Guest Commentary

Not enough Junior Mints in a box? That shouldn’t be grounds for a class-action lawsuit

A Missourian is suing the company that makes Junior Mints because he says boxes of the candy aren’t as full as they could be. Legislation pending in the state could put an end to these types of lawsuits.
A Missourian is suing the company that makes Junior Mints because he says boxes of the candy aren’t as full as they could be. Legislation pending in the state could put an end to these types of lawsuits.

Are people like Robert Bratton fighting to protect your rights, or are they and their attorneys making a mockery of Missouri’s consumer protection law?

After buying roughly 600 boxes of Whoppers and Reese’s Pieces over the course of a decade, Bratton sued the candy manufacturers, claiming he was entitled to cash damages because more candy could fit inside the box. Anyone who bought either candy over the past five years was included as a member of Bratton’s class action, which sought millions from candy manufacturers.

Initially, a federal court ruled that the lawsuit could proceed, but it ultimately dismissed Bratton’s lawsuit against the Hershey Company, as The Kansas City Star recently reported. The common- sense ruling found Bratton was not deceived and had experienced no injury, as his purchasing the candy over and over again showed.

One might think courts regularly throw out these types of ridiculous lawsuits, but the Bratton case’s dismissal is surprisingly the exception, not the rule. In fact, a case he filed making similar allegations against Tootsie Roll Industries over the number of Junior Mints that can fit in a box — filed the same day by the same law firm — remains pending in a Missouri state court in Cole County.

A small group of attorneys, such as Bratton’s lawyers, misuses a law intended to protect consumers from deceptive practices. They have employed the Missouri Merchandising Protection Act, or MMPA, to create their own profitable lawsuit industry by filing scores of lawsuits alleging deception that doesn’t exist.

These lawsuits take minutes to generate: Cut and paste from the last complaint, insert another product, snap a photo and file. Some firms use the same plaintiff over and over as they file new lawsuits against different businesses.

Hundreds of these types of MMPA class actions have been filed in Missouri courts in recent years. Food and beverage companies are a popular target. For example, lawsuits have alleged that jelly bean packages hide the fact that they contain sugar, or that common food ingredients are not “natural.”

It’s not just food. A wide range of businesses — including restaurants, retailers and manufacturers of cosmetics, cleaning and pet products — are being attacked.

Most suits mysteriously disappear from court dockets within a few months of being filed as “voluntarily dismissed with prejudice.” This means the business owner likely made the choice to settle the case instead of incurring the time and expense of fighting in court. The lawyers win, and consumers — on whose behalf these cases are purportedly filed — typically get nothing.

“Indulgent amendments and lenient interpretations have encouraged enterprising litigants and lawyers to bring claims, resulting in a dramatic increase in consumer protection litigation” wrote Joanna Shepherd of Emory University School of Law in a study she authored. Whereas the number of consumer protection decisions increased by an average of 188 percent in the U.S. from 2000 to 2009, the number of Missouri decisions under the MMPA increased by an astonishing 678 percent in that same period.

Fortunately, a bill pending before the General Assembly would end this racket. Senate Bill 832 would ensure that the MMPA continues to help consumers who have legitimate claims, while reducing the opportunity for no-injury, attorney-generated litigation. It would evaluate lawsuits from the perspective of a reasonable consumer. When consumers are not actually harmed, there would be no award. Also, attorneys’ fees in these class actions could no longer dwarf the benefits provided to consumers.

The bill has been passed by a committee and awaits debate by the full Senate. A similar bill, House Bill 2089, was reviewed by the House Litigation Reform Committee this week.

It is time to return the MMPA to its intended purpose and end the deception that grants lawyers sweet, multi-million dollar windfalls under the guise of representing consumers.

Dan Mehan is president and CEO of the Missouri Chamber of Commerce and Industry.

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