Nathan A Adams IV is a Partner in Holland & Knight's Tallahassee office
In Silva v. Unique Beverage Co., LLC, No. 3:17-cv-00391, 2017 WL 4896097 (D. Or. Oct. 30, 2017), the plaintiff sued the defendant under Oregon's Unlawful Trade Practices Act after she purchased a "Cascade Ice" beverage product depicting large colorful coconuts, along with the word "Coconut" on the label, below which was stated, "NATURALLY FLAVORED SPARKLING WATER," but containing no actual coconut ingredient or flavor. The defendant argued that no reasonable juror would have been deceived when the labeling of the entire bottle was taken into account, including statements that it "Contains No Coconut" and has "Zero Calories" as well as an ingredient list without coconut. The court disagreed and allowed two theories of damages to proceed: a diminished value and purchase price refund theory, but not an "objective market value loss" theory. The defendant argued that she could not prove diminished value because at 68 cents per can, it was substantially less than the price for coconut beverages, but the court ruled that these facts were outside the four corners of the pleading. The court determined that the plaintiff needs to allege facts showing "some loss," rather than any specific amount of loss, to survive a motion to dismiss. The purchase price refund theory is based on the alleged failure to receive what the defendant's alleged misrepresentation led the plaintiff to believe she was buying.
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