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Pet Food Class Action Preemptively Thrown Out

Judge rules individual inquiries preclude class certification

By Jon Hood
ConsumerAffairs.com

March 19, 2009

The suit alleged that "Ol' Roy" brand pet food, sold in Wal-Mart stores, was branded as "Made in the USA," when in fact several ingredients were manufactured overseas. Specifically, the plaintiff claimed that wheat gluten in the dog food came from China, a worrisome development given recent reports of pets becoming sick from China-manufactured food ingredients. The proposed class consisted of all consumers in eight states who bought Ol' Roy pet food before March 16, 2007, and who had not received a refund.

The suit was filed in April 2007 by lead plaintiff and Nevada resident Margaret Picus, represented by San Diego-based Blumenthal, Nordrehaug & Bhowmik. The action alleged violations of the Nevada Deceptive Trade Practices Act and similar statutes in the seven other subject states.

The plaintiff alleged that the "Made in the USA" labeling was in bold, capital letters, and was essentially identical on all Ol' Roy products. Moreover, Picus pointed out that all eight states included in the suit expressly prohibited sales of products mislabeled as to geographic origin. This seeming uniformity across consumers made the suit look like an ideal class action.

Judge Philip Pro, however, ruled that individual issues precluded class certification. The plaintiff would have to prove, for example, that every class member bought the food because of the "Made in the USA" labeling. This would require an individual factual inquiry into each consumer’s thinking, defeating the efficiency and commonality that make class actions so appealing.

The judge's decision was unusual in that he denied class certification before any substantial discovery had been performed. Indeed, the court noted that so-called preemptive motions are generally disfavored, since "the shape and form of a class action evolves only through the process of discovery." However, the court determined that the class was untenable as a matter of law, and "it would be a waste of the parties' resources and judicial resources to conduct discovery on class certification." The full decision is available online.

The suit was originally consolidated with a now-famous multi-district class action in New Jersey, which alleged that tainted food distributed by Menu Foods and others led to the death of hundreds of pets. That action consisted of over 100 suits that grew out of the largest pet food recall in U.S. history, and settled in April 2008 for an eye-popping $24 million. The Ol' Roy suit, however, was severed from the Menu Foods action in 2008.

Individual inquiries, especially into causation or injury, are often the death knell for class actions. Recently, a Washington judge threw out a class action against Microsoft that alleged similar fraudulent labeling, ruling that the plaintiffs had not proved that the labeling was what caused consumers to buy computers.

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