The proposed class action lawsuit detailed on this page has been dismissed with prejudice.
In a July 27 memorandum and order, U.S. District Judge Kiyo A. Matsumoto tossed the case given the court lacked jurisdiction over the lawsuit’s subject matter. Though the initial version of the suit centered on seven causes of action, the plaintiff agreed in November 2019 to dismiss the vast majority of the suit and proceed with only individual claims under New York’s General Business Law.
Given that only New York state law claims survived since the plaintiff’s initial filing, the court’s jurisdiction over the suit came down to the locational diversity of the parties involved in the case, with federal rules requiring plaintiffs and defendants to be “citizens of different states” and the controversy at issue to exceed $75,000, Judge Matsumoto wrote.
While the plaintiff is a New York resident and Hershey’s principal place of business is Pennsylvania, the amount in controversy fell far short of $75,000, the judge said. Judge Matsumoto wrote that based on the plaintiff’s math, the consumer would have had to buy a mountainous number of Kit Kat White bars in order to meet the damages threshold.
“Plaintiff alleges that Kit Kat White bars sold at a premium of $1.99 per 1.5 ounce candy bar,” the dismissal order reads. “Thus, accepting as true Plaintiff’s allegation that she overpaid by $1.99 each time she purchased a Kit Kat White, she would need to have purchased 37,689 Kit Kat White bars in order to accumulate $75,000 in damages.”
The Hershey Company is the defendant in a proposed class action filed by a consumer who claims “white chocolate” Kit-Kats are not made with real white chocolate because cocoa butter (cacao fat) is absent from the product’s ingredients list.
Filed in New York, the suit alleges Hershey has “taken affirmative steps for consumers to believe the Products contain white chocolate and has intentionally failed to correct the misimpressions.” As the case tells it, given consumers’ appreciation for white chocolate, Hershey is among a number of companies that fraudulently attempt to pass off as real white chocolate “white-colored confections” that lack cacao fat in sufficient enough quantities to be considered the real deal.
According to the lawsuit, 20 percent of cacao fat is the minimum amount allowable for white chocolate to be legitimate, separating it from a mere confectionary or candy. The complaint says that while Hershey’s Kit-Kats did in fact contain cacao fat and were real white chocolate many years ago, this is no longer the case. Hershey, the suit claims, has chosen not to correct the apparent misrepresentations.
“Had Plaintiff and Class members known Defendant’s Product did not contain real white chocolate, understood as containing a significant amount of cacao fat, they would not have bought the Product or would have paid less for it,” the lawsuit reads.