Consumer Surveys at the Complaint Stage: The Latest Tactic in Consumer Class Actions

Business litigation partner Tyler Young and product liability and mass torts associate Emily Bodtke Zambrana coauthored an article for The Recorder titled, “Consumer Surveys at the Complaint Stage: The Latest Tactic in Consumer Class Actions.”

According to the authors, courts are growing increasingly skeptical of class actions challenging the labeling and advertising of food, beverage and other consumer products. In the past few years, numerous courts have dismissed complaints because a reasonable consumer would not interpret the challenged statement in the way the plaintiff alleges. As a result, many plaintiffs’ lawyers have begun including consumer survey allegations in their complaints in an attempt to survive this more robust reasonable-consumer standard. The authors write that the legal significance of these allegations—which are often barebones—is a developing question of law with significant implications for practitioners.

In their article for The Recorder, Young and Zambrana analyze recent cases in which plaintiffs’ lawyers have deployed the consumer survey early—in the complaint itself—to support deceptive labeling claims. They also discuss whether the tactic works and why consumer surveys cannot salvage a deficient claim.