Category Archives heightened pleading requirement

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…

To state an omission-based MMPA claim in federal court, a plaintiff may not rely on generic allegations that a defendant failed to disclose an alleged product defect. Nor may a plaintiff rely on prior consumer complaints as the basis for alleging that a defendant concealed a material fact. That’s the lesson from Johnsen v. Honeywell International Inc., No. 4:14CV594 RLW, 2016 WL 1242545 (E.D. Mo. Mar. 29, 2016). In that case, plaintiff claimed that Honeywell’s representations about its humidifiers’ quality, along with a five-year warranty, amounted to an actionable “unfair practice” under the MMPA where the humidifiers allegedly broke down repeatedly. On March 29, 2016, the Eastern District of Missouri ruled on defendant Honeywell International’s Rule 12(b)(6) motion to dismiss plaintiff’s complaint, holding that bare allegations that defendants “knew, or reasonably should have known” that their products contained some defect and that they “concealed and failed to disclose such alleged…

Plaintiff fed his dog Beneful Healthy Weight dog food, and within two weeks, his dog was lethargic, incontinent, and hematuric (blood in urine).  The vet recommended a medicated dog food, and the symptoms disappeared. Plaintiff filed a putative class action under the Missouri Merchandising Practices Act (MMPA), alleging that Purina misrepresented its Beneful brand dog food as "healthy," "wholesome," "nutritious," and "100% Complete Nutrition," and failed to disclose that the dog food caused, or carried the risk of, illness and death in a significant number of dogs. Defendant moved to dismiss the complaint, based on Twombly and Rule (9b).  The Court granted the motion (with leave to amend). On Twombly grounds, the Court found that the Complaint failed to set for a plausible claim -- specifically there was no causation alleged: Nothing in the Complaint alleges that the veterinarian diagnosed the bladder stones because of the certain type of dog food…

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