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Bratton v. The Hershey Co.

United States District Court, W.D. Missouri, Central Division

May 16, 2017

ROBERT BRATTON, Individually and on behalf of all others similarly situated in Missouri, Plaintiffs,


          NANETTE K. LAUGHREY United States District Judge

         Defendant The Hershey Company moves to dismiss the Second Amended Complaint under Fed.R.Civ.P. 12(b)(6). Doc. 47. The motion is denied.

         I. Background[1]

         Hershey 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.

         Consumers 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 value.

         The 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.

         The 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 filled space.

         Bratton 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.

         Bratton 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.

         II. Discussion

         Hershey 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.

         To 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).

         A. Count I-The MMPA claim

         The 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.).

         Hershey 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.[2]

         1. Allegation of an unlawful practice

         The 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).

         The 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).

         “[I]n 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.

         The 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 ...

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