Loeb v. Champion Petfoods USA Inc et al

Filing 27

ORDER signed by Judge J.P. Stadtmueller on 7/17/2018 DENYING 23 Plaintiff's Motion to Restrict Defendants' Communications with Putative Class Members. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KELLIE LOEB,
Plaintiff,

Case No. 18-CV-494-JPS-JPS

v.
CHAMPION PETFOODS USA INC.
and CHAMPION PETFOODS LP,

ORDER

Defendants.
This is a putative class action alleging that Defendants deceptively
marketed their dog food as being of high quality when, in reality, it was
contaminated with harmful heavy metals. (Docket #1). The Court in large
measure denied Defendants’ motion to dismiss the case on June 7, 2018.
(Docket #19). Thereafter, the parties appeared to proceed with discovery.
See (Protective Order, Docket #21; Defendants’ Answer, Docket #22).
On July 13, 2018, Plaintiff filed an expedited motion asking the Court
to order Defendants to take down a website they created concerning the
subject matter of this action. (Docket #23). Plaintiff states that in response to
this and other lawsuits filed against Defendants over their allegedly tainted
products,

Defendants

established

a

website

called

www.championpetfoodsfacts.com, which discusses the lawsuits. The
website claims that the lawsuits are baseless and that plaintiffs’ counsel are
simply “trying to get a payday.” (Docket #23-2 at 2). According to Plaintiff,
this not only misleads potential class members about the merits of the
action, but unjustifiably turns them against Plaintiff and her counsel.
Plaintiff further contends that Defendants’ website mischaracterizes the

Court’s ruling on the motion to dismiss to make it seem more favorable to
them. Plaintiff asks that the Court order Defendants to remove “all false
and misleading statements” from the website and require them to obtain
Court approval before posting anything else about the case.
Generally, parties in a class action are free to communicate with
potential class members. E.E.O.C. v. Mitsubishi Motor Mfg. of Am., Inc., 102
F.3d 869, 870 (7th Cir. 1996). Courts are nevertheless empowered to limit
such communications in order to prevent parties from abusing them. Fed.
R. Civ. P. 23(d); Gulf Oil Co. v. Bernard, 452 U.S. 89, 99–102 (1981). If a party
wants a court to exercise this power, it must establish a “clear” and
“specific” record of how the problematic communications are abusing the
right to address potential class members. Gulf Oil, 452 U.S. at 101–02. If the
Court imposes a restriction in this vein, it must be “a carefully drawn order
that limits speech as little as possible, consistent with the rights of the
parties under the circumstances.” Id. at 102.
The Court finds that Plaintiff has failed to make a clear showing of
abusive communications. To be sure, Defendants’ website portrays this
action negatively. That is not, however, abusive. Just as Plaintiffs are free to
offer their opinion (in their complaint or otherwise) about the quality of
Defendants’ products, so too are Defendants entitled to assert that those
allegations are false. Defendants do not directly discourage any potential
class member from participating or threaten them with negative
consequences if they do. See DeKeyser v. Thyssenkrupp Waupaca, Inc., Case
No. 08-CV-488, 2008 WL 11383774, at *4-5 (E.D. Wis. Dec. 18, 2008)
(collecting cases finding abusive communications when a party threatens
monetary or employment consequences for involvement in the lawsuit).
Further, Plaintiff has offered no specific evidence that its fear of class
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manipulation has been realized or is even threatened. Finally, Plaintiff’s
concern about misrepresentation of the Court’s order on the motion to
dismiss appears to have been rectified. See (Docket #24 at 3).1 Plaintiff’s
motion must, therefore, be denied.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to restrict Defendants’
communications with putative class members (Docket #23) be and the same
is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 17th day of July, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

Though the Court need not reach the issue, it believes that Plaintiff’s
desired restrictions are also nigh unworkable in practice. Who is to determine
whether a particular statement is “false and misleading”? The Court would be
forced to conduct a merits-type assessment of the case each time Defendants
updated their website. Further, it would be monumentally restrictive on
Defendants (not to mention a burden on the Court) to have the Court pre-approve
each of their desired communications.
1

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