When a Boise couple posted a video to YouTube last year to show that two different-size cups sold at CenturyLink Arena held nearly the same amount of beer, they did not imagine that it would lead to a lawsuit against the arena.
Heath Forsey and Gwen Gibbs said they were ticked off when they discovered the contents of a 20-ounce beer bought for $7 at an Idaho Steelheads hockey game in March 2014 fit into a 16-ounce cup that sold for $4.
“When I poured the large beer and (it) fit just fine into the small cup, I felt like I was scammed a little bit,” Forsey, 31, said in a court deposition.
Others agreed. The video went viral, and two days later four Idahoans – not including Forsey and Gibbs – sued the Downtown Boise arena’s owner. Two more plaintiffs joined later. The lawsuit is working its way through 4th District Court in Boise, with a jury trial scheduled Nov. 3.
Sign Up and Save
Get six months of free digital access to The Idaho Statesman
Forsey and Gibbs never sought a refund or complained to arena executives. Gibbs says the lawsuit goes too far.
The video shows Forsey at the arena pouring beer from the larger cup into the smaller one, then repeating the experiment the next morning at their home using green water.
Gibbs posted the video to YouTube the same day. It has since been made private on YouTube but can still be viewed at DailyMail.com.
“I saw something that was wrong, and I wanted to alert my friends,” Gibbs said in a separate deposition.
Within a few days, the video had been viewed nearly 280,000 times. Six people — but not Forsey and Gibbs — sued Block 22 LLC, the arena’s owners. The plaintiffs claimed the arena defrauded customers.
The controversy came three years after a similar incident at CenturyLink Field in Seattle, then known as Qwest Field. Fans attending Seattle Seahawks games and other events received 20 ounces of beer when purchasing 16- and 20-ounce beers. A video posted to YouTube brought that issue to public attention.
In Boise, CenturyLink Arena executives said they were surprised as anyone when they watched the video, according to court filings. Eric Trapp, CenturyLink Arena’s general manager; Block 22 CEO John Cunningham and Shawn Newell, the arena’s concession manager at the time, said they were unaware of the discrepancy before they saw the video. Newell said no one had complained about the size difference.
The arena immediately removed the 20-ounce cups and replaced them with 24-ounce cups priced at the same $7. Forsey and Gibbs said they were satisfied with that response.
The lawsuit contends CenturyLink Arena earned $582,649 in excess profits for 20-ounce beer sales going back to September 2009. The company denies it profited unfairly.
The day after Forsey and Gibbs posted their video, Trapp and Cunningham said they conducted experiments of their own. They reported that the 20-ounce cups held 20 ounces of liquid while the 16-ounce cups held 18.5 ounces, 2.5 ounces more than they were supposed to.
“No wrong was committed,” defense attorney Alexander McLaughlin wrote in a court filing. “Patrons that ordered large beers got exactly what they paid for. Patrons that ordered regular (16-ounce) beers, however, received more than what they paid for.”
Boise resident Michele Bonds contacted a lawyer after seeing the video and filed suit. She said she attends 10 to 15 sporting events and concerts annually at CenturyLink and buys two or three beers per event.
“It’s not OK, you know, to overcharge people for essentially the same amount of beer,” Bonds said in a deposition.
Asked what damages she had suffered, Bonds said, “I paid more for a beer that was substantially, essentially, basically the same amount as one that was cheaper.”
Three other plaintiffs, including Bonds’ daughter and son in law, have withdrawn their claims, leaving Bonds and two others.
Plaintiff Brandon Hunt of Nampa said he estimates he has bought about 100 large beers while attending events at CenturyLink Arena.
“I don’t like getting ripped off,” Hunt said in a deposition.
A judge this month said the case is strong enough to advance to trial.
Beverage customers expect more than a “negligible increase” when buying a larger cup, District Judge Deborah Bail said in a Sept. 1 ruling.
“Unless the beer drinkers have had too many beers, they are unlikely to want to pay $3 more for the same product they could have gotten for less,” Bail wrote.
Still, she threw out the fraud allegation, saying there was no evidence to support a claim that Block 22 intentionally tried to rip off customers.
She said a jury would have to decide whether the arena violated provisions of the Idaho Consumer Protection Act, which protects against unfair or deceptive trade acts, and whether the company was unjustly enriched.
Gibbs, in her deposition, said she doesn’t see the point of the lawsuit.
“It’s our general feeling that it’s greedy and unnecessary,” she said.