IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY, OHIO CASE NO. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 ELECTRONICALLY FILED COURT OF COMMON PLEAS Friday, November 07, :09:03 AM CASE NUMBER: 2014 CV Docket ID: GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY, OHIO BETH COX 5134 Belle Isle Drive Dayton, OH Individually and on Behalf of All Others Similarly Situated vs. Plaintiff BLUE BUFFALO COMPANY, LTD. c/o UCS of Ohio, Inc., Statutory Agent 3040 Riverside Drive, Suite 122 Columbus, OH Defendant CASE NO. JUDGE CLASS ACTION COMPLAINT [Jury Demand Endorsed Hereon] COMPLAINT Plaintiff Beth Cox, individually and on behalf of all others similarly situated, alleges as follows for her Complaint against Defendant Blue Buffalo Company, Ltd. ( Blue Buffalo or Defendant based on her personal knowledge as to herself and her own acts and observations and, otherwise, on information and belief based on investigation of her counsel:

2 INTRODUCTION 1. Blue Buffalo markets, advertises and sells premium pet food products throughout the United States, both via retailers and directly via its own website, 2. The cornerstone of Blue Buffalo s nationwide marketing campaign is its True Blue Promise wherein Blue Buffalo claims that certain of its Pet Food Products 1 contain no poultry by-product meal or grains. 3. Blue Buffalo uses its True Blue Promise and other similar representations to distinguish its Pet Food Products from competitors and lure customers to purchase its Pet Food Products. 4. However, Blue Buffalo s claim which is prominently displayed throughout Blue Buffalo s website, in advertisements, promotional materials and on its product packaging is false and deceptive. 5. Blue Buffalo also falsely claims that its Pet Food Products do not contain corn, other grains or artificial preservatives. 6. Blue Buffalo s Pet Food Products contain poultry by-product meal and grains. 7. The Pet Food Products also contain artificial preservatives, other grains and corn. 1 The Pet Food Products include, but are not limited to: Blue Buffalo Life Protection Adult Chicken and Brown Rice (Dog; Blue Buffalo Life Protection Healthy Weight Adult Chicken and Brown Rice (Dog; Blue Buffalo Freedom Adult Grain Free Chicken (Dog; Blue Buffalo Wilderness Adult Chicken Recipe (Dog; Blue Buffalo Basics Adult Turkey & Potato (Dog; Blue Buffalo Longevity Longevity for Adult Dogs (Dog; Blue Buffalo Life Protection Indoor Health Chicken & Brown Rice Recipe (Cat; Blue Buffalo Freedom Grain Free Chicken for Indoor Cats (Cat; Blue Buffalo Wilderness Adult Chicken Recipe (Cat; Blue Buffalo Basics Adult Turkey & Potato (Cat; Blue Buffalo Longevity Longevity for Adult Cats (Cat. 2

3 8. Contrary to Blue Buffalo s representations, its Pet Food Products are not of superior nutritional value than its competitors. 9. Yet, Blue Buffalo charges consumers, including Plaintiff, a price premium for certain of its Pet Food Products. 10. Plaintiff, who bought Blue Buffalo s Pet Food Products during the relevant time period, seeks recovery for damages caused by Blue Buffalo s fraud and negligent misrepresentations, as well as its breach of warranty and unjust enrichment. PARTIES 11. Plaintiff Beth Cox resides in Montgomery County, Ohio. 12. Defendant Blue Buffalo Company, Ltd. is a Delaware corporation with its principal place of business at 444 Danbury Road, Wilton, Connecticut JURISDICTION AND VENUE 13. This Court has personal jurisdiction over Defendant because Defendant transacts business in the state of Ohio and enters into contracts to supply goods in the state of Ohio. Ohio Rev. Code Ann Venue is proper in this Court, Montgomery County, Ohio, because Plaintiff resides in, and made the purchases in question in, Montgomery County, Ohio, and Defendant conducts business in Montgomery County, Ohio. FACTS COMMON TO ALL CLAIMS 15. Paragraphs 1 through 14 are incorporated herein by reference. 16. Blue Buffalo markets, advertises and sells its Pet Food Products to consumers as premium pet food made with top quality ingredients. 17. Blue Buffalo s advertising, promotional materials and packaging for its Pet Food Products are heavily focused on the nutritional content of its pet food. 3

4 18. Blue Buffalo makes these nutritional claims in order to induce customers to purchase at a price premium its Pet Food Products. 19. Blue Buffalo has worked to create an image of its brand as premium pet food containing only high quality ingredients. 20. For instance, Blue Buffalo makes numerous nutrition-based claims on its web site, On its Why Choose Blue? webpage, Blue Buffalo states that it uses only the finest natural ingredients and that its products contain NO chicken (or poultry byproduct meals, NO artificial flavors, colors, or preservatives and NO corn, wheat or soy, as they have been linked to allergic reactions in some pets. 22. The Why Choose Blue? webpage also includes the True Blue Promise, wherein Blue Buffalo states: REAL MEAT First Ingredient, NO Chicken or Poultry By-Product Meals, NO Corn, Wheat or Soy and NO Artificial Preservatives, Colors or Flavors (emphasis in original. 23. This True Blue Promise is highlighted in a prominent blue box on the Why Choose Blue? webpage, as well as on each specific Pet Food Product webpage (except for the Longevity Pet Food Products. 4

5 24. The True Blue Promise is also displayed prominently on the packaging of the Pet Food Products: Source: Source: 5

6 25. Blue Buffalo s Pet Food Products packaging also includes the same promises about the content of the food namely, No chicken or poultry by-product meals No corn, wheat or soy No artificial preservatives No artificial flavors on the front of the packaging: Source: Blue Buffalo s website also includes a webpage titled Nutrition Philosophy. On that page, Blue Buffalo includes a section entitled What s In Our Food and Why. 27. In the What s In Our Food and Why section, Blue Buffalo includes a subsection entitled What s Not in BLUE and Why. In that section, Blue Buffalo states, At Blue Buffalo we use Chicken Meal or Turkey Meal made from the whole meat of the birds, not by-products. Poultry or chicken by-product meals cost a lot less than 6

7 meals made from whole meat. At Blue Buffalo, we think the cost is well worth it to know exactly what s in our food. 28. In the same section, Blue Buffalo also states, Corn, Wheat or Soy Proteins (Glutens [... ] Many pet food companies use the less expensive glutens to increase protein levels without the complete amino acid benefits of using more expensive meat, poultry or fish proteins. Simply put, these ingredients are cheaper, lower in nutrition and things we would never include in a BLUE recipe. 29. Blue Buffalo s website also contains a Compare Your Brand section where consumers can ostensibly compare the characteristics of Blue Buffalo Pet Food Products to various competitors products. 30. After a user selects which type of pet food that he or she wants to compare to a Blue Buffalo Pet Food Product, the True Blue Test Results are displayed to the user. Part of the True Blue Test Results displayed states as follows as to Blue Buffalo s Pet Food Products: DOESN T contain chicken (or poultry by-product meals and DOESN T contain corn, wheat or soy. 31. On its Frequently Asked Questions section of its website, Blue Buffalo also makes several statements about the content of its Pet Food Products. In response to the Frequently Asked Question of Does BLUE dog food or BLUE cat food contain chicken or poultry by-product meals? Blue Buffalo states: BLUE pet food contains no chicken or poultry by-product meals. What s more, we do not use corn, wheat or soy in any of our recipes. 32. These statements by Blue Buffalo about the nutritional content of its Pet Food Products are false, deceptive, misleading and materially incorrect. 7

8 33. Testing has revealed that Blue Buffalo s claims are false. For instance, one investigation revealed that Blue Buffalo s Pet Food Products contain significant amounts of poultry by-products, as well as corn and rice hulls. 34. Blue Buffalo s Pet Food Products contain these ingredients despite being marketed and advertised by Blue Buffalo as containing no chicken or poultry by-product meals and no corn or grain. 35. Blue Buffalo charges a significant price premium for its Pet Food Products compared to its competitors based on its false and deceptive claims about the ingredients and nutritional content of its Pet Food Products. 36. Consumers, including Plaintiff, relied on Blue Buffalo s misrepresentations about the ingredients and nutritional content of its Pet Food Products in choosing to purchase Blue Buffalo Pet Food Products and paid Blue Buffalo a price premium that they otherwise would not have paid. NAMED PLAINTIFF S FACTS 37. Plaintiff Beth Cox has purchased Blue Buffalo s pet food products for her pets, including Blue Buffalo s Pet Food Products. 38. Plaintiff purchased Blue Buffalo s Life Protection Healthy Weight Adult Chicken and Brown Rice (Dog and Blue Buffalo Life Protection Indoor Health Chicken & Brown Rice Recipe (Cat in Dayton, Ohio for her personal, family or household purposes. 39. Plaintiff decided to purchase Blue Buffalo s Pet Food Products based on Blue Buffalo s misrepresentations about the ingredients and/or nutritional content of its Pet Food Products. 8

9 40. Plaintiff viewed and relied on Blue Buffalo s misrepresentations, including the false claims on its website, in making her purchases of Blue Buffalo s Pet Food Products. 41. For instance, Plaintiff believed that Blue Buffalo s pet food did not contain corn and relied upon Blue Buffalo s representations and advertisements that it did not contain corn. Plaintiff purchased Blue Buffalo s Pet Food Products based, in part, on Blue Buffalo s statements that those products did not contain corn. 42. Plaintiff would not have purchased Blue Buffalo s Pet Food Products let alone paid a price premium for its products had she known the actual ingredients contained in its pet food. CLASS ACTION ALLEGATIONS 43. Plaintiff brings this action pursuant to Civ.R. 23 on behalf of herself and the members of a Class comprising of: All persons residing in the State of Ohio who purchased the Pet Food Products within the applicable statute of limitations. 44. Subject to additional information obtained through further investigation and discovery, the foregoing Class may be expanded or narrowed by amendment or amended complaint. Specifically excluded from the Class is any entity in which Defendant has a controlling interest or which has a controlling interest in Defendant and Defendant s legal representatives, assigns and successors. 45. Members of the Class are so numerous that joinder is impracticable. While the exact number of Class members is unknown to Plaintiff, it is believed that the Class is comprised of at least thousands of members geographically dispersed throughout the state of Ohio. 9

10 46. Common questions of law and fact exist as to all members of the Class. These questions predominate over questions that may affect only individual Class members because Defendant acted on grounds generally applicable to the Class. Such common legal or factual questions include: a Whether Blue Buffalo provided false information to Plaintiff and the Class by representing that its Pet Food Products contain no chicken/poultry by-product meals, no corn, wheat or soy and/or no artificial preservatives, colors or flavors ; b Whether the Pet Food Products contain chicken/poultry byproduct meals; c Whether the Pet Food Products contain corn, wheat or soy; d Whether the Pet Food Products contain artificial preservatives, colors or flavors; e Whether the Pet Food Products fail to conform to the representations which were published, disseminated and advertised to Plaintiff and the Class; f Whether Blue Buffalo breached an express warranty made to Plaintiff and the Class; g Whether Blue Buffalo was unjustly enriched by its conduct; h Whether Blue Buffalo labels, advertises and/or markets its Pet Food Products in a way that is false, deceptive and/or misleading; i Whether Blue Buffalo concealed from Plaintiff and the Class that its Pet Food Products did not conform to the stated representations; 10

11 j Whether Plaintiff and the Class are entitled to damages; and k Whether Blue Buffalo should be enjoined from continuing the misconduct alleged herein. 47. Blue Buffalo s defenses to Plaintiff s claims are typical of its defenses to claims of the members of the Class. 48. Plaintiff s claims are typical of the members of the Class as all members of the Class are similarly affected by Blue Buffalo s actionable conduct. Plaintiff and all members of the Class were subject to the same misrepresentations made by Blue Buffalo on the Pet Food Product s packaging and on Blue Buffalo s website. In addition, Blue Buffalo s conduct that gave rise to the claims of Plaintiff and members of the Class is the same for all members of the Class. 49. Plaintiff will fairly and adequately protect the interests of the Class because Plaintiff has no interests antagonistic to, or in conflict with, the Class that Plaintiff seeks to represent. Furthermore, Plaintiff has retained counsel experienced and competent in the prosecution of complex class action litigation. Plaintiff has or can acquire adequate financial resources to assure that the interests of the Class will not be harmed. 50. Class action treatment is a superior method for the fair and efficient adjudication of this controversy in that, among other things, such treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently and without the unnecessary duplication of evidence, effort, expense or the possibility of inconsistent or contradictory judgments that numerous individual actions would engender. The benefits of the Class mechanism, 11

12 including providing injured persons or entities with a method for obtaining redress on claims that might not be practicable to pursue individually, substantially outweigh any difficulties that may arise in the management of this class action. 51. Plaintiff knows of no difficulty to be encountered in the maintenance of this action that would preclude its maintenance as a class action. 52. Defendant has acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class and subclass as a whole. 53. This forum is an appropriate forum for litigation of the claims of the Class, which is comprised only of persons residing in the state of Ohio. COUNT ONE: TORTIOUS BREACH OF WARRANTY 54. Plaintiff realleges and incorporates each and every allegation set forth above as if fully written herein. 55. Blue Buffalo, as the designer, manufacturer, marketer, distributor or seller, expressly warranted that its Pet Food Products contained NO Chicken/Poultry By- Product Meals, NO artificial flavors, colors, or preservatives and NO corn, wheat or soy. 56. Blue Buffalo s True Blue Promise that its Pet Food Products contained NO Chicken/Poultry By-Product Meals, NO artificial flavors, colors, or preservatives and NO corn, wheat or soy are affirmations of fact or promises made by Blue Buffalo to consumers, including Plaintiff and the Class, which relate to the Pet Food Products and become part of the basis of the bargain. 57. Blue Buffalo s True Blue Promise that its Pet Food Products contained NO Chicken/Poultry By-Product Meals, NO artificial flavors, colors, or preservatives 12

13 and NO corn, wheat or soy are descriptions of the Pet Food Products which are made part of the basis of the bargain. 58. Yet, contrary to Blue Buffalo s True Blue Promise, the Pet Food Products contain significant amounts of chicken/poultry by-product meals, corn, other grains and artificial preservatives. 59. Plaintiff and the Class were injured as a direct and proximate result of Blue Buffalo s breach because: (a they would not have purchased the Pet Food Products on the same terms if the true facts regarding the composition and ingredients of the Pet Food Products had been known; (b they paid a price premium due to the mislabeling of the Pet Food Products; and (c the Pet Food Products did not have the quality, composition, functionality or value as promised. 60. Plaintiff brings Count I on behalf of herself and the members of the Class to recover economic loss only. COUNT TWO: NEGLIGENT MISREPRESENTATION 61. Plaintiff realleges and incorporates each and every allegation set forth above as if fully written herein. 62. Blue Buffalo, in the course of its business, provided false information regarding the Pet Food Products, as they represented that the Pet Food Products contained NO Chicken/Poultry By-Product Meals, NO artificial flavors, colors, or preservatives and NO corn, wheat or soy. 63. Blue Buffalo made the same false representations to Plaintiff and members of the Class. 13

14 64. Blue Buffalo provided the above false information for the guidance of consumers buying the Pet Food Products and Plaintiff and members of the Class sought guidance from Blue Buffalo in purchasing the Pet Food Products. 65. Blue Buffalo failed to exercise reasonable care or competence in obtaining and communicating information to Plaintiff and members of the Class regarding the composition and ingredients of the Pet Food Products and that they were not in fact free of chicken/poultry by-product meals, artificial flavors, colors or preservatives and corn, wheat or soy. 66. The above false information proximately caused Plaintiff and the members of the Class to suffer pecuniary or economic loss due to their justifiable reliance on such false information. 67. There is an obvious link between Blue Buffalo s negligent misrepresentations and the pecuniary loss suffered by Plaintiff and members of the Class. 68. Plaintiff brings Count II on behalf of herself and the members of the Class to recover economic loss only. COUNT THREE: FRAUD 69. Plaintiff realleges and incorporates each and every allegation set forth above as if fully written herein. 70. Blue Buffalo represented that its Pet Food Products contained NO Chicken/Poultry By-Product Meals, NO artificial flavors, colors, or preservatives and NO corn, wheat or soy. 71. Such representations were material to the decision by Plaintiff and members of the Class to purchase the Pet Food Products. 14

15 72. Blue Buffalo made the same representations to Plaintiff and members of the Class. 73. Blue Buffalo s representations were false, and Blue Buffalo made such representations with knowledge of their falsity and/or with such utter disregard and recklessness as to whether the representations were true or false that knowledge may be inferred. 74. Blue Buffalo made the false representations regarding the Pet Food Products with the intent to mislead consumers into relying upon its representations and Plaintiff and members of the Class justifiably relied upon such representations. 75. Blue Buffalo s fraudulent representations proximately caused Plaintiff and the members of the Class to suffer injury and losses as a result of its justifiable reliance on the fraudulent representations. COUNT FOUR: UNJUST ENRICHMENT 76. Plaintiff realleges and incorporates each and every allegation set forth above as if fully written herein. 77. Plaintiff and members of the Class paid money to purchase Blue Buffalo Pet Food Products. Accordingly, Plaintiff and members of the Class conferred an economic benefit upon Blue Buffalo because Blue Buffalo profited as a result from Plaintiff and members of the Class paying money to purchase Blue Buffalo Pet Food Products. 78. Blue Buffalo has been unjustly enriched in retaining the revenues derived from Class members purchases of the Pet Food Products. 15

16 79. Blue Buffalo s retention of these revenues is unjust and inequitable because Blue Buffalo misrepresented that its Pet Food Products contained NO Chicken/Poultry By-Product Meals, NO artificial flavors, colors, or preservatives and NO corn, wheat or soy. 80. Blue Buffalo knew about the benefit Plaintiff and members of the Class conferred upon it. 81. Blue Buffalo acted in bad faith by falsely claiming that its Pet Food Products contained NO Chicken/Poultry By-Product Meals, NO artificial flavors, colors, or preservatives and NO corn, wheat or soy, despite knowing full well that this was not true. 82. Plaintiff and Class members were injured because: (a they would not have purchased the Pet Food Products on the same terms if the true facts concerning their actual composition had been known; and (b they paid a price premium due to the mislabeling of the Pet Food Products. 83. Plaintiff brings this unjust enrichment claim on behalf of herself and the members of the Class to recover damages in the amount that Blue Buffalo was unjustly enriched. Specifically, Blue Buffalo s profit from sales of its Pet Food Products. PRAYER WHEREFORE, Plaintiff prays for the following relief: 1. Certify the Class pursuant to Civ.R. 23 and naming Plaintiff as Class Representative and her attorneys as Class Counsel to represent the Class members; 2. Award damages, including compensatory, punitive, exemplary and statutory damages, to Plaintiff and the Class in an amount to be determined at trial; 16

17 3. Grant restitution to Plaintiff and the Class and require Blue Buffalo to disgorge its ill-gotten gains; 4. Permanently enjoin Blue Buffalo from engaging in the wrongful and unlawful conduct alleged herein; 5. Award Plaintiff and the Class prejudgment and post-judgment interest at the highest legal rate to the extent provided by law; and 6. Award such further relief as the Court deems appropriate. JURY DEMAND Plaintiff hereby demands a jury trial on all issues so triable by a jury. Dated: November 6, 2014 Respectfully submitted, s/ Stuart E. Scott STUART E. SCOTT ( DANIEL FRECH ( SPANGENBERG SHIBLEY & LIBER LLP 1001 Lakeside Avenue East, Suite 1700 Cleveland, OH ( ( (FAX sscott@spanglaw.com dfrech@spanglaw.com JONATHAN TYCKO (D.C. Bar No (Pro Hac Vice to Follow ANDREA R. GOLD (D.C. Bar No (Pro Hac Vice to Follow TYCKO & ZAVAREEI LLP 2000 L Street, NW, Suite 808 Washington, DC ( ( (FAX jtycko@tzlegal.com agold@tzlegal.com Counsel for Plaintiff 17