The Best Part of Waking Up Is … Different Amounts of Folgers in Your Cup?

If you’ve ever looked at a coffee can and wondered whether “makes up to 240 cups” is optimistic marketing or a real-world promise, the Eighth Circuit just brewed a strong take on that very question. Recently, the Eighth Circuit rejected class certification in the Folgers serving-size labeling litigation, finding that consumers vary widely in whether they read the labels, how they interpret the serving instructions and how strong they prefer their coffee. In Smith v. The Folger Coffee Co., in which a Missouri consumer challenged Folgers (and its parent, The J.M. Smucker Company) over those cup-count labels, trying to do so on behalf of a class of Missouri buyers, the Court emphasized that the Missouri Merchandising Practices Act (MMPA) does not allow consumers who suffered no loss to “piggyback” on the alleged injuries of others, making the proposed class inappropriate.

Missouri resident Mark Smith bought Folgers products that touted how many six-ounce cups each container could yield and sued under the MMPA and for unjust enrichment, claiming the cup counts were deceptive. His case was part of a bundle of similar lawsuits transferred by the Judicial Panel on Multidistrict Litigation to the Western District of Missouri for pretrial coordination, where the parties filed a consolidated complaint and sought six statewide classes, with the Missouri class teed up first.

One label example got a lot of airtime: Folgers Classic Coffee Roast, 30.5 ounces, which announced in all caps that it “Makes up to 240 6 fl oz cups.” The side panel gave two brewing options—a Single-Serving Method (six fluid ounces of water with one tablespoon of coffee) and a Pot Method (sixty fluid ounces of water with half a cup, i.e., eight tablespoons)— the court noted the Pot Method is more efficient for producing ten six-ounce cups than making ten single servings. Mr. Smith questioned both, but focused his ire on the single serving method, claiming it only brewed about 70% of the cups promised. In other words, he and others were not getting the benefit of their bargain with their Folgers.

Specifically, Smith alleged that Folgers was unjustly enriched at the proposed classes’ expense due to a shortage of the represented number of six-ounce cups in each container. In other words, under the MMPA, Smith claimed that Folgers’ representations about the number of cups that could be brewed with its coffee products at issue violated the MMPA because they are “false, deceptive, and misleading.”

The district court certified a class for Smith to represent, made up of individuals who bought certain Folgers products “in Missouri for personal, family, or household purposes.” Folgers appealed the decision, and the Eighth Circuit agreed with the Folgers Defendants that the class was improperly certified. The Eighth Circuit cited the familiar standard that under Fed.R.Civ.P. 23(b)(3), the class certification requirement of “predominance” is “demanding” and asks whether common questions are cohesive enough to justify classwide treatment. This requirement is not, however, satisfied when individual questions would overwhelm the questions common to the class. The Court also noted that fraud cases are typically unsuitable for class treatment due to the type of proof required (e.g. representations received and whether there was reliance), which usually affects the predominance of common questions requirement.

The MMPA creates a cause of action for damages for “[a]ny person who purchases . . . merchandise primarily for personal, family, or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment by another person” of an unlawful practice. See Mo. Rev. Stat. § 407.025.1(1). An unlawful practice includes “[t]he act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, [or] unfair practice . . . in connection with the sale or advertisement of any merchandise in trade or commerce.” See id. § 407.020.1.

The MMPA is friendlier to consumers than common-law fraud in one respect—it doesn’t require traditional reliance—but the statute still insists on a causal link between the unlawful practice and an “ascertainable loss.” Simply, you must show the supposed deception actually cost you something, not just that you bought a product with a debatable label. Here, the Court leaned on its established reading of the MMPA to emphasize causation and ascertainable loss as essential elements.

The Court further recognized that class certification was not appropriate, explaining that many buyers might not have noticed the “makes up to” claim; others may have noticed but not cared; still others might have read the statement as conditional—achievable sometimes, under certain brewing conditions—or believed different methods would get them there; plus, preferences for weaker coffee could mean some purchasers got exactly what they bargained for. The record even had testimony from proposed class representatives in other states showing the label did not influence their purchases (one kept buying because “I like my coffee”), which the Court found relevant to predominance—proof that taste, not label lore, often drives the morning routine. Ultimately, deciding who was deceived and who suffered an actual loss would require customer-by-customer inquiries, which undercuts classwide efficiency and does not satisfy the “predominance” requirement.

The Court also considered whether the certification was proper under the “price-premium” theory. Smith argued that even if only some people were misled, the label inflated demand and raised prices, so everyone paid an overcharge. The Eighth Circuit rejected that argument, relying on previous decisions rejecting “piggyback” injuries and predicted the Missouri Supreme Court, if the question was presented to it, would reject market-wide price-inflation theories as a substitute for proving causation and ascertainable loss. Indeed, accepting that approach, the court warned, would effectively erase the MMPA’s loss requirement and let even fully informed buyers sue.

Smith’s unjust enrichment theory did not fare any better. Whether it is “unjust” for a seller to keep a benefit depends on the particulars of each transaction—what the buyer saw, believed, and expected, and what they actually received—so those claims, too, tend to splinter into individualized questions, making them poor candidates for class treatment. Ultimately, the Eighth Circuit’s decision makes clear that uniform packaging does not automatically equal uniform answers under Rule 23 and that greatly affects the strength of a proposed classes’ brewing claims.