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Tomasella v. The Hershey Co.

United States District Court, D. Massachusetts

January 30, 2019

DANELL TOMASELLA, on behalf of herself and all others similarly situated, Plaintiff,
v.
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

         In this 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.”)].[1] Currently before the Court is Hershey's motion to dismiss Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). [ECF No. 20].

         It is 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 GRANTED.

         I. BACKGROUND

         Plaintiff's 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.

         The 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.

         Hershey 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, 52.[2] 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.

         Plaintiff 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].

         II. STANDARD OF REVIEW

         On a 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)).

         When 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.

         III. DISCUSSION

         A. Mass. Gen. Laws ch. 93A Claim

         Hershey 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 ...


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