OAKLAND, Calif. (Legal Newsline) – Class action lawyers have failed to convince a federal magistrate judge that they don’t want more than $5 million out of their lawsuit over the empty space in candy boxes.
Magistrate Judge Sallie Kim on Nov. 30 agreed with Tootsie Roll Industries, which was forced to up the amount in question in order to keep the case in federal court.
Rather than fight the case in one of California’s state courts, which are perceived as more plaintiff-friendly by businesses, Tootsie Roll said lawyers are seeking more than $5 million – a threshold for federal jurisdiction under the Class Action Fairness Act.
Tootsie Roll is fighting a lawsuit that says boxes of Junior Mints and Sugar Babies are filled with too much air and not enough product.
“To be clear, Tootsie Roll does not believe that Plaintiff or the putative class should recover any amount as a result of her legally deficient claims,” lawyers for the company wrote. “Tootsie Roll already has litigated three previous cases in federal court alleging nearly identical slack-fill claims, all of which have failed.”
The company went on to show the millions it made in California from selling the specific products alleged to contain too much slack fill. It also claimed that the Clarkson Law Firm has tried to pursue these claims before but abandoned them after the company spent hundreds of thousands of dollars in its defense in Los Angeles federal court.
“Now, with the filing of this lawsuit, Plaintiff’s counsel has started this litigation over from scratch in a bold and blatant case of forum shopping,” the company says.
Kim said $6 million is possibly at issue, with 45% of the $10.78 million in sales combining with $1.21 million in fees that would be requested.
“The Court rejects Plaintiff’s totally unsupported contention that a 26% price premium discount should be applied to the calculations and notes that Plaintiff completely failed to account for fees in its calculations,” the order says.