Class Certification Comes Unglued in Case Against Krazy Glue

Advertising Law

The court unglued the plaintiff’s motion to certify a statewide class in a slack fill action against the makers of Krazy Glue, granting the defendant’s motion to deny certification.

Hollywood resident David Spacone claimed he purchased Krazy Glue at a True Value hardware store in the summer of 2016. The packaging included a stay-fresh container and a larger, opaque plastic cylinder that housed the tube holding two grams of Krazy Glue. The opaque plastic led him to believe that the package contained more adhesive than it actually did, Spacone claimed, and he was forced to purchase a second package the same day to complete an automotive trim repair.

The empty space in the stay-fresh container constituted nonfunctional slack fill that violated the state’s Fair Packaging and Labeling Act, Spacone alleged, as well as the Consumer Legal Remedies Act, the False Advertising Law and the Unfair Competition Law (UCL). He moved to certify a statewide class of Krazy Glue purchasers dating back to January 2013.

In its motion to deny certification, the defendant told the court Spacone lacked statutory standing because he failed to show that he lost money or property due to an alleged misrepresentation of the product. The defendant pointed to numerous instances during Spacone’s deposition where he effectually denied that he suffered any economic injury.

For example, in one exchange, defense counsel asked, “And you don’t have a problem with how much you paid for the product?” with Spacone answering “No.” In another instance, defense counsel queried, “Do you feel like you got ripped off?” Spacone answered: “I feel like I was misled. I don’t feel like I was ripped off. Ripped off is ripped off. Misled is misled.”

“The Court thoroughly reviewed the transcripts and finds that they establish that Spacone does not assert any loss of money or property because of [the defendant’s] alleged misrepresentations,” U.S. District Judge Andrew Birotte Jr. wrote. “Repeatedly, Spacone testified that he did not lose money or property when he purchased [the] product.”

Spacone did complain about having to drive back to the hardware store to purchase a second bottle of Krazy Glue, citing Hollywood traffic as an injury.

“Nowhere does Spacone testify that, for example, he would not have purchased that amount of Krazy Glue at the price offered or at all—classic examples of economic injury,” the court said. “Instead, he repeatedly denies that he lost money in reliance on [the defendant’s] alleged misrepresentations, and defined his injury as wasting time in Hollywood traffic. Thus, the Court finds that Spacone cannot establish loss of money or property as necessary to establish standing under the UCL. Nor can Spacone display but for causation given his testimony that but for [the defendant’s] alleged misrepresentation, he would have purchased two Krazy Glue packages instead of one on his hardware store trip. This only reinforces that Spacone’s injury is not economic but mere inconvenience, because purchasing two packages the first time would have saved him the second trip in traffic. Wasted time does not equal lost money or property, so Spacone cannot establish statutory standing.”

Spacone did submit a declaration where he stated he “lost money or property because [he] didn’t receive the amount of glue [he] expected to receive based on the visible packaging of the All Purpose Krazy Glue.” But Judge Birotte found this testimony “contradicts Spacone’s repeated and unequivocal deposition testimony,” and “therefore disregards the declaration under the sham affidavit rule and finds that it does not establish standing.”

To read the order in Spacone v. Sanford, LP, click here.

Why it matters: Although slack fill cases have been taking up space in the courtroom for years, the California court took a hard line with the plaintiff in the Krazy Glue action. Despite his affidavit stating he lost money or property, the court determined that the plaintiff repeatedly contradicted this statement in his deposition testimony, and concluded that he lacked standing to bring suit.



pursuant to New York DR 2-101(f)

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