More on the Crunchberry legal saga.

From Lowering the Bar, my favorite litigation news blog:

The tale of Janine Sugawara, the woman who sued the manufacturer of "Cap'n Crunch with Crunch Berries" for allegedly misleading her about the "berries," has turned out to be extremely popular, bringing literally tens of thousands of people to this site over the past few days.

Unfortunately, one of them was her lawyer.

He thought I had been unfair to his client and asked me to clarify that she had not alleged that she personally believed "crunchberries" to be an actual kind of fruit. This was a little puzzling to me, especially since the judge who dismissed her case seemed to have interpreted her claims the way I had (and I had quoted his opinion at length in my post). The lawyer ultimately seemed to accept that this was understandable, but asked me to look at the pleadings and the motion for reconsideration they have filed (that's the "update" - they are asking the judge to reconsider), in order to get a better sense of what the plaintiff was really arguing. So I did that.

If you read her complaint(s) very closely, Ms. Sugawara may not have clearly said that she thought crunchberries were an actual fruit that exist in nature. But she did claim (and still does) that she was misled by the Crunchberries packaging, specifically (1) the word "berry" in the name of the product, (2) the picture of "pieces of cereal in bright fruit colors, shaped to resemble berries," and (3) "the product's namesake, 'Cap'n Crunch,' thrusting a spoonful of 'Crunchberries' at the prospective buyer." See Motion for Reconsideration at p. 2. In the motion, she then says this: "There can be no other reason for the emphasis on berries than to lead consumers to believe the Product is made with real fruit content." Id.

So if I understand correctly, she wasn't saying she thought the cereal was actually made with a fruit called "crunchberries," but rather that the word "berries" and the colorful berry-like objects on the box led her to believe that the "crunchberries" being thrust at her by the Cap'n contained some kind of real berries or real berry parts, when in fact they did not. (Actually, they did - at least "a touch of strawberry fruit concentrate" - though not very much. But let's set that aside for now.)

There is a distinction there, but I'm not sure it's one that makes much of a difference. Here's where I think the problem is: how can a reasonable consumer claim to be misled by the word "berries" immediately following the word "crunch," if that person does in fact know whether or not "crunchberries" really exist? Shouldn't the use of a term that the person supposedly knows is not real be considered a reasonable signal that what's inside the box might not be real, either?

I mean, if you read "The Hobbit," I'm not sure you can complain later that you thought it was going to be a true story.