Expert Witness Profiler

Tag: Branding

  • Psychology Expert’s Testimony on Consumer Perceptions of Online Posts Excluded

    Psychology Expert’s Testimony on Consumer Perceptions of Online Posts Excluded

    This case arises out of an ongoing dispute between Plaintiffs LoanStreet, Inc. (“LoanStreet”) and LoanStreet CEO Ian Lampl (“Lampl,” and together with LoanStreet, “Plaintiffs”) and a former employee, Defendant Wyatt Troia (“Troia”).

    LoanStreet, a online platform which provides services to help clients share, manage, and originate loans, hired Troia to work as a software engineer in February 2019.  In June 2020, LoanStreet terminated his employment. Troia subsequently posted disparaging statements about LoanStreet, Lampl, and other LoanStreet employees on various websites, including Glassdoor.com and Reddit.com.

    Troia also purchased advertisements on Google that would appear when users searched the following terms or phrases: “LoanStreet”; “Loan Street”; “LoanStreet Glassdoor”; “LoanStreet careers”; “LoanStreet engineering”; “LoanStreet software engineering”; “What it’s like to work at LoanStreet”; and “LoanStreet Jobs.” Each of Troia’s Google advertisements began with the heading: “LoanStreet horror story” and linked to a Reddit post he had made, titled: “Name and Shame: LoanStreet (NY) cheated me out of equity.”

    Plaintiffs brought suit against Troia, asserting claims for breach of contract, defamation and unfair competition.

    Troia filed a motion to exclude Plaintiffs’ proposed expert, Allen Adamson while Plaintiffs filed a motion to exclude Troia’s proposed experts, Deepak Sabiki and Lamarcus Bolton.

    Branding Expert Witness

    Allen P. Adamson is a co-founder and managing partner of Metaforce, a marketing and brand consultancy, and he is an Adjunct Professor and guest lecturer at New York University’s Stern School of Business. He received his B.S. from the S.I. Newhouse School of Public Communications at Syracuse University and his MBA from New York University’s Stern School of Business.

    Want to know more about the challenges Allen Adamson has faced? Get the full details with our Challenge Study report.  

    Forensic Accounting Expert Witness

    Deepak Sabiki is a principal at Sabiki Consulting LLC, and he serves as a consulting and testifying expert in “forensic accounting, compliance, and litigation matters.” Sabiki received his B.S. in Finance and Economic Theory Analysis from New York University’s Stern School of Business.

    Get the full story on challenges to Deepak Sabiki’s expert opinions and testimony with an in-depth Challenge Study

    Psychology Expert Witness

     Dr. Lamarcus R. Bolton is a Principal at Insightful Holdings, a research firm based in Los Angeles, California. He attended St. Louis University, where he received his B.A. in Psychology and his M.S. and PhD in Industrial/Organizational Psychology.

    Discover more cases with Lamarcus Bolton as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    a. Troia’s Daubert Motion

    Troia filed a motion to exclude the testimony of Plaintiffs’ proposed expert, Allen Adamson.

    In his thirty-six-page report, Adamson evaluated the damage sustained to LoanStreet’s brand as a result of Defendant’s defamatory statements, focusing on the impact of his advertisements and posts on the company’s brand, and specifically on its ability to recruit software engineers and other prospective employees, attract and retain investors, and appeal to customers. Adamson further assessed the reputational damage sustained by Lampl’s “personal brand” due to Defendant’s statements.

    He ultimately determined that LoanStreet would need to spend a total of $3,700,000 over at least two years to repair its reputation with software engineers, prospective customers, and investors, and that Lampl would be required to spend between $750,000 and $2,500,000 over the next three to five years in order to adequately restore his reputation and safeguard his future career prospects.

    Troia claimed that Adamson’s testimony should be excluded as “irrelevant, unreliable, and prejudicial” and raised a variety of concerns centering primarily upon the assertion that Adamson’s report did not adequately establish causation by isolating the harm caused by Defendant’s defamatory statements.

    He also asserted that Adamson’s damages calculation impermissibly accounts for the republication of Defendant’s defamatory statements by third parties, which Troia contended is speculative and resulted in an “artificially inflated” damages amount.

    As Plaintiffs noted, broad general damages are permitted in cases involving defamation per se, and Adamson’s testimony is thus squarely relevant to those claims.

    The Court held that Troia’s remaining concerns regarding Adamson’s report and proposed testimony primarily concerned the weight of his testimony, rather than its admissibility, and are best addressed on cross examination.

    b. Plaintiffs’ Daubert Motion

    i. Deepak Sabiki

    Sabiki reviewed Adamson’s expert report and, after reviewing additional documents in this case, issued a ten-page rebuttal report in which he concluded that Adamson’s report is “speculative and not reliable, because it fails to tie the wrongful acts of Troia to the economic harm that LoanStreet and Lampl allegedly suffered.” 

    Plaintiffs contended that Sabiki’s report should be precluded because: (i) he has no expertise in branding and reputational harm or repair; (ii) he did not perform his own analysis or proffer a contrary damages calculation; and (iii) his proposed testimony presents arguments that counsel could make equally well without a witness.

    As an experienced consulting and testifying expert in litigation and forensic accounting with a degree in finance and economic theory analysis, the Court held that Sabiki is qualified to testify as a rebuttal expert regarding Adamson’s analysis of the economic damages sustained by Plaintiffs as a result of Defendant’s defamatory posts. Moreover, Defendant clarified that Sabiki is testifying solely as a rebuttal expert.

    Although Plaintiffs contended that Sabiki’s analysis consisted of observations that “can be observed readily by jurors and/or brought out in cross examination without benefitting from any aid by an expert,” they have not raised sufficient concerns regarding Sabiki’s qualifications or the reliability and relevance of his testimony. On the contrary, Sabiki’s opinion raised questions regarding Adamson’s analysis and methodologies, centering primarily on his failure to perform an economic causation analysis and a comparative damages analysis, as well as the data and assumptions underlying Adamson’s report. Although Plaintiffs may disagree with Sabiki’s conclusions, the Court held that those disagreements are best addressed on cross-examination.

    ii. Dr. Lamarcus Bolton

    Bolton conducted two surveys intended to “analyze public perceptions of the Defendant’s online statements regarding” LoanStreet and “gauge how these perceptions influenced potential employees’ and potential customers’ decisions to work for or engage in business with LoanStreet.”

    In his 137-page report, Bolton concluded, inter alia, that the survey results suggested that “the vast majority of the readers” of Troia’s posts “did not think the posts accused LoanStreet of breaking the law when it withheld equity compensation from Troia.”

    The primary issue with Bolton’s survey and report, as Plaintiffs noted, is its focus on whether respondents believed that Defendant had accused Plaintiffs of “breaking the law.” The use of this phrase appeared to be designed to determine whether the survey respondents believed defendant’s posts conveyed defamatory meaning. However, “breaking the law” carries an indisputably criminal connotation, and its use is entirely inappropriate in a survey carried out to assist in the determination of damages owed in a civil litigation. 

    Further, the Court agreed with Plaintiffs that both surveys impermissibly attempted to relitigate the question of liability and Defendant’s intent in crafting his posts by asking whether it “is possible” that the author of the posts “did not intend to claim LoanStreet broke the law” or was “motivated . . . by a desire to protect fellow workers” and asking whether the author’s post was “useful to public debate about workers’ rights.” Moreover, the fact that Bolton’s survey examining Defendant’s Reddit post did not include all the defamatory statements contained in the original post rendered that survey unusable.

    Additionally, both surveys are less reliable because they failed to exclude survey respondents with prior knowledge of Defendant’s posts regarding Plaintiffs or who had pre-existing perceptions regarding LoanStreet.

    Held

    • The Court denied Troia’s motion to exclude the testimony of Plaintiffs’ expert Allen Adamson.
    • The Court denied Plaintiffs’ motion to exclude the testimony of Troia’s experts with respect to Deepak Sabiki but granted it with respect to Dr. Lamarcus Bolton.

    Key Takeaway:

    While each methodological flaw, standing alone, may not mandate exclusion, the cumulative effect of the methodological flaws so diminishes the reliability and probative value of the survey that its exclusion is warranted under Rules 403 and 702.

    Case Details:

    Case Caption: Loanstreet Inc. Et Al V. Troia
    Docket Number: 1:21cv6166
    Court Name: United States District Court, New York Southern
    Order Date; September 03, 2025
  • Marketing Expert Witness Allowed to Testify Despite Her Relative Inexperience in the Field of Trademark Law

    Marketing Expert Witness Allowed to Testify Despite Her Relative Inexperience in the Field of Trademark Law

    This case concerns use of the term “XHALE” in connection with identical retail smoke shop services, marketing through the same channels, to the same customer base, and in Hattiesburg, on the same street, resulting in rampant actual confusion. Plaintiff Green Rush, LLC, d/b/a Xhale City claims that its federal trademark registration for “XHALE CITY” not only grants it nationwide priority, but presumptively valid trademark rights.

    Defendants hope that third-party use of the term “xhale” will be sufficient to cancel Plaintiff’s registration and negate likelihood of confusion.

    Green Rush opened its Hattiesburg, Mississippi, location on March 18, 2022, at 6062 Highway 98 (a/k/a Hardy Street), Hattiesburg, Mississippi. Prior to that, in the fall of 2020, Xhale Smoke Shop Defendants opened their first location at 4400 Hardy Street, Suite B8, in Hattiesburg, Mississippi. Since that time, Xhale Smoke Shop Defendants have opened five other Xhale Smoke Shop stores in the towns of Columbia, Seminary, Ellisville, Sumrall, and Prentiss, Mississippi, all within a forty-mile radius of Hattiesburg. Both Plaintiff and Defendants sell smoking and vaping related products.

    Defendants designated Dr. Katharine Howie, Ph.D., Assistant Professor of Marketing at the University of Southern Mississippi, as an expert in the field of branding and marketing. Green Rush argued that Howie is unqualified to offer testimony on the subject of trademarks, that she offers legal conclusions, and that her report is otherwise flawed in that her facts and methodology are unreliable.

    Marketing Expert Witness

    Katharine Howie, Ph.D., is an Assistant Professor of Marketing at the University of Southern Mississippi. Howie has worked in the field of business marketing, received her master’s and doctoral degrees in the field, taught a broad array of undergraduate and graduate courses on the subject, has prolifically published and presented in the field, and has conducted extensive research on brand activism, digital and social media marketing, as well as other related topics. 

    Get the full story on challenges to Katharine Howie’s expert opinions and testimony with an in-depth Challenge Study

    Discussion by the Court

    Katharine Howie explored the potential legal protection for the term “xhale” in the smoking and vaping industry. After conducting a review of trademark records, business listings, and Google and social media search data, Howie concluded that “xhale” is not a “source signifier” and that a “plethora of other companies within the vaping industry use this exact word and spelling in their operating name.” 

    Howie also examined search traffic on Google and determined that a large volume of consumers search specifically for “xhale,” but the majority do not navigate to “Xhale City,” whereas a “preponderance of Xhale City’s web traffic is derived from searchers explicitly searching for ‘xhale city’ either in isolation or with additional words.”

    A. Dr. Howie’s Qualifications

    Plaintiff argues that Howie’s CV does not indicate any expertise, training, or experience in determining consumer awareness of trademarks and, therefore, she is not qualified to make expert conclusions on such matters.

    The Court finds that Howie’s relative inexperience in the field of trademark law does not preclude her from testifying in this case as an expert on marketing and branding. The Court held that Plaintiff’s concerns about Howie’s opinion testimony are best tested by vigorous cross-examination and presentation of contrary evidence.

    Plaintiff also argued that Howie’s report presents improper legal opinion. The Court holds that an opinion is not objectionable just because it embraces an ultimate issue; however, an expert may never render conclusions of law. It is the Court’s job, not an expert witness’s, to instruct the jury as to the applicable law. To the extent that Howie’s report and proposed testimony may render conclusions of law, the Court held that it is inadmissible. However, she is free to testify about her experience in branding and marketing, the research supporting her report, any quantifiable conclusions she has reached, and the facts supporting her report and opinion, even if her opinion embraces an ultimate issue.

    B. Data and Methodology

    Plaintiff argued that Howie’s report is inadmissible because it is not based on sufficiently reliable facts or data that have evidentiary support, and fails to provide any methodology whatsoever.

    The Court held that its gate-keeping obligation applies to all types of expert testimony, not just scientific testimony. Whether Daubert’s suggested indicia of reliability apply to any given testimony depends on the nature of the issue at hand, the witness’ particular expertise, and the subject of the testimony. It is a fact-specific inquiry. The Court’s responsibility is to ensure that an expert in the courtroom employs the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

    The Court concluded that Howie is qualified in the field of marketing and branding and that her testimony and report are reliable based on her experience and specialized knowledge in her field. In other words, her report is not so fundamentally unsupported that it cannot possibly help the jury. While Howie’s report is not extensive, it is straight-forward and to the point.

    Held

    The Plaintiff’s motion to exclude the testimony of marketing expert witness, Katharine Howie is granted in part and denied in part.

    Key Takeaways:

    Howie’s relative inexperience in the field of trademark law did not preclude her from testifying in this case as an expert on marketing and branding. While Howie’s report is not extensive, it is straight-forward and to the point. Howie’s approach, method, rationale, and the data gathered by her internet and other searches are plain and within the grasp of the Court, as they will be for a jury.

    Case Details:

    Case Caption: Green Rush, Llc V. Xhale Tobacco & Hookah, Inc. Et Al
    Docket Number: 2:23cv71
    Court: United States District Court for the Southern District of Mississippi, Eastern Division
    Order Date: October 10, 2024
  • Court limits testimony of Marketing Expert Witness citing lack of experience analyzing consumer confusion from either a legal or marketing perspective in trademark infringement suit

    Court limits testimony of Marketing Expert Witness citing lack of experience analyzing consumer confusion from either a legal or marketing perspective in trademark infringement suit

    In the case involving Plaintiff Blue Bottle Coffee, LLC and Defendants Southern Technologies, LLC and Hui Chuan Liao, the Plaintiff, a coffee business, filed a lawsuit in August 2021 and an amended complaint in November 2021. The dispute centered on alleged trademark infringement and unfair competition claims. The Plaintiff held multiple registered trademarks, including two solely consisting of a shade of blue, Pantone 2995 C, and asserted trade dress in its product packaging.

    Defendants, who began using the name “Blue Brew” in 2017, were accused of selling coffee-related products with packaging and branding that closely resembled the Plaintiff’s, including the use of a similar shade of blue and the word “blue.”

    On April 7, 2023, the Plaintiff served three expert reports from Jeffrey S. Andrien, Norman Broadhurst; and Jill Morton. Jill Morton provided testimony regarding branding and the use of color in the case. On May 22, 2023, updated versions of these reports were provided to the Defendants. Jill Morton was deposed by the Defendants on July 20, 2023. Subsequently, on August 11, 2023, the Defendants filed a Daubert motion to exclude Jill Morton’s testimony challenging the reliability and relevance of each of Morton’s three conclusions and her corresponding analyses: (A) the color blue as a source-identifying attribute of Plaintiff’s brand, (B) the color blue that the parties used in connection with their brands was “similar or nearly identical”; and (C) the combined effect of the color blue and the word “blue” on Defendants’ products would cause consumer confusion with Plaintiff’s products.

    Marketing Expert Witness

    Jill Morton is the CEO of Colorcom, a consulting firm that “specializes in helping companies understand how to use color most effectively.” Morton received a Bachelor of Fine Arts from the University of California, Santa Barbara, where she also completed a fifth year of study in the Graduate School of Education. She also received a Master of Fine Arts in design from the University of Hawaii. As a color consultant, Morton leverages her extensive technical and professional knowledge about color to provide guidance on a diverse range of projects. Her expertise encompasses aspects such as the psychological impact of color, creative color combinations, harmonious color choices, visual ergonomics, and staying current with marketing trends. Morton applies these critical factors to offer successful solutions for her global clientele.

    Discussions by the Court 

    Jill Morton had a degree in Art Education and an MFA in design, along with over twenty years of experience as a “brand identity expert.” She had also taught courses on color at universities and colleges for over 20 years, including a graduate-level course on the psychological and physiological effects of color. The Court found her qualified to provide testimony regarding Plaintiff’s use of the color blue as a source-identifier, emphasizing the broad conception of expert qualifications under Rule 702.

    Defendants had argued that Morton’s qualifications were unreliable because she wasn’t a licensed psychologist or a scientist and hadn’t published peer-reviewed papers. However, Morton clarified that she referred to herself as a “color consultant” and only discussed psychology in the context of how it related to branding and consumer behavior, drawing from her extensive marketing experience. The Court agreed that her expertise was rooted in her marketing experience, and any questions about her qualifications went to the weight of her testimony, not its admissibility.

    Defendants also contested the reliability of Morton’s testimony because she didn’t conduct consumer surveys or interview Blue Bottle employees about their advertising strategies. Morton defended her opinion, stating that she relied on her experience advising brands on color and consumer associations. The Court agreed that the absence of surveys or interviews impacted the weight of her testimony but didn’t render it inadmissible.

    To prevail in a trademark infringement claim, the claimant needed to demonstrate the validity of their mark, which could be through federal registration, a suggestive mark, or secondary meaning in the market. Morton’s discussion about the functionality of blue in branding was relevant to the trademark infringement inquiry, as it related to the validity of the marks.

    Morton proceeded to assert that the shade of blue used by the Defendants on their packaging, Pantone 305 C, was “nearly identical” to the Blue Bottle Blue Marks, Pantone 2995 C. She emphasized her expertise in both Pantone and CMYK colors, backed by 20 years of experience in understanding how consumers perceive these color systems.

    To facilitate the jury’s evaluation of these color similarities, Morton conducted a Pantone color analysis. Pantone, a company and system for classifying colors, formulates mixing formulas for various shades. Morton provided a breakdown of the color ingredients for Pantone 2995 C (Blue Bottle Blue) and Pantone 305 C (Defendants’ blue) based on the Pantone Color Guide. She explained that these colors contained varying proportions of Pantone Pro Blue and Pantone Transparent White, which determined the degree of lightness for each shade.

    While Pantone 2995 C (Blue Bottle Blue) had a relatively small percentage of Pantone Ref Blue, Morton pointed out that it shared identical ingredients with Pantone 305 C (Defendants’ Blue) in terms of Pantone Pro Blue and Pantone Transparent White. Consequently, Morton concluded that the shades of blue were “similar or nearly identical.”

    Morton had also conducted a CMYK analysis, which is a color formula system for printing materials. It involves using varying percentages of cyan, magenta, yellow, and black to create specific shades of color. In her analysis, Morton compared the CMYK formulas for Plaintiff’s and Defendants’ shades of blue, using a Pantone guide called “Color Bridge by Pantone.” She found that both colors predominantly consisted of cyan, with only minimal amounts of other colors. Additionally, Morton analyzed two unrelated shades of blue, contrasting them with the Plaintiff’s and Defendants’ colors, noting that they contained more magenta and black.

    Defendants had primarily questioned the reliability of Morton’s CMYK analysis, contending that Plaintiff provided no evidence to establish the peer-reviewed or previously accepted nature of her particular CMYK analysis methodology. Morton had clarified that she used the CMYK analysis to translate and confirm the Pantone color composition and similarities she observed. Her approach didn’t involve mathematical analysis but consisted of commentary regarding the CMYK breakdown of four different shades of blue, including those of the Plaintiff and Defendants, all based on Pantone formulas.

    The Court held that in certain fields, Morton’s extensive experience was considered a primary basis for reliable expert testimony, citing Lucido v. Nestle Purina Petcare Co. Her analyses were conducted based on two decades of practical experience with these techniques, aimed at explaining why the two colors might appear similar to the human eye. Given the relatively specialized nature of color’s role in branding, her experience and method explanation were deemed adequate. Any concerns about the reliability of Morton’s analysis could be addressed through cross-examination.

    Morton had stated that she conducted the two color analyses with the purpose of assisting the jury in evaluating the similarities between the marks, as the “Similarity of marks” is a relevant factor in establishing the likelihood of confusion, one of eight factors considered in trademark infringement cases.

    Defendants had argued that there was no need for a “framework” for jurors to compare two colors, as the differences between Plaintiff’s BLUE BOTTLE BLUE Marks and the colors used by Defendants were obvious, and one didn’t need to be a “color psychologist” for such a comparison. Morton herself acknowledged that jurors who had passed some color vision test could perform the color comparison just as well as she could. However, the Court recognized that Morton’s testimony went beyond a mere side-by-side comparison. She delved into the ingredient breakdown of the two Pantone colors, especially considering Plaintiff’s trademark registrations specifically claimed Pantone 2995 C. Morton translated the Pantone ingredients into ink makeups for printing, aiming to provide a nuanced perspective on color and its components as seen from a professional color consultant.

    While jurors could assess color similarity on their own, the Court found that Morton’s expertise could be useful in providing a framework for color interpretation and offering insights into the similarities between Plaintiff’s and Defendants’ shades of blue. Therefore, the Court concluded that Morton was permitted to provide this framework and analyze color similarities based on her experience as a color consultant.

    Morton also relied on Blue Bottle’s longstanding use of its marks and the combined effect of the BLUE BREW brand’s use of a similar color and the word “blue” in its name to argue that there was a likelihood of consumer confusion. Defendants challenged her lack of experience analyzing actual instances of consumer confusion from either a legal or marketing perspective. The Court agreed with Defendants, stating that her testimony wouldn’t assist the trier of fact, as it was essentially a side-by-side comparison, and her determination usurped the role of the jury as factfinders.

    Held

    In conclusion, the Court granted the motion to exclude Morton’s testimony regarding the likelihood of confusion between Plaintiff’s and Defendants’ products but allowed her testimony in all other respects.

    Key Takeaways:

    This case illustrates several important considerations for expert witness testimony under the Daubert standard. First, reliability hinges on the expert’s qualifications and experience in their discipline. The Court found Morton qualified to testify about color and branding given her extensive background, though unqualified on consumer psychology. Second, helpfulness to the jury is key for relevance. Morton’s color analyses assisted the jury in evaluating trademark validity and similarity, but her opinion on consumer confusion usurped their role.  

    Third, methodology matters, especially for scientific testimony. Morton’s color analyses using standard systems were sufficiently reliable from her experience, but her “consumer confusion” analysis lacked sound methodology. Fourth, ultimate legal issues are off limits. Though experts can embrace ultimate factual issues like similarity, they cannot give opinions telling the jury the legal result to reach. Fifth, if in doubt, exclude under Rule 403. Expert opinions with weak methodology risk confusing or misleading jurors. 

    In summary, Daubert requires a flexible inquiry, but proponents must show experts are qualified, use reliable methodology, and provide opinions helpful to the jury without invading its role or confusing the issues. This helps ensure expertise reliably informs while preserving the jury’s fact-finding function.