Marty v. Anheuser-Busch Companies, LLC

Filing 88

ORDER granting in part and denying in part 54 Motion to Dismiss for Failure to State a Claim. Signed by Magistrate Judge John J. O'Sullivan on 9/5/2014. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-23656-CIV-O'SULLIVAN
[CONSENT]
FRANCISCO RENE MARTY, et gl,
Plaintiffs,

v.
ANHEUSER-BUSCH COMPANIES, LLC,
Defendant.

--------------------------~'
ORDER
THIS MATTER comes before the Court on the Defendant's Motion to Dismiss
and Memorandum of Law in Support (DE# 54, 4/25/14).

BACKGROUND
Anheuser-Busch Companies, LLC (hereinafter "defendant" or "AB") is the brewer
of Beck's beer (hereinafter "Beck's" or "Beck's Beer"). 1 See Amended Class Action
Complaint (DE# 50 at ~10, 3/31/14) (hereinafter "Amended Complaint"). 2 Beck's
originated and was brewed in Germany from 1873 until 2012 when the defendant

1

Unless otherwise stated in this Order, the words "Beck's" and "Beck's Beer"
refer to six and twelve packs of twelve ounce bottles and cans of Beck's brand beer, the
products at issue in the instant action. See Amended Complaint (DE# 50 at 1 n.1, ~ 22,
24, 26, 3/31/14).
2

Some of the parties' filings contain page numbers which do not correspond to
the page numbers automatically assigned by the Court's CM/ECF system. When citing
the Amended Complaint (DE# 50 at ~10, 3/31/14), the Court will cite to the paragraph
number instead of the page number, when available. With respect to all other
documents, the Court will cite to the page numbers automatically assigned by CM/ECF.

began brewing Beck's in St. Louis, Missouri.

kl at~~ 6,10. 3

The plaintiffs are consumers of Beck's residing in Florida, New York and
California who purchased Beck's "in reliance on representations contained on [the]
packaging and Beck's history of being an imported beer from Germany." Amended
Complaint (DE# 50

at~~

22, 24, 26, 3/31/14). The plaintiffs allege that the defendant

made misrepresentations about Beck's that caused confusion among consumers.
~15.

kl at

According to the plaintiffs, "[c]onsumers believed they [we]re purchasing German

beer, imported from Germany, brewed using German requirements and with German
ingredients, when in fact, they [we]re purchasing beer brewed in St. Louis, Missouri ...
with ingredients from the United States." kL The plaintiffs maintain that "[b]ased on [the
d]efendant's misrepresentations and deceptive conduct, [they] purchased beer that had
less value than what [they] had paid, and [they] ha[ve] accordingly suffered legally
cognizable damages proximately caused by the [d]efendant's misconduct. kL at~~ 22,
24, 26.
On March 31, 2014, the plaintiffs filed their Amended Complaint asserting
causes of action for: unjust enrichment (Count 1), violation of the Florida Deceptive and
Unfair Trade Practices Act, Fla. Stat. § 501.201, et seq. ("FDUTPA") (Count II), violation
of the New York General Business Law§ 349 (Count Ill), violation of the California
Unfair Competition Law Business and Professions Code § 17200, et seq. ("UCL")
(Count IV) and violation of the California Consumer Legal Remedies Act Civil Code §

3

The predecessor of the defendant's parent company purchased Beck's in 2002.
Amended Complaint (DE# 50 at ~6, 3/31/14).

2

1750, et seq. ("CLRA") (Count V). See Amended Complaint (DE# 50 at 1}1 0, 3/31/14). 4
On April 25, 2014, the defendant moved to dismiss all counts of the Amended
Complaint (DE# 50) for failure to state a claim under Rule 12(b)(6) of the Federal Rules
of Civil Procedure and to dismiss the injunctive relief sought in Counts II through IV for
lack of standing under Rule 12(b)(1). See Defendant's Motion to Dismiss and
Memorandum of Law in Support (DE# 54, 4/25/14). The plaintiffs filed their response on
May 19, 2014. See Plaintiffs' Response in Opposition to Defendant's Motion to Dismiss
Amended Complaint (DE# 62, 5/19/14). The defendant filed its reply in support of the
instant motion on May 30, 2014. See Defendant's Reply Memorandum in Support of its
Motion to Dismiss (DE# 63, 5/30/14).
On June 6, 2014, the defendant filed a notice of supplemental authority. See
Defendant's Notice of Supplemental Authority in Support of Its Motion to Dismiss (DE#
66, 6/6/14). The defendant filed a second notice of supplemental authority on July 28,
2014. See Defendant's Notice of Supplemental Authority in Support of Its Motion to
Dismiss (DE# 75, 7/28/14).
In a prior Order, the Court granted the defendant's request to take judicial notice
of the Certificates of Label Approval from the Alcohol and Tobacco Tax and Trade
Bureau ("TTB") dated December 14, 2009 and December 14, 2011, "the bottom of the

4

In a separate motion, the plaintiffs seek class action certification of a national
class for unjust enrichment and three deceptive and unfair trade practices act
subclasses for the states of Florida, New York and California. See Plaintiffs' Motion for
Class Certification and Incorporated Memorandum of Law (DE# 68 at 7, 6/30/14). The
motion for class certification is not yet ripe.
3

current [carton] 5 of Beck's six[-]pack of bottles" and the front carton of Beck's six-pack
and twelve-pack bottles. See Order (DE# 38, 1/21/14); Defendant's Request for Judicial
Notice in Support of its Motion to Dismiss (DE# 14, 12/9/13) (footnote added). The
Court will consider these documents in ruling on the instant motion.
On August 1, 2014, the Court held a hearing on the instant motion. At the
defendant's request, the Court allowed the defendant to bring demonstratives to the
hearing for the Court's consideration. See Defendant's Unopposed Motion for
Permission to Bring Demonstratives to the August 1, 2014 Hearing (DE# 74, 7/28/14);
Order Granting Defendant's Motion for Permission to Bring Demonstratives to the
August 1, 2014 Hearing (DE# 76, 7/29/14). The defendant presented the Court with
sample twelve ounce bottles and cans of Beck's, the cartons for six-pack and twelvepack bottles and the carton for twelve-pack cans. Following the hearing, the Court
issued an Order permitting the parties to file supplemental briefs on the issue of
standing to seek injunctive relief. See Order (DE# 78, 8/1/14).
On August 6, 2014, the defendant filed its supplemental brief. See Defendant's
Supplemental Brief in Support of Its Motion to Dismiss (DE# 81, 8/6/14). The plaintiffs
filed their supplemental brief on August 11, 2014. See Plaintiff's Supplemental Brief in
Opposition to Defendant's Motion to Dismiss Amended Complaint (DE# 83, 8/11/14).
On September 2, 2014, the defendant filed its third notice of supplemental authority.
See Defendant's Notice of Supplemental Authority in Support of Its Motion to Dismiss
(DE# 86, 9/2/14). This matter is ripe for adjudication.

5

In this Order, the word "carton" will refer to the cardboard, outer packaging of

Beck's.
4

STANDARD OF REVIEW

A.

Rule 12(b)(6)
The defendant seeks to dismiss the Amended Complaint (DE# 50, 3/31/14) for

failure to state a claim upon which relief can be granted. See Defendant's Motion to
Dismiss and Memorandum of Law in Support (DE# 54 at 1-36, 4/25/14). "A pleading
that states a claim for relief must contain ... a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 does not
require "detailed factual allegations," but "[a] pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)) (internal quotations omitted).
The defendant also argues that Rule 9(b)'s heightened pleading requirement
applies to the plaintiffs' FDUTPA, UCL and CLRA claims and that the plaintiffs have not
met this pleading requirement in their Amended Complaint (DE# 50, 3/31/14). See
Defendant's Motion to Dismiss and Memorandum of Law in Support (DE# 54 at 16,
4/25/14). Rule 9(b) states that: "In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge,
and other conditions of a person's mind may be alleged generally." Fed. R. Civ. P. 9(b).
There is some disagreement in the case law concerning the applicability of Rule 9(b) to
state law consumer protection claims. This Court has recognized, for instance, that
"although most courts have found that Rule 9(b) applies to claims brought under states'
consumer fraud statutes, other courts have found that Rule 9(b) is not applicable to
those claims." In re Horizon Organic Milk Prods. Plus DHA Omega-3 Mktg. & Sales

5

Practice Litig., 955 F. Supp. 2d 1311, 1323 n.8 (S.D. Fla. 2013); see also, 5U!,.,
Galstaldi v. Sunvest Cmty. USA, LLC, 637 F. Supp. 2d 1045, 1058 (S.D. Fla. 2009)
(stating that "[t]he requirements of Rule 9(b) do not apply to claims under the FDUTPA"
because "FDUTPA was enacted to provide remedies for conduct outside the reach of
traditional common law torts such as fraud, and therefore, the plaintiff need not prove
the elements of fraud to sustain an action under the statute.") (citation and internal
quotation marks omitted). The undersigned does not need to decide whether Rule 9(b)
applies to the plaintiffs' Florida and California consumer protection claims because the
allegations in the Amended Complaint (DE# 50, 3/31/14) are sufficiently detailed to
meet the requirements of Rule 9(b).
In considering a motion to dismiss brought under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, the Court's analysis is generally limited to the four corners of
the complaint and the attached exhibits. See Grossman v. Nationsbank. N.A., 225 F.3d
1228, 1231 (11th Cir. 2000). The Court must also accept the non-moving party's wellpled facts as true and construe the complaint in the light most favorable to that party.
See Caravello v. Am. Airlines. Inc., 315 F. Supp. 2d 1346, 1348 (S.D. Fla. 2004) (citing
United States v. Pemco Aeroplex. Inc., 195 F.3d 1234, 1236 (11th Cir. 1999) (en
bane)). To survive a motion to dismiss, the complaint must contain factual allegations
which are "enough to raise a right to relief above the speculative level." Twombly, 550
U.S. at 555. "When there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to
relief." Iqbal, 556 U.S. at 664. The issue to be decided is not whether the claimant will
ultimately prevail, but "whether the claimant is entitled to offer evidence to support the
6

claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by
Davis v. Scheuer, 468 U.S. 183, 190 (1984).

B.

Rule 12(b)(1)
The defendant also challenges the plaintiffs' standing to seek injunctive relief

pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Defendant's
Motion to Dismiss and Memorandum of Law in Support (DE# 54 at 36-37, 4/25/14).
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows for the dismissal of a claim
when it is determined that the Court lacks subject-matter jurisdiction. See Fed. R. Civ.
P. 12 (b)(1 ). Federal courts are bound by Article Ill of the United States Constitution to
adjudicating only actual "cases" or "controversies." Allen v. Wright, 468 U.S. 737 (1984).
Article Ill standing is a jurisdictional requirement that cannot be waived and, as such,
may be brought up at any time in the proceeding. See Smith v. GTE Corp., 236 F.3d
1292, 1299 (11th Cir. 2001) ("[A] court must zealously insure that jurisdiction exists over
a case, and should itself raise the question of subject matter jurisdiction at any point in
the litigation where a doubt about jurisdiction arises."). "Because standing is
jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack
of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1 )."Stailey ex rei. United
States v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008)
(citation and internal quotation marks omitted).
ANALYSIS

The defendant moves to dismiss all five causes of action in the Amended
Complaint for failure to state a claim and the plaintiffs' request for injunctive relief
contc;tined within Counts II through IV for lack of standing. See Defendant's Motion to
7

Dismiss and Memorandum of Law in Support (DE# 54, 4/25/14). The Court will address
the defendant's arguments in turn.
A.

Failure to State a Claim

i.

State Law Consumer Protection Claims

The plaintiffs assert state law claims under FDUTPA, the New York General
Business Law§ 349, the UCL and the CLRA (collectively, "state law consumer
protection claims"). The defendant maintains that the plaintiffs have failed to state
causes of action under each of these statutes because: (1) no reasonable consumer
could be deceived by the defendant's representations, (2) the safe harbor provisions of
these statutes insulate the defendant from liability and (3) no cognizable harm has been
pled. 6 These arguments are addressed below.

6

To the extent the defendant is relying on Porsche Cars N. Am., Inc. v.
Diamond, 140 So. 3d 1090 (Fla. 3d DCA 2014}, in support of its argument that the
plaintiffs have failed to state a claim under FDUTPA, the undersigned finds that
Porsche is distinguishable from the instant case. In Porsche, a Florida appellate court
reversed a class certification of a FDUTPA claim because the trial court incorrectly
applied the 1964 Federal Trade Commission ("FTC") policy statement definition to the
term "unfair" when it should have applied the 1980 FTC policy statement definition
establishing a three prong test for "unfairness." kl at 1096-97. Under the three-prong
test for "unfairness," injury to the consumer must: (1) be substantial; (2) "not be
outweighed by any countervailing benefits to the consumers or competition that the
practice produces" and (3) "be an injury that consumers themselves could not
reasonably have avoided." kl at 1096. The appellate court reversed the class
certification because common issues of law and fact would not predominate over the
FDUTPA claim and over the unjust enrichment claim. kl at 1098-1100. In issuing its
opinion, the appellate court included the following caveat:
This is not to say that individual knowledge must always be considered to
determine whether a trade practice was unfair. The individual
consumer's knowledge may not be a relevant factor where, for
example, the legal theory of the claim posits that "consumers do not
have a free and informed choice that would have enabled them to
avoid the unfair practice." F.T.C. v. Neovi. Inc., 598 F. Supp. 2d 1104,
8

(a).

Whether a Reasonable Consumer Could Be Deceived

The defendant argues that the plaintiffs have failed to state a claim as to each of
the relevant state law consumer protection statutes because the plaintiffs have not pled
any actual misrepresentation or any representations likely to deceive a reasonable
consumer. The defendant maintains that the plaintiffs' state law consumer protection
claims must fail because they are based on the plaintiffs' own unreasonable
assumptions about the labeling and packaging, rather than what the labeling and
packaging actually state. According to the defendant, the plaintiffs: (1) fail to identify
any misrepresentation that Beck's is imported or brewed in Germany and (2) depend
entirely on their failure to read the actual representations regarding production location
that are contained on Beck's labeling and packaging.
The Amended Complaint alleges that:
[The d]efendant has committed unfair and deceptive practices and has
been unjustly enriched by marketing and selling beer in a way that
misleads consumers into believing that Beck's Beer is German, still
imported from Germany, claiming that Beck's Beer "Originated in
Germany" with "German Quality" while "Brewed Under the German
Purity Law of 1516" ....

1115 (S.D. Cal. 2008) (quotation and citation omitted). This scenario
would arise where the claim is based on allegations of "some form of
seller behavior that unreasonably creates or takes advantage of an
obstacle to the free exercise of consumer decisionmaking." F.T.C. v.
Direct Mktg. Concepts. Inc., 569 F. Supp. 2d 285, 299-300 (D. Mass.
2008) (quotation and citation omitted).

kL. at 1099. The instant case is distinguishable from Porsche because the plaintiffs
allege that the defendant engaged in misrepresentations and deceptive conduct leading
them to believe that Beck's was still imported from Germany. See Amended Complaint
(DE# 50 at ,-r,-r 23, 25, 27, 3/31/14). Thus, the Court will not dismiss the plaintiffs'
FDUTPA claim on this ground.

9

Amended Complaint (DE# 50 at ~1, 3/31/14) (emphasis added). The defendant notes
that none of the above quoted statements make any representations concerning the
location where Beck's is brewed.

(i).

The Product of the USA Disclaimer and the Statement
"BRAUEREI BECK & CO., BECK'S ©BEER, ST. LOUIS,
MO"

The defendant argues that any mistaken belief that Beck's is brewed in Germany
is contradicted by the statement "Product of USA, Brauerei Beck & Co., St. Louis, MO."
(hereinafter '"Product of USA' disclaimer") on the label 7 and by the words "BRAUEREI
BECK & CO., BECK'S ©BEER, ST. LOUIS, MO" on the bottom of the carton.
With respect to the "Product of USA" disclaimer, the plaintiffs argue that it is in a
font that is too small and difficult to read, its illegibility is further exacerbated by the fact
that it is in metallic white print on a metallic silver background and it is blocked by the
carton. The defendant maintains that the "Product of USA" disclaimer complies with the
TTB's font size requirements under 27 C.F.R. § 7.28(b) and the Court need only look to
the label itself to reject the plaintiffs' illegibility claim.
At the August 1, 2014 hearing, the defendant submitted demonstrative samples
of twelve ounce bottles and cans of Beck's for the Court's inspection. At the defendant's
invitation, the Court examined these demonstratives. The undersigned finds that the
"Product of USA" disclaimer as printed on the actual cans and bottles themselves is
difficult to read. Depending on the angle from which the viewer looks at the product, the
"Product of USA" disclaimer can be obscured by overhead lighting because the

7

In this Order, the word "label" refers to the labels on both the cans and bottles
of Beck's.
10

disclaimer is printed in a white font against a shiny, metallic silver background. By
contrast, the "Product of USA" disclaimer printed on the label appearing on the Alcohol
and Tobacco Tax and Trade Bureau ("TTB") certification is visible at any angle because
the words are printed on a gray, matte background. See Exhibit 1 (DE# 14-1 at 6,
12/9/13). Thus, there is a discernable difference in legibility between the "Product of
USA" disclaimer as it appears on the actual product and the "Product of USA"
disclaimer approved by the TTB.
More importantly, the "Product of USA" disclaimer is blocked by the carton. A
consumer would have to either open the cartons of twelve-pack bottles and twelve-pack
cans or lift the bottle from the six-pack carton in order to see the "Product of USA"
disclaimer. A reasonable consumer is not required to open a carton or remove a
product from its outer packaging in order to ascertain whether representations made on
the face of the packaging are misleading. See Williams v. Gerber Prods. Co., 552 F.3d
934, 939 (9th Cir. 2008) (reversing motion to dismiss on multiple claims including claims
under the UCL and CLRA and "disagree[ing] with the district court that reasonable
consumers should be expected to look beyond misleading representations on the front
of the box to discover the truth from the ingredient list in small print on the side of the
box.").
The Court further finds that the statement "BRAUEREI BECK & CO., BECK'S ©
BEER, ST. LOUIS, MO" may not be sufficiently descriptive to alert a reasonable
consumer as to the location where Beck's is brewed. Although this statement contains
the words "St. Louis, Mo[.]," there is nothing in the statement which discloses where
Beck's is brewed. Even assuming, arguendo, that the statement "BRAUEREI BECK &
11

CO., BECK'S ©BEER, ST. LOUIS, MO" is sufficiently descriptive as to the location of
the brewery, it is printed underneath the carton. A reasonable consumer may not
necessarily look at the underside of the carton in deciding whether to purchase a
product. See Gerber, 552 F.3d at 939, supra.
In sum, the undersigned finds that the "Product of USA" disclaimer on the label
and the statement "BRAUEREI BECK & CO., BECK'S ©BEER, ST. LOUIS, MO"
underneath the carton do not warrant the dismissal of the plaintiffs' state law consumer
protection claims.
(ii).

The Statement "Brewed under the German Purity Law of
1516"

Next, the defendant argues that the statement "Brewed under the German Purity
Law of 1516" is true because:
German Purity Law has nothing to do with place of production or source of
ingredients. This law simply concerns the~ of ingredients used to brew
beer (water, hops, barley, and yeast). (See Am. Campi. ~8). And there is
no dispute that Beck's has always been, and continues to be, brewed with
these basic ingredients.
Motion to Dismiss (DE# 54 at 20, 4/25/14) (emphasis added).
The Amended Complaint alleges that:
Defendant went one step further to bolster the German identity of Beck's
[B]eer by prominently adding the claim "Brewed Under the German Purity
Law of 1516." This claim is false. The German Purity Law of 1516 allows
only the inclusion of barley, hops and water in beer, and Beck's contains
yeast and other ingredients and additives.
Amended Complaint (DE# 50 at ~12, 3/31/14). At this juncture in the proceedings, the
undersigned must accept as true all well pled allegations in the Amended Complaint
(DE# 50, 3/31/14). As such, the undersigned will not rule on the veracity of this

12

statement on a motion to dismiss.
Moreover, even if the "Brewed Under the German Purity Law of 1516" statement
is true, a reasonable consumer may not know what compliance with the German Purity
Law means. Thus, a reasonable consumer could find the reference to the German
Purity Law misleading, particularly when that statement is viewed in conjunction with:
(1) other statements on the carton, (2) allegations of the defendant's overall marketing
campaign and its efforts to maintain Beck's brand identity as a German beer and (3)
Beck's German heritage including its 139-year history of being brewed in Germany. See
Amended Complaint (DE# 50 at 1J6, 10, 11, 14, 3/31/14). Accordingly, the undersigned
cannot agree with the defendant that the statement "Brewed under the German Purity
Law of 1516" is true or that it cannot serve as the basis for claims under the applicable
consumer protection statutes.
(iii).

Whether "German Quality" Is Mere Puffery

The defendant also argues that the statement "German Quality" is mere puffery
and is therefore not actionable under the applicable state law consumer protection
statutes. "Specific, quantifiable 'statements of fact' that refer to a product's absolute
characteristics may constitute false advertising, while general, subjective, unverifiable
claims are 'mere puffery' that cannot." Edmundson v. Procter & Gamble Co., 537 F.
App'x 708, 709 (9th Cir. 2013) (citing Newcallndus. v. Ikon Office Solution, 513 F.3d
1038, 1053 (9th Cir. 2008)). In Gerber, the defendant argued that its claim that a
product was "nutritious" was puffery and therefore not actionable. 552 F.3d at 939 n.3.
In reversing the lower court's order granting the defendant's motion to dismiss, the
Ninth Circuit stated that while that statement "were it standing on its own, could
13

arguably constitute puffery," it nonetheless found that "[t]his statement certainly
contribute[d) ... to the deceptive context of the packaging as a whole" and "[g]iven the
context of this statement, [it] decline[d) to give [the defendant] the benefit of the doubt
by dismissing the statement as puffery."

kl.

Similarly here, the Court will not evaluate the statement "German Quality" in a
vacuum. It must be considered in conjunction with: (1) other statements on cartons of
Beck's, (2) allegations of the defendant's overall marketing campaign and its efforts to
maintain Beck's brand identity as a German beer and (3) Beck's German heritage
including its 139-year history of being brewed in Germany. See Amended Complaint
(DE# 50 at ~6, 10, 11, 14, 3/31/14). When viewed in this context, the Court cannot
agree with the defendant that the statement "German Quality" is mere puffery.
Based on the allegations in the Amended Complaint and because the "Product
of USA" disclaimer is blocked by the carton, the Court finds that the allegations in the
Amended Complaint (DE# 50, 3/31/14) are sufficient to conclude that a reasonable
consumer may be misled to believe that Beck's is an imported beer brewed in
Germany.

(b).

Safe Harbor Provisions

The defendant also argues that the Court should dismiss the plaintiffs' state law
consumer protection claims because the TTB has approved the labels on bottles and
cans of Beck's. The Florida and New York statutes contain safe harbor provisions.
Florida law provides that FDUTPA does not apply to "[a]n act or practice required or
specifically permitted by federal or state law." Fla. Stat.§ 501.212(1). The New York
statute states that:
14

In any such action it shall be a complete defense that the act or practice
is, or if in interstate commerce would be, subject to and complies with the
rules and regulations of, and the statutes administered by, the [F]ederal
[T]rade [C]ommission or any official department, division, commission or
agency of the United States as such rules, regulations or statutes are
interpreted by the [F]ederal [T]rade [C]ommission or such department,
division, commission or agency or the federal courts.
N.Y. Gen. Bus. Law§ 349(d). The California statutes do not expressly provide for a
safe harbor provision. However, under California law, "[t]he safe harbor defense [to
claims brought under the UCL or CLRA] states that 'if the legislature has permitted
certain conduct or considered a situation and concluded that no action should lie, courts
may not override that determination."' In re Horizon Organic Milk Prods. Plus DHA
Omega-3 Mktg. & Sales Practice Litig., 955 F. Supp. 2d 1311, 1345 (S.D. Fla. 2013)
(hereinafter "In re Horizon Organic Milk") (quoting Bronson v. Johnson & Johnson. Inc.,
No. C 12-04184 CRB, 2013 WL 1629191 at *7 (N.D. Cal. Apr. 16, 2013)) (alterations in
original). For the reasons stated below, the safe harbor protections of these statutes do
not preclude the plaintiffs' claims.
The Amended Complaint contains a single reference t~ the TTB:
13.
The individual bottles and cans also remain almost identical
to the imported beer bottles and cans. The only difference is that on the
border of the new labels, in obscure white text on a silver background, the
bottle says: "Product of USA- Brauerei Beck & Co.- St. Louis, MO.- 12
FL. OZ." Although certain aspects of the bottle label are reviewed by the
Alcohol and Tobacco Tax and Trade Bureau and subject to its Certificate
of Label Approval System, ("COLA"), this labeling cannot even be seen
before 12-packs are purchased, cannot be seen in 6-pack packaging
unless a bottle is removed and examined, and is inadequate to inform the
reasonable consumer that Beck's, a beer that had been brewed in
Germany for over 225 years, is no longer imported. AB's packaging and
labeling are insufficient for a reasonable consumer to believe that Beck's
Beer is no longer imported from Germany. Reasonable consumers,
including Plaintiffs, cannot or do not read the fine print on the bottles and
cans until after they have already purchased Beck's Beer. Even then, the
15

print on the label is ambiguous and difficult, if not impossible, to read.
Moreover, this claimed association with a German-named entity
"Brauer[ei] Beck & Co." is pure fiction, as no such company exists. Rather,
this is just another example of Defendant['s] deceptive tactics used to
maintain the brand identity of Beck's as a German beer.
Amended Complaint (DE# 50 at ~13, 3/31/14).
The defendant bears the burden of establishing the applicability of the safe
harbor provisions. See Fla. v. Tenet Healthcare Corp., 420 F. Supp. 2d 1288, 1310
(S.D. Fla. 2005) (placing the burden on the defendant on a FDUTPA claim to show "that
a specific federal or state law affirmatively authorized it to engage in the conduct
alleged in the [c]omplaints."). Here, the defendant has shown that the TTB approved
the labels affixed to bottles and cans of Beck's. However, the plaintiffs allege in their
Amended Complaint (and the Court has confirmed by inspecting the product) that part
of the label approved by the TTB, including the "Product of USA" disclaimer, is not
visible to the consumer at the time of purchase. See Amended Complaint (DE# 50 at
~13,

3/31/14) (stating that [a]lthough certain aspects of the bottle label are reviewed by

the [TTB] ... this labeling cannot even be seen before 12-packs are purchased,
cannot be seen in 6-pack packaging unless a bottle is removed and examined)
(emphasis added). For this reason, the Court finds that the defendant has not shown
that the TTB's approval of the labels on Beck's triggers the safe harbor provisions of the
relevant state law consumer protection statutes.
The instant case is distinguishable from In re: Anheuser-Busch Beer Labeling.
Mktg. and Sales Practices Litig., No. 1:13-md-02448-DCN, Dkt. No. 25, Memorandum
Opinion and Order (N.D. Oh. June 2, 2014) ("In re A-B Labeling"), cited in the
Defendant's Notice of Supplemental Authority in Support of Its Motion to Dismiss (DE#

16

66, 6/6/14), and Kuenzig v. Hormel Foods Corp., 505 F. App'x 937, 939 (11th Cir. 2013)
(per curiam) for the reasons discussed below.
In In re A-B Labeling, the plaintiffs alleged that the label on the beer they
purchased over-stated the actual percentage of alcohol per volume contained in the
product. See Memorandum Opinion and Order (DE# 66-1 at 6-7, 6/6/14). The relevant
federal regulation read, in part: "For malt beverages containing 0.5 percent or more
alcohol by volume, a tolerance of 0.3 percent will be permitted, either above or
below the stated percentage of alcohol." 27 C.F.R. § 7.71(c)(1) (emphasis added).
"There [wa]s no allegation in the [c]omplaint that the alleged mislabeling of alcohol
content in [the defendant]'s products ha[d] ever exceeded the tolerance amount of 0.3
percent." Memorandum Opinion and Order (DE# 66-1 at 6, 6/6/14). The district court
held that:
the clear and unambiguous language contained in 27 C.F.R. § 7.71(c)(1)
eliminate[d) liability for any over or under-statement of alcohol content on
malt beverage labels so long as the stated content [wa]s within 0.3
percent of the product's actual alcohol content. The protection afforded by
§ 7.71 (c)(1) [wa]s provided without regard to the cause of any deviation
or varjation, and without regard to the intention behind any misstatement
of alcohol content within the defined tolerance range.

kl at 32. Thus,

because the relevant federal regulation allowed for this 0.3 percent

variance on actual alcohol content, the district court dismissed the plaintiffs' claims with
prejudice.
In Kuenzig v. Hormel Foods Corp., 505 F. App'x 937, 938, 939 (11th Cir. 2013)
(per curiam), the Eleventh Circuit affirmed the district court's dismissal of the plaintiff's
"putative class-action complaint alleging that [the defendant] misled consumers into
believing its lunch meat products contained fewer fat-calories than they actually did."
17

The Eleventh Circuit ruled, in pertinent part, that "[the plaintiff]'s state law labeling
claims were preempted by federal law" and "[a]lternatively, [the plaintiff]'s state law
labeling claims were properly dismissed for failure to state a claim." The Eleventh
Circuit stated that it "affirm[ed] the dismissal of [the plaintiff]'s claims ... for the reasons
stated in the district court's thorough and well reasoned orders."

kL at 939. The district

court ruled that: (1) the plaintiff's state law claims were preempted because they "would
impose requirements in addition to, or different than federal law" and (2) the
defendants' challenged "labels were presumptively lawful and not false or misleading"
because they "complied with federal nutrition labeling regulations and passed the [Food
Safety and Inspection Service] preapproval process."

kL at 938-39.

In both In re A-B Labeling and Kuenzig, the alleged misrepresentations relied on
by the plaintiffs were contained on the labels that were approved by a federal bureau or
agency. The plaintiffs' claims in the instant case are not based on the labels approved
by the TTB, but rather on the representations contained on the cartons of Beck's and
the defendant's other representations and omissions. See Amended Complaint (DE#
50 at ~~22-27, 3/31/14). For example, the Amended Complaint alleges that the
"[defendant]'s misleading packaging and labeling is buttressed by an overall marketing
campaign, online and in ads, that misleads the consuming public that Beck's is
imported from Germany."

kL at ~14.

It further alleges that "[a]s a result of [the

d]efendant's false, deceptive, and misleading packaging, labeling and omissions,
consumers such as [the p]laintiffs are deceived when they purchase Beck's Beer in
violation of state laws governing unfair and deceptive trade practices." l.Q.,_ at ~20. Thus,
unlike In re A-B Labeling and Kuenzig, the misrepresentations and omissions alleged in
18

the instant case are not based on a label approved by the TTB or any federal agency. 8
In sum, the safe harbor provisions of the relevant state law consumer protection
statutes are not triggered by the allegations in the Amended Complaint (DE# 50,
3/31/14) and the plaintiffs' state law consumer protection claims will not be dismissed
on this ground.

(c).

Identification of an Actual Harm

The defendant also argues that the plaintiffs' state law consumer protection
claims should be dismissed because the plaintiffs have failed to plead any facts
establishing that they were harmed by the defendant. The defendant notes that it does
not sell Beck's directly to consumers, that the retailer sets the prices for beer and that
the Amended Complaint does not plead specific prices for imported beer. The
defendant further states that the plaintiffs received exactly what they paid for: Beck's
Beer.
Here, the Amended Complaint alleges that:
18.
Beer consumers are willing to pay a premium for high quality,
imported beer. Consumers in the United States often pay higher prices
for their beer because European breweries follow centuries of traditions
and brewing practices, and the breweries use only premium quality

8

The Court recognizes that there is some overlap between the statements
contained in the labels approved by the TTB and the statements contained on cartons
of Beck's. Nonetheless, this is not a case where the safe harbor provisions apply to
shield the defendant from liability. Of importance, the labels approved by the TTB
contained the "Product of USA" disclaimer whereas this disclaimer is not visible to
consumers of Beck's until after they have purchased the product. Moreover, the
"Product of USA" disclaimer as printed on the TTB certificate is readily legible whereas
this disclaimer as printed on the actual bottles and cans of Beck's is at times difficult to
read. See supra. Lastly, the carton prominently displays the words "German Quality," a
statement that is not contained in the TTB approved labels and which the Court has
already determined is not "mere puffery."
19

ingredients from local farms. Indeed, many breweries, in the United States
and Europe, are located in certain areas solely because the water in those
regions yields a higher quality beer. Consumers have grown accustomed
to the consistency from these imported beers. As a result, consumers
pay higher prices for imported beer than similar beers that are
brewed domestically.
***
21.
As a result of these unfair and deceptive practices, Defendant has
collected millions of dollars from the sale of Beck's Beer that it would not
have otherwise earned. Plaintiff and class members paid money for a
product that is not what it claims to be or what they bargained for.
They paid a premium for Beck's Beer when they could have instead
bought other, less expensive, domestic beer, and consumers have lost
the opportunity to purchase and consume other, truly imported beer.
Amended Complaint (DE# 50 at ~~18, 21, 3/31/14) (emphasis added). The plaintiffs
further allege that they were "willing to pay a premium for Beck's Beer because of [the
defendant's] representations and omissions, and would not have purchased, would not
have paid as much for the products, or would have purchased alternative products in
absence of these representations and omissions." Amended Complaint (DE# 50

at~~

23, 25, 27, 3/31/14).
This premium price theory of damages has been recognized by multiple courts
interpreting the state law consumer protection statutes at issue in the instant case. In
Lynch v. Tropicana Prods .. Inc., No. 2:11-cv-07382 (DMC) (JAD), 2013 WL 2645050, at
*8 (D.N.J. June 12, 2013), the district court denied the defendant's motion to dismiss
class action claims, including a claim under N.Y. Gen. Bus. Law§ 349, stating that
"Courts in New York have ... recognized that the payment of a heightened price in
reliance on a misrepresentation may satisfy the injury requirement" and that the
plaintiffs in that case had "satisfied the injury and ascertainable loss requirements of ...

20

New York" law. kt.ln Lynch, the plaintiffs alleged that: "they did not receive the product
for which they bargained as a result of [the defendant]'s misrepresentations" and "[the
defendant] extract[ed] a premium price for the product in question, based on the fact
that the product [wa]s represented as fresh-squeezed." kl
Similarly, under Florida law, a plaintiff who alleges that he or she has paid a
premium price for a product as a result of a defendant's misrepresentation has pled
damages under FDUTPA. In Smith v. WM. Wrigley Jr. Co., 663 F. Supp. 2d 1336,
1339-40 (S.D. Fla. 2009), this Court denied a motion to dismiss a FDUTPA claim
finding that the plaintiff had sufficiently pled a loss that was proximately caused by the
defendant's deceptive, misleading and unfair trade practices where the complaint
alleged that the plaintiff "was exposed to and saw [the defendant]'s advertising claims
and purchased [the product] in reliance on those claims" and further alleged that "as a
result of the misleading messages ... [the defendant] ha[d] been able to charge a price
premium for [the product]." See also In re Horizon Organic Milk, 955 F. Supp. 2d at
1333 (finding that the plaintiffs on a motion to dismiss had sufficiently pled causation
and damages under FDUTPA where they "alleg[ed] that they relied on [the defendant]'s
representations when buying the DHA-fortified milk products, that they would not have
purchased the products but for [the defendant]'s misrepresentations, and that they were
damaged in the amount of the difference between the premium price paid for the DHAfortified milk products and the price they would have paid for other milk products"). In
another case, the Eleventh Circuit stated in passing that "should the class [plaintiffs]
prevail on the liability issue, each putative class member would only need to show that
he or she paid a premium for [the product] to be entitled to damages under the
21

FDUTPA." Fitzpatrick v. Gen. Mills. Inc., 635 F.3d 1279, 1283 (11th Cir. 2011) (appeal
of district court's ruling on class certification).
Courts interpreting California's consumer protection statutes have also
recognized an injury-in-fact where a consumer purchases a product based on the
defendant's misrepresentations. See Khasin v. Hershey Co., No. 5:12-CV-01862 EJD,
2012 WL 5471153, at *7 (N.D. Cal. Nov. 9, 2012) (on a motion to dismiss finding that
the plaintiff had satisfied the UCL's statutory injury-in-fact requirement where the
plaintiff "alleged that he would not have purchased the products but for the
[d]efendants' allegedly misleading conduct" and also alleged that "he did not receive the
full value for his purchases because he did not obtain the products as advertised and
described by the labeling."); Rojas v. Gen. Mills. Inc., No. 12-cv-05099-WHO, 2014 WL
1248017, at *8 (N.D. Cal. Mar. 26, 2014) (denying motion to dismiss and finding that
the plaintiff had shown an injury-in-fact on state law claims including claims under the
CLRA and UCL where the plaintiff "allege[ d) that he spent money purchasing products
that he would not have purchased were it not for [the defendant]'s purported
mislabeling" and that "he read [the defendant]'s misstatements on its product labels and
relied on them in making his purchases."); In re Horizon Organic Milk, 955 F. Supp. 2d
at 1331 (on motion to dismiss stating that "[a]llegations that a plaintiff paid a premium
for a product that the plaintiff would not have paid but for the maker's misrepresentation
are sufficient to allege economic injury and standing under the CLRA and UCL.").
The defendant cites to Prohias v. Pfizer. Inc., 485 F. Supp. 2d 1329, 1336 (S.D.
Fla. 2007) in support of its argument that the plaintiffs have failed to identify an actual
harm caused by the defendant. In Prohias, the district court granted a cholesterol drug

22

manufacturer's motion to dismiss because the plaintiffs in that case had failed to plead
damages.

lil at 1336,

1339. Prohias is readily distinguishable from the instant case

because the plaintiffs in Prohias continued to purchase the cholesterol reducing drug at
issue even after they learned of the drug's alleged limitations.

lil at 1335-36. The

district court reasoned that:
the fact that [the plaintiffs] currently take [the cholesterol drug], in light of
the information they have, requires [the Court] to conclude that they take
[the drug] for its cholesterol reduction or other undisputed health benefits,
and therefore cannot claim to have suffered any damage from the
allegedly misleading statements about [the drug]'s coronary benefits.

lil at 1336. Therefore, the plaintiffs in

Prohias received what they paid for, a cholesterol

reducing drug. Here, there are no allegations in the Amended Complaint that the
plaintiffs continued to purchase Beck's after they learned it was no longer brewed in
Germany. To the contrary, the plaintiffs allege that they "would not have purchased
[Beck's], would not have paid as much for the products, or would have purchased
alternative products in absence of [the defendant's] representations and omissions."
Amended Complaint (DE# 50

at~~

23, 25, 27, 3/31/14).

Alternatively, the plaintiffs in Prohias argued a "price inflation" theory of
damages.

lil at 1336. The district court determined that such damages were "purely

speculative" because:
They depend on the faulty premise that the price of [the cholesterol drug]
fluctuated] based on the public's knowledge of [the drug]'s benefits, even
though drug prices (unlike stock prices which are necessarily set by the
price at which buyers are willing to buy, or sellers willing to sell) are fixed
by the product's manufacturer.

kl at 1337. This is not the theory of damages alleged
case.
23

by the plaintiffs in the instant

The courts have recognized an injury to a consumer who pays a premium price
for a product based on misrepresentations made about that product. See discussion,
supra. In light of the allegations in the Amended Complaint (DE# 50, 3/31/14) that the
plaintiffs paid a premium price for Beck's based on the mistaken belief that it was an
imported beer brewed in Germany, the Court finds that the plaintiffs have pled an actual
harm resulting from the defendant's alleged misrepresentations concerning Beck's.

ii.

Unjust Enrichment

The defendant asserts that California law does not recognize an independent
cause of action for unjust enrichment. The undersigned disagrees. Recently, in ImberGluck v. Google. Inc., No. 5:14-CV-01070-RMW, 2014 WL 3600506, at *7-8 (N.D. Cal.
July 21, 2014}, a California district court rejected a defendant's argument that a claim
for unjust enrichment should be dismissed because "the Ninth Circuit has held that
unjust enrichment does not describe a theory of recovery under California law" and that
it is "a principle underlying various legal doctrines and remedies."

kt at *7

(internal

quotations omitted) (quoting In re Sony PS3 "Other OS" Litigation, 551 F. App'x 916,
923 (9th Cir. 2014)). The district court noted that the defendant was relying on an
unpublished decision and the Ninth Circuit's most recent published decision, Berger v.
Home Depot USA. Inc., 741 F.3d 1061, 1070 (9th Cir. 2014}, recognized unjust
enrichment as an independent claim. The district court further noted that:
While [the defendant] is correct that the issue in [Berger] was class
certification, the Ninth Circuit first discussed unjust enrichment as a
claim before determining that the plaintiffs claim for unjust
enrichment was not susceptible to class treatment in that specific
case. Berger, 741 F.3d at 1070. Other recent cases also point to unjust
enrichment as a cause of action in California. See Gabriel v. Alaska Elec.
Pension Fund, No. 12-35458, 2014 WL 2535469, at *8 (9th Cir. June 6,
24

2014) (noting that "the remedy of surcharge is available against the
fiduciary 'for benefits it gained through unjust enrichment"' (quoting
Skinner v. Northrop Grumman Retirement Plan B, 673 F.3d 1162, 1167
(9th Cir. 2012)); E.J. Franks Construction. Inc. v. Sohota, F066327, 2014
WL 2526978, at *1 (Cal. Ct. App. June 5, 2014) (allowing plaintiff to bring
unjust enrichment claims to trial); People v. Sarpas, 255 Cal. Rptr. 3d 25,
47 (2014) (holding "plaintiffs had 'stated a valid cause of action for unjust
enrichment'" (quoting Hirsch v. Bank of America, 107 Cal. App. 4th 708,
722 (2003)).
[The defendant]'s suggestion that the court follow an unpublished, nonprecedential report is similarly unpersuasive. Even permitting that Berger
did r)Ot expressly hold that California law recognizes an unjust enrichment
cause of action, the factually analogous In re Apple ln-App Purchase
Litigation allowed the plaintiffs to proceed with an unjust enrichment
claim at the motion to dismiss stage. Apple ln-App Purchase Litig., 855
F. Supp. 2d [1030, 1042 (N.D. Cal. 2012)].

KL. at *8 (emphasis added).

For this reason, the district court denied the defendant's

motion to dismiss the unjust enrichment claim.
Similarly here, the undersigned is unpersuaded that the plaintiffs' unjust
enrichment claim in the instant case should be dismissed on the ground that California
does not recognize a separate cause of action for unjust enrichment. The undersigned
acknowledges that there is case law supporting both parties' positions and finds the
reasoning in Imber-Gluck persuasive in concluding that California law does recognize a
separate cause of action for unjust enrichment. See also Khasin, 2012 WL 5471153, at
*9 (rejecting defendant's argument that the plaintiff's unjust enrichment claim must be
dismissed because California does not recognize this cause of action and noting that
"[u]njust enrichment has been recognized as an allegation akin to 'quasi-contract': a
restitution claim brought forth so as to avoid unjustly conferring a benefit upon a
defendant in the absence of a valid and enforceable contract.").
The defendant further argues that the Court should dismiss the plaintiffs' unjust
25

enrichment claims because: (1) they are duplicative of the state law consumer
protection claims and (2) the plaintiffs have not shown that they lack a remedy at law in
light of the plaintiffs' state law consumer protection claims. The undersigned
acknowledges that there is some case law supporting the defendant's argument.
However, in In re Horizon Organic Milk, 955 F. Supp. 2d at 1337, this Court rejected the
argument that the plaintiffs could not maintain a cause of action for unjust enrichment
under Florida law because an adequate remedy at law existed. This Court recognized
that "[v]arious courts disagree as to whether the existence of an adequate legal remedy
precludes the plaintiff from pleading a cause of action for unjust enrichment." .IJ;l at
1337 (citations omitted).
The Court in In re Horizon Organic Milk relied on an unpublished Eleventh Circuit
opinion which stated: "It is generally true that equitable remedies are not available
under Florida law when adequate legal remedies exist. However, that rule does not
apply to unjust enrichment claims." In re Horizon Organic Milk, 955 F. Supp. 2d at 1337
(quoting State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr .. Inc., 427 F. App'x
714, 722 (11th Cir. 2011) (per curiam) (internal citation omitted), rev'd in part on other
grounds, State Farm Mut. Auto. Ins. Co. v. Williams, 563 F. App'x 665 (11th Cir. Apr.
15, 2014) (per curiam). 9 The Eleventh Circuit explained that "'[i]t is only upon a showing
that an express contract exists [between the parties] that the unjust enrichment ...
count fails."' .IJ;l Because there are no allegations of an express contract between the

9

The portion of the original opinion which the Eleventh Circuit reversed dealt
with an insurer's requirement under Florida law to obtain a medical report before
withholding payments for fraudulent claims and did not concern the FDUTPA or unjust
enrichment claims. Williams, 563 F. App'x at 667-68.
26

parties in the instant case, the Court finds that the plaintiffs may plead claims for both
FDUTPA and unjust enrichment. See In re Horizon Organic Milk, 955 F. Supp. 2d at
1337 (stating that "to the extent that a plaintiff has adequate legal remedies under
theories of liability other than a claim of breach of an express contract, those remedies
do not bar an unjust enrichment claim.") (citing State Farm, 427 F. App'x at 722).
The Court is also not required to dismiss the unjust enrichment claim under New
York law at this juncture. See Maalouf v. Salomon Smith Barney. Inc., No. 02 Civ 4770
(SAS), 2003 WL 1858153, at *7 (S.D. N.Y. Apr. 10, 2003) (denying motion to dismiss
unjust enrichment claim noting that "[t]he fact that [a plaintiff] may only recover on one
claim, either contract or quasi-contract, certainly does not preclude him from pleading
unjust enrichment in the alternative.") (emphasis in original). Similarly, a claim for unjust
enrichment may be pled in the alternative under California law. See Malcolm v.
JPMorgan Chase Bank. N.A., No. 09-4496-JF (PVT), 2010 WL 934252, at *7 (N.D. Cal.
Mar. 15, 201 0) (on a motion to dismiss rejecting as unpersuasive arguments that a
claim for unjust enrichment/restitution "must be dismissed because California does not
recognize a separate claim for unjust enrichment; [the p]laintiff failed to allege any
benefit that he conferred on [the d]efendant; and an express contract governs the
parties' relations, providing [the p]laintiff with an adequate remedy at law" and noting
that the "existence of an express contract is not dispositive as [the p]laintiff clearly has
pled in the alternative.").
Finally, the defendant argues that the plaintiffs' unjust enrichment claim fails
because they received the benefit of the bargain: the plaintiffs received a product in
exchange for their money. In the instant case, the Amended Complaint alleges that the

27

"[p]laintiff and class members paid money for a product that is not what it claims to be
or what they bargained for. They paid a premium for Beck's Beer when they could have
instead bought other, less expensive, domestic beer .... "Amended Complaint (DE#
50 at ~~18, 21, 3/31/14) (emphasis added). The Amended Complaint alleges that the
plaintiffs were "willing to pay a premium for Beck's Beer because of these
representations and omissions, and would not have purchased, would not have paid
as much for the products, or would have purchased alternative products in absence

of these representations and omissions." kl

at~~

23, 25, 27 (emphasis added). Based

on these allegations, which must be accepted as true, the Court cannot find as a matter
of law that the plaintiffs received what they bargained for as the defendant maintains.
The undersigned finds that Prohias v. Pfizer. Inc., 490 F. Supp. 2d 1228 (S.D.
Fla. 2007), cited by the defendant for the proposition that the plaintiffs' unjust
enrichment claims should be dismissed because they have not shown that they lack a
legal remedy for the complained-of conduct and because they received a product in
return for their money, is factually distinguishable from the instant case. In finding that
certain plaintiffs failed to state a Claim for unjust enrichment, this Court in Prohias noted
that: "Both men purchased a cholesterol reducing drug, and both men obtained
cholesterol reduction as a result. Therefore, in a general sense, they obtained the
benefit of their bargain. Unjust enrichment cannot exist where payment has been made
for the benefit conferred." kl at 1236. 10 As explained above, the plaintiffs in the instant

10

This Court in Prohias also dismissed the plaintiffs' unjust enrichment claims
because "the plaintiffs ha[d] a remedy at law as a properly pled claim under the
consumer fraud acts or for negligent misrepresentation." Prohias, 490 F. Supp. 2d at
1237. However, the undersigned will rely on In re Horizon Organic Milk, 955 F. Supp. 2d

28

case have alleged that they paid a premium price for what they believed was Beck's
Beer brewed in Germany and that they "would not have purchased, would not have
paid as much for the products, or would have purchased alternative products" if they
had known that Beck's was brewed domestically using domestic ingredients. Amended
Complaint (DE# 50 at 1f1f23, 25, 27, 3/31/14). Based on the allegations of the Amended
Complaint (DE# 50, 3/31/14), the plaintiffs in the instant case did not receive the benefit
of that bargain and have alleged a cause of action for unjust enrichment.

B.

Article Ill Standing to Seek Injunctive Relief
The plaintiffs seek injunctive relief with respect to each of their state law

consumer protection claims. The defendant argues that the plaintiffs' claims for
injunctive relief should be dismissed for lack of standing. See Defendant's Motion to
Dismiss and Memorandum of Law in Support (DE# 54 at 36, 4/25/14). 11 "If at any point
in the litigation the plaintiff ceases to meet ... [the] requirements for constitutional
at 1331 and State Farm Mut. Auto. Ins. Co., 427 F. App'x at 722 in concluding that the
plaintiffs may allege claims for violations under the relevant state law consumer
protection statutes and unjust enrichment. See discussion, supra.
11

In its motion to dismiss, the defendant does not challenge the plaintiffs' claim
for declaratory relief. In its reply, the defendant included the following statement in a
footnote: "Plaintiffs' claim for declaratory relief fails because it is based on the same
unsupported 'premium price' theory." Defendant's Reply Memorandum in Support of its
Motion to Dismiss (DE# 63 at 14 n.12, 5/30/14) (citing Dorfman v. Nutramax Labs. Inc.,
No. 13cv0873 WQH (RBB), 2013 WL 5353043, at *8 (S.D. Cal. Sept. 23, 2013)).
Generally, the Court will not consider arguments raised for the first time in a reply brief.
See Foley v. Wells Fargo Bank. N.A., 849 F. Supp. 2d 1345, 1349 (S.D. Fla. 2012)
(stating that "[b]ecause it [wa]s improper for [the d]efendant to raise [a] new argument in
its [r]eply brief, the argument [would] not be considered."). However, because this
argument may relate to the injury-in-fact requirement of standing, the undersigned has
considered it and finds, for the reasons discussed above, that the plaintiffs have
sufficiently alleged an injury based on paying a premium price for domestic beer. See
supra.

29

standing, the case no longer presents a live case or controversy, and the federal court
must dismiss the case for lack of subject matter jurisdiction." Fla. Wildlife Fed'n. Inc. v.
So. Fla. Water Mgmt. Dist., 647 F.3d 1296, 1302 (11th Cir. 2011); Fed.R.Civ.P. 12(h)(3)
("If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.").
Attacks on this Court's subject matter jurisdiction may be either facial or factual.
"Facial attacks to subject matter jurisdiction require the court merely to look and see if
the plaintiff's complaint has sufficiently alleged a basis of subject matter jurisdiction, and
the allegations in his complaint are taken as true for the purposes of the motion."
Houston v. Marod Supermarkets. Inc., 733 F.3d 1323, 1335-36 (11th Cir. 2013) (citation
omitted). On the other hand, "in a factual challenge to subject matter jurisdiction, a
district court can consider extrinsic evidence such as deposition testimony and affidavits
and is free to weigh the facts and is not constrained to view them in the light most
favorable to the

plaintiff."~

at 1336 (citation and quotation marks omitted). In the

instant motion, the defendant does not specify whether it is making a facial or factual
attack on jurisdiction. Because the defendant's standing arguments relate to the
allegations in the Amended Complaint and do not rely on matters outside this pleading,
the undersigned will construe the defendant's Motion to Dismiss (DE# 54, 4/25/14) as a
facial attack on subject matter jurisdiction. See BP Chems. Ltd. v. Jiangsu Sopo Corp.,
285 F.3d 677, 679 (8th Cir. 2002) ("constru[ing motion to dismiss] as a facial, not
factual, challenge because [the movant] limited its attack to the allegations in [the

30

plaintiff]'s amended complaint.") .12
To establish standing under Article Ill, a plaintiff must demonstrate three things.
First, the plaintiff must show that he or she has suffered an "injury-in-fact." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). Second, the plaintiff must demonstrate
a causal connection between the asserted injury-in-fact and the challenged action of
the defendant.

kL. Third,

the plaintiff must show that "the injury will be redressed by a

favorable decision." kL. at 561 (citations and internal quotations omitted). These
requirements are the '"irreducible minimum' required by the Constitution" for a plaintiff
to proceed in federal court. Northeastern Fla. Chapter. Assoc. Gen. Contractors of Am.
v. City of Jacksonville, 508 U.S. 656, 664 (1993). The party invoking federal jurisdiction
has the burden of proving these elements. Lujan, 504 U.S. at 561.
Additionally, "[b]ecause injunctions regulate future conduct, a party has standing
to seek injunctive relief only if the party alleges ... a real and immediate -as opposed
to a merely conjectural or hypothetical- threat of future injury." Wooden v. Board of
Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001) (emphasis in
original). "A determination that a plaintiff has standing to seek damages does not

12

Unlike the defendant, the plaintiffs submit extrinsic evidence in the form of
deposition transcript excerpts to support their argument that they have Article Ill
standing to seek injunctive relief. However, because it is the defendant who is the
movant, the plaintiffs' filing of record evidence will not recast the defendant's facial
attack on jurisdiction into a factual attack on jurisdiction. Thus, the undersigned will not
consider the deposition excerpts attached to the plaintiffs' supplemental memorandum
of law because they are matters outside the Amended Complaint. In any event, the
Court will provide the plaintiffs with leave to file a second amended complaint.
Therefore, the plaintiffs will be provided with an opportunity to allege sufficient facts to
support their claim for injunctive relief.
31

ensure that the plaintiff can also seek injunctive ... relief." Clark v. City of Lakewood,
259 F.3d 996, 1006 (9th Cir. 2001) (citing Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., 528 U.S. 167, 180 (2000)). "[A] plaintiff seeking injunctive relief 'must show a
sufficient likelihood that he will be affected by the allegedly unlawful conduct in the
future."' Houston, 733 F.3d at 1328-29 (quoting Wooden, 247 F.3d at 1284).
As a threshold matter, the Court finds that the plaintiffs have met the first three
requirements of Article Ill standing. The Amended Complaint alleges that the plaintiffs
have paid a premium price for what they believed was imported beer when in fact it was
domestic beer. Amended Complaint (DE# 50 at 111118, 21, 3/31/14). Therefore, the
plaintiffs have pled an injury-in-fact. See also, discussion on "Identification of an Actual
Harm," supra. The plaintiffs have also pled a causal connection between their injury and
the defendant's conduct. The Amended Complaint alleges the plaintiffs were "willing to
pay a premium for Beck's Beer because of [the defendant's] representations and
omissions, and would not have purchased, would not have paid as much for the
products, or would have purchased alternative products in absence of these
representations and omissions." Amended Complaint (DE# 50 at 111123, 25, 27,
3/31/14) (emphasis added). Lastly, the complained of injury would likely be redressed
by a favorable decision. On their state law consumer protection claims, the plaintiffs
seek damages, declaratory relief and injunctive relief. 13 kl at 19-20, 23, 25-26. A

13

The plaintiffs do not describe the nature of the injunctive relief they seek under
FDUTPA, the New York General Business Law§ 349 or CLRA. However, in the UCL
claim, the plaintiffs allege:
79. Unless restrained and enjoined, AB will continue to engage in the
32

favorable decision would redress the alleged injury suffered by the plaintiffs. Thus, the
only remaining issue is whether the plaintiffs have standing to seek injunctive relief. To
seek injunctive relief, the plaintiffs must show a real and immediate threat of future
harm. Shotz, 256 F.3d at 1081.
In the instant case, the defendant argues that there is no threat of future injury to
the plaintiffs from the defendant's purportedly wrongful conduct because the plaintiffs
allege that they stopped buying Beck's after learning that Beck's was brewed in the
United States. See Defendant's Motion to Dismiss and Memorandum of Law in Support
(DE# 54 at 36, 4/25/14) (citing Amended Complaint (DE# 50 at ,-r,-r 22, 24, 26)). In
response to the defendant's standing argument, the plaintiffs point out that the
Amended Complaint does not expressly state that the plaintiffs have stopped buying
Beck's. See Plaintiffs' Response in Opposition to Defendant's Motion to Dismiss
Amended Complaint (DE# 62 at 27, 5/19/14). The plaintiffs further state that:
the Amended Complaint simply alleges that the [p]laintiffs purchased
Beck's [B]eer in reliance on the representations about Beck's German
origin, have since learned that Beck's is no longer imported, and would
not have purchased it had they known the representations were false.
(Am. Comp. at ,-r,-r 22, 24, 26). Further, [the p]laintiffs may purchase
Beck's again if it is appropriately labeled. These are classic allegations of
a deceptive trade practice act claim - in fact, it would be virtually
impossible to plead such a claim without relying upon the representation

above described conduct. Accordingly, injunctive relief is appropriate.
80. Plaintiff Marquet and the California Subclass seek restitution and an
injunction prohibiting AB from continuing such practices, corrective
advertising and all other relief this Court deems appropriate, consistent
with Business & Professions Code §172033.
Amended Complaint (DE# 50 at ,-r,-r 79-80, 3/31/14).

33

and later learning of its falsehood.

kL at 27 (italics in original; footnote omitted). In a footnote, the plaintiffs state:
The original complaint did contain the allegation that plaintiff [Francisco
Rene Marty] stopped purchasing Beck's. Comp. [DE 1] at 1121. But in that
same paragraph, [the p]laintiff alleged that he may purchase it again if it is
appropriately labeled. Therefore, to the extent the Court considers the
original allegations about [p]laintiff [Marty] stopping his purchases, it would
be appropriate to consider the allegation that [the p]laintiff would purchase
Beck's again.

kL at n.18.
The undersigned will only consider allegations made in the most recent
Amended Complaint (DE# 50, 3/31/14). The Amended Complaint does not allege that
the plaintiffs will purchase Beck's again in the future if appropriately labeled and there
are no express allegations either that the plaintiffs have stopped purchasing Beck's or
that they have continued to purchase Beck's despite the alleged misrepresentations.
The Amended Complaint does allege that the plaintiffs were "willing to pay a premium
for Beck's Beer because of [the defendant's] representations and omissions, and
would not have purchased, would not have paid as much for the products, or
would have purchased alternative products in absence of these representations and
omissions." Amended Complaint (DE# 50 at 111123, 25, 27, 3/31/14) (emphasis added).
The only logical inference from this allegation is that the plaintiffs no longer purchase
Beck's. Because there are no allegations in the Amended Complaint that the plaintiffs
would purchase Beck's in the future, the undersigned finds that the plaintiffs have failed
to plead "a real and immediate threat of future injury," Shotz, 256 F.3d at 1081, and
thus have failed to plead standing to seek injunctive relief.
The plaintiffs reason that "[i]f Article Ill standing were construed as [the
34

d]efendant advocates, it would preclude any claim in federal court under consumer
protection laws to enjoin false advertising or labeling, because a plaintiff would never
have standing." Plaintiffs' Response in Opposition to Defendant's Motion to Dismiss
Amended Complaint (DE# 62 at 27, 5/19/14). In support of this argument, the plaintiffs
cite to two Americans with Disabilities Act ("ADA"): Parr v. L&L Drive-Inn Rest., 96 F.
Supp. 2d 1065, 1080-81 (D. Haw. 2000) and Fortyune v. Am. Multi-Cinema. Inc., No.
CV01-05551, 2002 U.S. Dist. LEXIS 27960 (C. D. Cal. Oct. 22, 2002). See Plaintiffs'
Response in Opposition to Defendant's Motion to Dismiss Amended Complaint (DE# 62
at 28, 5/19/14).
In Parr, the district court stated that it was "reluctant to embrace a rule of
standing that would allow an alleged wrongdoer to evade the court's jurisdiction so long
as he does not injure the same person twice." Parr, 96 F. Supp. 2d at 1080 (citations
and internal quotation marks omitted). However, it also found that the "[p]laintiff ha[d]
established a likelihood of future injury based on his reasonable desire to patronize [a
particular fast food restaurant] in the future." kL Among the circumstances considered
by the Parr court were: the fact that this particular restaurant location was "within a
reasonable distance from [the p]laintiff's residence and along a familiar bus route" and
the similarity of the food and service provided at this chain of restaurants which the
plaintiff had patronized in the past. kL at 1079-1080.
In Fortyune, the court quoted Parr stating that: "[i]f this Court rules otherwise, like
defendants would always be able to avoid enforcement of the ADA. This court is
reluctant to embrace a rule of standing that would allow an alleged wrongdoer to evade
the court's jurisdiction so long as he does not injure the same person twice." Fortyune,

35

2002 U.S. Dist. LEXIS 27960, at *21 (quoting Parr, 97 F. Supp. 2d at 1080) (alteration
in original; internal quotation marks omitted). Nonetheless, "[the p]laintiff's intent to
return to [the d]efendant's [movie] theater [wa]s undisputed" in that

case.~

at *20.

Moreover, the Fortyune court specifically found that the plaintiff had established a
likelihood of future injury because "[the plaintiff and his wife frequent[ed] the [movie
theater in question] and the lack of accommodation continue[ d) to

exist."~

Thus, despite the broad language employed in Parr and Fortyune, the plaintiffs
in both cases exhibited an intent to return to the defendants' facilities in the future.
Because they would continue to encounter the same architectural barriers or lack of
accommodations in the future, both courts concluded that the plaintiffs had standing to
seek injunctive relief. There is nothing in Parr or in Fortyune which would suggest
adopting a lower standard for Article Ill standing in order to allow a plaintiff to seek
injunctive relief. Unlike Parr and Fortyune, there are no allegations in the Amended
Complaint that the plaintiffs continue to purchase Beck's or that they will purchase
Beck's in the future. There are no allegations to support a finding of future injury and
thus, no standing to seek injunctive relief. "To establish an injury[-]in[-]fact sufficient to
support a claim for injunctive relief, the plaintiff must demonstrate that a defendant's
conduct is causing irreparable harm. This requirement cannot be met absent a showing
of a real or immediate threat that the plaintiff will be wronged again." See Fortyune,
2002 U.S. Dist. LEXIS 27960 at *19 (internal citations omitted).
Moreover, the plaintiffs' argument that a plaintiff bringing a consumer protection
law claim to enjoin false advertising or labeling "would never have standing," Plaintiffs'
Response in Opposition to Defendant's Motion to Dismiss Amended Complaint (DE# 62
36

at 27, 5/19/14 ), rings hollow particularly when the plaintiffs themselves have cited to
Richardson v. L'Oreal, 991 F. Supp. 2d 181, 187 (D.D.C. 2013). In Richardson, the
district court dealt with the issue of Article Ill standing to seek injunctive relief in the
context of a challenge to a motion for conditional class certification for the purposes of
settlement and for final approval of the class settlement. The plaintiffs in Richardson
"alleg[ed] that defendant L'Oreal falsely and deceptively labeled [certain] ... products
as available only in salons when the products c[ould] be purchased in non-salon retail
establishments including Target, Kmart, and Walgreens" and "that the salon-only label
implie[d] a superior quality product and buil[t] a cachet that allow[ed] L'Oreal to demand
a premium price." .!it. at 188. The issue in Richardson was whether the plaintiffs had
established a likelihood of particularized future injury . .!it. at 191. After carefully
reviewing the case law and noting that "courts have differed on the showing plaintiffs
must make to have standing" to seek injunctive relief, the district court ultimately
concluded that the named plaintiffs in Richardson had standing to seek injunctive relief
because "repeat past purchases, brand loyalty, allegations of ongoing purchases, and
an injury unconnected to the performance of the product combine[d) to show that future
injury [wa]s likely." .!it. at 191, 195. 14
In their response brief, the plaintiffs also cite to Mason v. Nature's Innovation.

14

In their supplement, the plaintiffs cite to Richardson for the proposition that
"plaintiffs [in Richardson] had standing where they 'ha[d] not indicated that they d[id] not
intend to purchase the products in the future' and [the] defendant continued its
deceptive conduct." Plaintiff's Supplemental Brief in Opposition to Defendant's Motion
to Dismiss Amended Complaint (DE# 83 at 3, 8/11/14) (quoting Richardson, 991 F.
Supp. 2d at 192) (alterations in supplement). However, there were a number of
additional factors which the Richardson court considered in determining the likelihood
of future injury, as outlined above.
37

Inc., No. 12cv3019 BTM (DHB), 2013 WL 1969957 (S.D. Cal. May 13, 2013). See
Plaintiffs' Response in Opposition to Defendant's Motion to Dismiss Amended
Complaint (DE# 62 at 28, 5/19/14). In Mason, the district court specifically stated that:
[a]lthough injunctive relief may not be available in federal courts in many
false advertising cases where the consumer no longer intends to
purchase the product in question, it is an exaggeration to claim that
injunctive relief would never be available in false advertising cases.
There are cases where a consumer would still be interested in
purchasing the product if it were labeled properly- for example, if a
food item accurately stated its ingredients .... In these types of
cases that do not involve claims that product does not work or
perform as advertised, injunctive relief may still be available.
Mason, 2013 WL 1969957, at *4 (emphasis added). Thus, notwithstanding the plaintiffs'
claim that "[i]f Article Ill standing were construed as [the d]efendant advocates, it would
preclude any claim in federal court under consumer protection laws to enjoin false
advertising or labeling, because a plaintiff would never have standing," Plaintiffs'
Response in Opposition to Defendant's Motion to Dismiss Amended Complaint (DE# 62
at 27, 5/19/14), there are instances where a consumer protection law plaintiff would
have standing to seek injunctive relief in federal court.
The plaintiffs maintain that they have standing to seek injunctive relief because
the defendant continues to engage in the complained of conduct. Plaintiffs' Response
in Opposition to Defendant's Motion to Dismiss Amended Complaint (DE# 62 at 28,
5/19/14 ). The plaintiffs rely on three cases to support this argument: Ries v. Ariz.
Beverages USA, 287 F.R.D. 523, 533 (N.D. Cal. 2012), Koehler v. Litehouse. Inc., 2012
WL 6217635 (N.D. Cal. Dec. 13, 2012) and Richardson v. L'Oreal USA, 2013 WL

38

5941486 at *4 (D. D.C. Nov. 6, 2013). 15 "[A] plaintiff seeking injunctive relief 'must show

15

Richardson is distinguishable from the allegations in the instant Amended
Complaint for the reasons stated above. In Ries v. Ariz. Beverages USA, 287 F.R.D.
523, 533 (N.D. Cal. 2012), the district court rejected the defendants' argument that the
plaintiffs lacked Article Ill standing because they stopped purchasing AriZona tea
products after learning of certain alleged misrepresentations. The district court
concluded that "the record [wa]s devoid of any grounds to discount [the] plaintiffs'
stated intent to purchase [the product] in the future, thereby satisfying the requisites for
standing." .!9..c (emphasis added). On this ground, Ries is distinguishable from the instant
case because here, the Amended Complaint does not allege any intent by the plaintiffs
to purchase Beck's again. In Koehler v. Litehouse, Inc., 2012 WL 6217635, *6 (N.D.
Cal. Dec. 13, 2012), the district court found that the plaintiff had standing to seek
injunctive relief even though the plaintiff alleged "that he stopped using the [p]roduct
once he learned that the [s]tatements were a misrepresentation, and he d[id] not intend
to make another purchase of the [p]roduct, as it [did not] perform for the reason he
purchased it." The Koehler court relied on Henderson v. Gruma Corp., No. CV 1004173AHM (AJWx), 2011 WL 1362188 (C.D. Cal. Apr. 11, 2011) and stated that to
dismiss the plaintiff's claim for lack of standing "would eviscerate the intent of the
California legislature in creating consumer protection statutes because it would
effectively bar any consumer who avoids the offending product from seeking injunctive
relief." .!9..c
The undersigned finds Henderson, and by extension Koehler, unpersuasive on
several grounds. At the outset, the intent of a state legislature cannot trump the
constitutional requirements of Article Ill standing. The undersigned also rejects the
premise in Henderson that "[i]f the Court were to construe Article Ill standing for FAL
and UCL claims as narrowly as the [the d]efendant advocates, federal courts would be
precluded from enjoining false advertising under California consumer protection laws
because a plaintiff who had been injured would always be deemed to avoid the cause
of the injury thereafter ... and would never have Article Ill standing." Henderson, 2011
WL 1362188, at *7. As illustrated by Richardson and as discussed in Mason, there are
instances where a consumer protection law plaintiff would have standing to seek
injunctive relief. See,~. Mason, 2013 WL 1969957, at *4 (stating that "it is an
exaggeration to claim that injunctive relief would never be available in false advertising
cases. There are cases where a consumer would still be interested in purchasing the
product if it were labeled properly"); see also Jou v. Kimberly-Clark Corp., No. 3: 13-cv03075, 2013 WL 6491158, at *4 (N.D. Cal. Dec. 10, 2013) (on motion to dismiss
"reject[ing the p]laintiffs' contention that it [wa]s unnecessary for them to maintain any
interest in purchasing the products in the future" and noting that "[p]lacing this
requirement on [the p]laintiffs d[id] not thwart the objective of California consumer
protection laws since it [wa]s not impossible that a consumer would be interested in
purchasing the products at issue if they were labeled correctly."). To the extent
Henderson, 2011 WL 1362188 at *6-7, relies on the broad language of Fortyune, the
39

a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the
future."' Houston, 733 F.3d at 1328-29 (quoting Wooden, 247 F.3d at 1284). Thus, the
mere fact that the defendant will continue to engage in the same conduct is not enough.
There must also be a likelihood that the complained of conduct will likely harm these
particular plaintiffs in the future.

kL.

The plaintiffs further argue that "courts have recognized the distinction between
the cases that [the d]efendant cites, where the product does not work and therefore
there is less likelihood of a future purchase, and the instant case, where the complaint
concerning the product is easily cured by an accurate label." Plaintiffs' Response in
Opposition to Defendant's Motion to Dismiss Amended Complaint (DE# 62 at 28,
5/19/14) (footnote omitted). Even accepting the plaintiffs' reading of the case law as
accurate, the fact remains that the Amended Complaint is devoid of any allegations that
the plaintiffs would purchase Beck's in the future. Without any allegations that the
plaintiffs would purchase Beck's again, it is unclear how they can establish a likelihood
of a future injury.
Following the August 1, 2014 hearing, the Court allowed the parties to file

undersigned has already explained why the Fortyune decision does not lessen the
requirements of Article Ill standing to seek injunctive relief. Finally, the undersigned
rejects the premise in Henderson that because there was no evidence that the
defendant "ha(d] removed its allegedly misleading advertising from its products," the
plaintiffs "as representatives of a class, should be entitled to pursue injunctive relief on
behalf of all consumers in order to protect consumers from [the d]efendant's alleged
false advertising." Henderson, 2011 WL 1362188 at *8. This statement is at odds with
Ninth Circuit precedent which recognizes that "(i]n a class action, standing is satisfied if
at least one named plaintiff meets the requirements," Bates v. United Parcel Serv.,
Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en bane) (emphasis added), not the other way
around. For these reasons, the undersigned remains unpersuaded by Henderson and
Koehler.

40

supplemental briefs on standing. See Defendant's Supplemental Brief in Support of Its
Motion to Dismiss (DE# 81, 8/6/14); Plaintiff's Supplemental Brief in Opposition to
Defendant's Motion to Dismiss Amended Complaint (DE# 83, 8/11/14). In their
supplemental brief, the plaintiffs state the following:
The Amended Complaint alleges that, as a result of AS's misleading
labeling and packaging, the Plaintiffs purchased beer that they believed
was brewed in and imported from Germany at prices higher than those of
domestic beer. (Am. Compl.11 1; see also id.1111 15, 18, 20, 21.) Plaintiffs
further allege that they purchased Beck's [B]eer in reliance on the
representations about Beck's German origin, have since learned that
Beck's is no longer imported, and would not have purchased it had they
known the representations were false. (/d. 111122, 24, 26). The Amended
Complaint also alleges that AB was only able to charge a price premium
for Beck's through its misrepresentation, (id. 1111 8, 11, 17, 18, 21 ), and
that premium could not have been charged without AS's
misrepresentation. [omitted footnote citing to expert economist report]. In
other words, if AB were forced by this Court to end its deceptive
conduct, Beck's would cost less to the consumer. At the same time,
Plaintiffs do not allege that they will never purchase Beck's again under
any circumstances. [omitted footnote citing to original complaint]. To the
contrary, Plaintiffs have testified that they would purchase Beck's
again if AB ended its deceptive conduct. [omitted footnote citing to
deposition testimony].
Plaintiff's Supplemental Brief in Opposition to Defendant's Motion to Dismiss Amended
Complaint (DE# 83 at·2, 8/11/14) (original emphasis omitted; bold emphasis added;
footnotes omitted). The bold emphasis denotes allegations which are not in the
Amended Complaint (DE# 50, 3/31/14) as indicated by the plaintiffs citations to sources
outside the Amended Complaint: the original complaint, the plaintiffs' economist expert
report and the plaintiffs' deposition transcripts. 16 Because the defendants have raised a

16

With respect to the statement "if AB were forced by this Court to end its
deceptive conduct, Beck's would cost less to the consumer," Plaintiffs' Supplement at 2,
for example, the Amended Complaint alleges that: (1) consumers paid a premium for
imported Beck's, (2) maintaining brand identity (as an imported beer) was important to
41

facial attack on this Court's subject matter jurisdiction, see discussion supra, the
undersigned will not consider matters outside the Amended Complaint. The facts as
pled in the Amended Complaint are insufficient to show a real and immediate threat of
future harm, a prerequisite for Article Ill standing to seeking injunctive relief. The Court
will provide the plaintiffs with an opportunity to file a second amended complaint.
In their supplement, the plaintiffs further maintain that "Courts find standing to
seek injunctive relief under consumer protection laws where the defendant continues
the allegedly deceptive labeling or advertising and the plaintiff may purchase the
product in the future." Plaintiff's Supplemental Brief in Opposition to Defendant's Motion
to Dismiss Amended Complaint (DE# 83 at 3, 8/11/14) (emphasis in original). The
permissive word "may" seems at odds with Supreme Court precedent which requires a
real and immediate threat of future injury. See City of Los Angeles v. Lyons, 461 U.S.
95, 101-02 (1983) (holding that the threat must be "real and immediate" as opposed to
"conjectural or hypothetical"). In any event, the Amended Complaint (DE# 50) does not
even allege that the plaintiffs "may" purchase Beck's in the future. It is simply silent on
the plaintiffs' future purchasing intentions with respect to the defendant's products.
The requirements of Article Ill standing do not change merely because a plaintiff
is asserting claims under a state law consumer protection statute. As the court in

the defendant, in part, because it could charge a premium for Beck's, (3) many
restaurant and retailers charge and consumers are willing to pay a premium for
imported beers, (4) consumers pay higher prices for imported beer over similar,
domestically brewed beers and (5) each plaintiff paid a premium for Beck's when they
could have purchased a less expensive domestic beer. See Amended Complaint (DE#
50 at 1J1J8, 11, 17-18, 21, 3/31/14). The Amended Complaint does not expressly allege
that if the alleged misrepresentations contained on the packaging were corrected,
Beck's would cost less.
42

Mason noted, "[i]f an ADA plaintiff must demonstrate likely injury in the future,
consumer plaintiffs [seeking injunctive relief under the CLRA, the UCL, and the
California False Advertising Law] must as well. There is no likelihood of injury in the
future if a plaintiff has no interest in purchasing the product at issue again because it
does not work or does not perform as advertised." Mason, 2013 WL 1969957, at *2.
The undersigned recognizes that there is a line of cases, i.e., Henderson, 2011 WL
1362188 and Koehler, 2012 WL 6217635, which cite to public policy grounds for finding
that Article Ill standing to seek injunctive relief has been met even where a plaintiff does
not intend to purchase the same product again in the future. For the reasons discussed
in footnote 15, supra. the undersigned is unpersuaded by this line of cases.
Moreover, the plaintiffs cannot rely on the text of a state statute to confer
standing to seek injunctive relief in federal court. "The core component of standing ...
is derived directly from the Constitution," Parr, 96 F. Supp. 2d at 1077 (citation and
internal quotation marks omitted), and the requirements of Article Ill are the "irreducible
minimum," Northeastern Fla. Chapter, Assoc. Gen. Contractors of Am., 508 U.S. at
664, which a plaintiff must allege. The burden on a plaintiff to meet these constitutional
requirements cannot be lessened even by Congress. See Raines v. Byrd, 521 U.S.
811, 820 n.3 (1997) (stating that "[i]t is settled that Congress cannot erase Article Ill's
standing requirements by statutorily granting the right to sue to a plaintiff who would not
otherwise have standing.") (citing Gladstone, Realtors v. Viii. of Bellwood, 441 U.S. 91,
100 (1979)). If Congress cannot override the requirements of Article Ill standing for
federal statutory claims, it is even less likely that a state legislature can do so to confer
standing upon a federal court.
43

In their supplement, the plaintiffs also cite to Galstaldi v. Sunvest Cmty. USA,
LLC, 637 F. Supp. 2d 1045, 1058 (S.D. Fla. 2009) to support their argument that they
have pled Article Ill standing to seek injunctive relief. See Plaintiff's Supplemental Brief
in Opposition to Defendant's Motion to Dismiss Amended Complaint (DE# 83 at 4,
8/11/14). However, the plaintiff in Galstaldi sought only declaratory relief and thus the
issue of whether the plaintiff was required to allege a future harm was not before this
Court in Galstaldi.
For the reasons stated above, the plaintiffs lack standing to seek injunctive relief.
The Amended Complaint fails to allege facts showing that the plaintiffs will likely face a
real or immediate threat of future injury. The Amended Complaint contains only
allegations of past injury. Injury in the past, however, does not support a finding of an
Article II I case or controversy when injunctive relief is sought. Shotz, 256 F .3d at 1082.
Absent allegations that each plaintiff will likely suffer a real and immediate threat of
future injury, the plaintiffs have no standing to seek injunctive relief. Accordingly, the
plaintiffs' claims for injunctive relief are DISMISSED without prejudice for failure to
establish Article Ill standing.
CONCLUSION
In accordance with the foregoing, the Defendant's Motion to Dismiss and
Memorandum of Law in Support (DE# 54, 4/25/14) is GRANTED in part and DENIED
in part. The plaintiffs' claims for injunctive relief under the state law consumer
protection statutes are DISMISSED without prejudice for lack Article Ill standing. The
plaintiffs are permitted to file a second amended complaint no later than Friday,

44

September 19,2014.

/
.

DONE AND ORDERED in Chambers at Miami,
September, 2014.

JOHN .
UNITED
Copies furnished to:
All Counsel of Record

45

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