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Penrose v. Buffalo Trace Distillery, Inc.

United States District Court, E.D. Missouri, Eastern Division

February 5, 2018

STEPHEN PENROSE, JAMES THOMAS, JOSEPH GUARDINO, and DANIEL POPE on behalf of themselves and all others similarly situated, Plaintiffs,


         This matter is before the Court on Defendants' Motion to Dismiss. [Doc. No. 14]. The motion is fully briefed. For the reasons set forth below, the Motion is denied.

         Facts and Background[1]

         Plaintiffs brought this putative class action alleging that Defendants misrepresented that Old Charter bourbon has been “aged 8 years.” Plaintiffs assert claims for violation of the Missouri Merchandising Practices Act (Count I), Deceptive Acts or Practices, New York Gen. Bus. Law § 349 (Count II), False Advertising, New York Gen. Bus. Law § 350(Count III), unjust enrichment (Count IV), Breach of Express Warranty (Count V), Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. (Count VI), Breach of Implied Warranty of Merchantability (Count VII), Fraud (Count VIII), Negligent Misrepresentation (Count IX), Violation of Florida Deceptive and Unfair Trade Practices Act, Fla.Stat. §§ 501.201, et seq. (Count X), Violation of the South Carolina Unfair Trade Practices Act, S.C.Cofe.Ann. § 39-5-10. Plaintiffs seek compensatory and punitive damages, injunctive relief and attorneys' fees and expenses and costs.

         Plaintiffs' Complaint alleges the following:

         Defendants represent that Old Charter is an 8-year aged bourbon. That is false and misleading. Old Charter used to be aged for 8 years, but Defendants stopped that practice in approximately January 2014. The bourbon bearing the Old Charter name is now aged for significantly less than 8 years and is of inferior quality to its former self. But in an attempt to upsell the newer, younger, and inferior product, Defendants' bottle labeling still misleads consumers to believe that the bourbon is aged 8 years.

         The misrepresentation appears in three places on the bottle: on the neck, on its own label on the top of the body, and in the text portion which reads “gently matured for eight seasons in century old brick warehouses:”

         The label from before and after the switch was unchanged with one minor exception. Defendants omitted the words “aged” and “years” from the label, but still repeatedly touted the now-meaningless number 8.

         This deceptive change fails to inform anyone that Defendants' product is now composed of cheaper and lower-quality bourbon. The number 8 is still prominently shown in the same three places on the bottle, and the label reads “gently matured for eight seasons ….”

         This misrepresentation could not have occurred by accident or happenstance. The subtlety of this change evidences an intention by Defendants to deceive consumers.

         It is clear that the word “seasons” unambiguously means “years.” This is readily apparent from the labels of Defendants' prior eight-year and ten-year Old Charter products, which claimed to be matured for “eight seasons” and “ten seasons, ” respectively. It is also clear that the number “8” is not merely part of Old Charter's name. This is apparent from the Old Charter 10-year product, which does not include the number “8” on its labeling. Similarly, Defendants' own website refers to the Product as “Old Charter” without any reference to the number 8. The Alcohol and Tobacco Tax and Trade Bureau (“TTB”) application for Old Charter's labeling likewise reads “Old Charter” under the “Brand Name” section. The number 8 does not appear in any of these places.

         Published reviews of Old Charter agree that quality has significantly dropped since Defendants stopped aging the bourbon for 8 years. One reviewer wrote that he had “mistakenly purchased a handle of Old Charter 8 in Louisiana thinking it was the 8 year and had then found a[n old] bottle of the 8 year [and] decided that we needed to do another comparison. See if I should still be upset at the change.” After sampling both, the reviewer concluded that “for Old Charter 8 the NAS [non age-stated] release was strikingly inferior to the age-stated product.”

         Countless consumers have complained online of Defendants' deceiving practice. For example, one consumer wrote:

Several bourbons are going this route and you can argue over the reasoning as to why but it [angers me] that I bought Old Charter 8 yesterday thinking it was 8 yr [sic] old and not the new no age statement 8.

         Another wrote:

And what's said is deceptive, very deceptive in fact . . . It's still hogwash though and deceptive . . . because what you're really doing is selling younger whisky while pretending it's older.

         Another wrote:

It's one thing to have supply issues and be honest. It's another to pull the years but keep the number on the bottle to give the perception of an aged product. It's getting hard to ...

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