Cooper v. Anheuser-Busch, LLC, 20-CV-7451 (KMK)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtKENNETH M. KARAS, District Judge
Citation553 F.Supp.3d 83
Parties Tanya COOPER & Joseph Rose, individually and on behalf of all others similarly situated, Plaintiffs, v. ANHEUSER-BUSCH, LLC, Defendant.
Docket Number20-CV-7451 (KMK)
Decision Date09 August 2021

553 F.Supp.3d 83

Tanya COOPER & Joseph Rose, individually and on behalf of all others similarly situated, Plaintiffs,
v.
ANHEUSER-BUSCH, LLC, Defendant.

20-CV-7451 (KMK)

United States District Court, S.D. New York.

Signed August 9, 2021


553 F.Supp.3d 90

Timothy J. Peter, Esq., Innessa M. Huot, Esq., Faruqi & Faruqi, LLP, Philadelphia, PA, Counsel for Plaintiffs.

James F. Bennett, Esq., Dowd Bennett LLP, Clayton, MO, Counsel for Defendant.

Paul H. Schoeman, Esq., Kramer Levin Naftalis & Frankel, LLP, New York, NY, Counsel for Defendant.

OPINION & ORDER

KENNETH M. KARAS, District Judge:

Plaintiffs Tanya Cooper ("Cooper") and Joseph Rose ("Rose" and, together with Cooper, "Plaintiffs") bring this putative class action against Anheuser-Busch, LLC ("Defendant"), alleging that the labeling on certain products in Defendant's "Ritas" line of beverages is deceptive and misleading. Plaintiffs assert claims against Defendant for (1) violations of §§ 349 and 350 of the New York General Business Law, (2) breach of express warranty, (3) common law fraud, and (4) unjust enrichment. Before the Court is Defendant's Motion To Dismiss the First Amended Complaint (the "Motion"). (See Not. of Mot. (Dkt. No. 22).) For the following reasons, the Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts are drawn from Plaintiffs’ First Amended Complaint and are taken as true for purposes of resolving the instant Motion.

Defendant is an American brewing company that manufactures, markets, and distributes malt beverages for sale nationwide. (First Am. Compl. ("FAC") ¶¶ 14–15, 24, 33, 41 (Dkt. No. 16).) This Action involves three such products—Defendant's (1) Lime-A-Rita Sparkling Margaritas (the "Margarita Product(s)"), (2) its Sangria Spritz Sparkling Sangria Cocktail and Rosé Spritz Sparkling Rosé Cocktail (the "Wine Product(s)"), and (3) its Mojito Fizz Sparkling Cocktail (the "Mojito Product(s)" and, together with the Margarita Products and Wine Products, the "Products"). (Id. ¶¶ 3–5, 18–42.) The Products are marketed and labeled under the general umbrella of Defendant's "Ritas" brand. (See id. ¶¶ 1, 16, 18, 26, 35.)

The Margarita Products are sold in packaging which prominently displays the words "LIME- A -RITA" and "SPARKLING MARGARITA." (See id. ¶ 18.)1 The front packaging contains an image of a margarita served with a salted rim and lime wedge. (See id. ) Relying on definitions of "margarita" from Merriam-Webster dictionary, Dictionary.com, and the International Bartenders Association, Plaintiffs allege that "[i]t is common knowledge, and indeed definitional, that a margarita contains tequila," and that, "[w]hen consumers order margaritas at bars or other establishments selling alcoholic beverages, they reasonably expect to receive a cocktail containing tequila." (Id. ¶¶ 19–21.) Plaintiffs therefore contend that when reasonable consumers view the packaging of the Margarita Products, they would expect these products to contain tequila. (Id. ¶ 22.) But the Margarita Products do not contain tequila. (Id. ¶ 23.) In fact, the Margarita

553 F.Supp.3d 91

Products are malt beverages flavored to resemble a margarita—a fact disclosed in "a small font statement" on the bottom panel of the packaging. (Id. ¶ 24.) Plaintiffs aver that even if reasonable consumers were to catch this disclosure, it is "unlikely" they would understand that the Margarita Products lack tequila, "particularly in the context of the other prominent, false[,] and deceptive statements on the front packaging indicating that the products do contain tequila." (Id. ¶ 24.) For these reasons, Plaintiffs allege that the packaging of the Margarita Products is false and misleading. (Id. ¶ 25.)

The Wine Products are sold in packaging that contains images of three different canned beverages. (See id. ¶ 26.) Two of these cans contain the words "SANGRIA SPRITZ" and "SPARKLING SANGRIA COCKTAIL." (Id. ) The third can contains the words "ROSÉ SPRITZ" and "SPARKLING ROSÉ COCKTAIL." (Id. ) In the bottom left-hand corner of the packaging, there are small images of wine glasses next to a number indicating how many cans of each flavor come in the package. (See id. ) Relying on definitions from Merriam-Webster, Plaintiffs allege that "[w]hen consumers order Rosé or a Sangria at bars or other establishments selling alcoholic beverages, they reasonable [sic] expect to receive wine or a wine-based beverage." (Id. ¶¶ 27–28.) They also aver that the term "Spritz" is "well known as a wine-based cocktail." (Id. ¶ 29.) Accordingly, they assert that reasonable consumers of the Wine Products would expect these products to contain wine. (Id. ¶ 30.) Like the Margarita Products, however, the Wine Products are flavored malt beverages that contain no wine. (Id. ¶¶ 32–33.) Although the packaging discloses this fact, it does so in small font on the bottom panel of the packaging. (Id. ¶ 33.) For the same reasons identified with respect to the Margarita Products, Plaintiffs allege that the packaging of the Wine Products is also false and misleading. (Id. ¶ 34.)

Like the Wine Products, the Mojito Products are sold in packaging that contains images of three different cans. Two cans contain the words "MOJITO FIZZ" and "SPARKLING COCKTAIL." (Id. ¶ 35.) The third can contains the words "COSMO FIZZ" and "SPARKLING COCKTAIL." (Id. ) The packaging also displays the words "SPARKLING CLASSIC COCKTAILS." (Id. ) At the bottom of the front packaging, there are small images of Collins cocktail glasses and a martini glass next to a number indicating how many cans of each flavor come in the package. (Id. ) Once again, Plaintiffs rely on definitions from Merriam-Webster, Dictionary.com, and the International Bartenders Association for the proposition that reasonable consumers would expect the Mojito Products to contain rum. (Id. ¶¶ 36–39.) But the Mojito Products, like the Margarita Products and Wine Products, are malt beverages. (Id. ¶ 41.) Though flavored to resemble a mojito, they contain no rum. (Id. ) Again, the disclosure indicating that the Mojito Products are malt beverages appears in small font on the bottom panel of the packaging. (Id. ) Based on these features of the Mojito Products’ packaging, Plaintiffs allege that the packaging is false and misleading. (Id. ¶ 42.)

Plaintiffs allege that the Products’ packaging is also misleading in light of similar labeling used by competitor products. (See id. ¶¶ 43–51.) For example, other companies sell canned beverages with labeling such as "SPARKLING MARGARITA" (Jose Cuervo), "CLASSIC Margarita" (Salvador's), or "Perfect Margarita" (BuzzBox). (See id. ¶¶ 43–45.) But these products, in contrast to the Margarita Products, actually do contain tequila. (Id. ¶ 43.) Plaintiffs allege that these competing

553 F.Supp.3d 92

products "demonstrate that the market and consumers have associated the cocktail name ‘margarita’ with a beverage containing tequila." (Id. ¶ 45.) They give similar examples with respect to canned mojitos, canned sangria, and canned rosé. (See id. ¶¶ 46–51.)

Plaintiff Cooper purchased a 12-pack of the Margarita Product and a 12-pack of the Mojito Product at a Stop & Shop in Mount Kisco, New York in December 2019. (Id. ¶ 12.) Plaintiff Rose purchased a 12-pack of the Margarita Product and a 12-pack of the Wine Product from a Rite-Aid in Brooklyn, New York in July 2020. (Id. ¶ 13.) In each case, Plaintiffs purchased the Products under the expectation that they contained tequila (the Margarita Products), wine (the Wine Products), or rum (the Mojito Products). (Id. ¶¶ 12–13.) Neither Plaintiff saw a disclaimer indicating that the Products were flavored malt beverages that contained none of these ingredients. (Id. ) Plaintiffs maintain that had they known these Products were merely flavored malt beverages, they would not have purchased the Products or would have paid significantly less for them. (Id. ) They allege that they—along with other members of a putative class—"have been, and will continue to be, deceived or misled by Defendant's false and deceptive packaging of the Products." (Id. ¶ 52.)

Although substantially similar claims have been raised in the District Court for the Western District of Missouri, see Browning v. Anheuser-Busch, LLC , ––– F. Supp. 3d ––––, 2021 WL 1940645 (W.D. Mo. May 13, 2021), Plaintiffs’ allegations present a matter of first impression in this District.

B. Procedural History

Plaintiffs filed their initial Complaint on September 11, 2020. (Dkt. No. 1.) On December 21, 2020, Defendant filed a pre-motion letter regarding its anticipated motion to dismiss. (Dkt. No. 13.) Plaintiffs filed their First Amended Complaint (the "FAC") on January 6, 2021. (Dkt. No. 16.) On January 20, 2021, Defendant again filed a pre-motion letter outlining the grounds for its proposed motion to dismiss. (Dkt. No. 17.) Following Plaintiffs’ response to this letter, (Dkt. No. 19), the Court held a pre-motion conference on February 11, 2021, (see Dkt. (minute entry for Feb. 11, 2021)). Pursuant to the briefing schedule adopted at this conference, Defendant filed the instant Motion and supporting papers on February 25, 2021. (See Not. of Mot.; Decl. of Paul H. Schoeman, Esq., in Supp. of Def.’s Mot. ("Schoeman Decl.") (Dkt. No. 23); Def.’s Mem...

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2 practice notes
  • Duchimaza v. Niagara Bottling, LLC, 21 Civ. 6434 (PAE)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 5, 2022
    ...express warranty claims at the motion to dismiss stage where notice is insufficiently pled. See, e.g, Cooper v. Anheuser-Busch, LLC, 553 F.Supp.3d 83, 112-13 (S.D.N.Y. 2021) (dismissing express warranty claim where plaintiff failed to allege that i it served notice within a reasonable time)......
  • Pittman v. Chick-Fil-A, Inc., 21 Civ. 8041 (VM)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 27, 2022
    ...damages with respect to this claim,” then a plaintiff's unjust enrichment claim will be dismissed. Cooper v. Anheuser-Busch, LLC, 553 F.Supp.3d 83, 115 (S.D.N.Y. 2021) (dismissing unjust enrichment claim as duplicative of Section 349 claim).[4] Furthermore, if “a plaintiff's other claims ar......
2 cases
  • Duchimaza v. Niagara Bottling, LLC, 21 Civ. 6434 (PAE)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 5, 2022
    ...express warranty claims at the motion to dismiss stage where notice is insufficiently pled. See, e.g, Cooper v. Anheuser-Busch, LLC, 553 F.Supp.3d 83, 112-13 (S.D.N.Y. 2021) (dismissing express warranty claim where plaintiff failed to allege that i it served notice within a reasonable time)......
  • Pittman v. Chick-Fil-A, Inc., 21 Civ. 8041 (VM)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 27, 2022
    ...damages with respect to this claim,” then a plaintiff's unjust enrichment claim will be dismissed. Cooper v. Anheuser-Busch, LLC, 553 F.Supp.3d 83, 115 (S.D.N.Y. 2021) (dismissing unjust enrichment claim as duplicative of Section 349 claim).[4] Furthermore, if “a plaintiff's other claims ar......

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