Court Declines To Certify "Slack Fill" Class Action

A Missouri federal judge recently denied certification of a proposed "slack fill" class action against the maker of "Mike and Ike" candy. The suit claimed that candy company Just Born, Inc. tricked consumers into thinking they were getting more product than they actually paid for by virtue of empty space ("slack fill") at the top of the boxes when they are opened. The court, however, held that because many putative class members knew and did not care about the extra space in the box and purchased the products anyway, individualized issues of knowledge, injury, and standing would predominate the action.

In White v. Just Born, Inc., 2018 WL 3748405 (W.D. Mo. Aug. 7, 2018), the plaintiff asserted claims under the Missouri Merchandising Practices Act (MMPA) and for unjust enrichment based on the alleged slack fill in the defendant's candy packaging. According to the plaintiff, Mike and Ike box sizes lead purchasers to believe that they are getting more candy than they