Blaszkowski et al v. Mars Inc. et al

Filing 372

ANSWER to Amended Complaint (Fourth Amended Class Action Complaint) by Petsmart Inc..(Litten, Barbara)

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Blaszkowski et al v. Mars Inc. et al Doc. 372 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 1 of 51 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 07-21221 CIV ALTONAGA/BROWN RENEE BLASZKOWSKI, et al., individually and on behalf of others similarly situated, Plaintiffs, vs. MARS INC., et al., Defendants. ____________________________________/ DEFENDANT PETSMART, INC.'S ANSWER AND DEFENSES TO PLAINTIFFS' FOURTH AMENDED CLASS ACTION COMPLAINT Defendant PetSmart, Inc. ("PetSmart"), by and through its undersigned counsel, responds to Plaintiffs' unverified Fourth Amended Class Action Complaint ("Complaint") as follows: INTRODUCTION 1. PetSmart admits that Plaintiffs purport to bring this action as a class action, but denies that this case can be properly certified as a class action, and denies that any class-wide or other relief is appropriate against PetSmart in this action. PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations of Paragraph 1. 2. PetSmart admits that Plaintiffs have brought this action for injunctive relief, restitution and damages but denies that Plaintiffs are entitled to any such relief. PetSmart denies the remaining allegations in Paragraph 2. PARTIES Plaintiffs/Class Representatives 3. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 3. Dockets.Justia.com Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 2 of 51 4. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 4. 5. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 5. 6. The allegations in Paragraph 6 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 6. 7. The allegations in Paragraph 7 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 7. 8. The allegations in Paragraph 8 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 8. 9. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 9. 10. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 10. 11. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 11. 12. The allegations in Paragraph 12 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 12. 2 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 3 of 51 13. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 13. 14. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 14. 15. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 15. 16. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 16. 17. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 17. 18. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 18. 19. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 19. 20. The allegations in Paragraph 20 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 20. 21. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 21. 22. The allegations in Paragraph 22 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 22. 3 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 4 of 51 23. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 23. 24. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 24. 25. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 25. 26. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 26. 27. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 27. 28. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 28. 29. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 29. 30. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 30. 31. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 31. 32. The allegations in Paragraph 32 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 32. 4 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 5 of 51 DEFENDANTS Defendant Manufacturers 33. The allegations in Paragraph 33 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 33. Further, PetSmart states that the exhibits cited in Paragraph 33 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 34. The allegations in Paragraph 34 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 34. Further, PetSmart states that the exhibits cited in Paragraph 34 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 35. The allegations in Paragraph 35 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 35. Further, PetSmart states that the exhibits cited in Paragraph 35 are the best evidence of their terms to the extent they are what Plaintiffs purport them to be. 36. The allegations in Paragraph 36 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 36. 37. The allegations in Paragraph 37 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 37. Further, 5 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 6 of 51 PetSmart states that the exhibits cited in Paragraph 37 are the best evidence of their terms to the extent they are what Plaintiffs purport them to be. 38. The allegations in Paragraph 38 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 38. Further, PetSmart states that the exhibits cited in Paragraph 38 are the best evidence of their terms to the extent they are what Plaintiffs purport them to be. 39. The allegations in Paragraph 39 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 39. Further, PetSmart states that the exhibits cited in Paragraph 39 are the best evidence of their terms to the extent they are what Plaintiffs purport them to be. 40. The allegations in Paragraph 40 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 40. Further, PetSmart states that the exhibits cited in Paragraph 40 are the best evidence of their terms to the extent they are what Plaintiffs purport them to be. Defendant Co-Packers 41. The allegations in Paragraph 41 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 41. 42. The allegations in Paragraph 42 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 42. 6 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 7 of 51 43. The allegations in Paragraph 43 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 43. 44. The allegations in Paragraph 44 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart admits that one or more of the Menu Food Defendants manufactures pet food for PetSmart and denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 44. 45. The allegations in Paragraph 45 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 45. 46. The allegations in Paragraph 46 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 46. Defendant Retailers 47. The allegations in Paragraph 47 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 47. 48. The allegations in Paragraph 48 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 48. 49. The allegations in Paragraph 49 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 49. 7 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 8 of 51 50. The allegations in Paragraph 50 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 50. 51. The allegations in Paragraph 51 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 51. 52. The allegations in Paragraph 52 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 52. Defendant Pet Specialty Retailers 53. PetSmart admits it is a Delaware corporation with its principal place of business in Arizona, that it operates stores in Florida, and that it markets and sells pet food and treats, including its own brands of pet food and treats and those of one or more of the Defendant Manufacturers, on the internet and in its retail stores. PetSmart also admits that it synthesizes information found on the packaging of pet food and treats and information from pet food and treats manufacturers on the internet through its Smart Nutrition SelectorTM. PetSmart denies the remaining allegations in Paragraph 53. 54. The allegations in Paragraph 54 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 54. 55. The allegations in Paragraph 55 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 55. 8 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 9 of 51 56. The allegations in Paragraph 56 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 56. JURISDICTION AND VENUE 57. 58. Paragraph 57 states legal conclusions to which no response is required. The allegations in Paragraph 58 are not directed to PetSmart and state legal conclusions to which no response is required. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 58. 59. Paragraph 59 states legal conclusions to which no response is required. To the extent a response is required, PetSmart denies that it committed a tortuous act within the State of Florida or caused injury to persons or property within the State of Florida. To the extent the allegations of Paragraph 59 are not directed to PetSmart, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 59. 60. Paragraph 60 states legal conclusions to which no response is required. To the extent a response is required and the allegations are directed to PetSmart, PetSmart admits that it markets and sells pet food in this District, and denies the remaining allegations. To the extent the allegations are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 60. FACTS GIVING RISE TO THE CLAIMS 61. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 61. 9 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 10 of 51 62. The allegations in Paragraph 62 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 62. 63. PetSmart admits that it markets and sells pet food, including its own brands of pet food and brands of one or more of the Defendant Manufacturers, on the internet and in its retail stores. PetSmart also admits that it synthesizes information found on pet food packaging and from pet food manufacturers on the internet through its Smart Nutrition SelectorTM. To the extent the remaining allegations in Paragraph 63 are directed to PetSmart, PetSmart denies the allegations in Paragraph 63. To the extent the allegations in Paragraph 63 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 63. 64. To the extent the allegations in Paragraph 64 are directed to PetSmart, PetSmart denies the allegations in Paragraph 64. To the extent the allegations in Paragraph 64 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 64. 65. The allegations in Paragraph 65 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 65. 66. To the extent the allegations in Paragraph 66 are directed to PetSmart, PetSmart denies the allegations in Paragraph 66. To the extent the allegations in Paragraph 66 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, 10 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 11 of 51 PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 66. 67. To the extent the allegations in Paragraph 67 are directed to PetSmart, PetSmart denies the allegations in Paragraph 67. To the extent the allegations in Paragraph 67 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 67. 68. To the extent the allegations in Paragraph 68 are directed to PetSmart, PetSmart denies the allegations in Paragraph 68. To the extent the allegations in Paragraph 68 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 68. 69. To the extent the allegations in Paragraph 69 are directed to PetSmart, PetSmart Further, PetSmart states that the exhibits cited in denies the allegations in Paragraph 69. Paragraph 69 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. To the extent the allegations in Paragraph 69 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 69. 70. To the extent the allegations in Paragraph 70 are directed to PetSmart, PetSmart denies the allegations in Paragraph 70. To the extent the allegations in Paragraph 70 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, 11 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 12 of 51 PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 70. 71. To the extent the allegations in Paragraph 71 are directed to PetSmart, PetSmart denies the allegations in Paragraph 71. To the extent the allegations in Paragraph 71 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 71. 72. The allegations in Paragraph 72 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 72. Further, PetSmart states that the exhibits cited in Paragraph 72 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 73. The allegations in Paragraph 73 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 73. Further, PetSmart states that the exhibits cited in Paragraph 73 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 74. The allegations in Paragraph 74 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 74. Further, PetSmart states that the exhibits cited in Paragraph 74 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 12 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 13 of 51 75. The allegations in Paragraph 75 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 75. 76. The allegations in Paragraph 76 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 76. Further, PetSmart states that the exhibits cited in Paragraph 76 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 77. The allegations in Paragraph 77 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 77. Further, PetSmart states that the exhibits cited in Paragraph 77 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 78. The allegations in Paragraph 78 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 78. 79. The allegations in Paragraph 79 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 79. Further, PetSmart states that the exhibits cited in Paragraph 79 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 80. The allegations in Paragraph 80 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of 13 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 14 of 51 knowledge or information sufficient to form a belief the allegations in Paragraph 80. Further, PetSmart states that the exhibits cited in Paragraph 80 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 81. The allegations in Paragraph 81 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 81. Further, PetSmart states that the exhibits cited in Paragraph 81 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 82. The allegations in Paragraph 82 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 82. Further, PetSmart states that the exhibits cited in Paragraph 82 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 83. The allegations in Paragraph 83 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 83. Further, PetSmart states that the exhibits cited in Paragraph 83 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 84. The allegations in Paragraph 84 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 84. Further, PetSmart states that the exhibits cited in Paragraph 84 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. . 14 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 15 of 51 85. The allegations in Paragraph 85 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 85. Further, PetSmart states that the exhibits cited in Paragraph 85 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 86. PetSmart admits that it markets and sells pet products, including its own brand of pet food and those of one or more of the Defendant Manufacturers. PetSmart admits that its stores display marketing material related to cat and dog food. Further, PetSmart states that the exhibits cited in Paragraph 86 are the best evidence of their terms to the extent they are what Plaintiffs purport them to be. The remaining allegations in Paragraph 86 are denied. 87. The allegations in Paragraph 87 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 87. 88. The allegations in Paragraph 88 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 88. 89. To the extent the allegations in Paragraph 89 are directed to PetSmart, PetSmart admits that it markets and sells pet food manufactured by Menu Foods. PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 89. 90. The allegations in Paragraph 90 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 90. 15 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 16 of 51 91. To the extent the allegations in Paragraph 91 are directed to PetSmart, PetSmart denies the allegations in Paragraph 91. To the extent the allegations in Paragraph 91 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief those allegations in Paragraph 91. 92. To the extent the allegations in Paragraph 92 are directed to PetSmart, PetSmart denies the allegations in Paragraph 92. To the extent the allegations in Paragraph 92 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief those allegations in Paragraph 92. 93. The allegations in Paragraph 93 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 93. 94. To the extent the allegations in Paragraph 94 are directed to PetSmart, PetSmart denies the allegations in Paragraph 94. To the extent the allegations in Paragraph 94 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief those allegations in Paragraph 94. 95. To the extent the allegations in Paragraph 95 are directed to PetSmart, PetSmart denies the allegations in Paragraph 95. To the extent the allegations in Paragraph 95 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief those allegations in Paragraph 95. 16 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 17 of 51 96. The allegations in Paragraph 96 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 96. Further, PetSmart states that the exhibits cited in Paragraph 96 are the best evidence of their terms to the extent that they are what Plaintiffs purport them to be. 97. The allegations in Paragraph 97 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 97. Further, PetSmart states that the exhibits cited in Paragraph 97 are the best evidence of their terms to the extent they are what Plaintiffs purport them to be. 98. To the extent the allegations in Paragraph 98 are not directed to PetSmart, no response from PetSmart is required. To the extent the allegations in Paragraph 98 are directed to PetSmart and a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief those allegations in Paragraph 98. Further, PetSmart states that the referenced television reports are the best evidence of their terms to the extent they are what Plaintiffs purport them to be. 99. To the extent the allegations in Paragraph 99 are directed to PetSmart and a To the extent the response is required, PetSmart denies the allegations in Paragraph 99. allegations in Paragraph 99 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief those allegations in Paragraph 99. 100. The allegations in Paragraph 100 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart states that the 17 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 18 of 51 exhibits cited in Paragraph 100 are the best evidence of their terms to the extent they are what Plaintiffs purport them to be. PetSmart denies for lack of knowledge or information sufficient to form a belief those allegations in Paragraph 100. 101. To the extent the allegations in Paragraph 101 are directed to PetSmart, PetSmart denies the allegations in Paragraph 101. To the extent the allegations in Paragraph 101 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief those allegations in Paragraph 101. 102. To the extent the allegations in Paragraph 102 are not directed to PetSmart, no response from PetSmart is required. To the extent the allegations in Paragraph 102 are directed to PetSmart and a response is required, PetSmart denies for lack of knowledge or information to form a belief those allegations in Paragraph 102. Further, PetSmart states that the exhibits cited in Paragraph 102 are the best evidence of their terms to the extent they are what Plaintiffs purport them to be. 103. The allegations in Paragraph 103 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart admits that various pet food products have been the subject of recalls over the years. Further, PetSmart states that the exhibits cited in Paragraph 103 are the best evidence of their terms to the extent they are what Plaintiffs purport them to be. PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 103. 104. To the extent the allegations in Paragraph 104 are directed to PetSmart, PetSmart denies the allegations in Paragraph 104. To the extent the allegations in Paragraph 104 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, 18 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 19 of 51 PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 104. 105. To the extent the allegations in Paragraph 105 are directed to PetSmart, PetSmart denies the allegations in Paragraph 105. To the extent the allegations in Paragraph 105 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 105. 106. The allegations in Paragraph 106 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies the allegations in Paragraph 106. 107. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 107. 108. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 108. 109. To the extent the allegations in Paragraph 109 are directed to PetSmart, PetSmart denies the allegations in Paragraph 109. To the extent the allegations in Paragraph 109 are not directed to PetSmart, PetSmart is not required to provide a response, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations in Paragraph 109. 110. The first and last sentences of Paragraph 110 calls for legal conclusions to which no response is required. To the extent a response is required, and the allegations in Paragraph 110 are directed to PetSmart, PetSmart denies the remaining allegations in Paragraph 110. To the extent the allegations in Paragraph are not directed to PetSmart, PetSmart is not required to 19 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 20 of 51 respond, but if a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief those allegations. CLASS ACTION ALLEGATIONS Plaintiffs' Purported Class Action 111. PetSmart admits that Plaintiffs purport to bring this action as a class action but denies that this case can be properly certified as a class action and denies that any class-wide or other relief is appropriate against PetSmart in this action. PetSmart denies for lack of knowledge or information sufficient to form a belief the remaining allegations of Paragraph 111. Alleged Injunctive Relief 112. PetSmart admits that Plaintiffs purport to bring this action as a class action but denies that this action can be properly certified under Rule 23(b)(2). PetSmart denies the remaining allegations of Paragraph 112. Alleged Numerosity 113. PetSmart is without knowledge or information sufficient to form a belief the allegations in the first three sentences of Paragraph 113. The remaining allegations in Paragraph 113 contains legal conclusions to which no response is required, but to the extent a response is required, PetSmart denies the remaining allegations in Paragraph 113, including that "it would be virtually impossible for individual Class Members to bring suit against the Defendants" and that the "Class thus has no other viable remedy other than class certification." Alleged Commonality 114. PetSmart denies the allegations in Paragraph 114. Alleged Typicality 115. PetSmart denies the allegations in Paragraph 115. 20 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 21 of 51 Alleged Adequacy 116. PetSmart denies the allegations in Paragraph 116. Alleged Predominance and Superiority 117. 118. PetSmart denies the allegations in Paragraph 117. Petsmart denies that a class can be appropriately certified in this case or that Plaintiffs are entitled to any legal remedy against PetSmart, and therefore denies the allegations in Paragraph 118. Alleged Defendant Class 119. PetSmart admits that the Plaintiffs seeks to certify a class of defendants but denies that a defendant class can be appropriately certified. PetSmart denies the remaining allegations of Paragraph 119. Alleged Numerosity 120. PetSmart denies the allegations in the first sentence of Paragraph 120 and denies for lack knowledge or information sufficient to form a belief the remaining allegations in Paragraph 120. Alleged Commonality 121. PetSmart denies the allegations in Paragraph 121. Alleged Typicality 122. PetSmart denies the allegations in Paragraph 122. Alleged Adequacy 123. PetSmart admits that it is represented by competent and diligent counsel. PetSmart denies the remaining allegations in Paragraph 123. Alleged Predominance and Superiority 124. PetSmart denies the allegations in Paragraph 124. 21 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 22 of 51 125. PetSmart denies that a defendant class can be appropriately certified in this case or that Plaintiffs are entitled to any legal remedy against PetSmart, and therefore denies the allegations in Paragraph 125. COUNT I Fraudulent Misrepresentation and Concealment As to All Defendants 126. herein. 127. PetSmart admits that it markets and sells pet food. To the extent the remaining PetSmart incorporates its responses to Paragraphs 1-125 as if set forth fully allegations in Paragraph 127 are directed to PetSmart, PetSmart denies the allegations in Paragraph 127. To the extent the allegations in Paragraph 127 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 127. 128. PetSmart admits that it markets and sells pet food and treats, including its own brands of pet food and treats and brands of one or more of the Defendant Manufacturers. To the extent the remaining allegations in Paragraph 128 are directed to PetSmart, PetSmart denies the allegations in Paragraph 128. To the extent the allegations in Paragraph 128 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 128. 129. To the extent the allegations in Paragraph 129 are directed to PetSmart, PetSmart denies the allegations in Paragraph 129. To the extent the allegations in Paragraph 129 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response 22 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 23 of 51 is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 129. 130. To the extent the allegations in Paragraph 130 are directed to PetSmart, PetSmart denies the allegations in Paragraph 130. To the extent the allegations in Paragraph 130 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 130. 131. To the extent the allegations in Paragraph 131 are directed to PetSmart, PetSmart denies the allegations in Paragraph 131. To the extent the allegations in Paragraph 131 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 131. 132. The allegations in Paragraph 132 are not directed to PetSmart and therefore require no response from PetSmart. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 132. 133. To the extent the allegations in Paragraph 133 are directed to PetSmart, PetSmart denies the allegations in Paragraph 133. To the extent the allegations in Paragraph 133 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 133. 134. To the extent the allegations in Paragraph 134 are directed to PetSmart, PetSmart denies the allegations in Paragraph 134. To the extent the allegations in Paragraph 134 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response 23 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 24 of 51 is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 134. COUNT II Negligent Misrepresentation As to All Defendants 135. herein. 136. PetSmart admits that it markets and sells pet food. To the extent the remaining PetSmart incorporates its responses to Paragraphs 1-125 as if set forth fully allegations in Paragraph 136 are directed to PetSmart, PetSmart denies the allegations in Paragraph 136. To the extent the allegations in Paragraph 136 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 136. 137. PetSmart admits that it markets and sells pet food. To the extent the remaining allegations in Paragraph 137 are directed to PetSmart, PetSmart denies the allegations in Paragraph 137. To the extent the allegations in Paragraph 137 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 137. 138. To the extent the allegations in Paragraph 138 are directed to PetSmart, PetSmart denies the allegations in Paragraph 138. To the extent the allegations in Paragraph 138 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 138. 24 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 25 of 51 139. To the extent the allegations in Paragraph 139 are directed to PetSmart, PetSmart denies the allegations in Paragraph 139. To the extent the allegations in Paragraph 139 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 139. 140. To the extent the allegations in Paragraph 140 are directed to PetSmart, PetSmart denies the allegations in Paragraph 140. To the extent the allegations in Paragraph 140 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 140. 141. To the extent the allegations in Paragraph 141 are directed to PetSmart, PetSmart denies the allegations in Paragraph 141. To the extent the allegations in Paragraph 141 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 141. 142. To the extent the allegations in Paragraph 142 are directed to PetSmart, PetSmart denies the allegations in Paragraph 142. To the extent the allegations in Paragraph 142 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 142. 143. To the extent the allegations in Paragraph 143 are directed to PetSmart, PetSmart denies the allegations in Paragraph 143. To the extent the allegations in Paragraph 143 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response 25 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 26 of 51 is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations Paragraph 143. COUNT III Violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. 501.201 As to All Defendants 144. herein. 145. PetSmart admits that it markets and sells pet food. To the extent the remaining PetSmart incorporates its responses to Paragraphs 1-125 as if set forth fully allegations in Paragraph 145 are directed to PetSmart, PetSmart denies the allegations in Paragraph 145. To the extent the allegations in Paragraph 145 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 145. 146. PetSmart admits that it markets and sells pet food. To the extent the remaining allegations in Paragraph 146 are directed to PetSmart, PetSmart denies the allegations in Paragraph 146. To the extent the allegations in Paragraph 146 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 146. 147. Paragraph 147 states a legal conclusion to which no response is required. To the extent a response is required, PetSmart denies the allegations in Paragraph 147, denies that it is liable for any damages, and denies that any relief as requested by Plaintiffs in the Complaint should be granted against PetSmart. 26 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 27 of 51 148. To the extent the allegations in Paragraph 148 are directed to PetSmart, PetSmart denies the allegations in Paragraph 148. To the extent the allegations in Paragraph 148 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 148. 149. Paragraph 149 states legal conclusions to which no response is required. To the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 149. 150. Paragraph 150 states a legal conclusion to which no response is required. To the extent a response is required and to the extent the allegations in Paragraph 150 are directed to PetSmart, PetSmart denies the allegations in Paragraph 150. To the extent the allegations in Paragraph 150 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 150. 151. Paragraph 151 states a legal conclusion to which no response is required. To the extent a response is required and to the extent the allegations in Paragraph 151 are directed to PetSmart, PetSmart denies the allegations in Paragraph 151. To the extent the allegations in Paragraph 151 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 151. 152. Paragraph 152 states a legal conclusion to which no response is required. To the extent a response is required and to the extent the allegations in Paragraph 152 are directed to PetSmart, PetSmart denies the allegations in Paragraph 152. To the extent the allegations in 27 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 28 of 51 Paragraph 152 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 152. 153. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 153. 154. To the extent the allegations in Paragraph 154 are directed to PetSmart, PetSmart denies the allegations in Paragraph 154. To the extent the allegations in Paragraph 154 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 154. COUNT IV Negligence As to Defendant Manufacturers and Co-Packers and PetSmart 155. 156. PetSmart incorporates its responses to Paragraphs 1-125 as if set forth fully herein. PetSmart admits that it markets and sells pet food. To the extent the remaining allegations in Paragraph 156 are directed to PetSmart, PetSmart denies the allegations in Paragraph 156. To the extent the allegations in Paragraph 156 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 156. 157. To the extent the allegations in Paragraph 157 are directed to PetSmart, PetSmart denies the allegations in Paragraph 157. To the extent the allegations in Paragraph 157 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response 28 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 29 of 51 is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 157. 158. To the extent the allegations in Paragraph 158 are directed to PetSmart, PetSmart denies the allegations in Paragraph 158. To the extent the allegations in Paragraph 158 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 158. 159. To the extent the allegations in Paragraph 159 are directed to PetSmart, PetSmart denies the allegations in Paragraph 159. To the extent the allegations in Paragraph 159 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 159. 160. To the extent the allegations in Paragraph 160 are directed to PetSmart, PetSmart denies the allegations in Paragraph 160. To the extent the allegations in Paragraph 160 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 160. 161. To the extent the allegations in Paragraph 161 are directed to PetSmart, PetSmart denies the allegations in Paragraph 161. To the extent the allegations in Paragraph 161 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 161. 29 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 30 of 51 COUNT V Strict Liability As to All Defendants 162. herein. 163. PetSmart is without knowledge or information sufficient to form a belief as to the PetSmart incorporates its responses to Paragraphs 1-125 as if set forth fully truth of the allegations in Paragraph 163. 164. To the extent the allegations in Paragraph 164 are directed to PetSmart, PetSmart denies the allegations in Paragraph 164. To the extent the allegations in Paragraph 164 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 164. 165. To the extent the allegations in Paragraph 165 are directed to PetSmart, PetSmart denies the allegations in Paragraph 165. To the extent the allegations in Paragraph 165 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 165. COUNT VI Breach of Implied Warranty as to Retailers and Pet Specialty Retailers 166. herein. 167. PetSmart admits that it markets and sells pet food. To the extent the allegations in PetSmart incorporates its responses to Paragraphs 1-125 as if set forth fully Paragraph 167 are directed to PetSmart, PetSmart denies the allegations in Paragraph 167. To the extent the allegations in Paragraph 167 are not directed to PetSmart, PetSmart is not required 30 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 31 of 51 to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 167. 168. Paragraph 168 states a legal conclusion to which no response is required. To the extent a response is required and the allegations are direct at PetSmart, PetSmart admits that it sold pet food of merchantable quality that was safe and fit for consumption by pets and denies the remaining allegations directed to PetSmart in Paragraph 168. To the extent the allegations in Paragraph 168 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information to form a belief the remaining allegations in Paragraph 168. 169. To the extent the allegations in Paragraph 169 are directed to PetSmart, PetSmart denies the allegations in Paragraph 169. To the extent the allegations in Paragraph 169 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 169. 170. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 170. 171. To the extent the allegations in Paragraph 171 are directed to PetSmart, PetSmart denies the allegations in Paragraph 171. To the extent the allegations in Paragraph 171 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 171. 172. To the extent the allegations in Paragraph 172 are directed to PetSmart, PetSmart denies the allegations in Paragraph 172. To the extent the allegations in Paragraph 172 are not 31 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 32 of 51 directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 172. 173. Paragraph 173 states legal conclusions to which no response is required. To the extent a response is required and the allegations are directed to PetSmart, PetSmart denies the allegations in Paragraph 173. To the extent a response is required and the allegations are not directed to PetSmart, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 173. COUNT VII Breach of Express Warranty As to Defendant Retailers and Pet Specialty Retailers 174. herein. 175. PetSmart admits that it markets and sells pet food. To the extent the remaining PetSmart incorporates its responses to Paragraphs 1-125 as if set forth fully allegations in Paragraph 175 are directed to PetSmart, PetSmart denies the allegations in Paragraph 175. To the extent the allegations in Paragraph 175 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 175. 176. Paragraph 176 states legal conclusions to which no response is required. To the extent a response is required and the allegations are directed to PetSmart, PetSmart denies the allegations in Paragraph 176. To the extent a response is required and the allegations are not directed to PetSmart, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 176. 32 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 33 of 51 177. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegations in Paragraph 177. 178. Paragraph 178 states legal conclusions to which no response is required. To the extent a response is required and the allegations are directed to PetSmart, PetSmart denies the allegations in Paragraph 178. To the extent a response is required and the allegations are not directed to PetSmart, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 178. 179. To the extent the allegations in Paragraph 179 are directed to PetSmart, PetSmart denies the allegations in Paragraph 179. To the extent the allegations in Paragraph 179 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 179. COUNT VIII Unjust Enrichment As to All Defendants 180. herein. 181. Paragraph 181 states a legal conclusion to which no response is required. PetSmart incorporates its responses to Paragraphs 1-125 as if fully set forth Furthermore, because the allegations in Paragraph 181 are not directed to PetSmart, PetSmart is not required to provide a response. To the extent a response is required, denies that Plaintiffs are entitled to any legal remedy against PetSmart, and therefore denies the allegations in Paragraph 181. 182. PetSmart admits that it markets and sells pet food. To the extent the remaining allegations in Paragraph 182 are directed to PetSmart, PetSmart denies the allegations in Paragraph 182. To the extent the allegations in Paragraph 182 are not directed to PetSmart, 33 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 34 of 51 PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 182. 183. PetSmart admits that it markets and sells pet food. To the extent the allegations in Paragraph 183 are directed to PetSmart, PetSmart denies the allegations in Paragraph 183. To the extent the allegations in Paragraph 183 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 183. 184. PetSmart denies for lack of knowledge or information sufficient to form a belief the allegation that Plaintiffs purchased the pet food for the reasons alleged in the Complaint. To the extent the remaining allegations in Paragraph 184 are directed to PetSmart, PetSmart denies the remaining allegations in Paragraph 184. To the extent the remaining allegations in Paragraph 184 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 184. 185. To the extent the allegations in Paragraph 185 are directed to PetSmart, PetSmart denies the allegations in Paragraph 185. To the extent the allegations in Paragraph 185 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 185. 186. To the extent the allegations in Paragraph 186 are directed to PetSmart, PetSmart denies the allegations in Paragraph 186. To the extent the allegations in Paragraph 186 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response 34 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 35 of 51 is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 186. 187. To the extent the allegations in Paragraph 187 are directed to PetSmart, PetSmart denies the allegations in Paragraph 187. To the extent the allegations in Paragraph 187 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 187. 188. To the extent the allegations in Paragraph 188 are directed to PetSmart, PetSmart denies that Plaintiffs are entitled to any legal remedy against PetSmart, and therefore denies the allegations in Paragraph 188. To the extent the allegations in Paragraph 188 are not directed to PetSmart, PetSmart is not required to provide a response, but to the extent a response is required, PetSmart denies for lack of knowledge or information sufficient to form a belief these allegations in Paragraph 188. ADDITIONAL DEFENSES First Defense 1. Plaintiffs' Complaint fails, in whole or in part, to state a claim against PetSmart upon which relief may be granted. Second Defense 2. Plaintiffs lack standing to assert the claims alleged in the Complaint. Third Defense 3. This Court lacks subject matter jurisdiction over Plaintiffs' alleged claims. Fourth Defense 4. Venue for Plaintiffs' claims is improper in this District. 35 Case 1:07-cv-21221-CMA Document 372 Entered on FLSD Docket 05/12/2008 Page 36 of 51 Fifth Defense 5. Plaintiffs' claims are barred, in whole or in part, under the appl

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