Bob Niemann, partner, Keller and Heckman: [Watch out for] more slack fill cases, which account for about 12% of all class action filings. It is difficult for judges to grant motions to dismiss or even summary judgements, because the content of packaging has to be literally held and examined in order to weigh the contents.
There is hope in California with some new legislation recently passed by Gov Jerry Brown. This new Assembly Bill 2632 amends B&P code section 12606[b] to add three, and possibly four safe harbor applications for companies to evidence the fill and contents of packaging. While this may assist companies on a go forward basis, the claims for this type of class action go backward in time and will take time for the companies to catch up with the use of these new methods.