United States District Court, W.D. Missouri, Central Division
ROBERT BRATTON, Individually and on behalf of all others similarly situated in Missouri, Plaintiffs,
THE HERSHEY COMPANY, Defendant.
NANETTE K. LAUGHREY United States District Judge
The Hershey Company moves to dismiss the Second Amended
Complaint under Fed.R.Civ.P. 12(b)(6). Doc. 47. The motion is
manufactures Reese's® Pieces® and Whoppers®
candies. The products are regularly sold at grocery stores,
convenience stores, and other food retail outlets throughout
Missouri and the rest of the United States. Bratton bought
opaque, non-pliable, cardboard boxes of Reese's Pieces
and Whoppers for about $1.00 apiece at a Gerbes grocery store
in Missouri, for his personal use. His lawsuit focuses on
Hershey's packaging of the candies.
spend an average of 13 seconds making an in-store purchasing
decision. The decision is heavily dependent on a
product's packaging, in particular, the package
dimensions. When faced with a large box and a smaller box,
both containing the same amount of product, a consumer is
more likely to choose the larger one, thinking it is a better
dimensions of a Reese's Pieces box are 2
9∕16″ x 11∕16″
x 6 1∕16″. The front of the box
includes the description, “PEANUT BUTTER CANDY IN A
CRUNCHY SHELL.” Doc. 33, p. 8. The front of the box
also states: “NET WEIGHT 4 OZ (113 g)”; “51
PIECES PER SERVING”; “200 CALORIES”;
“8 g SAT FAT”; “45 mg SODIUM”; and
“21 g SUGARS.” Doc. 33, p. 8. On the back of the
box, the “Nutrition Facts” panel states that
there are “about 3” servings in the container.
Doc. 48-1, p. 3. About 29% of each box has “slack
filled, ” or empty, space.
dimensions of a Whoppers box are 4″ x 1 ⅛″x
6 ⅝″. The front of the box includes the
description, “THE ORIGINAL MALTED MILK BALLS[, ]
Naturally and Artificially Flavored, ” and includes a
picture of a few dozen malted milk balls in the lower left
corner. Doc. 33, p. 6. The front of the box also states,
“NET WEIGHT 5 OZ (141 g).” Doc. 33, p. 7. On the
back of the box, the “Nutrition Facts” panel
states that there are “18 pieces (41 g) per
serving” and “about 3.5” servings in the
container. Doc. 48-1, p. 4. About 41% of each box has slack
alleges that he “attached importance” to the
“size” of the Reese's Pieces and Whoppers
boxes, and was misled to believe that he was
“purchasing more Product than was actually
received.” Doc. 33, p. 14, ¶ 56. He alleges that
boxes are “uniformly under-filled” or
“ʽslack-filled, '” id., p. 2,
¶ 3; the slack-filled space serves no purpose; and had
he known the boxes were “substantially slack-filled,
” he would not have purchased the products or would
have purchased them on different terms, id., p. 14,
¶ 56. He alleges that he “suffered an
ascertainable loss as a result of [Hershey's] unlawful
conduct because the actual value of the Products as purchased
was less than the value of the Products as
represented.” Id., p. 33, ¶ 57. Bratton
alleges that he “would…likely purchase the
Products in the future if the Products complied with
applicable laws.” Id., p. 33, ¶ 58.
filed this lawsuit in state court as a putative class action.
In Count I, he claims a violation of the Missouri
Merchandising Practices Act (MMPA) for a Missouri Consumer
Subclass, and he requests injunctive relief and damages under
the statute. Count II is a claim for unjust enrichment
brought on behalf of All Classes (class members in all states
who purchased the products), in which Bratton requests
restitution or disgorgement of Hershey's economic
enrichment. Hershey removed the action to Federal court.
argues that Count I must be dismissed because Bratton fails
to state a claim under the MMPA and has no standing to seek
injunctive relief. Hershey argues that Count II must be
dismissed because it is vague; Bratton lacks standing to
assert non-Missouri-based claims; and the count is premised
on the same conduct as the unsuccessful MMPA claim.
survive a Rule 12(b)(6) motion to dismiss, a complaint must
contain “enough facts to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A complaint is
plausible if its “factual content allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir.
2009) (quoting Iqbal, 556 U.S. at 678). A court must
“‘draw on its judicial experience and common
sense, '” and consider the plausibility of the
plaintiff's claim as a whole, not the plausibility of
each individual allegation. Zoltek Corp. v. Structural
Polymer Group, 592 F.3d 893, 896 n. 4 (8th
Cir. 2010) (quoting Iqbal, 556 U.S. at 679).
Count I-The MMPA claim
elements of a claim under the MMPA are: (1) the purchase of
goods or services, (2) primarily for personal or household
purposes; and (3) an ascertainable loss of money or property,
(4) as a result of, or caused by, the use or employment by
another person of a method, act, or practice declared
unlawful under the MMPA. §§ 407.020 and 407.025.1.
See also Murphy v. Stonewall Kitchen, LLC, 503
S.W.3d 308, 311 (Mo. App. 2016); and Mo. Approved
Instructions (Civil) 39.01 (7th ed.).
argues that the MMPA count must be dismissed because
Bratton's allegations concerning unlawful practice and
ascertainable loss are not plausible. For the reasons
discussed below, the Court concludes that the allegations are
sufficient to state a claim.
Allegation of an unlawful practice
Missouri Supreme Court has characterized the MMPA as
“ʽpaternalistic legislation designed to protect
those that could not otherwise protect
themselves.'” High Life Sales Co. v.
Brown-Forman, Corp., 823 S.W.2d 493, 498 (Mo. 1992)
(quoting Electrical and Magneto Service Co. v.
AMBAC Intern'l Corp., 941 F.2d 660, 663
(8th Cir. 1991)). See also Huch v. Charter
Communications, Inc., 290 S.W.3d 721, 725 (Mo. 2009) (en
banc) (noting that the legislature enacted the MMPA to
“regulate the marketplace to the advantage of those who
may fall victim to unfair business practices”). As
such, the law is very broadly written. Section 407.020(1)
declares and describes unlawful practices as follows:
The act, use or employment by any person of any deception,
fraud, false pretense, false promise, misrepresentation,
unfair practice or the concealment, suppression, or omission
of any material fact in connection with the sale or
advertisement of any merchandise in trade or commerce
… in or from the State of Missouri, is declared to be
an unlawful practice.
See also 34 Mo. Practice Personal Injury and Torts
Handbook § 29:2, “Elements of the action”
(2016 ed.) (“The prohibitions of V.A.M.S. §
407.020 are construed broadly to reach any deception or
unfair practice[.]”) (and citations therein).
focus of the statutory scheme is on the defendant's
conduct. “A consumer's reliance on an unlawful
practice is not required under the MMPA.”
Murphy, 503 S.W.3d at 311 (citing Hess v. Chase
Manhattan Bank, USA, N.A., 220 S.W.3d 758, 774 (Mo.
2007) (en banc)). Ultimately, the MMPA requires courts to
make case-by-case determinations of whether a defendant's
conduct violates principles of fair dealing. Huch v.
Charter Commc'ns, Inc., 290 S.W.3d 721, 724 (Mo.
2009) (en banc).
order to prevent evasion by overly meticulous definitions,
” the statutory scheme does not provide definitions of
any particular unlawful practices. Clement v. St. Charles
Nissan, Inc., 103 S.W.3d 898, 900 (Mo. App. 2003)
(citing State ex rel. Webster v. Areaco Inv. Co.,
756 S.W.2d 633, 635 (Mo. App. 1988)). The Missouri Supreme
Court explained in Ports Petroleum Co. of Ohio v.
Nixon that absent statutory definitions, it would
“consider the plain and ordinary meaning of the words
themselves, …which, ” in the case of
“unfair practice” were “unrestricted,
all-encompassing and exceedingly broad.” 37 S.W.3d 237,
240 (Mo. 2001). Accordingly, “[f]or better or worse,
the literal words cover every practice imaginable and every
unfairness to whatever degree.” Id.
MMPA does grant the Missouri Attorney General authority to
promulgate rules, and the rules that have been promulgated
under the MMPA are instructive here. See United Pharmacal
Co. of Mo. v. Mo. Bd. of Pharmacy,159 S.W.3d 361, 365
(Mo. 2005) (en banc) (properly promulgated rules have the
force and effect of law). For example, under 15 C.S.R. §
60-9.020(1), “deception” is defined as “any
method, act, use, practice, advertisement or solicitation
that has the tendency or capacity to mislead, deceive or
cheat, or that tends to create a false impression.”
Under 15 C.S.R. § 60-9.030(1), “Deceptive Format,
” “[i]t is deception for any person in an
advertisement or sales presentation to use any format which
because of its overall appearance has the tendency or
capacity to mislead consumers.” Another rule, 15 C.S.R.
§ 60-9.070(1), defines “misrepresentation”
as “an assertion not in accord with the facts[.]”
The rules further provide that reliance and intent are not
elements that must be proven to ...