BEFORE THE UNITED STATES JUDICIAL PANEL ON ......2012/06/28 · Nestle Purina Petcare Company et al, No. 1 : 12 CV 2781 (N.D.Ill.) – move that this Panel enter an order, pursuant

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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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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.







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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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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






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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.


/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,


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)

[email protected]

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



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.))



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

Page 1 of 8CM/ECF LIVE, Ver 4.2 - U.S. District Court, Northern Illinois

6/28/2012https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?109518465291058-L_1_0-1



(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


Plaintiff Deborah Cowan represented by Thomas Everett Soule


Plaintiff Mary Ellis represented by Thomas Everett Soule


Plaintiff Cindi Farkas represented by Thomas Everett Soule


Plaintiff





Dwayne Holley represented by Thomas Everett Soule (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Barbara Pierpont represented by Thomas Everett Soule


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





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





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





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





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)





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





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

1




(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.

2




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

3




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,”

4




(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

5




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

6




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.

7




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.

8




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

9




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.

10




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


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

11




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,


save his life,



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

12




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:

13




(a) the value of her dog,


save her life,



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.

14




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

15




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;

16




(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



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


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.


17




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













(d) whether defendants failed to warn of the dangers of their products,

and

(e) whether defendants breached express warranties;




members. Plaintiffs have retained counsel experienced in consumer class action litigation.




18






(b) Costs of suit; and


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;

19




(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.

20




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













(d) whether defendants misrepresented the qualities and benefits of

21




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.



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

22




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.


from Target.




23















their dog treats,


and



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.



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

24




either


sale in Washington as food for household pets, or


sale in Washington as food for household pets, or

(3) selling (or causing the sale of) products in Washington as

food for household pets,


or sold


household pets, 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.

25




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


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














their dog treats,


and



26




160. Ms. Ellis’s claims are typical of the claims of the class members. All are


161. Ms. Ellis will fairly and adequately represent the interests of the class

members. She has retained counsel experienced in consumer class action litigation.



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


sale in California as food for household pets, or


sale in California as food for household pets, or

(3) selling (or causing the sale of) products in California as



or sold


household pets, and



27






(iv) otherwise fully complies with the provisions of California

law; and


DIVISION D – NEW YORK

163. The Holleys incorporate paragraphs 1-99 and 128-133, and bring this


CLASS ALLEGATIONS

164. The Holleys bring this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),


165. The class consists of all persons in the state of New York who purchased


Waggin’ Train and containing chicken imported from China, on or after a date three years prior

to the filing of this action.


from Wal-Mart.










28









their dog treats,


and



170. The Holleys’ claims are typical of the claims of the class members. All






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


sale in New York as food for household pets, or


sale in New York as food for household pets, or

(3) selling (or causing the sale of) products in New York as


29





or sold


household pets, 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


DIVISION E – TEXAS

173. Ms. Cowan incorporates paragraphs 1-99 and 128-133, and brings this


CLASS ALLEGATIONS

174. Ms. Cowan brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),


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.


30




from Wal-Mart.















their dog treats,


and



180. Ms. Cowan’s claims are typical of the claims of the class members. All


181. Ms. Cowan will fairly and adequately represent the interests of the class




31




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


sale in Texas as food for household pets, or


sale in Texas as food for household pets, or

(3) selling (or causing the sale of) products in Texas as food

for household pets,


or sold


household pets, 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.

32




DIVISION F – PENNSYLVANIA

183. Ms. Pierpont incorporates paragraphs 1-99 and 128-133, and brings this


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.


from Wal-Mart.















33




their dog treats,


and



190. Ms. Pierpont’s claims are typical of the claims of the class members. All


191. Ms. Pierpont will fairly and adequately represent the interests of the class




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),


195. The class consists of all persons in the state of New Jersey who purchased

34





Waggin’ Train and containing chicken imported from China, on or after a date six years prior to

the filing of this action.


from Costco.















their dog treats,


and



200. Ms. Farkas’s claims are typical of the claims of the class members. All


35




201. Ms. Farkas will fairly and adequately represent the interests of the class




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


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

36




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


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


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











their dog treats,

37





and













(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



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.

38




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


behalf of a class and three subclasses.



containing chicken imported from China, on or after a date five years prior to the filing of this

action.


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.








in design and formulation and unfit for consumption by dogs;

(b) whether the products sold by defendants were contaminated;


market entry (or at any other relevant time);

(d) whether defendants negligently, recklessly or intentionally delayed

initiating recalls of the products;

39




(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.









(a) Compensatory damages,

(b) Costs of suit, and


COUNT VI – NEGLIGENCE


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,

40




(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.








market entry (or at any other relevant time);

41




(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











(b) Punitive damages,

(c) Costs of suit, and


COUNT VII – STRICT PRODUCTS LIABILITY;DEFECTIVE DESIGN OR MANUFACTURE



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

42




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






action, whose dogs suffered harm or death due to the consumption of defendants’ products.







died as a result.







43





market entry (or at any other relevant time); and

(d) whether defendants’ culpability is such that they should be











(b) Punitive damages,

(c) Costs of suit, and


COUNT VIII – STRICT PRODUCTS LIABILITY; FAILURE TO WARN



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

44




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






action, whose dogs suffered harm or death due to the consumption of defendants’ products.







died as a result.




(a) whether defendants failed to warn of the dangers of their products;

and

(b) whether defendants’ culpability is such that they should be




45









plaintiffs and the class and against defendants for:



(c) Costs of suit; and


/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.


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.


46




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.


47




Case: 1:12-cv-02871 Document #: 40-1 Filed: 06/27/12 Page 1 of 2 PageID #:648

































































































































APPENDIX B

Docket sheet and complaint inMawaka v. Nestle Purina Petcare Company et al

(No. 3 : 12 CV 880 VLB (D. Conn.))



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

6/28/2012https://ecf.ctd.uscourts.gov/cgi-bin/DktRpt.pl?789197386373541-L_452_0-1



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

Page 2 of 2SDSD District Version 1.3

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Case 3:12-cv-00880-VLB Document 1 Filed 06/14/12 Page 1 of 9



























Documents

BEFORE THE UNITED STATES JUDICIAL PANEL ON ......2012/06/28 · Nestle Purina Petcare Company et al, No. 1 : 12 CV 2781 (N.D.Ill.) – move that this Panel enter an order, pursuant