by: Lucero Tennis
In recent years, federal courts, applying Illinois law, have departed from the traditional notions of privity by developing a number of exceptions to the privity requirements for express and implied warranty claims.[i] For instance, the privity exception for sealed products meant for human consumption is a well-known and well-recognized exception under Illinois law; it imposes an implied warranty on the manufacturers of packaged food intended for human consumption.[ii] Furthermore, “(f)ederal courts interpreting this exception . . . have surmised that it should also apply to products intended for animal consumption.”[iii]
A decision by the Southern District of Illinois to allow a fish farm’s claims to withstand early dismissal appears to signal this trend. In Veath, Veath Fish Farm, LLC (“Veath”), an Illinois largemouth bass producer, filed suit against Purina Animal Nutrition, LLC (“Purina”), the distributor, and Texas Farm Products Co. (“TFPC”), the manufacturer, for allegedly producing unsafe fish food.[iv] Veath claimed Purina and TFPC engaged in consumer fraud, negligence, and breached certain warranties when Purina sold AquaMax Sport Fish 500 and AquaMax Sport Fish 600 (the “fish food”) to Veath.[v] Specifically, Veath alleged that TFPC’s change in formula, unbeknownst to consumers, caused liver damage and death to Veath’s fish because the formula contained more carbohydrates than the fish could absorb.[vi]
With no direct sale, Purina and TFPC argued in favor of the traditional notions of privity, among other things, to dismiss the breach of warranty and consumer fraud claims.[vii] The court, however, made note of the privity exception for sealed products meant for human consumption.[viii] Relying on the abovementioned exception and prior courts’ liberal application of the privity requirements, the Court erred on the side of flexibility and liberally applied the privity requirements for Veath’s express and implied warranty claims.[ix] In other words, except for the implied warranty of fitness claim, the court allowed Veath’s warranty claims to “swim” by early dismissal despite the lack of privity.[x]
At another attempt to end the consumer suit against them, Purina and TFPC have both filed summary judgments against Veath’s claims.[xi] Interestingly, Purina’s partial summary judgment seeks the dismissal of all claims except for the alleged breach of express warranty, despite the lack of privity.[xii] In fact, Purina concedes that “Veath’s suit ‘at best’ holds a claim for an alleged breach of express warranty.”[xiii]
Purina’s concession in its partial summary judgment and the ruling in Veath demonstrates the legitimacy and the courts’ recognition of a new privity exception for packaged animal food. Moreover, in an attempt to allocate risk in an optimal manner, Veath demonstrates the federal courts’ tendency to “allow contract . . . claims to proceed against manufacturers and distributors of animal food where there are allegations that animals have been harmed by such products.” [xiv] Therefore, in the context of warranty claims, it appears packaged animal food has become the “new” packaged human food, and sellers of packaged animal food should be aware of the potential legal consequences this privity exception may cause.
[i] Veath Fish Farm, LLC v. Purina Animal Nutrition, LLC, No. 17-CV-0303-MJR-SCW, 2017 U.S. Dist. LEXIS 166109, at *19-23 (S.D. Ill. Oct. 6, 2017).
[ii] Id.
[iii] Id. at *20.
[iv] Carolyn Davis, Southern District of Illinois Allows Fish Feed Claims to Swim By, Weil (Oct. 23, 2017), https://product-liability.weil.com/consumer-fraud-false-advertising/southern-district-of-illinois-allows-fish-feed-claims-to-swim-by/#page=1[https://perma.cc/6SH9-39YZ]; Joyce Hanson, Purina’s Fish Food Killed Bass, Fish Farm Says, Law360 (Mar. 23, 2017, 3:55 PM EDT), https://www.law360.com/articles/905164 [https://perma.cc/Z99F-QXVX].
[v] Rick Archer, Purina Can’t Duck Suit Claiming Fish Food Killed Bass, Law360 (Oct. 6, 2017, 5:51 PM EDT), https://www.law360.com/articles/972322/purina-can-t-duck-suit-claiming-fish-food-killed-bass [https://perma.cc/DY8G-U6NW].
[vi] Id.; Davis, supra note iv.
[vii] Veath, 2017 U.S. Dist. LEXIS 166109, at *16-17; Archer, supra note v.
[viii] Veath, 2017 U.S. Dist. LEXIS 166109, at *19-20.
[ix] Id. at *19-20, *22-25.
[x] Id. at *23-25; Archer, supra note v; Davis, supra note iv.
[xi] Lauraann Wood, Fish Feed Maker Wants Quick Win in Suit Over Dead Bass, Law360 (Aug. 23, 2018, 9:39 PM EDT), https://www.law360.com/articles/1076063 [https://perma.cc/2J8M-QRUM].
[xii] Id.
[xiii] Id.
[xiv] See Veath, 2017 U.S. Dist. LEXIS 166109, at *22-23; see Archer, supra note v; Davis, supra note iv.