Blaszkowski et al v. Mars Inc. et al

Filing 377

ANSWER to Amended Complaint by Menu Foods, Inc., Menu Foods Income Fund, Menu Foods, Inc..(Knox, Steven)

Blaszkowski et al v. Mars Inc. et al

Doc. 377

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 1 of 36

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Miami Division
CASE NO. 07-21221-CIV-ALTONAGA/TURNOFF RENEE BLASZKOWSKI, et al. Plaintiffs, v. MARS INC., et al. Defendants.

ANSWER OF DEFENDANTS MENU FOODS, INC. AND MENU FOODS INCOME FUND TO FOURTH AMENDED CLASS ACTION COMPLAINT Defendants Menu Foods, Inc. and Menu Foods Income Fund (the "Menu Defendants"), by their attorneys, DLA Piper US LLP, state for their answer to the Fourth Amended Class Action Complaint ("Fourth Amended Co mplaint") as follows: INTRODUCTION 1. The Menu Defendants admit generally that Plaintiffs have filed a purported class

action. The Menu Defendants have insufficient knowledge to admit or deny the remaining allegations in Paragraph 1 of the Fourth Amended Complaint and therefore deny same. 2. The Menu Defendants admit generally that Plaintiffs seek injunctive relief,

restitution and damages. The Menu Defendants have insufficient knowledge to admit or deny the remaining allegations in Paragraph 2 of the Fourth Amended Complaint and therefore deny same. PARTIES 3. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 3 of the Fourth Amended Complaint and therefore deny same.

TAMPDOCS\551459.2

1
Dockets.Justia.com

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 2 of 36

4.

The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 4 of the Fourth Amended Complaint and therefore deny same. 5. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 5 of the Fourth Amended Complaint and therefore deny same. 6. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 6 of the Fourth Amended Complaint and therefore deny same. 7. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 7 of the Fourth Amended Complaint and therefore deny same. 8. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 8 of the Fourth Amended Complaint and therefore deny same. 9. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 9 of the Fourth Amended Complaint and therefore deny same. 10. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 10 of the Fourth Amended Complaint and therefore deny same. 11. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 11 of the Fourth Amended Complaint and therefore deny same. 12. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 12 of the Fourth Amended Complaint and therefore deny same. 13. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 13 of the Fourth Amended Complaint and therefore deny same. 14. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 14 of the Fourth Amended Complaint and therefore deny same.

TAMPDOCS\551459.2

2

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 3 of 36

15.

The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 15 of the Fourth Amended Complaint and therefore deny same. 16. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 16 of the Fourth Amended Complaint and therefore deny same. 17. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 17 of the Fourth Amended Complaint and therefore deny same. 18. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 18 of the Fourth Amended Complaint and therefore deny same. 19. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 19 of the Fourth Amended Complaint and therefore deny same. 20. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 20 of the Fourth Amended Complaint and therefore deny same. 21. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 21 of the Fourth Amended Complaint and therefore deny same. 22. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 22 of the Fourth Amended Complaint and therefore deny same. 23. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 23 of the Fourth Amended Complaint and therefore deny same. 24. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 24 of the Fourth Amended Complaint and therefore deny same. 25. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 25 of the Fourth Amended Complaint and therefore deny same.

TAMPDOCS\551459.2

3

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 4 of 36

26.

The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 26 of the Fourth Amended Complaint and therefore deny same. 27. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 27 of the Fourth Amended Complaint and therefore deny same. 28. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 28 of the Fourth Amended Complaint and therefore deny same. 29. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 29 of the Fourth Amended Complaint and therefore deny same. 30. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 30 of the Fourth Amended Complaint and therefore deny same. 31. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 31 of the Fourth Amended Complaint and therefore deny same. 32. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 32 of the Fourth Amended Complaint and therefore deny same. DEFENDANTS 33. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 33 of the Fourth Amended Complaint and therefore deny same. 34. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 34 of the Fourth Amended Complaint and therefore deny same. 35. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 35 of the Fourth Amended Complaint and therefore deny same. 36. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 36 of the Fourth Amended Complaint and therefore deny same.

TAMPDOCS\551459.2

4

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 5 of 36

37.

The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 37 of the Fourth Amended Complaint and therefore deny same. 38. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 38 of the Fourth Amended Complaint and therefore deny same. 39. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 39 of the Fourth Amended Complaint and therefore deny same. 40. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 40 of the Fourth Amended Complaint and therefore deny same. 41. The Menu Defendants admit the allegations in Paragraph 41 of the Fourth

Amended Complaint. 42. In response to Paragraph 42 of the Fourth Amended Complaint, the Menu

Defendants admit that Menu Foods Income Fund is an unincorporated, open-ended trust with it s principal place of business in the Province of Ontario, Canada. The Menu Defendants admit generally that Menu Foods Income Fund has an indirect ownership interest in Menu Foods, Inc. The Menu Defendants deny that Menu Foods, Inc. and Menu Foods Income Fund share at least one managerial officer or agent. The Menu Defendants deny the remaining allegations in Paragraph 42 of the Fourth Amended Complaint. 43. In response to Paragraph 43 of the Fourth Amended Complaint, the Menu

Defendants admit only that they manufacture, produce, and offer for sale certain dog and cat food under various brands and/or for third party firms. The Menu Defendants specifically deny that they manufacture, produce, or offer for sale dog and cat treats. The Menu Defendants deny the remaining allegations in Paragraph 43 of the Fourth Amended Complaint.

TAMPDOCS\551459.2

5

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 6 of 36

44.

In response to Paragraph 44 of the Fourth Amended Complaint, the Menu

Defendants admit only that they manufacture wet pet food for many North American retailers, including Wal-Mart Stores, Inc. The Menu Defendants have insufficient knowledge to admit or deny the remaining allegations in Paragraph 44 of the Fourth Amended Complaint and therefore deny same. 45. In response to Paragraph 45 of the Fourth Amended Complaint, the Menu

Defendants admit only that they have manufactured Iams and Eukanuba brand pet food for Procter & Gamble. The Menu Defendants have insufficient knowledge to admit or deny the remaining allegations in Paragraph 45 of the Fourth Amended Complaint and therefore deny same. 46. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 46 of the Fourth Amended Complaint and therefore deny same. 47. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 47 of the Fourth Amended Complaint and therefore deny same. 48. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 48 of the Fourth Amended Complaint and therefore deny same. 49. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 49 of the Fourth Amended Complaint and therefore deny same. 50. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 50 of the Fourth Amended Complaint and therefore deny same. 51. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 51 of the Fourth Amended Complaint and therefore deny same.

TAMPDOCS\551459.2

6

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 7 of 36

52.

The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 52 of the Fourth Amended Complaint and therefore deny same. 53. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 53 of the Fourth Amended Complaint and therefore deny same. 54. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 54 of the Fourth Amended Complaint and therefore deny same. 55. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 55 of the Fourth Amended Complaint and therefore deny same. 56. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 56 of the Fourth Amended Complaint and therefore deny same. JURISDICTION AND VENUE 57. Paragraph 57 of the Fourth Amended Complaint states legal conclusio ns to which

no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 57. 58. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 58 of the Fourth Amended Complaint and therefore deny same. 59. Paragraph 59 of the Fourth Amended Complaint states legal conclusions to which

no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 59. 60. Paragraph 60 of the Fourth Amended Complaint states legal conclusions to which

no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 60. FACTS GIVING RISE TO THE CLAIMS

TAMPDOCS\551459.2

7

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 8 of 36

61.

The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 61 of the Fourth Amended Complaint and therefore deny same. 62. To the extent the allegations in Paragraph 62 are directed only to the entities

defined in the Fourth Amended Complaint as Defendant Manufacturers ­ Mars, Inc., Mars Petcare U.S., Inc., The Iams Company, Hill's Pet Nutrition, Inc., Del Monte Foods Co., Nestlé Purina Petcare Co., Nutro Products, Inc., and Natura Pet Products, Inc. ­ the Menu Defendants have insufficient knowledge to admit or deny the allegations in Paragraph 62 and therefore deny same. To the extent any of the allegations in Paragraph 62 of the Fourth Amended Complaint are directed to the Menu Defendants because they manufacture pet food, the Menu Defendants deny the allegations in Paragraph 62. 63. To the extent the allegations in Paragraph 63 are directed only to the entities

defined in the Fourth Amended Complaint as Defendant Manufacturers ­ Mars, Inc., Mars Petcare U.S., Inc., The Iams Company, Hill's Pet Nutrition, Inc., Del Monte Foods Co., Nestlé Purina Petcare Co., Nutro Products, Inc., and Natura Pet Products, Inc. ­ the Menu Defendants have insufficient knowledge to admit or deny the allegations in Paragraph 63 and therefore deny same. To the extent any of the allegations in Paragraph 63 of the Fourth Amended Complaint are directed to the Menu Defendants because they manufacture pet food, the Menu Defendants admit only that they maintain relationships with certain retailers to sell the pet food that they manufacture. The Menu Defendants have insufficient knowledge to admit or deny the

allegations regarding the marketing, advertising, and sales practices of Defendant Retailers and Defendant Pet Specialty Retailers and therefore deny same. The Menu Defendants deny the remaining allegations in Paragraph 63 of the Fourth Amended Complaint.

TAMPDOCS\551459.2

8

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 9 of 36

The Menu Defendants have insufficient knowledge to admit or deny the allegations in Paragraph 64 of the Fourth Amended Complaint regarding Plaintiffs' beliefs as to the pet food they purchase and therefore deny same. To the extent the remaining allegations in Paragraph 64 are directed only to Retailers, Pet Specialty Retailers and Petsmart, the Menu Defendants have insufficient knowledge to admit or deny the allegations in Paragraph 64 and therefore deny same. To the extent any of the remaining allegations in Paragraph 64 of the Fourth Amended Complaint are directed to the Menu Defendants because they manufacture pet food, the Menu Defendants deny such allegat ions. 64. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 65 of the Fourth Amended Complaint and therefore deny same. 65. The Menu Defendants have insufficient knowledge to admit or deny the

allegations regarding the marketing practices of Defendant Retailers and Defendant Pet Specialty Retailers and therefore deny same. To the extent the remaining allegations in Paragraph 66 are directed only to the entities defined in the Fourth Amended Complaint as Defendant Manufacturers ­ Mars, Inc., Mars Petcare U.S., Inc., The Iams Company, Hill's Pet Nutrition, Inc., Del Monte Foods Co., Nestlé Purina Petcare Co., Nutro Products, Inc., and Natura Pet Products, Inc. ­ the Menu Defendants have insufficient knowledge to admit or deny the allegations in Paragraph 66 and therefore deny same. To the extent any of the remaining allegat ions in Paragraph 66 of the Fourth Amended Complaint are directed to the Menu Defendants because they manufacture pet food, the Menu Defendants deny such allegat ions. 66. To the extent the allegations in Paragraph 67 are directed only to the entities

defined in the Fourth Amended Complaint as Defendant Manufacturers ­ Mars, Inc., Mars Petcare U.S., Inc., The Iams Company, Hill's Pet Nutrition, Inc., Del Monte Foods Co., Nestlé

TAMPDOCS\551459.2

9

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 10 of 36

Purina Petcare Co., Nutro Products, Inc., and Natura Pet Products, Inc. ­ the Menu Defendants have insufficient knowledge to admit or deny the allegations in Paragraph 67 and therefore deny same. To the extent any of the allegations in Paragraph 67 of the Fourth Amended Complaint are directed to the Menu Defendants because they manufacture pet food, the Menu Defendants deny the allegations in Paragraph 67. 67. The Menu Defendants have insufficient knowledge to admit or deny the

allegations regarding the marketing practices of Defendant Retailers and Defendant Pet Specialty Retailers and therefore deny same. The Menu Defendants also have insufficient knowledge to admit or deny the allegations regarding Plaintiffs' knowledge of pet food contents and therefore deny same. To the extent the allegations in Paragraph 68 are directed only to the entities defined in the Fourth Amended Complaint as Defendant Manufacturers ­ Mars, Inc., Mars Petcare U.S., Inc., The Iams Company, Hill's Pet Nutrition, Inc., Del Monte Foods Co., Nestlé Purina Petcare Co., Nutro Products, Inc., and Natura Pet Products, Inc. ­ the Menu Defendants have insufficient knowledge to admit or deny the allegations in Paragraph 68 and therefore deny same. To the extent any of the allegations in Paragraph 68 of the Fourth Amended Complaint are directed to the Menu Defendants because they manufacture pet food, the Menu Defendants deny the allegations in Paragraph 68. 68. The Menu Defendants have insufficient knowledge to admit or deny the

allegations regarding the marketing practices of Defendant Retailers and Defendant Pet Specialty Retailers and therefore deny same. The Menu Defendants also have insufficient knowledge to admit or deny the allegations regarding Plaintiffs' beliefs as to the contents and benefits of the pet food that they purchase and therefore deny same. To the extent the remaining allegations in Paragraph 69 are directed only to the entities defined in the Fourth Amended Co mplaint as

TAMPDOCS\551459.2

10

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 11 of 36

Defendant Manufacturers ­ Mars, Inc., Mars Petcare U.S., Inc., The Iams Company, Hill's Pet Nutrition, Inc., Del Monte Foods Co., Nestlé Purina Petcare Co., Nutro Products, Inc., and Natura Pet Products, Inc. ­ the Menu Defendants have insufficient knowledge to admit or deny the allegations in Paragraph 69 and therefore deny same. To the extent any of the remaining allegations in Paragraph 69 of the Fourth Amended Complaint are directed to the Menu Defendants because they manufacture pet food, the Menu Defendants deny the allegations in Paragraph 69. 69. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 70 of the Fourth Amended Complaint and therefore deny same. 70. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 71 of the Fourth Amended Complaint regarding the representations made on bags, pouches, and cans of pet food, and therefore deny same. The Menu Defendants deny the remaining allegations in Paragraph 71. 71. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 72 of the Fourth Amended Complaint and therefore deny same. 72. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 73 of the Fourth Amended Complaint and therefore deny same. 73. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 74 of the Fourth Amended Complaint and therefore deny same. 74. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 75 of the Fourth Amended Complaint and therefore deny same. 75. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 76 of the Fourth Amended Complaint and therefore deny same.

TAMPDOCS\551459.2

11

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 12 of 36

76.

The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 77 of the Fourth Amended Complaint and therefore deny same. 77. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 78 of the Fourth Amended Complaint and therefore deny same. 78. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 79 of the Fourth Amended Complaint and therefore deny same. 79. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 80 of the Fourth Amended Complaint and therefore deny same. 80. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 81 of the Fourth Amended Complaint and therefore deny same. 81. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 82 of the Fourth Amended Complaint and therefore deny same. 82. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 83 of the Fourth Amended Complaint and therefore deny same. 83. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 84 of the Fourth Amended Complaint and therefore deny same. 84. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 85 of the Fourth Amended Complaint and therefore deny same. 85. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 86 of the Fourth Amended Complaint and therefore deny same. 86. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 87 of the Fourth Amended Complaint and therefore deny same.

TAMPDOCS\551459.2

12

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 13 of 36

87.

The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 88 of the Fourth Amended Complaint and therefore deny same. 88. The Menu Defendants admit only that they manufacture pet food under various

brands and/or for third party firms. The Menu Defendants deny the remaining allegations in Paragraph 89 of the Fourth Amended Complaint. 89. The Menu Defendants admit only that they manufacture pet food under various

brands and/or for third party firms. The Menu Defendants deny the remaining allegations in Paragraph 90 of the Fourth Amended Complaint. 90. The Menu Defendants deny the allegations contained in Paragraph 91 of the

Fourth Amended Complaint. 91. The Menu Defendants deny the allegations in Paragraph 92 of the Fourth

Amended Complaint. 92. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 93 of the Fourth Amended Complaint and therefore deny same. 93. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 94 of the Fourth Amended Complaint and therefore deny same. 94. The Menu Defendants deny the allegations in Paragraph 95 of the Fourth

Amended Complaint. 95. Paragraph 96 of the Fourth Amended Complaint refers to 1998 study samples and

a 2002 FDA Report, which speak for themselves, and, therefore, the Menu Defendants deny the allegations in Paragraph 96 that are inconsistent therewith. To the extent a further response is required, the Menu Defendants have insufficient knowledge to admit or deny the allegations in Paragraph 96 of the Fourth Amended Complaint and therefore deny same.

TAMPDOCS\551459.2

13

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 14 of 36

96.

Paragraph 97 of the Fourth Amended Complaint refers to a 2002 FDA Report and

a published scientific journal, which speak for themselves, and, therefore, the Menu Defendants deny the allegations in Paragraph 97 that are inconsistent therewith. To the extent a further response is required, the Menu Defendants have insufficient knowledge to admit or deny the allegations in Paragraph 97 of the Fourth Amended Complaint and therefore deny same. 97. Paragraph 98 of the Fourth Amended Complaint refers to a St. Louis television

report and a news story reported in Baltimore regarding euthanized dogs and cats, which speak for themselves, and, therefore, the Menu Defendants deny the allegations in Paragraph 98 that are inconsistent therewith. To the extent a further response is required, the Menu Defendants have insufficient knowledge to admit or deny the allegations in Paragraph 98 of the Fourth Amended Complaint and therefore deny same. 98. The Menu Defendants deny the allegations in Paragraph 99 of the Fourth

Amended Complaint. 99. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 100 of the Fourth Amended Complaint and therefore deny same. 100. The Menu Defendants deny the allegat ions in Paragraph 101 of the Fourth

Amended Complaint. 101. The Menu Defendants deny the allegations in Paragraph 102 of the Fourth

Amended Complaint. 102. The Menu Defendants admit only that they announced a voluntary recall on

March 16, 2007. That announcement speaks for itself and, therefore, the Menu Defendants deny all allegations in Paragraph 103 of the Fourth Amended Complaint that are inconsistent therewith. The Menu Defendants have insufficient knowledge to admit or deny the allegations in

TAMPDOCS\551459.2

14

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 15 of 36

Paragraph 103 of the Fourth Amended Complaint regarding recalls and testing initiated by other pet food manufacturers and therefore deny same. The Menu Defendants deny the remaining allegations in Paragraph 103 of the Fourth Amended Complaint. 103. The Menu Defendants deny the allegations in Paragraph 104 of the Fourth

Amended Complaint. 104. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 105 of the Fourth Amended Complaint and therefore deny same. 105. The Menu Defendants deny the allegations in Paragraph 106 of the Fourth

Amended Complaint. 106. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 107 of the Fourth Amended Complaint and therefore deny same. 107. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 108 of the Fourth Amended Complaint and therefore deny same. 108. The Menu Defendants deny the allegations contained in Paragraph 109 of the

Fourth Amended Complaint. 109. The allegations in Paragraph 110 of the Fourth Amended Complaint state legal

conclusions to which no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 110. CLASS ACTION ALLEGATIONS 110. The allegations in Paragraph 111 of the Fourth Amended Complaint state legal

conclusions to which no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 111.

TAMPDOCS\551459.2

15

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 16 of 36

111.

The Menu Defendants admit only that Plaintiffs seek injunctive relief, but deny The Menu Defendants further deny the remaining

Plaintiffs are entitled to such relief.

allegations contained in Paragraph 112 of the Fourth Amended Complaint. 112. Paragraph 113 of the Fourth Amended Complaint refers to a 2007-2008 American

Pet Products Manufacturers Association survey, which speaks for itself, and, therefore, the Menu Defendants deny t he allegations in Paragraph 113 that are inconsistent therewith. The remaining allegations in Paragraph 113 of the Fourth Amended Complaint state legal conclusions to which no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the remaining allegations contained in Paragraph 113 of the Fourth Amended Complaint. 113. Paragraph 114 of the Fourth Amended Complaint states a legal conclusio n to

which no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegat ions in Paragraph 114, including all subparagraphs, of the Fourth Amended Complaint. 114. Paragraph 115 of the Fourth Amended Complaint states legal conclusions to

which no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 115 of the Fourth Amended Complaint. 115. Paragraph 116 of the Fourth Amended Complaint states legal conclusions to

which no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegat ions in Paragraph 116 of the Fourth Amended Complaint. 116. Paragraph 117 of the Fourth Amended Complaint states legal conclusions to

which no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 117 of the Fourth Amended Complaint.

TAMPDOCS\551459.2

16

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 17 of 36

117.

The Menu Defendants admit only that the allegations in Paragraph 118, including

all subparagraphs, of the Fourth Amended Complaint purport to describe the relief sought by Plaintiffs, but deny that Plaintiffs are entitled to any such relief. 118. The Menu Defendants admit only that the Representative Plaintiffs purport to

seek to certify a Defendant Class in this action, including certain subclasses, but deny that the Representative Plaintiffs' subclasses and their proposed Defendant Class definition should be certified in this action. 119. The allegations in Paragraph 120 of the Fourth Amended Complaint state legal

conclusions to which no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the remaining allegations in Paragraph 120. 120. Paragraph 121 of the Fourth Amended Complaint states legal conclusions to

which no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 121, including all subparagraphs, of the Fourth Amended Complaint. 121. Paragraph 122 of the Fourth Amended Complaint states legal conclusions to

which no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 122 of the Fourth Amended Complaint. 122. Paragraph 123 of the Fourth Amended Complaint states legal conclusions to

which no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 123 of the Fourth Amended Complaint. 123. Paragraph 124 of the Fourth Amended Complaint states legal conclusions to

which no response is required under Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 124 of the Fourth Amended Complaint.

TAMPDOCS\551459.2

17

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 18 of 36

124.

The Menu Defendants admit generally that the allegations in Paragraph 118,

including all subparagraphs, of the Fourth Amended Complaint purport to describe the relief sought by Plaint iffs, but deny that Plaintiffs are entitled to any such relief. COUNT I 125. The Menu Defendants re-plead and incorporate by reference their answers to

Paragraphs 1-125 of the Fourth Amended Complaint as and for their answer to Paragraph 126, as if fully set forth herein. 126. The Menu Defendants admit only that they manufacture certain wet pet food

products. The Menu Defendants have insufficient knowledge to admit or deny the remaining allegations in Paragraph 127 of the Fourth Amended Complaint and therefore deny same. 127. The Menu Defendants have insufficient knowledge to admit or deny the

allegations contained in Paragraph 128 of the Fourth Amended Complaint and therefore deny same. 128. The Menu Defendants deny the allegations in Paragraph 129, including all

subparagraphs, of the Fourth Amended Complaint. 129. The Menu Defendants deny the allegations in Paragraph 130 of the Fourth

Amended Complaint. 130. The Menu Defendants deny the allegations in Paragraph 131 of the Fourth

Amended Complaint. 131. The Menu Defendants deny the allegations in Paragraph 132 of the Fourth

Amended Complaint . 132. The Menu Defendants deny the allegations in Paragraph 133 of the Fourth

Amended Complaint.

TAMPDOCS\551459.2

18

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 19 of 36

133.

The Menu Defendants deny the allegations in Paragraph 134, including all

subparagraphs, of the Fourth Amended Complaint. COUNT II 134. The Menu Defendants re-plead and incorporate by reference their answers to

Paragraphs 1-134 of the Fourth Amended Complaint as and for their answer to Paragraph 135, as if fully set forth herein. 135. The Menu Defendants admit only that they manufacture certain wet pet food

products. The Menu Defendants have insufficient knowledge to admit or deny the remaining allegations in Paragraph 136 of the Fourth Amended Complaint and therefore deny same. 136. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 137 of the Fourth Amended Complaint and therefore deny same. 137. The Menu Defendants deny the allegations in Paragraph 138 of the Fourth

Amended Complaint. 138. The Menu Defendants deny the allegations in Paragraph 139 of the Fourth

Amended Complaint. 139. The Menu Defendants deny the allegations in Paragraph 140 of the Fourth

Amended Complaint. 140. The Menu Defendants deny the allegations in Paragraph 141 of the Fourth

Amended Complaint. 141. The Menu Defendants deny the allegations in Paragraph 142 of the Fourth

Amended Complaint. 142. The Menu Defendants deny the allegations in Paragraph 143, including all

subparagraphs, of the Fourth Amended Complaint.

TAMPDOCS\551459.2

19

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 20 of 36

COUNT III 143. The Menu Defendants re-plead and incorporate by reference their answers to

Paragraphs 1-143 of the Fourth Amended Complaint as and for their answer to Paragraph 144, as if fully set forth herein. 144. The Menu Defendants admit only that they manufacture certain wet pet food

products. The Menu Defendants have insufficient knowledge to admit or deny the remaining allegations in Paragraph 145 of the Fourth Amended Complaint and therefore deny same. 145. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 146 of the Fourth Amended Complaint and therefore deny same. 146. Paragraph 147 states a legal conclusion to which no response is required under

Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 147 of the Fourth Amended Complaint. 147. Paragraph 148 states a legal conclusion to which no response is required under

Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 148 of the Fourth Amended Complaint. 148. Paragraph 149 states legal conclusions to which no response is required under

Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 149 of the Fourth Amended Complaint. 149. Paragraph 150 states legal conclusions to which no response is required under

Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 150 of the Fourth Amended Complaint.

TAMPDOCS\551459.2

20

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 21 of 36

150.

Paragraph 151 states legal conclusions to which no response is required under

Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 151 of the Fourth Amended Complaint. 151. Paragraph 152 states legal conclusions to which no response is required under

Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 152 of the Fourth Amended Complaint. 152. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 153 of the Fourth Amended Complaint and therefore deny same. 153. The Menu Defendants deny the allegations in Paragraph 154, including all

subparagraphs, of the Fourth Amended Complaint. COUNT IV 154. The Menu Defendants re-plead and incorporate by reference their answers to

Paragraphs 1-154 of the Fourth Amended Complaint as and for their answer to Paragraph 155, as if fully set forth herein. 155. The Menu Defendants admit only t hat they manufacture and o ffer for sale certain

wet pet food products. The Menu Defendants have insufficient knowledge to admit or deny theremaining allegations in Paragraph 156 of the Fourth Amended Complaint and therefore deny same. 156. Paragraph 157 states legal conclusions to which no response is required under

Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 157 of the Fourth Amended Complaint. 157. The Menu Defendants deny the allegations in Paragraph 158 of the Fourth

Amended Complaint.

TAMPDOCS\551459.2

21

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 22 of 36

158.

The Menu Defendants deny the allegations in Paragraph 159 of the Fourth

Amended Complaint. 159. Paragraph 160 states a legal conclusion to which no response is required under

Fed. R. Civ. P. 8(b). To the extent a response is required, the Menu Defendants deny the allegations in Paragraph 160 of the Fourth Amended Complaint. 160. The Menu Defendants deny the allegations in Paragraph 161, including all

subparagraphs, of the Fourth Amended Complaint. COUNT V 161. The Menu Defendants re-plead and incorporate by reference their answers to

Paragraphs 1-161 of the Fourth Amended Complaint as and for their answer to Paragraph 162, as if fully set forth herein. 162. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 163 of the Fourth Amended Complaint and therefore deny same. 163. The Menu Defendants deny the allegations in Paragraph 164 of the Fourth

Amended Complaint. 164. The Menu Defendants deny the allegations in Paragraph 165, including all

subparagraphs, of the Fourth Amended Complaint. COUNT VI 166-173. Plaintiffs' Sixth Cause of Action is not directed against the Menu Defendants. No answers to allegations in Paragraphs 166-173 of the Fourth Amended Complaint are therefore provided. To the extent any allegation in Paragraphs 166-193 is directed against the Menu Defendants, the Menu Defendants deny it.

TAMPDOCS\551459.2

22

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 23 of 36

COUNT VII 174-179. Plaintiffs' Seventh Cause of Action is not directed against the Menu

Defendants. No answers to allegations in Paragraphs 174-179 of the Fourth Amended Complaint are therefore provided. To the extent any allegation in Paragraphs 174-179 is directed against the Menu Defendants, the Menu Defendants deny it. COUNT VIII 180. The Menu Defendants re-plead and incorporate by reference their answers to

Paragraphs 1-179 of the Fourth Amended Complaint as and for their answer to Paragraph 180, as if fully set forth herein. 181. The Menu Defendants deny the allegations in Paragraph 181 of the Fourth

Amended Complaint. 182. The Menu Defendants generally admit that they manufacture certain wet pet food

products. The Menu Defendants have insufficient knowledge to admit or deny the remaining allegations in Paragraph 182 of the Fourth Amended Complaint and therefore deny same. 183. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 183 of the Fourth Amended Complaint and therefore deny same. 184. The Menu Defendants have insufficient knowledge to admit or deny the

allegations in Paragraph 184 of the Fourth Amended Complaint regarding the reasons why Plaintiffs' purchased pet food for their pets and therefore deny same. The Menu Defendants deny the remaining allegations in Paragraph 184 of the Fourth Amended Complaint. 185. The Menu Defendants deny the allegations in Paragraph 185 of the Fourth

Amended Complaint.

TAMPDOCS\551459.2

23

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 24 of 36

186.

The Menu Defendants deny the allegations in Paragraph 186 of the Fourth

Amended Complaint. 187. The Menu Defendants deny the allegations in Paragraph 187 of the Fourth

Amended Complaint. 188. The Menu Defendants deny the allegat ions in Paragraph 188 of the Fourth

Amended Complaint. AFFIRMATIVE DEFENSES The Menu Defendants assert the following affirmative and other defenses: First Affirmative Defense Plaint iffs fail to state a legal claim upon which relief may be granted as against Menu Defendants. Second Affirmative Defense Plaint iffs lack legal standing to assert any claim against the Menu Defendants. Third Affirmative Defense Plaint iffs' claims as against Menu Defendants are barred by applicable statutes of limitation or repose. Fourth Affirmative Defense Plaint iffs' claims against Menu Defendants are barred, in whole or part, because Plaintiffs and their claims have been improperly joined. Fifth Affirmative Defense Plaint iffs' claims are barred, in whole or part, because of res judicata and collateral estoppel effect(s) of prior judgments.

TAMPDOCS\551459.2

24

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 25 of 36

Sixth Affirmative Defense Plaint iffs' claims against Menu Defendants are barred, in whole or in part, because those claims are not recognized as separate causes of action under applicable state law. Seventh Affirmative Defense Plaint iffs' claims against Menu Defendants are barred by the economic loss rule. Eighth Affirmative Defense Menu Defendants did not adopt, republish or otherwise communicate any statement or representation that may have been made by any other entity concerning its products. Ninth Affirmative Defense Menu Defendants did not conceal, cooperate in concealing or otherwise fail to disclose any information known to or held by any other entity concerning its products. Tenth Affirmative Defense Menu Defendants did not participate in and had no control over the content of any advertising, marketing, Internet website, or other data that may have been published by any other entity concerning its products. Eleventh Affirmative Defense All injuries and damages that Plaintiffs claim to have sustained were not caused by any product that Menu Defendants manufactured or packaged. Any such injuries or claims, if they actually occurred, are the product of intervening and superseding acts of entities other than Menu Defendants. Twelfth Affirmative Defense All injuries and damages that Plaintiffs claim to have sustained were not caused by any product that Menu Defendants manufactured or packaged. Rather, those injuries and damages

TAMPDOCS\551459.2

25

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 26 of 36

were sustained, if at all, as consequence of Plaintiffs' pets' physical condition, age, pre-existing physical condition and/or sub-standard veterinary care. Thirteenth Affirmative Defense Plaint iffs' claims against Menu Defendants are barred by the doctrine of laches. Fourteenth Affirmative Defense Plaint iffs' claims against Menu Defendants are barred by the doctrines of waiver and estoppel. Fifteenth Affirmative Defense Plaint iffs' claims against Menu Defendants are barred, in whole or in part, by the doctrine of accord and satisfaction and the doctrine of release. Sixteenth Affirmative Defense Plaint iffs' claims against Menu Defendants are preempted in accordance with the Supremacy Clause of the United States Constitution and by applicable federal law. Seventeenth Affirmative Defense Plaint iffs' claims are barred because the Menu Defendants' products at issue in this litigation were designed, tested, manufactured, and labeled in accordance with or exceeding industry standard. Eighteenth Affirmative Defense Plaint iffs' claims are barred because the Menu Defendants' products at issue included adequate information with respect to their contents and proper use. Ninteenth Affirmative Defense Plaint iffs' claims are barred because Menu Defendants provided all appropriate information and warnings to any intermediary or ultimate purchaser of all Menu Defendants

TAMPDOCS\551459.2

26

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 27 of 36

products. Twentieth Affirmative Defense Menu Defendants made no false or misleading statements to Plaintiffs or any member of the public concerning any Menu Defendants' product at issue in this litigation that Menu Foods manufactured or packaged. Twenty-First Affirmative Defense Menu Defendants sold no Menu Foods product to Plaintiffs. As such, Menu Defendants were not in privity with Plaintiffs, made no express or implied statement to Plaintiffs, and assumed no duty to Plaintiffs. Twenty-Second Affirmative Defense Plaint iffs' claim for breach of implied warranty is barred because Menu Defendants were not made aware of any particular use of any Menu Defendants' product intended by Plaintiff. Twenty-Third Affirmative Defense Plaint iffs failed to timely notify Menu Defendants of any purported breach of warranty. Twenty-Fourth Affirmative Defense No act or omission that Plaintiffs may attempt to attribute to Menu Defendants were the actual and proximate cause of any injury of which Plaintiffs complain. Twenty-Fifth Affirmative Defense Plaint iffs failed to use due care in the purported use of the specific Menu Defendants' products that may have been consumed by their pets, including misusing and adulterating the product, or in providing care for their pets, such that Plaintiffs' comparative negligence contributed to or solely caused the injuries and damages of which they complain.

TAMPDOCS\551459.2

27

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 28 of 36

Twenty-Sixth Affirmative Defense Plaint iffs' harm, if any, was caused, in whole or in part, by Plaintiffs' own negligence or fault or by the negligence or fault of entities other than Menu Defendants. Accordingly, all such damages must be reduced by the amount of negligence or fault attributable to Plaintiffs or to entities other than Menu Defendants. Twenty-Seventh Affirmative Defense Plaint iffs suffered no physical contact or "impact" that would support any claim for mental pain and anguish or other non-economic damages. Twenty-Eighth Affirmative Defense Plaint iffs have manifested no mental distress through a demonstrable physical injury as Plaintiffs did not see, hear or arrive on the scene as a traumatizing event occurred, so they ma y not recover damages for mental pain and anguish. Twenty-Ninth Affirmative Defense Plaint iffs' claims are barred, in whole or in part, by the defenses available under the consumer protection, deceptive practices, product liability, and/or strict liability statutes of the several states. Thirtieth Affirmative Defense Plaint iffs' claims are barred, in whole or in part, because the Menu Defendants' products at issue in this litigation, and their packaging, complied with and were specifically permitted by applicable federal and state law, regulations, or standards. Thirty-First Affirmative Defense Plaint iffs' consumer protection and/or deceptive practices claims are barred because the state statutes upon which Plaintiffs' claims are based are unconstitutional as applied in this

TAMPDOCS\551459.2

28

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 29 of 36

action. Thirty-Second Affirmative Defense Menu Defendants did not violate any rules adopted under any state consumer protection statute, the Federal Trade Commission Act, 15 U.S.C. ss. 41 et seq., the standards of unfairness and deception set forth and interpreted by the Federal Trade Commission or the federal courts. Further, Menu Defendants did not violate any law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices. Thirty-Third Affirmative Defense Menu Defendants did not engage in any unfair methods of competition, unconscionable acts or practices, or unfair or deceptive acts or practices in the conduct of any trade or commerce. Thirty-Fourth Affirmative Defense No Plaintiff has suffered any loss as a result of any violation of any consumer protection statute based upon any action or representation attributed to Menu Defendants in Plaintiffs' complaint. Thirty-Fifth Affirmative Defense To the extent that Plaintiffs attribute claims made by product manufacturers to Menu Defendants, Menu Defendants engaged in the dissemination of those claims, if at all, without actual knowledge that doing so may violate any consumer protection statute. Thirty-Sixth Affirmative Defense Menu Defendants' actions were specifically permitted by federal or state law.

TAMPDOCS\551459.2

29

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 30 of 36

Thirty-Seventh Affirmative Defense Menu Defendants' actions were regulated under laws administered by federal and state regulatory agencies. Thirty-Eighth Affirmative Defense Plaint iffs' claims are without legal or factual merit, or were brought for the purpose of harassment. As such, Plaintiffs are obligated to indemnify Menu Defendants for their damages
incurred, including reasonable attorneys' fees.

Thirty-Ninth Affirmative Defense Menu Foods' products were not defective or unreasonably dangerous based on any failure to warn, because at the time of Plaintiffs' alleged purchases of pet food products, there was no information available on which a reasonable manufacturer of pet food products could have concluded that exposure to any material not ordinarily contained in the ingredients to make those products might be dangerous. As a matter of law, a manufacturer or packager of a product is under no duty to warn of a prospective risk of harm in the absence of actual or constructive knowledge of the risk arising from a foreseeable use of their own products. Fortieth Affirmative Defense Plaint iffs' injuries, if any, were caused in whole or part by Plaintiffs' failure to properly maintain and preserve and to otherwise properly use the products at issue. Forty-First Affirmative Defense Plaint iffs suffered no physical contact or "impact" that would support any claim for mental pain and anguish or for non-economic damages.

TAMPDOCS\551459.2

30

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 31 of 36

Forty-Second Affirmative Defense To the extent Plaintiffs prove they suffered physical contact or impact, Plaintiffs have manifested no mental distress through a demonstrable physical injury and Plaintiffs did not see, hear or arrive on the scene as a traumatizing event occurred. Forty-Third Affirmative Defense Plaint iffs' unjust enrichment claims are barred because they have an adequate remedy at law. Forty-Fourth Affirmative Defense Plaint iffs failed to mitigate their damages. Forty-Fifth Affirmative Defense Plaint iffs may not recover non-economic damages for purported warranty breaches, or for a purported statutory violation. Forty-Sixth Affirmative Defense Plaint iffs may not recover economic or non-economic damages, including punitive damages, to the extent any combined damages award exceeds statutory or other legal limitations as to damages. Forty-Seventh Affirmative Defense Plaint iffs may not recover non-economic damages, including punitive damages, to the extent limited or prohibited by state or federal law, including the United States' Constitution and the constitutions of the several United States.

TAMPDOCS\551459.2

31

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 32 of 36

Forty-Eighth Affirmative Defense Plaint iffs may not compel disgorgement of profits or similar punitive relief based upon the legal claims that Plaintiffs have attempted to assert in this litigation. Forty-Ninth Affirmative Defense To the extent Plaintiffs may seek to impose liability on Menu Foods, Inc. or Menu Foods Income Fund for the acts, or failures to act, of or by any other named defendant or any potential member of any putative defendant class, Menu Defendants expressly adopt and incorporate any defensive matters, including affirmative defenses, that such a defendant or putative defense class member may assert against Plaintiffs' claims. RESERVATION OF RIGHTS The Menu Defendants expressly reserve the right to amend their Answer by way of amending responses to the allegations in the Fourth Amended Complaint, adding affirmative defenses, counterclaims, cross-claims and/or third-party claims, or otherwise, as additional facts are obtained through further investigation and discovery. WHEREFORE Defendants Menu Foods, Inc. and Menu Foods Income Fund, respectfully request that judgment be entered in their favor and against the Plaintiffs on all counts of the Fourth Amended Complaint, and that The Menu Defendants be awarded their costs and expenses, including attorneys' fees, together with such other and further relief as this Court may deem just and proper. DLA PIPER US LLP s/S. Douglas Knox Lonnie L. Simpson Florida Bar Number 821871 lo [e-mail] m S. Douglas Knox Florida Bar Number 849871

TAMPDOCS\551459.2

32

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 33 of 36

[e-mail] DLA Piper US LLP 101 East Kennedy Boulevard, Suite 2000 Tampa, Florida 33602-5149 813/229-2111 (telephone) 813/229-1447 (facsimile) Of Counsel Alexander Shaknes (admitted pro hac vice) [e-mail] Amy W. Schulman (admitted pro hac vice) [e-mail] m DLA Piper US LLP 1251 Avenue of the Americas New York, NY 10020-1104 [phone] (telephone) [phone] (facsimile) William C. Martin (admitted pro hac vice) william.mart [e-mail] DLA Piper US LLP 203 N LaSalle Street, Suite 1900 Chicago, IL 60601 [phone] (telephone) [phone] (facsimile) Attorneys for Defendants, Menu Foods, Inc. and Menu Foods Income Fund CERTIFICATE OF SERVICE I hereby certify that on May 12, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. s/ S. Douglas Knox Attorney

TAMPDOCS\551459.2

33

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 34 of 36

Case No.: 07-21221-CIV-ALTONAGA/TURNOFF Mark Whitburn Gibson Dunn & Crutcher 2100 McKinney Avenue Suite 1100 Dallas, TX 75201 Dane H. Butswinkas Williams & Connolly 725 12th Street NW Washington, DC 20005-3901 Cassidy Yen Dang 505 74th Street Unit A-6 Miami Beach, FL 33141 Ralph George Patino Patino & Associates, P.A. 225 Alcazar Avenue Coral Gables, FL 33134 Alan Graham Greer Richman Greer Weil Brumbaugh 201 S Biscayne Boulevard, Suite 1000 Miami, FL 33131 William Edward Wegner Gibson Dunn & Crutcher 333 S Grand Avenue Suite 4600 Los Angeles, CA 90071-3197 Gary L. Justice Gibson Dunn & Crutcher 333 S Grand Avenue Suite 4600 Los Angeles, CA 90071-3197 John J. Kuster Sidley Aust in LLP 787 Seventh Avenue New York, NY 10019-6018 SERVICE LIST James D. Arden Sidley Aust in LLP 787 Seventh Avenue New York, NY 10019-6018 Sherril May Colombo Cozen O'Connor 200 S Biscayne Boulevard Suite 4410 Miami, FL 33131 Rolando Andres Diaz Kubicki Draper 25 W Flagler Street Penthouse Miami, FL 33130-1712 Jeffrey Eric Foreman Maltzman Foreman PA 2 S Biscayne Boulevard Suite 2300 One Biscayne Tower Miami, FL 33131-1803 Robin Lea Hanger Squire, Sanders & Dempsey L.L.P. 200 S Biscayne Boulevard 40th Floor Miami, FL 33131-2398 Patrick J. Houlihan Williams & Connolly 725 12th Street NW Washington, DC 20005-3901 Maria Kayanan Kubicki Draper 25 W Flagler Street Penthouse Miami, FL 33130-1780 Gail E. Lees Gibson Dunn & Crutcher 333 S Grand Avenue Suite 4600 Los Angeles, CA 90071-3197 Brian D. Wright Faruki Ireland & Cox 10 N Ludlow Street 500 Courthouse Plaza, SW Dayton, OH 45402 Christopher M. D'Angelo Williams & Connolly 725 12th Street NW Washington, DC 20005-3901 Richard Fama Cozen O'Connor 45 Broadway New York, NY 10006 Darren Wayne Friedman Maltzman Foreman PA 2 S Biscayne Boulevard , Ste 2300 One Biscayne Tower Miami, FL 33131-1803 Thomas G. Hentoff Williams & Connolly 725 12th Street NW Washington, DC 20005-3901 D. Jeffrey Ireland Faruki Ireland & Cox 10 N Ludlow Street 500 Courthouse Plaza, SW Dayton, OH 45402 John Brian Thomas Murray, Jr. Squire Sanders & Dempsey LLP 1900 Phillips Point West 777 S Flagler Drive, Suite 1900 West Palm Beach, FL 33401-6198 Carol Ann Licko Hogan & Hartson 1111 Brickell Avenue Suite 1900 Miami, FL 33131

TAMPDOCS\551459.2

34

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 35 of 36

Catherine J. MacIvor Maltzman Foreman PA 2 S Biscayne Boulevard Suite 2300 One Biscayne Tower Miami, FL 33131-1803 Kara L. McCall Sidley Aust in LLP 1 S Dearborn Street Chicago, IL 60603 Olga M. Vieira Carlton Fields 100 SE 2nd Street Suite 4000 PO Box 019101 Miami, FL 33131-9101 Lonnie L. Simpson S. Douglas Knox DLA Piper US LLP 101 E. Kennedy Blvd., Ste. 2000 Tampa, Florida 33602 Martin Leonard Steinberg Hunton & Williams 1111 Brickell Avenue Suite 2500 Miami, FL 33131 Alexander Shaknes Amy W. Schulman DLA Piper US LLP 1251 Avenue of the Americas New York, NY 10020-1104
Marcos Daniel Jimenez Kenny Nachwalter Seymour Arnold Critchlow & Spector 201 S Biscayne Boulevard, Suite 1100 Miami, FL 33131-4327

Jeffrey Bradford Maltzman Maltzman Foreman PA 2 S Biscayne Boulevard Suite 2300 One Biscayne Tower Miami, FL 33131-1803 John J. McDonough Cozen O'Connor 45 Broadway New York, NY 10006 Robert C. Troyer Hogan & Hartson 1200 17th Street One Tabor Center, Suite 1500 Denver, CO 80202 Benjamin Reid Carlton Fields 100 SE 2nd Street Suite 4000 PO Box 019101 Miami, FL 33131-9101 Laura A. Sanom Faruki Ireland & Cox 10 N Ludlow Street 500 Courthouse Plaza, SW Dayton, OH 45402 Miranda L. Berge Hogan & Hartson 555 13th Street NW Washington, DC 20004-1109 C. Richard Fulmer, Jr.
Fulmer LeRoy Albee Baumann & Glass

William C. Martin DLA Piper US LLP 203 N LaSalle Street Suite 1900 Chicago, IL 60601 Hugh J. Turner, Jr. Akerman Senterfitt & Eidson 350 E Las Olas Boulevard Suite 1600 Fort Lauderdale, FL 33301-0006 Omar Ortega Dorta & Ortega, P.A. 800 S Douglas Road Douglas Entrance Suite 149 Coral Gables, FL 33134 Adriana Riviere-Badell Hunton & Williams 1111 Brickell Avenue Suite 2500 Miami, FL 33131 Philip A. Sechler Williams & Connolly 725 Twelfth Street NW Washington, DC 20005-5901 Craig A. Hoover Hogan & Hartson 555 13th Street NW Washington, DC 20004-1109 Craig Kalil 2250 Sun Trust International Center One Southeast Third Avenue Miami, FL 33131 Javier T. Duran Shelton & Valadez 600 Navarro, Suite 500 San Antonio, TX 78205 Bjorg Eikeland Maltzman Foreman PA 2 S Biscayne Boulevard Suite 2300 One Biscayne Tower Miami, FL 33131-1803

2866 E. Oakland Park Blvd. Ft. Lauderdale, FL 33306 W. Randolph Teslik
Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036

Andrew J. Dober
Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036

Robert A. Valadez Shelton & Valadez 600 Navarro, Suite 500 San Antonio, TX 78205

James K. Reuss Lane Alton & Horst, LLC Two Miranova Place Suite 500 Columbus, OH 43215

TAMPDOCS\551459.2

35

Case 1:07-cv-21221-CMA

Document 377

Entered on FLSD Docket 05/12/2008

Page 36 of 36

Ana M. Craig Carlton Fields 100 SE 2nd Street Suite 4000 PO Box 019101 Miami, FL 33131-9101 and I certify that I have mailed by United States Postal Service the document to nonCM/ECF participants: John F. Mullen Cozen O'Connor 1900 Market Street 3rd Floor The Atrium Philadelphia, PA 19103 Mark C. Goodman Squire Sanders & Dempsey LLP 1900 Phillips Point West 777 S Flagler Drive, Suite 1900 West Palm Beach, FL 33401

TAMPDOCS\551459.2

36