(Breach of Express Warranty)   (Breach of Implied Warranty of Merchantability)   (Breach of Implied Warranty of Fitness for Particular Purpose)   (Negligence)   19.  Defendant Orscheln is in the business of selling and advertising for sale certain  merchandise or retail products in trade or commerce at retail stores throughout the state of Iowa.   20.  Defendant Citgo is in the business of manufacturing certain merchandise or retail  products which are to be sold in trade or commerce at retail stores throughout the state of Iowa.   21.  During some or all of the time period from 2014 to the present, Defendant  Orscheln sold, labeled, and advertised the 303 THF Products in yellow buckets called Premium  303 Tractor Hydraulic & Transmission Fluid and Mile Master 303 Tractor Hydraulic Fluid.     22.140, Packaging and Labeling Requirements.  On April 21, 2017, the Division of Weights, Measures and Consumer  Protection purchased and tested a sample of Mile Master 303 Tractor  Hydraulic Fluid.  This product claims to meet John Deer 303 specifications.  John Deere 303 was discontinued and was subsequently replaced with the  current JDM-J20C or D.  Testing indicates your product does not meet  Brookfield viscosity at -20C and -35C for John Deere J20C or pour point for  J20D.  This product is misbranded because the product did not meet the  specification limits.  Additionally, the reported performance additive content  is lower than a typical J20C.   22.  During some or all of the time period from 2014 to the present, Defendant Citgo  manufactured, labeled, and advertised the Premium 303 Tractor Hydraulic & Transmission Fluid  (“Premium 303”) and Mile Master 303 Tractor Hydraulic Fluid (“MileMaster 303”) sold by  Orscheln, Family Center, and other retailers.  Defendants’ Deceptive Labeling, Marketing and Advertising   24.  Defendants falsely and deceptively labeled, marketed and offered for sale the  Premium 303 and the Mile Master 303 (1) as universal lubricants for farm logging and  construction equipment; (2) as meeting specifications and being acceptable for use as hydraulic  fluid, transmission fluid, and gear oil in older and newer tractors and other equipment; (3) as  substitutes for and satisfying John Deere’s JD-303 specifications; (4) as fluids specifically  formulated with base oils and additives designed to help protect against wear, rust, corrosion and  foaming; and (5) as  fluids meeting certain John Deere and other OEM specifications and/or that  may be used as a replacement fluid in equipment made by Allis-Chalmers, Massey, Ferguson,  White, Allison, Case, International Harvester, Kubota, John Deere, New Holland, Ford and  Caterpillar.   25.  Defendants’ labeling, marketing, advertising and sale of the 303 THF Products  has been widespread, continuous and contained on various signs, labels and advertisements  throughout the state of Iowa for years.  Representative examples of Defendants’ labeling,  marketing and advertising materials are set forth below.   28.  These representations were also contained in Defendants’ advertising circulars  and/or on Defendants’ websites.     29.  By naming, labeling, marketing, advertising and selling the 303 THF Products in  the foregoing manner, and by describing the products using words such as “303,” “general  purpose” and “universal,” Defendants sought to create, and did create, an image of the 303 THF  Products in the minds of Plaintiffs and other consumers that would lead a reasonable consumer  to conclude that Defendants’ 303 THF Products were completely safe and effective for use in  consumers’ equipment and all equipment made by the listed manufacturers.      30.  Defendants’ product name, labeling, advertising and marketing of their 303 THF  Products was material to the reasonable consumer.      31.  At the time of Defendants’ labeling, advertisements, marketing and other  representations, and as Defendants already knew or should have known, the representations  regarding the 303 THF Products were false, deceptive and misleading to consumers seeking to  purchase tractor hydraulic fluid.   33.  As Defendants knew, or should have known, the 303 THF Products manufactured  and sold in the yellow buckets by Defendants lacked some or all of the additives required to  provide the advertised “qualities” and benefits.   34.  As Defendants knew, or should have known, the 303 THF Products manufactured  and sold in the yellow buckets by Defendants did not meet all current specifications (and failed  to meet certain obsolete specifications) for any manufacturers of farm, logging and construction  equipment.  Alternatively, Defendants knew, or should have known, they had no basis on which  to sell the 303 THF Products as tractor hydraulic fluids that met the specifications of all  manufacturers listed on the label.   36.  Instead, the 303 THF Products were deceptively offered for sale as fluids  containing quality base oils, sufficient additives, and meeting the obsolete and now unavailable  “303” specification.  The State of Missouri’s Testing of 303 THF   37.      Because of the poor, uncertain quality of 303 tractor hydraulic fluids and the  deceptive way in which they are manufactured and sold, several private and governmental  entities have been concerned about the sale of the fluids, the misleading nature of the labeling,  and the damage the fluids can do to tractors and other equipment.  The Missouri Department of  Agriculture (MDA) is one such entity.   38.  In the summer of 2017, the Missouri Department of Agriculture sampled fourteen  (14) different 303 THF products, many of which claimed to work in almost every tractor.   Defendants’ 303 THF Products were purchased in Missouri by the MDA in 2017 and were two  of the products tested.   40.  As a result of the testing, the MDA concluded that all fourteen (14) of these 303  THF products failed to meet any current specifications and were found to be underperforming to  the point that damage was likely to result from use.     41.  Defendants’ Premium 303 and Mile Master 303 were two of the fluids that failed  to meet current specifications.   42.  Defendants’ THF Products were also found to have additive levels of calcium,  phosphorous and zinc that were well below the additive levels found in fluids meeting the J20C  specification.   43.  After its testing and research of the tractor hydraulic fluids, the MDA notified the  retailers, including Defendant Orscheln, that the products were misbranded and violated  Missouri’s law prohibiting deceptive business practices (§ 413.115, RSMo.) because they failed  to meet current tractor manufacturer’s specifications.  The MDA’s October 5, 2017 letter to  Citgo with regard to the Mile Master 303 Tractor Hydraulic Fluid stated:  The Missouri Department of Agriculture is responsible for insuring that all  consumer commodities including motor oil, antifreeze, automatic transmission  fluid, or other automotive products sold or offered for sale in the state of  Missouri meet the requirements of Missouri Revised Statute, Chapter 413  Weights and Measures and/or Missouri Code of State Regulation 2 CSR 90-  45.  In an October 12, 2017 letter to Orscheln with regard to Mile Master 303, the  MDA noted that “[t]ests indicate this is a misbranded product and does not comply with  Missouri law RSMO Chapter 413.”  The MDA further wrote that Defendant Orscheln was  “hereby ordered to remove this product from sale until changes are made to correct the labeling  or the product itself.”     46.  In an October 12, 2017 letter to Orscheln with regard to Premium 303, the MDA  noted as follows:  The Missouri Department of Agriculture is responsible for insuring that all  consumer commodities including motor oil, antifreeze, automatic  transmission fluid, or other automotive products sold or offered for sale in  the state of Missouri meet the requirements of Missouri Revised Statute,  Chapter 413 Weights and Measures and/or Missouri Code of State  Regulation 2 CSR 90-22.140, Packaging and Labeling Requirements.  On April 21, 2017, the Division of Weights, Measures and Consumer  Protection purchased and tested a sample of Orscheln Premium 303  Tractor Hydraulic Fluid.  This product claims to meet John Deer 303  specifications. John Deere 303 was discontinued and was subsequently  replaced with the current JDM-J20C or D.  Testing indicates your product  does not meet Brookfield viscosity at -20C and -35C for John Deere J20C  or pour point for J20D.  This product is misbranded because the product  did not meet the specification limits.  Additionally, the reported  performance additive content is lower than a typical J20C.   47.  Thus, Premium 303 and Mile Master 303 were among the 303 THF products the  Missouri Department of Agriculture tested and that failed to meet any current specifications and  were likely to cause damage to equipment.     49.  In the five-year period prior to the original filing of this Class Action, Plaintiff  purchased Defendants’ 303 THF Products on numerous occasions.     50.  As with all Members of the Class, in the five-year period prior to the original  filing of this Class Action, Plaintiff purchased Defendants’ 303 THF Products containing the  label representations set forth above.   51.  Plaintiff Wayne Rupe purchased Orscheln Premium 303 and Milemaster 303 at  the Orscheln’s store located in Ottumwa, Iowa.   52.  These 303 THF Products were used by Plaintiff Rupe in his ____ and in other  equipment.   54.  Plaintiff reasonably relied on Defendants’ representation that each fluid was a  “303” fluid and on Defendants’ own labeling, statements and advertisements concerning the  particular qualities and benefits of the 303 THF Products.   55.  All reasonable consumers would consider Defendants’ 303 THF Products to be  suitable for use in tractors and other equipment and would not have any understanding or way to  know that Defendants’ 303 THF Products were of uncertain quality, lacked adequate viscosity  and additives, had a value much less than the price offered for sale, and/or that use of  Defendants’ 303 THF Products would cause all equipment to suffer increased wear and damage.   56.  A reasonable consumer would consider Defendants’ labeling, statements and  advertisements when looking to purchase a tractor hydraulic fluid.  As a result of using  Defendants’ 303 THF Products, Plaintiff and Class Members:  (a) paid a sum of money for a  product that was not as represented; (b) received a lesser product than labeled, advertised and  marketed; (c) were deprived of the benefit of the bargain because the 303 THF Product was  different than what Defendants represented; (d) were deprived of the benefit of the bargain  because the 303 THF Product had less value than what was represented; (e) did not receive a  product that measured up to their expectations as created by Defendants; and (f) suffered damage  to their equipment, including but not limited to excessive wear, leakage in the seals, exposure to  spiral gear damage, improper and poor shifting, wear and damage to wet brakes, high pump  leakage, and damage from deposits, sludging and thickening.     58.  Plaintiff used the 303 THF Products in the manner in which Defendants advised it  could and should be used.   59.  As a result of Defendants’ 303 THF Products not meeting specifications as  labeled, advertised, marketed, warranted, and promised, Defendants violated the Missouri  Merchandising Practices Act, breached express and implied warranties, fraudulently or  negligently induced Plaintiff and Class Members to purchase their products through material  misrepresentations, acted in a negligent manner, and were unjustly enriched.     62.    This action is brought by Plaintiff against Defendants to recover all money paid  by Plaintiff and Class Members to Defendants for purchase of their 303 THF Products which  were labeled, marketed, advertised, and sold in the dishonest, misleading, and deceptive manners  noted herein, for recovery of the damage caused to equipment owned by Plaintiff and the Class  Members, for punitive damages, attorneys’ fees, costs, and for all other remedies available to  those aggrieved by Defendants’ conduct.  63.  Plaintiff brings this Class Action pursuant to Rule 23 of the Federal Rules of Civil  Procedure, on behalf of himself and the following Class of similarly situated persons:    All persons and other entities who purchased Orscheln Premium 303  Tractor Hydraulic & Transmission Fluid and/or MileMaster 303 Tractor  Hydraulic Fluid in Iowa at any point in time from June 6, 2014 to present,  excluding those who purchased for resale.   64.  Also excluded from the Class are Defendants, including any parent, subsidiary,  affiliate or controlled person of Defendants; Defendants’ officers, directors, agents, employees  and their immediate family members, as well as the judicial officers assigned to this litigation  and members of their staffs and immediate families.   65.  The 303 THF Products at issue were sold across Iowa through retailers.  The  Class Members may be identified through use of sales receipts, affidavits, or through sales  records.     68.  The representative Plaintiff’s claims are typical of those in the putative Class  because he purchased Defendants’ 303 THF Products and was similarly treated.   69.  Plaintiff is an adequate representative of the Class because his interests do not  conflict with the interests of other Members of the Class.  The interests of the other Class  Members will be fairly and adequately protected by Plaintiff and counsel, who have extensive  experience prosecuting complex litigation and class actions.   70.  A Class Action is the appropriate method for the fair and efficient adjudication of  this controversy.  It would be impracticable, cost prohibitive, and undesirable for each Member  of the Class to bring a separate action.  In addition, the presentation of separate actions by  individual Class Members creates the risk of inconsistent and varying adjudications, establishes  incompatible standards of conduct for Defendants, and/or substantially impairs or impedes the  ability of Class Members to protect their interests.  A single Class Action can determine, with  judicial economy, the rights of the Members of the Class.   72.  Class certification is also appropriate because Defendants have acted or refused to  act on grounds generally applicable to the Class. The Class Action is based on Defendants’ acts  and omissions with respect to the Class as a whole, not on facts or law applicable only to the  representative Plaintiff.  All Class Members who purchased Defendants’ products were treated  similarly.  Thus, all Class Members have the same legal right to an interest in relief for damages  associated with the violations enumerated herein.     73.    Class certification is also appropriate for class-wide injunctive relief pursuant to   Rule 23(b)(2).   74.  Plaintiff asserts in Counts I through VIII, below, the following claims on behalf of  themselves and the Class:    Count I – Negligence   Count II – Breach of Express Warranty   Count III – Breach of Implied Warranty of Merchantability   Count IV – Breach of Implied Warranty of Fitness for Particular Purpose   Count V – Unjust Enrichment   Count VI – Fraud/Misrepresentation   Count VII – Negligent Misrepresentation  75.      Plaintiff incorporates by reference all preceding paragraphs of this Class Action   Complaint as if fully set forth herein.   76.    Defendants owed a duty of at least reasonable care to the purchasers of their 303  82.    Plaintiff incorporates by reference all preceding paragraphs of this Class Action   Complaint as if fully set forth herein.   83.   Plaintiff and Class Members purchased Defendants’ 303 THF Products.   84.  As set forth above, Defendants made common statements of facts regarding  quality and use in the name and on the label of the 303 THF Products.   85.  The common statements Defendants made in the name and on the label of the 303  THF Products were made to induce Plaintiff and Class Members to purchase the 303 THF  Products and/or were a material factor in inducing Plaintiff and Class Members to purchase the  303 THF Products, and therefore became part of the basis of the benefit of the bargain and an  express warranty.    87.  Defendants have received from Plaintiff timely notification of the defects in their  THF 303 Products.   88.  The failure of the THF 303 Products to conform to the statements of Defendants   has caused injury and damage to Plaintiff and Class Members.  89.  Plaintiff incorporates by reference all preceding paragraphs of this Class Action   Complaint as if fully set forth herein.   90.  Defendants directly or indirectly sold the 303 THF Products to Plaintiff and Class  Members for use as described above.   91.  As set forth above, at the time Defendants sold the 303 THF Products, the  products were not fit for their ordinary use and the use described by Defendants.     92.  Plaintiff and Class Members used the 303 THF Products for their ordinary  purpose and the use described by Defendants.     93.  Defendants have received from Plaintiff timely notification of the defect in their  303 THF Products.   94.  The failure of the 303 THF Products to be fit for their ordinary purpose has cause  injury and damage to Plaintiff and Class Members.  96.  Defendants directly or indirectly sold the 303 THF Products to Plaintiff and  Class   Members for use as described above.   97.      As set forth above, at the time Defendants sold the 303 THF Products, the   products were not fit for their particular purpose for use as universal hydraulic fluid for tractors  and/or other equipment.   98.   Defendants knew or should have known of the uses for which the 303 