Slack Fill Plaintiffs May Win Battles But Lose the War

Lawyers who file slack-fill” cases against food manufacturers found a friendly venue in Missouri. Missouri has a broad consumer fraud law and multiple courts have denied motions to dismiss slack-fill claims pleaded under that statute. But the real fight in class actions—where the money is, in a bank robber’s parlance—is over class certification, and on Tuesday, a Missouri judge denied certification in one of the closely-watched slack-fill cases against a candy maker.

In White v. Just Born, Inc., a Missouri case against the maker of Mike and Ike® candies, it was no great shock that the Court denied multi-state class certification. Convincing a court to certify a multi-state class is a tough slog for plaintiffs in any state law-based case, especially so if the case has only one plaintiff, rather than a plaintiff from each of the states in question. Even a single-state class can pose the threat of massive statutory damages, however, so the real victory in White was the Court’s refusal to certify even a Missouri-only class.

The plaintiff in White bought two boxes of the defendant’s candy at a dollar store. He pleaded that he personally attached importance” to the size” of the candy boxes and thought he was buying more Product than [he] actually received.” Bully for him, the Court thought, but the question of whether any [consumer fraud] violation injured each class member will require individualized inquiry” because if an individual [already] knew how much slack-fill was in a candy box before he purchased it, he suffered no injury.” It does not matter at the class certification stage that a reasonable consumer” may have been deceived. What matters instead is whether the practice actually caused injury to all putative class members in a common and centrally determinable manner. In a slack-fill case over a dollar’s worth of candy, it seems, it cannot.

The White court also went one step further, joining the Third Circuit’s side of the running battle over ascertainability.” Because class members will have purchased the candy from a third-party retailer,…there is no master list that exists to provide common proof for each class member’s purchase.” The need for each class member…to provide individualized evidence that they purchased the candy for personalized or household purposes within the last five years” gave the Court one more reason to deny class certification.

Between the recent New York decision dismissing slack-fill claims because the law simply does not provide the level of coddling plaintiffs seek,” and this loss on the class certification front, perhaps the tide really is turning against this particular type of consumer fraud” claim, which is much better policed by regulators with packaging expertise than by consumer class actions