Frank Cruz-Alvarez is a Partner with Shook, Hardy & Bacon L.L.P. in the firm’s Miami, FL office, and Britta Stamps is an Associate in the firm’s Kansas City, Mo office. 

Certain types of cases warrant injunctive relief for a class, but according to the Second Circuit, a group of past purchasers of a product are not the “class” that Federal Rule of Civil Procedure Rule 23(b)(2) was intended to protect.  In Berni v. Barilla S.P.A., et al., the Second Circuit cemented its position that “past purchasers of a product . . . are not eligible for class certification under Rule 23(b)(2).” 964 F.3d 141, 149 (2d Cir. 2020). 

The named plaintiffs in Berni brought a putative class action against the manufacturers of Barilla pasta after they purchased one of Barilla’s new pasta products.  The plaintiffs alleged that Barilla sold the newer pastas—specialty pastas such as whole grain, gluten free, added fiber, or added protein—in the same size boxes as the older, traditional pastas, yet the boxes of the newer pastas did not contain as much pasta as the older boxes.  Because the boxes were the same size, the plaintiffs alleged that consumers would be deceived by the new packaging and believe that all Barilla boxes of the same size would contain the same amount of pasta.

In their slack-fill class action, the named plaintiffs sought, among other things, damages, restitution, and injunctive relief.  Before the District Court ruled on Barilla’s motion to dismiss, the parties reached a settlement agreement providing the following relief:  (1) Barilla would pay up to $450,000 in fees to class counsel and the named plaintiffs; (2) all class members would release Barilla from future claims; and (3) Barilla would include a minimum “fill-line” on its boxes in the future, showing how much pasta was contained inside, along with language on the boxes about how its pasta is sold by weight rather than volume.  Under the agreement, then, the only relief provided to the entire class was the “fill-line” and disclaimer language changes to Barilla’s boxes, both of which constitute injunctive relief.