Case 3:20-cv-18751-AET-ZNQ Document 1 Filed 12/10/20 Page 1 of 32 PageID: 1
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`SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
`James C. Shah, Esq. (SBN 260435)
`jshah@sfmslaw.com
`475 White Horse Pike
`Collingswood, NJ 08107
`Tel: (856) 858-1770
`Fax: (860) 300-7367
`
`CLARKSON LAW FIRM, P.C.
`Ryan J. Clarkson (SBN 257074) (pro hac vice application forthcoming)
`rclarkson@clarksonlawfirm.com
`Matthew T. Theriault (SBN 244037) (pro hac vice application forthcoming)
`mtheriault@clarksonlawfirm.com
`Bahar Sodaify (SBN 289730) (pro hac vice application forthcoming)
`bsodaify@clarksonlawfirm.com
`Zach Chrzan (SBN 329159) (pro hac vice application forthcoming)
`zchrzan@clarksonlawfirm.com
`9255 Sunset Blvd., Suite 804
`Los Angeles, CA 90069
`Tel: (213) 788-4050
`Fax: (213) 788-4070
`
`
`Attorneys for Plaintiffs
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`REGAN IGLESIA, individually and on
`behalf of all others similarly situated,
`
`Plaintiffs,
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`vs.
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`TOOTSIE ROLL INDUSTRIES, LLC,
`an Illinois company,
`
`Defendants.
`
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`Error! Unknown document property name.
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`Case No.
`
`CLASS ACTION
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`COMPLAINT:
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`1. VIOLATION OF NEW JERSEY
`CONSUMER FRAUD ACT
`(N.J.S.A Section 56:8-1, et seq.)
`2. BREACH OF EXPRESS
`WARRANTY (N.J.S.A. Section
`12A:2-313 et seq.)
`3. UNJUST ENRICHMENT
`4. COMMON LAW FRAUD
`5. BREACH OF IMPLIED
`WARRANTY OF
`MERCHANTABILITY
`6. INTENTIONAL
`MISREPRESENTATION
`7. NEGLIGENT
`MISREPRESENTATION
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`DEMAND FOR JURY TRIAL
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`1 1
`COMPLAINT
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`Plaintiff Regan Iglesia (“Plaintiff”), individually and on behalf of all others
`similarly situated, brings this Complaint against Defendant Tootsie Roll Industries,
`LLC (“Tootsie” or “Defendant”) in connection with the false, deceptive, unfair,
`unlawful, and fraudulent advertising and labeling of opaque theater box candy
`products Junior Mints® and Sugar Babies® (the “Products”). Plaintiff alleges upon
`his personal knowledge, acts, and experiences, and as to all other matters, upon
`information and belief, including investigation conducted by his attorneys and their
`retained experts:
`
`INTRODUCTION
`Tootsie manufactures the most popular theater box candy products in the
`1.
`world. To increase profits at the expense of consumers and fair competition, Tootsie
`pioneered a scheme to deceptively sell candy in oversized, opaque boxes that do not
`reasonably inform consumers that they are half empty. Tootsie’s “slack-fill” scam
`dupes unsuspecting consumers across America to pay for empty space at premium
`prices. Figures 1-4 below are true and correct representations of Tootsie’s Products
`illustrating their uniformly deceptive, unfair, and unlawful business practice.
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`Figure 1.
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` Empty Space (Slack-fill)
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`Figure 2.
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`2. Defendant failed to comply with consumer protection and packaging
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`statutes designed to prevent this scam, and relied on its name and goodwill to further
`this scam even in the face of other lawsuits against similar companies, including two
`certified class actions in California against Defendant’s competitors for the same
`violations. This class action aims to remedy Defendant’s unfair business practice by
`making consumers whole for money lost as a result of Defendant’s deceptive product
`packaging.
`Figure 3.
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` Empty Space (Slack-fill)
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`Figure 4.
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`3.
`Defendant marketed the Products in a systematically misleading
`manner by representing them as adequately filled when, in fact, they contained an
`unlawful amount of empty space or “slack-fill.”1Defendant underfilled the Products
`for no lawful reason. The only purpose of this practice was to save money (by not
`filling the boxes) in order to deceive consumers into purchasing Defendant’s
`Products over its competitors’ products. Defendant’s slack-fill scheme not only
`harmed thousands of consumers but also harmed their competitors who had
`implemented labeling changes designed to alert consumers to the true amount of
`product in each box, long before Defendant did. Accordingly, Tootsie has violated
`the New Jersey Consumer Fraud Act (“CFA”), Section 56:8-1, et seq.; New Jersey
`Administrative Code Section 13:45A-9.1, et seq.; was unjustly enriched; has
`
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`1 Following an action by Plaintiff Ketrina Gordon against Defendant in the Central
`District of California, Gordon v. Tootsie Roll Industries, Inc., Case No. 2:17-cv-
`02664-DSF-MRW (C.D. Cal.), Defendant updated the Products’ packaging to address
`the claims of consumer deception at issue. That Plaintiff discovered on May 2, 2018
`that Defendant intended to roll out production of the updated packaging. Specifically,
`Defendant added to the front of the Products’ boxes a prominent depiction of the
`“actual size” of the candy therein, accompanied by a numerical “piece count” and
`additional disclaimers regarding, inter alia, product settling. Taken together, these
`packaging modifications eliminated consumer deception caused by Defendant’s
`previous packaging by conspicuously informing consumers of the exact size and
`number of candy pieces they are buying. In addition, such packaging modifications
`mirror compliance with the California State Assembly’s recent amendments to the
`applicable slack-fill statute. While such changes provide consumers greater
`transparency and the ability to make informed choices at the point of purchase before
`purchasing the Products, they do not address restitutionary relief and money lost by
`that Plaintiff and the Class as a result of Defendant’s deceptive packaging during the
`class period.
`5 5
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`committed common law fraud; has engaged in intentional and negligent
`misrepresentation, and has breached the implied warranty of merchantability.
`4.
`Plaintiff and the Class Members accordingly suffered injury in fact caused
`by the false, fraudulent, unfair, deceptive, unlawful, and misleading practices set forth
`herein, and seek compensatory damages, statutory damages, and restitutionary
`damages.
`COURTS AROUND THE COUNTRY FIND SLACK-FILL VIOLATIONS
`MERITORIOUS AND APPROPRIATE FOR CLASS TREATMENT
`5.
`Several state and federal courts have found that cases involving nearly
`identical claims are meritorious and appropriate for class treatment. See Iglesias v.
`Ferrara Candy Co., Case No. 3:17-cv-00849-VC (N.D. Cal.) (defendant’s FRCP
`12(b)(6) motion to dismiss slack-filled Jujyfruits® and Lemonhead® candy box
`claims denied and nationwide settlement class certified); Tsuchiyama v. Taste of
`Nature, Inc., Case No. BC651252 (L.A.S.C.) (defendant’s motion for judgment on the
`pleadings involving slack-filled Cookie Dough Bites® candy box claims denied and
`nationwide settlement subsequently certified through Missouri court); Gordon v.
`Tootsie Roll Industries, Inc., Case No. 2:17-cv-02664-DSF-MRW (C.D. Cal.)
`(defendant’s FRCP 12(b)(6) motion to dismiss slack-filled Junior Mints® and Sugar
`Babies® candy box claims denied); Escobar v. Just Born, Inc., Case No. 2:17-cv-
`01826-BRO-PJW (C.D. Cal.) (defendant’s FRCP 12(b)(6) motion to dismiss slack-
`filled Mike N’ Ike® and Hot Tamales® candy box claims denied and California class
`action certified); Thomas v. Nestle USA, Inc., Cal. Sup. Case No. BC649863 (April
`29, 2020) (certifying as a class action slack-fill claims brought under California
`consumer protection laws).
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`PARTIES
`6.
`Plaintiff Regan Iglesia is an individual residing in New Jersey. Plaintiff
`Iglesia purchased the Products in New Jersey within the last six (6) years of the filing
`of this Complaint. Specifically, Plaintiff Iglesia purchased the Junior Mints Product in
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`2017 at Albertsons in New Jersey. In making his purchase, Plaintiff relied upon the
`opaque packaging, including the size of the box and Product label, which was
`prepared and approved by Tootsie and its agents and disseminated statewide and
`nationwide, as well as designed to encourage consumers like Plaintiff Iglesia to
`purchase the Products. Plaintiff understood the size of the box and product label to
`indicate the amount of candy contained therein was commensurate with the size of the
`box, and he would not have purchased the Product, or would not have paid a price
`premium for the Product, had he known that the size of the box and Product label
`were false and misleading.
`7.
`Tootsie Roll Industries, LLC is a corporation headquartered in Chicago,
`Illinois. Tootsie Roll maintains its principal place of business at 7401 South Cicero
`Ave., Chicago, IL, 60629-5885. Tootsie, directly and through its agents, has
`substantial contacts with and receives substantial benefits and income from and
`through the State of New Jersey. Tootsie is the owner, manufacturer, distributor,
`advertiser, and seller of the Products, and is the company that created and/or
`authorized the false, misleading, and deceptive advertisements and/or packaging and
`labeling for the Products.
`8.
`Plaintiff is informed and believes, and based thereon alleges that at all times
`relevant herein each of these individuals and/or entities was the agent, servant,
`employee, subsidiary, affiliate, partner, assignee, successor-in-interest, alter ego, or
`other representative of each of the other Defendant and was acting in such capacity in
`doing the things herein complained of and alleged.
`9.
`In committing the wrongful acts alleged herein, Defendant planned and
`participated in and furthered a common scheme by means of false, misleading,
`deceptive, and fraudulent representations to induce members of the public to purchase
`the Products. Defendant participated in the making of such representations in that it
`did disseminate or cause to be disseminated said misrepresentations.
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`10.
`Defendant, upon becoming involved with the manufacture, advertising,
`and sale of the Products, knew or should have known that its advertising of the
`Products’ boxes, specifically by representing that they were full, were false, deceptive,
`and misleading. Defendant affirmatively misrepresented the amount of candy product
`contained in the Products’ boxes in order to convince the public and the Products’
`consumers users to purchase the Products all to the financial damage and detriment of
`the Plaintiff and the consuming public.
`11.
`Defendant, upon becoming involved with the manufacture, distribution,
`advertising, labeling, marketing, and sale of the Product, knew or should have known
`that the claims about the Products and, in particular, the claims suggesting that
`Products’ boxes were full with candy product when they are not, were false,
`misleading, and deceptive. Defendant affirmatively misrepresented the nature and
`characteristics of the Products in order to convince the public to purchase and
`consume the Products, resulting in profits to the detriment of the Plaintiff and
`consuming public. Thus, in addition to the wrongful conduct herein alleged as giving
`rise to primary liability, Defendant further aided and abetted and knowingly assisted
`each other in breach of their respective duties and obligations as herein alleged.
`12.
`Defendant created a falsehood that their candy boxes contain an amount of
`candy commensurate with the size of the box, though they actually contain
`nonfunctional, unlawful slack-fill. As a result, Defendant’s consistent and uniform
`advertising claims about the Products are false, misleading, and/or likely to deceive in
`violation of New Jersey and federal advertising laws.
`JURISDICTION AND VENUE
`13.
`This Court has subject matter jurisdiction of this action pursuant to 28
`U.S.C. Section 1332 of the Class Action Fairness Act of 2005 because: (i) there are
`100 or more class members, (ii) there is an aggregate amount in controversy
`exceeding $5,000,000, exclusive of interest and costs, and (iii) there is minimal
`diversity because at least one plaintiff and defendant are citizens of different states.
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`This Court has supplemental jurisdiction over any state law claims pursuant to 28
`U.S.C. Section 1367.
`14.
`Pursuant to 28 U.S.C. Section 1391, this Court is the proper venue for this
`action because a substantial part of the events, omissions, and acts giving rise to the
`claims herein occurred in this District. Plaintiff Regan Iglesia is a citizen of New
`Jersey who resides in Atlantic County, New Jersey; Tootsie made the challenged false
`representations to Plaintiff Iglesia in this District; Plaintiff Iglesia purchased the
`Product in this District; and Plaintiff Iglesia consumed the Product within this District.
`Moreover, Tootsie receive substantial compensation from sales in this District, and
`Tootsie made numerous misrepresentations which had a substantial effect in this
`District, including but not limited to, label, packaging, Internet, and infomercial
`advertisements, among other advertising.
`15.
`Tootsie is subject to personal jurisdiction in New Jersey based upon
`sufficient minimum contacts which exist between Tootsie and New Jersey. Tootsie is
`authorized to do and are doing business in New Jersey.
`FACTUAL BACKGROUND
`16.
`The amount of product inside any product packaging is material to any
`consumer seeking to purchase that product. The average consumer spends only 13
`seconds deciding whether to make an in-store purchase,2 which decision is heavily
`dependent on a product’s packaging, including the package dimensions. Research has
`demonstrated that packages that seem larger are more likely to be purchased.3
`17.
`Accordingly, Tootsie chose a certain size box for its Products to convey to
`consumers that they are receiving a certain and substantial amount of candy
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`2 Randall Beard, Make the Most of Your Brand’s 20-Second Window, NIELSEN, Jan.
`13, 2015, https://www.nielsen.com/us/en/insights/article/2015/make-the-most-of-
`your-brands-20-second-windown./.
`3 P. Raghubir & A. Krishna, Vital Dimensions in Volume Perception: Can the Eye
`Fool the Stomach?, 36 J. MARKETING RESEARCH 313-326 (1999).
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`commensurate with the size of the box. Such representations constitute an express
`warranty regarding the Products’ contents.
`18.
`Slack-fill is the difference between the actual capacity of a container and
`the volume of product contained therein. Nonfunctional slack-fill is the empty space
`in a package that is filled to less than its capacity for illegitimate or unlawful reasons.
`19.
`Tootsie falsely represents the quantity of candy in each of the Products’
`opaque boxes through its packaging. The size of each box leads the reasonable
`consumer to believe he or she is purchasing a box full of candy product when, in
`reality, what he or she actually receives is about one-third to one-half less than what is
`represented by the size of the box. Plaintiff’s packaging expert will opine that the
`Products contain a high degree of nonfunctional slack-fill.
`20.
`Even if Plaintiff and other reasonable consumers of the Products had a
`reasonable opportunity to review, prior to the point of sale, other representations of
`quantity, such as net weight or serving disclosures, they did not and would not have
`reasonably understood or expected such representations to translate to a quantity of
`candy product meaningfully different from their expectation of a quantity of candy
`product commensurate with the size of the box.
`21.
`Plaintiff retained two economics experts. These experts conducted a
`randomized conjoint experiment which included a 3,788-participant consumer survey.
`The results from the survey confirmed that nearly 90% of candy consumers
`overestimate the amount of candy contained in the Products. This is true even for
`repeat purchasers of the Products. This survey also shows that size of the Products’
`packaging has a significant impact on a consumer’s choice to purchase the Products.
`22.
`Plaintiff’s packaging and economic experts will opine that the Products
`contained a high degree of nonfunctional slack-fill. Based on their calculations, they
`will opine that the price premium for Juniors Mints was 26.0% while the price
`premium for Sugar Babies was 21.5% for the retail sales channel. For the movie
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`theater sales channel, the price premia for Junior Mints and Sugar Babies was 16.4%
`and 13.4%, respectively.
`23.
`Prior to the point of sale, the Products’ packaging does not allow for a
`visual or audial confirmation of the contents of the Products. The Products’ opaque
`packaging prevents a consumer from observing the contents before opening. Even if a
`reasonable consumer were to “shake” the Products before opening the box, the
`reasonable consumer would not be able to discern the presence of any nonfunctional
`slack fill, let alone the one-third to one-half nonfunctional slack-fill that is present in
`the Products.
`24.
`The other information that Tootsie provides about the quantity of candy
`product on the front and back labels of the Products does not enable reasonable
`consumers to form any meaningful understanding about how to gauge the quantity of
`contents of the Products as compared to the size of the box itself. For instance, the
`front of the Products’ packaging does not have any labels that would provide Plaintiff
`with any meaningful insight as to the amount of candy to be expected, such as a fill
`line, actual size depiction accompanied by the words “actual size,” and a numerical
`piece.
`25.
`Disclosures of net weight and serving sizes in ounces or grams do not
`allow the reasonable consumer to make any meaningful conclusions about the
`quantity of candy contained in the Products’ boxes that would be different from the
`reasonable consumer’s expectation that the quantity of candy product is
`commensurate with the size of the box. Plaintiff’s randomized conjoint survey
`confirmed the net weight disclosures on the Products do not give consumers an
`accurate expectation regarding product fill level.
`26.
`The net weight and serving size disclosures does not allow Plaintiff to
`make – and Plaintiff did not make – any meaningful conclusions about the quantity of
`candy product contained in the Products’ boxes that were different than Plaintiff’s
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`expectations that the quantity of candy product would be commensurate with the size
`of the box.
`27. Moreover, the top of the Products’ boxes clearly indicate that they will
`open outward when unsealed. This specific design leads the reasonable consumer to
`believe that the package does not require any empty space to account for the opening
`of the box, such as with a perforated tab whose intended use might be to dispense the
`candy product. True and correct images of the top of a representative sample of the
`Products’ boxes appear below as Figures 5 and 6.
`Figure 5.
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`Figure 6.
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`28.
`Plaintiff would not have purchased the Products had he known that the
`Products contained slack-fill that serves no functional or lawful purpose.
`29.
`As pictured supra, Tootsie uniformly under-fill the Products’ boxes,
`rendering about half of each box slack-fill, none of which serves a functional or lawful
`purpose.
`30.
`As confirmed during Plaintiff’s investigation, including retention of
`experts in packaging design, the slack-fill contained in the Products’ packaging does
`not protect the contents of the packages. In fact, the greater the amount of slack-fill,
`the more room the contents have to bounce around during shipping and handling,
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`making it more likely that the contents will break or sustain damage. Plaintiff shall
`proffer expert testimony to establish these facts once this case reaches the merits.
`31.
`If, on the other hand, the amount of candy product contained in each box
`was commensurate with the size of the box, as reasonable consumers expect, then the
`candy product would have less room to move around during shipping and handling,
`and would be less likely to sustain damage.
`32.
`As such, the slack-fill present in the Products’ packaging makes the candy
`product more susceptible to damage, and, in fact, causes the candy product to often
`sustain damage.
`33.
`The Products are packaged in boxes and sealed with heated glue. A true
`and correct representation of the heated glue on the Products’ packaging is shown in
`the image below.
`Figure 7.
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`34.
`As confirmed by Plaintiff’s expert in packaging design, the equipment
`used to seal the box does not breach the inside of the Products’ containers during the
`packaging process. The heated glue is applied to an exterior flap of the box, which is
`then sealed over the top by a second exterior flap.
`35.
`As confirmed during Plaintiff’s survey of comparator boxed candy
`products available in the marketplace, neither the heated glue application nor the
`sealing equipment requires slack-fill during the manufacturing process. Even if there
`were no slack-fill present in the Products’ boxes, the machines used for enclosing the
`contents in the package would work without disturbing the packaging process.
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`36.
`As confirmed by Plaintiff’s expert in packaging design, the slack-fill
`present in the Products’ containers is not a result of the candy product settling during
`shipping and handling. Given the Products’ density, shape, and composition, any
`settling occurs immediately at the point of filling the box. No additional product
`settling occurs during subsequent shipping and handling.
`37.
`The contents of the Products are of a great enough density that any slack-
`fill present at the point of sale was present at the time of filling the containers and
`packaging the contents.
`38.
`As confirmed by Plaintiff’s expert in packaging design, the Products’
`packaging is not reusable or of any significant value to the Products independent of its
`function to hold the candy product. The Products’ containers are boxes intended to be
`discarded immediately after the candy is eaten.
`39.
`As confirmed by Plaintiff’s expert in packaging design, the slack-fill
`present in the Products’ containers does not accommodate required labeling,
`discourage pilfering, facilitate handling, or prevent tampering.
`40.
`Tootsie can easily increase the quantity of candy product contained in each
`box (or, alternatively, decrease the size of the containers) by 33-50% more volume.
`The “Nutrition Facts” panel on the back of each box states servings of 2.5 and 4.5
`servings per container for Junior Mints® and Sugar Babies®, respectively. By
`arithmetic, each serving would be equal to 100% expected total fill, divided by 2.5
`servings for Junior Mints® and divided by 4.5 servings for Sugar Babies®, yielding a
`value of 40% of volume per serving for Junior Mints® and 22.2% of volume per
`serving for Sugar Babies®. Given the Products can accommodate an additional 45%
`of candy product, consumers are being shortchanged roughly 1.5 and 2.5 servings per
`box. True and accurate representations of the Products’ net weight and serving size
`disclosures are set forth below in Figure 8.
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`Figure 8.
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`41.
`Contrast Defendant’s packaging of the Products with a comparator
`product, such as “Junior Mints XL” (“XL”) (pictured below), another candy product
`manufactured by Defendant itself and similarly sold at retail outlets and movie
`theaters throughout New Jersey and the United States. A true and correct
`representation of the front of XL is shown below in Figure 9.
`Figure 9.
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`42.
`XL is sold in identical packaging to that of the Products, i.e., opaque boxes
`of identical size, physical dimensions, shape, and material.
`43.
`XL is packaged using identical fill and heated glue enclosing machines to
`those of the Products.
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`44.
`XL contains identical candy—identical size, shape, and density—as that of
`the Products.
`45.
`However, contrary to the Products, XL contains more candy product. The
`Products’ packaging contains 40 pieces of candy, yielding 45% nonfunctional slack-
`fill. In contrast, XL, which has the exact same packaging, contains 47 pieces of candy,
`yielding 33% nonfunctional slack-fill. In other words, the two products within the line
`of Products at issue have the exact same packaging and candy product, and the only
`difference is the amount of candy product contained therein.
`46.
`The Products both have serving sizes of 16 pieces of the same candy. Yet,
`XL contains a greater number of total servings. A true and correct presentation of the
`nutritional panel of XL, which reports its serving size and total servings per container,
`is set forth below in Figure 10.
`Figure 10.
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`47.
`The packaging of XL evidences that Defendant is clearly capable of
`increasing the amount of candy product contained in “regular” Junior Mints®, as
`demonstrated by the packaging and sale of the “XL” version.
`48.
`XL’s packaging evidences that the slack-fill present in the Products is
`nonfunctional.
`49.
`XL’s packaging evidences that the slack-fill present in the Products, and at
`a minimum in the “regular” version of the Products, is not necessary to protect and in
`fact does not protect the contents of the Products.
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`Error! Unknown document property name.
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`50.
`XL’s packaging evidences that the slack-fill present in the Products, and at
`a minimum in the “regular” version of the Products, is not a requirement of the
`machines used for enclosing the contents of the Products.
`51.
`XL’s packaging evidences that the slack-fill present in the Products, and at
`a minimum in the “regular” version of the Products, is not a result of unavoidable
`product settling during shipping and handling
`52.
`XL’s packaging evidences that the slack-fill present in the Products, and at
`a minimum in the “regular” version of the Products, is not needed to perform a
`specific function.
`53.
`XL’s packaging evidences that the slack-fill present in the Products, and at
`a minimum in the “regular” version of the Products, is not part of a legitimate reusable
`container.
`54.
`In short, by including more candy product in the exact same box, and then
`reporting a higher number of total servings, Defendant itself admits that the Products
`contain nonfunctional slack-fill.
`55.
`XL’s packaging evidences that the slack-fill present in the Products, and at
`a minimum in the “regular” version of the Products, is able to further increase the
`level of fill in the Products. XL’s packaging evidences that Defendant has reasonable
`alternative designs available to package its Products.
`56.
`Further contrast Tootsie’s packaging of the Products with a comparator
`product, such as “Boston Baked Beans” (“Boston Beans”), a candy product
`manufactured by Tootsie’s competitor, Ferrara Candy Co., and similarly sold at movie
`theaters and retail outlets located throughout New Jersey and the United States. A true
`and correct representation of the front of the Boston Beans product is shown in the
`image below as Figure 11.
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`Figure 11.
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`57.
`Boston Beans are sold in identical packaging to that of the Products, i.e.,
`opaque boxes of identical size, shape, volume, and material. Boston Beans are
`packaged using nearly identical fill and heated glue enclosing machines to those of the
`Products.
`58.
`Boston Beans are coated candies of nearly identical size, shape, and
`density of that of the Products. However, contrary to the Products, Boston Beans have
`very little slack-fill and negligible nonfunctional slack-fill. A true and correct
`representation of the open container of Boston Beans is pictured in Figure 12 below.
`Figure 12.
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`59.
`Boston Beans’ packaging provides additional evidence that the slack-fill
`present in the Products’ packaging is nonfunctional to the tune of 33-50%.
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`60.
`Boston Beans’ packaging provides additional evidence that the slack-fill in
`the Products is not necessary to protect and, in fact, does not protect, the contents of
`the Products; is not a requirement of the machines used for enclosing the contents of
`the Products; is not a result of unavoidable product settling during shipping and
`handling; is not needed to perform a specific function; and is not part of a legitimate
`reusable container.
`61.
`Boston Beans’ packaging provides additional evidence Tootsie is able to
`increase the level of fill inside the Products’ boxes which are similar to Boston Beans.
`62.
`Boston Beans’ packaging provides more evidence that reasonable
`alternative packaging designs exist and are available.
`63.
`As confirmed by Plaintiff’s economics experts and large-scale,
`randomized conjoint consumer study, fill level and box size have a causal impact on
`consumers’ willingness to pay for the Products. Specifically, the price premium for
`Junior Mints was 26.0% while the price premium for Sugar Babies was 21.5% for the
`retail sales channel. For the move theater sales channel, the price premia for Junior
`Mints and Sugar Babies was 16.4% and 13.4%, respectively. Plaintiff would not have
`purchased the Product if he had known that the Product packaging contained
`nonfunctional slack-fill.
`64.
`Plaintiff did not expect that the Products would contain nonfunctional
`slack-fill, especially given that nonfunctional slack-fill, as opposed to functional
`slack-fill, is prohibited by federal law as well as New Jersey law.
`65.
`The Products are made, formed, and filled so as to be misleading. The
`Products are, therefore, misbranded.
`66.
`The slack-fill contained in the Products does not serve a legitimate or
`lawful purpose.
`67.
`Tootsie’s false, deceptive, and misleading label statements are unlawful
`under state and federal consumer protection and packaging laws.
`68.
`Tootsie intended for Plaintiff and the Class members to be misled.
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`69.
`Tootsie’s misleading and deceptive practices proximately caused harm to
`Plaintiff and the Class.
`CLASS ACTION ALLEGATIONS
`70.
`Plaintiff brings this action individually