200 Email: [email protected] ATTORNEY TO BE NOTICED
Plaintiff Maria Higginbotham represented by Thomas Everett Soule
(See above for address) ATTORNEY TO BE NOTICED
Plaintiff Kaiya Holley represented by Thomas Everett Soule
(See above for address) ATTORNEY TO BE NOTICED
Plaintiff Deborah Cowan represented by Thomas Everett Soule
(See above for address) ATTORNEY TO BE NOTICED
Plaintiff Mary Ellis represented by Thomas Everett Soule
(See above for address) ATTORNEY TO BE NOTICED
Plaintiff Cindi Farkas represented by Thomas Everett Soule
(See above for address) ATTORNEY TO BE NOTICED
Plaintiff
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Dwayne Holley represented by Thomas Everett Soule (See above for address) ATTORNEY TO BE NOTICED
Plaintiff Barbara Pierpont represented by Thomas Everett Soule
(See above for address) ATTORNEY TO BE NOTICED
V.DefendantNestle Purina Petcare Company represented by Miranda L Berge
Hogan Lovells Llp 555 13th Street Nw Washington, DC 20004 (202) 637-5600 Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED
Craig A. Hoover Hogan & Hartson 555 Thirteenth Street, Northwest Washington, DC 20004-1109 (202)637-5875Email: [email protected]
ATTORNEY TO BE NOTICED
Richard George Douglass Novack and Macey LLP 100 N. Riverside Plaza Chicago, IL 60606 (312) 419-6900 Email: [email protected] TO BE NOTICED
Stephen Novack Novack and Macey LLP 100 North Riverside Plaza Chicago, IL 60606 (312) 419-6900 Email: [email protected] ATTORNEY TO BE NOTICED
Defendant
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Waggin' Train LLC represented by Miranda L Berge (See above for address) LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED
Craig A. Hoover (See above for address) ATTORNEY TO BE NOTICED
Richard George Douglass (See above for address) ATTORNEY TO BE NOTICED
Stephen Novack (See above for address) ATTORNEY TO BE NOTICED
DefendantWal-Mart Stores Inc.doing business asWal-Martdoing business asSam's Club
represented by Vincent J. Vigil Gonzalez, Saggio and Harlan, L.L.C. Two Prudential Plaza 180 N. Stetson Ave., Ste. 4525 Chicago, IL 60601 (312) 236-0475 Fax: (312) 236-1750 Email: [email protected] LEAD ATTORNEYATTORNEY TO BE NOTICED
Paul David Manrique Gonzalez Saggio & Harlan Two Prudential Plaza 180 N. Stetson Ave. Ste. 4525 Chicago, IL 60601 (312) 236-0475 Email: [email protected] ATTORNEY TO BE NOTICED
DefendantDoes 1-10
DefendantTarget Corporation
DefendantCostco Wholesale Corporation
Date Filed # Docket Text
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04/18/2012 1 COMPLAINT filed by Dennis Adkins; Jury Demand. Filing fee $ 350, receipt number 0752-7060813. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Edelman, Daniel) (Entered: 04/18/2012)
04/18/2012 2 CIVIL Cover Sheet (Edelman, Daniel) (Entered: 04/18/2012)
04/18/2012 3 ATTORNEY Appearance for Plaintiff Dennis Adkins by Daniel A. Edelman (Edelman, Daniel) (Entered: 04/18/2012)
04/18/2012 4 ATTORNEY Appearance for Plaintiff Dennis Adkins by Thomas Everett Soule (Soule, Thomas) (Entered: 04/18/2012)
04/18/2012 5 MOTION by Plaintiff Dennis Adkins to certify class (Soule, Thomas) (Entered: 04/18/2012)
04/18/2012 6 MEMORANDUM by Dennis Adkins in support of motion to certify class 5(Attachments: # 1 Exhibit 1 - Part 1, # 2 Exhibit 1 - Part 2, # 3 Exhibit 2)(Soule, Thomas) (Entered: 04/18/2012)
04/18/2012 7 ATTORNEY Appearance for Plaintiff Dennis Adkins by Cathleen M. Combs (Combs, Cathleen) (Entered: 04/18/2012)
04/18/2012 8 ATTORNEY Appearance for Plaintiff Dennis Adkins by James O. Latturner (Latturner, James) (Entered: 04/18/2012)
04/18/2012 CASE ASSIGNED to the Honorable Robert W. Gettleman. Designated as Magistrate Judge the Honorable Sidney I. Schenkier. (jn, ) (Entered: 04/18/2012)
04/18/2012 9 NOTICE of Motion by Thomas Everett Soule for presentment of motion to certify class 5 before Honorable Robert W. Gettleman on 5/1/2012 at 09:15 AM. (Soule, Thomas) (Entered: 04/18/2012)
04/18/2012 10 ATTORNEY Appearance for Plaintiff Dennis Adkins by Tara Leigh Goodwin (Goodwin, Tara) (Entered: 04/18/2012)
04/18/2012 11 ATTORNEY Appearance for Plaintiff Dennis Adkins by Catherine Anne Ceko (Ceko, Catherine) (Entered: 04/18/2012)
04/19/2012 SUMMONS Issued as to Defendants Nestle Purina Petcare Company, Waggin' Train LLC, Wal-Mart Stores Inc. (daj, ) (Entered: 04/19/2012)
04/19/2012 12 SUMMONS Returned Executed by Dennis Adkins as to Wal-Mart Stores Inc. on 4/19/2012, answer due 5/10/2012. (Soule, Thomas) (Entered: 04/19/2012)
04/19/2012 13 SUMMONS Returned Executed by Dennis Adkins as to Nestle Purina Petcare Company on 4/19/2012, answer due 5/10/2012. (Soule, Thomas) (Entered: 04/19/2012)
04/19/2012 ALIAS Summons Issued as to Defendant Waggin' Train LLC. (aee, ) (Entered: 04/19/2012)
04/24/2012 14 SUMMONS Returned Executed by Dennis Adkins as to Waggin' Train LLC on 4/20/2012, answer due 5/11/2012. (Soule, Thomas) (Entered: 04/24/2012)
04/26/2012 15 MINUTE entry before Honorable Robert W. Gettleman: Notice of presentment
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of motion to certify class is re-set from 5/1/2012 to 5/17/2012, at 9:00 a.m. Status hearing is set for 5/17/2012 at 9:00 a.m. Telephone notice (gds) (Entered: 04/26/2012)
04/30/2012 16 ATTORNEY Appearance for Defendants Nestle Purina Petcare Company, Waggin' Train LLC by Stephen Novack (Novack, Stephen) (Entered: 04/30/2012)
04/30/2012 17 ATTORNEY Appearance for Defendants Nestle Purina Petcare Company, Waggin' Train LLC by Richard George Douglass (Douglass, Richard) (Entered: 04/30/2012)
04/30/2012 18 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by Nestle Purina Petcare Company, Waggin' Train LLC and Corporate Disclosure Statement(Douglass, Richard) (Entered: 04/30/2012)
04/30/2012 19 MOTION by Defendants Nestle Purina Petcare Company, Waggin' Train LLC for extension of time (Douglass, Richard) (Entered: 04/30/2012)
04/30/2012 20 NOTICE of Motion by Richard George Douglass for presentment of extension of time 19 before Honorable Robert W. Gettleman on 5/8/2012 at 09:15 AM. (Douglass, Richard) (Entered: 04/30/2012)
05/01/2012 21 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752-7104755. (Hoover, Craig) (Entered: 05/01/2012)
05/01/2012 22 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752-7104821. (Berge, Miranda) (Entered: 05/01/2012)
05/02/2012 23 ATTORNEY Appearance for Defendant Wal-Mart Stores Inc. by Vincent J. Vigil (Vigil, Vincent) (Entered: 05/02/2012)
05/02/2012 24 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by Wal-Mart Stores Inc. re attorney appearance 23 (Vigil, Vincent) (Entered: 05/02/2012)
05/02/2012 25 MOTION by Defendant Wal-Mart Stores Inc. for extension of time to file answer regarding complaint 1 (Vigil, Vincent) (Entered: 05/02/2012)
05/02/2012 26 NOTICE of Motion by Vincent J. Vigil for presentment of motion for extension of time to file answer, motion for relief 25 before Honorable Robert W. Gettleman on 5/8/2012 at 09:15 AM. (Vigil, Vincent) (Entered: 05/02/2012)
05/02/2012 27 NOTICE of Motion by Vincent J. Vigil for presentment of motion for extension of time to file answer, motion for relief 25 before Honorable Robert W. Gettleman on 5/8/2012 at 09:15 AM. (Vigil, Vincent) (Entered: 05/02/2012)
05/07/2012 28 MINUTE entry before Honorable Robert W. Gettleman: Defendant Nestle Purina's motion 19 for extension of time to 6/12/2012 to answer or otherwise plead is granted. Defendant Walmart's motion 25 for extension of time to 6/12/2012 to answer or otherwise plead is granted. Mailed notice (gds) (Entered: 05/07/2012)
05/16/2012 29 ATTORNEY Appearance for Defendant Wal-Mart Stores Inc. by Paul David
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Manrique (Manrique, Paul) (Entered: 05/16/2012)
05/16/2012 30 MINUTE entry before Honorable Robert W. Gettleman: Motion [ 21 ] of Craig A. Hoover for leave to appear pro hac vice is granted. Motion [ 22 ] of Miranda L. Berge for leave to appear pro hac vice is granted. Mailed notice (mb, ) (Entered: 05/17/2012)
05/17/2012 31 MINUTE entry before Honorable Robert W. Gettleman: Motion to certify class 5 is withdrawn without prejudice. Status hearing held on 5/17/2012. Defendant's motion is due by 6/12/2012. Plaintiff's response is due by 7/13/2012. Defendant's reply is due by 7/27/2012. Status hearing set for 9/27/2012 at 09:00 a.m. Mailed notice (gds) (Entered: 05/25/2012)
06/07/2012 32 MOTION by Defendants Nestle Purina Petcare Company, Waggin' Train LLC for extension of time for all defendants to move to dismiss complaint(Douglass, Richard) (Entered: 06/07/2012)
06/07/2012 33 NOTICE of Motion by Richard George Douglass for presentment of extension of time 32 before Honorable Robert W. Gettleman on 6/12/2012 at 09:15 AM. (Douglass, Richard) (Entered: 06/07/2012)
06/11/2012 34 MINUTE entry before Honorable Robert W. Gettleman: Motion for extension of time 32 to 6/26/2012 to file motion to dismiss is granted. Status hearing date of 9/27/2012 is re-set to 6/27/2012 at 9:00 a.m. Mailed notice (gds) (Entered: 06/11/2012)
06/13/2012 35 MOTION by Plaintiff Dennis Adkins for leave to file amended complaint(Attachments: # 1 Appendix 1, # 2 Exhibit A to Appendix 1, # 3 Exhibit B to Appendix 1, # 4 Exhibit C to Appendix 1, # 5 Exhibit D to Appendix 1, # 6Exhibit E to Appendix 1, # 7 Exhibit F to Appendix 1, # 8 Exhibit G to Appendix 1, # 9 Appendix 2)(Soule, Thomas) (Entered: 06/13/2012)
06/13/2012 36 NOTICE of Motion by Thomas Everett Soule for presentment of motion for leave to file, 35 before Honorable Robert W. Gettleman on 6/27/2012 at 09:15 AM. (Soule, Thomas) (Entered: 06/13/2012)
06/13/2012 37 MOTION by Plaintiff Dennis Adkins to certify class (Amended) (Soule, Thomas) (Entered: 06/13/2012)
06/13/2012 38 MEMORANDUM by Dennis Adkins in support of motion to certify class 37(Attachments: # 1 Exhibit 1 - Part 1, # 2 Exhibit 1 - Part 2, # 3 Exhibit 2)(Soule, Thomas) (Entered: 06/13/2012)
06/13/2012 39 NOTICE of Motion by Thomas Everett Soule for presentment of motion to certify class 37 before Honorable Robert W. Gettleman on 6/27/2012 at 09:15 AM. (Soule, Thomas) (Entered: 06/13/2012)
06/27/2012 40 AMENDED complaint by Dennis Adkins, Maria Higginbotham, Kaiya Holley, Deborah Cowan, Mary Ellis, Cindi Farkas, Dwayne Holley, Barbara Pierpont against Does 1-10, Nestle Purina Petcare Company, Waggin' Train LLC, Wal-Mart Stores Inc., Target Corporation, Costco Wholesale Corporation (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Soule, Thomas) (Entered: 06/27/2012)
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06/27/2012 SUMMONS Issued as to Defendants Costco Wholesale Corporation, Target Corporation (mr, ) (Entered: 06/27/2012)
06/27/2012 41 SUMMONS Returned Executed by Kaiya Holley, Dwayne Holley, Maria Higginbotham, Mary Ellis, Cindi Farkas, Dennis Adkins, Barbara Pierpont as to Costco Wholesale Corporation on 6/27/2012, answer due 7/18/2012. (Soule, Thomas) (Entered: 06/27/2012)
06/27/2012 42 SUMMONS Returned Executed by Kaiya Holley, Dwayne Holley, Maria Higginbotham, Mary Ellis, Cindi Farkas, Dennis Adkins, Deborah Cowan as to Target Corporation on 6/27/2012, answer due 7/18/2012. (Soule, Thomas) (Entered: 06/27/2012)
PACER Service Center Transaction Receipt
06/28/2012 13:44:48PACER Login: ec0074 Client Code: 26844 Description: Docket Report Search Criteria: 1:12-cv-02871 Billable Pages: 6 Cost: 0.60
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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DENNIS ADKINS, MARIA HIGGINBOTHAM, )MARY ELLIS, DWAYNE and KAIYA HOLLEY, )DEBORAH COWAN, BARBARA PIERPONT, )and CINDI FARKAS, for themselves and several classes, )
)Plaintiffs, )
)v. ) 1:12CV2871
)NESTLE PURINA PETCARE COMPANY, )WAGGIN’ TRAIN LLC, WAL-MART STORES INC. )(doing business as Wal-Mart and Sam’s Club), ) TARGET CORPORATION, COSTCO WHOLESALE )CORPORATION, and DOES 1-10, )
)Defendants. )
AMENDED COMPLAINT – CLASS ACTION
MATTERS RELEVANT TO MULTIPLE CLAIMS
INTRODUCTION
1. This is a class action brought by plaintiffs, on behalf of all consumers who
purchased certain dog treats manufactured, marketed, distributed or sold by defendants. The
dog treats were unsafe, were defective, were dangerous, were culpably misrepresented as safe
and healthy, and did not conform to applicable implied and express warranties.
JURISDICTION AND VENUE
2. This Court has jurisdiction, under 28 U.S.C. §1332(d). The amount in
controversy exceeds $5 million, exclusive of interest and costs. Plaintiffs and class members are
of diverse citizenship to each other (as they reside in Illinois and in other states), and are of
diverse citizenship to the defendants. There are over 100 class members.
3. Personal jurisdiction over each defendant is proper because each
defendant
(a) does and has done business in Illinois and within this District, with
the claims asserted herein arising from such business; and
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(b) committed tortious acts which are the subject of the complaint in
Illinois, and within this district.
4. Venue in this district is proper for the same reasons.
PARTIES
5. Plaintiff Dennis Adkins is an individual who resides in the Northern
District of Illinois.
6. Plaintiff Maria Higginbotham is an individual who resides in the Western
District of Washington.
7. Plaintiff Mary Ellis is an individual who resides in the Central District of
California.
8. Plaintiffs Dwayne and Kaiya Holley, who are husband and wife, reside in
the Eastern District of New York.
9. Plaintiff Deborah Cowan is an individual who resides in the Northern
District of Texas.
10. Plaintiff Barbara Pierpont is an individual who resides in the Eastern
District of Pennsylvania.
11. Plaintiff Cindi Farkas is an individual who resides in New Jersey.
12. Defendant Nestle Purina Petcare Company (“Nestle Purina”) is a Missouri
corporation, with its principal place of business at Checkerboard Square, St. Louis, Missouri. It
does business in Illinois. Its registered agent and office is CT Corporation System, 208 South
LaSalle Street, Suite 814, Chicago, Illinois.
13. Nestle Purina is engaged in the business of manufacturing, producing,
marketing, distributing, advertising or selling dog treats.
14. Nestle Purina began selling dog food in 1957. It has spent millions of
dollars in promoting trust and confidence among consumers in its pet food products. It holds
itself out to the public as a manufacturer of safe, nutritious and high-quality pet food.
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15. Defendant Waggin’ Train LLC (“Waggin’ Train”) is a limited liability
company chartered under Delaware law, with its principal place of business at 1924 Pearman
Dairy Rd, #A, Anderson, South Carolina. Its registered agent and office is CT Corporation
System, 2 Office Park Court, Columbia, South Carolina.
16. Waggin’ Train manufactured, imported, packaged, advertised and sold the
dog treats at issue.
17. Waggin’ Train has spent millions of dollars in promoting trust and
confidence among consumers in its pet food products. It holds itself out to the public as a
manufacturer of safe, nutritious and high-quality pet food.
18. Since 2010, Waggin’ Train has been owned by, and is in the process of
being integrated into, Nestle Purina.
19. Defendant Wal-Mart Stores Inc. (“Wal-Mart”) is a Delaware corporation,
with its principal place of business at 702 S.W. 8th Street, Bentonville, Arkansas. It does
business in Illinois. Its registered agent and office is CT Corporation System, 208 South LaSalle
Street, Suite 814, Chicago, Illinois. Wal-Mart also does business under the name “Sam’s Club.”
20. Defendant Target Corporation (“Target”) is a Minnesota corporation, with
its principal place of business at 1000 Nicollet Mall, Minneapolis, Minnesota. It does business
in Illinois. Its registered agent and office is CT Corporation System, 208 South LaSalle Street,
Suite 814, Chicago, Illinois.
21. Defendant Costco Wholesale Corporation (“Costco”) is a Washington
corporation, with its principal place of business at 999 Lake Drive, Issaquah, Washington. It
does business in Illinois. Its registered agent and office is CT Corporation System, 208 South
LaSalle Street, Suite 814, Chicago, Illinois.
22. Wal-Mart, Target and Costco distribute and sell dog treats manufactured
by Waggin’ Train and Nestle Purina.
23. Does 1-10 are other entities involved in the manufacture, sale, distribution
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and marketing of the dog treats.
FACTS
In general
24. Waggin’ Train, under the control and direction of Nestle Purina,
manufactured dog treats made, in whole or in part, of chicken jerky. Some products (including,
for example, a product called “Jerky Tenders”) consist of chicken jerky alone. Other products
(including, for example, “Yam Good” treats) consist of chicken jerky combined with other food
products; in the case of Yam Good treats, the chicken jerky is wrapped around what purports to
be a strip of sweet potato.
25. The packaging of the Yam Good dog treats is represented by Exhibit A.
This packaging stated, among other things,
(a) that the chicken wrapped yams contained in the package were
“wholesome,”
(b) that the chicken wrapped yams contained in the package were
“nutritious & great tasting,”
(c) that “it’s what nature intended,”
(d) that “we looked everywhere to find a treat that was better for our
dogs,”
(e) that the treats were “just wholesome goodness,”
(f) that the purchaser should “feel confident that you are giving your
dog a wholesome treat that is both healthy and delicious,” and
(g) that “it means a lot to us to help you treat your dog right.”
26. The packaging of the Jerky Tenders dog treats is represented by Exhibit B.
This packaging stated, among other things,
(a) that the treats enclosed were “wholesome chicken” and a
“wholesome treat,”
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(b) that the ingredients of the treats “are of the highest quality” and
were “nothing but the best,”
(c) that the treats were “simple” and “natural,”
(d) that “it’s what nature intended,”
(e) that “we looked everywhere to find a treat that was better for our
dogs,”
(f) that the treats were “just wholesome goodness,”
(g) that the purchaser should “feel confident that you are giving your
dog a wholesome treat that is both healthy and delicious,” and
(h) that “it means a lot to us to help you treat your dog right.”
27. Packaging for other dog treats marketed under the Waggin’ Train brand
provide similar statements regarding wholesomeness and suitability as are found on Exhibits A
& B.
28. All of these representations, found on the packaging represented by
Exhibits A & B, were false.
29. The products containing chicken jerky that were sold under the Waggin’
Train brand were not wholesome, were not nutritious, and were unhealthy.
30. In fact, the FDA had issued warnings, as recently as November 18, 2011,
about dog illnesses after consuming chicken jerky dog treats which were made in China. Such
warnings are contained within Exhibit C.
31. The packaging did not warn of any danger from feeding its contents to
dogs.
32. Waggin’ Train and Nestle Purina market their products without first
determining that the products are safe, and that they will not have a deleterious effect on dogs.
33. Waggin’ Train and Nestle Purina marketed chicken jerky dog treats
without first determining that the products were safe, and that the dog treats would not have a
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deleterious effect on dogs.
34. Nestle Purina’s Waggin’ Train brand of chicken jerky products, per the
labels found on Exhibits A & B, are “Made In China.” On information and belief, the products
are made in the People’s Republic of China.
35. Prior to April 18, 2012, Nestle Purina and Waggin’ Train, LLC had
received complaints, relating to more than 500 incidents, regarding dog treats containing chicken
jerky imported from China which caused dogs to become sick or die.
36. Dog treats sold in Australia which contained chicken jerky made in China
were recalled in 2008 by KraMar Pet Company Pty. Ltd., after scores of dogs in that country
were sickened. See Kemp, Miles, “Hunt To Track Source Of Dog Meat Poison,” Adelaide
Advertiser, Dec. 9, 2008 at 9; Australian Veterinary Association, “Pet Owners Should Stay
Vigilant After Chicken Treat Recall” (press release), Dec. 10, 2008; and Williams, Bronwyn,
“Kidney Disease Brings Warning To Dog Owners,” Hobart Mercury, Jan. 5, 2009 at 8. (Exhibit
D.) KraMar Pet Company was taken over by Nestle Purina’s Australian division (operated by
Nestle Australia Ltd.) in 2010.
37. Numerous complaints concerning Waggin’ Train chicken jerky treats
sickening or killing dogs were made on the internet. Examples are attached as Exhibit E.
38. On February 21, 2012, the following article appeared on a blog,
www.PoisonedPets.com:
“Number one selling dog treat in US causing kidney failure, death
February 21st, 2012
Makers of Waggin’ Train dog treats Nestle Purina continue to deny today anyproblem with their treats despite hundreds of reports of complaints to the FDA.They insist that their strict quality control of the chicken jerky manufactured inChina prevents any problems with possible adulteration of their product. Further,Nestle-Purina states if the FDA can’t find the contaminant then they do not haveto take the product off the market or take any responsibility for the illness anddeath of pets associated with their product.
There are two glaring problems with Nestle-Purina’s argument; one, if the FDAdoesn’t know what the contaminant is yet – how does Nestle-Purina know? The
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contaminant can only be identified by first determining what the contaminant isbefore they can test for it. If the FDA and the University toxicology laboratoriesthat work with the FDA have been unable to discover what the contaminant issince the problem was first recognized in 2007, how is Nestle-Purina able to? IfNestle-Purina knows something the FDA doesn’t know, then it is their duty toinform the FDA. Nestle-Purina cannot unequivocally assure the product’s safetyuntil they can first show that the product has tested negative for the (as yetunknown) contaminant.
Second, based on the first argument it would be prudent for Nestle-Purina to issuea precautionary recall of their product until such time the contaminant isdiscovered. True, Nestle-Purina is not by law required to do so, but as amanufacturer who is genuinely concerned for the health and safety of the petsconsuming their product, it is their ethical and moral duty to do so. Further, if theWal-Mart, the largest retailer on the globe, would take a proactive stance out ofan abundance of caution and remove the product until such time the manufacturercan prove the product is indeed safe, surely other retailers would follow suit.”
39. Waggin’ Train placed warnings concerning its products on its web site.
40. Notwithstanding these warnings, Waggin’ Train, and Nestle Purina,
continued to market the product as being wholesome. The portion of the Waggin’ Train website
promoting “Yam Good” dog treats (Exhibit F) as of April 16, 2012, still described the “Yam
Good” product as follows:
The name says it all! Sure to please even the pickiest of dogs, these wholesomeyams wrapped with chicken are packed with flavor and goodness. Waggin’ TrainYam Good snacks will satisfy your dog with the natural sweetness of yams.
The same promotional statement appeared on the Waggin’ Train website on June 12, 2012. (Id.)
41. Waggin’ Train and Nestle Purina placed no warnings concerning their
products on their packaging.
42. Waggin’ Train and Nestle Purina knew that there was a substantial risk of
death or harm associated with its dog treats.
43. No reasonable person would feed dog treats to their dogs knowing that
there was a substantial risk of death or illness from doing so. Plaintiffs, and other consumers,
did not learn of the FDA warning or see the warnings on the Waggin’ Train web site, until after
their dogs had consumed the treated and either became ill or passed away.
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44. Waggin’ Train and Nestle Purina intentionally concealed known facts
concerning the safety of their dog treats in order to increase or maintain sales.
45. The fact that the dog treats might cause serious illness or death either at
the recommended level, or at some larger level, was and is a material fact to pet owners. Most
pet owners (if not all of them) would not want to feed their pet such a treat, or have such a treat
in a location where an animal might obtain more than the recommended number of servings.
46. Dog owners consider their pets to be members of the family, and become
very distressed when their dogs pass away, or become seriously ill.
47. The conduct of Waggin’ Train, LLC and Nestle Purina recklessly or
maliciously disregarded the rights of plaintiffs and the class members, for motives of pecuniary
gain.
48. Wal-Mart, Target and Costco adopted the marketing representations of
Waggin’ Train and Nestle Purina. They did not place any warnings about the dog treats, at the
point of sale or otherwise.
Dennis Adkins
49. On or about March 11, 2012, Dennis Adkins purchased from Wal-Mart, at
a store near his home in Orland Park, Illinois, a package of Waggin’ Train “Yam Good” dog
treats.
50. Mr. Adkins owned a small Pomeranian, between 11 and 25 pounds, named
Cleopatra (also known as Cleo). On March 13, 2012, she was nine years old, and in good health.
51. Between March 13, 2012 and March 15, 2012, Mr. Adkins gave one of the
treats to Cleopatra daily, which he chopped into two to three pieces. Mr. Adkins made no other
changes in her diet.
52. Immediately thereafter, Cleopatra became sick and, on March 26, 2012,
died of kidney failure.
53. Mr. Adkins owns another nine year old Pomeranian, named Pharaoh. Mr.
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Adkins did not feed any of the “Yam Good” treats to him. Pharaoh did not become ill.
54. Mr. Adkins gave notice of his claim to defendants.
55. Mr. Adkins suffered economic damages of more than $2,300.00 as a result
of defendants’ conduct, including:
(a) the value of his dog,
(b) veterinary expenses incurred in treating the dog and attempting to
save her life,
(c) the cost of disposition of the dog, and
(d) the cost of the defendants’ product.
56. Consumers in Illinois, and across the United States, suffered damages
similar to those suffered by Mr. Adkins, as a result of defendants’ conduct.
Maria Higginbotham
57. On or about January 5, 2012, Maria Higginbotham purchased from Target,
at a store near her home in Gig Harbor, Washington, a package of Waggin’ Train “Chik’n
Biscuit” dog treats.
58. Ms. Higginbotham owns a small rat terrier, weighing approximately nine
pounds, named Bandit. On January 5, 2012, he was three years old, and in good health. Ms.
Higginbotham also owns a second rat terrier, weighing approximately 18 pounds, named Kali.
In January 2012, she was eight years old, and also in good health.
59. Between January 5, 2012 and January 9, 2012, Ms. Higginbotham gave
two of the treats to Bandit, daily. His diet was otherwise unchanged from before January 5,
2012.
60. Immediately thereafter, Bandit became sick. The first symptoms that
arose were vomiting, diarrhea (with bleeding), lethargy, disorientation, and stumbling while
walking. He later collapsed, and was cold to the touch. Upon arrival at the veterinarian, he was
diagnosed with low blood pressure, high levels of liver enzymes in the blood streams, and
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dehydration; it was found that he in the beginnings of organ failure. Bandit is no longer
critically ill, but required a month of veterinary care, including intravenous transfusion of fluids
and several overnight stays at an animal hospital in Tacoma, Washington. Bandit still has not
completely recovered from his illness.
61. Kali was also fed the treats in early January 2012; her diet was otherwise
unchanged. In the wake of Bandit’s illness, Kali was no longer fed the dog treats. Kali was also
examined by a veterinarian. While not carrying the same symptoms as Bandit, it was learned
that Kali did have elevated liver enzymes in her bloodstream, per bloodwork done on or about
January 27, 2012. When re-examined on or about February 28, 2012, her bloodwork showed a
normal amount of liver enzymes in her bloodstream; by this time, Kali had not consumed
Waggin’ Train dog treats for almost two months.
62. Ms. Higginbotham gave notice of her claim to defendants.
63. Ms. Higginbotham specifically complained to Waggin’ Train and received
a return phone call, saying that consumer claims were being handled by Sedgwick Claims
Management Services Inc. – a third-party claims administrator located in Memphis, Tennessee
and elsewhere. Ms. Higginbotham was contacted by Jennifer Dunlap, a case manager for
Sedgwick, three weeks after her complaint. Ms. Dunlap told Ms. Higginbotham that no further
settlements of claims made against Waggin’ Train would be processed, as to do so would be
tantamount to a “declaration of guilt.”
64. Ms. Higginbotham suffered economic damages, totaling at least $3,200.00
to date, as a result of defendants’ conduct, including veterinary expenses incurred in treating the
dog and the cost of the defendants’ product.
65. Consumers in the state of Washington, and across the United States,
suffered damages similar to those suffered by Ms. Higginbotham, as a result of defendants’
conduct.
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Mary Ellis
66. Mary Ellis purchased Waggin’ Train dog treats from Stater Brothers, a
supermarket located in Ontario, California – most recently, in or around February 2012. She had
fed approximately two of these treats to each of her dogs, per day, for approximately one year
before all three of them became sick.
67. Ms. Ellis owned three dogs – Buster and Boomer (both of whom are nine
years old), and Maggie (who was twelve years old when she died). Each dog weighed
approximately 50 pounds in February and March, 2012. The diets of Ms. Ellis’s dogs were not
changed between February and March 2012.
68. In March 2012, all three of her dogs became sick at or around the same
time. All three suffered from vomiting and diarrhea. Further, each frothed at the mouth, and had
difficulty walking. On information and belief, Maggie’s illness was a contributing factor to her
passing.
69. Ms. Ellis gave notice of her claim to defendants.
70. Ms. Ellis suffered economic damages as a result of defendants’ conduct, in
the approximate amount of at least $6,000.00 to date, including:
(a) the value of the dog that passed away,
(b) veterinary expenses incurred in treating her dogs,
(c) the cost of disposition of the dog that passed away, and
(d) the cost of the defendants’ product.
71. Consumers in California, and across the United States, suffered damages
similar to those suffered by Ms. Ellis, as a result of defendants’ conduct.
Dwayne & Kaiya Holley
72. Between September 2011 and March 2012, Dwayne and Kaiya Holley
purchased “Yam Good” dog treats from a Wal-Mart near their home in Hempstead, Long Island.
73. The Holleys owned a Yorkshire terrier named Bootsie, who weighed
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approximately 13 pounds. In March 2012, Bootsie was five years old and in good health.
74. The Holleys fed Bootsie Yam Good dog treats on occasion between
September 2011 and March 2012 – varying from no treats at all to four treats in a given day.
The last time Bootsie consumed Yam Good dog treats was March 15, 2012. Bootsie’s diet was
constant throughout this period, otherwise.
75. On March 17, 2012, Bootsie became sluggish, began vomiting, suffered
from diarrhea, and urinated in the Holleys’ house. When taken to the veterinarian, Bootsie was
diagnosed as having kidney failure, and was put on dialysis. Bootsie died thereafter, on March
23, 2012.
76. The Holleys gave notice of their claim to defendants.
77. The Holleys suffered economic damages as a result of defendants’
conduct, in the approximate amount of at least $4,000.00, including:
(a) the value of their dog,
(b) veterinary expenses incurred in treating the dog and attempting to
save his life,
(c) the cost of disposition of the dog, and
(d) the cost of the defendants’ product.
78. Consumers in the state of New York, and across the United States,
suffered damages similar to those suffered by the Holleys, as a result of defendants’ conduct.
Deborah Cowan
79. In or around late February or early March 2012, Deborah Cowan,
purchased from a Wal-Mart in Amarillo, Texas, a package of Waggin’ Train “Jerky Tenders”
dog treats.
80. Ms. Cowan owns a dog named Rowdy, who weighs approximately 15
pounds. In March 2012, Rowdy was approximately eight years old and in good health.
81. Ms. Cowan fed her dog one half of one treat per day, for approximately
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two weeks. Her dog’s diet was otherwise unchanged.
82. On or about March 13, 2012, Rowdy became ill. A veterinarian near her
home in Perryton, Texas reports that Rowdy was “toxic, dehydrated and extremely ill. His
uranalysis indicated kidney damage. He displayed renal pain, an enlarged liver, and an
extremely high blood sugar. With aggressive therapy, Rowdy survived but still suffers from the
damage created by the toxic treats and requires daily insulin therapy. He remains in poor
health.” (Exhibit G.) In the veterinarian’s opinion, the Waggin’ Train dog treats caused
Rowdy’s illness. (Id.)
83. Ms. Cowan gave notice of her claim to defendants.
84. Ms. Cowan suffered economic damages, totaling to date approximately
$1,000.00, as a result of defendants’ conduct, including veterinary expenses incurred in treating
the dog and the cost of the defendants’ product.
85. Consumers in Texas, and across the United States, suffered damages
similar to those suffered by Ms. Cowan, as a result of defendants’ conduct.
Barbara Pierpont
86. In March 2012, Barbara Pierpont purchased Waggin’ Train “Jerky
Tenders” dog treats from a Sam’s Club near her home in Stewartstown, Pennsylvania.
87. Ms. Pierpont owned a dog named Honey, who weighed approximately 40
pounds. In March 2012, she was seven years old, and in good health.
88. Ms. Pierpont fed Honey three of the dog treats to Honey per day, for three
weeks. No other changes in Honey’s diet were made. Honey last consumed the dog treats on
April 10, 2012.
89. Shortly thereafter, Honey died of kidney failure.
90. Ms. Pierpont gave notice of her claim to defendants.
91. Ms. Pierpont suffered economic damages as a result of defendants’
conduct, including:
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(a) the value of her dog,
(b) veterinary expenses incurred in treating the dog and attempting to
save her life,
(c) the cost of disposition of the dog, and
(d) the cost of the defendants’ product.
92. Consumers in Pennsylvania, and across the United States, suffered
damages similar to those suffered by Ms. Pierpont, as a result of defendants’ conduct.
Cindi Farkas
93. In or around late March or early April, 2012, Cindi Farkas purchased
Waggin’ Train “Jerky Tenders” from a Costco store near her home in Howell, New Jersey.
94. Ms. Farkas owns a dog named Chanel, who weighs approximately 10
pounds. In March 2012, Chanel was six years old and in good health.
95. Ms. Farkas fed Chanel approximately a half of one treat per day, for three
weeks. No other changes in Chanel’s diet were made.
96. Immediately thereafter, Chanel became sick, and was diagnosed with
kidney disease. To date, Ms. Farkas has spent approximately $2,035.00 on veterinary care for
her pet.
97. Ms. Farkas gave notice of her claim to defendants.
98. Ms. Farkas suffered economic damages, as a result of defendants’
conduct, including veterinary expenses incurred in treating the dog and the cost of the
defendants’ product.
99. Consumers in New Jersey, and across the United States, suffered damages
similar to those suffered by Ms. Farkas, as a result of defendants’ conduct.
COUNT I – BREACH OF IMPLIED WARRANTY;UNIFORM COMMERCIAL CODE AND MAGNUSON-MOSS ACT
100. Plaintiffs incorporate paragraphs 1-99.
101. This claim is against all defendants.
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102. Under the Uniform Commercial Code (“UCC”) – in force throughout the
United States except in Louisiana and Puerto Rico – there is an implied warranty in the sale of
goods by a merchant that the goods shall be merchantable. This is codified in the states where
plaintiffs reside as
a. 810 ILCS 5/2-314 (Illinois),
b. Rev. Code Wash. §62A.2-314 (Washington),
c. Cal. U.C.C. §2314 (California),
d. N.Y. U.C.C. §2-314 (New York),
e. Tex. Bus. & Comm. Code §2.314 (Texas),
f. 13 Pa. Consol. Stat. §2314 (Pennsylvania), and
g. N.J. Stat. §12A:2-314 (New Jersey).
103. Under UCC §2-314(2), “Goods to be merchantable must be at least such
as.... (c) are fit for the ordinary purposes for which such goods are used; and... (f) conform to the
promises or affirmations of fact made on the container or label if any.”
104. The dog treats sold by defendants were not fit for feeding to dogs, and did
not conform to the promises or affirmations of fact made on the packaging.
CLASS ALLEGATIONS
105. Plaintiffs bring this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on
behalf of a class and four subclasses.
106. The class consists of all persons in the United States (except Louisiana
and Puerto Rico) who purchased any dog treat product containing chicken jerky manufactured or
sold by Nestle Purina or Waggin’ Train and containing chicken imported from China, on or after
a date four years prior to the filing of this action.
107. Three subclasses consist of class members who purchased such products
from (a) Wal-Mart, (b) Target or (c) Costco, respectively. Mr. Adkins, Mr. and Mrs. Holley,
Ms. Cowan, and Ms. Pierpont would represent the Wal-Mart subclass. Ms. Higginbotham would
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represent the Target subclass. Ms. Farkas would represent the Costco subclass.
108. The fourth subclass consists of class members whose dogs suffered harm
or death due to the consumption of defendants’ products.
109. The members of the class and subclasses are so numerous that joinder of
all members is impracticable. Thousands of persons purchased the dog treats at issue, and
hundreds of dogs died as a result.
110. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
in design and formulation and unfit for consumption by dogs,
(b) whether the products sold by defendants were contaminated,
(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time),
(d) whether defendants failed to warn of the dangers of their products,
and
(e) whether defendants breached implied warranties.
111. Plaintiffs’ claims are typical of the claims of the class members. All are
based on the same factual and legal theories.
112. Plaintiffs will fairly and adequately represent the interests of the class
members. They have retained counsel experienced in consumer class action litigation.
113. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, plaintiffs request that the Court enter judgment in favor of
plaintiffs and the class, and against defendants, for:
(a) Compensatory damages;
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(b) Costs of suit, expenses and attorney’s fees (pursuant to 15 U.S.C.
§2310); and
(c) Such other or further relief as the Court deems proper.
COUNT II – BREACH OF EXPRESS WARRANTY;UNIFORM COMMERCIAL CODE
114. Plaintiffs incorporate paragraphs 1-99.
115. This claim is against all defendants.
116. Under UCC §2-313, in force throughout the United States except
Louisiana and Puerto Rico, the representations on defendants’ packaging created an express
warranty that the contents shall conform to the representations. This is codified as
a. 810 ILCS 5/2-313 (Illinois),
b. Rev. Code Wash. §62A.2-313 (Washington),
c. Cal. U.C.C. §2313 (California),
d. N.Y. U.C.C. §2-313 (New York),
e. Tex. Bus. & Comm. Code §2.313 (Texas),
f. 13 Pa. Consol. Stat. §2313 (Pennsylvania), and
g. N.J. Stat. §12A:2-313 (New Jersey).
117. Defendants’ representations became a part of the basis of the bargain.
118. Defendants breached those representations, as described above.
CLASS ALLEGATIONS
119. Plaintiffs bring this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on
behalf of a class and four subclasses.
120. The class consists of all persons in the United States (except Louisiana
and Puerto Rico) who purchased any dog treat product containing chicken jerky manufactured or
sold by Nestle Purina or Waggin’ Train and containing chicken imported from China, on or after
a date four years prior to the filing of this action.
121. Three subclasses consist of class members who purchased such products
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from (a) Wal-Mart, (b) Target or (c) Costco, respectively. Mr. Adkins, Mr. and Mrs. Holley,
Ms. Cowan, and Ms. Pierpont would represent the Wal-Mart subclass. Ms. Higginbotham would
represent the Target subclass. Ms. Farkas would represent the Costco subclass.
122. The fourth subclass consists of class members whose dogs suffered harm
or death due to the consumption of defendants’ products.
123. The members of the class and subclasses are so numerous that joinder of
all members is impracticable. Thousands of persons purchased the dog treats at issue, and
hundreds of dogs died as a result.
124. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
in design and formulation and unfit for consumption by dogs,
(b) whether the products sold by defendants were contaminated,
(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time),
(d) whether defendants failed to warn of the dangers of their products,
and
(e) whether defendants breached express warranties;
125. Plaintiffs’ claims are typical of the claims of the class members. All are
based on the same factual and legal theories.
126. Plaintiffs will fairly and adequately represent the interests of the class
members. Plaintiffs have retained counsel experienced in consumer class action litigation.
127. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, plaintiffs request that the Court enter judgment in favor of
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plaintiffs and the class, and against defendants, for:
(a) Compensatory damages;
(b) Costs of suit; and
(c) Such other or further relief as the Court deems proper.
COUNT III – VIOLATIONS OF STATE CONSUMER PROTECTION STATUTES
128. All plaintiffs incorporate paragraphs 1-99, and bring this count for seven
classes – one for each plaintiff’s state of residence.
129. Defendants engaged in unfair and deceptive acts and practices, under the
statutes of various states in which the plaintiffs reside. These include
A. the Illinois Consumer Fraud and Deceptive Business Practices Act,
815 ILCS 505/1 et seq. (Mr. Adkins);
B. the Washington Consumer Protection Act, Rev. Code Wash.
§19.86.010 et seq. (Ms. Higginbotham);
C. the California Consumer Legal Remedies Act, Cal. Civ. Code
§1750 et seq. (Ms. Ellis);
D. the New York General Business Law, §349 et seq. (the Holleys);
E. the Texas Deceptive Trade Practices – Consumer Protection Act,
Tex. Bus. & Comm. Code. §17.41 et seq. (Ms. Cowan);
F. the Pennsylvania Unfair Trade Practices and Consumer Protection
Law, 73 Pa. Stat. §201-1 et seq. (Ms. Pierpont); and
G. the New Jersey Consumer Fraud Act, N.J. Stat. §56:8-1 et seq.
(Ms. Farkas).
130. These statutes were violated by defendants as they
(i) produced, or sold, dog treats that were materially defective in
design and formulation or contaminated, and unfit for consumption
by dogs;
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(ii) represented that the treats were healthy and wholesome when they
were not (whether on the packaging (Exhibits A & B), on the
internet (Exhibit F), or otherwise);
(iii) sold dog treats with such representations without properly testing
the products to determine if they conformed to the representations;
(iv) continued to sell dog treats after defendants knew or should have
known that the representations being made about them were false;
and
(v) either failed to warn of the dangers of their products, or concealed
such dangers, or both.
131. With respect to all plaintiffs, the unfair and deceptive actions of
defendants were done in the course of retail business, trade and commerce. Further, a
deleterious impact on the public interest (specifically, the public’s interest in ensuring that its pet
food supply is safe for consumption) was caused by defendants’ conduct.
132. Damages, in the form of the illnesses and deaths suffered by consumers’
pets, and the fact that the product has no value if it is unwholesome and unfit for consumption by
animals, were suffered by consumers as a result of defendants’ actions.
133. The actions of defendants were taken willfully, knowingly, or in reckless
disregard of the interests of consumers, thereby justifying the award of punitive damages under
various state statutes. Specifically, defendants either deliberately concealed, or were willfully
blind to, facts relevant to the question of whether its dog treats were wholesome, healthy and fit
for consumption. Notwithstanding that, defendants represented that Waggin’ Train dog treats
were wholesome, when they were not, with the intent of having consumers rely upon that false
representation and purchase Waggin’ Train products, to defendants’ benefit. Such behavior is
unfair, fraudulent, and unconscionable.
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DIVISION A – ILLINOIS
134. Mr. Adkins incorporates paragraphs 1-99 and 128-133, and brings this
count against Waggin’ Train, Nestle Purina, and Wal-Mart.
CLASS ALLEGATIONS
135. Mr. Adkins brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),
on behalf of a class and two subclasses.
136. The class consists of all persons in Illinois who purchased any dog treat
product containing chicken jerky manufactured or sold by Nestle Purina or Waggin’ Train and
containing chicken imported from China, on or after a date three years prior to the filing of this
action.
137. The first subclass consists of class members who purchased such products
from Wal-Mart.
138. The second subclass consists of class members whose dogs suffered harm
or death due to the consumption of defendants’ products.
139. The members of the class and subclasses are so numerous that joinder of
all members is impracticable. Thousands of persons purchased the dog treats at issue, and
hundreds of dogs died as a result.
140. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
in design and formulation and unfit for consumption by dogs,
(b) whether the products sold by defendants were contaminated,
(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time),
(d) whether defendants misrepresented the qualities and benefits of
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their dog treats,
(e) whether defendants failed to warn of the dangers of their products,
and
(f) whether defendants’ culpability is such that they should be
required to pay punitive damages.
141. Mr. Adkins’s claims are typical of the claims of the class members. All
are based on the same factual and legal theories.
142. Mr. Adkins will fairly and adequately represent the interests of the class
members. He has retained counsel experienced in consumer class action litigation.
143. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, Mr. Adkins requests that the Court enter judgment in favor of
him and the class, and against defendants, for defendants’ violation of the Illinois Consumer
Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq. and other applicable state
laws, and award:
(a) Compensatory damages equal to the price paid for the dog treats;
(b) Punitive damages;
(c) Injunctive relief (pursuant to 815 ILCS 505/10a(c)), in the form of
an order enjoining defendants from either
(1) manufacturing (or causing the manufacture of) products for
sale in Illinois as food for household pets, or
(2) distributing (or causing the distribution of) products for
sale in Illinois as food for household pets, or
(3) selling (or causing the sale of) products in Illinois as food
for household pets,
unless the food for household pets being manufactured, distributed
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or sold
(i) is fit for purpose and is not harmful to the health of
household pets, and
(ii) contains no ingredients likely to cause injury or death to
household pets and is otherwise wholesome, and
(iii) is not sold in packaging containing false statements as to
the food’s wholesomeness or nutritiousness, and
(iii) otherwise fully complies with the provisions of the Illinois
Consumer Fraud and Deceptive Business Practices Act;
(d) Attorney’s fees, litigation expenses, and costs of suit; and
(e) Such other or further relief as the Court deems proper.
DIVISION B – WASHINGTON
144. Ms. Higginbotham incorporates paragraphs 1-99 and 128-133, and brings
this count against Waggin’ Train, Nestle Purina, and Target.
CLASS ALLEGATIONS
145. Ms. Higginbotham brings this claim, pursuant to Fed.R.Civ.P. 23(a) and
23(b)(3), on behalf of a class and two subclasses.
146. The class consists of all persons in the state of Washington who purchased
any dog treat product containing chicken jerky manufactured or sold by Nestle Purina or
Waggin’ Train and containing chicken imported from China, on or after a date four years prior to
the filing of this action.
147. The first subclass consists of class members who purchased such products
from Target.
148. The second subclass consists of class members whose dogs suffered harm
or death due to the consumption of defendants’ products.
149. The members of the class and subclasses are so numerous that joinder of
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all members is impracticable. Thousands of persons purchased the dog treats at issue, and
hundreds of dogs died as a result.
150. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
in design and formulation and unfit for consumption by dogs,
(b) whether the products sold by defendants were contaminated,
(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time),
(d) whether defendants misrepresented the qualities and benefits of
their dog treats,
(e) whether defendants failed to warn of the dangers of their products,
and
(f) whether defendants’ culpability is such that they should be
required to pay punitive damages.
151. Ms. Higginbotham’s claims are typical of the claims of the class members.
All are based on the same factual and legal theories.
152. Ms. Higginbotham will fairly and adequately represent the interests of the
class members. She has retained counsel experienced in consumer class action litigation.
153. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, Ms. Higginbotham requests that the Court enter judgment in
favor of her and the class, and against defendants, and award all relief appropriate under Rev.
Code. Wash. §§19.86.090 and 19.86.140 and other state laws, as follows:
(a) an injunction, in the form of an order enjoining defendants from
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either
(1) manufacturing (or causing the manufacture of) products for
sale in Washington as food for household pets, or
(2) distributing (or causing the distribution of) products for
sale in Washington as food for household pets, or
(3) selling (or causing the sale of) products in Washington as
food for household pets,
unless the food for household pets being manufactured, distributed
or sold
(i) is fit for purpose and is not harmful to the health of
household pets, and
(ii) contains no ingredients likely to cause injury or death to
household pets and is otherwise wholesome, and
(iii) is not sold in packaging containing false statements as to
the food’s wholesomeness or nutritiousness, and
(iv) otherwise fully complies with the provisions of the
Washington Consumer Protection Act, Rev. Code Wash.
§19.86.010 et seq.;
(b) an award of actual damages, and treble damages,
(c) an award of costs and a reasonable attorney’s fee;
(d) civil penalties; and
(e) such other or further relief as the Court deems proper.
DIVISION C – CALIFORNIA
154. Ms. Ellis incorporates paragraphs 1-99 and 128-133, and brings this count
against Waggin’ Train and Nestle Purina.
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CLASS ALLEGATIONS
155. Ms. Ellis brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),
on behalf of a class and a subclass.
156. The class consists of all persons in the state of California who purchased
any dog treat product containing chicken jerky manufactured or sold by Nestle Purina or
Waggin’ Train and containing chicken imported from China, on or after a date three years prior
to the filing of this action.
157. The subclass consists of class members whose dogs suffered harm
or death due to the consumption of defendants’ products.
158. The members of the class and subclasses are so numerous that joinder of
all members is impracticable. Thousands of persons purchased the dog treats at issue, and
hundreds of dogs died as a result.
159. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
in design and formulation and unfit for consumption by dogs,
(b) whether the products sold by defendants were contaminated,
(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time),
(d) whether defendants misrepresented the qualities and benefits of
their dog treats,
(e) whether defendants failed to warn of the dangers of their products,
and
(f) whether defendants’ culpability is such that they should be
required to pay punitive damages.
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160. Ms. Ellis’s claims are typical of the claims of the class members. All are
based on the same factual and legal theories.
161. Ms. Ellis will fairly and adequately represent the interests of the class
members. She has retained counsel experienced in consumer class action litigation.
162. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, Ms. Ellis requests that the Court enter judgment in favor of her
and the class, and against defendants, and award all relief appropriate under Cal. Civ. Code
§1780 and any other state law, as follows:
(a) actual damages,
(b) restitution of property,
(c) punitive damages,
(d) an injunction, in the form of an order enjoining defendants from
either
(1) manufacturing (or causing the manufacture of) products for
sale in California as food for household pets, or
(2) distributing (or causing the distribution of) products for
sale in California as food for household pets, or
(3) selling (or causing the sale of) products in California as
food for household pets,
unless the food for household pets being manufactured, distributed
or sold
(i) is fit for purpose and is not harmful to the health of
household pets, and
(ii) contains no ingredients likely to cause injury or death to
household pets and is otherwise wholesome, and
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(iii) is not sold in packaging containing false statements as to
the food’s wholesomeness or nutritiousness, and
(iv) otherwise fully complies with the provisions of California
law; and
(e) such other or further relief as the Court deems proper.
DIVISION D – NEW YORK
163. The Holleys incorporate paragraphs 1-99 and 128-133, and bring this
count against Waggin’ Train, Nestle Purina, and Wal-Mart.
CLASS ALLEGATIONS
164. The Holleys bring this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),
on behalf of a class and two subclasses.
165. The class consists of all persons in the state of New York who purchased
any dog treat product containing chicken jerky manufactured or sold by Nestle Purina or
Waggin’ Train and containing chicken imported from China, on or after a date three years prior
to the filing of this action.
166. The first subclass consists of class members who purchased such products
from Wal-Mart.
167. The second subclass consists of class members whose dogs suffered harm
or death due to the consumption of defendants’ products.
168. The members of the class and subclasses are so numerous that joinder of
all members is impracticable. Thousands of persons purchased the dog treats at issue, and
hundreds of dogs died as a result.
169. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
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in design and formulation and unfit for consumption by dogs,
(b) whether the products sold by defendants were contaminated,
(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time),
(d) whether defendants misrepresented the qualities and benefits of
their dog treats,
(e) whether defendants failed to warn of the dangers of their products,
and
(f) whether defendants’ culpability is such that they should be
required to pay punitive damages.
170. The Holleys’ claims are typical of the claims of the class members. All
are based on the same factual and legal theories.
171. Plaintiffs will fairly and adequately represent the interests of the class
members. They have retained counsel experienced in consumer class action litigation.
172. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, the Holleys request that the Court enter judgment in favor of
them and the class, and against defendants, providing relief allowed by N.Y. Gen. Bus. Law
§349(h) and other state laws, as follows:
(a) an injunction, in the form of an order prohibiting defendants from
(1) manufacturing (or causing the manufacture of) products for
sale in New York as food for household pets, or
(2) distributing (or causing the distribution of) products for
sale in New York as food for household pets, or
(3) selling (or causing the sale of) products in New York as
food for household pets,
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unless the food for household pets being manufactured, distributed
or sold
(i) is fit for purpose and is not harmful to the health of
household pets, and
(ii) contains no ingredients likely to cause injury or death to
household pets and is otherwise wholesome, and
(iii) is not sold in packaging containing false statements as to
the food’s wholesomeness or nutritiousness, and
(iii) otherwise fully complies with the provisions of New York
law;
(b) an award to each class member of actual damages or $50.00
(whichever is greater),
(c) treble damages,
(d) costs, litigation expenses, and attorney’s fees, and
(e) such other or further relief as the Court deems proper.
DIVISION E – TEXAS
173. Ms. Cowan incorporates paragraphs 1-99 and 128-133, and brings this
count against Waggin’ Train, Nestle Purina, and Wal-Mart.
CLASS ALLEGATIONS
174. Ms. Cowan brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),
on behalf of a class and two subclasses.
175. The class consists of all persons in Texas who purchased any dog treat
product containing chicken jerky manufactured or sold by Nestle Purina or Waggin’ Train and
containing chicken imported from China, on or after a date two years prior to the filing of this
action.
176. The first subclass consists of class members who purchased such products
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from Wal-Mart.
177. The second subclass consists of class members whose dogs suffered harm
or death due to the consumption of defendants’ products.
178. The members of the class and subclasses are so numerous that joinder of
all members is impracticable. Thousands of persons purchased the dog treats at issue, and
hundreds of dogs died as a result.
179. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
in design and formulation and unfit for consumption by dogs,
(b) whether the products sold by defendants were contaminated,
(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time),
(d) whether defendants misrepresented the qualities and benefits of
their dog treats,
(e) whether defendants failed to warn of the dangers of their products,
and
(f) whether defendants’ culpability is such that they should be
required to pay punitive damages.
180. Ms. Cowan’s claims are typical of the claims of the class members. All
are based on the same factual and legal theories.
181. Ms. Cowan will fairly and adequately represent the interests of the class
members. She has retained counsel experienced in consumer class action litigation.
182. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
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WHEREFORE, Ms. Cowan requests that the Court enter judgment in favor of her
and the class, and against defendants, providing relief allowed by Tex. Bus & Comm. Code
§17.50 and any other state law, as follows:
(a) an injunction, in the form of an order prohibiting defendants from
(1) manufacturing (or causing the manufacture of) products for
sale in Texas as food for household pets, or
(2) distributing (or causing the distribution of) products for
sale in Texas as food for household pets, or
(3) selling (or causing the sale of) products in Texas as food
for household pets,
unless the food for household pets being manufactured, distributed
or sold
(i) is fit for purpose and is not harmful to the health of
household pets, and
(ii) contains no ingredients likely to cause injury or death to
household pets and is otherwise wholesome, and
(iii) is not sold in packaging containing false statements as to
the food’s wholesomeness or nutritiousness, and
(iii) otherwise fully complies with the provisions of Texas law;
(b) economic damages,
(c) non-economic damages,
(d) treble damages,
(e) any restitution that is otherwise necessary,
(f) costs, litigation expenses, and attorney’s fees, and
(g) such other or further relief as the Court deems proper.
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DIVISION F – PENNSYLVANIA
183. Ms. Pierpont incorporates paragraphs 1-99 and 128-133, and brings this
count against Waggin’ Train, Nestle Purina, and Wal-Mart.
CLASS ALLEGATIONS
184. Ms. Pierpont brings this claim, pursuant to Fed.R.Civ.P. 23(a) and
23(b)(3), on behalf of a class and two subclasses.
185. The class consists of all persons in Pennsylvania who purchased any dog
treat product containing chicken jerky manufactured or sold by Nestle Purina or Waggin’ Train
and containing chicken imported from China, on or after a date six years prior to the filing of this
action.
186. The first subclass consists of class members who purchased such products
from Wal-Mart.
187. The second subclass consists of class members whose dogs suffered harm
or death due to the consumption of defendants’ products.
188. The members of the class and subclasses are so numerous that joinder of
all members is impracticable. Thousands of persons purchased the dog treats at issue, and
hundreds of dogs died as a result.
189. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
in design and formulation and unfit for consumption by dogs,
(b) whether the products sold by defendants were contaminated,
(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time),
(d) whether defendants misrepresented the qualities and benefits of
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their dog treats,
(e) whether defendants failed to warn of the dangers of their products,
and
(f) whether defendants’ culpability is such that they should be
required to pay punitive damages.
190. Ms. Pierpont’s claims are typical of the claims of the class members. All
are based on the same factual and legal theories.
191. Ms. Pierpont will fairly and adequately represent the interests of the class
members. She has retained counsel experienced in consumer class action litigation.
192. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, Ms. Pierpont requests that the Court enter judgment in favor of
her and the class, and against defendants, providing relief allowed by 73 Pa. Stat. 201-9.2 and
any other state law, as follows:
(a) an award to each class member of actual damages or $100
(whichever is greater),
(b) treble damages,
(c) attorney’s fees, litigation expenses and costs, and
(d) such other or further relief as the Court deems proper.
DIVISION G – NEW JERSEY
193. Ms. Farkas incorporates paragraphs 1-99 and 128-133, and brings this
count against Waggin’ Train, Nestle Purina, and Costco.
CLASS ALLEGATIONS
194. Ms. Farkas brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),
on behalf of a class and two subclasses.
195. The class consists of all persons in the state of New Jersey who purchased
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any dog treat product containing chicken jerky manufactured or sold by Nestle Purina or
Waggin’ Train and containing chicken imported from China, on or after a date six years prior to
the filing of this action.
196. The first subclass consists of class members who purchased such products
from Costco.
197. The second subclass consists of class members whose dogs suffered harm
or death due to the consumption of defendants’ products.
198. The members of the class and subclasses are so numerous that joinder of
all members is impracticable. Thousands of persons purchased the dog treats at issue, and
hundreds of dogs died as a result.
199. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
in design and formulation and unfit for consumption by dogs,
(b) whether the products sold by defendants were contaminated,
(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time),
(d) whether defendants misrepresented the qualities and benefits of
their dog treats,
(e) whether defendants failed to warn of the dangers of their products,
and
(f) whether defendants’ culpability is such that they should be
required to pay punitive damages.
200. Ms. Farkas’s claims are typical of the claims of the class members. All
are based on the same factual and legal theories.
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201. Ms. Farkas will fairly and adequately represent the interests of the class
members. She has retained counsel experienced in consumer class action litigation.
202. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, Ms. Farkas requests that the Court enter judgment in favor of her
and the class, and against defendants, and award all relief appropriate under the New Jersey
Consumer Fraud Act and any other state law, as follows:
(a) a refund of all money acquired by defendants’ unlawful conduct,
(b) treble damages,
(c) attorney’s fees, litigation expenses and costs of suit, and
(d) such other or further relief as the Court deems proper.
COUNT IV – COMMON LAW FRAUD
203. Plaintiffs incorporate paragraphs 1-99.
204. This claim is against Waggin’ Train and Nestle Purina.
205. Defendants committed fraud by
(a) representing that the treats were healthy and wholesome when they
were not (whether on the packaging (Exhibits A & B), on the
internet (Exhibit F), or otherwise),
(b) selling dog treats with such representations without properly
testing the products to determine if they conformed to the
representations,
(c) continuing sales of the dog treats after defendants knew that the
representations about them were false, and
(d) either failing to warn of the dangers of their products, or
concealing such dangers, or both.
206. Any person purchasing defendants’ dog treats relied on such
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representations and omissions, as they go to the fitness of the product for its intended use.
207. Damages, in the form of the illnesses and deaths suffered by consumers’
pets, and the fact that the product has no value if it is unwholesome and unfit for consumption by
animals, were suffered by consumers across the United States as a result of defendants’ actions.
CLASS ALLEGATIONS
208. Plaintiffs bring this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on
behalf of a class and a subclass.
209. The class consists of all persons who purchased any dog treat product
containing chicken jerky manufactured or sold by Nestle Purina or Waggin’ Train and
containing chicken imported from China, on or after a date five years prior to the filing of this
action.
210. The subclass consists of class members whose dogs suffered harm
or death due to the consumption of defendants’ products.
211. The members of the class and subclass are so numerous that joinder of
all members is impracticable. Thousands of persons purchased the dog treats at issue and
hundreds of dogs died as a result.
212. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
in design and formulation and unfit for consumption by dogs,
(b) whether the products sold by defendants were contaminated,
(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time),
(d) whether defendants misrepresented the qualities and benefits of
their dog treats,
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(e) whether defendants failed to warn of the dangers of their products,
and
(f) whether defendants’ culpability is such that they should be
required to pay punitive damages.
213. Plaintiffs’ claims are typical of the claims of the class members. All are
based on the same factual and legal theories.
214. Plaintiffs will fairly and adequately represent the interests of the class
members. They have retained counsel experienced in consumer class action litigation.
215. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, plaintiffs request that the Court enter judgment in favor of
plaintiffs and the class, and against defendants, for:
(a) Compensatory damages;
(b) Punitive damages;
(c) Attorney’s fees, litigation expenses, and costs of suit; and
(d) Such other or further relief as the Court deems proper.
COUNT V – UNJUST ENRICHMENT
216. Plaintiffs incorporate paragraphs 1-99.
217. This claim is against all defendants.
218. Defendants obtained a benefit, to which they were not entitled, through
the sale of substandard dog treats for the purchase price thereof.
219. Defendants had knowledge of the benefit conferred upon them by
plaintiffs and others like them. Defendants made a calculated profit from the sales of the dog
treats, while plaintiffs and others like them suffered damages as a result of the transactions.
220. Defendants have voluntarily and deliberately accepted and retained those
profits and benefits, without delivering safe and healthy dog treats.
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221. Defendants’ retention of the money they obtained (from plaintiffs and
others like them) from the sale of defective dog treats constitutes unjust enrichment.
CLASS ALLEGATIONS
222. Plaintiffs bring this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on
behalf of a class and three subclasses.
223. The class consists of all persons who purchased any dog treat product
containing chicken jerky manufactured or sold by Nestle Purina or Waggin’ Train and
containing chicken imported from China, on or after a date five years prior to the filing of this
action.
224. Three subclasses consist of class members who purchased such products
from (a) Wal-Mart, (b) Target or (c) Costco. Mr. Adkins, Mr. and Mrs. Holley, Ms. Cowan, and
Ms. Pierpont would represent the Wal-Mart subclass. Ms. Higginbotham would represent the
Target subclass. Ms. Farkas would represent the Costco subclass.
225. The members of the class and subclasses are so numerous that joinder of
all members is impracticable. Thousands of persons purchased the dog treats at issue, and
hundreds of dogs died as a result.
226. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
in design and formulation and unfit for consumption by dogs;
(b) whether the products sold by defendants were contaminated;
(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time);
(d) whether defendants negligently, recklessly or intentionally delayed
initiating recalls of the products;
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(e) whether defendants negligently, recklessly or intentionally failed
to warn of the dangers of their products; and
(f) whether defendants were unjustly enriched as a result of their
wrongful conduct.
227. Plaintiffs’ claims are typical of the claims of the class members. All are
based on the same factual and legal theories.
228. Plaintiffs will fairly and adequately represent the interests of the class
members. They have retained counsel experienced in consumer class action litigation.
229. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, plaintiffs request that the Court enter judgment in favor of
plaintiffs and the class, and against defendants, for:
(a) Compensatory damages,
(b) Costs of suit, and
(c) Such other or further relief as the Court deems proper.
COUNT VI – NEGLIGENCE
230. Plaintiffs incorporate paragraphs 1-99.
231. This claim is against Waggin’ Train and Nestle Purina.
232. Defendants owed plaintiffs and others like him a duty of care to offer
pet food free from deleterious and harmful effects.
233. Defendants breached that duty of care by selling dog treats that were
harmful and deleterious,
(a) without conducting adequate quality control and testing,
(b) without using proper manufacturing and production practices,
(c) without adequately investigating reports of pet deaths and illnesses
following consumption of their dog treats,
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(d) without placing adequate warnings on the packaging, and
(e) by otherwise acting in a careless, negligent or reckless manner.
234. Defendants knew or should have known that their dog treats posed an
unacceptable and unreasonable risk of harm to dogs, which would not be recognized by
purchasers of their product, and that the consumption of their products by dogs would result in
foreseeable and reasonably avoidable property damage.
235. Defendants’ conduct was negligent, careless, or reckless.
236. As a direct and proximate result of defendants’ conduct, plaintiffs and the
class members suffered property damage, including the sickness and death of consumers’ pets.
CLASS ALLEGATIONS
237. Plaintiffs bring this claim, pursuant to Fed.R.Civ.P. 23(a) and (b)(3), on
behalf of a class of all persons who purchased any dog treat product containing chicken jerky
manufactured or sold by Nestle Purina or Waggin’ Train and containing chicken imported from
China, on or after a date five years prior to the filing of this action, whose dogs suffered harm or
death due to the consumption of defendants’ products.
238. The members of the class are so numerous that joinder of all members is
impracticable. Thousands of persons purchased the dog treats at issue, and hundreds of dogs
died as a result.
239. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
in design and formulation and unfit for consumption by dogs;
(b) whether the products sold by defendants were contaminated;
(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time);
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(d) whether defendants negligently, recklessly or intentionally delayed
initiating recalls of the products;
(e) whether defendants negligently, recklessly or intentionally failed
to warn of the dangers of their products;
(f) whether defendants breached their duty of care to plaintiffs and the
class members; and
(g) whether defendants’ culpability is such that they should be
required to pay punitive damages.
240. Plaintiffs’ claims are typical of the claims of the class members. All are
based on the same factual and legal theories.
241. Plaintiffs will fairly and adequately represent the interests of the class
members. They have retained counsel experienced in consumer class action litigation.
242. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, plaintiffs request that the Court enter judgment in favor of
plaintiffs and the class, and against defendants, for:
(a) Compensatory damages,
(b) Punitive damages,
(c) Costs of suit, and
(d) Such other or further relief as the Court deems proper.
COUNT VII – STRICT PRODUCTS LIABILITY;DEFECTIVE DESIGN OR MANUFACTURE
243. Plaintiffs incorporate paragraphs 1-99.
244. This claim is against all defendants.
245. Plaintiffs and the class members purchased dog treats which were
manufactured, distributed or sold by defendants.
246. The dog treats were defective and inherently and unreasonably dangerous
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and unsafe for their intended use because they caused injury, illness or death to the dogs of
plaintiffs and others like them.
247. The dog treats failed to perform in the manner reasonably to be expected,
in light of their nature and intended function.
248. As a direct and proximate cause of the unreasonably dangerous condition
of the dog treats, plaintiffs and others like them suffered property damage and economic loss.
CLASS ALLEGATIONS
249. Plaintiffs bring this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on
behalf of a class and three subclasses.
250. The class consists of all persons who purchased any dog treat product
containing chicken jerky manufactured or sold by Nestle Purina or Waggin’ Train and
containing chicken imported from China, on or after a date two years prior to the filing of this
action, whose dogs suffered harm or death due to the consumption of defendants’ products.
251. Three subclasses consist of class members who purchased such products
from (a) Wal-Mart, (b) Target or (c) Costco. Mr. Adkins, Mr. and Mrs. Holley, Ms. Cowan, and
Ms. Pierpont would represent the Wal-Mart subclass. Ms. Higginbotham would represent the
Target subclass. Ms. Farkas would represent the Costco subclass.
252. The members of the class are so numerous that joinder of all members is
impracticable. Thousands of persons purchased the dog treats at issue, and hundreds of dogs
died as a result.
253. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether the products sold by defendants were materially defective
in design and formulation and unfit for consumption by dogs;
(b) whether the products sold by defendants were contaminated;
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(c) whether defendants failed to properly test the products prior to
market entry (or at any other relevant time); and
(d) whether defendants’ culpability is such that they should be
required to pay punitive damages.
254. Plaintiffs’ claims are typical of the claims of the class members. All are
based on the same factual and legal theories.
255. Plaintiffs will fairly and adequately represent the interests of the class
members. Plaintiffs have retained counsel experienced in consumer class action litigation.
256. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, plaintiffs request that the Court enter judgment in favor of
plaintiffs and the class, and against defendants, for:
(a) Compensatory damages,
(b) Punitive damages,
(c) Costs of suit, and
(d) Such other or further relief as the Court deems proper.
COUNT VIII – STRICT PRODUCTS LIABILITY; FAILURE TO WARN
257. Plaintiffs incorporate paragraphs 1-99.
258. This claim is against all defendants.
259. Plaintiffs, and others, purchased dog treats which were manufactured,
distributed or sold by defendants.
260. Defendants’ product was under the exclusive control of defendants, and
was sold without adequate warnings regarding the health risks of the product.
261. Defendants had a duty to warn purchasers of the health risks posed by
their product in an effective manner. Such warnings should have been placed on the packaging
and at the point of sale, or should have otherwise been placed in a way calculated to give
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reasonable fair warning to consumers.
262. As a direct and proximate cause of the defendants’ failure to warn of the
health risks of the dog treats, plaintiffs, and others, suffered property damage and economic loss.
CLASS ALLEGATIONS
263. Plaintiffs bring this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on
behalf of a class and three subclasses.
264. The class consists of all persons who purchased any dog treat product
containing chicken jerky manufactured or sold by Nestle Purina or Waggin’ Train and
containing chicken imported from China, on or after a date two years prior to the filing of this
action, whose dogs suffered harm or death due to the consumption of defendants’ products.
265. Three subclasses consist of class members who purchased such products
from (a) Wal-Mart, (b) Target or (c) Costco. Mr. Adkins, Mr. and Mrs. Holley, Ms. Cowan, and
Ms. Pierpont would represent the Wal-Mart subclass. Ms. Higginbotham would represent the
Target subclass. Ms. Farkas would represent the Costco subclass.
266. The members of the class are so numerous that joinder of all members is
impracticable. Thousands of persons purchased the dog treats at issue, and hundreds of dogs
died as a result.
267. There are questions of law and fact common to the members of the class,
which predominate over any questions that affect only individual class members. The
predominant common questions include:
(a) whether defendants failed to warn of the dangers of their products;
and
(b) whether defendants’ culpability is such that they should be
required to pay punitive damages.
268. Plaintiffs’ claims are typical of the claims of the class members. All are
based on the same factual and legal theories.
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269. Plaintiffs will fairly and adequately represent the interests of the class
members. Plaintiffs have retained counsel experienced in consumer class action litigation.
270. A class action is superior to other alternative methods of adjudicating this
dispute. Individual cases are not economically feasible.
WHEREFORE, plaintiffs request that the Court enter judgment in favor of
plaintiffs and the class and against defendants for:
(a) Compensatory damages;
(b) Punitive damages;
(c) Costs of suit; and
(d) Such other or further relief as the Court deems proper.
/s/ Thomas E. Soule Thomas E. Soule
Daniel A. EdelmanCathleen M. CombsJames O. LatturnerTara L. GoodwinThomas E. SouleCatherine A. CekoEDELMAN, COMBS, LATTURNER & GOODWIN, LLC120 S. LaSalle Street, Suite 1800Chicago, Illinois 60603(312) 739-4200(312) 419-0379 (FAX)[email protected]
JURY DEMAND
Plaintiffs respectfully demand a trial by jury.
/s/ Thomas E. Soule Thomas E. Soule
NOTICE OF LIEN AND ASSIGNMENT
Please be advised that we claim a lien upon any recovery herein for 1/3 or such amountas a court awards. All rights relating to attorney’s fees have been assigned to counsel.
/s/ Thomas E. Soule Thomas E. Soule
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Daniel A. EdelmanThomas E. SouleEDELMAN, COMBS, LATTURNER & GOODWIN, LLC120 S. LaSalle Street, 18th FloorChicago, Illinois 60603(312) 739-4200(312) 419-0379 (FAX)
CERTIFICATE OF SERVICE
I, Thomas E. Soule, hereby certify that the preceding document was served upon WagginTrain LLC, Nestle Purina Petcare Company, and Wal-Mart Stores Inc., by electronic serviceupon their counsel, through operation of the Court’s electronic filing system, on June 27, 2012,as follows:
Craig Hoover ([email protected])Vincent Vigil ([email protected])Stephen Novack ([email protected])Miranda Berge ([email protected])Richard Douglass ([email protected])Paul Manrique ([email protected])
Service of this document upon Target Corporation and Costco Wholesale Corporationwill be done by personal service of a summons and a copy of this document.
/s/ Thomas E. Soule Thomas E. Soule
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APPENDIX B
Docket sheet and complaint inMawaka v. Nestle Purina Petcare Company et al
(No. 3 : 12 CV 880 VLB (D. Conn.))
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U.S. District CourtUnited States District Court for the District of Connecticut (New Haven)
CIVIL DOCKET FOR CASE #: 3:12-cv-00880-VLB
EFILE
Mawaka v. Nestle Purina Pet Care Co. et alAssigned to: Judge Vanessa L. BryantCause: 28:1332 Diversity-Product Liability
Date Filed: 06/14/2012Jury Demand: PlaintiffNature of Suit: 365 Personal Inj. Prod. LiabilityJurisdiction: Diversity
Plaintiff Elizabeth MawakaIndividually and On Behalf of All Others Similarly Situated
represented by Bruce E. Newman Brown, Paindiris & Scott, LLP 747 Stafford Avenue Bristol, CT 06010 860-583-5200Fax: 860-589-5780 Email: [email protected] LEAD ATTORNEYATTORNEY TO BE NOTICED
V.DefendantNestle Purina Pet Care Co.
DefendantWaggin' Train, LLC
DefendantWal-Mart Stores, Inc.
DefendantSam's Club Inc
DefendantDoes1-10
Date Filed # Docket Text
06/14/2012 1 COMPLAINT against All Defendants ( Filing fee $350 receipt number 0205-2532557.), filed by ELIZABETH MAWAKA.(Newman, Bruce) (Entered: 06/14/2012)
Page 1 of 2SDSD District Version 1.3
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06/14/2012 Request for Clerk to issue summons as to All Defendants. (Newman, Bruce) (Entered: 06/14/2012)
06/14/2012 Judge Vanessa L. Bryant added. (Oliver, T.) (Entered: 06/14/2012)
06/14/2012 2 Order on Pretrial Deadlines: Motions to Dismiss due on 09/14/2012. Amended Pleadings due by 8/13/2012; Discovery due by 12/14/2012; Dispositive Motions due by 1/13/2013. Signed by Clerk on 06/14/2012. (Grady, B.) (Entered: 06/15/2012)
06/14/2012 3 ELECTRONIC FILING ORDER - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER: Signed by Judge Vanessa L. Bryant on 06/14/2012. (Grady, B.) (Entered: 06/15/2012)
06/14/2012 4 ORDER RE: Judge's Chambers Practices. Counsel are directed to read and comply with the Chambers Practices and Standing Orders prior to filing any document. So ordered. Signed by Judge Vanessa L. Bryant on 06/14/2012. (Grady, B.) (Entered: 06/15/2012)
06/15/2012 5 NOTICE TO COUNSEL: Counsel initiating or removing this action is responsible for serving all parties with attached documents and copies of 3Electronic Filing Order, 4 Order Re: Chambers Practices, 1 Complaint filed by Elizabeth Mawaka, 2 Order on Pretrial Deadlines. Signed by Clerk on 06/15/2012. (Grady, B.) (Entered: 06/15/2012)
06/15/2012 6 ELECTRONIC SUMMONS ISSUED in accordance with Fed. R. Civ. P. 4 and LR 4 as to *Does, Nestle Purina Pet Care Co., Sam's Club Inc, Waggin' Train, LLC, Wal-Mart Stores, Inc.* with answer to complaint due within *21* days. Attorney *Bruce E. Newman* *Brown, Paindiris & Scott, LLP* *747 Stafford Avenue* *Bristol, CT 06010*. (Grady, B.) (Entered: 06/15/2012)
06/28/2012 7 Supplemental SUMMONS Returned Executed by Elizabeth Mawaka. Nestle Purina Pet Care Co. served on 6/20/2012, answer due 7/11/2012; Sam's Club Inc served on 6/20/2012, answer due 7/11/2012; Waggin' Train, LLC served on 6/20/2012, answer due 7/11/2012; Wal-Mart Stores, Inc. served on 6/20/2012, answer due 7/11/2012. (Newman, Bruce) (Entered: 06/28/2012)
PACER Service Center Transaction Receipt
06/28/2012 13:31:01PACER Login: ec0074 Client Code: 26844 Description: Docket Report Search Criteria: 3:12-cv-00880-VLB Billable Pages: 2 Cost: 0.20
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