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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.

Continue Reading Surveys Seal the Deal in Defeating Starbucks and 5 Hour Energy Class Actions

Baker’s dozen = 13 (not 12)

Easy.

Foot = 12 inches (the length of the average man’s foot)

Of course. I learned this in the second grade.

2 by 4 = 1.5 inches by 3.5 inches  

What?

4 by 4 = 3 ½ inches by 3 ½ inches

No way.

5/4 inches by 4 inches = 1 1/8 inches by 3 ½ inches

Mind. Blown… unless you’re a carpenter or in the construction industry.


In the United States, softwood lumber is governed by the American Softwood Lumber Standard which was developed by the American Lumber Standard Committee, in accordance with the Procedures for the Development of Voluntary Product Standards of the U.S. Department of Commerce. That’s a mouth full. However, the lumber standard is a government-approved codification of longstanding industry practices. And, while dimensional lumber is cut to a specific length, width, and depth, there is a difference between the nominal size (what the lumber is referred to) and its actual size.

Continue Reading Who “Wood” Have Thought? Plaintiffs Challenge Longstanding Lumber Labeling Practices

On June 19, 2017, the U.S. Supreme Court issued a decision clarifying the circumstances in which a lawsuit “arises out of” or “relates to” a corporation’s contacts with a particular jurisdiction, such that it can be sued there. In Bristol-Myers Squibb Co. v. Superior Court, writing for an 8-1 majority, Justice Alito held that California state courts do not have jurisdiction to hear the product liability claims of non-California residents against Bristol-Myers Squibb Co., a foreign corporation. The Court reasoned that the nonresident plaintiffs “do not claim to have suffered harm in that state” from their use of BMS’ drug Plavix, and “all the conduct giving rise to the nonresidents’ claims occurred elsewhere.” The Supreme Court found insufficient BMS’ substantial sales in California, including through its use of 250 sales representatives in that state.

Continue Reading U.S. Supreme Court: Shaping the Personal Jurisdiction Landscape in Product Liability Cases

Sale Sign 3
Daniel O’Neill (Flickr)

There’s a new tool for deceptive pricing class actions challenging “up to __%” savings promotional messaging:  A new lawsuit filed in New Jersey alleges that the clothing retailer’s “up to _% off” promotional messaging violates New Jersey’s consumer protection laws. The plaintiff sued Jos. A. Bank under the New Jersey Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), N.J. Stat. § 56:12-15. This once-forgotten statute has recently been in the limelight, invoked in numerous class actions due to its generous civil penalties provision providing “not less than $100.00 or for actual damages, or both” at the choice of the consumer, plus attorney’s fees. See N.J. Stat § 56:12-17.

Continue Reading A New Twist on a Familiar Theme: NJ Lawsuit Targets Retailer’s Savings Claims, Seeking Damages Under Once Obscure Statute

© iStock
© iStock

Last month, our colleague Joshua Foust analyzed the then-newly introduced Fairness in Class Action Litigation Act of 2017.  The bill, sponsored by House Judiciary Chairman Bob Goodlatte (R-VA), amends procedures used in federal court class action and mass tort litigation.  Last week, on March 9, just one month after Chairman Goodlatte (R-VA) introduced the bill, the full House of Representatives passed the bill by a vote of 220-201.  The legislation will now be considered by the Senate.   

Now that the bill has passed the House, we have drafted an alert providing additional analysis. Click here to read the alert on Crowell.com or read below.

The U.S. House Sets Out To Reform Class and Mass Actions

Continue Reading Update: Class Action Reform Bill Passes House 220-201

Photo credit: Getty Images
Photo credit: Getty Images

Just a week before Congress began its first extended recess of 2017, the Chairman of the House Judiciary Committee took a step towards dramatically changing the landscape of class action litigation. On Thursday, February 9, Representative Bob Goodlatte (R-Va.) introduced a bill (H.R. 985) that would “amend the procedures used in Federal court class actions” by adding a number of new hurdles to class certification in federal court.

Chairman Goodlatte was a principal author of the Class Action Fairness Act of 2005, which considerably expanded federal diversity jurisdiction over interstate class actions. He was also behind another class action reform bill introduced in 2015 that failed to clear the Senate. His new bill, dubbed the Fairness in Class Action Litigation Act of 2017, is in much the same vein—and, if passed, would represent the most sweeping revision of federal class action law to date.

Highlights from the bill:
Continue Reading Class Dismissed? New House Bill Could Transform Federal Class Action Law

Sugar Cane

In a long-awaited pronouncement, on May 25, 2016 the Food and Drug Administration issued its final guidance recommending that food and beverage manufacturers discontinue their use of the term “evaporated cane juice” (ECJ) to refer to sweeteners extracted from sugar cane. As the agency explained, “the use of ‘juice’ in the name of a product that is essentially sugar is confusingly similar to the more common use of the term ‘juice’”—which FDA regulations define as a liquid, puree, or concentrate derived from “one or more fruits or vegetables.”

When the FDA first issued this Guidance, many questioned whether it would reinvigorate a genre of litigation that had recently grown quiet: class actions alleging that the use of “ECJ” on product labels and packages misled consumers. Now, thanks to the Northern District of California’s July 27 decision in Reese v. Odwalla, Inc., the answer is becoming clearer: the ECJ class action is due for a comeback.
Continue Reading Would “Juice” by Any Other Name Taste as Sweet? Court Cites FDA Guidance in Resuscitating “ECJ” Class Action

On July 26, 2016, FDA issued an updated warning on beauty products, warning consumers to avoid certain “skin creams, beauty and antiseptic soaps, and lotions,” particularly those boasting “anti-aging” or “skin lightening” benefits, as potentially containing mercury.  While the dangers of mercury exposure are well-known, mercury’s ubiquity in certain beauty products is not.  Products that claim to “remove age spots, freckles, blemishes, and wrinkles,” including products targeting teenagers enduring acne, may contain mercury.  Checking the label can help—look out for words like “mercurous chloride,” “calomel,” “mercuric,” “mercurio,” or of course, “mercury”, but it’s not fool-proof.  As FDA points out, many of these beauty products are often made abroad and can be sold illegally in the U.S., without any labels. FDA continually monitors products like these, but is unable to catch all of them, especially due to their dubious channels of trade.  For those that FDA does catch, FDA sets up an import alert to prevent future influxes of such products.  Check here for all Consumer Updates from FDA.  Thus, retailers should do their due diligence to know what the chemical content is of the products they sell beyond the labels.

In its warning, FDA again mentioned one of its growing complaints levied against cosmetics – that the product may actually be an unapproved new drug under the law.
Continue Reading Beauty with a Side of Mercury?

One week before the Vermont GMO labeling law will take effect, a bipartisan bill requiring mandatory labeling for products containing genetically modified ingredients has been agreed to by Senate AG committee ranking member Debbie Stabenow (D-MI) and Committee Chairman Pat Roberts (R-KS).  The bill, which would require the Secretary of Agriculture to establish a national disclosure standard for bioengineered foods, will need to be passed in the Senate and the House of Representatives, and would go into effect two years after passed.  If successful, the new law would specifically preempt all state GMO labeling laws and would prevent the feared patchwork of conflicting state labeling laws.

The bill has a narrow definition of genetic engineering — traits developed through in vitro recombinant DNA techniques, which could not be obtained through conventional breeding or found in nature.  It excludes food served in a restaurant and food derived from animals that consumed genetically modified feed.  The Secretary would be responsible for establishing a specific regulation setting forth the amount of a genetically modified substance that would require labeling.
Continue Reading A New Federal GMO Labeling Standard in the Works?

In Spokeo, Inc. v. Robins, the U.S. Supreme Court has issued yet another narrow decision—apparently designed to avoid a 4-4 deadlock—in another hard-fought, potentially divisive case on its docket this term. On May 16, 2016, the Court held 6-2 that the Ninth Circuit had erred in not asking whether plaintiff Robins had alleged that he suffered a “concrete” harm—actual, rather than hypothetical, damage—as a result of statutory violations by defendant Spokeo.

In reaching this decision, the Court reaffirmed that plaintiffs bringing class actions in federal court must do more than allege a “mere technical violation” of a statute or regulation. In order to demonstrate that they have a real stake in the case—or “standing”—as required in federal court by Article III of the Constitution, they must also explain how the violation in question caused them real harm. At the same time, however, the majority was careful to point out that, “in some circumstances,” plaintiffs could base standing on procedural or technical violations if coupled with a “real risk of harm.” And the Court remanded the specific question of whether Robins himself had alleged that he suffered real harm as a result of Spokeo’s technical violations.

In sending the case back to the Ninth Circuit, then, the Court left the deeper issues in the case unresolved—inviting further litigation over what its holding means in specific cases.Continue Reading Keeping It “Real”: Supreme Court Holds That Consumers Must Allege Real Harm