Lanham Act doesn’t allow defendants to seek indemnity/contribution

Nestlé Purina Petcare Co. v. Blue Buffalo Co., No. 4:14 CV
859, 2015 WL 5226462 (E.D. Mo. Sept. 8, 2015)
 
Third-party defendant Diversified Ingredients moved to
dismiss Blue Buffalo’s claims against it, arising from an underlying action in
which Purina alleged that Blue Buffalo falsely advertised its pet foods as free
of poultry by-product meal in violation of the Lanham Act. Blue “Buffalo now
admits that poultry by-product was in some of its pet foods. However, it claims
that its ingredient supplier, Wilbur–Ellis, and ingredient broker, Diversified
Ingredients, deceived Blue Buffalo when they sold it by-product meal instead of
chicken and turkey meal.”  Thus, Blue
Buffalo sought indemnification and contribution from its ingredient suppliers.
(Wilbur-Ellis’s similar motion to dismiss was resolved separately, with no
difference in the Lanham Act reasoning to come.)  Blue Buffalo also sought additional damages
under theories of breach of contract, breach of warranty, fraud,
misrepresentation, negligence, unjust enrichment, unfair competition, and other
statutory violations.
 
First, the court agreed with Diversified that there was no
right to indemnity or contribution for Lanham Act claims, despite policy
arguments in favor of the same.  There is
no federal common law right to indemnity or contribution, and no express right
of contribution or indemnity under the Lanham Act.  Other courts have refused to imply such
rights.  (Contrast the implication of
secondary liability which is universally accepted—why the difference?  Would Blue Buffalo have been able to successfully
plead inducement or some other form of contributory liability?)
 
Diversified further argued that Blue Buffalo couldn’t unjust
enrichment and unfair competition under Missouri common law because they are
intentional torts.  But when the
underlying causes of action are “broad enough to encompass both intentional and
negligent conduct,” the intentional misconduct rule may not apply, and Purina’s
claims here were pled that broadly. 
Accepting Blue Buffalo’s allegations as true—that the byproduct was in
its food without its knowledge or intent—the court found that Blue Buffalo had
stated a claim for indemnity or contribution for Purina’s unjust enrichment and
unfair competition claims.

The court further declined to dismiss the remaining claims as improperly
joined, or to sever the third-party claims from the main case.

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