The U.S. Court of Appeals for the Second Circuit has sided with an objector to a class settlement in a lawsuit alleging that Barilla USA pasta boxes contained too much slack fill. Berni v. Barilla S.p.A., No. 19-1921 (2nd Cir., entered July 8, 2020). The lawsuit asserts that Barilla reduced the amount of pasta in its box packaging but retained the same size of box, allegedly misleading consumers. The parties reached a settlement that included payments to class counsel and the named representative along with an agreement to update the packaging to include a “fill line” to indicate how much pasta the box contains. A class member objected to the settlement, arguing that the only relief the class received was injunctive relief, and a class of past purchasers could not be certified for injunctive relief.

The district court rejected the objector’s assertion, but the Second Circuit disagreed with the lower court. “At a general level, we note that past purchasers of a consumer product who claim to be deceived by that product’s packaging—like the purchasers of Barilla pasta here—have, at most, alleged a past harm. Such a past harm is of the kind that is commonly redressable at law through the award of damages, which, it should be noted, is what Plaintiffs primarily sought in their complaint. For several reasons, past purchasers of a product, like the Barilla purchasers, are not likely to encounter future harm of the kind that makes injunctive relief appropriate. In the first place, past purchasers are not bound to purchase a product again—meaning that once they become aware they have been deceived, that will often be the last time they will buy that item,” the court held. “But even if they do purchase it again, there is no reason to believe that all, or even most, of the class members will incur a harm anew. Supposing that they have been deceived by the product’s packaging once, they will not again be under the illusion that the boxes of the newer pastas are filled in the same way as the boxes of the older pastas. Instead, next time they buy one of the newer pastas, they will be doing so with exactly the level of information that they claim they were owed from the beginning. A ‘fill-line’ or some disclaimer language will not materially improve their position as knowledgeable consumers.”

Holding that the class could not be certified, the appeals court reversed the district court’s approval of the settlement and remanded the case for further proceedings.

About The Author


For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.