Browning v. Anheuser-Busch, LLC
| Decision Date | 13 May 2021 |
| Docket Number | Case No. 20-cv-00889-SRB |
| Citation | 539 F.Supp.3d 965 |
| Parties | Megan BROWNING, et al., Plaintiffs, v. ANHEUSER-BUSCH, LLC, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Benjamin Heikali, Pro Hac Vice, Los Angeles, CA, Timothy J. Peter, Pro Hac Vice, Faruqi & Faruqi, LLP, Philadelphia, PA, Tim Eugene Dollar, Dollar, Burns, Becker & Hershewe, L.C., Kansas City, MO, for Plaintiff Megan Browning.
Tim Eugene Dollar, Dollar, Burns, Becker & Hershewe, L.C., Kansas City, MO, for Plaintiff Allen Kesselring.
James F. Bennett, Adam J. Simon, Hannah Preston, Dowd Bennett LLP, Clayton, MO, for Defendant.
Before the Court is Defendant Anheuser-Busch, LLC's ("AB") Motion to Dismiss. (Doc. #10.) For the reasons stated below, the motion is GRANTED IN PART and DENIED IN PART.
This lawsuit is a consumer protection class action brought by Megan Browning ("Browning") and Adam Kesselring ("Kesselring") (collectively "Plaintiffs"). It arises out of AB's alleged false and misleading packaging and advertising of its Ritas Margarita, Mojito, Rosé, and Sangria beverages sold in enclosed packages (the "Products"). The relevant facts taken from Plaintiffs' Complaint are set forth below.
Plaintiffs primarily argue that AB misleadingly labels and advertises the Products as containing certain types of alcohol when, in fact, they do not. For example, AB manufactures and sells packaged beverages as "SPARKLING MARGARITA" (the "Margarita Products"), which, in addition to the use of the word margarita, contain images of a margarita glass on the packaging. Plaintiffs argue that margaritas are cocktails which typically contain tequila, and therefore a reasonable consumer would be led to believe the Margarita Products contain tequila. However, they do not. Similarly, AB manufactures and sells packaged beverages as "MOJITO" and "SPARKLING CLASSIC COCKTAIL" (the "Mojito Products") that do not contain rum, as well as beverages labelled as "ROSÉ," "SANGRIA" "SPRITZ" (the "Wine Products"), which do not actually contain any wine. The only indication that the Products are simply flavored beers is a statement located at the bottom of the packaging which, in a small font, identifies the Products as "malt beverages."
At different points over the course of 2019 and 2020, Plaintiffs Browning and Kesselring allegedly purchased various Margarita Products and Wine Products. Plaintiffs claim they never saw a disclaimer regarding the purchased Products' true contents, and both allegedly relied on the Products' respective representations, which caused them to falsely believe that the Margarita Products contained tequila and the Wine Products contained wine. Plaintiffs state they would not have purchased the Products had they known they did not contain liquor or wine, or would have paid significantly less for them.
Plaintiffs subsequently filed this lawsuit asserting AB's Product representations violated: the Missouri Merchandising Practices Act ("MMPA") (Count I); breach of express warranty (Count II); breach of implied warranty of merchantability (Count III); fraud (Count IV); and unjust enrichment/quasi-contract (Count V). Plaintiffs seek certification for five nationwide classes and Missouri subclasses, one for each Count. Plaintiffs also seek damages and injunctive relief enjoining AB from continuing to package and advertise the Products as discussed. AB now moves the Court to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs oppose the motion.
Rule 12(b)(6) provides that a defendant may move to dismiss for "failure to state a claim upon which relief can be granted." "To survive a motion to dismiss [for failure to state a claim], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations and quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ash v. Anderson Merchs., LLC , 799 F.3d 957, 960 (8th Cir. 2015) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.
"A United States District Court sitting in diversity jurisdiction applies the substantive law of the forum state." Fogelbach v. Wal-Mart Stores, Inc. , 270 F.3d 696, 698 (8th Cir. 2001). The parties do not dispute that Missouri law governs the Court's analysis. The arguments are addressed in the order presented by the parties.
The MMPA prohibits the Mo. Rev. Stat. § 407.020.1. To state a claim under the MMPA, a plaintiff must adequately allege that it: "(1) purchased merchandise from the defendant; (2) for personal, family, or household purposes; and (3) suffered an ascertainable loss of money or property; (4) as a result of defendant's use of one of the methods, acts, or practices declared unlawful by the Act." Kelly v. Cape Cod Potato Chip Co. , 81 F. Supp. 3d 754, 757 (W.D. Mo. 2015) (citing Mo. Rev. Stat. § 407.025.1 ). "The MMPA is interpreted broadly to promote its purpose to protect consumers." Thornton v. Pinnacle Foods Grp. LLC No. 16-CV-00158 JAR, 2016 WL 4073713,*2 (E.D. Mo. Aug. 1, 2016) (citing Huch v. Charter Commc'ns, Inc. , 290 S.W.3d 721, 724 (Mo. banc 2009) ).
When an MMPA claim sounds in fraud, as Plaintiffs' claims do here, it must satisfy the heightened pleading requirements of Rule 9(b). See Muhammad v. Pub. Storage Co. , No. 14-0246-CV-W-ODS, 2014 WL 3687328, at * 3 (W.D. Mo. July 24, 2014) (). Rule 9(b) states that when "alleging fraud ... a party must state with particularity the circumstances constituting fraud[.]" Fed. R. Civ. P. 9(b). This requires a plaintiff to "plead the who, what, when, where, and how" of the alleged fraudulent conduct. Summerhill v. Terminix, Inc. , 637 F.3d 877, 880 (8th Cir. 2011) (quotations omitted).
AB argues Count I should be dismissed because Plaintiffs fail to plausibly allege that AB's packaging would likely deceive a reasonable consumer and that the type of alcohol used in the Products is material to the reasonable consumer. AB also argues that Plaintiffs' allegations of loss do not satisfy Rule 9(b).1 Plaintiffs disagree, stating they have done enough at this early stage to survive dismissal.
"A court may dismiss [an MMPA] claim as a matter of law where the claim fails to show a likelihood that the method, act, or practice alleged to be unlawful would mislead a reasonable consumer." Mo. Rev. Stat. § 407.025.1(2). "Whether a reasonable consumer would be deceived by a product label is generally a question of fact that cannot be resolved on a motion to dismiss." Thornton , 2016 WL 4073713, at *3 ; see Murphy v. Stonewall Kitchen, LLC , 503 S.W.3d 308, 312 (Mo. App. E.D. 2016) ().
The Court finds Plaintiffs have adequately alleged that AB's representations would likely mislead a reasonable consumer. Plaintiffs allege that the use of the terms "Margarita," "Mojito," "Sangria," and "Rosé" mislead a reasonable consumer into believing that the respective Products contain either tequila, rum, or wine. Plaintiffs also allege that the Products' respective packaging contains a combination of misleading images and language, such as "sparkling classic cocktails" with images of cocktail and wine glasses. The Wine Products' commercial advertisement includes a woman in a wine cellar. Taken together, Plaintiffs' factual allegations plausibly show that a reasonable customer would believe the Products contain tequila, rum, or wine. AB's contention that these representations are merely puffery or represent flavor and style do not defeat the lawsuit at this early stage.
AB primarily argues no reasonable consumer would be deceived because the Alcohol Tax and Trade Bureau ("TTB") regulations permit the use of cocktail names for malt beverage products. However, the regulation cited by AB permits "[t]he use of a cocktail name as a brand name or fanciful name of a malt beverage, provided that the overall label does not present a misleading impression about the identity of the product." 27 C.F.R. § 7.29(a)(7)(iii). Plaintiffs have adequately alleged the overall label is misleading. AB also relies on Cruz v. Anheuser-Busch, LLC , 2015 WL 3561536 (C.D. Cal. June 3, 2015) for the proposition that comparing the Products to actual cocktails, like margaritas, is unreasonable. However, Cruz involved whether the use of the "light" on Bud Light Lime-A-Ritas was misleading. Here, Plaintiffs do not allege AB deceptively used a comparative term such as "light," but instead allege AB's representations mislead a reasonable consumer to believe the Products contained liquor or wine. Plaintiffs also compare the Products to other canned beverages with similar packaging that do contain liquor or wine, which the Court finds is an adequate comparison at this stage of the litigation.
The Court also finds unpersuasive AB's argument that the "malt beverages" disclosure nullifies any possible deception. In support of this argument, AB relies on non-binding cases which are factually distinguishable from this case. The relevant inquiry under the MMPA...
To continue reading
Request your trial
-
In re Smitty's/Cam2 303 Tractor Hydraulic Fluid Mktg. Sales Practices & Prods. Liab. Litig.
...Court was again faced with this issue and found “the ‘substantially similar' approach most persuasive.” Browning, 539 F.Supp.3d at 977. In Browning, the Court noted position has been found by other district courts to “most closely accord[] with U.S. Supreme Court precedent.” Id. (citing In ......
- J&B Tankers, Inc. v. Navistar Int'l Corp.
-
Tucker v. Ford Motor Co.
...relief on the basis of discrimination they experienced when applying to college as freshmen. 539 U.S. 244, 260 (2003). See Browning, 539 F.Supp.3d at 977 (internal omitted). Plaintiff and Defendant dispute which approach the Court should take in this case. Defendant frames the Court's consi......
-
Allen v. Forney Indus.
...doctrine only applies to commercial parties. In making this argument, Plaintiff primarily relies on Browning v. Anheuser-Busch, LLC, 539 F.Supp.3d 965 (W.D. Mo. 2021), in which the district court held that the plaintiffs' fraud claims were not barred by Missouri's economic loss doctrine and......