Survey Evidence in False Advertising Cases

15 February 2011
By Sarah Butler

Surveys can provide evidence in a false advertising and unfair competition case that a particular claim or product packaging creates a misleading impression and that the claim or packaging has an impact on consumer purchasing decisions. However, while it can be particularly effective and is in many circumstances necessary, survey evidence is always challenged and there is no single manner in which a false advertising survey must be conducted. In this article from the ABA's Trial Practice Committee Newsletter, NERA Vice President Sarah Butler briefly outlines the steps for designing, conducting, and presenting survey evidence in false and misleading advertising cases. Ms. Butler focuses on what issues are likely to be raised in a Daubert challenge and what elements of survey evidence are likely to be compelling and persuasive to the courts and juries.