962 F.3d 60
1st Cir.2020Background
- Plaintiff Danell Tomasella (Massachusetts) filed putative class actions against Nestlé, Mars, and Hershey alleging their chocolate packaging omits that the "worst forms of child labor" exist in their West African cocoa supply chains.
- Complaints alleged violations of the Massachusetts Consumer Protection Act (Mass. Gen. Laws ch. 93A) based on deceptive and unfair omissions at point of sale, plus unjust enrichment.
- Defendants publicly acknowledge supply-chain abuses and run remedial programs, but do not disclose those upstream labor problems on product packaging; some products bear certification logos (some exempted by plaintiff).
- The district court dismissed all complaints with prejudice, concluding the packaging omissions were "pure omissions" not plausibly deceptive or unfair under Chapter 93A and that unjust enrichment was barred because an adequate remedy at law (Chapter 93A) existed.
- The court relied on consumer-protection principles (including FTC omission jurisprudence) and Massachusetts precedents distinguishing half‑truths or misleading statements from mere silence about tangential product attributes.
- The First Circuit affirmed: plaintiff failed to plead a plausible Chapter 93A deception or unfairness claim based on packaging omissions, and unjust enrichment was foreclosed by the availability of an adequate legal remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission on product packaging that upstream cocoa sourcing involves child/forced labor is a "deceptive" act under Chapter 93A | Tomasella: nondisclosure of material fact likely to mislead reasonable consumers and would have affected purchasing decisions | Defendants: silence at point of sale is a "pure omission" about a tangential upstream fact and lacks capacity to mislead purchasers | Held: Not deceptive — omission is a "pure omission" and not the kind of half‑truth or implied misrepresentation that Chapter 93A reaches |
| Whether the same omission constitutes an "unfair" practice under Chapter 93A | Tomasella: nondisclosure is immoral, unethical, and within the penumbra of international norms and statutes (UDHR, ILO, Tariff Act) and causes substantial injury | Defendants: omission does not fall within common‑law, statutory, or established concepts of unfairness; packaging silence is not unscrupulous or substantially injurious to consumers | Held: Not unfair — plaintiff did not show the omission lies within established concepts of unfairness, is unscrupulous, or causes substantial consumer injury |
| Whether plaintiff alleged a cognizable injury under Chapter 93A (section 9) | Tomasella: economic loss and moral injury because purchases supported abusive labor; would have paid less or not bought products if informed | Defendants: plaintiff cannot show she was induced to buy by the omission; information was publicly available elsewhere | Held: Court did not reach merits of section 9 after finding no deceptive or unfair act (district court had noted availability of information undermines causation) |
| Whether unjust enrichment claim may proceed alongside Chapter 93A claim | Tomasella: may plead alternative remedies; unjust enrichment is permissible at pleading stage | Defendants: unjust enrichment barred where adequate remedy at law (Chapter 93A) exists | Held: Dismissed — unjust enrichment barred because an adequate legal remedy was available (Shaulis controlling) |
Key Cases Cited
- Aspinall v. Philip Morris Cos., 813 N.E.2d 476 (Mass. 2004) (recognizes "half‑truth" omission theory and sets materiality/reasonable consumer standard under Chapter 93A)
- Underwood v. Risman, 605 N.E.2d 832 (Mass. 1993) (describes duty to disclose material facts in business transactions under state law)
- V.S.H. Realty v. Texaco, Inc., 757 F.2d 411 (1st Cir. 1985) (discusses Chapter 93A disclosure pleading and distinguishes misleading half‑truths from mere silence)
- Shaulis v. Nordstrom, Inc., 865 F.3d 1 (1st Cir. 2017) (unjust enrichment barred where an adequate remedy at law exists; applied to preclude parallel equitable claim)
- Exxon Mobil Corp. v. Attorney Gen., 94 N.E.3d 786 (Mass. 2018) (addresses AG investigatory power under Chapter 93A and distinguishes investigatory authority from private‑plaintiff pleading standards)
- Hodsdon v. Mars, Inc., 891 F.3d 857 (9th Cir. 2018) (similar rejection of packaging‑omission consumer‑protection theory under California law; persuasive on scope of omission claims)
- Lass v. Bank of Am., N.A., 695 F.3d 129 (1st Cir. 2012) (permitted pleading alternative theories at the pleading stage; distinguished by subsequent panel in Shaulis)