Starbucks Customer Wants Iced Drinks Class Action Revived

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

A class action lawsuit alleging Starbucks underfills its iced coffee drinks was dismissed last year, but the plaintiff says the case should be heard by a jury.

Lead plaintiff Alexander Forouzesh alleged in his original class action lawsuit that Starbucks underfills its drinks and misleads consumers by listing drink sizes including the ice, not just the liquid.

U.S. District Court Judge Percy Anderson tossed the case in August of 2016 after finding that a reasonable consumer would know that the size of an iced beverage would include the volume of the ice.

On Monday, Forouzesh filed an appeal of the dismissal with the Ninth Circuit arguing that he had established a claim for breach of express warranty. The plaintiff claims that the way Starbucks advertises its iced beverages is misleading to a reasonable consumer.

“Whether or not a reasonable consumer could be misled or deceived by this advertising is a question of fact best left for a jury, and inappropriate to be decided on a motion to dismiss,” the plaintiff states in his brief to the Ninth Circuit.

The federal judge who dismissed the case pointed out that Starbucks cups are clear, so a customer would know the amount of ice and beverage. Judge Percy also noted that he had “no difficulty concluding” that consumers realize that they will receive ice as well as liquid when they order an iced beverage.

According to Forouzesh’s brief, however, the federal judge got it wrong. The plaintiff argues that some consumers might reasonably believe that they would get a larger cup to accommodate the ice in a beverage along with the designated amount of liquid.

The plaintiff also points out in his brief to the Ninth Circuit that what a reasonable consumer would think is a question that is usually left to juries. “At the least,” said the plaintiff in his appeal, “it is probably enough that the issue should be decided by a trier of fact, not on a motion to dismiss.”

Another issue, according to the plaintiff’s appeal, are consumers who order their iced beverages without ice, also called “Americana.” In that situation, consumers would receive more liquid; however, the premature dismissal of the class action did not give Forouzesh the chance to add those consumers as a subclass, the court documents claim.

“At the very least, if given the opportunity to amend, this Americana subclass would still withstand the rigors of the district court and leave the plaintiff with a valid claim,” contends the plaintiff in his brief.

Starbucks is facing a number of class actions over allegedly underfilled drinks, both iced and regular. The coffee giant attempted but failed to consolidate these actions last year.

Forouzesh is represented by Justin Farahi and Raymond M. Collins of Farahi Law Firm APC.

The Starbucks Iced Drinks Class Action Lawsuit is Alexander Forouzesh v. Starbucks Corporation, Case No 16-56355 in the U.S. Court of Appeals for the Ninth Circuit.