big coffeeFood Court Follies—A WLF Legal Pulse Series

Ed. Note: This is the first post for our blog by our newest Staff Attorney, Marc Robertson.

Without Jerry Seinfeld’s litigious (and fictional) attorney Jackie Chiles on the case, Siera Strumlauf and her co-plaintiffs did not stand a chance in California’s Food Court (the Northern District of California) in her “latte fraud” lawsuit. Judge Yvonne Gonzalez Rogers granted Starbucks’ motion for summary judgment in Strumlauf, et al. v. Starbucks Corp., holding the plaintiffs failed to raise a single triable issue of fact as to each of their eight claims.

Lead plaintiff Strumlauf alleged that Starbucks committed, among other wrongs, breach of express warranty, fraud, and false advertising by underfilling its lattes and mochas (collectively, “lattes”). If this case sounds familiar, it is because a little over a year ago the Central District of California dismissed a case alleging Starbucks misrepresented the specific number of ounces in an iced drink in Forouzesh v. Starbucks Corp. (discussed here). That argument failed, so it only made sense that the plaintiff (and her lawyers) raised the temperature in the fight against Starbucks.

Strumlauf and Starbucks agreed that all eight of the claims required a false or misleading representation. In ruling for Starbucks, Judge Gonzalez Rogers analyzed whether this common element was satisfied in any of the plaintiffs three theories of liability. Plaintiffs sought to prove

  1. the size of the cups Starbucks used for hot drinks (“Hot Cups”) exactly reflected the amount of drink she would receive;
  2. the milk foam in a latte is not an actual part of the amount of liquid promised to her; and
  3. the total volume of the ingredients used to make lattes was not the same as what Starbucks said she would get.

The court addressed each of these theories in turn and ultimately granted defendant’s motion for summary judgment on all three.

Cup Size

For reasons that should be obvious to any rational person, Starbucks uses cups for hot drinks that are slightly larger than the Tall (12 oz.), Grande (16 oz.), and Venti (20 oz.) servings they offer. Strumlauf asserted that the larger-sized Hot Cups misled her into thinking she’d be getting 14.5, 18.5, or 22.8 ounces (the respective cup sizes) of non-milk-froth liquid. Her expert witness opined that the cups were underfilled, while at the same time noting that the cups’ capacity was in fact larger than Tall, Grande, or Venti. That obvious contradiction made it easy for the court to toss out Strumlauf’s first claim.

Milk Foam Excluded

The second, and most patently absurd, theory of liability was that the “foam added to the top of Starbucks Lattes does not count toward the volume of its beverages.” In denying this claim and granting defendant’s motion, the court turned to Forouzesh and its reasonable-consumer analysis. There, the court found that a reasonable consumer knows that an iced drink will include ice. Similarly, in Strumlauf, the court found “no reasonable consumer would be deceived into believing the Lattes which are made up of espresso, steamed milk, and milk foam contain the Promised Beverage Volume excluding milk foam.” In fact, the plaintiffs’ complaint specifically alleged that milk foam is a component of a latte. When a reasonable consumer orders a latte at Starbucks, that person knows milk foam will be included in the size of the drink ordered.

Strumlauf went so far as to hire an expert witness to conduct a “consumer perception” surveys. That expert completely thumbed his nose at the federal rules of evidence by devising a classic “push poll.” He knew what the client needed to support her claim, and not-so-subtly guided the results in that direction.

The first survey presented consumers with a fabricated menu board that listed drinks such as “small 12 fl. oz.” and asked consumers (we’re not making this up) how many fluid ounces of the beverage they expected to receive. The second survey depicted two images of a cup with a line marking 16 fl. oz below the brim. One latte was filled beyond the line while was filled to the line, with the survey asking respondents which beverage they expected to receive. The surveys conspicuously did not use the typical Starbucks vernacular nor asked whether customers were aware of such vernacular.

Predictably, the court found both these surveys to be leading and suggestive by using the terms “fluid” and “fl. oz.” to ask how much fluid the customers expected to receive. There really is only one way to answer that question.

The court added an exclamation point to its rejection of the expert by concluding that expert testimony is not even needed to determine whether reasonable consumers believe a latte includes foam or not. Citing to two cases that have ruled on this issue, the court concluded that milk foam is unequivocally a component of a Latte. (Forouzesh, 2016 U.S. Dist. LEXIS 111701, at *7-8, Galanis v. Starbucks Corp., 2016 U.S. Dist. LEXIS 142380 (N.D. Ill. 2016).)

Blame Latte Production Methods

Finally in her third claim, Strumlauf argued the “Fill-To” lines on steaming pitchers Starbucks baristas use to make lattes fraudulently lead to underfilled drinks. Plaintiff also crunched the numbers listed on the “Beverage Recipe Cards” that instruct baristas and determined that it all added up to less than the promised amount. The glaring problem with that line of argument, though, is that the drink cards state the appropriate measurement for cold milk, whereas the plaintiff’s complaint specifically defines a latte as a “coffee made with espresso and steamed milk.” Oops. The court quickly dismissed that theory of liability.

Conclusion: “Egregious, Outrageous, Preposterous”

Arguably, the court could have, and should have, thrown this case out on at the motion to dismiss stage. The additional money Starbucks had to spend on its lawyers and on discovery, however, may end up being a worthy investment. Any copycat “latte fraud” class actions would be based on similar or the same evidence Strumlauf discovered and presented, which in the end wasn’t enough to overcome summary judgment. Judge Gonzalez Rogers’s opinion can be a powerful deterrent that prevents these cases from being filed in the future.

Such lawsuits potentially allow a single plaintiff, and a single judge, to force Starbucks and similar companies to undergo drastic changes to their production process or business model. Though the resulting court opinions may be entertaining to read, consumers will certainly not be smiling when the costs of such changes are imposed on them. Just as a reasonable consumer would know that a latte includes the milk foam, that customer can simply ask for “no foam” (at which point, of course, the drink is really no longer a latte) if she desires more liquid—or order a different drink.

Judge Gonzalez Rogers followed the actions of Judge Anderson in Forouzesh by ending this suit, and judges around the country facing similar cases should do the same. While Jackie Chiles would love to have another crack at Big Coffee, this Food Court case was simply “egregious, outrageous, preposterous” and a clear example of frivolous litigation bogging down our court system.