Zeiger v. WellPet LLC

526 F.Supp.3d 652

Daniel ZEIGER, Plaintiff,

v.WELLPET LLC, Defendant.

Case No. 3:17-cv-04056-WHO

United States District Court, N.D. California.

Signed February 26, 2021

Brian J. Robbins, Ashley Rawlins Rifkin, Steven M. McKany, Trevo S. Locko, Robbins LLP, San Diego, CA, Catherine Sung-Yun K. Smith, Daniel E. Gustafson, Pro Hac Vice, Daniel Jay Nordin, Raina Challeen Borrelli, Pro Hac Vice, Gustafson Gluek PLLC, Robert K. Shelquist, Pro Hac Vice, Lockridge Grindal Nauen P.L.L.P., Minneapolis, MN, Charles J. LaDuca, Pro Hac Vice, Katherine Van Dyck, Pro Hac Vice, Cuneo Gilbert & LaDuca, LLP, Washington, DC, Joseph J. DePalma, Susana Cruz Hodge, Pro Hac Vice, Lite DePalma Greenberg, LLC, Newark, NJ, Kenneth A. Wexler, Pro Hac Vice, Michelle Lukic, Wexler Wallace LLP, Chicago, IL, Mark John Tamblyn, Wexler Wallace LLP, Sacramento, CA, Rebecca Anne Peterson, Lockridge Grindal Nauen P.L.L.P., Minneaoplis, MN, for Plaintiff.

Amir M. Nassihi, Joan Alexis Rabutaso Camagong, Shook Hardy & Bacon L.L.P., San Francisco, CA, Ashley Rawlins Rifkin, Robbins LLP, San Diego, CA, Christopher R. Wray, Elizabeth Anne Fessler, Pro Hac Vice, Douglas Bently Maddock, Jr., James P. Muehlberger, Mr. William Roth Sampson, Pro Hac Vice, Shook Hardy Bacon L.L.P., Kansas City, MO, Paul B. LaScala, Shook, Hardy Bacon L.L.P., Irvine, CA, for Defendant.

ORDER ON MOTIONS FOR CLASS CERTIFICATION, SUMMARY JUDGMENT, AND TO EXCLUDE AND STRIKE

Re: Dkt. Nos. 152, 160, 163, 171, 173, 180, 188

William H. Orrick, United States District Judge

INTRODUCTION

Defendant WellPet LLC ("WellPet") makes premium-priced dog food that it holds out to be healthy, nutritious, natural, and high quality. According to plaintiff Daniel Zeiger, three WellPet dog foods actually contain small amounts of arsenic, lead, and bisphenol A ("BPA"). He alleges, on behalf of himself and several proposed classes, that WellPet misled consumers by failing to disclose the presence of these substances and by making claims on the products’ packaging that would lead reasonable consumers to believe the substances were not present. WellPet has numerous responses, including that arsenic and lead are naturally occurring and ubiquitous in the environment and that small amounts of the substances are likely present in many pet foods, that all three substances are impossible to fully remove from the food supply, and that they do not present a health risk in these small quantities.

Before me are WellPet's motion for summary judgment on Zeiger's individual claims, Zeiger's motion to certify classes, and both parties’ motions to strike and exclude. WellPet's motion for summary judgment is largely denied. Zeiger has shown genuine disputes of material fact about the safety of these levels of arsenic and lead in dog food. But he has not shown that these levels of BPA present any risk. He has also shown genuine disputes of material fact about most remaining issues, including whether reasonable consumers would be misled by the representations and omissions.

Zeiger has also met many of the requirements for certification under Federal Rule of Civil Procedure 23(b)(3). He has not, however, put forward an admissible damages model or shown that he can. As a result, his motion to certify under Rule 23(b)(3) is denied. Because the lack of an admissible damages model is the only barrier to certification and it appears possible that such a model could be advanced, Zeiger has leave to renew his motion with a new damages model. His motion to certify classes under Rule 23(b)(2) is granted; the classes he proposes shall be certified for purposes of injunctive relief.

BACKGROUND

I. THE WELLNESS PRODUCTS

This case concerns three dog food products manufactured and marketed by WellPet as part of its "Wellness" line: Complete Health Adult Whitefish & Sweet Potato (the "Sweet Potato Product"), Complete Health Grain Free Adult Whitefish & Menhaden Fish Meal (the "Menhaden Product"), and CORE Ocean (with Whitefish, Herring Meal and Salmon Meal) (the "CORE Ocean Product") (collectively, the "Wellness Products"). Zeiger's broad theory is one of misrepresentation. He alleges that WellPet marketed the Wellness Products as "premium dog food" at a "premium price" that held itself out as "natural and nutritious." See, e.g. , Plaintiff's Motion for Class Certification ("Cert. Mot.") [Dkt. No. 163] 2–3. In reality, Zeiger claims, the Wellness products contain lead, arsenic, and BPA, the presence of which WellPet did not disclose to consumers. Id.

The Wellness Products are sold in bags ranging from 4 lb. to 30 lb. Declaration of Laura Marseglia [Dkt. No. 162-3] ¶ 4. Their packaging includes, among other things, the ingredients included in the dog food and percentages of nutrients. Declaration of Gregory G. Kean ("Kean Decl.") [Dkt. No. 162-2] ¶ 15. They also contain, Zeiger alleges, a group of misleading "marketing claims." Those statements are: (1) "Uncompromising Nutrition," (2) "Unrivaled Quality Standards," (3) "Natural," (4) "Nothing in excess and everything in balance," and (5) "Complete health" (collectively, the "Wellness Statements"). See Second Amended Complaint ("SAC") [Dkt. No. 95] ¶¶ 10, 11, 16, 46. Because the Wellness Statements are a focus of the parties’ class certification dispute, they are discussed further below. As a general matter, the statements on the Wellness Products’ packaging have changed over time in content, location, and size. Kean Decl. ¶ 16. They also change from product to product. Id.

Both parties agree that the Wellness Products are geared toward nutrition-conscious consumers. The record also shows that pet foods that are viewed as high in nutritional value, use high-quality ingredients, and use only "natural" ingredients can be sold at higher prices than other pet foods. See, e.g. , Cert. Mot. 2 (collecting statements by WellPet to that effect). Zeiger argues that WellPet has designed its brand and the Wellness Products’ brands around an image that conforms to these ideals. According to Zeiger, everything from the name "WellPet" to the brand name "Wellness" to the Wellness Statements are intended to evoke this natural, healthy, high-quality image. Of particular importance to this suit, Zeiger argues that the brand is designed to convey that there are no "chemicals or contaminants" in the Wellness Products.

II. ARSENIC, LEAD, AND BPA

Zeiger contends that the Wellness Products either contained or had a risk of containing "detectable amounts" of arsenic, lead, and BPA. Cert. Mot. 3; SAC ¶¶ 2, 12, 13, 21, 45.

Arsenic and lead are heavy metals. See, e.g. , Report of Dr. Gary Pusillo ("Pusillo Rep.") [Dkt. No. 163-2] at 16–17.¹ There is no evidence that WellPet intentionally adds arsenic or lead to its products, and Zeiger does not contend otherwise. Prior to "approximately 2015," WellPet tested at least some of its products for heavy metals. See, e.g. , Dkt. No. 151-11, Ex. 7 at 57. Zeiger and his expert contend that this testing was ineffective because (1) only a small number of ingredients were tested and (2) WellPet used a detection limit of 10 or 5 parts per million ("ppm") when it could have used lower limits measured in parts per billion ("ppb"). See Pusillo Rep. at 21–22. WellPet points out that arsenic and lead can occur naturally in fish-based ingredients, so it conducted 35 tests of those ingredients over two years. Kean Decl. ¶ 36–37. It represents that all of those tests "yielded non-detectable levels of arsenic and lead." Id. ¶ 37.

There is also evidence that WellPet created guidelines for its suppliers that, among other things, barred products with arsenic and lead and required accrediting testing for those substances. See Dkt. No. 151-8 (supplier manual). But, according to Zeiger, these standards were never enforced or communicated to raw material vendors. See, e.g. , Dkt. No. 151-11 at 5:11–21 ("This would have been sent to our co-manufacturing suppliers—companies that make finished products for us ... I have never sent it to a raw material vendor."). WellPet says that the guidelines were only ever a draft that was later superseded. Kean Decl. ¶ 24. WellPet allegedly later removed any requirement for lab tests to show an absence of heavy metals. Dkt. No. 151-8, Ex. 6 (Certificate of Analysis for WellPet ingredients does not include testing for arsenic or lead).

BPA is a synthetic chemical found in some plastics, among other places. See, e.g. , Pusillo Rep. at 16. Zeiger contends that WellPet's internal quality control standards prohibit BPA in its products because they seek to prevent contamination by "foreign bodies," defined as "[a]ny material which is not natural to the raw material, ingredient, packaging material, or finished product[ ]." See Dkt. No. 151-8, Ex. 5 WellPet admits that it did not and does not test for BPA. Id. , Ex. 7. There also appears to be no requirement that WellPet suppliers test for BPA. Id. , Ex. 6 (Certificate of Analysis for WellPet ingredients requires that "this ingredient is preserved with a natural antioxidant" but does not include testing for BPA).

Zeiger claims that BPA can be introduced into the Wellness Products through its manufacturing and storage processes. Specifically, Wellness Products are placed into plastic buckets at high temperatures, which creates a risk that BPA from the plastic will contaminate the products. See Dkt. No. 151-11 at 59:12–16. Ingredients are also at one point placed into large plastic bags, which Zeiger argues may lead to contamination. Id. at 3:24–4:11. According to a laboratory analysis by one of Zeiger's experts, "quantifiable levels of BPA" were found in 59 of the 105 tested WellPet products. See Report of Sean P. Callan ("Callan Rep.") [Dkt. No. 163-8] ¶ 3.

The parties dispute the risk from arsenic, lead, and BPA in the Wellness Products. There is evidence on this record that many pet foods contain some small amount of arsenic and lead. See, e.g. , Poppenga Rep. at 10. The Food and Drug Administration ("FDA") has remarked (albeit in...