Antitrust Law Daily Barilla slack-fill settlement class approval vacated
Wednesday, July 8, 2020

Barilla slack-fill settlement class approval vacated

By Jody Coultas, J.D.

Past purchasers of a product are not eligible for class certification to seek injunctive relief under Federal Rule of Civil Procedure 23(b)(2).

The U.S. Court of Appeals in New York City vacated certification of a class action alleging that specialty pastas sold by Barilla S.p.A. contained non-functional slack-fill in violation of the New York General Business Law. The federal district court in Brooklyn, New York, certified a class of past purchasers for settlement purposes. The settlement included injunctive relief in the form of a disclaimer and minimum fill line on boxes of pasta going forward but did not provide monetary damages to class members. The Second Circuit concluded that the class of past purchasers of pasta was not entitled to injunctive relief because there was no likelihood of a future injury (Berni v. Barilla S.p.A., July 8, 2019, Cabranes, J.).

Barilla sells a set of specialty pastas, including those that are whole grain, gluten free, and made with added fiber or protein. Purchasers of these specialty pastas alleged that the newer Barilla pastas were sold in boxes of the same size as the older, familiar Barilla pastas but contained less pasta. The boxes tricked consumers and contained non-functional slackfill in violation of the New York General Business Law, four consumers alleged.

In June 2019, the federal district court in Brooklyn gave final approval to a settlement resolving the claims. The settlement agreement did not include monetary damages to the class members, but Barilla agreed to modify the pasta packaging to include a minimum fill line and a disclaimer noting the empty space in the box. The settlement provided $450,000 in attorney fees and costs. One class member appealed, arguing that that the Rule 23(b)(2) certification was incorrect; that the class had not been adequately represented in the settlement negotiations; and that, even if the class were certifiable, the settlement unfairly rewarded class counsel at the expense of class members.

At the outset, the court noted that the objector, as a member of the class, had an interest in the settlement that created a case or controversy sufficient to satisfy the constitutional requirements of injury, causation, and redressability.

Where a district court certifies for class action settlement only, appellate courts give "heightene[d] attention" to the justifications for binding the class members. Since the relief sought was equitable in nature, the court must determine that the relief was proper for each and every member of the group of past purchasers of Barilla pasta.

Injunctive relief is not proper for the group of past purchasers of Barilla pasta because not every member of that group would benefit from the "fill-line" and disclaimer language included in the settlement proposal, according to the court. A claim for injunctive relief requires a plaintiff to show a likelihood of injury in the future. The court concluded that past purchasers are unlikely to purchase a product again after finding that they were deceived. Even if a purchaser does buy the pasta again, it was unlikely that the purchaser would be tricked again into believing the specialty pasta box is filled to the same level as traditional pastas. "[N]ext time they buy one of the newer pastas, they will be doing so with exactly the level of information that they claim they were owed from the beginning. A ‘fill-line’ or some disclaimer language will not materially improve their position as knowledgeable consumers."

Several district courts have attempted to carve out an exception to the requirements for injunctions so that past purchasers can maintain class actions for such relief. The district court in this case found that because future purchasers would still be buying an allegedly deceptive product, even if they know how they are being deceived, they can seek injunctive relief. The Second Circuit held that this exception to Rule 23(b)(2) was contrary to law and that courts cannot create one to achieve a policy objective, no matter how commendable that objective.

The case is No. 19-1921-cv.

Attorneys: Ronen Sarraf (Sarraf Gentile LLP) and Daniella Quitt (Glancy Prongay & Murray LLP) for Alessandro Berni. Steven P. Blonder (Much Shelist, PC) for Barilla S.p.A. and Barilla America, Inc.

Companies: Barilla S.p.A.

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