SAN FRANCISCO (Legal Newsline) – Now that it has been established a lawsuit over the empty space in movie theater candy should be heard in federal court, Tootsie Roll Industries is asking a judge to toss the case.
The company on March 10 filed its motion to dismiss the lawsuit with the U.S. District Court for the Northern District of California, about a month after an appeals court refused to hear an appeal arguing it belonged in state court.
The lawsuit from the Clarkson Law Firm alleges there is too much air in boxes of Sugar Babies and Junior Mints – even though the boxes declare the weight of the food inside.
“Here, the challenged boxes contained clear disclosures of their contents throughout the entirety of the proposed class period,” attorneys for the company wrote.
“Plaintiff fails plausibly to allege that – given the clear labeling on the boxes during the relevant period – a reasonable consumer would have been materially misled by the packaging at issue. The front of every challenged box conspicuously and accurately disclosed the weight of the candy contained inside.”
Plus, the nutrition facts label disclosed the serving size in pieces and grams and the total number of servings per container, allowing a buyer to figure out about how many pieces were inside.
“In addition, all of plaintiff’s claims should be dismissed for the separate and additional reason that she has failed to plead a cognizable injury – namely, that she was deprived the benefit of her bargain by being deceived into paying more than the actual value of the property (such as if the products were defective),” the motion says.
Magistrate Jude Sallie Kim ruled on Nov. 30 that the lawsuit seeks at least $5 million – a threshold for federal jurisdiction under the Class Action Fairness Act. The plaintiffs lawyers appealed, but the U.S. Court of Appeals for the Ninth Circuit said it did not have jurisdiction over the issue.
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.
Plaintiffs lawyers said they weren’t that greedy, hoping to get their case back in a state court perceived as more friendly toward plaintiffs.
The motion to dismiss says the case fails to state a claim under the consumer protection laws it cites or common law fraud. It adds
“(A)ll of plaintiff’s claims should be dismissed for the separate and additional reason that she has failed to plead a cognizable injury – namely, that she was deprived the benefit of her bargain by being deceived into paying more than the actual value of the property (such as if the products were defective),” the motion says.