Monday, December 23, 2019
By a MetNews Staff Writer
A putative class action was reinstituted by the Ninth U.S. Circuit Court of Appeals on Friday, with a panel holding that a plausible claim is stated that the canned “Doubleshot Espresso” is misleadingly labeled because it contains less caffeine than two shots of espresso at a Starbucks coffeehouse.
The Ninth U.S. Circuit Court of Appeals on Friday reinstated a putative class action against Starbucks in which it is claimed that its canned “Doubles hot Espresso” does not, contrary to appearances, contain two shots of the same espresso brew sold at its coffeehouses.
A memorandum opinion reverses the dismissal, for failure to state a cause of action, ordered by Chief District Judge Virginia A. Phillips of the Central District of California.
Plaintiffs Oliver Naima and Thomas Wessel contend that according to tests, two shots of espresso bought at a Starbucks coffeehouse has 136.3 mg. of caffeine while a can of the beverage has only 120 mg. of caffeine.
The opinion declares:
“Plaintiffs have plausibly alleged that the product’s label conveys the implied representation that each can of the beverage contains two shots of espresso brewed from the same beans Starbucks uses in its cafés. The canned beverage is labeled ‘Starbucks Doubles hot Espresso’ and features the familiar Starbucks logo. During the relevant period, Starbucks used the same espresso roast in all of its espresso beverages worldwide.”
“In addition, Plaintiffs alleged that a national survey of 400 consumers of the canned beverage found that 89% of them believed that it contains two shots of Starbucks brand espresso. Contrary to the district court’s conclusion, Plaintiffs were not required to allege additional details concerning the contents and reliability of the survey in order for the allegations concerning the survey’s results to be credited as true at the motion-to-dismiss stage.”
Amounts of Caffeine
Starbucks argued that a comparison of the amount of caffeine in two shots of espresso sold at one of the chain’s outlets and the content of a can is meaningless because a different process is used in preparing the beverages. But, the opinion says, the validity of that explanation “is far from obvious “and that if it is valid, “it will need to be proved.”
The judges did, however, find fault with the pleading. The opinion says:
“The complaint alleged that Plaintiffs paid a price premium for the canned beverage. That said. Plaintiffs did not allege how much they paid for the beverage, how much they would have paid for it absent the alleged deception, whether Starbucks (as opposed to a tliird-party distributor) was responsible for any overpayment, or any other details regarding the price premium. The bare recitation of the word ‘premium’ does not adequately allege a cognizable injury….Because it is not clear that amendment would be futile. Plaintiffs should be afforded an opportunity on remand| to amend their complaint to allege the necessary factual details concerning the alleged price premium they paid.”
The case is Naima v. Starbucks Corporation, 18-55975.
Comprising the panel were Circuit Judges N. Randy Smith and Paul J. Watford, joined by District Court Judge Alvin K. Hellerstein of the Southern District of New York, sitting by designation.
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