The importance of being important: Measuring materiality in consumer deception litigation
Matthews, A. Lynn Flugge, Valerie Phillips, M. Christine
Matthews, A. Lynn
Flugge, Valerie
Phillips, M. Christine
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2026-04-20
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Article
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A. LynnMatthews, ValerieFlugge, M. ChristinePhillips, ‘The importance of being important: Measuring materiality in consumer deception litigation’ (2026) Am Bus Law J1.
Abstract
In many cases alleging consumer deception, a plaintiff must prove both that the representation at issue was false or misleading and that it was material. While there is an extensive body of law addressing when a representation is false or misleading, there is a paucity of authority on how to establish that the representation was material. Neither federal regulation nor case law has clearly laid out a standard method by which materiality should be measured. In this article we empirically show how a research study's design can impact its effectiveness in identifying an attribute's materiality and propose a measurement method that can effectively measure both small and large effects of that attribute, independent of the overall desirability of a product and the importance of other characteristics of that product. Using mathematical simulations, we show that between-groups experiments are less effective than within-groups experimental choice tasks at identifying the presence of a material attribute when ceiling effects or other important traits are present in a product. We also explain why focalism bias and the need for marketplace realism are inappropriate objections to the use of a within-groups choice task to measure materiality. Finally, we demonstrate the utility of our proposed methodology with two case studies. © 2026 The Author(s). American Business Law Journal © 2026 Academy of Legal Studies in Business.
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This is an open access article under the CC BY license.
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John Wiley and Sons Inc
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American Business Law Journal
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00027766