Tuesday, March 13, 2018
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Ninth Circuit:
Starbucks Doesn’t Cheat Purchasers of Iced Drinks
Three-Judge Panel Rejects Contention That 12-Ounce Iced Coffee Should Have 12 Ounces of Liquid
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday, affirming the dismissal of an action against Starbucks, laughed off the contention that a consumer expects a 12-ounce iced coffee to contain 12 ounces of beverage, with the ice not being included.
Claims under California statutes—the Consumer Legal Remedies Act, the Unfair Competition Law, and the False Advertising Law—fail, a three-judge panel said in a memorandum opinion, because “no reasonable consumer” would view it as plaintiff Alexander Forouzesh does.
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The Ninth U.S. Circuit Court of Appeals yesterday affirmed a district court order dismissing an action that claims Starbucks puts too little beverage in its iced drinks. |
The opinion goes on to say:
“The fraud claim fails for the same reason because (even assuming that there was a representation) justifiable reliance is absent….
“The claim for breach of express warranty fails because the complaint contains no allegation that Defendant promised that the iced drinks in question would contain a specific amount of liquid, as distinct from a total amount of liquid and ice.”
The panel said the district judge—Percy Anderson of the Central District of California—did not abuse his discretion in denying leave to amend because amending the complaint “would have been futile.”
Order of Dismissal
Anderson said in his Aug. 19, 2016 order of dismissal:
“Plaintiffs’ claims that a reasonable consumer would be deceived into believing that Defendant’s Cold Drinks contain 12 ounces of beverage excluding ice for a ‘Tall,’ 16 ounces of beverage excluding ice for a ‘Grande,’ 24 ounces of beverage excluding ice for a ‘Venti,’ and 30 ounces of beverage excluding ice for a ‘Trenta.’ But as young children learn, they can increase the amount of beverage they receive if they order ‘no ice.’ If children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive, the Court has no difficulty concluding that a reasonable consumer would not be deceived into thinking that when they order an iced tea. that the drink they receive will include both ice and tea and that for a given size cup. some portion of the drink will be ice rather than whatever liquid beverage the consumer ordered.”
The action was filed by Forouzesh in Los Angeles Superior Court on May 25, 2016. Starbucks, which is incorporated and headquartered in the State of Washington, removed the case six days later to federal court based on diversity of citizenship.
Starbucks moved for dismissal; Forouzesh responded; and Anderson dismissed the case without oral argument.
The case is Forouzesh v. Starbucks Corp., No. 16-56355.
Similar Cases
Two other District Court cases brought against Starbucks, on similar bases, cite Anderson’s 2016 opinion in CV 16-3830.
On Jan. 5, U.S. District Court Judge Yvonne Gonzalez Rogers of the Northern District of California granted summary judgment in favor of Starbucks in a putative class action claiming that the company uniformly underfills its lattes. She wrote:
“According to plaintiffs, the ‘foam added to the top of Starbucks Lattes does not count toward the volume of its beverages’ because ‘foam is not measured on a volumetric basis.’…Plaintiffs’ argument fails in light of plaintiffs’ own allegation that milk foam is a component of a Latte.”
Rogers observed that the opinion in Forouzesh “is instructive,” declaring:
“Just as a reasonable consumer would not be deceived into believing that cold drinks contain the Promised Beverage Volume excluding ice, no reasonable consumer would be deceived into believing that Lattes which are made up of espresso, steamed milk, and milk foam contain the Promised Beverage Volume excluding milk foam.”
The case is Strumlauf v. Starbucks Corporation, No. 16-cv-01306.
A similar suit filed in U.S. District Court for the Northern District of Illinois was dismissed on Oct. 14, 2016, by Judge Thomas M. Durkin. There, plaintiff Steven Galanis put forth contentions paralleling those of Forouzesh.
Durkin recited:
“The cups in which Starbucks serves its ‘iced’ drinks are made of clear plastic. The cups are also marked with black lines that delineate the amount of coffee, tea, or other beverage a Starbucks employee is supposed to pour into the cup….The employee then fills the rest of the cup with ice….Galanis alleges that ‘in essence, Starbucks is advertising the size of its...cups on its menu, rather than the amount of fluid a customer will receive when they purchase [an iced coffee, iced tea, or iced blended specialty drink]—and deceiving its customers in the process.’ ”
The judge responded:
“The heart of Galanis’s claims is that if Starbucks advertises an ‘iced’ drink as containing 24 fluid ounces, the drink ‘should have 24 ounces of fluid plus ice… (emphasis in original). But as Starbucks points out, ‘no reasonable consumer ordering an iced tea expects to receive a cup of tea with a side of ice. Rather, a reasonable consumer ordering an iced tea would expect to receive the advertised amount of the beverage, which is, as its name plainly states, comprised of both ice and tea.’ ”
That decision quotes Anderson’s remark about children being able to figure out that they can get more beverage by ordering no ice.
Durkin’s ruling came in Galanis v. Starbucks Corporation, No. 16 C 4705.
Copyright 2018, Metropolitan News Company