Metropolitan News-Enterprise


Wednesday, April 15, 2020


Page 1


Ninth Circuit:

Plaintiff Whose Suit Caused Changes In Labels Gets No Attorney Fees

Panel Says That Revision in Labels Wasn’t the Object of Putative Class Action; What Was Sought Was Smaller Boxes of Candy or More Pieces


By a MetNews Staff Writer


A District Court judge did not err in denying a woman attorney fees after the defendant, Tootsie Roll Industries, Inc., changed the labeling on boxes of Junior Mints and Sugar Babies in response to her lawsuit, the Ninth U.S. Circuit Court of Appeals has held, pointing out that what the plaintiff had sought was an order that the boxes either be made smaller or that more candy be added.

Ketrina Gordon brought her action, based on diversity, in the U.S. District Court for the Central District of California, claiming that there’s too much empty space in the cardboard boxes, with consumers deluded into thinking they are buying more of the product than is actually provided. In a memorandum opinion filed Monday, a three-judge panel said that Gordon—who withdrew her request for class certification after Tootsie Roll changed its labeling, declared the matter to be moot and requested attorney fees—erred in asserting the applicability of California’s “catalyst” theory.

Under that theory, if a plaintiff in a private attorney general action, pursuant to Code of Civil Procedure §1021.5, succeeds in prodding the defendant, through the litigation, to change its ways, vindicating a right of the public, attorney fees are awardable.

Three Changes

The opinion recites that the changes Tootsie Roll made were to add to the front panel of Junior Mints and Sugar Babies boxes the words “ACTUAL SIZE” under depictions of the candy contained inside, stated on that panel the number of pieces inside, and moved from the back to the front the words:


The panel—comprised of Circuit Judges Jay S. Bybee, Daniel P. Collins, and Daniel Aaron Bress—said in the opinion:

“The record supports the district court’s determination that these labeling changes were not ‘the primary relief’ that Gordon sought in this case….Gordon’s theory of the case was that the size of the box was itself misleading, and that Tootsie Roll should either ‘fill the Products’ box with more candy to account for the size of the box...or shrink the box to accurately represent the amount of the candy product therein.’ Tootsie Roll did not make either of these changes.

“While Tootsie Roll did make changes to the product labeling, Gordon throughout this case expressly disclaimed that product labeling would address her concerns.”

Dismissal of Action

Gordon maintained that Fisher erred in dismissing the action. She acted after both sides failed to show up for a status conference, not realizing that the proceeding had been continued, the plaintiff complained.

That doesn’t matter, the opinion says. Gordon wants the action reinstated, with a remand for an award of attorney fees and costs but, it declares, she is entitled to neither.

Fischer awarded Tootsie Roll $5,129.40 in costs, as the prevailing party. The opinion says there was no abuse of discretion.

The case is Gordon v. Tootsie Roll Industries, Inc., 18-56315.


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