OAKLAND, Calif. (Legal Newsline) – A federal appeals court will not hear the appeal of class action lawyers who are suing over empty space in movie theater candy.
The U.S. Court of Appeals for the Ninth Circuit said Feb. 17 that it does not have jurisdiction over the appeal of an order that keeps the lawsuit in federal court. Attorneys at the Clarkson Law Firm first filed the case in California state court, but Tootsie Roll Industries removed the case to Oakland federal court.
There, Magistrate Jude Sallie Kim ruled on Nov. 30 that the lawsuit seeks at least $5 million – a threshold for federal jurisdiction. The plaintiffs lawyers appealed.
“The challenged order is neither final nor immediately appealable as of right,” the Ninth Circuit ruled in dismissing the appeal. “Plaintiff-appellant has not filed the petition required under Federal Rule of Appellate Procedure 5 within the 10-day statutory timeframe.”
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.