In a class-action filed against Champion Petfoods alleging that the pet food company misrepresented the quality of its dog food and ingredients, the Seventh Circuit recently affirmed a grant of summary judgment in favor of Champion. In doing so, the Court reiterated to future litigants that “summary judgment is the proverbial put up or shut up moment in a lawsuit.” The lesson of the case for class-action plaintiffs is that evidence concerning the merits of the plaintiff’s case is just as important as evidence concerning class certification.
According to the plaintiff in the case, Champion advertised on its packaging that its dog food was “biologically appropriate” and made with “fresh regional ingredients” prepared in its “award-winning kitchens.” These claims were false and misleading, according to the plaintiff, because: (1) Champion uses frozen ingredients, regrinds refreshed ingredients, and includes ingredients that are past their expiration date; (2) the ingredients are sourced from all over the world; and (3) there is a risk that the dog food contains BPAs and pentobarbital.
Champion moved for summary judgment while the plaintiff moved for class certification. The District Court granted Champion’s motion on all counts. On appeal, the Court found that the plaintiff failed to present evidence to support his claims. The Court reminded the plaintiff of its oft-repeated refrain that at summary judgment the plaintiff “may not rest upon mere allegations” but must “go beyond the pleadings and support his contentions with proper documentary evidence.”
The plaintiff in the case relied almost entirely on his own testimony to oppose summary judgment. The Court found that this was insufficient to stave off summary judgment. Because the case was a deceptive advertising claim that did not involve patently misleading claims, the Court explained that the plaintiff had the burden of producing evidence to support the contention that the average consumer would be misled by the advertising. The plaintiff’s own testimony could not do this. The Court found of particular note that the plaintiff did not provide either consumer survey evidence or expert testimony to support his claims.
The Court found that plaintiff’s testimony alone was not enough for a reasonable jury to find that a reasonable consumer would believe “biologically appropriate” meant completely BPA-free. The Court cited the unrebutted evidence from Champion that humans and animals are commonly exposed to BPA and that the levels of BPA in its food could not harm a dog. Likewise, the Court found that the plaintiff’s own testimony was insufficient to support a finding that a reasonable consumer would be misled into believing that “local and fresh ingredients” means the food contains exclusively local and fresh ingredients. At best, the Court concluded, the plaintiff provided evidence of his own understanding of the statements on Champion’s dog food packaging. The Court explained that the plaintiff’s own expectations about the ingredients in Champion’s dog food was not enough to prove that other consumers had similar expectations or were misled in the same way.
The Seventh Circuit’s full opinion is available online here.
Our DuPage and Cook County class-action litigation firm handles individual and class-action consumer protection claims involving deceptive advertising, data breaches, gift cards, lemon law, unfair debt collection, predatory lending, privacy rights, and other consumer rights cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totaling millions of dollars returned to consumers and over a million dollars donated to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs.
The Chicago class-action lawyers at Lubin Austermuehle are proud of our achievements in assisting national and local consumer rights organizations to obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class actions you too can help ensure that other consumers’ rights are protected from consumer rip-offs and unscrupulous or deceptive practices. You can see a description of some of the many individual and class-action consumer cases our Chicago consumer lawyers have handled. You can contact one of our Chicago and Wheaton class action attorneys by filling out the contact form at the side of this blog or by clicking here. You can also call us at 630-333-0333.