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?
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.
The problem is not crappy lawsuits. It is crappy stories about lawsuits. We have the McDonald’s scorching-coffee case as Exhibit 1.
Here, a quick look at the complaint shows that Starbucks advertises selling 24 ozs. of a product when it only sells 14. Over a third less. There are pictures. So rather than being viewed as a case alleging a systematic fraud, it’s about ice.
In my experience, when a case looks nutty, it’s often useful to step back and think about it. How to change Starbucks’s behavior? It chooses to say there are 24 ounces of coffee in that cup (although labeling it with the trademarked “venti”). It has been ripping people off for years. Maybe this suit will end that.
This hardly seems “dopey”. It seems to be the use of conventional legal principles — systematic fraud injuring people on a nickel-and-dime basis that makes it hardly worth a consumer’s time or effort to file her individual suit — that are the purpose of class-action suits. Maybe a GBL 349 claim for a New York subclass. I have been involved in cases like this one, where a big firm takes $25 here, $50 there and should anyone complain, it’ll refund and continue to pocket the $25 here and $50 there. It adds up.
The immediate point, though, is that it’s not the suit that makes potential jurors squirm. It’s the perpetuation of a knee-jerk reaction to them. https://www.scribd.com/doc/311213443/Starbucks#fullscreen
It chooses to say there are 24 ounces of coffee in that cup
Does it? Or does it say 24 oz of iced coffee?
And some of their drinks are loaded with sugar too. Does the inclusion of sugar also count as displacing coffee?
This ice issue, by the way, exists with every fountain drink. When is the last time you had a soda (assuming you drink it) that came without ice?
If the suit were about drinks in a bottle or can that were short-changed, my view would be entirely different. But here the ice (and sugar) is an ingredient in the drink.
It says “24 fl.oz.”
It says “24 fl.oz.”
Well, “fluid” oz is an excellent point.
No, “fluid” oz is not a good point here. The term does not mean the item being measured is necessarily a “fluid”; rather, it identifies a unit of measurement utilizing volume, as distinct from “ounces by weight”. “Ounces” (a measure of weight) are not the same thing as “fluid ounces” (a measure of volume). They just have a similar name. It is perfectly possible to measure an amount of solid ice by weight (put it on a scale and get ounces), or by volume (how much spaces does it take up, which can be measured in “fluid ounces”). Here, Starbucks sells you 24 fluid ounces of “iced coffee” by volume. That “iced coffee,” consisting of a mixture of coffee and ice, takes up a total of 24 fluid ounces of volume. Contrary to what Mr. Dittenhoefer argues, there should be no expectation from a purchaser of 24 fluid ounces of “iced coffee” that they will get 24 fluid ounces of coffee, plus some additional volume of ice. That theory misidentifies what “iced coffee” is – a product that, as Starbucks correctly says, is a mixture of coffee and ice. If the ratio is not to your liking, well, aside from the fact that you can just get a new drink by asking, the courts of this country should not be in the business of determining, as a matter of law, what the recipe for “iced coffee” is. Or, as the late great Justice Scalia said in dissent a somewhat similar context, “It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf”. Or iced coffee.
Judge Friendly once asked “what is chicken?” but that’s neither here nor there.
Several problems. First, “That ‘iced coffee,’ consisting of a mixture of coffee and ice, takes up a total of 24 fluid ounces of volume.” Why would iced coffee be “a mixture of coffee and ice”? It is coffee that has been iced. It is a fluid. Starbucks says that it is “24 fl. oz.”, which is reasonably read to mean 24 ounces of fluid. Ice is a solid. Not a fluid.
Second, “there should be no expectation from a purchaser of 24 fluid ounces of ‘iced coffee’ that they will get 24 fluid ounces of coffee, plus some additional volume of ice”. “Should”? Why on Earth not?
Third, “the courts of this country should not be in the business of determining, as a matter of law, what the recipe for ‘iced coffee’ is.” There’s that “should” again. Here, though, you may have a point. But it is irrelevant. The court is not being asked to “determine, as a matter of law, what the recipe for ‘iced coffee’ is.” It is not being asked to define something, as Judge Friendly was and Justice Scalia was. It is being asked whether by saying that this drink contains “24 fl. oz.” (as well as similar statements for other sizes) it is cheating its customers when it contains only 14 ounces of (liquid) coffee. This is the type of thing that courts do all the time and for which, yes, they have a solemn duty to do.
Fourth, the measurement, according to Starbucks, is to the size of its “drinks”. One drinks a liquid, not a solid.
Finally, and most importantly, Starbucks, and you, may prove to be correct. It may be that the “24 fl. oz.” is accurate so that a consumer — let’s assume a hypothetical “reasonable consumer” — would not be misled by the representation. I know I would be. For example, next to the Venti Iced Coffee is the Venti Hot Coffee, which is listed as “20 fl. oz.” I would assume that the notion of parallel construction that “fl. oz.” for one type of coffee applies to others listed and refers to the amount of coffee, not the amount of ice. But I may not be reasonable.
Of course, if you, and Eric, believe that the suit has no merit, and there are such suits, the system has a means of dealing with them quickly. Motion-to-dismiss for failure to state a claim with a side order of rule 11. If, as you claim, as a matter of law a cup with coffee and ice that measures 24 fl. oz. in volume consists of 24 fl. oz., the court will through it out. The system can, and does, deal with this type of thing, however imperfect it may be.
Starbucks is not Humpty Dumpty.
I feel like I’m in Bizarro World since nobody has mentioned the obvious: coffee isn’t a liquid at all, it’s a bean, and depending on who’s making it the same amount of raw material can be used to make 12, 16, or 24oz of coffee. Some like it strong, others less so. I thought the relative weakness of iced coffee was intentional. Even aside from that I’ve had instances where I could tell they messed up the batch by putting too few or too many grounds in.
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