Blaszkowski et al v. Mars Inc. et al

Filing 379

ANSWER to Amended Complaint Answer and Affirmative Defenses to Plaintiffs' Fourth Amended Class Action Complaint by New Albertson's Inc..(Kalil, Craig)

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Blaszkowski et al v. Mars Inc. et al Doc. 379 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 1 of 61 IN THE 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, v. MARS INC., et al. Defendants. � � � � � � � � � � � DEFENDANT NEW ALBERTSON'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS' FOURTH AMENDED CLASS ACTION COMPLAINT Defendant, NEW ALBERTSON'S ("New Albertson's"), by and through its undersigned counsel, files the following Answer and Affirmative Defenses to Plaintiffs' Fourth Amended Class Action Complaint ("Complaint").1 New Albertson's responds to the Complaint as follows: 1 The term "Plaintiffs" as used herein refers to the named Plaintiffs individually and on behalf of all others similarly situated. Dockets.Justia.com Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 2 of 61 ANSWER OF NEW ALBERTSON'S TO COMPLAINT INTRODUCTION 1. New Albertson's admits generally that Plaintiffs have initiated a purported class action. New Albertson's has insufficient knowledge to admit or deny the remaining allegations in Paragraph 1 of the Complaint and therefore denies each and every such allegation. 2. New Albertson's admits generally that Plaintiffs have filed an action seeking injunctive relief, restitution and damages allegedly related to pet food advertising practices. New Albertson's has insufficient knowledge to admit or deny the remaining allegations in Paragraph 2 of the Complaint and therefore denies each and every such allegation. PARTIES Plaintiffs/Class Representatives 3. The allegations contained in Paragraph 3 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 3 of the Complaint, and therefore denies each and every such allegation. 4. The allegations contained in Paragraph 4 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 4 of the Complaint, and therefore denies each and every such allegation. 5. The allegations contained in Paragraph 5 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 5 of the Complaint, and therefore denies each and every such allegation. 2 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 3 of 61 6. The allegations contained in Paragraph 6 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 6 of the Complaint, and therefore denies each and every such allegation. 7. The allegations contained in Paragraph 7 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 7 of the Complaint, and therefore denies each and every such allegation. 8. The allegations contained in Paragraph 8 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 8 of the Complaint, and therefore denies each and every such allegation. 9. The allegations contained in Paragraph 9 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 9 of the Complaint, and therefore denies each and every such allegation. 10. The allegations contained in Paragraph 10 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 10 of the Complaint, and therefore denies each and every such allegation. 11. The allegations contained in Paragraph 11 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient 3 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 4 of 61 knowledge or information to admit or deny the allegations in Paragraph 11 of the Complaint, and therefore denies each and every such allegation. 12. The allegations contained in Paragraph 12 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 12 of the Complaint, and therefore denies each and every such allegation. 13. The allegations contained in Paragraph 13 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 13 of the Complaint, and therefore denies each and every such allegation. 14. The allegations contained in Paragraph 14 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 14 of the Complaint, and therefore denies each and every such allegation. 15. The allegations contained in Paragraph 15 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 15 of the Complaint, and therefore denies each and every such allegation. 16. The allegations contained in Paragraph 16 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 16 of the Complaint, and therefore denies each and every such allegation. 4 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 5 of 61 17. With regard to whether Plaintiff/putative Class Representative, Ann Quinn, regularly purchased pet food from New Albertson's during the class period for her cats and dogs, New Albertson's lacks sufficient knowledge or information at this time to admit or deny those allegations in Paragraph 17 of the Complaint, and therefore denies each and every such allegation. New Albertson's denies each and every remaining allegation contained in Paragraph 17 of the Complaint insofar as the allegation relates to New Albertson's. New Albertson's lacks sufficient information or knowledge to admit or deny the allegations directed towards other defendants in Paragraph 17 and therefore denies each and every such allegation. 18. The allegations contained in Paragraph 18 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 18 of the Complaint, and therefore denies each and every such allegation. 19. The allegations contained in Paragraph 19 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 19 of the Complaint, and therefore denies each and every such allegation. 20. The allegations contained in Paragraph 20 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 20 of the Complaint, and therefore denies each and every such allegation. 21. The allegations contained in Paragraph 21 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient 5 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 6 of 61 knowledge or information to admit or deny the allegations in Paragraph 21 of the Complaint, and therefore denies each and every such allegation. 22. The allegations contained in Paragraph 22 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 22 of the Complaint, and therefore denies each and every such allegation. 23. The allegations contained in Paragraph 23 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 23 of the Complaint, and therefore denies each and every such allegation. 24. The allegations contained in Paragraph 24 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 24 of the Complaint, and therefore denies each and every such allegation. 25. The allegations contained in Paragraph 25 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 25 of the Complaint, and therefore denies each and every such allegation. 26. The allegations contained in Paragraph 26 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 26 of the Complaint, and therefore denies each and every such allegation. 6 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 7 of 61 27. The allegations contained in Paragraph 27 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 27 of the Complaint, and therefore denies each and every such allegation. 28. With regard to whether Plaintiff/Putative Class Representative, Marlena Rucker, regularly purchased pet food from New Albertson's during the class period for her cats and dogs, New Albertson's lacks sufficient knowledge or information at this time to admit or deny those allegations in Paragraph 28 of the Complaint, and therefore denies each and every such allegation. New Albertson's denies each and every remaining allegation contained in Paragraph 28 of the Complaint insofar as the allegation relates to New Albertson's. New Albertson's lacks sufficient information or knowledge to admit or deny the allegations directed towards other defendants in Paragraph 28 and therefore denies each and every such allegation. 29. The allegations contained in Paragraph 29 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 29 of the Complaint, and therefore denies each and every such allegation. 30. The allegations contained in Paragraph 30 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 30 of the Complaint, and therefore denies each and every such allegation. 31. The allegations contained in Paragraph 31 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient 7 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 8 of 61 knowledge or information to admit or deny the allegations in Paragraph 31 of the Complaint, and therefore denies each and every such allegation. 32. The allegations contained in Paragraph 32 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 32 of the Complaint, and therefore denies each and every such allegation. DEFENDANTS Defendant Manufacturers 33. The allegations contained in Paragraph 33 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 33 of the Complaint, and therefore denies each and every such allegation. 34. The allegations contained in Paragraph 34 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 34 of the Complaint, and therefore denies each and every such allegation. 35. The allegations contained in Paragraph 35 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 35 of the Complaint, and therefore denies each and every such allegation. 36. The allegations contained in Paragraph 36 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient 8 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 9 of 61 knowledge or information to admit or deny the allegations in Paragraph 36 of the Complaint, and therefore denies each and every such allegation. 37. The allegations contained in Paragraph 37 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 37 of the Complaint, and therefore denies each and every such allegation. 38. The allegations contained in Paragraph 38 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 38 of the Complaint, and therefore denies each and every such allegation. 39. The allegations contained in Paragraph 39 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 39 of the Complaint, and therefore denies each and every such allegation. 40. The allegations contained in Paragraph 40 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 40 of the Complaint, and therefore denies each and every such allegation. Defendant Co-Packers 41. The allegations contained in Paragraph 41 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 41 of the Complaint, and therefore denies each and every such allegation. 9 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 10 of 61 42. The allegations contained in Paragraph 42 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 42 of the Complaint, and therefore denies each and every such allegation. 43. The allegations contained in Paragraph 43 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 43 of the Complaint, and therefore denies each and every such allegation. 44. The allegations contained in Paragraph 44 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 44 of the Complaint, and therefore denies each and every such allegation. 45. The allegations contained in Paragraph 45 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 45 of the Complaint, and therefore denies each and every such allegation. 46. The allegations contained in Paragraph 46 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 46 of the Complaint, and therefore denies each and every such allegation. Defendant Retailers 47. The allegations contained in Paragraph 47 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient 10 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 11 of 61 knowledge or information to admit or deny the allegations in Paragraph 47 of the Complaint, and therefore denies each and every such allegation. 48. The allegations contained in Paragraph 48 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 48 of the Complaint, and therefore denies each and every such allegation. 49. The allegations contained in Paragraph 49 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 49 of the Complaint, and therefore denies each and every such allegation. 50. The allegations contained in Paragraph 50 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 50 of the Complaint, and therefore denies each and every such allegation. 51. New Albertson's admits it is a Delaware corporation with its principal place of business in Boise, Idaho. New Albertson's further admits that it has a registered agent in Florida. New Albertson's further admits that pursuant to a transition services agreement, it sells wholesale gasoline to certain fuel centers operated by Albertsons, LLC., and in that limited context it is qualified to and does business in Florida. New Albertson's further admits that it is a wholly owned subsidiary of SuperValu, a corporation with which it is otherwise completely distinct. New Albertson's further admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from 11 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 12 of 61 time to time, advertised certain of the pet food products which it has offered for sale. All other allegations in Paragraph 51 which relate, in whole or in part, to New Albertson's are denied. With regard to the allegations directed at entities other than New Albertson's in Paragraph 51, New Albertson's lacks sufficient knowledge or information to admit or deny the allegations and therefore denies each and every such allegation. New Albertsons states that while it does not contest personal jurisdiction with respect to this lawsuit only, it reserves all rights to contest personal jurisdiction in any and all other actions that may now or in the future be brought against it. 52. The allegations contained in Paragraph 52 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 52 of the Complaint, and therefore denies each and every such allegation. Defendant Pet Specialty Retailers 53. The allegations contained in Paragraph 53 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 53 of the Complaint, and therefore denies each and every such allegation. 54. The allegations contained in Paragraph 54 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 54 of the Complaint, and therefore denies each and every such allegation. 55. The allegations contained in Paragraph 55 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient 12 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 13 of 61 knowledge or information to admit or deny the allegations in Paragraph 55 of the Complaint, and therefore denies each and every such allegation. 56. The allegations contained in Paragraph 56 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 56 of the Complaint, and therefore denies each and every such allegation. JURISDICTION AND VENUE 57. Paragraph 57 calls for a legal conclusion for which no response is warranted. To the extent a response is required, New Albertson's lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 57 of the Complaint, and therefore denies each and every such allegation. 58. The allegations contained in Paragraph 58 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 58 of the Complaint, and therefore denies each and every such allegation. 59. Paragraph 59 calls for a legal conclusion for which no response is warranted. To the extent that a response is required, New Albertson's does not contest that this Court has personal jurisdiction over it for purposes of this action. As to the remaining allegations in Paragraph 59 of the Complaint, New Albertson's lacks sufficient knowledge or information to admit or deny the allegations, and therefore denies each and every such allegation. 60. Paragraph 60 calls for a legal conclusion for which no response is warranted. To the extent that a response is required, New Albertson's denies that it manufactured, marketed advertised or sold commercial pet food in this district. New Albertson's lacks sufficient 13 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 14 of 61 knowledge or information to admit or deny the remaining allegations in Paragraph 60 of the Complaint, and therefore denies each and every such allegation. FACTS GIVING RISE TO THE CLAIMS 61. New Albertson's, lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 61 of the Complaint, and therefore denies each and every such allegation. 62. The allegations contained in Paragraph 62 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 62 of the Complaint, and therefore denies each and every such allegation. 63. New Albertson's admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from time to time, advertised certain of the pet food products which it has offered for sale, but denies each and every other allegation directed to New Albertson's in Paragraph 63 of the Complaint. New Albertson's lacks sufficient knowledge or information to admit or deny the allegations directed at other defendants and therefore denies each and every such allegation. 64. New Albertson's lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 64 of the Complaint, and therefore denies each and every such allegation. 65. New Albertson's lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 65 of the Complaint, and therefore denies each and every such allegation. 14 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 15 of 61 66. With regard to any allegation directed to New Albertson's in Paragraph 66 of the Complaint, New Albertson's denies each and every such allegation. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 66 of the Complaint, and therefore denies each and every such allegation. The Defendants' [sic] deliberately "Humanize" Pet Food to Obtain Greater Market Share and even more Staggering Profits 67. With regard to any allegation directed to New Albertson's in Paragraph 67 of the Complaint, New Albertson's denies each and every such allegation. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 67 of the Complaint, and therefore denies each and every such allegation. The Defendants' Marketing of Commercial Pet Food Misleads the Plaintiffs and Consumers 68. With regard to any allegation directed to New Albertson's in Paragraph 68 of the Complaint, New Albertson's denies each and every such allegation. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 68 of the Complaint, and therefore denies each and every such allegation. 69. With regard to any allegation directed to New Albertson's in Paragraph 69 of the Complaint, New Albertson's denies each and every such allegation. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 69 of the Complaint, and therefore denies each and every such allegation. 70. The allegations contained in Paragraph 70 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 70 of the Complaint, and therefore denies each and every such allegation. 15 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 16 of 61 71. The allegations contained in Paragraph 71 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 71 of the Complaint, and therefore denies each and every such allegation. Mars' "Good Life Recipe"TM 72. The allegations contained in Paragraph 72 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 72 of the Complaint, and therefore denies each and every such allegation. 73. The allegations contained in Paragraph 73 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 73 of the Complaint, and therefore denies each and every such allegation. Mars' Pedigree� 74. The allegations contained in Paragraph 74 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 74 of the Complaint, and therefore denies each and every such allegation. P&G's IamsTM 75. The allegations contained in Paragraph 75 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 75 of the Complaint, and therefore denies each and every such allegation. 16 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 17 of 61 76. The allegations contained in Paragraph 76 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 76 of the Complaint, and therefore denies each and every such allegation. Colgate's and Hills' Science Diet� 77. The allegations contained in Paragraph 77 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 77 of the Complaint, and therefore denies each and every such allegation. 78. The allegations contained in Paragraph 78 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 78 of the Complaint, and therefore denies each and every such allegation. 79. The allegations contained in Paragraph 79 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 79 of the Complaint, and therefore denies each and every such allegation. Del Monte's 9 Lives� 80. The allegations contained in Paragraph 80 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 80 of the Complaint, and therefore denies each and every such allegation. 17 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 18 of 61 Nestl�'s Beneful� 81. The allegations contained in Paragraph 81 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 81 of the Complaint, and therefore denies each and every such allegation. Nutro Natural Choice� Complete Care� Indoor Adult Cat 82. The allegations contained in Paragraph 82 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 82 of the Complaint, and therefore denies each and every such allegation. Natura Brand Pet Food 83. The allegations contained in Paragraph 83 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 83 of the Complaint, and therefore denies each and every such allegation. Petco's Marketing of the Defendants' Premium Pet Foods 84. The allegations contained in Paragraph 84 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 84 of the Complaint, and therefore denies each and every such allegation. 85. The allegations contained in Paragraph 85 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient 18 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 19 of 61 knowledge or information to admit or deny the allegations in Paragraph 85 of the Complaint, and therefore denies each and every such allegation. Petsmart's Marketing of the Defendants' Premium Pet Foods 86. The allegations contained in Paragraph 86 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 86 of the Complaint, and therefore denies each and every such allegation. Pet Supermarket's and Pet Supplies' Marketing of the Defendants' Pet Foods 87. The allegations contained in Paragraph 87 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 87 of the Complaint, and therefore denies each and every such allegation. Retailers [sic] Marketing of the Defendants' Pet Foods 88. With regard to the allegations directed to New Albertson's in Paragraph 88 of the Complaint, New Albertson's admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from time to time, advertised certain of the pet food products which it has offered for sale. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 88 of the Complaint, and therefore denies each and every such allegation. 19 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 20 of 61 "Premium" Pet Food is made by the same co-packer of non-premium pet food 89. The allegations contained in Paragraph 89 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 89 of the Complaint, and therefore denies each and every such allegation. 90. The allegations contained in Paragraph 90 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 90 of the Complaint, and therefore denies each and every such allegation. The Defendants Profit by Recycling the Inedible Garbage of their Human Food Businesses into Commercial Pet Food 91. The allegations contained in Paragraph 91 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 91 of the Complaint, and therefore denies each and every such allegation. 92. The allegations contained in Paragraph 92 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 92 of the Complaint, and therefore denies each and every such allegation. 93. The allegations contained in Paragraph 93 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 93 of the Complaint, and therefore denies each and every such allegation. 20 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 21 of 61 94. The allegations contained in Paragraph 94 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 94 of the Complaint, and therefore denies each and every such allegation. 95. The allegations contained in Paragraph 95 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 95 of the Complaint, and therefore denies each and every such allegation. 96. The allegations contained in Paragraph 96 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 96 of the Complaint, and therefore denies each and every such allegation. 97. The allegations contained in Paragraph 97 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 97 of the Complaint, and therefore denies each and every such allegation. 98. The allegations contained in Paragraph 98 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 98 of the Complaint, and therefore denies each and every such allegation. 99. The allegations contained in Paragraph 99 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient 21 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 22 of 61 knowledge or information to admit or deny the allegations in Paragraph 99 of the Complaint, and therefore denies each and every such allegation. Chemical Preservatives and Contaminants 100. The allegations contained in Paragraph 100 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 100 of the Complaint, and therefore denies each and every such allegation. 101. The allegations contained in Paragraph 101 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 101 of the Complaint, and therefore denies each and every such allegation. 102. The allegations contained in Paragraph 102 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 102 of the Complaint, and therefore denies each and every such allegation. Numerous Serious Toxic Pet Food Recalls Demonstrate that the Defendants Do Not Properly Test, Monitor or otherwise Verify Pet Food Contents that are Marketed as "Healthy, Wholesome and Nutritious" 103. The allegations contained in Paragraph 103 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 103 of the Complaint, and therefore denies each and every such allegation. 22 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 23 of 61 Nutrition-Related Diseases 104. The allegations contained in Paragraph 104 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 104 of the Complaint, and therefore denies each and every such allegation. 105. The allegations contained in Paragraph 105 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 105 of the Complaint, and therefore denies each and every such allegation. 106. The allegations contained in Paragraph 106 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 106 of the Complaint, and therefore denies each and every such allegation. 107. New Albertson's is without sufficient information to admit or deny the allegations contained in Paragraph 107 and therefore denies each and every such allegation. 108. New Albertson's is without sufficient information to admit or deny the allegations contained in Paragraph 108 and therefore denies each and every such allegation. 109. the Complaint. Joinder of the Defendants 110. Paragraph 110 calls for a legal conclusion for which no response is warranted. To New Albertson's denies each and every allegation contained in Paragraph 109 of the extent a response is required, New Albertson's denies each and every such allegation directed towards it in Paragraph 110. New Albertson's lacks sufficient knowledge or information to 23 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 24 of 61 admit or deny the remaining allegations in Paragraph 110 of the Complaint, and therefore denies each and every such allegation. CLASS ACTION ALLEGATIONS Plaintiffs' Class Action 111. New Albertson's generally admits that Plaintiffs are purporting to bring a class action. New Albertson's denies each and every remaining allegation contained in Paragraph 111 of the Complaint. Injunctive Relief 112. the Complaint. Numerosity 113. the Complaint. Commonality 114. the Complaint. Typicality 115. the Complaint. Adequacy 116. the Complaint. New Albertson's denies each and every allegation contained in Paragraph 116 of New Albertson's denies each and every allegation contained in Paragraph 115 of New Albertson's denies each and every allegation contained in Paragraph 114 of New Albertson's denies each and every allegation contained in Paragraph 113 of New Albertson's denies each and every allegation contained in Paragraph 112 of 24 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 25 of 61 Predominance and Superiority 117. the Complaint. 118. the Complaint. Defendant Class 119. the Complaint. Numerosity 120. the Complaint. Commonality 121. the Complaint. Typicality 122. the Complaint. Adequacy 123. New Albertson's denies each and every allegation contained in Paragraph 123 of New Albertson's denies each and every allegation contained in Paragraph 122 of New Albertson's denies each and every allegation contained in Paragraph 121 of New Albertson's denies each and every allegation contained in Paragraph 120 of New Albertson's denies each and every allegation contained in Paragraph 119 of New Albertson's denies each and every allegation contained in Paragraph 118 of New Albertson's denies each and every allegation contained in Paragraph 117 of the Complaint save for the allegation that undersigned counsel have and will continue to competently and diligently defend their client against the unfounded allegations in this litigation. 25 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 26 of 61 Predominance and Superiority 124. the Complaint. 125. the Complaint. COUNT I Fraudulent Misrepresentation and Concealment As to All Defendants 126. repeated here. 127. With regard to the allegations directed to New Albertson's in Paragraph 127 of New Albertson's incorporates its responses to Paragraphs 1-125 as if fully New Albertson's denies each and every allegation contained in Paragraph 125 of New Albertson's denies each and every allegation contained in Paragraph 124 of the Complaint, New Albertson's admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from time to time, advertised certain of the pet food products which it has offered for sale. New Albertson's denies that it was or is engaged in the business of manufacturing pet food. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 127 of the Complaint, and therefore denies each and every such allegation. 128. With regard to the allegations directed to New Albertson's in Paragraph 128 of the Complaint, New Albertson's admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from time to time, advertised certain of the pet food products which it has offered for sale. New Albertson's denies that it was or is engaged in the business of manufacturing pet food. New 26 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 27 of 61 Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 128 of the Complaint, and therefore denies each and every such allegation. 129. With regard to the allegations directed to New Albertson's in Paragraph 129 of the Complaint, New Albertson's denies each and every allegation. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 129 of the Complaint. 130. the Complaint. 131. the Complaint. 132. The allegations contained in Paragraph 132 are not directed to New Albertson's. New Albertson's denies each and every allegation contained in Paragraph 131 of New Albertson's denies each and every allegation contained in Paragraph 130 of To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 132 of the Complaint, and therefore denies each and every such allegation. 133. the Complaint. 134. the Complaint. New Albertson's denies each and every allegation contained in Paragraph 134 of New Albertson's denies each and every allegation contained in Paragraph 133 of 27 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 28 of 61 COUNT II Negligent Misrepresentation As to All Defendants 135. repeated here. 136. With regard to the allegations directed to New Albertson's in Paragraph 136 of New Albertson's incorporates its responses to Paragraphs 1-125 as if fully the Complaint, New Albertson's admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from time to time, advertised certain of the pet food products which it has offered for sale. New Albertson's denies that it was or is engaged in the business of manufacturing pet food. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 136 of the Complaint, and therefore denies each and every such allegation. 137. With regard to the allegations directed to New Albertson's in Paragraph 137 of the Complaint, New Albertson's admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from time to time, advertised certain of the pet food products which it has offered for sale. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 137 of the Complaint, and therefore denies each and every such allegation. 138. With regard to the allegations directed to New Albertson's in Paragraph 138 of the Complaint, New Albertson's denies each and every allegation. New Albertson's lacks 28 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 29 of 61 sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 138 of the Complaint, and therefore denies each and every such allegation. 139. To the extent any part of the allegation in Paragraph 139 of the Complaint is intended to allege any form of improper conduct by New Albertson's, New Albertson's denies each and every such allegation. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 139 of the Complaint and therefore denies each and every such allegation. 140. With regard to the allegations directed to New Albertson's in Paragraph 140 of the Complaint, New Albertson's denies each and every allegation. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 140 of the Complaint. 141. the Complaint. 142. the Complaint. 143. the Complaint. COUNT III Violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. � 501.201 As to All Defendants 144. repeated here. New Albertson's incorporates its responses to Paragraphs 1-125 as if fully New Albertson's denies each and every allegation contained in Paragraph 143 of New Albertson's denies each and every allegation contained in Paragraph 142 of New Albertson's denies each and every allegation contained in Paragraph 141 of 29 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 30 of 61 145. With regard to the allegations directed to New Albertson's in Paragraph 145 of the Complaint, New Albertson's admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from time to time, advertised certain of the pet food products which it has offered for sale. New Albertson's denies that it was or is engaged in the business of manufacturing pet food. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 145 of the Complaint, and therefore denies each and every such allegation. 146. With regard to the allegations directed to New Albertson's in Paragraph 146 of the Complaint, New Albertson's admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from time to time, advertised certain of the pet food products which it has offered for sale. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 146 of the Complaint, and therefore denies each and every such allegation. 147. New Albertson's admits generally that Plaintiffs claim this Complaint includes a cause of action for damages due to the Defendants' alleged violation of Florida's Deceptive and Unfair Trade Practices Act, but deny that such a cause of action has been stated. 148. the Complaint. 149. The allegations contained in Paragraph 149 are not directed to New Albertson's. New Albertson's denies each and every allegation contained in Paragraph 148 of To the extent that a response is deemed required by New Albertson's, it lacks sufficient 30 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 31 of 61 knowledge or information to admit or deny the allegations in Paragraph 149 of the Complaint, and therefore denies each and every such allegation. 150. New Albertson's admits that, since June 2, 2006, it has been engaged in "trade or commerce" as said term is defined under Fla. Stat. � 501.203(8). 151. the Complaint. 152. the Complaint. 153. New Albertson's lacks sufficient knowledge or information to admit or deny the New Albertson's denies each and every allegation contained in Paragraph 152 of New Albertson's denies each and every allegation contained in Paragraph 151 of allegations in Paragraph 153 of the Complaint, and therefore denies each and every such allegation. 154. the Complaint. COUNT IV Negligence As to Defendant Manufacturers and Co-Packers and PetSmart 155. repeated here. 156. The allegations contained in Paragraph 156 are not directed to New Albertson's. New Albertson's incorporates its responses to Paragraphs 1-125 as if fully New Albertson's denies each and every allegation contained in Paragraph 154 of To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 156 of the Complaint, and therefore denies each and every such allegation. 31 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 32 of 61 157. The allegations contained in Paragraph 157 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 157 of the Complaint, and therefore denies each and every such allegation. 158. The allegations contained in Paragraph 158 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 158 of the Complaint, and therefore denies each and every such allegation. 159. The allegations contained in Paragraph 159 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 159 of the Complaint, and therefore denies each and every such allegation. 160. The allegations contained in Paragraph 160 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 160 of the Complaint, and therefore denies each and every such allegation. 161. The allegations contained in Paragraph 161 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 161 of the Complaint, and therefore denies each and every such allegation. 32 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 33 of 61 COUNT V Strict Liability As To All Defendants 162. repeated here. 163. New Albertson's lacks sufficient knowledge or information to admit or deny the New Albertson's incorporates its responses to Paragraphs 1-125 as if fully allegations in Paragraph 163 of the Complaint, and therefore denies each and every such allegation. 164. The allegations contained in Paragraph 164 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 164 of the Complaint, and therefore denies each and every such allegation. 165. the Complaint. COUNT VI Breach of Implied Warranty as to Retailers and Pet Specialty Retailers 166. repeated here. 167. With regard to the allegations directed to New Albertson's in Paragraph 167 of New Albertson's incorporates its responses to Paragraphs 1-125 as if fully New Albertson's denies each and every allegation contained in Paragraph 165 of the Complaint, New Albertson's admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from time to time, advertised certain of the pet food products which it has offered for sale. New 33 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 34 of 61 Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 167 of the Complaint, and therefore denies each and every such allegation. 168. With regard to the allegations directed to New Albertson's in Paragraph 168 of the Complaint, New Albertson's denies each and every such allegation. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 168 of the Complaint, and therefore denies each and every such allegation. 169. With regard to the allegations directed to New Albertson's in Paragraph 169 of the Complaint, New Albertson's denies each and every such allegation. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 169 of the Complaint, and therefore denies each and every such allegation. 170. With regard to the allegations directed to New Albertson's in Paragraph 170 of the Complaint, New Albertson's denies each and every such allegation. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 170 of the Complaint, and therefore denies each and every such allegation. 171. With regard to the allegations directed to New Albertson's in Paragraph 171 of the Complaint, New Albertson's denies each and every such allegation. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 171 of the Complaint, and therefore denies each and every such allegation. 172. The allegations contained in Paragraph 172 are not directed to New Albertson's. To the extent that a response is deemed required by New Albertson's, it lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 172 of the Complaint, and therefore denies each and every such allegation. 34 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 35 of 61 173. the Complaint. New Albertson's denies each and every allegation contained in Paragraph 173 of COUNT VII Breach of Express Warranty As to Defendant Retailers and Pet Specialty Retailers 174. repeated here. 175. With regard to the allegations directed to New Albertson's in Paragraph 175 of New Albertson's incorporates its responses to Paragraphs 1-125 as if fully the Complaint, New Albertson's admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from time to time, advertised certain of the pet food products which it has offered for sale. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 175 of the Complaint, and therefore denies each and every such allegation. 176. With regard to the allegations directed to New Albertson's in Paragraph 176 of the Complaint, New Albertson's denies each and every such allegation. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 176 of the Complaint, and therefore denies each and every such allegation. 177. New Albertson's lacks sufficient knowledge or information to admit or deny the allegations in Paragraph 177 of the Complaint, and therefore denies each and every such allegation. 178. With regard to the allegations directed to New Albertson's in Paragraph 178 of the Complaint, New Albertson's denies each and every such allegation. New Albertson's lacks 35 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 36 of 61 sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 178 of the Complaint, and therefore denies each and every such allegation. 179. the Complaint. COUNT VIII Unjust Enrichment As to All Defendants 180. repeated here. 181. the Complaint. 182. With regard to the allegations directed to New Albertson's in Paragraph 182 of New Albertson's denies each and every allegation contained in Paragraph 181 of New Albertson's incorporates its responses to Paragraphs 1-125 as if fully New Albertson's denies each and every allegation contained in Paragraph 179 of the Complaint, New Albertson's admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from time to time, advertised certain of the pet food products which it has offered for sale. New Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 182 of the Complaint, and therefore denies each and every such allegation. 183. With regard to the allegations directed to New Albertson's in Paragraph 183 of the Complaint, New Albertson's admits that since June 2, 2006, in certain states other than Florida, it is a retail seller of certain pet food products, some of which are manufactured or distributed by other defendants in this lawsuit. New Albertson's further admits that it has, from time to time, advertised certain of the pet food products which it has offered for sale. New 36 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 37 of 61 Albertson's lacks sufficient knowledge or information to admit or deny the remaining allegations in Paragraph 183 of the Complaint, and therefore denies each and every such allegation. 184. New Albertson's lacks sufficient knowledge or information to admit or deny the allegations contained in Paragraph 184 of the Complaint, and therefore denies each and every such allegation. 185. the Complaint. 186. the Complaint. 187. the Complaint. 188. the Complaint. New Albertson's denies each and every allegation in Plaintiffs' "Prayer for Relief." JURY DEMAND New Albertson's demands a jury trial on all issues so triable. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiffs' causes of action are barred by the Statute of Limitations. SECOND AFFIRMATIVE DEFENSE Plaintiffs' causes of action are barred by the equitable doctrine of laches. New Albertson's denies each and every allegation contained in Paragraph 188 of New Albertson's denies each and every allegation contained in Paragraph 187 of New Albertson's denies each and every allegation contained in Paragraph 186 of New Albertson's denies each and every allegation contained in Paragraph 185 of 37 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 38 of 61 THIRD AFFIRMATIVE DEFENSE The Plaintiffs' complaint has failed to state a cause of action upon which relief can be granted. FOURTH AFFIRMATIVE DEFENSE Plaintiffs' causes of action are barred the doctrine of equitable estoppel. FIFTH AFFIRMATIVE DEFENSE Plaintiffs' claims, or parts thereof, are barred by the doctrine of accord and satisfaction. SIXTH AFFIRMATIVE DEFENSE Plaintiffs' claims, or parts thereof, are barred by the equitable doctrine of unclean hands. SEVENTH AFFIRMATIVE DEFENSE Plaintiffs' claims, or parts thereof, are barred because the Plaintiffs have engaged in acts and courses of conduct which rendered them in pari delicto. EIGHTH AFFIRMATIVE DEFENSE To the extent the Plaintiffs allege negligence by New Albertson's, which is denied, the Plaintiffs' claims, or parts thereof, are barred by their own negligence under the applicable doctrines of contributory negligence, comparative negligence or modified comparative negligence. NINTH AFFIRMATIVE DEFENSE Plaintiffs' claims are barred by the doctrines of release and waiver. TENTH AFFIRMATIVE DEFENSE The Plaintiffs' claims, or parts thereof, are barred by the Statute of Frauds. ELEVENTH AFFIRMATIVE DEFENSE Plaintiffs' claims, or parts thereof, are barred as a result of a failure of consideration. 38 Case 1:07-cv-21221-CMA Document 379 Entered on FLSD Docket 05/12/2008 Page 39 of 61 TWELFTH AFFIRMATIVE DEFENSE Plaintiffs' claims, or parts thereof, are barred as a result of a lack of sufficient consideration. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiffs have failed to mitigate or lessen any damages suffered. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiffs assumed the risk of any damages suffered. FIFTEENTH AFFIRMATIVE DEFENSE The Plaintiffs' claims, or parts thereof, are barred by their failure to undertake and/or complete any and all conditions precedent to any alleged obligations or duties of the Defendants including, but not limited to, the failure to provide requisite and/or timely notice to these Defendants of any alleged breach of warranty. SIXTEENTH AFFIRMATIVE DEFENSE The matters complained of in the Plaintiffs' Complaint were proximately caused, in whole or in part, by the acts or omissions of a third party or third-parties. Accordingly, any liability of Defendants and responsible parties, named or unnamed, should be apportioned according to their respective fault or other legal responsi

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