Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Ohio: Tito’s ‘Handmade’ Vodka misrepresentation claims partially dropped, (Nov 18, 2015)

By Greg Hammond, J.D.

A consumer’s claims that a vodka maker engaged in deceptive trade practices and misrepresented its vodka as “Homemade” were partially dismissed by the federal district court in Cincinnati. The court concluded that the consumer lacked standing to bring a claim under the Ohio Deceptive Trade Practices Act (ODTPA) and failed to allege notice sufficient to pursue a class action under the Ohio Consumer Sales Practices Act (OCSPA) (Terlesky v. Fifth Dimension, Inc., November 17, 2015, Dlott, S.).

The consumer brought a class action suit against Fifth Dimension, Inc., the maker of Tito’s Handmade Vodka, alleging that Fifth Dimension has made and continues to make deceptive, false, and misleading statements that Tito’s Handmade Vodka is “Handmade” and “Crafted in an Old Fashioned Pot Still by America’s Original Microdistillery.” Fifth Dimension moved to dismiss.

Standing. The court first concluded that the consumer lacked standing to bring a claim under the ODTPA. In particular, the court followed the majority of decisions finding that the ODTPA is substantially similar to Section 43(a) of the Lanham Act, which protects the interests of a purely commercial class that does not include individual consumers. The ODTPA therefore does not confer standing upon consumers, the court decided.

Class action notice. Next, the court noted that the consumer failed to identify any provision in her complaint that would demonstrate she met the notice requirement to bring a class action under the OCSPA. The OCSPA claim was therefore dismissed with regard to the class, but the consumer’s individual OCSPA claim survived the motion to dismiss.

Common law claims. The motion to dismiss was also granted with regard to the consumer’s negligent misrepresentation claim because the alleged misrepresentations were intended to reach an extensive, unresolved, class of people, rather than a limited class. In addition, because the consumer failed to allege an injury proximately caused by her alleged reliance, her claim for fraud could not stand. Nevertheless, the consumer’s promissory estoppel claim survived the motion to dismiss.

The case number is 1:15-cv-374.

Attorneys: Bryce A. Lenox (Giles & Lenox LLC) for Anne Terlesky. Aaron Micah Bernay (Frost Brown Todd LLC) for Fifth Generation, Inc.

Companies: Fifth Generation, Inc.

Cases: Advertising OhioNews