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Wednesday, February 26, 2020

Attorney: Some slack fill lawsuits not justified

By Robert Lawson | Nov 7, 2016

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WHITE PLAINS, N.Y. (Legal Newsline) — A Dallas attorney who formerly worked for the Center for Science in the Public Interest (CSPI) says some of the so-called "slack fill" lawsuits that have become more prevalent aren't benefiting consumer law.

Recently, two women filed a class action lawsuit against Costco, claiming they purchased Kirkland Signature premium chunk chicken breast but were disappointed to find the product contained 44 percent water and less than nine ounces of meat. Their attorneys are Patricia I. Avery, Matthew Insley-Pruitt and Robert Plosky of Wolf Popper LLP in New York.

Stephen Gardner, of the Stanley Law Group in Dallas, says these claims have become favorites of class action plaintiffs attorneys.

"There have been, lately, hundreds of slack fill cases lately," Gardner told Legal Newsline.

"This one, I don't know that it was frivolous, but lawsuits I have seen such as the Starbucks iced coffee lawsuit don't do consumer law any real justice. The Starbucks case was just stupid. The plaintiffs claimed that with ice there wasn't 20 ounces of coffee or whatever the case was.

"You reasonably expect there to be ice in the coffee so the lawsuit obviously isn't going to go anywhere. This case, however, might be different based on what little I know about it."

Gardner summed up both his experience in this area of law, the upswing in these types of lawsuits and how not every slack fill case is justified. In fact, he turns some cases down. 

"I've been doing food and law cases since about 1993," Gardner said. "Back then there were very few cases with private lawyers. There are problems with any slack fill case because there are times where having a not completely full box is actually a packaging decision, not a fraud decision.

"There are other times where it is clearly a case of fraud. This happens when companies give you less product in the same size package. If I buy something, I expect it to be the same amount as what I bought last time. It's situationally driven. There are stupid cases that hurt those cases of consumer fraud that are actually harmful to consumers."

Gardner noted the suspicious level of space left over in the can of chicken at issue in the Costco case. 

"I believe class action is supposed to help consumers with fraud," Gardner said. "Judges let plaintiffs amend if they are dismissed for non-specificity. You'd have to buy and test a lot of cans from a lot of canning runs. An error can happen and it's not the basis of a lawsuit.

"If it's a one-off then it's an error, but if it's consistent then it can be a problem. What I want to know is if you open the can, if you can shove some more sizable pieces of chicken in there. But 44 percent sounds a little suspicious." 

Gardner also noted the possibility that a supplier issue could be the basis of the problem since Costco, like many retailers that sell food products, is likely supplied the product by a third party. 

"This one, on the face of it, has plausibility, because companies do do it," he said. "It could be a supplier. I'm quite surprised by the claim against Costco, but it definitely could be a case where a lawsuit is justified."

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