Plaintiff failed to demonstrate

Mint Core

We bring you, today, a second installment in Tootsie Roll Industries' (TRI) Junior Mints slack-fill saga.

Last August, we reported on the rejection of a Junior Mint slack-fill class action brought against manufacturer TRI in the Southern District of New York. [Side note: In a memorable phrase, the SDNY gave the plaintiffs a spanking by saying that it declined "to enshrine into the law an embarrassing level of mathematical illiteracy."]

For the latest iteration of what seems to be a new slack-fill subgenre, we move to the Northern District of Illinois, where named plaintiff Paige Stemm sued manufacturer TRI for violating the Illinois Consumer Fraud and Deceptive Practices Act (ICFA). The specific charge, filed in March 2018, is that the company packaged its famous candy with 44 percent nonfunctional slack fill, leading Stemm to believe she was getting more than she wound up receiving.

Boxed In?

TRI launched a motion to dismiss in May 2018, which the district court addressed in a recent opinion.

The court rejected TRI's argument that the information describing the product's net weight and number of pieces precluded Stemm's claim. But the court agreed with TRI's argument that Stemm had failed to plead actual damages to establish a deceptive act or practice under the ICFA. "Stemm has not alleged that the candy that she received was defective or worth less than the dollar she paid for it," the court argued. "Instead, she claims that she expected to receive more candy than she did. ... That she expected to receive something more than what she got, in and of itself, does not constitute actual damages."

The Takeaway

With that, the court dismissed Stemm's case. But it left open a pathway for the class to return with an amended complaint, which must be filed by April 10.

Together with the earlier TRI case and other similar cases in the national docket, court watchers may be able to discern a tightening of standards regarding slack-fill cases, which have become the center of a booming legal subpractice for the plaintiffs' bar. As we noted back in August, it is becoming increasingly difficult for plaintiffs to get past the pleading stage on such cases. And with states taking some of the teeth out of their anti-slack-fill laws, that trend is likely to continue.

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