“Oodles” of Evidence Support Marketing Professor’s Opinion in Class Action False Advertising Suit
If one takes as true the allegations in recent federal court false advertising complaints, then consumers are being duped at every turn by any number of corporate capers. “Crafty” beer manufacturers, purveyors of “all natural” products, and peddlers of misnamed coffee products are just a few recent examples of those that have supposedly hoodwinked unsuspecting consumers. Despite all of this widespread trickery and deceit, many false advertising class actions suits fail (at certification or otherwise) for want of class-wide proof of deception. Suchanek et al v. Sturm Foods brewing in the U.S. District Court for the Southern District of Illinois, however, is not one of them.
In this case, Plaintiffs claimed Defendants marketed their Grove Square single serving coffee pods as “premium, ground coffee” when, in truth, the products were “95% instant coffee.” Displeased at this alleged bait and switch, Plaintiffs sued on behalf of themselves and all of those consumers who thought they would be sipping a premium brew as a result of Defendants’ representations.
At the class certification stage, plaintiffs proffered the testimony of Bobby Calder, a marketing professor from Northwestern University. Professor Calder opined that “[a] reasonable consumer would have been led to falsely believe that [the product] contained regular ground coffee” and that Sturm’s “plan for marketing the product was at its heart intended to distract consumers from realizing that the product quality or standard was instant coffee and not regular ground coffee for brewing.”
Notably, Professor Calder did not base this portion of his opinion on the results of a consumer survey, a fatal flaw that Defendants claimed made his opinion inadmissible under Daubert. The court disagreed and found “oodles” of evidence upon which the Professor based his opinion. For example, the Defendants’ own market research revealed that consumers disliked “instant” coffee and, therefore, Defendant assiduously avoided using that descriptor on the product label. There were also “hundreds” of complaints from disgruntled consumers variously describing that they felt “disappointed, dissatisfied, displeased, disgusted, swindled, robbed, cheated, ripped off, duped, and misled” by Defendant. These pieces of evidence were sufficient to support Professor Calder’s opinions without the need to present a survey showing consumers were deceived. Based in part on Professor Calder’s opinion, the court granted Plaintiffs’ class certification motion.
Conventional wisdom holds that consumer surveys are the best way to gauge real world marketplace conditions in trademark and false advertising cases. But Suchanek v. Sturm Foods shows that there may be instances where a court would be persuaded that a survey is simply not necessary to establish potential class-wide deception. I hope this short discussion was of some interest. If nothing else, this post and 25 cents should get you a cup of your favorite instant coffee. Enjoy!
