Laura Pennington  |  August 10, 2018

Category: Consumer News

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A Missouri federal court rejected Class certification in a proposed Mike and Ike class action lawsuit alleging the company underfills their candy boxes on purpose in order to maximize their profits.

U.S. District Judge Nanette K. Laughrey found that plaintiff Daryl White Jr. is not a member of the Class he wanted to represent.

The Mike and Ike class action lawsuit was filed by White who claimed the company benefitted from unjust enrichment and also violated the Missouri Merchandising Practices Act.

The court determined that White does not meet the threshold mandate that he is himself a member of two separate unjust enrichment Classes.

The plaintiff sought a “restatement” Class and an “appreciation” Class, but the court says he is not a member of either.

Originally, White sought certification of three total Classes, the third of which was for Missouri residents related to alleged violations of the MMPA. That Class applies to consumers in Missouri who purchased five-ounce boxes of Mike and Ike candy or Hot Tamales candy, both made by defendant Just Born Inc.

Those were not the only reasons the court denied the certification, however.

The judge says that the Mike and Ike slack-fill class action lawsuit was too largely based on individual inquiries.

The Mike and Ike class action lawsuit against the candymaker was filed in February 2017 after White purchased a Hot Tamales box and a Mike and Ike box at a Dollar Store in Missouri.

The plaintiff claims that the box size misled him to purchase the candy because he thought he was getting more candy than he did receive.

“The products are uniformly under-filled or slack-filled,” the Mike and Ike class action lawsuit says. “Specifically, approximately 65 percent of the Hot Tamales container is filled with candy, and the remaining 35 percent of the container is empty. Similarly, approximately 66 percent of the Mike and Ike container is filled with candy, and the remaining 34 percent of the container is empty.”

The unjust enrichment class action lawsuit accuses the manufacturer of purposefully packaging the candies in a box that appears to hold more product than what’s inside.

Empty space, known as slack-fill, is allegedly used by Just Born, according to White’s Mike and Ike candy class action lawsuit. The plaintiff alleges that at least 35 percent of the box is slack-fill space.

A similar slack-fill class action lawsuit was filed in August 2017 in California. In that case, a different plaintiff and legal counsel alleged that the boxes used by Just Born are at least 30 percent empty, which led to allegations of false advertising, consumer and unfair competition law violations in California. In October, however, a U.S. District Judge granted a joint motion to dismiss in that case.

White is represented by David L. Steelman and Stephen F. Gaunt of Steelman Gaunt & Horsefield.

The Mike and Ike Slack-Fill Class Action Lawsuit is Daryl White Jr., et al. v. Just Born Inc., Case No. 2:17-cv-04025-NKL, in the U.S. District Court for the Western District of Missouri, Central Division.

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13 thoughts onCertification Denied in Mike and Ike Slack-Fill Class Action Lawsuit

  1. Marsha Fliegelman says:

    Add me

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