Vass v. Blue Diamond Growers
Filing
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Judge Indira Talwani: ORDER entered ADOPTING 48 Report and Recommendation; ALLOWING IN PART AND DENYING IN PART Defendant's 23 Motion to Dismiss. See Attached Order. (DaSilva, Carolina)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CASLEY VASS, individually, and on
behalf of all others similarly situated,
Plaintiff,
v.
BLUE DIAMOND GROWERS,
Defendant.
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Civil Action No. 14-cv-13610-IT
ORDER
March 31, 2016
TALWANI, D.J.
Casley Vass (“Vass” or “Plaintiff”), individually and on behalf of all others similarly
situated, alleges that Blue Diamond Growers (“Blue Diamond” or “Defendant”), a producer of
almond products, violated state and federal laws by misrepresenting its almond milk products as
“all natural.” Am. Compl. [#7] ¶ 28.1 Vass avers that Blue Diamond deceived its customers into
believing that Blue Diamond’s almond milk products were natural, when in fact they contained
artificial ingredients and synthetic additives. Am. Compl. at 1. Vass asserts that based on these
misrepresentations, he and the members of the proposed Class paid an unwarranted premium for
Defendant’s products. Am. Compl. ¶¶ 11, 99-101, 107-108, 134, 136.
Blue Diamond moved to dismiss the complaint on the grounds of preemption, lack of
standing, and failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Def.’s Mot.
Dismiss [#23]. The Motion to Dismiss was referred to a magistrate judge for a report and
Plaintiff voluntarily dismissed all claims relating to Defendant’s use of the phrase “Evaporated Cane
Juice.” Mem. Law Opp’n Mot. Dismiss [#28] at 3 n.1.
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recommendation. In that report, the magistrate judge recommended that the Motion to Dismiss
be allowed with respect to the fraud allegations in Count I, Count II, and Count VI, and
otherwise denied. The magistrate judge also recommended that Plaintiff be granted leave to
amend the complaint to plead the allegations under Mass. Gen. Laws ch. 93A in Count I with the
particularity required under Federal Rule of Civil Procedure 9(b). R. & R. [#48] at 30.
Blue Diamond objected in part to the Report and Recommendation. Def.’s Partial Obj.
R. & R. [#49]. Blue Diamond argues that “merely having purchased and overpaid for the
product will not suffice to state the requisite injury” under Mass. Gen. Laws ch. 93A and that
Count I of Vass’s complaint therefore fails to state a claim. Id. at 3. After de novo
consideration of the issue raised in Blue Diamond’s objection, the court adopts the magistrate
judge’s Report and Recommendation in full.
I.
Plaintiff pleaded the requisite injury for a Chapter 93A claim.
To prevail on a Chapter 93A claim, Vass must show that a deceptive act or practice by
the defendant caused an injury or loss suffered by him. Casavant v. Norwegian Cruise Line Ltd.,
952 N.E.2d 908, 912 (Mass. 2011) (“If any person invades a consumer’s legally protected
interests, and if that invasion causes the consumer a loss – whether that loss be economic or
noneconomic – the consumer is entitled to redress under our consumer protection statute.”)
(quoting Hershenow v. Enterprise Rent-A-Car Co. of Bos., Inc., 840 N.E.2d 526, 535 (2006));
Bellerman v. Fitchburg Gas & Elec. Light Co., 18 N.E.3d 1050, 1060 n.10 (Mass. 2014)
(“Where a defendant’s unfair or deceptive conduct causes customers to receive a product or
service worth less than the one for which the customers paid, the customers may pursue a class
action under G.L. ch. 93A to recover the amount by which they overpaid.”).
Defendant argues that the First Circuit’s decision in Rule v. Fort Dodge Animal Health,
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Inc., 607 F.3d 250, 255 (1st Cir. 2010) requires further that a Plaintiff’s Chapter 93A claim
allege economic loss beyond having purchased the product. Def.’s Partial Obj. to R. & R. at 3.
Defendant contends that “where a plaintiff does not claim to suffer any physical injury or
property damage as a result of the product, and no longer claims to possess the product, merely
having purchased and overpaid for the product will not suffice to state the requisite injury.” Id.
In Rule, the First Circuit held that the plaintiff had failed to allege an injury under
Chapter 93A because she had already received the full benefit from the product that she
purchased. Liu v. Amerco, 677 F.3d 489, 495 (1st Cir. 2012) (“We concluded [in Rule] that no
economic damage had been inflicted on the plaintiff under chapter 93A since the plaintiff had
gotten the protection sought and had suffered no detriment from the concealed latent defect.”).
The product, a heartworm drug that was to be administered once every six months, was recalled
for safety concerns after the plaintiff had administered it to her dog. Rule, 607 F.3d at 251. The
First Circuit explained that the “law suit was brought after her purchases and use of the drug and
she now knows that she got both the protection and convenience she sought and that the risk did
not manifest itself in injury to her or her dog.” Id. at 253 (emphasis in original). In other words,
she received the benefit of the bargain as the pet remained heartworm free for the expected
period and was unharmed by the drug.
Here, by contrast, Plaintiff claims not to have received the benefit of the bargain. As
alleged, Plaintiff paid for a product that was “all natural” as regulated by Massachusetts, when it
did not meet those requirements and instead contained artificial and synthetic ingredients. Am.
Compl. ¶¶ 24, 29, 33, 61-72; 105 Mass. Code Regs. § 520.116(A)(2) (“‘Natural Food’ means
food which in its processing has not been treated with preservative, antibiotics, synthetic
additives, artificial flavoring, artificial coloring, or has been processed in a such a manner so that
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it becomes significantly less nutritive.”). While the plaintiff in Rule received heartworm
protection for the six month period of time that she sought, here, Plaintiff did not receive the “all
natural” product under Massachusetts standards. See Iannacchino v. Ford Motor Co., 888
N.E.2d 879, 886-88 (Mass. 2008) (to state a claim for injury based on overpayment complaint
must identify a legally required standard that the product was represented as meeting).
Where, as here, a complaint alleges that a plaintiff did not receive the benefit of the
bargain after purchasing a product that misrepresented compliance with a specific regulation, the
pleading requirements under Chapter 93A are met. See Iannacchino, 888 N.E.2d at 888 (“[T]he
complaint must identify a legally required standard that the [product] was at least implicitly
represented as meeting, but allegedly did not.”); see id. at 886 (“purchase price paid by the
plaintiffs for their [product] would entitle them to receive [products] that complied with those
safety standards.”).
Defendant argues that the First Circuit requires that Plaintiff still possess the product in
order for overpayment to create a form of recoverable injury. Def.’s Partial Obj. R. & R. at 3.
As Defendant notes, other courts in this district have examined whether the holding in Rule
requires current possession of the product. Id. (citing Bezdek v. Vibram USA Inc., No. 1210513-DPW, 2013 WL 639145, at *1 (D. Mass. Feb. 20, 2013) (a case involving barefoot
running shoes), and Martin v. Mead Johnson Nutrition Co., No. 09-11609-NMG, 2010 WL
3928707, at * 1 (D. Mass. Sept. 30, 2010) (a case involving infant formula)). As the Bezdek
court noted, the Martin court “held that a conscious choice to pay more for a product because of
a specifically advertised feature constitutes an injury,” and that “[t]his scenario does seem to
present a legitimate distinction from Rule, where the consumer only bargained for heartwormprevention and received that benefit.” Bezdek, 2013 WL 639145, at *6 n.9. The Bezdek court
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questioned, however, that “if that is the governing theory, it not clear why Iannachino relied
upon current ownership, given that the buyers undoubtedly meant to bargain for—and indeed
were entitled to—a safety-compliant vehicle.” Id. The Iannachino court did point out that the
plaintiffs continued to own the allegedly noncompliant vehicles, and that as a result, the plaintiffs
would have overpaid for the vehicle, and moreover, that the overpayment would be measurable
by the cost to bring the vehicles into compliance. Iannacchino, 888 N.E.2d at 886-87. The
critical issue, however, was that the purchase price entitled the plaintiffs to a product that met
that government safety standards. Thus the Supreme Judicial Court did not state that current
ownership was a required element for such a claim, and certainly made no such requirement for
perishable products. The Supreme Judicial Court did require, however, that the standard that a
product allegedly fails to meet must be one legally required by and enforced by the government,
for “[w]hen the standard that a product allegedly fails to meet is not one legally required by and
enforced by the government, a claim of economic injury based on overpayment lacks the premise
that the purchase price entitled the plaintiffs to a product that met that standard.” Id. at 888.
Here, while it remains Plaintiff’s burden to prove causation and injury, see Hershenow,
840 N.E.2d at 533 (“plaintiff seeking a remedy under G.L. ch. 93A, § 9 must demonstrate that
even a per se deception caused a loss”), Plaintiff has alleged sufficient facts to state a claim
under 93A by alleging overpayment for products advertised as “all natural” that allegedly fail to
meet government standards for such products.
II.
Conclusion
For the foregoing reasons, I ADOPT the magistrate judge’s Report and Recommendation
[#48]. Defendant’s Motion to Dismiss [#23] is DENIED AS MOOT with respect to the
“evaporated cane juice” claims, ALLOWED with respect to the fraud allegations in Count I,
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Count II and Count VI, and otherwise, DENIED. If Plaintiff wishes to file a motion for leave to
amend, he shall do so within fourteen days.
IT IS SO ORDERED.
Date: March 31, 2016
/s/ Indira Talwani
United States District Judge
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