Consumer surveys have been offered as evidence in trademark infringement matters for decades. The U.S. Court of Appeals for the Ninth Circuit noted in 2015 that surveys are now “de rigueur in patent cases” as a tool to evaluate and quantify damages relating to alleged infringement, highlighting the increasing acceptance of surveys across practice areas. Sentius International LLC v. Microsoft Corp., 2015 WL 331939 (N.D. Cal. Jan. 23, 2015). In addition to being used to provide evidence on drivers of consumer demand in recent high-profile patent litigations involving firms such as Apple, Microsoft, Samsung, Oracle, and Google, consumer surveys are also being used to evaluate the presence or extent of consumer harm in false advertising and consumer protection cases. Such surveys might explore how consumers’ purchase decisions may change if a product were advertised in a different manner or if the claims by a competitor were narrowed. See, e.g., Aviva Sports, Inc. v. Fingerhut Direct Marketing, Inc., 829 F. Supp. 2d 802 (D. Minn. 2011); Millennium Laboratories, Inc. v. Ameritox, Ltd., 924 F. Supp. 2d 594 (D. Md. 2013). Furthermore, such surveys can be used to fill an evidentiary gap in employment-related class actions, such as for missing or incomplete employment records or a lack of documentation as to the pay and promotion decisions of a large group of managers. See, e.g., Tyson Foods, Inc. v. Bouaphakeo et al., 136 S. Ct. 1036, 1046–49 (2016); Wal-Mart Stores, Inc. v. Dukes et al., 564 U.S. 338, 356–57 (2011). In such cases, admissibility of the survey may depend on the relevance of the response group and whether a statistical sample is sufficient to determine class-wide liability.
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