United States District Court, D. Massachusetts
DANELL TOMASELLA, on behalf of herself and all others similarly situated, Plaintiff,
NESTLÉ USA, INC., a Delaware corporation, Defendant.
MEMORANDUM AND ORDER ON MOTION TO DISMISS
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.
putative class action, Plaintiff Danell Tomasella filed suit
against Defendant Nestlé USA, Inc.
(“Nestlé”) alleging a violation of Mass.
Gen. Laws ch. 93A (“Chapter 93A”) (Count One) and
a claim for unjust enrichment (Count Two) based on
Nestlé's failure to disclose on its product
packaging that its chocolate products likely contain cocoa
beans farmed by child and slave labor. [See ECF No.
1 (hereinafter “Complaint” or
“Compl.”)]. Currently before the Court is
Nestlé's motion to dismiss Plaintiff's claims
pursuant to Federal Rule of Civil Procedure 12(b)(6). [ECF
beyond dispute that the use of child and slave labor in the
production of cocoa in Côte d'Ivoire (also known as
the Ivory Coast) is widespread, reprehensible, and tragic.
Moreover, “[t]he fact that major international
corporations source ingredients for their products from
supply chains involving slavery and the worst forms of child
labor raises significant ethical questions.” McCoy
v. Nestlé USA, Inc., 173 F.Supp.3d 954, 956 (N.D.
Cal. 2016), aff'd, 730 Fed.Appx. 462 (9th Cir.
2018). The question before the Court, however, is whether
Nestlé is liable under Massachusetts law for failing
to disclose the labor practices of its suppliers on its
product packaging at the point of sale. For the reasons
stated below, the Court finds that it is not, and
Nestlé's motion to dismiss is GRANTED.
Complaint alleges the following relevant facts, which the
Court accepts as true for purposes of this motion.
Nestlé is one of the largest and most profitable food
manufacturers in the United States. Compl. ¶ 2.
Nestlé markets and distributes chocolate products that
are made with cocoa beans sourced from West Africa, including
Nestlé Crunch, 100 Grand, Baby Ruth, Butterfingers,
Nestlé Toll House, Nestlé Hot Cocoa Mix,
Nestlé Milk Chocolate, and Nestlé seasonal
confections. Id. ¶ 2. Some of the cocoa beans
that Nestlé sources from West Africa come from
Côte d'Ivoire, where children and forced laborers
engage in dangerous tasks while harvesting cocoa, including
burning and clearing fields with machetes, spraying
pesticides, using sharp tools to break open cocoa pods, and
carrying heavy loads of cocoa pods and water. Id.
¶¶ 1-2, 5-6. Some children become laborers after
being sold by their parents to traffickers, while others are
kidnapped and then sold into conditions of bonded labor.
Id. ¶ 6. The children who labor on cocoa farms
in Côte d'Ivoire are frequently not paid for their
work, forced to work long hours, held against their will on
isolated farms, and punished by their employers with physical
abuses suffered by children and forced laborers in Côte
d'Ivoire are well-documented, and Nestlé has
acknowledged that it sources cocoa in areas where such
practices occur. Id. ¶¶ 7- 9, 21-23,
25-49. In 2001, Nestlé and other chocolate
manufacturers signed the Protocol for the Growing and
Processing of Cocoa Beans and Their Derivative Products in a
Manner that Complies with ILO Convention 182 Concerning the
Prohibition and Immediate Action for the Elimination of the
Worst Forms of Child Labor (“Harkin-Engel
Protocol”). Id. ¶ 29. The Harkin-Engel
Protocol sought to develop and implement a public
certification program to eliminate the worst forms of child
labor in the growing of cocoa beans and their derivative
products by July 1, 2005, but to date, Nestlé and the
other signatories have not yet established this system.
Id. ¶¶ 29, 31-33. In 2009, Nestlé
launched the Nestlé Cocoa Plan to help eliminate the
use of child and slave labor in the Ivorian cocoa industry.
Id. ¶ 23. In 2012, Nestlé partnered with
the Fair Labor Association to investigate whether children
were working on cocoa farms that supplied Nestlé's
factories. Id. ¶ 39. After the Fair Labor
Association determined that children were, indeed, working on
cocoa farms in its supply chain, Nestlé pledged to
create a robust monitoring and remedy scheme to eradicate
child labor in its supply chain. Id. A 2015 audit by
the Fair Labor Association, however, demonstrated that
Nestlé has not yet achieved this goal, and that child
and forced laborers continue to work at farms connected to
Nestlé. Id. ¶ 48.
does not disclose any information about the child and slave
labor practices in its supply chain on its chocolate product
packaging at the point of sale. Id. ¶¶ 23,
54-56. On some of its products, Nestlé includes
information about the Nestlé Cocoa Plan that states,
“[t]he Nestlé Cocoa Plan works with UTZ
Certified to help improve the lives of cocoa farmers and the
quality of their products, www.nestlecocoplan.com.”
Id. ¶¶ 55-56. Plaintiff, who purchased
Nestlé's chocolate products from various retail
stores including Stop & Shop in Plymouth, Massachusetts
from 2014 through the present, claims that she and other
consumers would not have purchased or paid as much for
Nestlé's products had it disclosed the truth about
the child and slave labor in its supply chain. Id.
¶¶ 15, 102. The Complaint alleges that
Nestlé's omissions are deceptive and unfair under
Chapter 93A, and that Nestlé has been unjustly
enriched by its conduct. Id. ¶¶ 98- 99,
filed this lawsuit on February 12, 2018, seeking to represent
herself and all other consumers who purchased
Nestlé's chocolate products in Massachusetts in
the last four years. See generally Compl. Plaintiff
also filed substantially similar actions against Mars, Inc.,
Mars Chocolate North America, LLC, the Hershey Company, and
Hershey Chocolate & Confectionery Corp. [See
Tomasella v. Mars, Inc., 18-cv-10359-ADB (D. Mass.)
(hereinafter “Mars Action”), ECF No. 1;
Tomasella v. The Hershey Co., 18-cv-10360-ADB (D.
Mass.) (hereinafter “Hershey Action”), ECF No.
1]. On April 19, 2018, Defendants in all three cases filed
motions to dismiss. [ECF No. 19; Mars Action, ECF No. 18;
Hershey Action, ECF No. 20]. On June 14, 2018, Plaintiff
filed her oppositions to Defendants' motions. [ECF No.
22; Mars Action, ECF No. 21; Hershey Action, ECF No. 23]. On
July 13, 2018, Defendants in the instant action and the Mars
Action filed their reply briefs, and on July 17, 2018,
Defendants in the Hershey Action filed their reply brief.
[ECF No. 26; Mars Action, ECF No. 25; Hershey Action, ECF No.
27]. On July 23, 2018, Plaintiff filed a sur-reply brief in
all three cases. [ECF No. 29; Mars Action, ECF No. 28;
Hershey Action, ECF No. 30].
STANDARD OF REVIEW
motion to dismiss for failure to state a claim, the Court
accepts as true all well-pleaded facts in the complaint and
draws all reasonable inferences in the light most favorable
to the plaintiff. United States ex rel. Hutcheson v.
Blackstone Med., Inc., 647 F.3d 377, 383 (1st Cir.
2011). While detailed factual allegations are not required,
the complaint must set forth “more than labels and
conclusions, ” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007), and it must contain “factual
allegations, either direct or inferential, respecting each
material element necessary to sustain recovery under some
actionable legal theory.” Gagliardi v.
Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quotation
marks and citations omitted). The facts alleged, taken
together, must “state a claim to relief that is
plausible on its face.” A.G. ex rel. Maddox v.
Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting
Twombly, 550 U.S. at 570). “A claim is
facially plausible if supported by ‘factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged.'” Eldredge v. Town of Falmouth,
662 F.3d 100, 104 (1st Cir. 2011) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).
assessing the sufficiency of a complaint, the Court first
“separate[s] the complaint's factual allegations
(which must be accepted as true) from its conclusory legal
allegations (which need not be credited).”
Maddox, 732 F.3d at 80 (quoting Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Next,
the Court “determine[s] whether the remaining factual
content allows a ‘reasonable inference that the
defendant is liable for the misconduct alleged.'”
Id. (quoting Morales-Cruz, 676 F.3d at
224). “[T]he court may not disregard properly pled
factual allegations, ‘even if it strikes a savvy judge
that actual proof of those facts is improbable.'”
Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d
1, 12 (1st Cir. 2011) (quoting Twombly, 550 U.S. at
556). “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
” however, a claim may be dismissed. Iqbal,
556 U.S. at 679.
Mass. Gen. Laws ch. 93A Claim
seeks dismissal of Plaintiff's Chapter 93A claim. Section
2(a) of Massachusetts General Laws Chapter 93A prohibits
“[u]nfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or
commerce.” Mass. Gen. Laws ch. 93A, § 2(a).
Although there is no static definition or precise test for
determining whether conduct is unfair or deceptive,
“Massachusetts courts have laid out a number of helpful
guideposts.” Hanrahran v. Specialized Loan
Servicing, LLC, 54 F.Supp.3d 149, 154 (D. Mass. 2014).
“Under Chapter 93A, an act or practice is deceptive
‘if it possesses a tendency to deceive' and
‘if it could reasonably be found to have caused a
person to act differently from the way he [or she] otherwise
would have acted.'” Walsh v. TelTech Sys.,
Inc., 821 F.3d 155, 160 (1st Cir. 2016) (quoting
Aspinall v. Philip Morris Cos., 813 N.E.2d 476,
486-87 (Mass. 2004)). “[A]n act or practice is unfair
if it falls ‘within at least the penumbra of some
common-law, statutory, or other established concept of
unfairness'; ‘is immoral, unethical, oppressive, or
unscrupulous'; and ‘causes substantial injury to
consumers, '” and the “conduct must generally
be of an egregious, non-negligent nature.”
Walsh, 821 F.3d at 160 (quoting PMP Assocs. v.
Globe Newspaper Co., 321 N.E.2d 915, 917 (Mass. 1975)).
“Chapter 93A liability is decided case-by-case, and
Massachusetts courts have consistently emphasized the
‘fact-specific nature of the ...