CLARKSON LAW FIRM, P.C. Ryan J. Clarkson (SBN 257074 ... · following a conference of counsel...

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION

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CLARKSON LAW FIRM, P.C. Ryan J. Clarkson (SBN 257074) [email protected] Shireen M. Clarkson (SBN 237882) [email protected] Bahar Sodaify (SBN 289730) [email protected] 9255 Sunset Blvd., Ste. 804 Los Angeles, CA 90069 Tel: (213) 788-4050 Fax: (213) 788-4070 Attorneys for Plaintiff Ketrina Gordon

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

KETRINA GORDON, individually and on behalf of all others similarly situated,

Plaintiff,

vs.

TOOTSIE ROLL INDUSTRIES, INC., and DOES 1 through 10, inclusive,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 2:17-cv-02664-DSF-MRW [CLASS ACTION] PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION Hon. Dale Fischer Action filed: February 10, 2017 Hearing Date: May 14, 2018 Hearing Time: 1:30 pm Hearing Location: 7D

Case 2:17-cv-02664-DSF-MRW Document 77 Filed 03/05/18 of 3 Page ID #:1489


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PLEASE TAKE NOTICE that on May 14, 2018 at 1:30 pm, in the courtroom

of the Honorable Dale Fischer, United States District Court for the Central District

of California, Plaintiff Ketrina Gordon (“Plaintiff”), on behalf of herself and all

others similarly situated, by and through her counsel Ryan J. Clarkson, Shireen M.

Clarkson, and Bahar Sodaify of Clarkson Law Firm, P.C., will and hereby does

move for class certification pursuant to Rule 23(b)(2).

Plaintiff moves this Honorable Court for an Order as follows:

1. That this case is certified to proceed to the merits as a class action

pursuant to Rule 23(b)(2) on all three counts (CLRA, UCL, and FAL) set forth in

Plaintiff’s Second Amended Complaint (Dkt. 46) on behalf of the following class of

consumers (the “Class”):

All persons who purchased opaque boxes of 3.5-oz Junior Mints and 6-oz. box

of Sugar Babies in the State of California for personal use and not for resale

during the time period February 10, 2013, through the present. Excluded from

the Class are Defendants’ officers, directors, and employees, and any

individual who received remuneration from Defendants in connection with

that individual’s use or endorsement of the Product.

2. That Plaintiff Ketrina Gordon is appointed Class Representative.

3. That Ryan Clarkson, Shireen Clarkson, and Bahar Sodaify of Clarkson

Law Firm, P.C. are appointed Class Counsel pursuant to Rule 23(g).

This motion it brought in accordance with Local Rule 23-3 and made

following a conference of counsel pursuant to Local Rule 7-3.

This motion is based upon this notice of motion, the concurrently-filed

motion and memorandum of points and authorities in support thereof, the

declaration of Ryan J. Clarkson, the declaration of Ketrina Gordon, declarations by

Plaintiff’s retained experts, corresponding exhibits, and all of the papers and



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pleadings on file in this action, and upon such other and further evidence as the

Court may be presented at the time of the hearing.

DATED: March 5, 2018 CLARKSON LAW FIRM, P.C.

/s/ Ryan J. Clarkson_________ Ryan J. Clarkson, Esq. Shireen M. Clarkson, Esq. Bahar Sodaify, Esq.

Counsel for Plaintiff


PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES

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Plaintiff,

vs.


Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 2:17-cv-02664-DSF-MRW [CLASS ACTION] PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION UNDER RULE 23(b)(2) REDACTED VERSION OF DOCUMENT PROPOSED TO BE UNDER SEAL Hon. Dale S. Fischer Action filed: February 10, 2017 Hearing Date: May 14, 2018 Hearing Time: 1:30 pm Hearing Location: 7D

Case 2:17-cv-02664-DSF-MRW Document 77-1 Filed 03/05/18 Page 1 of 28 Page ID #:1492

mailto:[email protected]


i PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES

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TABLE OF CONTENTS

Page(s) I. INTRODUCTION ........................................................................................... 1 II. FACTS AND PROCEDURAL BACKGROUND .......................................... 1 A. The Parties ............................................................................................. 2 B. Plaintiff’s Claims .................................................................................. 2 C. The Proposed Class ............................................................................... 5 D. Procedural History ................................................................................ 5 E. The Products’ Packaging at Issue ......................................................... 6 F. Sales and Distribution of the Products .................................................. 6 III. LEGAL STANDARD FOR CLASS CERTIFICATION ............................... 7 IV. CERTIFICATION HERE MEETS THE INTENT AND OBJECTIVE OF RULE 23 .................................................................................................... 7 V. PLAINTIFF SATISFIES ALL REQUIREMENTS UNDER RULE 23 ........ 8 A. Plaintiff Satisfies the Prerequisites of Rule 23(a). ................................ 8 1. Numerosity. .................................................................................... 9 2. Commonality .................................................................................. 9 3. Typicality. .................................................................................... 15 4. Adequate Representation. ............................................................ 16 B. THE REQUIREMENTS OF RULE 23(b)(2) ARE SATISFIED ....... 17 1. Plaintiff has Article III Standing. ................................................. 18 2. Plaintiff and the Class Complain of Standardized Uniform Conduct Applicable to the Entire Class. ....................................... 20 3. Plaintiff Seeks Injunctive Relief That Would Benefit the Class. ............................................................................................. 22 VI. CONCLUSION ............................................................................................. 23


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TABLE OF AUTHORITIES CASES Amchem Prods. v. Windsor, 521 U.S. 591 (1997) ........................................................................................... 7 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) ............................................................................ 15 Astiana v. Kashi Co., 291 F.R.D. 493 (S.D. Cal. 2013) ...................................................................... 15 Bates v. United Parcel Svc., Inc., 511 F.3d 974 (9th Cir. 2007) ............................................................................ 18 Bruno v. Eckhart Corp., 280 F.R.D. 540 (C.D.Cal.2012) ....................................................................... 14 Bruno v. Quten Research Inst., LLC, 280 F.R.D. 524, 535 (C.D.Cal.2011) ............................................................... 13 California Rural Legal Assistance, Inc. v. Legal Servs. Corp., 917 F.2d 1171 (9th Cir. 1990) .......................................................................... 15 Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365 (N.D.Cal.2010) ....................................................................... 14 Cruz v. PacifiCare Health Systems, Inc., 30 Cal.4th 303 (2003) ....................................................................................... 22 Datta v. Asset Recovery Sols., LLC, No. 15-CV-00188-LHK, 2016 U.S. Dist. LEXIS 36446, (N.D. Cal. Mar. 18, 2016) .................................................................................. 8 Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017) .............................................................. 18, 19, 20 Delarosa v. Boiron, Inc., 275 F.R.D. 582 (C.D. Cal. 2011) ..................................................................... 22 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ........................................................................................... 7 Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ............................................................................ 16 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir.1998) .................................................................... passim Hanon v. Dataprods. Corp., 976 F.2d 497 (9th Cir.1992) ........................................................................... 7, 9


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Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909 (9th Cir. 1964) .......................................................................... 7, 9 Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir. 2013) .......................................................................... 14 In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ...................................................................................... 11 In re Yahoo Mail Litigation

308 F.R.D. 577 (N.D. Cal. 2015) ..................................................................... 21 Jordan v. County of Los Angeles, 669 F.2d 1311 (9th Cir.1982) ............................................................................. 9 Just Film, Inc. v. Buono, 847 F.3d 1108 (9th Cir. 2017) ............................................................................ 8 Keegan v. Am. Honda Motor Co., Inc., 284 F.R.D. 504 (C.D. Cal. 2012) ..................................................................... 14 Khasin v. R. C. Bigelow, Inc., No. 12-cv-02204-WHO, 2016 U.S. Dist. LEXIS 115850, (N.D. Cal. Aug. 29, 2016) ................................................................................ 19 Lewis v. Robinson Ford Sales, Inc., 156 Cal.App.4th 359 (2007) ............................................................................. 11 Lozano v. AT&T Wireless Servs., 504 F.3d 718 (9th Cir. 2007) ............................................................................ 16 Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) ............................................................................ 18 Pinon v. Tristar Prods., Inc., No. 1:16-cv-00331-DAD-SAB, 2016 WL 4548766, (E.D. Cal. Sept. 1, 2016) .................................................................................. 18 Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523 (N.D. Cal. 2012) ..................................................................... 22 Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) ............................................................................ 9 Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) .............................................................................. 7 Turcios v. Carma Labs., Inc., 296 F.R.D. 638 (C.D. Cal. 2014) ....................................................................... 9 Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996) .............................................................................. 8 Vasquez v. Superior Court, 4 Cal.3d 800 (1971) ...................................................................................... 7, 11


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Victor v. R.C. Bigelow, Inc., 708 F. App’x 333 (9th Cir. 2017) ......................................................... 18, 19, 20 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ...................................................................... 9, 20 Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168 (9th Cir.2010) ............................................................................. 8 Yumul v. Smart Balance, Inc., 733 F.Supp.2d 1117 (C.D.Cal.2010) ................................................................ 13 OTHER AUTHORITIES 7A Charles Alan Wright et al.,

Federal Practice & Procedure §1775 (2d ed. 1986) ......................................... 20 21 C.F.R. § 100.100 .................................................................................... 2, 3, 10, 13 Business and Professions Code Section 12606.2 ........................................ 2, 3, 10, 13 Business and Professions Code Section 17200 ........................................................... 2 Business and Professions Code Section 17500 ........................................................... 2 Civil Code Section 1750 ............................................................................................. 2 Civil Code Section 1782(a) ......................................................................................... 5 Downton 2002; TARP 1986 ...................................................................................... 12 Federal Rule of Civil Procedure 12 .................................................................... passim Federal Rule of Civil Procedure 23 .................................................................... passim


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I. INTRODUCTION

This is a consumer class action brought on behalf of purchasers of various

“theater box” candy products sold at retail outlets and movie theaters throughout

California; specifically, 3.5-oz. Junior Mints and 6-oz. Sugar Babies (the

“Products”). Plaintiff Ketrina Gordon (“Plaintiff”) contends that Defendant

Tootsie Roll Industries, Inc. (“Defendant” or “Tootsie”) unlawfully packages each

of the Products in opaque boxes too large for the amount of candy contained

therein. The oversized boxes render much of the volume in the nontransparent

boxes nonfunctional empty space, or “slack-fill,” in violation of California and

federal packaging laws, as well as California’s consumer protection laws. Plaintiff

contends that Defendant’s oversized packaging falsely represents to consumers

the quantity of candy and is a material issue to consumers that can be proven with

common evidence. The fix is simple: shrink the box, fill the box, or add additional

features to the box that eliminate the consumer deception. Plaintiff hereby moves

to certify an injunctive relief class under Rule1 23(b)(2).2

II. FACTS AND PROCEDURAL BACKGROUND

The average consumer spends roughly 12 seconds to make an in-store

purchasing decision, a decision which is heavily dependent on a product’s

package dimensions. See Report of Dr. Forrest V. Morgeson ¶¶ 17-18, attached as

Exhibit (“Ex.”) B to the Declaration of Dr. Forrest V. Morgeson (“Morgeson

Decl.”). In fact, most consumers do not bother to look at label information, no less

the net weight. Id. Faced with a larger box and a smaller box, both with the same

amount of product inside, consumers are apt to choose the larger box because they

perceive it is a better value. Id. ¶¶ 5, 18. 1 References to any “Rule(s)” means the Federal Rules of Civil Procedure unless otherwise stated. 2 This motion is limited to a request for certification of an injunctive relief only class under Rule 23(b)(2) because Plaintiff’s primary motivation for bringing this class action was to correct Defendant’s unlawful packaging. Plaintiff reserves her right to seek leave of Court, should she establish liability on the merits, to try a damages phase on a classwide basis pursuant to Rule 23(b)(3).



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A. The Parties

Plaintiff is a resident of Los Angeles, California. See declaration of Plaintiff

Ketrina Gordon (“Gordon Decl.”) ¶ 3. Plaintiff made a one-time purchase of a

3.5-oz. box of Junior Mints to share with her friends at the movies in Los Angeles

in 2016. Id. ¶¶ 5, 8. Plaintiff paid approximately $4.00 for the Product. Id. ¶ 6. In

making her purchase, Plaintiff relied upon the opaque Product packaging,

including the size of the box. Id. ¶¶ 7-12. Yet, Plaintiff received a roughly half-

empty box of candy. Id. ¶¶ 11-13. Defendant manufacturers the Products and is

one of the largest confectionary companies in the world with annual sales of 3

B. Plaintiff’s Claims

Plaintiff’s Second Amended Complaint (“SAC”) (Dkt. 46) asserts three

causes of action under Business and Professions Code Section 17200, et seq., the

Unfair Competition Law (“UCL”), Business and Professions Code Section 17500,

et seq., the False Advertising Law (“FAL”), and Civil Code Section 1750, et seq.,

the Consumers Legal Remedies Act (“CLRA”) based on Defendant’s deceptive

and misleading Product packaging and the presence of nonfunctional slack-fill

contained therein. SAC ¶¶ 118, 135, 145. Plaintiff contends the following:

California and federal law prohibit food containers from being “made,

formed, or filled as to be misleading.” FAC ¶ 153; Cal. Bus. & Prof. Code §

12606.2; 21 C.F.R. § 100.100. An opaque, or non-transparent, container “shall be

considered to be filled as to be misleading if it contains nonfunctional slack-fill.”

Id. “Slack-fill is the difference between the actual capacity of a container and the

volume of product contained therein.” Id. Nonfunctional slack-fill is the empty

space in a package that is filled substantially less for reasons other than six

3 Defendant’s treasurer of over wen, estimated Tootsie Roll Industries, Inc.’s annual sales . See Barry Bowen deposition transcript (“Bowen Tr.”) at 17 ttached as Exhibit (“Ex.”) 1 to declaration of Ryan J. Clarkson (“RJC Decl.”).



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reasons permitted under these statutes. Id. Here, each respective Product

throughout the Class Period4 has been packaged in identical opaque cardboard

theater boxes, and has been made, formed, and filled in the same way.5 Each

respective Product therefore contains a uniform amount of slack-fill, and more

specifically, uniform amounts of functional and nonfunctional slack-fill. Id. Thus,

proof that a single unit of Product (e.g. 3.5-oz. Junior Mints) contains

nonfunctional slack-fill shall constitute proof as to all units of that Product.

Count I (Violation of the CLRA). Defendant’s business practice of

manufacturing and selling the Products in oversized, opaque packaging with

substantial nonfunctional slack-fill6 violates the CLRA by (1) misrepresenting the

approval of the Products as compliant with 21 C.F.R. Section 100.100 and

California Business and Professions Code Section 12606.2; (2) using deceptive

representations in connection with the Products; (3) representing that the Products

have characteristics and quantities that they do not have; (4) advertising and

packaging the Products with intent not to sell them as advertised and packaged;

and (5) representing that the Products have been supplied in accordance with a

previous representation as to the quantity of candy product contained within each

box, when they have not. SAC (Dkt. 46) ¶ 122.

Count II (Violation of the FAL). Defendant’s business practice of


substantial nonfunctional slack-fill violates the FAL because it constitutes a

dissemination of an advertising device which is untrue or misleading. SAC ¶ 136.

///

4 The “Class Period” is February 10, 2013 through the present. 5 See Defendant’s plant manager, Paula Yetman, deposition transcript (“Yetman Tr.”) at 63:7-65:16, 68:18-69:14,71:1-18; 122: 2-10, Ex. 2 to RJC Decl. 6 Plaintiff’s SAC (Dkt. 46) avers that the amount of nonfunctional slack-fill contained in each of the Products is 45%. However, where that number differs from Plaintiff’s expert in packaging design engineering, Dr. Claire Sand, Plaintiff defers to Dr. Sand’s calculations. Plaintiff shall amend the pleadings to conform to the evidence, if and/or when necessary. RJC Decl. ¶ 4.



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Count III (Violation of the UCL). Defendant’s business practice of


substantial nonfunctional slack-fill violates the UCL as follows: First, in violation

of the “unlawful” prong, Defendant’s inclusion of substantial nonfunctional slack-

fill in the Products’ opaque packaging violates federal and California slack-fill

laws, which state: “A container that does not allow the consumer to fully view its

contents shall be considered to be filled as to be misleading if it contains

nonfunctional slack-fill.” SAC (Dkt. 46) ¶ 185. Second, in violation of the

“unfair” prong, the financial injury caused by Defendant’s packaging outweighs

any benefits provided to consumers, and said injury is one that consumers could

not reasonably avoid. Id. ¶ 173. Third, in violation of the “fraudulent” prong,

Defendant’s conduct is likely to deceive members of the public. Id. ¶ 177.

Expectedly, Defendant’s primary focus as a for-profit corporation is sales—

adherence to California and federal consumer protection laws and slack-fill

regulations is a mere after-thought.7 RJC Decl. Ex 3 (Brown Tr.) at 42:11-18,

87:9-14 (A:

RJC Decl. Ex. 2 (Yetman Tr.) at 115: 16-23

(“Q:

”).

In fact, Defendant is aware that its Products contain nonfunctional slack-

fill. Indeed, after Plaintiff filed the instant lawsuit, Defendant planned a number of

7 See deposition transcript of Defendant’s director of research and development in quality assurance, Charles Gordon Brown (“Brown Tr.”), Ex. 3 to RJC Decl.



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subsequent remedial measures intended to address Plaintiff’s allegations.8

Specifically,

While the reasonable consumer expects the Products to contain only about

33% slack-fill,9 Defendant’s Products contain substantially more than that: 61.3%

in Junior Mints and 54.3% in Sugar Babies.10 This is clear evidence of consumer

deception.

C. The Proposed Class

Plaintiff seeks class certification under Rule 23(b)(2) of the following

California class (the “Class”): All persons who purchased opaque boxes of 3.5-oz Junior Mints and 6.0 Sugar Babies in California for personal use and not for resale during the time period February 10, 2013, through the present. Excluded from the Class are Defendants’ officers, directors, and employees, and any individual who received remuneration from Defendants in connection with that individual’s use or endorsement of the Product.

See SAC (Dkt. 46) ¶ 108.

D. Procedural History

On February 10, 2017, Plaintiff filed her class action complaint in Los

Angeles County Superior Court (Dkt. 1-1). Prior thereto, Plaintiff provided notice

to Defendant pursuant to Civil Code Section 1782(a). RJC Decl. ¶ 3. On May 1,

2017, Defendant filed a motion to dismiss Plaintiff’s complaint or, in the

8 See Defendant’s marketing manager, Stephen Modaff, deposition transcript (“Modaff Tr.”) at 86:6-91:13, 97:16-101:6, attached as Ex. 4 to RJC Decl. 9 Expert report of Dr. Justin Lenzo and Dr. Michael Bechtel, attached as Ex. B to Declaration of Justin Lenzo (“Lenzo Decl.) ¶¶ 23, 97. 10 Expert report of Dr. Claire Sand at p. 29, Tbl.12, attached as Ex. B to Declaration of Dr. Claire Sand (“Sand Decl.”).



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alternative, to strike (Dkt. 13). Plaintiff opted to file her FAC on May 22, 2017

(Dkt. 17). On June 5, 2017, Defendant filed a Rule 12(b)(6) motion to dismiss

(Dkt. 19). On July 31, 2017, this Court denied Defendant’s motion as to Junior

Mints and granted as to Sugar Babies with leave to amend (Dkt. 37). Plaintiff

amended her FAC with additional facts as to substantially similarity between

Junior Mints and Sugar Babies (Dkt. 46). Defendant then filed a second Rule

12(b)(6) motion (Dkt. 50), on Plaintiff’s SAC which the Court denied (Dkt. 55).

The parties then engaged in substantial discovery. RJC Decl. ¶ 5. On November

21, 2017, Defendant moved to compel the identity of Plaintiff’s consulting experts

(Dkt. 57), which the parties briefed (Dkt. 58), and the Court denied (Dkt. 62). On

January 4, 2018, Defendant deposed Plaintiff. RJC Decl. ¶ 6. On January 17-19,

2018, Plaintiff traveled to Chicago, Illinois to take Defendant’s Rule 30(b)(6)

depositions. Id. ¶ 8. On February 15-16, 2018, Plaintiff traveled to Boston,

Massachusetts to take additional depositions of Defendant’s fact witnesses. Id. ¶

12.

E. The Products’ Packaging at Issue.

The following chart represents the key measurements11 of the Products:

F. Sales and Distribution of the Products.

Defendant’s gross wholesale sales of the Products to California retailers for

the Class Period exceed .12 Discovery is ongoing as to retail sales.

RJC Decl. ¶ 14. 11 See Sand Decl. Ex. B (Sand Report) at pp. 24-26, Tbl. 5, 7. 12 See Defendant’s Second Supplemental Responses served on November 10, 2017, in response to Plaintiff’s Special Interrogatories, Set One (Interrogatory no.

Product Length (cm)

Width (cm)

Depth (cm)

Net Weight (oz.)

Candy Volume (%)

Slack-Fill (%)

Nonfunctional Slack-Fill (%)

Junior Mints 8.07 1.68 13.84 3.5 38.7 61.3 40.7 Sugar Babies 8.75 1.69 17.36 6.0 45.7 54.3 33.6



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III. LEGAL STANDARD FOR CLASS CERTIFICATION

Rule 23 provides the standard for certification of a class action. Hanon v.

Dataprods. Corp., 976 F.2d 497, 508–09 (9th Cir.1992). Rule 23 has two sets of

requirements: plaintiffs must meet all of the requirements under Rule 23(a) and

must also satisfy at least one of the Rule 23(b) prongs. Id. Class certification

presents a procedural issue and not a merits determination. “In determining the

propriety of a class action, the question is not whether the plaintiff has stated a

cause of action or will prevail on the merits, but rather whether the requirements

of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974); see

also Hanon, 976 F.2d at 508. The court may consider evidence which goes to the

requirements of Rule 23, but should not weigh competing evidence. Staton v.

Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003).

Consumer protection claims are ideal for class certification and any doubt as

to the propriety of certification should be resolved in favor of certifying the class.

See, e.g., Amchem Prods. v. Windsor, 521 U.S. 591, 625 (1997); Harris v. Palm

Springs Alpine Estates, Inc., 329 F.2d 909, 913 (9th Cir. 1964); Vasquez v.

Superior Court, 4 Cal.3d 800, 808 (1971). As detailed below, Plaintiff satisfies

each of the prerequisites of Rules 23(a) and (b)(2). IV. CERTIFICATION HERE MEETS THE INTENT AND OBJECTIVE

OF RULE 23 In crafting Rule 23, the United States Supreme Court explained that “the

Advisory Committee had in mind vindication of the rights of groups of people

who individually would be without effective strength to bring their opponents into

court at all.” Amchem Prods., Inc., 521 U.S at 617. Indeed, “The policy at the very

core of the class action mechanism is to overcome the problem that small

recoveries do not provide the incentive for any individual to bring a solo action

4), attached as Ex. 5 to RJC Decl. The only accounts for sales through June 2017. Id.



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prosecuting his or her rights.” Datta v. Asset Recovery Sols., LLC, No. 15-CV-

00188-LHK, 2016 U.S. Dist. LEXIS 36446, at *24 (N.D. Cal. Mar. 18, 2016);

Just Film, Inc. v. Buono, 847 F.3d 1108, 1123–1124 (9th Cir. 2017) (citing to

Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)) (“The

court concluded that the ‘risks, small recovery, and relatively high costs of

litigation’ make it unlikely that plaintiffs would individually pursue their claims.

These considerations are at the heart of why the Federal Rules of Civil Procedure

allow class actions in cases where Rule 23’s requirements are satisfied. This case

vividly points to the need for class treatment. The individual damages of each

merchant are too small to make litigation cost effective in a case against funded

defenses and with a likely need for expert testimony. The district court also found

that class action was superior because litigation on a class wide basis would

promote greater efficiency in resolving the classes’ claim.”); Wolin v. Jaguar

Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (The Ninth Circuit

has explained that “[w]here recovery on an individual basis would be dwarfed by

the cost of litigating on an individual basis, this factor weighs in favor of class

certification.”)

Here, class certification will meet the Ninth Circuit’s and Rule 23’s

objective of vindicating the rights of consumers who have been misled and

financially harmed by large corporations like Defendant, but separately lack the

necessary resources to pursue an individual action. In the instant resource-

intensive, expert-driven case, each consumer’s individual damages would not

justify the time and expense of bringing separate actions.

V. PLAINTIFF SATISFIES ALL REQUIREMENTS UNDER RULE 23

A. Plaintiff Satisfies the Prerequisites of Rule 23(a).

“Fed. R. Civ. P. 23(a) states four threshold requirements applicable to all

class actions: (1) numerosity (a class so large that joinder of all members is

impracticable); (2) commonality (questions of law or fact common to the class);



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(3) typicality (named parties’ claims or defenses are typical of the class); and (4)

adequacy of representation (representatives will fairly and adequately protect the

interests of the class).” Fed. R. Civ. P. 23(a); Hanon, 976 F.2d at 508.

1. Numerosity Rule 23(a)(1) requires the class to be so numerous that joinder of individual

class members is impracticable. Fed. R. Civ. P. 23(a)(1). “Impracticability does

not mean impossibility, [however,] . . . only . . . difficulty or inconvenience in

joining all members of the class.” Harris, supra, 329 F.2d at 913–914. There is no

set numerical cutoff used to determine whether a class is sufficiently numerous.

Turcios v. Carma Labs., Inc., 296 F.R.D. 638, 641 (C.D. Cal. 2014) (numerosity

is satisfied when there are as few as 39 potential class members).

As of June 2017, Defendant’s gross wholesale sales of the Products to

California retailers for the Class Period exceed ,13 which at

approximately ,14 equates roughly to

. Therefore, Plaintiff has met her burden of

demonstrating that the proposed class is sufficiently numerous.

2. Commonality The commonality requirement “serves chiefly two purposes: (1) ensuring

that absentee members are fairly and adequately represented; and (2) ensuring

practical and efficient case management.” Walters v. Reno, 145 F.3d 1032, 1045

(9th Cir. 1998); Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010).

Commonality requires “questions of law or fact common to the class.” Fed. R.

Civ. Proc. 23(a)(2). The commonality requirement is construed liberally, and the

existence of some common legal and factual issues is sufficient. Jordan v. County

of Los Angeles, 669 F.2d 1311, 1320 (9th Cir.1982); accord Hanlon v. Chrysler

Corp., 150 F.3d 1011, 1019 (9th Cir.1998) (“The commonality preconditions of

13 See RJC Decl. Ex. 5 at Interrogatory 4. 14 See RJC Decl. Ex. 1 (Bowen Tr.) at 37:12-23.



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Rule 23(a)(2) are less rigorous than the companion requirements of Rule

23(b)(3).”). Indeed, Rule 23(a)(2) has been construed permissively. As the Ninth

Circuit has noted: “[a]ll questions of fact and law need not be common to satisfy

the rule. The existence of shared legal issues with divergent factual predicates is

sufficient, as is a common core of salient facts coupled with disparate legal

remedies within the class.” Hanlon, 150 F.3d at 1019. That said, the putative

class’ “claims must depend upon a common contention . . . . That common

contention, moreover, must be of such a nature that it is capable of class-wide

resolution— which means that determination of its truth or falsity will resolve an

issue that is central to the validity of each one of the claims in one stroke.” Wal-

Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Although for purposes

of Rule 23(a)(2) even a single common question is sufficient. Id. at 2556. “What

matters to class certification ... is not the raising of common ‘questions’— even in

droves—but, rather the capacity of a class-wide proceeding to generate common

answers apt to drive the resolution of the litigation.” Id. at 2551.

Here, the commonality element is satisfied because the claims pose a few

key common questions: (1) whether the Products’ opaque packaging is unlawful,

unfair, fraudulent, or likely to deceive the reasonable consumer, where it contains

less candy (and more empty space) than consumers expected; (2) whether the size

of the Products’ boxes is material to Plaintiff and class members in deciding to

purchase the Products; (3) whether the Products contain nonfunctional slack-fill in

violation of California Business and Professions Code Section 12606.2 or 21

C.F.R. Section 100.100; and (4) whether Defendant has acted or refused to act on

grounds that apply generally to the class, so that final injunctive relief is

appropriate respecting the class as a whole.

Because all class members purchased the same Products, were exposed to

the same packaging, and received the same amount of candy (and slack-fill), there

is “a common core of salient facts.” Hanlon, 150 F.3d at 1019. Further, the six



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exceptions used to determine when slack-fill is functional uniformly applies

across all units of each respective Product. As such, if Plaintiff proves that one

unit of 3.5-oz. box of Junior Mints contains substantial nonfunctional slack-fill,

then that will be true of every 3.5-oz. box of Junior Mints. This will resolve “in

one stroke” an issue that is “central to the validity” of each class member’s

claims, i.e., whether the Products’ packaging violated California and federal

packaging laws and, by extension, California’s consumer protection laws. Wal-

Mart Stores, 131 S. Ct. at 2551.

Common legal issues include such basic questions as whether the

misrepresentations were material. See Lewis v. Robinson Ford Sales, Inc., 156

Cal.App.4th 359, 368 (2007); see In re Tobacco II Cases, 46 Cal. 4th 298, 326

(2009) (In a class action case, “[A] presumption, or at least an inference, of

reliance arises wherever there is a showing that a misrepresentation was material”

only to named plaintiffs, and not to all class members. Thus, only a named

plaintiff is required to show that “the defendant’s misrepresentation is an

‘immediate cause’ of the plaintiff’s conduct.”); Vasquez, 4 Cal. 3d at 814 (“[I]f

the trial court finds material misrepresentations were made to the class members,

at least an inference of reliance would arise as to the entire class.”)

Plaintiff is one of numerous consumers who materially relied on the

Products’ packaging to their detriment as confirmed by the

According to Plaintiff’s

marketing expert, Dr. Forrest Morgeson, consumers of perishable low-priced

products are less likely to complain to the manufacturer of the products, despite 15 Defendant et in discovery bates stamped TRC 3

during the Class Period regarding .



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being misled and damaged. Morgeson Decl. Ex. B ¶¶ 6-16. In fact, “[R]esearch

has indicated that only one dissatisfied customer in 20 – or only 5% of unhappy

customers – formally complain (Downton 2002; TARP 1986).” Id. ¶ 6.

do not accurately depict the true number of

consumers who considered the Products’ packaging size and the amount of

nonfunctional slack-fill therein material—the actual number likely is more than

20 times greater. Id.

According to Dr. Morgeson, consumers rely on the size of the Products’

packaging and consider it material to their purchasing decisions.16 Dr. Morgeson

also confirms that consumers rely on the size of a product’s packaging to

accurately reflect the amount of product therein and would not expect

nonfunctional slack-fill. Id. In fact, Plaintiff’s experts found that consumers on

average expect the Products to be filled 67% based on the size of the Products’

box.17 However, the actual fill level is significantly less. For instance, the volume

of candy in a 3.5-oz box of Junior Mints is only 38.7%.18 This establishes that

consumers are deceived by the Products’ size because they receive at least 30%

less then what they expect to receive. Id.; Morgeson Decl. Ex. B ¶ 18.

16 Morgeson Decl. Ex. B ¶ 18 (“Specifically, consumers have consistently been found to rely on the dominant human sense (vision) and “visual heuristics” to estimate the expected volume of a product (a process that, to complete accurately, would require measurement instruments and geometry), and more particularly to assume that a product will have a larger volume if a package is taller (height) and/or elongated (Folkes and Matta 2004; Raghubir and Krishna 1999). Moreover, consumers expect package size to accurately represent the quantity of the good being purchased. In a recent study highly applicable to the current context – focused on similar consumer goods (chocolate confections) in a similar market (the United Kingdom) – researchers found that “slack fill” was generally not something consumers knew about prior to experiencing it (Wilkins et al. 2016).”); see Lenzo Decl. Ex. B ¶¶ 22-23, 25, 67. 17 Lenzo Decl. Ex. B ¶¶ 23, 97. 18 Sand Decl. Ex. B p.29, Tbl. 12 (The actual slack-fill in 3.5-oz box of Junior Mints is 61.3%. The actual volume of product in the box is calculated by subtracting .613 from 1).



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Moreover, through Plaintiff’s economist and conjoint analysis experts,

Plaintiff has already proven that the oversized packaging and nonfunctional slack-

fill within the Products constitutes a material misrepresentation to the Class.19

Defendant sold each of the Products, respectively, in uniformly oversized, opaque

packaging which includes substantial nonfunctional slack-fill.20 Plaintiff and class

members expected more candy than they received.21

This material misrepresentation (and deception) was consistent across

California throughout the Class Period.22 Accordingly, the claims of all class

members “stem from the same source.” Hanlon, 150 F.3d at 1019-1120. As a

result, certifying this case as a class action “will generate common answers apt to

drive the resolution of the litigation” and address questions common to Plaintiff

and the Class. Wal-Mart Stores, 131 S. Ct. at 2551. For instance, increasing the

number of candy pieces in the Products’ boxes, shrinking the size of the boxes, or

adding features to the packaging would help eliminate consumer deception and

unlawful, nonfunctional slack-fill contained therein and, in turn, resolve questions

common to Plaintiff and the Class.

Claims under the UCL, FAL, and CLRA are ideal for class certification

because they will not require the court to investigate “class members’ individual

interaction with the product.” Bruno v. Quten Research Inst., LLC, 280 F.R.D. 19 See Lenzo Decl. Ex. B ¶¶ 22-23 (Based on a survey of 3,788 participants, “[w]hen showing respondents a box of candy, three out of four consumers expect a fill-level that exceeds the box’s actual fill-level.”); Id. ¶ 67 (“As box size increases, the consumer expects to receive a larger amount of the product, thereby increasing the likelihood of the product being purchased (citing Biran Wansink, “Can Package Size Accelerate Usage Volume?” Journal of Marketing 60 (1996), p. 3.)); Id. ¶ 25 (“…[C]onsumers prefer candy that have higher fill-levels even when other product attributes such as price or amount are fully specified and kept constant. . . . [I]nforming consumers that a box of candy is less than full at the point of sale would reduce the willingness to buy.”) 20 Dr. Sand identifies the percentage of nonfunctional slack-fill in the Products and determines that the slack-fill in the Products is substantially nonfunctional based on a detailed analysis of the six exceptions to functional slack-fill pursuant to 21 CFR 100.100 and Cal. Bus. and Prof. Code Section 12606.2. See Sand Decl. Ex. B pp. 28-50. 21 Lenzo Decl. Ex. B ¶ 23. 22 RJC Decl. Ex. 2 (Yetman Tr.) at 63:7-65:16, 68:18-69:14,71:1-18; 122: 2-10.



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524, 535 (C.D. Cal. 2011); Yumul v. Smart Balance, Inc., 733 F.Supp.2d 1117,

1125 (C.D. Cal. 2010) (“California courts have held that reasonable reliance is not

an element of claims under the UCL, FAL, and CLRA.”). For this reason, district

courts in California routinely certify consumer class actions arising from alleged

violations of the UCL, FAL, and CLRA.23 Therefore, because Plaintiff relied on

Defendant’s Product packaging in making her purchase, then that reliance is true

of all Class members, thereby satisfying the commonality requirement.24

According to the Ninth Circuit, another way to establish material

misrepresentations is to show “the maker of the representation knows or has

reason to know that its recipient regards or is likely to regard the matter as

important in determining his choice of action.” Hinojos v. Kohl’s Corp., 718 F.3d

1098, 1107 (9th Cir. 2013). Here, Defendant is well aware of consumers’ reliance

on packaging size when making their purchasing decisions—in fact, Defendant

markets the Products on this basis.25 Defendant admits that it uses

23 See e.g., Keegan v. Am. Honda Motor Co., Inc., 284 F.R.D. 504 (C.D. Cal. 2012) (certifying “a California UCL/CLRA class of purchasers” of vehicles); Bruno v. Eckhart Corp., 280 F.R.D. 540, 547 (C.D.Cal.2012) (denying reconsideration of class certified under California’s UCL, FAL, and CLRA); Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365, 375–80 (N.D.Cal.2010) (Walker, J.) (certifying class under California’s CLRA and UCL). 24 Gordon Decl. ¶¶ 12, 13 (“I was misled by the size of the box and lost money because I did not receive the amount of candy I expected based on the size of the box. In reliance upon Defendant’s false, misleading, and deceptive Product packaging, I lost money that I would otherwise have not spent.”) 25 See RJC Decl. Ex. 4 (Modaff Tr.) at 65:11-66:15 (“Q.



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Id. Defendant further states that

Id. In sum, Defendant knowingly

uses larger boxes to increase shelf impression and lure unsuspecting consumers

with the promise of more candy than they receive. Id.; Morgeson Decl. Ex. B ¶

18.

3. Typicality

The typicality requirement looks to whether “the claims of the class

representatives [are] typical of those of the class, and [is] ‘satisfied when each

class member’s claim arises from the same course of events, and each class

member makes similar legal arguments to prove the defendant’s liability.’”

Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001). “Like the commonality

requirement, the typicality requirement is ‘permissive’ and requires only that the

representative’s claims are ‘reasonably co-extensive’ with those of absent class

members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020. In

other words, typicality is established where the class was injured through an

alleged common practice. Id.; California Rural Legal Assistance, Inc. v. Legal

Servs. Corp., 917 F.2d 1171, 1175 (9th Cir. 1990). Plaintiff need only show that

defendant made a misrepresentation or engaged in an unfair practice that was

typical across the class, and that plaintiff and class members were injured. See

Astiana v. Kashi Co., 291 F.R.D. 493, 502 (S.D. Cal. 2013) (“Defendant argues

that the differences in Plaintiffs’ perceptions and knowledge about Kashi

products, as well as differences in their preferences and reasons for purchasing

Kashi products, render them atypical of the proposed classes. ‘In determining

whether typicality is met, the focus should be ‘on the defendants’ conduct and the

plaintiffs’ legal theory,’ not the injury caused to the plaintiff.’”) (internal citation

omitted).

Typicality is satisfied here. Plaintiff and the Class’ claims are based on

Defendant’s uniform misrepresentations and unlawful conduct in packaging its



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Products in oversized, opaque cardboard boxes containing the same amount of

nonfunctional slack-fill.26 Accordingly, Defendant’s misleading packaging

towards Plaintiff “typifies” its conduct towards the Class. Thus, Plaintiff and all

Class members were equally damaged as a result of Defendant’s conduct.27

Additionally, Plaintiff’s expectations are typical of the Class as it relates to the

amount of expected slack-fill in the Products. See Gordon Tr. at 132: 22-25;

133:1-4 (“Q: So when you bought the Junior Mints box, did you expect there to

be any empty space in the box? A: Yeah, of course, a little bit, so the candy could

. . . not melt together, but I would have expected, like, this much (indicating) . . .

not half full.”); see Lenzo Decl. Ex. B ¶ 23. Therefore, since the issues in this case

arise from the same course of conduct that gives rise to claims of other class

members and the claims are based on the same legal theory, Plaintiff’s claims are

typical. Lozano v. AT&T Wireless Servs., 504 F.3d 718, 721 (9th Cir. 2007).

4. Adequate Representation

The adequacy of representation requirement set forth in Rule 23(a)(4)

involves a two-part inquiry: “(1) do the named plaintiff and [her] counsel have

any conflicts of interest with other class members and (2) will the named plaintiff

and [her] counsel prosecute the action vigorously on behalf of the class?” Hanlon,

150 F.3d at 1020. “Adequate representation depends on, among other factors, an

absence of antagonism between representatives and absentees, and a sharing of

interest between representatives and absentees.” Ellis v. Costco Wholesale Corp.,

657 F.3d 970, 985 (9th Cir. 2011).

The interests of Plaintiff and the Class are fully aligned in determining

whether Defendant deceived reasonable consumers with its oversized Product

packaging and confirming that said packaging contains nonfunctional slack-fill.

26 RJC Decl. Ex. 2 (Yetman Tr.) at 63:7-65:16, 68:18-69:14,71:1-18; 73: 2-18; 74:1-2, 13-24; 75:1-6, 13-17; 122: 2-10. 27 Sand Decl. Ex. B at pp. 28-50; Lenzo Decl. Ex. B ¶ 27; see deposition transcript of Ketrina Gordon (“Gordon Tr.”) at 132:15-19, RJC Decl. Ex. 6.



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Plaintiff has worked with her counsel and fully understands the responsibilities

and obligations that go along with serving as class representative in this matter.

Gordon Decl. ¶ 14. To date, Plaintiff has actively participated in every step of this

case, responding to discovery, reviewing relevant documents, and preparing for

and attending deposition. Id. Further, Plaintiff retained counsel with significant

experience in prosecuting large consumer fraud class actions, who should also be

appointed Class Counsel. See firm resume, attached as Ex. 7 to RJC Decl.

Therefore, the adequacy requirement is satisfied here.

B. THE REQUIREMENTS OF RULE 23(b)(2) ARE SATISFIED.

In addition to the prerequisites set forth in Rule 23(a), Plaintiff must meet

one of the types of classes under Rule 23(b).28 Under Rule 23(b)(2), “[a] class

action may be maintained if Rule 23(a) is satisfied and if…the party opposing the

class has acted or refused to act on grounds that apply generally to the class, so

that final injunctive relief or corresponding declaratory relief is appropriate

respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).

Here, Plaintiff’s request for injunctive relief would uniformly prohibit

Defendant’s practice of selling oversized, opaque Product packaging containing

nonfunctional slack-fill. Further, the fix is simple: shrink the box, fill the box, or

add additional features to the box that eliminate the consumer deception. The

28 Plaintiff contends that she meets the requirements of both Rules 23(b)(2) and (b)(3). Indeed, Plaintiff’s economist and conjoint analysis experts have already prepared a report which demonstrates reliable methodologies to prove classwide damages. See Lenzo Decl. Ex. B. However, this motion is limited to certification of an injunctive relief only class under Rule 23(b)(2) because Plaintiff’s primary motivation for bringing this class action was to correct Defendant’s unlawful packaging. RJC Decl. Ex. 6 (Gordon Tr.) at 220:6-14 (“Q: It doesn’t matter to you whether you get any money out of this lawsuit, is what you’re saying? . . . A: I don’t care about any money.”) Plaintiff reserves her right to seek leave of Court, should she establish liability on the merits, to try damages on a classwide basis under Rule 23(b)(3).



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requested injunctive relief is indivisible and will benefit all Class members, thus

making Rule 23(b)(2) certification appropriate.

1. Plaintiff Has Article III Standing. “[S]tanding requires that (1) the plaintiff suffered an injury in fact ... (2) the

injury is fairly traceable to the challenged conduct, and (3) the injury is likely to

be redressed by a favorable decision.” Mazza v. Am. Honda Motor Co., 666 F.3d

581, 594-95 (9th Cir. 2012) (quoting Bates v. United Parcel Svc., Inc., 511 F.3d

974, 985 (9th Cir. 2007)). Although there was a split29 in the Ninth Circuit as to

when Article III standing is satisfied to award injunctive relief, two recent Ninth

Circuit cases, Davidson and Bigelow, work in tandem to help resolve this split and

confirm that Plaintiff has standing to seek injunctive relief under Rule 23(b)(2).

Davidson v. Kimberly-Clark Corp., 873 F.3d 1103, 1116 (9th Cir. 2017); Victor v.

R.C. Bigelow, Inc., (“Bigelow”) 708 F. App’x 333 (9th Cir. 2017).

In Davidson, the plaintiff filed a false advertising suit seeking injunctive

relief under the UCL, CLRA, and FAL against a defendant who advertised that its

wipes were “flushable” when they actually were not. Davidson, 873 F.3d 1103.

The court looked to plaintiff’s allegations to determine whether she had Article III

standing to seek injunctive relief. Id. The court noted that, “Davidson alleged that

she ‘continues to desire to purchase wipes that are suitable for disposal in a

household toilet’; ‘would purchase truly flushable wipes manufactured by

[Kimberly-Clark] if it were possible’; ‘regularly visits stores… where [Kimberly-

Clark’s] ‘flushable’ wipes are sold’; and is continually presented with Kimberly-

Clark’s flushable wipes packaging but has ‘no way of determining whether the

representation ‘flushable’ is in fact true.’” Id. at 1116. The court held that it is

29 See Pinon v. Tristar Prods., Inc., No. 1:16-cv-00331-DAD-SAB, 2016 WL 4548766, at *4 (E.D. Cal. Sept. 1, 2016) (“The Ninth Circuit has not addressed the specific question…[and] district courts within this circuit are divided about whether a plaintiff seeking to bring injunctive relief claims over deceptive labeling can establish Article III standing once they are already aware of an alleged misrepresentation.”).



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“required at this stage of the proceedings to presume the truth of plaintiff’s

allegations and to construe all of the allegations in her favor” and ruled “that

Davidson’s allegation that she has ‘no way of determining whether the

representation ‘flushable’ is in fact true’ when she ‘regularly visits stores …where

Defendants’ ‘flushable’ wipes are sold’ constitutes a ‘threatened injury [that is]

certainly impending,’ thereby establishing Article III standing to assert a claim for

injunctive relief.” Id.

Bigelow expands on Davidson. There, the plaintiffs asserted causes of

actions under the UCL, FAL, and CLRA seeking injunctive relief because

defendant allegedly mislabeled its tea products by including phrases like “healthy

antioxidants.”30 However, the court held that the plaintiffs do not have standing to

seek injunctive relief because they do not face a threat of future harm. Victor, 708

F. App’x at 334. The court’s holding was based on plaintiffs only buying

“Bigelow tea again only if they receive an injunction first” and that “[t]hey will

not consider purchasing even those teas with updated packaging that they

acknowledge is accurate and resolves their concerns” (emphasis added). Id.

Accordingly, “[b]ecause they will not consider buying even properly labeled tea

until they receive an injunction, [plaintiffs] will not be harmed by wondering if

the tea is still mislabeled or by buying the tea without knowing if it is still

mislabeled. [Plaintiffs] do not face a real or immediate risk of being harmed again

in the same manner and so lack Article III standing to seek injunctive relief.” Id.

This case mirrors Davidson and is inapposite to Bigelow. Here, Plaintiff

purchased the Product at the movies to share with her friends; she has seen

Defendant’s Products on sale at the movies many times before. Gordon Decl. ¶¶

4, 5, 8. Plaintiff was misled by the size of the Product’s opaque packaging and

30 See Victor v. R.C. Bigelow, Inc., No. 13-cv-02976-WHO, 2016 U.S. Dist. LEXIS 115845, at *1 (N.D. Cal. Aug. 29, 2016); Khasin v. R. C. Bigelow, Inc., No. 12-cv-02204-WHO, 2016 U.S. Dist. LEXIS 115850, at *1 (N.D. Cal. Aug. 29, 2016).



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was economically injured because she did not receive an amount of candy she

expected to receive based on the size of the packaging. Id. ¶¶ 9-12. Plaintiff

further states the opposite of the Bigelow plaintiffs: that she foresees purchasing

the Products to share with her friends in the future but will not know how much

empty space is in the opaque packaging, let alone how much of that space is

nonfunctional, by just looking at the packaging alone and will always have to

wonder whether the package is filled with candy commensurate to the size of the

box. Id. ¶ 13. This mirrors the plaintiff in Davidson who wants to purchase the

wipes but has “no way of determining whether the representation ‘flushable’ is in

fact true” when she “regularly visits stores…where Defendants’ ‘flushable’ wipes

are sold.” Davidson, 873 F.3d at 1116. Therefore, as in Davidson, and unlike in

Bigelow, Plaintiff faces a “real or immediate risk of being harmed again” because

she has no way of knowing the amount of slack-fill in Defendant’s Products from

the Products’ opaque packaging until she purchases and opens the Product, and

therefore, a “threatened injury [is] certainly impending.” Id.; Victor, 708 F. App’x

at 334. Thus, in line with the Ninth Circuit and the objective31 of California’s

consumer protection laws, Plaintiff has Article III standing for injunctive relief.

2. Plaintiff and the Class Complain of Standardized Uniform Conduct Applicable to the Entire Class.

The Ninth Circuit has held that for a Rule 23(b)(2) class to be certified, it is

sufficient if class members complain of a practice that is generally applicable to

the class as a whole. Walters, 145 F.3d at 1047 (9th Cir. 1998); see 7A Charles 31 “Were injunctive relief unavailable to a consumer who learns after purchasing a product that the product’s label is false, California’s consumer protection laws would be effectively gutted, as defendants could remove any such case. Machlan, 77 F. Supp. 3d at 961. As the district court in Machlan explained, by finding that these plaintiffs fail to allege Article III standing for injunctive relief, we risk creating a ‘perpetual loop’ of plaintiffs filing their state law consumer protection claims in California state court, defendants removing the case to federal court, and the federal court dismissing the injunctive relief claims for failure to meet Article III’s standing requirements. Id. On our Article III standing analysis, fully supported for the reasons we have explained by established standing principles, this ‘perpetual loop’ will not occur.” Davidson v. Kimberly-Clark Corp., 873 F.3d 1103, 1115-16 (9th Cir. 2017)


PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES

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Alan Wright, et al., Federal Practice & Procedure § 1775 (2d ed. 1986) (“All the

class members need not be aggrieved by or desire to challenge the defendant’s

conduct in order for some of them to seek relief under Rule 23(b)(2).”); In re

Yahoo Mail Litigation 308 F.R.D. 577, 599 (N.D. Cal. 2015).

Here, Defendant’s conduct is standardized and mechanized.32 Indeed,

Defendant has been using the same machines to manufacture, fill, and enclose

each respective Product’s packaging during the Class Period.33 The process of

manufacturing each respective Product is the same to ensure weight and fill

consistency.34 Since Defendant’s machines fill each respective Product box to the

same uniform fill level, it would logically follow that it also does not fill the

Products above that level, leaving a uniform amount of functional slack-fill and

nonfunctional slack-fill therein. Accordingly, Plaintiff and Class members

complain of standard and uniform practice of unfair, unlawful, and deceptive

conduct by Defendant that is generally applicable to the entire Class.

///

///

32 RJC Decl. Ex. 2 (Yetman Tr.) at 68:18-69:14 (“Q:

Yetman Tr.) at 58:15-59:6; 84: 18-24; 85:4-10, 20-23 o

an Tr.) at 63:7-65:16; 71:1-18 (“Q:



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3. Plaintiff Seeks Injunctive Relief That Would Benefit the Class.

“The key to the (b)(2) class is ‘the indivisible nature of the injunctive . . .

remedy warranted—the notion that the conduct is such that it can be enjoined or

declared unlawful only as to all of the class members or as to none of them.’”

Wal-Mart Stores, 131 S. Ct. at 2557 (citation omitted). “In other words, Rule

23(b)(2) applies only when a single injunction or declaratory judgment would

provide relief to each member of the class.” Id.; Delarosa v. Boiron, Inc., 275

F.R.D. 582, 591-92 (C.D. Cal. 2011) (Rule 23(b)(2) class certified because

commonality as to representations about medicine’s efficacy and an injunction

prohibiting same would “provide relief to each member of the class”) (citing Wal-

Mart, 131 S.Ct. at 2557); see also, Ries v. Arizona Beverages USA, 2012 WL

5975247, at *17-18 (granting (b)(2) certification of UCL and CLRA claims where

class sought injunctive relief to rectify false advertising on product packaging).

Plaintiff seeks injunctive relief prohibiting Defendant from continuing to

engage in deceptive, unlawful, and unfair practices by adding candy to, or

shrinking, the box, or adding features to the box to eliminate the deception due to

nonfunctional slack-fill. Plaintiff also seeks punitive damages which are

sufficiently “incidental” and do not turn on the individual circumstances of Class

members. Ries, 287 F.R.D. at 541. Such equitable relief will benefit all.

Lastly, Defendant is capable of adding more candy or changing the

dimensions and features of its Products’ packaging to eliminate the deception

caused by nonfunctional slack-fill. See RJC Decl. Ex. 2 (Yetman Tr.) at 60:12-

61:16, 78:21-79:1- 21; 89:18-24. In fact, Defendant admits that all

Id. Thus, injunctive relief is necessary to prevent any

future harm to consumers who purchase the Products. Absent injunctive relief,

Defendant will continue to sell its deceptively packaged Products with impunity.



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As confirmed by the court in Cruz v. PacifiCare Health Systems, Inc., 30 Cal.4th

303 (2003), the statutory remedies available for violations of the CLRA, UCL,

and FAL include public injunctive relief, i.e., injunctive relief that has the primary

purpose and effect of prohibiting unlawful acts that threaten future injury to the

general public. Id. at 315-16. Therefore, certification pursuant to Rule 23(b)(2) is

appropriate and necessary here.

VI. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that this Honorable

Court GRANT her motion for class certification.

DATED: March 5, 2018 CLARKSON LAW FIRM, P.C. /s/ Ryan J. Clarkson_________ Ryan J. Clarkson, Esq.

Shireen M. Clarkson, Esq. Bahar Sodaify, Esq. Counsel for Plaintiff


DECLARATION OF RYAN J. CLARKSON

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Plaintiff,

vs.


Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 2:17-cv-02664-DSF-MRW [CLASS ACTION] DECLARATION OF RYAN J. CLARKSON IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL Hon. Dale S. Fischer Action filed: February 10, 2017 Hearing Date: May 14, 2018 Hearing Time: 1:30 pm Hearing Location: 7D


1 DECLARATION OF RYAN J. CLARKSON

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DECLARATION OF RYAN J. CLARKSON

I, Ryan J. Clarkson, declare as follows:

1. I am the managing attorney at Clarkson Law Firm, P.C. (“CLF”) and

counsel of record for named Plaintiff Ketrina Gordon (“Plaintiff”). I am licensed to

practice in all state and federal courts in the State of California, and I am a member

in good standing of the State Bar of California. I have personal knowledge of the

facts set forth in this declaration and, if called as a witness, I could and would testify

competently thereto.

2. I make this declaration in support of Plaintiff’s motion for class

certification.

3. Prior to filing her complaint, Plaintiff provided notice to Defendant

pursuant to Civil Code Section 1782(a).

4. Plaintiff’s Second Amended Complaint avers that the amount of

nonfunctional slack-fill contained in each of the Products is 45%. However, where

that number differs from Plaintiff’s expert in packaging design engineering, Dr.

Claire Sand, Plaintiff defers to Dr. Sand’s calculations. Plaintiff shall amend the

pleadings to conform to the evidence, if and/or when necessary.

5. The parties have engaged in substantial discovery.

6. On January 4, 2018, Defendant deposed Plaintiff.

7. Attached hereto as Exhibit 6 is a true and correct copy of relevant

excerpts of Plaintiff Ketrina Gordon’s deposition transcript.

8. On January 17-19, 2018, Plaintiff traveled to Chicago, Illinois to take

Defendant’s Rule 30(b)(6) depositions.


excerpts of Barry Bowen’s deposition transcript.


excerpts of Paula Yetman’s deposition transcript.


2 DECLARATION OF RYAN J. CLARKSON

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excerpts of Charles Gordon Brown’s deposition transcript.

12. On February 15-16, 2018, Plaintiff traveled to Boston, Massachusetts to

take additional depositions of Defendant’s fact witnesses.


excerpts of Stephen Modaff’s deposition transcript.

14. Discovery is ongoing as to retail sales.

15. Attached hereto as Exhibit 5 is a true and correct copy of Defendant’s

Second Supplemental Responses served on November 10, 2017, in response to

Plaintiff’s Special Interrogatories, Set One.

16. Defendant produced a spreadsheet in discovery bates stamped

TRCA_0004263 detailing the regarding in the

Products received during the Class Period (the “Class Period” is February 10, 2013

through the present).

17. Attached hereto as Exhibit 7 is a true and correct copy of Clarkson Law

Firm, P.C.’s resume.

I declare under penalty of perjury under the laws of the United States and the

State of California that the foregoing is true and correct. Executed on March 5, 2018

at Los Angeles, California.

Ryan J. Clarkson


EXHIBIT 1 [REDACTED VERSION PROPOSED TO BE

FILED UNDER SEAL]


1

1 IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

2

3 KETRINA GORDON, individually )and on behalf of all others )

4 similarly situated, ) )

5 Plaintiff, ) )

6 vs. ) No. 2017-cv-02664 )

7 TOOTSIE ROLL INDUSTRIES, )INC., and DOES 1 through 10, ) Hon. Dale S. Fischer

8 inclusive, ) )

9 Defendants. )

10

11 CONFIDENTIAL

12 SUBJECT TO PROTECTIVE ORDER

13 VOLUME ONE

14 The 30(b)(6) videotaped deposition of

15 TOOTSIE ROLL INDUSTRIES,INC., by and through

16 BARRY PATRICK BOWEN, taken in the above-entitled

17 cause, pursuant to notice, reported by Deena Cothard,

18 CSR, at 101 West Grand Avenue, Chicago, Illinois, on

19 January 18, 2018, at the hour of 3:53 p.m.

20

21 ATKINSON BAKER, INC.COURT REPORTERS

22 (800) 288-3376www.depo.com

23 REPORTED BY: Deena CothardFILE NO.: AC00001

24


37

1 16:34 A At least, and then if we were to change

2 16:34pricing at some point during the year, that would be

3 16:34revised. But we, typically, don't change pricing

4 16:34very often.

5 16:34 Q Is the price bulletin different than the

6 16:34national price list, or do you use --

7 16:34 A Same thing.

8 16:34 Q And those price lists cover the products at

9 16:34issue?

10 16:35 A That's correct.

11 16:35 Q Does Tootsie Roll have suggested retail

12 16:35prices for the products at issue?


46

15 16:47 Q Uh-huh.

21 16:48 Q Do you know what Tootsie Roll's annual

22 16:48sales are roughly?

16:48



FILED UNDER SEAL]


·1· · · · · · IN THE UNITED STATES DISTRICT COURT· · · · · · ·FOR THE CENTRAL DISTRICT OF CALIFORNIA·2

·3· ·KETRINA GORDON, individually )· · ·and on behalf of all others· )·4· ·similarly situated,· · )· · · · · · · · · · · · · · · · · )·5· · · · · · ·Plaintiff,· · · · ·)· · · · · · · · · · · · · · · · · )·6· · · · vs.· · · · · · · · · · ·)· No. 2017-cv-02664· · · · · · · · · · · · · · · · · )·7· ·TOOTSIE ROLL INDUSTRIES,· · ·)· · ·INC., and DOES 1 through 10, )· Hon. Dale S. Fischer·8· ·inclusive,· · · · · · · · · ·)· · · · · · · · · · · · · · · · · )·9· · · · · · ·Defendants.· · · · )

10

11· · · · · · · · · · · CONFIDENTIAL

12· · · · · · · · ·SUBJECT TO PROTECTIVE ORDER

13· · · · · · ·The 30(b)(6) videotaped deposition of

14· ·TOOTSIE ROLL INDUSTRIES, INC., by and through

15· ·PAULA YETMAN, taken in the above-entitled cause,

16· ·pursuant to notice, reported by Deena Cothard, CSR,

17· ·at 101 West Grand Avenue Chicago, Illinois, on

18· ·January 18, 2018, at the hour of 10:11 a.m.

19

20

21· ·ATKINSON BAKER, INC.· · ·COURT REPORTERS22· ·(800) 288-3376· · ·www.depo.com23· ·REPORTED BY: Deena Cothard· · ·FILE NO.:· AC0000124

Atkinson-Baker Court Reporterswww.depo.com

Paula YetmanJanuary 18, 2018


Paula YetmanJanuary 18, 2018 1


·1· · · · A· · We call them two point -- machine 2.2.

·2· ·2.1.· 4-1 and 4-2.

·3· · · · Q· · The two machines that the Junior Mints

·4· ·products we have been discussing today, which

·5· ·machines that you just identified -- strike that.

·6· · · · · · ·Which machines were used to manufacture the

·7· ·Junior Mints boxed candy products?

·8· · · · · · ·Is it machine 2.1 and 2.2? Or --

·9· · · · A· · It is 2.1 and 2.2, yes, but all of the

10· ·Junior Mint products?· Are you talking about the

11· ·3.5 ounce?

12· · · · Q· · Let's focus on the 3.5 ounce box:

13· · · · · · ·Which machine or machines at

14· ·810 Main Street have been used to manufacture the

15· ·3.5 ounce boxes of Junior Mints?

16· · · · A· · Line 2.1 and line 2.2.

17· · · · Q· · Which machines have been used to

18· ·manufacture the 4 ounce box of Junior Mints?

19· · · · A· · 2.1.· 2.2.


21· ·manufacture the 3 ounce boxes of Junior Mints?

22· · · · A· · Primarily, 2.1.


24· ·manufacture the 2.6 ounce box of Junior Mints?



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·1· · · · A· · 2.1.

·2· · · · Q· · Which machines have been used to

·3· ·manufacture the 4.13 ounce box of Junior Mints?

·4· · · · A· · 2.2.· 2.1.


·6· ·manufacture the 12 ounce box of Junior Mints?

·7· · · · A· · Primarily, 2.1.


·9· ·manufacture the 10.5 ounce box of Junior Mints?

10· · · · A· · 2.1.



13· · · · A· · 2.1.



16· · · · A· · 2.2 and 2.1.

17· · · · Q· · What are machines 4.1 and 4.2 used to

18· ·manufacture?

19· · · · A· · They, primarily, package -- 4.1, primarily,

20· ·packages Charleston Chews and Junior Caramels.

21· · · · · · ·4.2 is, primarily, dedicated to

22· ·Sugar Babies.

23· · · · Q· · Any others for 2.2?· I'm sorry.

24· · · · · · ·Other than Sugar Babies does machine 4.2



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·1· ·for purposes of consistency from one box to another;

·2· ·is that correct?

·3· · · · · · ·MR. JOLLEY:· Objection; asked and answered.

·4· · · · · · ·THE WITNESS:· I don't know -- I don't know

·5· ·how to answer that question.

·6· · · · · · ·The machine works on a series of cams that

·7· ·takes these funnels, inserts -- inserts them into the

·8· ·box, and depending on the condition of the equipment,

·9· ·how well it's running, it might go a half an inch.

10· ·It might go less.· But it meets -- it goes into the

11· ·box to prevent the candy from -- preventing it from

12· ·not entering the box or jumping out or bouncing out.

13· ·BY MR. CLARKSON:

14· · · · Q· · Is the machine calibrated to never insert

15· ·itself more than a half an inch into the box?

16· · · · A· · I don't know.· I don't know that for a

17· ·fact.· I'm sure it is designed to a certain distance.

18· · · · Q· · And the expectation is -- this is an

19· ·automated process, correct?

20· · · · A· · Yes.

21· · · · Q· · How many boxes are being filled per minute

22· ·on this machine?

24· · · · Q· · So this is a very fast process?



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·1· · · · A· · Yes, it is.

·2· · · · Q· · It is a high-speed filling machine you are

·3· ·talking about, correct?

·4· · · · A· · That is what it is called.

·5· · · · Q· · It is actually called a, "high-speed

·6· ·filling machine"?

·7· · · · A· · Yes.

·8· · · · Q· · So the high-speed filling machine is

·9· ·calibrated to be consistent in terms of the amount of

10· ·candy it puts into the -- into each box from one box

11· ·to another?

12· · · · · · ·MR. JOLLEY:· Objection; asked and

13· ·answered.

14· · · · · · ·THE WITNESS:· Yes.


16· · · · Q· · You testified that there could be some

17· ·variation depending on whether the machine has

18· ·undergone maintenance, wear and tear, and that sort

19· ·of thing; is that right?

22· · · · Q· · How often do the machines get maintained to

23· ·ensure consistency in performance?

24· · · · A· · We do preventive maintenance once a week



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·1· · · · Q· · So the machines are checked and verified to

·2· ·insert 3.5 ounces minimum into every box; is that

·3· ·right?

·4· · · · A· · The scale directs how much.

·5· · · · · · ·I failed to say in the process of the

·6· ·description of how the boxes, each box goes over --

·7· ·it goes through a metal detector, and it goes over a

·8· ·check weigher.· If it is under weight, it is kicked

·9· ·off.

10· · · · Q· · If the -- so your testimony is if the box

11· ·is underfilled, then it will be flagged and removed

12· ·from the production line?

13· · · · · · ·MR. JOLLEY:· Objection; vague and ambiguous

14· ·as to, "underfilled."

15· · · · · · ·THE WITNESS:· If it does not meet the

16· ·specifications on what the machine is set up for,

17· ·3.5 ounce, the check weigher will automatically blow

18· ·it off.


20· · · · Q· · Is there variation in -- well, let me back

21· ·up.

22· · · · · · ·So with a 3.5 ounce box of Junior Mints,

23· ·the machine, the high-speed filling machines, are

24· ·calibrated to insert, at least, 3.5 ounces of



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·2· · · · · · ·MR. JOLLEY:· Same objections.

·7· ·BY MR. CLARKSON:

·8· · · · Q· · So Tootsie Roll -- I may use, "Tootsie

·9· ·Roll," instead of, "Tootsie Roll Industries, Inc.,"

10· ·just for purposes of efficiency and abbreviation.

11· · · · · · ·Is that okay?

12· · · · A· · That's fine.

13· · · · Q· · So Tootsie Roll has some checks and

14· ·balances to make sure that consumers are not getting

15· ·less than the promised 3.5 ounces of candy in a 3.5

16· ·ounce box of Junior Mints, right?

17· · · · A· · That is correct.

18· · · · Q· · Does Tootsie Roll also have checks and

19· ·balances to make sure that it's not including more

20· ·than -- well, let me back up a second.

21· · · · · · ·You testified that to account for some

22· ·slight differences in fill levels -- let me strike

23· ·that and ask it a different way.

24· · · · · · ·Does Tootsie Roll have checks and balances



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·1· · · · A· · Yes.

·2· · · · Q· · And is that held at 810 Main Street in

·3· ·Cambridge?

·4· · · · A· · Yes.

·5· · · · Q· · And that package order would identify for

·6· ·all of the Junior Mints boxed candy products and all

·7· ·the Sugar Babies boxed candy products, the criteria

·8· ·for kicking off the manufacturing line in either

·9· ·underfilled or overfilled boxed candy product; is

10· ·that right?

11· · · · A· · Yes.

12· · · · Q· · Other than at the point -- turning back to

13· ·the machine; machines used to fill the 3.5 ounce

14· ·boxes -- other than at the point of fill, is there

15· ·any other time during the packaging process that a

16· ·piece of machinery is inserted into the box itself?

17· · · · A· · No.

18· · · · Q· · Is the machine that is used to fill the

19· ·6 ounce box of Sugar Babies -- strike that.· I will

20· ·come back to that later.

21· · · · · · ·Presently, Tootsie Roll is manufacturing on

22· ·the machine 2.1 and 2.2 several different weights of

23· ·Junior Mints boxed candy products, correct?

24· · · · A· · That's correct.



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·1· · · · Q· · Can you describe the process for converting

·2· ·the line to produce, say, a 3.5 ounce box of

·3· ·Junior Mints to a 4.13 ounce box of Junior Mints?

·4· · · · · · ·What does that process involve?

·5· · · · A· · Depending on the size of the box, the

·6· ·pockets would have to change that hold it.· The rails

·7· ·would change with the dimension.· The scale settings

·8· ·would have to change.· Check weigher settings would

·9· ·have to change.

10· · · · · · ·The glue -- the glue application would have

11· ·to change based on the pattern of the glue for the

12· ·individual box.

13· · · · Q· · What about the calibration of the filling

14· ·portion of it that protrudes into the box?· Does that

15· ·change, or is that always the same from one box to

16· ·the next?

17· · · · A· · Well, there's a program for each box on the

18· ·sheet of scale and on the Z machine or the cartoning

19· ·machine.· So the mechanic will have to set up that

20· ·line for that program, and then it will adjust the

21· ·equipment to that size box.

22· · · · Q· · With the 3.5 ounce box of Junior Mints, you

23· ·mentioned that -- well, what is the name of the

24· ·portion of the machine that inserts itself into the



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·1· · · · · · ·MR. CLARKSON:· It is 12:20.

·2· · · · · · ·How are you guys feeling?· Do you guys want

·3· ·to --

·4· · · · · · ·MR. JOLLEY:· We will break for lunch at

·5· ·some point, but do you know how much time we have

·6· ·left before the next witness?

·7· · · · · · ·MR. CLARKSON:· Oh, yeah, so why --

·8· · · · · · ·THE COURT REPORTER:· Are we on the record?

·9· ·Stay on?

10· · · · · · ·MR. CLARKSON:· Yeah, let's go off the

11· ·record for a second.

12· · · · · · ·THE VIDEOGRAPHER:· We are now off the

13· ·record.· The time is 12:21 p.m.

14· · · · · · · · · · · · · · · · (Off the record.)

15· · · · · · ·We are back on the record.

16· · · · · · ·The time is 12:31 p.m.


18· · · · Q· · Ms. Yetman, you testified that there are

19· ·two machines dedicated to manufacture of boxed Junior



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·1· ·Sugar Babies boxed candy products?

·2· · · · A· · That's correct.

·6· · · · · · ·MR. JOLLEY:· Objection; misstates

·7· ·testimony.

·8· · · · · · ·THE WITNESS:· I didn't hear what you said.

·9· · · · · · ·MR.· JOLLEY:· That was for her.· You can go

10· ·ahead and answer.



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EXHIBIT 3


·1· · · · · · ·IN THE UNITED STATES DISTRICT COURT· · · · · · ·FOR THE CENTRAL DISTRICT OF CALIFORNIA·2

·3· ·KETRINA GORDON, individually )· · ·and on behalf of all others· )·4· ·similarly situated,· ·)· · · · · · · · · · · · · · · · · )·5· · · · · · ·Plaintiff,· · · · ·)· · · · · · · · · · · · · · · · · )·6· · · · vs.· · · · · · · · · · ·)· No. 2017-cv-02664· · · · · · · · · · · · · · · · · )·7· ·TOOTSIE ROLL INDUSTRIES,· · ·)· · ·INC., and DOES 1 through 10, )· Hon. Dale S. Fischer·8· ·inclusive,· · · · · · · · · ·)· · · · · · · · · · · · · · · · · )·9· · · · · · ·Defendants.· · · · )

10

11· · · · · · · · · · · CONFIDENTIAL

12· · · · · · · · · SUBJECT TO PROTECTIVE ORDER

13· · · · · · ·The 30(b)(6) videotaped deposition of

14· ·TOOTSIE ROLL INDUSTRIES, INC., by and through

15· ·CHARLES GORDON BROWN, taken in the above-entitled

16· ·cause, pursuant to notice, reported by Deena Cothard,

17· ·CSR, at 101 West Grand Avenue, Chicago, Illinois, on

18· ·January 19, 2018, at the hour of 12:21 p.m.

19

20

21· ·ATKINSON BAKER, INC.· · ·COURT REPORTERS22· ·(800) 288-3376· · ·www.depo.com23· ·REPORTED BY: Deena Cothard· · ·FILE NO.:· AC0000324


Charles Gordon BrownJanuary 19, 2018


Charles Gordon BrownJanuary 19, 2018 1


·1· · · · A· · And in distribution, and in the consumers'

·2· ·hands I'm assuming you mean.

·3· · · · Q· · Correct, and those -- Tootsie Roll never --

·4· ·never evaluated those things, did they?

·5· · · · · · ·MR. JOLLEY:· Objection; vague and ambiguous.

·6· · · · · · ·THE WITNESS:· Well, you are kind of saying,

·7· ·you know, that we got in a room and said, "All right,

·8· ·team.· We are shooting for this headspace."

·9· · · · · · ·That isn't how we do it.· The headspace is a

10· ·result.· It's not a cause.· And so when we have all

11· ·these factors that are involved in developing and

12· ·manufacturing packaging, distribution of a product,

13· ·there are certain things you have to do to meet the

14· ·price point of very competitive category.

15· · · · · · ·Protection; you got to protect the product.

16· ·Keep the machine speeds at a reasonable rate, which is

17· ·very fast.· You have to, you know, make sure that

18· ·there is enough, for example, space in the box for the

19· ·glue to be forced down and flat.· So there a lot of

20· ·these factors.

21· · · · · · ·You put those together.· You design a

22· ·product that meets your objectives in those ways, and

23· ·then I'll look at it and say, "This headspace in this

24· ·case is about 25 percent, give or take, and that is


Charles Gordon BrownJanuary 19, 2018

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Charles Gordon BrownJanuary 19, 2018 87

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EXHIBIT 4


· · · · · · · · · · ·CONFIDENTIAL·1· · · · ·IN THE UNITED STATES DISTRICT COURT

·2· · ·FOR THE CENTRAL DISTRICT OF CALIFORNIA

·3· · · · · · ·CA NO. 2:17-CV-02666-DSF-MRW

·4

·5· ·KETRINA GORDON, individually and on behalf of

·6· ·all others similarly situated,

·7· · · · · · · · · · · · · ·Plaintiff,

·8

·9· ·vs.

10· ·TOOTSIE ROLL INDUSTRIES, INC., and DOES 1 through

11· ·10, inclusive,

12· · · · · · · · · · · · · · Defendants.

13

14· · · · ·VIDEOTAPED DEPOSITION OF

15· · · · ·STEPHEN MODAFF

16· · · · ·Regus

17· · · · ·Eight Faneuil Hall Marketplace

18· · · · ·Boston, MA 02109

19· · · · ·February 16, 2018

20· · · · ·9:10 a.m.

21

22· ·AB Job# AC01582

23· ·Reported by: Lori J. Atkinson

24


Stephen ModaffFebruary 16, 2018


Stephen ModaffFebruary 16, 2018 1


·1· · · · keep the length of the 3.5-ounce box of Junior

·2· · · · Mints the same?

·3· ·A.· ·Um-hmm.

·4· ·Q.· ·Is there -- and you communicated a marketing

·5· · · · reason, right?· You related to shelf space.· Do you

·6· · · · recall that testimony?

·7· ·A.· ·Yes.

·8· ·Q.· ·Was there a similar marketing reason for the

·9· · · · decision to reject the shorter smaller box?

10· ·A.· ·No.

11· ·Q.· ·Was there -- did you perceive any disadvantage to

12· · · · -- from a marketing perspective to having a shorter

13· · · · box?

14· ·A.· ·Not specifically a shorter box.· Just size in

15· · · · general, shelf impact, those types of things we

16· · · · consider.· But marketing wants the biggest package

17· · · · on any item.

18· ·Q.· ·Why is that?

19· ·A.· ·Again, for a lot of reasons.

20· ·Q.· ·Can you describe one reason?

21· ·A.· ·One reason would be shelf impression.· Shorter.

22· · · · Longer.· Specifically to this, my concern that I

23· · · · had stated was, you know, let's try to keep the

24· · · · length.· That wasn't just me dictating that.· We



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·1· · · · looked at marketing and sales and retailers and

·2· · · · everything.

·3· ·Q.· ·That is shelving?

·4· ·A.· ·We evaluate those things on any type of product.

·5· ·Q.· ·What is shelf impression?

·6· ·A.· ·Shelf impression I guess is the consumer

·7· · · · impression when it sits on the shelf.· Not

·8· · · · specifically related to design either -- to the

·9· · · · size.· It relates to the art work and how it

10· · · · presents itself as well.

11· · · · · · · · · But my only guidance that I recall was

12· · · · just the length because it wasn't shelf impression.

13· · · · It was making sure that we didn't lose space or we

14· · · · took too much space and got kicked out.· Those

15· · · · types of things

16· · · · · · · · · Those are just my asks.· I don't recall

17· · · · control that.· I would not ask for certain

18· · · · dimensions and dictate that and say, No, we can't

19· · · · do this.· We can't do that.· Like this and any

20· · · · other item, I just say -- I just give my opinion.

21· ·Q.· ·Let's switch gears for one moment.· Where did you

22· · · · go to college?

23· ·A.· ·I went to Indiana University.

24· ·Q.· ·Hoosiers?



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·1· · · · Same with the big box.

·2· ·Q.· ·So the easy pour dispenser on the Dots and Junior

·3· · · · Mints big box products was there as of December of

·4· · · · 2014?

·5· ·A.· ·Yes.

·6· ·Q.· ·When was the decision made to add the easy pour

·7· · · · feature to the 3.5-ounce box of Junior Mints?

·8· ·A.· ·I think it was either around this time frame, March

·9· · · · April.

10· ·Q.· ·March of 2017?

11· ·A.· ·Yes.· These are emails relating to that.

12· · · · I would

13· · · · say it would be around that time frame.

14· ·Q.· ·Is this -- was the use of the easy pour feature for

15· · · · the 3.5-ounce box of Junior Mints an idea that was

16· · · · conceived by the marketing department?

17· ·A.· ·You know what, I don't know the answer to that. I

18· · · · know that there are existing products so we looked

19· · · · at it before.· I know that previous brand managers

20· · · · had looked at it.· I don't know the reasons why we

21· · · · never, you know, added it at that time.· But I

22· · · · don't know who made the decision.· What time it was

23· · · · made.· Related to that question.

24· ·Q.· ·So it wasn't a decision you conceived -- strike



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·1· · · · that.

·2· · · · · · · · · Adding the easy pour feature to the

·3· · · · 3.5-ounce box of Junior Mints was not an idea that

·4· · · · you conceived; correct?

·5· ·A.· ·Not me specifically.· Again, we do a lot of things --

·6· · · · as you've probably learned we do a lot of things

·7· · · · collaboratively.· So we were looking at the theater

·8· · · · box line and improvements that we could make to

·9· · · · better educate the consumer and improve the consumer

10· · · · experience.

11· ·Q.· ·Were you involved in the decision to add the easy

12· · · · pour feature to the 3.5-ounce box of Junior Mints?

13· ·A.· ·Yes.

14· ·Q.· ·What was your involvement?

15· ·A.· ·It was talking about these ideas.· We had done it

16· · · · on a big box.· Can we do it on other boxes?· Along

17· · · · with some of these other improvements that we're

18· · · · making.· I know that we looked at it before.· Those

19· · · · types of things.

20· ·Q.· ·So tell me all the reasons that you decided -- that

21· · · · Tootsie Roll Industries decided to add the easy

22· · · · pour feature to the 3.5-ounce box of Junior Mints?

23· · · · · · · · · MR. JOLLEY:· Objection, to the extent

24· · · · it calls for speculation.



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·1· ·A.· ·Right.· So what I am aware of, what I was involved

·2· · · · with, was the consumer factor.· And then as we do

·3· · · · with everything in our portfolio, we are always

·4· · · · looking at the risk of litigation.· And so that was

·5· · · · looked at as well.· But primarily what can we do to

·6· · · · improve the consumer experience.

·7· · · · · · · · · So I don't want to isolate that.· I know

·8· · · · you are focused on that.· I don't want to isolate

·9· · · · that because we made other improvements.· We had

10· · · · actual size.· ·We did some other things to the

11· · · · packaging.· But we felt that was -- or is at par

12· · · · with the industry and industry standards as far as

13· · · · communicating the best we can of what is inside the

14· · · · box.· To ensure -- as a marketer, I want to ensure

15· · · · that the consumer experiences goods.· Otherwise we

16· · · · don't have consumers.· This is a very big line for

17· · · · us.· So we looked at other ways to improve the

18· · · · consumer experience as well as, you know, make sure

19· · · · that we weren't -- you know, to mitigate litigation.

20· ·Q.· ·How did you believe adding the easy pour would

21· · · · assist in mitigating litigation?

22· ·A.· ·Just the risk factors from a consumer standpoint of

23· · · · crushing and the packaging and whatnot.

24· ·Q.· ·So I'm trying to understand -- I'm trying to



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·1· · · · understand -- can you explain that one more time.

·2· · · · You stated that one of the reasons that you added

·3· · · · the easy pour feature is to mitigate against the

·4· · · · risk of litigation.· I'm trying to understand how

·5· · · · it would do that --

·6· ·A.· ·I'm sorry.

·7· ·Q.· ·I'm trying to understand how you believe that

·8· · · · adding the easy pour would assist in mitigating the

·9· · · · risk of litigation?

10· ·A.· ·From my understanding -- respectfully, I wasn't

11· · · · involved in all the conversations.· But we were --

12· · · · the litigious environment things going on with head

13· · · · space and whatnot and other companies and whatnot.

14· · · · We know we are not at fault with anything.· We

15· · · · don't have any issues related our packaging.· You

16· · · · always try to do things to help improve consumer

17· · · · education and consumer experience.

18· ·Q.· ·So you're aware that this lawsuit was filed in

19· · · · February of 2017; right?

20· ·A.· ·I don't know the specific date.· But sure.

21· ·Q.· ·But were you aware of the lawsuit at the time that

22· · · · the easy pour feature was conceived.· Were you?

23· ·A.· ·I'm sorry. Repeat the question.

24· ·Q.· ·You were aware of the lawsuit at the time that the



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·1· · · · easy pour feature for the 3.5-ounce box of Junior

·2· · · · Mints was conceived; correct?

·3· ·A.· ·Yes.

·4· · · · · · · · · MR. JOLLEY:· Objection, misstates

·5· · · · facts.

·6· ·Q.· ·Was the addition of the easy pour feature to the

·7· · · · 3.5-ounce box of Junior Mints done in part in

·8· · · · response to that lawsuit that was filed in this

·9· · · · case?

10· ·A.· ·No.

11· ·Q.· ·What litigation was the company attempting to

12· · · · mitigate?

13· ·A.· ·Yes.

14· ·Q.· ·What litigation risk was the company attempting to

15· · · · mitigate by adding the easy pour feature?

16· · · · · · · · · MR. JOLLEY:· Objection.· To the extent

17· · · · that it calls for a legal conclusion.

18· · · · · · · · · Go ahead.

19· ·A.· ·Just a general risk of litigation.

20· ·Q.· ·You mentioned specifically a litigious environment?

21· ·A.· ·Yes.

22· ·Q.· ·And by "litigious environment," you mean with

23· · · · respect to slack fill related litigation; is that

24· · · · right?



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·1· ·A.· ·Not specifically.· The part of this packaging and

·2· · · · everything that we have to be aware of it.· That's

·3· · · · why we do the checks and balances of designing

·4· · · · packages the packages that fit the product and

·5· · · · whatnot.· We are always -- it's not like just today

·6· · · · we are in litigious environment.· We are a food

·7· · · · company we are opened to all types of lawsuits.

·8· · · · And we want to mitigate and we want to over

·9· · · · communicate in the packaging to make sure that even

10· · · · though we felt we had the net weight on there, we

11· · · · had the piece count on the box that that was enough

12· · · · for the consumer to understand what is in the box,

13· · · · but -- seeing other --

14· ·Q.· ·Did the legal department -- did the company's

15· · · · lawyers have input on addition of the easy pour

16· · · · feature in March of 2017?

17· · · · · · · · · MR. JOLLEY:· Objection to the extent

18· · · · it calls for privileged communications.· If you

19· · · · are needing to disclose communications from

20· · · · counsel providing legal advice to the company, I

21· · · · will instruct you not to answer.

22· · · · · · · · · THE WITNESS:· I'm not clear.

23· · · · · · · · · MR. JOLLEY: You can answer yes or no.

24· · · · But I don't want to you discuss the substance



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·1· · · · to move the process as quick as possible to hit

·2· · · · those packaging order cutoffs, so we wouldn't have

·3· · · · packaging -- I want to say -- not fines but the

·4· · · · board and different things like that that we can

·5· · · · incur with our supplier.· That's why the supplier.

·6· · · · The supplier directly, they are involved in that

·7· · · · process as well to help us to move that along and

·8· · · · try to mitigate additional costs for the transition

·9· · · · into this packaging, to my knowledge.

10· ·Q.· ·When you say transition to this packaging, what

11· · · · packaging are you referring to?

12· ·A.· ·Into the updated packaging.

13· ·Q.· ·What updated packaging?

14· ·A.· ·The packaging with the additional copy and then the

15· · · · easy pour.

16· ·Q.· ·So was there going to be a change to the copy of

17· · · · the 3.5-ounce box of Junior Mints other than the

18· · · · easy pour feature?

19· ·A.· ·Was there going to be a change?· Involved with

20· · · · this?

21· ·Q.· ·Yes.

22· ·A.· ·Yes.

23· ·Q.· ·What changes were to be made?

24· ·A.· ·We added -- we added actual size.· We added piece



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·1· · · · count.· And then we moved -- we already

·2· · · · had product sold by weight not volume contents tend

·3· · · · to settle after packaging.· We moved that to the

·4· · · · front of the package.· Those all decided at once to

·5· · · · improve consumer communication on these items and

·6· · · · others, the theater boxes.

·7· ·Q.· ·Why was the phrase "actual size" added to the

·8· · · · packaging of the 3.5 ounce box of Junior Mints?

·9· ·A.· ·Just to better communicate to the consumer.· That

10· · · · we may not be showing them the actual size.· Just

11· · · · to better communicate to the consumer.· Competitors

12· · · · are using it, too.· That is not the main reason.

13· · · · Looking at our packaging.· It was like -- we were

14· · · · communicating to them everything that we're doing

15· · · · is right.· What else can we do.

16· ·Q.· ·So you added -- the company added actual size,

17· · · · piece counts, and moved the disclaimer regarding

18· · · · contents settling to the front of the packaging?

19· ·A.· ·Yes.

20· ·Q.· ·All at the same time?

21· ·A.· ·Yes.

22· ·Q.· ·And also added an easy pour feature?

23· ·A.· ·Yes.

24· ·Q.· ·And at least with respect to the first three



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·1· · · · changes, were those changes that were conceived of

·2· · · · prior to addition of the easy pour feature or at

·3· · · · the same time?

·4· · · · · · · · · MR. JOLLEY:· Objection, compound.

·5· · · · Objection to the extent it calls for speculation.

·6· ·A.· ·Yeah, I don't know when those were conceived or what

·7· · · · was thought about previous.· Don't know.

·8· ·Q.· ·When the company decided to add the term actual

·9· · · · size to the front of the 3.5-ounce box of Junior

10· · · · Mints, what specifically was the company attempting

11· · · · to better communicate to consumers?

12· · · · · · · · · MR. JOLLEY:· Objection to the extent


14· ·A.· ·In my opinion that the size -- the reason for

15· · · · putting actual size on any type of package is to

16· · · · make sure the consumer knows what is inside the --

17· · · · the size of the product -- inside of the package.

18· ·Q.· ·The consumer can better understand how much candy

19· · · · is contained in the box; correct?

20· ·A.· ·Not specific to how much.· The size, what they

21· · · · should expect on the size of the candy.

22· ·Q.· ·And if the consumer understands the size of the

23· · · · candy, they can better understand how much the

24· · · · quantity of the candy contained therein; correct?



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·1· · · · · · · · · MR. JOLLEY:· Objection, argumentative.

·2· · · · Objection asked and answered.

·3· ·A.· ·I would assume that would be logical from a

·4· · · · consumer perspective, yes.

·5· ·Q.· ·The same with respect to the term piece count --

·6· · · · I'm sorry.· Strike that.

·7· · · · · · · · · So another addition that the company made

·8· · · · in March of 2017 was to add a piece count?

·9· ·A.· ·Yes.

10· ·Q.· ·Which prior to March of 2017 did not exist on the

11· · · · prior packaging, correct?

12· · · · · · · · · MR. JOLLEY:· Objection, misstates

13· · · · facts.

14· ·A.· ·You know what, I don't -- which package?

15· ·Q.· ·The 3.5-ounce box of Junior Mints?

16· ·A.· ·Yes.· Ask again, I apologize.

17· ·Q.· ·Prior to March of 2017, the 3.5-ounce box of Junior

18· · · · Mints, did it contain a piece count?

19· ·A.· ·No.

20· ·Q.· ·And prior to March of 2017, did the 3.5-ounce box

21· · · · of Junior Mints contains a reference to what the

22· · · · actual size of the candy is on the product

23· · · · packaging?

24· · · · · · · · · MR. JOLLEY:· I'll object to these



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·1· · · · question.· The boxes will speak for themselves.

·2· ·A.· ·Right.· No.

·3· ·Q.· ·And you stated that there was a disclaimer about

·4· · · · settling of contents located on the rear of the box

·5· · · · prior to March of 2017; is that right?

·6· ·A.· ·Yes.

·7· ·Q.· ·Who conceived of the addition of the terms actual

·8· · · · size, the addition of the piece count, and the

·9· · · · change from the disclaimer regarding settling of

10· · · · contents located on the back of the package to the

11· · · · front of the package in March of 2017?

12· · · · · · · · · MR. JOLLEY:· Objection.· Compound.

13· · · · Objection assumes facts.· Objection to the extent


15· ·A.· ·Right. There was discussions about it.· So there

16· · · · was general ideas thrown out by me and other people

17· · · · involved in the conversation about improving the

18· · · · packaging with other people within marketing.· Just

19· · · · kind of a general, Hey, what else can we do to

20· · · · improve the packaging and better communicate

21· · · · · · · · · So we looked at competitive products.· We

22· · · · had actual size of some of the other items, that's

23· · · · good.· Why not do that?· That should help improve

24· · · · communication on these packages and all of our



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FILED UNDER SEAL]


DEFENDANT TOOTSIE ROLL’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET ONE (1)

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DAVID M. JOLLEY (SBN 191164) Email: [email protected] ASHLEY SIMONSEN (SBN 275203) Email: [email protected] COVINGTON & BURLING LLP One Front Street San Francisco, CA 94111-5356 Telephone: + 1 (415) 591-6000 Facsimile: + 1 (415) 591-6091 Attorneys for Defendant TOOTSIE ROLL INDUSTRIES, INC.

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

KETRINA GORDON, individually and on behalf of all others similarly situated, Plaintiff, v. TOOTSIE ROLL INDUSTRIES, INC., and DOES 1 through 10, inclusive, Defendants

Civil Case No.: 2:17-cv-02664-DSF-MRW DEFENDANT TOOTSIE ROLL’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET ONE (1) Initial Compl. filed: February 10, 2017 Initial Compl. served: March 10, 2017 Case removed: April 7, 2017 Judge: Hon. Dale S. Fischer Courtroom: 7D

REQUESTING PARTY: PLAINTIFF KETRINA GORDON

RESPONDING PARTY: DEFENDANT TOOTSIE ROLL INDUSTRIES, INC.

SET NO.: ONE

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Defendant Tootsie

Roll Industries, Inc. (“Tootsie Roll”) hereby provides these second supplemental


6 DEFENDANT TOOTSIE ROLL’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO PLAINTIFF’S

SPECIAL INTERROGATORIES, SET ONE (1)

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SLACK-FILL, NONFUNCTIONAL SLACK-FILL, and LEVEL OF FILL? If so, then

please identify

(a) what changes were made;

(b) the date any changes were made;

(c) why the changes were made;

(d) who made the decision to make the changes; and

(e) any Documents which evidence (a) through (d) above.

RESPONSE: Tootsie Roll incorporates each of its General Objections into its

response as if set forth verbatim herein. Tootsie Roll further objects to this interrogatory

as vague, ambiguous, overbroad, and not proportional to the needs of the case in its use

of the phrase “concerning.”

Based on, subject to, and not waiving the preceding objections,

INTERROGATORY NO. 2: IDENTIFY each DOCUMENT consisting of a

product label, product packaging, print advertisement, internet advertisement, video

advertisement, television advertisement, or point-of-purchase display advertisement you

have disseminated to any member of the proposed class, i.e., all purchasers of the

PRODUCTS during the CLASS PERIOD, in connection with the PRODUCTS since

their launch.

RESPONSE:




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INTERROGATORY NO. 3: For each DOCUMENT identified in Response to

Interrogatory No. 2, describe:

(a) when the advertisement was disseminated (i.e. date, time, and duration); and




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(b) where geographically each advertisement was disseminated.

RESPONSE:

INTERROGATORY NO. 4: What are YOUR total gross and net revenues for

the sale of the PRODUCTS in California and the United States during the CLASS

PERIOD?

RESPONSE:




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INTERROGATORY NO. 5: IDENTIFY the name, title, and contact information

of each person who assisted in the preparation of YOUR responses to Plaintiff’s First Set

of Special Interrogatories, Plaintiff’s First Set of Requests for Production, and Plaintiff’s

First Set of Requests for Admission.


EXHIBIT 6


· · · · · · UNITED STATES DISTRICT COURT

· · · ·FOR THE CENTRAL DISTRICT OF CALIFORNIA

KETRINA GORDON, individually· ·)and on behalf of all others· · )similarly situated,· · · · · · )· · · · · · · · · · · · · · · ·)· · · · · Plaintiff,· · · · · ·)· · · · · · · · · · · · · · · ·) Case No. 2:17-cv-vs.· · · · · · · · · · · · · · ) 02664-DSF-MRW· · · · · · · · · · · · · · · ·)TOOTSIE ROLL INDUSTRIES, INC., )and DOES 1 through 10,· · · · ·)inclusive,· · · · · · · · · · ·)· · · · · · · · · · · · · · · ·)· · · · · Defendants.· · · · · )_______________________________)

· · · · Videotaped Deposition of

KETRINA GORDON, taken on behalf of the

Defendant, at 1999 Avenue of the

Stars, 35th Floor, Los Angeles,

California, commencing at 9:22 a.m.,

on Thursday, January 4, 2018, before

Tami L. Le, CSR No. 8716, RPR.

Job: 24546


·1· ·paying for?

·2· · · · · · MR. CLARKSON:· Object to the form of the

·3· ·question, vague and ambiguous, confusing.

·4· · · · · · THE DEPONENT:· Do I need -- do you want an

·5· ·answer?

·6· · · ·Q· · BY MS. SIMONSEN:· Yes, I'd like you to --

·7· · · · · · (Simultaneous speaking.)

·8· · · · · · MR. CLARKSON:· You can answer.

·9· · · ·Q· · BY MS. SIMONSEN:· -- answer the question.

10· · · ·A· · I thought I was paying for an entire box of

11· ·candy that would be filled.

12· · · ·Q· · So you thought you were paying for the

13· ·candy inside the box; right?

14· · · ·A· · Yes, that's, like, this big (indicating),

15· ·huge.· And I did not get what I expected, which

16· ·is -- like, when you have a huge box like this

17· ·(indicating) and there's only this much (indicating)

18· ·inside, that's pretty -- that's a huge, gigantic

19· ·difference in price and pay.· So I'm, like, okay,

20· ·I'll buy these three and we can all have a good

21· ·time, but no.

22· · · ·Q· · So when you bought the Junior Mints box,

23· ·did you expect there to be any empty space in the

24· ·box?

25· · · ·A· · Yeah, of course, a little bit, so the candy

KETRINA GORDONJanuary 04, 2018

First Legal [email protected]. 855.348.4997



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·1· · · ·A· · -- because it made me angry.· That's what

·2· ·made them angry because I was angry.

·3· · · ·Q· · Please let me finish my question --

·4· · · ·A· · Oh, sorry.

·5· · · ·Q· · -- which you didn't again.

·6· · · · · · It doesn't matter to you whether you get

·7· ·any money out of this lawsuit, is what you're

·8· ·saying?

·9· · · · · · MR. CLARKSON:· Object to the form.· You

10· ·mean individually, personally?

11· · · · · · MS. SIMONSEN:· If she understands the

12· ·question, she can answer it.

13· · · · · · THE DEPONENT:· I don't care about any

14· ·money.

15· · · ·Q· · BY MS. SIMONSEN:· Okay.

16· · · ·A· · For me personally.

17· · · ·Q· · Okay.· All right.· Let's turn back to

18· ·Exhibit 4, the Second Amended Complaint, and please

19· ·turn to Page 3.

20· · · · · · Oh, it looks like you got my version of the

21· ·Complaint.

22· · · ·A· · Oh.

23· · · · · · MS. SIMONSEN:· I wonder if we should switch

24· ·that out since it's a highlighted copy.

25· · · · · · MR. CLARKSON:· Yeah, why don't you do that.





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EXHIBIT 7


Experience. Integrity. Results.

California www.clarksonlawfirm.com Michigan

FIRM RESUME Based out of Los Angeles, California, the lawyers of CLARKSON LAW FIRM, P.C. have represented plaintiffs and defendants throughout California and the United States. The lawyers at our firm have an active civil trial practice, having achieved substantial results on behalf of consumers and other plaintiffs throughout the state and country. Our most recent trial victory came in January 2014 in Rastegar v. Mid Century Insurance Company, in which Mr. Clarkson served as lead trial counsel and won a two-week jury trial defeating the billion-dollar insurance company on insurance bad faith claims. The lawyers at our firm have an active class action practice and have won numerous appointments as class counsel to represent millions of class members. Our lawyers have obtained class settlements and certified numerous consumer classes pursuant to contested class certification motions and have served as Lead or Counsel or Co-Lead Counsel in:

• a California certified class action lawsuit against the world’s second largest food and beverage

company for false advertising and mislabeling of food product as “natural cheese” before Hon. John D. Kronstadt (Morales, et al vs. Kraft Foods Group, Inc., U.S. District Court, Central District of California, Western Division, Case No. 2:14-cv- 04387-JAK-PJW);

• a California certified class action lawsuit on behalf of consumers against a major broadcast satellite

provider for unlawful termination fees (Imburgia, et al vs. DirecTV Inc.,Los Angeles County Superior Court, Case No. BC398295);

• a California certified class action lawsuit against major pharmaceutical manufacturer for false

advertising of the anti-depressant, Paxil (Grair vs. Johnson v. GlaxoSmithKline, Inc.,166 Cal. App. 4th 1497 (2009), Los Angeles County Superior Court, Case No. BC288536);

• a California certified class action lawsuit battling Labor Code violations against employer before Hon.

Mel Red Recana (Penos vs. Zell, et al., Los Angeles County Superior Court, Case No. BC398686).

• A United States certified class action lawsuit against a major nutraceutical company for falsely advertising a popular weight loss supplement to millions of consumers before Hon. Anthony J. Mohr (Wally v. CCA Industries, Inc., Los Angeles County Superior Court Case No. BC422833)

• A United States certified class action lawsuit against a major nutraceutical company for falsely advertising a popular weight loss product to millions of consumers before Hon. Michael L. Stern


(Smart v. Obesity Research Insitute, LLC, et al., Los Angeles Superior Court Case No. BC407882/BC426780)

• A California certified class action against a major window manufacturer before Hon. Barry Goode (Pagano v. Weather Shield Mfg., Inc., et al., Contra Costa Superior Court Case No. C080060)

SHIREEN M. CLARKSON

Ms. Clarkson is a Shareholder of Clarkson Law Firm, P.C. Ms. Clarkson focuses her practice on consumer class actions in the areas of food labeling, pharmaceutical drugs, cosmetics, exercise gear, supplements, and other consumer products. Prior to joining Clarkson Law Firm, P.C., Ms. Clarkson was a senior associate at a prominent Southern California class action law firm where she exclusively litigated consumer class actions and mass torts cases against pharmaceutical companies, insurance carriers, food manufacturers, and other consumer manufacturers. Ms. Clarkson is admitted to the State Bar of California as well as the bars of the United States District Courts for the Central, Northern, and Southern Districts of California. Ms. Clarkson graduated from the University of California Hastings College of the Law in 2004. In 2000, Ms. Clarkson graduated with honors from University of California, Santa Barbara where she earned a B.A. Representative Cases

• Morales, et al vs. Kraft Foods Group, Inc., U.S. District Court, Central District of California, Western Division, Case No. 2:14-cv- 04387-JAK-PJW – Ms. Clarkson filed this “natural” food labeling case while at her former law firm, Milstein Adelman LLP, where she and Ryan Clarkson, who was co-lead counsel at that time, led the case through class certification, granted by District Judge John A. Kronstadt on June 23, 2015. Thereafter, she joined Clarkson Law Firm, P.C. and continued to represent the Class with Ryan Clarkson, overcoming two stay motions based on impending FDA regulations – a feat which no other lawsuit in the country facing the same challenge was able to defeat – as well numerous other substantive motions, including a motion for summary judgment and motion to exclude plaintiffs’ damages expert report. The case is scheduled for trial in June 2017.

• Imburgia, et al vs. DirecTV Inc.,Los Angeles County Superior Court, Case No. BC398295 – Ms. Clarkson was actively involved in obtaining class certification of this matter involving unlawful termination fees against the satellite television giant, DirecTV, and was among the attorneys appointed as Co-Lead Class Counsel for the certified class. Most notably, Ms. Clarkson played an integral role in defeating DirecTV’s motion to compel arbitration following the United States Supreme Court’s 2011 decision in AT&T Mobility v. Concepcion – the only case in the nation to overcome Concepcion’s broad impact on consumer contracts with arbitration provisions. Ms. Clarkson participated in the further defeat of DirecTV’s appeal in the 9th Circuit. The decision was ultimately reversed by the United States Supreme Court, although Justices Thomas, Ginsburg, and Sotomayor filed dissents, consistent with plaintiffs’ position, writing that the majority's decision “again expanded the scope of the FAA, further degrading the rights of consumers and further insulating already powerful economic entities from liability for unlawful acts.”


• Grair vs. Johnson v. GlaxoSmithKline, Inc.,166 Cal. App. 4th 1497 (2009), Los Angeles County Superior Court, Case No. BC288536 – While at her former law firm, Ms. Clarkson assisted in achieving a class settlement of over $3.5 million for a class of California consumers of the drug, Paxil. This was a hard-fought lawsuit that spanned over the course of 8 years. The settlement changed the general perception of sleeping pills which are no longer regarded as “non-habit forming” as falsely advertised by GlaxoSmithKline.

• Penos vs. Zell, et al., Los Angeles County Superior Court, Case No. BC398686 – Ms. Clarkson assisted in uncovering Labor Code violations on behalf of employees in this certified class action lawsuit. She was an integral part of the discovery, briefing and negotiations that ultimately led to a class action settlement of this matter, resulting in hundreds of thousands of dollars to the employee class.

RYAN J. CLARKSON Mr. Clarkson is Managing Attorney of Clarkson Law Firm, P.C. Mr. Clarkson focuses his practice on consumer class and collective actions involving food misbranding, cosmetic mislabeling, defective pharmaceutical drugs and medical devices, and illegal employment practices. Prior to founding Clarkson Law Firm, P.C., Mr. Clarkson was a senior associate at the law firm of Milstein Adelman, LLP where he exclusively litigated consumer class actions against pharmaceutical companies, insurance carriers, food manufacturers, and other consumer manufacturers. Mr. Clarkson is admitted to the State Bars of California and Michigan. He is also a member of the bars of the United States District Courts for the Central, Northern, Southern and Eastern Districts of California, the Eastern and Western Districts of Michigan, as well as the United States Court of Appeals for the Sixth and Ninth Circuits. Mr. Clarkson graduated from Michigan State University School of Law, summa cum laude in 2005. In 1999, Mr. Clarkson graduated from the University of Michigan at Ann Arbor where he earned a B.A. Mr. Clarkson is a member of the Board of Directors of the Los Angeles Trial Lawyers’ Charities as well as a member of the Consumer Attorneys of California, Consumers Attorneys Association of Los Angeles, and American Association for Justice. Representative Cases

• Fluoroquinolone Antibiotic Cases – Mr. Clarkson was the first plaintiff attorney in the country to

take on clients in connection with permanent and disabling nerve damage caused by Levaquin, Cipro, and Avelox manufactured by Johnson & Johnson and Bayer Pharmaceuticals. Mr. Clarkson represents dozens of clients across the country.

• Morales, et al vs. Kraft Foods Group, Inc., U.S. District Court, Central District of California, Western Division, Case No. 2:14-cv- 04387-JAK-PJW – Mr. Clarkson obtained class certification on behalf of a class of purchasers of a popular cheese product falsely advertised as “natural cheese” on June 23, 2015 by the Hon. John A. Kronstadt. Mr. Clarkson has overcome numerous dispositive motions. The case is scheduled for trial in June 2017.


BAHAR SODAIFY

Ms. Sodaify is an Associate Attorney at Clarkson Law Firm, P.C. Ms. Sodaify focuses her practice on consumer class actions in the areas of food labeling, cosmetics, and other consumer products. Prior to joining Clarkson Law Firm, P.C., Ms. Sodaify was a litigation associate at a Southern California personal injury firm. Ms. Sodaify was actively involved at all stages of litigation and fought vigorously against insurance companies, multimillion dollar corporations, and government entities and helped recover millions of dollars for her clients. Ms. Sodaify dedicated a majority of her practice to preparing and attending hearings for minors who had been injured in an accident. Ms. Sodaify is admitted to the State Bar of California as well as the bars of the United States District Courts for the Central and Northern District of California. Ms. Sodaify graduated from Southwestern Law School in 2012, where she was a member of Southwestern’s Journal of International Law and The Children’s Rights Clinic. In 2009, Ms. Sodaify graduated from University of California, Los Angeles, summa cum laude where she earned a B.A. Ms. Sodaify is currently actively working on the following slack-fill cases:

• Thomas v. Nestle U.S.A., Inc., Los Angeles Superior Court Case No. BC649863

• Tsuchiyama v. Taste of Nature, Los Angeles Superior Court Case No. BC651252

• Escobar v. Just Born, Inc., U.S. District Court, Central District of California Case No. 2:17-cv-01826-BRO-PJW

• Iglesias v. Ferrara Candy Co., U.S. District Court, Northern District of California Case No. 3:17-cv-

00849-VC

• Gordon v. Tootsie Roll Industries, Inc., U.S. District Court, Central District of California Case No. 2:17-cv-02664-DSF-MRW


DECLARATION OF KETRINA GORDON

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Plaintiff,

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Case No. 2:17-cv-02664-DSF-MRW [CLASS ACTION] DECLARATION OF KETRINA GORDON IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION


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I, Ketrina Gordon, declare as follows:

1. I am a Plaintiff in the above-referenced action. I have personal

knowledge of all of the facts stated herein, and if called to testify as a witness, I could

and would competently testify to them.

2. This declaration is submitted in support of Plaintiff’s motion for class

certification.

3. I reside in the City of North Hollywood in Los Angeles County.

4. I go to the movies approximately once a month. Whenever I go to the

movies, I see movie theater candy boxes like Junior Mints for sale.

5. I purchased a Junior Mints® 3.5 oz box (the “Product”) manufactured

by Defendant Tootsie Roll Industries, Inc. (“Defendant”) at Pacific Theaters at the

Grove in Los Angeles, California in July or August of 2016.

6. I paid approximately $4.00 for the Product.

7. When purchasing the Product, I relied upon the size of the box to

indicate the quantity of candy contained therein.

8. I purchased the Product to share with my friends during the movie.

9. The quantity of candy I received was not commensurate with the size

of the Product’s packaging. It was much less.

10. I did not have an opportunity to examine the Product’s box before

purchasing the Product since it was behind a showcase window at the movie

theater. Even if I was able to examine the Product’s box I would not have expected

the Product’s box to contain so much empty space.

11. I was misled by the size of the box as compared to the actual quantity

of candy contained therein and lost money because I did not receive the amount of

candy I expected to receive based on the size of the packaging.


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12. In reliance upon Defendant’s false, misleading, and deceptive Product

packaging, I lost money that I would otherwise have not spent.

13. I foresee purchasing Defendant’s Products, including the Product, in

the future when I go to the movies with my friends but I will not know how much

empty space is in the opaque packaging by just looking at the packaging alone. I

will always have to wonder whether the package is filled with a quantity of candy

that is commensurate with the size of the box.

14. I have worked with my attorneys on this matter and fully understand

the responsibilities and obligations that go along with serving as a class

representative in this case. I do not have any conflicts of interest with any other

members of the proposed Class. I will continue to assist my attorneys in

vigorously prosecuting this action, and, in doing so, I will protect the interests of

the Class.



at Los Angeles, California.

Ketrina Gordon


DECLARATION OF CLAIRE SAND, PH.D.

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Case No. 2:17-cv-02664-DSF-MRW [CLASS ACTION] DECLARATION OF CLAIRE SAND PH.D. IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION


1 DECLARATION OF CLAIRE SAND, PH.D.

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DECLARATION OF CLAIRE SAND, PH.D. I, CLAIRE SAND, declare as follows:

1. I am a packaging science and research expert retained for the above-

mentioned case. I have personal knowledge of the facts set forth in this declaration

and, if called as a witness, I could and would testify competently thereto. Attached

hereto as Exhibit A is my curriculum vitae.


certification. Attached hereto as Exhibit B is my expert report containing my

opinions regarding the products at issue.

Claire Sand, Ph.D.


State of California that the foregoing is true and correct. Executed on February 25,

2018 at Stillwater, Minnesota.


EXHIBIT A


Claire Koelsch Sand - cv - page 1 of 11

Summary

Claire Koelsch Sand, Ph.D. Dr. Claire Sand runs Packaging Technology and Research, where she provides project based strategy, technology, consulting and coaching services to food and packaging companies. Claire Sand is an industry and academic leader who focuses on food packaging, food engineering, and food science. Sand integrates material science, active and intelligent packaging, ingredient technology, and food processing strategies to launch new products and extend the shelf life of existing products. In her 30 plus year career, Dr. Sand has held a variety of roles across the food science and packaging spectrum. Prior to leading her own company, Sand’s experience ranged from basic research and development to strategic value chain analysis and everything in between. Her portfolio includes working with Gerber - Nestle, Pillsbury- General Mills, Kraft Foods -Kraft Heinz, Dominick’s -Safeway, and research institutes in Germany, Colombia, and Thailand. Dr Sand is also:

• Fellow, Institute of Food Technologists (IFT) • Adjunct professor at Michigan State University • Adjunct professor at CalPoly • Packaging columnist, IFT’s Food Technology magazine • Editorial Board, Packaging Science and Technology • Board member, Higher Education Review Board (HERB), IFT • Reviewer, Journal of Food Science • Chair, Global Food Packaging Curricula Development, IUFoST • Pac FoodWaste Co-Chair • Past-Chair, IFT Food Packaging Division • Committee member, Phi Tau Sigma Strategic Relations and

Chapter Affairs • Stillwater Human Rights Commissioner • Stillwater School District Workforce Committee member

Dr. Sand holds a doctorate degree in Food Science and Nutrition from the University of Minnesota and MS and BS in Packaging from Michigan State University.

packagingtechnologyandresearch.com

Claire Koelsch Sand, Ph.D. Owner, Packaging Technology & Research, LLC Adjunct Professor, Michigan State University p:612-807-5341 e:[email protected] w:packagingtechnologyandresearch.com Quick Links

Summary

Current Affiliations

Industry Experience

Academic Experience

International Experience

Legal Experience

Editorial Boards & Officerships – Past

Books & Chapters

Articles

Presentations Panels, and Short Courses

Education


http://www.packagingtechnologyandresearch.com/

tel:612-807-5341



Current Affiliations

CEO and Founder Packaging Technology and Research, LLC. Stillwater, Minnesota. 1996-present

· Propose, develop, and direct strategic and technical food and packaging projects · Consulting on: M&A, innovation, sustainability, and cost optimizations, efficiencies, · category direction, food safety · Apply appropriate food safety and packaging technology to developing markets · Translate shared value and value chain intentions into business partnerships

Adjunct Professor

Michigan State University. E. Lansing, Michigan Adjunct Faculty online MS program, 2007-present California Polytechnic University (CalPoly), San Luis Obispo, California Adjunct Faculty online MS program, 2017-present

Columnist

Food Technology monthly magazine Packaging monthly column, 2015-present

Boards and Commissions

· Fellow, Institute of Food Technologists, inducted 2017 · pac, Co-Chair Food Waste, 2018-present · pac, Food Waste Leadership Team, 2016-present · Advisory Board, Sweetwater Energy, 2016-present · IUFoST, Chair of Global Food Packaging Curricula, 2016-present · Packaging Science and Technology, John Wiley and Sons, Editorial Board and Reviewer, 2004-

present · Journal of Food Science Reviewer, 2014-present · Institute of Food Technologists (IFT)

o Higher Education Review Board (HERB), 2014-present o Executive Board, Food Packaging Division, 2005-present

· Phi Tau Sigma (food science honorary society), o Strategic Relations & Chapter Affairs committees, 2014-present

· University of Minnesota Alumni Association and CFANS, 1992-present · Michigan State University School of Packaging Alumni Association, 1999-present · Human Rights Commission Stillwater, Minnesota, 2013-present · Workforce Development Commission Stillwater, Minnesota, 2014-present



Industry Experience

Industry: Marketing

Dominick’s Finer Foods. Northlake, Illinois Category Brand Manager, 1997-1998

· Developed and implemented strategies that increased international food sales by 55% · Identified, sourced, purchased, and marketed international foods · Applied alternative product, package, and marketing of international foods

Industry: Market Research

Total Quality Marketing. Chicago, Illinois Package and Product Development Consultant, 1995-1997

· Conducted research to identify opportunities and refine growth strategies for multiple clients · Systematized product optimization, training, shelf life extension, investments, and testing

Industry: Research and Development

Packaging Technology and Research, LLC. Stillwater, Minnesota. CEO, 1996-present

· Propose, develop, and direct strategic and technical food and packaging projects · Consulting on: M&A, innovation, sustainability, and cost optimizations, efficiencies, · category direction, food safety · Apply appropriate food safety and packaging technology to developing markets · Translate shared value and value chain intentions into business partnerships

Kraft Foods. Glenview, Illinois Technical Business Manager, 1993-1995 Research Engineer, 1992-1993

· Responsible for product/product/process/package resource for $126 million Confection Div · Managed rapid development and production scale-up of 1994 introductions · Developed and implemented process to reduce marshmallow consumer complaints by 75% · Led a “Special Situation“ team to resolve a recall and safety crisis

Grand Metropolitan (General Mills). Minneapolis, Minnesota Guest Food Engineer, Strategic Technology Division, 1991

· Explored ohmic, microwave, minimal processes, and the applicability of expert systems Gerber Products Company (Nestle), Fremont, Michigan Packaging Engineer. 1986–1987



Legal Expert Witness Experience

Inline Packaging Inc v Graphic Packaging International, Inc. IPR2015‐01609 · Neustel Legal. Fargo, SD · Declaration in support of petition for inter parties review (mid-2015) · Depositions (mid and early-2016) · Complete-Successful Ruling: PTAB decision invalidated all 53 claims (early-2017)

KH Enterprises Group, Inc v. Swiss Valley Farms

Cooperative Civil File No 12-cv00086. · Faegre Baker Daniels, LLP. Minneapolis, MN · Expert reports (2017) · Deposition (2017) · Complete-Case settled

ScentSational Technologies, LLC v. PepsiCo, Inc., et al.

C.A. No.: 13-cv-8645 (KMK) (LMS) (SDNY) · Leason Ellis. White Plains, NY · Expert report (early-2016) · Deposition (mid-2016) · In process

Alessandro Berni, et al. v. Barilla S.p.A., et al.

Case No. 1:16-cv-04196; Eastern District of New York · Harwood Feffer LLP · In process

Iglesias et. al. v. Ferrara

Case No. 3:17-cv-00849-VC, US District Court, Northern District of California Gordon et al v. Tootsie Roll

Case No. 2:17-cv-02664-DSF-MRW, US District Court, Central District of California Gordon et. al. v. Nestle

Case No. BC649863, Superior Court for the State of California County of Los Angeles Escobar et. al. v. Just Born

Case 2:17-cv-01826, Superior Court for the State of California County of Los Angeles. Tsuchiyama, et. al. v. Taste of Nature

· Clarkson Law Firm · Expert reports in process



Academic Experience Academic: Online Teaching and Course Development

· Michigan State University. E. Lansing, Michigan o Adjunct Faculty online MS program, 2007-present

· Cal Poly. San Luis Obispo, California o Adjunct Faculty online certificate and MS program, 2017-present

· Rochester Institute of Technology. Rochester, New York o Adjunct Faculty online, 2009-2011

· University of Florida. Gainesville, Florida o Adjunct Faculty online, 2010-2012

Academic: Management

University of Wisconsin. Menomonie, Wisconsin Administrative and Research Director, Food Packaging Technology Center, 2002-2007

· Co-developed, implemented, and managed creation of the Center · Engineered $11.2 million for center for small farms and value-added food businesses · Initiated and directed research project work with small area farmers and businesses

Academic: Tenured Associate Professor

University of Wisconsin. Menomonie, Wisconsin Tenured Associate Professor, 1998-2007

· Chair and Vice Chair of Curriculum and Instruction Committee 2002-2006 · Dean's Recognition for excellence in multidisciplinary approach · Outstanding Researcher of the Year Nominee 2003

International Experience

IESC

J.E. Austin and Associates Washington DC

o Advisor, 2009 o Food production/packaging advice to KSA

Fraunhofer Institute - IVV, Freising, Germany

o Guest Scientist, January - July, 1992 o Co-developed EU standards on migration from polymer into high fat foods SCFE/MS

Org. of American States, Bogota, Colombia

o Technical Advisor, June - September, 1986 o Developed a food packaging laboratory model at existing food research facility

Bangkok Orchids Co., Bangkok, Thailand

o Packaging Advisor. January - April, 1986 o Developed appropriate package process improvements to extend the shelf life of orchids



Editorial Boards & Officerships – Past

Michigan State University

o Board of Directors, MSU School of Packaging Alumni Association 1996 to 2003 o MSU School of Packaging Alumni Association, Membership Com Chair 2000-2001 o MSU School of Packaging Alumni Association, Secretary 1999 to 2000

Institute of Food Technologists (IFT) o Chairperson, Institute of Food Technologists Food Packaging Div 2016 to 2017 o Chair-Elect, Institute of Food Technologists Food Packaging Div 1992 to 1993 o Global Interests subcommittee, Institute of Food Technologists 1997 to 2000 o Task Force on Governance, Institute of Food Technologists 1997 to 1998 o National Councilor, Institute of Food Technologists 1996 to 1997 o Newsletter Editor, Institute of Food Technologists Food Packaging Div 1994 to 1997



Articles

· Sand, C, 2018. Packaging to Keep Produce Fresh. Food Technology, January · Sand, C, 2017. Value -Added Packaging. Food Technology, December

· Sand, C, 2017. Materials for Increased Packaging Sustainability. Food Technology, November

· Sand, C, 2017. Ingredient Packaging Close-up. Food Technology, September

· Sand, C, 2017. Global Approaches to Sustainable Food Packaging. Food Technology, October

· Sand, C, 2017. Good Things Come in Packaging. Food Technology, August

· Sand, C, 2017. Packaged to Preserve. Food Technology, July

· Sand, C, 2017. Vetting Food Packaging. Food Technology, June

· Sand, C, 2017. Packaging Opportunities Are Nicely Bundled at IFT17. Food Technology, May

· Sand, C, 2017. Business Case for Reducing Food Waste. Food Technology, April · Sand, C, 2017. Food Service Craves Packaging. Food Technology, March · Sand, C, 2017. Barrier packaging. Food Technology, February · Sand, C, 2017. Packaging Solutions for Clean Label Products. Food Technology, January · Sand, C., 2016. Packaging Shapes Up and Feels Great. Food Technology, December · Sand, C., 2016. Innovations in Plastic Food Packaging. Food Technology, November · Sand, C., 2016. Increasing Agility in the Packaging Value Chain. Food Technology, October · Sand, C., 2016. The Packaging Scene at IFT16. Food Technology, September

· Sand, C., 2016. Pivots Package Innovation. Food Technology, August · Sand, C., 2016. Reduce Packaging Costs. Food Technology, July

· Sand, C., 2016. Packaging Solutions at IFT. Food Technology, June · Sand, C., 2016. MAP Expands. Food Technology, May · Sand, C., 2016. Food Packaging Research. Food Technology, April

· Sand, C., 2016. Societal Factors Influence Packaging. Food Technology, March



· Sand, C., 2016. Opening Innovation with Closures. Food Technology, February

· Sand, C., 2016. Strategies to Halt Package Fraud. Food Technology, January

· Sand, C., 2015. Packaging Machinery Flexes. Food Technology, December.

· Sand, C., 2015. Intelligent Packaging Advances. Food Technology, November.

· Sand, C., and Brody, A., 2015. Packaging innovations that decrease consumer derived food waste.

Food Technology, October.

· Sand, C., and Brody, A., 2015. Packaging that Sells. Food Technology, August.

· Brody, A., Sand, C. Sabbagha, F., 2014. RFID in Packaging using Value Chain. Food Technology. October

· Brody, A., Sand, C. Sabbagha, F., 2014. RFID in Packaging. Food Technology. September. pp79-80.

· Sand, C.K., 2009. Food Service Packaging. Wiley Encyclopedia of Packaging Technology.

· Casper, D.F., and Sand, C.K., 2009. Specifications and Quality Procedures. Wiley Encyclopedia of Packaging Technology..

· Brody, A., Bugusu, B., Han, J., McHugh, T., Sand, C.K., 2008. Scientific Status Summary: Innovative Food Packaging Solutions. Food Technology.

· Sand, C.K. and Blakistone, B., 2007. Using packaging technologies to respond to Consumer, Retailer, and Seafood Industry needs. Proceedings from International Smoked Fish Conference March. Anchorage, Alaska.

· Sand, C.K., 1996. Translating Consumer Needs into the Package. Packaging Yearbook, 1996. Washington DC. Editor Blakistone, B. pp 98-114.

· Sand, C.K., 1996. Specifications and Quality Assurance. In The Wiley Encyclopedia of Packaging Technology. New York. Editor Brody, A. 849-852.

· Koelsch, C.M., 1994. Edible Barriers: A Review of their Properties and Promise. Trends in Food Sci. and Tech. 5 (3): 76-81.

· Koelsch, C.M. and Labuza, T.P., 1992. Functional, Morphological and Physical Properties of Edible Fatty Acid Based Barriers. Lebensm. Wiss. und Technol. 25: 404-411.

· Koelsch, C.M. and Labuza, T.P., 1991. Plastic, Packaging and Municipal Solid Waste: The Current Controversy I and II. Cereal Foods World. 36 (1): 44-52; 36 (3): 284-298.



· Koelsch, C.M., Downes, T.W., and Labuza, T.P., 1991. A System and Kinetic Expressions for the Measurement of Hexanal Formation via Lipid Oxidation as a Function of Oxygen Concentration. Journal of Food Sci. 56 (3): 816-834.

· Hong, Y.C., Koelsch, C.M., and Labuza, T.P., 1991. Using the L# to Predict the Efficacy of Moisture Barrier Properties of Edible Food Coating Materials. J. Food Proc. Pres. 15: 45-62.

Books & Chapters

· Sand, C., 2018. Intelligent packaging and the multisensory experience in Multisensory Packaging Design.

· · Sand, C., 2010. The Packaging Value Chain. DesTech Publishing.

· Sand, C., 2009. Packaging sustainability and bio-degradable films and packaging in Modified

Atmosphere Packaging MAP for Fresh-cut Fruit and Vegetables Brody, Han, Hong.

· Sand, C., 2007. Understanding and Executing Sustainability Initiatives and Sustainable Packaging Programs. Packaging Strategies.

Presentations, Panels, and Short Courses

· Sand, C.K., 2017. Packaging technologies and value chain concepts to advance value-added pulse-based foods. Convergent Innovation Webinar Series. McGill. Montreal. March, 2017.

· Sand, C.K., 2017. Tactical packaging challenges and solutions for fresh seafood. Louisiana.

January, 2017 · Sand, C.K., 2016. Food Packaging Research Needs. IFT Annual convention, Chicago, IL July,

2016. · Sand, C.K. 2015. Enabling your Innovations using the Packaging Value Chain. AMI Multilayer

films conference. Chicago, June 3, 2015

· Sand, C.K. 2015. GFSI, BRC, SQF and Beyond: Where Food Safety is Heading and Packaging’s Role in Getting Us There. ADS Annual Technical Meeting San Antonio, Texas. May 5, 2015.

· Sand, C.K. 2015. Bringing in Innovation with the Packaging Value Chain. IFT Webcast February 26, 2015.



· Sand, C.K. 2014. Influence of Packaging on Flavors in Foods. Flavor Short Course. University of Minnesota, St. Paul, MN

· Sand, C.K., 2014. Interview for Wall Street Journal: See-Through Food Packaging Boosts Sales Clear Packages Draw Shoppers But Are Very Tricky; What's Best Left Unseen

· Sand, C.K. 2008. Research Developments and Needs in Sustainable Packaging Metrics. IFT Panel. IFT Annual meeting. New Orleans, LA.

· Sand, C.K., 2008. IFT Short Course Speaker on packaging for Food Science for non Food Scientists. IFT Annual meeting. New Orleans, LA.

· Sand, C.K., 2008. Exercising Sustainable Packaging in the Sports Drinks Arena: New

Technologies in Food Packaging that Enhance Shelf Life, Wellness, and Sustainability, Developing and Marketing Products for Consumer Health & Wellness. Rosemont, IL

· Sand, C.K., 2008. Sustainability will Drive the Packaging Value Chain. Packaging Executives

Forum, E. Lansing, MI.

· Sand, C.K., 2007. More Sustainable Food Packaging. Quality Assurance Association. Edina, MN.

· Sand, C.K., and Brody, A., and Rubino, M., 2007. Food Packaging for Food Scientists. IFT Annual meeting. Chicago, IL.

· Sand, C.K. and Blakistone, B., 2007. Using packaging technologies to respond to Consumer, Retailer, and Seafood Industry needs. International Smoked Fish Conference March. Anchorage, Alaska.

· Sand, C.K., 2007. More Sustainable Food Packaging. Quality Assurance Association. Edina, MN.

· Sand, C.K. 2007. Food packaging Innovations Needed to Respond to Sustainability Initiatives. IFT Panel. IFT Annual meeting. Chicago, IL

· Sand, C.K., 2003. Appleton on-site training session. Appleton, WI

· Sand, C.K., 2003. On-campus training session for Appleton. University of Wisconsin-Stout.

· Sand, C.K., 2002. Teaching in the Laptop Environment. IAPRI Conference Worldpak. E. Lansing,

MI MSU.

· Sand, C., 2001. Researcher of the Year Nominee Presentation. University of Wisconsin-Stout.

· Sand C.K., 2000. Package and Product Development for Beginners at Bringing Profit Back to the Farm in Eau Claire for University of Wisconsin cooperative extension service February, 2000



Education

· Ph.D., Food Science and Nutrition, University of Minnesota, 1992

· M.S., Packaging, Michigan State University, 1989

· B.S., Packaging, Michigan State University, 1986


EXHIBIT B


Expert Report of Claire Koelsch Sand, Ph.D.

Relating to Case No. 2:17-cv-02664-DSF-MRW


1

TABLE OF CONTENTS

I. OPINIONS OF CLAIRE KOELSCH SAND PH.D. 4 II. CREDENTIALS 5 III. MATERIALS CONSIDERED 8 IV. BACKGROUND ON PACKAGING TERMS AND PROCESSES 9 V. OPINIONS OF CLAIRE KOELSCH SAND PH.D. 13

V.A. Respective contents within cartons of JuniorMints, JuniorMints-King Size, and SugarBabies cannot be fully viewed

14

V.B. Slack-fill exists within JuniorMints, JuniorMints-King Size, and SugarBabies cartons

16

V.B.1. Method for Assessing Presence of Slack-fill 18 V.B.2. Analyze data to assess the amount of slack-fill 22 V.B.3. Slack-fill Results for JuniorMints, JuniorMints-King Size, and SugarBabies Tootsie candy

27

V.C. Slack-fill is primarily nonfunctional slack-fill 28 V.C.1. Slack-fill is nonfunctional in the context of criteria 1 because the slack-fill does not protect the JuniorMints, JuniorMints-King Size, and SugarBabies

29

V.C.2. Slack-fill is nonfunctional in the context of criteria 2 because the slack-fill is not needed in the machinery requirements to enclose the JuniorMints, JuniorMints-King Size, and SugarBabies

34

V.C.3. Slack-fill is primarily nonfunctional in the context of criteria 3 because the slack-fill does not result from JuniorMints, JuniorMints-King Size, and SugarBabies settling during shipping and handling

36

V.C.4. Slack-fill is nonfunctional in the context of criteria 4 because the slack-fill is not necessary to perform a specific function for JuniorMints, JuniorMints-King Size, and SugarBabies

39

V.C.5. Slack-fill is nonfunctional in the context of criteria 5 because the JuniorMints, JuniorMints-King Size, and SugarBabies package is not suitable for reuse, as a durable commemorative or as a promotional package

40

V.C.6. Slack-fill is nonfunctional in the context of criteria 6 because the carton containing JuniorMints, JuniorMints-King Size, and SugarBabies slack-fill does not have to occur to enable food labeling, pilfering, handling, or tamper resistance

41

VI. CONCLUSION 45


2

INDEX OF TABLES

Table 1: Comparison between CFR 21 Section 100.100 and California Business & Professional Code Section 12606.2

12

Table 2: Reference information for JuniorMints 18

Table 3: Reference information for JuniorMints-King Size 19

Table 4: Reference information for SugarBabies 19

Table 5: Volume of JuniorMints Candy cartons

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Table 6: Volume of JuniorMints-King Size Candy cartons

24

Table 7: Volume of SugarBabies Candy cartons

25

Table 8: Volume and Weight of JuniorMints with carton

25

Table 9: Volume and Weight of JuniorMints-King Size with carton

26

Table 10: Volume and Weight of SugarBabies with carton

26

Table 11: Slack-fill for JuniorMints, JuniorMints-King Size, and SugarBabies 27 Table 12: Summary of functional and nonfunctional slack-fill

29

Table 13: Ingredient statements of Tootsie Candy

30

Table 14: Candy Density

36

Table 15: Difference between the effective and actual volume

37

Table 16: Principal display panel area

41


3

INDEX OF FIGURES

Figure A: Generic Schematic of the folding carton for JuniorMints, JuniorMints-

King Size, and SugarBabies candy

10

Figure B: CFR 21 Section 100.100 11

Figure C: JuniorMints carton held directly on a 40watt fluorescent light 15

Figure D: Different Geometries of Tootsie Candy 17

Figure E: Opening of package from Clarkson Law firm 18

Figure F: Measurement of height of candy with carton 19

Figure G: Weight of candy after poured from carton 20

Figure H: Final volume in cylinder after candy was added 21

Figure I: Measurement of interior height, width, and depth 22

Figure J: Functional and nonfunctional slack-fill 28

Figure K: JuniorMints cracked and the filling sticking to side of inner carton 32

Figure L: Visual showing that the JuniorMints carton is larger than JuniorMints-

King Size carton

42

Figure M: Principal display panel within CFR21 43


4

I. OPINIONS OF CLAIRE KOELSCH SAND PH.D.

I, Dr. Claire Koelsch Sand, submit this Expert Report on behalf of Plaintiff Escobar in the

above captioned matter. I have been retained by the Clarkson Law Firm, as an expert in food

product and packaging expert with expertise in: research, development, and design, and the

functions of food packaging. I have been asked to analyze evidence relating to cartons

containing JuniorMints, JuniorMints-King Size, and SugarBabies Tootsie candy and consider

what if any slack-fill was present and if it was present to consider if it was non-functional

slack-fill as outlined in CFR21 100.100 and California Code 12606.2.

It is my opinion that:

1. Tootsie cartons containing JuniorMints, JuniorMints-King Size, and SugarBabies do not

allow the consumer to fully view their respective contents. This is explained in Section

V.A.

2. Tootsie cartons containing JuniorMints, JuniorMints-King Size, and SugarBabies have

slack-fill. This is explained in Section V.B.

3. Tootsie cartons containing JuniorMints, JuniorMints-King Size, and SugarBabies exhibit a

high degree non-functional slack-fill as compared to the small degree of functional slack-

fill. This is explained in Section V.C.


5

II. CREDENTIALS

1. I am the founder and owner of Packaging Technology and Research, LLC in Stillwater, MN,

an Adjunct Professor at Michigan State University and at California Polytechnic University,

and a consultant on international food and packaging development projects. A copy of my

curriculum vitae is attached as Exhibit A.

2. I received a B.S. in Packaging from Michigan State University in 1986, a M.S. in Packaging

from Michigan State University in 1989 and a Ph.D. in Food Science and Nutrition from the

University of Minnesota in 1992.

3. I have 22 years of direct industry experience with packaging suppliers and food companies in

the food packaging industry. My food and beverage packaging experience include basic

research, development, market research and marketing with, Gerber, Pillsbury, Kraft Foods,

Total Quality Marketing, and Dominick’s. I also conducted research at institutes in the

United States, Germany, and Colombia. I have been and am responsible for designing and

refining packaging components of new food products and revising packaging components of

existing food products to meet consumer and market needs. I also have been and am

responsible for projects to reduce costs, provide strategic direction to guide mergers and

acquisitions, align technology, and assess strategic and other technologies for applications

within the food and packaging industry.

4. I have eight years of direct academic packaging specific experience in additional to industry

research and development experience. I have taught Packaging Materials courses (covering

plastics, metals, glass, paper/paperboard) for 8 years as an Associate Professor. I have also

developed and taught Food Packaging graduate level courses which focus on shelf life, the

kinetics of sorption, migration, diffusion, permeation, and market dynamics and strategies.

5. I have theoretical and applied experience with the material science dynamics associated with

package integrity, packaging materials, and extending product shelf life with packaging. My

Ph.D. dissertation was on diffusion within and migration from food and through edible films

to extend product shelf life. I co-developed European Union (“EU”) methods for additive

migration from polymers into high fat foods which includes cheese. The undergraduate

packaging material courses and graduate courses that I taught cover packaging material

selection, sorption, migration, diffusion, and permeation. During my 22 years of industry

experience, I have worked on food shelf life projects involving material selection serving in


6

various roles such as basic research, research and development, marketing, and marketing

research. I have developed various packaging for foods to extend product shelf life. I also

have experience assessing expert systems that model food deterioration as a function of

package material properties and predict shelf life of products as a function of package

permeation, sorption, migration, diffusion, and product characteristics. Industry experience

includes: increasing product shelf life using package, reducing package cost while

maintaining product shelf life, identifying the cause of product and/or package failure, and

redesigning packaging to increase shelf life to specifically resolve mold and other concerns

effecting product shelf life, altering packaging materials to accommodate distribution.

8. I have theoretical and applied experience with paperboard carton design and construction

relating to food packaging. I took M.S. level courses in this area and have worked on projects

to determine the best carton for specific products. During my 22 years of industry experience,

I have directed carton design, construction, and selection in various roles from research

engineer to project manager, for food packaging projects from a food packaging science and

marketing perspective. For Kraft products and other food companies, I explored carton

designs to best meet the needs of entities in the value chain such as suppliers, manufacturers,

distributors, retailers, consumers, and the post-consumer environment. I also have experience

with determining the shelf life of food products.

9. I have given over 20 presentations and published over 20 articles, books, and book chapters

on food packaging topics related to packaging.

10. I am a Contributing Editor and the Packaging columnist for Food Technology, which

provides industry updates on a range of food packaging topics. In my role as the Packaging

columnist since August 2015, I have identified and researched critical food packaging topics

in the context of how consumer and market needs can be met with packaging solutions.

11. I am a Reviewer for the Journal of Food Science (since 2014) and on the Editorial Board of

Packaging Technology and Science (since 2004). These publications relate to new food

packaging materials, research, processes, innovations, and strategies.

12. I am on the Higher Education Review Board (HERB) for the Institute of Food Technologists

(IFT), the current (2016-2017) and former Chair (1993-1994) of the IFT Food Packaging

Division, and a member of the Strategic Relations committee of Phi Tau Sigma (Food

Science Honorary Society), a co-Chair of the pac Food Waste Leadership Team, and


7

International Union of Food Science and Technology (IUFoST) Chair of Global Food

Packaging Curricula Development.

13. In 2017, I was elected to be a Fellow of the Institute of Food Technologists, an honor for

which less than 0.3% of the professional membership is eligible, and even fewer than that

achieve this status.

14. In the past four years, I have not testified as an expert at trial, but I did provide support,

declarations and/or depositions for:

• ScentSational Technologies, LLC v. PepsiCo, Inc., et al.; C.A. No.: 13-cv-8645

(KMK) (LMS) (SDNY). I provided expert reports (early-2016 and early-2017), and a

Deposition (mid-2016) for ScentSational Technologies.

• Alessandro Berni, et al. v. Barilla S.p.A., et al.; Case No. 1:16-cv-04196; Eastern

District of New York which is in process. I provided a review of filing documents

(late-2016 and early-2017) for Berni et al.

• Inline Packaging Inc v Graphic Packaging International, Inc.; IPR2015‐01609 . I

provided a Declaration in support of Inline’s petition for inter parties review (mid-

2015) and two Depositions (mid and early-2016). Patent Trial and Appeal Board

(PTAB) decision invalidated all 53 claims and has concluded (early-2017).

• KH Enterprises Group, Inc v. Swiss Valley Farms Cooperative Civil File No 12-

cv00086. I provided expert reports Expert reports (2017) and Deposition (2017) for

Swiss Valley Farms. Case settled

15. The compensation paid for time spent working on this matter is based on my typical hourly

rate of $225per hour, $400 per hour for deposition and $700 per hour court activity. This

compensation is not contingent upon my performance, the substance of my opinions or

testimony, the outcome of this matter, or any issue involved in or related to this matter. I

have no financial interest in Tootsie or any related parties.


8

III. MATERIALS CONSIDERED

In connection with my analysis, I have reviewed the following and information mentioned in this

report:

CFR 21 100.100

California Business & Professional Code Section 12606.2

Candy within and cartons of JuniorMints, JuniorMints-King Size, and SugarBabies


9

IV. BACKGROUND ON PACKAGING TERMS AND PROCESSES

Packaging terms used within the text are explained in this section.

Packaging Specifications

Packaging specifications are used as a communication tool in the entire supply chain from the

source of the polymer to the final disposal. Within the packaging supply chain, packaging

delivered to the final user of the package represents the composite of what was in specification

prior to that point in the supply chain.

Delaney clause

Packaging components, such as the paperboard carton of the JuniorMints, JuniorMints-King

Size, and SugarBabies candy, and the adhesive employed to seal the cartons are governed as

indirect food additives by the FDA in CFR 21 and, are defined as such in the 1958 Delaney

clause.

Folding cartons

A generic schematic folding carton that contains the JuniorMints, JuniorMints-King Size, and

SugarBabies candy is shown below.


10

Figure A

Generic Schematic of the folding carton for JuniorMints, JuniorMints-King Size, and

SugarBabies candy

The carton is constructed of solid bleached sulfate and is approximately 14point and 0.014

inches thick.

CFR 21 100.100

CFR 21 addresses many aspects of food packaging. Section addressing misleading containers is

relevant and is in Figure B.

GRAIN ·---------~

1--LENGTI< 7 WIDTH 1--LENGTN 7 WlD~~ S

INNER TOP t----1 OUTER TOP t-:.:.:.:.:. T CLOSURE PANEL OUST CLOSURE PANEL OUST W

I

~1 .t1

~I I

I

FLAP ~LAP - - - -1-,.. - - ~ - - - - - - - ,11--1--

REAR PANEL

I I

I I I LEF"T I

I SIDE I PANEL

I I

I I

FRONT PANEL

I RIGHT

I SIDE PANEL

I

'--I---- - - 1- .. -~----i--- _ _,__ tNNER BOTTOM OUST OUTER BOTTOM OUST

CLOSURE PANEL FLAP CLOSUR.E PANEL FLAP W

~----'--L


11

Figure B

CFR 21 Section 100.100

[Code of Fede r a l Regul ati ons ] [Ti t l e 21, Vol ume 2] [Revi sed as of Apr il 1, 2017] [CITE: 21CFR100 . 100 ]

TI TLE 21--FOOD AND DRUGS CHAPTER I --FOOD AND DRUG ADMINISTRATI ON DEPARTMENT OF HEALTH AND HUMAN SERVICES

SUBCHAPTER B--FOOD FOR HUMAN CONSUMPTI ON

PART 100 -- GENERAL

Subpar t F--Mi sbr andi ng f or Reasons Ot he r Than Labeling

Sec . 100 . 100 Mi s l eadi ng contai ne r s .

In accordance wi t h sec t i on 403 (d) of t he ac t, a f ood sha ll be deemed t o be mi sbr anded i f i ts contai ne r i s so made, f o rmed , o r f illed as t o be mi s l eadi ng .

(a ) A contai ne r t hat does not a llow t he cons ume r t o f ully vi ew i ts contents sha ll be cons i de r ed t o be f illed as t o be mi s l eadi ng i f i t contai ns nonf unc t i ona l s l ac k- f ill . Slac kf ill i s t he d i ffe r ence between t he ac t ua l capac i ty of a contai ne r and t he vol ume of pr oduc t contai ned t he r e i n . Nonf unc t i ona l s l ac k- f ill i s t he empty space i n a pac kage t hat i s f illed t o l ess t han i ts capac i ty f or r easons o t he r t han :

(1 ) Pr otec t i on of t he contents of t he pac kage;

(2) The r equi r ements of t he machi nes used f or enc l os i ng t he contents i n such pac kage;

(3) Unavoi dabl e pr oduc t settling dur i ng shipping and handling;

(4) The need f or t he pac kage t o per f orm a spec i f i c f unc t i on (e . g . , whe r e pac kaging plays a r o l e i n t he pr eparati on or cons umption of a f ood) , whe r e such f unc t i on i s i nhe r ent t o t he natur e of t he f ood and i s c l ear ly communi cated t o consume r s;

(5) The fac t t hat t he pr oduc t cons i sts of a f ood pac kaged i n a r eusabl e contai ne r whe r e t he contai ne r i s par t of t he pr esentati on of t he f ood and has va l ue whi ch i s both s i gni f i cant i n pr opor t i on t o t he va l ue of t he pr oduc t and i ndependent of i ts f unc t i on t o hol d t he f ood , e . g . , a g i ft pr oduc t cons i sti ng of a f ood or f oods combined wi t h a contai ne r t hat i s i ntended f or f ur t he r use after t he f ood i s consumed ; o r dur abl e commemor ati ve or pr omot i ona l pac kages; o r

(6) Inability t o i ncrease l eve l of f ill or t o f ur t he r r educe t he s i ze of t he pac kage (e . g . , whe r e some mi ni mum pac kage s i ze i s necessar y t o accommodate r equi r ed f ood l abeling (exc l udi ng any vi gnettes or o t he r nonmandator y desi gns o r l abel i nf ormati on ) , d i scour age pilfer i ng, fac ilitate handling, o r accommodate tamper - r esi stant devi ces ) .


12

The California Business & Professional Code Section 12606.2 aligns with the CFR 21 Section

and the comparison is shown below.

Table 1

Comparison between CFR 21 Section 100.100 and

California Business & Professional Code Section 12606.2

CFR 21 Cal Bus & Prof Code

100.100(a)(1) 12606.2(c)(1)

100.100(a)(2) 12606.2(c)(2)

100.100(a)(3) 12606.2(c)(3)

100.100(a)(4) 12606.2(c)(4)

100.100(a)(5) 12606.2(c)(5)

100.100(a)(6) 12606.2(c)(6)


13

V. OPINIONS OF CLAIRE KOELSCH SAND PH.D.

It is my opinion that:



V.A.







14

V.A. Respective contents within cartons of JuniorMints, JuniorMints-King Size, and

SugarBabies cannot be fully viewed

It is my opinion that the respective contents within cartons of JuniorMints, JuniorMints-King

Size, and SugarBabies cannot be fully viewed. To assess if the respective contents of

JuniorMints, JuniorMints-King Size, and SugarBabies candy when viewed from outside the

cartons, a sample size was used. This was because it is not viable to collect and analyze the entire

population of the JuniorMints, JuniorMints-King Size, and SugarBabies candy on the market.

To obtain samples to assess transparency of the cartons and the ability to fully view contents,

samples of cartons were sent from Clarkson Law Firm to my secure PO Box. I examined the

carton transparency by holding unopened cartons directly on a 40-watt florescent light bulb

(Sylvania H698) and checking to see if I could see the height of the candy. While lighting does

vary in retail environments where the candy is purchased this assessment was a “worse case”

scenario since consumers are not likely to hold the carton directly on a fluorescent ceiling light

bulb and the ability see any (versus fully view) volume of candy was assessed. Consumer vision

also varies. Contents are likely not able to be seen at all through the cartons of JuniorMints,

JuniorMints-King Size, and SugarBabies. The JuniorMints carton image shown below serves as

a demonstration that the carton contents cannot be viewed fully in a high light situation.


15

Figure C

JuniorMints carton held directly on a 40watt fluorescent light

Not being able to view contents is typical of 14point solid bleached sulfate (SBS) cartons with

heavy graphics because of the process used to coat and the type of print paperboard. Titanium

dioxide, clay, or talc or similar is commonly applied to carton surfaces before printing to fill in

the air holes between paper fibers and provide a smooth printing surface; but, light is also

blocked. Printing follows this operation, and this adds to increased light blocking. The final

coating is to protect the print, provide the desired surface (for example glossy or matte finish)

and the carton from moisture gain and this coating can contain UV protection and/or be

composed of polyethylene. Based on this analysis, it is my opinion that most consumers cannot

fully view respective contents within cartons of JuniorMints, JuniorMints-King Size, and

SugarBabies.


16

V.B. Slack-fill exists within JuniorMints, JuniorMints-King Size, and SugarBabies cartons

It is my opinion that Slack-fill exists within JuniorMints, JuniorMints-King Size, and

SugarBabies cartons. The definition of slack-fill is defined in CFR 100.100 and in California

Code 12606.2:

“Non-functional slack-fill is the empty space in a package that is filled to less than its

capacity…”

The cartons and their respective contents were considered in detail. Three methods – effective,

“open here”, and actual, - for assessing if slack-fill exists were employed in this assessment.

These definitions are discussed:

Effective slack-fill: Effective slack-fill represents what consumers would see if the carton was

opened from the top of the carton.

“open here” slack-fill: When the top of the cartons is sealed with an adhesive, and there is an

“open here” tab, the carton volume could be considered the height at the “open here” function.

However, JuniorMints, JuniorMints-King Size, and SugarBabies did not have open here tabs

below the carton top opening so this determination of slack-fill is not relevant.

Actual slack-fill: Actual slack-fill represents what volume of candy is in the carton.

The geometry of the candy within the rectangular carton results in voids and lost volume.

Candy geometry is shown in Figure D.


17

Figure D. Different Geometries of Tootsie Candy

JuniorMints

SugarBabies

Accordingly, data was collected to determine if there was slack-fill according to two methods –

effective, and actual - slack-fill.


18

V.B.1. Method for Assessing Presence of Slack-fill

The existence and amount of Slack-fill was assessed using a sample size because it was not

viable to collect and analyze the entire population of the JuniorMints, JuniorMints-King Size,

and SugarBabies candy on the market to make these determinations. In the assessment of the

existence of slack-fill, data was collected from samples of cartons sent from Clarkson Law Firm

to my secure PO Box. Excel was used to record data. The process for assessing the presence and

amount of slack-fill for JuniorMints, JuniorMints-King Size, and SugarBabies candy is

described.

The process used was:

1. Obtain samples: Receive cartons of unopened JuniorMints, JuniorMints-King Size, and

SugarBabies within a closed corrugated box from the Clarkson Law firm

Figure E. Opening of package from Clarkson Law firm

2.Verify and record: I verified cartons were not opened prior to evaluation and recorded the

UPC, expiration date and manufacturing codes. These are shown in the following Tables.

Table 2: Reference information for JuniorMints

SummaryBrand WReference Expiration Code Source Date Purchased UPCJunior Mints C157321-17:12-1711 none Rite Aid Thousand Oaks Thousand Oaks, CA 91362 10/25/2017 71720539446Junior Mints E047322-16:04-1718 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 10/24/2107 71720539446Junior Mints E047322-16:04-1718 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 10/24/2107 71720539446Junior Mints E037312-10:40-1718 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 10/24/2107 71720539446Junior Mints E037312-10:40-1719 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 10/24/2107 71720539446Junior Mints E037312-10:40-1719 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 10/24/2107 71720539446Junior Mints E037312-10:40-1719 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 10/24/2107 71720539446Junior Mints E037312-10:40-1719 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 10/24/2107 71720539446Junior Mints E047322-16:04-1718 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 10/24/2107 71720539446

Reference information


19

Table 3: Reference information for JuniorMints-King Size

Table 4: Reference information for SugarBabies

3. Measure and record height of candy fill level within the carton from the top of the carton.

Figure F. Measurement of height of candy with carton

Brand Reference Expiration Code Source Date Purchased UPCJunior Mints King Size J1377311 1:47-1742 none The Grove Los Angeles 12/11/2017 71720539408Junior Mints King Size J1377311 1:48-1742 none The Grove Los Angeles 12/11/2017 71720539408Junior Mints King Size J1377311 1:48-1742 none The Grove Los Angeles 12/11/2017 71720539408Junior Mints King Size J1377311 1:48-1742 none The Grove Los Angeles 12/11/2017 71720539408Junior Mints King Size J1377311 1:48-1742 none The Grove Los Angeles 12/11/2017 71720539408Junior Mints King Size J1377311 1:48-1742 none The Grove Los Angeles 12/11/2017 71720539408Junior Mints King Size J1377311 1:56-1742 none The Grove Los Angeles 12/11/2017 71720539408Junior Mints King Size J1377311 1:56-1742 none The Grove Los Angeles 12/11/2017 71720539408Junior Mints King Size J1377311 1:56-1742 none The Grove Los Angeles 12/11/2017 71720539408Junior Mints King Size J1377311 1:56-1742 none The Grove Los Angeles 12/11/2017 71720539408


SummaryBrand WReference Expiration Code Source Date Purchased UPCSugarBabies F027313-0909-1722 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 12/11/2017 14200535453SugarBabies F027313-0910-1722 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 12/11/2017 14200535453SugarBabies D037313-1343-1714 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 12/11/2017 14200535453SugarBabies D037313-1343-1714 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 12/11/2017 14200535453SugarBabies D037313-1343-1714 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 12/11/2017 14200535453SugarBabies D037313-1343-1714 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 12/11/2017 14200535453SugarBabies D037313-1343-1714 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 12/11/2017 14200535453SugarBabies D037313-1343-1714 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 12/11/2017 14200535453SugarBabies D037313-1343-1714 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 12/11/2017 14200535453SugarBabies D037313-1343-1714 none Walgreens 310 S Lake Avenue Pasadena, CA 91101 12/11/2017 14200535453



20

4. Measure candy weight

a. Candy within carton was poured onto a tared scale (US-Orbit-Pro 2000g x 0.1g)

weighed and the weight recorded.

Figure G. Weight of candy after poured from carton

5. Measure volume of candy within carton

a. Fill 500mL graduated cylinder to known volume (above 100mL) with distilled

water and record volume

b. Pour weighed candy into 500mL glass graduated cylinder

c. Measure and record new volume within cylinder


21

Figure H. Final volume in cylinder after candy was added

6. Measure carton volume

a. Measure (Caliper, General UltraTech) and record carton interior height, width,

and depth to obtain entire carton volume


22

Figure I. Measurement of interior height, width, and depth

b. If applicable, measure and record carton interior height at the “open here” tab,

width, and depth to obtain volume of carton at “open here” height.

V.B.2. Analyze data to assess the amount of slack-fill

As previously discussed, the existence and amount of Slack-fill was assessed using a sample size

because it was not viable to collect and analyze the entire population of the JuniorMints,

JuniorMints-King Size, and SugarBabies candy on the market. This sample size was used to

determine a best estimate for the average and standard deviation of slack-fill within the entire the

population of cartons. Excel was used to record data and for the analysis. Calculations used were

the standard math of: addition, subtraction, multiplication, division. Volume calculations were:

1. Effective carton volume:

Effective volume of carton = carton height × carton width × carton depth

2. Actual volume of candy within the carton:

𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴 volume of candy within the carton

= height of candy in the carton × carton width × carton depth

Slack-fill calculations as well as accompanying statistics for the 2 methods of determining slack-

fill were:


23

1. Effective percent slack-fill:

Effective percent slack-fill compares what the consumer effectively sees as missing volume

𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐴𝐴𝐴𝐴𝐸𝐸𝐸𝐸𝐸𝐸 𝑠𝑠𝐴𝐴𝐴𝐴𝐴𝐴𝑠𝑠 𝐸𝐸𝐸𝐸𝐴𝐴𝐴𝐴 = 100 × 𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚 𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑚𝑚𝑣𝑣 𝑚𝑚𝑣𝑣𝑣𝑣𝑚𝑚 𝑚𝑚𝑚𝑚 𝑐𝑐𝑐𝑐𝑐𝑐𝑐𝑐𝑣𝑣𝑚𝑚𝑐𝑐𝑐𝑐𝑐𝑐𝑐𝑐𝑣𝑣𝑚𝑚 𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑚𝑚𝑣𝑣

2. Actual percent slack-fill:

Actual percent slack-fill compares the actual volume of candy versus the carton volume

𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴 𝑠𝑠𝐴𝐴𝐴𝐴𝐴𝐴𝑠𝑠 𝐸𝐸𝐸𝐸𝐴𝐴𝐴𝐴 = 100 ×𝑚𝑚𝐸𝐸𝑠𝑠𝑠𝑠𝐸𝐸𝑚𝑚𝑚𝑚 𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴 𝐸𝐸𝑣𝑣𝐴𝐴𝐴𝐴𝑚𝑚𝐸𝐸 𝑣𝑣𝐸𝐸 𝐴𝐴𝐴𝐴𝑚𝑚𝑐𝑐𝑐𝑐 𝐸𝐸𝑚𝑚 𝐴𝐴𝐴𝐴𝑐𝑐𝐴𝐴𝑣𝑣𝑚𝑚

𝐴𝐴𝐴𝐴𝑐𝑐𝐴𝐴𝑣𝑣𝑚𝑚 𝐸𝐸𝑣𝑣𝐴𝐴𝐴𝐴𝑚𝑚𝐸𝐸

Statistical calculation functions used within Excel were AVERAGE for the mean:

𝑋𝑋 =∑ 𝑋𝑋𝐸𝐸𝑁𝑁𝑚𝑚=1

𝑁𝑁

and STDEV for the Sample Standard Deviation:

s = Sample Standard Deviation

𝑋𝑋 = Sample Average

Xi the value of each sample

N= number of samples of cartons used

Details dimensional results are shown in Tables 5-7.

S = 1 ,v

JV _ 1

I:;(xi - x)2 i=l


24

Table 5: Volume of JuniorMints Candy cartons

Table 6: Volume of JuniorMints-King Size Candy cartons

BrandCarton Depth (cm)

Length (cm)

Carton Width (cm)

Volume of carton (cc)

JuniorMints 13.84 8.07 1.68 188.01JuniorMints 13.84 8.07 1.68 188.01JuniorMints 13.84 8.07 1.68 188.01JuniorMints 13.84 8.07 1.68 188.01JuniorMints 13.84 8.07 1.68 188.01JuniorMints 13.84 8.07 1.68 188.01JuniorMints 13.84 8.07 1.68 188.01JuniorMints 13.84 8.07 1.68 188.01JuniorMints 13.84 8.07 1.68 188.01Average 13.84 8.07 1.68 188.01Stnd Dev 0.00 0.00 0.00 0.00


Carton Length

Carton Width (cm)

Carton Volume

JuniorMints-KingSize 13.15 6.70 1.44 127.16JuniorMints-KingSize 13.15 6.70 1.44 127.16JuniorMints-KingSize 13.15 6.70 1.44 127.16JuniorMints-KingSize 13.15 6.70 1.44 127.16JuniorMints-KingSize 13.15 6.70 1.44 127.16JuniorMints-KingSize 13.15 6.70 1.44 127.16JuniorMints-KingSize 13.15 6.70 1.44 127.16JuniorMints-KingSize 13.15 6.70 1.44 127.16JuniorMints-KingSize 13.15 6.70 1.44 127.16JuniorMints-KingSize 13.15 6.70 1.44 127.16Average 13.15 6.70 1.44 47.64Stnd Dev 0.0 0.0 0.0 0.0


25

Table 7: Volume of SugarBabies Candy cartons

The Volume and weight of candy within cartons are summarized below:

Table 8: Volume and Weight of JuniorMints with carton


Carton Length

Carton Width (cm)

Volume of carton (cc)

SugarBabies 17.36 8.75 1.69 256.05SugarBabies 17.36 8.75 1.69 256.05SugarBabies 17.36 8.75 1.69 256.05SugarBabies 17.36 8.75 1.69 256.05SugarBabies 17.36 8.75 1.69 256.05SugarBabies 17.36 8.75 1.69 256.05SugarBabies 17.36 8.75 1.69 256.05SugarBabies 17.36 8.75 1.69 256.05SugarBabies 17.36 8.75 1.69 256.05SugarBabies 17.36 8.75 1.69 256.05Average 17.36 8.75 1.69 256.05Stnd Dev 0.00 0.00 0.00 0.00

Brand

Distance from top of carton to candy (cm)

Initial Volume water (cc)

Final volume water (cc)

Open here distance from top of carton

Actual weight of candy (g)

JuniorMints 5.74 220 280 none 99.2JuniorMints 6.23 135 205 none 95.3JuniorMints 6.13 250 325 none 99.3JuniorMints 5.77 155 230 none 100.5JuniorMints 5.31 140 215 none 97.6JuniorMints 4.97 190 265 none 100.7JuniorMints 5.39 175 250 none 98.6JuniorMints 5.40 170 245 none 98.6JuniorMints 5.73 155 230 none 96.6Average 5.63 177 249 98.5Stnd Dev 5.3 135 210 1.8


26

Table 9: Volume and Weight of JuniorMints-King Size with carton

Table 10: Volume and Weight of SugarBabies with carton

Brand






JuniorMints 5.74 220 280 none 99.2JuniorMints 6.23 135 205 none 95.3JuniorMints 6.13 250 325 none 99.3JuniorMints 5.77 155 230 none 100.5JuniorMints 5.31 140 215 none 97.6JuniorMints 4.97 190 265 none 100.7JuniorMints 5.39 175 250 none 98.6JuniorMints 5.40 170 245 none 98.6JuniorMints 5.73 155 230 none 96.6Average 5.63 177 249 98.5Stnd Dev 5.27 135 210 1.8

Brand






SugarBabies 6.25 195 310 none 166.4SugarBabies 5.01 160 275 none 171.3SugarBabies 5.28 225 340 none 172.6SugarBabies 5.45 160 280 none 171.4SugarBabies 5.79 155 270 none 170.8SugarBabies 5.95 180 295 none 170.9SugarBabies 6.14 200 320 none 171.8SugarBabies 5.99 240 360 none 172.3SugarBabies 6.61 175 295 none 170.6SugarBabies 5.88 195 310 none 171.3Average 5.83 189 306 170.9Stnd Dev 0.48 28 29 1.7


27

V.B.3. Slack-fill Results for JuniorMints, JuniorMints-King Size, and SugarBabies Tootsie

Candy

Data was used to determine if slack-fill existed and if so, how much. Previously mentioned

equations were used to determine slack-fill using 2 methods. Results showed that:

• Effective slack-fill ranged from 33.6 to 40.7%

• Actual slack-fill ranged from 54.3 to 57.1%

This is shown in Table 11.

Table 11: Slack-fill for

JuniorMints, JuniorMints-King Size, and SugarBabies

Interestingly, the average slack-fill on the JuniorMints-King Size was slightly lower that the

slack-fill on the JuniorMints. This was because JuniorMints contained a larger amount of candy

(3.5oz versus 2.6oz in the JuniorMints-King Size) and was in a larger box that the JuniorMints-

King Size.

Brand BrandEffective slack fill

Actual slack fill

JuniorMints-KingSize Average 37.5% 57.1% Stnd Dev 3.8% 2.7%JuniorMints Average 40.7% 61.3% Stnd Dev 2.9% 2.7%SugarBabies Average 33.6% 54.3% Stnd Dev 2.8% 1.0%


28

V.C. Slack-fill is primarily nonfunctional slack-fill

It is my opinion that the slack-fill within carton of JuniorMints, JuniorMints-King Size, and

SugarBabies is primarily nonfunctional. This opinion is detailed in the following 6 sections that

correspond to the 6 criteria in CFR 100.100 and in California Code 12606.2. These sections are:

V.C.1, V.C.2, V.C.3, V.C.4, V.C.5, and V.C.6. The Figure below demonstrates the percent of

functional and nonfunctional effective slack-fill explained within this section. It is important to

note that the Effective nonfunctional slack -fill equals the Actual nonfunctional slack-fill when

the space between the candy is subtracted as functional slack-fill from Actual slack-fill. This is

because Actual slack-fill includes the space between the candy.

Figure J

Functional and nonfunctional slack-fill

Functional and nonfunctional slack-fill

70.0%

60.0%

50.0%

40.0%

30.0%

20.0"/4

10.0"/4

0.0%

JuniorMi nt s-KingSize JuniorMints SugarBabies

• Effective slack-fill

• Actual slack-fill

• Actual functional slack-fill relat ed t o space between candy

Actual nonfunct ional slack fill


29

Table 12

Summary of functional and nonfunctional slack-fill

V.C.1. Slack-fill is nonfunctional in the context of criteria 1 because the slack-fill does not

protect the JuniorMints, JuniorMints-King Size, and SugarBabies

It is my opinion that slack-fill is nonfunctional in the context of criteria 1 because the slack-fill

does not protect the JuniorMints, JuniorMints-King Size, and SugarBabies. My rationale is based

on the primary function of food packaging being to protect product during the shelf life, specific

product shapes, and collected data. This includes protecting against product deterioration and

providing physical product protection. It is my opinion that the approximate slack-fill ranges

determined in V.B. are not needed to protect the contents from: product deterioration or physical

harm. And, that no slack-fill is required to provide product protection. The two sections below

address how the excess slack-fill was not needed to protect the product. The sections are:

V.C.1.1 and V.C.1.2.

Space be tween Actual Effective slack- candy functional nonfunctional

Brand fill Actual slack-fill slack-fill slack fill

JuniorMints-KingSize 37.5% 57.1% 19.6% 37.5%

JuniorMints 40. 7"/4 61.3% 20.6% 40. 7"/4 SugarBabies 33.6% 54.3% 20. 7"/4 33.6%


30

V.C.1.1 Slack-fill is nonfunctional since it does not protect against product deterioration

Slack-fill is not needed to protect against product deterioration and so the slack-fill is

nonfunctional in this context. Product protection is a vast area of food packaging due to the

concern over food safety and the numerous deteriorative reactions that occur within foods. The

slack-fill in the cartons seen in V.B. of this report was considered in terms of its role in providing

needed protection from deteriorative reactions in foods. There are 5 major deteriorative reactions

in food. These are: lipid oxidation, microbial, moisture loss and gain, non-enzymatic browning,

enzymatic browning. Reactions are a function of the food and the environment. Packaging is

designed to prevent/stall deteriorative reactions on a product by product basis. For this reason,

product ingredients, and product characteristics are relevant. Ingredient statements contained in

Table 13 are used for reference.

Table 13: Ingredient statements of Tootsie Candy

JuniorMints

JuniorMints-King Size

Total Fat 3g

Cholesterol 0mg

Persemng Per conlalner ........... ,........, % DV' 'I, DV'

'I, IN' 'lo IN' -- -Total Fat 2.5g 3% 7g 9¾ Tot.al Carb. 9'/, 65g 24'1, 1.5g 8¾ 4g 20% 0'1, :lg 0'1, 0g 0g 6_'9 __ 0mg O'I, 0mg 0% 50\ 6 g 120\ 0mg 0% 10mg 0% 1g

Omcg 0% Omcg 0% 1mg 611mg II 3mg 0% 7mg 0% 37mg Ol 11 ..

'llltll DlliyVQID\1!ell)')U i... nu:flal>Jln«JI naSIMlg~loodcoo l11dolylill2.lll0a1D11111illfil•t.pad•I -


31

SugarBabies

Interestingly, the regular size JuniorMints carton contains 0.9oz more than the King Size

JuniorMints. None of these deteriorative reactions depend on the amount of headspace within the

carton. The reasons why are explained below for each reaction.

V.C.1.1a. Lipid oxidation is not a concern since the amount of unsaturated fats is zero and the

reaction cannot occur.

V.C.1.1b Microbial growth is a function of product acidity (pH), moisture content, nutrient

content, oxygen, and light. Tootsie candy considered does not support microbial growth because

it does not have the pH, moisture content, nutrients conducive to microbial growth.

V.C.1.1c Moisture loss and gain likely does not occur to and from the Tootsie candy to a

significant extent during product shelf life. This is because the carton minimal protection from

moisture loss or gain. And, since the product is sold by weight, retaining moisture is critical to

maintaining the correct amount of candy within the carton throughout the product shelf life. To

protect against moisture loss or gain the candy – JuniorMints, JuniorMints-King Size, and

SugarBabies - have varying degrees of protective coatings on the candy itself that are applied as

part of food processing. These coating retard against moisture loss and gain which could result in

the candy drying out or becoming sticky. During testing in Section V.B., none of the candy was

dry, or sticky unless it was damaged in its exterior. The high degree of slack-fill did not prevent

product damage. This is shown in Figure K below.

Nu ration Facts :":'JOIL.,..,_, .. ,=' Sf'IV ng S11e 27 Pli!Ces (39g' STAACtt MOOflCD 'M£f ~NP.AL. Alf;)

$f rvmg!. Per Container abol t 4 5 AATlf-lCIAt FLA'JOR$. coortCTlvl-0. $GU.if., SALT r..AMMll Cl).00 ~ICW.. ta.OPS

Amount'"• s-tng (INCLUDING fO&C YW.OW fG 40 VEU.l)W

.C,a::lorl:::,:::•.::,•,::16~0-_.C.,::a:,::1nrf~S~l:::ro~m-,:F~at~10 6,AN08LLJ I) <;OY .ECfHIK 'MITE M • % Dalty Value" OIL

Total fat 1.5g 2% EGG MAY BE PflESENT.

Saturated Fat 0.5g ~ =~~\N 38019 USA Sodium 40'!2L_ .. ··--- c TRI, LLC Total Cartlobydrate 36g _ _ l 2% MADE IN USA

Sugars 29g Protein Ilg

Not as,gni!lC!lrllSOtJfteolnnslat.CholollerOI. dM;ld()'tiber,vitaminA,vi~l'l~W'dl'OII

"Pe<cont DallV VIIIU8Sartbaledon 12.000tllOnl .. wwwtool.Slecom 06-T0600C-SBSTf


32

Figure K

JuniorMints cracked and the filling sticking to side of inner carton

The paperboard and sealing methods used to enclose the contents does not prevent moisture loss

or gain to a significant degree and carton ends are glued but contain gaps on the sides allowing

the free flow of air. The carton is simply not designed to prevent moisture loss or gain. And,

hence, the additional headspace range seen in Section V.B. does not play a role in moisture loss

or gain since the product is not protected to any significant degree by the carton or its ambient

headspace from moisture changes. Due to the difference between effective and actual slack-fill,

significant space exists between the product when within the carton. This demonstrates that

extra headspace would not add significantly to the ability of candy to shift within the carton.

V.C.1.1d and V.C.1.1e: Non-enzymatic browning is a reaction between proteins and reducing

sugars and since there is an absence of protein in all candy, this reaction cannot occur within

JuniorMints and SugarBabies candy. Enzymatic browning (typically seen in the browning of

apple slices) can also be assumed not be and concern since compounds needed for the reaction

are not within the Tootsie candy.


33

V.C.1.2. Slack-fill is nonfunctional since it does not protect product from distribution,

retail and consumers hazards that may damage product.

Slack-fill is not needed to protect product from distribution, retail and consumers hazards that

may damage product and so the slack-fill is nonfunctional in this context. Packaging is designed

to protect against dynamic and static loads during distribution. The package system is the

composite of all packaging used. In the case of the Tootsie candy considered it is: a corrugated

box, paperboard carton, and adhesive used to seal the carton. Dynamic and static stresses occur

in transport (plane, truck, boat), storage, and handling by forklift, humans, and machines. It is a

standard practice that the carton within the corrugated cases, would be packed tightly to reduce

scuffing exterior carton graphics and this would limit the effects of cartons bowing out in the

middle sections. In fact, reduced headspace would reduce the longest dimension of the carton

and add more rigidity to the carton to provide support during distribution. The excess space in

the carton seen in Section V.B. was considered in terms of its role in providing needed physical

protection throughout the distribution process.

Corrugated boxes are designed to support the weight of the product held in the box if a product

cannot support its own weight. This is standard in packaging and while the exact pallet patterns,

stack heights, corrugated edge crush values are unknown, it can be assumed that the corrugated

cases are designed properly and will support the carton weight to withstand dynamic and static

stresses. The additional slack-fill volume does not provide any cushioning and the added height

of the carton does not provide support. In fact, the added height would result in carton crushing if

cartons are distributed improperly since crushing would occur because the cartons are not full. In

addition, the excess carton headspace within the carton would result in more product movement

within the carton during distribution. This extra movement may result in product damage. The

carton size not unusual or awkward in terms of handling in distribution and at retail and the

slack-fill is not warranted due to distribution, retail, or consumer hazards. The process does not

require slack-fill to any extent to achieve product protection.

The slack-fill in the carton headspace does not protect JuniorMints, JuniorMints-King Size, and

SugarBabies thus does not meet criteria 1 of CFR section 100.100 nor California Code 12606.2.


34

V.C.2. Slack-fill is nonfunctional in the context of criteria 2 because the slack-fill is not

needed in the machinery requirements to enclose the JuniorMints, JuniorMints-King Size,

and SugarBabies

It is my opinion that slack-fill is nonfunctional in the context of criteria 2 because the slack-fill is

not needed in the machinery requirements to enclose the JuniorMints, JuniorMints-King Size,

and SugarBabies. I reached this opinion based on my understanding of carton sealing machinery

and adhesives. The rationale is shared in the next 2 sections: V.C.2.1. and V.C.2.2.

V.C.2.1. Slack-fill is nonfunctional in terms of enabling the carton sealing machinery used

to enclose product

Carton sealing machinery to enclose product does not require slack-fill and so the slack-fill is

nonfunctional in this context. While the specific machine used to seal cartons has not been

disclosed to me, it can be assumed to be similar to those used in other high-speed carton sealing

operations of which I am familiar. After carton erecting and filling, cartons flaps are closed and

the carton is sealed. This operation requires application of an adhesive to one or both flaps,

contact between the 2 flaps being sealed, and dwell time and/or temperature/pressure to enable

sealing to occur. This enclosing process is independent of the amount of slack-fill within the

carton and the fill level required is only just below the 2 flaps being sealed.

V.C.2.2. Slack-fill is nonfunctional in terms of enabling proper adhesion to enclose product

within the carton

Adhesives and the sealing operation to enclose product in a carton do not require slack-fill and so

the slack-fill is nonfunctional in this context. Adhesives are designed for specific applications

and in this case, I assume that the adhesive is designed for sealing the paperboard cartons

considered. Sealing paperboard cartons has been done for many of years, adhesives have

evolved, are common and have specific requirements regarding their suitability for high speed

operations. While the specific adhesive has not been disclosed to me, it can be assumed to be

similar to those used in other high-speed paperboard carton sealing operations. While,

innovations and technology (such as plasma surface treating) could be employed to increase

bond strength, the actual enclosing operation is the same and does not require slack-fill. The

process is the one described in V.C.2.1. It is important to note that in my experience, the process


35

of adhesive application is refined, automated, and commonly tightly controlled to ensure the

uniform and optimal amount of adhesive. This is because of the economics of: rejects within the

manufacturing facilities or at retail due to excess adhesive, the cost of adhesives, the need for

adhesives to remain in defined areas versus on carton exteriors that would interfere with carton

graphics, and cartons inadvertently opening during distribution or retail environments due to

improper sealing. For this reason, it can be assumed that adhesive application and use is

optimized for the cartons considered. Product pieces may rest upon one another in odd

orientation immediately after filling. This is not an uncommon assurance in filling operations.

And, in-line (the next step in a production process) vibration and the conveyor itself after filling

allows product to equilibrate to the same height within the carton. While a piece of candy may

protrude from the remaining equilibrated candy, Table 14 shows that the open space between the

candy in the Tootsie cartons would provide ample space without slack-fill of allow a shift to

occur during the sealing operation. In any case, slack-fill is not needed to accommodate the

unusual occurrence of excess adhesive since the adhesive is FDA approved or due to the sealing

process itself.

Further, tamper evidency requires proper adhesion that demonstrates to consumers that the

carton has not been opened before their use. This is accomplished through the use of an adhesion

between the 2 glue flaps that exhibits fiber tear on the 2 glue flaps upon opening. There are

numerous cartons on the market without slack-fill that have been enclosed using packaging

machinery.

The slack-fill in the carton headspace is not needed to align with the machinery requirements to

enclose JuniorMints, JuniorMints-King Size, and SugarBabies thus does not meet criteria 2 of

CFR section 100.100 nor California Code 12606.2.

-


36

V.C.3. Slack-fill is primarily nonfunctional in the context of criteria 3 because the slack-fill

does not result from JuniorMints, JuniorMints-King Size, and SugarBabies settling during

shipping and handling


does not result from JuniorMints, JuniorMints-King Size, and SugarBabies appreciably settling

during shipping and handling. I reached this opinion based on: product density and geometry and

carton geometry, calculated effective and actual volume of candy with each carton and the lack

of labeling explaining that product settling may occur during shipping and handling. The

rationale is shared in the next 3 sections: V.C.3.1, V.C.3.2, and V.C.3.3.

V.C.3.1 Slack-fill is not the result of settling during shipping and handling based on

product density and geometry

Slack-fill is nonfunctional due to product density and geometry. Settling does occur in low

density products; but, not in products of sufficient density that allows product to settle upon

filling. The product density of JuniorMints, JuniorMints-King Size, and SugarBabies is higher

than that of water.

Table 14

Candy Density

Product at this density would be expected to settle immediately upon filling. Products with

complex geometry can become geometrically aligned to take the shape of the carton and hence

consume less space after shipping and handling. The complexity of the geometry of the candy

means that it is unlikely to align with carton geometry. For example, differently shaped candy is

not likely to stack in an oriented manner reminiscent of the rectangular carton during shipping

Brand Brand

Density of candy (g/cc)

JuniorMints-KingSize Average 1.4 Stnd Dev 0.1JuniorMints Average 1.4 Stnd Dev 0.1SugarBabies Average 1.5 Stnd Dev 0.0


37

and handling to results in appreciable slack-fill. And, JuniorMints and SugarBabies are elliptical

respectively and hence cannot conform to the shape of the rectangular carton and pack without

space between candy pieces.

V.C.3.2. Slack-fill is not the result of settling during shipping and handling because

difference between the effective and actual volume shows that settling has not occurred to

an appreciable extent

Slack-fill is nonfunctional based on the difference between effective and actual volume. While

some settling may have occurred, the difference between the effective and actual volume of

candy demonstrates that the product does not “settle” fully to fill gaps and that there still

considerable air pockets between candy pieces within the carton after shipping and handling.

Table 18 shows the difference between the effective and actual volume of candy within the

carton. The voids between the candy within the carton is still 24.9-53cc after shipping and

handling. This volume demonstrates that slack-fill is likely not the result of settling during

shipping and handling.

Table 15

Difference between the effective and actual volume

As mentioned earlier, the space between candy pieces and the space above the candy in the

carton is the Actual slack-fill. The space between the candy is functional in that it is needed for

proper orientation of candy within the carton. The difference between Effective and Actual

slack-fill demonstrates the amount of functional slack-fill between the pieces of candy within the

carton. The volumes in the Table above represent the Actual functional slack-fill. It is important

Brand Brand

Difference between effective volume and actual volume (cc)

JuniorMints-KingSize Average 24.9 Stnd Dev 6.2JuniorMints Average 38.8 Stnd Dev 6.3SugarBabies Average 53.0 Stnd Dev 8.4


38

to note that this functional slack-fill only relates to the Actual slack-fill. When this space

between the candy functional slack-fill is determined the Actual nonfunctional slack-fill equals

the Effective nonfunctional slack-fill. This non-functional slack-fill is: 37.5%, 40.7%, 33.6% for

JuniorMints-King Size, JuniorMints, and SugarBabies respectively.

V.C.3.3. Slack-fill is not the result of settling during shipping and handling based on the

lack of labeling highlighting that product settling during shipping and handling may occur

Slack-fill is nonfunctional based on the lack of labeling suggesting that product settling during

shipping and handling may occur. The labeling on packaging for foods such as low-density

cereal and chips, that do break and settle during shipping and handling is to inform the consumer

that “some settling may have occurred”. This labeling is missing on the packaging that contains

JuniorMints and SugarBabies and present on the carton containing JuniorMints-King Size even

though the levels of settling are the same as in all cartons containing JuniorMints since it is the

same candy. Further, as shown in Table 11, the JuniorMints-King Size has a degree of slack-fill

between that of JuniorMints and SugarBabies suggesting the lack of relevance settling. The

slack-fill in the carton headspace is not the result of settling during shipping and handling of

JuniorMints, JuniorMints-King Size, and SugarBabies thus does not meet criteria 3 of CFR

section 100.100 nor California Code 12606.2.


39

V.C.4. Slack-fill is nonfunctional in the context of criteria 4 because the slack-fill within the

package is not necessary to perform a specific function for JuniorMints, JuniorMints-King

Size, and SugarBabies


within the package is not necessary to perform a specific function for JuniorMints, JuniorMints-

King Size, and SugarBabies. There are many specific functions of packaging to aid in food

preparation and consumption. As specified in the CFR and the California Code, the function

needs to be inherent to the nature of the food and clearly communicated to consumers. Cartons

do not have an “open here” tab and thus no slack-fill is required to accommodate this dispensing

feature. The “to close-insert tab in slot” and “open other end” tabs on the top and bottom of the

carton are the only specific functions communicated to consumer. I arrived at my opinion based

on the carton functions of opening and dispensing through the opening on the top of the carton

and thus opening the carton and dispensing candy from this carton top opening.

The slack-fill in the carton headspace is not needed to enable a specific function of the

JuniorMints, JuniorMints-King Size, and SugarBabies package to perform thus does not meet

criteria 4 of CFR section 100.100 nor California Code 12606.2.


40

V.C.5. Slack-fill is nonfunctional in the context of criteria 5 because the JuniorMints,

JuniorMints-King Size, and SugarBabies package is not suitable for reuse, as a durable

commemorative or as a promotional package

It is my opinion that slack-fill is nonfunctional in the context of criteria 5 because the

JuniorMints, JuniorMints-King Size, and SugarBabies package is not suitable for reuse, as a

durable commemorative or as a promotional package. I arrived at my opinion based on the

carton’s single use function and absence of commemorative or promotional advertising. This

rationale is discussed in the following 2 sections: V.C.5.1. and V.C.5.2.

V.C.5.1. Slack-fill is nonfunctional since slack-fill is not needed because the carton is not

designed or intended for reuse.

Slack-fill is nonfunctional since slack-fill is not needed because the carton is not designed or

intended for reuse. The carton construction of 14-point solid bleached sulfate does not suggest

that reuse is likely or intended. If reuse was intended, the carton would be made of a more robust

structure to facilitate reuse. The “to close-insert tab in slot” tab on JuniorMints, JuniorMints-

King Size, and SugarBabies cartons allows for use and not easy or implied reuse. Further, the

recycling symbol on the carton suggests the carton is to be recycled and not reused

V.C.5.2. Slack-fill is nonfunctional since slack-fill is not needed because the carton is not

designed commemorative or promotional purposes.

Slack-fill is nonfunctional since slack-fill is not needed because the carton is not designed

commemorative or promotional purposes. There is no mention of commemorative or

promotional purposes of cartons of JuniorMints, JuniorMints-King Size, and SugarBabies candy.

The slack-fill in the carton headspace is not due to the need for carton reuse, or commemorative

or promotional purposes for the JuniorMints, JuniorMints-King Size, and SugarBabies package

and thus criteria 5 of CFR section 100.100 nor California Code 12606.2 is not met.


41

V.C.6. Slack-fill is nonfunctional in the context of criteria 6 because the carton containing

JuniorMints, JuniorMints-King Size, and SugarBabies slack-fill does not have to occur to

enable food labeling, pilfering, handling, or tamper resistance.

It is my opinion that slack-fill is nonfunctional in the context of criteria 6 because the

JuniorMints, JuniorMints-King Size, and SugarBabies slack-fill does not have to occur to enable

food labeling, pilfering, handling, or tamper resistance. The added space that results in slack-fill

does not restrict pilfering, optimize handling, or impact tamper evidency. I arrived at my opinion

based on the package size, labeling requirements, pilferage, and handling and tamper evidency.

This is discussed on the following 4 sections: V.C.6.1., V.C.6.2., V.C.6.3., and V.C.6.4.

V.C.6.1. Slack-fill is nonfunctional since slack-fill is not needed for sufficient space for food

labeling purposes.

Slack-fill is nonfunctional since slack-fill is not needed for sufficient space for food labeling

purposes. Labeling on the principal display panel and other areas of the carton for nutritional

purposes is governed by CFR 21 as shown in Figure K. The principal display panel is the height

times the width of the carton. Principal display panels are shown in Table 16 for JuniorMints,

JuniorMints-King Size, and SugarBabies cartons.

Table 16

Principal display panel area

Brand BrandPrincipal Display Panel (cm2)

JuniorMints-KingSize Average 88.06JuniorMints Average 111.65 SugarBabies Average 151.96


42

Figure L

Visual showing that the JuniorMints carton is larger than JuniorMints-King Size carton


43

Figure M

Principal display panel within CFR21

Subsequent sections define requirements for nutritional labeling and other requirements. These

requirements do not require a carton larger than the effective volume of candy. This is

exemplified by the large amount of space consumed by graphics and brand name lettering.

Slack-fill is nonfunctional since slack-fill is not needed for sufficient space for food labeling

purposes on the principal or other display panels to be in compliance nutritionals within 101.9

and other food labeling regulations within the CFR.

TITLE 21--FOOD P.ND DRUGS CHAPTER ! --FOOD P.ND DRUG P.DMINISTRATION

DEPP.RTMENT OF HEP.LTH P.ND HUM..o.N SERVICES SUBCHAPTER B--FOOD FOR HUM..o.N CONSUMPTION

PP.RT 101 FOOD LP.SELING

Subp art A--General Pr ovis i o ns

Se c . 101 . 1 Pr incipal di s play pane l o = package =o r m =ood .

The t e r m principal displa y p a nel a s it appli e s to =ood in package =o r m and a s us ed in thi s par t, me ans the par t o :: a labe l that i s mos t like ly to b e di s played., p r e s e nted., s hown, o r e xamined unde r cus tomar y conditions o :: di s play ::o r r e tail s ale. The p r incipal di s play pane l s hall b e lar g e e nough to accom.~odate all the mandator y labe l in::o r mation r e qui r ed to b e place d. the r eon by thi s par t with clar ity and. cons picuous ness and. without obs cur ing d e s ign, vigne tte s , o r c r owding . Whe r e package s b e a r al~e r nate p r incipal di s play pane l s , in::o r mation r e qui r ed to b e place d on the p r incipal di s play pane l s hall b e duplicated on e ach p r incipal di s play pane l . Fo r the pur pos e o = obtaining uni =o r m type s ize in d eclar ing the quantity o = conte nts =o r all package s o = s ubs tantially the s ame s ize , the t e r m area o f the principa l displa y p a nel me ans the a r e a o = the s ide o r s u.r=ace that b e a rs the p r incipal di s play pane l, which a r e a s hall b e:

(a ) In the cas e o = a r e ctangular package whe r e one e nti r e s ide p r ope r ly can b e cons ide r ed to b e the p r incipal di s play pane l s ide , the p r odu=t o = the he ight time s the width o = that s ide ;

(b l In the case o: a cylindr ical or near ly cylindr ical container , 40 percent o: the product o = the he ight o = the containe r time s the ci r cum=e r e nce ;

(c J In the cas e o : any othe r wi s e s haped containe r , 40 p e r c e nt o : the total s ur:ace o : the containe r : Provided, however, That whe r e s uch =ontaine r p r e s e nts an obvious "pr incipal di s play pane l" s uch a s the top o = a t r iangular o r ci r cular package o = chees e , the a r e a s hall cons i s t o = the e nti r e top s ur=ace. In d e t e r mining the a r e a o = the p r incipal di s play pane l, e xclude tops , bottoms , =1ange s at tops and bot~oms o = cans , and s houlde rs and ne cks o = bottle s o r jars . In the cas e o = cylindr ical o r ne a r ly cylindr ical containe rs , in=o r mation r e qui r ed by thi s par t to appe a r on the p r incipal di s play pane l s hall appe a r within that 40 p e r c e nt o = the ci r cum=e r e nce which i s mos t lik-e ly to b e di s played, p r e s e nted, s hown, o r e xamined unde r cus tomar y conditions o = di s play =o r r e tail s ale.


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V.C.6.2. Slack-fill is nonfunctional since extra space due the slack-fill likely does not

provide sufficient additional space to inhibit pilfering.

Slack-fill is nonfunctional since extra space due the slack-fill likely does not provide sufficient

additional space to inhibit pilfering. While size does not define the degree of pilfering, product

within larger size cartons are less easily stolen. And, the cost and volume of theft of products

often warrants cartons that are larger than the product. For example, high price (~$2,000) hearing

aids are commonly sold in cartons larger than a hearing aid to inhibit pilfering. The size candy of

concern is called “theater candy” and can be sold behind counters which limits pilfering via the

use of a gatekeeper and within candy aisles in convenience, grocery, and other venues. In these

various venues, various products within the candy aisle are smaller in size and thus more easily

pilfered than paperboard cartons.

V.C.6.3. Slack-fill is nonfunctional since extra space due the slack-fill does not provide

sufficient space to enable superior handling.

Slack-fill is nonfunctional since extra space due the slack-fill does not provide sufficient space to

enable superior handling. The current size carton is not necessarily the optimum size for

handling since many candy carton sizes exist and are handled within similar distribution systems.

Handling includes handling during manufacturer, filling, packaging, storing, distributing, in

retail environments, by consumers, and in the post-consumer environment. It is my opinion that

these handling processes would not be impeded by a smaller carton without the slack-fill

determined in Section V.B. Interestingly, if the carton did not exhibit slack-fill, less handling

would occur. This is because less material would need to be produced, shipped, handled within

the distribution environment, more facings would be possible on the store shelf resulting in less

out-of-stocks, and less labor and handling. Further, the package would be more environmentally

sustainable if it was reduced in size and this smaller size would result in less overall production,

shipping, and recycled and overall handling of paperboard.

V.C.6.4. Slack-fill is nonfunctional since extra space due the slack-fill does not impact the

degree of tamper evidency


45

Slack-fill is nonfunctional since extra space due the slack-fill does not impact the degree of

tamper evidency. Tampering is made evident by fiber tear on the 2 flaps if the carton is opened

from the top by the using the “to close-insert tab in slot” tab.

The slack-fill in the carton does not enable food labeling, pilfering, handling, or tamper

resistance for the JuniorMints, JuniorMints-King Size, and SugarBabies package and thus

criteria 6 of CFR section 100.100 nor California Code 12606.2 is not met.

CONCLUSION

For the reasons presented above, it is my opinion that:



V.A.






Executed on February 25, 2018

Claire Koelsch Sand, Ph.D.

(!) - 1 ;• . ::::r:: u < Technology a. & Research

Claire Koelsch Sand, Ph.D. CEO and Founder

Stillwater, Minnesota 612-807-5341

[email protected] www.PackagingTechnologyandResearch.com


DECLARATION OF FORREST MORGESON, PH.D.

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CLARKSON LAW FIRM, P.C. Ryan J. Clarkson (SBN 257074) [email protected] Shireen M. Clarkson (SBN 237882) [email protected] Bahar Sodaify (SBN 289730) [email protected] 9255 Sunset Blvd., Ste. 804 Los Angeles, CA 90069 Tel: (213) 788-4050 Fax: (213) 788-4070

Attorneys for Plaintiff Ketrina Gordon



KETRINA GORDON, individually andon behalf of all others similarly situated,

Plaintiff,

vs.


Defendants.

)))))))))))))))))))))))

Case No. 2:17-cv-02664-DSF-MRW

[CLASS ACTION]

DECLARATION OF FORREST MORGESON PH.D. IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION


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I, FORREST MORGESON, declare as follows:

1. I am a director of research at the American Customer Satisfaction Index

(ACSI) retained for the above-mentioned case. I have personal knowledge of the

facts set forth in this declaration and, if called as a witness, I could and would testify

competently thereto. Attached hereto as Exhibit A is my curriculum vitae.

2. I make this declaration in support of Plaintiff's motion for class

certification. Attached hereto as Exhibit B is a true and correct copy of my expert

report containing my opinions regarding the products at issue which are covered

within the definition of Theater Box Candy referenced in my report.


State of California that the foregoing is true and correct. Executed on

/fl~rc/2 ~ 2018 at Ann Arbor, Michigan.

-7LY Forrest Morgeson, Ph.D.



EXHIBIT A


11

EXHIBIT 1

Forrest V. Morgeson III, Ph.D.

Director of Research and Global CSI Manager, American Customer Satisfaction Index LLC Instructor, Department of Marketing, Michigan State University Phone: +1.734.649.6818; Email: [email protected]

PROFESSIONAL EXPERIENCE American Customer Satisfaction Index, LLC 2009-Present: Director of Research and Global CSI Manager •Director of Research: Responsible for managing all academic research and advanced statistical analysis for the American Customer Satisfaction Index •Global CSI Manager: Responsible for recruiting, managing, and training ACSI international partner organizations through ACSI's Global CSITM program. Country-groups managed and trained include Barbados, China, Colombia, Dominican Republic, Honduras, India, Indonesia, Kuwait, Malaysia, Mexico, Peru, Puerto Rico, Saudi Arabia, Serbia, Singapore, South Africa, South Korea, Turkey, Vietnam, and the United Kingdom. •Customer Satisfaction Project Management: Responsible for managing domestic and international custom research projects for ACSI, including questionnaire design, data collection, specialized complex model building and statistical analysis, report production, and the presentation of deliverables Michigan State University, Department of Marketing 2016-Present: Instructor in the “Master of Science in Marketing Research Program” •Aggregate student evaluation “Instructor Quality Rating” of 4.5 (out of 5.0) Eastern Michigan University, Department of Political Science 2002-2013: Adjunct Professor of Political Science University of Michigan, Stephen M. Ross School of Business 2002-2009: Research Scientist & Lead Statistician, National Quality Research Center CFI Group International 2008-2009: Project Manager and Consultant •Worked on-site and managed multiple stages of a cross-national CSI tracking study for a large, multi-national African telecommunications company


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PUBLICATIONS & SCHOLARLY ACTIVITIES I. Books and Book-Length Manuscripts Morgeson III, Forrest V. (2014). Citizen Satisfaction: Improving Government Performance, Efficiency, and Citizen Trust. N.Y., N.Y.: Palgrave MacMillan. Bryant, Barbara, Claes Fornell and Forrest V. Morgeson III (2008). American Customer Satisfaction Index Methodology Report. Milwaukee, WI: American Society for Quality. Fornell, Claes (2007). The Satisfied Customer: Winners and Losers in the Battle for Buyer Preference. N.Y., N.Y.: Palgrave Macmillan. (Editorial assistance) Morgeson III, Forrest V. (2007). ACSI Modeling Manual: Processes and Methods for Creating ACSI Models. Ann Arbor, MI: National Quality Research Center. Fornell, Claes, David VanAmburg, Forrest V. Morgeson III, et al. (2005). The American Customer Satisfaction Index at 10 Years. Ann Arbor, MI: Stephen M. Ross School of Business. Morgeson III, Forrest V. (2005). Reconciling Democracy and Bureaucracy: Towards a Deliberative-Democratic Theory of Bureaucratic Accountability. Ph.D. Dissertation. Pittsburgh, PA: University of Pittsburgh. II. Peer-Reviewed Journal Articles and Book Chapters Fornell, Claes, Forrest V. Morgeson III and Tomas Hult (2016). “Stock Returns on Customer Satisfaction Do Beat the Market: Gauging the Effect of a Marketing Intangible.” Journal of Marketing, 80(5), 92-107. Fornell, Claes, Forrest V. Morgeson III and Tomas Hult (2016). “An Abnormally Abnormal Intangible: Stock Returns on Customer Satisfaction.” Journal of Marketing, 80(5), 122- 125. Hult, G. Tomas M., Forrest V. Morgeson III, Neil A. Morgan, Sunil Mithas and Claes Fornell (2016). “Do Managers Know What Their Customers Think and Why?” Journal of the Academy of Marketing Science, 45(1), 37-54. Lariviere, Bart, Timothy L. Keiningham, Lerzan Aksoy, Atakan Yalcin, Forrest V. Morgeson III and Sunil Mithas, (2016). “Modeling Heterogeneity in The Satisfaction, Loyalty Intention and Shareholder Value Linkage: A Cross-Industry Analysis at the Customer and Firm Level.” Journal of Marketing Research, 53(1), 91-109. Morgeson III, Forrest V., Tomas Hult and Pratyush Nidhi Sharma (2015). “Cross-National Differences in Consumer Satisfaction: Mobile Services in Emerging and Developed Markets.” Journal of International Marketing, 23(2), 1-24.


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Keiningham, Timothy L., Forrest V. Morgeson III, Lerzan Aksoy and Luke Williams (2014). "Service Failure Severity, Customer Satisfaction, and Market Share: An Examination of the Airline Industry." Journal of Service Research, 17(4), 415-431. Morgeson III, Forrest V. (2013). “Expectations, Disconfirmation and Citizen Satisfaction with the U.S. Federal Government: Testing and Expanding the Model.“ Journal of Public Administration Research & Theory, 23(2), 289-305. Morgeson III, Forrest V., David VanAmburg and Sunil Mithas (2011). “Misplaced Trust? Exploring the Structure of the E-Government-Citizen Trust Relationship.” Journal of Public Administration Research & Theory, 21(2), 257-283. Morgeson III, Forrest V., Sunil Mithas, Timothy L. Keiningham and Lerzan Aksoy (2011). “An Investigation of the Cross-National Determinants of Customer Satisfaction.” Journal of the Academy of Marketing Science, 39(2), 198-215. Morgeson III, Forrest V. (2011). “Comparing Determinants of Website Satisfaction and Loyalty across the e-Government and e-Business Domains.” Electronic Government: An International Journal. 8(2/3), 164-184. Morgeson III, Forrest V. and Claudia Petrescu (2011). “Do They All Perform Alike? An Examination of Perceived Performance, Citizen Satisfaction and Trust with U.S. Federal Agencies.” International Review of Administrative Sciences, 77(3), 451-479. Morgeson III, Forrest V. (2011). “E-Government Performance Measurement:A Citizen-Centric Approach in Theory and Practice.” In E-Governance and Cross-boundary Collaboration: Innovations and Advancing Tools, Chen, Y.C. and P.Y. Chu (Eds.). Hershey, PA: IGI Global, 150-165. Morgeson III, Forrest V. and Sunil Mithas (2009). “Does E-Government Measure up to E- Business? Comparing End-User Perceptions of U.S. Federal Government and E-Business Websites.” Public Administration Review, 69(4), 740-752. Fornell, Claes, Sunil Mithas and Forrest V. Morgeson III (2009). “The Statistical Significance of Portfolio Returns.” International Journal of Research in Marketing, 26(2), 162-163. Fornell, Claes, Sunil Mithas and Forrest V. Morgeson III (2009). “The Economic and Statistical Significance of Stock Returns on Customer Satisfaction.” Marketing Science, 28(5), 820-825. Barcellos, Paulo and Forrest V. Morgeson III (2009). “O Valor Financiero da Satisfação do Cliente: Reflexões em Nivel Macro e Microeconômico.” In Administracao Mercadologica: Teoria e Pesquisas – Volume 3. Universidade de Caxias do Sul: Brasil.


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Fornell, Claes, Sunil Mithas, Forrest V. Morgeson III and M.S. Krishnan (2006). “Customer Satisfaction and Stock Prices: High Returns, Low Risk.” Journal of Marketing, 70(1), 3-14. III. Work in Progress or Under Review, Conference Proceedings, and Book Reviews Morgeson III, Forrest V., Tomas Hult, and Timothy L. Keiningham (2017). “Customer Complaint, Firm Complaint Management, and Customer Loyalty: A Large Sample Intertemporal and Cross-Sectoral Examination.” [Work in Progress] Morgeson III, Forrest V. and Sunil Mithas (2017). Competing on Customer Satisfaction. [Book Manuscript] Morgeson III, Forrest V., Tomas Hult and Pratyush Nidhi Sharma (2017). “Customer Heterogeneity and Customer Satisfaction Modelling.” [Work in Progress] Morgeson III, Forrest V. and Pratyush Nidhi Sharma (2017). "In Which Model Do We Trust, and When? Comparing the Explanatory and Predictive Abilities of E-Government User Satisfaction and Citizen Trust Models." [Work in Progress] Morgeson III, Forrest V., David VanAmburg, and Barbara Bryant (2012). “Survey Interviewing with RDD/CATI vs. an Internet Panel/Online: A Comparison of Results from a Large, National, Multi-Sector Consumer Satisfaction Study.” [Work in Progress] Singh, A.J., Bonnie Knutson, and Forrest V. Morgeson III (2012). “Customer Satisfaction Trends in the U.S. Hotel Industry: Analysis of American Customer Satisfaction Index (ACSI) Data.“ [Work in Progress] Morgeson III, Forrest V. (2008). “Determinants of Website Satisfaction and Loyalty: Comparing E-Business and U.S. Federal E-Government Models.” In Proceedings of the 8th European Conference on e-Government, 403-414. [Conference Proceedings] Bryant, Barbara, Forrest V. Morgeson III and Reg Baker (2011). “Does Interview Mode Matter? Comparing Satisfaction Results across Internet and RDD Samples.“ 66th Annual American Association for Public Opinion Research Conference. [Conference Paper] Morgeson III, Forrest V. and Claudia Petrescu (2010). “Do They All Perform Alike? An Examination of Citizen Satisfaction, Trust and Confidence with U.S. Federal Agencies.” 68th Annual Meeting of the Midwest Political Science Association. [Conference Paper] Bryant, Barbara E., Forrest V. Morgeson III, Reginald Baker and David VanAmburg (2008). “Does Including Cell Phone Respondents in a RDD Sample Survey Affect the Dependent Variable? The Case of the American Customer Satisfaction Index.” Paper presented to the American Association of Public Opinion Research. [Conference Paper]


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Morgeson III, Forrest V. (2005). “The Centrality of Public Administration in the Normative Democratic Theory of Jürgen Habermas.” 63rd Annual Meeting of the Midwest Political Science Association. [Conference Paper] Morgeson III, Forrest V. (1999). “Review of Deliberative Democracy: Essays on Reason and Politics.” Constellations, 6(2), 253-257. [Book Review] IV. Peer Reviewer -Journal of the Academy of Marketing Science (Editorial Review Board) -Public Administration Review

-Public Administration -Journal of Public Administration Research & Theory -International Review of Administrative Sciences -Local Government Studies -Public Performance and Management Review -Journal of International Marketing -Public Management Review -Journal of Business Research -Social Science Computer Review -The Services Industries Journal

MEDIA INTERVIEWS AND PUBLICATIONS

Thomas, Steff. “Federal agencies score all-time high on customer satisfaction survey,” Federalnewsradio.com. February 2, 2018. [Article and Radio Interview] Konkel, Frank. “Citizen Satisfaction with Government Reaches 11-Year High,” NextGov.com. February 1, 2018. Atiyeh, Clifford. “Can’t Get No—What? Appliances Are More Satisfying Than Cars?” Caranddriver.com. September 4, 2017. “Consumidor Hondureno No Es Leal a Los Marcos,” LaPrensa.hn. May 22, 2017. “UNITEC y AMCHAM lanzan importante estudio de satisfacción del consumidor,” blog.UNITEC.edu. May 22, 2017. Rogoway, Mike. “Comcast says customer service overhaul is showing results,” OregonLive.com. April 23, 2017.


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Weisbaum, Herb. “Stuck on Hold? The Worst Offenders Include Apple, Amazon, Airlines,” NBCNews.com. December 14, 2016. Ode, Kim. “Are Consumer Rating Surveys Driving You Nuts? You're Not Alone — Survey Fatigue is Scoring a 10,” StarTribune.com. October 29, 2016. Parker, Kristin. “Beat the Stock Market by Satisfying Customers,” MSUToday.edu. August 6, 2016. Farrell, Mike. “Cable Op Chafes at ACSI Placement,” MultiChannel.com. June 6, 2016. Baar, Aaron. “Telecom Customer Satisfaction Improving, Slightly,” MediaPost.com. June 1, 2016. Fernandez, Bob. “Comcast service ratings are better, but still low,” Philly.com. June 1, 2016. Kline, Daniel. “These Companies Have the Least Satisfied Customers in the United States,” Motley Fool. June 1, 2016. Peralta, Katherine. “Customer satisfaction improves for cable, internet providers,” Charlotte Observer. June 1, 2016. Gollayan, Christian. “The Three Worst Airlines in America,” NYPost.com. April 27, 2016. Silver, Kate. “We all love to complain about airlines, but customer satisfaction is at an all time-high,” WashingtonPost.com. April 26, 2016.

Vasel, Kathryn. “America’s Most Hated Retailer Is...,” CNNMoney.com. February 24, 2016. Peralta, Katherine. “Here’s how Charlotte retailers rank in customer satisfaction,” The Charlotte Observer. February 23, 2016.

Heckman, Jory. “Satisfaction with federal government services hits new low,” Federal News Radio. February 2, 2016. “The Think Tank with Garland Robinette,” WWL-AM 870, New Orleans, LA. January 28, 2016. [Radio Interview] “Survey Finds Americans Hate the Government,” KTRH-AM 740, Houston, TX. January 27, 2016. [Radio Interview] Hill, Catey. “Why Americans are fed up with the government,” MarketWatch.com. January 26, 2016.


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Picchi, Aimee. “Americans hate the U.S. government more than ever,” CBSNews.com. January 26, 2016. Klie, Leonard. “Slumping Customer Satisfaction Takes a Toll on the Economy,” CRM.com. December, 2015. “America's favorite fast food chain is Chick-fil-a while McDonald's is at the bottom of the heap in new survey,” DailyMail.com. July 5, 2015. Picchi, Aimee. “5 most loved and hated fast-food restaurants,” CBSNews.com. June 30, 2015. Vasel, Kathryn. “America's favorite fast food chain is...” CNNMoney.com. June 29, 2015. “Is Quality or Cost More Essential for Customer Satisfaction Globally?,” Michigan Business Network, Lansing, Michigan. June 10, 2015. [Radio Interview]

Elliott, Christopher. “Customer satisfaction with airlines is actually at a 20-year high, survey finds,” Fortune.com. April 20, 2015.

Segall, Eli. “Allegiant Air lags in passenger satisfaction survey,” Vegasinc.com. April 20, 2015. Lovitt, Rob. “Airline customer satisfaction gets a tiny bit better,” NBC.com. April 20, 2015. “Implications for Public Administrators Worldwide,” Michigan Business Network, Lansing, Michigan. February 26, 2015. [Radio Interview] “Global CSI and the Global Marketplace,” Michigan Business Network, Lansing, Michigan. February 18, 2015. [Radio Interview] Axelrad, Jacob. "With Internet outage, anger rises over proposed Time Warner-Comcast merger," Christian Science Monitor. August 27, 2014. Hill, Catey. "The most hated car company in America is," MarketWatch.com. August 27, 2014. [Newspaper and Television Interview]. Bennett, Jeff. "Automotive Customer Satisfaction Dips for Second Straight Year," Wall Street Journal. August 26, 2014. Lutz, Hannah. "Asian, European brands dominate satisfaction survey, but U.S. brands close gap," Automotive News. August 26, 2014. Horovitz, Bruce. "Not-So-Happy Meal: McDonald's Satisfaction Lags," USA Today. June 19, 2014.


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Morgeson III, Forrest V. and A.J. Singh. "Ritz-Carlton, JW Marriott tops in satisfaction," Hotel News Now. May 1, 2014. Garcia, Ben. "Service Hero Reaches Partnership with ACSI," Kuwait Times. February 18, 2014. Thibodeau, Patrick. "Benchmarking Healthcare.gov: A homepage in 3 seconds, but then a failure," Computerworld. November 5, 2013. Diaz, Alex. "For a more competitive Puerto Rico, create more satisfied customers," Caribbean Business (San Juan, Puerto Rico). September 19, 2013. Custodio, Marie. "Índice económico usa satisfacción del cliente," El Nuevo Dia (San Juan, Puerto Rico). September 11, 2013. Kantrow, Michelle. "Anderson Research Puerto Rico launches new index," Newsismybusiness.com (San Juan, Puerto Rico). September 9, 2013. Morphy, Erika. "Car Makers Face an Increasingly Bumpy Road," CRMBuyer.com. August 30, 2013. Azok, Dawn K. "Detroit automakers losing ground to foreign nameplates in new customer satisfaction survey," The Huntsville Times. August 27, 2013. Slack, Donovan. "Lawmakers push Obama administration on customer service," Gannett.com. August 7, 2013. Prezant, Jonathan. "Customer Satisfaction Shifts in Travel and Leisure Vertical," DMNews.com. June 20, 2013. Karp, Greg. "Study shows airlines don't rank high in customer satisfaction," Chicago Tribune. June 18, 2013. Donner, Francesca. "The Industries Americans Love to Hate," WSJ.com. June 18, 2013. Wharton, Stephanie. "US Payroll Tax Hike Could Hit Hotels," Hotel News Now. February 8, 2013. “Citizen Satisfaction with Federal Services,” Federal News Radio, 1500 AM. Washington, D.C. February 6, 2013. [Radio Interview] Morgeson III, Forrest V. and A.J. Singh. “Comparing Customer Satisfaction across Sectors,” Hotel News Now. October 5, 2012. Morgeson III, Forrest V. and A.J. Singh, “Hotel Customer Satisfaction Hits Record High,” Hotel News Now. July 9, 2012.


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Aho, Karen. “2012 Customer Service Hall of Shame.” MSN Money. July 9, 2012. Morgeson III, Forrest V. and A.J. Singh, “Hotel Guest Satisfaction Scores Raise Stakes,” Hotel News Now. March 21, 2012. Morphy, Erika, “Satisfaction Survey: Airlines, Fast-Food Joints Less Despised,” TechNewsWorld.com. June 21, 2012. Chacko, Sarah, “Survey: Satisfaction with Federal Services Climbs, Trust Sags,” Federal Times. January 19, 2012. Lee, Jolie, “Citizen Satisfaction with Federal Services Slightly up in 2011,” Federal News Radio, 1500 AM. Washington, D.C. January 19, 2012. [Article and Radio Interview] Keizer, Gregg, “Apple drubs rivals in satisfaction survey eighth year running,” ComputerWorld. September 20, 2011. Aaron Barr, “Customer Satisfaction with Computers is Unchanged,” Marketing Daily. September 20, 2011. David Perera, “Public satisfaction with federal websites outpaces satisfaction with services,” FierceGovernmentIT.com. January 26, 2011. Suzanne Kutoba, “Survey: Citizen Satisfaction Plunges,” Federal News Radio, 1500 AM. Washington, D.C. January 25, 2011. [Radio Interview] Nicole B. Johnson, “Citizens Less Satisfied with Government Services, Survey Finds,” Federal Times. January 25, 2011. Michael Finney, “The Michael Finney Show,” KGO Newstalk, 810 AM, San Francisco, CA. May 22, 2010. [Radio Interview] David Alire Garcia, “State follows trend to virtual government: E-government promises enhanced services often at a lower cost.” Michigan Messenger. January 29, 2010. Brandon Chew, “Be aware of CSI nuances: panel.” The Business Times (Singapore). July 31, 2009. “Customer Satisfaction adalah ‘Key Driver.’” Marketing (Jakarta, Indonesia). September, 2008. “Bisnis penyedia indeks konsumen tumbuh 30%.” Bisnis Indonesia (Jakarta, Indonesia). August 14, 2008. Mary Mosquera, “Customer satisfaction with e-gov falls.” FCW.com. December 20, 2007.


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“Indice de Satisfacción del Cliente se ha medido en Colombia.” Mercado de Dinero (Colombia, SA). August, 2007. Ignacio Gomez Escobar, “Clientes dicen estar satisfechos con vehículos y supermercados.” Dinero.com (Colombia, SA). August 23, 2007. David Ranii, “Satisfaction boosts revenue: Banks try to stand out from the pack by focusing on customer service.” The News & Observer (North Carolina). July 4, 2007. Michael Brush, “Happy customers, good stocks.” MSNMoney.com. May 30, 2007. Antonio Velarde, “Delta boosts Albert Ellis traffic.” TCMNet.com. May 22, 2007. “Lower Costs Drive Utility Customer Satisfaction Improvement.” Natural Gas Intelligence. May 21, 2007. “Gas Utilities Fare Better Than Power in Customer Satisfaction.” NGI's Daily Gas Price Index. May 17, 2007. Barbara Powell, “Toyota Leads in Buyer Satisfaction; Hyundai Advances.” Bloomberg.com. August 15, 2006. “Hyundai Motor gets most improved mark.” Joins.com. August 15, 2006.

PUBLIC PRESENTATIONS

“Using Customer Satisfaction and Brand Loyalty Big Data Metrics for Beating the Markets and Index Creation.” Presented at Quantitative Work Alliance for Applied Finance, Education and Wisdom (QWAFAFEW), New York, New York. November, 2017. “Customer Satisfaction.” Presented at the Lansing Regional HUG Event, Lansing, Michigan. November, 2017 [with Tomas Hult] “The American Customer Satisfaction Index: History, Lessons, and Benefits.” Presented at the Honduras CSI Launch Event, Tegucigalpa, Honduras. May, 2017. “Customer Satisfaction in the Telecommunications Industries.” Presented at the CIV Breakfast Forum, Bogota, Colombia. September, 2015. “The American Customer Satisfaction Index.” Presented to Hexagon, Inc., Delhi, India. August, 2015. [A five-day series of lectures on the ACSI]


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“An Overview of the American Customer Satisfaction Index.” Presented at the DNA- SACSI Launch Event. Jeddah, Saudi Arabia. March, 2015. “The American Customer Satisfaction Index.” Presented to Faktor Plus, Inc., Belgrade, Serbia. January, 2015. [A five-day series of lectures on the ACSI] "Customer Satisfaction Measurement for Process Improvement and Profitability." Presented at the BIBF Customer Satisfaction Workshop, Manama, Bahrain. April, 2014. "Citizen Satisfaction with the U.S. Federal Government: A Review of 2013 Results from ACSI." Presented at the 2014 Customer Satisfaction Forum, Federal Consulting Group, Washington, D.C. April, 2014. "American Customer Satisfaction Index: Satisfaction and Performance." Presented at the 2014 Service Hero Awards Ceremony, Kuwait City, Kuwait. February, 2014. “An Overview of the American Customer Satisfaction Index Project.” Presented to the Vietnam Productivity Center, Hanoi, Vietnam. December, 2013. "Citizen Satisfaction: Public Sector and Performance Measurement." Presented to the Chamber of Commerce of Puerto Rico, San Juan, Puerto Rico. September, 2013. "Customer Satisfaction: A Key Element for an Effective Business Strategy." Presented to the Asociación de Ejecutivos de Ventas y Mercadeo de PR (SME), San Juan, Puerto Rico. September, 2013. "The American Customer Satisfaction Index: An Overview." Presented to Korean Productivity Center, Seoul, South Korea. April, 2013. [A two-day series of lectures on the ACSI] “The American Customer Satisfaction Index.” Presented to Alfavia Inc., Lima, Peru. March, 2013. [A five-day series of lectures on the ACSI] "Citizen Satisfaction with the U.S. Federal Government: A Review of 2012 Results from ACSI." Presented at the 2013 Customer Satisfaction Forum, Federal Consulting Group, Washington, D.C. January, 2013. “The American Customer Satisfaction Index.” Presented to the Vietnam Productivity Center, Hanoi, Vietnam. January, 2013. [A four-day series of lectures on the ACSI] "The American Customer Satisfaction Index: Satisfaction and Performance." Presented at the 5th International Conference of the Bahrain Quality Society, Manama, Bahrain. December, 2012. [Keynote Speaker]


22

"Customer Satisfaction: Private Sector, Public Sector, and Performance Management." Presented at the 5th International Conference of the Bahrain Quality Society, Manama, Bahrain. December, 2012. "Guest Satisfaction Trends in the US Lodging Industry: Key Insights from the American Customer Satisfaction Index (ACSI)." Presented at the International Hotel, Motel & Restaurant Show, N.Y., N.Y. November, 2012. “The American Customer Satisfaction Index: Satisfaction, Profitability, Competitiveness.” Presented at the Colegio de Estudios Superiores de Administración, Bogota, Colombia. May, 2012. “The American Customer Satisfaction Index: An Introduction.” Presented to the Malaysian Productivity Corporation, Kuala Lumpur, Malaysia. February, 2012. “Citizen Satisfaction with the U.S. Federal Government: A Review of 2011 Results from ACSI.” Presented at the 2012 Customer Satisfaction Forum, Federal Consulting Group, Washington, D.C. January, 2012. “Citizen Satisfaction with Government: ACSI Theory, Models and Methods.” Presented at the Universidad Iberoamericana, Mexico City, Mexico. November, 2011. “Low Risk/High Returns: Financial Returns on Customer Satisfaction.” Presented to the Alternative Investment Group, University of Michigan, Ann Arbor, MI. September, 2011. “Does Interview Mode Matter? Comparing Consumer Satisfaction Results across Internet and RDD Telephone Samples.” Presented at the 66th Annual American Association for Public Opinion Research Conference, Phoenix, AZ. May, 2011. “The American Customer Satisfaction Index: An Introduction.” Presented at Mars- Indonesia, Jakarta, Indonesia. May, 2011. “Satisfaction with U.S. Federal Government – 2010 Results from the American Customer Satisfaction Index.” Presented at the 2011 Customer Satisfaction Forum, Federal Consulting Group, Washington, D.C. January, 2011.

“Citizen Satisfaction Measurement in the United States.” Presented at the 19th Annual Quality Congress, Turkish Society for Quality, Istanbul, Turkey. November, 2010. “Cross-National Customer Satisfaction: Research and Findings from the ACSI.” Presented at the 19th Annual Quality Congress, Turkish Society for Quality, Istanbul, Turkey. November, 2010.


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“Performance Measurement and Citizen Satisfaction: Findings from the U.S. and Applications for Global E-Government.” Presented at Reinventing Government for a Return to Prosperity: North American Bridge to Romania and Eastern Europe, East Lansing, MI. May, 2010. “Panel: E-Government.” Chair and Discussant, at the Midwest Political Science Association Conference, Chicago, IL. April, 2010. “Do They All Perform Alike? A Cross-Agency Examination of Determinants of Citizen Satisfaction, Trust and Confidence with U.S. Federal Agencies.” Paper presented at the Midwest Political Science Association Conference, Chicago, IL. April, 2010. “Satisfaction with U.S. Federal Government – 2009 Results from ACSI.” Presented at the 2010 Customer Satisfaction Forum, Federal Consulting Group, Washington, D.C. January, 2010. “Overview of the American Customer Satisfaction Index.” Presented to the National Initiative for Service Excellence, Bridgetown, Barbados. November, 2009. “Panel discussion: Global customer satisfaction indices.” At the ISES Global Conference on Service Excellence, Singapore. July, 2009. “The American Customer Satisfaction Index: Results and Lessons Learned.” Presented at the ISES Global Conference on Service Excellence, Singapore. July, 2009. “The 2008 Contact Center Satisfaction Index.” Presented at the 2009 National Conference on Operations and Fulfillment, Las Vegas, Nevada. March, 2009. “Satisfaction with U.S. Federal Government – Results from ACSI.” Presented at the 2008 Customer Satisfaction Forum, Federal Consulting Group, Washington, D.C. December, 2008. “The American Customer Satisfaction Index – The Public Sector Model.” American Evaluation Association Annual Conference. Denver, Colorado. November, 2008. “Customer Satisfaction – Measurement and Managerial Applications: Lessons from the American Customer Satisfaction Index.” Presented at the seminar Customer Satisfaction Measurement. Jakarta, Indonesia. August, 2008. “Determinants of Website Satisfaction and Loyalty: Comparing E-Business and U.S. Federal E-Government Models.” 8th European Conference on e-Government, Lausanne, Switzerland. July, 2008. “Satisfaction with the U.S. Federal Government.” Presented to the Workforce Development Agency (WDA), Singapore. March, 2008.


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“The American Customer Satisfaction Index – A Roundtable Event.” Presented to the Institute for Service Excellence, Singapore Management University, Singapore. February, 2008. “Customer Satisfaction with U.S. Federal Government – Results of the ACSI.” Presented at the 2007 Customer Satisfaction Forum, Federal Consulting Group, Washington, D.C. December, 2007. “Citizen Satisfaction in the United States – Methods and Findings of the ACSI.” Presented at the 16th Annual Quality Congress, Turkish Society for Quality, Istanbul, Turkey. November, 2007. “The American Customer Satisfaction Index.” Presented at Tianjin University, Tianjin, China. September, 2007. [A four-day series of lectures on the ACSI to a group of faculty and Ph.D. students] “The American Customer Satisfaction Index.” Presented at the Customer Index Value launch in Bogota, Colombia. August, 2007. “Workshop: Identifying Key Elements in Measuring Government Satisfaction.” Presented at the Universidad Iberoamericana, Mexico City, Mexico. March, 2007. “Customer Satisfaction with the U.S. Federal Government – Methods and Findings of the ACSI.” Presented at the Universidad Iberoamericana, Mexico City, Mexico. March, 2007. “Findings of the 2006 American Customer Satisfaction Index.” Presented at the Interagency Customer Service Forum, Federal Consulting Group, Washington, D.C. December, 2006. “ACSI Overview: Methods, Modeling and Findings.” Presented at a Meeting of the Turkish Society for Quality, Istanbul, Turkey. April, 2006. “Findings of the 2005 American Customer Satisfaction Index.” Presented at the Interagency Customer Service Forum, Federal Consulting Group, Washington, D.C. December, 2005. “Citizen Satisfaction with the U.S. Federal Government.” Presented to the Office of Public Service Reform, Whitehall, London, U.K. June, 2005. “Key Findings for the 2003 American Customer Satisfaction Index.” Presented at the Interagency Customer Service Forum, Federal Consulting Group, Washington, D.C. December, 2003.


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EDUCATION

Ph.D. Political Science, University of Pittsburgh, 2005 Major Fields: Political Theory, Public Administration Minor Fields: Comparative Politics, European Union

Dissertation: Reconciling Democracy and Bureaucracy: Towards a Deliberative- Democratic Theory of Bureaucratic Accountability Dissertation Committee: Iris Young (University of Chicago), Frederick Whelan, B. Guy Peters, Michael Goodhart

M.A. Political Science, University of Pittsburgh, 1999 “High Pass with Distinction”

B.A. Western Michigan University, 1996

Major: Political Science Minor: Philosophy Magna cum Laude

Other University of Michigan

Inter-University Consortium on Political and Social Research (ICPSR, 2002) Summer Language Institute (German Language Study, 2000)


EXHIBIT B


Expert Report of Forrest V. Morgeson III, Ph.D.

Relating to Case No. 2:17-cv-02664-DSF-MRW


1

I. INTRODUCTION

1. I, Forrest V. Morgeson III, Ph.D., hereby submit this expert report regarding the

complaint behavior of consumers in general and across diverse economic industries when

experiencing product or service failures or other dissatisfying consumer experiences. Additional

comments on consumer behavior relative to in-store purchasing, labeling information, package

size and volume judgments are also included.

II. PERSONAL BACKGROUND AND EXPERT QUALIFICATIONS

2. Forrest V. Morgeson III (Ph.D., University of Pittsburgh) is Director of Research at the

American Customer Satisfaction Index (ACSI) in Ann Arbor, Michigan. As Director of

Research, Dr. Morgeson is responsible for overseeing the data and analysis used to produce

ACSI’s annual customer satisfaction study, which covers measurement and results for more than

350 companies in 45 economic industries derived from almost 200,000 annual consumer survey

interviews. Dr. Morgeson also manages ACSI’s academic research, advanced statistical

modeling and analysis, and the company’s international projects and licensing program (Global

CSITM). Additionally, Dr. Morgeson holds the position of Instructor in the Department of

Marketing at Michigan State University, teaching graduate-level and MBA courses on

marketing, marketing research methods, and consumer behavior.

3. Dr. Morgeson’s research focuses on customer satisfaction generally, and specifically

on citizen satisfaction with government services, cross-national marketing research, and the

relationship between marketing variables and corporate financial performance. His research has

been published in the leading journals in both administration and marketing, including: Public

Administration Review; Journal of Public Administration Research & Theory; International


2

Review of Administrative Sciences; Electronic Government; Journal of Marketing; Journal of

Marketing Research; Marketing Science; Journal of Service Research; Journal of the Academy

of Marketing Science; International Journal of Research in Marketing; and Journal of

International Marketing. Dr. Morgeson's latest book, Citizen Satisfaction: Improving

Government Performance, Efficiency, and Citizen Trust, was released in 2014.

4. In addition, over the past seventeen years Dr. Morgeson has consulted with dozens of

corporations (both domestically and globally) and government agencies on consumer and citizen

satisfaction issues, and has delivered lectures and presentations in dozens of countries around the

world.

III. SUMMARY OF OPINIONS

5. This report is based on my experience working with large annual samples of cross-

industry consumer complaint and customer satisfaction data over the past two decades, my

review of materials provided by counsel at Clarkson Law Firm, in Los Angeles, California,

relevant scientific and academic literature, and recent empirical data measuring consumer

complaint rates across U.S. economic industries and sectors. Based on these factors, it is my

conclusion that: (1) across all economic sectors and industries, a relatively small percentage of

dissatisfied consumers complain about their dissatisfying experience; (2) various factors, such as

competition in an industry, the price paid for a good, switching costs, barriers to complaint, and

perceived likelihood of and benefits to redress, are, both individually and collectively, strongly

related to the likelihood dissatisfied consumers will complain, and that these factors vary across

economic industries; and (3) consumers dissatisfied with Food Manufacturing (packaged and

processed foods ready for consumption) have strong “disincentives” to complain that depress


3

complaint rates among dissatisfied consumers, propositions that are supported by empirical data

and can be extrapolated to Theater Box Candy. Additionally, I find that (4) consumers spend

very little time making in-store purchase decisions, rarely read product labels, and use container

or package size as a proxy for product volume and/or quantity (“volume judgment”). The bases

and reasons supporting my opinions are provided in subsequent paragraphs.

IV. BACKGROUND AND OPINIONS

A. Across economic sectors and industries, a small percentage of dissatisfied consumers complain about their dissatisfying experience, possibly as few as one out of twenty.

6. Both the academic literature and empirical data agree that a relatively small percentage

of dissatisfied consumers complain about their dissatisfying experience. Conservative estimates

suggest that as many as two-thirds (66%) of dissatisfied consumers fail to complain about their

experience, leaving only one-in-three (33%) as complainants to a company when unhappy

(Chebat et al. 2005). Other research has indicated that only one dissatisfied customer in 20 – or

only 5% of unhappy customers – formally complain (Downton 2002; TARP 1986). Why do even

highly dissatisfied, unhappy customers tend to complain only rarely? The probability that a

dissatisfied consumer will express their dissatisfaction via complaint is attributable to a variety

of long-understood factors – identified in both the marketing and economics literatures – that

drive the decision to simply “exit” a company for an alternative supplier without complaining

(disloyalty/defection), exercise “voice” to a company (complain), or to simply ignore the

dissatisfying experience and remain a loyal customer (Hirschman 1970).


4

B. When comparing complaint likelihood and complaint rates across economic industries, several factors strongly influence a consumer’s decision to complain when dissatisfied.

7. Many factors influence the individual consumer’s decision about whether or not to

complain to a company when dissatisfied, including demographic characteristics and

psychological predisposition. Yet both the theoretical literature and empirical tests of these

propositions have generally pointed to a handful of most important influencing factors that cause

aggregate complaint rates (i.e. the percentage of customers that actually complain) to vary across

economic industries. These include: the degree of competition in an industry; the price paid for a

good or service; switching costs (or the costs associated with defecting from one supplier to a

competitor); barriers or obstacles to complaining; and perceived likelihood (and benefit) of

recovery or redress.

8. All else being equal, dissatisfied consumers are less likely to complain when an

industry’s economic landscape is more competitive (i.e. includes more viable alternative

suppliers/companies), as under these conditions defecting from one company to another is

(relatively) easier, and unlike complaining, defecting itself doesn’t require an additional cost (eg.

a time expenditure) from the consumer (Fornell & Davidow 1980; Hirschman 1970).

Additionally, the price paid for a product or service about which the consumer is dissatisfied will

often influence the decision to complain, as failures with higher-priced goods in which the

consumer has invested a larger “share-of-wallet” create a stronger motivation in the consumer to

seek redress and some form of recompense (Williams et al. 1993).

9. Moreover, higher switching costs, or difficulties a consumer might experience by

moving from one supplier to another – such as a greater distance to retail outlets, fewer or less

convenient automated teller machines (ATMs), learning a new computer or wireless phone


5

operating system, the psychological comfort of a long-trusted brand, and so forth – will often

make consumers more likely to complain rather than exit (Ayden et al. 2005; Lee et al. 2001).

Similarly, if consumers perceive little or no opportunity to realistically achieve meaningful

redress (i.e. some form of complaint recovery or compensation) from a company via the act of

complaining, or if the time-cost of complaining outweighs the expected recovery, dissatisfied

customers are less likely to complain (Fornell & Davidow 1980). And finally, significant barriers

to complaint, such as limited information about how to complain (customer service/call center

telephone numbers or company customer service websites) or who to complain to (the

manufacturer of a product vs. the retail outlet selling the product), are often predictive of lower

complaint rates (Fornell & Westbrook 1984).

10. In sum, the nature of an economic exchange and the context within which it takes

place – and typically some combination of the factors discussed above – directly and strongly

impact the likelihood that a consumer will complain to a company about their dissatisfying

experience.

C. Based on the above factors, companies producing packaged and processed foods ready for consumption (Food Manufacturing) are predicted to have low complaint rates regardless of levels of consumer dissatisfaction, and recent empirical data confirms this prediction. These findings extrapolate and apply to companies marketing confectionary goods (such as Theater Box Candy).

11. Based on the above propositions, certain consumer industries are predicted to have

relatively low complaint rates among dissatisfied consumers, both low in an absolute sense and

relative to other economic industries. One such industry is Food Manufacturing (North American

Industrial Classification System (NAICS) code 311), which includes all of the different types of

processed and packaged foods produced in the U.S. (including “Sugar and Confectionery


6

Product Manufacturing,” i.e. all types of candies).1 Regarding competition, as of 2012 the Food

Manufacturing industry was reported by the U.S. Census Bureau (www.census.gov) to have an

Herfindahl-Hirschman index (HHI) score of industry concentration of only 97.0, a very low

score indicative of a highly competitive market. This suggests that defection is nearly

“frictionless” and a viable option for consumers dissatisfied with their experiences, minimizing

complaint likelihood.2 The industry also tends towards a relatively low price-point for the

individual goods sold, which also depresses complaint likelihood and aggregate complaint rates.3

Furthermore, while brand loyalty may play a role in increasing switching costs to some degree,

given the number of alternative suppliers and the “ease of use” of products in this industry (eg. it

does not require a significant time-cost to “learn to eat” a new cold cereal, or to “learn to open” a

new lunch meat or candy package), high switching costs do not dissuade customers from

defecting to a competitor, and this in turn decreases the likelihood of complaint.

12. Additionally, because in almost all cases the food products in this category are sold in

retail outlets not directly affiliated with the actual manufacturer of the product (store-branded

products being the exception), at least some barriers to complaining exist (to whom should the

1For more information on the NAICS, see: www.bls.gov. 2The Herfindahl-Hirschman index (HHI) is a commonly used measure of market concentration or industry competitiveness. It is calculated by squaring the market share of each firm competing in an economic industry (typically the largest 50 companies), and then summing the resulting numbers. The HHI can range from close to zero to 10,000 (with 10,000 representing a pure monopoly). The U.S. Department of Justice considers a market with an HHI of less than 1,500 to be a competitive marketplace, an HHI of 1,500 to 2,500 to be a moderately concentrated marketplace, and an HHI of 2,500 or greater to be a highly concentrated marketplace (https://www.justice.gov/atr/herfindahl-hirschman-index). 3While prices vary across sub-categories of manufactured food consumer goods (cold cereal vs. processed lunch meats vs. confections), in 2015 the average American household spent only about $4000 per year, or roughly $83 per week, for all items purchased at a grocery store, according to the U.S. Bureau of Labor Statistics (www.bls.gov).


7

customer complain, the manufacturer or the retailer?), and this too is predicted to result in lower

complaint rates. Finally, because of the aforementioned low price-point for the typical good

purchased in this category, while consumers might anticipate a benefit in terms of redress from

the act of complaining when dissatisfied, that benefit is likely perceived to be limited to the price

paid for the good itself, and since that price is relatively low, it diminishes the perceived benefit

relative to the cost of complaining.

13. These propositions regarding low complaint rates in the Food Manufacturing industry

are substantiated by empirical data. Exhibit 3 provides complaint rates across 47 different

consumer industries as measured by the annual American Customer Satisfaction Index

(www.theacsi.org) study of consumers (through the end of 2017). According to these results,

Food Manufacturing has the 4th lowest complaint rate of the 47 measured industries, with

complaints registered by just 3% of consumer respondents. Two of the industries with lower

complaint rates – e-business News and Information (online newspaper content) and Social Media

(i.e. Facebook, Twitter, LinkedIn) websites – are in reasonably competitive industries, provide

completely free services, have moderate to low switching costs, moderate barriers to complaint,

and limited (or no) compensation for redress to those who do complain. The other industry with

a lower complaint rate – Personal Care and Cleaning Products – is another manufacturing

industry nearly identical along all dimensions (competitiveness, price, switching costs, etc.) to

Food Manufacturing.

14. On the other hand, the industry with the highest complaint rate – Subscription TV

(Cable and Satellite) at 37% – is marked by: very limited competition, with government-

regulated near-monopoly power for cable companies in most communities; a relatively high

price-point that has increased far faster than inflation over the last decade (Associated Press


8

2018); in many cases, significant switching costs (eg. learning a new service platform and remote

control, for example, at least if switching from cable to satellite or vice versa); very limited

barriers to complaint; and, in some cases, opportunities to receive significant discounts via the

act of complaining.

15. Extrapolating from these findings to Theater Box Candy, we can conclude that this

industry within Food Manufacturing does not have complaint rates commensurate with actual

consumer dissatisfaction. The sub-sector within Food Manufacturing of greatest concern in this

context – Sugar and Confectionary Product Manufacturing – is marked by: an HHI slightly

higher than the overall sector of 446.0, but a score still indicative of a highly competitive market;

relatively low prices, likely lower than the overall category average; very low switching costs,

other than (possibly) brand loyalty; moderate to high barriers to complaint; and potential

recompense via complaint perceived as limited to the low price paid for the products.

16. In conclusion, as predicted by well-tested theoretical propositions concerning the

economic conditions under which dissatisfied consumers will use their “voice” or complain,

rather than simply defecting or remaining loyal, complaint rates for the Food Manufacturing

industry are very low relative to other economic industries, and therefore unlikely to accurately

reflect consumer dissatisfaction with their experiences. These findings extrapolate to the current

context, and include Theater Box Candy.

V. ADDITIONAL OPINIONS

D. Consumers spend very little time making in-store purchase decisions, rarely read product labels, use container or package size as a proxy for product volume and/or quantity (“volume judgment”), and expect package size to reflect package quantity.

17. Due to time constraints, cognitive limitations, quantity and diversity of alternatives,

and other related factors, consumer researchers have long recognized that consumers spend


9

relatively little time making in-store purchase decisions. In one observational study in a

supermarket environment, consumers were found to spend on average only 12 seconds between

arrival and departure (with the item chosen in between) at each individual product display in the

store; 42% of respondents arrived and departed with a product in only five seconds or less

(Dickson & Sawyer 1990). Due to the speed with which purchase decisions are made, the same

study found that few consumers were able to identify basic features of the product just selected.

Fewer than half of consumers (47%) could even indicate the price of the good placed in their

basket immediately after placing it there (Dickson & Sawyer 1990). Unsurprisingly, therefore,

researchers have also found that few consumers read package labeling information, regarding

volume or quantity, nutritional information, sales or discounted pricing, or any other information

(Balasubramanian and Cole 2002; Cole and Balasubramanian 1993; Dickson & Sawyer 1990;

Folkes and Matta 2004).

18. Given the speed with which consumers make decisions and the limited desire (or

inability) to read labeling information prior to making decisions, studies have found that

consumers make decisions about product size or quantity (“volume judgments”) based on

package features (Folkes and Matta 2004; Raghubir and Krishna 1999). Specifically, consumers

have consistently been found to rely on the dominant human sense (vision) and “visual

heuristics” to estimate the expected volume of a product (a process that, to complete accurately,

would require measurement instruments and geometry), and more particularly to assume that a

product will have a larger volume if a package is taller (height) and/or elongated (Folkes and

Matta 2004; Raghubir and Krishna 1999). Moreover, consumers expect package size to

accurately represent the quantity of the good being purchased. In a recent study highly applicable

to the current context – focused on similar consumer goods (chocolate confections) in a similar


market (the United Kingdom) - researchers found that "slack fill" was generally not something

consumers knew about prior to experiencing it (Wilkins et al. 2016). After experiencing a

package size misrepresentative of the quantity of the product included, the same research found

that consumers experienced significant "cognitive dissonance" resulting in elevated

dissatisfaction (Wilkins et al. 2016).

VI. COMPENSATION

19. My compensation is $3 7 5 per hour and is not premised or conditioned on any

outcome in this case.

VII. SUPPLEMENTATION AND REBUTTAL

20. I may also testify in rebuttal to testimony or opinions offered by other witnesses. I

reserve the right to supplement or amend this report in light of any additional information or

documents, in response to any critique of my report or alternative opinions advanced by or on

behalf of Plaintiffs. At trial, I may also use a tutorial, graphics, and/or other demonstrative

exhibits to help explain my opinions and/or testimony.

~i/ / fl .

Forrest V. Morgeson III, Ph.D. Date

10
