The “hot coffee” case against McDonald’s still comes to mind when the topic of “frivolous lawsuits” is brought up, even though, in case you missed it, there was more to the story
and it was not so frivolous at all. Interestingly, in both civil jury trials I have handled, one of the potential jurors mentioned it when I asked in voir dire (jury selection) if any of the potential jurors thought there were “too many frivolous lawsuits.” One guy responded who raised his hand explained as follows: “Well, I guess the best example would be the McDonald’s case.” As a side note, I am fairly convinced he thought that would be a clever way to get out of jury duty. In the other case, when a woman brought it up, the Judge chimed in and said “Now wait a minute…” and went on to explain some of the details of the case.
Now there is a “cold coffee” lawsuit, which is on a much bigger scale and may prove to be far more frivolous than the McDonald’s lawsuit.
Stacy Pincus, a Chicago woman, is suing Starbucks for allegedly misleading its customers by advertising that their cold beverages have a certain number of ounces of beverage, whereas in reality they have fewer fluid ounces of the actual beverage
because some space is taken up by ice. Her lawsuit alleges, for example, that an iced beverage advertised at 24 ounces only contains about 14 ounces of fluid, and that “ice isn’t a fluid or beverage…A Starbucks customer who orders and pays for a cold drink receives much less than advertised — often nearly half as many fluid ounces.” Her lawsuit alleges that the practice is “by design and corporate practice and procedure.”
“Ice is not a ‘fluid,’” the lawsuit insists. “Water expands when frozen.” As a result, she alleges, when the ice melts the customer ends up with fewer measured fluid ounces of the beverage they ordered. She contends that someone buying a Venti iced coffee at Starbucks isn’t waiting for the ice to melt to then have 24 ounces of latte and melted ice; they expect 24 ounces of cold brew. “Essentially, Starbucks is not only underfilling its Cold Drinks compared to how they are advertised, but it is charging a premium price for them as well,” the suit reads. The Plaintiff is trying to turn the case into a class-action lawsuit, on behalf of every single person who bought any cold beverage from Starbucks from 2006 to the present.
Here are some issues with this lawsuit:
1. Starbucks may not be acting unfairly, deceptively or fraudulently, the basic requirement to prove violation of state “Unfair and Deceptive Acts and Practices” (UDAP) laws. The liquid ounce listing may refer to the cup size, not the amount of beverage. People generally understand that “ice is an essential component of any ‘iced’ beverage,” Starbucks spokesperson Jaime Riley was quoted as saying. The exact amount/volume/weight of ice in a cold beverage will also vary from drink to drink, obviously. Presumably, no one would expect there to always be the same exact amount of ice, to a T, in every drink. Furthermore, Starbucks will “gladly remake” a customer’s drink if they are unhappy with it for any reason, including too much ice, Riley says, and anyone who has ever gone to Starbucks probably knows this is true.
2. There may be a “reliance” issue. In lay terms, to prove fraud you have to prove, among other things, reliance, i.e., that you reasonably relied on the statement you are alleging was fraudulent, and that you suffered damages as a result
. To put this into context, if you buy a front-wheel drive car from a car dealer without knowing, caring or asking any questions about whether the car is front-wheel or rear-wheel drive, and you later (after
you bought the car) see an advertisement the dealer ran in the newspaper, which (falsely) lists the car as rear-wheel drive, you cannot sue the dealer for fraud. Is it false advertising? Yes. But did it affect your decision to buy the car? No, because you never saw it. So you cannot prove reliance. Starbucks may have a similar argument; most likely, people bought the drinks because they were thirsty and thought they tasted good, not because they believed they were getting 24 ounces of beverage. If someone had told them while they were standing in line, “Hey, the menu says 24 ounces but with ice it’s really only 14 ounces,” they probably would have bought the drink anyway. So there may not be reliance. It should be noted, however, that under many state UDAP laws (including the Ohio Consumer Sales Practices Act, though there is some dispute about this), reliance is not required.
Nonetheless, the Plaintiff(s) may be able to show that Starbucks is intentionally deceiving consumers. Maybe they think people are more likely to pay their high drink prices if they think they are getting more “drink.” Perhaps emails could be revealed where executives discuss putting the ounce sizes on the price list only because it results in higher sales, despite knowing it is not really the correct number of ounces for cold drinks. You never know.
It will be interesting to see how this plays out. I can see a lot of hurdles to class certification, but if a class were to be certified it would be a huge case involving millions of Plaintiffs. Similar lawsuits could follow in other industries, at the state and national level. At the same time, the case could also be dismissed. Only time will tell.
About the author: Alex J. Durst is a Cincinnati employment attorney, consumer protection attorney and divorce attorney with Croskery Law offices. He is licensed to practice in Ohio state courts and the United States District Court for the Southern District of Ohio, as well as other state and federal courts by permission on a case-by-case basis (most recently, Kentucky, the United States District Court for the Southern District of Indiana, Massachusetts and Florida). To contact Alex, call (513) 338-1947.