Monday, January 28, 2019

Week 4 - Does ginger ale contain real ginger?

Julie Fletcher v Dr. Pepper Snapple Group
Case number 1:18-cv-00766 -EAW
Western District of New York

Ms. Fletcher alleges that ginger has a well-known health benefit of calming an upset stomach, and she therefore purchased Canada Dry Ginger Ale for her children because it was a healthier alternative to soda.

Her lawsuit, filed in New York federal court in July 2018, alleges false advertising because Canada Dry ginger ale actually contains no ginger.  The front of the label says “Made from Real Ginger” but the ingredient list on the back of the label does not contain the word ginger.

The label does contain the words “natural flavors” and one of the natural flavors is ginger flavor extract.  Therefore, the company alleges that the product is made from real ginger.  Ms. Fletcher alleges that the amount of ginger in the finished product sold to consumers is 2 parts per million, a miniscule amount that would provide no health benefits.

The Made From Real Ginger ad campaign began in 2007 and in the first 6 months thereafter, sales rose by 9%.

“DPSG prominently made the claim ‘MADE FROM REAL GINGER’ on the front label panel of all of its Canada Dry Ginger Ale cans and bottles because its marketing research revealed that the claim would cultivate a wholesome and healthful image for Canada Dry and promote the sale of its soft drink in a market environment where consumers were fleeing ‘regular’ sodas due to increasing concerns about the health problems they cause.”

Rather than fighting the case [which is time consuming and expensive], the company decided in January 2019 to offer a settlement, including removing the “made from real ginger” label and advertising, and a payment to “injured consumers” of $5.20 per household if you don't have proof of purchase, or $40 per household if you do have proof of purchase.

Monday, January 21, 2019

Week 3 – Hold the cheese, reduce the price?

Kissner v McDonald's
Case number 18-cv-61026-WPD
Southern District of Florida 

On the McDonald's app, you can order a Quarter Pounder with cheese or without cheese.  If you go inside a McDonald's store, you only have the option of buying the Quarter Pounder with cheese.  Sure, you can customize and request it without cheese, but you won't receive a reduced price.

Two Florida customers didn't like that.  On May 8, 2018, they filed a class-action lawsuit against McDonald's for $5 million.  “McDonald's practices of forcing customers to pay for cheese they do not receive as a condition of purchasing a Quarter Pounder ...” is alleged to be a violation of several laws.

On November 2, 2018, the court dismissed the lawsuit, noting that Plaintiffs claimed McDonald’s had been unjustly enriched “to the extent of the amount it receives for cheese that is not delivered to its customers. First, this allegation is nonsensical as the cheese 'not delivered' to the customer has been requested by that customer to not be delivered ...”

“If a particular McDonald’s restaurant does not list an item on its counter or drive-through menu, and a customer placing his order at the counter or drive-through requests a customization of the offered product, a customer is not being deceived or otherwise treated unfairly by not being charged less.”

Bottom line – the price includes certain ingredients.  The customer can choose to remove some of those ingredients, but it's not illegal for the price to remain the same.

South Florida Sun-Sentinel

The Legal Intelligencer

Monday, January 14, 2019

Week 2 - How big is a piece of 4x4 lumber?

Abramov v Home Depot
Case number 1:17-cv-01860
Northern District of Illinois

How big is a piece of 4x4 lumber?

If you said 4x4, you'd be wrong. The term 4x4 refers to the size when it's originally rough-cut from the tree.  Once it's planed [smoothed], it measures 3-1/2 x 3-1/2.

This has been the industry standard since at least the 1950s, if not for the past 100 years.

So if you actually bought a board that was 4” x 4”, it wouldn't fit where you intended to put it.  Which proves that the Plaintiff who filed the lawsuit against Home Depot in 2017, claiming the store falsely advertised the dimensions of its boards, did not actually intend to build anything with the $5 million the lawsuit demanded.

A similar lawsuit against Menards was dismissed in September 2017.

On March 12, 2018, a federal court dismissed [threw out] the lawsuit against Home Depot.  The judge said the term “4x4” would not have misled a reasonable consumer.  Which implies that these two Plaintiffs were not … well, you get the idea.

Monday, January 7, 2019

Week 1 - Starbucks class action - underfilled lattes

Strumlauf, et al. v. Starbucks Corp. 
Case No. 4:16-cv-01306-YGR,
US District Court for the Northern District of California

Class-action lawsuit filed in 2016 alleges false advertising – Starbucks underfills its lattes by 25% and overfills with foam, thereby overcharging its customers.  The lattes are advertised as 12 ounces, 16 ounces, and 20 ounces, but the lawsuit alleges that they routinely and intentionally fall short of that measurement.  The lawsuit claims Starbucks did this to save money on milk, its most expensive ingredient.

Click here to read the actual lawsuit

Click here for an article about the lawsuit

On January 5, 2018, the federal court dismissed the lawsuit, or in lay-person words, the case was thrown out.  The judge wrote that (1) heated milk expands, and its expanded volume met the advertised measurement, and (2) people who buy lattes expect them to contain foam on the top.

Another current Starbucks lawsuit:

The Starbucks “All Natural” Gummies Class Action Lawsuit
Starbucks deceives customers into believing that their gummy snack packs are made with “all-natural” flavors as opposed to artificial flavoring.
Sandra Brown v. Starbucks Corp.

Case No. 3:18-cv-02286
US District Court for the Southern District of California
Filed October 3, 2018
Click here to read the actual lawsuit