Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`WHITE PLAINS COURTHOUSE
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`Kari Warren, individually and on behalf of all
`others similarly situated,
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`7:22-cv-06907
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`Plaintiff,
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`
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`- against -
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`Class Action Complaint
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`The Coca-Cola Company,
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`
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`Defendant
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`Jury Trial Demanded
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`Plaintiff Kari Warren (“Plaintiff”) alleges upon information and belief, except for
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`allegations about Plaintiff, which are based on personal knowledge:
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`1.
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`The Coca-Cola Company (“Defendant”) manufactures, distributes, labels, markets,
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`and/or sells alcoholic beverages described as “Margarita – Hard Seltzer” under the Topo Chico
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`brand (“Product”).
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`
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`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`WHITE PLAINS COURTHOUSE
`
`Kari Warren, individually and on behalf of all
`others similarly situated,
`
`7:22-cv-06907
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`The Coca-Cola Company,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff Kari Warren (“Plaintiff”) alleges upon information and belief, except for
`
`allegations about Plaintiff, which are based on personal knowledge:
`
`1.
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`The Coca-Cola Company (“Defendant”) manufactures, distributes, labels, markets,
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`and/or sells alcoholic beverages described as “Margarita – Hard Seltzer” under the Topo Chico
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`brand (“Product”).
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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 2 of 14
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`2.
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`Relevant representations include “Topo Chico,” “4.5% ALC/VOL,” “Margarita
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`Hard Seltzer,” and a yellow backdrop of agave plants, the source crop for tequila.
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`3.
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`The packaging contains the four varieties of Margarita Hard Seltzer including the
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`“Signature Margarita.”
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`4.
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`In smaller font beneath each variety, the label states “Naturally Flavored With Other
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`Natural Flavors.”
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`I. MARGARITA CONTAINS TEQUILA
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`5.
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`Consumers expect to receive a cocktail containing tequila when they order a
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`margarita as this ingredient defines what a margarita is.
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`6. Merriam-Webster dictionary defines a “margarita” as “a cocktail consisting of
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`tequila, lime or lemon juice, and an orange-flavored liqueur.”
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`7. Wikipedia defines a “margarita” as “a cocktail consisting of tequila, orange liqueur,
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`and lime juice[.]”
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`8.
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`The International Bartenders Association (“IBA”) recognizes a “margarita” as a
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`classic cocktail made with tequila.
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`II. LABEL INDICATES PRODUCT WILL CONFORM TO A MARGARITA
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`9.
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`Consumers will expect the Product to contain tequila because the label says
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`“Margarita – Hard Seltzer” with pictures of the plant most associated with tequila, agave.
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`10. The term “Hard Seltzer” beneath “Margarita” furthers the expectation the Product
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`will contain tequila.
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`11. With one notable exception, the term “hard” in the context of alcohol refers to
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`distilled spirits, i.e., “hard liquor.”
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`12. The exception is the fermented apple beverage known as “hard cider.”
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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 3 of 14
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`13.
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` Various theories exist about how the term “hard” became associated with cider.
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`14. One explanation contends that “hard” was implicit in the Middle English definition
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`of cider as a “strong drink.”
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`15. Another posits that “hard” was used to distinguish fermented apple juice which
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`contains alcohol from non-fermented and non-alcoholic fresh apple juice.
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`16. Eventually, “hard cider” was adopted in the IRS tax code and given a statutory
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`definition.
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`17. However, consumers understand “hard” in the context of alcoholic beverages to refer
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`to distilled spirits.
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`18. Ready-to-drink (“RTD”) margarita beverages which contain tequila are sold by
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`competitor brands like BuzzBox and Dulce Vida and are not technologically or commercially
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`unfeasible.
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`III. PRODUCT DOES NOT CONTAIN TEQUILA
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`19. The representations are misleading because the Product does not contain tequila,
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`absent from the ingredient list on the side panel of the packaging.
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`3
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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 4 of 14
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`SIGNATURE MARGARITA: INGREDIENTS:
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`FILTERED CARBONATED WATER, ALCOHOL, LIME
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`JUICE FROM CONCENTRATE, AGAVE SYRUP,
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`CITRIC ACID, NATURAL FLAVORS, SALT*, SODIUM
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`CITRATE, SUCRALOSE, MAGNESIUM CHLORIDE*
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`POTASSIUM CHLORIDE*. (*MINERALS FOR TASTE)
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`20.
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`Instead of listing the alcohol source from a fermented sugar base, the ingredients list
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`only “alcohol.”
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`21. The ingredients include “agave syrup,” a sweetener from the agave plant, instead of
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`the liquor obtained from the distillation of the agave plant and the essential tequila ingredient in a
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`margarita.
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`22. That the front of the cans state “Naturally Flavored With Other Natural Flavors” does
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`not tell consumers the drinks they are purchasing are flavored beers that purport to taste like a
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`margarita.
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`23. Moreover, the flavor designation of “Naturally Flavored With Other Natural
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`Flavors” is not clearly visible on the box at the point-of-sale, written in smaller font beneath the
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`variety of each can.
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`24. There is no inconsistency between a RTD margarita containing tequila and added
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`flavoring.
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`25. This is shown by the Dulce Vida label, which states, “Our Dulce Vida Sparkling
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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 5 of 14
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`Margarita is the first ready-to-drink premium cocktail made with real lime and natural flavors.”
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`26. The “Margarita” representations including “Margarita,” “Hard Seltzer,” and pictures
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`of agave plants are misleading because the Product does not contain tequila.
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`27. Malt beverage products are required to indicate the class of beverage they fit into.
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`28. The representation as “Hard Seltzer” does not indicate the class of malt beverages
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`the Product fits in, preventing consumers from knowing the type of alcoholic drink they are buying.
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`29. “Margarita – Hard Seltzer” does not identify the Product’s base class and/or type
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`designation, which is beer.
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`30. The Product’s use of the term “Hard Seltzer” is false, deceptive and misleading
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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 6 of 14
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`because it does not contain distilled spirits, but is made from a fermented sugar base.
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`31. The labeling is misleading because the Product does not contain the sparkling
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`mineral water sourced in Monterrey, Mexico, which is an essential part of Topo Chico beverages.
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`IV. CONCLUSION
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`32. Defendant makes other representations and omissions with respect to the Product
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`which are false and misleading.
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`33. The value of the Product that Plaintiff purchased was materially less than its value
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`as represented by Defendant.
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`34. 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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`35. Had Plaintiff known the truth, she would not have bought the Product or would have
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`paid less for it.
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`36. As a result of the false and misleading representations, the Product is sold at a
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`premium price, approximately no less than $17.99 for a twelve-pack of 12 oz cans, excluding tax
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`and sales, higher than similar products, represented in a non-misleading way, and higher than it
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`would be sold for absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`37.
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`Jurisdiction is based on the Class Action Fairness Act of 2005 (“CAFA”). 28 U.S.C.
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`§ 1332(d)(2).
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`38. The aggregate amount in controversy exceeds $5 million, including any statutory and
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`punitive damages, exclusive of interest and costs.
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`39. The Product has been sold at thousands of locations in the states covered by the
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`classes Plaintiff seeks to represent, with the representations challenged here, for over a year.
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`6
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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 7 of 14
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`40. Plaintiff Kari Warren is a citizen of New York.
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`41. Defendant The Coca-Cola Company is a Delaware corporation with a principal place
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`of business in Atlanta, Fulton County, Georgia.
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`42. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen.
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`43. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been sold with the representations described here for over a year, in thousands of
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`locations, in the States covered by Plaintiff’s proposed classes.
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`44. The Product is available to consumers from grocery stores, liquor stores, warehouse
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`club stores, drug stores, convenience stores, big box stores, and online.
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`45. Venue is in this District because Plaintiff’s residence and the actions giving rise to
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`the claims occurred here.
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`46. This action should be assigned to the White Plains Courthouse of this District
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`because a substantial part of the events or omissions giving rise to these claims occurred in
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`Rockland County,
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`including Plaintiff’s purchases, consumption, and reliance on
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`the
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`representations identified here.
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`Parties
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`47. Plaintiff is a citizen of Nanuet, New York, Rockland County.
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`48. Defendant is a Delaware corporation with a principal place of business in Atlanta,
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`Georgia, Fulton County.
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`49. Defendant is the world’s largest seller of beverages.
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`50. Topo Chico is a leading brand of sparkling mineral water that has been bottled at its
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`natural source in Monterrey, Mexico, since 1985.
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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 8 of 14
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`51. Topo Chico’s sales have it eclipsing more established brands of mineral water, such
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`as Perrier, within the next 10 years.
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`52. The Topo Chico brand is known for its authenticity and no-frills approach to
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`sparkling mineral water.
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`53. This cachet is beneficial in the sale of alcoholic beverages purporting to contain
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`distilled spirits, because consumers will expect its labeling is true to its roots and brand message.
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`54. Defendant has spent millions of dollars on research to identify attributes of products
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`consumers want and will pay more for.
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`55. Defendant’s studies and records confirmed that consumers increasingly seek
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`alcoholic beverages with distilled spirit ingredients or canned cocktails.
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`56. Plaintiff purchased the Product at locations including ShopRite, 26 N Middletown
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`Rd, Pearl River, NY 10965, between May 2022 and June 2022, among other times.
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`57. Plaintiff believed and expected the Product contained tequila based on the terms
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`“Margarita” and “Hard Seltzer” and pictures of agave plants, and contained Topo Chico’s naturally
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`sparkling mineral water, because that is what the representations and omissions said and implied,
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`on the front label and the absence of any adequate disclaiming statements.
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`58. Plaintiff relied on the words, terms coloring, descriptions, layout, placement,
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`packaging, and/or images on the Product, on the labeling, statements, omissions, claims,
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`statements, and instructions, made by Defendant or at its directions, in digital, print and/or social
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`media, which accompanied the Product and separately, through in-store, digital, audio, and print
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`marketing.
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`59. Plaintiff bought the Product at or exceeding the above-referenced price.
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`60. Plaintiff would not have purchased the Product if she knew the representations and
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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 9 of 14
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`omissions were false and misleading or would have paid less for it.
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`61. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes, requirements, instructions, features, and/or
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`components.
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`62. Plaintiff paid more for the Product than she otherwise would have absent Defendant’s
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`false and misleading statements and omissions.
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`Class Allegations
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`63. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
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`New York Class: All persons in the State of New
`York who purchased the Product during the statutes
`of limitations for each cause of action alleged; and
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`Consumer Fraud Multi-State Class: All persons in
`the States of Montana, New Mexico, Idaho, South
`Carolina, Utah, Mississippi, and Alaska who
`purchased
`the Product during
`the statutes of
`limitations for each cause of action alleged.
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`64. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`65. Plaintiff’s claims and basis for relief are typical to other members because all were
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`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
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`66. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`67. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`and the class is definable and ascertainable.
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`68.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 10 of 14
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`69. 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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`New York General Business Law §§ 349 and 350
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`(Consumer Protection Statute)
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`70. Plaintiff incorporates by reference all preceding paragraphs.
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`71. Plaintiff believed and expected the Product contained tequila based on the terms
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`“Margarita” and “Hard Seltzer” and pictures of agave plants, and contained Topo Chico’s naturally
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`sparkling mineral water.
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`72. Defendant’s false, misleading, and deceptive representations and omissions are
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`material in that they are likely to influence consumer purchasing decisions.
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`73. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`74. Plaintiff relied on the representations and omissions.
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`75.
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` Plaintiff would not have purchased the Product or paid as much if the true facts had
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`been known, suffering damages.
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`Violation of State Consumer Fraud Acts
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`(Consumer Fraud Multi-State Class)
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`76. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
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`deceptive business practices in the conduct of commerce.
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`77. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
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`their consumer protection claims under the Consumer Fraud Acts of the States they represent
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`and/or the consumer protection statute invoked by Plaintiff.
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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 11 of 14
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`78. Defendant intended that the Consumer Fraud Multi-State Class would rely upon its
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`deceptive conduct.
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`79. As a result of Defendant’s use of artifice, and unfair or deceptive acts or business
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`practices, the members of the Consumer Fraud Multi-State Class sustained damages.
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`80. Defendant’s conduct showed motive and a reckless disregard of the truth such that
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`an award of punitive damages is appropriate.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose
`and Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`81. The Product was manufactured, identified, marketed, and sold by Defendant and
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`expressly and impliedly warranted to Plaintiff that it contained tequila and Topo Chico’s naturally
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`sparkling mineral water.
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`82. Defendant directly marketed the Product to Plaintiff through its advertisements and
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`marketing, through various forms of media, on the packaging, in print circulars, direct mail,
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`product descriptions distributed to resellers, and targeted digital advertising.
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`83. Defendant knew the product attributes that potential customers like Plaintiff were
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`seeking and developed its marketing and labeling to directly meet those needs and desires.
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`84. Defendant’s representations about the Product were conveyed in writing and
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`promised it would be defect-free, and Plaintiff understood this meant that it contained tequila based
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`on the terms “Margarita” and “Hard Seltzer” and pictures of agave plants, and contained Topo
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`Chico’s naturally sparkling mineral water.
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`85. Defendant’s representations affirmed and promised that the Product contained
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`tequila and Topo Chico’s naturally sparkling mineral water.
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`11
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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 12 of 14
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`86. Defendant described the Product so Plaintiff believed it contained tequila and Topo
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`Chico’s naturally sparkling mineral water, which became part of the basis of the bargain that it
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`would conform to its affirmations and promises.
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`87. 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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`88. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`a trusted and authentic brand in the beverage category.
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`89. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`90. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`91. Plaintiff provides notice to Defendant that it breached the express and implied
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`warranties associated with the Product.
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`92. Defendant received notice and should have been aware of these issues due to
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`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
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`and by consumers through online forums.
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`93. The Product did not conform to its affirmations of fact and promises due to
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`Defendant’s actions.
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`94. The Product was not merchantable because it was not fit to pass in the trade as
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`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
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`promises or affirmations of fact made on the packaging, container, or label, because it was
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`marketed as if it contained tequila and Topo Chico’s naturally sparkling mineral water.
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`12
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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 13 of 14
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`95. The Product was not merchantable because Defendant had reason to know the
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`particular purpose for which the Product was bought by Plaintiff, because she expected it contained
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`tequila and Topo Chico’s naturally sparkling mineral water, and she relied on Defendant’s skill
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`and judgment to select or furnish such a suitable product.
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`96. Plaintiff would not have purchased the Product or paid as much if the true facts had
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`been known, suffering damages.
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`Fraud
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`97. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained tequila and Topo Chico’s naturally sparkling mineral water.
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`98. Moreover, the records Defendant is required to maintain, and/or the information
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`inconspicuously disclosed to consumers, provided it with actual and constructive knowledge of
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`the falsity and deception, through statements and omissions.
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`99. Defendant knew of the issues described here yet did not address them.
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`100. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
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`consistent with its representations.
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`Unjust Enrichment
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`101. Defendant obtained benefits and monies because the Product was not as represented
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`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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`Case 7:22-cv-06907-CS Document 1 Filed 08/14/22 Page 14 of 14
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`2. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
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`claims, restitution and interest pursuant to the common law and other statutory claims;
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`3. Awarding costs and expenses, including reasonable fees for Plaintiff’s attorneys and
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`experts; and
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`4. Other and further relief as the Court deems just and proper.
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`Dated: August 14, 2022
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`Respectfully submitted,
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`/s/Spencer Sheehan
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 412
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
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`14
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