A California federal court has approved a plan to publicize the settlement of a proposed class action filed against Safeway alleging the supermarket chain underfilled its canned tuna. In re Safeway Tuna Cases, No. 15-5078 (N.D. Cal., order entered May 4, 2017). The judge approved the settlement in March 2017 but was concerned that potential class members would be unaware of the dismissal of the case. The publicity plan requires the parties to issue press releases to major news outlets and legal publications in California and nationwide and post notice on a publicly searchable website. When that plan is complete, the court said, the action will be dismissed. Additional details on the settlement appear in Issue 628 of this Update. Issue 634
Tag Archives slack-fill
Candy maker Fannie May faces a proposed class action alleging the confectioner underfilled some of its 7-ounce chocolate boxes by as much as 50 percent. Benson v. Fannie May, No. 17-3519 (N.D. Ill., filed May 10, 2017). The allegations involve boxes of Hot Fudge Truffles, Mint Meltaways , Peanut Butter Buckeyes, milk and dark Sea Salt Caramels, regular and bite-sized Pixies , milk and dark Carmarsh and Trinidads sold at the company’s retail stores and on its website as well as other retail and online outlets nationwide. The plaintiffs allege that nonfunctional slack-fill in the company’s nontransparent boxes violates the federal Food, Drug and Cosmetic Act as well as Illinois consumer protection statutes and seek class certification, equitable relief, monetary damages and attorney's fees. Issue 634
Shook, Hardy & Bacon Partner Cary Silverman explains in an April 17, 2017, Law360 article that a six-fold growth in slack-fill lawsuits stems from a “precise template” developed by plaintiffs' lawyers seeking to pressure companies into outofcourt settlements. “I call them ‘shake the box’ lawsuits,” reports Silverman. “If you can hear the product shake, you’ve got a lawsuit. You just plug it into your template, take a photo, and you’re ready to go.” Law360 quotes Silverman's report on food lawsuits for the U.S. Chamber Institute for Legal Reform, “The Food Court: Trends in Food and Beverage Class Action Litigation,” which he co-authored with Shook Partner Jim Muehlberger. Silverman also presented “All You Can Eat Lawsuits: Restoring Sanity to Food Litigation," discussing the report's findings, for a CLE at the University of Cincinnati College of Law on April 13, 2017. Issue 632
A California court is allowing to proceed a putative slack-fill class action against Golden Grain Inc., a subsidiary of PepsiCo, Inc. that makes Near East rice and grain products. Arcala v. Golden Grain Co., No. 16-555084 (Cal. Sup. Ct. San Francisco Cty., order entered April 5, 2017). The plaintiffs allege that Golden Grain’s couscous, rice pilaf, quinoa, tabbouleh and other products are packaged with nonfunctional slack fill in violation of state law, and the court rejected Golden Grain’s arguments that the complaint made no distinction between functional and nonfunctional slack fill. Among other relief, the ® plaintiffs are seeking an injunction, restitution and class certification. Issue 630
Wise Foods, Inc. is facing a projected class action claiming the company’s potato chip bags have more than double the amount of slack fill as its major competitors’ bags. Alce v. Wise Foods, Inc., No. 17-2402 (S.D.N.Y., filed April 3, 2017). The plaintiffs claim that bags of 21 varieties of Wise’s Potato Chips, Kettle Cooked Potato Chips and Ridgies can contain as much as 67 percent slack fill, while the company’s own Dipsy Doodles Corn Chips contain only about one-third slack fill. For alleged violations of New York’s Deceptive and Unfair Trade Practices Act, false advertising laws, the District of Columbia’s Consumer Protection Procedures Act and unjust enrichment, the plaintiffs seek class certification, an injunction, damages and attorney’s fees. Issue 630
Energy-drink company Rockstar faces a putative class action alleging the company underfilled cans of its coffee drinks, giving the company an unfair competitive advantage and shortchanging consumers. Podawiltz v. Rockstar, Inc., No. 17-0477 (D. Ore., filed March 26, 2017). The plaintiff claims he bought several cans of Rockstar’s coffee drinks labeled “15 fl oz [473 ml],” but that independent lab testing showed the cans contained an average of 443 milliliters, about six percent less. For an alleged violation of the Oregon Unlawful Trade Practices Act, the plaintiff seeks class certification, injunctive relief, an accounting, restitution, damages and attorney’s fees. Issue 629
Just Born, Inc. is facing a putative class action alleging its boxes of candy are underfilled by 35 percent. Escobar v. Just Born, Inc., No. 17-1826 (C.D. Cal., removed to federal court March 17, 2017). The plaintiff allegedly bought a box of the company’s Mike and Ike candy at a movie theater and claims Just Born is “falsely and deceptively misrepresenting” the amount of product contained in movie boxes of Mike and Ike and Hot Tamales candies it sells at movie theaters and retail outlets nationwide. The plaintiff claims that because she bought the product at a movie theater, where it was stored in a glass showcase, she paid for the product before she took possession of it and had no opportunity to inspect the packaging for “other representations of quantity of candy product contained therein other than the size of the box itself.” The plaintiff also relies on a…
A California federal court has postponed issuing a final dismissal order in Safeway Inc.’s proposed settlement with a putative class, ordering the parties to develop a plan for publicizing the settlement to alert other potential plaintiffs that the statute of limitations will begin to run. In re Safeway Tuna Cases, No. 15-5078 (N.D. Cal., order entered March 13, 2017). The class action, involving allegations of underfilled cans of tuna sold in Safeway grocery stores and those of its subsidiary Vons, received significant media coverage in outlets such as the Los Angeles Times and the San Francisco Chronicle. The court said it “is concerned that potential class members who may have seen such coverage would now be unaware that the case has been dismissed, and that the limitations period for filing a further suit therefore may run upon dismissal.” The U.S. Supreme Court has held that the filing of a class…
Two consumers have filed a projected class action against Arizona Canning Co. alleging that the image of a bowl full of beans on its Sun Vista products misleads consumers into believing the can is filled completely with beans rather than filled with some beans and a large amount of water. Beckman v. Ariz. Canning Co., No. 16-2792 (S.D. Cal., removed November 14, 2016). The complaint asserts that the “picturesque” label image depicts “a bowl full of plump and hearty beans with glimmer of shine, and little to no water,” but when the can is opened, it reveals “the repulsive sight of bean water” and “an inappropriately large amount of water and a small amount of beans.” The complaint admits that a reasonable consumer “would expect to find some water within the container,” but one plaintiff’s “home investigation” apparently found that a 29-ounce can of pinto beans contained 13 ounces of…
A New York federal court has dismissed a consumer’s lawsuit alleging Mondelez International sells its Sour Patch Watermelon candy with unpermitted slack fill. Izquierdo v. Mondelez Int’l Inc., No. 16-4697 (S.D.N.Y., order entered October 26, 2016). The lead plaintiff had asserted that the box he purchased contained 28 pieces of candy but had enough space for 50 pieces. Additional details about the complaint appear in Issue 609 of this Update. After finding that the plaintiff did not have standing for an injunction, the court turned to the candy company’s arguments, dismissing its assertion that the accurate net weight released it from liability. Further, the court found it inappropriate to consider at the motion-to-dismiss stage whether a consumer could determine the contents of the package by shaking or squeezing it. The court was persuaded by Mondelez’s argument that the plaintiffs had failed to state a claim because they did not clarify what…
