A federal court in California has dismissed all but one claim in a putative consumer-fraud class action against The Hershey Co., finding that, based on his deposition, the plaintiff relied only on the label claims for antioxidants in making his purchasing decisions. Khasin v. The Hershey Co., No. 12-1862 (U.S. Dist. Ct., N.D. Cal., San Jose Div., order entered May 5, 2014). Information about a prior court ruling that dismissed other claims appears in Issue 463 of this Update.
The court granted the company’s motion for summary judgment as to claims made on its Website or in off-label advertising and as to “any claims based on alleged misrepresentations or omissions regarding vanillin, PGPR, serving size and alkalized cocoa powder.” The court also granted summary judgment as to claims alleging a failure to make disclaimers on the company’s mint products, i.e., that they should not be substituted as an entrée, lunch or meal and that they are not a low-calorie product.
While the plaintiff argued that the court could not rule on a dispositive motion—here a motion for summary judgment—before class certification, the court noted that (i) “[w]hen early resolution of a motion for summary judgment is likely to protect both the parties and the court from needless and costly litigation, it is reasonable to consider such a motion before class certification”; and (ii) “when a defendant moves for summary judgment before the class is certified or notice is sent, the defendant waives the right to have notice circulated to the class and the court’s decision binds only the named plaintiffs. . . . Putative class members remain entirely free to file suit against Defendant.”