The “hot coffee” case against McDonald’s still comes to mind when the topic of “frivolous lawsuits” is brought up, even though, in case you missed it, there was more to the story and it was not so frivolous at all. Interestingly, in both civil jury trials I have handled, one of the potential jurors mentioned it when I asked in voir dire (jury selection) if any of the potential jurors thought there were “too many frivolous lawsuits.” One guy responded who raised his hand explained as follows: “Well, I guess the best example would be the McDonald’s case.” As a side note, I am fairly convinced he thought that would be a clever way to get out of jury duty. In the other case, when a woman brought it up, the Judge chimed in and said “Now wait a minute…” and went on to explain some of the details of the case.Now there is a “cold coffee” lawsuit, which is on a much bigger scale and may prove to be far more frivolous than the McDonald’s lawsuit.
2. There may be a “reliance” issue. In lay terms, to prove fraud you have to prove, among other things, reliance, i.e., that you reasonably relied on the statement you are alleging was fraudulent, and that you suffered damages as a result. To put this into context, if you buy a front-wheel drive car from a car dealer without knowing, caring or asking any questions about whether the car is front-wheel or rear-wheel drive, and you later (after you bought the car) see an advertisement the dealer ran in the newspaper, which (falsely) lists the car as rear-wheel drive, you cannot sue the dealer for fraud. Is it false advertising? Yes. But did it affect your decision to buy the car? No, because you never saw it. So you cannot prove reliance. Starbucks may have a similar argument; most likely, people bought the drinks because they were thirsty and thought they tasted good, not because they believed they were getting 24 ounces of beverage. If someone had told them while they were standing in line, “Hey, the menu says 24 ounces but with ice it’s really only 14 ounces,” they probably would have bought the drink anyway. So there may not be reliance. It should be noted, however, that under many state UDAP laws (including the Ohio Consumer Sales Practices Act, though there is some dispute about this), reliance is not required.Nonetheless, the Plaintiff(s) may be able to show that Starbucks is intentionally deceiving consumers. Maybe they think people are more likely to pay their high drink prices if they think they are getting more “drink.” Perhaps emails could be revealed where executives discuss putting the ounce sizes on the price list only because it results in higher sales, despite knowing it is not really the correct number of ounces for cold drinks. You never know.