Judge column: Paying for air subject of lawsuit


David Hejmanowski - Contributing Columnist



“Our products and labels comply with all FDA regulations and provide consumers with the information they need to make informed purchase decisions.”

—Matt Pye, Vice President

Just Born

“A lean compromise is better than a fat lawsuit.”

— George Herbert

It has become quite popular in recent years for candy manufacturers to sell their wares in rectangular cardboard boxes. Nowhere is this more true than at the large chain movie theaters, where those boxes are often sold at a substantial mark-up. That was the case with the box of Mike & Ike’s that Stephanie Escobar bought at the movies in Los Angeles, California.

When she opened that box (presumably during the 30 minutes of previews that the major chain theaters seem to show), she was shocked to find how little of the box contained candy and how much of it was filled with air.

So shocked, in fact, that rather than eat her candy (her popcorn would have to suffice), she took it home and measured how much of the box was filled with product. It turned out that only 54 percent of the box was candy and the other 46% was what the industry calls ‘slack fill’ — in this case, air.

Escobar has now filed a class action lawsuit against the manufacturer of Mike & Ike’s, Just Born (the people who bring you Marshmallow Peeps every Easter). She is claiming that their packaging violates California’s false advertising law as well as several other consumer law statutes. Just Born denies the allegations, noting that the weight of the product and other information are clearly listed on the box.

A class action suit is brought by a plaintiff or group of plaintiffs who ask the court to certify that they represent a larger group of people who are not involved in the lawsuit but who likely have a similar claim against a major defendant- often a large corporation.

If the court agrees, there then has to be a definition of exactly who the ‘class’ of plaintiffs are. Any verdict or monetary settlement in favor of the plaintiffs is then divided, in some way, among that class.

For the plaintiffs, a class action lawsuit is an opportunity to join together to bring an action against a powerful opponent whom a single plaintiff might not have the resources to sue. The fact that an entire class of plaintiffs will be eligible to recover increases the potential damages amount and provides greater opportunities to cover possible legal fees in the case.

For defendants, class actions give them the opportunity to resolve their liability in a single case or single settlement rather than face dozens, hundreds or even thousands of individual suits.

Escobar’s suit is not unusual. Just last fall a class action lawsuit was filed against Herr’s potato chips, claiming that their packaging was 54 percent slack fill, while the industry standard for potato chip bags was just 33 percent.

A 2012 lawsuit against Frito-Lay alleged false advertising because the product claimed to have 0 grams of trans fats while neglecting to mention the substantial amount of fat in the product. Two years ago, Diamond Foods agreed to pay up to $2.75 million to settle a class action suit over their extensive use of the word ‘natural’ to describe the ingredients of their Kettle brand chips.

If a class action lawsuit is settled, several things have to happen. First, a settlement amount has to bet set, just as the Kettle suit was capped at $2.75 million.

Second, a mechanism has to be established to allow members of the class to claim their settlement amount. They may need to show a receipt from a purchase made, or may have been identified by the defendant as a past customer. In the Kettle Chips lawsuit, all potential plaintiffs had to do was go to a website and fill out a form and they became eligible for a credit.

Third, the court has to approve the final settlement and the proceeds have to be distributed- often in the form of an electronic credit or a coupon.

The Mike & Ike’s lawsuit is still in its infancy and it will likely be months, if not years, before the matter concludes.

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David Hejmanowski

Contributing Columnist

David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.

David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.