BROOKLYN, N.Y. (Legal Newsline) – A federal judge has thrown out a lawsuit against Hershey that claimed customers expecting white chocolate in white Kit Kats are being misled – becoming at least the second court to recently cite the dictionary while rejecting the creative claims of class action lawyers.
Judge Kiyo Matsumoto, of New York’s Eastern District, on July 27 dismissed a proposed class action against Hershey with prejudice, writing that any effort by plaintiff Eva Rivas and her attorneys to amend their claims would be futile.
Hershey never claimed white Kit Kats are made with the amount of cocoa that defines what is white chocolate. Instead, the package only claims they are “white.”
Plaintiffs lawyers claimed customers were misled because the products are placed next to chocolate bars in store displays.
Matsumoto turned to the Merriam-Webster dictionary to point out white is “the color of new snow or milk.”
“There is no dispute that the Kit Kat White is, as the modifying adjective suggests, white in color,” Matsumoto wrote.
“Plaintiff’s complaint alleges no plausible facts that the presence of the word ‘white’ on the package of Kit Kat White bars gives rise to a plausible claim that consumers would be misled into believing that chocolate was an ingredient.”
In March, the U.S. Court of Appeals for the Second Circuit threw out a case against Dunkin’ Donuts over an Angus steak product. The beef was ground, and plaintiffs lawyers claimed customers expect steak products to be one solid piece of meat.
But steak is also defined as “ground beef prepared for cooking or for serving in the manner of a steak,” the Second Circuit said in citing the dictionary. Examples include chopped steak, hamburger steak and Salisbury steak.
Matsumoto’s white ruling follows the reasoning of other judges tasked with these cases. Ghirardelli and Nestle won dismissal in two Northern California cases over chocolate chips and white chips.
Matsumoto also found that Rivas couldn’t prove she was harmed enough by the packaging to meet a $75,000 threshold for his court to have jurisdiction. She only had a claim under one New York law remaining at the end, and Matsumoto said it was implausible that Rivas had purchased 38,000 Kit Kats.
Rivas would not be able to amend her lawsuit to add additional misleading advertising claims because there was no misleading advertising, the decision says.
“The gravamen of Plaintiff’s complaint is that the Kit Kat White is ‘intended to be viewed and understood as white chocolate, on the labels, point-of-sale marketing, retailers’ display ads and promotion, television and radio ads and websites of third-parties,’” the decision says.
“Crucially, there is no statement anywhere on Kit Kat White’s packaging, or in any Hershey advertisement cited by Plaintiff, that describes the product as containing white chocolate.”
The plaintiff's lawyer was Spencer Sheehan of Sheehan & Associates, which is best known for the dozens of lawsuits it has filed over vanilla flavoring in milk, ice cream and other products.