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Case 1:18-cv-06936-LLS Document 46 Filed 09/17/19 of 34

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

MARKEITH PARKS, on behalf of himselfand all others similarly situated,

Plaintiff,

v.

THE J. M. SMUCKER COMPANY andAINSWORTH PET NUTRITION, LLC,

Defendants.

Case No. 1:18-cv-06936-LLS

HON. Louts L. STANTON

REPLY IN SUPPORT OF DEFENDANTSTHE J. M. SMUCKER COMPANY ANDAINSWORTH PET NUTRITION, LLC'SMOTION TO DISMISS PLAINTIFF'S

AMENDED COMPLAINT

RONALD Y. ROTHSTEINSEAN H. SUBER (pro hac vice)WINSTON & STRAWN LLP

35 West Wacker DriveChicago, Illinois 60601(312) 558-5600

[email protected]@winston.com

Counsel for DefendantsThe J. M. Smucker Company and Ainsworth Pet Nutrition, LLC


TABLE OF CONTENTS

INTRODUCTION 1

ARGUMENT 3

I. Plaintiff failed to plead facts supporting an inference that there was a material amountof glyphosate in Defendants' products, as required by this Court. 3

A. Plaintiff failed to plead materiality as required by this Court and is asking thisCourt to apply an improper standard for materiality. 4

B. Even under Plaintiff's improper standard for materiality, the Amended Complaintis implausible and should be dismissed. 8

C. Plaintiff's remaining arguments are unavailing. 12

II. Plaintiff lacks standing to pursue these claims on behalf of the class and himself 14

A. Plaintiff cannot obtain injunctive relief on behalf of the class because he has stillfailed to allege a risk of future harm for himself. 14

B. Plaintiff cannot pursue claims for products he did not purchase. 17

C. Plaintiff lacks a "particularized" basis to allege all of Defendants' productscontained the negligible amount of glyphosate from the laboratory testing 20

III. In the alternative, this court should dismiss this case pending the EPA's review ofglyphosate and the FDA's guidance on the definition of "natural" 23

IV. Punitive damages are unavailable. 25

CONCLUSION 27


TABLE OF AUTHORITIES

Cases

Page(s)

Ashcroft v. Iqbal,556 U.S. 662 (2009) passim

Axon v. Citrus World, Inc.,354 F. Supp. 3d 170 (E.D.N.Y. 2018) 9, 12

Bell Atl. Corp. v. Twombly,550 U.S. 544 (2007) passim

Beyond Pesticides v. Dr Pepper Snapple Grp., Inc.,2019 WL 2744685 (D.D.C. July 1, 2019) 12, 21

Boykin v. KeyCorp,521 F.3d 202 (2d Cir. 2008) 21

Bracken v. MH Pillars Inc.,290 F. Supp. 3d 258 (S.D.N.Y. 2017) 26

Campbell v. Freshbev LLC,322 F. Supp. 3d 330 (E.D.N.Y. 2018) 16

In re Century Aluminum Co. Sec. Litig.,729 F.3d 1104 (9th Cir. 2013) 11

Chin v. Gen. Mills, Inc.,2013 WL 2420455 (D. Minn. June 3, 2013) 20

Citadel Management, Inc. v. Telesis Transport, Inc.,123 F. Supp. 2d 133 (S.D.N.Y. 2000) 22

City of Los Angeles v. Lyons,461 U.S. 95 (1983) 16

Cohen v. New York City Dep't of Educ.,2018 WL 6528241 (S.D.N.Y. Dec. 12, 2018) 22

Country Tweeds, Inc. v. F. T C.,326 F.2d 144 (2d Cir. 1964) 4

Fahey ex rel. D.C. v. Deoleo USA, Inc.,2018 WL 5840664 (D.D.C. Nov. 8, 2018) 23


Dimond v. Darden Restaurants, Inc.,2014 WL 3377105 (S.D.N.Y. July 9, 2014) 5

Ebner v. Fresh Inc.,838 F.3d 958 (9th Cir. 2016) 7

Ellis v. Tribune Television Co.,443 F.3d 71 (2d Cir. 2006) 25

Fink v. Time Warner Cable,714 F.3d 739 (2d Cir. 2013) 7

Gaminde v. Lang Pharma Nutrition, Inc.,2019 WL 1338724 (N.D.N.Y. Mar. 25, 2019) 22, 23

In re General Mills Glyphosate Litig.,2017 WL 2983877 (D. Minn. July 12, 2017) 12

Gibson v. Quaker Oats Co.,2017 WL 3508724 (N.D. Ill. Aug. 14, 2017) 12

Goldemberg v. Johnson & Johnson Consumer Cos., Inc.,317 F.R.D. 374 (S.D.N.Y. 2016) 19

Hart v. BHH, LLC,2016 WL 2642228 (S.D.N.Y. May 5, 2016) 19

Holve v. McCormick & Co., Inc.,334 F. Supp. 3d 535 (W.D.N.Y. 2018) 17, 22

Jessani v. Monini NA., Inc.,744 Fed. Appx. 18 (2018) 7

John v. Whole Food Market Group Inc.,858 F.3d 732 (2d Cir. 2017) 22

Khalik v. United Air Lines,671 F.3d 1188 (10th Cir. 2012) 12

Kokkonen v. Guardian Life Ins. Co. of Am.,511 U.S. 375 (1994) 22

Kommer v. Bayer Consumer Health, adivision of Bayer AG, 710 F. App'x 43, 44 (2d Cir. 2018) 16

La Cibeles, Inc. v. Adi par, Ltd.,2000 WL 1253240 (S.D.N.Y. Sept. 1, 2000) 13


LBB Corp. v. Lucas Distrib., Inc.,2008 WL 2743751 (S.D.N.Y. Jul. 14, 2008) 13

Leonard v. Abbott Labs., Inc.,2012 WL 764199 (E.D.N.Y. Mar. 5, 2012) 4

LVL XIII Brands, Inc. v. Louis Vuitton Malletier S.A.,209 F. Supp. 3d 612 (S.D.N.Y. 2016), aff'd, sub nom. LVL XIII Brands, Inc. v.Louis Vuitton Malletier SA, 720 F. App'x 24 (2d Cir. 2017) 6, 13

Meyer v. Colavita USA Inc.,2011 WL 13216980 (S.D. Fla. Sept. 13, 2011) 23

Morales v. Kavulich & Assocs., P.C.,294 F. Supp. 3d 193 (S.D.N.Y. 2018) 25

Morrison v. National Australian Bank Ltd.,547 F.3d 167 (2d Cir. 2008) 22

NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co.,693 F.3d 145 (2d Cir. 2012) 18

New Jersey Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC,709 F.3d 109 (2d Cir. 2013) 10, 11

Nicosia v. Amazon. corn, Inc.,834 F.3d 220 (2d Cir. 2016) 16

Ortiz v. Fibreboard Corp.,527 U.S. 815 (1999) 20

Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, NA.,647 N.E.2d 741 (N.Y. 1995) 5

Parke-Hayden v. Lowes Theatre Mgmt. Corp.,789 F. Supp 1256, 1267 26

Parks v. Ainsworth Pet Nutrition, LLC,377 F. Supp. 3d 241 (S.D.N.Y. 2019) passim

Pelayo v. Nestle USA, Inc.,989 F. Supp. 2d 973 (C.D. Cal. 2013) 11

Pelman v. McDonald's Corp.,237 F. Supp. 2d 512 (S.D.N.Y. 2003) 5

Powers v. Ohio,499 U.S. 400 (1991) 18

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Read v. Corning Inc.,351 F. Supp. 3d 342 (W.D.N.Y. 2018) 25

Ret. Bd. of the Policemen's Annuity & Ben. Fund of the City of Chicago v. Bankof New York Mellon,775 F.3d 154 (2d Cir. 2014) 3, 19

Scholder v. Riviana Foods Inc.,2017 WL 2773586 (E.D.N.Y. June 23, 2017) 23, 24

Simon v. Smith & Nephew, Inc.,990 F. Supp. 2d 395 (S.D.N.Y. 2013) 3

In re Sling Media Slingbox Advert. Litig.,202 F. Supp. 3d 352 (S.D.N.Y. 2016) 4, 5

People ex rel. Spitzer v. Applied Card Sys., Inc.,894 N.E.2d 1 (N.Y. 2008) 6

Spokeo, Inc. v. Robins,136 S. Ct. 1540 (2016), as revised (May 24, 2016) 17, 18

Sports Traveler, Inc. v. Advance Magazine Publishers, Inc.,1997 WL 137443 (S.D.N.Y. Mar. 24, 1997) 13

Stadt v. Fox News Network LLC,719 F. Supp. 2d 312 (S.D.N.Y. 2010) 13

Steel Co. v. Citizens for a Better Env 't,523 U.S. 83 (1998) 20

Stein v. N Assurance Co. of Am.,2011 WL 13305251 (E.D.N.Y Jan. 25, 2011) 26

Suarez v. California Nat. Living, Inc.,2019 WL 1046662 (S.D.N.Y. Mar. 5, 2019) 15

Wallace v. ConAgra Foods, Inc.,747 F.3d 1025 (8th Cir. 2014) 22, 23

Statutes

15 U.S.C. §§ 41-58 4

15 U.S.C. § 45 6

D.C. Code §§ 28-3904(a), (d) 12

N.Y. Gen. Bus. Law § 349 4, 6, 13

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N.Y. Gen. Bus. Law § 350 6

Other Authorities

Anthony Samsel & Stephanie Seneff, Glyphosate, Pathway to Modern DiseasesIV.• Cancer and Related Pathologies, 15 J. Biological Physics & Chemistry121 (2015), available athttps://people.csail.mitedu/seneff/SamselSeneffGlyphosateIV.pdf 6

Fed. R. Civ. P. 8 13, 17

Fed. R. Civ. P. 8(a) 14

Fed. R. Civ. P. 12(b)(6) 8

Jayson L. Lusk, Consumer Perceptions of Healthy and Natural Food Labels 2(Jan. 15, 2019), available at https://bit.ly/2Hy06ML 8, 10, 11

Mesnage et al., Multiomics Reveal Non-alcoholic Fatty Liver Disease in RatsFollowing Chronic Exposure to an Ultra-low Dose of Roundup Herbicide, 7Sci. Rep. 39328 (2017), available athttps://www.nature.com/articles/srep39328 6

Tamsyn M. Uren Webster & Eduarda M. Santos, Global Transcriptomic ProfilingDemonstrates Induction of Oxidative Stress and of Compensatory CellularStress Responses in Brown Trout Exposed to Glyphosate and Roundup, 16BMC Genomics 32 (2015)), available athttps://bmcgenomics.biomedcentral.com/articles/10.1186/s12864-015-1254-5 7

U.S. Const., art. III 18, 20, 21, 22

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INTRODUCTION

Plaintiff Markeith Parks' 35-page Opposition, citing 117 cases, fails to cite this Court's

opinion even once. The only time this Court's opinion is mentioned is when he says that, "[u]pon

the Court's invitation, Plaintiff Parks bolstered his pleadings with surveys that underscore that

Rachael Ray Nutrish's 'natural' marketing is material and relates to an inherent quality of the pet

food." ECF No. 45, Opposition ("Opp."), at 6. This is the flaw with the Amended Complaint.

This Court gave Plaintiff a chance to "replead facts supporting an inference that there was

a material amount of glyphosate in [Defendant's] Products." Parks, 377 F. Supp. 3d at 247

(emphasis added). But Plaintiff ignored this invitation from Your Honor and instead argued that

"[t]he Amended Complaint [] sufficiently alleges that 'natural' is understood by consumers to

relate to an inherent and material characteristic of food products." ECF No. 45, Opp., at 6. Given

his failure to re-plead facts as instructed by the Court, Plaintiff's Amended Complaint, as he

describes it, is materially indistinguishable from the Complaint that this Court already dismissed.

Thus, there are three reasons why this Court need not belabor over what is essentially a 35-

page Motion to Reconsider the Court's dismissal of Plaintiffs Original Complaint.

First, Plaintiff failed to plead facts supporting an inference that there was a material amount

of glyphosate in Defendants' products, as required. His arguments about materiality depend on the

incorrect notion that "there is no requirement that Plaintiff Parks demonstrate that the levels of

glyphosate in the Products are 'harmful.'" ECF No. 45, Opp., at 2. But while Plaintiff may feel

this Court relied on "an incorrect materiality standard," ECF No. 45, Opp., at 1, Plaintiff's

disagreement with the Court's ruling does not change the fact that he failed to re-plead facts

supporting an inference that there was a material amount of glyphosate in the Products. That should

be the end of the matter. After all, this Court already rejected Plaintiffs argument "that [if]

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glyphosate is in the Products at any level ... then the Products cannot be called 'Natural.'" Parks,

377 F. Supp. 3d at 247. And Plaintiff is arguing the same thing again now—"that reasonable

consumers understand 'natural' to mean do[es] not contain synthetic chemicals,' including 'no

toxic pesticides,'" ECF No. 45, Opp., at 6, and that Defendants should be liable if glyphosate

"w[as] used at any point during production." ECF No. 32, Am. Compl., ¶ 40 (emphasis added).

There is no need to revisit this issue. This Court correctly explained that the "presence of negligible

amounts of glyphosate in a dog food product that do not have harmful, 'toxic,' or 'carcinogenic'

effects is not likely to affect consumers' decisions in purchasing the product and is thus not

material." Parks, 377 F. Supp. 3d at 248 (citations omitted). Without re-pleading the Amended

Complaint as instructed, there is simply nothing in Plaintiff's Amended Complaint or Opposition

that supports an inference that there was an amount of glyphosate in the Products "that [would be]

important to consumers and, hence, likely to affect their choice of, or conduct regarding, a

product." Id. (citation and internal quotation marks omitted).

Second, and as a threshold jurisdictional matter, Plaintiff has still failed to show that he

has standing on his own behalf—let alone on behalf of the class. For example, he cannot seek

injunctive relief on behalf of the class because he "does not allege future injury" by claiming "that

If Rachael Ray Nutrish's Products were reformulated such that Rachael Ray Nutrish's

representations were truthful, i.e., such that its Products were 'Natural' and contained no

glyphosate, Parks would consider purchasing Rachael Ray Nutrish's Products in the future.'" Id.

at 249. He also cannot represent class members who bought other varieties of Defendants' products

because he admits that determining whether his case is "sufficiently similar" to the cases of other

putative members of the class would require a "fact-intensive determination." ECF No. 45, Opp.,

at 25. In such circumstances, the Second Circuit has affirmed the dismissal of claims when "the

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nature of the claims in th[e] case unavoidably generate significant differences in the proof that will

be offered." Ret. Bd. of the Policemen's Annuity & Ben. Fund of the City of Chicago v. Bank of

New York Mellon, 775 F.3d 154, 163 (2d Cir. 2014). This leads to the underlying flaw in Plaintiff's

position on standing: the fact that he does not even allege that whatever type of Defendants'

product he bought was actually tested to reveal glyphosate in his product. That allegation is absent

from the Amended Complaint, so he lacks a particularized basis to proceed.

Third, if the Court does not agree with the above, the Court should dismiss this case under

the primary jurisdiction doctrine because the FDA is "actively working on" defining the term

"natural" and says that "in 2019, FDA plans to publicly communicate next steps regarding Agency

policies related to 'natural.' Ex. A to Suber Decl., Ltr. from Scott Gottlieb, M.D., Commissioner,

FDA, to Hon. David Valadao, U.S. House of Rep. (Dec. 18, 2018).1

For these reasons, the case should be dismissed in its entirety and with prejudice. Plaintiff

does not deserve a third bite at the apple to simply re-hash the same arguments yet again.

ARGUMENT

I. Plaintiff failed to plead facts supporting an inference that there was a materialamount of glyphosate in Defendants' products, as required by this Court.

Even though this Court instructed Plaintiff to "replead facts supporting an inference that

there was a material amount of glyphosate in the Products," Parks, 377 F. Supp. 3d at 248, Plaintiff

did not do so. Instead, he defiantly doubled down on his absolutist belief that if glyphosate is in

the Products at any level ("no matter what the amount," ECF No. 45, Opp., at 3) then Defendants

should be liable. And he chose to criticize the Court's ruling in the process, by arguing that this

Court's requirement for him to support the inference that there was a material amount of

1 This Court can take judicial notice of this FDA letter. See Simon v. Smith & Nephew, Inc.,990 F. Supp. 2d 395, 399 n. 1 (S.D.N.Y. 2013) (taking judicial notice on motion to dismiss of"documents issued by government agencies").

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glyphosate in the Products "confuse[s] materiality with causation." Id. at 4. This is just another

example of Plaintiff showing how absolutist he is about this case. Fortunately, as this Court has

recognized, "a reasonable consumer would not be so absolutist as to require that 'natural' means

there is no glyphosate, even an accidental and innocuous amount, in the Products." Id. at 247

(citations omitted). Thus, because Plaintiff did not even attempt to remedy the flaws in his previous

pleading, this Amended Complaint should be dismissed in its entirety.

A. Plaintiff failed to plead materiality as required by this Court and is asking thisCourt to apply an improper standard for materiality.

As this Court explained, a "'material claim is one that involves information that is

important to consumers and, hence, likely to affect their choice of, or conduct regarding, a

product.'" Parks, 377 F. Supp. 3d at 248 (quoting Bildstein v. MasterCard Int 7 Inc., 329 F. Supp.

2d 410, 414 (S.D.N.Y. 2004)). Contrary to what Plaintiff suggests, the "relevant inquiry is not

whether the statement is literally false." Leonard v. Abbott Labs., Inc., 2012 WL 764199, at *20

(E.D.N.Y. Mar. 5, 2012) (citing Am. Home Prods. Corp. v. Johnson & Johnson, 577 F.2d 160, 165

(2d Cir. 1978)); see also, e.g., In re Sling Media Slingbox Advert. Litig., 202 F. Supp. 3d 352, 360

(S.D.N.Y. 2016) ("Not all deceptive acts or practices are actionable under § 349").

"What is important in determining whether a statement is misleading is the over-all

impression it tends to create on the public." Country Tweeds, Inc. v. F.T.C., 326 F.2d 144, 148 (2d

Cir. 1964) (analyzing materiality under the Federal Trade Commission Act) (citation omitted).

That is why to determine whether something is materially misleading, the "New York Court of

Appeals [] adopted an objective definition of 'misleading,' under which the alleged act must be

likely to mislead a reasonable consumer acting reasonably under the circumstances." Parks, 377

F. Supp. 3d at 247 (quoting Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007))

(emphases added). Plaintiff's subjective, absolutist view of what is misleading does not matter

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because Defendants need not satisfy the intricate wishes of the most sensitive, absolutist

consumers. See Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, NA., 647

N.E.2d 741, 745 (N.Y. 1995) ("In the case of omissions in particular—the subject of the present

case—the statute surely does not require businesses to ascertain consumers' individual needs and

guarantee that each consumer has all relevant information specific to its situation.").

Thus, Plaintiff is wrong when he says that "materiality goes to the representation at issue,"

and nothing else. See ECF No. 45, Opp., at 5. Plaintiff is claiming that Defendants misled the

public because of "omissions of fact." ECF No. 32, Am. Compl., ¶ 12; see also ECF No. 45, Opp.,

at 8 (claiming that the Complaint is sufficient "so long as the plaintiff saw a deceptive statement").

Yet in "cases alleging a deceptive act based on an omission, it is not sufficient for a plaintiff to

point solely to the omission." Dimond v. Darden Rests., Inc., 2014 WL 3377105, at *13 (S.D.N.Y.

July 9, 2014) (emphasis added) (citation omitted). Indeed, "[b]ecause this is a purportedly

deceptive act based on an omission, it is not sufficient for the plaintiff[] to point to the omission

alone"; instead, he "must also show why the omission was deceptive—a duty []he[] ha[s]

shunned." Pelman v. McDonald's Corp., 237 F. Supp. 2d 512, 529 (S.D.N.Y. 2003) (dismissing

complaint in its entirety) (emphasis added), cited in Opp. at 8. Here, Plaintiff could have done this

by accepting the Court's invitation and plausibly alleging that reasonable consumers "cared or

would care enough" about negligible amounts of glyphosate in Defendants' products. See, e.g., In

re Sling Media, 202 F. Supp. 3d at 360 (dismissing class action that "failed to plausibly allege that

reasonable consumers acting reasonably under the circumstances' cared or would care enough

about the imposition of these advertisements that Sling Media's failure to disclose a future plan to

disseminate advertisements was a 'material' omission") (citation omitted). He did not do so.

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Likewise, Plaintiff is wrong that "there is no requirement that Plaintiff Parks demonstrate

that the levels of glyphosate in the Products are 'harmful.'" ECF No. 45, Opp., at 2. The New York

Court of Appeals has explained that "§§ 349 and 350 comprise[] of ... a 'mini-FTC' act." People

ex rel. Spitzer v. Applied Card Sys., Inc., 894 N.E.2d 1, 10 (N.Y. 2008) (citation omitted). Because

these statutes are "modeled after the Federal Trade Commission Act, federal courts have

interpreted the statute[sl scope as limited to the types of offenses to the public interest that would

trigger Federal Trade Commission intervention under 15 U.S.C. § 45, such as potential danger to

the public health or safety." LVL XIII Brands, Inc. v. Louis Vuitton Malletier S.A., 209 F. Supp.

3d 612, 678 (S.D.N.Y. 2016) (emphasis added), aff'd, sub nom. LVL XIII Brands, Inc. v. Louis

Vuitton Malletier SA, 720 F. App'x 24 (2d Cir. 2017). Thus, this Court correctly tied the objective

standard of materiality to whether reasonable consumers' purchasing decisions would be affected

by negligible, innocuous amounts of glyphosate.

In the end, this Court allowed Plaintiff to re-plead his Complaint under the proper standard

and, in response, Plaintiff provided this Court with three studies—none of which have anything to

do with Defendant, its products, or the animals for which those products are intended. For example,

one of Plaintiff's studies said that the harmfulness of glyphosate "is still a debatable and

unresolved matter." ECF No. 32, Am. Compl., ¶ 50 (citing Mesnage et al., Multiomics Reveal

Non-alcoholic Fatty Liver Disease in Rats Following Chronic Exposure to an Ultra-low Dose of

Roundup Herbicide, 7 Sci. Rep. 39328 (2017)) (emphasis added), available at

https://www.nature.coni/articles/srep39328. Another study cited by Plaintiff said that glyphosate

is merely "a possible causal agent in the rise of cancers in pets." Id. at ¶ 52 (citing Anthony Samsel

& Stephanie Seneff, Glyphosate, Pathway to Modern Diseases IV: Cancer and Related

Pathologies, 15 J. Biological Physics & Chemistry 121 (2015) (emphasis added), available at

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haps://people.csail.mit.edu/senelf/SamselSeneffilyphosatelV.pdf. And the last study Plaintiff

cites in his Complaint similarly only theorized about "the possibility of adverse impacts on the

growth and survival of fish following chronic exposure" to glyphosate—a theoretical scenario not

remotely in the realm of what is pleaded in Plaintiff's Amended Complaint. Id. at ¶ 52 (citing

Tamsyn M. Uren Webster & Eduarda M. Santos, Global Transcriptomic Profiling Demonstrates

Induction of Oxidative Stress and of Compensatory Cellular Stress Responses in Brown Trout

Exposed to Glyphosate and Roundup, 16 BMC Genomics 32 (2015)), available at

https://bmegenomics.biomedeentral.com/artieles/10.1186/s12864-015-1254-5.

Given these studies, Plaintiff has not met his burden for pleading a plausible claim. It is

"well settled that a court may determine as a matter of law that an allegedly deceptive

advertisement would not have misled a reasonable consumer." Fink v. Time Warner Cable, 714

F.3d 739, 741 (2d Cir. 2013). Plaintiffs must do more than plausibly allege that a "label might

conceivably be misunderstood by some few consumers." Ebner v. Fresh Inc., 838 F.3d 958, 965

(9th Cir. 2016) (internal quotation marks omitted). Instead, Plaintiff must plausibly allege "that a

significant portion of the general consuming public or of targeted consumers, acting reasonably in

the circumstances, could be misled." Jessani v. Monini NA., Inc., 744 F. App'x 18, 19 (2018).

Here, Plaintiff fails to explain why studies about rats or fish and chronic exposure is

relevant to dogs and he makes no allegation about exposure levels because he cannot. And if the

FDA does not view such alleged trace levels as a health hazard, this Court should not second guess

the FDA's thoughtful consideration of the issue. He also provides nothing to suggest that liberal

pleading standards excuse his reliance on inapposite studies that merely suggest, at best, that the

basis for his claims are "possible." That is insufficient. The "plausibility standard ... asks for more

than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009) (citation omitted). Because Plaintiff has provided allegations enabling the Court to

infer no more than "the mere possibility of misconduct," id. at 679, Plaintiff "ha[s] not nudged

[his] claims across the line from conceivable to plausible" and his "complaint must be dismissed."

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

B. Even under Plaintiff's improper standard for materiality, the AmendedComplaint is implausible and should be dismissed.

Even if the Court just focused on the representation at issue, as Plaintiff suggests, the

Amended Complaint is still implausible because the exhibits he attaches to the Amended

Complaint show obvious, alternative explanations for the alleged misrepresentations that undercut

the inferences that Plaintiff asks this Court to draw about Defendants' conduct.

While Plaintiff cites consumer surveys (see ECF No. 45, Opp., at 11), those surveys

actually undermine the notion that his claims are plausible. For example, this Court cannot ignore

the fact that the 2019 survey Plaintiff cited concluded (1) "that it is possible for a final product to

be considered natural even if a process used to make the product is not"; and (2) that "[o]verall,

results suggested nuanced, and sometimes logically inconsistent, views about the meaning of

natural." Jayson L. Lusk, Consumer Perceptions of Healthy and Natural Food Labels 2 (Jan. 15,

2019), available at https://bit.ly/2Hy06ML, cited in ECF No. 32., Am. Compl., ¶ 38.

Defendants are not asking the Court to "weigh the evidentiary value" of Plaintiff's surveys.

See ECF No. 45, Opp., at 10. Instead, Plaintiffs are simply asking the Court to apply the standard

that Plaintiff says the Court should apply because, as he says, "the findings of the surveys, are

taken as true" for "purposes of a Rule 12(b)(6) motion." Id. at 12 (citations omitted).

For example, assuming Plaintiffs cited survey is true, then Plaintiff's own Amended

Complaint confirms that consumers can consider products natural even if a process used to make

the products is not. And this goes to the heart of why this Court took issue with the fact that "Parks

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assert[ed] that the Products contain trace amounts of glyphosate, but not that the Products are

composed of unnatural ingredients." Parks, 377 F. Supp. 3d at 247 (emphasis added).

As this Court went out of its way to emphasize, the failure to plead that the Products are

composed of unnatural ingredients is problematic because the FDA has "stated that when it

established [its Natural'] policy, 'it was not intended to address food production methods, such

as the ... the use of pesticides ....'" Id. (quoting 80 Fed. Reg. 69,905, 69,906 (Nov. 12, 2015)).

Though this was not dispositive, this helped guide this Court's opinion because the Court noted

that "`[i]t is far more misleading to call a product 'natural' when the defendant has introduced

unnatural ingredients than it is to call a product 'natural' when it contains trace amounts of a

commonly used pesticide introduced early in the production process.'" Id. (quoting Axon v. Citrus

World, Inc., 354 F. Supp. 3d 170, 183 (E.D.N.Y. 2018)).2

Still, Plaintiff says that "[t]his proposition seems extraordinarily strange." ECF No. 45,

Opp., at 17. As Defendants expected, Plaintiff's counsel tries to re-litigate the Axon decision by

spending more than three pages arguing that the decision in "Axon is likely to be reversed." See

id. at 17-21. But there is no need to re-litigate this issue. This Court pointed out that it was

problematic that Plaintiff did not allege that Defendants make their products with unnatural

ingredients. Plaintiff ignored this warning and reiterated his unreasonable and absolutist position

that Defendants should be liable if glyphosate was used at any point during production.

Plaintiff's disagreement with the Court does not matter because Plaintiff's own survey

confirms that consumers can consider products natural even if a process used to make the products

2 See also Axon, 354 F. Supp. 3d at 183 (quoting Podpeskar v. Dannon Co., Inc., 2017 WL6001845, at *5 (S.D.N.Y. Dec. 3, 2017) to note that a "plaintiff's claims that she was deceived byyogurt labels containing the word "natural" because rather than alleging that an ingredient used inthe products was unnatural, plaintiff contended that 'several steps back in the food chain, theremay have been something unnatural ingested by a cow'").

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is not. This is unsurprising given that whatever ingredient in the products that allegedly contained

glyphosate residue was itself natural as it was grown in the ground. Thus, this Court should

continue to draw on its "judicial experience and common sense" by continuing to recognize the

"obvious alternative explanation" that shows the implausibility of Plaintiff's allegations—namely,

that it is not materially misleading to call a product 'natural' when a product merely allegedly

contains trace amounts of a commonly used herbicide introduced early in the production process.

Indeed, as Plaintiff's cited survey confirms, this is because "it is possible for a final product to be

considered natural even if a process used to make the product is not." Lusk, Consumer Perceptions,

at 2, cited in ECF No. 32., Am. Compl., ¶ 38; accord lqbal, 556 U.S. at 679, 682 ("Determining

whether a complaint states a plausible claim for relief will ... be a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense" and choose

"between [an] 'obvious alternative explanation' for [conduct] and the [conduct a plaintiff] asks us

to infer") (citation omitted); Twombly, 550 U.S. at 567-68, 570 (accepting "an obvious alternative

explanation" when, as here, "the complaint itself gives reasons to believe" the alternative

explanation, and dismissing case because the plaintiff had not pleaded "enough facts to state a

claim to relief that is plausible on its face"); New Jersey Carpenters Health Fund v. Royal Bank of

Scotland Grp., PLC, 709 F.3d 109, 121 & n.5 (2d Cir. 2013) (explaining that "competing

inferences" can "prevent the plaintiff's desired inference from qualifying as reasonable" when, as

here, "one of those competing inferences rises to the level of an 'obvious alternative explanation'

that "impugn[s] the inference of liability that the [plaintiff] asks [the court] to draw").

As another example, assuming that Plaintiff's cited survey is true, Plaintiff's Amended

Complaint also confirms that consumers have inconsistent views about the meaning of the term

"natural." For example, the survey notes, among other things, that "[c]onsumers perceived organic

-10-


as natural." Lusk, Consumer Perceptions, at 29, cited in ECF No. 32., Am. Compl., ¶ 38. This also

lines up with this Court's thinking about the implausibility of Plaintiff's allegations because this

Court acknowledged that "[i]t is implausible that a reasonable consumer would believe that a

product labelled as ... '100% Natural' could not contain a trace amount of glyphosate that is far

below the amount permitted for organic products" given the reality "that '[i]t would be nearly

impossible to produce a processed food with no trace of any synthetic molecule.'" Parks, 377 F.

Supp. 3d at 247-48 (quoting In re Gen. Mills Glyphosate Litig., 2017 WL 2983877, at *6 (D.

Minn. July 12, 2017)). After all, as another court has found, "[c]onsumers generally conflate the

notions of 'natural' and 'organic,' ... and, thus, it is implausible that a reasonable consumer would

believe ingredients allowed in a product labeled 'organic,' ... would not be allowed in a product

labeled 'all natural.'" Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973, 979 (C.D. Cal. 2013). Thus,

there is nothing wrong with this Court continuing to draw on its judicial experience and common

sense by continuing to recognize that it is neither plausible nor reasonable to infer that the presence

of negligible amounts of glyphosate in dog food is likely to affect consumers' decisions. Especially

when the obvious alternative explanation is that reasonable consumers have "nuanced, and

sometimes logically inconsistent, views about the meaning of natural." Lusk, Consumer

Perceptions, at 29, cited in ECF No. 32., Am. Compl., ¶ 38; accord Iqbal, 556 U.S. at 679, 682;

Twombly, 550 U.S. at 567-68, 570; New Jersey Carpenters Health Fund v, 709 F.3d at 121 & n.5.

Plaintiff's Amended Complaint is implausible because obvious alternative explanations

from his own pleadings undercut the inferences that he is asking this Court to draw. In such a

situation, something more is required than just pleading the conclusion he wishes to prove. See,

e.g., In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1108 (9th Cir. 2013) ("When faced

with two possible explanations, only one of which can be true and only one of which results in

-11-


liability, plaintiffs cannot offer allegations that are merely consistent with their favored explanation

but are also consistent with the alternative explanation. Something more is needed, such as facts

tending to exclude the possibility that the alternative explanation is true, in order to render

plaintiffs' allegations plausible within the meaning of Iqbal and Twoinbly.") (emphasis added);

Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) ( "In applying this new, refined

standard, we have held that plausibility refers to the scope of the allegations in a complaint: if they

are so general that they encompass as wide swath of conduct, much of it innocent, then the

plaintiffs have not nudged their claims across the line from conceivable to plausible.") (internal

quotation marks and citations omitted). Thus, the Amended Complaint should be dismissed.

C. Plaintiff's remaining arguments are unavailing.

Plaintiff's other arguments about materiality are unpersuasive. For example, he cites

several cases from the District of Columbia Superior Court to generalize that "[c]ourts have

repeatedly found that where there is glyphosate residue, no matter what the amount, a 'natural'

label can be misleading." ECF No. 45, Opp., at 3 (citations omitted). Not so. These cases, all

brought under D.C.'s consumer protection statute, are anomalous. See D.C. Code §§ 28-3904(a),

(d). Every federal court to consider this issue about "natural" products with glyphosate residue has

dismissed the cases on the pleadings. See In re Gen. Mills Glyphosate Litig., 2017 WL 2983877,

at *5; Axon, 354 F. Supp. 3d at 183; Gibson v. Quaker Oats Co., 2017 WL 3508724, at *1, *4

(N.D. Ill. Aug. 14, 2017); Parks, 377 F. Supp. 3d at 248; Beyond Pesticides v. Dr Pepper Snapple

Grp., Inc., 2019 WL 2744685, at *1 (D.D.C. July 1, 2019).

Plaintiff also argues that Defendants cannot advertise their products as being natural dog

food "and also take advantage of consumer confusion to represent that the food meets a special

`natural' standard.'" ECF No. 45, Opp., at 14. But Plaintiff cites no law for this proposition.

Meanwhile, courts in this District have held that merely alleging general consumer confusion is

-12-

Case 1:18-dv-06936-LLS Document 46 Filed 09/17/19 of 34

not enough under section 349. See, e.g., LVL XIII Brands, 209 F. Supp. 3d at 678 ("many courts

have found that mere evidence of consumer confusion is not enough") (collecting cases).3

Finally, Plaintiff argues that "nothing requires Plaintiff Parks to attach laboratory

documents to his pleading." ECF No. 45, Opp., at 16-17. But Defendants never argued that

Plaintiff had to attach the laboratory testing. See ECF No. 41, Mem. in Supp. of Mot. to Dismiss,

at 9-10. Instead, Defendants explained that the Amended Complaint is insufficient under Rule 8

because Plaintiff has given Defendants notice "of what the ... claim is," but not "the grounds upon

which it rests." Twombly, 550 U.S. at 545 (citation and quotation marks omitted) (emphasis added).

Defendants explained that Plaintiff failed to plead the requisite "further factual enhancement" for

the Amended Complaint—like the name of the independent laboratory that did the testing; the

name of the products tested; the conditions of the testing; and whether other testing took place on

the same products. Plaintiff has only put forth an "unadorned, the-defendant-unlawfully-harmed-

me accusation," Iqbal, 556 U.S. at 678, 696 (citation omitted). He can say this is just fine because

he claims Defendants "will receive the relevant reports" with the requisite information "in

discovery, per the usual course of litigation." ECF No. 45, Opp., at 16. But that is not how "the

usual course of litigation" works. "Rule 8 ... does not unlock the doors of discovery for a plaintiff

armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-79 (citation omitted). The

3 See also, e.g., Sports Traveler, Inc. v. Advance Magazine Publishers, Inc., 1997 WL137443, at *3 (S.D.N.Y. Mar. 24, 1997) ("The Courts of this Circuit have held that trademarkinfringement actions alleging only general consumer confusion do not threaten the direct harm toconsumers that is required to state a claim under section 349.") (collecting cases); Stadt v. FoxNews Network LLC, 719 F. Supp. 2d 312, 323-24 (S.D.N.Y. 2010) (dismissing § 349 claim wherecomplaint merely alleged consumer confusion from trademark infringement); LBB Corp. v. LucasDistrib., Inc., 2008 WL 2743751, at *3 (S.D.N.Y. Jul. 14, 2008) (same); La Cibeles, Inc. v. Adipar,Ltd., 2000 WL 1253240, at *15 (S.D.N.Y. Sept. 1, 2000) (same).

-13-


Amended Complaint is insufficient because "it tenders 'naked assertion[s]' devoid of 'further

factual enhancement.'" Id. at 678 (citation omitted).4

II. Plaintiff lacks standing to pursue these claims on behalf of the class and himself

Plaintiff's arguments about standing are equally flawed as his arguments about materiality.

Nothing in his Opposition rebuts the fact that he has disclaimed a threat of future harm for himself.

Thus, he cannot pursue claims for injunctive relief on behalf of the class. Also, contrary to what

he suggests, the law in the Second Circuit precludes Plaintiff from pursuing claims for products

that he did not buy. And for whatever product Plaintiff did buy, he lacks standing because he has

not pleaded that the product he bought had any glyphosate residue.

A. Plaintiff cannot obtain injunctive relief on behalf of the class because he has stillfailed to allege a risk of future harm for himself.

To start, Plaintiff claims that he has standing to sue for injunctive relief on behalf of the

class because he alleged that he wants to "continue purchasing Rachael Ray Nutrish's Products

and therefore wishes to see them made actually 'natural' and truthfully advertised." ECF No. 45,

Opp., at 21 (quoting ECF No. 32, Am. Compl., ¶ 27).

4 Plaintiff's attempt to justify his strategic decision to not attach the laboratory documents

to the Amended Complaint is disingenuous. Plaintiff acknowledges that the Third Circuit and other

courts seek to avoid situations in which "a plaintiff with a legally deficient claim could survive a

motion to dismiss simply by failing to attach a dispositive document upon which it relied." ECFNo. 45, Opp., at 17 (citing Benefits Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196

(3d Cir. 1993)). But Plaintiff says that this Rule, does not apply here because this is not a situation

in which the "defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are

based on the document." Ibid. This makes no sense. Plaintiff, and only Plaintiff, is aware of thismysterious testing that supposedly uncovered glyphosate in Defendants' products. Yet hepurposely failed to attach that laboratory document or provide the most basic facts about thelaboratory testing. To permit this gamesmanship here would do nothing but allow "a plaintiff witha legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositivedocument upon which it relied." Ibid. Thus, reading the rule as Plaintiff suggests would subvertthe rule's purpose. This Court should not condone this gamesmanship for a Complaintinadequately pleaded under Rule 8(a).

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Plaintiff's boilerplate assertion misses the point. It is Plaintiffs view that to correct the

alleged wrong here, the product could be reformulated to exclude glyphosate or that the term

"natural" could be removed from the label. But neither solution fits his theory of the case. The

Complaint merely alleges that the deception results from the presence of glyphosate residue from

its use "at some point in the production process," not that glyphosate is an ingredient. See, e.g.,

ECF No. 32, Am. Compl., ¶¶ 44-45. No reformulation of ingredients could address the alleged

introduction of molecular levels of a synthetic biocide at some unknown point in the production

process and no regulation requires any such action. And the court is certainly unable to fashion

injunctive relief to order such a reformulation. Plaintiffs alternative remedy, removal of the term

natural, provides him nothing. His Complaint states that had he known about the presence of

glyphosate at the time, he would not have purchased or continued to purchase the product. Id., ¶

26. In other words, he will not, in the future, purchase a product that contains trace levels of

glyphosate no matter how it is labeled. Now that he is aware of the alleged presence of glyphosate

that he admits is beyond Defendant's control, he will not purchase the product, depriving him of

standing to pursue an injunction.

As he acknowledges, the most recent case from this District dismissed claims for injunctive

relief in a situation like this one when a plaintiff effectively "concedes she is no longer likely to

purchase a product because she knows of a defendant's alleged deception and false advertising

lacks standing to enjoin the defendant's sales practices." Suarez v. California Nat. Living, Inc.,

2019 WL 1046662, at *4 (S.D.N.Y. Mar. 5, 2019), cited in Parks, 377 F. Supp. 3d at 250.

As he did last time, Plaintiff "alleges that if he knew the Products contained glyphosate, he

would not have purchased or continued to purchase them." Parks, 377 F. Supp. 3d at 249 (citation

omitted); see ECF No. 32, Am. Compl., ¶ 26 ("Had Parks known at the time that Rachael Ray

-15-


Nutrish's Products contained residues of the unnatural biocide glyphosate, he would not have

purchased or continued to purchase Rachael Ray Nutrish's Products."). Because he admits that he

"would not have ... continued to purchase" Defendants' products but for Defendants' alleged false

misrepresentation, see ECF No. 32, Am. Compl., ¶ 26, this Court has already correctly

acknowledged that Plaintiff's statement about his future wishes is "'effectively a concession that

[]he does not intend to purchase the product in the future." Parks, 377 F. Supp. 3d at 249 (quoting

DaCorta v. AM Retail Grp., Inc., 2018 WL 557909, at *3 (S.D.N.Y. Jan. 23, 2018)).

Indeed, contrary to Plaintiff's suggestion, this case should be dismissed just like in

Campbell v. Freshbev LLC because he "does not plead that he intends or desires to purchase

[Defendants' Products] in the future." 322 F. Supp. 3d 330, 338 (E.D.N.Y. 2018). Of note, he

qualifies his desire to purchase Defendants' Products again in the future on the condition that his

willingness to make such a future purchase depends on the requirement that the Products are "made

actually 'natural' and truthfully advertised." ECF No. 32, Am. Compl., ¶ 27. This is a failure "`to

allege that he intends to [purchase the offending product] in the future.' Kommer v. Bayer

Consumer Health, a division of Bayer AG, 710 F. App'x 43, 44 (2d Cir. 2018) (emphasis added)

(citation omitted and alteration in original). And that is required. See Nicosia v. Amazon.com, Inc.,

834 F.3d 220, 239 (2d Cir. 2016) (no standing "unless the plaintiff can demonstrate that she is

likely to be harmed again in the future in a similar way.") (emphasis added) (citation omitted).

Put simply, the "speculative nature of [Plaintiffs'] claim of future injury requires a finding

that this prerequisite" for standing "has not been fulfilled." City of Los Angeles v. Lyons, 461 U.S.

95, 111 (1983). Plaintiff lacks standing to sue for injunctive relief because he "does not allege

future injury" by simply making the "statement that If Rachael Ray Nutrish's Products were

reformulated such that Rachael Ray Nutrish's representations were truthful, i.e., such that its

-16-


Products were 'Natural' and contained no glyphosate, Parks would consider purchasing Rachael

Ray Nutrish's Products in the future.'" Parks, 377 F. Supp. 3d at 249 (quoting Buonasera v. Honest

Co., Inc., 208 F. Supp. 3d 555, 564 (S.D.N.Y. 2016), for its "holding that the allegation 'If Honest's

products were reformulated such that its representations were truthful, Plaintiff would consider

purchasing Honest's products in the future' is 'insufficient to allege future injury").

B. Plaintiff cannot pursue claims for products he did not purchase.

Next, Plaintiff says he can bring claims for products that he did not purchase because he

claims that "the extent of the class that Plaintiff Parks can represent ... is reserved for class

certification proceedings." ECF No. 45, Opp., at 23. Again, Plaintiff is wrong. Indeed, putting

aside his failure to state what recipe of Defendants' Product he bought,5 which alone is sufficient

for dismissal,6 and assuming Plaintiff bought the Product identified in his Amended Complaint,

see ECF No. 32, Am. Compl., at Fig. 1, this issue is ripe for resolution on a motion to dismiss.

The Supreme Court has stressed that an "[i]njury in fact is a constitutional requirement"

and not even Congress can "erase Article III's standing requirements by statutorily granting the

right to sue to a plaintiff who would not otherwise have standing." Spokeo, Inc. v. Robins, 136 S.

Ct. 1540, 1547-48 (2016), as revised (May 24, 2016) (citation omitted). "Particularization is

necessary to establish an injury in fact," and for "an injury to be 'particularized,' it 'must affect

5 Plaintiff never states what recipe of Defendants' Product he bought. Instead, he broadlystates that, "[d]uring the class period, [he] purchased Rachel Ray Nutrish's Products on multipleoccasions at a BJ's Wholesale Club on Exterior Street in Bronx, New York." ECF No. 32, Am.Compl., ¶ 23. He then tries to bring all of Defendants' Products into the orbit of the AmendedComplaint by saying he is bringing this "case on behalf of a class of consumers who purchasedthe Products in New York." Id., ¶ 15. And then he says "[d]iscovery may demonstrate thatadditional ... products are within the scope of this Amended Complaint." Id. at 1 n. 1. As discussed,that is not how this works. See Iqbal, 556 U.S. at 678-79 ("Rule 8 ... does not unlock the doors ofdiscovery for a plaintiff armed with nothing more than conclusions.") (citation omitted).

6 See Holve v. McCormick & Co., Inc., 334 F. Supp. 3d 535, 548 (W.D.N.Y. 2018) ("Thereare no specific allegations regarding the purchase of any of the Other Products.... Plaintiff lacksstanding to assert claims on her own behalf related to the Other Products.").

-17-


the plaintiff in a personal and individual way.'" Id. at 1548 (quoting Lujan v. Defs. of Wildlife, 504

U.S. 555, 561 n.1 (1992)) (emphasis added); see also Powers v. Ohio, 499 U.S. 400, 410 (1991)

(explaining that, "[i]ri the ordinary course, a litigant must assert his or her own legal rights and

interests, and cannot rest a claim to relief on the legal rights or interests of third parties."). This

analysis does not change for class actions. Cf. Spokeo, 136 S. Ct. at 1547 n.6 ("That a suit may be

a class action ... adds nothing to the question of standing, for even named plaintiffs who represent

a class 'must allege and show that they personally have been injured, not that injury has been

suffered by other, unidentified members of the class to which they belong.' (quoting Simon v.

Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40, n. 20 (1976))).

Nevertheless, even with the well-established parameters of Article III standing, Plaintiff

argues that the Court should ignore Article III's requirements because he says it "makes sense to

wait until class certification proceedings, after class discovery, to determine the extent of the class

the named plaintiff can represent, because that determination rests upon whether the Product

varieties are sufficiently similar." ECF No. 45, Opp., at 24. This Court should not do so.

Plaintiff's argument depends on a misguided attempt to analogize this case to the Second

Circuit's decision in NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., where the

court said a plaintiff had class standing to assert the claims of others because the plaintiff in that

case alleged "(1) that he 'personally has suffered some actual ... injury as a result of the putatively

illegal conduct of the defendant,' and (2) that such conduct implicates 'the same set of concerns'

as the conduct alleged to have caused injury to other members of the putative class by the same

defendants." 693 F.3d 145, 162 (2d Cir. 2012) (citations omitted). But neither situation is present

here. Plaintiff has not personally alleged that he suffered an actual injury because he failed to plead

facts showing that the product he bought contained trace levels of glyphosate. See infra Section

-18-


II.B. And even if he did, the conduct for which he complains does not implicate "the same set of

concerns" applicable to others because he does not try to advance the speculative allegation that

every product Defendant has produced, or will produce, contains glyphosate residue.

In reality, this case is controlled by the Second Circuit's opinion in Retirement Board of

the Policeman 's Annuity and Benefits Fund of the City of Chicago v. Bank of New York Mellon,

when the Second Circuit said that a plaintiff lacks standing to sue on behalf of others where "the

nature of the claims ... unavoidably generates significant differences in the proof that will be

offered for each" plaintiff and the named plaintiff would have to go on a "quest to show

[defendant's] wrongdoing" for other plaintiffs. See 775 F.3d 154, 163 (2d Cir. 2014). Here, the

nature of the claims unavoidably generates significant differences in the proof for each plaintiff.

As Plaintiff concedes, his claims do not implicate the same set of concerns of the absent class

members because he admits that this Court will have to engage in a "fact-intensive determination"

to determine "whether the Product varieties are sufficiently similar." ECF No. 45, Opp., at 24-25.

Plaintiff's suggested course of action would require the Court to determine whether each Plaintiff's

product contains glyphosate, and also whether the amount of glyphosate in the product is a material

to a reasonable consumer. This would be a time-consuming, fact-intensive determination.

The proper course is to limit Plaintiff to the product he bought—if any. See Goldemberg v.

Johnson & Johnson Consumer Cos., Inc., 317 F.R.D. 374, 391 (S.D.N.Y. 2016) ("[B]ecause

Plaintiffs cannot demonstrate that the claims involving their 18 products are the same in all

essential respects to the claims absent members would have for the other 72 products (the

questions of proof are product specific), each Named Plaintiff only has standing on behalf of others

with regard to products they actually purchase.") (citation omitted); Hart v. BHH, LLC, 2016 WL

2642228, at *4 (S.D.N.Y. May 5, 2016) (no standing to assert claims for non-

-19-


purchased products because, as here, "unique evidence would be required to prove" claims about

other products); Chin v. Gen. Mills, Inc., 2013 WL 2420455, at *3 (D. Minn. June 3, 2013) ("It is

clear from the face of Plaintiffs' Complaint that neither [Plaintiff] purchased the Protein Chewy

Bars or Yogurt Chewy Granola Bars. The named plaintiffs in a class action may not rely on injuries

that the putative class may have suffered, but instead must allege that they personally have been

injured."). There is no reason to depart from the requirement that, "[o]rdinarily, of course, this or

any other Article III court must be sure of its own jurisdiction before getting to the merits." Ortiz

v. Fibreboard Corp., 527 U.S. 815, 831 (1999); accord Steel Co. v. Citizens for a Better Env 't,

523 U.S. 83, 92 (1998) (explaining there is not "a single case in which this Court has done what

[Plaintiff] proposes, to wit, call the existence of a cause of action 'jurisdictional,' and decide that

question before resolving a dispute concerning the existence of an Article III case or controversy").

C. Plaintiff lacks a "particularized" basis to allege all of Defendants' productscontained the negligible amount of glyphosate from the laboratory testing

Finally, Plaintiff says he has alleged a particularized injury because he claims his Amended

Complaint "alleges that the Products uniformly contain glyphosate, as a result of the production

process of ingredients in their supply chain." ECF No. 45, Opp., at 26 (citation omitted). Plaintiff's

Amended Complaint alleges no such thing—and even if it did, such an allegation would be an

impermissible, conclusory allegation that this Court need not entertain.

Plaintiff merely states that, "[o]n information and belief, in order for glyphosate residue to

be present, the Products are produced with ingredients tainted by this synthetic biocide." ECF No.

32, Am. Compl., ¶ 39. But the only product the Amended Complaint alleges contains glyphosate

is the one in the testing in "Exhibit A," which Plaintiff failed to attach to the Complaint. See ECF

No. 32, Am. Compl., ¶ 53. Nothing in the Amended Complaint remotely suggests that this

supposed testing encompassed "all" of Defendants' Super Premium Food for Dogs.

-20-


Plaintiff's argument that "[n]owhere does the Amended Complaint allege that only certain

packages or recipes are contaminated" fares no better. ECF No. 45, Opp., at 26. Nowhere does the

Amended Complaint allege anything about the packages or recipes that are allegedly

contaminated. That is the point. Plaintiff only makes an allegation about Defendants' process for

producing food and then apparently expects this Court to infer that this allegation about

Defendants' food production somehow extends to every bag of dog food that Defendants have

ever manufactured. That is not a reasonable inference.

In any event, even if this Court were to inclined to infer that Plaintiff was suggesting that

all of Defendants' Products have glyphosate in them, this Court would be precluded from

considering Plaintiff's allegation because it is made on "information and belief." To be sure,

pleading allegations on information and belief is proper when information is "particularly within

[a defendant's] knowledge and control." Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008). No

doubt, that is why Plaintiff alleged that "only Rachael Ray Nutrish and its suppliers know the

source of the glyphosate in the Products." ECF No. 32, Am. Compl., ¶ 39. But the problem for

Plaintiff is that the alleged presence of glyphosate in his product is not particularly within

Defendants' knowledge and control. Indeed, there was nothing stopping Plaintiff from buying his

products and testing for glyphosate. And Plaintiff's counsel knows this because they had another

plaintiff in Washington, D.C., sue Mott's, LLP after that plaintiff "bought Mott's applesauce and

apple juice, tested it, and found trace synthetic pesticide residue." Beyond Pesticides, 2019 WL

2744685, at *1 (dismissing case for lack of Article III standing).

Thus, Plaintiff's claims must fail because Plaintiff fails to allege that his product contained

trace levels of glyphosate and this failure is fatal to Plaintiff's claim because he has not pleaded a

particularized injury and lacks standing. The "burden of establishing" jurisdiction and Article III

-21-


standing "rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994). Plaintiff fell short.

Indeed, Plaintiff does not even try to distinguish Gaminde v. Lang Pharma Nutrition, Inc.,

when the court dismissed the complaint because it found that it was "speculation to allege that

because two CVS Krill Oil bottles in a USDA study were found to have less than the stated amount

of Omega-3 Krill Oil, the bottle that [plaintiff] purchased must as well" 2019 WL 1338724, at *2

(N.D.N.Y. Mar. 25, 2019). (citations omitted). Nor does Plaintiff address Wallace v. ConAgra

Foods, Inc., where the Eighth Circuit dismissed a complaint because the plaintiffs' "allegations

fail[ed] to show that any of the particular packages of Hebrew National beef they personally

purchased contained non-kosher beef" and plaintiffs "gave no reason to think all the beef marked

as kosher under the quota did not meet kosher standards." 747 F.3d 1025, 1030 (8th Cir. 2014).

(emphases added). And these were the cases Defendants relied on when arguing to dismiss the

Amended Complaint.7 Thus, this Court should follow the approach of these cases because Plaintiff

7 According to Plaintiff, Defendants said that this Court should "disregard the allegationsof the Amended Complaint" and "relied on Morrison v. National Australian Bank Ltd. and CitadelManagement Inc. v. Telesis Transport, Inc." to do so. See ECF No. 45, Opp., at 27. But Defendantsdid not say this. Defendants said this Court should dismiss the Amended Complaint because itwould be improper "to speculate to accept the inferences in Plaintiff's AC." ECF No. 41, Mem. inSupp. of Mot. to Dismiss, at 21. In response, Plaintiff says that the decision in John v. Whole FoodsMarket Group Inc., "explicitly rejected" the notion that district courts cannot speculate. See ECFNo. 45, Opp., at 27 (quoting 858 F.3d 732, 737 (2d Cir. 2017)). But John also said no such thing.See 858 F.3d at 736 (explaining that an injury must be "concrete and particularized and actual orimminent, not conjectural or hypothetical.") (quoting Spokeo, 136 S. Ct. at 1548) (emphasisadded). The other case cited by Plaintiff also does not support the idea that courts can speculate.See Holve, 334 F. Supp. 3d at 548 (refusing "to speculate which of the Other Products Plaintiffpurchased" and, "therefore, find[ing] that Plaintiff lacks standing"). And other courts applyingJohn have refused to extend John's reach that far. See Cohen v. New York City Dep't of Educ.,2018 WL 6528241, at *2 (S.D.N.Y. Dec. 12, 2018) ("In sum, Plaintiffs' theory of harm posits aspeculative injury—expulsion—based on a dubious premise that M.C.'s tuition is currentlyowing. Because this harm is thus doubly 'hypothetical' and 'conjectural,' John, 858 F.3d at 736,Plaintiffs have not suffered an injury-in-fact sufficient for Article III standing, and their Complaintmust be dismissed.") (citation omitted). Plaintiff is simply incorrect.

-22-


has not alleged facts supporting an inference that the particular recipe of Defendants' products

that Plaintiff personally bought contained the trace amounts of glyphosate from laboratory testing.

See Gaminde, 2019 WL 1338724, at *2; ConAgra Foods, 747 F.3d at 1030-31.8

III. In the alternative, this court should dismiss this case pending the EPA's review ofglyphosate and the FDA's guidance on the definition of "natural"

Plaintiff's arguments against dismissing this case under the primary jurisdiction doctrine

are overstated. Simply following the opinion in Scholder v. Riviana Foods Inc.—another case

litigated by Plaintiff's counsel—shows that Plaintiff's arguments differ from a "number of courts

who have deferred to the FDA's expert and specialized knowledge on this subject, and await

pertinent guidance on the permissible uses of the term 'natural' in food labeling." 2017 WL

2773586, at *3 (E.D.N.Y. June 23, 2017).

For example, Plaintiff says that "the questions raised by this case are within the

conventional experience of judges and the courts." ECF No. 45, Opp., at 29. But the Court in

Scholder told Plaintiff's counsel that courts in the Second Circuit do not necessarily see it that

way. See 2017 WL 2773586, at *3 ("[A]lthough judges and juries regularly address complex

scientific issues without regulatory guidance, the balance of relevant factors nevertheless weigh[s]

in favor of deference to the FDA's rulemaking process"). Plaintiff also says that "whether

reasonable consumers would be misled under New York law is not solely, or at all, within the

EPA's or the FDA's discretion." ECF No. 45, Opp., at 30 (citations omitted). But this conflicts

with Scholder's acknowledgment that "the question of whether the presence of certain

8 See also Fahey ex rel. D.C. v. Deoleo USA, Inc., 2018 WL 5840664, at *2 (D.D.C. Nov.8, 2018) (rejecting reliance on study results to support inference that particular bottle of productwas mislabeled because of the speculation and assumptions that would be required); Meyer v.Colavita USA Inc., 2011 WL 13216980, at *5 (S.D. Fla. Sept. 13, 2011) (dismissing claim where"[p]laintiffs d[id] not allege facts suggesting that the olive oil they purchased was not actuallyextra virgin olive oil" but "support[ed] their claims with speculation and unwarranted extrapolationfrom [a] [s]tudy's findings ... [that] involved a very limited sampling").

-23-


objectionable substances renders an 'all natural' food label misleading is apparently within the

scope of the FDA's discretion." 2017 WL 2773586, at *3. And Plaintiff says that adjudicating this

case "is unlikely to cause a substantial danger of inconsistent rulings." But the Court in Scholder

rejected this argument too, agreeing with other courts that awaiting FDA guidance on this issue

'would almost certainly help harmonize court rulings- an important consideration in view of the

fact that "Congress [did] not want to allow states to impose disclosure requirements of their own

on packaged food products, most of which are sold nationwide" in order to avoid the need for

"[m]anufacturers ... to print 50 different labels." 2017 WL 2773586, at *3 (citation omitted).

Contrary to what Plaintiff says, the FDA is pursuing this issue. In fact, less than a year ago,

the FDA wrote a letter informing Congress that the FDA's proceedings to define the word

"natural" on food labeling remain open and active; that the "FDA recognizes this is an important

matter for consumers and the food industry"; and that the FDA is "actively working on this issue,

and in 2019, the FDA plans to publicly communicate next steps regarding Agency policies related

to 'natural.'" Ex. A to Suber Decl., 12/18/18 FDA Letter to Congress.

This should not be ignored. If this Court thinks Plaintiffs Complaint adequately pleads a

plausible claim, this Court would gain significant insight from the FDA's forthcoming guidance

on the definition of "natural." After all, in his Opposition, Plaintiff asks this Court a key question:

"if a 'natural' product allow[s] for unnatural substances, what exactly would the word mean?"

ECF No. 45, Opp., at 15. Rather than deferring to Plaintiff's absolutist, subjective answer to that

question, the Court would be better served by awaiting the feedback from the FDA, which has

explained that it has "received and reviewed more than 7,600 comments" on this issue; it

"recognizes that there are widespread differences in beliefs regarding what criteria should apply

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for products termed 'natural"; and that it is formulating a definition so that "the 'natural' claim

must be true and based on science." Ex. A to Suber Decl., 12/18/18 FDA Letter to Congress.

That is why Defendants are asking this court to dismiss this case on primary jurisdiction

grounds. Defendants are not seeking "a stay of indefinite duration." ECF No. 45, Opp., at 32.

Defendants are asking this Court to exercise its discretion to dismiss this case awaiting the FDA's

answer on the question at the heart of this case. Cf. Ellis v. Tribune Television Co., 443 F.3d 71,

73 (2d Cir. 2006) (invoking the primary jurisdiction doctrine to vacate and remand with directions

to dismiss); Read v. Corning Inc., 351 F. Supp. 3d 342, 352 (W.D.N.Y. 2018) (dismissing claims

under primary jurisdiction doctrine after explaining that "it is a prudential doctrine under which

[a] court may, under appropriate circumstances, determine that the initial decision-making

responsibility should be performed by the relevant agency rather than the courts.").

IV. Punitive damages are unavailable.

Finally, Plaintiff is not entitled to punitive damages because punitive damages are only

available in instances of intentional conduct. See, e.g., Morales v. Kavulich & Assocs., P.C., 294

F. Supp. 3d 193, 198 (S.D.N.Y. 2018). Plaintiff says punitive damages should be available because

"[t]he flagrant conduct at issue is the misleading and intentional use of the 'natural' label despite

knowledge of the presence of the synthetic biocide glyphosate." ECF No. 45, Opp., at 34 n. 24.

But Plaintiff did not sufficiently plead on "information and belief' that Defendants "know the

source of the glyphosate in the Products." ECF No. 32, Am. Compl., ¶ 39. Far from it, Plaintiffs

have no idea about the alleged glyphosate on the products. That is why Defendants have said

Plaintiff must provide at least the name of the laboratory that allegedly conducted the "testing."

Plaintiff has given Defendants notice "of what the ... claim is," but not "the grounds upon which

it rests." Twonibly, 550 U.S. at 545 (citation and quotation marks omitted).

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Plaintiff has scoffed at this Court's suggestion that he should need to plead that Defendant

intentionally introduced unnatural ingredients into the Products. But if this is the case, Plaintiff

should not be able to then argue that Defendants have engaged in intentional conduct. Plaintiff is

merely arguing that Defendants carelessly allowed glyphosate residue to remain on the products.

Thus, punitive damages are not allowed because the Amended Complaint fails to allege well-

pleaded facts showing the plausibility of intentional conduct. See Bracken v. MH Pillars Inc., 290

F. Supp. 3d 258, 267-68 (S.D.N.Y. 2017) ("[W]here punitive damages are permitted, it is only

`where the conduct of the party being held liable evidences a high degree of moral culpability, or

where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes

willful or wanton negligence or recklessness.' Here, the complaint makes no non-conclusory

allegation of this nature" and "falls far short of meeting the threshold for punitive damages.").

For the same reasons, Plaintiff is also not entitled to punitive damages for his breach of

warranty claim because it arises from a private contract and does not show egregious, intentional

wrongdoing. Accord Stein v. N Assurance Co. of Am., 2011 WL 13305251, at *17 (E.D.N.Y Jan..

25, 2011). Plaintiff suggests that there is some exception for a breach of warranty where "the

wrong is aimed at the public generally." ECF No. 45, Opp., at 34 (quoting Parke-Hayden v. Lowes

Theatre Mgmt. Corp., 789 F. Supp 1256, 1267 (S.D.N.Y. 1992)). But this misstates the standard,

as the case Plaintiff cites acknowledges that a plaintiff is not entitled to punitive damages for a

breach of warranty without allegations of intentional, "wanton" fraud on the public. See Parke-

Hayden, 789 F. Supp. at 1267 (collecting cases and also expressly acknowledging that private

contracts require not only "fraud 'aimed at the public generally,'" but also fraud "evincing a 'high

degree of moral turpitude,' and demonstrating 'such wanton dishonesty as to imply a criminal

indifference to civil obligations') (citation omitted). There are no such allegations here.

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CONCLUSION

For these reasons, Defendants move this Court for an order dismissing the Amended

Complaint in its entirety and with prejudice. In the alternative, however, and at minimum,

Defendants request an order dismissing these proceedings under the primary jurisdiction doctrine.

Dated: September 17, 2019 Respectfully submitted,

The J. M. Smucker Company andAinsworth Pet Nutrition, LLC

By: S/ Ronald Y. RothsteinRONALD Y. ROTHSTEINSEAN H. SOBER (pro hac vice)WINSTON & STRAWN LLP35 West Wacker DriveChicago, Illinois 60601(312) [email protected]@winston.com

Counsel for DefendantsThe J. M Smucker Company andAinsworth Pet Nutrition, LLC

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