August 25th, 2016

Starbucks Iced Coffee Suit is (Shocker!) Dismissed

Starbucks Iced OffeeBad lawsuits would be bee in my bonnet, if I wore bonnets. And that is because bad lawsuits injure good lawsuits.

The bone-headed suit makes news because it is an outlier, but then because it is in the news, helps to form negative opinions about lawyers and lawsuits that negatively effect the perfectly reasonable legal action by tainting the jury pool.

And that was my opinion back in May when suit was brought against Starbucks because there was too much ice in the iced coffee, thereby (so the claim went) leaving the consumer with less coffee than he paid for.

My response at the time was a parody post, wherein Dunkin’ Donuts was sued for not enough jelly in its jelly donuts, and it contained one of my favorite paragraphs:

The class action lawsuit in New York’s Supreme Court accuses the doughnut maker of false advertising, fraud, and unjust enrichment. It calls Dunkin’s jelly doughnuts “defective and deficient due to their skimpy, scanty, paltry, pitiful, meager and otherwise insufficient quantities of jelly within each said doughnut unit.”

In my follow-up post, I’d written how easy it is to “have it your way” and simply ask for less ice.

And now, as expected, the iced coffee lawsuit has been tossed out. (Decision – Forouzesh v. StarbucksFor the same reason that I wrote. And for that matter, the same reason that countless others no doubt had written. Even a child knows you can ask for less ice:

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.

This conclusion is supported by the fact that the cups Starbucks uses for its Cold Drinks, as shown in the Complaint, are clear, and therefore make it easy to see that the drink consists of a combination of liquid and ice.

As I (and countless others) had indicated, an iced drink contains ice as an obvious ingredient. The court (shocker!) concurs on the obviousness of it all:

When a reasonable consumer walks into a Starbucks and orders a Grande iced tea, that consumer knows the size of the cup that drink will be served in and that a portion of the drink will consist of ice.

Case dismissed.

The problem with bad suits is that they form public opinion based on anecdotes, not empirical evidence. Empirical evidence can be boring. But an idiotic suit — even if it is one in ten thousand — sells papers.

Updated with posts from elsewhere:

No, You Can’t Sue Starbucks For Putting Too Much Ice In Your Drink, Judge Rules (LAist, including interview with the litigant.)

Class action: too much ice in Starbucks iced drinks (Overlawyered, earlier)

 

May 6th, 2016

Starbucks Iced Coffee Lawsuit – A Rebuttal

Marc Dittenhoefer

The one. The only. Marc Dittenhoefer

On Wednesday, I ran a parody of the Starbucks class action lawsuit regarding too much ice in the iced coffee. And yesterday I posted my explanation  as to why I did it: bad suits hurt good clients.

Now today comes a rebuttal from one of my friends, Marc Dittenhoefer. Take it away Ditt…..

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Ok, so let’s get some obviousness out of the way first so we don’t have to waste any more time on it. Of course the “What, there’s Ice in my Iced Coffee!” lawsuit is a bit of a dopey exercise, more than a bit of bad PR, and the latest in a long, long line of easy pickings for satirists, comedians, anti-civil-justice advocates and for dinner table conversations everywhere.

I get that. As a lawyer who has made his living for 40+ years representing harmed people in legitimate lawsuits, these sort of headlines rankle me, too, and do have their effects upon the judges and jury pools that I, too, must practice before. I was no happier than Brother Turkewitz to see this latest juridical jalopy come down the pike. “Whoa Nellie………not, again!!!

Nevertheless, when one thinks about it a bit there are a few legitimate points behind this lawsuit: ones that we should be spending a moment or two on before we jettison this plaintiff and move on to our next exercise in righteous indignation.

Coffee is coffee and ice is ice. One costs money – quite a bit it of it in places such as Starbucks, it turns out – and the other usually is at nominal cost or given free with a purchase. The reason and rationale for why some shops charge the public what they do for a Cup of Joe folks can get for under a buck at a diner is that there IS a difference: you are paying for a comparable amount of beverage which is more expensive to buy and brew than the diner’s.

When someone plunks down $ 6.50 for a “venti” iced Blarfaccino, one has a (I hesitate to use such a lofty word in such prosaic a circumstance) right to expect the comparable 8, 12 or 16 ounces one gets in the diner version of iced coffee from ’round the corner, especially since the sizes of the various servings are posted, advertised and charged for by the Blarfaccino store itself.

It is no different than a can of soda, quart of milk or gallon of gas: what is listed on the signage is what you should receive for your money. But what if your can has only 7.9 ounces of soda, your milk a fraction less than a quart, your gas a tad shy of a gallon?

 To you, the individual Buyer it means perhaps not a whole lot: it might even be healthier for you over all – at least in terms of the coffee or the soda. But to the Seller ? By chintzing a bit on each of a hundred customers, all of a sudden you can sell 110 coffees from the ingredients that used to net 100.

That’s a profit of 10 coffees that have been “stolen” from the clientele. Or 2 TVs falling off every truck; three Mercedes’ off every shipload. Sooner or later, this adds up to some real money from out of the pockets of the unsuspecting and into the till of an already multi-billion dollar corporation. Not so silly any more, is it?

These scams have been done in business for as long as there has been business, and one of the valuable functions that government provides is to guard against such things, via regulation, inspection, quality control and mechanisms for enforcement and restitution. Thus is the “Class Action” invented.

Should a business — say a financial institution — devise a computer program that would take one cent each month from the account of each of its customers and automatically deposit it into the business’ operating account, that would be a theft. Yet most customers would not ever notice it, much less be willing to file a Police Report over it, and no DA would start a criminal action for anyone’s annualized loss of 12 cents. Multiply that amount however by a million customers, and you all of a sudden have a major revenue stream on your hands – or in your pocket.

An old riddle here is instructive: what would you rather have for your birthday, one million bucks or one penny doubled each day for a month? If you took the penny deal, you made the better bargain by far.

So yeah, the suit is dopey, but only in its poor choice of forum. This matter should be handled regulatorily by making Starbucks devise a way to ensure that the proper amount of paid-for coffee is served in their iced offerings. After all, the company that can invent a machine that grinds, brews, and serves up skatey-eight different types of coffee in 3 or more sizes each can certainly find a way to stock themselves with cups large enough to accommodate the proper amount of beverage WITH ice. It ain’t brain surgery – it’s just right. And this lawsuit says so.

As to the rest of it, considering Stella Liebeck’s case against McDonald’s I am convinced that the insurance, big business and and anti-consumer forces are not sitting idly by waiting for things like this to latch onto to further their PR campaigns. They are at it 24/7/365. This case might give them something to work with, true, but it also is one that highlights an area of abuse that could be redirected in a positive, pro-consumer way.

 We should be full-throated in our support, not necessarily of the suit but of the concept that a buyer should get what they pay for, and that sometimes recourse is needed when that does not happen. In this regard – although I am most certainly not of, by or for the “Tea Party” – they have a point. Free and unfettered access to the Courts to air grievances and correct wrongs is as much of a doctrinal touchstone as anything for the “Tea Party”. Why not for coffee ?

 

 

May 5th, 2016

The Great Jelly Donut Parody (Hey, why’d you do dat?)

Dunkin Donuts LogoYesterday I ran a parody, wherein Dunkin’ Donuts was sued for not putting enough jelly in its jelly donuts. I didn’t do it just for the hell of it. There is (usually) a method to my madness.

Specifically, Dunkin’ was “sued” because their jelly doughnuts were “defective and deficient due to their skimpy, scanty, paltry, pitiful, meager and otherwise insufficient quantities of jelly within each said doughnut unit.”

My posting was spurred on, as noted in the post, by a suit out in Chicago where Starbucks was sued for putting too much ice in an iced coffee. My point was to mock that idiotic suit.

Now why would a guy that does personal injury law mock the work of another, who purports to represent consumers? Don’t lawyers on the same side of the “v” protect each other like cops and doctors do?

But regular readers know that I call ’em as I see ’em, and what I see is that bad lawsuits damage those with good lawsuits. It’s the headlines from poorly considered, outlier lawsuits that make the headlines and then go on to infect the jury pool by making people more cynical.  When jury selection starts, the scales of justice are already tipped in favor of the defendants due to those “damn lawyers” and this makes it more difficult for others in the courthouse to prevail.

Let me be clear: Your bad lawsuit hurts my clients.

So why does the Starbucks suit suck the big wazoo (a legal term of art for you newbies to this site)? Well first off, ice is actually an ingredient in an iced drink. Take out the ice and you have a different drink.

A Starbucks spokesman said:

“Our customers understand and expect that ice is an essential component of any ‘iced’ beverage. If a customer is not satisfied with their beverage preparation, we will gladly remake it.”

So the issue isn’t really that there’s ice in the drink because there’s supposed to be ice in the drink, but rather, how much ice is in there. In other words, it’s an issue of judgment as to how much the customer will like. Different strokes for different folks and all that.

Which leads us to the second issue: Americans are accustomed to having it like we want it when ordering food and drink:

Too much ice? Less ice, please.

Don’t like potatoes with the chicken? Can I substitute rice?

Hold the mayo on that sandwich please.

I’d like the dressing on the side, please.

I’d like extra dressing, please.

Restaurant customers are accustomed to ordering things that are vegan, vegetarian, nut-free, gluten-free, egg-free, lactose-free, shellfish-free, hold the onions, or I’d like my sushi cooked well done.

Burger King has, for decades, had Have it your Way as it’s advertising campaign. In Harry met Sally, it was a running joke when Meg Ryan special ordered everything in a restaurant.

Here’s the thing about Starbucks: It was born and raised in a capitalist society. They offer a premium product and therefore it must cater to the whims of its clientele. This is not a discount chain cutting staff to the bone to save a few bucks.

If Starbucks drops the ball on customer service — and that means giving people what they want at the counter — then they have lost a customer.  Less ice isn’t exactly a tall order, nor even a Grande or Venti one.  Can anyone imagine the diner that Jack Nicholson visited in  Five Easy Pieces, where he tried to get a side order of toast actually surviving as a business?

Since solving this “problem” was not difficult — it would be difficult to find an easier problem to solve since it isn’t actually a problem — the suit is destined for the trash heap of history. Ice is part of the drink, and if there is too much for your liking they will make it the way you like.

So here is my message to my brethren of the bar (in this case, Hart McLaughlin & Eldridge in Chicago) who bring crappy suits and stir headline writers to spew about lawyers which in turn piss of the populace about lawyers and lawsuits: Your suit is manna from heaven for tort “reformers” and insurance companies. They get to “promote” your outlier lawsuit and portray it as typical, and thereby poison the jury pool.

Stop hurting the people I represent.

Addendum, see also:  Starbucks Iced Coffee Lawsuit – A Rebuttal

 

May 7th, 2010

The Media’s Failure in the Starbucks Hot Tea Lawsuit

To call this a media failure would be an understatement: The story of the woman scalded by Starbucks tea was reported in dozens of  news venues, both online and traditional. And when I wrote about it yesterday I noted that a little thing called “facts” just happened to be missing.

And do you know why the facts were missing? Because there weren’t any interviews with the complainant or her attorney.

When I say no interviews, I mean none. Nada. Zip. Bupkus. The first interview with the victim’s lawyer regarding this suit, which went international because this was a Reuters story, was the one I did yesterday. How pathetic is that?

This posting isn’t really about the suit, some of whose details you can now read at my prior post linked above; it’s about media incompetence.

According to  Elise Langsam, attorney for the burned victim, she received a phone call from Reuters, but she wasn’t available when the call came in. And before she even had a chance to get back to the reporter to discuss the actual case, it was already published.

The writer on the piece is identified as Jonathan Stempel and the editor is Bernard Orr. Apparently neither of them thought the facts would be important  to their fast-moving story of a woman being burned. Had they actually given a damn about their story, they would have learned that the cup’s top popped off because it wasn’t put on right by Starbucks, and that the scald on her arm left her hospitalized for five days. Instead, they relied on a bare bones Complaint that put Starbucks on notice of the suit, but doesn’t get into detail.

Reuters simply published a snippet from a modest legal filing, and then regurgitated the story of Stella Liebeck and McDonald’s coffee. As if all burn cases from chain restaurants are exactly the same. That’s journalism today? This is all of the meat and potatoes from their version of the story:

Starbucks Corp has been sued by a customer who allegedly suffered second-degree burns after being served tea that was too hot.

According to the complaint, the plaintiff Zeynep Inanli was served tea that was “unreasonably hot, in containers which were not safe,” at a Starbucks store at 685 Third Avenue in Manhattan.

As a result of Starbucks’ negligence, the plaintiff suffered “great physical pain and mental anguish,” including the burns, the complaint said.

You want to know what their excuse was for not finding out the actual facts? Here it is:

Starbucks, based in Seattle, did not immediately return requests for comment. The plaintiff’s lawyer did not immediately return a call for comment.

Clearly, this was a critical,  time-sensitive story that had to be published immediately. They must have been sitting there terrified that they might get out-scooped, while an environmental disaster looms in the waters to our south, while we fight two wars, while the world waits to see if Greece will go belly-up and while our economy struggles.

Does Reuters actually give a damn about what they produce, even when their writers don’t? Or is it just enough that they produce media filler, and leave actual journalism to others?

When I saw the piece I couldn’t believe such miserably lazy reporting passed for news, but when I Googled it I was stunned at the number of major news organizations that decided to run with it. What follows now are some of the media victims of the Reuters incompetence, both here and abroad. But they share the blame for publishing the Reuters piece without first  reading it to see if it was worth anything. The fact that facts were missing should have been evident to even a casual observer:

Sometimes people wonder if bloggers should be called journalists. But this blogger wonders if certain journalists should be called journalists.

File this under epic media fail.