Berni v. Barilla

Docket number: 16-cv-4196 (Eastern District of New York)

Class member and CCAF attorney Adam Schulman objected to settlement approval and class certification in Berni v. Barilla. The legal claim involves whether Barilla’s cardboard pasta boxes contain an excessive and deceptive amount of empty space, a claim known as a “slack-fill”. The proposed settlement provides class members with worthless labeling changes, simply adding a minimum fill line and an obvious disclaimer that the “product may settle”. At the same time, and in a clear signal of who the settlement is structured to benefit, the class attorneys and named representatives are seeking combined payments of $450,000.

The fairness hearing was held in December. On January 30, 2019, the court asked plaintiffs’ counsel for more documentation concerning their billing, but on June 3, 2019, the district court largely overruled Schulman’s objection. Although the court rejected the notion that Schulman had no standing to object, it declined to follow the reasoning of Subway and other courts that require whether the relief is meaningless.

Schulman appealed and on July 8, 2020, the Second Circuit agreed with him that the district court erred in certifying the class under Rule 23(b)(2), vacating the certification and therefore the settlement. The case has been remanded for further proceedings. According to the opinion, any new settlement must actually benefit class members.

This case was formerly a project of the Competitive Enterprise Institute and now is being actively litigated by the Hamilton Lincoln Law Institute.

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