Animal Health and Agribusiness

Shook’s Animal Health and Agribusiness team brings vast experience in litigation and regulatory matters to advocate for those who are passionate about serving the animal health industry. We represent clients who manufacture and market products of choice for veterinarians, livestock ranchers and farmers, food producers and animal owners. Our work encompasses a full range of product liability, consumer and commercial litigation, as well as regulatory counseling, agency enforcement matters and public policy advocacy for the animal health and agribusiness industries.

In addition to individual product liability matters, Shook has handled complex multi-plaintiff litigation and putative product liability class actions. We have litigated consumer fraud and unfair business practices class actions; nationwide antitrust claims on cattle and beef pricing; environmental claims arising from poultry farms and hog facilities; and workplace safety claims.

We regularly advise our clients on proactive steps to avoid litigation and to implement risk mitigation strategies. Shook provides critical leadership—legal insights, advice and practical recommendations—to animal health clients on regulatory topics affecting their products, including the approval and marketing of products. Our lawyers also assist clients with labeling audits and other compliance issues, including those regulated by U.S. Food and Drug Administration, Department of Agriculture, Environmental Protection Agency and the Federal Trade Commission.

Shook attorneys have represented leading manufacturers and sellers of veterinary pharmaceuticals, feed additives and pet-related items. Our experience comprises a wide variety of products, including vaccines, growth hormones, prescription antibiotics and anti-inflammatories, ionophores and coccidiosis control treatments, flea and tick products, pet foods, pet treats and other companion animal products. Our litigation and regulatory work has given us experience with a wide variety of animals, including the bovine, equine, poultry, canine and feline species.

Representative Litigation Matters

• Shook successfully persuaded the federal district court in Idaho to grant a motion to dismiss a product liability action in which plaintiffs alleged that their cattle died as a result of our client’s multi-purpose vaccine. The motion argued that the state law failure to warn and design defect claims were preempted under the Viruses, Serums, Toxins, and Analogous Products Act (VSTA) and the Animal and Plant Health Inspection Service’s (APHIS) promulgation of regulations governing such vaccine products. The Court rejected the plaintiffs’ argument that recent preemption case law involving human drugs precluded a finding of preemption of the claims involving this animal vaccine. 
• Shook represented an animal health product manufacturer in a putative national class action brought on behalf of all owners whose horses used the client’s antibiotic and allegedly suffered adverse events. We persuaded the federal court to strike the class allegations at the motion to dismiss stage based on the choice of law implications of the nationwide class and the need to apply the differing law of each class member’s home state.
• We represented the maker of a prescription drug indicated for treatment of respiratory disease in horses and cattle. Plaintiff asserted strict product liability claims, and Shook persuaded the federal court that prescription animal drugs deserved the protection of Restatement (Second) of Torts Section 402A, comment k. As “unavoidably unsafe” products, prescription animal drugs are not subject to strict liability claims. Plaintiff’s strict liability claims were dismissed with prejudice.
• Shook successfully represented an animal health drugmaker in multidistrict litigation coordinating ten proposed class actions in the Northern District of Ohio and in New Jersey. Plaintiffs in the underlying class actions alleged that topically applied flea and tick solutions for pets had been deceptively marketed. Working from a novel Case Management Order, discovery was limited and defendants submitted information evidencing a “good faith basis” for making their advertising claims. The district court then granted summary judgment in favor of defendants, and on appeal the Sixth Circuit rejected the plaintiffs’ efforts to challenge the case management plan, the narrow scope of discovery granted and the lower court’s application of the summary judgment standard.
• Shook represented an animal health product manufacturer which was subjected to disproportional and excessive third-party discovery demands in malpractice litigation between a plaintiff animal owner and the veterinarian who prescribed the client’s product. We worked to trim the potentially expensive and intrusive requests into a manageable load.
• We represented the seller of premium natural pet food, treat and dental chew brands in multiple class actions in which plaintiffs allege the client’s products contained small amounts of arsenic, lead and bisphenol A (BPA), and that the manufacturer misled consumers by failing to disclose the presence of such substances. Shook succeeded in opposing certification of the proposed classes under Rule 23(b)(3), limiting the matters to the (b)(2) allegation.
• Shook has defended leading pet food manufacturers in proposed class actions involving both “all natural” and “Made in the USA” labeling claims. Plaintiffs asserted the brands of pet foods violated state consumer protection laws because they allegedly contain synthetic ingredients and preservatives, and contain ingredients sourced outside the U.S. The cases involved novel theories of liability under several states’ labeling statutes.
• Our team defended a maker of animal vaccines in claims in federal court made by commercial chicken hatcheries in Mexico who alleged that millions of chicks, being raised to produce eggs, contracted Marek’s disease despite being vaccinated. Shook used creative strategies with forensic accountants and agricultural economists to position the case to settle at mediation.
• Shook successfully defeated certification of nationwide and California classes in a case brought under California’s broad Unfair Competition Law and the Consumers Legal Remedies Act against our client, a pet food and treat manufacturer that sold products allegedly presenting an undisclosed choking hazard.
• We represented an animal health manufacturer in an action brought in state court in California by a large local cattle ranch. Plaintiff asserted that the client’s coccidiosis treatment failed to prevent tens of thousands of calves from becoming infected with the parasite, in turn lessening their auction value. Our efforts produced the evidence that the treatment was potent when it left the client’s facility and “operator error” was the likely cause of the outbreak. The matter settled favorably after production of our expert reports.
• Shook successfully defended an appeal in the 11th Circuit from an order dismissing a putative nationwide civil RICO class action alleging a racketeering scheme and conspiracy regarding the alleged sale of sick puppies. The 11th Circuit affirmed the dismissal of the federal RICO claims. The court further held that the plaintiff failed to allege that the defendants engaged in the required pattern of racketeering activity of at least two predicate acts, a ruling that makes it more difficult for plaintiffs to transform ordinary breach-of-contract or fraud claims into civil RICO claims.
• Shook is defending an animal health company in a suit alleging that its growth hormone implant product for steers and heifers caused adverse side effects in a large grazing herd of cattle, leading to significant alleged loss of value at auction.

Representative Regulatory Matters

• Our team has provided counsel on a variety of labeling and regulatory issues, including “Made in the USA,” labeling vignettes, non-GMO, “natural,” and health-related claims, including for emerging product lines, such as “raw” options.
• Shook conducted risk assessments and advised clients on the advertising and promotion of hemp-derived pet products, including potential online sales.
• We have advised clients in connection with the “slack fill” litigation trend as it may involve pet foods and products.
• Shook has provided an animal health product manufacturer with advertising and promotion guidance regarding performance claims.