United States Court of Appeals 

For the First Circuit 

No. 18–2055 

KATHY DUMONT, 

individually and on behalf of all others similarly situated, 

Plaintiff, Appellant, 

v. 

REILY FOODS COMPANY; NEW ENGLAND COFFEE COMPANY, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Rya W. Zobel, U.S. District Judge] 

Before 

Torruella, Lynch, and Kayatta, 

Circuit Judges. 

John T. Longo and Citadel Consumer Litigation, PC on brief 

for appellant. 

Timothy H. Madden, Donnelly, Conroy & Gelhaar, LLP, Mark A. 

Cunningham, Thomas A. Casey, Jr., John R. Guenard, and Jones Walker 

LLP, on brief for appellees. 

August 8, 2019 
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KAYATTA, Circuit Judge. Defendant New England Coffee 

Company, operating as a subsidiary of Reily Foods Company,1 sells 

a "Hazelnut Crème" coffee. Kathy Dumont contends that she 

purchased the coffee because she thought that a coffee styled 

"Hazelnut Crème" contained some hazelnut. After learning that the 

"Hazelnut Crème" coffee contained no hazelnut at all, Dumont 

brought this putative class action challenging the coffee's 

labeling as a violation of Massachusetts' consumer protection 

laws. The district court dismissed the case for failure to meet 

the heightened pleading standard of Federal Rule of Civil 

Procedure 9(b). For the following reasons, we reverse. 

I. 

We set out the facts as alleged in the complaint, but do 

not credit "unsupported conclusions or assertions." U.S. ex rel. 

Gagne v. City of Worcester, 565 F.3d 40, 42 (1st Cir. 2009). At 

all times relevant to this case, the front label of the package 

containing the Hazelnut Crème coffee described the coffee as 

follows: "freshly ground," "100% Arabica Coffee," "Hazelnut 

Crème," "Medium Bodied," and "Rich, Nutty Flavor." The ingredients 

label on the back of the package provided the following list of 

 1 The defendants' brief confusingly claims both that Reily 

Foods is a successor to New England Coffee Company and that New 

England Coffee Company is Reily Foods' subsidiary. Which 

description is correct makes no difference to this appeal. 
- 3 - 

ingredients: "100% Arabica Coffee Naturally and Artificially 

Flavored." There is no image of a hazelnut anywhere on the bag.2 

Kathy Dumont purchased in Massachusetts at least one 

package of the Hazelnut Crème coffee labeled as described above. 

Dumont alleges that she would not have purchased the coffee had 

she known that it did not contain some hazelnut. 

Suing individually and on behalf of a putative 

nationwide class of allegedly similarly situated consumers, Dumont 

claimed that the packaging was (1) an unfair and deceptive practice 

under Massachusetts General Laws chapter 93A and (2) untrue and 

misleading advertising under Massachusetts General Laws 

chapter 266, section 91. In the alternative, Dumont claimed 

unjust enrichment. The district court dismissed Dumont's 

complaint without leave to amend. Citing Federal Rule of Civil 

Procedure 9(b), the court held that "the complaint offer[ed] 

insufficient detail regarding the circumstances of plaintiff's 

purchase" and that it therefore "fail[ed] to pass muster under the 

relevant pleading standard." Dumont v. Reily Foods Co., No. CV 

18-10907-RWZ, 2018 WL 4571656, at *1 (D. Mass. Sept. 24, 2018) 

(record citation omitted). 

 2 Remarkably, neither party furnished us with a picture of 

the label large enough to replicate in a legible form for the 

reader. C.f., e.g., Kaufman v. CVS Caremark Corp., 836 F.3d 88, 

90 (1st Cir. 2016) (containing the image of an allegedly deceptive 

product label). 
- 4 - 

Dumont then appealed to this court. Though her Notice 

of Appeal covers the entire judgment of dismissal, her brief makes 

no argument regarding the dismissal of her claim under 

Massachusetts General Laws chapter 266, section 91, or her 

alternative claim for unjust enrichment. Any such argument is 

therefore waived. See Sparkle Hill, Inc. v. Interstate Mat Corp., 

788 F.3d 25, 29 (1st Cir. 2015). So, we address only the dismissal 

of her claim under Massachusetts General Law Chapter 93A, § 2(a). 

II.

A.

We turn first to Dumont's argument that the district 

court erred in its conclusion that her complaint provided 

insufficiently particularized facts to satisfy Rule 9(b). We 

review de novo the dismissal of a complaint for failure to comply 

with Rule 9(b). U.S. ex rel. Ge v. Takeda Pharm. Co., 737 F.3d 

116, 123 (1st Cir. 2013). 

Rule 9(b) provides that, "[i]n alleging fraud or 

mistake, a party must state with particularity the circumstances 

constituting fraud or mistake." We have explained that "[t]he 

circumstances to be stated with particularity under Rule 9(b) 

generally consist of 'the who, what, where, and when of the 

allegedly [misleading] representation.'" Kaufman v. CVS Caremark 

Corp., 836 F.3d 88, 91 (1st Cir. 2016) (quoting Alt. Sys. Concepts, 

Inc. v. Synopsys, Inc., 374 F.3d 23, 29 (1st Cir. 2004)) 
- 5 - 

(alteration in original). The district court concluded that 

Dumont's complaint failed this test: 

Beyond the allegation that "Plaintiff 

purchased [New England Coffee Company's] 

Hazelnut Crème Coffee" and the conclusory 

assertion that she "reasonably believed that 

the coffee contained . . . hazelnut," the 

complaint offers insufficient detail 

regarding the circumstances of the plaintiff's 

purchase. Without more, her complaint fails 

to pass muster under [Rule 9(b)]. 

Dumont, 2018 WL 4571656, at *1 (record citation omitted). Dumont 

presumes that Rule 9(b) applies to the pleading of her chapter 93A 

claim, so we shall too. C.f. Mulder v. Kohl's Dep't Stores, Inc., 

865 F.3d 17, 21 (1st Cir. 2017)(observing that the Rule 9(b) 

heightened pleading standard applies to claims under chapter 93A 

that involve fraud). She contends that her pleading provided 

sufficient particularity to satisfy Rule 9(b). 

This court's decision in Kaufman v. CVS Caremark 

Corporation favors Dumont. 836 F.3d at 90–91. In that case, a 

consumer claimed that a CVS-brand dietary supplement labeled as 

promoting "heart health" was deceptive because no scientifically 

valid studies supported the "heart health" statement. Id. at 90. 

Concluding that the complaint satisfied the Rule 9(b) heightened 

pleading standard, this court observed that "CVS is the 'who'; the 

heart health statements are the 'what'; the label is the 'where'; 

and the occasion on which Kaufman purchased the product is the 

'when.'" Id. at 91. It follows here that Reily Foods and New 
- 6 - 

England Coffee Company are the "who"; the "Hazelnut Crème" 

statement is the "what"; the label is the "where"; and the occasion 

on which Dumont purchased the coffee is the "when." The defendants 

barely acknowledge the import of our holding in Kaufman, wanly 

suggesting in a footnote that it is distinguishable because the 

label in that case had less information. But that distinction 

suggests that the complaint in this case had more, not less, 

particularity than the complaint in in Kaufman. Moreover, such a 

difference would go to the merits of the claim, not the Rule 9(b) 

question. 

In any event, even were we to ignore Kaufman, we would 

find no merit in defendants' contention that the complaint failed 

to satisfy Rule 9(b) by neglecting to include further details about 

Dumont's reliance on the allegedly misleading statement, including 

the date and location of her purchase. As for the date of the 

purchase, the complaint makes clear that the purchase occurred 

when the defendants were selling the "Hazelnut Crème" coffee in 

the package pictured in the complaint. The defendants offer no 

reason why further particularity on the date is relevant. So, 

too, the other "circumstances" the defendants say are lacking 

(e.g., where in Massachusetts Dumont made the purchase and whether 

"similar" products were present at the point of sale) strike us as 

either irrelevant or the potential subjects of discovery. 
- 7 - 

The core purposes of Rule 9(b) are "to place the 

defendants on notice and enable them to prepare meaningful 

responses," "to preclude the use of a groundless fraud claim as 

pretext for discovering a wrong," and "to safeguard defendants 

from frivolous charges [that] might damage their reputation." New 

England Data Servs., Inc. v. Becher, 829 F.2d 286, 289 (1st Cir. 

1987). The defendants do not suggest that they required any 

further particularity to respond to the complaint. This is not a 

case, after all, in which the defendant can claim that it never 

made the allegedly deceptive statement. Nor is this a case in 

which liability turns on more precise information concerning the 

"when" or the "where." Rather, it turns on an assessment of the 

very particularly identified "what" in the product label. We 

conclude, therefore, that the complaint satisfied the Rule 9(b) 

particularity standard. 

B.

Citing Federal Rule of Civil Procedure 12(b)(6), the 

defendants urge us to affirm on the alternative basis that the 

complaint failed to state a claim for a violation of chapter 93A. 

Our task is to "first disregard conclusory allegations that merely 

parrot the relevant legal standard" and "then inquire whether the 

remaining factual allegations state a plausible, rather than 

merely possible, assertion of defendants' liability." Young v. 

Wells Fargo Bank, N.A., 717 F.3d 224, 231 (1st Cir. 2013). As a 
- 8 - 

federal court sitting in diversity, we look to state law, as 

articulated by the Supreme Judicial Court of Massachusetts, for 

the substantive rules of decision. Shaulis v. Nordstrom, Inc., 

865 F.3d 1, 6 (1st Cir. 2017). 

Chapter 93A prohibits "[u]nfair methods of competition 

and unfair or deceptive acts or practices in the conduct of any 

trade or commerce." Mass. Gen. Laws ch. 93A, § 2(a). On appeal, 

Dumont argues solely that the labeling was "deceptive," not that 

it was "unfair." "[A]n advertisement is deceptive when it has the 

capacity to mislead consumers, acting reasonably under the 

circumstances, to act differently from the way they otherwise would 

have acted (i.e., to entice a reasonable consumer to purchase the 

product)." Aspinall v. Philip Morris Cos., 813 N.E.2d 476, 488 

(Mass. 2004). So, the question under Massachusetts law is whether 

the label had the capacity to mislead consumers, acting reasonably 

under the circumstances, to believe that the coffee contained some 

hazelnut. 

That question is one of fact. See id. at 486 (noting 

that "whether conduct is deceptive is initially a question of 

fact"). As with any question of fact, our role is limited to 

defining the outer boundaries of its answer -- i.e., the point at 

which a juror could reasonably find only one way. See Chervin v. 

Travelers Ins. Co., 858 N.E.2d 746, 759 (Mass. 2006) ("Although 

whether a particular set of acts, in their factual setting, is 
- 9 - 

unfair or deceptive is a question of fact, the boundaries of what 

may qualify for consideration as a [chapter] 93A violation is a 

question of law." (quoting Schwanbeck v. Federal-Mogul Corp., 578 

N.E.2d 789, 803-04 (Mass. App. Ct. 1991) (internal citation 

omitted)); Full Spectrum Software, Inc. v. Forte Automation Sys., 

Inc., 858 F.3d 666, 671–72 (1st Cir. 2017) (same). 

The procedural posture of this case further limits our 

role. At the pleading stage, "we accept as true all well-pleaded 

facts set out in the complaint and indulge all reasonable 

inferences in favor of the pleader." S.E.C. v. Tambone, 597 F.3d 

436, 441 (1st Cir. 2010). So, we need only determine whether the 

complaint's allegations make it plausible that, on a full factual 

record, a factfinder could reasonably regard the label as having 

the capacity to mislead. 

One might presume that a reasonable consumer who, like 

Dumont, cared whether the coffee she intended to purchase contained 

real hazelnut would check the list of ingredients. On the other 

hand, perhaps a reasonable consumer would find in the product name 

sufficient assurance so as to see no need to search the fine print 

on the back of the package, much like one might easily buy a 

hazelnut cake without studying the ingredients list to confirm 

that the cake actually contains some hazelnut. And the complaint 

makes clear that convention in the industry -- presumably in large 

part because of federal labeling requirements -- is to state on 
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the front of a package containing a product that is nut flavored 

(but that contains no nuts) that the product is naturally or 

artificially flavored. Indeed, another Reily Foods subsidiary 

that sells a "hazelnut" coffee includes a "flavoring" disclosure 

on the front of its package. 

Our dissenting colleague envisions a more erudite reader 

of labels, tipped off by the accent grave on the word "crème," and 

armed perhaps with several dictionaries, a bit like a federal judge 

reading a statute. We are less confident that "common parlance" 

would exhibit such linguistic precision. Indeed, we confess that 

one of us thought "crème" was a fancy word for cream, with Hazelnut 

Crème being akin, for example, to hazelnut butter, a product often 

found in another aisle of the supermarket. 

Our dissenting colleague also points out that the 

package says "Freshly Ground 100% Arabica Coffee." The proposition 

-- by no means unreasonable -- is that a consumer could read this 

statement in isolation as saying that the package contains only 

coffee (and Arabica coffee at that), with no nuts (or anything 

else). But a consumer might instead read this statement as saying 

that 100% of the coffee in the package is of the Arabica variety. 

After all, if there is nothing in the package other than coffee, 

what does Hazelnut Crème mean to say? Indeed, even Reily Foods 

concedes that the package also contains some flavoring, so it 
- 11 - 

cannot be the case that "100% Arabica Coffee" means the package 

contains coffee alone. 

None of this is to say that our dissenting colleague's 

reading is by any means unreasonable. To the contrary, we 

ourselves would likely land upon that reading were we in the 

grocery aisle with some time to peruse the package. That being 

said, we think it best that six jurors, rather than three judges, 

decide on a full record whether the challenged label "has the 

capacity to mislead" reasonably acting, hazelnut-loving consumers. 

Aspinall, 813 N.E.2d at 488. And we see no unfair cost in 

recognizing a state-law claim that -- as discussed in the following 

subsection -- can only be lodged against manufacturers that fail 

to adhere to the rules and safe harbors that have been created by 

the FDA and that help form consumers' expectations in reading 

labels. Therefore, and while it is certainly a close question for 

the reasons well marshalled by the thoughtful dissent, we hold 

that Dumont's complaint states a plausible claim for relief. 

C. 

The defendants propose one additional alternative ground 

for affirming the dismissal of Dumont's complaint: Even if the 

complaint alleges a claim under chapter 93A, they argue, that claim 

is impliedly preempted by the Federal Food, Drug, and Cosmetic Act 

[FDCA], 21 U.S.C. § 301 et. seq. 
- 12 - 

Neither the Supreme Court nor this circuit has addressed 

the standard governing preemption of food-labeling suits brought 

under state law. But the parties' common ground on this issue 

eliminates our need to venture fully into this thorny area of the 

law. Dumont concedes that a Massachusetts law that imposed a 

labeling requirement beyond that imposed by federal law would be 

expressly preempted. Hence, the complaint alleges that the 

defendants' label violates federal labeling requirements, see 21 

C.F.R. § 101.22(i). The defendants do not contest this assertion. 

Nor do they contest that they easily could have complied with both 

federal labeling law and the state requirement that would be 

imposed by Dumont's proposed application of chapter 93A. 

The defendants instead contend only that the application 

of chapter 93A as proposed by Dumont is impliedly preempted as an 

attempt to use a state law to enforce federal requirements, thereby 

potentially interfering with federal enforcement of the foodlabeling provisions of the FDCA. In support of this argument, the 

defendants point to the Supreme Court's opinion in Buckman Company 

v. Plaintiffs' Legal Committee, 531 U.S. 341 (2001). In that case, 

patients who suffered injuries from implantation of orthopedic 

bone screws sought damages under state tort law on the theory that 

the defendant made fraudulent representations to the Food and Drug 

Administration (FDA) in the course of obtaining approval to market 

the screws. Id. at 343. The Court decided that the claims 
- 13 - 

conflicted with -- and were therefore impliedly preempted by -- 

the FDA's statutory enforcement scheme. Id. at 348 & n.2. "Statelaw fraud-on-the-FDA claims," the Court concluded, "inevitably 

conflict with the FDA's responsibility to police fraud 

consistently with the Administration's judgment and objectives." 

Id. at 350. To avoid implied preemption, the plaintiffs' claims 

would have had to "rely[] on traditional state tort law which had 

predated the federal enactments in question[]." Id. at 353. 

Dumont agrees with the defendants that this reasoning in 

Buckman applies by analogy to her claim implicating federal foodlabeling requirements. Dumont argues, therefore, that chapter 93A 

predates the applicable federal requirements, and that she is not 

seeking to impose state-tort liability because the label violates 

the FDCA, but rather because it independently violates 

chapter 93A. Defendants, in turn, do not argue that chapter 93A 

is not a traditional tort-like law that predates the FDCA. 

The defendants also concede that a state-law foodlabeling claim can avoid preemption by "provid[ing] detailed 

allegations that would support a finding that consumers would be 

plausibly deceived by the packaging independently of any packaging 

standards that may be established under FDCA regulations." Indeed, 

they point us to Eighth and Ninth Circuit cases describing, in the 

medical device context, the "narrow gap through which a plaintiff's 

state-law claim must fit if it is to escape express or implied 
- 14 - 

preemption": "The plaintiff must be suing for conduct that 

violates the FDCA (or else his claim is expressly preempted by 

[the FDCA's medical device preemption provision, 21 U.S.C. 

§ 360k], but the plaintiff must not be suing because the conduct 

violates the FDCA (such a claim would be impliedly preempted under 

Buckman)." In re Medtronic, Inc., Sprint Fidelis Leads Prod. Liab. 

Litig., 623 F.3d 1200, 1204 (8th Cir. 2010) (quoting Riley v. 

Cordis Corp., 625 F. Supp. 2d 769, 777 (D. Minn. 2009)); see also 

Perez v. Nidek Co., 711 F.3d 1109, 1120 (9th Cir. 2013) (same). 

Dumont does not object to the defendants' application of this 

"narrow gap" test in the food-labeling context, but argues instead 

that her claim fits through the "narrow gap." 

Based on the parties' foregoing positions, we therefore 

presume -- but do not hold -- that Dumont's complaint is preempted 

unless the conduct it pleads: (1) violates FDCA labeling 

requirements and (2) would also violate chapter 93A even if the 

FDCA did not exist. With that test in mind, we turn back to the 

complaint. 

We agree with the defendants that the complaint can be 

read in part as seeking to hold the defendants liable because they 

violated the federal false-labeling standards codified at 21 

C.F.R. § 101.22, an implementing regulation promulgated under the 

FDCA. The complaint goes so far as to argue that "[s]uch 

mislabeling[] and misbranding [under federal law] constitutes 
- 15 - 

unfair and deceptive conduct in violation of [chapter] 93A, § 2." 

And Dumont offers no argument for how the complaint, so construed, 

survives an implied preemption defense. For that reason, any claim 

premised on the violation of federal law will remain dismissed, 

albeit on the alternative grounds of preemption and waiver. See 

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues 

adverted to in a perfunctory manner, unaccompanied by some effort 

at developed argumentation, are deemed waived."). 

Dumont contends, though, that the complaint also "seeks 

to vindicate the separate and independent right to be free from 

deceptive and unfair conduct." And the complaint can indeed be 

read to allege liability not because the label constitutes 

misbranding under federal law, but rather because the label "has 

the capacity . . . to deceive or mislead reasonable consumers," in 

violation of chapter 93A. Under that reading of the complaint, 

the allegation that the label violated the FDCA serves simply to 

counter a claim of express preemption. 

It is also true, as we observed above, that the FDCA 

requirements effectively established custom and practice in the 

industry. Accordingly, it may be that a consumer's experience 

with that custom and practice primes her to infer from the absence 

of a flavoring disclosure that the product gets its characterizing 

nutty flavor from the real nut. But we find nothing in Buckman to 

suggest that such an indirect relationship between a state-law 
- 16 - 

claim and federal law warrants preemption, at least as long as the 

factfinder avoids equating violation of the federal law with 

deception under the state law. Suppose, for example, that a 

pharmacist told a patient that a product was FDA approved, but it 

was not. We doubt that the consumer's fraud claim under state 

common law would be preempted merely because the consumer's 

reliance evidence was buttressed by the background knowledge that 

FDA approval connotes efficacy and safety. 

We conclude, in sum, that under the parties' chosen 

standard, Dumont's claim under chapter 93A is not impliedly 

preempted by federal law. Of course, the FDCA exists, and it will 

limit the scope of Dumont's argument. Its dual preemptive force 

will restrict the factfinder to determining whether conduct that 

does violate the federal regulations is also deceptive under 

Massachusetts law by virtue of its nature rather than its federal 

illegality. Nevertheless, thus constrained, the claim as 

plausibly construed survives the defendants' implied preemption 

argument.3 

III.

For the foregoing reasons, we reverse the district 

court's dismissal of the complaint. 

 3 Any other elements Dumont must satisfy to recover under 

Chapter 93A are not at issue in this appeal or decided by this 

opinion. 
- 17 - 

-- Dissenting Opinion Follows -- 
- 18 - 

LYNCH, Circuit Judge, dissenting. I disagree with my 

colleagues as to whether Kathy Dumont's complaint states a claim 

for a violation of chapter 93A, and I think the Massachusetts 

courts will as well. See Fed. R. Civ. P. 12(b)(6). In my view, 

the complaint fails to state a claim and so must be dismissed. 

The majority opinion ably lays out the procedural 

history and facts of this case, which I do not repeat except as 

necessary. 

I. 

A district court's dismissal of a complaint under Rule 

12(b)(6) is reviewed de novo. S.E.C. v. Tambone, 597 F.3d 436, 

441 (1st Cir. 2010) (en banc). A complaint survives dismissal 

under Rule 12(b)(6) if it has "enough facts to state a claim to 

relief that is plausible on its face," accepting as true the 

plaintiff's factual allegations and drawing reasonable inferences 

in the plaintiff's favor. Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007). "If the factual allegations in the complaint are 

too meager, vague, or conclusory to remove the possibility of 

relief from the realm of mere conjecture, the complaint is open to 

dismissal." Tambone, 597 F.3d at 442. This court may affirm a 

Rule 12(b)(6) dismissal "on any basis apparent in the record." 

Debnam v. FedEx Home Delivery, 766 F.3d 93, 96 (1st Cir. 2014) 

(quoting Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 237 n.11 

(1st Cir. 2013)). 
- 19 - 

Dumont's claim is that she purchased the coffee at issue 

because she thought it contained hazelnut, and that she was 

deceived by the label. In Massachusetts, chapter 93A bars 

"[u]nfair methods of competition and unfair or deceptive acts or 

practices in the conduct of any trade or commerce." Mass. Gen. 

Laws ch. 93A, § 2(a). Dumont acknowledges that, to plead her claim 

under chapter 93A, she must show "(1) a deceptive act or practice 

on the part of the seller; (2) an injury or loss suffered by the 

consumer; and (3) a causal connection between the seller's 

deceptive act or practice and the consumer's injury." Casavant v. 

Norwegian Cruise Line, Ltd., 919 N.E.2d 165, 169 (Mass. App. Ct. 

2009), aff'd, 952 N.E.2d 908 (Mass. 2011). In my view, Dumont has 

not pleaded that there was a deceptive act or practice. The case 

should end here. 

In this diversity jurisdiction case, we apply 

Massachusetts law. E.g. Shaulis v. Nordstrom, Inc., 865 F.3d 1, 

6 (1st Cir. 2017). Under Massachusetts law, "an advertisement is 

deceptive when it has the capacity to mislead consumers, acting 

reasonably under the circumstances, to act differently from the 

way they otherwise would have acted (i.e., to entice a reasonable 

consumer to purchase the product)." Aspinall v. Philip Morris 

Cos., 813 N.E.2d 476, 488 (Mass. 2004) (emphasis added); see Edlow 

v. RBW, LLC, 688 F.3d 26, 39 (1st Cir. 2012) (applying this 

standard from Aspinall). So, this standard "depends on the likely 
- 20 - 

reaction of a reasonable consumer rather than an ignoramus." 

Aspinall, 813 N.E.2d at 487. 

II. 

Dumont cannot satisfy Massachusetts's reasonable 

consumer standard because her complaint has not demonstrated that 

the label would mislead a reasonable consumer under the totality 

of the circumstances here. I disagree with the majority that this 

is a "close" question. In my view, a reasonable consumer plainly 

could not view the phrase "Hazelnut Crème" as announcing the 

presence of actual hazelnut in a bag of coffee which also proclaims 

it is "100% Arabica Coffee." Indeed, a reasonable consumer, acting 

rationally, could not conclude that the label was deceptive. See 

Chervin v. Travelers Ins. Co., 858 N.E.2d 746, 759 (Mass. 2006) 

("[T]he boundaries of what may qualify for consideration as a 

[chapter] 93A violation is a question of law." (internal citation 

omitted) (quoting Schwanbeck v. Federal-Mogul Corp., 578 N.E.2d 

789, 803-04 (Mass. App. Ct. 1991))). 

As a preliminary matter, the front label plainly states 

that the package contains "100% Arabica Coffee." It does not say 

it contains anything other than coffee. The package here did not 

contain any misstatement of its contents, did not feature any 

pictures or illustrations of hazelnuts, and did not have any error 

in the ingredient list. There are two points. First, this is not 

a case of erroneous information being provided, but of accurate 
- 21 - 

information, and that is relevant. See Ortiz v. Examworks, Inc., 

26 N.E.3d 165, 174 (Mass. 2015). And second, "100% Arabica Coffee" 

makes it clear only coffee is in the package. 

The phrase "Hazelnut Crème," also on the front of the 

package, does not state a nut or an organic item is in the coffee; 

the phrase is at most a reference to a flavor. "Crème" (including 

the grave accent) is not the same as "cream." Most consumers would 

know there was a difference, and if they did not, they could refer 

to the ingredient list, and they would not conclude a bag of dry, 

ground coffee contained cream. 

A few dictionary definitions are helpful as to what is 

a reasonable consumer's understanding. "Cream" refers, first and 

foremost, to "[t]he oily or butyraceous part of milk, which gathers 

on the top when the milk is left undisturbed; by churning it is 

converted into butter." Cream, Oxford English Dictionary, 

available at https://www.oed.com/view/Entry/44024; see also 

Webster's Third New International Dictionary 534 (1993) (defining 

"cream" first as "the yellowish part of milk containing from 18 to 

about 40 percent butterfat that rises to the surface on standing 

or is separated by centrifugal force"). "Crème" has distinct 

meanings, both in the dictionary and in common parlance: it is 

generally defined as a "cream or cream sauce as used in cookery" 

or "a sweet liqueur," with the latter "usu[ually] used with the 

flavor specified." Webster's Third New International Dictionary 
- 22 - 

534 (1993); see also Crème, Oxford English Dictionary, available 

at https://www.oed.com/view/Entry/44191 (defining "crème" as 

(a) "[a] cream or custard" or (b) "[a] name for various syrupy 

liqueurs"). 

There is also the fact that the term "Hazelnut" was used 

as a modifier for "Crème" on the front of the package. So, a 

reasonable consumer would not think that hazelnuts were present, 

and that is true even if a consumer improbably thought cream was 

present in "100% Arabica Coffee." 

In the context of a package of ground, dry coffee, as in 

this case, the two words, "Hazelnut Crème," together plainly state 

the flavoring of the coffee. They do not state that the coffee 

contains hazelnuts, and the words are not deceptive. Reasonable 

consumers, whether erudite or not, would not think this phrasing 

means that the coffee actually contained hazelnuts. The majority 

draws a mistaken analogy to a "hazelnut cake." But a cake, unlike 

"100% Arabica Coffee," is made up of many ingredients. Most 

consumers would not approach the label for a cake, or for any sort 

of nut butter, the same way they would approach the label of a 

package of ground coffee beans that said "100% Arabica Coffee." 

Possible confusion by some consumers does not render a 

notice unfair or deceptive. See Ortiz, 26 N.E.3d at 174. Even if 

Dumont was confused as to the matter of hazelnuts being in the 

contents, the only reasonable thing would be for her to turn the 
- 23 - 

package to look at the ingredient list. That is, a reasonable 

consumer particularly interested in the presence of actual 

hazelnut (or, for that matter, actual dairy-based cream or crème 

or some form of liqueur)4 in their ground coffee would have looked 

at the list of ingredients on the back of the package. This is 

particularly true for a compound flavor term such as "Hazelnut 

Crème." 

The majority opinion seems to equate the "Hazelnut 

Crème"-flavored coffee here to a straightforward "Hazelnut"-

flavored coffee cited in the complaint (the front label of which 

contained illustrations of hazelnuts) but this equivalence is 

wrong. Put simply, even if the former term was arguably ambiguous, 

 4 Beyond general points drawn from federal labeling 

regulations about the "characterizing flavor" in a food product, 

21 C.F.R. § 101.22(i), the complaint does not explain why Dumont 

apparently did not expect the coffee to contain "Crème" of any 

sort but did expect the coffee to contain the modifying term, 

"Hazelnut." Under the federal regulation, both of these flavors 

could perhaps be seen as "characterizing flavor[s]." Id. ("If the 

label, labeling, or advertising of a food makes any direct or 

indirect representations with respect to the primary recognizable 

flavor(s), . . . such flavor shall be considered the characterizing 

flavor."); see id. § 101.22(i)(3)(iii) (discussing multiple 

characterizing flavors in a product). Or, more likely, "Hazelnut 

Crème" is simply "a blend of flavors with no primary recognizable 

flavor" under the relevant regulation. Id. 

 Also, Dumont's claim is not about whether the flavoring 

in the coffee is natural or artificial, but whether the coffee 

contains actual hazelnuts. (Her complaint says that she purchased 

the package based on her "reasonable belief that the Coffee 

contained Hazelnut," not that it was all-natural.) So, her 

interest in the label is presumably restricted to what it reveals 

about the presence of hazelnuts. 
- 24 - 

the latter was not. "[C]onsumers who interpret ambiguous 

statements in . . . [a] debatable manner do so unreasonably if an 

ingredient label would set them straight." In re: 100% Grated 

Parmesan Cheese Mktg. & Sales Practices Litig., 275 F. Supp. 3d 

910, 922 (N.D. Ill. 2017) (internal citations omitted). The 

correct and complete ingredient label here would have set Dumont 

straight, even if she had some initial confusion.5

Alleged industry labeling conventions also cannot save 

Dumont's chapter 93A complaint. The issue under chapter 93A is 

not whether another packaging choice could have been more precise 

about the ingredients or flavor of the coffee; surely there are 

many such choices, perhaps including a package stating on the front 

that "the product is naturally or artificially flavored." The 

issue before us, instead is whether a reasonable consumer would 

have been misled by the label as it was. The majority's implicit 

argument is that a consumer could have been lulled into a sense of 

security by general industry conventions stemming from the federal 

food labeling requirements. The premise is wrong. Further, I do 

not see any such reliance as being reasonable in this context for 

 5 I recognize that "[o]ne can violate [chapter 93] . . . 

by failing to disclose to a buyer a fact that might have influenced 

the buyer to refrain from the purchase," Greenery Rehab. Grp., 

Inc. v. Antaramian, 628 N.E.2d 1291, 1294 (Mass. App. Ct. 1994), 

but here all of the ingredients were clearly and accurately 

disclosed. There was no failure of disclosure. 
- 25 - 

a compound ground coffee flavor such as "Hazelnut Crème." Dumont's 

complaint fails to state a claim under chapter 93A.6

* * * 

 6 I need not consider the Rule 9(b) pleading standard or 

preemption, because I view Rule 12(b)(6) as dispositive here. 

As to Dumont's argument that her complaint should not 

have been dismissed without leave to amend, this should fail. 

Review is for abuse of discretion. Hamilton v. Partners Healthcare 

Sys., Inc., 879 F.3d 407, 414 (1st Cir. 2018). Under Rule 15(a), 

leave of court to amend a complaint generally should be "freely 

give[n] . . . when justice so requires," Fed R. Civ. P. 15(a)(2), 

but "[t]his does not mean . . . that a trial court must mindlessly 

grant every request for leave to amend," Aponte-Torres v. Univ. of 

P.R., 445 F.3d 50, 58 (1st Cir. 2006). A request usually must be 

made by motion. See Fed. R. Civ. P. 7(b)(1). There was no motion 

made here. Instead, a footnote in Dumont's Objection and 

Memorandum in Opposition to Motion to Dismiss stated in relevant 

part: "To the extent the Court finds any part of Defendan[ts'] 

motion persuasive, Plaintiff respectfully asks for leave to 

amend." 

The district court cannot have abused its discretion, 

because Dumont did not properly seek leave to amend and no 

exceptional circumstances exist to excuse this failure. Her 

cursory, contingent request for leave to amend, not made in a 

motion but in another filing, is not a proper motion for leave to 

amend. See Gray v. Evercore Restructuring L.L.C., 544 F.3d 320, 

327 (1st Cir. 2008) (holding that the statement, "in the event 

that the Court finds that the Amended Complaint fails to state a 

claim, Plaintiff requests leave to replead" in an opposition motion 

"does not constitute a motion to amend a complaint"). This has 

been a consistent First Circuit rule. Fire & Police Pension Ass'n 

of Colo. v. Abiomed, Inc., 778 F.3d 228, 247 (1st Cir. 2015); Wayne 

Inv., Inc. v. Gulf Oil Corp., 739 F.2d 11, 15 (1st Cir. 1984). 

And "allowing plaintiffs to hedge their bets by adding a cursory 

contingent request in an opposition to a motion to dismiss would 

encourage plaintiffs to test the mettle of successive complaints 

and freely amend under Rule 15(a) if their original strategic 

choices prove inadvisable." Fisher v. Kadant, Inc., 589 F.3d 505, 

510 (1st Cir. 2009). 

Dumont was "put on notice of the deficiencies in the 

complaint by the motion to dismiss. If [she] had something 

relevant to add, [she] should have moved to add it then." Abiomed, 

778 F.3d at 247. 
- 26 - 

 The dissent does exactly what judges are supposed to do: 

define the parameters of the law. The Supreme Judicial Court of 

Massachusetts affirms dismissal of chapter 93A claims that do not 

state a claim. See, e.g., Ortiz, 26 N.E.3d at 174. The federal 

courts should do no less. We have done so before. See Edlow, 688 

F.3d at 39. Imposing on food producers the costs of defending 

meritless labeling litigation will have the effect of driving up 

prices for consumers. It is the dissent that is concerned with 

harm to the consumer. 

For the foregoing reasons, I respectfully dissent.