2:19-cv-22024
D.N.J.Jun 30, 2025Background
- Plaintiffs, residents of multiple states, allege injuries to their dogs after using Bravecto, a flea and tick medication marketed by Intervet, Inc. as "safe and proven safe."
- Plaintiffs allege that Intervet failed to adequately warn about the risk of neurological toxicity associated with Bravecto, despite receiving consumer complaints since 2014.
- The suit is a putative multi-state class action, with distinct statutory and common law claims for each state represented by different plaintiffs.
- The case has seen multiple amended complaints and motions to dismiss; the instant motion addresses the Third Amended Complaint and seeks to dismiss and/or strike class allegations under Rule 12(b)(6).
- A prior judge issued foundational rulings that, through law of the case doctrine, limited which issues this (successor) court could revisit absent extraordinary circumstances.
- At issue are claims under New Jersey, Connecticut, Florida, Illinois, New York, and Texas consumer protection laws as well as claims for breach of warranty and unjust enrichment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is "safe and proven safe" an actionable express warranty? | Plaintiffs allege exposure to unqualified safety assurances amounts to an actionable warranty. | Intervet argues "safe and proven safe" statements are not actionable as express warranties. | Court holds "safe and proven safe" can be actionable where not qualified by disclosures. |
| NJ Consumer Fraud Act (NJCFA) claim preempted by NJ Products Liability Act (NJPLA)? | Plaintiffs say NJCFA claim is based on misrepresentations, not failure-to-warn. | Intervet says NJPLA subsumes NJCFA because core harm is injury from product. | Court holds part of NJCFA claim (misrepresentation theory) survives, but omission/failure to warn theory is subsumed. |
| Adequacy of fraud-based consumer claims (Rule 9(b) particularity) | Plaintiffs allege exposure to marketing and packaging pre-sale is sufficient. | Intervet argues allegations lack particularity ("who, what, when, where"). | Court finds claims under some statutes (e.g., NJCFA, ICFA, DTPA 17.50(a)(1)) lack specificity and dismisses them without prejudice; others (CUTPA, FDUTPA) survive. |
| Class action and jurisdictional issues; law of the case | Plaintiffs urge adherence to prior rulings absent new facts/law. | Intervet seeks reconsideration and striking of class allegations. | Court adheres to law of the case doctrine, declines to revisit settled issues without extraordinary circumstances. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standard for Rule 12(b)(6) motions)
- Ashcroft v. Iqbal, 556 U.S. 662 (facial plausibility standard under Rule 8(a))
- Sinclair v. Merck & Co., 195 N.J. 51 (NJPLA is exclusive cause of action for product-based injury)
- Cox v. Sears Roebuck & Co., 138 N.J. 2 (elements of NJCFA claim)
- Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234 (ascertainable loss standard for NJCFA)
- Abrahams v. Young & Rubicam, Inc., 240 Conn. 300 (CUTPA proximate cause standard)
- PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773 (FDUTPA unfairness standard)
- Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732 (ICFA Rule 9(b) particularity requirement)
- In re Frazin, 732 F.3d 313 (elements of Texas DTPA claim)