2nd Circ. Slack-Fill Ruling Makes Injunctive Relief Harder

Law360 (July 24, 2020, 3:30 PM EDT) -- With its decision in Berni v. Barilla S.p.A.,[1] the U.S. Court of Appeals for the Second Circuit opened a circuit split with significant implications for consumer class actions seeking prospective injunctive relief. In Berni, the plaintiff had purchased a box of the defendant's pasta and then claimed it was underfilled — i.e., a slack-fill claim.[2]

The plaintiff filed a putative class action seeking damages and injunctive relief, and negotiated a settlement on behalf of a Rule 23(b)(2) class, for injunctive relief plus attorney fees.[3] The defendant agreed to add a fill line on boxes of pasta sold in the future.[4]...

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