Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Case Number: 4:22-CV-01367
Judge: Matthew T. Schelp
Court: United States District Court for the Eastern District of Missouri (St. Louis County)
Defendant's Attorney: Charles W. Hatfield and Regina LaMonica
Description: St. Louis, Missouri consumer fraud lawyer represented Plaintiff who sued Defendant on violation of the Missouri Merchandising Practices Act along with other Missouri statutory and common law claims.
Defendant manufactures, packages, distributes, and sells organic Tropical Treat Bunny Fruit Snacks (the “fruit snacks”). Defendant packages and sells them in an opaque, “heavy cardboard” box with a height of 7 inches, a length of 4.5 inches, and a width of 1.5 inches. Doc.  ¶ 13. Within the box, the fruit snacks are packaged individually in five separate pouches.
Plaintiff alleges that the five pouches within the box leave about sixty percent (60%) of the box as empty space, or nonfunctional slack fill, as Plaintiff calls it. Id. ¶¶ 9, 38. He further alleges that, if one removed all the fruit snacks from the five individual pouches and then put the loose fruit snacks back in the box, almost seventy-nine percent (79%) of the box would be empty space. Id. ¶ 19.
But the box makes no secret of its contents. The front and back of the box state plainly in a clear and conspicuous font that it contains “5 - 0.8 OZ (23g) POUCHES.” Id. at 3; accord Doc. [12-1]. Similarly, both the front and back of the box state that its contents have a “NET WT” of “4 OZ (115g).” Doc.  at 3; accord Doc. [12-1]. One of the side panels of the box also contains the familiar “Nutrition Facts” label that plainly states there are “5 servings per container” and that the “Serving size” is “1 Pouch (23g).” Doc. [12-1]; see also 21 C.F.R. § 101.9(d)(3).
Plaintiff, Joshua Bell, purchased the fruit snacks at a Walmart Supercenter in Bridgeton, Missouri between October 22, 2022, and October 25, 2022. Doc.  ¶ 63. After he purchased the fruit snacks and opened the box, he alleges that, to his “shock and disappointment,” the box was “less than half-full.” Id. ¶ 11. He alleges that he did not “understand or expect” that the information on the box about its “net weight or serving disclosures” would “translate to a quantity of fruit snack meaningfully different from [his] expectation of a quantity [that] would fill up the box,” though he does not quantify that expectation. Id. ¶ 10. The “packaging size was a material factor,” he says, in his decision to purchase the fruit snacks, id. ¶ 50, and he “expected to receive more” due to the “size and/or packaging,” id. ¶ 51. The Plaintiff claims he “would not have bought,” or would have “paid less” for, the fruit snacks had he “known the truth.” Id. ¶ 56.
As a result, and only days after his purchase, Plaintiff filed this action against Defendant alleging a violation of the MMPA. Id. ¶¶ 81-87. In addition, Plaintiff brought claims for a breach of express warranty, the implied warranty of merchantability, and the Magnuson-Moss Warranty Act, along with claims for negligent misrepresentation, fraud, and unjust enrichment. Id. ¶¶ 88-116. Plaintiff also seeks to bring his claims on behalf of two putative classes, the first including persons from just Missouri, and the second including persons from Missouri and several other states and Washington D.C. Id. ¶¶ 73, 88; see also supra n.1.
* * *
To establish a violation of the Missouri Merchandising Practices Act (MMPA), Missouri law long has required a plaintiff to establish that he (1) purchased merchandise from the defendant; (2) for personal, family, or household purposes; and that he (3) suffered an ascertainable loss of money or property; (4) as a result of an act declared unlawful under the Merchandising Practices Act. Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 773 (Mo. banc 2007)); accord Schulte v. Conopco, Inc., 997 F.3d 823, 825-26 (8th Cir. 2021).
Bell v. Annie's, Inc. (E.D. Mo. 2023)
Outcome: Defendant's motion to dismissed granted.