The Northern District of California granted partial summary judgment in favor of The Hershey Company in a putative class action where the plaintiff alleged Hershey’s representations about certain of its products were unlawful and/or misleading. Plaintiff took issue with Hershey’s representations about antioxidants, nutrients, sugar, serving size, among others on its advertisements, packaging and website upon which the named Plaintiff alleged he relied when he purchased Hershey’s products.

Hershey sought summary judgment as to Plaintiff’s claims that were based on representations upon which he did not actually rely. Plaintiff argued that he need not prove actual reliance under California’s Unfair Competition Law, one of Plaintiff’s theories of liability, but also that summary judgment cannot be decided before ruling on class certification, citing the “one-way intervention” rule.

The Court noted that because Hershey, not the Plaintiff, had moved for summary judgment, Hershey was choosing to waive the potential protection afforded by an early resolution on class certification, and found that no prejudice to class members or to Plaintiff would result from a pre-certification summary judgment as putative class members would remain able to sue Hershey.

The Court then granted partial summary judgment in Hershey’s favor because the Plaintiff testified that he had not even viewed Hershey’s website and off-label advertising, and that he did not rely on most of Hershey’s labels. Plaintiff testified that he did not purchase any of Hershey’s products as a result of, or in reliance on deceptive advertising, except for representations regarding antioxidants, which Plaintiff testified were a factor in his decision to purchase certain of the products.

Khasin v. The Hershey Co., Case No. 5:12-CV-01862-EJD (N.D. Cal. May 5, 2014).