Federal Court Victory for Nate Lichtenstein and Ben Haskin Featured in Law360

03.21.19

Aronberg Goldgehn attorneys Nate Lichtenstein and Ben Haskin’s victory for Tootsie Role is featured in a March 20, 2019, write-up by Law360 titled, “Tootsie Roll Escapes Slack-Fill Suit Over Junior Mints Boxes.”

Written by Celeste Bott, the article states that Tootsie Roll dodged claims that its Junior Mints are packaged in deceptively large boxes, when an Illinois federal judge ruled Tuesday that consumers would need to show how the candy they received was worth less than they paid.

Paige Stemm, the lead plaintiff in a proposed class action against the candy maker, had argued that there are not enough Junior Mints in the packages.

“That she expected to receive something more than what she got, in and of itself, does not constitute actual damages,” U.S. District Judge John Z. Lee said in his order dismissing the suit without prejudice.

The article also states that the claim can’t be saved by alleging the customers wouldn’t have bought the product had they known about the amount of empty space, the judge said. Even if the size of the packaging prompted them to buy it, they don’t assert they paid more than the candy’s actual value, he said.

“It might be one thing for Stemm to allege that the oversized box deceived her into thinking that the individual candy pieces were bigger than they were and that the price that she paid was the fair market value of the larger pieces, and not the smaller pieces that she actually got (assuming, of course, a good faith basis for such a claim). But she does not do this,” Judge Lee said.

Tootsie Roll Industries was represented by Ben Haskin and Nate Lichtenstein of Aronberg Goldgehn and David Jolley of Covington & Burling LLP.

The article also says that in August 2018, a New York federal judge axed another slack-fill lawsuit against Tootsie Roll over its Junior Mints boxes, finding the package contains enough information for consumers to figure out how much candy they contain.

Slack-fill lawsuits alleging that food makers intentionally underfill their packages have skyrocketed in recent years, despite limited success for those who bring them, court records show.

The case is Stemm et al. vs. Tootsie Roll Industries Inc., case number 1:18-cv-2289, in U.S. District Court for the Northern District of Illinois.