TRENTON, N.J. (Legal Newsline) – A New Jersey federal judge is less receptive to class action lawyers suing over empty space in candy boxes than one of her colleagues in California.
Judge Anne Thompson on Oct. 18 dismissed claims made by the law firms Shepherd Finkelman and Clarkson Law Firm, who sued Tootsie Roll on behalf of plaintiffs who say they were misled about how much candy is in boxes of Junior Mints and Sugar Babies.
A California federal magistrate judge in July let the Clarkson Law Firm’s case in San Francisco move forward, denying the company’s motion to dismiss. But Judge Thompson granted Tootsie Roll’s dismissal request in the New Jersey case, relying somewhat on a similar case tossed in New York.
“Furthermore, the net weight of the candy, both in metric and standard measurements, is displayed on the front of the Products’ boxes in easily discernable font,” Thompson wrote.
“And Plaintiff does not suggest that the net weight, serving size, or number of servings figures on the Products are not accurate or visible to a consumer. As the Court in another Junior Mints slack-fill case explained, a consumer ‘can easily calculate the number of candies contained in the Product boxes simply by multiplying the serving size by the number of servings in each box, information displayed in the nutritional facts section on the back of each box.’”
It is the fifth lawsuit over alleged slack fill that the company has faced. Judges in California, New York and Illinois have rejected them.
Magistrate Kim ruled the San Francisco lawsuit has plausibly alleged each of its causes of action, including fraud, and that a reasonable consumer could be deceived by the products’ packaging.
“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,” Kim wrote.
Lawyers have 30 days to amend their New Jersey complaint.