materiality survey is in--even with 20 industry employees as respondents

Multiple Energy Technologies, LLC v. Under Armour, INC., 2025 WL 82336, No. 2:20-CV-664-NR (W.D. Pa. Jan. 13, 2025)

MET sued Under Armour for multiple things, including false advertising, and here MET sought to exclude the testimony of Under Armour’s consumer survey expert Hal Poret, but the court allowed it to rebut MET’s survey expert Thomas J. Maronick and “to design and conduct a survey to test whether the relevant FDA claims influence consumer decisions to purchase Under Armour’s products that contain Celliant.” Poret would testify that his “survey utilized a classic experimental design consisting of a Test Group and a Control Group, each consisting of 300 unique respondents.” Participants assigned to both groups viewed three Under Armour web pages. The first two pages were identical between the groups. On the third page, however, the test group saw “Products powered by Celliant have been determined by the FDA to increase localized circulation, leading to faster recovery[,]” while the control saw “Products powered by Celliant can lead to faster recovery.”

test image: determined by the FDA to increase localized circulation, leading to faster recovery

control image: can lead to faster recovery

Respondents were then asked: “Based on the webpage you just reviewed, how likely or unlikely would you be to purchase apparel from the advertised product line?” They were offered eight options from “extremely likely” to “extremely unlikely[,]” and ending with “don’t know[,]” (order flipped for half). Then they were asked an open-ended question: “Please tell us all the reasons why you would be __________ to purchase the product we showed you?” Poret concluded that the FDA claim had no statistically significant influence on consumer purchase decisions.

The court found that the report and testimony were relevant and “fit” the case. It didn’t matter that he didn’t test for deception, since his opinion went to materiality, which was also at issue. He used Under Armour ads, changing only the allegedly false FDA claim, making it connected to the question at issue, and so his testimony would help the jury. “Any lingering issues with Mr. Poret’s survey design—like the fact that what influenced survey participants could have been a reference to ‘recovery[,]’—are not grounds for exclusion but fodder for cross-examination.” Alleged flaws in the survey design went to weight rather than admissibility.

MET argued that the control language, “Products powered by Celliant can lead to faster recovery[,]” was improper because it “removed the majority of the language contained in the FDA Claim”—including any reference to the FDA—“and substituted in a word not included in the original FDA Claim.” But it was the statement “that the FDA found the Celliant product benefitted the wearer” that was at issue here, so it wasn’t improper to remove the reference to the FDA. And the deletion of “to increase localized circulation” was defensible, as that language—stating what the FDA determined—was tied to the FDA claim in the test stimulus. Using “can lead to faster recovery” rather than “leading to faster recovery” wasn’t a material wording change; it went to weight rather than admissibility, as did Poret’s decision not to use funneling questions to confirm that participants reviewed the FDA claim language. “In fact, the open-ended question revealed that at least three respondents viewed the FDA claim and found that it impacted their likelihood of purchase.”

The court was also untroubled by his failure to exclude 20 survey respondents who were employees of companies making athletic apparel (including 5 of Under Armour), which does seem a bit dodgy, but that went only to weight. “MET and its expert can certainly explain MET’s issues with Mr. Poret’s analysis and why its survey expert’s opinion is better.”