In re Folgers Marketing Litigation

Rene Befurt, Sai Sindhura Gundavarapu & Riddhima Sharma*

Why It Made the List

Class litigation related to food labeling continues to be the focus of many lawsuits in recent years. Decisions regarding if a class should be certified in these cases often hinge on whether common issues outweigh individual issues among proposed class members. When assessing this question, courts may consider a variety of evidence, including survey evidence. In the matter discussed herein, In re Folgers Marketing Litigation, the district and appellate courts disagreed on whether the evidence presented by Plaintiff sufficiently demonstrated that individual issues would not outweigh common issues and that proposed class members similarly relied on the at-issue claim.[1] While the district court found that certain survey evidence presented by Plaintiff’s experts demonstrated evidence of common traits and harm among proposed class members, the appellate court took a different stance and overturned the district court’s decision to certify the proposed class.[2]

The appellate court’s decision to overturn the class certification ruling stated that Plaintiff “had to prove a causal connection between the deceptive act and a harm they suffered.”[3] The court emphasized that “for many people in [the] proposed class, the representations on the containers would not have caused them any ascertainable loss,” as “a significant proportion of the proposed class did not read those representations or, if they did, did not care about them one way or the other.”[4] In its decision, the appellate court highlighted deposition testimony as evidence that individual inquiry would be necessary, and a class should therefore not be certified.[5] Additionally, the appellate court dismissed Plaintiff’s arguments that “every member of the class suffered an ascertainable loss,” regardless of their reliance on the representations, because “the representations thus spurred increased demand,” resulting in all consumers of the products paying higher prices than they would have otherwise.[6] While the district court pointed to survey evidence offered by Plaintiff as evidence supportive of class certification, the appellate court did not reach the same conclusion.[7] The district and appellate courts’ opinions in this matter highlight the role that certain evidence, including survey and deposition evidence, can play in demonstrating whether or not common issues outweigh individual issues among proposed class members and influence courts’ decision to certify a class.

Discussion

Procedural Background and Ruling of the District Court

In February 2023, Plaintiffs Shelley Ashton, Ellen Moser, Geoff Thomson, Federick Tan, Marcia Sorin, A. Kevin Fahey, Mark Smith, and Trina Green filed a Third Amended Complaint in a class action lawsuit against The J.M. Smucker Company and The Folger Coffee Company relating to Folgers ground coffee products.[8] Plaintiffs alleged that representations that each of the Folgers ground coffee products “MAKES UP TO” a certain quantity of coffee were deceptive because the products “do not produce the number of cups claimed when one follows the brewing instructions provided on the back label.”[9]

Plaintiffs further stated that they “and other consumers purchased the Products relying on Defendants’ serving amount representations on the Products’ packaging” and alleged “that the Products’ labeling vastly overstates the number of cups of coffee they are able to make.”[10] Plaintiffs also argued that “a reasonable consumer cannot measure or calculate how many servings the Products can make. Nor are reasonable consumers expected to keep track of the precise number of cups of coffee they make over a period of time.”[11] Based on these allegations, Plaintiffs claimed they “would have paid significantly less for the Products, or would not have purchased them at all.”[12]

Plaintiffs filed “a suggestion in support of their motion for class certification” in March 2023.[13] Folgers filed an opposition to Plaintiffs’ motion for class certification in July 2023.[14] Plaintiffs sought certification of six statewide classes, but the district court opted to evaluate issues specifically related to the Missouri class first.[15] Plaintiff Mark Smith filed a supplemental brief in support of his motion for class certification for the Missouri class in January 2024.[16] Folgers filed a response to Plaintiff’s supplemental brief in early February 2024.[17] Plaintiff filed a supplemental reply brief in support of his motion for class certification in late February 2024.[18]

In July 2024, the district court sided with Plaintiff and granted Plaintiff’s motion for class certification for the Missouri class.[19] The court ruled that, “with respect to Missouri Class members, the injury alleged is—at the least—substantially similar” and that “[t]he fact that some class members did not care about or were not deceived by the misrepresentation is better addressed in the context of the merits of the claim. (emphasis added).”[20] In its opinion, the court highlighted evidence offered by Plaintiff’s experts, Dr. J. Michael Dennis and Dr. Samantha Iyengar.[21] According to the district court, Dr. Dennis’ consumer perception survey supported Plaintiff’s theory that “consumers believe the Up To Claim will be met under both the Single-Serving [brewing] Method and the Pot [brewing] Method.”[22] With respect to Dr. Iyengar’s choice-based conjoint survey, the court determined that the study “provide[d] common evidence on the question of whether the inflated Up To Claim impacted a consumer’s decision to purchase a Product.”[23] The court emphasized that “the Up To Claim was contained on the front of all Products” and that Dr. Iyengar’s survey found that “the inflated Up To Claim ‘had a significant and positive impact on consumers’ preferences.”[24]

Ruling and Reasoning of the Appellate Court

Folgers appealed the district court’s decision to certify the class at the U.S. Court of Appeals for the Eighth Circuit.[25] In November 2025, the appellate court reversed the district court’s decision and reversed certification of the class.[26] In its opinion, the appellate court noted that “fraud cases are typically unsuitable for class treatment [ . . . ] because the proof required in such cases often varies with respect to what representations consumers received and whether those consumers relied on those representations.”[27] The court found that, “for many people in [the] proposed class, the representations on the containers would not have caused them any ascertainable loss” as “a significant proportion of the proposed class did not read those representations or, if they did, did not care about them one way or the other.”[28] Notably, neither of Plaintiff’s survey experts offered surveys that employed an experimental design that could have assessed proposed class members’ reliance on the at-issue claim.[29] The court went on to state that “[w]hat matters is that many class members weren’t deceived, and figuring out who was and who wasn’t will require consumer-by-consumer inquiries into each class member’s individual tastes, interpretations, and circumstances.”[30]

In forming its judgment, the court also addressed Plaintiff’s argument concerning consumer’s reliance on the product label. Counsel for Plaintiffs stated that “‘[Missouri’s Merchandising Practices Act (MMPA)] does not require individualized proof of reliance in order to state a claim,’ and since all containers of the relevant Folgers products included the representations, individualized showings are unnecessary.” However, the court referenced In re St. Jude Med., Inc. to emphasize that Plaintiffs “had to prove a causal connection between the deceptive act and a harm they suffered,” and further referenced Owen v. Gen. Motors to note that “‘there is no denying that causation is a necessary element of an MMPA claim.’”[31] The surveys offered by Plaintiff’s experts did not employ an experimental design that would have isolated the causal impact of the at-issue claim on proposed class members’ purchasing decisions.[32]

Weighing both sides’ arguments, the court ultimately pointed to consumer evidence rooted in the testimony of proposed class representatives, who indicated on the record that the at-issue “MAKES UP TO” claim did not impact their purchasing decisions.[33] In its opinion, the court highlighted one example in which a proposed class representative explained why she continued to purchase the at-issue products even after she had sued Folgers, stating concisely: “I like my coffee.”[34] Last but not least, the court addressed Plaintiff’s price premium argument and reacted to Plaintiff’s expert’s theory that, “[t]o the extent that the alleged misconduct in this case artificially inflated market demand, then each consumer who purchased a Contested Product paid a higher price.”[35] The court expressed that it rejected the notion that, “because some buyers did not receive the benefit of the bargain, all buyers should have paid less,” as this approach “would allow those who suffered no ascertainable loss from Folgers’ representations to piggyback on the injuries of others to pursue a remedy.”[36]

Impact

Both the district and appellate courts focused on the relationship between common and individual questions in assessing whether the class should be certified in this matter.[37] But, notably, the courts reached different conclusions as to whether questions affecting only individual proposed class members overwhelmed questions common to the proposed class and whether class certification would be appropriate. While the district court’s opinion appeared to accept the survey evidence offered by Plaintiff’s experts as evidence of a common theory of harm, the appellate court seemed to find this evidence unconvincing and lacking a causal nexus. Instead of the provided survey evidence, the court considered statements from Named Plaintiff Depositions pertaining to reasons behind purchases, as well as comments regarding whether consumers paid attention to or relied on the allegedly misleading statements when considering their purchase.[38]

We agree that the survey evidence offered by Plaintiff’s experts did not establish that proposed class members similarly relied on the at-issue “MAKES UP TO” claim when considering their ground coffee purchase. Specifically, the survey evidence offered did not establish that consumers would have made different purchasing decisions in a but-for world where the allegedly misleading claim was not present or otherwise amended on the packaging. At most, the surveys offered by Plaintiff’s experts provide some evidence that (1) some consumers may perceive the “MAKES UP TO” claim to imply that both brewing methods will make the same total number of cups of coffee, and (2) consumers are more likely to select products with more servings than fewer servings, all else equal.[39] Notably, the “materiality” survey offered by Dr. Dennis, which was not referenced in either the district or appellate court opinions, utilized a flawed “referendum” approach that did not reflect a real-world purchasing scenario or account for other factors that may have influenced consumers’ purchasing decisions outside of the at-issue claim.[40] While the district court declined to exclude Dr. Dennis’ testimony, the court did state that, compared to Dr. Dennis’s approach, “the materiality inquiry is more nuanced, and [Named Plaintiff] Smith will need additional proof to prevail.”[41]

In addition to discounting the survey evidence provided by the Plaintiff, the appellate court’s opinion sheds light on the appellate court’s willingness (or lack thereof) to accept arguments that all consumers, regardless of reliance on at-issue representations, could be damaged by them. The appellate court appeared reluctant to accept any claims of class-wide harm on the basis that the alleged deceptive representation enabled Folgers to command a market price higher than they would have otherwise, causing all consumers to pay more for the product than they would have in a but-for world.[42] The appellate court’s dismissal of this “price-premium” theory emphasizes once again the court’s expectation that Plaintiff must establish a clear, common relationship between consumers’ exposure to, perceptions of, and reliance on the allegedly misleading claim and the alleged harm.

Does the Allegedly Deceptive Representation Impact Proposed Class Members’ Purchasing Decisions Similarly?

An initial consideration for the courts was determining whether proposed class members were similarly exposed to the allegedly deceptive representations. In its order, the district court noted that “Defendants’ Up To Claim appeared on each Product and differed only in the quantity of servings it represented [ . . . ] providing evidence the Missouri Class members were exposed to the Up To Claim.”[43] While the appellate court acknowledged that proposed class members were similarly exposed to the allegedly deceptive representations, it found this evidence insufficient and, referencing In re St. Jude Med., Inc., asserted that, even with similar exposure, it was still necessary for Plaintiff “to prove a causal connection between the deceptive act and a harm they suffered.”[44]

On the question of causality, the district court found that Plaintiff offered “common evidence on both the nature of the misrepresentation and the impact the misrepresentation had on consumers’ purchasing decisions.”[45] The district court referenced Plaintiff’s experts’ survey evidence, particularly a choice-based conjoint survey offered by Plaintiff’s expert Dr. Iyengar to support this finding.[46] Dr. Iyengar’s survey measured consumers’ preference for ground coffee products that contain more versus fewer than six fluid ounce servings relative to five other product attributes, all else equal.[47] Dr. Iyengar’s survey does not examine whether the at-issue claim impacted consumers’ decisions to purchase the at-issue products or investigate proposed class members’ purchase drivers related to the at-issue products.[48] To answer these questions, the appellate court relied on deposition testimony offered by Named Plaintiffs in the other statewide classes. Specifically, the appellate court cited testimony from Plaintiffs in the other statewide classes who indicated on the record that the at-issue “MAKES UP TO” claim did not impact their purchasing decisions.[49] The appellate court’s elevation of deposition testimony in its decision highlights the influence that “real-world” testimony and data can have on the question of common versus individual issues. The appellate court’s decision is a reminder that the choice of survey, and the specific questions a survey seeks to address, can be crucial for either side’s success in making an argument. Here, surveys that directly addressed the question of causality—that is, whether proposed class members noticed, processed, and relied on the allegedly misleading information when considering a purchase of the at-issue products—and an investigation into consumers’ purchase drivers could have helped the court to understand consumer behavior in this matter.

Overall, this case presents an interesting insight into the facets that drive consumer decision-making, including the extent to which consumers pay attention to, process, and rely on certain packaging information. In answering each of these questions, a researcher may consider the extent to which consumers may vary in any or all of these aspects.

 

*   Rene Befurt is a Managing Principal at Analysis Group and co-leads the Marketing, Consumer Behavior & Surveys practice. Dr. Befurt is an expert in applying marketing research methods to strategic business problems and litigation matters. He has served as an expert witness in numerous survey and sampling matters, and he assists academic affiliates in the conceptualization, administration, and evaluation of surveys. His specialty in consumer surveys is the development and evaluation of survey experiments and choice modeling approaches. Sai Sindhura Gundavarapu is a Senior Associate at Analysis Group and a core member of the Marketing, Consumer Behavior & Surveys practice. Dr. Gundavarapu’s experience includes a wide range of analytical applications as well as the design and evaluation of empirical quantitative and qualitative research studies to assess consumer perception and behavior around topics related to marketing and branding. Riddhima Sharma is an Associate at Analysis Group and a core member of the Marketing, Consumer Behavior & Surveys practice.

[1]   In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP (W.D. Mis. Jul. 31, 2024) (Order Granting in Part Plaintiffs’ Motion for Class Certification); Sorin v. Folger Coffee Co. (In re Folger Coffee Marketing), No. 24-2830 (8th Cir. Nov. 26, 2025) (Opinion).

[2]   In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP, at 10 (W.D. Mis. Jul. 31, 2024) (Order Granting in Part Plaintiffs’ Motion for Class Certification); Sorin v. Folger Coffee Co. (In re Folger Coffee Marketing), No. 24-2830 (8th Cir. Nov. 26, 2025) (Opinion).

[3]   Sorin v. Folger Coffee Co. (In re Folger Coffee Marketing), No. 24-2830, at 4 (8th Cir. Nov. 26, 2025) (Opinion). (citing In re St. Jude Med., Inc., 522 F.3d 836, 838 (8th Cir. 2008) and Owen v. Gen. Motors Corp., 533 F.3d 913, 922 (8th Cir. 2008)).

[4]   Id. at 4.

[5]   Id. at 5.

[6]   Id. at 5.

[7]   In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP, at 9–10 (W.D. Mis. Jul. 31, 2024) (Order Granting in Part Plaintiffs’ Motion for Class Certification); Sorin v. Folger Coffee Co. (In re Folger Coffee Marketing), No. 24-2830, at 5 (8th Cir. Nov. 26, 2025) (Opinion).

[8]   In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP, at 1 (W.D. Mis. Feb. 27, 2023) (Dkt. 240, Third Amended Consolidated Class Action Complaint).

[9]   In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP, at 3 (W.D. Mis. Jul. 31, 2024) (Order Granting in Part Plaintiffs’ Motion for Class Certification).

[10] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP, at 18 (W.D. Mis. Feb. 27, 2023) (Dkt. 240, Third Amended Consolidated Class Action Complaint).

[11] Id. at 18.

[12] Id. at 19.

[13] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP, at 1 (W.D. Mis. Mar. 22, 2023) (Dkt. 301, Suggestions in Support of Plaintiffs’ Motion for Class Certification).

[14] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP (W.D. Mis. Jul. 17, 2023) (Dkt. 316 Defendants’ Suggestions in Opposition to Plaintiffs’ Motion for Class Certification).

[15] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP, at 3 (W.D. Mis. Jul. 31, 2024) (Order Granting in Part Plaintiffs’ Motion for Class Certification).

[16] In re Folgers Coffee Marketing Litigation, No. 21-MD-02984-BP (W.D. Mis. Jan. 26, 2024) (Dkt. 395 Plaintiffs’ Supplemental Brief Pursuant to ECF No. 391).

[17] In re Folgers Coffee Marketing Litigation, No. 21-MD-02984-MD-C-BP (W.D. Mis. Feb. 9, 2024) (Dkt. 404 Defendants’ Response to Plaintiffs’ Supplemental Brief Pursuant to Doc. 391).

[18] In re Folgers Coffee Marketing Litigation, No. 21-MD-02984-BP (W.D. Mis. Feb. 23, 2024) (Dkt. 406 Plaintiffs’ Supplemental Reply Brief Pursuant to ECF No. 391).

[19] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP, at 2 (W.D. Mis. Jul. 31, 2024) (Order Granting in Part Plaintiffs’ Motion for Class Certification).

[20] Id. at 5, 6.

[21] Id. at 9–10.

[22] Id. at 10.

[23] Id. at 10.

[24] Id. at 11.

[25] In re Folgers Coffee Marketing Litigation, No. 24-2830 (8th Cir. Dec. 3, 2024) (Brief of Appellants The J.M. Smucker Company and The Folger Coffee Company); In re Folgers Coffee Marketing Litigation, No. 24-2830 (8th Cir. Feb. 6, 2025) (Brief of Appellees); In re Folgers Coffee Marketing Litigation, No. 24-2830 (8th Cir. Mar. 31, 2025) (Reply Brief of Appellants The J.M. Smucker Company and The Folger Coffee Company).

[26] Sorin v. Folger Coffee Co. (In re Folger Coffee Marketing), No. 24-2830 (8th Cir. Nov. 26, 2025) (Opinion).

[27] Id. at 3 (citing In re St. Jude Med., Inc., 522 F.3d 836, 838 (8th Cir. 2008)).

[28] Id. at 4.

[29] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-C-BP (W.D. Mis. Mar. 22, 2023) (Dkt. 259 Declaration and Expert Report of J. Michael Dennis, Ph.D); In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-C-BP (W.D. Mis. Mar. 22, 2023) (Dkt. 259 Expert Report of Samantha Iyengar, Ph.D.).

[30] Id. at 4–5.

[31] Id. at 4 (citing In re St. Jude Med., Inc., 522 F.3d 836, 838 (8th Cir. 2008) and Owen v. Gen. Motors Corp., 533 F.3d 913, 922 (8th Cir. 2008)).

[32] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-C-BP (W.D. Mis. Mar. 22, 2023) (Dkt. 259 Declaration and Expert Report of J. Michael Dennis, Ph.D); In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-C-BP (W.D. Mis. Mar. 22, 2023) (Dkt. 259 Expert Report of Samantha Iyengar, Ph.D.).

[33] Id. at 5.

[34] Id. at 5., referencing Hudock v. LG Elecs. U.S.A., Inc., 12 F.4th 773, 777 (8th Cir. 2021).

[35] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-C-BP, at 21 (W.D. Mis. Mar. 22, 2023) (Dkt. 262 Expert report of Daniel P. Werner, Ph.D., CPA).

[36] Id. at 5 (citing Johannessohn v. Polaris Indus. Inc., 9 F.4th 981, 987–88 (8th Cir. 2021)).

[37] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP (W.D. Mis. Jul. 31, 2024) (Order Granting in Part Plaintiffs’ Motion for Class Certification); Sorin v. Folger Coffee Co. (In re Folger Coffee Marketing), No. 24-2830 (8th Cir. Nov. 26, 2025) (Opinion).

[38] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP, at 9-10 (W.D. Mis. Jul. 31, 2024) (Order Granting in Part Plaintiffs’ Motion for Class Certification); Sorin v. Folger Coffee Co. (In re Folger Coffee Marketing), No. 24-2830, at 5 (8th Cir. Nov. 26, 2025) (Opinion).

[39] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-C-BP (W.D. Mis. Mar. 22, 2023) (Dkt. 259 Declaration and Expert Report of J. Michael Dennis, Ph.D); In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-C-BP (W.D. Mis. Mar. 22, 2023) (Dkt. 259 Expert Report of Samantha Iyengar, Ph.D.).

[40] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-C-BP, at 16-19 (W.D. Mis. Mar. 22, 2023) (Dkt. 259 Declaration and Expert Report of J. Michael Dennis, Ph.D).

[41] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP, at 9 (W.D. Mis. Jul. 31, 2024) (Dkt. 428 Order Denying Defendants’ Motions to Exclude or Strike Opinions Offered by Dr. J. Michael Dennis).

[42] Sorin v. Folger Coffee Co. (In re Folger Coffee Marketing), No. 24-2830, at 5 (8th Cir. Nov. 26, 2025) (Opinion).

[43] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP, at 9 (W.D. Mis. Jul. 31, 2024) (Order Granting in Part Plaintiffs’ Motion for Class Certification).

[44] Sorin v. Folger Coffee Co. (In re Folger Coffee Marketing), No. 24-2830, at 4 (8th Cir. Nov. 26, 2025) (Opinion) (citing In re St. Jude Med., Inc., 522 F.3d 836, 838 (8th Cir. 2008)).

[45] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-W-BP, at 11 (W.D. Mis. Jul. 31, 2024) (Order Granting in Part Plaintiffs’ Motion for Class Certification).

[46] Id. at 10.

[47] In re Folgers Coffee Marketing Litigation, No. 21-2984-MD-C-BP (W.D. Mis. Mar. 22, 2023) (Dkt. 259 Expert Report of Samantha Iyengar, Ph.D.).

[48] Id.

[49] Sorin v. Folger Coffee Co. (In re Folger Coffee Marketing), No. 24-2830, at 5 (8th Cir. Nov. 26, 2025) (Opinion).