A settlement has been reached in one of the sweetest lawsuits ever to be filed in federal court, but details of the payday are under wrappers.

Daryl White Jr. of Belle, Missouri, didn't sugar coat his anger about paying a dollar apiece for boxes of Mike and Ikes and Hot Tamales that were only two-thirds full. Determined not to be a sucker, he hired counsel and paid the U.S. District Court Western District of Missouri a $400 filing fee to sue Just Born Inc., the candymaker's parent company, for alleged deceptive advertising and unjust enrichment.

His attorney Naomi Spector declined to comment on the agreement reached Thursday. She served as co-counsel in Dacia Trentham versus Taste of Nature Inc. in Phelps County circuit court, where too much air in bags of Cookie Dough Bites and other company products led to a class-action settlement.

Taste of Nature Inc. in that case agreed to pay wronged customers 25 cents per package without a receipt, or up to $12.50 with one, for the under-filled packages. The federal complaint filed on White’s behalf alleged similar grievances.

“The Products are uniformly under-filled or 'slack-filled,'” attorney David Steelman wrote in the case brief. “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 lawsuit did not specify whether the container had insufficient Mikes or lacked enough Ikes.

While the complaint might cause some snickers, the alleged slack-fill practices have apparently put White in quite a sour patch. He didn't ask for a specific damage award, but wanted to add fellow Missourians brittle over getting too little candy in oversized boxes and he has asked for class action status.

District Judge Nanette K. Laughrey denied that request, but White appealed to the Eighth Circuit Court of Appeals, which has not issued a ruling.

Attorney Alan L. Rupe representing Just Born Inc. directed comments to co-counsel Eric Y. Kizirian, who did not immediately return a call placed to his office. However, in a motion to dismiss White’s complaint they denied the partially empty boxes were a violation of state or federal laws.

“Moreover, only nonfunctional slack-fill is barred under the law. But Plaintiff has not alleged sufficient facts as to why the alleged slack-fill is nonfunctional or deceptive, and has failed to address obvious, important purposes of the slack-fill in Mike and Ike and Hot Tamales boxes,” the motion states. “Plaintiff’s conclusory allegations are insufficient to plausibly allege that Defendant’s products contain impermissible slack-fill.”

A similar lawsuit was filed in California in 2017.

Laughrey denied the motion to dismiss and the case was set for jury trial in December. However the trial has been canceled since the confidential agreement was reached Thursday, dependent on the dismissal of the class-action request pending in the Eighth Circuit.

ppratt@columbiatribune.com



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