CHICAGO (Legal Newsline) – Animal feed manufacturer Archer-Daniels-Midland (ADM) has filed a motion to dismiss a class action complaint against it alleging it had produced feed that poisoned horses.
ADM’s motion, submitted Sept. 12 to Judge Jorge L. Alonso in the U.S. District Court for the Northern District of Illinois, Eastern Division, argued that the claims made by named plaintiffs Beth Berarov and Annelisa Bindra should be dismissed because the Illinois Food, Drug, and Cosmetic Act (FDCA), on which the plaintiffs base their claims, does not apply.
Although ADM’s principal place of business is in Illinois, the plaintiffs are residents of South Carolina and Michigan, and purchased the feed in question in those states.
Further, the company manufactures the feed in Georgia. ADM pointed in its motion to a number of past cases in which similar circumstances were present, but the courts found “that was too tenuous a connection to Illinois for the statute to apply.”
The feed manufacturer also argues in its motion that the plaintiffs cannot use the Illinois FDCA because it “does not create a private right of action.” Rather, the law calls for violations to be prosecuted by the state’s attorney.
ADM further contends in its motion that the complaint fails to state a claim for negligent misrepresentation. It argues that the statements listed by the plaintiffs are puffery and “statements of opinion, and as such are ‘not actionable representations.’”
Building on that, ADM argues that neither plaintiff says she saw those representations when deciding to purchase the feed, and therefore cannot claim they had been injured by ADM’s alleged misrepresentation.
Finally, the motion to dismiss argues that the plaintiffs’ class allegations should be stricken for a failure to show injury. “Plaintiffs say ‘ADM injured ... class members in that they ... paid ... for a product containing ... a high risk of monensin’,” reads the motion, arguing that the possibility that the class members had the potential to suffer an injury, but did not, does not constitute an actionable injury.
Furthermore, “plaintiffs claim only economic loss for everyone but the name-plaintiffs, who alone allegedly suffered property injury. The ‘at-risk-only’ class tort claims must be stricken for this reason, as well,” reads the motion.