Federal Court Dismisses Slack-Fill Action Against Candymaker

A federal court in Missouri has denied class certification in a slack-fill action against Just Born Inc., ruling that the plaintiff was unable to represent one proposed class and that individual issues would predominate for the other two. White v. Just Born, Inc., 14-4025 (W.D. Mo., entered August 7, 2018). Alleging that boxes of Mike and Ikes and Hot Tamales were underfilled, the plaintiff sought certification of three classes: a Missouri Merchandising Practices Act (MMPA) class, an unjust enrichment (Restatement) class and an unjust enrichment (Appreciation) class.

First, the court found that the Restatement class did not include Missouri residents, so the Missouri plaintiff could not serve as a representative of the potential class members. “In an attempt to account for variations in states’ unjust enrichment laws, [the plaintiff] seeks certification of two separate unjust enrichment classes,” the court held. “In doing so, however, [the plaintiff] defined himself out of one.”

As to the MMPA and Appreciation proposed classes, the court found that the “litigation would be dominated by individual inquiries into whether each class member was deceived by any slack-fill in a box before purchasing it. In other words, it would be dominated by causation and knowledge.” Because of the lack of commonality, neither class could be certified.