Sims et al v. Menu Foods Income Fund et al

Filing 11

Attachment 2
REPLY to Response to Motion re 7 MOTION to Stay filed by Menu Foods Holdings, Inc., Menu Foods Income Fund, Menu Foods Midwest Corporation, Menu Foods South Dakota Inc., Menu Foods, Inc.. (Attachments: # 1 Exhibit A - Plaintiff Sims MDL Motion# 2 Exhibit B - Cooper - AR# 3 Exhibit C - Hearing Order 5-31-07)(Comstock, Christy)

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Sims et al v. Menu Foods Income Fund et al Doc. 11 Att. 2 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 1 of 24 Page 1 of 24 wesruefr,rodffifr%on STATES COURT DISTRICT UNITED oF OISTRICT ARKAN$ASrr WESTERN TEXARKANA DIVISION Individually KIRBY COOPER, a n d on behalfof all others s i m i l a r l ysituated, Plaintlffs, VERSUS AFf| 3 2007 r cHnlR. s J0lN50rJ, cLEqK ,*r*"ff s $ $ $ $ No, OT-4 03 (r cAsE s $ FUND, INCOME M E N UFOOD$ $ FOODS CORPORATION, MIDWEST MENU $ DAKOTAINC., SOUTH M E N UFOODS $ FOODS INC,, M E N UFOODS, MENU $ lNC., and WAL-MART HOLDINGS, $ STORES,INC, $ Defendants' s *******1+**i***********rl**l+************1+*1+l*****r****************************tr****t*************l+* cLASS ACTTOI{GQMPLAtNI counsel,comes Plaintiff,KIRBY N O W INTO CQURT,through undersigned "Plaintiff'or "COOPER"), major residentin the State of a C O O P E R (hereinafter who filesthis Class $ituated, and A r k a n s a sindividually on behalfof all otherssimilarly , pursuant Federal 23(a)and (b)(3), seeking Ruleof CivilProcedure to A c t i o nComplaint monetary relieffor himselfand the classhe seeksto represent.This suit is brought CORPORATION, FUND,MENUFOODS MIDWEST INCOME a g a i n s MENUFOODS t M E N U FOODS SOUTH DAKOTA INC., MENU FOODS, INC., MENU FOODS lNC.,representing follows: a$ lNC., andWAL-MART SfORES, HOLDINGS, Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 2 of 24 Page 2 of 24 GJNERATALLEGATIONS 1. manufaclure, relating Defendanls' to design, for Thisis an action damages of and promotion canned and/or distribution unsafe marketing, s a l e ,testing, advertising, dog f o i l pouched andcatfood. 2. in matterand Defendants this over This Courthas lurisdiction the subject diversity citizenship of there is complete to c a s e pursuant 28 U.S.C.g 1332because involves request a that Plaintiff and Defendants the matterin controversy and between a t h e Courtcertify classaction. 3. because a Venueis proper this district in under28 U.S.C. 1391(bxz) S in of part complained occurred thisdistrict and $ u b s t a n t i a l of the acts,conduct damages boundaries Arkansas, withinthe geographical is County, residency in Miller a s Plaintiffs pet purchased tainted foodin thisdiskict. the andPlaintiff o f thisCourt, AND P A R I I E S ,JURISDJETION VENUE 4. company FUNDis an unincorporated Defendant MENUFOOD$INCOME in placeof business Ontario, in is doingbusines$ the State w i t h its principal LongArm Statute, pursuant the Arkansas to is o f Arkansas. Jurisdiction appropriate Convention service on through Hague the may be effected S e c .16-4-101, service and matters(The and civil or commercial documents a b r o a dof judicialand extrajudicial LSN181. Drive, Ontario, Canada $treetsville, H a g u eConvention) I Falconer at 5. is MENU FOODS MIDWESTCORPORATION a Delawarecorporation Trust agentfor service,The Corporation a n d may be servedthroughits registered Delaware. Street, Wilmington, 1209Orange TrustCenter, C o m p a n yCorporation , Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 3 of 24 Page 3 of 24 6. DefendantMENU FQODS SOUTH DAKOTA lNC. is a Delaware The Corporation through registered agentfor service, its c o r p o r a t i oand maybe served n Delaware 1209Orange Wilmington, TrustCenter, $treet, Corporation T r u s tCompany, 7. lNC. is a Delaware corporation MENU FOODSHOLDINGS, Defendant Trust The Corporation agentfor seruice, a n d may be servedthroughits registered Delaware. Wilmington, Street, TrustCenter, 1?09Orange C o m p a n yCorporation , B. and corporation mayhe a NewJersey MENUFOODS, Defendant TrustCompany, 820 Bear Corporation agentfor service, s e r v e dthroughits registered NewJersey. WestTrenton, T a v e r nRoad, L FUND,MENUFOODS MIDWEST MENUFOODSINCOME Defendants lNc., MENUFooDS, lNC, and c o R P O R A T l o N MENUFooDS SOUTHDAKOTA . as to referred collectively "MENU." lNC.arehereinafter HOLDINGS, M E N UFOODS 10 MENU FOODS MIDWEST and belief, Defendants Upon information INC.,ANd INC, MENUFOOPS, MENUFOODSSOUTHDAKOTA CORPORATION, of lNC. are whollyownedsubsidiaries MENUFOODS M E N U FOODSHOLDINGS, in registered and headquarteredOntario, Canada. in FUND, business entity a INCOME expoding,financing,holding company, M E N U providesprincipaldevelopment, in re$earch for and servicing MENUanimalfood products the m a r k e t i n gproduction, , dog and cat food. MENUFOODS cannedand foil pouched U n i t e dStates,including and foodproducing in companies theworld, is animal FUND oneof the largest INCOME in as M E N U operates one of the largestanimalfood companies the UnitedStates, produced and sold, revenues, market or by w h e t h e rmeasured numberof products capitalization. Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 4 of 24 Page 4 of 24 referredto as "WALll Defendant WAL-MARTSTORES,lNC. (hereinafter are in whoseheadquarters in for-profit corporation good$tanding, MART) is a Delaware of registered in Agent the State Arkansas WAL-MART's Defendant B e n t o n v i l l Arkansas. e, . Ave.,Suite 1700,LittleRock,AR 72201 425 i s The Corporation Company, W. Capitol pet the contaminated food at the Wal-MartStore in P l a i n t i f fQOOPERpurchased Arkansas. Texarkana. 12. Defendant MENU was engagedin the At all times herein mentioned, promotion, sale packaging, and distribution, marketing, of b u s i n e s s the manufacturing, (hereinafter the foodproducts andfoil pouched o f dog andcat canned "Product"), at and food of in and wereengaged the promotion marketing animal a l l timeshereinrelevant, p r o d u c t sincluding , andfoil pouched and catfood. dog canned 13. in mentioned, WAL-MART was engaged the Defendant At all timesherein promotion, saleof dog and cat cannedandfoil and distribution, of b u s i n e s s marketing, relevant, were pouched (hereinafter "Product"), at all timesherein and the food products including and canned food products, and of in e n g a g e d the promotion marketing animal dog f o i l pouched andcatfood. 14. WAL-MART the mentioned, a$sumed roleot Defendant At all timesherein the by m a n u f a c t u r e r placing taintedpet food on the marketas its own. For example: "$am Walton's of Q l ' Roy branddog food has a picture a dog on the labelstatingit is "Marketed \ffal-Mart by the statesthat it is b i r d dog Ol' Roy." Additionally, package Inc." Stores, Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 5 of 24 Page 5 of 24 15. Apt. reside$ 2409Woodland, 13,Texarkana, at COOPER Plaintiff KIRBY in he of to A r k a n s a s .At alltimesmaterial thiscomplaint, was a resident Texarkana, the S t a t eof Arkansas. 16. breed,family wa$ the ownerof a Pomeranian Plaintiff KIRBYCOOPER to at d o g ("PR|NCE") all timesmaterial thiscomplaint. 17 jurisdiction jurisdiction pursuant the Class to and This Courthas diversity Act A c t i o nFairness of 2005. N CLA$$ ACIIIO ALLEGAIION$ 18, diskibuted, marketed manufactured, Defendants MENUand WAL-MART in $tates. and foil pouched dog and cat foodto consumers the Unlted a n d soldcanned clas$in this actionand have rightsthat are compose the putative T h e s econsumers the s u b s t a n t i a l l y same. 19. Defendant MENUhas issueda recallfor over 90 brandsof dog and cat to sinceMarch18, 2007 translating food in the UnitedStates c a n n e dand foil pouched , throughout the of cansand pouches dog and cat food recalled of i n excess sixtymillion States. United 20. classin this actionconsist (1) of. The consumers composing putative the of at MenuFoodbrands any timeand disposed or or who purchased a l l persons entities the basedon publicity surrounding safetyand recallof the w i l l not use the products p r o d u c t s ; all personsor entitieswho purchased (?) Menu Foods productsand fed or who p r o d u c t s theirpetE or Eince December 2006;and (3) all persons entilies 6, to on 6, from wholesale distributors or since December on purchased Menu Food products 2 0 0 6to the present, Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 6 of 24 Page 6 of 24 21. the putativeclass are so numerousthat The consumerscomposing to j o i n d e rof all members impracticable; questions law or fact are common all of the is COOPER typicalof the are of of m e m b e r s the class;the claimsand defenses Plaintiff protect COOPER fairlyand adequately will of c l a i m sor defenses the class;and Plaintiff of t h e interests the class. 22. of of Whilethe exact numberand identities the member$ the classare of of that the classconsists thousands persons' u n k n o w n this time, it is asserted at may be notified the of class,classmembers of U p o nfurtheridentification the recipient class noticeand/or by other means deemed p e n d e n c yof this action by published a p p r o p r i a tby the Courl. e 23 and on behalf the of Plaintiff COOPER bringshis claimon his own behalf, pet contaminated food in $tateswho purchased following class: All persons the United by t h a twas produced MenuFoods. 24. composing putativeclass are so the The sheer numberof consumers impractical unfairand a and by as actions eachconsumer n u m e r o u s to makeseparate the repre$ent$ superiormethod for the fair and efficient c l a s s action certification in a d j u d i c a t i oof the controversy question. n 25. remedy otherthanby maintenance or Thereis no plain,speedy adequate o f this class action becausePlaintiffCOOPERis informedand believesthat the unfeasible to damageto each memberof the clasEmake$it economically economic p u r s u eremedies a otherthan through classaction, Therewouldbe a failureof justice of b u tfor the maintenance thisclassaction. Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 7 of 24 Page 7 of 24 26 and all to of Questions law or fact common the Classexistas to Plaintiff over any questions C l a s s Member$,and these common questionspredominate questions law or of the onlyindividual members the Cla$s.Among common of affecting f a c tare thefollowing: a. pet in in were negligent allowing food products the WhetherDefendants that was ingredient with U n i t e d$tatesto be contaminated a dangerous n o t safefor consumption; that the pet oweda dutyto pet ownersby ensuring W h e t h e rDefendants withdangerous ingredients, f o o dwas not contaminated to of Whether Defendants' conduct amounted breach sucha duty; d andthe causeof Plaintiffs was a proximate conduct Whether Defendants' damages; C l a s sMembers' for of are Whether Defendants re$pon$ible the contamination the petfood, f. S. h. i. j. k l. m. per Whether Defendants werenegligent se; liable; are Whether Defendants strictly theirwarranty merchantability; of Defendants breached Whether produced, marketed, distributed, solda defective and Whether Defendants product: Whether Defendants failed to adequately warn consumers of c o n t a m i n a t epetfood; d purposefully warnconsumers of tailedto adeguately Defendants Whether for benetit. c o n t a m i n a t efoodsupply economic d and if to are WhetherPlaintifi and the ClassMembers entitled damages, and of amount suchdamages; s o , the proper of purposefully warnconsumer$ Defendants failedto adequately Whether benefit. food for c o n t a m i n a t e d supply economic Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 8 of 24 Page 8 of 24 FACTUAT EAQKqEqUXq 27. of result the ingestion canned of Plaintiffs dog,PRINCF, diedas a direct in and a n d / o rfoil poucheddog food manufactured distributed the United$tates by Defendants. 28. their "Cutsand Gravy"cannedand foil pouched Defendants distributed users about the producland by failingto d o g and cat food productby misleading knewor dangers, whichDefendants serious a d e q u a t e lwarnthe usersof the potential y its s h o u l dhave known,might resultfrom animalsconsuming product, Defendants dog and cat marketed Defendants' cannedand foil pouched w i d e l yand successfully f o o d productsthroughoutthe United States by, among other things, conducting products order in promotional the campaigns misrepresented safetyof Defendants' that widespread andconsumption, use t o induce 29. regarding the safety and As a result of claims made by Defendants canned and foil poucheddog and cat food products, e f f e c t i v e n e s of Defendants' s underthe format canneddog food distributed fed P l a i n t i fCOOPER his dog, PRINCE, f " C u t $and Gravy", and by saidproduct beingmanufactured distributed Defendants. 30. the COOPER feeding dog, PRINCE, Product his As a result Plaintiff of his dog developedsevere health and distributedby Defendants, manufactured problems, lack of thirst,excessiveurination, includingbut not limitedto excessive his a p p e t i t econvulsions, ultimately death. , and 31. with Had PlaintiffCOOPERknown the risks and dangersassociated dog soldunderthe format"Cutsand Defendants' canned andfoil pouched food product suchinformation Plaintiff, wouldnot havefed to he disclosed G r a v y "or had Defendants , Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 9 of 24 Page 9 of 24 productto his dog, PRINCE,and the dog would not have $uffered Defendants' and died. subsequent health complications ultimately 32. and and belief, as a result of the manufacturing Upon information canned and foil poucheddog and cat food products, m a r k e t i n gof Defendants' of from the public,knowledge have reapedhuge profits; whileconcealing Defendants canned and foil with the ingestion Defendants' of t h e potentialhazardassociated p o u c h e d andcatfoodproducts. dog 33. te$ting adequate testing thatthe adequate in Defendants failedto perform dog w o u l dhaveshownthat Defendants' canned andfoil pouched and catfoodproducts produced shouldhave taken seriousside effectswith re$pect which Defendants to to designedproductwould not be appropriate measure$ ensurethat its defectively p l a c e d into the stream of commerceand/or should have providedfull and proper of and fully reflecting scopeand severity symptoms those the of warnings accurately s i d eeffects should havebeenmade. 34. as 20,2007, Defendants' had noticeand knowledge early as February presented death,to substantial unreasonable and risks,and possible t h a t theirProduct dogsand cats,including the animals consuming Product.As such,saidconsumers' or wereunreasonably subjected the riskof illness deathfrom to P l a i n t i f f 'dog,PRINCE, s Product. t h e consumption Defendants' of 35 Despitesuch knowledge, Defendant$, throughtheir officers,directors, salesand enhancing its partners and managing agentsfor the purpose increasing of profits, knowingly and deliberately failedto remedythe knowndefectsof Defendants' failedto conduct testingin a timelymanner, and failedto P r o d u c t a timelymanner, in Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 10 of 24 Page 10 of 24 risk and Plaintiff, the serious of illness of in manner, including warnthe public a timely in Product. inherent Defendants' d e a t hoccasioned the defects by 36. partners managers intentionally and and agents, Defendants theirofficers, of proceeded distribution, sale and marketing Defendants' with the manufacturing, Product wouldbe the knowing that the dogs and cats ingesting Defendants' Producl, interests potential in theirown pecuniary to danger, orderto advance e x p o s e d serious 37. a Defendants' conduct wa$ wantonand willful,and displayed conscious of it and for of d i s r e g a r d the safety the Product padicularly the damage wouldcausepet damages. entitling thesePlaintiffs exemplary to like COOPER, o w n e r $ Plaintiff 38. of and Defendants actedwith conscious wantondisregard the healthand damages requests awardof additional an dog,PRINCE, and Plaintiff s a f e t y Plaintiff's of suchentities theirconduct, for and for the purpo$e punishing of f o r the sakeof example and to deterDefendants and to i n an amount sufficiently lafgeto be an example others, wrongful in o t h e r sfrom engaging similarconductin the future. The above-described of directors, authorization, ratification officers, and was donewith knowledge, conduct p a r t n e r s managing agents Defendants. of and 39. negligence described as As a directand proximate re$ultof Defendants' in sustained damages the lossof hisfamilypet. herein, Plaintiff COOPER S A $ AND FORA FIRSTCAUSEOF ACTION PRODUCT LIABILITY. FAILUR $TRICT 40. by each and everyparagraph Plaintiff repeat$ and incorporates reference as o f thiscomplaint thoughsetforthin full in thiscauseof action. 41. Defendants manufactured, marketed, diskibuted, and supplied centersthroughout UnitedStates. As such, the D e f e n d a n t sProduct distribution ' to 10 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 11 of 24 Page 11 of 24 Plaintiff, the healthrisksand of Defendants had a duty to warn the public,including Product. possible deathassociated usingDefendants' with 42. and was underthe exclusive controlof Defendants, Product Defendants' injuryand otherrisks regarding riskof serious the warnings w a s soldwithoutadequate a s s o c i a t e withits use. d 43. of condition Defendants' As a directand proximate resultof the defective and supplied Defendants, as a directand proximate by and/or P r o d u cas manufactured t or gross negligence, willful and wanton misconduct, other r e s u l t of negligence, herein, suffered damages. Plaintiff of described w r o n g d o i n g actions Defendants and 44. natureof knewof the defective and Upon information belief,Defendants market, and eellit so as to but to manufacture, Defendants' Product continued design, maximize sales and profitsat the expenseof animalhealthand safety,in knowing, harm causedby Defendants' disregard the foreseeable of c o n s c i o u sand deliberate , an adequate, and complete and in violation their duty to provide accurate, of Product Product. concerning useof Defendants' the warning 45 of in failedto warnthe publicor Plaintiff a timelymanner the Defendants propensities Defendants' Product, whichdangers were knownor should of dangerous readily available. to as h a v ebeenknown Defendants, theywerescientifically 46. Product would be knew and intendedthat Defendants' Defendants for without the States any inspection defects. d i s t r i b u t ethrough United d 47. pet food chains Defendants alsoknewthat veterinary clinics, food storeg, and madeby wouldrelyuponthe repre$entations warranties a n d userssucha$ Plaintiff ll Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 12 of 24 Page 12 of 24 upon and on Defendants the productlabelsand in otherpromotional sales materials did w h i c hthe Plaintiff so rely. 48. distribution the of resultof the Defendants' As a directand proximate the regarding healthrisksto animals, Plaintiff the product warnings withoutadequate loss, ascertainable economic allegedherein,including suffered damagea$ previously costs of i n c l u d i n g the purchase price of Defendants'Product, out-of-pocket value' as d i s p o s a l i b u r ifeesafterthe deathof hisdog,PRINCE, wellas the pecuniary al 49. advertising, in warning, marketing, Defendants' conduct the packaging, with pet promotion, and distribution, saleof Defendants' foods,was committed knowing, $uch as disregard the rightsand safetyof consumer$ for c o n s c i o u sand deliberate , P l a i n t i f f spets, therebyentitlingPlaintiffto punilivedamagesin an amountto he ' and to Defendants deterthemfrom similar d e t e r m i n e d trialthat is appropriate punish at in c o n d u c t thefuture. from the allegations assertedunder this cause of 5 0 .The damagesresulting jurisdictional in 4 limits described $ection of as the court's original a c t i o n exceed district , Act t h e ClassActionFairness of 2005. LIABILITY DEF $ T R I C TPRODUCT 51. by each and everyparagraph Plaintiff repeats and incorporates reference as o f thiscomplaint thoughsetforthin full in thiscauseof action. 52. marketers, sellers, distributors, Defendants were the manufacturers, Product,which was defectiveand unreasonably a n d / o r suppliersof Defendants' d a n o e r o u to the Plaintiffs' s oets. 12 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 13 of 24 Page 13 of 24 53. Defendants'Product was sold, distributed,supplied, manufactured, to by and m a r k e t e dand/orpromoted Defendants, was expected reachand did reach , in changein the condition which it was manufactured withoutsubstantial consumers a n d soldby Defendants. 54. and and/orsold by Defendants supplied, The Product wa$ manufactured, in in w a s defective designor formulation thatwhenit leftthe handsof the manufacturers risksexceeded the in it dangerous that its foreseeable a n d / o rsellers wa$ unreasonably formulalions the Product. of with and/or benefits associated the designs 55. actuallyknew of the defective and belief,Defendants Upon information market, and sell it to manufacture, Product continued design, but n a t u r eof Defendants' of salesand profitsat the expense the publichealthand safety,in s o as to maximize Product. harmcaused Defendants' by of c o n s c i o u disregard the foreseeable s 56. tested, to At all times material this action,the Productwas designed, i n s p e c t e d , manufactured,as$embled, developed, labeled, sterilized, licensed, m a r k e t e d ,advertised,promoted,$old, packaged,supplied andior distributedby in dangerous condition wayswhichinclude, and D e f e n d a n tin a defective unrea$onably s b u tare not limited one or moreof thefollowing: to, a. When olaced in the stream of commerce,the Product contained safe defects andwas not rea$onably and unreasonably dangerous design purpose as intended be to foreseeable or f i t for its intended rea$onably or including the u s e d ,therebysubjecting dogs and cats of the consumers, the of P l a i n t i f f , riskswhichexceeded benefits the Product; to tested; The Product was insufflciently The Productcaused$eriousillness,harmfulside effects,and possible utility; d e a t hthatoutweighed potential any b. c. 1J Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 14 of 24 Page 14 of 24 o. with of and I n lightof the potential actualriskof harma$sociated ingestion personwho had actual t h e Productby dogs and cats, a reasonable riskof harmwouldhaveconcluded and k n o w l e d g e this potential actual of or distributed soldin that t h a tthe Product shouldnot havebeenmarketed, condition. tested, to A t all times material lhis action,the Productwas designed, 57. i n s p e c t e d , manufactured,assembled, developed, labeled, sterilized, licensed, it suppliedand/ordistributed, was promoted, sold, packaged, advertised, marketed, across the UnitedStates, of e x p e c t e d reach,and did reach,purchasers the Product to change in the defectiveand unreasonably i n c l u d i n gPlaintiff,without substantial in dangerous condition whichit was sold. 58. or purcha$ed Product its intended reasonably for the At all times,Plaintiff f o r e s e e a b lpurpose. e 59. and resultof the defective and producing As a direct,legal proximate for Plaintiff sustained damage, which of dangerous condition the Product, unreasonably P l a i n t i fis entitled recovery. f to 60. and resultof the defective and producing As a direct,legal,proximate was Plaintiff's PRINCE, injured dog, condition the Product, of u n r e a s o n a bdangerous ly died after havingsufferedphysical and activityand subsequently i n health,strength injuries. 61. and resultof the defective and producing As a direct,legal,proximate incurred expenses and is Plaintiff condition the Product, of u n r e a s o n a b ldangerous y of for e n t i t l e d damages the disposal/burial the familypet. to 62. defects resultof the designand manufacturing As a directand proximate alleged herein. damages previously as Product, Plaintiff suffered o f Defendants' 14 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 15 of 24 Page 15 of 24 63. conduct was committedwith knowing, Defendants'aforementioned such as for disregard the rightsand safetyOf Cqnsumers c o n s c i o u sand deliberate , P l a i n t i f f , including Defendants' knowingly withholding and/or misrepresenting and was including Plaintiff, whichinformation material relevant i n f o r m a t i oto the public, n at to punitive damages an amount be determined trialthat in t o the harmin question, in conduct the future. Defendants deterthemfromsimilar and to a r e appropriate punish 64. asserted underthis causeof resulting from the allegations The damage$ jurisdictional as in 4 limits described Section of court's original a c t i o n exceed district , the Act t h e ClassActionFairness of 2005. ASA IN $ O U N D I N G EBAUS 65. by each and everyparagraph repeats and incorporates reference Plaintiff of as o f thiscomplaint though$etfodh in full in thiscau$e action. 66, were engaged in the businessof At all materialtimes, Defendants Product. promoting, selling Defendants' and distributing, m a n u f a c t u r i nmarketing, g, 67. facts to, and omitted of Defendants made misrepresentalions material distribution in marketing, factsfrom,Plaintiff the advertising, a n d / o rconcealed material and use. Product regarding safety its a n d saleof Defendants' 68. to, misrepresented and omitted deliberately intentionally and Defendants including PlaintiffCOOPER'that materialfacts from, con$umers, a n d / o r concealed D e f e n d a n t s ' Product was safe when ingested by dogs and cats. Such but to: of omissions, concealments factsinclude, are not limited and misrepresentations, a. concealing, resultsof tests the and/or intentionally Failingto disclose, with the healthrisksto dogs and cats associated showing the potential Product; u s eof Defendants' t5 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 16 of 24 Page 16 of 24 o. Product aboutthe Failing include adequate warnings with Defendants' to p o t e n t i aand actualrisksand the nature, l and of scope,$everity, duration effects Defendants' of Product; serious adver$e regarding knownhealthrisksto dogsand cat$ the Concealing information and; a s s o c i a t ewithDefendants' d Product: d and Concealing knownincidents illnesses deathof dogs and cats, the of a s previously alleged herein. Defendants intentionally concealedfacts known to them, as alleged 69. increased salesof Defendants' Product. h e r e i n , orderto ensure in 70. the risksand failedto do so, Defendants a dutyto disclose foregoing had possession information representations of concerning thoserisks. Defendants' despite purpose Product was safefor its intended were falEe, Defendants' as t h a t Defendants' fatal to Plaintiff P r o d u c twas, in fact, dangerousto the health of and ultimately C O O P E R ' d o P,R I N C E . g 71. were false, knew of incidents of Defendants knew that their $tatements rendered illnesses deaths dogsandcats,and knewthatiheiromissions and in $erious falseor misleading. t h e i rstatements 72. failedto exercise reasonable carein ascertaining the Further, Defendants Product, failedto and a c c u r a c y the information of regarding safeuseof Defendants' the po$sible deathin dogsandcats,amongother disclose that Defendants' Product caused care in s e r i o u s adverse effects. Defendants also failed to exercisereasonable concerning Defendants' Product Plaintiff to COOPER, c o m m u n i c a t i nthe information g and/or concealed factsthatwereknown Defendants. to l6 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 17 of 24 Page 17 of 24 73. Plaintiff COOPER wa$ not aware of the falsity of the foregoing nor r e p r e s e n t a t i o n s . was PlaintiffCOOPERaware that one or more materialfacts had or of Product beenconcealed omitted. c o n c e r n i n the safety Defendants' g 74. (and mi$repre$entations the ab$enceof In relianceupon Defendants' Product his to Plaintiff COOPER Defendants' fed of healthrisks), d i s c l o s u r e the serious the COOPERknownthe true facts concerning risks d o g , PRINCE. Had Plaintiff nor he the with Product, wouldnot havepurchased Product fed a s s o c i a t e d Defendants' to t h e Product thefamilypet. 75. misrepresentations The reliance Plaintiff by COOPERupon Defendants' were madeby individuals and w a s justified becau$e saidmisrepresentations omissions Defendants' Product. to a n d entities werein a position knowthefactsconcerning that 78. FlaintiffCOOPERwas not in a positionto know the facts because promoted u$e of Defendants' Product and concealed the the D e f e n d a n t aggressively s r i s k s associatedwith its use, thereby inducing PlaintiffCOOPER to purchase Product. Defendants' 77. misrepresenlations, and/or As a directand proximate resullof Defendants' as alleged herein. c o n c e a l m e nPlaintiff t, suffered damages previously 78. Defendants'conduct in concealingmaterial facts and making the with conscious or f o r e g o i n gmisrepresentations, allegedherein,was committed as such as Plaintiff, thereby r e c k l e s sdisregard the rightsand safetyof consumers of at entitling Plaintiff punitive to damagesin an amountto be determined trial that is conduct the future. in Defendants deterthemfromsimilar and a p p r o p r i a tto punish e t7 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 18 of 24 Page 18 of 24 79. underthis causeof a$$eded resulting fromthe allegations The damages jurisdictional in 4 limits described Section of as original the court's action, exceed district Act ActionFairness of 2005. t h e Class eon n s nNp e rauR AND] A PARTICULAR PURPOSE O F MERCHANTABILIIY 80. eachand everyparagraph and incorporate$ reference by Plaintiff repeats as $et o f thiscomplaint though fodh in full in thiscauseof action. 81. Product. 82. Defendants' marketed,sold, and distributed At the time Defendants Defendants' marketed, sold, and distributed Defendants manufactured, knew of the purposefor which P r o d u c tfor use by PlaintiffCOOPER,Defendants Defendants' Product be to and impliedly warranted Defendants' Product was intended quality and safeandfit for suchuse. o f merchantable Bg knowledge, and rea$onably relied the skill, on superior Plaintiff COOPER quality j u d g m e nof Defendants to whether t Defendants' Product was of merchantable as use. a n d safeandfit for its intended 84. herein, Plaintiff COOPER wrongful conduct alleged as Dueto Defendants' with Defendants' c o u l d not have knownaboutthe risks and side effectsa$sociated COOPER's PRINCE. dog, ingestion Plaintiff by P r o d u cuntil t after 85. Productwas not of Contraryto such impliedwarranty,Defendants' use. andwa$not$afeor fit for its intended m e r c h a n t a b lquality e 86 breach of implied As a direct and proximateresult of Defendants' herein. suffered damages previously as alleged w a r r a n t yPlaintiff , COOPER l8 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 19 of 24 Page 19 of 24 87. conduct was committedwith knowing, Defendants'aforementioned such as for disregard the rightsand safetyof con$umers c o n s c i o u sand deliberate , in to at Plaintiff punitive to damages an amount be determined P l a i n t i f fthereby , entitling conduct the in to Defendants deterthemfromsimilar and t r i a lthat is appropriate punish future, 88. underthis causeof resulting from the allegations a$$eded The damages jurisdictional in 4 limits described Section of as the original a c t i o n exceed diskictcourt'$ , ActionFairness of 2005. Act t h e Class A $ AND FORA FIFTHCAUS S A U N D T NIN BREACH E G OF 8S. Plaintiffrepeatsand incorporates herein by referencethe allegations Paragraphs. m a d ein theabove 90. Defendants expresslywarrantedthat the Productwas safe and well use. a c c e p t e d dogsandcatsandwas safefor long-term by 91. representations because The Product doesnot conform theseexpress to life-threatening effects side is of t h e Product notsafeand has highlevels seriou$, 92. Plaintiff As a directand proximate resultof the breachof saidwarranties, herein. and entitled damages described to as w a $damaged, he is therefore 93. resulting from the allegations a$serted underthis cau$eof The damages jurisdictional limits described Section of as in 4 action, exceed district the court'$ original t h e Class ActionFairness of ?005. Act A S AND FORA SIXTHCAUSEOF ACIIQN S O U N D I N G NEGLIGENCE IN r9 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 20 of 24 Page 20 of 24 94. by eachand everyparagraph repeats and incorporates reference Plaintiff set o f thiscomplaint though forthin full in thiscauseof action. as 95. Product, including of oweda dutyto consumers Defendants' Defendants manufacturing, care in designing, testing,Iabeling, to t h e Plaintiff, use reasonable including dutyto a Defendants' Product, distribution selling and marketing, supplying, the Product not causethe dogsand cats ingesting Product did e n s u r ethat Defendants' and/or dangerous effects. side unknown, t o suffer fromunreasonable, 96. Defendantsfailed to exerci$e reasonablecare in warning about, of marketing, sellingand/or distributing manufacture, d e s i g n i n gtesting,labeling, , in their dutiesto Plaintiff that, and not by way of Product and breached Defendants' with the ingestionof l i m i t a t i o nthey did not warn of the known risks associated , of an $tandard care,i.e.,what a Product and did not exercise acceptable Defendants' about, or wouldhaveknownandwarned r e a s o n a b lprudent y manufacturer seller 97. warningsof the hazardsand the productlacked sufficient Moreover, to d a n g e r sto users of said Product,and failed to providesafeguards preventthe failed to properlytest dog, PRINCE. Defendants i n j u r i e ssustainedby Plaintiff's D e f e n d a n t s 'Product prior to its sale, and as a result subjectedu$ers to an was usedas directed recommended. and risk whenthis Product u n r e a $ o n a b l e of injury 98 in theirduty and were negligent their Defendants additionally breached in and toward Plaintiff, part, in the following a c t i o n s ,misrepresentations, omissions ways: a. and developing, manufacturing Failed exercise carein designing, to due risks Defendants' Product as to avoidthe aforementioned to individuals $o u s i n gtheseproducts; 20 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 21 of 24 Page 21 of 24 p. thatwould Product with Defendants' warnings adequate to F a i l e d include risks and to COOPERand other purchasers its potential a l e r t Plaintiff serious sideeffects; beforeplacing Product test and to F a i l e d adequately properly Defendants' i t on lhe market; d. Product,which if testing on Oefendants' F a i l e d to conductsufficient Producthad p r o p e d yperformed, have shown that Defendants' would to, but including, not limited deathof the dog or cat; seriou$ sideeffects, carried Producl that warn Plaintiff use of Defendants' to F a i l e d adequately sideeffects; a riskof otherserious post-marketing or warnings instructions after F a i l e dto provideadequate risks of should have known, of the significant knew, or Defendants Producti i n g e s t i o n dogsandcatsof Defendants' by s h. 99. product the stream commerce; and of into P l a c e d unsafe an or careless negligent. W a sotherwise Product knew, or should have known, that Defendants' Defendants would risksand serious side effectsof whichPlaintiff dangerous c a u s e dunreasonably sold and/ordistributed marketed, advertised, nevertheless n o t be aware. Defendants risks of knowing ils unreasonable of injury' Product Defendants' dogs or cats, knew or shouldhave knownthat consumers' 1 0 0 . Defendants deatha$ a and possible dog,PRINCE, injury COOPER' wouldsuffer s u c has Plaintiff reasonable as described above. to care failure exerci$e of r e s u l t Defendants' knewor shouldhave knownof 1 0 1 Upon information belief,Defendants . and Product, set forth herein,but continued de$ign, to as natureof Defendant$' the defective so Product as to maximize salesand profits manufacture. market. and sell Defendants' in Plaintiff, conscious a t the expenseof the healthand safetyof the public,including Product. harmcaused Defendants' ofthe foreseeable by disregard a n d / o rnegligent 21 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 22 of 24 Page 22 of 24 to and the generalpublicfacts failedto disclose the Plaintiff 102. Defendants and to k n o w nor available them, as allegedherein,in orderto en$urecontinued Product.This failure to disclosedeprivedPlaintiff i n c r e a s e dsales of Defendants' for necessary him to weighthe true risksof purchasing C O O P E Rof the information Product against benefits. the Defendants' 1 0 3 . As a direct and proximate result of Plaintiff COOPER's feeding suffered Plaintiff COOPER's dog, PRINCE, Product his dog,FRINCE, to Defendants' problems ultimate and death. serious health directly, fore$eeably and negligence, Defendants 1 0 4 , By virtueof Defendants' healthproblems p r o x i m a t e lcausedPlaintiff y dog, PRINCE, sufferserious to COOPER' against Defendants of damages death. As a result, imposition punitive the a n d ultimate i s warranted. thiscauseof fromthe allegations as$eded under 1 0 5 . The damages resulting jurisdictional 4 limits described Section of as in court's original action, exceed di$trict the Act t h e Class ActionFairness of 2005. judgment in to Plaintiff demands againstDefendants an amount WHEREFORE, of together withthe costsand disbursements b e determined uponthe trialof thisaction, t h i saction. 22 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 23 of 24 Page 23 of 24 PRAYER FORRETIEE which plaintiff$ prayfor relief,in an amount W H E R E F O R E , classof putative the jurisdictional in 4 limitsas described Section of the court'soriginal e x c e e d s district the ActionFairness of 2005,as follows: Act Class a. on but to Awarding damages including not limited the moneyexpended D e f e n d a n t s 'defective Product, veterinarybills associatedwith the of and diagnosis resulted from ingestion the defective t r e a t m e n ttesting, , valueof fees afterdeathof the pet and the pecuniary P r o d u c tdisposal , t h e pet; b. c. d e. punitive damages Plaintiffs; to Awarding pre-judgment po$t-judgment interest Plaintiffs, to Awarding and of to Awarding costsandexpense$ thislitigation Plaintiffs, the as by Awarding reasonable attorneys'fee$ coststo Plaintiffs provided and l a w ;and f. just, relief thisCourtdeemsneces$ary, andproper. as Forsuchfurther judgment in against Defendants an amount to WHEREFORE, Plaintiffs demand together withthe costsanddisbursements of b e determined uponthe trialof this action, t h i s action. 23 Case 5:07-cv-05053-JLH Case 4:07-cv-04036-HFB Document 11 Document 1 Filed 04/13/2007 Filed 04/24/2007 Page 24 of 24 Page 24 of 24 FQRJURYTRIAL DEMAND in so demands trialbyjury on all issues triable thiscivilaction. a T h e Plaintiff D a t e d :April13,2007. Plaintiff KIRBY COOPER, L,L.P. L U N D Y DAVI$, & 309 3 0 0N. College Ave.,Suite F a y e t i e v i l lAR 72701 e, (479)527-3921 (fax) (479) 587-9196 ihatfield |undydavls-eqm @ By: Hatfield Attorneys Plaintiff for

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