Case 1:19-cv-00972-AJN Document 39 Filed 05/29/20 Page 1 of 27
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`5/29/20
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`Steve Hesse, et al.,
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`Plaintiffs,
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`–v–
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`Godiva Chocolatier, Inc., et al.,
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`Defendants.
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`ALISON J. NATHAN, District Judge:
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`19-cv-972 (AJN)
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`OPINION & ORDER
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`This putative class action concerns Godiva Chocolatier’s use of the representation
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`“Belgium 1926” on its chocolate products made and sold in the United States. Plaintiffs allege
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`that this representation led them to purchase Godiva’s chocolates products believing that they
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`were made in Belgium—when they are in fact made in Pennsylvania. Plaintiffs therefore
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`contend that this representation violates New York and California consumer-protection laws,
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`express and implied warranties, and several common-law guarantees. Godiva has now moved to
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`dismiss. For the following reasons, the Court GRANTS the motion in part and DENIES it in
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`part.
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`I.
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`BACKGROUND
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`A. Factual Background
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`For the purposes of a motion to dismiss, the Court takes well-pleaded allegations in
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`Plaintiffs’ Complaint as true and draws all reasonable inferences in Plaintiffs’ favor. See Koch v.
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`Christie’s Intern. PLC, 699 F.3d 141, 145 (2d. Cir. 2012).
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`Godiva, a chocolate manufacturer, places the representation “Belgium 1926”
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`“prominently . . . on the front packaging of all the Godiva chocolates.” Amended Complaint
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`(Compl.), Dkt. No. 12, ¶ 2. Godiva also “extensively utilizes the [Belgium 1926] representation
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`across its entire marketing campaign, such as on its Godiva storefronts, supermarket display
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`stands, and print and social media advertising.” Id. ¶ 3. Plaintiffs include the following example
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`of Godiva’s packaging in their Complaint:
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`41.
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`GODIVA
`Jl/lJlt#l/926
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`Id. ¶ 24. Plaintiffs also include examples of Godiva’s online, storefront, in-store, and social-
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`media advertising, all of which contain the Belgium 1926 representation. Id. ¶ 25. The crux of
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`this case is that despite these representations, Godiva’s chocolates have all been made in
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`Reading, Pennsylvania during the relevant time period. Id. ¶ 27. “None of the Godiva
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`Chocolates are made in Belgium.” Id.
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`Plaintiff Steve Hesse is a citizen of New York, and Plaintiff Adam Buxbaum a citizen of
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`California. Id. ¶¶ 13, 14. Because of the Belgium 1926 representation, they purchased Godiva
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`chocolates believing that they were purchasing chocolate made in and imported from Belgium.
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`Id. ¶¶ 6, 13, 14. They would not have purchased the products, or would not have paid as high a
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`price, had they known the chocolate was made in the United States. Id. ¶ 7. In support of this
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`assertion, Plaintiffs point to tangible and intangible differences in reputation and ingredients
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`between American and Belgian chocolates. Id. ¶¶ 28, 29. For example, they note that “Belgium
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`is widely understood and recognized as producing among the highest quality chocolates in the
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`world.” Id. ¶ 18. And they assert that American chocolate differs in taste from that produced in
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`Belgium, due “to the use of different butters, creams, and alcohol.” Id. ¶ 28. Nonetheless,
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`Plaintiffs “wish to and are likely to continue purchasing the Godiva Chocolates in the future.”
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`Id. ¶ 15. Without a change in Godiva’s labeling, “they will be unable to rely with confidence on
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`Godiva’s representations in the future and will therefore abstain from purchasing the Products.”
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`Id. ¶ 15.
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`B. Procedural Background
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`Plaintiffs filed this action in January 2019. See Dkt. No. 1. In their Amended Complaint,
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`Dkt. No. 12, Plaintiffs aver that they bring this action on behalf of four putative classes: First, a
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`nationwide subclass, defined as “[a]ll persons in the United States who, within the relevant statute
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`of limitations period, purchased any of the Godiva Chocolates.” Compl. ¶ 39. Second, a New York
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`subclass, defined as all such persons who “purchased any of the Godiva Chocolates for personal,
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`family, or household purposes in the state of New York.” Id. Third, a California subclass, defined as
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`all persons who “purchased any of the Godiva chocolates in the state of California.” Id. And fourth,
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`a “California Consumer” subclass, defined as all such persons who “purchased any of the Godiva
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`chocolates for personal, family, or household purposes in the state of California. Id.
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`Plaintiffs assert claims for these respective subclasses under New York and California
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`state laws. They assert the following claims: (1) violation of New York General Business Law
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`(GBL) § 349, (2) violation of New York GBL § 350, (3) breach of express warranty under New
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`York law, (4) breach of implied warranty under New York law, (5) violation of California’s
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`Consumer Legal Remedies Act, (6) violation of California’s Unfair Competition Law, (7)
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`violation of California’s False Advertising Law, (8) breach of express warranty under California
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`law, (9) breach of implied warranty under California law, (10) common-law fraud,
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`(11) intentional misrepresentation, (12) negligent misrepresentation, (13) “Quasi Contract/Unjust
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`Enrichment/Restitution.” Compl. ¶¶ 51–172.
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`In April 2019, Godiva moved to dismiss the Amended Complaint and requested that the
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`Court take judicial notice of certain documents. Dkt. 22–24. Godiva argued that Plaintiffs lack
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`standing for injunctive relief, warranting dismissal in part for lack of subject-matter jurisdiction
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`under Rule 12(b)(1). And Godiva argued that Plaintiffs had failed to state any of their claims,
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`warranting complete dismissal under Rule 12(b)(6). This motion is now before the Court.
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`II.
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`LEGAL STANDARD
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`A Rule 12(b)(1) motion is a threshold challenge to this Court’s subject-matter
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`jurisdiction. Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins.
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`Co. of Am., 511 U.S. 375, 377 (1994). “[A] claim is properly dismissed for lack of subject
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`matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or
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`constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
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`Cir. 2008) (citation omitted). “A plaintiff asserting subject matter jurisdiction has the burden of
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`proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d
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`110, 113 (2d Cir. 2000); see also Whitmore v. Ark, 495 U.S. 149, 154 (1990) (“It is well
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`established . . . that before a federal court can consider the merits of a legal claim, the person
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`seeking to invoke the jurisdiction of the court must establish the requisite standing to sue.”). In
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`deciding a 12(b)(1) motion, “the court must take all facts alleged in the complaint as true and
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`draw all reasonable inferences in favor of plaintiff.” NRDC v. Johnson, 461 F.3d 164, 171 (2d
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`Cir. 2006) (citation omitted). “[U]nder Rule 12(b)(1), [a court is] permitted to rely on non-
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`conclusory, non-hearsay statements outside the pleadings.” M.E.S., Inc. v. Snell, 712 F.3d 666,
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`671 (2d Cir. 2013).
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`For a complaint to survive a motion to dismiss under Rule 12(b)(6), it must include
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`“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
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`550 U.S. 544, 570 (2007). “Threadbare recitals of the elements of a cause of action, supported
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`by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`Therefore, a claim is properly dismissed at this stage if the plaintiff fails to plead “factual content
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`that allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Id. at 678.
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`III.
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`JUDICIAL NOTICE
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`The Court begins with Godiva’s request for the Court take judicial notice of four
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`documents: (1) the Patent and Trademark Office’s registrations of Godiva’s Belgium 1926
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`trademark, (2) a page on Godiva’s website explaining the company’s Belgian heritage, (3) a page
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`on Godiva’s website explaining the company’s history, and (4) a CBS News article about
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`Godiva’s factory in Reading, Pennsylvania. See Dkt. Nos. 24, 36.
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`At the motion-to-dismiss stage, the Court’s review is limited to the facts as-pleaded by
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`the plaintiff, documents appended to or referred to in the complaint, and “to matters of which
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`judicial notice may be taken.” Festa v. Westchester Med. Ctr. Health Network, 380 F.Supp.3d
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`308, 314 (S.D.N.Y. 2019). Judicial notice may be taken of documents that are “integral to the
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`complaint,” such that the complaint “relies heavily upon [the documents’] terms and effect.”
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`Palin v. N.Y. Times Co., 940 F.3d 804, 811 (2d Cir. 2019). Courts have also taken judicial notice
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`of materials in the public record, such as federal copyright registrations, newspaper articles, and
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`regulatory filings—all for the limited purpose of noting what the documents state, rather than to
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`“prove the truth of their contents.” Ace Arts, LLC v. Sony/ATV Music Pub., LLC, 56 F.Supp.3d
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`436 (S.D.N.Y. 2014); Staehr v. Hartford Financial Services Group, Inc., 547 F.3d 406, 425 (2d
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`Cir. 2008) (affirming the judicial notice of media reports and regulatory filings on a motion to
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`dismiss).
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`Because the trademark registration is a matter of public record, the Court will take
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`judicial notice of its content. Cf. Ace Arts, 56 F.Supp.3d at 441 (noting that documents like
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`federal copyright registrations are “judicially noticeable.”). Similarly, “the case law applying
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`[Federal] Rule [of Evidence] 201 states that, ‘[f]or purposes of a 12(b)(6) motion to dismiss, a
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`court may take judicial notice of information publicly announced on a party’s website, as long as
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`the website’s authenticity is not in dispute and ‘it is capable of accurate and ready
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`determination,’” judicial notice should be taken. Wells Fargo Bank, N.A. v. Wrights Mill
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`Holdings, LLC, 127 F. Supp. 3d 156, 167 (S.D.N.Y. 2015) (quoting Doron Precision Sys., Inc. v.
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`FAAC, Inc., 423 F.Supp.2d 173, 179 n. 8 (S.D.N.Y.2006); see also Finn v. Barney, 471 F. App’x
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`30, 32 (2d Cir. 2012) (affirming district court taking judicial notice of webpages and media
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`reports). Plaintiffs here do not challenge the authenticity of these documents, so the Court takes
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`judicial notice of them. Accord Staehr v. Hartford Financial Services Group, Inc., 547 F.3d 406
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`(2d Cir. 2008) (affirming district court taking judicial notice of newspaper articles); Fernandez v.
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`Zoni Language Ctr., Inc., No. 15-cv-6066 (PKC), 2016 WL 2903274, at *3 (S.D.N.Y. May 18,
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`2016) (“Courts may also take judicial notice of information contained on websites where the
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`authenticity of the site has not been questioned.”).
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`Even though the Court takes judicial notice of these documents, their purposes at the
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`motion-to-dismiss stage are limited. They may be used only for “determining what the
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`documents state,” and Godiva cannot rely on them to “prove the truth of their contents.” Roth v.
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`Jennings, 489 F.3d 499, 509 (2d Cir. 2007).
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`IV.
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`PLAINTIFFS LACK STANDING TO SEEK INJUNCTIVE RELIEF
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`The Court turns next to Godiva’s single jurisdictional argument. In their Complaint,
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`Plaintiffs seek an “award of injunctive [relief] . . . including, inter alia, an order prohibiting
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`Defendant from engaging in the unlawful acts described above.” Compl. at 37 (prayer for relief).
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`They allege that “Plaintiffs wish to and are likely to continue purchasing the Godiva Chocolates
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`in the future,” and that absent an injunction, “they will be unable to rely with confidence on
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`Godiva’s representations in the future and will therefore abstain from purchasing the Products,
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`even though they would like to purchase them.” Id. ¶ 15. And they explain that while they
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`“believe the Godiva Chocolates are not made in Belgium, they lack personal knowledge as to
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`Godiva’s specific business practices, leaving doubt in their minds as to the possibility that some
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`chocolates made by Godiva could be made in Belgium.” Id.
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`In the Second Circuit, “‘[a] plaintiff seeking to represent a class must personally have
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`standing’ to pursue ‘each form of relief sought.’” Kommer v. Bayer Consumer Health, 710 Fed.
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`Appx. 43, 44 (2d Cir. 2018) (quoting Nicosia v. Amazon.com, Inc., 834 F.3d 220, 238 (2d Cir.
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`2016)). Godiva contends that Plaintiffs lack Article III standing to obtain an injunction changing
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`Godiva’s labeling. The Court agrees with Godiva, and concludes that Plaintiffs lack injunctive
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`standing.
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`A. Courts Are Divided On This Issue
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`“To satisfy the irreducible constitutional minimum of [Article III] standing, a plaintiff
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`must demonstrate (1) a personal injury in fact, (2) that the challenged conduct of the defendant
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`caused, and (3) which a favorable decision will likely redress.” Mahon v. Ticor Title Ins. Co.,
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`683 F.3d 59, 62 (2d Cir. 2012) (citations and internal quotation marks omitted). “If plaintiffs
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`lack Article III standing, a court has no subject matter jurisdiction to hear their claim.” Id.
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`These rules are the same for plaintiffs representing putative classes. “That a suit may be a class
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`action . . . adds nothing to the question of standing, for even named plaintiffs who represent a
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`class must allege and show that they personally have been injured, not that the injury has been
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`suffered by other, unidentified members of the class to which they belong and which they
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`purport to represent.” Id. at 64. And as always, the party invoking federal jurisdiction “bears the
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`burden of establishing the elements” of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555,
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`561 (1992).
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`District courts in this circuit are divided on whether allegations like those made by
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`Plaintiffs are sufficient to confer injunctive standing. See Podpeskar v. Dannon Company, Inc.,
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`2017 WL 6001845, at *4 n.2 (S.D.N.Y. Dec. 3, 2017) (noting that the question of whether a
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`plaintiff seeking injunctive relief “will be able to demonstrate standing here, as here, they allege
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`they would buy the products in the future if not mislabeled” is “unsettled” and collecting cases);
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`accord Petrosino v. Stearn's Prod., Inc., 2018 WL 1614349, at *4 (S.D.N.Y. 2018) (same); Sitt
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`v. Nature’s Bounty, Inc., 2016 WL 5372794, at *6 (E.D.N.Y. 2016) (same). Some district courts
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`have held that such allegations are enough to confer standing. In Goldemberg, for example, the
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`court found the allegation that “[p]laintiff would continue to purchase the Products in the future
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`if the misleading labeling is corrected . . . [to be] sufficient to demonstrate an intent to purchase
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`products in the future that subjects them to future harm.” 317 F.R.D. at 397; accord Petrosino,
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`2018 WL 1614349, at *5. Other courts have held the opposite: a plaintiff’s claim that “[she] will
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`purchase the Products in the future only if Defendant alters its branding” does not create
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`“standing to seek injunctive relief because she has not demonstrated a real or immediate threat of
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`injury.” Holve v. McCormick & Co., Inc., 334 F. Supp. 3d 535, 552 (W.D.N.Y. 2018) (citing
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`cases); see also Buonasera v. Honest Co. Inc., 208 F. Supp. 3d 555, 564 (S.D.N.Y. 2016)
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`(Plaintiff did not “demonstrate[] a likelihood of future injury” by alleging that “if [Defendant’s]
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`products were reformulated such that its representations were truthful, Plaintiff would consider
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`purchasing [them.]”).
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`The Second Circuit has not yet resolved this issue. It came close in Nicosia v.
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`Amazon.com, Inc., in which the plaintiff purchased an allegedly deceptive weight-loss product on
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`Amazon and sought injunctive relief. 834 F.3d 220 (2d Cir. 2016). But the plaintiff there did
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`not “allege that he intend[ed] to use Amazon in the future to buy any products, let alone food or
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`drug products generally or weight loss products in particular.” Id. at 239. The Second Circuit
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`therefore concluded that he lacked injunctive standing. Id. Nicosia however does not resolve the
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`issue presented in this case, because Plaintiffs here aver that they do want to purchase Godiva’s
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`chocolates, so long as the alleged misrepresentation is cured.
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`The Ninth Circuit is the only Court of Appeals to have directly addressed whether
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`plaintiffs have standing to seek injunctive relief in these circumstances. In Davidson v.
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`Kimberly-Clark Corporation, plaintiff Davidson alleged that the defendant violated California’s
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`consumer-protection laws by advertising its wipes as flushable (she alleged they were not). 889
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`F.3d 956 (9th Cir. 2018). Davidson alleged that she may consider purchasing defendant’s wipes
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`in the future, but absent an injunction, she would be unable to rely on its “flushable”
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`representation and could be misled again. Id. at 967. The Court found this sufficient for
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`injunctive standing, holding that “a previously deceived consumer may have standing to seek an
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`injunction against false advertising or labeling, even though the consumer now knows or
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`suspects that the advertising was false at the time of the original purchase, because the consumer
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`may suffer an ‘actual and imminent, not conjectural or hypothetical’ threat of future harm.” Id.
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`at 969. It reasoned that “[k]nowledge that the advertisement or label was false in the past does
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`not equate to knowledge that it will remain false in the future.” Id. at 969. The Court then laid
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`out the sorts of allegations that would be sufficient to confer standing: “In some cases, the threat
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`of future harm may be the consumer’s plausible allegations that she will be unable to rely on the
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`product’s advertising or labeling in the future, and so will not purchase the product although she
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`would like to . . . In other cases, the threat of future harm may be the consumer’s plausible
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`allegations that she might purchase the product in the future, despite the fact it was once marred
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`by false advertising or labeling, as she may reasonably, but incorrectly, assume the product was
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`improved.” Id. at 969–70.
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`B. The Court Concludes That Plaintiffs Lack Article III Standing
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`The Court concludes Plaintiffs in this matter lack standing to seek injunctive relief. In
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`reaching this conclusion, the Court begins not with out-of-circuit caselaw, but with binding
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`Supreme Court and Second Circuit precedent. The Supreme Court has explained that for a
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`plaintiff to have standing to seek injunctive relief, “the threat of injury must be actual and
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`imminent, not conjectural or hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493
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`(2009). And the Supreme Court has held that where standing is premised entirely on the threat
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`of repeated injury, a plaintiff must show “a sufficient likelihood that he will again be wronged in
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`a similar way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Moreover, in satisfying
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`their burden to demonstrate injunctive standing, plaintiffs cannot rest on past injury—they must
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`allege that they are “likely to be harmed again in the future in a similar way.” Nicosia, 834 F.3d
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`at 220. “The Supreme Court has repeatedly reiterated that the threatened injury must be certainly
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`impending to constitute injury in fact, and that allegations of possible future injury are not
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`sufficient.” Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 800 (2d Cir. 2015) (internal
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`quotation marks omitted). Under these binding cases and others, injunctive standing is proper
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`only if the alleged injury is “actual and imminent,” “real and immediate,” “certainly impending,”
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`and “likely.”
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`Yet the injury alleged by Plaintiffs in this case is hypothetical—if they choose to
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`purchase Godiva’s products in the future, then they may be harmed. The conditionality of this
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`alleged injury removes it from the harms that Article III authorizes federal courts to remedy.
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`Plaintiffs rest on precisely the sort of “allegations of possible future injury” that are insufficient
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`to create subject-matter jurisdiction. Clapper, 785 F.3d at 800. Moreover, permitting such a
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`theory of future harm requires the Court to put blinders on the fact that Plaintiffs, by virtue of
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`bringing this litigation and the allegations they make in their complaint, know that Godiva’s
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`chocolates are not manufactured in Belgium. It is difficult to fathom how they could be harmed
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`by Godiva’s continued representation if they know that the company’s chocolates come from
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`Pennsylvania. Yet Plaintiffs ask the Court to overlook this flaw by alleging that they remain
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`confused about where Godiva’s chocolates come from. That is not enough for a standing. As
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`many courts have explained, because a plaintiff in a false advertisement case has necessarily
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`become aware of the alleged misrepresentations, “there is no danger that they will again be
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`deceived by them.” Elkind v. Revlon Consumer Prods. Corp., No. 14-cv-2484, 2015 WL
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`2344134, at *3 (E.D.N.Y. May 14, 2015); accord, e.g., Davis v. Hain Celestial Grp., Inc, 297 F.
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`Supp. 3d 327, 338 (E.D.N.Y. 2018); Tomasino v. Estee Lauder Cos., 44 F.Supp.3d 251, 256
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`(E.D.N.Y. 2014). A contrary conclusion would be “inconsistent with Article III and with
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`Supreme Court and Second Circuit caselaw.” Davis, 297 F.Supp.3d at 338 (citing cases);
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`Buonasera v. Honest Co., 208 F.Supp.3d 555, 564–65 & n.3 (S.D.N.Y. 2016) (“[T]he Court
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`declines to follow the reasoning [of one contrary District Court case] as Second Circuit precedent
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`dictates otherwise.”).
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`In short, Godiva succeeds in its sole challenge to this Court’s jurisdiction: Plaintiffs do
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`not have standing to seek injunctive relief. Accordingly, the Court grants Godiva’s motion on
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`this ground and dismisses Plaintiffs’ request for injunctive relief for lack of subject-matter
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`jurisdiction pursuant to Rule 12(b)(1).
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`V.
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`PLAINTIFFS’ STATUTORY CONSUMER-PROTECTION CLAIMS SURVIVE
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`The Court next addresses Godiva’s contention that Plaintiffs have failed to state a single
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`claim for relief, beginning with their statutory consumer-protection claims under New York and
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`California law. As noted, Plaintiffs bring claims under the New York General Business Law and
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`California’s Legal Remedies Act, Unfair Competition Law, and False Advertising Law. For
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`purposes of this motion, these claims boil down to the same inquiry: whether a reasonable
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`consumer is likely to be deceived by the alleged misrepresentation. And Godiva advances a single
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`argument for why dismissal is warranted under these statutes: no reasonable consumer could be
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`deceived by the “Belgium 1926” representation to believe that Godiva’s chocolates are manufactured
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`in Belgium. Def. Br. at 10. The Court concludes that it cannot make this determination at the
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`motion-to-dismiss stage.
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`A. The Reasonable-Consumer Standard
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`Courts apply the “reasonable consumer” standard to determine whether a representation is
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`false or deceptive under each of the relevant New York and California consumer-protection statutes.
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`See Marcus v. AT&T Corp., 138 F.3d 46, 64 (2d Cir. 1998); Williams v. Gerber Prods. Co., 552 F.3d
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`934, 938 (9th Cir. 2008). Under the reasonable-consumer standard, plaintiffs must show that
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`consumers are likely to be deceived by a representation. See Fink v. Time Warner Cable, 714 F.3d
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`739, 741 (2d Cir. 2013); Williams, 552 F.3d at 938. In other words, while a representation “need not
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`be false to mislead a reasonable consumer, the representation must nevertheless be misleading or
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`have the capacity, likelihood or tendency to deceive or confuse members of public.” Romero v.
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`Flowers Bakeries, LLC, 2016 WL 469370, at *7 (N.D. Cal. Feb. 8, 2016) (internal quotations
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`omitted); see also New World Sols., Inc. v. NameMedia Inc., 150 F.Supp.3d 287, 328 (S.D.N.Y.
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`2015) (“a deceptive act or practice has an ‘objective definition,’ whereby deceptive acts or
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`practices—which may be acts or omissions—are limited to those likely to mislead a reasonable
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`consumer acting reasonably under the circumstances.” (internal quotation marks omitted)).
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`Moreover, courts view misleading advertisement claims in light of the context of the whole label
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`or advertisement—“the entire mosaic should be viewed rather than each tile separately.” S.C.
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`Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir. 2001); Time Warner Cable, Inc. v.
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`DIRECTV, Inc., 2017 WL 1138879 (S.D.N.Y. April 16, 2007).
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`This reasonableness inquiry is rarely resolved on a motion to dismiss. See, e.g.,
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` Quinn v. Walgreen Co., 958 F.Supp.3d 533, 543 (S.D.N.Y. 2013) (“whether a particular act or
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`practice is deceptive is usually a question of fact” best suited for a jury.); accord Buonasera v.
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`Honest Co., 208 F.Supp.3d 555, 566 (S.D.N.Y. 2016). Dismissal is warranted only in a “rare
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`situation” where “it [is] impossible for the plaintiff to prove that a reasonable consumer was likely to
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`be deceived.” Williams, 552 F.3d at 939; Atik v. Welch Foods, Inc., No. 15-cv-5405 (MKB), 2016
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`WL 5678474, at *8 (E.D.N.Y. Sept. 30, 2016) (adopting the “rare situation” standard); see also In re
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`Frito-Lay N. Am., Inc. All Nat. Litig., 2013 WL 4647512, at *16 (E.D.N.Y. Aug. 29, 2013) (for a
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`court to grant a motion to dismiss, the label’s context must meet the “heavy burden of
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`‘extinguish[ing] the possibility’ that a reasonable consumer could be misled.”) (citation omitted);
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`Goldemberg, 8 F.Supp.3d at 480 (“[T]he Court cannot hold as a matter of law that the product
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`labels are not misleading to a reasonable consumer.”).
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`B. A Reasonable Consumer Could be Misled by the Belgium 1926 Representation
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`This is not one of the rare instances in which the Court may dismiss a consumer-
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`protection claim on this posture. To the contrary, a reasonable consumer could view the phrase
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`Belgium 1926 as representing that Godiva’s chocolates are manufactured in Belgium. Godiva
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`attempts to escape this plausible view by noting that it was founded in Belgium in the year 1926,
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`and thus arguing that the representation is a “factually accurate phrase that imparts an
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`unambiguous and historically accurate message.” Def. Br. at 10. However, an equally, if not
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`more, plausible inference is that the phrase represents both the provenance of the company—
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`Belgium, in 1926—and a representation that its chocolates continue to be manufactured there.
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`Indeed, Godiva does not explain why this latter inference is categorically unreasonable, given
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`that it is plausible for a consumer to interpret the representation as meaning that its chocolates
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`are made in the same place as they were when the company was founded. The Court certainly
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`cannot conclude, at this juncture, that no reasonable consumer could take such a view.
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`Nor do any of the documents that Godiva asks the Court to take judicial notice of change
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`this result. As discussed, the Court takes judicial notice of a trademark registration, several
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`pages on Godiva’s website, and a CBS News article stating that Godiva’s chocolates are
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`manufactured in Pennsylvania. However, at this stage of the litigation, the Court does not take
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`the contents of these document as true. See Roth, 489 F.3d at 509 (If the court takes judicial
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`notice, it does so in order to determine what statements they contained—but again not for the
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`truth of the matters asserted.” (cleaned up)). Godiva relies on these documents to demonstrate
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`that “the existence of its Reading, Pennsylvania manufacturing facility—and the fact that its
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`chocolates are not made in Belgium” was openly disclosed and public information, and thus a
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`reasonable juror could not have been misled by its representation. Dkt. No. 24 at 2–3. At core,
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`however, Godiva asks the Court to draw an inference in its favor: that because these documents
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`were public record, reasonable consumers were aware of where its manufacturing occurs. That
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`inference is couched in assumptions—that everything in the public record is universal knowledge
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`and that, even if this information was widely disseminated, Godiva’s label could not lead a
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`reasonable consumer astray, to name a few. In other words, to adopt Godiva’s theory, the Court
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`would have to draw several inferences in its favor—precisely the opposite of the Court’s role at
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`this stage. Iqbal, 556 U.S. at 678. These documents therefore do not entitle Godiva to dismissal.
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`Moreover, as the Court noted, the reasonableness inquiry takes account of the entire
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`context of a product’s labeling. The Second Circuit has repeatedly explained that “in
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`determining whether a reasonable consumer would have been misled by a particular
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`advertisement, context is crucial.” Geffner v. Coca-Cola Co., 928 F.3d 198, 200 (2d Cir. 2019)
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`(citing cases). Here, part of that “mosaic” is another, crucial representation: some of Godiva’s
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`packaging and social-media advertising describe its chocolates as Belgian. The front packaging
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`of one of its boxes, for example, contains the phrase “ASSORTED BELGIAN CHOCOLATE
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`CARAMELS.” Compl. ¶ 24 (emphasis added). Similarly, its social-media advertising states
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`“Delicious Belgian chocolates brought to you . . .” Id. (emphasis added). These representations,
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`taken along with the Belgium 1926 representation, further support the Court’s conclusions that a
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`reasonable consumer, reviewing Godiva’s product holistically, could conclude that its chocolates
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`are manufactured in Belgium.
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`Godiva points to a slew of consumer-protection cases, which it characterizes as factually
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`similar, in which courts granted motions to dismiss. However, those cases differ in material
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`respects. For example, in Pernod Richard USA, LLC v. Bacardi U.S.A., the Third Circuit
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`dismissed plaintiffs’ claim that “Havana Club . . . amounted to a misleading statement of
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`geographic origin.” 653 F.3d 241, 248 (3d Cir. 2011). The label there, however, “clearly
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`state[d] on the front that the liquor is ‘Puerto Rican Rum’ and on the back, that it is ‘distilled and
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`crafted in Puerto Rico.’” Id. at 252. The Court thus concluded that “[n]o reasonable consumer
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`could be misled by those statements” into believing that the rum was from Havana. Id.
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`Similarly, in other cases, courts have dismissed claims where the label in question expressly
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`disclaims its actual origin—which is not the case here. See Bowring v. Sapporo U.S.A., 234 F.
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`Supp.3d 386 (E.D.N.Y. 2017) (granting motion to dismiss where beer packaging included text
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`stating where the beer was brewed, despite imagery and text alluding to Japan); Nelson v.
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`MillerCoors, LLC, 246 F.Supp.3d 666 (E.D.N.Y. 2017) (similar disclaimer of product origin
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`counteracting imagery alluding to Australia). To be sure, disclosures are not always curative.
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`See Mantikas v. Kellogg Co., 910 F.3d 633, 637 (2d Cir. 2018) (“[R]easonable consumers should
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`[not] be expected to look beyond misleading representations on the front of the box to discover
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`the truth from the ingredient list in small print on the side of the box.”) (citation omitted). But
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`the absence of a disclosure counsels strongly against Godiva’s argument. Moreover, in Dumas v.
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`Diageo PLC, the challenged packaging stated that the beer in question was “Jamaican Style.”
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`2016 WL 1367511 (S.D. Cal. Apr. 6, 2016). The Court concluded that a reasonable consumer
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`could not be misled into thinking that the beer was actually from Jamaica. Id. at *4. Here,
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`however, Godiva’s chocolates do not represent