Judge’s ruling to face appeal

During a 10-day period in February 2007, Margaret Picus’ two dogs suffered irreversible renal failure, and she had no idea why.

The day after euthanizing the second dog, the Henderson woman learned that pet food manufactured with contaminated wheat gluten from China had been linked to an outbreak of cat and dog illness throughout North America.

So in April 2007, Picus filed a class action lawsuit in Clark County District Court that accused Wal-Mart Stores and several pet food makers of scheming to deceive customers by selling products with a “Made in the USA” label.

“My lawsuit is more — I know this sounds silly — is to vindicate the dogs,” Picus said recently.

The defendants quickly removed the case to federal court, and last month U.S. District Judge Philip Pro ruled that Picus may not pursue the matter with a class action lawsuit.

California attorney Norman Blumenthal, who represents Picus, said he plans to appeal Pro’s ruling to the 9th U.S. Circuit Court of Appeals.

“We respectfully disagree with his decision,” Blumenthal said. “We believe that this is a step backward in the protection of consumers all across America with regard to the determination whether products are made in the USA or not. Based on the judge’s decision, the ‘Made in the USA’ label has no value.”

In her lawsuit, Picus claimed that the defendants sold Ol’ Roy brand pet food with a label indicating it was made in America, although the food contained ingredients that were manufactured in China. Picus said she bought her dogs’ food at a Wal-Mart in Las Vegas.

“Basically, we are returning to the era of ‘caveat emptor,’ which means ‘let the buyer beware,’ rather than the protection the law and the courts should provide to consumers that if companies lie on their label, they will be subjected to prosecution,” Blumenthal said. “Now companies can cheat to compete by misstating the country of origin on their label so that honest American companies will no longer be protected from foreign competition that can also falsely place the ‘Made in the USA’ label on their products.”

Picus sought relief for herself and anyone else who bought Ol’ Roy pet food in eight states, including Nevada and California, before March 16, 2007, when the defendants “disclosed for the first time that the Ol’ Roy brand pet food products contained material and active ingredients manufactured in China.”

Pro ruled that the individual issues of potential plaintiffs took precedence over their common issues, making a class action lawsuit an inefficient method of handling the litigation.

The ruling allows Picus to sue the companies only as an individual.

“We think the judge should have applied an objective test and allowed us to prove that the mislabeling was likely to deceive the average consumer and, therefore, the claim should have been allowed to proceed in court as a class claim,” Blumenthal said.

He said his client “can’t afford to proceed on her own.”

Picus said she took her lawyer’s advice when she chose not to take part in the $24 million settlement last year that ended more than 100 class action lawsuits filed by people whose pets fell ill or died after eating tainted food. That settlement involved Wal-Mart Stores and Menu Foods, another defendant in Picus’ case.

Blumenthal said the settlement included no payment for mislabeling, and his client “wanted to stop the practice so that other people’s pets and people wouldn’t die as a result of mislabeling country of origin.”

Picus also sued Del Monte and Sunshine Mills.

According to an amended complaint she filed in federal court, the defendants “each participated in the packaging or labeling of different Ol’ Roy brand pet food products, each with the fraudulent representation of geographic origin.”

“Most consumers possess very limited knowledge of the likelihood that products claimed to be ‘Made in USA’ are in fact made, in whole or in part, in foreign countries,” according to the complaint. “This is a material factor in many people’s purchasing decisions, as they believe they are buying truly American products and supporting American companies and American jobs. Consumers generally believe that ‘Made in USA’ products are higher quality products than those of other countries.”

According to Pro’s order, many consumers purchasing Ol’ Roy pet food may not have seen the “Made in the USA” label. “For consumers who did see the label, they may or may not have relied upon the representation that the product was made in the United States,” the judge wrote. “In fact, the choice to purchase Ol’ Roy products could be based on a variety of factors unrelated to the ‘Made in the USA’ label, such as price, convenience, or a pet’s preference for the product.”

Luci Bach of Washington, D.C., lead counsel for Menu Foods, called Pro’s decision “quite well-reasoned and entirely consistent with developing class action law.” She declined to comment on the merits of Picus’ lawsuit.

The lawsuit made no mention of Picus’ two rescue dogs, Rambo and Rusty, who died in 2007. Rambo, a Pomeranian-Chihuahua, had been with Picus for 12 years, and Rusty, a Pomeranian mix, had been with her for three years.

Picus said she filed the lawsuit to recoup the thousands of dollars she spent on veterinary bills after her dogs became ill, and to prevent pet owners in the future from experiencing the same trauma she endured.

“It was important that the people who did this were called on it,” she said.

Contact Carri Geer Thevenot at cgeer @reviewjournal.com or 702-380-8135.

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