The Ninth Circuit's decision in Rusoff v. The Happy Group, Inc. offers a simple reminder for litigants in consumer deception cases: survey evidence is only as valuable as its ability to support the theory of liability. Rusoff illustrates why that matters.
Plaintiff’s Theory of Liability
In Rusoff, plaintiffs challenged labeling claims on defendant’s egg cartons, including "Pasture Raised on Over 8 Acres," alleging that consumers understood "pasture raised" to reflect compliance with certain industry standards for animal-welfare. According to plaintiffs, defendant's farming practices did not meet those industry standards.
To prove that theory of liability on a class-wide basis, plaintiffs needed evidence that:
- A recognized industry standard for "pasture raised" existed, and
- Consumers believed the product met that industry standard based on the labeling.
The Evidentiary Gap
Plaintiffs retained both an industry expert and a survey expert. The survey expert designed two surveys: a materiality survey and a consumer perception survey assessing consumers' understanding of the challenged labeling claim.
While this survey evidence was not excluded, the industry expert's testimony was excluded after the district court found the methodology used to identify an industry standard for “pasture raised” unreliable.
Following the exclusion of the industry-standard testimony, plaintiffs lacked common proof connecting consumer perceptions to their theory of liability. The remaining survey evidence showed how consumers perceived the labeling claims, but plaintiffs were unable to establish the critical link that consumers understood "pasture raised" as compliant with the industry standard.
As a result, the court found that common proof of materiality and damages could not substitute for common proof of deception. The Ninth Circuit emphasized, “The lack of a classwide showing on deception cannot be overcome by supposedly common issues of materiality and damages that are unmoored from any classwide showing of actionable wrongdoing.”
Key Takeaways for Litigants
In consumer deception cases, the value of survey evidence depends on whether it measures the consumer takeaway that is relevant to the theory of liability.
- Before designing or evaluating survey evidence, first identify the theory of liability and then ensure the research is designed to test the specific consumer perception for which that theory requires proof. As seen in Rusoff, a survey may show how consumers understand a claim while still failing to address the particular consumer perception that the theory of liability requires plaintiffs to prove.
- Consider the full evidentiary framework. Courts evaluate not only whether individual expert opinions are reliable and admissible, but also whether the evidence collectively supports the theory of liability. Counsel and experts should collaborate early to ensure alignment.
Using Survey Evidence in Consumer Deception Cases
Rusoff reinforces a key lesson: survey evidence, expert testimony, and the theory of liability must work together. Even well-designed survey research may have limited value if it does not connect to the specific theory of liability and the evidentiary framework needed to prove it.
Applied Marketing Science, Inc. (AMS) and its network of affiliated experts have decades of experience working with counsel to design consumer perception, materiality, and conjoint analysis surveys that align with the theory of liability, the claims being asserted, and the evidentiary framework needed to prove them.
To learn more about AMS Litigation Support services and survey evidence in consumer deception and class action matters, please contact our team.