Surveys play an increasingly important role in consumer class actions, whether used to deny class certification, defeat plaintiffs’ allegations of consumer “deception,” or even refute damages arguments.

Recently, beverage giant Starbucks Corp. defeated a proposed class action alleging that Starbucks had violated consumer protection statutes in California, Florida, and New York by uniformly filling its lattes and mochas with more foam – and less actual beverage – than a reasonable consumer would expect. In dismissing the case on summary judgment and denying class certification as moot, U.S. District Judge Yvonne Gonzalez Rogers for the Northern District of California focused on the plaintiffs’ flawed survey results. Strumlauf et al. v. Starbucks Corp., No. 16-CV-01306-YGR, 2018 WL 306715 (N.D. Cal. Jan. 5, 2018). The plaintiffs had introduced an expert report presenting the results of two surveys purporting to show that 70-80% of consumers expected that the “Promised Beverage Volume” of Starbucks lattes did not include foam. The first survey showed respondents a sample menu board with small, medium, and large and asked how many fluid ounces of beverage they expected to receive. This survey was flawed, the court found, because it did not measure consumers’ understanding of what “fluid ounce” means. The second survey showed images of a cup with varying amounts of fluid and foam and then asked which “medium 16 fl. oz. beverage” the respondents expected to receive. This survey, too, fell short because it showed a “caricatured image” and “the ‘question begg[ed] its answer [and was] not a true indicator of the likelihood of consumer confusion.’” In sum, the Court attacked the surveys as “leading and suggestive” and ultimately found they failed to establish a triable issue on consumer deception.

Last year, a different beverage company used surveys to its advantage in a purported class action but for a different purpose: to defeat class certification. The consumers in that litigation alleged that the maker of 5-Hour Energy violated consumer protection statutes in six different states by deceptively claiming that 5-Hour Energy provides “hours of energy” when it actually provides only a few minutes. In re 5-Hour Energy Mktg. & Sales Practices Litig., No. ML132438PSGPLAX, 2017 WL 2559615, at *7 (C.D. Cal. June 7, 2017), reconsideration denied, No. ML132438PSGPLAX, 2017 WL 4772567 (C.D. Cal. Aug. 11, 2017). In opposing class certification, the defendants introduced expert testimony based on online survey results showing that only 2.2% of 5-Hour Energy consumers relied on the challenged statements when making their initial purchase. The surveys also indicated that the “hours of energy” claim had little effect on subsequent purchases, which were instead driven by consumer satisfaction or dissatisfaction with the product itself. The defendants leveraged these survey results to argue that the claims at issue were not uniformly material to all class members, and thus that individual issues predominated over common ones. The Court agreed and denied class certification, finding that “[w]ithout a market survey documenting consumer preferences, Plaintiffs ha[d] not shown that the ‘five hour energy’ representation [was] material to consumers as compared to other factors.”

Surveys can benefit consumer goods companies and class action defendants alike, as they can be used both as a sword when demonstrating that consumers did not rely on challenged statements when making a purchase, and as a shield when attacking plaintiffs’ misleading expert testimony attempting to show consumer confusion—especially where, as in the Starbucks case, the plaintiffs’ surveys are poorly designed or contain leading questions. Given the high stakes of consumer class action litigation, it definitely pays to “survey” all options for defeating such claims, whether at class certification, summary judgment, or trial.