SAN FRANCISCO (Legal Newsline) – Tootsie Roll Industries received a sour ruling from a California federal magistrate judge on July 27, with Sallie Kim allowing a class action lawsuit over empty space in movie theater candy to proceed.
Kim’s ruling favors lawyers at the Clarkson Law Firm, which 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.
Tootsie Roll previously won its argument that more than $5 million was at stake, invoking federal jurisdiction under the Class Action Fairness Act. But now the company could be wishing a state court judge had heard the case all along.
Kim ruled the lawsuit has plausibly alleged each of its causes of action, including fraud, and that a reasonable consumer could be deceived by the products’ packaging.
“Two primary justifications support this conclusion,” Kim wrote. “First, the court finds that Plaintiff has plausibly alleged that a reasonable consumer is likely to be deceived by the discrepancy between the size of the products’ boxes and the boxes’ disclosures regarding the amount of candy they contain.
“The size of the box suggests something to the average person that a recitation of numbers (the weight of the food inside) might not be sufficient to overcome; the common experience of opening up an expensive box of movie theater candy to reveal a paltry few pieces inside speaks to that fact.
“Second, California law dictates that motions to dismiss should rarely be granted on false advertising claims due to those claims’ factually dependent nature. The facts here are not sufficiently clear to justify granting such a rare remedy.”
Kim ruled on Nov. 30 that the lawsuit seeks at least $5 million – a threshold for federal jurisdiction under CAFA. 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 rejected motion to dismiss said the case fails to state a claim under the consumer protection laws it cites or common law fraud.
“(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 said.