By: Robert Loerzel

“Slack fill” isn’t a phrase you often hear in everyday speech. Most people don’t even know what it means, even though they have experienced it. According to the U.S. government’s definition, “slack fill is the difference between the actual capacity of a container and the volume of product contained therein.” In other words, it’s that empty space you were disappointed to find inside a box of candy you bought at a movie theater—when the box turned out to be only half full. And it’s the air inside a bag of potato chips—all of that space above and around the chips.

“This is one of those issues that gets consumers riled up. They feel cheated,” says Edgar Dworsky, a former Massachusetts assistant attorney general who’s now a consumer advocate in Boston running the Consumer World website.

But does feeling cheated justify suing? Some people clearly think so. According to a 2017 report by the U.S. Chamber Institute for Legal Reform, plaintiffs lawyers filed at least 29 lawsuits in 2015 alleging that companies cheat shoppers with deceptively large packages—followed by another 37 slack-fill cases in 2016. Those tallies are mostly federal cases, without counting potentially dozens of state lawsuits.

“I think it’s only grown since we wrote that report,” says Cary Silverman, a partner at Shook, Hardy & Bacon in Washington, D.C., who co-authored the U.S. Chamber report with James Muehlberger, a partner in his firm’s Kansas City, Missouri, office. “They’re nuisance lawsuits,” Silverman says. “They are extremely easy to bring. Go over to the supermarket and shake a box. And if it rattles, that’s a lawsuit. … It makes a mockery of the civil justice system.”

But Ryan J. Clarkson, managing attorney at the Clarkson Law Firm in Los Angeles, says he has a higher purpose in mind when he represents plaintiffs against candy companies. “Slack-fill litigation is important to make sure manufacturers are using packaging that is not false, deceptive or misleading,” he says. “It’s all about corporate accountability.”

Maia Kats, director of litigation for the Washington, D.C.-based Center for Science in the Public Interest, says many slack-fill cases have merit. “Clearly, if you are a chip manufacturer and you blow up the chip bag three or four times, you are doing so for a reason—that is, to give the impression to consumers that they are receiving more product than they are actually receiving,” says Kats, whose group has not filed any slack-fill lawsuits. “The motivation is to encourage purchases at a higher price point, and that’s classic consumer deception.”

As an example of such deception, Clarkson points to Jujyfruits. In a federal lawsuit in San Francisco, Clarkson won preliminary approval on June 26 for a $2.5 million settlement with Ferrara Candy. Clarkson’s client, Thomas Iglesias, sued after spending $4 on a box of Jujyfruits at a movie theater concession stand in San Francisco and discovered that the box was roughly half full. Illinois-based Ferrara has agreed to pay up to $7.50 each to shoppers who purchased boxes or bags of Jujyfruits, Lemonhead, Jaw Busters and other candies in the past five years. And Ferrara says its packages will have less empty space in the future: Boxes will be 75 percent full of candy, while bags packaged within boxes will be 50 percent full. “We think it’s an excellent result for consumers,” Clarkson says.

MEASURING EMPTY SPACES

Slack-fill lawsuits, which often seek class action status, hinge on the U.S. Food and Drug Administration’s definition of “nonfunctional slack fill.” FDA rules recognize several reasons why it’s permissible for companies to leave some empty space in packages. For example, food may settle inside a box during shipping. Or some air may be necessary to protect the food.

As Dworsky explains, “The potato chip manufacturers will tell you: ‘We blow up the bag to create this cushion, so when all the bags are packed in a carton, you have this cushion to help protect the chips from breaking.’ My sense is that’s a legitimate reason.” When shoppers file lawsuits complaining about empty space in packages, it’s up to the courts to determine whether there’s a legitimate explanation for that slack fill.

“We’ve been able to prevail in some cases where we pointed out the weight on the packaging,” says Kenneth K. Lee, a partner at Jenner & Block in Los Angeles. “But other courts have said: ‘That’s not enough. It’s too hard to tell for some consumers to figure out exactly how much is in there.’ ”

Lee has successfully defended New Jersey-based food conglomerate Mondelez International Inc. against three slack-fill lawsuits that complained about the packaging of Sour Patch candies, Swedish Fish and Go-Paks of Mini Oreos and other cookies. Lee says he often asks judges to use common sense. “What we pointed out a lot of times is that if you just pick up the box of food or candy … you can feel the product shifting and moving,” he says. “So you know it’s not filled to the absolute brim.”

U.S. District Judge Sara L. Ellis seemed sarcastic in a Feb. 28 ruling in Chicago, when she tossed a lawsuit against Fannie May Confections Brands. She noted that plaintiffs Clarisha Benson and Lorenzo Smith “were saddened to discover upon opening their boxes of Mint Meltaways and Pixies that the boxes were not brimming with delectable goodies.” The judge dismissed these “barebones allegations.”

And she also set up a sort of Catch-22 for shoppers who want to sue: After you’ve purchased one package and discovered that its contents are more meager than expected, that serves as your warning about future purchases. “Already aware of Fannie May’s alleged deceptive practices, plaintiffs cannot claim they will be deceived again in the future,” Ellis wrote.

In Jefferson City, Missouri, U.S. District Judge Nanette K. Laughrey made the same point when she granted a summary judgment for the Hershey Co. on Feb. 16. Robert Bratton was suing the chocolate-maker, complaining about the space in Reese’s Pieces and Whoppers packages. But Bratton testified that he’d bought these candies hundreds of times over a decade—even though he knew the boxes were 30 to 40 percent empty. “I had a good idea that that’s what I was going to get, yes, ma’am,” he said, pointing out that he didn’t have much choice when he was at a movie theater with his children. “I needed to buy the candy and … Whoppers and Reese’s is what I generally get for the kids. … I can’t take outside food into the theater. So I’m kind of stuck with what they have.” This testimony led the judge to conclude that Bratton “cannot demonstrate that he was injured by any purportedly deceptive practice by Hershey.”

JUICY INCENTIVES

Such rulings may discourage slack-fill lawsuits, but settlements like Ferrara Candy’s agreement in the Jujyfruits case may offer an incentive for litigants. When that settlement comes up for final approval on Oct. 25, Clarkson’s firm will seek $750,000 in fees, plus costs and expenses, while asking for Iglesias to get $5,000. Silverman, the lawyer who co-wrote the U.S. Chamber report, criticizes these fees as exorbitant, pointing to them as an example of how money motivates frivolous lawsuits. But Clarkson says it’s fair payment for his firm’s work, including the hiring of experts. “If we lose at any stage, we run the risk of getting paid nothing,” he says.

David Greenstein of Los Angeles says he’s filed roughly 75 slack-fill cases over the years. “I’m almost 80 years old, and I remember growing up when you could trust what was in a box,” he says.

A former lawyer who was disbarred after pleading guilty to charges involving insurance fraud, Greenstein usually files his lawsuits without legal representation. “I would describe myself as a prolific plaintiff,” says Greenstein, author of the e-book Sue and Grow Rich: How to Handle Your Own Personal Injury Claim Without an Attorney. And he’s won some settlements and court victories.

In 2016, the California company Adams & Brooks was permanently enjoined from selling 4-ounce bags of P-Nuttles Butter Toffee Peanuts in the state after Greenstein sued in Orange County Superior Court, complaining that the company’s bags were 40 percent empty.

Greenstein was not awarded any money. “I get settlements, but they are not a lot of money,” he says, adding that money isn’t his main motivation. “When I see now how companies are just screwing over people with slack fill, … I figured I can do something.”

Silverman says many slack-fill lawsuits end in private settlements, with their details shrouded in secrecy. Few slack-fill cases have achieved class action status, but even the possibility of that happening is enough to scare companies into paying plaintiffs to go away, he says.

“These suits are just going to continue unless companies are willing to fight them out a little bit,” he adds.

But consumer advocate Dworsky says slack fill is a perfect illustration of why class actions are necessary. “No individual consumer is going to say: ‘I’m going up against Procter & Gamble because of the way they package this product.’ I mean, they have lost a dollar or two. But are they going to spend thousands on hiring a lawyer to make their point? You can only do it if you gather up people. You absolutely need consumer class actions.”

By: Madison Roberts

Two customers in California think part of the reason Halo Top is so “guilt-free” is because they aren’t fully filling their pints.

In a class action lawsuit, Youssif Kamal and Gillian Neely allege that the light ice cream brand has been “routinely” under-filling their ice cream packages, and that customers aren’t getting what they pay for, The Daily Meal reports.

“Halo Top underfills its ‘pints’ of ice cream,” the complaint reads. “Dramatically so at times, and as a course of business. Purchasers of the premium-priced ice cream simply have no idea how much ice cream they will get each and every time they buy a Halo Top ‘pint.’ And Halo Top has been doing this for years.”

The 13-page complaint is addressed to Eden Creamery, LLC, Halo Top’s parent company, and extensively details complaints about Halo Top’s “misleading advertising.” The complaint alleges that so much of Halo Top’s promotional value relies on being low-calorie “per pint,” but each pint contains a different amount of ice cream.

“Although Halo Top markets and sells its ice cream in pints, it does not actually deliver a pint of ice cream to its customers,” it reads.

The complaint is being filed on behalf of more than 100 people from multiple states, and they are seeking over $5 million, exclusive of interests and costs for the missing ice cream.

“We have never and would never ‘underfill’ our pints,” a spokesperson from Halo Top told PEOPLE in a statement. “Product settling can occur from time to time due to everything from heat fluctuations to altitude changes during shipping and handling.”

Food Navigator consulted lawyers on the matter and stated that Halo Top will likely base their defense on “slack fill,” which refers to the empty space in a container that serves a functional purpose, like protecting a product during storage or transport. But the website notes that the laws would not protect a company that purposefully fills a package “substantially less than its capacity” or any type of slack fill that doesn’t serve a functional purpose.

A law professor at Roger Williams University School of Law said “lawsuit lenders are like sharks to shipwrecks” who “capitaliz[e] on tragedy” in a response to a defense of the industry in Crain’s New York Business.

Professor Jenna Wims Hashway, who wrote Litigation Loansharks: A History of Litigation Lending and a Proposal to Bring Litigation Advances Within the Protection of Usury Laws, pushed back on an argument that said plaintiffs would be hurt by lawsuit lending regulation. She said it isn’t regulation, but “the usurious, extortionate rates of interest charged by this unregulated industry that hurt consumers the most.”

The lawsuit lending industry has been the subject of intense media scrutiny after reports of abuses in the New York Times and New York Post. Professor Hashway called it “low-risk, usurious profiteering, directed at vulnerable consumers.

By: Anousha Sakoui & Edvard Pettersson

Bird Rides Inc. and other scooter startups have drawn fire from pedestrian advocates, politicians and annoyed citizens. Now they have a new nemesis: personal-injury lawyers.

In recent months, people hurt riding (or hit by) scooters in San Francisco and Los Angeles have been calling legal firms to file claims. Smelling opportunity, firms have even carved out dedicated spots on their websites urging people to file scooter-related claims. “Our thought when we first saw them “flying” around Santa Monica and haphazardly abandoned on city sidewalks: This is an accident waiting to happen,” blared McGee Lerer & Associates.

Los Angeles abounds with personal-injury lawyers on the hunt for cases. “Lawyers will be lawyers when there’s the potential for some money to be made,” says John Perlstein, a 25-year veteran who litigates accident claims referred to him by other attorneys. “Most of them are trying to keep the doors open and hope for a million-dollar case to come their way.” There are no records so far of lawsuits being filed against Bird or its rival Lime, but lawyers say it’s just a matter of time.

The scooters began appearing in many parts of the U.S. last year. They can be unlocked with a smartphone for a buck, cost 15 cents a minute to rent and reach 15 miles an hour. The machines have proved popular—and polarizing. The companies see them as a logical next step to the transportation revolution started by Uber and Lyft. Foes consider the scooters an annoying fad among tourists and tech workers, who zip around imperiling themselves and others.

Investors, who have poured hundreds of millions of dollars into scooter startups,  expect the machines to become a lasting feature of the urban landscape. Both Bird and Lime are in the process of raising large investment rounds to fuel their expansion. Though the scooter revolution is on hold in San Francisco while operators apply for permits, the machines are expected to re-appear within weeks as the city conducts a pilot program. They continue to weave through the traffic in Santa Monica and other cities. Accidents happen.

Catherine Lerer, one half of McGee Lerer’s husband-and-wife legal team, says she got the first scooter-related call about five months ago. A 16-year-old boy had been injured falling from a Bird scooter, and the family wanted to make a claim. The phone has been ringing ever since. Many of the mishaps involve young riders who broke a collar bone or an arm in a single-rider accident, when the brakes locked or they lost control of the scooter, Lerer says.

Los Angeles lawyers expect there to be more scooter incidents in LA, where the automobile famously rules, than in San Francisco, where cyclists, runners and cars compete for lane space. “Local drivers aren’t as used to sharing the road and also tend to drive more aggressively,” says Robin Saghian, a personal injury lawyer with Omega Law Group in Beverly Hills.

In addition, scooter riders can be more reckless crossing intersections at fast speeds, which increases the chance of an accident, he says. “We’re getting about 2 to 5 calls a week and it’s getting more common,” Saghian says. The inquiries about scooter-related accidents, including by pedestrians who get hit by a scooter, have jumped since his firm posted a blog about the issue on its website in April.

The McGee Lerer lawyers say they’ve heard of accidents involving single scooter crashes due to malfunctioning tires or brakes, road hazards, as well as pedestrians hurt tripping over scooters left on paths. They’ve seen children riding the scooters, people riding tandem without helmets, riders zipping along sidewalks and scooters left abandoned in the middle of sidewalks.

California requires riders to wear helmets, have a driver’s license and refrain from carrying passengers, riding on sidewalks or leaving scooters on their sides. Santa Monica will soon vote on a pilot program to rein in scooter rental companies like Bird, according to the Los Angeles Times. The proposals would cap the number of scooters and apply tougher penalties for rule breaking. A rental company could lose its permit if it endangers public health or safety.

Earlier this year, after a local woman collided with a motor vehicle and wound up in hospital, Bird began asking riders to wear helmets, supply a driver’s license and prove that they’re at least 18 years old. It’s not clear how strictly these rules are enforced. Lime asks users to wear head protection, too, and was offering riders a free helmet if they have an account balance of $10 or more.

Bird also specifies that riders agree to use the scooters at their own risk and limits its own liability to $100. Perlstein says a waiver won’t bar claims for gross negligence. He also says Bird may be an easy target because as a startup it’s unlikely to have an in-house legal team willing to fight protracted lawsuits. Like Uber and Lyft, the scooter company may be more willing to settle before a lawsuit is filed, he says.

Bird, which is based in Santa Monica, declined to comment. San Mateo-based Lime says it hasn’t been sued and is unaware of incidents involving people using its scooters.

Lawyers say winning damages won’t be simple. Pedestrians who claim they were injured dodging a scooter on the sidewalk typically have no one to sue because the riders are long gone. Riders hit by cars probably have the strongest cases. “I have been turning away a lot of callers because I need to have an insurance company to go after,” Lerer says.

She expects the number of accidents to increase, particularly on college campuses and heavily touristed precincts. “It’s like the plague,” Lerer says. “It’s spreading so fast.”