Simpson et al v. Champion Pet Foods USA Inc. et al

Filing 37

MEMORANDUM OPINION & ORDER: (1) Defendants' motion to dismiss the amended complaint 32 , is GRANTED IN PART and DENIED IN PART; (2) All of Plaintiff Tracy Simpson's claims (Counts I, III, V, VI, and VII), are DISMISSED WI TH PREJUDICE; (3) Plaintiff Danika Lolles' claims under Counts VI and VII are DISMISSED WITH PREJUDICE; and (4) The parties shall file simultaneous briefs by Monday, July 8, 2019, addressing the appropriateness of transferring this action under 28 U.S.C. § 1404(a). Signed by Judge William O. Bertelsman on 6/21/2019.(ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION No. 2:18-CV-74 (WOB-CJS)
TRACY SIMPSON ET AL.
VS.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

CHAMPION PETFOODS USA, INC. ET AL.

DEFENDANTS

This proposed class action involves alleged misrepresentations on the package
labeling for dog food. Plaintiffs allege in particular that Defendant Champion
Petfoods, Inc. misrepresented the quality of its premium dry dog food by labeling it
as containing “fresh, raw, or dehydrated ingredients” that are “regional” and “deemed
fit for human consumption prior to inclusion.”
Plaintiffs assert the following six (6) counts:
Count I:

Violation of the Kentucky Consumer Protection Act, KRS §
367.120 et seq.

Count II:

Violation of the Virginia Consumer Protection Act of 1977, Va.
Code § 59.1-196 et seq.

Count III:

Breach of express warranty under Kentucky law, KRS § 355.2313

Count IV:

Breach of express warranty under Virginia law, Va. Code § 8.2313

Count V:

Breach of implied warranty
Simpson et al. v. Champion Petfoods USA, Inc. et al.
1

Count VI:

Fraudulent omission

Count VII:

Unjust enrichment

On January 8, 2019, this Court heard oral argument on Defendants’ first
motion to dismiss. At the end of the hearing, Plaintiffs’ counsel made an oral request
to amend the complaint. (Doc. 26). That request was granted. This matter is now
before the Court on Defendants’ motion to dismiss the amended complaint (Doc. 32).
The Court dispenses with oral argument at this stage because the materials before it
adequately present the facts and legal contentions, and argument would not aid the
decisional process. Accordingly, the matter is ripe for disposition.
For the reasons that follow, Defendants’ motion to dismiss will be granted in
part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Champion Petfoods LP owns and controls Defendant Champion
Petfoods USA, Inc. (collectively “Champion”). Champion manufactures, markets, and
sells premium-priced dog food throughout the United States, including in Kentucky
and Virginia, where, respectively, Plaintiff Tracy Simpson and Danika Lolles
purchased Champion’s dog food from various third-party pet food stores. (Doc. 29, ¶¶
6–11).
Champion’s dry dog food products are sold under two brand names: “Orijen”
and “Acana,” both of which contain substantially similar representations on the
package label. Id. at ¶¶ 1, 11, 15.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
2

A.

Representations on the Package Label

Orijen Original is labeled on the front of the package as “BIOLOGICALLY
APPROPRIATE™ DOG FOOD,” a purported trademark phrase. (Doc. 32-2 at 1);
(Doc. 29, ¶ 13). 1
On the back of the package, featured prominently under the caption
“TRUSTED EVERYWHERE,” it reads:
ORIJEN IS THE FULLEST EXPRESSION OF OUR BIOLOGICALLY
APPROPRIATE™ AND FRESH REGIONAL INGREDIENTS
COMMITMENT. ORIJEN ORIGINAL features unmatched inclusions of
free-run poultry, wild-caught fish and whole nest-laid eggs—sustainably
farmed or fished in our region and delivered daily, FRESH or RAW and
preservative-free, so they’re bursting with goodness and taste.
(Doc. 32-2 at 2) (emphasis in original); (Doc. 29, ¶ 13). The package label also
represents that Orijen contains “NO RENDERED POULTRY, FISH OR MEAT
MEALS,” and instead, “features richly nourishing ratios of poultry, organs and
cartilage” and “FRESH, RAW or DEHYDRATED ingredients, from minimally
processed poultry fish and eggs that are deemed fit for human consumption prior to
inclusion in our foods.” (Doc. 32-2 at 1–2) (emphasis added); (Doc. 29, ¶ 13).
Although these statements speak in general terms, consumers are invited to “[r]ead
[the] ingredients” in the list conspicuously printed on the package. 2

1

The phrase “biologically appropriate” is represented to mean “NOURISH AS
NATURE INTENDED – ORIJEN mirrors the richness, freshness and variety of
WholePrey™ meats that dogs are evolved to eat.” (Doc. 32-2 at 2); (Doc. 29, ¶ 13).

2

The list of specific ingredients printed on the Orijen Original package includes:
Simpson et al. v. Champion Petfoods USA, Inc. et al.
3

The package further represents the origin of the product ingredients. Under
the heading “FRESH REGIONAL INGREDIENTS” it states: “GROWN CLOSE TO
HOME – We focus on local ingredients that are ethically raised by people we know
and trust, and delivered to our kitchens fresh or raw each day.” (Doc. 32-2 at 2); (Doc.
29, ¶ 13). This theme is reinforced by two similar statements: (a) “INGREDIENTS
WE LOVE FROM PEOPLE WE KNOW AND TRUST”; and (b) “FRESH OR RAW
INGREDIENTS FROM LOCAL FARMS AND WATERS.” (Doc. 32-2 at 2); (Doc. 29,
¶ 13). In the same vein, under the heading “NEVER OUTSOURCED,” the label notes
that the product is “PREPARED EXCLUSIVELY IN OUR DOGSTAR KITCHENS –
We don’t make foods for other companies and we don’t allow our foods to be made by
anyone else.” (Doc. 32-2 at 2); (Doc. 29 at 7). And more particularly, “MADE IN OUR
USA KENTUCKY KITCHENS” is printed on the package. (Doc. 32-2 at 1–2); (Doc.
29, ¶ 13).
B.

Allegations as to the Falsity of Champion’s Representations

Plaintiffs allege that Champion’s representations are false and deceptive.
First, Plaintiffs claim Champion’s products contain “high levels of heavy metals.”

“deboned chicken, deboned, turkey, yellowtail flounder, whole eggs, whole atlantic
mackerel, chicken liver, turkey liver, chicken heart, turkey heart, whole
atlantic herring, dehydrated chicken, dehydrated turkey, dehydrated
mackerel, dehydrated chicken liver, dehydrated turkey liver, . . . chicken
necks, chicken kidney, . . . ground chicken bone, chicken cartilage, turkey
cartilage, . . . freeze-dried chicken liver, freeze-dried turkey liver” and
various vegetables, lentils, and seeds. (Doc. 32-2 at 2).
Simpson et al. v. Champion Petfoods USA, Inc. et al.
4

(Doc. 29, ¶ 25). As factual backing for this assertion, Plaintiffs reference Champion’s
own public disclosure, the “White Paper,” and include a table from that publication
listing the average concentration of arsenic, lead, cadmium, and mercury in the
finished product of Acana and Orijen Original. (Doc. 29, ¶ 25); (Doc. 32-1 at 2). 3
Plaintiffs’ version of the table omits the column that purports to provide the
maximum tolerable limits (“MTLs”) set by the Food and Drug Administration (“FDA”)
and the National Research Council (“NRC”)—which indicates that the heavy metals
in Champion’s products are substantially below the MTLs.
Notwithstanding, Plaintiffs aver that the reported concentrations of these
metals “are excessive,” “not suitable for consumption by humans and are not of the
quality

represented

to

consumers,”

and

therefore

“render

Champion’s

representations . . . false and misleading.” (Doc. 29, ¶¶ 26, 30). In support, Plaintiffs
cite to the FDA’s “Total Diet Study” 4 and include a table with figures from the study
indicating the concentration of the heavy metals found in chicken, turkey, and eggs

3

Plaintiffs have converted the unit of measurement for the figures in the White Paper
from milligrams (mg) per kilogram to micrograms (ug) per kilogram by multiplying
the figures by 1,000. Compare (Doc. 32-1 at 2), with (Doc. 29, ¶ 25).

4

(Doc. 29 at 11 n.1); U.S. FOOD & DRUG ADMIN., TOTAL DIET STUDY ELEMENTS
RESULTS SUMMARY STATISTICS: MARKET BASKETS 2006 THROUGH 2013 (rev. 2017)
(2014), https://www.fda.gov/media/77948/download (last visited Apr. 30, 2019)
[hereinafter “FDA Diet Study”]. Turkey, eggs, and chicken are Food Nos. 26, 37, and
240, respectively, in the FDA’s table. The table also provides data for certain types
of fish, such as salmon and tuna, in Food Nos. 318 and 340, respectively.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
5

consumed by humans. Id. at ¶ 28. 5 The table, however, omits fish, which according to
the package label, constitutes 2.5 pounds of the 11 pounds of “fresh, raw, or
dehydrated animal ingredients” in a 13-pound bag of Orijen Original. Id.; (Doc. 32-2
at 2).
Second, Plaintiffs allege that Champion’s products: (1) are “made primarily
from animal byproducts”; (2) “contain ingredients of an inferior quality than those
represented” and that Champion “knowingly uses expired ingredients”; (3) include
ingredients that are “heavily processed”; (4) contain “meal ingredients and fats”
obtained

from “unsanitary pet food rendering facilities around the world” or

rendering facilities that also process “animals that died by means other than
slaughter and diseased or spoiled meats”; (5) contain “a variety of ingredients that
are frozen”; (6) “routinely” include “‘regrinds’ (i.e., items that were not fit to be sold
after their original preparation)”; (7) are “contaminated with excessive quantities of
hair (for one ingredient, Champion’s own specification allows for 30 grams per pound
to consist of hair), insects, plastic ear tags from livestock, feathers, and bones”; (8)
lack “nutritious muscle meats” and instead “include cartilage, bone, [and] filtering
organs”; 6 and (9) incorporate ingredients that arrive with bills of lading designating

5

The unit of measurement for the figures in the FDA Study have also been converted
from milligrams (mg) per kilogram to micrograms (ug) per kilogram by multiplying
the figures by 1,000. Compare FDA Diet Study, supra note 4, with (Doc. 29, ¶ 28).

6

This is consistent with the package label. See supra note 2.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
6

it as “INEDIBLE” and “NOT FOR HUMAN CONSUMPTION.” (Doc. 29, ¶¶ 2, 16–17,
21–24).
Lastly, Plaintiffs allege Champion misrepresented that it uses “regional”
ingredients from “PEOPLE WE TRUST.” Id. at ¶¶ 2, 18–19. Plaintiffs aver this is
false because: (1) Champion “imports most of its ingredients from outside the
Commonwealth of Kentucky,” a “substantial portion” of which “are imported from
outside the United States and from as far away as New Zealand, Morocco, Denmark,
and Peru,” and “the few ingredients Champion sources from Kentucky are first
shipped over 1,000 miles away to New Bedford, Massachusetts for further processing
before being shipped to Champion’s Kentucky facility”; and (2) Champion obtains the
ingredients it uses “through a complex, convoluted supply chain where Champion
may be unaware of the origin of the ingredient.” Id. at ¶¶ 2, 18–19.
In short, Plaintiffs allege that contrary to the package labeling, the
“ingredients” prior to inclusion in Champion’s products “are not suitable for
consumption by humans and are not of the quality represented to consumers.” Id. at
¶¶ 21, 30. According to Plaintiffs, their injury stems from the fact that they believed
Champion’s products were “healthy, quality product[s] for [their] pet[s],” and they
paid a premium price they would not have paid had they been aware of the alleged
facts pertaining to Champion’s products. Id. at ¶¶ 3, 6–7. They seek compensation for
their loss and classwide treatment for the thousands of estimated class members in
Kentucky and Virginia. Id. at ¶¶ 31, 33.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
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LEGAL STANDARD
The Federal Rules of Civil Procedure require that pleadings, including
complaints, contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, a
complaint must contain enough facts “to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A complaint may be deficient for failure “to state a claim upon which relief can
be granted.” Fed. R. Civ. P. 12(b)(6). Even though a “complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555 (citations omitted).
On a Rule 12(b)(6) motion to dismiss, “all factual allegations in the complaint
must be presumed to be true” and the court must draw all “reasonable inferences” in
favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue
Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citation omitted); Erickson v.
Pardus, 551 U.S. 89, 94 (2007). To that end, a court must judge the sufficiency of a
complaint under a two-pronged approach: (1) disregard all “legal conclusions” and
“conclusory statements”; and (2) determine whether the remaining “well-pleaded
factual allegations,” accepted as true, “plausibly give rise to entitlement to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 678–81 (2009).
Simpson et al. v. Champion Petfoods USA, Inc. et al.
8

Accordingly, “only a complaint that states a plausible claim for relief survives
a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). A claim
becomes plausible “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. That is, the plaintiff's “[f]actual allegations must be enough to
raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at
555 (internal citations omitted). If, from the well-pleaded facts, the court cannot
“infer more than the mere possibility of misconduct, the complaint has alleged—but
has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at
679 (quoting Fed. R. Civ. P. 8(a)(2)).
ANALYSIS
I.

Materials Properly Before the Court
On a motion to dismiss, materials outside the pleadings are generally not

considered. Fed. Rule Civ. P. 12(d); Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d
673, 680 (6th Cir. 2011). But “a court may consider exhibits attached to the complaint,
public records, items appearing in the record of the case, and exhibits attached to
defendant’s motion to dismiss, so long as they are referred to in the complaint
and are central to the claims contained therein, without converting the motion
to one for summary judgment.” E.g., Stein v. hhgregg, Inc., 873 F.3d 523, 528 (6th
Cir. 2017) (emphasis added) (citation omitted). Put simply, “if a plaintiff references
Simpson et al. v. Champion Petfoods USA, Inc. et al.
9

or quotes certain documents, or if public records refute a plaintiff’s claim, a defendant
may attach those documents to its motion to dismiss, and a court can then consider
them in resolving the Rule 12(b)(6) motion . . . Fairness and efficiency require this
practice.” In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 466 (6th Cir. 2014).
Here, the White Paper published by Champion, the FDA Diet Study, and the
package label are referenced in the First Amended Complaint (the “Complaint”) and
are central to Plaintiffs’ claims. (Doc. 29, ¶¶ 13–15, 25–28; id. at 11 n.1). That
Plaintiffs did not attach these documents as exhibits to the Complaint is irrelevant.
Stein, 873 F.3d at 528 (plaintiff’s failure to attach compensation policy to complaint
did not preclude its consideration in resolving Rule 12(b)(6) motion because it was
“central to plaintiffs’ case” in that it was referenced in the complaint).
“While documents integral to the complaint may be relied upon, even if they
are not attached or incorporated by reference, it must also be clear that there exist
no material disputed issues of fact regarding the relevance of the document.”
Ouwinga v. Benistar 419 Plan Servs., 694 F.3d 783, 797 (6th Cir. 2012) (citation and
internal quotation marks omitted). Plaintiffs do not dispute the validity of the White
Paper. But, “[o]ther than the raw numbers,” Plaintiffs do dispute the statements and
MTLs in the White Paper. (Doc. 35 at 6–7).
Therefore, the Court may not consider information in the White Paper beyond
the data included in the Complaint. Mediacom Southeast LLC v. BellSouth Telcoms.,
Inc., 672 F.3d 396, 399 (6th Cir. 2012) (court could not refer to the settlement
Simpson et al. v. Champion Petfoods USA, Inc. et al.
10

agreement even though it was referred to in the complaint because the parties
disputed the “factual contents” of the settlement agreement and “[i]t would seem
improper for the district court to credit the factual recitations in the agreement—a
self-serving document drafted by the defendant . . . and to thus reject the well-pleaded
facts in the complaint”); Burns v. United States, 542 F. App’x 461, 466 (6th Cir. 2013)
(plaintiff disputed “the validity of the statements in the document relied upon by
Defendant”).
By contrast, there is no dispute as to the factual contents of the package label
or the validity of the FDA Diet study. As such, these documents are properly before
the Court and may be considered. Therefore, in deciding Champion’s motion, if the
allegations of the Complaint are “contradicted by documents attached to or
necessarily implicated by the pleadings, the latter controls over the former and a Rule
12(b)(6) dismissal may be based on the documents.” See, e.g., 2 JAMES WM. MOORE ET
AL.,

MOORE’S FEDERAL PRACTICE § 12.34(2) (Matthew Bender 3d ed. 2018) (emphasis

added) [hereinafter “MOORE’S”]; Kreipke v. Wayne State Univ., 807 F.3d 768, 782 (6th
Cir. 2015) (written instrument contradicted allegations in complaint and court
considered attachment as trumping allegations), cert. denied, 137 S. Ct. 617 (2017).
II.

Champion’s Motion to Dismiss
The parties evidently agree that Kentucky law applies to Plaintiff Simpson’s

Simpson et al. v. Champion Petfoods USA, Inc. et al.
11

claims and Virginia law applies to Plaintiff Lolles’ claims. 7 But there is no
constitutional problem “in applying [another state’s] law if it is not in conflict with
that of any other jurisdiction connected to this suit.” Phillips Petroleum Co. v. Shutts,
472 U.S. 797, 816 (1985) (citation omitted).
In this matter, the privity requirement is the only real difference between
Virginia and Kentucky law. Otherwise, there is no conflict. As such, the sufficiency
of Simpson’s and Lolles’ claims will be evaluated, respectively, under Kentucky and
Virginia law where the claim asserted implicates the privity requirement.
A.

The Kentucky Consumer Protection Act (“KCPA”) (Count I)

In Count I, Simpson alleges Champion violated the KCPA, KRS § 367.120 et
seq., by virtue of the alleged misrepresentations on Champion’s product labels. (Doc.
29, ¶¶ 39–50).

7

See also Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 947 (6th Cir. 2011)
(concluding that “the consumer-protection laws of the potential class members’
home States will govern their claims” because “the idea that one state’s law would
apply to claims by consumers throughout the country . . . is a novelty.” (citation and
internal quotation marks omitted)); Corder v. Ford Motor Co., 272 F.R.D. 205, 212–
213 (W.D. Ky. 2011) (observing that state consumer protection laws vary
significantly and concluding that the law of the states in which the putative class
members purchased their vehicles must be applied). But see Saleba v. Schrand, 300
S.W.3d 177, 181 (Ky. 2009) (“Kentucky has ample case law explaining that the ‘any
significant contacts’ test applies to tort actions, whereas the Restatement’s ‘most
significant contacts’ test applies to contract disputes.”); Foster v. Leggett, 484
S.W.2d 827, 829 (Ky. 1972) (holding that in tort cases, “significant contacts—not
necessarily the most significant contacts—with Kentucky” dictates that “Kentucky
law should be applied”).
Simpson et al. v. Champion Petfoods USA, Inc. et al.
12

The KCPA was enacted “to give Kentucky consumers the broadest possible
protection for allegedly illegal acts.” Stevens v. Motorists Mut. Ins. Co., 759 S.W.2d
819, 821 (Ky. 1988). It prohibits “[unconscionable], false, misleading, or deceptive acts
or practices in the conduct of any trade or commerce.” KRS § 367.170. To that end,
the KCPA provides a private right of action for any person who (1) purchases or leases
goods or services (2) for personal, family or household purposes and (3) is injured as
a result of a seller’s prohibited practice or act. KRS § 367.220(1). 8
Champion argues that the KCPA requires privity. (Doc. 32 at 12–14). Plaintiffs
disagree and cite to a handful of federal district court cases. (Doc. 35 at 10). The Court
agrees with Champion. “An action under the KCPA requires privity of contract
between the parties.” PNC Bank, N.A. v. Merenbloom, Nos. 15-6361, 16-5277, 2017
WL 3973962, at *3 (6th Cir. June 16, 2017) (citing Skilcraft Sheetmetal, Inc. v. Ky.
Mach., Inc., 836 S.W.2d 907, 909 (Ky. Ct. App. 1992)). Simpson’s KCPA claim
therefore fails because she lacks privity with Champion.

8

In pertinent part, KRS § 367.220(1) states:
“Any person who purchases or leases goods or services primarily for
personal, family or household purposes and thereby suffers any
ascertainable loss of money or property, real or personal, as a result of
the use or employment by another person of a method, act or practice
declared unlawful by KRS 367.170, may bring an action . . . to recover
actual damages. The court may, in its discretion, award actual damages
and may provide such equitable relief as it deems necessary or proper.
Nothing in this subsection shall be construed to limit a person’s right to
seek punitive damages where appropriate.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
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Skilcraft is the seminal Kentucky case interpreting the scope of KRS § 367.220.
The Skilcraft court concluded that:
[A] subsequent purchaser may not maintain an action against a seller
with whom he did not deal or who made no warranty for the benefit of
the subsequent purchaser. The language of the statute plainly
contemplates an action by a purchaser against his immediate
seller. . . The legislature intended that privity of contract exist
between the parties in a suit alleging a violation of the
Consumer Protection Act. We find distinguishable situations such as
that presented in Ford Motor Co. v. Mayes, Ky. App., 575 S.W.2d 480
(1978), where the defendant (Ford Motor Company) provides warranties
to the ultimate purchaser to repair the item purchased.
836 S.W.2d at 909 (emphasis added).
Despite the clear holding in Skilcraft requiring privity, one district court,
Naiser v. Unilever United States, Inc., 975 F. Supp. 2d 727 (W.D. Ky. 2013), broke
ranks in 2013. Id. at 743 (citing Skilcraft, 836 S.W.2d at 909). Naiser interpreted the
last sentence of the above excerpt from Skilcraft and held that a plaintiff may also
bring a KCPA claim where a defendant has “made valid express warranties for
Plaintiffs’ benefit.” Naiser, 975 F. Supp. at 743; see id. at 740.
Naiser overextends the intent of the Kentucky legislature and the holding in
Skilcraft. Indeed, only a few courts have followed Naiser. Bosch v. Bayer Healthcare
Pharms., Inc., 13 F. Supp. 3d 730, 750–51 (W.D. Ky. 2014); Miller v. Coty, Inc., No.
3:14-cv-00443, 2018 WL 1440608, at *14 (W.D. Ky. Mar. 22, 2018). 9

9

Simpson also cites to Stafford v. Cross Country Bank, 262 F. Supp. 2d 776, 793 (W.D.
Ky. 2003), a pre-Naiser case holding that the lack of privity in the technical sense
did not foreclose plaintiffs’ KCPA claim. But Stafford has no application here. In
Simpson et al. v. Champion Petfoods USA, Inc. et al.
14

“[W]here a state appellate court has resolved an issue to which the high court
has not spoken,” the Sixth Circuit instructs courts to “treat [those] decisions . . . as
authoritative absent a strong showing that the state’s highest court would decide the
issue differently.” Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d 445, 448 n.3 (6th
Cir. 2000) (citation and internal quotation marks omitted). Here, nothing suggests
that the Kentucky Supreme Court would apply any rule other than that which is
stated in Skilcraft. This Court therefore declines to follow Naiser and will instead
adhere to Skilcraft.
Indeed, after Skilcraft, numerous Kentucky Courts of Appeals have cited
Skilcraft and interpreted the text of the KCPA “to mean that an individual must be
a purchaser with privity of contract in order to have standing to bring an action under
the [KCPA].” E.g., Williams v. Chase Bank USA, N.A., 390 S.W.3d 824, 829 (Ky. Ct.
App. 2012); Arnold v. Microsoft Corp., No. 2000-CA-002144, 2001 WL 1835377, at *7
(Ky Ct. App. Nov. 21, 2001); Potter v. Bruce Walters Ford Sales, Inc., 37 S.W.3d 210,
213 (Ky. Ct. App. 2000); Keaton v. G.C. Williams Funeral Home, Inc., 436 S.W.3d 538,

Stafford, an individual had obtained a credit card in the plaintiff’s name through
the defendant-bank, and the bank then proceeded to use “phony” representations
and “incessant” tactics to collect the debt incurred. Id. at 779–81. The conclusion
that privity was not necessary was premised primarily on “the Bank’s own
continued assumption of privity” and the fact that “for all practical purposes
[plaintiff] was treated as [an immediate purchaser].” Id. at 793. In contrast,
Champion has never claimed to be in privity with Plaintiffs and the facts here bear
no resemblance to the circumstances in Stafford.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
15

546 (Ky. Ct. App. 2013) (“Claims may only be brought under the KCPA by individuals
who personally purchase goods or services from a merchant.”).
The Sixth Circuit and the majority of the federal district courts have also
followed suit in holding that privity is required under the KCPA. See, e.g., Yonts v.
Easton Tech. Prods., Inc., 676 F. App’x 413, 420 (6th Cir. 2017) (rejecting the
argument that a second-hand purchaser may sue a manufacturer because “[i]f a
consumer so far removed from the manufacturer could claim express-warranty or
KCPA protection, . . . [the statutory] limitations would be meaningless”); Merenbloom,
2017 WL 3973962, at *3 (6th Cir. June 16, 2017). 10 Thus, Naiser is an outlier. 11
Here, Simpson is not in privity with Champion. Simpson did not purchase dog
food products from Champion. Rather, as the Complaint plainly states, Simpson
“purchased Orijen dry dog food products . . . from various pet food stores” in Kentucky.
(Doc. 29, ¶ 6). Because Simpson’s allegations do not involve “an action by a purchaser

10

See, e.g., McIntosh v. E-Backgroundchecks.com, Inc., No. 5:12-310-DCR, 2013 WL
1187038, at *5 (E.D. Ky. Mar. 20, 2013); Day v. Fortune Hi-Tech Marketing, Inc.,
No. 10-cv-305-GFVT, 2014 WL 4384443, at *9 (E.D. Ky. Sept. 3, 2014) (collecting
additional cases); Morcus v. Medi-Copy Servs., 2017 U.S. Dist. LEXIS 195485, at
*19 (E.D. Ky. Nov. 28, 2017); House v. Bristol-Myers Squibb Co., No. 3:15-CV00894JHM, 2017 WL 55876, at *7 (W.D. Ky. Jan. 4, 2017).

11

To the extent there is any merit to the reasoning in Naiser, this is not a case where
a defendant made a warranty “to the ultimate purchaser to repair the item
purchased.” Skilcraft, 836 S.W.2d at 909; cf. Naiser, 975 F. Supp. 2d at 743.
Moreover, as detailed below, there is a substantial difference between the
representations in this case and those at issue in Naiser. See infra Part II.C.ii.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
16

against his immediate seller,” Simpson lacks privity of contract. Therefore, Simpson
has no claim under the KCPA. Count I accordingly will be dismissed with prejudice.
B.

The Virginia Consumer Protection Act (“VCPA”) (Count II)

The VCPA prohibits “fraudulent acts or practices committed by a supplier in
connection with a consumer transaction.” Va. Code. § 59.1-200(A). A “supplier” is
defined by the VCPA to include “a seller . . . or a manufacturer, . . . who advertises
and sells, . . . goods or services to be resold . . . by other persons in consumer
transactions.” Va. Code § 59.1-198(C) (emphasis added). The VCPA therefore applies
to Lolles’ manufacturer-consumer relationship with Champion.
To state a claim under the VCPA, a plaintiff must allege: “(1) fraud, (2) by a
supplier, (3) in a consumer transaction.” Enomoto v. Space Adventures, Ltd., 624 F.
Supp. 2d 443, 456 (E.D. Va. 2009). In misrepresentation cases, a plaintiff must also
prove “the elements of reliance and damages.” Owens v. DRS Auto. Fantomworks,
Inc., 764 S.E.2d 256, 260 (Va. 2014); Curtis v. Propel Prop. Tax Funding, LLC, No.
3:16-cv-00731-JAG, 2018 WL 717006, at *3 (E.D. Va. Feb. 5, 2018). 12 All of these
elements must be pled with particularity in accordance with Fed. R. Civ. P. 9(b); that
is, a plaintiff must state “the time, place, and contents of the false representations,
as well as the identity of the person making the misrepresentation and what he

12

The VCPA, however, “does not require the consumer to prove in every case that
misrepresentations were made knowingly or with the intent to deceive.” Owens,
764 S.E.2d at 260.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
17

obtained thereby.” Wynn’s Extended Care, Inc. v. Bradley, 619 F. App’x 216, 220 (4th
Cir. 2015) (citation and internal quotation marks omitted).
Defendants contend Lolles has failed to allege reliance. Here, Lolles alleges she
purchased Champion’s products “because she believed they were healthy, quality
products for her pet” and otherwise would not have done so “if she was aware that
the representations of Champion” were “false and deceptive.” (Doc. 29, ¶ 7). This
allegation, coupled with the specific statements Lolles identified on the package label
and the allegations regarding how these statements constitute misrepresentations,
is sufficient to satisfy the demands of Rule 9. Id. at ¶¶ 13–30. Accordingly, Count II
stands.
C.

Simpson’s Breach of Express Warranty Claim (Count III)

Express warranties are created under Kentucky law by: (1) an “affirmation of
fact or promise” or “description of the goods”; (2) “made by the seller to the buyer”;
(3) “which relates to the goods”; and (4) “becomes part of the basis of the bargain.”
KRS § 355.2-313 (emphasis added). For a representation to be actionable as an
express warranty, the seller’s affirmations must rise to “something more than
ordinary puffing, sales talk, or expressions of opinion.” Biszantz v. Thoroughbreds,
620 F. App’x 535, 541 (6th Cir. 2015); Overstreet v. Norden Laboratories, Inc., 669
F.2d 1286, 1290 (6th Cir. 1982); KRS § 355.2-313(2) (“[A]n affirmation merely of the
value of the goods or a statement purporting to be merely the seller’s opinion or
commendation of the goods does not create a warranty.”). The test is “whether the
Simpson et al. v. Champion Petfoods USA, Inc. et al.
18

seller assumes to assert a fact of which the buyer is ignorant, or whether he merely
states an opinion or expresses a judgment about a thing as to which they may each
be expected to have an opinion and exercise a judgment.” Overstreet, 669 F.2d at
1290–91 (quoting Wedding v. Duncan, 220 S.W.2d 564, 567 (Ky. 1949)).
The defect in Count III is not whether Champion’s package label constitutes
puffery or a commendation of the goods. The problem, again, is that Simpson’s breach
of warranty claim is foreclosed by the privity requirement under Kentucky law.
i.

Simpson Lacks Privity

The Sixth Circuit in applying Kentucky law succinctly summarized the privity
requirement in warranty claims:
Under Kentucky law, liability for breach of warranty is governed by the
terms of the contract and statutory provisions of Kentucky’s Uniform
Commercial Code. Williams v. Fulmer, 695 S.W.2d 411, 413 (Ky. 1985).
[Where] there [i]s no contract between the [parties], Kentucky Revised
Statute § 355.2-318 controls [the] cause of action. Under this statute,
claims for breach of express or implied warranties may proceed
only where there is privity between the parties. Real Estate Mktg.
v. Franz, 885 S.W.2d 921, 926 (Ky. 1994).
Waterfill v. Nat’l Molding Corp., 215 F. App’x 402, 405 (6th Cir. 2007) (emphasis
added) (holding that “privity existed only between [defendant] and its distributors,
who were the immediate purchasers of its [product].”). This statement of the law is
underscored by the standards pronounced in the cases the Waterfill Court cited.
In Williams v. Fulmer, the Kentucky Supreme Court explained that “[i]f
liability is based on sale of the product, it can be extended beyond those persons in

Simpson et al. v. Champion Petfoods USA, Inc. et al.
19

privity of contract only by some provision of the U.C.C. as adopted in Kentucky.” 695
S.W.2d at 413. “The only provision of the U.C.C. extending breach of warranty,” the
court continued, “is KRS 355.2-318” and it applies “in injury cases.” 695 S.W.2d at
413. 13 Although the claims in Williams stemmed from an allegedly defective
motorcycle helmet that was worn by the passenger in a fatal accident, id. at 412, the
court concluded that warranty claims “are limited to the purchaser and to ‘any
natural person who is in the family or household of [the] buyer or who is a guest in
his home.’” Id. at 414 (quoting KRS § 355.2-318). The Court was emphatically clear
that it had “no precedent for changing statutory law by court decision as we do for
common law negligence rules” and “no precedent for abolishing privity where liability
is based on the sales contract.” Id.
Then, in Real Estate Mktg. v. Franz, 885 S.W.2d 921 (Ky. 1994), the Kentucky
Supreme Court declined to follow other states that had abolished the privity
requirement, and instead, reaffirmed the privity requirement in a purely commercial

13

In pertinent part, KRS § 355.2-318, titled “Third party beneficiaries of
warranties express or implied,” states:
A seller’s warranty whether express or implied extends to any natural
person who is in the family or household of his buyer or who is a guest
in his home if it is reasonable to expect that such person may use,
consume or be affected by the goods and who is injured in person by
breach of the warranty.
KRS § 355.2-318 (emphasis added).
Simpson et al. v. Champion Petfoods USA, Inc. et al.
20

case. Id. at 925–26. There, defendant built a home and sold it; the purchasers then
sold the home to plaintiffs. Id. at 922. When plaintiffs noticed mold, mildew, and
warped flooring, they sued the defendant-homebuilder. Id. Citing to Williams v.
Fulmer, the Franz Court rejected plaintiffs’ breach of warranty claim and stated the
following:
[T]his Court is not prepared, as a matter of judicial policy, to extend the
theory of a warranty implied in law beyond the kind of warranty
statutorily created in Kentucky’s version of the U.C.C. A step of this
nature is a public policy to be decided by the legislature. We find no
public policy to extend warranty protection in the U.C.C.
Id. at 926. The court’s holding is unequivocal.
Here, as noted above, it is clear from the face of the Complaint that Simpson
lacks privity. Moreover, Simpson cannot shoehorn her warranty claim into the
broader protections under KRS § 355.2-318 because this is not a personal injury case,
and even if it was, Simpson does not qualify as a “person who is in the family or
household of [the] buyer or who is a guest in his home.” KRS § 355.2-318. To be clear,
Simpson does not allege any harm to her pets. Nor does she claim that she purchased
a bag of dog food containing any of the alleged impurities (e.g., hair, insects, livestock
tags). Rather, she alleges Champion misrepresented its dog food as a high-quality
product containing “fresh,” “raw,” “regional” ingredients when in reality it contains
undisclosed heavy metals and contaminants. Indeed, according to Simpson, she was
harmed because the products she paid for and received were “less valuable than as
marketed and represented to them and other consumers.” (Doc. 29, ¶ 3) (emphasis
Simpson et al. v. Champion Petfoods USA, Inc. et al.
21

added). Assuming this to be true, Simpson nonetheless lacks privity and therefore
Count III must be dismissed.
ii.

The Naiser Case

In support of her breach of warranty claim, Simpson again urges this Court to
follow Naiser, (Doc. 35 at 12–13), which allowed a breach of express warranty claim
to go forward despite that privity was absent. 975 F. Supp. 2d at 738–40. There, the
plaintiffs alleged they purchased a hair straightening product from Rite-Aid and
Target that caused “hair loss” and “scalp burns.” Id. at 731–32. The label on the
product represented that (1) the product was a “smoothing” treatment; (2) its effects
would last “up to 30 days” when in reality the “effects could be expected to last for
months”; and (3) the product contained “no formaldehyde” when in fact it contained
“a chemical that is known to release formaldehyde” upon its use. 975 F. Supp. 2d at
734, 741. For several reasons, this Court will not follow Naiser.
First, Naiser is readily distinguishable by its facts. There, the plaintiffs
suffered personal injuries, whereas Simpson’s alleged injury is purely economic.
Moreover, in contrast to the misrepresentations in Naiser, here, the package label
does not contain any variant of the phrase “no heavy metals.” But that is the core
premise of Simpson’s claim. To reach the result Simpson urges the Court to reach,
one must read more information into the package labeling than what it states. See
Strayhorn v. Wyeth Pharms., Inc., 737 F.3d 378, 395 (6th Cir. 2013) (finding no merit
to express-warranty claims where plaintiff attacked adequacy of drug label, rather
Simpson et al. v. Champion Petfoods USA, Inc. et al.
22

than a false affirmation).
Second, Naiser is based on an unsupported extension of Kentucky law. Naiser
cited to two of the same cases discussed above, Waterfill v. Nat’l Molding Corp., 215
F. App’x 402, 405 (6th Cir. 2007) and Williams v. Fulmer, 695 S.W.2d 411 (Ky. 1985),
but ignored Real Estate Mktg. v. Franz, 885 S.W.2d 921 (Ky. 1994). See Naiser, 975
F. Supp. 2d at 738, 740. Naiser erroneously assumed that because “Kentucky courts
have not considered any cases involving direct representations to consumers,” it was
authorized to proceed to “consider how other jurisdictions have dealt with such
promises.” Id. at 739–40. In doing so, the Naiser Court disregarded a clear statement
of Kentucky law in binding precedent simply because the cases were not factually
identical.
Lastly, Naiser grossly misapprehended three cases applying Kentucky law.
975 F. Supp. 2d at 738–40. The three cases being Levin v. Trex Co., Inc., No. 3:10-cv692–CRS, 2012 WL 7832713 (W.D. Ky. Mar. 5, 2012); Williams v. Volvo-White, 2003
WL 22681457 (Ky. App. Nov. 14, 2003); and Gooch v. E.I. Du Point de Nemours & Co.,
40 F. Supp. 2d 863 (W.D. Ky. 1999).
In the first case, Levin v. Trex Co., Inc., a consumer purchased decking
materials from a retailer and later sued the manufacturer, alleging breach of express
warranty. The warranty at issue was provided by the manufacturer and explicitly
stated that it ran to the “‘individual residential homeowner’ purchasing the product”
and that “[t]his warranty gives you specific legal rights.” 2012 WL 7832713, at *2
Simpson et al. v. Champion Petfoods USA, Inc. et al.
23

(W.D. Ky. Mar. 5, 2012). The district court noted that while Kentucky law normally
requires buyer-seller privity to maintain a cause of action for breach of warranty, it
“anticipate[d] that Kentucky courts would hold that an express warranty action could
be maintained in [a] case, where the manufacturer’s written warranty
expressly stated that its warranty ran directly to the intended consumer,
the ‘individual residential homeowner.’” Id. at *3. Thus, Levin held that plaintiff’s
claim could proceed “based on Plaintiff's position as the expressly intended
beneficiary of the warranty issued by Defendant.” Id. at *4.
In Naiser, however, the defendant had made no representation comparable to
that in Levin, i.e., that its warranties ran directly to the intended consumer. Yet the
Naiser court expanded Levin’s rationale to embrace cases where the “express
warranties were clearly intended for the product’s consumers,” even if the warranties
did not “expressly state that they run directly to the intended consumers.” 975 F.
Supp. 2d at 739–40. This Court disagrees.
The second case, Williams v. Volvo-White, No. 2002-CA-001469-MR, 2003 WL
22681457, at *3 (Ky. App. Nov. 14, 2003), involved used trucks the plaintiff had
purchased. Id. at *1. The Kentucky Court of Appeals assumed that plaintiff had
privity as a subsequent purchaser so as to limit the extent of the manufacturer’s
warranty, which stated that the buyer’s remedy is “limited to repair or replacement
of the part or component which is determined defective in normal use.” Id. at *3. But
Naiser leveraged Williams to expand, rather than limit, the scope of liability.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
24

Finally, in Gooch v. E.I. Du Point de Nemours & Co., 40 F. Supp. 2d 863 (W.D.
Ky. 1999), plaintiff used a herbicide he had purchased from a retailer, which allegedly
caused plaintiff’s corn not to produce. Id. at 865–67. In addition to the product label,
which stated that DuPont warranted the product to be “reasonably fit for the purpose
stated in the Directions for Use,” plaintiff had “engaged in several conversations with
DuPont’s field representative . . . who informed him that [the product] was a good
product to control rhizome johnson grass.” Id. at 866–67. The court held that the
disclaimers on the label did not exclude DuPont’s warranty that the product was
“reasonably fit” for the intended purpose of “control[ing] johnson grass . . . without
harming the crop upon which it is applied.” Id. at 869. Gooch does not contain the
word “privity,” much less any discussion of Kentucky’s privity requirement. Naiser
acknowledges as much in citing Gooch and included the parenthetical: “not discussing
the privity requirement, but applying Kentucky law and allowing an express
warranty action by a consumer against a manufacturer where no buyer-seller
relationship existed but the consumer relied on warranties that were made by the
manufacturer on the product’s label.” 975 F. Supp. 2d at 740.
In short, Naiser is not supported by binding precedent and is premised on
overly broad interpretations of other cases applying Kentucky law. Principles of
federalism, therefore, dictate that Naiser should not be followed.
“When sitting in diversity jurisdiction, this court must follow the controlling
decision of the [forum’s] highest state court. But if the ‘state’s highest court has not
Simpson et al. v. Champion Petfoods USA, Inc. et al.
25

spoken on a precise issue,’ this court must follow a decision of the state appellate
court, published or unpublished, ‘unless it is convinced by other persuasive data that
the highest court of the state would decide otherwise.’” E.g., Am. Tooling Ctr., Inc. v.
Travelers Cas. & Sur. Co. of Am., 895 F.3d 455, 460 n.1 (6th Cir. 2018) (quoting
Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 517 (6th Cir. 2001)); see Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 76–79 (1938); AllState Ins. Co. v. Thrifty Rent-A-Car Sys.,
Inc., 249 F.3d 450, 454 (6th Cir. 2001). The Sixth Circuit’s repeated admonition in
this area has long been the following:
[F]ederal courts “must proceed with caution” when making
pronouncements about state law. Sitting in diversity, [courts] are “not
commissioned to take a position regarding the advisability or fairness of
the state rule to be applied, but must determine the issue as would the
highest court of the state.” [A] [c]ourt’s proper reluctance to speculate on
any trends of state law applies with special force to a plaintiff in a
diversity case, like this one, who has chosen to litigate his state law
claim in federal court. Furthermore, “when given a choice between
an interpretation of [state] law which reasonably restricts
liability, and one which greatly expands liability, [courts]
should choose the narrower and more reasonable path.”
Combs v. Int’l Ins. Co., 354 F.3d 568, 577 (6th Cir. 2004) (emphasis added); id. at 577–
78 (“[F]ederal courts sitting in a diversity case are in ‘a particularly poor position . . .
to endorse [a] fundamental policy innovation . . . . Absent some authoritative signal
from the legislature of the courts of [the state], we see no basis for even considering
the pros and cons of innovative theories . . . .” (alterations in original) (quoting Dayton
v. Peck, Stow & Wilcox Co. (Pexto), 739 F.2d 690, 694 (1st Cir. 1984)). Naiser did not
adhere to these principles of federalism.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
26

In the interest of federal-state comity, the Court finds that the appropriate
course is to decline to expand Kentucky law based on speculation regarding trends in
the law and perceptions of fairness. As such, the Kentucky Supreme Court’s strict
application of the privity requirement applies here.
Accordingly, because Simpson is not in privity with Champion, Simpson’s
express warranty claim (Count III) must be dismissed. Waterfill, 215 F. App’x at 405
(holding that “privity existed only between [defendant] and its distributors, who were
the immediate purchasers of its [product].”); see also Loeb v. Champion Petfoods USA,
Inc., No. 18-cv-494, 2018 WL 2745254, at *8 (E.D. Wisc. Aug. 7, 2018) (dismissing
class action express warranty claim on a motion to dismiss because Wisconsin law
required privity). 14
D.

Lolles’ Breach of Express Warranty Claim (Count IV)

Unlike Kentucky, Virginia has abolished the privity requirement in actions
“resulting from negligence” (Va. Code § 8.01-223) and actions involving the sale of

14

Loeb v. Champion Petfoods USA, Inc., No. 18-cv-494, 2018 WL 2745254 (E.D. Wisc.
Aug. 7, 2018) is one of at least sixteen (16) class actions in the United States
(including this one) filed against Champion in 2018. Vado v. Champion Petfoods
USA, Inc., No. 18-cv-07118-JCS, 2019 WL 634644, at *2 n.2 (N.D. Cal. Feb. 14,
2019) (collecting cases). The allegations in Loeb are virtually identical to the
Complaint in this case. At the motion to dismiss stage in Loeb, the court allowed
the Wisconsin deceptive trade practices claim to proceed, 2018 WL 2745254 at *6,
but dismissed plaintiffs’ claim under the Wisconsin administrative code, id. at *7,
and dismissed plaintiffs’ express warranty claim because Wisconsin law requires
privity as an element. id. at *8. Loeb, however, was recently dismissed in its entirety
on summary judgment. 359 F. Supp. 3d 597, 605–06 (E.D. Wisc. 2019).
Simpson et al. v. Champion Petfoods USA, Inc. et al.
27

goods. Va. Code § 8.2-318. The latter, as relevant here, provides that:
Lack of privity between plaintiff and defendant shall be no defense in
any action brought against the manufacturer or seller of goods to recover
damages for breach of warranty, express or implied, or for negligence,
although the plaintiff did not purchase the goods from the defendant, if
the plaintiff was a person whom the manufacturer or seller might
reasonably have expected to use, consume, or be affected by the goods .
..
Va. Code § 8.2-318. That statute effectively “preserves for remote users the
warranties already enjoyed by an immediate purchaser.” Buettner v. R. W. Martin &
Sons, 47 F.3d 116, 118 (4th Cir. 1995).
Express warranties are created as provided in Va. Code § 8.2-313, which
mirrors KRS § 355.2-313. Virginia law holds that “whether a particular affirmation
of fact made by the seller constitutes an express warranty is generally a question of
fact.” Bayliner Marine Corp. v. Crow, 509 S.E.2d 499, 502 (Va. 1999); Benedict v.
Hankook Tire Co., 295 F. Supp. 3d 632, 653 (E.D. Va. 2018). Therefore, Count IV
survives Champion’s motion to dismiss.
E.

Breach of Implied Warranty (Count V)

Under Virginia and Kentucky law, “a warranty that the goods shall be
merchantable is implied in a contract for their sale if the seller is a merchant with
respect to goods of that kind.” KRS § 355.2-314(1); Va. Code § 8.2-314(1). For goods
to be merchantable, they must, in relevant part: (1) “pass without objection in the
trade under the contract description”; (2) be “of fair average quality within the
description”; (3) be “fit for the ordinary purposes for which such goods are used”; and
Simpson et al. v. Champion Petfoods USA, Inc. et al.
28

(4) “conform to the promises or affirmations of fact made on the container or label if
any.” KRS § 355.2-314(2); Va. Code § 8.2-314(2). In Virginia, the implied warranty of
merchantability “runs from the seller to the purchaser and then through the
purchaser to the ultimate user.” Goodbar v. Whitehead Bros., 591 F. Supp. 552, 567
(E.D. Va. 1984), aff'd sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985). 15
With respect to Lolles’ implied warranty claim, at this preliminary stage it
cannot be said that Champion’s products, in fact, “conform to the promises or
affirmations of fact made on the container or label . . .” Va. Code § 8.2-314(2). As such,
Lolles’ claim cannot be dismissed at this time.
On the other hand, Simpson’s implied warranty claim must be dismissed under
Kentucky law for lack of privity. Kentucky law is clear that a plaintiff alleging “a
claim based upon an implied warranty must establish that [they] enjoyed privity of
contract with the defendant-seller against whom the implied warranty claim is
asserted.” Sims v. Atrium Medical Corp., No. 4:17-cv-00160, 2018 WL 4997049, at *7
(W.D. Ky. Oct. 15, 2018) (quoting Brown Sprinkler Corp. v. Plumbers Supply Co., 265

15

There is one exception: “[P]rivity is required for a plaintiff to recover on a breach of
implied warranty of merchantability claim for consequential economic loss
damages” in a negligence action. Robert’s Farm Equip., Inc. v. William Hackett
Chains, Ltd., No. 1:10-cv-00282, 2011 U.S. Dist. LEXIS 4851, at *12, *15–17 (E.D.
Va. Jan. 4, 2011) (discussing Beard Plumbing and Heating v. Thompson Plastics,
Inc., 491 S.E.2d 731, 320–21 (Va. 1997); and Pulte Home Corp. v. Parex, Inc., 579
S.E.2d 188, 191–93 (Va. 2003)). That exception is not implicated here because this
is not a negligence action.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
29

S.W.3d 237, 240 (Ky. App. 2007) (citing Compex Int’l Co., Ltd. v. Taylor, 209 S.W.3d
462, 465 (Ky. 2006))); Waterfill, 215 F. App’x at 405 (“[C]laims for breach of express
or implied warranties may proceed only where there is privity between the
parties.” (emphasis added)).
Even if this Court were to follow Naiser with respect to Simpson’s breach of
express warranty claim, the holding in Naiser “had no impact on the privity of
contract requirement with respect to implied warranty causes of action.” Bosch v.
Bayer Healthcare Pharms., Inc., 13 F. Supp. 3d 730, 749 (W.D. Ky. 2014); cf. supra
Part II.C.ii. As such, implied warranties in Kentucky do not extend beyond the buyerseller relationship. Compex, 209 S.W.3d at 465; Bosch, 13 F. Supp. 3d at 748.
Compex is the last word from the Kentucky Supreme Court on the issue of
privity in implied warranty claims. In Compex, the Kentucky Supreme Court was
clear that privity is a strict requirement for implied warranty claims. There, the court
considered an implied warranty claim against the manufacturer of a chair plaintiffs
had purchased from a retailer, K-Mart. 209 S.W.3d at 463. The court rejected a
myriad of policy arguments and underscored that the Kentucky “legislature expressly
established the privity requirement.” Id. at 465 (citing Commonwealth ex rel. Cowan
v. Wilkinson, 828 S.W.2d 610, 614 (Ky. 1992) (“It is beyond the power of a court to
vitiate an act of the legislature on the grounds that public policy promulgated therein
is contrary to what the court considers to be in the public interest.”)). In the end, the
Kentucky Supreme Court reversed the court of appeals, and dismissed the implied
Simpson et al. v. Champion Petfoods USA, Inc. et al.
30

warranty claim because the plaintiffs had not purchased the chair directly from
Compex. Id. at 463, 465; see also Bridgefield Cas. Ins. Co. v. Yamaha Motor Mfg. Corp.
of Am., 385 S.W.3d 430, 434 (Ky. Ct. App. 2012) (following the rule in Compex).
Here, as in Compex, there is no dispute that Simpson purchased Champion’s
products at various retail stores, and thus no buyer-seller relationship exists. (Doc.
29, ¶ 6). The cases Simpson cites to support the proposition that privity is not required
all involved Michigan law, and therefore are inapplicable. (Doc. 35 at 19). This is
because Kentucky law is well-settled: An implied warranty claim cannot proceed
where privity is absent.
Accordingly, the Court will dismiss Simpson’s claim under Count V.
F.

Fraudulent Omission (Count VI)

In Count VI, Plaintiffs assert a fraudulent omission claim on the basis that
Champion represented its products as containing ingredients that are “fresh or raw
and preservative free” but knew and failed to disclose that the dog food is
“contaminated with excessive quantities of arsenic, lead, cadmium, and mercury.”
(Doc. 29, ¶¶ 89–91, 93).
“Fraud by omission is not the same, at law, as fraud by misrepresentation, and
has substantially different elements” because fraud by omission “is grounded in a
duty to disclose.” Giddings & Lewis, Inc. v. Indus. Risk Insurers, 348 S.W.3d 729, 747
(Ky. 2011) (citation and internal quotation marks omitted). A fraudulent omission

Simpson et al. v. Champion Petfoods USA, Inc. et al.
31

claim, however, must still be pled in accordance with Fed. R. Civ. P. 9(b). 16
The required elements to state a claim for fraudulent omission under
Kentucky and Virginia law are almost identical. 17 Under Kentucky law, a plaintiff
must show: (1) “a duty to disclose the material fact at issue”; (2) failure to disclose;
(3) reliance; and (4) damages. Morris Aviation, LLC v. Diamond Aircraft Indus., 536
F. App’x 558, 568 (6th Cir. 2013) (quoting Giddings, 348 S.W.3d at 747). Virginia law
requires the same. 18 Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 629 (4th
Cir. 1999) (noting that under Virginia law, “silence does not constitute fraud in the

16

“To comport with Rule 9(b) for a fraudulent omission claim, a plaintiff must plead:
‘(1) precisely what was omitted; (2) who should have made a representation; (3) the
content of the alleged omission and the manner in which the omission was
misleading; and (4) what [the fraudfeasor(s)] obtained as a consequence of the
alleged fraud.’” RQSI Global Asset Allocation Master Fund, Ltd. v. Aperçu Int’l PR
LLC, 683 F. App’x 497, 505 (6th Cir. 2017) (quoting Republic Bank & Trust Co. v.
Bear Stearns & Co., 683 F.3d 239, 256 (6th Cir. 2012)).

17

Virginia law “recognizes ‘concealment,’ otherwise known as fraud by omission.”
White v. Potocska, 589 F. Supp. 2d 631, 642 (E.D. Va. 2008) (citing Bank of Montreal
v. Signet Bank, 193 F.3d 818, 826 (4th Cir. 1999)).

18

Under Virginia law, “fraud by omission requires the [plaintiff] to prove by clear and
convincing evidence (1) that the [defendant] deliberately concealed a material fact
with intent to prevent the [plaintiff] from learning the truth, (2) that the
[defendant] knew that the [plaintiff] [was] acting upon the assumption that the
fact does not exist, and (3) that the [defendant] had a duty to disclose that fact.”
Kuhn v. Visnic Homes, Inc., No. 1:16-cv-440, 2017 WL 2226718, at *9 (E.D. Va.
May 22, 2017) (citing, e.g., Norris v. Mitchell, 495 S.E.2d 809, 812–13 (Va. 1998)).
“In all cases of fraud the plaintiff must prove that it acted to its detriment in actual
and justifiable reliance on the defendant’s misrepresentation (or on the assumption
that the concealed fact does not exist).” Bank of Montreal, 193 F.3d at 827.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
32

absence of a duty to disclose” and fraud by omission “always involves deliberate
nondisclosure designed to prevent another from learning the truth”).
Whether there exists “a duty to disclose is a matter of law for the court.”
Giddings, 348 S.W.3d at 747 (citing, inter alia, Restatement (Second) of Torts § 551
cmt. m (1977)). Plaintiffs’ claim is doomed because Champion was under no duty to
disclose the presence of naturally occurring heavy metals in its products.
Kentucky recognizes a duty to disclose in only four circumstances: “1) fiduciary
relationship; 2) statutory requirement; 3) ‘when a defendant has partially disclosed
material facts to the plaintiff but created the impression of full disclosure’; and 4)
‘where one party to a contract has superior knowledge and is relied upon to disclose
same.’” Morris, 536 F. App’x at 568 (quoting Giddings, 348 S.W.3d at 747–48).
Virginia law imposes a duty to disclose in similar limited circumstances. 19
Here, Plaintiffs allege Champion “had a fiduciary duty to disclose” because it

19

A duty to disclose may arise under Virginia law in the following situations: “(1) if
the fact is material and the one concealing has superior knowledge and knows the
other is acting upon the assumption that the fact does not exist”; “(2) if one party
takes actions which divert the other party from making prudent investigations (e.g.,
by making a partial disclosure)” but “[o]bviously, the concealment itself cannot
constitute one of these diversionary actions—then there would always be a duty to
disclose,” Bank of Montreal, 193 F.3d at 829 & n.8; or (3) if “some fiduciary or
confidential relationship . . . exist[s] between the parties.” Western Capital Partners,
LLC v. Allegiance Title & Escrow, Inc., 520 F. Supp. 2d 777, 782 (E.D. Va. 2007);
see also TC Tech Mgt. Co. v. Ceeks on Call America, Inc., No. 2:03–CV–714–RAJ,
2004 WL 5154906, at *5 (E.D. Va. Mar. 24, 2004) (noting that a statutory duty to
disclose may also exist).
Simpson et al. v. Champion Petfoods USA, Inc. et al.
33

was “in a superior position of knowledge of the true state of the facts” regarding its
products. (Doc. 29, ¶ 92). The Court disagrees.
First, Plaintiffs are conflating two separate scenarios that give rise to a duty
to disclose. Second, although Plaintiffs allege that a fiduciary duty exists, courts “are
not bound to accept as true a legal conclusion couched as a factual allegation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks
omitted). Indeed, Plaintiffs’ legal conclusion is absurd. “[T]he duty arising from a
confidential or fiduciary relationship or a duty provided by statute, are plainly
inapplicable to the commercial sales transaction in this case.” Giddings, 348 S.W.3d
at 747–48. And “courts have been careful not to apply the other three circumstances
so broadly as to transform everyday, arms-length business transactions into fiduciary
relationships.” Morris, 536 F. App’x at 568 (citations and internal quotation marks
omitted) (observing inter alia, that under Kentucky law, the “superior knowledge”
duty requires privity). 20 Otherwise, every manufacturer of the products at the local

20

As to any duty that might arise pursuant to the other available options under
Virginia law, first, the Complaint fails to state facts satisfying Rule 9(b) that show
Champion made “a knowing and a deliberate decision not to disclose a material fact”
(i.e., the existence of heavy metals in Champion’s dog food). Norris v. Mitchell, 495
S.E.2d 809, 812 (Va. 1998); see Bank of Montreal, 193 F.3d at 829. Second, the
Complaint is bereft of any allegation that Champion took “actions [to] divert [Lolles]
from making prudent investigations (e.g., by making a partial disclosure)” and
“[o]bviously, the concealment itself cannot constitute one of these diversionary
actions—then there would always be a duty to disclose.” Bank of Montreal, 193 F.3d
at 829.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
34

grocer would be in a fiduciary relationship with every consumer.
That leaves Plaintiffs’ argument that Champion’s package labeling “created
the impression of full disclosure.” (Doc. 35 at 21–22). But the representations on
Champion’s packaging are not the type of “partial disclosure” that gives rise to a duty
to disclose every facet of the product’s makeup. The fact that heavy metals naturally
exist in organic proteins and in high concentrations in fish, see FDA Diet Study, supra
note 4, belies Plaintiffs’ logic that Champion had a duty to disclose this information. 21
Champion did not claim that its products were free from any heavy metals and
any inference to the contrary reads too much into Champion’s representations.
Rather, Champion’s labeling conveys that its products are made from “biologically

21

Consider the following two tables. The first table is the data from the FDA Diet
Study and the second is the data from the White Paper. Both documents are cited
in the Complaint and the figures below have been converted from mg/kg to ug/kg
as stated in the Complaint, i.e., (mg/kg) x (1,000) = (ug/kg).
Chicken
Arsenic
3
Cadmium
0.3
Lead
0
Mercury
0

Arsenic
Cadmium
Lead
Mercury

Eggs
0
0
0.4
0.1

Salmon
Fillet
293
1
0
21

Turkey
6
0.1
0
0.1

Tuna (canned)
999
15
1
136

Champion’s Dog Food
890
90
230
20
Simpson et al. v. Champion Petfoods USA, Inc. et al.
35

Total
1301
16.4
1.4
157.2

appropriate,” “high quality ingredients fit for human consumption.” (Doc. 29, ¶¶ 16,
66, 74). But a “company is not required to volunteer [information] simply because it
makes statements about the high quality of its products and terms of its warranties.”
Morris, 536 F. App’x at 560, 569 (no duty to disclose the investigation of the company
and its financial problems when sales agents boasted of the “quality and reliability”
of its warranties in the course of plaintiff purchasing one of its airplanes, despite that
two weeks later the company declared bankruptcy and voided the warranties). Under
Plaintiffs’ theory, virtually any information not included on a package’s label would
amount to a failure to disclose.
Moreover, it is axiomatic that “mere silence does not constitute fraud where it
relates to facts open to common observation or discoverable by the exercise of ordinary
diligence, or where means of information are as accessible to one party as to the
other.” Giddings, 348 S.W.3d at 749 (quoting Bryant v. Troutman, 287 S.W.2d 918,
920–21 (Ky. 1956)). Here, Champion publicly published—on the internet—the “White
Paper” in May 2017, a year before this lawsuit was filed. Plaintiffs could readily have
discovered that publication, which discloses the concentration of heavy metals in
Champion’s dry dog food. In addition, the FDA Diet Study Plaintiffs cite in the
Complaint has been published since 2014, which clearly informs consumers that fish
contains high levels of mercury and arsenic.
Thus, by ordinary diligence and attention, Plaintiffs should have known that
anything containing fish might also contain high concentrations of heavy metals. “[I]t
Simpson et al. v. Champion Petfoods USA, Inc. et al.
36

is the [Plaintiffs’] own folly if [they] neglected to do so,” and therefore they are
“remediless.” Republic Bank & Trust Co. v. Bear Stearns & Co., 683 F.3d 239, 255
(6th Cir. 2012) (quoting Mayo Arcade Corp. v. Bonded Floors Co., 41 S.W.2d 1104,
1109 (Ky. 1931)); Harris v. Dunham, 127 S.E.2d 65, 73 (Va. 1962) (“The common law
affords to everyone reasonable protection against fraud in dealing, but does not go to
the romantic length of giving indemnity against the consequences of indolence and
folly, or a careless indifference to the ordinary and accessible means of information.”).
For all these reasons, Plaintiffs’ fraudulent omission claim fails.
G.

Unjust Enrichment (Count VII)

In Kentucky, to sustain a claim for unjust enrichment a plaintiff must
establish three elements: “(1) [a] benefit conferred upon defendant at plaintiff’s
expense; (2) a resulting appreciation of benefit by defendant; and (3) inequitable
retention of that benefit without payment for its value.” Superior Steel, Inc. v. Ascent
at Roebling’s Bridge, LLC, 540 S.W.3d 770, 778 (Ky. 2017) (quoting Furlong Dev. Co.
v. Georgetown-Scott Cty. Planning & Zoning Comm’n, 504 S.W.3d 34, 39–40 (Ky.
2016)); see also Firestone v. Wiley, 485 F. Supp. 2d 694, 704 (E.D. Va. 2007) (same
under Virginia Law). Plaintiffs’ claim fails on the first element.
“Kentucky courts have consistently found that the first element not only
requires a benefit be conferred upon the defendant, but also that the plaintiff be the
party conferring that benefit.” Pixler v. Huff, No. 3:11-CV-00207-JHM, 2011 WL
5597327, at *11 (W.D. Ky. Nov. 17, 2011) (collecting cases); 2815 Grand Realty Corp.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
37

v. Goose Creek Energy, Inc., No. 7:08-CV-186, 2010 WL 4313582, at *4 (E.D. Ky. Oct.
26, 2010) (requiring a direct conferral of a benefit). In other words, the plaintiff “must
show that he conferred a benefit directly upon [defendants].” Lewis v. Jones, No. 6:17CV-38, 2018 WL 5043773, at *5 (E.D. Ky. Oct. 17, 2018).
Virginia courts seem to follow the same rationale: An indirect benefit or a
benefit to a third party is simply insufficient to sustain an unjust enrichment claim.
See, e.g., Tao of Sys. Integration v. Analytical Servs. & Materials, Inc., 299 F. Supp.
2d 565, 576 (E.D. Va. 2004) (“To bring an action to recover monies received by the
defendant from a third party, a plaintiff must demonstrate that he had a preexisting
right to that fund.”). 22

22

In Firestone, 485 F. Supp. 2d at 704 n.12, the court observed “even assuming
plaintiff's amended complaint were read to imply that the 2006 appraisal was sent
to defendants, receipt of the appraisal alone is insufficient to state a claim for
unjust enrichment.” The court cited a host of cases in support of this proposition.
See id. (citing Eckstone & Assocs. Ltd. v. Keilp, 1995 Va. Cir. LEXIS 1404, at *3–4
(Va. Cir. 1995) (dismissing unjust enrichment claim because “[o]ne of the
requirements for the application of unjust enrichment is that services were
accepted by the person sought to be charged, used and enjoyed by him or her”);
Kang v. Roof, 24 Va. Cir. 193, 195–96 (Va. Cir. 1991) (dismissing unjust enrichment
counterclaim because “[a] party who fails to show that the receiver experienced
enrichment, or appreciated the benefit, is fatal to a claim of unjust enrichment”);
Qualichem Inc. v. Xelera, Inc., 62 Va. Cir. 179, 183 (Va. Cir. 2003) (dismissing
unjust enrichment claim where buyer’s “voluntary” payments to third party did
“not provide it with any action at law or in equity” against seller); Park Eldenwood
Assoc. v. Firestone Capital Corp., 26 Va. Cir. 70, 74 (Va. Cir. 1991) (dismissing
unjust enrichment claim because “[w]hen the defendant has derived no right or
benefit from the plaintiff, the law will not indulge in the fiction of an implied
promise of the defendant to the plaintiff”). The rationale applies with equal force
in the context of this case.
Simpson et al. v. Champion Petfoods USA, Inc. et al.
38

Here, Plaintiffs did not directly confer a benefit on Champion. Plaintiffs
purchased Champion’s products from retailers. The fact that “[Champion] charged
[premium] prices for [dog food]; retailers then passed the cost to customers; customers
paid these prices; and [Champion] profited” is simply “insufficient to plead unjust
enrichment.” See Commonwealth of Kentucky v. Marathon Petroleum Co., LP, 191 F.
Supp. 3d 694, 706 (W.D. Ky. 2016). To hold otherwise would overextend the equitable
doctrine and allow every unsatisfied consumer to sue a manufacturer when they feel
the value of their purchase is somehow diminished. This is contrary to the general
purpose of an unjust enrichment claim, which exists to compensate for benefits
conferred, not loss suffered. See, e.g., Wuliger v. Mfrs. Life Ins. Co. (USA), 567 F.3d
787, 799 (6th Cir. 2009); Vanhook Enters. v. Kay & Kay Contr., LLC, 543 S.W.3d 569,
573 (Ky. 2018); Hughes & Coleman, PLLC v. Chambers, 526 S.W.3d 70, 74–75 (Ky.
2017); Lofton v. Fairmont Specialty Ins. Managers, Inc., 367 S.W.3d 593, 597 (Ky.
2012); see also Kern v. Freed Co., 299 S.E.2d 363, 364–65 (Va. 1983).
Accordingly, Plaintiffs’ unjust enrichment claim will be dismissed.
IV.

CONCLUSION
The claims Simpson has asserted against Champion fail under Kentucky law.

The only remaining claims in this case are those arising under Virginia law that
pertain to Lolles and the proposed class of Virginia plaintiffs she intends to represent
(Counts II, IV, and V). As a result, “the interests of justice” and the “convenience of
the parties and witnesses” suggest that it would be appropriate to transfer this action
Simpson et al. v. Champion Petfoods USA, Inc. et al.
39

pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the Eastern
District of Virginia, Norfolk Division.
Accordingly, the parties are hereby notified that the Court is considering a sua
sponte transfer of the case based on the various factors to be weighed. Moore v. Rohm
& Haas Co., 446 F.3d 643, 647 (6th Cir. 2006).
V.

ORDER
Consistent with the accompanying Memorandum Opinion, it is hereby

ORDERED that:
(1) Defendants’ motion to dismiss the amended complaint (Doc. 32), is
GRANTED IN PART and DENIED IN PART;
(2) All of Plaintiff Tracy Simpson’s claims (Counts I, III, V, VI, and VII), are
DISMISSED WITH PREJUDICE;
(3) Plaintiff Danika Lolles’ claims under Counts VI and VII are DISMISSED
WITH PREJUDICE; and
(4) The parties shall file simultaneous briefs by Monday, July 8, 2019,
addressing the appropriateness of transferring this action under 28 U.S.C.
§ 1404(a).

Simpson et al. v. Champion Petfoods USA, Inc. et al.
40

This 21st day of June 2019.

Simpson et al. v. Champion Petfoods USA, Inc. et al.
41