Consumer Asks Ninth Circuit to Review Remand Decision in Tootsie Roll Slack-Fill Suit

Plaintiff Elizabeth Maisel has responded to an order to show cause as part of her efforts to appeal a Northern District of California court order denying remand to state court. The plaintiff argued that the court misjudged the amount of damages sought by finding them to be greater than the Class Action Fairness Act (CAFA) jurisdictional minimum. The case originated last May when the plaintiff filed a California consumer protection and packaging law case against Tootsie Roll Industries, LLC for deceptively packaging two of its candy products, Junior Mints and Sugar Babies, with nonfunctional empty space, or “slack-fill.”

In July, the appellate filing recounts, Tootsie Roll removed to federal court claiming that the amount in controversy met the CAFA $5 million threshold “because wholesale sales of the Products in California exceed[ed] $6 million during the class period.” However, the plaintiff contends, she seeks far less than that, an estimated $1.6 million (or $2.8 million retail), premised on a “conservative application of a 26% price premium…”

Magistrate Judge Sallie Kim denied the plaintiff’s motion for remand, but, by so doing, “ignored Plaintiff-Appellant’s damages allegations which only included a partial refund based on a price premia analysis.” On Dec. 4, 2020, the plaintiff appealed the decision. The Ninth Circuit subsequently issued an order stating that she had failed to comply with Federal Rule of Appellate Procedure 5 (FRAP 5), governing petitions for permission to appeal. In her Tuesday-filed response, the plaintiff asks the court not to toss her appeal through several procedural and equitable arguments.

The plaintiff first contended that her appeal was timely filed based on a “plain language” reading of the controlling statute. She next asked the Ninth Circuit to exercise its discretion to allow her appeal to proceed in order to prevent unfairness and due process violations she would otherwise experience. Short of that, the plaintiff requested leave to file a FRAP 5 petition to appeal to ensure that the court has subject matter jurisdiction over the dispute.

The plaintiff is represented by Clarkson Law Firm, P.C.