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`Case 2:23-cv-00150-MCE-DB Document 1 Filed 01/24/23 Page 1 of 20
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`
`
`BURSOR & FISHER, P.A.
`Neal J. Deckant (State Bar No. 322946)
`Jenna L. Gavenman (State Bar No. Pending)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-mail: ndeckant@bursor.com
`
` jgavenman@bursor.com
`
`Attorneys for Plaintiff
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`EASTERN DISTRICT OF CALIFORNIA
`
`
`
`
`
`Case No.
`
`
`CLASS ACTION COMPLAINT
`
`
`JURY TRIAL DEMANDED
`
`
`
`v.
`
`Plaintiff,
`
`DAMIEN PATTERSON, on behalf of himself
`and all others similarly situated,
`
`
`
`
`SAZERAC COMPANY, INC.,
`
`
`
`
` Defendant.
`
`
`
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Plaintiff Damien Patterson (“Plaintiff”) brings this action on behalf of himself and all others
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`similarly situated against Defendant Sazerac Company, Inc. (“Defendant”). Plaintiff makes the
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`following allegations pursuant to the investigation of his counsel and based upon information and
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`belief, except as to the allegations specifically pertaining to himself, which are based on personal
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`knowledge.
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`NATURE OF THE ACTION
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`1.
`
`This is a putative class action lawsuit on behalf of purchasers of the Fireball
`
`Cinnamon malt beverage (the “Malt Product”) against Defendant for manufacturing, marketing,
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`distributing, and selling underfilled and mislabeled alcoholic beverages.
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`2.
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`Sazerac manufactures, markets, and distributes alcoholic beverages under the brand
`
`name “Fireball.” Defendant’s Fireball Cinnamon Whisky (the “Whiskey Product”) (together with
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`the Malt Product, Defendant’s “Alcohol Products”) has become “one of the most popular drinks to
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`down – particularly in shot form.”1 The Whiskey Product is so popular that the brand name
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`“Fireball” has become synonymous with Defendant’s Whiskey Product.2
`
`3.
`
`Defendant engaged in widespread false and deceptive advertising in connection with
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`its Malt Products. In a practice that runs contrary to reasonable consumer expectations, Defendant
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`employs a classic bait-and-switch scheme that causes unsuspecting consumers to spend more
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`money for less than the advertised amount of alcohol they believe they are purchasing – and
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`induces them to buy a fundamentally different product entirely. Specifically, the packaging and
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`labeling of the Malt Products prominently advertise that they are “Fireball Cinnamon” products,
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`which consumers understand to refer to Defendant’s Whiskey Products. However, “Fireball
`
`Cinnamon” is not a whiskey product it all; it is a malt beverage with half the alcohol of whiskey.
`
`4.
`
`In this case, Plaintiff purchased a Malt Product that prominently advertises on its
`
`front labels that it is “Fireball Cinnamon,” and includes the same style of label and logo as
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`Defendant’s Whiskey Products. The Malt Product contains only 16.5% alcohol by volume (ABV),
`
`which is half that of Defendant’s more popular Whiskey Product (33% ABV). Thus, the Malt
`
`1 See https://whiskeyraiders.com/article/is-fireball-whiskey/.
`2 Id.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 2:23-cv-00150-MCE-DB Document 1 Filed 01/24/23 Page 3 of 20
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`Product purchased by Plaintiff contained only half of the alcohol content present in Defendant’s
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`Whiskey Product.
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`5.
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`Defendant’s Whiskey Product3 is a concoction of whiskey, sweetener, and
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`cinnamon flavoring. Fireball Whisky has been on the market since the 1980s and is one of the
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`most popular whiskey products in the United States. Fireball Whisky is found in nearly every
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`well-stocked bar and liquor store.
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`6.
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`In contrast, the Malt Product has only been offered for sale for several years, and it
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`enjoys nowhere near the success of Fireball Whiskey. The vast majority of reasonable consumers
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`do not know that the Malt Product even exists.
`
`7.
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`Fireball Malt is a “malt beverage with natural whisky & other flavors and caramel
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`color.” At merely half of the Whiskey Product’s ABV (i.e., 16.5% ABV compared to 33% ABV),
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`Defendant’s Malt Product features a stark difference in alcohol quantity. This is because, as a malt-
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`based beverage, the Malt Product is not “liquor” in the sense that it is not a distilled spirit such as
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`whiskey – which serves as the base for Defendant’s Whiskey Product. Rather, the Malt Product
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`features “malt” as its base, which is boiled like beer and fermented with yeast.4 Thus, the Malt
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`Product contains nowhere near the alcohol content of whiskey, and it is not a whiskey product at
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`all.
`
`8.
`
`Despite these key differences, the front labels of Defendant’s Whiskey Product and
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`Malt Product are nearly identical. Both products come in similar clear, plastic bottles. Both
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`products have the same signature red cap. Both products have the same coloring and look the same
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`upon inspection. Both products are labeled “Fireball,” with the same font, font size, and
`
`placement. Both products have the same logo of a red demon, with similar size and placement.
`
`Both products say “Cinnamon” under the logo:
`
`
`
`
`3 Fireball was developed in Canada, where “whiskey” is spelled “whisky.” Accordingly, the brand
`is formally called “Fireball Whisky,” but in the United States such products are generically referred
`to as “whiskey.”
`4 See https://thestir.drizly.com/behind-the-bottle/what-is-malt-liquor/#:~:text=Malt%20liquor%
`20isn't%20%E2%80%9Cliquor,the%20light%20lager%20beer%20style.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`9.
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`The nearly-identical labeling between these two products serves one purpose – an
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`intent to deceive reasonable consumers. Notably, Fireball Malt does not disclose the alcohol
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`percentage (i.e,. ABV) anywhere on the front of the packaging. Nor is it evident from the labeling
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`that it is not a whiskey product, but rather a malt product, especially to reasonable consumers who
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`are familiar with Fireball’s vastly-popular whiskey product. Based on the nearly identical labels,
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`logo, and branding, reasonable consumers such as Plaintiff would understand these two Alcohol
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`Products to be the same and therefore expect Fireball Cinnamon to be a whiskey product with the
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`alcohol content as whiskey.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 2:23-cv-00150-MCE-DB Document 1 Filed 01/24/23 Page 5 of 20
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`10.
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`In fact, Defendant prepared for reasonable consumers to be confused by its
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`branding, and even included a “How Can I Tell The Difference Between Fireball Cinnamon And
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`Fireball Whisky Products?” question on its website’s FAQ page. Even so, the FAQ does not
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`disclose that Fireball Malt contains only half the alcohol as Fireball Whisky:5
`
`
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`11.
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`Despite knowing that its labeling practices were ripe for consumer confusion,
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`Defendant chose to continue to affirmatively misrepresent its Malt Products with labels practically
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`identical to its Whiskey Products.
`
`12.
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`The amount of ABV in the Malt Product is material to consumers who purchase
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`Defendant’s Malt Product. The Malt Products are marketed as alcoholic beverages under the
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`umbrella branding “Fireball,” which is widely known as a whiskey beverage. The alcohol strength
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`and effects that come from drinking a Malt Product are wildly different than those that come from
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`drinking a Whiskey Product. Consumers expecting to enjoy a whiskey product are not expecting to
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`receive a malt product.
`
`13.
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`Thus, reasonable consumers seeking the taste and effects of a Whiskey Product with
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`33% ABV are harmed by the accidental purchase of a Malt Product at 16.5% ABV. Nor do
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`reasonable consumers expect to receive a malt beverage when they intend to purchase a whiskey
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`product.
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`14.
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`Plaintiff, the Class, and Subclass Members relied to their detriment on Defendant’s
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`unclear and fraudulent omissions on its Malt Product labels regarding the strength of alcohol
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`present in each bottle. Plaintiff and Class and Subclass Members would not have paid to purchase
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`Defendant’s Malt Products – or would not have paid as much as they did to purchase them – had
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`they known the truth about the Malt Products’ actual alcohol content. As such, Plaintiff and Class
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`5 See https://www.fireballwhisky.com/faqs.html.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 2:23-cv-00150-MCE-DB Document 1 Filed 01/24/23 Page 6 of 20
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`
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`members paid a price premium for the Malt Products, and were induced to purchase an altogether
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`product they had not intended to buy at all. Plaintiff and Class and Subclass Members thus
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`suffered monetary damages as a result of Defendant’s deceptive and false representations and
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`omissions.
`
`PARTIES
`
`15.
`
`Plaintiff Damien Patterson is a citizen of California. In or around August 2022, Mr.
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`Patterson purchased a bottle of Fireball Cinnamon malt for approximately $12.00 from a Bottle
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`Shop retail location located in Grass Valley, California. Prior to his purchase, Mr. Patterson
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`reviewed the Malt Product’s labeling and saw that the bottle was labeled “Fireball Cinnamon.”
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`Plaintiff Patterson saw these representations prior to, and at the time of purchase, and understood
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`them as representations that the Fireball Cinnamon Malt Products was, in fact, the same or
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`substantially similar to the Fireball Cinnamon Whiskey Products. Plaintiff relied on these
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`representations in purchasing the Malt Product, and the alcohol content level was material to
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`Plaintiff Patterson. Accordingly, these representations and warranties were part of the basis of the
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`bargain in that, had Plaintiff Patterson known that the Malt Products contained half of the alcohol
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`content than Defendant’s Whiskey Products – and was not a whiskey at all, but rather a different
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`beverage entirely – he would not have purchased the Malt Product or would have paid significantly
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`less for it. Plaintiff did not see, nor did he have any reason to see, any purported disclaimers
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`stating that the Malt Product was a malt-based beverage as a separate and distinct product from
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`Defendant’s popular whiskey-based beverage. Plaintiff is susceptible to this reoccurring harm
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`because he cannot be certain that Defendant has corrected this deceptive and false advertising
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`scheme, and he wants to continue to purchase Defendant’s Alcohol Products. Plaintiff greatly
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`enjoys Fireball Whisky, but he currently cannot trust that Defendant will label and/or advertise its
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`Alcohol Products truthfully and accurately. Plaintiff simply does not have the resources to ensure
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`that Defendant is complying with state and federal law with respect to the labeling and advertising
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`of its Alcohol Products.
`
`16.
`
`Defendant Sazerac Company, Inc. is a Louisiana corporation with its principal place
`
`of business at 101 Magazine Street, 5th Floor, New Orleans, Louisiana 70130. Defendant
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`
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`manufactures, markets, sells, and distributes the Malt Products throughout the United States and
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`the State of California. Defendant sold the Malt Products with the aforementioned representations
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`during the class period.
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`JURISDICTION AND VENUE
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`17.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
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`1332(d)(2)(A) because this case is a class action where the aggregate claims of the proposed class
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`exceed $5,000,000.00, exclusive of interests and costs, there are over 100 members of the putative
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`class, and Plaintiff, as well as many members of the proposed class, is a citizen of a state different
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`from Defendant.
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`18.
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`This Court has personal jurisdiction over Defendant. Defendant does business in
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`California and has sufficient minimum contacts with this state, including within this District,
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`and/or has otherwise intentionally availed itself of the California consumer market through the
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`promotion, marketing, and sale of its products to residents within this District and throughout
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`California. Additionally, Plaintiff purchased his Malt Product in California.
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`19.
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`Pursuant to 28 U.S.C. § 1391, this Court is the proper venue for this action because
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`a substantial part of the events, omissions, and acts giving rise to the claims herein occurred in this
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`District. Also, Plaintiff resides in this District and purchased Defendant’s Malt Product in this
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`District. Moreover, Defendant distributed, advertised, and sold the Malt Product to the members of
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`the Class, which is the subject of the present complaint, in this District.
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`CLASS ALLEGATIONS
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`20.
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`Nationwide Class Definition: Plaintiff seeks to represent a class of similarly
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`situated individuals defined as all persons in the United States who have purchased Fireball
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`Cinnamon malt beverages during the applicable statute of limitations period (the “Nationwide
`
`Class”).
`
`21.
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`California Subclass Definition: Plaintiff Patterson seeks to represent a subclass
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`consisting of all Class Members who purchased the Fireball Cinnamon malt beverages in the State
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`of California during the relevant statute of limitations period (the “California Subclass”).
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`22.
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`The Nationwide and California Subclass are collectively referred to as the
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`“Classes.” Subject to additional information obtained through discovery and further investigation,
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`the above-described Classes may be modified or narrowed as appropriate.
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`23.
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`Numerosity (Fed. R. Civ. P. 23(a)(1)): The members of the Class and Subclass are
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`geographically dispersed throughout the United States and are so numerous that individual joinder
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`is impracticable. Upon information and belief, Plaintiff reasonably estimates that there are
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`thousands of members in the Class and Subclass. Although the precise number of Class members
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`is unknown to Plaintiff, the true number of Class members is known by Defendant and may be
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`determined through discovery. Class members may be notified of the pendency of this action by
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`mail and/or publication through the distribution records of Defendant and third-party retailers and
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`vendors.
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`24.
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`Commonality and Predominance (Fed. R. Civ. P. 23(a)(2), 23(b)(3)): A well-
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`defined community of interest exists in the questions of law and fact involved in this case.
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`Questions of law and fact common to the members of the Class that predominate over questions
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`that may affect individual members of the Class include:
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`(a)
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`whether the marketing labeling and advertisements for the Malt
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`Products were false and misleading;
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`(b)
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`(c)
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`whether Defendant’s conduct was unfair and/or deceptive; and
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`whether Plaintiff and the Classes sustained damages with respect
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`to the claims asserted, and if so, the proper measure of their
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`damages.
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`25.
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`Typicality (Fed. R. Civ. P. 23(a)(3)): Plaintiff’s claims are typical of those of the
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`Classes because Plaintiff, like all members of the Classes, were exposed to Defendant’s false and
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`misleading marketing, purchased the Malt Product in reliance on Defendant’s false and misleading
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`representations, and suffered a loss as a result of that purchase.
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`26.
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`Adequacy (Fed. R. Civ. P. 23(a)(4)): Plaintiff has retained and is represented by
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`qualified and competent counsel who are highly experienced in complex consumer class action
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`litigation. Plaintiff and his counsel are committed to vigorously prosecuting this class action.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`7
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`Moreover, Plaintiff is able to fairly and adequately represent and protect the interests of the
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`Classes. Neither Plaintiff nor his counsel have any interest adverse to, or in conflict with, the
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`interests of the absent members of the Classes. Plaintiff has raised viable common-law and
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`statutory claims of the type reasonably expected to be raised by members of the Classes and will
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`vigorously pursue those claims.
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`27.
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`Superiority (Fed. R. Civ. P. 23(b)(3)): The class mechanism is superior to other
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`available means for the fair and efficient adjudication of the claims of Class Members. Each
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`individual Class Member may lack the resources to undergo the burden and expense of individual
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`prosecution of the complex and extensive litigation necessary to establish Defendant’s liability.
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`Individualized litigation increases the delay and expense to all parties and multiplies the burden on
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`the judicial system presented by the complex legal and factual issues of this case. Individualized
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`litigation also presents a potential for inconsistent or contradictory judgments. In contrast, the class
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`action device presents far fewer management difficulties and provides the benefits of single
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`adjudication, economy of scale, and comprehensive supervision by a single court on the issue of
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`Defendant’s liability. Class treatment of the liability issues will ensure that all claims and
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`claimants are before this Court for consistent adjudication of the liability issues.
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`COUNT I
`Violation of Consumers Legal Remedies Act (“CLRA”)
`Cal. Civ. Code § 1750, et seq.
`(On Behalf Of The California Subclass)
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`28.
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`Plaintiff hereby incorporates by reference and re-alleges herein the allegations
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`contained in all preceding paragraphs of this complaint.
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`29.
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`Plaintiff Damien Patterson brings this claim individually and on behalf of the
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`Members of the proposed California Subclass against Defendant.
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`30.
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`Defendant violated California’s Consumers Legal Remedies Act (the “CLRA”) by
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`engaging in the following unfair and deceptive business practices, as alleged above and herein:
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`(a)
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`Defendant violated Cal. Civ. Code § 1770(a)(5) by representing that the
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`Malt Products have characteristics that they do not have.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`(b)
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`Defendant violated Cal. Civ. Code § 1770(a)(9) by advertising the Malt
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`Products with the intent not to sell them as advertised.
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`31.
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`The CLRA was enacted to protect consumers against such practices. The CLRA
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`applies to Defendant’s conduct because the statute covers all sales of goods to consumers.
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`32.
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`Plaintiff Patterson and other Members of the California Subclass are “consumers”
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`within the meaning of Cal. Civ. Code § 1761(d). By purchasing Defendant’s Malt Products,
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`Plaintiff Patterson and other Members of the California Subclass engaged in “transactions” within
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`the meaning of Cal. Civ. Code §§ 1761(e) and 1770.
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`33.
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`Defendant is a “person” within the meaning of Cal. Civ. Code § 1761(c).
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`Defendant’s Malt Products are “goods” within the meaning of Cal. Civ. Code § 1761(a).
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`34.
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`Defendant’s unfair and deceptive business practices, as alleged above and herein,
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`were intended to and did result in the sale of the Malt Products.
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`35.
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`As a direct and proximate result of Defendant’s unfair and deceptive business
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`practices, as alleged above and herein, Plaintiff Patterson and other Members of the California
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`Subclass suffered injury and damages in an amount to be determined at trial.
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`36.
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`On information and belief, Defendant’s unfair and deceptive business practices, as
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`alleged above and herein, were willful, wanton, and fraudulent.
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`37.
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`On information and belief, Defendant’s officers, directors, and/or managing agents
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`authorized the use of the false and misleading statements and material omissions regarding the
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`alcohol content of Defendant’s Malt Products, as alleged above and herein.
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`38.
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`Plaintiff Patterson and the California Subclass Members seek to enjoin the unlawful
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`acts and practices described herein.
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`COUNT II
`Violation of Unfair Competition Law,
`Cal. Bus. & Prof. Code § 17200, et seq.
`(On Behalf Of The California Subclass)
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`39.
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`Plaintiff hereby incorporates by reference and re-alleges herein the allegations
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`contained in all preceding paragraphs of this complaint.
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`40.
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`Plaintiff Damien Patterson brings this claim individually and on behalf of the
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 2:23-cv-00150-MCE-DB Document 1 Filed 01/24/23 Page 11 of 20
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`Members of the proposed California Subclass against Defendant.
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`41.
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`Defendant violated California’s Unfair Competition Law (“UCL”), Cal. Bus. &
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`Prof. Code §§ 17200-17210, by engaging in unfair, fraudulent, and unlawful business practices.
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`42.
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`Plaintiff Patterson has standing to pursue this claim because he has suffered an
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`injury-in-fact and has lost money or property as a result of Defendant’s unlawful, unfair, and
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`fraudulent conduct. Specifically, Plaintiff Patterson purchased a Malt Product for his own personal
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`consumption. In doing so, Plaintiff Patterson relied upon Defendant’s false and misleading
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`representations that the Malt Product was actually Defendant’s Whiskey Product. Plaintiff
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`Patterson spent money in the transaction that he otherwise would not have spent had he known the
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`truth about Defendant’s labels.
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`“Unfair” Prong of the UCL
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`43.
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`A business act or practice is “unfair” under the UCL if it offends an established
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`public policy or is immoral, unethical, oppressive, unscrupulous, or substantially injurious to
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`consumers. That unfairness is determined by weighing the reasons, justifications, and motives for
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`the business act or practice against the gravity of the harm to the alleged victims.
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`44.
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`Defendant’s conduct constitutes an “unfair” business practice because, as alleged
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`herein, Defendant has engaged, and continues to engage, in a false, misleading, and deceptive
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`advertising campaign that misleads consumers into believing that the Malt Products they purchase
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`are actually whiskey products with similar ingredients, composition, and alcohol content in line
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`with a whiskey product and not a malt beverage.
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`45.
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`Defendant’s conduct, as alleged above and herein, was not motivated by any
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`legitimate business or economic need or rationale, other than to maximize its profits at the expense
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`of consumers. No legitimate reasons, justifications, or motives outweigh the harm and adverse
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`impact of Defendant’s conduct on members of the general consuming public. Defendant engaged,
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`and continues to engage, in such conduct solely to wrongfully extract monies from consumers,
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`including Plaintiff Patterson, to which Defendant is not entitled. Defendant could have, but has
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`not, used alternate means of effecting their legitimate business needs, such as by properly and
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 2:23-cv-00150-MCE-DB Document 1 Filed 01/24/23 Page 12 of 20
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`prominently labeling its Malt Product sufficiently differently from its Whiskey Product to ensure
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`consumers were aware of the stark differences of the beverages within the bottles.
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`46.
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`Defendant’s conduct harms consumers and hurts market competition. Defendant’s
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`conduct, as alleged herein, is immoral, unethical, oppressive, unscrupulous, unconscionable, and/or
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`substantially injurious to Plaintiff Patterson and Members of the California Subclass because it
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`violates consumers’ reasonable expectations. If Defendant had advertised their Alcohol Products
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`in a non-misleading fashion, Plaintiff and other California Subclass Members could have
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`considered other options for purchasing alcoholic beverages.
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`“Fraudulent” Prong of the UCL
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`47.
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`A business act or practice is “fraudulent” under the UCL if it is likely to deceive
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`members of the consuming public.
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`48.
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`Defendant has engaged, and continues to engage, in a “fraudulent” business practice
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`by knowingly representing to consumers that the Malt Products they purchase will provide a
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`greater alcohol content than they actually do. Defendant’s conduct deceived Plaintiff Patterson and
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`other California Subclass Members who purchased the Malt Products in reliance on the tried and
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`true Fireball label, and it is highly likely to deceive members of the consuming public because, as
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`alleged above, it violates consumers’ reasonable expectations regarding alcohol content. Such a
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`business practice lacks utility and functions only to maximize Defendant’s profits at the expense of
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`its customers. The gravity of the harm to Plaintiff Patterson and other California Subclass
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`Members, who lost money or property by paying for the Malt Products, far outweighs any benefit
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`of Defendant’s conduct.
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`49.
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`Further, Defendant’s fraudulent business practice will continue to mislead
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`consumers because it will be impossible for consumers to know whether Defendant has stopped
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`misrepresenting the Malt Products until after consumers purchase such products. Accordingly, the
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`risk of harm to Plaintiff Patterson, Members of the California Subclass, and the consuming public
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`is ongoing.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 2:23-cv-00150-MCE-DB Document 1 Filed 01/24/23 Page 13 of 20
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`“Unlawful” Prong of the UCL
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`50.
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`A business act or practice is “unlawful” under the UCL if it violates any other law
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`or regulation.
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`51.
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`Defendant’s business practices, as alleged herein, constitute violations of
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`California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq. (the “CLRA”).
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`Specifically, Defendant has unlawfully marketed and advertised its Malt Products in violation of
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`Cal. Civ. Code §§ 1770(a)(5) and 1770(a)(9), as detailed above.
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`52.
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`Defendant’s business practices also constitute violations of California’s False
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`Advertising Law, Cal. Bus. & Prof. Code § 17500, et seq. (the “FAL”), as detailed below.
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`53.
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`Defendant’s unfair, fraudulent, and unlawful business practices, as enumerated and
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`explained above, were the direct and proximate cause of financial injury to Plaintiff Patterson and
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`other Members of the California Subclass. Defendant has unjustly benefitted as a result of its
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`wrongful conduct. Accordingly, Plaintiff Patterson and the California Subclass seek an order of
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`this Court that includes, but is not limited to, requiring Defendant to: (a) provide restitution to
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`Plaintiff and other California Subclass Members; (b) disgorge all revenues obtained as a result of
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`their violations of the UCL; (c) pay attorneys’ fees and costs for Plaintiff and the California
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`Subclass.
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`COUNT III
`Violation of False Advertising Law,
`Cal. Bus. & Prof. Code § 17500, et seq.
`(On Behalf Of The California Subclass)
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`54.
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`Plaintiff hereby incorporates by reference and re-alleges herein the allegations
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`contained in all preceding paragraphs of this complaint.
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`55.
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`Plaintiff Damien Patterson brings this claim individually and on behalf of the
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`Members of the proposed California Subclass against Defendant.
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`56.
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`Defendant violated California’s False Advertising Law (“FAL”), Cal. Bus. & Prof.
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`Code § 17500 by publicly disseminating false, misleading, and/or unsubstantiated advertisements
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`regarding its Malt Products as alleged above and herein.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 2:23-cv-00150-MCE-DB Document 1 Filed 01/24/23 Page 14 of 20
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`57.
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`Plaintiff Patterson has standing to pursue this claim because he has suffered an
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`injury-in-fact and has lost money or property as a result of Defendant’s false advertising.
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`Specifically, Plaintiff Patterson purchased a Malt Product for his own personal consumption. In
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`doing so, Plaintiff Patterson relied upon Defendant’s false, and misleading representations that the
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`Malt Products are actually whiskey products with similar ingredients, composition, and alcohol
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`content in line with a whiskey product and not a malt beverage. Plaintiff Patterson spent money in
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`the transaction that he otherwise would not have spent had he known the truth about Defendant’s
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`advertising claims.
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`58.
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`Defendant disseminated false and misleading advertisements to increase the sales of
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`its Malt Products.
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`59.
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`Defendant knew or should have known that the advertisements for its Malt Products
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`were false and/or misleading.
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`60.
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`Defendant knew or should have known that consumers, including Plaintiff Patterson
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`and other Members of the California Subclass, would believe that the Malt Products are actually
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`whiskey products with similar ingredients, composition, and alcohol content in line with a whiskey
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`product and not a malt beverage.
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`61.
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`Plaintiff Patterson and Members of the California Subclass have suffered harm as a
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`result of Defendant’s violations of the FAL because they paid monies for the Malt Products that
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`they would not have paid but for Defendant’s false and misleading advertisements.
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`62.
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`Accordingly, Plaintiff Patterson and Members of the California Subclass seek an
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`order of this Court that includes, but is not limited to, requiring Defendant to: (a) provide
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`restitution to Plaintiff and other California Subclass Members; (b) disgorge all revenues obtained
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`as a result of its violations of the FAL; (c) pay attorneys’ fees and costs for Plaintiff and the
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`California Subclass.
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`COUNT IV
`Fraud
`(On Behalf Of The Classes)
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`63.
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`Plaintiff hereby incorporates by reference the allegations contained in all preceding
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`paragraphs of this complaint.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`64.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed Classes against Defendant.
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`65.
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`66.
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`This claim is brought under the laws of the State of California.
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`As alleged above, Defendant provided Plaintiff and Class members with false or
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`misleading material information about the Malt Product, including that it is a whiskey product with
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`similar ingredients, composition, and alcohol content in line with a whiskey product and not a malt
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`beverage.
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`67.
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`These misrepresentations were made with knowledge of their misleading nature, as
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`evidenced by the fact that Defendant merely replicated its Whiskey Product’s label for use on its
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`Malt Product without obvious clarifiers on the front-facing representations concerning the alcohol
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`content of the Malt Product, or any conspicuous disclosure that it was a different product
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`altogethe