UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

MARK CASHMAN AND CIRO AIELLO, 

Individually and On Behalf All Others 

Similarly Situated, 

 Plaintiffs, 

v. 

MENU FOODS MIDWEST 

CORPORATION, et al., 

 Defendants. 

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CASE NO. 1:07-cv-03236-JSR 

(Judge Jed S. Rakoff) 

ANSWER OF DEFENDANTS THE 

IAMS COMPANY AND THE 

PROCTER & GAMBLE COMPANY

Electronically Filed 

Pursuant to Fed. R. Civ. P. 8 and 12, Defendants The Iams Company and The 

Procter & Gamble Company (collectively "Iams") for their Answer to Plaintiffs' Class Action 

Complaint, state: 

INTRODUCTION

1. Iams admits that the Complaint purports to allege a class action. Iams 

denies the remaining allegations of paragraph 1 of Plaintiffs' Complaint. 

PARTIES

2. Iams admits that it sells Canned Iams Slices with Chicken in Gravy Cat 

Food, Canned Iams Slices with Beef in Gravy Cat Food, Canned Iams Slices with Turkey in 

Gravy Cat Food and Canned Iams Flakes with Salmon in Sauce Cat Food. Iams denies the 

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remaining allegations of paragraph 2 of Plaintiffs’ Complaint for lack of knowledge or 

information sufficient to form a belief as to the truth of the allegations. 

3. Iams admits that it sells Iams Select Bites with Salmon in Sauce and Iams 

Select Bites with Tuna in Sauce. Iams denies the remaining allegations of paragraph 3 of 

Plaintiffs’ Complaint for lack of knowledge or information sufficient to form a belief as to the 

truth of the allegations. 

4-6. Iams denies the allegations of paragraphs 4 through 6 of Plaintiffs’ 

Complaint for lack of knowledge or information sufficient to form a belief as to the truth of the 

allegations. 

7. Iams admits that Menu Foods Limited has manufactured certain wet pet 

food products for Iams. Iams denies the remaining allegations of paragraph 7 of Plaintiffs’ 

Complaint for lack of knowledge or information sufficient to form a belief as to the truth of the 

allegations. 

8. Iams denies the allegations of paragraph 8 of Plaintiffs’ Complaint for 

lack of knowledge or information sufficient to form a belief as to the truth of the allegations. 

9. Paragraph 9 does not allege facts to which a response is required. To the 

extent a response is required, Iams denies the allegations of paragraph 9 of Plaintiffs’ Complaint. 

10. Iams denies the allegations of paragraph 10 of Plaintiffs’ Complaint for 

lack of knowledge or information sufficient to form a belief as to the truth of the allegations. 

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11. Iams admits that it was acquired by The Procter & Gamble Company and 

that Iams is an Ohio corporation. Iams denies the remaining allegations of paragraph 11 of 

Plaintiffs’ Complaint. 

12. Iams admits the allegations of paragraph 12 of Plaintiffs’ Complaint. 

13. Iams admits that it sells Iams brand pet foods in New York and throughout 

the United States. Iams denies the remaining allegations of paragraph 13 of Plaintiffs’ 

Complaint for lack of knowledge or information sufficient to form a belief as to the truth of the 

allegations. 

14. Iams admits that Menu Foods Limited has manufactured certain wet and 

canned pet food products for Iams. Iams denies the remaining allegations of paragraph 14 of 

Plaintiffs’ Complaint. 

15-16. Iams denies the allegations of paragraphs 15 and 16 of Plaintiffs’ 

Complaint for lack of knowledge or information sufficient to form a belief as to the truth of the 

allegations. 

17. Iams denies the allegations of paragraph 17 of Plaintiffs’ Complaint for 

lack of knowledge or information sufficient to form a belief through the truthfulness of the 

allegations. 

JURISDICTION AND VENUE

18-19. Iams denies the allegations of paragraphs 18 and 19 of Plaintiffs’ 

Complaint for lack of knowledge or information sufficient to form a belief as to the truth of the 

allegations. 

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SUBSTANTIVE ALLEGATIONS

20. Iams denies the allegations of paragraph 20 of Plaintiffs’ Complaint for 

lack of knowledge or information sufficient to form a belief as to the truth of the allegation. 

21. Iams admits that Menu Foods announced a recall of certain "cuts and 

gravy" pet food that Menu Foods manufactured, and that that recall included certain pet food that 

Menu Foods manufactured for Iams. Iams denies the remaining allegations in paragraph 21 of 

Plaintiffs’ Complaint for lack of knowledge or information sufficient to form a belief as to the 

truth of the allegations. 

22-26. Iams denies the allegations of paragraphs 22-26 of Plaintiffs’ Complaint 

for lack of knowledge or information sufficient to form a belief as to the truth of the allegations. 

27. Iams admits that on or about March 16, 2007, Menu Foods recalled certain 

pet food that it had manufactured. Iams denies the remaining allegations in paragraph 27 of 

Plaintiffs’ Complaint for lack of knowledge or information sufficient to form a belief as to the 

truth of the allegations. 

28. Iams admits that on or about March 24, 2000, Menu Foods issued an 

additional recall of certain pet food that it had manufactured. Iams denies the remaining 

allegations in paragraph 28 of Plaintiffs’ Complaint for lack of knowledge or information 

sufficient to form a belief as to the truth of the allegations. 

29. Iams admits that on or about April 5, 2000, Menu Foods issued an 

additional recall of certain pet food that it had manufactured. Iams denies the remaining 

allegations in paragraph 29 for lack of knowledge or information sufficient to form a belief as to 

the truth of the allegations. 

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30. Iams admits that Chem Nutra, Inc. issued a recall of certain wheat gluten. 

Iams denies the remaining allegations in paragraph 30 of Plaintiffs’ Complaint for lack of 

knowledge or information sufficient to form a belief as to the truth of the allegations. 

31-32. Iams denies the allegations of paragraphs 31 through 32 of Plaintiffs’ 

Complaint for lack of knowledge or information sufficient to form a belief as to the truth of the 

allegations. 

33. Iams denies the allegations in paragraph 33 of Plaintiffs’ Complaint for 

lack of knowledge or information sufficient to form a belief as to the truth of the allegations. 

34-42. Iams denies the allegations of paragraphs 34 through 42 of Plaintiffs’ 

Complaint for lack of knowledge or information sufficient to form a belief as to the truth of the 

allegations. 

43-44. Iams denies the allegations in paragraphs 43-44 of Plaintiffs’ Complaint. 

45. Iams denies the allegations of paragraph 45 of Plaintiffs’ Complaint for lack 

of knowledge or information sufficient to form a belief as to the truth of the allegations. 

46-49. Iams denies the allegations of paragraphs 46 through 49 of Plaintiffs' 

Complaint. 

50. Iams admits that Plaintiffs purport to bring this matter as a class action. 

Iams denies the remaining allegations of paragraph 50 of Plaintiffs' Complaint. 

51-55. Iams denies the allegations of paragraphs 51 though 55 of Plaintiffs' 

Complaint. 

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FIRST CAUSE OF ACTION 

(Negligence) 

56. Iams incorporates by reference each of its responses to paragraphs 1 

though 55 of Plaintiffs' Complaint as if fully restated. 

57-58. Iams denies the allegations in paragraphs 57 through 58 of Plaintiffs’ 

Complaint for lack of knowledge or information sufficient to form a belief as to the truth of the 

allegations. 

59-61. Iams denies the allegations of paragraphs 59 through 61 of Plaintiffs' 

Complaint. 

SECOND CAUSE OF ACTION

(Strict Liability) 

62. Iams incorporates by reference each of its responses to paragraphs 1 

though 61 of Plaintiffs' Complaint as if fully restated. 

63-66. Iams denies the allegations of paragraphs 63 through 66 of Plaintiffs' 

Complaint. 

THIRD CAUSE OF ACTION

(Breach of Express and Implied Warranties) 

67. Iams incorporates by reference each of its responses to paragraphs 1 

though 66 of Plaintiffs' Complaint as if fully restated. 

68-70. Iams denies the allegations of paragraphs 68 through 70 of Plaintiffs' 

Complaint. 

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71. Iams denies the allegations of paragraph 71 of Plaintiffs’ Complaint for 

lack of knowledge or information sufficient to form a belief as to the truth of the allegations. 

72-73. Iams denies the allegations of paragraphs 72 and 73 of Plaintiffs' 

Complaint. 

FOURTH CAUSE OF ACTION

(Unjust Enrichment) 

74. Iams incorporates by reference each of its responses to paragraphs 1 

though 73 of Plaintiffs' Complaint as if fully restated. 

75-78. Iams denies the allegations of paragraphs 75 though 78 of Plaintiffs' 

Complaint. 

ADDITIONAL DEFENSES

FIRST ADDITIONAL DEFENSE

Plaintiffs' Complaint fails to state a claim upon which relief may be granted. 

SECOND ADDITIONAL DEFENSE

If Plaintiffs or the members of the putative class were injured and damaged as 

alleged, which is specifically denied, then the injuries and damages were caused, in whole or in 

part, by the acts or omissions of others, whether individual, corporate or otherwise, whether 

named or unnamed in the amended complaint, for whose conduct Iams is not responsible, and if 

Iams were to be held responsible, it should be indemnified based upon contract, statute or 

common law. 

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THIRD ADDITIONAL DEFENSE

Any action taken by Iams was not the proximate cause of any injuries which may 

have been sustained by Plaintiffs, but such alleged injuries were the result of superseding and 

intervening causes over which Iams had no control. 

FOURTH ADDITIONAL DEFENSE

Plaintiffs' claims are barred because of the misuse of the alleged product by a 

third party over which Iams had no control. 

FIFTH ADDITIONAL DEFENSE

The Southern District of New York is an improper venue for this action. 

SIXTH ADDITIONAL DEFENSE

Plaintiffs' claims for negligence and strict liability are barred by the economic loss 

doctrine because Plaintiffs seek only economic damages. 

SEVENTH ADDITIONAL DEFENSE

Plaintiffs' warranty claims are barred as a result of failure to give adequate notice 

as required under the Uniform Commercial Code. 

EIGHTH ADDITIONAL DEFENSE

Plaintiffs' claims for breach of implied warranties are barred because they are not 

in privity of contract with Iams and have suffered no personal injuries. 

NINTH ADDITIONAL DEFENSE

Plaintiff's claims for breach of implied warranties are barred because Iams was 

not made aware of any particular use of the products intended by plaintiffs. 

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TENTH ADDITIONAL DEFENSE

Plaintiffs claims for express warranties are barred because Plaintiffs failed to 

identify any express warranties upon which they relied. 

ELEVENTH ADDITIONAL DEFENSE

If Plaintiffs sustained injuries or incurred expenses as alleged, the injuries and/or 

expenses may have resulted from the pre-existing and/or unrelated medical conditions, injuries 

or illnesses of Plaintiffs' pets. 

TWELFTH ADDITIONAL DEFENSE

If Plaintiffs sustained injuries or incurred expenses as alleged, the same were not 

caused by any product designed, manufactured, developed, sold, marketed or distributed by 

Iams. 

THIRTEENTH ADDITIONAL DEFENSE

Upon information and belief, the Plaintiffs have been and will be indemnified and 

reimbursed for some or all of the damages alleged in the Complaint by such collateral sources as 

are defined in CPLR Section 4545 and as such, Iams is entitled to set-off against the amount of 

any verdict of any money collected from collateral source of payment as set forth. 

FOURTEENTH ADDITIONAL DEFENSE

Plaintiffs cannot recover because Iams complied with all applicable codes, 

standards, regulations or specifications established, adopted, promulgated, or approved by the 

applicable federal and state agencies. 

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FIFTEENTH ADDITIONAL DEFENSE

Plaintiffs' claims fail, in whole or in part, because the relief Plaintiffs request 

would violate the excessive fines and the cruel and unusual punishment clauses of the Eighth 

Amendment to the United States Constitution and the Constitution of the State of New York. 

SIXTEENTH ADDITIONAL DEFENSE

An award of punitive or exemplary damages in this action would violate the due 

process rights of Iams under the Fifth and Fourteenth Amendments to the United States 

Constitution and the Constitution of the State of New York. 

SEVENTEENTH ADDITIONAL DEFENSE

Plaintiffs cannot maintain this action as a class action pursuant to Rule 23 of the 

Federal Rules of Civil Procedure because: 

(a) the class is not so numerous that joinder of all members is impracticable 

(b) the questions of law and/or fact are not common to the class; 

(c) the claims of the representative parties are not typical of the claims of the 

class; and/or 

(d) the representative parties will not fairly and adequately protect the 

interests of the class. 

EIGHTEENTH ADDITIONAL DEFENSE

Iams is entitled to set-off, should any damages be awarded against it, in the 

amount of damages or settlement amounts recovered by Plaintiffs and putative class members 

with respect to the same alleged injuries. Iams also is entitled to have any damages that may be 

awarded to Plaintiffs and putative class members reduced by the value of any benefit or payment 

to Plaintiffs and putative class members from Iams or any collateral source. 

WHEREFORE, Iams requests that this Court: 

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(a) deny class certification; 

(b) dismiss Plaintiffs' Complaint with prejudice; 

(c) award Iams its costs and attorneys' fees; and 

(d) award Iams such relief that this Court finds necessary and appropriate. 

 

OF COUNSEL: 

D. Jeffrey Ireland (Ohio Bar No. 0010443) 

Laura A. Sanom (Ohio Bar No. 0039451) 

Brian D. Wright (Ohio Bar No. 0075359) 

FARUKI IRELAND & COX P.L.L. 

500 Courthouse Plaza, S.W. 

10 North Ludlow St. 

Dayton, OH 45402 

Telephone: (937) 227-3710 

Telecopier: (937) 227-3717 

E-mail: djireland@ficlaw.com 

Respectfully submitted, 

/s Kim M. Catullo_______

Kim M. Catullo (KC2390) 

Allison B. Neidoff (AN6716) 

GIBBONS P.C. 

One Pennsylvania Plaza, 37th Floor 

New York, NY 10119 

Telephone: (212) 613-2000 

Telecopier: (212) 333-5980 

Attorneys for Defendants 

The Procter & Gamble Company and 

The Iams Company 

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CERTIFICATE OF SERVICE

I certify that on the 29th day of June, 2007, I electronically filed the foregoing 

Answer of The Iams Company and The Procter & Gamble Company with the Clerk of Courts 

using the CM/ECF system, which will send notification of such filing to CM/ECF participants, 

and I hereby certify that I have mailed by United States Postal Service the document to the nonCM/ECF participants: 

Gregory Mark Nespole 

Martin E. Restituyo 

WOLF HALDENSTEIN ADLER 

FREEMAN & HERZ LLP 

270 Madison Avenue 

New York, NY 10016 

Counsel for Plaintiffs 

Mark Cashman and Ciro Aiello 

and I hereby certify that I have mailed by United States Postal Service the document to the 

following non-CM/ECF participants: 

Carolyn A. Dizon, Esq. 

DLA Piper 

1251 Avenue of the Americans 

New York, NY 10020-1104 

Counsel for the Menu Foods 

Defendants 

Megan S. Wynne, Esq. 

Morris Polich & Purdy 

1055 W. Seventh Street, 24th Floor 

Los Angeles, CA 90017-2503 

Counsel for Defendant 

Chem Nutra Inc. 

 /s Kim M. Catullo

Kim M. Catullo 

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