CHICAGO — A Chicago federal judge has canned a class action consumer fraud lawsuit against PetSmart and  Hill's Pet Nutrition, claiming the retailer and pet food maker unfairly marked up prescription cat food.

On Nov. 29, U.S. District Judge Samuel Der-Yeghiayan granted the companies' motion to dismiss the case brought by plaintiffs Holly Blaine Vanzant and Dana Land, who alleged HPN and PetSmart used fraud and deception to increase the profitability of selling prescription cat food.

Vanzant and Land owned cats that had severe health issues. After several appointments with veterinarians, the plaintiffs purchased prescription cat food, per the veterinarian's recommendations. The food was made by HPN and purchased at a PetSmart location.

The complaint alleges a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). In the complaint, Vanzant and Land contend that since the prescriptions allegedly were not required by law, HPN and PetSmart profited by selling the prescription cat food above market prices. 

The plaintiffs also argued that the use of the word prescription suggested the food had been evaluated by the U.S. Food and Drug Administration (FDA), allegedly deceiving consumers. In fact, the plaintiffs said they compared the ingredients of the prescribed cat food to others on the market, yet they chose to continue purchasing the cat food based on the veterinarian’s recommendation.

Der-Yeghiayan said, for the case to advance, plaintiffs must demonstrate the allegations in the complaint “plausibly suggest that the plaintiff has a right to relief, raising that possibility above ‘speculative level.'" To survive a motion to dismiss, the complaint must contain factual matter and be accepted as valid, allowing the judge to draw the reasonable inference that a defendant is liable.

The defendants argued the ICFA claim is barred by the ICFA safe harbor exception, which states that “nothing in the ICFA shall apply to actions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this state or the United States.” 

Der-Yeghiayan agreed with the defendants, holding that the plaintiffs "could have chosen to forego the therapeutic food for their cats."

"To the extent that [the] plaintiffs seek to pursue unfair practices claims under ICFA, there are no allegations that would suggest that [the] defendants engaged in conduct that would violate public policy," he said in the decision. "The allegations presented by [the] plaintiffs suggest that defendants acted in accordance with the guidance provided by the FDA, which is the relevant regulatory body."

The plaintiffs were represented in the action by attorneys with the Forde Law Offices LLP, of Chicago.

PetSmart was defended by the firm of Foley & Lardner, of Chicago and San Francisco. HPN was represented by the firms of O'Melveny & Myers LLP, of New York and Los Angeles, and Saul Ewing Arnstein & Lehr LLP, of Chicago. 

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Foley & Lardner LLP O'Melveny & Myers U.S. District Court for the Northern District of Illinois




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