Hawkins v. Nestle USA, Inc.

Filing 42

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion to Dismiss, [Doc. No. 24]is denied. 24 Signed by District Judge Henry Edward Autrey on 2/7/18. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAHONEE HAWKINS, individually and
on behalf of all others similarly situated,
Plaintiffs,
v.
NESTLE U.S.A. INC.,
Defendant.

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) Case No.: 4:17CV205 HEA
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MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss. [Doc. No.
24]. The motion is fully briefed. For the reasons set forth below, the Motion is
denied.
Defendant moves to dismiss the Amended Complaint under Fed. R. Civ. P.
12(b)(6) and 12(b)(1).
Facts and Background1

1

For purposes of deciding the motion to dismiss for failure to state a claim, the Court accepts the
factual allegations contained in the Amended Complaint as true. Eckert v. Titan Tire Corp. 514
F.3d 801, 806 (8th Cir. 2008). The Court may also consider documents attached to, or materials
that are necessarily embraced by, the pleadings. Porous Media Corp. v. Pall Corp., 186 F.3d
1077, 1079 (8th Cir. 1999) (internal quotations and citations omitted). The Amended Complaint
includes allegations about markings on the candy boxes at issue and includes pictures of the front
of the boxes. This recitation of facts, however, is set forth for the purposes of this motion only
and in no way relieves the parties of the necessary proof thereof in later proceedings.

Defendant manufactures Raisonets candy. The products are regularly sold at
grocery stores, convenience stores, and other food retail outlets throughout
Missouri and the rest of the United States. Plaintiff bought an opaque, non-pliable,
cardboard box of Raisonets for about $1.59 apiece at a Walgreens store in Rolla,
Missouri, for his personal, family, or household purposes. His lawsuit focuses on
Defendant’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 Raisonets box are 3⅛″ x 11⁄16″ x 6 3⁄16″. The front of
the box includes the description, “California Raisins covered in chocolate.” The
front of the box also states: “NET WEIGHT 3.5 OZ (99.2 g)”; “190 CALORIES”;
“5 g SAT FAT”; “15 mg SODIUM”; and “28 g SUGARS” per ¼ cup. About 45%
of each box has “slack filled,” or empty, space.
Plaintiff alleges that she “attached importance” to the “size” of the Raisonets
boxes, and was misled to believe that she was “purchasing more Product than was
actually received.” She alleges that boxes are “uniformly under-filled” or “‘slackfilled,’”; the slack-filled space serves no purpose; and had she known the boxes
2

were “substantially slack-filled,” she would not have purchased the products or
would have purchased them on different terms. She alleges that she “suffered an
ascertainable loss as a result of Defendant’s unlawful conduct because the actual
value of the Products as purchased was less than the value of the Products as
represented.” Plaintiff alleges that she “would...likely purchase the Products in the
future if the Products complied with applicable laws.”
Plaintiff filed this lawsuit as a putative class action. In Count I, she claims a
violation of the Missouri Merchandising Practices Act (MMPA) for a Missouri
Consumer Subclass, and she 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 Plaintiff
requests restitution or disgorgement of Defendant’s economic enrichment.
Discussion
Defendant argues that Count I must be dismissed because Plaintiff fails to
state a claim under the MMPA and has no standing to seek injunctive relief.
Defendant also argues that argues that Count II must be dismissed because it is
derivative of her legally insufficient MMPA claim.
Legal Standards
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.
3

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).
When considering a Defendant's motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), the Court must first “distinguish between a ‘facial
attack’ and a ‘factual attack’ ” on the Court's jurisdiction. Osborne v. United
States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). When a 12(b)(1) motion makes a
facial attack, “the court restricts itself to the face of the pleadings, and the nonmoving party receives the same protections as it would defending against a motion
brought under Rule 12(b)(6).” Id. (internal citations omitted). On the other hand, a
factual attack requires the Court to consider “matters outside the pleadings, and the
non-moving party does not have the benefit of 12(b)(6) safeguards.” Id. (internal
citations omitted). Defendant's motion in this matter represents a facial attack on
the Court's jurisdiction, in that it challenges the legal sufficiency of the Plaintiff's
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complaint to support the Court's jurisdiction. Therefore, the Court will accept all of
Plaintiff's factual claims as true and construe the allegations in Plaintiff's favor.
Kulkay, 847 F.3d at 641.
Count I—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.).
Defendant argues that the MMPA count must be dismissed because
Plaintiff’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
The Missouri Supreme Court has characterized the MMPA as “‘paternalistic
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
5

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 caseby-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.
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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
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further provide that reliance and intent are not elements that must be proven to
establish deception or misrepresentation for purposes of § 407.020(1). § 60–
9.020(2) and § 60–9.070(2). The regulation concerning “unfair practice[s]”
provides that proof of deception, fraud, or misrepresentation is not required. 15
C.S.R. § 60–8.020(2).
At the motion to dismiss stage, the Court's focus is on what is alleged in a
plaintiff's complaint. Plaintiff alleges that Defendant’s packaging, containing
slack-filled space, misled her to believe that the boxes contained more candy than
they actually did, and that Defendant’s conduct constituted the act, use or
employment of deception, fraud, false pretenses, false promises, misrepresentation,
unfair practices and the concealment, suppression, or omission of any material
facts in connection with the sale of advertisement of their products, in violation of
the MMPA. She also alleges that the actual value of the product he purchased was
less than the value of the product as represented by the packaging. More
specifically, Plaintiff alleges that 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 given a choice,
consumers are more likely to choose larger boxes, thinking they are a better value.
Defendant makes its candy boxes from opaque, non-pliable cardboard. Defendant
fills the boxes such that 45% of a box of Raisonets is empty. The empty, or slack8

filled, space in the boxes serves no purpose, such as protection of the contents. The
slack-filled space is not attributable to settling of the contents. Nothing prevents
Defendant from placing more candy in the boxes, or reducing the size of the boxes.
As discussed above, consumer protection is paramount under the MMPA
and its prohibitions are construed broadly. The Missouri Supreme Court has
explained that an “unfair practice” under the MMPA covers every unfair practice
imaginable and every unfairness, to whatever degree. Practices made unlawful by
the act are also broadly defined by regulation, such as deception, which is any
practice having the tendency or capacity to mislead, deceive, cheat, or create a
false impression; or misrepresentation, which is an assertion not in accord with the
facts. A plaintiff need not even allege or prove reliance on an unlawful practice to
state a claim under the act. Defendant’s candy boxes are opaque and non-pliable,
and a reasonable consumer could conclude that the size of a box suggests the
amount of candy in it. Larger packages are attractive to consumers, and consumers
tend to make their purchasing decision in 13 seconds. Yet there is 45% nonfunctional, slack-filled space in a Raisonets’s box. Plaintiff has plausibly alleged,
at minimum, that the packaging unfairly suggests the boxes contain more product
than they actually do, or tends to or has the capacity to mislead consumers or to
create a false impression, which is sufficient for purposes of alleging an unlawful
practice under the MMPA. The Court cannot conclude as a matter of law and at
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this stage of the litigation that the packaging is not misleading. See, e.g., Murphy v.
Stonewall Kitchen, LLC, 503 S.W.3d 308, 312–13 (Mo. App. 2016) (declining to
decide how a “reasonable consumer” would perceive the term “all natural” at an
early stage of litigation, and holding that the question is appropriately addressed on
a motion for summary judgment or trial); and Thornton v. Pinnacle Foods Grp.
LLC, 2016 WL 4073713, at *3 n.3 (E.D. Mo. Aug. 1, 2016) (“Whether a
reasonable consumer would be deceived by a product label is generally a question
of fact that cannot be resolved on a motion to dismiss.”).2
The Court's conclusion that Plaintiff has plausibly alleged an unlawful
practice is reinforced by Bratton's allegations concerning a Federal regulation that
prohibits slack-fill in packaging, subject to six exceptions which Plaintiff alleges
do not apply here. 3 Defendant argues that to make out a claim under the MMPA,
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See also In re McCormick & Co., Inc., Pepper Prod. Mktg. & Sales Practices Litig., 2016
WL 6078250, at *6 (D.D.C. 2016) (“The size of a package signals to the consumer vital
information about a product and is as influential in affecting a customer's choices as an explicit
message on its surface. Moreover, in this case, the size of McCormick's [pepper] containers is
exactly what makes them misleading, because consumers cannot see the amount of their
contents.”) (internal quotation omitted); and Hobby Indus. Assn. of Am., Inc. v. Younger, 101
Cal. App. 3d 358, 367–68 (Ct. App. 1980) (“Clear disclosures on labels, scale drawings, and
other informative matter may not counteract the impression created by the size of the package,
and in this sense slack fill can be viewed as inherently deceptive.”)
3

Specifically, in the Amended Complaint, Plaintiff cites 21 C.F.R. § 100.100, a Federal
regulation which provides: “A container that does not allow a consumer to fully view its contents
shall be considered to be filled so as to be misleading [in violation of 21 U.S.C. § 403(d) of the
Federal Food, Drug and Cosmetics Act] if it contains nonfunctional slack-fill. Slack–fill is the
difference between the actual capacity of a container and the volume of product contained
therein.” 21 C.F.R. § 100.100(a).
The regulation then provides six exceptions to the prohibition against slack-fill: (1)
protection of the package's contents; (2) the requirements of the machinery used to enclose the
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Plaintiff must allege more than mere violation of Federal slack-fill rules.
Regardless of whether Plaintiff may prove her MMPA claim by pointing to such
violation, an issue that has not been fully briefed by both parties at this time, the
existence of the Federal prohibition against slack-fill supports the reasonableness
of a consumer's belief that the package of candy she purchases will not have 45%
non-functional slack-fill.
Defendant argues that a reasonable consumer, upon picking up the
Raisonets’ container, would instantly realize that it is not filled to the brim: with
each movement of the package, its contents noticeably and audibly “maraca-like
rattle. No such allegations are in Defendant’s complaint, which is the pleading that
controls for purposes of Defendant’s motion to dismiss.
Furthermore, to the extent that Defendant’s statements are couched as facts,
they are not facts of which the Court may take judicial notice. Under Federal Rule
of Evidence 201(b), the Court may take judicial notice of a “fact that is not subject
to reasonable dispute because it ... can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Such facts “can
contents in the package; (3) unavoidable product settling during shipping and handling; (4) the
need for the package to perform a specific function, such as playing a role in preparation of a
food, where clearly communicated to consumers; (5) the package is a reusable container which
has a part in the preparation of the food, and has a significant and independent value; or (6) the
inability to increase the level of fill or reduce the packaging, such as to accommodate required
food labeling or to accommodate tamper-resistant devices.
As noted above, Plaintiff alleges that the six exceptions do not apply to Defendant's
packaging.
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include[,]” for example, “well-established scientific theories and principles.”
Williams v. Employers Mut. Cas. Co., 845 F.3d 891, 904 (8th Cir. 2017) (citation
omitted) (holding that in deciding a motion for judgment on the pleadings, the
district court did not abuse its discretion by taking judicial notice of fact that the
element radium is a solid that emits alpha particles; such a fact was not subject to
reasonable dispute). Defendant points to no authority demonstrating that its
statements are not subject to reasonable dispute because they can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned,
nor is the Court aware of such authority.
Moreover, Defendant’s statement that a reasonable consumer would
instantly realize upon picking up a box that it is not filled to the brim because the
contents rattle does not go to what Plaintiff has alleged. Plaintiff has alleged that
the boxes are substantially empty, have substantial, non-functional slack-fill, and
have an amount of slack-fill that cannot be justified; that industry-standard
machines are capable of filling and enclosing the boxes with far less slack-fill; and
that the level of fill can certainly be increased. She does not allege that the boxes
should be filled to the brim, let alone that the packaging is misleading because the
contents do not rattle. Nonetheless, even in the context of what Plaintiff has
alleged, whether a reasonable consumer would notice rattling in the 13–second
course of making the purchasing decision and what a consumer would make of it,
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let alone instantly conclude the boxers are as much as much as 45% slack-filled,
are questions of fact.
In addition, Defendant’s statement that “some” empty space in the boxes is
related to “efficient manufacturing and distribution” is at odds with Plaintiff’s
allegation that the slack-filled space in the boxes takes up as much as 45% of the
box’s space, that the slack-filled space serves no purpose and is not related to the
settling of the contents, and that nothing about the manufacturing process prevents
Defendant from filling the boxes fuller. To the extent that Defendant disputes these
allegations, such dispute cannot be resolved on a motion to dismiss.
Defendant further argues that the clear and accurate labeling on the
packages—net weight, number of pieces of candy per serving, and number of
servings per box—is fatal to Plaintiff’s claim because it tells a consumer how
much candy is in the box. The Missouri Court of Appeals recently rejected an
analogous argument in Murphy. That case involved a consumer's claim under the
MMPA against the manufacturer of a muffin mix that was labelled “all natural.”
503 S.W.3d at 312–313. The package's ingredient label, placed there pursuant to
federal law, disclosed that the product contained sodium acid pyrophosphate. The
manufacturer argued that the label’s ingredient disclosure entitled it to dismissal.
But the court “expressly reject[ed] the notion that the ‘ingredient list’ defense
asserted by [the defendant] defeat[ed] [the plaintiff's] claim as a matter of law.” Id.
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at 312. The court explained that an ingredient list is not required to be placed on
packaging “so that manufacturers can mislead consumers and then rely on the
ingredient list to correct those misrepresentations and provide a shield from
liability for that deception.” Id. at 313 (citation omitted). The court further held
that a reasonable consumer would expect that the ingredient list comported with
the representations on the packaging, and that in any event, the manufacturer was
in the superior position to know and understand the ingredients in the product, and
whether they comported with the packaging. Id. The court held that the allegations
were sufficient to survive a motion to dismiss.
The “all natural” package labelling in Murphy is analogous to the
information suggested to consumers by the dimensions of Defendant’s opaque,
non-pliable cardboard boxes. As discussed above, the dimensions of the boxes can
suggest to reasonable consumers how much candy is in them, and consumers tend
to choose larger packages, thinking they are a better value. Consumers also tend to
make their purchasing decision in about 13 seconds. Following the Murphy
rationale, a reasonable consumer would expect the candy box’s' labeling
information to comport with the dimensions of the box and it is Defendant that is
in the superior position to know whether the dimensions do. In other words, similar
to the Murphy scenario, the question of whether a consumer would figure out, from
the labeling information and in the 13 seconds spent making a purchasing decision,
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that the box contained 45% slack-filled space rather than the amount suggested by
the dimensions of the box goes to reasonableness, which is a question of fact.
Moreover, Defendant’s narrow focus and emphasis on the net weight, number of
pieces of candy per serving, and servings per box, as printed on the boxes,
overlooks that the Court must consider the plausibility of the complaint as a whole,
not the plausibility of each individual allegation. Zoltek, 592 F.3d at 896 n.4.
Defendant overlooks that the MMPA is both written and construed broadly to
serve its purpose of consumer protection. High Life Sales, 823 S.W.3d at 498 and
34 Mo. Practice Personal Injury AND Torts Handbook § 29:2. Narrowly focusing
on an aspect of the labeling does not serve the purpose of the MMPA.
Both parties cite a number of decisions, rendered by courts nationwide and
involving other states’ laws, in support of their respective arguments about the
slack-fill. Extended discussion of the various cases cited by the parties would not
be useful to the analysis, largely because it is Missouri law that controls in this
case. The Missouri Supreme Court has also explained that courts must make caseby-case determinations of whether a defendant's conduct violates Missouri's
consumer protection law. Huch, 290 S.W.3d at 724.
The Murphy case discussed above is a recent, analogous case decided under
the MMPA by the Missouri Court of Appeals, which rejected the “ingredient label
defense” and held that the question of a how a “reasonable consumer” would
15

perceive certain packaging information was a question appropriately addressed on
a motion for summary judgment or trial, not a motion to dismiss. The issues in this
case are controlled by Missouri law, which is at odds with the slack-fill cases
Defendant cites.
Moreover, courts that have allowed slack-fill, consumer protection cases to
proceed beyond the motion to dismiss stage tend to do so because reasonableness
was at issue and could not be resolved short of summary judgment or trial. See,
e.g., Izquierdo v. Mondelez International, Inc., 2016 WL 6459832, *6–7 (S.D.N.Y.
Oct. 26, 2016) (denying motion to dismiss a claim concerning slack-filled candy
boxes; a reasonable consumer could be misled even if the candy box displayed the
net weight and listed the number of pieces inside); Thomas v. Costco Wholesale
Corp., 2014 WL 1323192, at *9 (N.D. Cal. Mar. 31, 2014) (holding that where the
plaintiff claimed that products she purchased were unjustifiably slack-filled and
that she was misled, the plaintiff had adequately pled that a reasonable consumer
could be deceived, and the claim could not be resolved at the motion to dismiss
stage); and Samet v. Procter & Gamble Co., 2013 WL 3124647, at *9 (N.D. Cal.
June 18, 2013) (denying motion to dismiss where the plaintiffs alleged facts
showing that they were deceived by the slack-filled potato chip and fruit snack
packaging, and thought they were receiving more of the product than they actually
did; even if a consumer would expect extra air in a bag of such snacks, “the
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amount of slack-fill expected by the reasonable consumer is a debatable factual
question that is inappropriate to resolve at the motion to dismiss stage”).9
The Court concludes that the analysis consistent with Missouri law leads to
the conclusion that Plaintiff has plausibly alleged a claim under the MMPA and
that reasonableness is an issue of fact, which cannot be resolved on a motion to
dismiss.
Allegation of an ascertainable loss
Defendant further argues that Plaintiff failed to allege ascertainable loss
under the MMPA. This element is straightforward. Ascertainable loss involves
“the benefit-of-the-bargain rule, which compares the actual value of the item to the
value of the item if it had been as represented at the time of the transaction.”
Murphy, 503 S.W.3d at 313 (citing Schoenlein v. Routt Homes, Inc., 260 S.W.3d
852, 854 (Mo. App. 2008)). Furthermore, the loss must be a result of the alleged
unlawful practice. Id. (citing Plubell v. Merck & Co., 289 S.W.3d 707, 714 (Mo.
App. 2009)).
Murphy was a challenge under the MMPA to the labelling of a muffin mix
as “all natural,” notwithstanding that the mix had synthetic ingredients. The
plaintiff alleged that the mix was worth less than the product as represented. The
Missouri Court of Appeals held that the plaintiff stated an ascertainable loss under
the benefit of the bargain rule. The court further concluded that the plaintiff had
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adequately alleged the loss was the result of the allegedly deceptive labeling when
he pled that consumers were interested in purchasing healthy food products
without potentially harmful synthetic ingredients, and that the defendant had taken
advantage of that desire by using the “all natural” label to entice consumers to pay
a premium for the product. See also Plubell, 289 S.W.3d at 715 (the plaintiff
alleged that a drug manufacturer violated the MMPA by failing to disclose and
concealing the drug's serious safety risks; the court held that the plaintiff's
allegation that the drug was worth less than as represented stated an ascertainable
loss under the benefit-of-the-bargain rule).
Plaintiff’s allegations of ascertainable loss are analogous to those held
sufficient in Murphy. Plaintiff alleged that the boxes were opaque and that the size
of the boxes led her to believe there was more candy in them than they actually
contained. She alleged that the value of the products she purchased was less than
the value of the products as represented by size of the boxes. She alleged that
product purchasing decisions are heavily dependent on the packaging, and on the
package dimensions in particular, and that consumers tend to choose a larger
package over a smaller one, thinking it is a better value. Plaintiff has sufficiently
alleged ascertainable loss for purposes of withstanding the motion to dismiss and
that the alleged loss was the result of the packaging.
Standing to pursue injunctive relief under Count I
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The MMPA expressly provides for injunctive relief, as well as damages and
attorney fees, § 407.025.2, “not only to remedy violations..., but also to
prospectively deter prohibited conduct and protect Missouri citizens,” Berry v.
Volkswagen Grp. of Am., Inc., 397 S.W.3d 425, 433 (Mo. 2013) (en banc).
Defendant argues that whatever comes of Plaintiff’s claim for damages
under the MMPA, her claim for injunctive relief must be dismissed for lack of
standing. According to Defendant, now that Plaintiff is aware of the slack-filled
space in the boxes, she cannot plausibly claim that she will be subject to continuing
injury, so injunctive relief would not affect her.
Article III of the United States Constitution grants federal courts limited
jurisdiction to decide “cases and controversies.” To satisfy this jurisdictional
standing requirement, a plaintiff must establish (1) an injury in fact, which is (2)
fairly traceable to the defendant's conduct, and which (3) will likely be redressed
by a favorable decision. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180–181 (2000). To establish “injury in fact” for
purposes of injunctive relief, a plaintiff must show that he “faces a threat of
ongoing or future harm.” Park v. U.S. Forest Serv., 205 F.3d 1034, 1037 (8th Cir.
2000). Under the redressability prong, the plaintiff must demonstrate that he
“personally would benefit in a tangible way from the court's intervention.” Steel
Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 n. 5 (1998).
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Plaintiff has pled a threat of ongoing or future harm, which is fairly traceable
to Defendant’s conduct. Specifically, she alleges that the she was misled by the
packaging to believe the boxes contained more product than they actually did, and
suffered an ascertainable loss, and that had she known the boxes contained
substantial slack-filled space she would not have purchased them or would have
purchased them on different terms. She alleges that Defendant continues to sell
slack-filled candy boxes, i.e., the unlawful practice is ongoing.
Plaintiff has also pled that she would personally benefit in a tangible way
from injunctive relief, by alleging that if Defendant changes its practices, she is
likely to buy the products in the future, and that she seeks to be relieved from
Defendant’s unlawful practice by the issuance of injunctive relief.
Defendant places emphasis on Plaintiff’s discovery of the slack-fill in the
Raisonet box. But the fact that Plaintiff discovered Defendant’s allegedly unlawful
practice does not make the packaging less misleading, nor mean that the practice is
not ongoing. Plaintiff need plead nothing more to survive a motion to dismiss a
request for injunctive relief for lack of Article III standing. See Whitmore v.
Arkansas, 495 U.S. 149, 158–59 (1990) (discussing United States v. SCRAP, 412
U.S. 669 (1973)) (acknowledging that even attenuated injuries or “thin” allegations
are sufficient to confer Article III standing at the motion to dismiss stage); and
Leiner v. Johnson & Johnson Consumer Companies, Inc., 2016 WL 128098, at *1
20

(N.D. Ill. Jan. 12, 2016) (cautioning that standing to pursue injunctive relief and
entitlement to such relief are two separate concepts). See also Chester v. TJX
Companies, Inc., 2016 WL 4414768, at *8 (C.D. Cal. Aug. 18, 2016) (“It is
inconceivable to think prospective relief in the false advertising context is bound
by the rules of ‘fool me once, shame on you; fool me twice shame on me.’ The
Court...refuses to find that, once a plaintiff has alleged that she was deceived, she
likely will not voluntarily be deceived again—and thus no court can enjoin
deceptive practices without ignoring Article III's standing requirements.”); and
Ackerman v. Coca–Cola Co., 2013 WL 7044866, at *15 n.23 (E.D.N.Y. July 18,
2013) (where the defendants' allegedly deceptive advertising and labeling practices
were ongoing, and the plaintiffs sought to be relieved from such practices in the
future, the fact that the plaintiffs discovered the alleged deception years earlier did
not mean the plaintiffs lacked Article III standing) (and collecting cases).
Defendant’s motion to dismiss the request for injunctive relief is denied.
Count II—Unjust enrichment
Plaintiff’s unjust enrichment count is brought on behalf of a putative
nationwide class. Plaintiff alleges that by purchasing the products, she and the
putative class members conferred a benefit on Defendant in the form of the
purchase price of the slack-filled products; Defendant knew of the benefit;
Defendant appreciated the benefit because the sales generated revenue;
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Defendant’s acceptance and retention of the benefit is inequitable and unjust
because it was obtained by Defendant’s fraudulent and misleading representations
and omissions; and equity cannot in good conscience permit Defendant to be
economically enriched for such actions. Plaintiff further alleged, with respect to
herself, that she purchased the products for about $1.49 in a Missouri Walgreens
store.
Defendant argues that the count should be dismissed because the count is
premised on the same facts as the MMPA count which fails to state a claim and so
should be dismissed on the same basis.
There are three elements to a claim of unjust enrichment under Missouri law.
First, a plaintiff must confer a benefit and enrich a defendant. Second, the
enrichment must be at the expense of the plaintiff. Finally, the Court must
determine that it would be unjust for the defendant to retain the benefit. Miller v.
Horn, 254 S.W.3d 920, 924 (Mo. App. 2008). Enrichment is unjust when “a person
retains the benefit and enjoys the benefit conferred upon him without paying its
reasonable value.” Webcon Group, Inc. v. S.M. Properties, L.P., 1 S.W.3d 538, 542
(Mo. App. 1999). Plaintiff’s pleading and the reasonable inferences drawn
therefrom address each of the elements with sufficient specificity to state a claim
for unjust enrichment under Missouri law. Plaintiff alleges that a benefit was
conferred on Defendant in the form of payment of the purchase price for the slack22

filled products by her and the putative class members, and that it would be unjust
to permit Defendant to retain the benefit in view of the packaging, which misled
purchasers about the amount of product inside. Accordingly, the unjust enrichment
claim is sufficiently pled under Missouri law.
As discussed in a preceding section, the Court has concluded that Plaintiff
states a claim under the MMPA. It is generally permissible to pursue alternative
theories at the pleading stage, and courts generally permit unjust enrichment claims
to proceed alongside a properly-pled MMPA claim. See, e.g., Murphy, 503 S.W.3d
at 314 (because the trial court's dismissal of an MMPA claim was reversed, the
dismissal of the unjust enrichment claim, which was based on the same conduct,
was also reversed); Thornton, 2016 WL 40373713, at *4 (denying motion to
dismiss unjust enrichment claim, after concluding that the plaintiff had plausibly
stated a claim under the MMPA).
Plaintiff has also alleged sufficient facts to demonstrate Article III standing
to pursue the claim, in that she has alleged an injury in fact, which is fairly
traceable to Defendant’s conduct, and which will likely be redressed by a favorable
decision. Friends of the Earth, 528 U.S. at 180–181.
For the foregoing reasons, Hershey's motion to dismiss Count II is denied.
Conclusion

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Based upon the foregoing analysis, Plaintiff’s Amended Complaint satisfies
the requirements of Rules 12(b)(6) and 12(b)(1).
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, [Doc.
No. 24]
is denied.
Dated this 7th day of February, 2018.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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