Survey Critiques

Many occasions arise where clients need to critique a survey.  These critiques can prove decisive in neutralizing or highlighting the fatal flaws of an opponent’s survey either during or prior to trial.


fico v. experion


A recent example where Jacoby’s critique of plaintiff’s survey led the jury to accord it little, if any weight in arriving at its decision, see Fair Isaac Corp. v. Experian Information Solutions et al.[1]


“Jack’s critique of the plaintiff’s two surveys was spot-on.  His encyclopedic knowledge of the science of consumer surveys is extraordinarily helpful, as is his ability to break it all down for the jury in a common-sense manner.” – Christopher J. Glancy, Partner at White & Case, LLP

[1] Fair Isaac Corporation and myFICO Consumer Services, Inc., v. Experian Information Solutions Inc.; Trans Union, LLC; Vantagescore Solutions, LLC  U.S.D.C.  D. Minnesota. civil no. 06-4112 ADM/JSM.  2009 WL 4263699.




Allianz critique



Where defendant, Allianz Life Insurance Co., had more than a billion dollars at risk, Jacoby’s testimony regarding plaintiff’s survey led the jury to accord it little, if any, weight.[1]


Jack’s expert testimony and critique of plaintiff’s experts was a key factor of our trial team’s defense verdict.  Jack provided the basis of an attack of plaintiffs’ experts and surveys, allowing us to clearly and conclusively demonstrate the jury that plaintiff’s surveys were flawed and unpersuasive.  – Thomas J. Finn, Partner, McCarter & English, LLP

[1] Mooney v. Allianz Life Ins. Co. of North America (Not Reported in F.Supp.2d, 2010 WL 419962 D.Minn., January 29, 2010 ((NO. CIV. 06-545 ADM/FLN)).


geico v. google

A prime example of where Jacoby’s critique of an opponent’s survey was instrumental in achieving favorable settlement in the midst of trial is Government Employees Ins. Co.(GEICO) v. Google, Inc.[1]  Along with conducting a survey for defendant, Jacoby also provided a critique of plaintiff’s survey.  After defense counsel used the points raised in this critique to cross-examine plaintiff’s survey expert, the court advised settlement mid-trial, telling plaintiff it had no credible survey evidence of likely confusion.  A settlement very favorable to defendant ensued,[2] thereby appreciably enhancing Google’s ability to present sponsored links (advertising) on the pages generated by its search engine.


Recent examples of where Jacoby’s survey critiques have been instrumental in achieving favorable settlements prior to trial include the following.

Plaintiff in Miller International v. Clinch Gear et al.,[3] the manufacturer of Cinch western clothing, proffered a survey purporting to show that the appearance of defendant’s mark, Clinch Gear, on clothing would be likely to cause confusion.


Quite simply, Jack tore the opposing expert’s study to shreds.  He cogently poked holes in virtually every aspect of the survey he was critiquing.  Jack’s written report very clearly detailed the study’s flaws and improper premises, stating them in a professorial yet understandable, juror-friendly manner.  He not only made them seem obvious, but also called into serious doubt how anyone could have proceeded that way.  The case settled within a week after serving Jack’s report.” –  Robert L. Raskopf, Senior Partner, Quinn Emanuel Urquhart & Sullivan, LLP


[1] Not Reported in F.Supp.2d, 2005 WL 1903128 E.D.Va.,2005
[2] Descriptions of plaintiff’s survey, Jacoby’s critique and his survey for defendant can be found in: Jacoby, J. and Sableman, M. (2007) Keyword-Based Advertising: Filling in Factual Voids (GEICO v. Google). 97:3  The Trademark Reporter. 681-731.  PROVIDE LINK #3-4 on page 17
[3] Miller International, Inc. v. Clinch Gear et al. (U.S.D.C. D. CO, Civil Action 10-CV-01167 WDM-CBS).


Plaintiff in Innovation Ventures v. N.V.E. Pharmaceuticals[1] had commissioned three surveys by three different experts. The first study was designed to show that its mark 5 Hour Energy was not generic, the second to show that the mark had acquired secondary meaning among consumers of energy drinks, and the third to show that defendant’s mark, 6 Hour Power, was likely to cause confusion.


“Jack single handedly took on three complex surveys Plaintiff’s experts generated and, when the dust settled, he successfully dissected and revealed the flaws of each survey resulting in the court giving the flawed surveys virtually no credence.  Jack’s no-nonsense style of methodically peeling away the layers of our opponent’s surveys, digesting them in a practical and understandable way, and then delivering a timely, sharply focused, compelling expert report, was of great service, and remarkable value to, our client 6 Hour Power.” -Douglas LaLone, Partner at Rader, Fishman & Grauer, PLLC

[1] Innovation Ventures, LLC, d/b/a Living Essentials v. N.V.E. Pharmaceuticals. U.S.D.C. E.D. Michigan (Southern Division) 2-08-cv-11867-LPZ-MAR, Filed 09-15-2010.