LOS ANGELES (Legal Newsline) – The U.S. District Court for the Central District of California has approved Penguin Trading Inc.'s motion to transfer a class action suit over slack-fill allegations to a New York court.

The court approved the transfer Dec. 22 to the Eastern District of New York.

Plaintiff Anthony Buso, individually and on behalf of all others similarly situated, alleged Penguin Trading Inc. violated the Fair Packaging and Labeling Act (FPLA). He alleges the packaging of Fruit Bliss Organic Deglet Nour Dates, distributed by Penguin Trading, contain 80 percent slack-fill.

Penguin Trading Inc. had previously filed a motion to dismiss the case in October, but the court denied it as moot.

Penguin Trading Inc. alleged in its motion to dismiss that Buso's suit was part of the "slack-fill letter mill." The defendant's motion to dismiss stated that due to a torrent of slack-fill class actions, the courts "have applied stricter standards at the pleading stage and dismissed putative claims where the net weight is clearly disclosed and where commonsense dictates that a reasonable consumer would expect slack-fill in the allegedly offensive product."

“Under threat of a putative class action, numerous small and medium businesses settle even the most meritless claims, importantly without release of or compensation to the class, exposing them to further claims,” according to the motion to dismiss.

Penguin alleged Buso has filed three similar lawsuits in 2017 and his lawsuit against it is just a “copy and paste” of his previous suits.

“The (Consumer Legal Remedies Act) notice sent anonymously had barely any allegations of facts,” according to the motion to dismiss. “Common sense dictates that plaintiff has likely sent more spurious demand letters with meritless slack-fill claims, some he has no doubt settled to his advantage.”

Discussing the transfer of venue, the California court stated it considers choice of forum based on the convenience of all parties; the site of books and records; which forum’s law applies; the interests of justice; and managerial considerations. In its argument to transfer, Penguin countered with three arguments to why the case should be on the East Coast and not the West Coast.

The arguments included, “less deference should be afforded plaintiff’s choice of forum because this is a class action lawsuit and plaintiff, as representative, lives outside of the geographic boundaries of this district; the first-to-file presumption weighs in favor of transfer because the parties are already in the midst of litigation in the (Eastern District of New York) (the New York Action) on substantially similar issues; and (Eastern District of New York) is the more convenient venue for the instant suit under the Jones factors. Plaintiff counters each ground in opposition and presents argument on the recognized transfer factors,” according to the court's ruling.

After discussing both Buso and Penguin’s arguments regarding the case venue, many reasons moved the case to New York.

“On balance, four factors — plaintiff’s choice of forum, location of evidence and access to proof, contact with the forum, and administrative considerations — tilt against a transfer, and one of those factors only weakly,” according to the transfer order. 

“Three factors — witness convenience, public interest and interests of justice, and the forum’s power to compel — favor transfer, and two of those factors (witness convenience and compulsory process) are among the most important considerations when determining whether to transfer a case under section.”

Buso will now have to file his amended complaint in New York.

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