United States District Court, D. Massachusetts
DANELL TOMASELLA, on behalf of herself and all others similarly situated, Plaintiff,
THE HERSHEY COMPANY, a Delaware corporation, and HERSHEY CHOCOLATE & CONFECTIONERY CORPORATION, a Delaware corporation, Defendants.
MEMORANDUM AND ORDER ON MOTION TO DISMISS
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
putative class action, Plaintiff Danell Tomasella filed suit
against Defendants The Hershey Company and Hershey Chocolate
& Confectionery Corporation (together,
“Hershey”) alleging a violation of Mass. Gen.
Laws ch. 93A (“Chapter 93A”) (Count One) and a
claim for unjust enrichment (Count Two) based on
Hershey'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
Hershey'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. Hershey 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 Hershey 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 Hershey's motion to dismiss is
Complaint alleges the following relevant facts, which the
Court accepts as true for purposes of this motion. Hershey is
one of the largest and most profitable chocolate
manufacturers in the United States. Compl. ¶ 3. Hershey
markets and distributes chocolate products that are made with
cocoa beans sourced from West Africa, including Hershey's
Bars, Hershey's Kisses, Reese's, KitKat, Rolo, Heath,
Skor, Special Dark, Krackel, Milk Duds, Whoppers, Mr.
Goodbar, Almond Joy, Mounds, 5th Avenue, Symphony, Take5,
Whatchamacallit, York Peppermint Patty, seasonal
confectionary, and Hershey's baking bars, syrups, and
spreads. Id. Some of the cocoa beans that Hershey
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, 4-7. 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. ¶ 7. 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 abuse. Id.
abuses suffered by children and forced laborers in Côte
d'Ivoire are well-documented, and Hershey has
acknowledged that it sources cocoa in areas where such
practices occur. Id. ¶¶ 7- 9, 21, 23-45.
In 2001, Hershey 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, Hershey and
the other signatories have not yet established this system.
Id. ¶¶ 29, 31-33.
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. ¶¶ 50,
Plaintiff, who purchased Hershey's chocolate products,
including Hershey Kisses, Heath Bar, Skor, Hershey Bar with
Almonds, and Milk Duds, from various retail stores including
CVS, Stop & Shop, Target, and Walmart in Buzzards Bay and
Plymouth, Massachusetts from 2014 through the present, claims
that she and other consumers would not have purchased or paid
as much for Hershey's products had it disclosed the truth
about the child and slave labor in its supply chain.
Id. ¶¶ 12, 15, 89. The Complaint alleges
that Hershey's omissions are deceptive and unfair under
Chapter 93A, and that Hershey has been unjustly enriched by
its conduct. Id. ¶¶ 85-86, 92.
filed this lawsuit on February 26, 2018, seeking to represent
herself and all other consumers who purchased Hershey's
chocolate products in Massachusetts in the last four years.
See generally Compl. Plaintiff also filed
substantially similar actions against Nestlé USA,
Inc., Mars, Inc., and Mars Chocolate North America LLC.
[See Tomasella v. Nestlé USA, Inc.,
18-cv-10269-ADB (D. Mass.) (hereinafter “Nestlé
Action”), ECF No. 1; Tomasella v. Mars, Inc.,
18-cv-10359-ADB (D. Mass.) (hereinafter “Mars
Action”), ECF No. 1]. On April 19, 2018, Defendants in
all three cases filed motions to dismiss. [ECF No. 20;
Nestlé Action, ECF No. 19; Mars Action, ECF No. 18].
On June 14, 2018, Plaintiff filed her oppositions to
Defendants' motions. [ECF No. 23; Nestlé Action,
ECF No. 22; Mars Action, ECF No. 21]. On July 13, 2018,
Defendants in the Mars Action and the Nestlé Action
filed their reply briefs, and on July 17, 2018, Defendants in
the instant action filed their reply brief. [ECF No. 27;
Nestlé Action, ECF No. 26; Mars Action, ECF No. 25].
On July 23, 2018, Plaintiff filed a sur-reply brief in all
three cases. [ECF No. 30; Nestlé Action, ECF No. 29;
Mars Action, ECF No. 28].
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 ...