Case: 1:21-cv-05268 Document #: 1 Filed: 10/05/21 Page 1 of 16 PageID #:1
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Stella Khaimova, individually and on behalf of
`all others similarly situated,
`
`1:21-cv-05268
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Anheuser-Busch, LLC,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
`
`1. Anheuser-Busch, LLC (“defendant”) manufactures, labels, markets, and sells
`
`“Platinum Hard Seltzer – Made With Agave,” under the Bud Light brand (“Product”), in various
`
`fruit flavors.
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Stella Khaimova, individually and on behalf of
`all others similarly situated,
`
`1:21-cv-05268
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Anheuser-Busch, LLC,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
`
`1. Anheuser-Busch, LLC (“defendant”) manufactures, labels, markets, and sells
`
`“Platinum Hard Seltzer – Made With Agave,” under the Bud Light brand (“Product”), in various
`
`fruit flavors.
`
`
`
`
`
`
`
`Case: 1:21-cv-05268 Document #: 1 Filed: 10/05/21 Page 2 of 16 PageID #:2
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`2.
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`The relevant front of the box representations include “Platinum Seltzer,” “Made With
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`Agave,” “8% ALC/VOL,” and a glass of clear liquid surrounded by various fruits.
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`3.
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`In digital and print media, the Product is further advertised as “Made For The Night.”
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`
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`4.
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`The representations are misleading because they give consumers the impression the
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`Product contains a more valued type of agave ingredients than it does.
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`2
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`Case: 1:21-cv-05268 Document #: 1 Filed: 10/05/21 Page 3 of 16 PageID #:3
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`I.
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`AGAVE
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`5. Agave is a “perennial succulent often mistaken for cactus.”
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`6.
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`7.
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`The Aztecs considered agave sacred and used all parts of this plant.
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`Its uses included food and shelter, “its flesh eaten and leaves dried and woven into
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`clothing, floor mats, and thatch roofs.”
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`8.
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`Before it was distilled into tequila, “it was fermented into a kind of beer imbibed
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`during religious ceremonies as a way to communicate with the gods.”
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`9. Agave refers to the family Asparagaceae, native to arid and semiarid regions of the
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`Americas, particularly Mexico.
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`10. The genus contains a number of economically important species, especially those
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`
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`required for the production of mezcal liquors.
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`11. Most producers are small family operations distilling the agave that grows wild in
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`their part of the country and distributing it to their local community.
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`12. Distillation of agave dates to the 17th century.
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`13. Tequila is traditionally made by steaming agave in brick ovens and crushing it using
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`a mechanical shredder.
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`14. The juices are then collected and fermented naturally in open wooden tanks, then
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`distilled twice in copper pot stills.
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`15. All 100% blue agave tequila must be made from the A. tequilana “Weber's Blue”
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`agave plant, to rigorous specifications and only in certain Mexican states
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`16. The price of blue Weber agave fluctuates dramatically.
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`17.
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`It is costly and time-consuming to farm, taking seven years to reach maturity.
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`18. Agave crops can also be negatively impacted by bad weather, which has increased
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`due to global warming.
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`19. Agave-specific diseases can also decimate an agave crop.
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`20.
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`In 2001, the Mexican government and European Union agreed upon the classification
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`of tequila and its categories.
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`II. TEQUILA PREMIUMIZATION
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`21. Numerous tequila brands started or associated with celebrities have been a big factor
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`in the growth of tequila.
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`22. Their vast social media networks allow them to be real-time influencers for the brand,
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`while allowing them to interact with their consumers and followers.
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`23. US consumption of tequila has risen by more than 30% between 2015 and 2020, with
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`premium-and-above products up by over 60%.
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`24. Most brands have focused on premiumization, through age statements, a second
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`filtration through the cristalino process, single barrel, bourbon barrel aging, 100% organic
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`offerings, single-estate products, and 110-proof offerings.
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`III. POPULARITY OF TEQUILA INCREASES DEMAND FOR ALL THINGS AGAVE
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`25. The increase in awareness and knowledge of tequila has led to a greater demand for
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`other agave spirits.
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`26. Agave spirits are the fastest growing category in the US, and increased c. 20% in
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`2020, twice as much as bourbon, the second highest.
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`27.
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`In 2020, the volume of agave spirits surpassed the rum and bourbon (whiskey)
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`categories.
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`28. Agave spirits are the third largest spirits category in the US in terms of sales, behind
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`vodka and whisky.
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`29. Demand for agave spirits cuts across age groups and genders, due to several factors.
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`30. First, it is overtly plant-based, and seen as being a “clean” and “light” spirit, creating
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`a “better for you” perception among consumers.
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`31. Second, agave spirits appeal to consumers because of their Mexican origin, seen as
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`“exotic” by consumers.
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`32. Third, the absence of industrial farming methods taps into consumer desire for
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`authenticity, as seen in the image below of Mexican farmers harvesting their agave crops.
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`5
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`Case: 1:21-cv-05268 Document #: 1 Filed: 10/05/21 Page 6 of 16 PageID #:6
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`33. Fourth, the association of tequila with many celebrities and “influencers” has spilled
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`over into other agave spirits.
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`IV. STATE AND FEDERAL REGULATIONS REQUIRE FRONT LABEL TO
`QUALIFY “MADE WITH AGAVE” STATEMENT
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`34.
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`Illinois has incorporated all federal labeling regulations for spirits which are adopted
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`by The Alcohol and Tobacco Tax and Trade Bureau (“TTB”).
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`35. Federal regulations define “Agave spirits” as “distilled from a fermented mash, of
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`which at least 51 percent is derived from plant species in the genus Agave and up to 49 percent is
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`derived from other sugars.” 27 C.F.R. § 5.22(g) (“Class 7; Agave Spirits.”).
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`36. Agave spirits “must be distilled at less than 95 percent alcohol by volume (190°
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`proof) and bottled at or above 40 percent alcohol by volume (80° proof).”
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`37. Agave spirits “may be stored in wood barrels” and “contain added flavoring or
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`coloring materials as authorized by § 5.23.”
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`38. Only agave spirits that “meet the standard of identity for “Tequila” or “Mezcal” may
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`be designated as “agave spirits” or as “Tequila” or “Mezcal” as applicable.”
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`39. Federal (and thus, state) regulations for spirits prohibit “Any statement that is false
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`or untrue in any particular, or that, irrespective of falsity, directly, or by ambiguity, omission, or
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`inference, or by the addition of irrelevant, scientific or technical matter, tends to create a
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`misleading impression.” 27 C.F.R. § 5.42(a)(1)
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`40. The Illinois Consumer Fraud and Deceptive Business Practices Act provides
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`protection for consumers purchasing items like the Product, and states:
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`6
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`Case: 1:21-cv-05268 Document #: 1 Filed: 10/05/21 Page 7 of 16 PageID #:7
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`Unfair methods of competition and unfair or deceptive acts or practices, including
`but not limited to the use or employment of any deception, fraud, false pretense,
`false promise, misrepresentation or the concealment, suppression or omission of
`any material fact, with intent that others rely upon the concealment, suppression or
`omission of such material fact . . . are hereby declared unlawful
`
`815 ILCS 505/2.
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`41. Whether a product is made with agave spirits is basic front label information
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`consumers rely on when making quick decisions when buying alcoholic beverages.
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`42. The Product lacks any agave spirits, and instead, uses “Agave Syrup,” a sweetener
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`derived from the Agave plant, as shown in the fine print ingredient list on the back of the Product.
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`
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`INGREDIENTS: Water, Cold-Fermented
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`Cane Sugar, Natural Flavors, Agave Syrup,
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`Citric Acid, Malted Rice.
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`43. Reasonable consumers are misled by the statement, “Made With Agave.”
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`44. The other representations, including “Platinum,” “Made For the Night,” and “8%
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`ALC/VOL,” in conjunction with “Made With Agave,” furthers the consumer belief the Product
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`contains agave spirits, for several reasons.
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`45. First, platinum refers to a type of tequila.
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`46. Second, platinum is defined as a valuable silvery-grey metal.
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`47. Based on the known value of all things platinum, many brands designate high-valued
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`customers as having attained “Platinum” status, based on accumulation of “points,” entitling them
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`to membership perks.
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`48. Third, in the context of nightlife, platinum is a term that is accompanied by status
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`and importance.
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`49. Fourth, “Made For the Night,” tells consumers that the Product is not a typical hard
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`seltzer made from cane-sugar.
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`50. Consumers of alcohol typically associate consumption of hard liquors with a night
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`out.
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`51. Fifth, the emphasis in large print of the “8% ALC/VOL,” tells consumers the Product
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`has a relatively high alcohol content, which they will link to the expected presence of agave spirits.
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`52. Sixth, the picture on the front of the box shows the Product poured into a glass.
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`53. This is significant, as consumers are accustomed to drinking hard seltzer from cans.
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`54.
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`In contrast, spirits are typically consumed in glasses, whether at a nightclub or home.
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`55. Seventh, the liquid in the glass on the front label is clear, the color of agave spirits.
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`56. Agave syrup, also known as maguey syrup or agave nectar, is a sweetener,
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`commercially produced from several species of agave, including Agave tequilana (blue agave).
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`57. Blue-agave syrup contains 56% fructose as a sugar, providing sweetening properties.
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`58. Numerous spirit-industry publications have emphasized that the popularity of agave
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`spirits has resulted in its addition to ready-to-drink (RTD) products.
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`59. For instance, varieties of “Ranch Water,” a West Texas alcoholic beverage, including
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`the product made by the Texas Ranch Water Company, contain alcohol from agave.
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`60.
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`In the context of an alcoholic beverage with the representations identified here,
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`8
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`Case: 1:21-cv-05268 Document #: 1 Filed: 10/05/21 Page 9 of 16 PageID #:9
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`consumers will expect “Made With Agave” to mean the Product contains agave spirits.
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`61. Consumers buying alcoholic beverages are more aware of agave spirits than agave
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`sweetener and are not looking for alternatives to sugar.
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`V. CONCLUSION
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`62. Reasonable consumers must and do rely on a company to honestly identify and
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`describe the components, attributes, and features of the Product, relative to itself and other
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`comparable products or alternatives.
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`63. The value of the Product that plaintiff purchased was materially less than its value as
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`represented by defendant.
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`64. Defendant sold more of the Product and at higher prices than it would have in the
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`65. Had Plaintiff and proposed class members known the truth, they would not have
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`bought the Product or would have paid less for it.
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`66. The Product is sold for a price premium compared to other similar products, no less
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`than $9.99 for a six-pack of 12 oz cans, a higher price than it would otherwise be sold for, absent
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`the misleading representations and omissions.
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`Jurisdiction and Venue
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`67.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2).
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`68. The aggregate amount in controversy exceeds $5 million, including any statutory
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`damages, exclusive of interest and costs.
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`69. Plaintiff Stella Khaimova is a citizen of Illinois.
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`70. Defendant Anheuser-Busch, LLC is a Missouri limited liability company with a
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`9
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`Case: 1:21-cv-05268 Document #: 1 Filed: 10/05/21 Page 10 of 16 PageID #:10
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`principal place of business in Saint Louis, Saint Louis City County, Missouri and upon information
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`and belief, at least one member of defendant is not a citizen of the same state as the plaintiff.
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`71. The sole member of Anheuser-Busch, LLC is Anheuser-Busch Companies, LLC.
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`72. The sole member of Anheuser-Busch Companies, LLC, is Anheuser-Busch InBev
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`Worldwide, Inc.
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`73. Anheuser-Busch InBev Worldwide, Inc., is a Delaware corporation with a principal
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`place of business in St. Louis, Missouri.
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`74. Plaintiff and defendant are citizens of different states.
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`75. Venue is in this district because plaintiff resides in this district and the actions giving
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`rise to the claims occurred within this district.
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`76. Venue is in the Eastern Division because plaintiff resides in Lake County, which is
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`where the events giving rise to the present claims occurred.
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`Parties
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`77. Plaintiff Stella Khaimova is a citizen of Vernon Hills, Lake County, Illinois.
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`78. Defendant Anheuser-Busch, LLC, is a Missouri limited liability company with a
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`principal place of business in Saint Louis, Missouri, Saint Louis City County.
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`79. Defendant is part of the largest alcoholic beverage company in the world, Anheuser-
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`Busch InBev.
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`80. The Bud Light brand has been one of the most well-known in the world for decades.
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`81. Defendant has sought to capitalize on consumer demand for hard seltzers and agave
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`spirits.
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`82. The Product is sold at thousands of retail locations – grocery stores, drug stores, big
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`box stores, convenience stores, etc. – and online.
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`Case: 1:21-cv-05268 Document #: 1 Filed: 10/05/21 Page 11 of 16 PageID #:11
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`83. The Product is sold in packs of twelve.
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`84. Plaintiff bought the Product on one or more occasions within the statute of limitations
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`for each cause of action alleged, at stores including Target, 313 E Townline Rd, Vernon Hills, IL
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`60061, in July 2021, among other times.
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`85. Plaintiff bought the Product because she expected it would contain agave spirits.
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`86. Plaintiff did not expect it to contain agave syrup, because the Product was not
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`labeled, “Agave Sweetened Platinum Hard Seltzer.”
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`87. Plaintiff bought the Product at or exceeding the above-referenced price.
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`88. Plaintiff relied on the representations identified here.
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`89. Plaintiff would not have purchased the Product if she knew the representations were
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`false and misleading.
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`90. Plaintiff chose between Defendant’s Product and other similar products which were
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`represented similarly, but which did not misrepresent their attributes and/or lower-priced products
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`which did not make the claims made by Defendant.
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`91. The Product was worth less than what Plaintiff paid and she would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`92. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`with the assurance that Product's representations are consistent with its composition.
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`Class Allegations
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`93. Plaintiff seeks certification under Fed. R. Civ. P. 23(b)(2) and (b)(3) of the following
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`classes:
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`Illinois Class: All persons in the State of Illinois who
`purchased the Product during the statutes of limitations for
`each cause of action alleged.
`
`Consumer Fraud Multi-State Class: All persons in the
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`Case: 1:21-cv-05268 Document #: 1 Filed: 10/05/21 Page 12 of 16 PageID #:12
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`States of Iowa and Arkansas who purchased the Product
`during the statutes of limitations for each cause of action
`alleged.1
`
`94. Common questions of law or fact predominate and include whether defendant’s
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`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`95. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`96. Plaintiff is an adequate representative because her interests do not conflict with other
`
`members.
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`97. No individual inquiry is necessary since the focus is only on defendant’s practices
`
`and the class is definable and ascertainable.
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`98.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
`
`to justify, as the claims are modest relative to the scope of the harm.
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`99. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`100. Plaintiff seeks class-wide injunctive relief because the practices continue.
`
`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
`
`(Consumer Protection Statute)
`
`101. Plaintiff incorporates by reference all preceding paragraphs.
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`102. Plaintiff and class members desired to purchase a product that contained agave
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`spirits, not agave sweetener.
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`103. Defendant’s false and deceptive representations and omissions are material in that
`
`
`1 The States in the Consumer Fraud Multi-State Class are limited to those States with similar consumer fraud laws
`under the facts of this case: Iowa (Consumer Fraud and Private Right of Action for Consumer Frauds Act, Iowa Code
`Ann. § 714.16 et seq.); Arkansas (Arkansas Deceptive Trade Practices Act, Ark. Code § 4-88-101, et. seq.).
`
`12
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`Case: 1:21-cv-05268 Document #: 1 Filed: 10/05/21 Page 13 of 16 PageID #:13
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`they are likely to influence consumer purchasing decisions.
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`104. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`105. Plaintiff relied on the representations.
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`106. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
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`Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`107. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class
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`prohibit the use of unfair or deceptive business practices in the conduct of trade or commerce.
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`108. Defendant intended that plaintiff and each of the other members of the Consumer
`
`Fraud Multi-State Class would rely upon its deceptive conduct, and a reasonable person would in
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`fact be misled by this deceptive conduct.
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`109. As a result of defendant’s use or employment of artifice, unfair or deceptive acts or
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`business practices, plaintiff, and each of the other members of the Consumer Fraud Multi-State
`
`Class, have sustained damages in an amount to be proven at trial.
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`110. In addition, defendant’s conduct showed malice, motive, and the reckless disregard
`
`of the truth such that an award of punitive damages is appropriate.
`
`Breaches of Express Warranty,
`Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
`
`111. The Product was manufactured, labeled, and sold by defendant and expressly and
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`impliedly warranted to plaintiff and class members that it contained agave spirits, not agave
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`sweetener.
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`112. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Product.
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`113. This duty is based on Defendant’s outsized role in the market for this type of Product.
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`114. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers, and their employees.
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`115. Defendant received notice and should have been aware of these issues due to
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`complaints by regulators, competitors, and consumers, to its main offices.
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`116. The Product did not conform to its affirmations of fact and promises due to
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`defendant’s actions and were not merchantable because they were not fit to pass in the trade as
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`advertised.
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`117. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`118. Defendant had a duty to truthfully represent the Product, which it breached.
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`119. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience this area, as the Bud Light brand has consumer recognition as a trusted
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`source of alcoholic beverages.
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`120. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in defendant, a nationally recognized and trusted brand.
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`121. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, their purchase of the
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`Product.
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`122. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`123. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained agave spirits, not agave sweetener
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`124. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
`
`consistent with its representations.
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`Unjust Enrichment
`
`125. Defendant obtained benefits and monies because the Product was not as represented
`
`and expected, to the detriment and impoverishment of plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
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`claims and interest pursuant to the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
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`experts; and
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`15
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`Case: 1:21-cv-05268 Document #: 1 Filed: 10/05/21 Page 16 of 16 PageID #:16
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`6. Other and further relief as the Court deems just and proper.
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`Dated: October 5, 2021
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`
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`Respectfully submitted,
`
`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
`
`16
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`
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