DANELL TOMASELLA, оn behalf of herself and all others similarly situated, Plaintiff, Appellant, v. NESTLÉ USA, INC., a Delaware corporation, Defendant, Appellee.
No. 19-1130, No. 19-1131, No. 19-1132
United States Court of Appeals For the First Circuit
June 16, 2020
DANELL TOMASELLA, on behalf of herself and all others similarly situated, Plaintiff, Appellant, v. NESTLÉ USA, INC., a Delaware corporation, Defendant, Appellee. No. 19-1130. DANELL TOMASELLA, on behalf of herself and all others similarly situated, Plaintiff, Appellant, v. MARS, INC., a Delaware corporation; and MARS CHOCOLATE NORTH AMERICA LLC, a Delaware company, Defendants, Appellees. No. 19-1131. DANELL TOMASELLA, on behalf of herself and all others similarly situated, Plaintiff, Appellant, v. THE HERSHEY COMPANY, a Delaware corporation; HERSHEY CHOCOLATE & CONFECTIONERY CORPORATION, a Delaware corporation, Defendants, Appellees. No. 19-1132.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs,
Before Torruella, Lynch, and Kayatta, Circuit Judges.
Elaine T. Byszewski, with whom Steve W. Berman, and Hagens Berman Sobol Shapiro LLP were on brief, for appellant.
Bryan A. Merryman, with whom Michael Kendall, Lauren M. Papenhausen, Karen Eisenstadt, and White & Case LLP were on brief, for appellee Nestlé USA, Inc.
David M. Horniak, with whom Alison M. Newman, Stephen D. Raber, and Williams & Connolly LLP were on brief, for appellees Mars, Inc. and Mars Chocolate North America LLC.
Jonah M. Knobler, with whom Steven A. Zalesin, and Patterson Belknap Webb & Tyler LLP were on brief, for appellees The Hershey Company and Hershey Chocolate & Confectionery Corporation.
June 16, 2020
The exploitation of children in the supply chain from which U.S. confectionary corporations continue to source the cocoa beans that they turn into chocolate is a humanitarian tragedy. This case thus serves as a haunting reminder that eradicating the evil of slavery in all its forms is a job far from finished. Before us, however, is the very narrow question of whether Defendants’ failure to include on the packing of their chocolate products information regarding upstream labor abuses in their cocoa bean supply chains constitutes an unfair or deceptive business practice within the meaning of Chapter 93A. Because we agree with the district court that Tomasella has not plausibly stated a claim for relief under Chapter 93A based on the alleged packaging omissions, and that Tomasella‘s unjust enrichment claim is foreclosed by the availability of a remedy at law, we affirm the dismissal of her complaints against Defendants.
I. Background
A. Facts of the Case
Because this is an appeal from the granting of a motion to dismiss, “we rehearse the facts as they appear in the plaintiff[‘s] comрlaints (including documents incorporated by reference therein).”1 Hochendoner v. Genzyme Corp., 823 F.3d 724, 728 (1st Cir. 2016).
The West African nation of Côte d‘Ivoire (Ivory Coast) is the world‘s largest producer of cocoa beans, the essential ingredient in chocolate. The United States imports 47% of its supply of cocoa beans from Côte d‘Ivoire. According to the U.S. Department of Labor‘s (“DOL“) Bureau of International Labor Affairs, the Ivorian cocoa industry “employ[s]” over 1.2 million child laborers, 95% of whom are engaged in hazardous cocoa production work, such as burning and clearing fields, using machetes and sharp tools, spraying pesticides, and carrying heavy loads. As many as 4,000 of these children “are working under conditions of forced labor on Ivorian cocoa farms,” having been kidnapped or trafficked into debt bondage marked by harsh working conditions. In addition, child laborers on cocoa farms are often forced to work long hours even when sick, denied food, and punished with physical abuse. A DOL-funded 2015 report prepared by the Payson Center for International Development at Tulane University found that over half of child laborers on Ivorian cocoa farms have suffered work-related injuries. These conditions, according to Tomasella, amount to “the Worst Forms of Child Labor” and are “prohibit[ed]” under international law.2
Defendants are three of the largest and most profitable confectionary corporations in the United States. Their chocolate products are made with cocoa beans and paste that they source (either directly or through intermediaries) predominantly from West African countries such as Côte
Defendants’ Corporate Business Principles and Supplier Codes of Conduct prohibit child and slave labor. Additionally, they each have a stated policy that condemns the use of the worst forms of child labor. At the same time, Defendants publicly acknowledge the existence of the worst forms of child labor in their West African cocoa supply chains. For example, Nestlé acknowledges that children are engaged in hazardous work and forced labor on farms in Côte d‘Ivoire in areas where the company sources cocoa. Mars recognizes that child labor and trafficking exist in cocoa bean supply chains originating in West Africa, and that it has advocated for the government of Côte d‘Ivoire to address the problem. Hershey concedes that there are potential labor rights abuses in its cocoa bean supply chain and expresses its commitment to ending forced labor.
In 2001, Defendants (all members of the Chocolate Manufacturers Association) 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, Sept. 19, 2001 [hereinafter Harkin-Engel Protocol],4
whereby they committed to being able to publicly certify by July 2005 “that [their] cocoa beans and their derivative products have been grown and/or processed without any of the worst forms of child labor.” Since 2005, Defendants have issued several joint statements affirming their commitment to eliminating forced child labor in the cocoa supply chain, although they have yet to fully implement the comprehensive cocoa certification process imagined by the Harkin-Engel Protocol.
As part of their commitment, Defendants have launched corporate remedial initiatives. Nestlé launched the Nestlé Cocoa Plan in 2009 to “eliminate the use of child labour” and “stamp out forced labour practices” in the Ivorian cocoa industry. Mars has the Sustainable Cocoa Initiative, which aims to improve the livelihoods of farmers. Hershey designed the Shared Goodness approach, “to help guide [its] support of the United Nations Sustainable Development Goals” towards the ultimate goal of creating a “Better Life and a Bright Future for [its] stakeholders.” Tomasella alleges that the total number of children involved in hazardous work in cocoa production has nevertheless increased between 2008 and 2014.
Defendants contend that they have consistently and publicly acknowledged the child labor problem in their cocoa supply chains, including on their websites, where they regularly report on their remedial efforts; however, they do not disclose the existence of “child and/or slave labor in the [cocoa] supply chain” on the packaging of the chocolate products identified in Tomasella‘s complaints at the point of sale. Nestlé does label at least one of its chocolate products, Nestlé Crunch, with the Nestlé
B. Procedural History
On February 12, 2018, Tomasella (a Massachusetts resident) filed a two-count class action lawsuit against Nestlé in federal court predicated on diversity jurisdiction. Then, on February 26, 2018, she filed identical class actions against Mars and Hershey. The putative class in all three lawsuits included “[a]ll consumers who purchased [Defendants‘] Chocolate Products in Massachusetts during the four years prior to the filing of the complaint[s].”
First, Tomasella alleged that Defendants violated Chapter 93A because their failure to disclose the prevalence of the worst forms of child labor in their cocoa supply chains on their product packaging is a “material omission[]” that constitutes “an unfair or deceptive act[] or practice[] in the conduct of any trade or commerce” (Count One).
1948 Universal Declaration on Human Rights (“UDHR“). Tomasella also alleged that Defendants’ packaging omissions “impair[] competition in the market for chocolate products, and prevent[] [her] and Class Members from making fully informed decisions about the kind of chocolate products to purchase and the price to pay for such products.”
In the way of injuries, Tomasella claimed that Defendants’ material omissions caused her and the putative class members to lose money “because they would not have purchased nor paid as much for Chocolate Products had they known the truth.” Tomasella also alleged that “the unwitting support of child and slave labor causes substantial injury to consumers” -- presumably in a moral sense. As for the requested relief, Tomasella sought an injunction ordering Defendants to discontinue their deceptive and unfair omissions (i.e., an injunction ordering them to make certain disclosures on their chocolate wrappers) and requesting treble damages, as well as attorneys’ fees and costs.
In the second cause of action, Tomasella alleged that Defendants had been “unjustly enriched” by “receiving payments for Chocolate Products that would not have
On April 19, 2018, Defendants simultaneously filed motions to dismiss Tomasella‘s complaints in their respective cases under
On January 30, 2019, the district court granted Defendants’ motions to dismiss with prejudice. See Tomasella v. Nestlé USA, Inc., 364 F. Supp. 3d 26, 37 (D. Mass. 2019); Tomasella v. Mars, Inc., No. 18-cv-10359 (D. Mass. Jan. 30, 2019); Tomasella v. The Hershey Co., No. 18-cv-10360 (D. Mass. Jan. 30, 2019).
C. The District Court‘s Decision7
The district court dismissed Tomasella‘s complaints in three strokes. First, the court found that Tomasella “failed to
state a deceptive claim under Chapter 93A because it is not plausible that [Defendants‘] failure to disclose information about the labor practices in [their] supply chain[s] at the point of sale could have the ‘capacity to mislead consumers, acting reasonably under the circumstances, to act differently from the way they otherwise would have acted (i.e., to entice a reasonable consumer to purchase the product).‘” Id. at 35 (quoting Aspinall v. Philip Morris Cos., 813 N.E.2d 476, 488 (Mass. 2004)). The court noted that Tomasella‘s theory of liability was premised on factual omissions (as opposed to “affirmative misrepresentation[s]” or “misleаding half-truth[s]“) that were tangential to the “central characteristics of the chocolate products sold, such as their physical characteristics, price, or fitness for consumption.” Id. at 33.
Heeding Chapter 93A‘s instruction that courts be “guided by the interpretations given by the Federal Trade Commission and the Federal Courts to section 5(a)(1) of the Federal Trade Commission Act (
Second, the district court determined that Tomasella likewise “[did] not state a claim for unfair conduct upon which relief could be granted under Chapter 93A” because she failed to allege that (1) “[Defendants‘] omissions [were] within the penumbra of any common law, statutory or other established concept of unfairness“; (2) “the challenged omissions [were] immoral, unethical, oppressive or unscrupulous“; or that (3) “[Defendants] caused substantial injury to [their] customers.” Id. at 35-36 (citing President & Fellows of Harvard Coll. v. Certplex, Ltd., No. 15-cv-11747, 2015 WL 10433612, at *2 (D. Mass. Nov. 25, 2015)).
The district court rejected Tomasella‘s argument that Defendants’ conduct fell within “well-established international concepts of unfairness.” Id. at 36. To that end, the court noted that Tomasella was challenging the omission of information on Defendants’ product packaging relating to the existence of child and slave labor in Defendants’ cocoa supply chains not the use of those abhorrent labor practices themselves. See id. Moreover, the district court found that Tomasella had not “identified any common law or statutory authority requiring such disclosure[s].” Id. (citing Hodsdon v. Mars, Inc., 891 F.3d 857, 867 (9th Cir. 2018)) (holding that the packaging of products is too far removed from the United Nations’ and ILO‘s policies to serve as the basis for an unfairness claim under California‘s Unfair Competition Law). Finally, the district court concluded that Tomasella‘s concession that Defendants had “repeatedly disclosed” in other media the existence of child and slave labor in their cocoa supply chains neutralized her claim that she would not have purchased Defendants’ chocolate products had she known the truth about their labor practices; moreover, where such information was “readily available to consumers on [Defendants‘] websites,” the district court held that omitting it from the packaging of chocolate products was not “immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” Id.
Having dismissed both Chapter 93A claims for failure to state a claim for unfair or deceptive conduct upon which relief could be granted, the district court declined to address whether Tomasella had alleged a cognizable injury per section 9 of Chapter 93A or whether the First Amendment barred compelling the packaging disclosures she sought. Id. at 36 n.7.
Third, the district court dismissed Tomasella‘s unjust enrichment claim because, undеr Massachusetts law, plaintiffs with “an adequate remedy at law cannot maintain a parallel claim for unjust enrichment, even if that remedy is not viable.” Id. at 37 (citing Shaulis v. Nordstrom, Inc., 865 F.3d 1, 16 (1st Cir. 2017)) (“It is the availability of a remedy at law, not the viability of that remedy, that prohibits a claim for unjust enrichment.“). In any event, because Tomasella failed to allege wrongful conduct under Chapter 93A, the court noted that the allegation of unjust enrichment was ultimately merely “conclusory.” Id. (internal quotation marks omitted).
On January 31, 2019, Tomasella timely appealed all three dismissals. Due to the
II. Discussion8
On appeal, Tomasella challenges the dismissal of her Chapter 93A and common law unjust enrichment claims. Our review is de novo. See Shaulis, 865 F.3d at 5-6 (citing Carter‘s of New Bedford, Inc. v. Nike, Inc., 790 F.3d 289, 291 (1st Cir. 2015)). “Setting aside any statements that are merely conclusory, we construe all factual allegations in the light most favorable to the non-moving party to determine if there exists a plausible claim upon which relief may be granted.” Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 353 (1st Cir. 2013) (citing Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011)). “As a federal court sitting in diversity, we apply the substantive law of Massachusetts, as articulated by the [Massachusetts Supreme Judicial Court].” Shaulis, 865 F.3d at 6 (citing Sanders v. Phoenix Ins. Co., 843 F.3d 37, 47 (1st Cir. 2016)). “Where the highest [state] court has not spoken directly on the question at issue, we must predict, as best we can, that court‘s likely answer.” Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011) (citing Barton v. Clancy, 632 F.3d 9, 17 (1st Cir. 2011)). Mоreover, “our obligation to make such an ‘informed prophecy’ is dampened by a concomitant duty to confine our forecast ‘within the narrowest bounds sufficient to permit disposition of the actual case in controversy.‘” Id. (quoting Moores v. Greenberg, 834 F.2d 1105, 1112 (1st Cir. 1987)).
A. Chapter 93A Claims
“Chapter 93A is a broad . . . consumer protection statute,” under which “[a] plaintiff seeking relief . . . must prove that the defendant engaged in ‘unfair or deceptive acts or practices in the conduct of any trade or commerce.‘” Walsh v. TelTech Sys., Inc., 821 F.3d 155, 160 (1st Cir. 2016) (quoting
Massachusetts courts also “la[y] out . . . helpful guideposts” as to the meaning of the relevant terms in section 2(a). 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, 821 F.3d at 160 (alteration in original) (quoting Aspinall, 813 N.E.2d at 486-87). “[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,‘” plus the “conduct
Of additional note, “Chapter 93A liability is decided case-by-case, and Massachusetts courts have consistently emphasized the ‘fact-specific nature of the inquiry.‘” Arthur D. Little, Inc. v. Dooyang Corp., 147 F.3d 47, 55 (1st Cir. 1998) (quoting Linkage Corp. v. Trustees of Bos. Univ., 679 N.E.2d 191, 209 (Mass. 1997)). “Although whether a particular set of acts, in their factual setting, is unfair or deceptive is a question of fact, the boundaries of what may qualify for consideration as a [Chapter] 93A violation is a question of law.” Id. at 54 (alteration in original) (quoting Ahern v. Scholz, 85 F.3d 774, 797 (1st Cir. 1996)).
Section 2(c) of Chapter 93A also authorizes the Massachusetts Attorney General to issue rules and regulations interpreting section 2(a)‘s provisions, so long as the interpretations stay within the bounds set by the FTC‘s and federal courts’ interpretations per section 2(b).10 See
Section 3.16(2) explains that Chapter 93A covers a business‘s “fail[ure] to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.”
After careful review, we agree with the district court that Tomasella has failed to plausibly state Chapter 93A claims against Defendants under either a deceptive or unfair acts theory. We address each theory in turn.
1. Deceptive Acts
Tо plausibly state a Chapter 93A claim premised on a deceptive act, the plaintiff must allege “(1) a deceptive act or practice on the part of the seller; (2) an injury or loss suffered by the consumer; and (3) a causal connection between the seller‘s deceptive act or practice and the consumer‘s injury.” Casavant v. Norwegian Cruise Line, Ltd., 919 N.E.2d 165, 168-69 (Mass. App. Ct. 2009) (citing
The spectrum of liability for deceptive acts or practices spans from affirmative misrepresentations, see Carlson, 2015 WL 6453147, at *4, to certain kinds of nondisclosures, such as “advertising [that] may consist of a half truth, or even may be true as a literal matter, but still create[s] an over-all misleading impression through failure to disclose material information,” Aspinall, 813 N.E.2d at 487. A nondisclosure, or an omission, “is the failure to ‘disclose to another a fact that [one] knows may justifiably induce the other to act or refrain from acting in a business transaction . . . [if one] is under a duty to the other to exercise reasonable care to disclose
Beyond its recognition in Aspinall of two specifiс kinds of deceptive omissions and its occasional echoing of Section 3.16(2)‘s broad disclosure language (which, as we will explain, is less expansive than meets the eye), the Supreme Judicial Court of Massachusetts (“SJC“) has not squarely addressed whether a seller commits a deceptive act when omitting information at the point of sale concerning a product that is tangential to its fitness for use. Thus, pursuant to
The FTC has addressed in detail whether and to what extent omissions constitute deceptive acts. Under the FTC framework, with which Massachusetts law substantially comports, see Aspinall, 813 N.E.2d at 488, deceptive acts consist of three elements: “(1) there must be a representation, practice, or omission likely to mislead consumers; (2) the consumers must be interpreting the message reasonably under the circumstances; and (3) the misleading effects must be ‘material,’ that is likely to affect consumers’ conduct or decision with regard to a product,” Int‘l Harvester, 104 F.T.C. at 1056.
According to the FTC, omissions give rise to liability based on deception in two limited circumstances: (1) “to tell only half the truth, and to omit the rest” (e.g., “where a seller fails to disclose qualifying information necessary to prevent one of his affirmative statements from creating a misleading impression“); and (2) “to simply remain silent, if [the seller] does so under circumstances thаt constitute an implied but false representation” (e.g., where a misleading impression “arise[s] from the physical appearance of the product, or from the circumstances of a specific transaction, or . . . based on ordinary consumer expectations as to the irreducible minimum performance standards of a particular class of good“).11 Id. at 1057-58. An example of telling a halftruth and omitting the rest would be advertising a product that allegedly cures baldness but “failing to disclose that most baldness results from male heredity and cannot be treated.” Id. at 1058 (citing Ward Labs. v. FTC, 276 F.2d 952 (2nd Cir. 1960); Keele Hair & Scalp Specialists, 55 F.T.C. 1840 (1959), aff‘d, 275 F.2d 18 (5th Cir. 1960)). An example of creating a misleading impression through an omission would be presenting a product as new, even though it is actually used, without correcting the misimpression created, see id. (citing Olson Radio Corp., 60 F.T.C. 1758 (1962)), or omitting “that a simulated-wood product was actually made of paper,” id. (citing Haskelite Mfg. Corp., 33 F.T.C. 1212, 1216 (1941), aff‘d, 127 F.2d 765 (7th Cir. 1942)).
F.T.C. v. Simeon Mgmt. Corp., 532 F.2d 708, 716 (9th Cir. 1976) (“[N]o single advertisement could possibly include every fact relevant to the purchasing decision; nor is such comprehensiveness required . . . .“).
Although the SJC did not cite directly to International Harvester in the Aspinall decision, its statement in that case regarding nondisclosures in advertising that are “half truth[s]” or that “create an over-all misleading impression” closely tracks the FTC‘s dual classification scheme. Aspinall, 813 N.E.2d at 487. In International Harvester104 F.T.C. at 1051-55. The FTC classified this nondisclosure as a “pure omission,” which it defined as merely staying silent about a subject “in circumstances that do not give any particular meaning to [the] silence.” Id. at 1059. Because the statistical probability of fuel geysering was very low, the FTC determined that the risk of hazard did not render the tractor “unfit for normal use,” and thus the act of offering the tractor for sale while staying silent about the risk of fuel geysering did notconstitute a deceptive act. Id. at 1063. Thus, although pure omissions “may lead to erroneous consumer beliefs if [the] consumer had a false, pre-existing conception which the seller failed to correct,” the FTC held that such omissions, by and large, “are not appropriately characterized as deceptive or reached through deception analysis.” Id. at 1059-60. The reasoning underlying the FTC‘s treatment of pure omissions is encapsulated in the following policy considerations:
First, we could not declare pure omissions to be deceptive without expanding that concept virtually beyond limits. Individual consumers may have erroneous preconceptions about issues as diversе as the entire range of human error, and it would be both impractical and very costly to require corrective information on all such points. Second, pure omissions do not presumptively or generally reflect a deliberate act on the part of the seller, and so we have no basis for concluding, without further analysis, that an order requiring corrective disclosure would necessarily engender positive net benefits for consumers or be in the public interest.
If we were to ignore this last consideration, and were to proceed under a deception theory without a cost-benefit analysis, it would surely lead to perverse outcomes. The number of facts that may be material to consumers -- and on which they may have prior misconceptions -- is literally infinite. Consumers may wish to know about the life expectancy of clothes, or . . . [a] canner‘s policy on trade with Chile. Since the seller will have no way of knowing in advance which disclosure is important to any particular consumer, he will have to make complete disclosures to all. A television ad would be completely buried under such disclaimers, and even a full-page newspaper ad would hardly be sufficient for the purpose. For example, there are literally dozens of ways in which one can be injured whileriding a tractor, not all of them obvious before the fact, and undеr a simple deception analysis these would presumably all require affirmative disclosure. The resulting costs and burden on advertising communication would very possibly represent a net harm for consumers.
Id. at 1059-60 (footnotes omitted).
On this law, we see no reason to depart from the district court‘s determination
By our lights, Defendants’ packaging omissions lack the requisite capacity to mislead. The district court‘s classification
of Defendants’ packaging omissions as pure omissions makes good sense. The challenged conduct does not clearly fall into either of the nondisclosure categories that the SJC and FTC have specifically recognized as being deceptive. By not disclosing on the packaging of their chocolate products that there are known labor abuses in their cocoa supply chains, Defendants stay silent on the subject in a way that does not constitute a half-truth or create any misleading impressions about the upstream labor conditions in the cocoa supply chain.13
Following International Harvester‘s framework, then, the risk of hazard -- here, that the worst forms of child labor may have been used in producing the cocoa beans used to make the chocolate products being offered for sale -- does not render the
products “unfit for normal use,” and thus the act of offering the chocolate for sale without mention of these labor practices is not a deceptive act. 104 F.T.C. at 1063. Moreover, the allegation that Defendants did not correct at the point of sale Tomasella‘s “false, pre-existing conception” that their chocolate products were completely free of the worst forms of child labor does not translate into deception liability. Id. at 1059. Without citing any precedent, Tomasella argues that because the worst forms of child labor are universally condemned, consumers acting reasonably under the circumstances would never expect a product to implicate such abhorrent labor practices. We need look no further than the FTC‘s stated policy rationales to explain the shortcomings
On appeal, however, Tomasella disputes the district court‘s decision to rely on FTC guidance in general and on International Harvester in particular. For support, Tomasella points to the SJC‘s recognition that “[a] duty exists under
[Chapter] 93A to disclose material facts known to a party at the time of a transaction,” Exxon Mobil Corp. v. Att‘y Gen., 94 N.E.3d 786, 797 (Mass. 2018) (quoting Underwood, 605 N.E.2d at 835), cert denied sub nom. Exxon Mobil Corp. v. Healey, 139 S. Ct. 794 (2019), in tandem with Section 3.16(2)‘s broad disclosure language. Based on this duty to disclose material facts, Tomasella argues that she “need only allege a knowing omission of material information likely to mislead consumers” in order to plausibly state a deception claim based on Defendants’ omissions.15 In other words, Tomasella contends that “requiring disclosure in the
obligations, Tomasella submits that the district court need not have consulted FTC caselaw at all, let alone International Harvester. For the following reasons, we disagree.
First and foremost, the statutory directive in
Additionally, the supposed clear statements of Massachusetts law to which Tomasella cites do not, in our view, lend support to her position. We begin with Exxon, which addressed the very different issue of the scope of the Massachusetts Attorney General‘s investigative power under
Before the SJC, Exxon argued that, as a nonresident corporation, it was not subject to personal jurisdiction in Massachusetts, and that to the extent that the Attorney General‘s investigation (and thus the CID) arose from the company‘s advertising and marketing activities in Massachusetts, those activities were conducted by Exxon‘s franchisees (branded gas stations) whose communications could not be attributed to Exxon. Id. at 794. After agreeing with the lower courts’ determinations that this argument belied the language of Exxon‘s brand franchise agreements, see id. at 794-95, the SJC concluded that the CID‘s request for information relating to Exxon‘s knowledge about theclimate risks of its products fell squarely within the Attorney General‘s statutory authority to investigate whether Exxon had indeed “engaged in
While we understand the attraction of drawing a parallel to Exxon, there are no grounds for reading the case as establishing the liberal pleading standard for which Tomasella advocates. Rather, what the case confirms is that
Likewise, in our view, Underwood falls short of the broad applicability that Tomasella ascribes to it. There, the SJC considerеd whether an owner-broker was guilty of a deceptive act by failing to disclose “the possibility of lead-based paint in a residential dwelling to childless prospective tenants.” 605 N.E.2d at 834. The SJC held that the owner-broker‘s nondisclosure did not violate
Next, as the district court rightly noted, Section 3.16(2) cannot be fairly read as a carte blanche for
Lastly, Tomasella‘s reliance on an isolated statement from our decision in V.S.H. Realty goes nowhere. That case implicated the “as is” purchase of “a used bulk storage petroleum facility,” for which the seller (Texaco) represented that it had not received any notice from government entities “regarding modifications or improvements to the facility or any part thereof” and only disclosed an oil seepage in the garage building. V.S.H. Realty, 757 F.2d at 413. After discovering a second oil seepage, which the U.S. Coast Guard had previously sought to investigate, the buyer (V.S.H.) filed suit against Texaco alleging, inter alia, that the company violated
Next, maintaining that it was error to consult FTC caselaw at all, Tomasella also contends the district court was doubly misguided in consulting International Harvester because the SJC had previously looked to another FTC case, In re Cliffdale Assoc., Inc., 103 F.T.C. 110 (1984) (hereafter “Cliffdale“), for guidance on deception liаbility analysis. We find this argument unavailing as well.
Tomasella notes specifically that in Aspinall, the SJC looked to Cliffdale, from which it imported the FTC standard forgauging deceptive acts: “if, first, there is a representation, omission, or practice that, second, is likely to mislead consumers acting reasonably under the circumstances, and third, the representation, omission, or practice is material.” Aspinall, 813 N.E.2d at 487 (quoting Cliffdale, 103 F.T.C. at 165). She fails to recognize, however, that International Harvester recounts the exact same standard, both FTC cases deriving it from the same 1983 FTC policy statement. See Int‘l Harvester, 104 F.T.C. at 1056 & n.18. In any event, in Cliffdale, the FTC held that marketers of a car engine had
To be sure, Cliffdale did implicate a deceptive nondisclosure, which arose from the marketers’ use of advertisements with consumer testimonials that created the impression that the endorsements were made by actual users of the car engine and were thus “unrestrained and unbiased.” 103 F.T.C. at 171. As it turned out, “a good number” of the individuals whose testimonials were featured in the marketing materials were actually “business associates” of the marketers, not actual product users. Id. at 172. The FTC concluded that the marketers were “guilty of making a deceptive claim” because failing to disclose the relationship between the endorser and the seller had created a false and misleading impression in the minds of consumers, who were particularly gullible because of the difficulty that average consumers have in assessing a product like a car engine themselves. Id. The SJC echoed this ruling in Aspinall, where it stated that advertising may be deceptive when it “create[s] an over-all misleading impression through failure to disclose material information.” 813 N.E.2d at 487. This doesnot, however, speak to the deceptive character of omissions like the ones at issue here, which is precisely why International Harvester provides a useful reference point.
Therefore, we hold that Tomasella has not plausibly stated a
2. Unfair Acts
Tomasella also challenges the dismissal of her
reviewing] court‘s . . . legal gate-keeping function.” Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 69 (1st Cir. 2009).
Tomasella disputes the district court‘s determination that she failed to plausibly plead any of the three prongs. With respect to established concepts of unfairness, Tomasella challenges the district court‘s “unduly narrow reading of [her] claims” as resting only on Defendants’ omission of information on their product packaging about the use of cocoa supply chains with known child and slave labor and not also the actual “utilization of the abusive supply chain[s].” By Tomasella‘s assessment, her unfair act claims necessarily encompass both practices, which in her view, “go hand in hand.” Tomasella further contends, relying on our decision in Cooper v. Charter Commc‘ns Entm‘ts I, LLC, 760 F.3d 103, 111 (1st Cir. 2014), that “to fall within the penumbra of a statute‘s concept of unfairness, [the challenged practice] need not actually violate the statute.” Accordingly, she clarifies that it is her position that Defendants’ “utiliz[ation] of supply chains with known child and slave labor” together with their continued failure to implement the cocoa certification standards set forth in the Harkin-Engel Protocol puts their practice of nondisclosure squarely within the penumbra of the “international intolerance of slavery and child labor abuses,” as expressed by the UDHR and ILO Convention No. 182. Even if a statutory violation were required to plausibly state a Chapter 93A unfairness claim, Tomasella submits that the
The challenged conduct does not fall within the penumbra of any recognized concept of unfairness. The Chapter 93A claims at issue are not based on Defendants’ conduct of sourcing cocoa beans from a supply chain rife with child labor abuses. While Tomasella undoubtedly pleads numerous facts relating to the abhorrence and prevalence of the worst forms of child labor in West African cocoa supply chains, as well as Defendants’ knowledge of and profiting from that practice, functionally, Tomasella relies on thеse facts only as predicates for her consumer protection argument.17 Those allegations do not bring the omission within the penumbra of common-law unjust enrichment, as described in greater detail below. And, at any rate, the SJC has never upheld a Chapter 93A claim because its allegations made out a claim for unjust enrichment, much less because its allegations were in the penumbra of unjust enrichment.
As to statutory concepts of unfairness, Tomasella‘s argument that the challenged packaging omissions fall within the penumbra of the Tariff Act fare no better, even assuming arguendo that a violation of a federal statute could be a source of unfairness within the meaning of Chapter 93A. By its terms, the Tariff Act only regulates the importation of goods, and thus plainly does not extend to point-of-sale packaging disclosures -- not to mention that its enforcement is committed to the discretion of the Secretary of the Treasury.19 See
Regarding the remaining unfairness prongs, Tomasella maintains on appeal that Defendants’ nondisclosure is both “immoral and substantially injurious to consumers who suffer economic loss” and are made to “unwittingly support abusive labor practices” by buying chocolate products. Because Massachusetts law requires sellers to disclose material information absent an independent duty, and because “reasonable Massachusetts consumers assume that major American companies do not tolerate internationally condemned labor abuses in their supply chains,” Tomasella argues that it is therefore “unethical to take advantage of [those] . . . assumptions and thereby trick consumers into becoming unwitting participants in the proliferation of child and slave labor.”
Along those lines, Tomasella disputes the district court‘s finding that it was neither immoral or substantially injurious to consumers for Defendants to omit information about their supply chain abuses “on [their] actual product packaging” when they “had made such information readily available to consumers on [their] websites.” Tomasella submits that consumers “cannot be expected to conduct internet research on every item they purchase -- particularly inexpensive goods at the market,” and therefore, absent a showing that she, or the putative class members, have actually seen any of Defendants’ website disclosures, the onus should be on the seller to “readily ensure exposure with a label disclosure.”
On balance, Tomasella has not persuaded us that the nondisclosure of upstream
Therefore, we hold that Tomasella has not plausibly stated a Chapter 93A unfairness claim. Accordingly, we affirm the dismissal of her Chapter 93A claims for failure to state a claim upon which relief can be granted.20
B. Unjust Enrichment
We now turn to the second count of Tomasella‘s complaints. “Unjust enrichment is defined as ‘retention of money or property of another against the fundamental principles of justice or equity and good conscience.‘” Santagate v. Tower, 833 N.E.2d 171, 176 (Mass. App. Ct. 2005). To plausibly state a claim for unjust enrichment, the plaintiff must allege: “(1) a benefit conferred upon the dеfendant by the plaintiff; (2) an appreciation or knowledge by the defendant of the benefit; and (3) acceptance or retention by the defendant of the benefit under the circumstances would be inequitable without payment for its value.” Mass. Eye & Ear Infirmary, 552 F.3d at 57 (citation omitted). Unjust enrichment is an equitable remedy, which “exist[s] to supplement those available at law and not to contradict the judgments embodied in the statutes and the common law.” Stevens v. Thacker, 550 F. Supp. 2d 161, 165-66 (D. Mass. 2008). Thus, “a party with an adequate remedy at law cannot claim unjust enrichment.” Shaulis, 865 F.3d at 16 (citing ARE-Tech Square, LLC v. Galenea Corp., 79 N.E.3d 1111 (Mass. App. Ct. 2017)). Specifically, “[i]t is the availability of a remedy at law, not the viability of that
Tomasella argues that the district court erroneously relied on the availability versus viability language in Shaulis to dismiss her unjust enrichment claim. She contends that our decision in Lass v. Bank of America, N.A., 695 F.3d 129, 140 (1st Cir. 2012) (holding that a plaintiff may “plead alternative and even inconsistent legal theories, such as breach of contract and unjust enrichment, even if Plaintiffs only can recover under one of these theories“), which we reiterated in Cooper, 760 F.3d 103, is controlling under the law of the circuit doctrine because it predates Shaulis. We disagree.
Under the “law of the circuit” rule, “newly constituted panels in a multi-panel circuit court are bound by prior panel decisions that are closely on point.” San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010) (citation omitted). But Tomasella misapprehends the doctrine. She contends that because both Lass and Shaulis reached opposite conclusions regarding a plaintiff‘s ability to proceed on an unjust enrichment claim while citing the same precedent in support of their reasoning, see Platten v. HG Berm. Exempted Ltd., 437 F.3d 118, 130 (1st Cir. 2006) (“Massachusetts law does not allow litigants to override an express contract by arguing unjust enrichment.“), Lass must take precedence as the earlier decision. Not so.
First, we are bound by Shaulis because it is a prior panel decision that is closely on point. To illustrate Shaulis‘s applicability, we lay out its facts. The case involved a putative class action lawsuit stemming from Nordstrom‘s practice of listing a “Compare At” price alongside the sale price on price tags for items at its department store, Nordstrom Rack. See 865 F.3d at 5. In that case, the named plaintiff (Shaulis) sued Nordstrom after purchasing one of its sweaters with a price tag listing the purchase price as $49.97 and the “Compare At” price as $218, indicating “77% worth of savings,” when in actuality, the goods available for purchase at Nordstrom Rack were “manufactured by designers for exclusive sale” at Nordstrom‘s department stores, meaning that they were never sold at the advertised “Compare At” prices. Id. (internal quotation marks omitted). On behalf of a putative class including all consumers who purchased items from Nordstrom Rack, Shaulis alleged that the “Compare At” pricing scheme constituted an unfair or deceptive act under Chapter 93A by “induc[ing] [her] to make a purchase she would not have made, but for the false sense of value [it] created.” Id. at 10. Shе also alleged claims for fraud, breach of contract, and unjust enrichment. See id. at 5.
We ultimately affirmed the dismissal of Shaulis‘s Chapter 93A claims for failure to adequately allege a legally cognizable injury under the state statute, see id. at 15, as well as the dismissal of her fraudulent misrepresentation and breach of contract claims, see id. at 15-16. As to her unjust enrichment claim, we held that it must also be dismissed because, even though she did not succeed on her Chapter 93A, fraudulent misrepresentation, and breach of contract claims (i.e., even though they were not viable), they provided her with “an adequate remedy at law” (i.e., they were available to her), and that alone “prohibits a claim for unjust enrichment.” Id. at 16 (citing Reed v. Zipcar, Inc., 883 F. Supp. 2d 329, 334 (D. Mass. 2012), aff‘d, 527 F. App‘x 20 (1st Cir. 2013); Fernándes v. Havkin, 731 F. Supp. 2d 103, 114 (D. Mass. 2010) (holding plaintiff‘s unjust enrichment claim was precluded by co-existent Chapter 93A claim, which was dismissed for failure to state an unfair or deceptive act)).
Next, we do not read Lass and Shaulis as creating an untenable conflict of law. Lass involved a dispute over whether a bank that acquired the plaintiff‘s mortgage wrongfully increased flood insurance payments beyond what was originally required by the mortgage agreement. 695 F.3d at 131-134. The plaintiff in that case brought a breach of contract and unjust enrichment claim (among others) against the bank, which the district court dismissed for fаilure to state a claim. Resolving the breach of contract issue on appeal turned on the interplay between the relevant provision of the mortgage agreement and a separate document called the “Flood Insurance Notification” regarding the authority provided to the lender to demand increased flood coverage on the plaintiff‘s property. Id. Because we concluded that the two documents, when taken together, created an ambiguity regarding the bank‘s authority to demand increased flood coverage, we reinstated the plaintiff‘s breach of contract claim. Id. at 137. As Tomasella notes, we also reinstated the plaintiff‘s unjust enrichment claim on the grounds that, despite the mutual exclusivity of damages for breach of contract and unjust enrichment, “it is accepted practice to pursue both theories at the pleading stage.” Id. at 140 (citing Vieira v. First Am. Title Ins. Co., 668 F. Supp. 2d 282, 294-295 (D. Mass. 2009)). However, what Tomasella misses is that the ambiguity in the mortgage contract casts doubt on whether a breach of contract claim was indeed available as a legal remedy for the plaintiff in that case. Thus, we reinstated the unjust enrichment claim, so that the district court could determine anew whether the claim “should survive” once it had the chance to develop the factual record more fully. Id. at 141.
By contrast, in Shaulis, because no such ambiguity existed, we were able to dеtermine that “[b]y charging the agreed price in exchange for ownership of the sweater, Nordstrom fulfilled its contractual obligations,” which in turn, blocked the plaintiff from asserting an unjust enrichment claim on top of a breach of contract claim. 865 F.3d at 16. There is no such ambiguity in Tomasella‘s case either. Thus, absent any showing that Chapter 93A provides an insufficient remedy at law, Tomasella‘s Chapter 93A and unjust enrichment claims are mutually exclusive.21
Accordingly, we affirm the district court‘s dismissal of Tomasella‘s unjust enrichment claims.
III. Conclusion
For the foregoing reasons, we affirm the dismissal of Tomasella‘s complaints against Nestlé, Mars, and Hershey.
Affirmed.
Notes
In relevant part, the Tariff Act provides:
All goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced or/and indentured labor under penal sanctions shall not be entitled to entry at any of the ports of the United States, and the importation thereof is hereby prohibited, and the Secretary of the Treasury is authorized and directed to prescribe such regulations as may be necessary for the enforcement of this provision.
By way of comparison, plaintiffs in another forum have challenged at least one of the Defendants’ complicity in the underlying labor abuses directly. See Doe v. Nestlé, S.A., 929 F.3d 623, 637, 642 (9th Cir. 2018) (holding that defendants’ perpetuation of overseas slave labor from their U.S. headquarters provided a sufficient domestic nexus for former child slaves trafficked into Côte d‘Ivoire to proceed on their claims against defendants under the
Not even the United Nations’ Guiding Principles on Business and Human Rights -- a set of guidelines delineating the corporate rеsponsibility to respect human rights that references the UDHR and ILO Convention No. 182 -- extend to point-of-sale disclosures on products that implicate human rights violations. See Office of the U.N. High Commissioner on Human Rights, U.N. Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, 13-26, U.N. Doc. HR/PUB/11/04 (2011). Rather, the Guiding Principles encourage businesses to make “publicly available” a policy statement “express[ing] their commitment to meet this responsibility,” id. at 16-17, and when their “operations . . . pose risks of severe human rights impacts” to “communicate this externally” by “report[ing] formally on how they address [the impacts],” id. at 23-24.
Even the one-of-its-kind California Transparency in Supply Chain Act,
Having affirmed the dismissal of the Chapter 93A claims for Tomasella‘s failure to plausibly state a claim for relief, we need not address at this juncture whether she has pleaded a cognizable injury per section 9 of Chapter 93A or whether the disclosures she seeks would violate Defendants’ First Amendment rights.
Even if Tomasella could pursue her unjust enrichment claims, we doubt she would succeed, for as we have already determined, the allegedly unjust conduct upon which her theory rests is neither deceptive nor unfair.