Earlier this month, Judge Yvonne Gonzales Rogers of the United States District Court for the Northern District of California granted a summary judgment motion filed by Starbucks Corporation (“Starbucks”), dismissing all counts brought by a putative class alleging that Starbucks “uniformly underfills its lattes and mochas” to “save on the cost of milk.” Strumlauf v. Starbucks Corp., No. 16-CV-01306-YGR, 2018 WL 306715, at *1-2 (N.D. Cal. Jan. 5, 2018).

The plaintiffs, consumers who purchased Starbucks lattes at retail locations throughout the United States, claimed that Starbucks’ failure to provide the amount of liquid represented on menus (allegedly 12 fluid ounces for a “Tall”, 16 fluid ounces for a “Grande” and 20 fluid ounces for a “Venti”, or the “Promised Beverage Volume”) amounted to, inter alia, breach of express warranty, unfair competition, false advertising, deceptive and unfair trade practice, and common law fraud under various state’s statutes and common law. Id. Significantly simplifying the legal issues on summary judgment, the parties agreed that all of the plaintiffs’ claims required a showing that Starbucks had made a false or misleading representation. Id. at *4. Starbucks moved for summary judgment on the ground that the plaintiffs could not make this showing. Id.

The plaintiffs submitted three theories in support of their claims, arguing that Starbucks’ standard recipes result in underfilled lattes and mochas because: First, the maximum capacity of Starbucks’ “hot cups” equals “exactly” the Promised Beverage Volume, but Starbucks lattes and mochas do not fill the cups in which they are served; second, Starbucks underfills its cups in order to accommodate milk foam, but milk foam does not count in the calculation of beverage volume; and third, Starbucks baristas make lattes and mochas by relying on standard recipe cards and a “fill-to” line demarcated on company-standardized pitchers, use of which results in a product containing less than the Promised Beverage Volume. Id. at *2. The court addressed each theory in turn.

With respect to the first, “hot cup capacity” theory, the court focused on the testimony of Starbucks’ senior manager of quality assurance and food safety packaging who testified that company policy requires “suppliers to manufacture Hot Cups with volume capacities which are at least 8–12% greater than the Promised Beverage Volume depending on the size of beverage ordered.” Id at *5. Against this, the court weighed the opinion of the plaintiffs’ expert, who testified that the plaintiffs had received lattes and mochas underfilled by approximately 21.25% compared to the Promised Beverage Volume. Id. Critically, the court noted, the plaintiffs’ expert failed to address an important finding in his analysis: the actual capacity of Starbucks’ hot cups is 14.5 fluid ounces for a “Tall,” 18.5 fluid ounces for a “Grande,” and 22.8 fluid ounces for a “Venti.” Therefore, adjusting for the fact that each size of hot cup’s capacity is in fact greater than the Promised Beverage Volume, the plaintiffs’ expert actually corroborated Starbucks’ evidence and contradicted the plaintiffs’ theory that hot cups “hold exactly the Promised Beverage Volume.” Id. at *5.

Turning to the second, “milk foam” theory, the court looked to another recent putative class action against Starbucks that was premised on a similar theory of consumer fraud. In Forouzesh v. Starbucks Corp., 2016 U.S. Dist. LEXIS 111701 (C.D. Cal. 2016), a federal court in the Central District of California dismissed with prejudice a complaint alleging that “Starbucks underfilled its cold drinks by adding ice to make the cups appear full.” Strumlauf, 2018 WL 306715, at *5 (citing Forouzesh, 2016 U.S. Dist. LEXIS 111701, at *1-2). The Forouzesh court determined: (1) “that a reasonable consumer would not be deceived into believing that Starbucks’ cold drinks contained the Promised Beverage Volume excluding ice because when ‘a reasonable consumer walks into a Starbucks and orders a[n] 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,’” and (2) that consumers can simply order their drink without ice to increase the volume of beverage they receive. Id. (quoting Forouzesh, 2016 U.S. Dist. LEXIS 111701, at * 7–8).

Drawing on Forouzesh, Judge Gonzales Rogers reasoned that: (1) “no reasonable consumer would be deceived into believing that Lattes which are made up of espresso, steamed milk, and milk foam contain the Promised Beverage Volume excluding milk foam,” and (2) consumers can increase the amount of hot liquid they receive by ordering “light or no foam.” Id. at *6. Judge Gonzales Rogers also noted that, as in Forouzesh, neither the Starbucks menu or signage referred to in the plaintiffs’ complaint stated that lattes or mochas actually consist of 12, 16, or 20 ounces of liquid. Id.

While the court acknowledged that the plaintiffs had submitted an expert’s survey results suggesting “that 70-80% of consumers expect that foam ‘is in addition to’ the Promised Beverage Volume,” it held that the surveys were leading, suggestive, and lacking in reliability; “in short, the survey asked whether the ‘Fluid’ in a ‘16 fl. oz.’ beverage should be ’16,’” and thereby begged a particular answer. Id. at *6-7. The court concluded that, at any rate, “it is undisputed that milk foam is a component” of a latte or mocha. Id. at *6-7. Accordingly, the “surveys fail[ed] to establish a triable issue as to whether reasonable consumers believe milk foam counts towards the volume of a Latte,” and the plaintiffs’ “milk foam” theory could not survive. Id. at *7.

Finally, the court rejected the plaintiffs’ third, “fill-to line” theory, on the grounds that the expert evidence submitted to support the theory compared the total volume of liquid specified on Starbucks’ recipe cards against the Promised Beverage Volume but did not appropriately account for the fact that the recipe cards specify volumes of espresso and cold milk rather than espresso and steamed milk and milk foam; the expert “did not even heat the milk but relied on an uncited study which she found by searching the internet to impute an expansion rate for milk as it is heated.” Id. at *8. Therefore, the court held, the plaintiffs failed to establish that once cold milk is steamed and aerated—processes that necessarily expand milk’s volume—the total volume of a consumer’s beverage does not amount to the Promised Beverage Volume. Id.

Finding that the plaintiffs failed to raise issues of fact with respect to any of their three theories, Judge Gonzales Rogers granted Starbucks’ motion for summary judgment and concurrently denied the plaintiffs’ pending motion for class certification as moot. Id. at *9.

Aside from telling the barista to hold the foam when we’re especially thirsty, what lessons can we take away from Strumlauf? To name a few, first, a litigant should be careful not to underestimate the “reasonable consumer”. Similarly, a litigant should be careful not to overestimate what a consumer is promised. Finally, claims that hinge on the precision of what a consumer is promised should be backed by expert evidence that boast a corresponding degree of precision; a cup underfilled by mere ounces leaves insufficient room for mistakes.