United States District Court, E.D. Missouri, Eastern Division
STEPHEN PENROSE, JAMES THOMAS, JOSEPH GUARDINO, and DANIEL POPE on behalf of themselves and all others similarly situated, Plaintiffs,
BUFFALO TRACE DISTILLERY, INC., OLD CHARTER DISTILLERY CO., and SAZERAC COMPANY, INC., Defendants.
OPINION, MEMORANDUM AND ORDER
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.
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.
Complaint alleges the following:
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.
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:”
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.
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 ….”
misrepresentation could not have occurred by accident or
happenstance. The subtlety of this change evidences an
intention by Defendants to deceive consumers.
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.
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.”
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.
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.
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 ...