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Do you advertise and market your products? The end of the road for Mike and Ike Slack Fill litigation Another win for a confectionery company saw a Missouri Supreme court early this month reject classification certifications, putting an effective end to the plaintiff's attempts to claim class-wide compensation for all users of HeiƟ Tamales and Mike and Ike sweets. White v. Just Born claimed that the cartons of sweets were filled under and left a useless cavity, known as "slack fill", which led the customer to think he received more sweets than were actually in the packaging.

In this case, the applicant applied for a Missouri classification and two multi-stage unfair enhancement categories to be certified according to the principle that the real value of the sweets was less than that of the consumer paying for them. However, the tribunal refused to certificate all three grades and ruled that evidence of a class-wide breach of the Missouri's Merchandising Practices Act will include "predominantly personal investigations into whether each grade member has bought the sweets".

Given that most customers do not buy this kind of products from the producer but from a third supplier, such as a cinema, there is no single checklist that provides a joint record of sale. Every member of the grade has to show his own individual buying, which makes the grade insecure.

In addition, the tribunal found that the "litigation would be dominated negatively by personal investigations as to whether each member of the grade was misled by a slackfill in a pre-buy package. For " [a] person who knew what he was getting before buying one of the sweet packs, but still decided to buy it, cannot prove that Just Born's keeping of the alleged advantage was unfair[,]" requests for the information of each member of the grade before buying would also outweigh.

It also refused to certify on the ground of stand and found that "white cannot constitute a category which covers those who bought the sweets, although they know how much filllack would be contained in each box" since such a category would cover members who are not entitled to make such a solicitation. It is a significant win for Just Born and other foods companies who defend similar demands that often go beyond the plea phase but are unlikely to meet the strict standard of classification certifications.

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