Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bratton v. The Hershey Co.

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

February 16, 2018

ROBERT BRATTON, individually and on behalf of all others similarly situated, Plaintiff,


          NANETTE K. LAUGHREY United States District Judge

         This case concerns filling requirements for boxes of Reese's® Pieces® and Whoppers® candies. Defendant, The Hershey Company, moves for summary judgment. For the reasons set forth below, the motion is granted.


         Hershey has manufactured and sold Whoppers in 5-ounce cardboard boxes since 2001, and Reese's Pieces in 4-ounce cardboard boxes since 2002, and throughout these periods, the size of each box has remained consistent. Doc. 118, at 2, ¶ 1; Doc. 125, at iv, ¶ 1. Since at least 2006, Plaintiff Robert Bratton has purchased both products regularly. Doc. 118, at 2, ¶ 2; Doc. 125, at iv, ¶ 2. Mr. Bratton guessed that, on average, he purchased each of these products “at least five [times] a month.” Doc. 118, at 2, ¶ 3; Doc. 125, at iv, ¶ 3. This totals approximately 600 boxes of each of the boxes of candy at issue in this litigation. Doc. 118, at 2, ¶ 5; Doc. 125, at v, ¶ 5.

         Mr. Bratton testified that he initially “expected the boxes to be full, ” but “at some point . . . [he] realized that they're not . . . .” Doc. 118-4 (Bratton Deposition Tr.), at 71:16-72:11. Although Mr. Bratton claimed to have always clung to his hope that the boxes would be full, he acknowledged that he did not “expect the box to be miraculously filled the next time [he] b[ought] it . . . .” Id., at 72:17-25. Mr. Bratton guessed that the 600 or so boxes of Whoppers and Reese's Pieces that he purchased in the last ten years contained between 30 and 40 percent empty space. Id., at 98:14-99:24. Despite his knowledge concerning approximately how much candy and how much empty space would be in each box, he continued to buy an average of five boxes a month. See, e.g., id., at 77:7-20; 76:21-24.

         On September 22, 2016, Plaintiff purchased a 4-ounce box of Reese's Pieces and a 5-ounce box of Whoppers from a Gerbes store in Columbia, Missouri. Doc. 118, at 3, ¶ 10; Doc. 125, at vi, ¶ 10. These are the only purchases of the Reese's Pieces and Whoppers boxes that Plaintiff can specifically recall. Doc. 118, at 4, ¶ 12; Doc. 125, at vi, ¶ 12. Mr. Bratton paid $1.00 for each box of candy. Doc. 118, at 4, ¶ 13; Doc. 125, at vi, ¶ 13. When asked at his deposition if there was “a price that [he] would not have been willing to pay for the Reese's Pieces box, ” he replied, “[I]f they'd been $1.50 or $2 or something, I probably would have waited until I could get them somewhere else . . . .” Doc. 118-4, at 104:3-104:9. But he also acknowledged having paid $4 for a box of the candies at the movie theater. Id., at 104:10-14. Mr. Bratton estimates that he paid $4.00 a box for approximately 30 percent of the boxes he purchased in the last decade. Doc. 118, at 3, ¶ 6; Doc. 125, at v, ¶ 6.

         Mr. Bratton claims that, since learning of the facts giving rise to this litigation, he “ha[s] not bought any more” theater boxes of Reese's Pieces or Whoppers. Doc. 125-1, at Tr. 86:16-87:1.


         Mr. Bratton filed this lawsuit in state court as a putative class action. Count I alleges violation of the Missouri Merchandising Practices Act (MMPA) and seeks injunctive relief and damages. Count II alleges unjust enrichment and seeks restitution or disgorgement of Hershey's purported economic enrichment.

         Hershey removed the case to federal court and then moved to dismiss the case. The Court denied Hershey's motion to dismiss. Doc. 64.

         Hershey now moves for summary judgment on both of Mr. Bratton's claims.


         A movant is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Although, the Court must resolve all conflicts of evidence in favor of the nonmoving party, the Court must enter summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Robert Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         Mr. Bratton has brought two claims against Hershey, for violation of Missouri's Merchandising Practices Act (“MMPA”), and for unjust enrichment. As discussed below, Mr. Bratton cannot establish the existence of an element ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.