Purina v. Blue Buffalo court fight sprawls

New projected trial date in 2017

Published: September 11, 2015
By Edie Lau

Under a schedule set last summer, dueling pet-food marketers Nestlé Purina PetCare Co. and The Blue Buffalo Co. Ltd. were to face off Monday before a jury in St. Louis.

That was before their battle over false advertising became a legal sprawl encompassing five more companies and four individuals, some involved in spin-off suits. The tangle of claims and counterclaims has prolonged the pretrial wrangling, pushing the projected trial date two years off.

The extensive case file in the U.S. District Court for the Eastern District of Missouri shows:

The high-profile food fight started in May 2014, when Nestlé Purina took Blue Buffalo to court, claiming false advertising. Blue Buffalo sells dog and cat foods that it touts as “made with whole meats, fruits and vegetables and other high-quality natural ingredients.” Blue Buffalo calls itself the “No. 1 brand in the Wholesome Natural market.”

Nestlé Purina said it obtained an independent laboratory analysis of Blue Buffalo food that found poultry byproduct meals along with corn, other grains and artificial preservatives — ingredients Blue Buffalo disparages and associates with pet-food giants such as Nestlé Purina.

Blue Buffalo dismissed the lab analysis as “junk science.” In a countersuit, it called Nestlé Purina’s legal complaint and related publicity “a smear campaign” borne out of fear of losing business to Blue Buffalo.

Blue Buffalo later stated that it learned through legal discovery that some of its food did contain poultry byproducts, which it said were mislabeled ingredients it purchased from Wilbur-Ellis and Diversified. That revelation prompted a Blue Buffalo suit against those two companies.

Diversified, in turn, filed complaints against Wilbur-Ellis and Custom Ag Commodities LLC, a wholesaler of fresh fruits and vegetables from which Diversified purchased Wilbur-Ellis ingredients.

Diversified alleges that Wilbur-Ellis and Custom Ag engaged in a cover-up to sell adulterated ingredients for pet-food production.

“Diversified ordered high-quality chicken and turkey meal without animal byproducts and feathers from Wilbur-Ellis through Custom Ag but [they] sold Diversified cheap low-grade meal blended with beaks, feet, viscera, feathers and other byproducts and sent Diversified inflated invoices and false bills of lading …” the suit contends.

On its website, Wilbur-Ellis describes itself as a leading international marketer and distributor of agricultural products, animal feed and specialty chemicals and ingredients. Owing to Wilbur-Ellis’s size, Diversified alleges that the fraud harmed the pet food and livestock food industries as a whole.

The suit states: “The … scheme operated by the Defendants (assuming it ended in 2014) was broad and far-reaching, stretching out over at least four years and included thousands of fraudulent transactions and predicate acts. The scheme injured a wide range of victims, including Diversified, Blue Buffalo, other pet food manufacturers, the pet food buyers and in all likelihood other commodities brokers that purchased feed ingredients from Wilbur-Ellis and Custom Ag.”

In a filing responding to Blue Buffalo's claims against it, Wilbur-Ellis acknowledges that some poultry products mixed at and shipped from its plant in Rosser, Texas, were mislabeled. However, it contends, Blue Buffalo and Diversified "knew or should have known the composition and nature of the ingredients Wilbur-Ellis provided to Diversified.”

The filing states: “These ingredients were usually labeled as poultry meal ‘blends’ or specifically referred to as ‘byproduct,’ and the prices at which Wilbur-Ellis sold to Diversified Industries reflected the actual ingredients it was selling.”

Wilbur-Ellis describes itself as a “minor third-party player” that should not have been drawn into the litigation, at least not at this point.

“However, Blue Buffalo did not wait and hurled the kitchen sink at Wilbur-Ellis as an ostensible third-party defendant,” Wilbur-Ellis argues in the document. “Instead of simply making the breach of contract and warranty claims that it might have asserted once liability became known, Blue Buffalo seeks to bring a dozen claims against Wilbur-Ellis ... This scorched-earth approach unnecessarily burdens Wilbur-Ellis and Diversified, the other parties to this litigation and, unavoidably, the Court.”

In a separate filing on Diversified's suit against it, Wilbur-Ellis argues similarly that the complaint “introduces more complication and confusion."

Besides the expanded scope of litigation, progress on the collection of suits has been slowed by squabbles over what information should be held confidential during discovery. In an order issued June 16, Judge Rodney W. Sippel expressed exasperation with the fighting.

“[T]he Court has reached the limits of its considerable patience with discovery disputes in this case….” Sippel wrote. “The Court feels compelled to remind all counsel of their ethical obligations to this court, each other and this noble profession. In short, play nice.”

Update: Blue Buffalo announced on Dec. 10 that it has agreed to pay $32 million to settle a consolidated class action alleging misleading advertising claims that its pet food contains no chicken/poultry byproduct meals or corn. The company did not admit wrongdoing. The suits involving Nestlé Purina and other players in the saga are continuing.

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