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. Continue reading ›