Court Declines To Certify 'Slack Fill' Class Action

A Missouri federal judge recently denied certification of a proposed "slack fill" class action against the maker of "Mike and Ike" candy. The suit claimed that candy company Just Born, Inc. tricked consumers into thinking they were getting more product than they actually paid for by virtue of empty space ("slack fill") at the top of the boxes when they are opened. The court, however, held that because many putative class members knew and did not care about the extra space in the box and purchased the products anyway, individualized issues of knowledge, injury, and standing would predominate the action.

In White v. Just Born, Inc., 2018 WL 3748405 (W.D. Mo. Aug. 7, 2018), the plaintiff asserted claims under the Missouri Merchandising Practices Act (MMPA) and for unjust enrichment based on the alleged slack fill in the defendant's candy packaging. According to the plaintiff, Mike and Ike box sizes lead purchasers to believe that they are getting more candy than they actually receive. The plaintiff moved to certify multistate and Missouri classes of candy purchasers.

District Judge Nanette Laughrey refused to certify the classes for a number of reasons. Primarily, Judge Laughrey reasoned that because an MMPA violation must still cause an ascertainable loss (i.e., an injury), to be redressable, determining whether putative class members knew about the alleged slack fill and purchased the products anyway was a predominating, individualized issue. Likewise, purchasers who bought the candy with knowledge of the alleged slack fill did not confer an "unjust" benefit on the defendant, rendering the unjust enrichment class unfit for class certification as well. Judge Laughrey further held that the proposed classes' inclusion of persons who purchased the candy despite knowing how much space was in each box rendered the classes impermissibly overbroad and containing persons who lacked Article III standing to sue, given the absence of injury.

Judge Laughrey further noted the difficulty of identifying putative class members as most, if not all, purchases were made from third-party retailers and thus, no "master list" existed. As a result, individualized evidence of whether a putative class member made a purchase...