McCormick ‘Slack-Fill’ Class Actions Consolidated in Washington DC

On Tuesday, the Judicial Panel on Multidistrict Litigation (JPML) consolidated several lawsuits alleging McCormick & Co. “slack-filled” their pepper containers to a federal court in Washington, D.C. The JPML decided that the allegations in the potential class actions shared common questions of fact.

The order to consolidate and transfer the McCormick pepper lawsuits includes three class action lawsuits filed by consumers and a fourth lawsuit filed by a competitor of McCormick. Other tag-along consumer cases filed since June may also be transferred and consolidated.

The McCormick pepper lawsuits all allege that McCormick started filling its opaque pepper tins with 25 percent less product since early 2015, while keeping the packaging the same size.

The first McCormick pepper class action lawsuit was filed in June by plaintiff Rhonda Dupler in New York. Dupler alleged that McCormick kept their original tin packaging in three sizes but filled the tins with only 75 percent of the original product amount, without adjusting the packaging size or the price. Dupler said weight information about the pepper contents indicating a drop from 2 ounces to 1.5 ounces was only listed in small text near the bottom of the tin.

Several other class action lawsuits were filed across the country in Washington D.C., Florida, Missouri, Illinois, Nevada and California.

Watkins Inc., a competitor of McCormick, also filed a slack-filled pepper lawsuit in June, claiming that McCormick’s short-filling of their pepper tins deceives consumers into thinking that the pepper quantity is equal to or exceeds the amount of pepper in Watkins’ tins.

Consumers in the class action MDLs against McCormick did not want the Watkins case included by the consolidation; however, the JPML felt that the complaints in all the McCormick pepper lawsuits were similar enough to warrant consolidation. The panel explained, “We do not see the litigation, taken as a whole, as benefitting from the exclusion of Watkins from the MDL, given its clear factual overlap with the other cases.”

The JPML did, however, sever an Illinois lawsuit that alleged claims of McCormick underfilling tins as well as allegations that the spice company worked with retail stores including Wal-Mart, among others, to underfill private-label tins that McCormick produced.

“After considering the argument of counsel, we find that the actions in this litigation involve common questions of fact, and that centralization in the District of the District of Columbia will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation,” the consolidation and transfer order read. “Centralization will eliminate duplicative discovery, avoid inconsistent pretrial rulings, particularly on class certification; and conserve the resources of the parties, their counsel and the judiciary.”

The next step after the transfer to U.S. District Court Judge Ellen Segal Huvelle will entail coordinated or consolidated pretrial proceedings.

Watkins Inc. is represented by Geoffrey P. Jarpe and Charles G. Frohman of Maslon LLP.

The plaintiffs are separately represented by Hagens Berman Sobol Shapiro LLP, Robbins Geller Rudman & Dowd LLP,Denlea & Carton LLP, the Law Offices of Howard W. Rubinstein, Levi & Korsinsky LLP, TheSimon Law Firm PC, Kamberlaw LLP, Donovan Rose Nester PC, Armstrong Law Firm LLC, Durney Brennan Ltd., Nelson & Nelson PC and the Kazerouni Law Group APC, among others.

The McCormick Pepper MDL is In Re: McCormick & Co. Inc. Pepper Products Marketing and Sales Practices Litigation, MDL No. 2665, in the U.S. District Court for the District of Columbia.

UPDATE July 20, 2016: McCormick continues to fight for dismissal, arguing that selling pepper in a certain sized container is not considered advertising under the provisions of the Lanham Act.

UPDATE 2: On Oct. 25, 2016, a Washington D.C. federal judge denied McCormick & Co. Inc.’s motion to dismiss a putative false advertising class action lawsuit alleging thespice maker underfills its pepper tins.

UPDATE 3: February 2020, the McCormick black pepper class action settlement is now open. Click here to file a claim.