United States District Court, D. Massachusetts
MEMORANDUM AND ORDER CONCERNING THE PARTIES'
CHAPTER 93A CLAIMS
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
600 lb Gorillas, Inc. (“Gorillas”) brought this
lawsuit against Defendants Fieldbrook Foods Corp.
(“Fieldbrook”) and Mister Cookie Face, LLC
(“MCF”), alleging that Defendants failed to
manufacture ice cream for Gorilla's ice cream sandwiches
consistent with the parties' agreed-upon specifications.
On August 17, 2018, at the conclusion of a fourteen-day jury
trial, the jury returned a verdict finding that MCF breached
the parties' contract and that MCF and Fieldbrook
breached the covenant of good faith and fair dealing and were
liable for negligent misrepresentation. [ECF No. 294]. In
addition, the jury determined that Gorillas also breached the
contract and that MCF was entitled to recover from Gorillas
based on quantum meruit. Id. The jury awarded
Gorillas a total of $725, 000 in damages, while also
determining that MCF was entitled to $270, 785.37 in damages.
Id. The jury rendered an advisory verdict on both
parties' claims pursuant to Mass. Gen. Laws ch. 93A,
finding that neither Gorillas nor MCF had proven that the
other party committed an unfair or deceptive act or trade
practice. Id. The Court hereby adopts the advisory
verdict as its own, and accordingly, enters the following
findings of fact and conclusions of law concerning the
Chapter 93A claims.
FINDINGS OF FACT
Court makes the following findings of fact, consistent with
the jury verdict. Gorillas was founded in 1999 by the
husband and wife team of Paula and Chris White. Paula White
served as Gorillas' Chief Executive Officer, and Chris
White was Gorillas' Chief Operating Officer and
Production Manager. Gorillas was in the business of selling
ready-to-bake cookie dough and ice cream sandwiches. It sold
ice cream sandwiches from 2008 through July 2016.
Gorillas' product was sold throughout the United States
by major retail chains such as BJ's, Walmart, and Costco,
as well as in supermarkets throughout the country. Gorillas
originally contracted with Rhino Foods, based in Vermont, to
manufacture the ice cream for its ice cream sandwiches. Rhino
Foods used a mix produced by United Dairy, Inc.
March 25, 2011, Gorillas moved the production of its ice
cream sandwiches to MCF. MCF produced Gorillas' product
at its Lakewood, New Jersey facility. MCF acquired all the
ingredients for the ice cream sandwiches, purchased packaging
materials, and manufactured, assembled, and packaged the
product. At all relevant times, the cookies used in the
production of Gorillas' ice cream sandwiches were baked
and supplied by Ellison Bakery.
about May 31, 2011, Fieldbrook purchased substantially all of
MCF's assets. After Fieldbrook purchased MCF, Gorillas
began to receive invoices from Fieldbrook, and when Gorillas
needed to discuss problems with the product, it communicated
with individuals who identified themselves as executives of
Fieldbrook and who referenced Gorillas' relationship with
Fieldbrook, not MCF.
beginning of their relationship, MCF used the ice cream mix
produced by United Dairy. Later, MCF and Gorillas orally
agreed that MCF would manufacture ice cream in-house to
specifications of 14% butterfat with a variance of not less
than 0.5% and solids of 36.80%. Before agreeing to switch to
the in-house mix, Mr. White had a conversation with Tony
Papalia, MCF's general manager, in which Mr. White
emphasized the importance of replicating the United Dairy mix
exactly, and Mr. Papalia promised there would be no
difference. After MCF began to manufacture the ice cream,
however, the company made changes to the formulation,
including using milk powder instead of liquid milk and adding
switching the production of ice cream to MCF, Gorillas began
to receive complaints from customers that the ice cream in
the sandwiches tasted “watery” and
“icy.” Eventually, Gorillas sent samples of the
ice cream to outside laboratories, including UL Laboratories
and Deibel Laboratories, for testing. The results from most
of the tests indicated that the ice cream was not being
produced to specification, with many tests showing that the
ice cream had significantly less butterfat and solids than
agreed. MCF and Fieldbrook's internal test results also
indicated that the ice cream was not within specification at
least some of the time. In addition, Plaintiff introduced
evidence demonstrating that MCF used a piece of equipment
known as a lactoscope for testing, but that the model of
lactoscope that they used was not the correct device for
testing ice cream; instead, it was designed to be used to
test milk and fluid milk products. Dr. Rankin testified that
the lactoscope was not calibrated correctly, and that MCF and
Fieldbrook were not using the proper channel. He also
testified that MCF and Fieldbrook did not appear to have any
standard operating procedures as to the operation,
maintenance, or calibration of the lactoscope. Furthermore,
MCF and Fieldbrook sent a sample to an outside laboratory,
Silliker Labs, for testing, the results of which also
indicated that the ice cream was not within specification.
the Whites contacted MCF and Fieldbrook about the problems
with the ice cream quality, MCF and Fieldbrook were not able
to remedy the issue. Instead, MCF and Fieldbrook pointed to
other possible factors that could be causing the quality
issues, including temperature abuse or heat
shock-essentially, that the sandwiches were stored at an
improper temperature and the ice cream melted and then froze
again. Mr. Khemraj conceded, however, that MCF and Fieldbrook
had no evidence to indicate that temperature abuse or heat
shock had occurred with Gorillas' product. MCF and
Fieldbrook also told the Whites that the quality issues were
being caused by the cookie produced by Ellison Bakery.
to eight months after the Silliker Labs testing showed that
the ice cream was not being produced to specification, Ken
Johnson, the CEO of Fieldbrook, told Mr. White that he was
not aware of any quality issues with the ice cream.
Meanwhile, however, internal company emails indicate that MCF
and Fieldbrook knew that there might be problems with the ice
cream. Jack Lockwood, Fieldbrook's director of quality,
sent an email to MCF's quality assurance manager,
Jonathan Schmitt, in which he stated his belief that there
may be “mix testing inaccuracies” with the
lactoscope used at the MCF factory. Schmitt replied,
“Yes, I agree. It's sad that no one can tell me the
last time it was calibrated by an outside
contractor/manufacturer.” Mr. Lockwood also emailed Mr.
Khemraj to report the results of a test showing that the ice
cream was out of specification. Later, Mr. White emailed Mr.
Lockwood with the test results from UL Laboratories, and
requested that they speak on the phone. Mr. Lockwood delayed
responding to Mr. White, before writing that MCF was
comparing internal test results and awaiting the results of
that comparison. The same day, however, Mr. Lockwood wrote to
Mr. Khemraj with test results indicating the ice cream was
not within specification.
weeks later, Mr. Khemraj emailed test results from Silliker
Labs to Mr. Lockwood which showed the ice cream did not meet
the specifications. The next day, however, Mr. Khemraj sent
an email to Mr. White stating that the lab was not able to
test the sample that was sent, and that MCF would send
another sample soon. Meanwhile, Mr. Khemraj instructed MCF
employees not to share any information with Mr. White without
prior approval. Later, Mr. Lockwood emailed Ken Johnson, the
COO of Fieldbrook, that “MCF mix testing equipment is
not correctly calibrated contributing to this issue.” A
month later, Mr. Lockwood emailed Mr. Johnson concerning
updating the testing equipment at the MCF facility. Mr.
Lockwood wrote that the update would help to “avoid
issues similar to Gorilla[s]” and would likely help
avoid future issues. He also stated that he believed their
“unreliable equipment” contributed to “mix
concerns, ” because the equipment was designed for
testing milk, not ice cream.
Fieldbrook introduced evidence that, during the time in
question, Gorillas was also having some problems with the
cookie produced by Ellison Bakery. Gorillas had concerns
about the cookie having a grainy taste or texture, an
unappealing appearance, and that it was too hard.
the last few months that Gorillas sold its ice cream
sandwiches, it placed orders with MCF, and received and sold
the product. Gorillas did not pay MCF or Fieldbrook for the
fifteen invoices that MCF sent Gorillas in August, September,
and October 2015, which totaled $270, 785.37.