Wednesday, September 08, 2021

Coffee lawsuits brewing

Two cases, suggesting a newly discovered litigation vein.

Ashton v. J.M. Smucker Co., No. EDCV 20-992 JGB (SHKx), 2020 WL 8575140 (C.D. Cal. Dec. 16, 2020)

Plaintiffs alleged that representations on the front of Folgers ground coffee cans, including “MAKES UP TO 240 6 FL OZ CUPS,” “MAKES UP TO 210 6 FL OZ CUPS,” and “MAKES UP TO 360 6 FL OZ CUPS,” were false in violation of NY and California laws.

On the back of all the products, Defendants instruct consumers that they should use one tablespoon of ground coffee to make one serving/cup of coffee. Based on standard measurements, Plaintiffs allege that Defendants grossly overstate the number of servings the Products can make. For example, Defendants represent that the 30.5 oz canister “MAKES UP TO 240 6 FLZ OZ.” However, to make 240 servings, 240 tablespoons (or 1200 grams) of ground coffee are needed. However, the 30.5 oz canister only has 865 grams of ground coffee, 72% of the amount of ground coffee needed to make up the represented amount of cups…. On average, the 39 different varieties of Products at issue contain enough ground coffee to make only 68.25% of the servings promised on the packaging.

Did plaintiffs suffer cognizable injury? They alleged that they “would have paid significantly less for the Products had [they] known that the Products did not contain enough ground coffee to make the represented number of cups of coffee.” This was sufficiently concrete and particularized injury. They need not allege that they actually attempted to make the represented servings, because they alleged uniform underfilling. And they alleged standing for injunctive relief because “they would like to continue purchasing the Folgers ground coffee products because they like the taste.”

Deception was also plausible. “While it is certainly possible that consumers would understand that the Products could make up to the stated servings by using less ground coffee than recommended per cup, it is also possible that consumers would expect to be able to make the represented servings following the recommended brewing instructions.”

Breach of warranty claims also survived, because the “makes up to” representations were plausibly affirmations or promises about the number of cups that could be made.

Defendants sought dismissal of nationwide class allegations, arguing that applying California’s laws to a nationwide class would violate their due process rights. This was better resolved at the certification stage, since defendants would have to show material differences in the treatment of this specific claim; precedent does not hold that “nationwide classes are, as a matter of law, uncertifiable under California’s consumer protection laws.”

Lorentzen v. Kroger Co., 2021 WL 1573719,  No. 2:20-cv-06754-SB-RAO (C.D. Cal. Apr. 2, 2021)

Kroger’s private label coffee says on the front that it “makes about” a specified number of cups of coffee (e.g., “Makes About 225 Cups”). Instructions on the back of the packaging direct consumers “to use the following measurements: ‘[o]ne rounded tablespoon of coffee for each 6 fl oz. of cold water’ or ‘1/2 cup of coffee for every 10 servings.’ ” Lorentzen alleged that, if you did that, you get “a 47-54% deficiency in the total number of servings per canister when following the single serving instructions.” She brought the usual California statutory claims.

Rejecting most other California courts’ reasoning, the court didn’t allow her to represent a class of purchasers of other sizes/flavors of the coffee, even if it had the same allegedly misleading representations. “Substantial similarity,” the court thought, was “inconsistent with the basic concept of standing,” even though by definition every consumer bought a different bag of coffee with a different iteration of the allegedly false claim on it; I don’t see why this reasoning doesn’t make the class action form unconstitutional (and perhaps that is coming next). She couldn’t bring claims based on false advertising on which she did not rely. She couldn’t suffer injury based on products she didn’t buy. (Again, including other bags of the same product in the same size, which she also didn’t buy.)

For the size/flavor she did buy, she plausibly pled deception and injury.

“Even with the ‘qualifying language’ about a consumer’s preference for his or her ‘desired strength’ of coffee, the Court cannot say as a matter of law that a reasonable consumer would expect the yield to be cut in half when brewing coffee as instructed.” Likewise, a reasonable consumer might not rely on the weight disclosed on the front label to figure out the truth. This wasn’t an “up to” claim about wi-fi speeds, which can be expected to vary, but a representation about a specific number of cups from a product with a defined amount in a package, and it wasn’t a case of missing by a few but by nearly half.

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