Well, we can’t hear otherwise…
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I didn’t say you didn’t need to show both. I said both were an issue (I just wasn’t commenting on the second issue).
I think it would be easy to show “misrepresentation”. Showing damages might not be possible but that issue has no bearing on whether “misrepresentation” could or could not be shown.
I would expect that the jury would have to establish that there was misrepresentation first (before establishing there were sufficient damages). (In a trial I was on, the questions the jury had to answer were stepwise. That is, they had to agree to each question in series. Any vote “no”, precluded any further steps,)
If you can’t convince a judge that there is a plausible basis for a lawsuit then you won’t get in front of a jury to begin with. So you have to at least present a reason why a jury might find in favor of damages.
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Actually…the bar to make it past the judge on a motion to dismiss by the defendant is even higher than plausibility these days. Google “Twiqbal” if you want to geek out on the details of civil procedure. But the tl;dr is that plausibility isn’t enough. You have to have some evidence for your claims even before discovery. The reason for this is to discourage fishing expedition lawsuits. I personally think they went too far, and it also cuts off some legitimate suits where it’s just impossible to get any evidence without discovery, but that’s the rules these days.
Now, for this lawsuit, they have enough, I think, to survive a motion to dismiss. I mean you have the packaging. Whether that was material to the buying decision of the plaintiffs is a question of fact, not law, so that has to go to the jury. I think this is a super weak case. But it’s not frivolous. It’s ridiculous. But not frivolous.
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Logically, the easiest thing to do would be to refund the plaintiff(s) for the bags of candy they ‘were deceived into’ purchasing. Case closed. I think, however, that someone has visions of a larger payout.
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I think there really needs to be some disconnect between what’s charged to the defendant and what’s given to the plaintiff and their lawyers. The level of what’s needed to hurt a corporation is way more than what should be given to an individual.
It’s so sad that people wanna sue over the dumbest things ever and here we are living in a country that is having a such hard time the resses candy company should just replace her with a new pack of her candy and her be happy about it. But I bet she ate the candy anyways but it’s sad that she wants sue a company 5 million dollars for a pack of candy that cost $2 or $3 SMH that just makes me sick that people wanna sue over the dumbest things that just goes to show everyone that there’s so many greedy and ungrateful people out here in this sorry ass country/world that we live in.
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