Naperville pet shop seeks dismissal of class action suit
By Susan Frick Carlman email@example.com April 10, 2012 2:10PM
Updated: May 12, 2012 8:06AM
The attorney representing Happiness Is Pets has filed a motion for dismissal of the class action suit alleging the pet store chain misled the purchasers of puppies that turned out to have serious health issues.
The chain, which has a Naperville site among its five locations, sold several puppies between November and January that later were diagnosed with distemper. At least one of them died and several others are grappling with the condition’s aftereffects.
In his response to the class action suit filed in mid-February, Naperville attorney David Fish claims the six plaintiffs hurried the legal move and provides copies of the limited warranty signed by each of the pet owners when they bought their dogs. His motion to dismiss the complaint was mailed to the Cook County clerk’s office late last week.
“Instead of seeking a remedy under the warranty, plaintiffs were recruited by an animal rights organization to become plaintiffs in this lawsuit,” reads the filing. “Rushing into court mandates dismissal of Plaintiffs’ Uniform Commercial Code claim (which plaintiffs admit governs their canine purchases) because the Illinois Supreme Court has held the failure to provide notice prior to filing suit is ‘fatal’ to such a claim. It was also unnecessary — Happiness fully stands behind its warranty.”
The filing cites case law in its assertion that the allegations of fraud and misrepresentation by Happiness is Pets lack merit. Among the contentions in the dismissal motion is a 1999 ruling centered on puffing, the term used to describe the exaggerated claims found in advertising materials.
“Puffing in the usual sense signifies meaningless superlatives that no reasonable person would take seriously, and so it is not actionable as fraud,” it reads.
The six pet owners who filed the suit took issue with claims made on the store chain’s website, which include “we take pride in dealing exclusively with the best private breeders throughout the Mid-West.”
The response suggests the evaluation of a breeder is in the eye of the beholder. Activists have claimed — virtually as a “mantra,” the filing maintains — that the pet store chain procures its dogs from “puppy mills” that observe lax breeding practices and frequently violate mandated health standards.
“Everyone can have a difference of opinion as to whether someone is reputable, what constitutes a ‘best breeder,’ or even what it means to be reputable,” the motion states. “Such a determination is inherently subjective.”
It also suggests that the activist organization the Companion Animal Protection Society exerted substantial influence over the filing of the suit.
The CAPS website appears to confirm its involvement in the case, with a post on the main page headed: “Customers take legal action with the help of CAPS, which continues to protest HIP stores and collect consumer complaints.”
The Clinton Law Firm, which is working on behalf of the pet owners, had anticipated the challenge to the complaint. However, representatives declined to comment on the motion early this week, because the attorneys had not yet reviewed the document.
“Plaintiffs’ complaint is a meritorious story of animal abuse and fraud by Happiness Is Pets,” Edward X. Clinton said. “Plaintiff will respond if an answer or response is filed by the Circuit Court of Cook County.”