Category Archives ascertainable loss

Since 2006, Robert Bratton regularly purchased 5 oz cardboard boxes of Whoppers and 4 oz cardboard boxes of Reese's Pieces several times a month.  Although Mr. Bratton initially "expected the boxes to be full," he guessed that the 600 or so boxes of Whoppers and Reese's Pieces that he purchased since 2006 contained between 30-40% empty space or "slack-fill."  Mr. Bratton ultimately filed a  putative class-action lawsuit in 2016, alleging that the slack-fill in each box of candy was a violation of the MMPA. For those familiar with the MMPA, it should come as no surprise that Mr. Bratton's knowledge of how much candy and how many empty space was in each box of Whoppers and Reese's Pieces, along with his continued purchases of the candy for over 10 years was fatal to his MMPA claim.  In Bratton v. The Hershey Company, No. 16-cv-4322, 2018 WL 934899 (W.D Mo. Feb. 16, 2018), Judge Laughrey…

In a so-called “slack-fill” case, Judge Laughrey issued an opinion denying Hershey Company’s motion to dismiss a putative class’s MMPA and unjust enrichment claims, which involve allegations that Reese's Pieces and Whoppers candy boxes improperly suggest that they contain more product than they actually do.  According to the opinion, consumers average a whopping 13 seconds making in-store purchasing decisions, further supporting the plaintiff’s contention that consumers attach significant importance to the size of candy boxes, and that he was misled to believe that he was purchasing more product than he actually received. The court rejected Hershey's argument that the MMPA claim was not plausible, reasoning that the MMPA has been interpreted as "cover[ing] every unfair practice imaginable and every unfairness. . . ."  What's more, a "plaintiff need not even allege or prove reliance on an unlawful practice to state a claim under the act."  Judge Laughrey concluded that the plaintiff…

We know the general rule that a Missouri Merchandising Practices Act ("MMPA") plaintiff cannot merely allege some undefined loss: the loss must be ascertainable, meaning the plaintiff must state an actual amount or a method for calculating the amount. Now add a corollary principle: not only must the loss be ascertainable, but whatever that amount is, it must constitute a net loss when measuring the difference between the actual or reasonable value of the product or service and the amount that plaintiff paid. That’s the takeaway from Cregan v. Mortgage One Corp., No. 4:16 CV 387 RWS, 2016 WL 3072395, at *5 (E.D. Mo. June 1, 2016). In Cregan, plaintiffs entered into a loan agreement with defendant that encumbered their real property. Id. at *1. After plaintiffs filed for bankruptcy, defendant filed a notice of claim that included a charge for $56,000 in “daily simple interest” due, and plaintiffs claimed that the…

“An ascertainable loss of money or property” is an essential element of a cause of action brought under the Missouri Merchandising Practices Act. But what if something is free and doesn't perform as advertised? In Grawitch v. Charter Communications, Inc., 2013 WL 253534 (E.D. Mo. Jan. 23, 2013), an internet-service provider offered its existing customers a free upgrade: faster internet service ("with download speeds of up to 30 MBPS") at no additional charge.  But to enjoy the faster internet service, customers would need to upgrade their modems (available only from the ISP).  According to plaintiffs, those upgraded modems weren't capable of download speeds of up to 30 MBPS. Plaintiffs brought a class action under the MMPA, alleging a loss of money to Plaintiffs: “specifically, the difference in the cost and value of the service they paid for, and the useable service they received.” Is that an "ascertainable loss" under the…

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