Rawa v. Monsanto Company

Filing 25

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Defendants motion to dismiss Plaintiffs complaint for failure to state a claim is GRANTED in part, and DENIED in part. The complaint is dismissed with respect to individual and class claims related to Roundup Concentrate Plus, and denied in all other respects. IT IS FURTHER ORDERED that Plaintiff shall have 14 days from the date of this Memorandum and Order to file an amended complaint with respect to claims related to Roundup Concentrate Plus. Signed by District Judge Audrey G. Fleissig on 8/7/2017. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOSHUA RAWA, on behalf of himself and )
all others similarly situated,
)
)
Plaintiff,
)
)
v.
)
)
MONSANTO COMPANY,
)
)
Defendant.
)

Case No. 4:17CV01252 AFG

MEMORANDUM AND ORDER
This putative class action filed under the Missouri Merchandise Practices Act, Mo.
Rev. Stat. § 407.010, et seq., (“MMPA”) is before the Court on Defendant Monsanto
Company’s motion to dismiss Plaintiff’s complaint for failure to state a claim. Plaintiff
claims that Defendant overstated, on its products’ labels, the number of gallons of spray
solution Monsanto’s Roundup Concentrates would make. For the reasons set forth
below, the motion will be granted in part and denied in part.
BACKGROUND
The record establishes the following as relevant to the motion to dismiss. In the
spring of 2016, Plaintiff purchased a 35.2oz container of Roundup Weed & Grass Killer
Super Concentrate (“Super Concentrate”). On the front of the container near the top, a
small separate label stated, “Makes Up to 23 Gallons.” Near the bottom of the main front
label, appeared the statement, “KILLS THE ROOTS GUARANTEED.”

On the back of the container, a multipage booklet label was attached. The front of
the booklet label included a circular diagram indicating “WHERE TO USE,” “WHAT TO
KNOW,” and “HOW TO USE.” Within the “HOW TO USE” section, the circular diagram had

two statements: “2½ fl oz Per Gallon of Water” and “Use a Tank Sprayer.” Using a ratio
of 2½ fluid ounces of the concentrate per gallon of water would yield 14.08 gallons of
solution.
Below the circular diagram, on the front of the booklet label, was the statement,
Guaranteed Satisfaction
Open booklet for details
Also on the back of the container, vertically alongside the booklet label, appears the
statement, “Resealable Label for Directions & Precautions.” On the front of the booklet
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label there is a symbol indicating that the label could be peeled back, with the instruction,
“OPEN,” in the top right corner.

When the front of the booklet label is peeled back as instructed, the contents
include “DIRECTIONS FOR USE,” “PRODUCT FACTS,” “MIXING INSTRUCTIONS,” and
“ADDITIONAL TIPS.” Under the mixing instructions, the directions provide two different

dilution options: “For best results, add 2-1/2 fl oz (5 Tbs) to 1 gallon of water,” and “For
easy to kill weeds such as seedlings, add 1-1/2 fl oz (3 Tbs) to 1 gallon of water.” Using
a ratio of 1-1/2 fluid ounces of the concentrate per gallon of water would yield 23.46
gallons of solution.
Plaintiff purchased and used the product without opening the back booklet label,
instead relying on the dilution rate provided by the circular diagram on the front of the
booklet label, “2½ fl oz Per Gallon of Water.” As a result, Plaintiff obtained 14.08
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gallons of the solution, not approximately 23 gallon as represented on the front of the
container. Defendant sells Super Concentrate in other sizes, as well as Roundup
Concentrate Plus in various sizes. All of these products have essentially the same
labelling scheme as the container Plaintiff purchased.
Plaintiff claims that the “up to” amount displayed on the front of the container was
deceptive, as it was based, not on the mixing direction on the front of the back booklet
label, but on a mixing instruction “buried” inside the booklet label, an instruction
reasonable consumers would not see before purchasing the product in that they would not
feel they were permitted to open the booklet label before purchase. Plaintiff asserts that
this labeling and marketing practice violates the MMPA, citing to all acts prohibited by
the statute: deception; fraud; false pretense; false promise; misrepresentation; unfair
practice; and concealment, suppression, or omission of material fact.
Plaintiff seeks to represent a class of all persons who, on or after April 5, 2012,
purchased in the United States, other than in California, for personal or household use,
various sizes of Super Concentrate or Concentrate Plus. Plaintiff alleges that he and the
other putative class members have suffered an ascertainable loss within the meaning of
the MMPA, because the actual value of the Roundup Concentrate they purchased was
less than the value of the product as represented. Plaintiff asks for an order appointing
Plaintiff as class representative and his counsel as class counsel, and requiring Defendant
to bear the cost of class notice. For relief, Plaintiff requests an order compelling

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Defendant to conduct a corrective advertising campaign; actual and punitive damages,
including interest; and attorney’s fees and costs.
ARGUMENTS OF THE PARTIES
Defendant first argues that the “Up to X Gallons” labeling statement is not in
violation of the MMPA because it is objectively true and not a misrepresentation.
According to Defendant, “makes up to” describes the upper boundary of a range of
gallons that can be made, and a reasonable consumer would understand this and be on
notice that there are different dilution rates. Defendant characterizes the “2½ fl oz Per
Gallon of Water” statement in the circular diagram on the back label as just an example
of how to use the product. Defendant cites several cases holding, under other states’
consumer protection laws, that where “up to” was claimed on a product’s package with
an explanation of how that amount would vary, a reasonable consumer would not have
been deceived.
Defendant next asserts that regulations of the Environmental Protection Agency
(“EPA”) under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
§§ 136-136y (“FIFRA”), mandate that herbicides such as Roundup have labels that
include directions for use and mixing instructions, and allow such information to be on a
booklet label securely attached to the container. Defendant submits an exhibit (ECF No.
21-2) that shows that the EPA approved the labelling scheme that Plaintiff challenges.
Defendant argues that, therefore, Plaintiff’s claims of concealment, suppression, or
omission, presumably based on the allegation that the two possible mixing options were
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“buried” in the back booklet label, are pre-empted by FIFRA. According to Defendant,
“Plaintiff is not alleging that any statement is false, but is rather alleging that the
placement of mixing instructions in Monsanto’s EPA-approved label is wrong. But
because the presentation and location of these mixing instructions are set by federal law,
a conflict would occur if Plaintiff’s claims were allowed to go forward.” ECF No. 21 at
8.
Defendant further argues that Plaintiff failed to allege the required scienter to
support his claims for false pretenses, false promises, and omissions of material fact.
Defendant also argues that Plaintiff failed to allege an ascertainable loss under the
MMPA because the actual value of the product is the same as the value that was
represented. Lastly, Defendant argues that Plaintiff lacks standing to bring claims, on his
own behalf or as a class representatives, based on Concentrate Plus because he did not
purchase that product, and the plain language of the MMPA only allows claims for
products purchased by the party bringing an action.
In response to the motion to dismiss, Plaintiff asserts that even if the “Up to X
Gallons” statement is “in some sense true,” the question of whether a reasonable
consumer would be deceived by it, in light of the dilution directions in the circular
diagram on the front of the booklet label, is a question properly left to a jury. Plaintiff
contends that Defendant mischaracterized Plaintiff’s MMPA claims of concealment,
suppression, and omission, and that these claims are not pre-empted by FIFRA because
they are based on alleged deception, not placement of information. Plaintiff asserts that
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he has alleged sufficient facts to state MMPA claims for false pretenses, false promises,
and omission because the Court could draw a reasonable inference from Plaintiff’s
allegations as a whole that Defendant knew or should have known of the deceptive nature
of its labeling. Plaintiff requests leave to amend if the Court disagrees, so that he may
allege specific facts to satisfy the scienter requirement.
Plaintiff argues that he has also sufficiently alleged an ascertainable loss because
the actual value of the Super Concentrate product at issue was worth less than what he
paid for it because the packaging led him to believe the Super Concentrate would produce
more gallons than it actually yielded. And Plaintiff argues that he has standing regarding
Concentrate Plus claims because the labelling on that product is substantially similar to
that of the product actually purchased by Plaintiff and results in substantially the same
injury. In the alternative, if the Court disagrees, Plaintiff requests leave to amend the
complaint to join as a plaintiff an individual who purchased Concentrate Plus. In Reply,
Defendant essentially reasserts its arguments for dismissal.
DISCUSSION
Motion to Dismiss Standard
For a plaintiff to survive a motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, 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)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. The reviewing court must accept the
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plaintiff’s factual allegations as true and construe them in the plaintiff’s favor, but the
court is not required to accept the legal conclusions the plaintiff draws from the facts
alleged. Id.; Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766,
768-69 (8th Cir. 2012). The 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.” See Zoltek Corp. v. Structural Polymer Grp.,
592 F.3d 893, 896 n.4 (8th Cir. 2010).
The only cause of action brought in this diversity suit is a violation of the MMPA.
A federal court sitting in diversity is bound by the decisions of the state’s highest court on
issues of state law. Absent controlling law from the highest court of the state, the federal
court must attempt to predict what the state supreme court would decide if it were to
address the issue; in pursuing such endeavor, the federal court may consider “relevant
state precedent, analogous decisions, . . . and any other reliable data.” Raines v. Safeco
Ins. Co. of Am., 637 F.3d 872, 875 (8th Cir. 2011) (citation omitted).
MMPA Claims
The MMPA, in relevant part, declares unlawful the “use . . . 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 . . .” Mo. Rev. Stat. § 407.020.1. Civil actions may be brought under
the MMPA to recover actual damages by “[a]ny person who purchases or leases
merchandise primarily for personal, family or household purposes and thereby suffers an
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ascertainable loss of money or property, real or personal, as a result of [an unlawful
practice].” § 407.025.1. The MMPA also specifically authorizes class actions where an
unlawful practice “has caused similar injury to numerous other persons.” § 407.025.2.
Missouri courts have explained the pleading requirements as follows:
The MMPA . . . protects consumers by expanding the common law definition of
fraud “to preserve fundamental honesty, fair play and right dealings in public
transactions.” To prevail on a claim under the MMPA, a plaintiff must plead and
prove he or she (1) purchased merchandise (which includes services) from
defendants; (2) for personal, family or household purposes; and (3) suffered an
ascertainable loss of money or property; (4) as a result of an act declared unlawful
under the Merchandising Practices Act.
Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 310–11 (Mo. Ct. App. 2016)
(citations omitted).
On a motion to dismiss, the “MMPA requires courts to make case-by-case
determinations of whether a defendant’s conduct violates principles of fair dealing.”
Toben v. Bridgestone Retail Operations, LLC, 2013 WL 5406463, at *2 (E.D. Mo. Sept.
25, 2013), aff’d, 751 F.3d 888 (8th Cir. 2014). Where a court “can conclude as a matter
of law that members of the public are not likely to be deceived by the product packaging,
dismissal is appropriate.” Kelly v. Cape Cod Potato Chip Co., 81 F. Supp. 3d 754, 761
(W.D. Mo. 2015) (citation omitted). Courts applying the MMPA often recognize,
however, that whether a reasonable consumer would be deceived by a product label is
often a question of fact that cannot be resolved on a motion to dismiss. See Bratton v.
Hershey Co., No. 2:16-CV-4322-C-NKL, 2017 WL 2126864, at *7 (W.D. Mo. May 16,
2017) (stating, “how a reasonable consumer would perceive certain packaging
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information was a question appropriately addressed on a motion for summary judgment
or trial, not a motion to dismiss”; and holding that a label stating net weight and number
of candy pieces per serving was insufficient to defeat a plaintiff’s claim that candy boxes
were made with excessive empty space that deceived consumers into thinking there was
more candy inside than there actually was); Murphy v. Stonewall Kitchen, LLC, 503
S.W.3d 308, 312 (Mo. Ct. App. 2016) (holding that it could not be said, as a matter of
law, that the term “all natural” on the front of a cupcake mix package would not mislead
consumers when the list of ingredients on the back included as an ingredient, “SAPP,” a
chemical that acts as a leavening agent).
Here, the Court believes that the Missouri Supreme Court would hold that it
cannot be said as a matter of law that Super Concentrate’s labelling was not deceiving.
The Court takes due regard of “up to” cases from other jurisdictions, that generally
reason that where “up to” was claimed and accompanied by an explanation of how to
achieve that amount, or how that amount would vary, a reasonable consumer would not
have been deceived. See, e.g., Maloney v. Verizon Internet Servs., Inc., 413 F. App’x
997, 999 (9th Cir. 2011). The “Makes Up to 23 Gallons” label on the front of Super
Concentrate may well put a reasonable consumer on notice to check elsewhere on the
container’s labelling for mixing directions to obtain that yield. And indeed, mixing
directions were provided on the circular diagram on the front of the back booklet label.
But those directions, if followed, would result in much less than 23 gallons of weed
killer. Significantly, the front of the booklet label did not direct a consumer to check the
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inside of the booklet label for other mixing options; nor did any part of the labelling on
the front of the container. And the front of the back label did not qualify that the listed
ratio was for the strongest solution, with more diluted options available. Under these
circumstances, the Court find persuasive Plaintiff’s argument that a fact question is
presented as to whether a reasonable consumer would open the booklet label to search for
a mixing option that would yield 23 gallons of weed killer.
FIFRA Preemption
FIFRA requires all pesticides, such as Roundup, to be registered with the EPA
prior to sale or distribution. 7 U.S.C. § 136a(a). The EPA will not register a pesticide if it
is “misbranded”; a pesticide is “misbranded” if, inter alia, “its labeling bears any
statement, design, or graphic representation relative thereto or to its ingredients which is
false or misleading in any particular.” Id. § 136(q)(1). FIFRA has an express preemption
provision, which provides that a “State shall not impose or continue in effect any
requirements for labeling or packaging in addition to or different from those required
under [FIFRA].” Id. § 136v(b). It is undisputed that the EPA has registered Roundup
Concentrates and approved the labeling Plaintiff now challenges.
In Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), the Supreme Court held
that “a state-law labeling requirement is not pre-empted by § 136v(b) if it is equivalent to,
and fully consistent with, FIFRA’s misbranding provisions.” Bates, 544 U.S. at 447. In
Martin v. Monsanto Co., No. EDCV162168JFWSPX, at *4 (C.D. Cal. Feb. 16, 2017), a
case against Defendant now pending in California district court, raising, under
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California’s consumer protection statute, identical claims as those raised here, the district
court rejected the preemption argument now advanced by Defendant in this case. The
court stated that Defendant failed to demonstrate that the California statue, which is
analogous to the MMPA, imposed any labeling or packaging requirements that were “in
addition to or different from those required under [FIFRA].” This Court believes the
Missouri Supreme Court would likewise reject Defendant’s FIFRA preemption argument.
Scienter
As Defendant argues, claims of omission of material fact, false promise, and false
pretense under the MMPA, “involve the intent of the person making the false
representation.” Claxton v. Kum & Go, L.C., No. 6:14-CV-03385-MDH, 2014 WL
6685816, at *5 (W.D. Mo. Nov. 26, 2014); see also Daryl White v. Just Born, Inc., No.
2:17-CV-04025-C-NKL, 2017 WL 3130333, at *8 (W.D. Mo. July 21, 2017) (“A
plaintiff claiming omission of material fact under the MMPA must show the defendant
failed to disclose material facts that were ‘known to [it], or upon reasonable inquiry
would [have been] known to [it].’”) (citation omitted). Here, the Court agrees with
Plaintiff that this level of intent can be inferred from the complaint as a whole. See
White, 2017 WL 3130333, at *9.
Ascertainable Loss
Defendant’s argument that Plaintiff has failed to allege an ascertainable loss is
without merit. “A plaintiff adequately pleads this element of an MMPA claim if he
alleges an ascertainable loss under the benefit-of-the-bargain rule, which compares the
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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. “[U]nder the benefit of the bargain rule as
applied to MMPA claims, Plaintiff need only allege that the actual value of the product as
purchased was less than the value of the product as represented to state a claim for an
ascertainable loss.” Kelly v. Cape Cod Potato Chip Co., 81 F. Supp. 3d 754, 758–59
(W.D. Mo. 2015). Here, Plaintiff sufficiently alleged that the value of the Super
Concentrate he purchased was less than the value of the products as represented because
he believed the dilution instructions on the front of the booklet label would yield 23
gallons of solution, but the actual yield was significantly less. Plaintiff also sufficiently
alleged that his product purchasing decision was dependent on the quantity of solution
the product would yield.
Standing
As noted above, Defendant argues that Plaintiff does not have standing to bring
claims related to Concentrate Plus because he did not purchase it. Plaintiff contends that
he has standing because the Concentrate Plus labelling and alleged injury are
substantially similar those related to Super Concentrate. The Missouri Supreme Court
has not addressed whether a consumer may bring a claim under the MMPA for a
substantially similar product to the one he or she purchased. A federal district court
addressing the issue held that a plaintiff did not have standing for a putative class action
suit for products that the plaintiff had not purchased, despite the facts that the products
and alleged misrepresentation substantially similar to a product he did purchase. Kelly,
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81 F. Supp. 3d at 763 (holding that a plaintiff did not have standing to maintain a MMPA
action based on the labelling of 12 of 16 varieties of chips that allegedly misrepresented
that the chips had only “natural” ingredients, because the plaintiff did not purchase those
varieties, and only purchased the other four varieties). This Court believes that the
Missouri Supreme Court would hold that Plaintiff may not bring a claim under the
MMPA for products he did not purchase. Plaintiff’s allegations involving Concentrate
Plus will be disregarded, with leave granted to amend the complaint to add a
representative purchaser of Concentrate Plus.
CONCLUSION
Accordingly,

IT IS HEREBY ORDERED that Defendant’s motion to dismiss Plaintiff’s
complaint for failure to state a claim is GRANTED in part, and DENIED in part. The
complaint is dismissed with respect to individual and class claims related to Roundup
Concentrate Plus, and denied in all other respects.
IT IS FURTHER ORDERED that Plaintiff shall have 14 days from the date of
this Memorandum and Order to file an amended complaint with respect to claims related
to Roundup Concentrate Plus.
Dated this 7th day of August, 2017.

________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
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