A Chicago federal judge has dumped a lawsuit against Starbucks over the amount of ice in its iced drinks, saying the reasoning undergirding the class action lawsuit against the purveyor of hot and cold coffee drinks and other beverages was too far over the top.

On October 14, U.S. District Judge Thomas M. Durkin granted the request by Starbucks to dismiss the class action litigation introduced first by plaintiff Stacy Pincus, and now led by plaintiff Steve Galanis.

“If the consumer chooses an ‘iced’ drink, the reasonable consumer knows that the container (whatever its volume) will be filled with both solid ice and a fluid beverage,” Durkin wrote. “The fact that the volume of the container the drink is served in is measured using ‘fluid ounces’ would not cause the reasonable consumer to be surprised by the presence of ice in the drink’s contents.

“Indeed, a reasonable consumer who purchases an ‘iced’ drink, expects there to be ice in the drink, and would be upset if there wasn’t,” the judge said.

Pincus had filed the lawsuit in April, alleging the Seattle-based drink seller had violated its warranty to its customers and committed fraud by “underfilling” its cold drinks by overfilling its cups with the ice needed to make the drinks cold.

The lawsuit specifically targeted Starbucks’ practice of selling its drinks by the fluid ounce. The complaint noted Starbucks sells four primary sizes of drinks. While the sizes are given special proprietary names, including Tall, Grande, Venti and Trenta, those labels correspond to real volume measurements, ranging from 12-30 fluid ounces.

The plaintiffs in this case, however, argued the Starbucks’ measurements deceived customers ordering cold drinks, as the volume of the drink, as measured by the cup, now included ice. The plaintiffs noted Starbucks uses cups inscribed with “3 black lines” and premeasured ice scoopers “to ensure that employees fill these cups with less fluid ounces than are advertised on Starbucks’ menu.”

Essentially, the plaintiffs argued customers ordering a Venti-sized drink should receive 24 ounces of the specific beverage, apart from the ice. Under Starbucks’ current practice, however, they alleged such customers are only getting 14 ounces of beverage, while believing they are paying for 24 ounces.

The case was filed by attorney Steven A. Hart and the firm of Hart McLaughlin & Eldridge, of Chicago.

Over the summer months, Starbucks challenged the reasoning underlying the lawsuit, and asked a federal judicial panel to consolidate the Chicago lawsuit with other, similar lawsuits pending against it in other jurisdictions, including in California.

Plaintiffs’ attorneys substituted Galanis as the lead named plaintiff on the case in August.

However, no matter who may assume that role, Durkin said he believed the case should end, as the plaintiffs’ claims cannot hold up against an examination of how a “reasonable” customer would react to the Starbucks menu.

And Durkin sided with Starbucks, saying he agreed with Starbucks’ assertion that “no reasonable consumer ordering an iced tea expects to receive a cup of tea with a side of ice.”

“Because Starbucks uses the phrase ‘fluid ounces’ in the section of the menus that describes container sizes, a reasonable consumer would understand that phrase to refer to volume, as opposed to a drink’s contents,” Durkin said. “The reasonable consumer would also draw this conclusion from the mere fact that ‘fluid ounces’ is a measurement of a drink’s volume, not a description of a drink’s contents.

“The common sense nature of this analysis is exemplified by imagining a consumer who tried to order simply ‘24 fluid ounces.’ That request would obviously be met with the question, ‘Of what?’”  

Durkin ordered the case dismissed without prejudice. But he gave the plaintiffs until Nov. 14 to ask his permission to file an amended complaint, or the dismissal would be with prejudice.

Starbucks was represented in the action by attorneys with the firm of Sheppard Mullin Richter & Hampton, with offices in Chicago, San Francisco and Los Angeles.

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Hart McLaughlin & Eldridge Sheppard Mullin Richter & Hampton LLP

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