Kucharski-Berger v. Hill's Pet Nutrition ( 2021 )


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  •                                          No. 122,833
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    STEVIE KUCHARSKI-BERGER,
    Appellant,
    v.
    HILL'S PET NUTRITION, INC.,
    Appellee.
    SYLLABUS BY THE COURT
    1.
    The court's role in reviewing a motion to dismiss for failure to state a claim is to
    determine whether the petition sufficiently apprises the defendant of the facts upon which
    the plaintiff claims to be entitled to relief, not whether the plaintiff can prove them or
    whether they have merit. The defenses to the claims are not the court's concern at this
    stage unless they require dismissal as a matter of law.
    2.
    Motions to dismiss for failure to state a claim are limited to a review of the
    pleadings while motions for summary judgment consider all the facts disclosed during
    discovery. Litigants are therefore cautioned against conflating cases challenging the grant
    or denial of summary judgment with the standard required for pleadings under our liberal
    notice pleading scheme.
    3.
    Whether a deceptive act or practice has occurred under the KCPA is not a question
    of law for the court, but a question of fact for the jury to decide.
    1
    4.
    While claims brought under the KCPA sound largely in fraud, a plaintiff is not
    required to prove a critical element of a common-law fraud action—the intent to defraud.
    5.
    Conscious parallelism is how firms in a concentrated market might share
    monopoly power—setting their prices at a prefixed maximizing, supracompetitive level
    by recognizing their shared economic interests and their interdependence on price and
    output decisions. The uniform conduct of pricing by competitors permits a court to infer
    the existence of a conspiracy between those competitors.
    6.
    Any showing by a plaintiff that tends to exclude the possibility of independent
    action can qualify as a plus factor. If a benign explanation of a defendant's action is
    equally plausible or more plausible than a collusive explanation, the action cannot
    constitute a plus factor. On the other hand, evidence that a defendant's behavior would
    not be reasonable or explicable (i.e., not in its legitimate economic self-interest) if it were
    not conspiring to fix prices can constitute a plus factor.
    7.
    A claim for unjust enrichment is an equitable claim, and generally, an equitable
    remedy is unavailable when an adequate remedy exists under another legal claim.
    8.
    At the pleading stage, a plaintiff may allege both unjust enrichment and a legal
    claim for the same behavior, even though the plaintiff cannot ultimately recover under
    both theories.
    2
    Appeal from Johnson District Court; ROBERT J. WONNELL, judge. Opinion filed August 20, 2021.
    Reversed and remanded.
    James P. Frickleton, of Bartimus Frickleton Robertson Rader, P.C., of Leawood, Kimberly J.
    Johnson and Wade H. Tomlinson, pro hac vice, of Pope McGlamry, PC, of Atlanta, Georgia, and Edward
    J. Coyne III, pro hac vice, of Ward and Smith, P.A., of Wilmington, Delaware, for appellant.
    Jennifer B. Wieland, of Berkowitz Oliver LLP, of Kansas City, Missouri, Thomas P. Schult, pro
    hac vice, of the same firm, Yaira Dubin and Hannah Y. Chanoine, pro hac vice, of O'Melveny & Myers
    LLP, of New York, New York, Richard B. Goetz, pro hac vice, of the same firm, of Los Angeles,
    California, and Michael F. Tubach, pro hac vice, of the same firm, of San Francisco, California, for
    appellee.
    Before ARNOLD-BURGER, C.J., GARDNER and ISHERWOOD, JJ.
    ARNOLD-BURGER, C.J.: Stevie Kucharski-Berger bought prescription pet food
    manufactured by Hill's Pet Nutrition, Inc. (Hill's), on the advice of and with a required
    prescription from her veterinarian. After learning that Hill's prescription pet food has no
    medicine or drug, that no prescription is legally required to purchase it, and that it is not
    tested and approved for medicinal purposes by the Food and Drug Administration (FDA),
    Kucharski-Berger sued Hill's alleging that Hill's and other pet food manufacturers
    conspired to monopolize the prescription pet food market and to artificially inflate prices
    by self-imposing the prescription requirement. Her petition alleges violations of the
    Kansas Restraint of Trade Act (KRTA) and the Kansas Consumer Protection Act
    (KCPA). She also raised an unjust enrichment claim against Hill's.
    The district court dismissed Kucharski-Berger's petition, holding that she failed to
    state a claim upon which relief could be granted. We reverse and remand for further
    proceedings.
    3
    FACTUAL AND PROCEDURAL HISTORY
    In February 2019, Kucharski-Berger filed a petition in Johnson County alleging
    that Hill's, along with other pet food manufacturers, created and enforced an unnecessary
    prescription requirement for select pet food which misleads reasonable consumers and
    violates Kansas law. The other pet food companies alleged to be involved in the case,
    although not named parties, include Mars Petcare US, Inc. (Mars), Royal Canin U.S.A.,
    Inc. (Royal Canin), Nestle Purina Petcare Company (Purina), PetSmart, Inc. (PetSmart),
    Medical Management International, Inc. d/b/a Banfield Pet Hospital (Banfield),
    BluePearl Vet, LLC (Blue Pearl), and VCA Inc. (VCA).
    In broad terms, which will be more fully discussed below, Kucharski-Berger
    alleged that prescription pet food manufacturers "combined and conspired with pet food
    retailers and veterinary clinics . . . to communicate [a] false and misleading message" that
    prescription pet food offered benefits over nonprescription pet food justifying its higher
    price. She asserts that prescription pet food is largely the same as nonprescription pet
    food and that any differences in similar products "are not sufficient to justify one product
    being sold by prescription for a significantly higher price." For example, "Hill's
    Prescription Diet d/d Canine Skin Support Potato & Duck Dry Dog Food currently sells
    for $4.00 per pound and Hill's Science Diet Adult Sensitive Stomach & Skin Dry Dog
    Food sells for $1.65 per pound" and has a 65% overlap in ingredients.
    According to the petition, federal and Kansas law do not require prescription pet
    food to be sold with a prescription from a veterinarian. Similarly, none of the prescription
    pet food bought by Kucharski-Berger contains a drug, nor has it been submitted to the
    FDA for review, analysis, or approval.
    As Kucharski-Berger states it, reasonable consumers are willing to pay a premium
    for prescription pet food because a reasonable consumer would expect that pet food that
    4
    requires a prescription from a veterinarian as a condition of purchase has been approved
    by the FDA. When purchasing the prescription pet food, a consumer must either buy it
    directly from the veterinarian who prescribes it or take the prescription to a business that
    sells the food, such as Banfield, Blue Pearl, VCA, or a PetSmart store with a Banfield on-
    site. By imposing a requirement of a prescription, Hill's and other manufacturers can sell
    prescription pet food at "excessive, inflated prices."
    Kucharski-Berger alleges that Hill's managed to maintain the high prices due to
    agreements between the pet food manufacturers, distributors, and veterinarians. As a
    result of their agreements, Hill's, Mars, and Purina "created a separate and distinct market
    for Prescription Pet Food, which had not previously existed, which enabled them to sell
    Prescription Pet Food at anticompetitive, enhanced prices, and which they have
    dominated."
    Kucharski-Berger noted that Kansas defines "'drug'" as "'articles intended for use
    in the diagnosis, cure, mitigation, treatment, or prevention of disease in human or other
    animals,' K.S.A. § 65-1626(t)(2)" and defines "'[p]rescription-only drug'" as "'any drug
    whether intended for use by human or animal, required by federal or state law, including
    
    21 U.S.C. § 353
    , to be dispensed only pursuant to a written or oral prescription or order
    of a practitioner or is restricted to use by practitioners only,' K.S.A. § 65-1626(eee)."
    Given her assertion that prescription pet food is a drug, Kucharski-Berger asserts that the
    prescription pet food must be registered with the FDA—which it is not.
    Kucharski-Berger claimed that Hill's actions caused her injury because she bought
    Hill's prescription dog food at a higher price because she believed the prescription dog
    food contained some medicine or drug which was intended to treat a specific disease or
    health problem.
    5
    As to Kucharski-Berger's claims under the KCPA, the district court held that Hill's
    self-imposed prescription requirement was not deceptive, and Hill's did not do it to take
    advantage of consumers because the FDA "expressly wants veterinarians to provide
    direction and supervision to pet owners" who are purchasing prescription pet food.
    The district court also found that Kucharski-Berger failed to plead the fraud with
    sufficient particularity. The court also found that when Kucharski-Berger's veterinarian
    advised her to purchase the prescription pet food, it constituted an intervening event that
    precluded her from properly pleading causation against Hill's. The court noted that
    Kucharski-Berger "purchased the product after receiving information from a nonparty–
    her veterinarian. Accordingly, [she] could not have relied, as pled, on statements or
    claims from Defendant regarding her decision to initially purchase the product."
    The district court dismissed Kucharski-Berger's claim under an unjust enrichment
    theory because the claim was seeking relief for the same underlying conduct as her
    KCPA claim and, generally, an equitable remedy is unavailable if there is a possible
    adequate remedy at law.
    The district court dismissed Kucharski-Berger's claim that Hill's and the other
    companies formed a trust to fix prices because she failed to plead facts that would show
    that Hill's and the other nonparties created a trust that manipulated the market. Instead,
    the court reasoned that Kucharski-Berger was merely describing an "open and free
    market."
    Similarly, the district court dismissed Kucharski-Berger's claim that Hill's and the
    other nonparties conspired to create a monopoly. The court reasoned that she provided
    nothing to support her speculation that Hill's and the other nonparties made agreements or
    combinations to restrict market access to other competitors. The court noted that
    Kucharski-Berger's theory would lead to unintended results because "any time a new
    6
    producer of a product failed to successfully gain market share, an action could be brought
    against the top . . . companies for violations of the KRTA."
    Kucharski-Berger timely appealed the district court's decision.
    ANALYSIS
    I.     OUR STANDARD OF REVIEW IS UNLIMITED.
    Whether a district court erred by granting a motion to dismiss for failure to state a
    claim is a question of law subject to unlimited review. Williams v. C-U-Out Bail Bonds,
    
    310 Kan. 775
    , 784, 
    450 P.3d 330
     (2019). The appellate court will view the well-pleaded
    facts in a light most favorable to the plaintiff and assume as true those facts and any
    inferences reasonably drawn from them. If those facts and inferences state any claim
    upon which relief can be granted, then dismissal is improper. Dismissal is proper only
    when the allegations in the petition clearly demonstrate the plaintiff does not have a
    claim. Steckline Communications, Inc. v. Journal Broadcast Group of Kansas, Inc., 
    305 Kan. 761
    , 767-68, 
    388 P.3d 84
     (2017); see K.S.A. 2020 Supp. 60-212(b)(6). As a result,
    we need not give any deference to the district court's decision and will not seek to outline
    our agreement or disagreement with any of its findings. Hill's has adopted most of the
    district court's positions as its own, and we will address them as such.
    II.    WE DISCUSS THE RULES RELATING TO NOTICE PLEADING.
    Kansas is a notice pleading state. Generally, a petition needs only "(1) [a] short
    and plain statement of the claim showing that the pleader is entitled to relief ; and (2) a
    demand for relief sought." K.S.A. 2020 Supp. 60-208(a). Courts are to construe pleadings
    "so as to do justice." K.S.A. 2020 Supp. 60-208(e). A legal theory of relief need not be
    detailed, so long as the petition apprises the defendant of the facts upon which the
    7
    plaintiff claims to be entitled to relief. Beck v. Kansas Adult Authority, 
    241 Kan. 13
    , 25,
    
    735 P.2d 222
     (1987).
    A court cannot resolve factual disputes on a motion to dismiss for failure to state a
    claim. Under notice pleading, the petition is not intended to govern the entire course of
    the case. Instead, the pretrial order determines the ultimate legal issues and theories of the
    case. Because a party typically moves to dismiss early in a case when many facts have
    not yet been discovered and legal theories may be in flux, "[j]udicial skepticism" must be
    exercised. Rector v. Tatham, 
    287 Kan. 230
    , 232, 
    196 P.3d 364
     (2008); see Bell Atlantic
    Corp. v. Twombly, 
    550 U.S. 544
    , 556, 
    127 S. Ct. 1955
    , 
    167 L. Ed. 2d 929
     (2007) ("a
    well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
    those facts is improbable, and 'that a recovery is very remote and unlikely'").
    Because the district court dismissed this case at the pleading stage, the question
    before this court is whether Kucharski-Berger's petition met the requirements of K.S.A.
    2020 Supp. 60-208(a)—a short and plain statement of the claim showing that she was
    entitled to relief and a demand for the relief sought. When deciding the issue, this court
    looks at the pleading in a light most favorable to Kucharski-Berger and assumes that her
    alleged facts and reasonable inferences arising from those facts are true. See Steckline
    Communications, Inc., 305 Kan. at 767-68. In doing so, this court is not required "to
    accept conclusory allegations on the legal effects of events the plaintiff has set out if
    these allegations do not reasonably follow from the description of what happened, or if
    these allegations are contradicted by the description itself." Weil & Associates v. Urban
    Renewal Agency, 
    206 Kan. 405
    , 413-14, 
    479 P.2d 875
     (1971).
    With that in mind, we will examine each of Kucharski-Berger's four listed causes
    of action.
    8
    III.   THE DISTRICT COURT ERRED BY DISMISSING KUCHARSKI-BERGER'S KCPA
    CLAIM.
    A. Kucharski-Berger's claim under the KCPA
    Under K.S.A. 2020 Supp. 50-626(a) of the KCPA, "[n]o supplier shall engage in
    any deceptive act or practice in connection with a consumer transaction." So to bring a
    claim under K.S.A. 2020 Supp. 50-626, Kucharski-Berger had to allege that Hill's was
    "engage[d] in any deceptive act or practice in connection with a consumer transaction."
    An act may be found deceptive regardless of whether "any consumer has in fact been
    misled." K.S.A. 2020 Supp. 50-626(b). The consumer must also prove that they were
    "aggrieved by" the alleged violation of the act. K.S.A. 50-634(a). The statute then
    provides a nonexclusive list of deceptive acts and practices—which are "declared to be a
    violation" of the act. K.S.A. 2020 Supp. 50-626(b). Those relevant to Kucharski-Berger's
    claim are:
    "(1) Representations made knowingly or with reason to know that:
    (A) Property or services have sponsorship, approval, accessories, characteristics,
    ingredients, uses, benefits or quantities that they do not have;
    ....
    (D) property or services are of particular standard, quality, grade, style or model,
    if they are of another which differs materially from the representation;
    ....
    (G) use, benefit or characteristic of property or services has been proven or
    otherwise substantiated unless the supplier relied upon and possesses the type and amount
    of proof or substantiation represented to exist." K.S.A. 2020 Supp. 50-626(b)(1).
    To establish her claim, Kucharski-Berger alleged that Hill's violated K.S.A. 2020
    Supp. 50-626 of the KCPA by engaging in
    9
    "deceptive acts and practices in connection with the sale and advertisement of
    Prescription Pet Food in trade or commerce in the State of Kansas by misrepresenting and
    marketing and selling Prescription Pet Food through a knowingly deceptive, misleading,
    and self-imposed prescription requirement having no legal basis or mandate. In so doing,
    Hill's has represented that Prescription Pet Food has sponsorship, approval, accessories,
    characteristics, ingredients, uses, benefits or quantities that it does not have; represented
    that Prescription Pet Food is of particular standard, quality, grade, style or model, when
    Prescription Pet Food is of another that differs materially from Hill's representation; and
    engaged in the willful failure to state a material fact, or the willful concealment,
    suppression or omission of a material fact regarding Prescription Pet Food, specifically
    that neither federal, state, nor local law requires the use of a prescription, and that
    Prescription Pet Food has not been subjected to FDA testing, review, and approval, and
    does not comply with the terms and provisions of the [Federal Food, Drug, and Cosmetic
    Act (FD&C)] Act."
    B. Kucharski-Berger's factual support for her allegation that Hill's prescription
    requirement was deceptive and in violation of the KCPA
    According to the petition, Hill's began selling Prescription Diet pet food through
    veterinarians in the 1960s. In the 1980s, Hill's began providing veterinarians with
    prescription pads as a part of its marketing effort. Prescription Diet pet food is sold only
    by prescribing veterinarians and retailers who fill the veterinary prescriptions.
    Prescription pet food in general is more expensive and is marketed and sold only to pet
    owners who have a veterinarian's prescription for that pet food. The parties agree that
    neither federal nor Kansas law requires prescription pet food be sold only with a
    prescription from a veterinarian. The parties agree that prescription pet food does not
    have any drugs subject to FDA review, analysis, or approval. Hill's has always known
    these two essential facts.
    In support of her claim, she alleges:
    10
    "By requiring a prescription from a veterinarian as a pre-condition to the
    purchase of their Prescription Pet Food, Hill's and its co-conspirators misrepresent
    Prescription Pet Food to be: (a) a substance medically necessary to health; (b) a drug,
    medicine, or other controlled ingredient; (c) a substance that has been evaluated by the
    FDA as a drug; (d) a substance as to which the manufacturer's representations regarding
    intended uses and effects have been evaluated by the FDA; and (e) a substance legally
    required to be sold by prescription."
    She then asserts:
    "The intended purpose and effect of the prescription requirement has been to
    enable Hill's and its co-conspirators to market and sell Prescription Pet Food at excessive,
    inflated prices above the price of non-prescription pet food making substantially similar
    treatment claims. The supra-competitive price premium for Prescription Pet Food is not
    cost-justified and is the intended result of the false, deceptive, and misleading
    prescription requirement imposed by Hill's and its co-conspirators."
    C. Hill's argument that the facts alleged do not support a claim of deception
    Hill's argues that its prescription pet food, the prescription requirement, and the
    marketing surrounding it was not deceptive because it was following FDA guidance in
    requiring a prescription. The guidance it alleges it was following is central to its motion
    to dismiss.
    We pause to discuss the FDA Compliance Policy Guide which the FDA issued in
    April 2016 (Sec. 690.150 Labeling and Marketing of Dog and Cat Food Diets Intended to
    Diagnose, Cure, Mitigate, Treat, or Prevent Diseases) (CPG) upon which Hill's relies.
    https://www.fda.gov/media/83998/download. Hill's in essence asserts that this CPG
    represents a complete defense as a matter of law to any claim of deception.
    11
    The CPG begins by noting that it considers animal drugs "unsafe unless they have
    an approved New Animal Drug Application" or an equivalent approval from the FDA.
    CPG, 4. It also explains that when pet food companies state that their food is intended to
    treat or prevent disease, the food is considered to be a drug under federal law. CPG, 3. It
    then notes that "all drug manufacturers [are required to] register and list drugs with
    FDA." CPG, 4. "Drugs that are manufactured in an unregistered facility, or are not drug
    listed, are misbranded" under the Federal Food, Drug, and Cosmetic Act (FD&C Act).
    CPG, 4.
    The FDA pointed out that "most dog and cat food products that claim on their
    labels or in their labeling or other manufacturer communications to treat or prevent
    disease are not approved new animal drugs" and the manufacturers have disregarded drug
    registration requirements or good manufacturing practices. CPG, 4. But the FDA
    acknowledged that in the past it had exercised discretion by not enforcing the
    requirements so long as the manufacturers met certain requirements, including
    distribution of the product though licensed veterinarians. CPG, 4. The FDA reasoned that
    some of its concerns are lessened by requiring such products to be sold through a licensed
    veterinarian, such as a pet owner misinterpreting the purpose of a product. As the FDA
    noted, because prescription pet foods "have not been evaluated for safety and efficacy,
    veterinary oversight is especially important to provide periodic assessment of how the
    animal is reacting to the diet." CPG, 5.
    To that end, the FDA said that it was "less likely to initiate enforcement action
    against dog and cat food products intended to be fed as the pet's sole diet that claim to
    treat or prevent disease" when all of 11 factors were present. CPG, 7. Included within the
    factors was the requirement that the manufacturer only made the product available to
    consumers through licensed veterinarians or through individuals purchasing the product
    under veterinarian direction. CPG, 7.
    12
    In short, if a pet food manufacturer markets their food to treat or prevent disease
    the FDA considers it a drug which must be registered with the FDA. If the manufacturer
    does not comply with this requirement, the FDA considers their dog food misbranded,
    adulterated, and unsafe. Manufacturers of pet food have routinely disregarded this
    requirement. The FDA has suggested that it is "less likely" that it will act against these
    manufacturers if they distribute their products through licensed veterinarians and adhere
    to several other conditions.
    The CPG does not require, or even suggest, that pet food manufacturers label their
    products as prescription only or any derivative of such a label. Instead, it merely says that
    the FDA is less likely to enforce violations of the FD&C Act if manufacturers do not sell
    their pet food directly to consumers and instead have a veterinarian intermediary to make
    sure the pet is not harmed by the food. CPG, 5, 7. To interpret this as authorizing or
    mandating Hill's prescription requirement "wrongly equates regulatory forbearance with
    regulatory authorization." Vanzant v. Hill's Pet Nutrition, Inc., 
    934 F.3d 730
    , 738 (7th
    Cir. 2019).
    "To be sure, if pet food intended to treat or prevent disease is purchased from or
    under the direction of a licensed veterinarian, the FDA is less likely to initiate an
    enforcement action based on the lack of an approved new animal drug application—
    provided, however, that the other 10 factors are also present. And 'less likely' does not
    mean 'will not'; it certainly doesn't signal authorization." 934 F.3d at 738.
    A reasonable reading of the CPG could lead one to conclude that if Hill's were to
    sell its prescription dog food without veterinarian authorization, the FDA would take
    enforcement action because it is contrary to FDA regulations for Hill's to claim on its
    labels or in its labeling or other manufacturer communications that its food treats or
    prevents disease when the FDA has not approved it for that purpose. It is misbranded,
    adulterated, and unsafe. But the FDA retains the discretion to take enforcement action
    against Hill's even if it does require a prescription from a veterinarian—because it is still
    13
    misbranded, adulterated, and unsafe under the agency's definitions. The prescription
    requirement does not make a product safe that is otherwise unsafe, it simply mitigates the
    harm that the food may cause due to the failure to gain FDA approval.
    In support of its reliance on the CPG as a complete defense to any claims of
    deception, Hill's cites Bomhoff v. Nelnet Loan Services, Inc., 
    279 Kan. 415
    , 424, 
    109 P.3d 1241
     (2005), where the Kansas Supreme Court held a lender did not violate the KCPA
    because it followed federally mandated practices; therefore, the lender's actions were not
    deceptive. That said, Hill's acknowledges the CPG mandates nothing; it at most
    encourages. So Bomhoff is inapplicable to this set of facts.
    But there is another reason Bomhoff has limited application here. It was a case
    decided on summary judgment, not a motion to dismiss on the pleadings. Motions to
    dismiss for failure to state a claim are limited to a review of the pleadings while motions
    for summary judgment consider all the facts disclosed during discovery. John Doe v.
    M.J., 
    59 Kan. App. 2d 273
    , 282-83, 
    482 P.3d 596
     (2021). Litigants are therefore
    cautioned against conflating cases challenging the grant or denial of summary judgment
    with the standard of review required for pleadings under our liberal notice pleading
    scheme. There has been no discovery here regarding whether Hill's followed all of the
    FDA guidelines and which, if any, are mandatory. So we view any discussion of Hill's
    specific practices related to FDA guidelines as premature.
    Moreover, Hill's seems to ignore that much of Kucharski-Berger's pleadings focus
    on the fact that Hill's labels and markets its products as requiring a prescription. It is that
    prescription labeling, and the inferences that a reasonable consumer would make, that
    Kucharski-Berger challenges. Kucharski-Berger does not, at least entirely, oppose
    veterinarian involvement. Instead, she is alleging that by mandating a prescription, Hill's
    is violating the KCPA. "[A]n advertising practice can be deceptive without directly
    14
    violating FDA regulations." Moore v. Mars Petcare US, Inc., 
    966 F.3d 1007
    , 1019 (9th
    Cir. 2020).
    At least one other court has found that the labeling of pet food as requiring a
    prescription could be considered deceptive and misleading.
    "Common sense dictates that a product that requires a prescription may be considered a
    medicine that involves a drug or controlled substance. See, e.g., Prescription, Merriam-
    Webster, https://www.merriam-webster.com/dictionary/prescription (last accessed
    August 2, 2019) (defining 'prescription' as, among other things, 'a prescribed medicine').
    This conforms to general understandings of prescription drugs for humans and pets.
    Moreover, the brand name of 'prescription pet food' itself could be misleading. A
    reasonable consumer being told about 'prescription pet food' may be surprised to learn
    that there are no drugs or controlled ingredient[s] in the pet food by nature of brand
    names like 'Prescription Diet' or an 'Rx' symbol on the food packaging. See [Williams v.
    Gerber Products. Co., 
    552 F.3d 934
    , 939 (9th Cir. 2008)] ('The product is called "fruit
    juice snacks" and the packaging pictures a number of different fruits, potentially
    suggesting (falsely) that those fruits or their juices are contained in the product.')." 966
    F.3d at 1018.
    Ultimately, "[w]hether a deceptive act or practice has occurred under the [KCPA]
    is not a question of law for the court, but rather a question of fact for the jury to decide."
    Manley v. Wichita Business College, 
    237 Kan. 427
    , Syl. ¶ 2, 
    701 P.2d 893
     (1985). And as
    we have stated, our role here is only to determine whether Kucharski-Berger's petition
    sufficiently apprises Hill's of the facts upon which she claims to be entitled to relief, not
    whether she can prove them or whether they have merit. Hill's defenses to the claims are
    not our concern at this stage unless they require dismissal as a matter of law. And they do
    not.
    15
    D. Kucharski-Berger succeeded in pleading fraud with sufficient particularity as
    related to her KCPA claim
    Hill's contends that Kucharski-Berger has not sufficiently pled her fraud claim
    under the KCPA. It argues that this failure merits dismissal. We disagree.
    Under K.S.A. 2020 Supp. 60-209(b), a party alleging "fraud . . . must state with
    particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge
    and other conditions of a person's mind may be alleged generally." Still, while claims
    brought under K.S.A. 2020 Supp. 50-626 "'sound largely in fraud . . . a critical element of
    a common-law fraud action, the intent to defraud, need not be proven.'" Wagher v. Guy's
    Foods, Inc., 
    256 Kan. 300
    , 303-04, 
    885 P.2d 1197
     (1994) (quoting Haag v. Dry
    Basement, Inc., 
    11 Kan. App. 2d 649
    , 650, 
    732 P.2d 392
     [1987]).
    Likewise, to bring a successful action under the KCPA, a consumer is not required
    to prove all the elements of common-law fraud. Ray v. Ponca/Universal Holdings, Inc.,
    
    22 Kan. App. 2d 47
    , Syl. ¶ 2, 49-50, 
    913 P.2d 209
     (1995) (holding KCPA claims may be
    established by a preponderance of the evidence rather than by clear and convincing
    evidence). Part of that holding is tied to the idea that the Legislature wants the KCPA to
    be liberally construed to protect consumers. See K.S.A. 50-623; Ray, 
    22 Kan. App. 2d at 49
    .
    In this case, Kucharski-Berger alleged that Hill's violated the KCPA by
    "misrepresenting and marketing and selling Prescription Pet Food through a knowingly
    deceptive, misleading, and self-imposed prescription requirement . . . . In so doing, Hill's
    has represented that Prescription Pet Food has sponsorship, approval, accessories,
    characteristics, ingredients, uses, benefits or quantities that it does not have [K.S.A. 2020
    Supp. 50-626(b)(1)(A)]; represented that Prescription Pet Food is of particular standard,
    quality, grade, style or model, when Prescription Pet Food is of another that differs
    16
    materially from Hill's representation [K.S.A. 2020 Supp. 50-626(b)(1)(D)]; and engaged
    in the willful failure to state a material fact, or the willful concealment, suppression or
    omission of a material fact regarding Prescription Pet Food [K.S.A. 2020 Supp. 50-
    626(b)(3)]."
    Two of Kucharski-Berger's claims do not involve an intent requirement, while the last
    one does. See Crandall v. Grbic, 
    36 Kan. App. 2d 179
    , 196, 
    138 P.3d 365
     (2006);
    Cornelison v. Denison State Bank, No. 108,427, 
    2014 WL 37682
    , at *11 (Kan. App.
    2014) (unpublished opinion).
    Hill's points to Ayalla v. Southridge Presbyterian Church, 
    37 Kan. App. 2d 312
    ,
    319-20, 
    152 P.3d 670
     (2007), where this court held that the plaintiff failed to properly
    plead fraud in an action brought under the KCPA. Hill's reliance on this case is misplaced
    for three reasons.
    First, Ayalla was a summary judgment case, not a motion to dismiss on the
    pleadings. Summary judgment hinges on a review of all the evidence following discovery
    to determine whether there are any genuine issues of fact. As we have already stated, the
    standard under which to review pleadings is less onerous. We concede that the district
    court found that Ayalla was alleging a fraud claim but never added a fraud claim to her
    petition—so the analysis would be similar to our motion to dismiss standard of review.
    But the court also noted that she could not factually establish fraud even if she had pled it
    properly, a decision that goes beyond the pleadings, which limits its application here.
    Second, Ayalla sued for breach of contract after Southridge Presbyterian accepted
    a competing offer for a home. Ayalla argued that Southridge Presbyterian violated the
    KCPA based on its fraudulent misrepresentation of her offer to the competing buyer as a
    competing bid rather than an accepted offer. This court affirmed the dismissal of the
    claim, finding: (1) Ayalla failed to assert fraud as a separate theory of recovery in her
    17
    petition and (2) even if she had pled fraud properly, she failed to show that she relied on a
    misrepresentation. 37 Kan. App. 2d at 319-20. There was no discussion in the case about
    the distinction between a traditional fraud claim and a claim of fraudulent conduct under
    the KCPA. The cases that we have cited that discuss this distinction are not mentioned at
    all in Ayalla. So to assume from the case that a party must always specifically plead fraud
    in a KCPA claim is an overreach.
    Finally, in analyzing Ayalla's claim as a traditional fraud claim, the panel noted
    that to prove fraud requires a plaintiff to show these elements: "'an untrue statement of
    fact, known to be untrue by the party making it, made with the intent to deceive or with
    reckless disregard for the truth, upon which another party justifiably relies and acts to his
    or her detriment.'" 37 Kan. App. 2d at 319 (quoting Crandall, 
    36 Kan. App. 2d 179
    , Syl.
    ¶ 3). And that is correct as to a separate fraud claim. But at the very least, Kucharski-
    Berger's two claims under K.S.A. 2020 Supp. 50-626(b)(1) do not require the pleading
    requirements for actions brought in fraud because, while similar to fraud claims, they are
    not themselves allegations of fraud and contain no element of intent. See Wagher, 
    256 Kan. at 303-04
    .
    Even if we were to find that the remaining claim under K.S.A. 2020 Supp. 50-
    626(b)(3) (willful concealment, suppression, or omission of a material fact)—or the
    others—required Kucharski-Berger to plead with particularity, she has done so in this
    case. Kucharski-Berger alleged that Hill's made an untrue statement of fact, namely that
    Hill's marketed its prescription pet food as prescription only when, in fact, the FDA
    merely encouraged prescription pet food be sold only to consumers through a veterinarian
    intermediary, and that she relied on the use of the term prescription to her detriment.
    Moreover, Kucharski-Berger alleged that Hill's knew that its prescription pet food had no
    medicine or drug and was not approved by the FDA and that it used its prescription
    labeling and marketing to inflate the price of the prescription pet food.
    18
    Kucharski-Berger has done enough at this stage of the lawsuit to put Hill's on
    notice of what her allegations are under the KCPA.
    E. Kucharski-Berger properly pled causation and resultant harm.
    Hill's asserts that Kucharski-Berger has failed to allege a causal connection
    between the prescription practice and her alleged injury, both of which it argues are
    required to establish that she was aggrieved. It claims that this failure requires dismissal.
    It relies on Finstad v. Washburn University, 
    252 Kan. 465
    , 
    845 P.2d 685
     (1993). In
    Finstad, students in the court reporting program at Washburn University filed a claim
    under the KCPA based on the University's false representation in its catalog that the
    program was certified or soon to be certified when it was not. But Finstad does not
    provide the support Hill's seeks for two reasons.
    First, Finstad involved a summary judgment motion, not a motion to dismiss on
    the pleadings. Summary judgment places a case in a different procedural posture than the
    current case. See John Doe, 59 Kan. App. 2d at 282-83 (noting that motions to dismiss
    are limited to a review of the pleadings while motions for summary judgment consider all
    the facts disclosed during discovery).
    Second, when the students filed their petition, K.S.A. 50-626(b) did not include
    the current provision that a consumer need not be misled to pursue a claim for a deceptive
    act under the KCPA. The court interpreted the new provision, although not applicable to
    the case before it, as establishing per se violations of the KCPA for any of the listed
    deceptive acts. 
    252 Kan. at 470
    . But the consumer still needed to establish that they were
    aggrieved by the deception and that there was a causal connection between the deception
    and the injury to maintain a private action under the KCPA. The court defined an
    aggrieved party as one whose legal right is invaded by an act complained of or whose
    pecuniary interest is directly affected. 
    252 Kan. at 472
    . The court granted summary
    19
    judgment to the University because the students did not establish they were aggrieved by
    the deceptive act. There was no showing that any of the students relied on the deceptive
    catalog information or suffered any injury or loss because of the publication of the
    statement. 
    252 Kan. at 472
    . Such is not the case here.
    Under the current version of the statute, Kucharski-Berger need not establish that
    she was misled by Hill's, so long as Hill's was engaged in a deceptive act or practice. See
    K.S.A. 2020 Supp. 50-626(b). Kucharski-Berger is not alleging that the prescription pet
    food that she is buying is ineffective or harmful to her pet. Given that she continues to
    buy it she must see some value in the pet food. Her assertion is that the price of the pet
    food is significantly higher than it should be because of Hill's allegedly deceptive
    marketing practices. So she properly alleges that she is aggrieved by being required to
    pay higher prices for dog food based solely on Hill's manufactured prescription
    requirement.
    "As a result of the false and fraudulent prescription requirement and the
    combination and conspiracy of Hill's and its co-conspirators, Plaintiff paid more for
    Prescription Pet Food than Plaintiff would have paid in the absence of the requirement, or
    would never have purchased Prescription Pet Food."
    Hill's further argues that "'[w]hen causation is based on a chain of events, an
    intervening cause may absolve the defendant of liability.'" State v. Wilson, 
    308 Kan. 516
    ,
    522, 
    421 P.3d 742
     (2018) (quoting State v. Arnett, 
    307 Kan. 648
    , 655, 
    413 P.3d 787
    [2018]). Hill's claims that the fact that Kucharski-Berger based her purchase of Hill's
    Prescription Diet pet food on the advice given to her by her veterinarian, the veterinarian
    was the intervening event that breaks the chain of causation, requiring her claim to be
    dismissed. We find this argument unpersuasive.
    20
    Kucharski-Berger's claim is premised on Hill's self-imposed prescription
    requirement. It has some similarity to the claims made in Golden v. Den-Mat
    Corporation, 
    47 Kan. App. 2d 450
    , 
    276 P.3d 773
     (2012). In Golden, this court held that a
    consumer who received a brochure from Den-Mat but later bought the advertised
    product—veneers—from a dentist, could maintain an action against Den-Mat because the
    brochure contained representations that "were made 'in connection with' the sale and, if
    deceptive, would taint the sale in violation of the KCPA." 47 Kan. App. 2d at 471.
    While Kucharski-Berger does not allege that she personally saw any of Hill's
    advertisements or labels for its prescription pet food before purchasing it from her
    veterinarian, that does not preclude her from bringing this action. The recommendation
    from the veterinarian that Hill's prescription pet food could treat her dog's allergic skin
    reactions and that the food was "available only by prescription" is directly related to her
    allegations about Hill's alleged deceptive marketing. As alleged by Kucharski-Berger, her
    veterinarian telling her that the prescription pet food was only available by prescription
    stems from Hill's requirement that veterinarians do so.
    On the whole, Kucharski-Berger's pleading was enough to give Hill's notice of her
    KCPA claims against the company. Moreover, if particularity was required for pleadings
    alleging fraud, her petition was sufficiently particular. She alleged damages, and her
    continued purchasing of the dog food does not prove that she was not damaged by the
    conduct she alleges Hill's engages in. And the presence of her veterinarian as an
    intermediary between Hill's prescription requirement and Kucharski-Berger's purchase of
    Hill's prescription pet food is not a barrier absolving Hill's of liability if it is engaging in
    deceptive practices and acts. The district court erred in dismissing Kucharski-Berger's
    claim under the KCPA.
    21
    IV.      THE DISTRICT COURT ERRED BY DISMISSING KUCHARSKI-BERGER'S CLAIM THAT
    HILL'S VIOLATED THE KRTA.
    Kucharski-Berger's petition asserts two claims under the KRTA. They are both
    closely related and rely on the same factual support.
    A. Kucharski-Berger appropriately pleads claims under the KRTA.
    To support her first claim under the KRTA, as outlined in K.S.A. 2020 Supp. 50-
    101 and K.S.A. 2020 Supp. 50-112, Kucharski-Berger needed to allege that Hill's was
    involved in a trust, defined as a "combination of capital, skill, or acts by two or more
    persons" for any of several purposes. Those purposes include: (1) creating or carrying
    out restrictions in trade or commerce or carrying out restrictions in the full and free
    pursuit of an authorized business; (2) increasing or reducing the price of merchandise,
    produce, or commodities; (3) to prevent competition in the manufacture, making,
    transportation, sale, or purchase of merchandise; and (4) entering into an agreement
    which would establish or settle the price of an article or commodity to preclude free and
    unrestricted competition in the market. See K.S.A. 2020 Supp. 50-101.
    Kucharski-Berger alleges that under K.S.A. 2020 Supp. 50-101 and K.S.A. 2020
    Supp. 50-112, Hill's, Purina, Mars, PetSmart, and Banfield
    "entered into a trust and contract, combination, or conspiracy in restraint of trade or
    commerce in Kansas to fix, raise, stabilize, and peg prices for Prescription Pet Food by
    agreeing, combining, and conspiring to misrepresent and market and sell Prescription Pet
    Food through a knowingly deceptive, misleading, and self-imposed prescription
    requirement having no legal basis or mandate."
    She also contends that these actions were per se unlawful under the KRTA,
    arguing their actions have restrained trade in the prescription pet food market. Finally,
    22
    Kucharski-Berger asserts that because of this conspiracy she and others have been
    required to pay more for dog food than they would have otherwise paid absent Hill's
    violation.
    Her second claim under the KRTA is based on K.S.A. 50-132—it is unlawful for
    any "person, servant, agent or employee of any person doing business within the state of
    Kansas [to] conspire or combine with any other persons, within or without the state for
    the purpose of monopolizing any line of business."
    Kucharski-Berger alleges that, under K.S.A. 50-132, Hill's and the named
    coconspirators entered a conspiracy to monopolize the market for prescription pet food in
    Kansas and committed covert acts in furtherance of their conspiracy. They did this by
    "agreeing, combining, and conspiring to misrepresent and market and sell Prescription
    Pet Food through a knowingly deceptive, misleading, and self-imposed prescription
    requirement having no legal basis or mandate, and by agreeing, combining, and
    conspiring to limit and preclude non-conspiring competing manufacturers of Prescription
    Pet Food from access to major channels of distribution, including their co-conspirator
    retailers and veterinary clinics."
    Kucharski-Berger properly pleads both claims in the language of the statute. A
    legal theory of relief need not be detailed, so long as the petition apprises the defendant
    of the facts upon which the plaintiff claims to be entitled to relief. Beck, 
    241 Kan. at 25
    .
    B. Kucharski-Berger's factual support for her KRTA claims
    So we turn to whether Kucharski-Berger has put forward sufficient factual
    allegations in her petition to support her claim or whether they are simply conclusory.
    In support of her claim, Kucharski-Berger alleges:
    23
    "In March of 2005, Hill's, Mars, PetSmart, and Banfield entered into a
    combination and conspiracy to sell Prescription Pet Food, pursuant to which they agreed:
    "(a) to restrict the retail sale of their Prescription Pet Food to pet owners who had
    obtained and presented a prescription;
    "(b) to require that retail sellers enforce their prescription and presentation
    requirement; and
    "(c) to restrict retail sellers to those who agreed to enforce the prescription
    requirement, all with the purpose and effect of raising, fixing, stabilizing, and
    pegging prices of Prescription Pet Food."
    Kucharski-Berger alleges that Hill's, Purina, and Mars control somewhere between
    95 to nearly 100 percent of the prescription pet food market. So any agreement among
    them to continue what Kucharski-Berger describes as the deceptive practice of requiring
    a prescription in an effort to keep prices high, would indicate an attempt to monopolize
    the market in violation of the KRTA.
    Kucharski-Berger later proffers in her petition that she has been "informed and
    believe[s] that agreements between and among Mars, Purina, Hill's, PetSmart, and
    Banfield prohibit and restrict PetSmart and Banfield from stocking and selling
    Prescription Pet Food made by . . . other competitors." In furtherance of this conspiracy,
    "Hill's entered into a 'merchandising agreement' with PetSmart and Banfield, which Mars
    and PetSmart owned, to sell Hill's Prescription Pet Food in all PetSmart stores with an
    on-site Banfield pet hospital." She alleges that although Mars had the power to exclude
    Hill's from PetSmart and Banfield, it entered into the merchandising agreement against its
    economic interests, but as part of the previously noted agreement to control the market.
    Purina later joined the conspiracy. She alleges that Hill's and its coconspirators have
    intentionally blocked smaller prescription pet food manufacturers from selling in
    PetSmart and Banfield stores.
    24
    Kucharski-Berger claims in her petition that all of this points to an effort by Hill's
    and its coconspirators to monopolize the prescription pet food market and force out the
    few competitors that remain. This has led to "unjustifiably increased prices for
    Prescription Pet Food." She also alleges facts to support her claim that prescription dog
    food is priced unjustifiably high based solely on the prescription requirement that she
    claims is at the heart of the KRTA claims.
    "For example, Hill's produces a Prescription Pet Food product called
    'Prescription Diet Urinary Care c/d Multicare' cat food that sells for $5.62 per pound, and
    another substantially similar non-prescription product called 'Adult Urinary Hairball
    Control' cat food that sells for $3.51 per pound. The two products make essentially the
    same health claims and have a 75 percent overlap in ingredients. The non-overlapping
    ingredients are not drugs and are not sufficient to justify one product being sold by
    prescription for a significantly higher price. Given the overlap in ingredients, and the
    absence of any drug or other ingredient required to be sold by prescription in the
    Prescription Pet Food product, the only meaningful distinction between the two products
    that is apparent to Plaintiffs and those similarly situated is the prescription requirement.
    The price differential is therefore based largely, if not entirely, on the prescription
    requirement imposed by Hill's and the other manufacturing conspirators in the
    combination.
    "Prescription Pet Food contains no drug or other ingredient not also common in
    non-prescription pet food. Hill's and its co-conspirators impose and enforce the
    prescription requirement to prey on the known propensities of consumers to love their
    pets and trust their vets."
    She then alleges that when the FDA was considering a draft CPG that would
    require enforcement actions against dog food manufacturers that made claims about the
    therapeutic benefits of their food, many in the industry agreed that such claims were
    misleading.
    "At the time of the Draft CPG, both the pet food industry and the veterinary
    profession widely held the view that use of a prescription requirement was improper and
    25
    misleading for products not subjected to FDA review and approval. In a filed comment
    on the Draft CPG, the American Feed Industry Association, representing 'more than 550
    domestic and international companies and state, regional and national associations,'
    recommended 'that pet food products subject to this CPG should be regulated in a manner
    similar to human medical foods, as veterinary medical foods.' According to the FDA,
    'The labeling of medical foods may not bear the symbol "Rx only",' because 'medical
    foods are not required by federal law to be dispensed by prescription,' and '[t]herefore,
    the use of the symbol "Rx only" in the labeling of a medical food would misbrand a
    medical food under section 403(a)(l) of the FD&C Act because it would be a false and
    misleading statement about that product.' Another filed comment from the American
    Veterinary Medical Association ('AVMA'), known as 'the recognized national voice for
    the veterinary profession,' representing 83 percent of all U.S. veterinarians, recommended
    that because Prescription Pet Food had "not been evaluated by FDA for safety, efficacy,
    or nutritional adequacy . . . all pet food products with implied or explicit health or drug
    claims [should] include a prominent statement on the label that these claims have not
    been evaluated by the FDA.''
    But from September to early November 2012, Hill's and its coconspirators, when
    faced with a draft CPG from the FDA that would have made the sale of their dog food
    illegal unless approved by the FDA, used their positions of power within the Pet Food
    Institute (PFI) to request that the FDA insert a requirement that the food be available only
    through a veterinarian. Thereafter,
    "[t]hey further agreed that they all would construe the Draft CPG to require them to use a
    prescription requirement, and to contend that their use of the prescription requirement
    was a good faith effort to comply with the Draft CPG, notwithstanding their clear
    violations of its conditions."
    If these claims are true, Kucharski-Berger has pled sufficient evidence to go
    beyond mere conclusory allegations. She has supported her pleading with facts revealing
    the who, what, when, and where of the alleged KRTA violations. At this stage of
    litigation Kucharski-Berger did not have to prove that the case was a winning case. She
    26
    was merely required to put Hill's on notice of what she was alleging. The court and
    parties can address the merits of the allegations at later stages of litigation.
    C. Hill's argument that the facts alleged do not support any claim under the KRTA
    Hill's argues that Kucharski-Berger failed to allege direct evidence of a trust or
    conspiracy to fix prices. In support, Hill's cites Smith v. Philip Morris Companies, 
    50 Kan. App. 2d 535
    , 
    335 P.3d 644
     (2014). Because it is at the heart of Hill's motion to
    dismiss this claim, we will examine it in more detail.
    In Smith, the court discussed the need for either direct or circumstantial evidence
    of a conspiracy to fix prices or monopolize to support a KRTA claim and avoid summary
    judgment. Based on Smith, Hill's surmises that Kucharski-Berger needed to show in her
    pleadings that Hill's and other manufacturers entered into an express agreement or
    "'conscious commitment to a common scheme designed to achieve an unlawful
    objective.'" 50 Kan. App. 2d at 565-66. It alleges that she has failed to do so.
    But Kucharski-Berger did allege a specific meeting in March 2005 where the issue
    of the prescription requirement was discussed and agreements were made—the purpose
    and effect of which was "raising, fixing, stabilizing and pegging prices of Prescription Pet
    Food." The central theme was to agree that they would support the prescription
    requirement to keep prices inflated. This alone provided enough detail to put Hill's on
    notice of what conduct it was alleged to have participated in. And if true, it is certainly
    the "smoking gun" that Hill's argues is necessary to support a conspiracy claim.
    Also citing Smith, Hill's asserts that Kucharski-Berger is in essence alleging
    conscious parallelism on the part of Hill's and its coconspirators (the process "by which
    firms in a concentrated market might in effect share monopoly power, setting their prices
    at a prefixed maximizing, supracompetitive level by recognizing their shared economic
    27
    interests and their interdependence with respect to price and output decisions." Brooke
    Group v. Brown & Williamson Tobacco Corp., 
    509 U.S. 209
    , 227, 
    113 S. Ct. 2578
    , 
    125 L. Ed. 2d 168
     [1993]). The theory is that the uniform conduct of pricing by competitors
    permits a court to infer the existence of a conspiracy between those competitors.
    Because the evidence of conscious parallelism is circumstantial, courts are
    concerned that they do not punish unilateral, independent conduct of competitors. See
    Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 
    475 U.S. 574
    , 594, 
    106 S. Ct. 1348
    , 
    89 L. Ed. 2d 538
     (1986). They therefore require that evidence of a defendant's
    parallel pricing be supplemented with "'plus factors.'" Smith, 50 Kan. App. 2d at 563. Our
    court described "plus factors" as simply "an articulation of the requirement that an
    inference drawn from the plaintiff's circumstantial evidence offered to establish collusive
    pricing must be reasonable." Smith, 50 Kan. App. 2d at 568. In other words, evidence
    from which a court could reasonably infer that they were acting by agreement and not
    simply their own self-interest.
    "Any showing by a plaintiff that tends to exclude the possibility of independent
    action can qualify as a plus factor. If a benign explanation of a defendant's action is
    equally plausible or more plausible than a collusive explanation, the action cannot
    constitute a plus factor. On the other hand, evidence that a defendant's behavior would
    not be reasonable or explicable (i.e., not in its legitimate economic self-interest) if it were
    not conspiring to fix prices can constitute a plus factor." Smith, 
    50 Kan. App. 2d 535
    , Syl.
    ¶ 8.
    So Hill's asserts that Kucharski-Berger had to plead plus factors to support the
    conspiracy and her failure to do so dooms her KRTA claim.
    But Hill's misapplies Smith to the facts here.
    28
    First, Hill's has again cited a case that involved the criteria for summary judgment
    on a KRTA claim, not a motion to dismiss. Summary judgment places a case in a
    different procedural posture than the current case. See John Doe, 59 Kan. App. 2d at 282-
    83. The Smith court found that "to establish a material question of fact and thereby
    survive summary judgment, Plaintiffs must come forward with evidence that Defendants'
    wholesale pricing practices resulted from something more than legal conscious
    parallelism." (Emphasis added.) Smith, 50 Kan. App. 2d at 568. Hill's cites no caselaw to
    support its claim that such "plus factors" are required at the pleading stage. We can find
    none in Kansas. But see Twombly, 
    550 U.S. at 557
     ("[W]hen allegations of parallel
    conduct are set out [in the pleadings] in order to make a § 1 claim [under the Sherman
    Act], they must be placed in a context that raises a suggestion of a preceding agreement,
    not merely parallel conduct that could just as well be independent action.").
    Moreover, even if plus factors were required at the pleading stage, Kucharski-
    Berger sufficiently alleges plus factors and evidence of the implausibility of independent
    action to withstand a motion to dismiss. Smith recognized that "[e]vidence of actions
    contrary to a defendant's economic self-interest can serve as a plus factor." 
    50 Kan. App. 2d 535
    , Syl. ¶ 14. Kucharski-Berger alleged several facts in her petition that pointed to
    collective action, not independent action, including actions against self-interest.
    She alleged that coconspirator Mars was acting against its self-interest when it
    allowed Hill's to sell its prescription dog food in its PetSmart stores with an on-site
    Banfield pet hospital. This, she claims, is evidence that the major players in the pet food
    industry had reached an agreement to act in concert, not independently.
    She alleged:
    "The decision to continue their Prescription Pet Food combination and
    conspiracy, as they had been doing in violation of federal and state law, was a decision
    29
    made collectively by Hill's and its co-conspirators, in that such a decision was contrary to
    the independent economic self-interest of each of them without agreement with the
    others, but rational if made collectively to continue their successful combination. The
    conduct of Hill's and each other co-conspirator in violating the FD&C Act and various
    federal and state deceptive trade practice and consumer protection laws all by itself
    exposed it to multiple risks, including (1) potential solicitation of FDA enforcement
    action by a competitor or consumer; (2) suit by another conspirator for deceptive
    marketing practices in violation of the Lanham Act, 
    15 U.S.C. § 1125
    (a); (3) advertising
    to consumers exposing the sham selling of Prescription Pet Food and consequent loss of
    sales and consumer good will; and (4) suit by consumers on learning of the deception.
    Any of these risks could result in public exposure and the irrecoverable loss of consumer
    trust and goodwill, inasmuch as the deceptive use of the prescription requirement
    depended for its success on the unquestioning faith of vulnerable pet owners in the
    disinterested advice and recommendations of their veterinarians. If, however, all
    conspirators, as the dominant sellers of Prescription Pet Food, agreed jointly to continue
    selling Prescription Pet Food as they had been, these risks would be substantially
    mitigated because of their combined resources and collective market power."
    She then alleges the implausibility of independent action.
    "Once the Draft CPG was issued, it is further implausible that Hill's, Purina, and
    Mars would each have independently concluded that the Draft CPG suggested,
    recommended, or authorized the use of a prescription requirement in the marketing and
    sale of Prescription Pet Food, or that the Draft CPG suggested, recommended, or
    authorized their making disease claims on labeling or promotional materials provided to
    consumers, whether in print or on websites. It is further implausible that each would have
    independently decided to engage in a course of conduct in violation of the Draft CPG and
    the FD&C Act in exactly the same manner, as in fact occurred. That all three
    manufacturers decided to violate the Draft CPG and FD&C Act in the same way is
    explicable only as the result of a collective decision or agreement."
    And we cannot lose sight of the fact that Kucharski-Berger claims that an actual
    agreement was reached at a meeting between the coconspirators in March 2005. She
    30
    makes no claim of conscious parallelism as it relates to that meeting. There are no
    inferences required, so no plus factors are required for that claim.
    The petition provides appropriate notice of the claims Kucharski-Berger was
    bringing under the KRTA, and her alleged facts do not preclude her from obtaining relief.
    The district court erred in dismissing her KRTA claims.
    V.     THE DISTRICT COURT ERRED IN DISMISSING KUCHARSKI-BERGER'S UNJUST
    ENRICHMENT CLAIM.
    In her petition, Kucharski-Berger alleges that Hill's was unjustly enriched by its
    misrepresentations and deceptive marketing practices involving its prescription pet food.
    Unjust enrichment arises when (1) a benefit has been conferred upon the defendant,
    (2) the defendant retains the benefit, and (3) under the circumstances, the defendant's
    retention of the benefit is unjust. See In re Estate of Sauder, 
    283 Kan. 694
    , 719, 
    156 P.3d 1204
     (2007). She alleges that she was required to pay an unjustifiably high price for her
    pet food because of Hill's false and deceptive prescription requirement. This is the same
    conduct that she alleges violated the KCPA.
    Unlike its other allegations that Kucharski-Berger presented insufficient evidence
    to support her claim, here Hill's argues that Kucharski-Berger's unjust enrichment claim
    must be dismissed because it was seeking a remedy for the same conduct covered by the
    KCPA. It cites Deeds v. Waddell & Reed Invst. Mgmt. Co., 
    47 Kan. App. 2d 499
    , 511,
    
    280 P.3d 786
     (2012), for the proposition that "a claim for unjust enrichment is an
    equitable claim, and generally an equitable remedy is not available when an adequate
    remedy exists under another legal claim." In Deeds, the plaintiff brought a claim under
    the Kansas Wage Payment Act and an unjust enrichment theory. Because Deeds had a
    statutory remedy through the Kansas Wage Payment Act, this court found that his unjust
    enrichment claim was preempted. 47 Kan. App. 2d at 511.
    31
    Yet again, Hill's seems to ignore the fact that this case is before us on a motion to
    dismiss on the pleadings, not on a summary judgment motion. Deeds involved a ruling on
    summary judgment. The court found that Deeds had a pending claim under the Kansas
    Wage Payment Act with the Secretary of Labor, so his unjust enrichment claim was
    preempted by that claim at the summary judgment stage. Hill's cites no Kansas case that
    discusses the Deeds holding as it relates to a motion to dismiss based on the pleadings.
    And there is a good reason for that.
    To apply this rule to a motion to dismiss on the pleadings would ignore Kansas
    pleading rules. "A party may set out two or more statements of a claim or defense
    alternately or hypothetically, either in a single count or defense or in separate ones. If a
    party makes alternative statements, the pleading is sufficient if any one of them is
    sufficient." K.S.A. 2020 Supp. 60-208(d)(2); Beams v. Werth, 
    200 Kan. 532
    , 549, 
    438 P.2d 957
     (1968) (finding a party will not be required to elect at the pleading stage of the
    case which legal theory relied on; this would defeat the purpose of allowing inconsistent
    pleading). Clearly, Kucharski-Berger cannot recover under both theories, but she can
    plead both at this early stage. See Nieberding v. Barrette Outdoor Living, Inc., No. 12-
    2353-KHV, 
    2012 WL 6024972
    , at *4 (D. Kan. 2012) (unpublished opinion).
    For these reasons, the district court erred in dismissing Kucharski-Berger's unjust
    enrichment claim.
    Reversed and remanded for further proceedings.
    32