Puig v. Sazerac Company, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

VICTOR PUIG, individually

and on behalf of all others

similarly situated,

Plaintiff,

v. Case No: 2:23-cv-856-JES-NPM

SAZERAC COMPANY, INC.,

Defendant.

OPINION AND ORDER

This matter comes before the Court on Sazerac Company, Inc.’s

Motion to Dismiss First Amended Class Action Complaint (Doc. #26)

and the Supplement (Doc. #27) to that motion. Victor Puig filed a

Memorandum in Opposition (Doc. #28) on April 25, 2024. With

permission of the Court, Sazerac Company, Inc. filed a Reply (Doc.

#31) on May 15, 2024.

For the reasons set forth below, the motion is granted in

part and denied in part. Leave is granted for plaintiff to file a

second amended complaint.

I.

This case centers around the following two products that

Sazerac Company, Inc. (Sazerac or Defendant) produces and sells:

ct =

Sai 2

mn mS

INNAMON WHI

(Doc. #25, FTI 22, 38.) The product depicted on the left is a

cinnamon whisky beverage with an alcohol volume of thirty-three

percent (33%) (“whisky beverage”) sold in Florida liquor stores.

The product depicted on the right is a cinnamon malt beverage with

an alcohol volume of sixteen and a half percent (16.5%) (“malt

beverage”) sold in Florida grocery stores, gas stations,

conveniences stores, and other similar locations.

The First Amended Complaint (FAC) alleges that Victor Puig

(Puig or Plaintiff) prefers alcoholic beverages “based on

distilled spirits to those based on brewing and fermentation, malt

beverages, due to reasons including superior quality, and/or

taste.” (Doc. #25, 9 70.) Plaintiff asserts that he is familiar

with “the Fireball brand of Cinnamon Whisky” (id. at 4 71), which

Sazerac began to also sell in miniature bottles. (Id. at 7 6.)

“Plaintiff saw the Fireball Cinnamon at stores such as grocery

stores, big box stores, bodegas, gas stations, warehouse club

stores, drug stores, convenience stores, specialty grocery stores,

ethnic food stores, gas station convenience stores, and other

similar locations.” (Id. at ¶ 72.) Plaintiff “figured” there

would be no purpose for Sazerac to sell anything other than the

whisky beverage in a small bottle and bought a bottle of the malt

beverage expecting it to be whisky. (Id. at ¶¶ 73, 74, 77, 78-

81.) Despite his preference for distilled spirits, Plaintiff

continued to buy this malt beverage product multiple times between

2022 and October 8, 2023. (Id. at ¶ 82.) Plaintiff asserts that

he either would not have paid as much for the malt beverage, or

would hot have bought it at all, absent Sazerac’s allegedly “false

and misleading statements and omissions” about the product he was

buying. (Id. at ¶¶ 84-85.)

The FAC asserts two claims against Sazerac. Count I alleges

that Sazerac violated Florida’s Deceptive and Unfair Trade

Practices Act (FDUTPA) by making false and deceptive

1

representations and omissions with respect to the malt beverage

1

The FAC seemingly contains scrivener errors that muddle

which product Puig alleges is the subject of the misrepresentations

and omissions. For example, the FAC at one point alleges the whisky

beverage is false and misleading (id. at ¶ 107) but it seems clear

from the overall content of the FAC that the intent is to charge

that the malt beverage is the misleading product, not the whisky

and the presence of whisky in the malt beverage. (Id. at ¶ 107.)

This caused Plaintiff to believe the malt beverage product was

whisky or at least contained whisky in more than a negligible

amount (id. at ¶ 118), and to pay a premium price for the malt

beverage product. (Id. at ¶ 121.) The FAC also alleges in Count

II that Sazerac’s conduct violated Florida’s False and Misleading

Advertising statute, Fla. Stat. § 817.41.

Sazerac moves to dismiss the FAC with prejudice or, in the

alternative, to stay the case. Sazerac argues the FDUTPA claim is

precluded by its safe harbor provision, is not plead with

sufficient particularity, and is not plausible. Sazerac argues

that Count II should be dismissed for failure to plead with

sufficient particularity. Alternatively, in a footnote, Sazerac

seeks to stay or dismiss the case pursuant to the “first-filed”

rule. Puig responds that there are no valid grounds to dismiss or

stay the case.

II.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

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).

This obligation “requires more than labels and conclusions, and a

beverage. Any future amended complaints shall clarify Puig’s

position.

formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation

omitted). To survive dismissal, the factual allegations must be

“plausible” and “must be enough to raise a right to relief above

the speculative level.” Id. at 555. See also Edwards v. Prime Inc.,

602 F.3d 1276, 1291 (11th Cir. 2010). This requires “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff, Erickson v. Pardus,

551 U.S. 89 (2007), but “[l]egal conclusions without adequate

factual support are entitled to no assumption of truth,” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678. “Factual allegations that are merely consistent

with a defendant’s liability fall short of being facially

plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted). Thus, the Court engages in a two-

step approach: “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 679.

When evaluating a Rule 12(b)(6) motion, the court may consider

exhibits attached to the complaint. Turner v. Williams, 65 F.4th

564, 583 n.27 (11th Cir. 2023). “[W]hen the exhibits contradict

the general and conclusory allegations of the [complaint], the

exhibits govern.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,

1206 (11th Cir. 2007). “[A] litigant may be defeated by his own

evidence, the pleader by his own exhibits when he has pleaded too

much and has refuted his own allegations by setting forth the

evidence relied on to sustain them.” Turner, 65 F.4th at 583 n.27

(quotation marks and citation omitted).

If a heightened pleading standard applies, Rule 9(b) requires

“identifying the who, what, when, where, and how of the fraud

alleged.” Omnipol, A.S. v. Multinational Def. Servs., LLC, 32 F.4th

1298, 1307 (11th Cir. 2022)(citing Mizzaro v. Home Depot, Inc.,

544 F.3d 1230, 1237 (11th Cir. 2008)). More specifically, the

complaint must allege: “(1) the precise statements, documents, or

misrepresentations made; (2) the time and place of and person

responsible for the statement; (3) the content and manner in which

the statements misled the Plaintiffs; and (4) what the Defendants

gained by the alleged fraud.” Ambrosia Coal & Const. Co. v. Pages

Morales, 482 F.3d 1309, 1316–17 (11th Cir. 2007) (citing Brooks v.

Blue Cross & Blue Shield of Florida, Inc., 116 F.3d 1364, 1380-81

(11th Cir. 1997)).

III.

A. FDUTPA Claim

The FDUTPA prohibits “[u]nfair methods of competition,

unconscionable acts or practices, and unfair or deceptive acts or

practices in the conduct of any trade or commerce . . . .” Fla.

Stat. § 501.204(1). “To bring a FDUTPA claim for damages, a

plaintiff must establish three elements: 1) a deceptive act or

unfair practice; 2) causation; and 3) actual damages.” Stuart

Roofing, Inc. v. Thomas, 372 So. 3d 298, 300 (Fla. 4th DCA 2023),

quoting Stewart Agency, Inc. v. Arrigo Enters., Inc., 266 So. 3d

207, 212 (Fla. 4th DCA 2019). See also Tershakovec v. Ford Motor

Co., Inc., 79 F.4th 1299, 1311 (11th Cir. 2023)(citing Carriuolo

v. General Motors Co., 823 F.3d 977, 983 (11th Cir. 2016)).

(1) FDUTPA’s Safe Harbor Provision

Sazerac asserts that the FDUTPA claim must be dismissed

because the FDUTPA contains a “safe harbor” provision which

precludes the claim in this case. The Court concludes that the

safe harbor provision precludes much, but not all, of the FDUTPA

claim in Count I.

A portion of the FDUTPA’s safe harbor provisions provides

that the FDUTPA “does not apply to (1) [a]n act or practice

required or specifically permitted by federal or state law.” Fla.

Stat. § 501.212(1). “Florida courts have treated this so-called

‘safe harbor’ as prohibiting a plaintiff from using FDUTPA to

create new obligations, or to broaden existing obligations, when

a defendant's conduct is already in compliance with federal law or

regulations.” Young v. Cmty. Health Sys., Inc., No. 22-14255, 2023

2

WL 6121795, at *3 (11th Cir. Sept. 19, 2023)(per curiam). “Thus,

an act specifically permitted by federal law cannot serve as the

basis for a FDUTPA claim.” Marrache v. Bacardi U.S.A., Inc., 17

F.4th 1084, 1099 (11th Cir. 2021). “The purpose of the statute is

obvious: it would be unacceptably inconsistent for one statute to

penalize conduct mandated [or specifically permitted] elsewhere.”

Ezcurra v. Monsanto Co., No. 9:20-CV-80524, 2020 WL 5491428, at *4

(S.D. Fla. Aug. 7, 2020)(alteration in original)(quoting State,

Office of the Att'y Gen. v. Commerce Comm. Leasing, LLC, 946 So.

2d 1253, 1258 (Fla. 1st DCA 2007)). The movant bears the burden of

“demonstrat[ing] that a specific federal or state law

affirmatively authorized it to engage in the conduct alleged in

the Complaint[].” State of Fla., Off. of Atty. Gen., Dep't of Legal

Affs. v. Tenet Healthcare Corp., 420 F. Supp. 2d 1288, 1310 (S.D.

Fla. 2005). Dismissal of the claim is appropriate where this safe

harbor provision applies. Montero v. Duval Cnty. Sch. Bd., 153 So.

3d 407, 412 (Fla. 1st DCA 2014).

2

“Unpublished opinions are not controlling authority and are

persuasive only insofar as their legal analysis warrants.” Bonilla

v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir.

2007).

(a) Certificate of Label Approval (COLA)

Sazerac argues that this safe harbor provision bars the FDUTPA

claim because the malt beverage has received Certificates of Label

Approval (COLA) from the Treasury Department’s Tobacco Tax and

Trade Bureau (TTB). (Doc. # 26, p. 5.) Sazerac submits a

Declaration of Mary Tortorice (Doc. #27-1) to establish the

existence of the COLA. The TTB is charged with creating and

enforcing federal regulations on alcoholic beverages in order to

prevent consumer deception. See 27 U.S.C. §§ 201-219a (“Federal

3

Alcohol Administration Act” or the “FAAA”).

As a general rule, “when considering a motion to dismiss, the

district court must limit its consideration to the pleadings and

any exhibits attached to it.” Baker v. City of Madison, Alabama,

67 F.4th 1268, 1276 (11th Cir. 2023). A district court may consider

documents incorporated into the complaint by reference and matters

of which a court may take judicial notice. Baker, 67 F.4th at 1276

(citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.

308, 322 (2007)). But Sazerac does not advance, nor is the Court

aware of, any basis upon which the Court can consider the COLA

(which has not been submitted to the Court) or the Declaration of

3

See In re Anheuser-Busch Beer Labeling Marketing and Sales

Practices Litigation, 644 F.App’x. 515, 518-20 (6th Cir. 2016) for

the history of the FAAA in connection with labelling.

Mary Tortorice. Therefore, this portion of the Sazerac’s motion is

unpersuasive.

(b) Federal Regulations

Independent of the COLA, Sazerac argues that the FAC itself

establishes that FDUTPA’s safe harbor provision applies. Sazerac

asserts that a comparison of the alleged misconduct and the

regulations in the FAC establish, contrary to Plaintiff’s

arguments, that the safe harbor provision bars the claim because

each alleged misconduct is specifically permitted or mandated by

the regulations.

(i) Regulations Cited by Sazerac

Sazerac cites three regulations which it asserts specifically

permit the conduct alleged in the FAC: 27 C.F.R. § 7.21(a), 27

C.F.R. § 7.122(a), and 27 C.F.R. § 7.122(b)(1). (Doc. #26 at p.

3.) Puig responds that these regulations do not specifically permit

the conduct alleged in the FAC, and therefore do not establish a

safe harbor. (Doc. #28, pp. 25-26.) Puig is correct. These

regulations do not establish that the components of the labels

challenged in this case are permitted or mandated by federal law.

The first regulation states that “a brewer or wholesaler

bottling malt beverages must obtain a certificate of label approval

(COLA) covering the malt beverages from TTB prior to bottling the

malt beverages or removing the malt beverages from the premises

where they were bottled.” 27 C.F.R. § 7.21(a). The other two cited

regulations read as follows:

a) General prohibition. Malt beverage labels,

containers, or packaging may not contain any

statement or representation, irrespective of

falsity, that is misleading to consumers as to the

age, origin, identity, or other characteristics of

the malt beverage, or with regard to any other

material factor.

(b) Ways in which statements or representations may

be found to be misleading.

(1) A statement or representation is

prohibited, irrespective of falsity, if it

directly creates a misleading impression or if

it does so indirectly through ambiguity,

omission, inference, or by the addition of

irrelevant, scientific, or technical matter.

For example, an otherwise truthful statement

may be misleading because of the omission of

material information, the disclosure of which

is necessary to prevent the statement from

being misleading.

27 C.F.R. § 7.122(a)-(b)(1).

These regulations only establish that Sazerac was required to

obtain COLAs from TTB, not that it did so. The record which the

Court is allowed to consider does not contain any COLA.

Additionally, the cited regulations do not speak on whether the

alleged conduct in the FAC—i.e, the brand name, statement of

composition, alcohol content, etc.,—is required or specifically

permitted. As to these regulations, Sazerac’s argument is

unpersuasive.

(ii) Other Regulations Cited In FAC

But other regulations do mandate or specifically permit

misconduct alleged in the FAC. The FAC first broadly alleges that

the malt beverage “was labelled and packaged” contrary to the

FAAA’s requirement which makes it unlawful to package and label

any distilled spirits or malt beverages in a manner which misleads

consumers, irrespective of falsity, with respect to their identity

or quality. (Doc. #25, ¶ 29.) The FAC then sets forth six reasons

why the labelling of the malt beverage is misleading, citing and

quoting specific regulations. (Id. at ¶¶ 33, 37, 39, 40, 43, 50.)

The Court discusses each in turn.

•

Brand Name and Brand Name Qualification

The FAC first asserts that while malt beverage is required to

have a brand name, the “Fireball” brand name is misleading under

27 C.F.R. § 7.63(a)(1) and 7.64(b) because it is synonymous with

cinnamon whiskey, a distilled spirit and not a malt. (Id. at ¶¶

33-36.) The FAC’s third reason is that the “Fireball” brand name

on the malt beverage is not qualified with the word “brand” or

some other qualification which could mitigate any misleading

impression which might be created. (Id. at ¶ 39.)

The regulations do indeed mandate that “[t]he malt beverage

label must include a brand name,” 27 C.F.R. § 7.64(a); see also 27

C.F.R. § 7.63(a)(1), and the label only needs to “be qualified

with the word ‘brand’ or with some other qualification if the

appropriate TTB officer determines that the qualification dispels

any misleading impression that might otherwise be created.” 27

C.F.R. § 7.64(b). The FAC does not allege that an appropriate TTB

officer determined that the qualification was needed to dispel any

misleading impression that might otherwise be created. Since

inclusion of the brand name was mandated and the inclusion of a

qualification was not triggered, Puig cannot base his FDUTPA claim

on the presence of the word “Fireball” without qualification.

•

Similarities Between Malt Beverage and Whisky

Beverage Bottles

The FAC’s second reason is that the “Fireball” brand name on

the malt beverage label is misleading because the packaging and

labeling of malt beverages “features the identical colors, themes,

fonts, graphics, and other matter, such as the” logo, red cap, and

charred label edges as the whisky beverage. (Doc. #25 at ¶¶ 37-

38)(citing 27 C.F.R. § 7.63(a)(1); 27 C.F.R. § 7.64(b)). As just

explained, the brand name is required by federal regulations so it

enjoys safe harbor. But Puig can advance his assertion that

similarities between the malt beverage and the cinnamon whisky

beverage bottles mislead.

In this regard, the Court agrees with Puig’s cited case that

analyzed the same bottles under the same regulations. See McKay v.

Sazerac Co., Inc., No. 23-CV-00522-EMC, 2023 WL 3549515 (N.D. Cal.

May 17, 2023). 4 The plaintiff there similarly asserted that it was

the matching “appearance that creates confusion between the whisky

and malt bottles.” Id. at *4. That court concluded that because

“there is no evidence that the TTB regulations address any sort of

comparative analysis with other labels, or test for consumer

confusion,” California’s safe harbor did not apply. Id. The same

conclusion must be reached here. Sazerac does not point to, and

the Court is not aware of, any regulations that mandate or

specifically permit similar bottles to contain dissimilar

beverages, as alleged here. To the contrary, the regulations

suggest their purview is limited to the product submitted for

approval and not other products. See 27 C.F.R. § 7.121(a)(stating

that “[t]he labeling practices that are prohibited if misleading

set forth in this subpart apply to any malt beverage label,

container, or packaging,” 27 C.F.R. § 7.121(a), but “does not

include shipping cartons or cases that are not intended to

accompany the container to the consumer.”). 5 Puig can argue that

4

McVay is pertinent and persuasive only as to this

overlapping argument it shares with Puig since “[p]laintiff's

claims [there] are predicated on a comparative analysis of the two

products in question” but “do not turn” on Sazerac's other

arguments here like “disclos[ure of] added flavoring as required

by § 7.147.” McKay, at *4.

5

Section 7.121(a)(1)-(3) defines “label”, “container”, and

“packaging”.

bottle similarities between the two different beverages is

misleading but not that the brand name is misleading.

•

Alcohol Content

The FAC’s fourth reason is that while the malt beverage must

state its alcohol content, the label is misleading because the

alcohol content is obscurely located on the back of the bottle in

fine print and in a pencil-thin, non-contrasting font which is

hard to read under normal conditions. (Doc. #25, at ¶¶ 40-

42)(citing 27 C.F.R. § 7.63(a)(3); 27 C.F.R. § 7.52(a); 27 C.F.R.

§ 7.52(c)).

Alcohol content is indeed mandated information. 27 C.F.R. §

7.63(a)(3). Therefore, it is subject to specific formatting,

language, and location requirements. See 27 C.F.R. § 7.52-55

(requiring certain type size, color, capitalization, spacing, and

language for mandatory information). Therefore, Puig cannot argue

the malt beverage’s alcohol content is illegible because it is on

the back of the container in small red font over a black

background. (See Doc. #25, ¶¶ 40-42.) Puig’s argument would “create

new obligations, or to broaden existing obligations, when a

defendant's conduct is already in compliance with federal law or

regulations.” Young, 2023 WL 6121795, at *3.

•

Statement of Composition

The FAC’s fifth reason is that the malt beverage’s statement

of composition—“Malt Beverage with Natural Whisky & Other Flavors

and Caramel Color”—is misleading because it is in the smallest

allowable size, among other things. (Doc. #25 at ¶¶ 43-46)(citing

27 C.F.R. § 7.63(a)(2); 27 C.F.R. § 7.141(b)(2); 27 C.F.R. §

7.128(a); 27 C.F.R. § 7.235(a)(8); 27 C.F.R. § 7.147(b)(2)(i)).

Because each part of the sentence is either mandated or

specifically permitted by the regulations, the statement of

composition enjoys safe harbor. In this case, the statement of

composition is mandatory information. 27 C.F.R. § 7.147(a); 27

C.F.R. § 7.63(a)(2). The regulations mandate the drink be described

as a “malt beverage.” 27 C.F.R. § 7.147(b)(1)( “The statement of

composition must clearly identify the base class and/or type

designation of the malt beverage product (e.g., ‘beer,’ ‘lager

beer,’ ‘lager,’ ‘ale,’ ‘porter,’ ‘stout,’ or ‘malt beverage’)”).

It also specifically permits the use of the word “with.” 27 C.F.R.

§ 7.147(b)(2)(i)( “If the flavoring material is added after

fermentation, the statement of composition must describe that

process, using terms such as ‘added,’ ‘with,’ ‘infused,’ or

‘flavored’ . . . .”). The phrase “Natural Whisky & Other Flavors”

is also specifically permitted. 27 C.F.R. § 7.147(b)(2)(ii)(“If

two or more flavoring materials are used in the production of the

malt beverage . . . the characterizing flavoring material may be

specifically identified and the remaining flavoring materials may

be generally referenced (such as ‘kiwi and other natural and

artificial flavor(s)’) . . . .”). So too is “Caramel Color.” 27

C.F.R. § 7.147(b)(3) (“The coloring materials may be identified

specifically (such as ‘caramel color,’ ‘FD & C Red #40,’ ‘annatto,’

etc.) . . . .”). And finally, “[a]ll parts . . . must appear

together” 27 C.F.R. § 7.141(b)(2) and abide by the same formatting

and location requirements as all other mandatory information. 27

C.F.R. § 7.52-54. Therefore, Puig cannot successfully argue the

statement itself or its formatting makes the malt beverage label

misleading.

•

Display Cases

The FAC’s sixth and final reason is that display cases at

retailers selling the malt beverage describe it as “shots” and

often sell it with mini “shot” cups, furthering the misleading

impression it is whisky. (Id. at ¶ 50.) For the same reasons Puig

can argue similarities between the malt beverage and the whisky

beverage bottles misleads, he can argue the malt beverage is

misleading because it is sold at retailers describing the drink as

“shots” alongside mini shot cups. See supra Section III.A.1.b.ii,

“Similarities Between Malt Beverage and Whisky Beverage Bottles”.

Sazerac again points to no authority, and the Court is not aware

of any, that mandates or specifically permits display cases at

retailers to describe the malt beverage as “shots” and to sell the

beverage alongside mini “shot” cups, as alleged here.

(2) Failure to State a Claim

As previously stated, to establish a consumer claim for

damages under the FDUTPA, Plaintiff must show a deceptive act or

unfair practice. Tershakovec, 79 F.4th at 1299. Sazerac argues FAC

fails to adequately plead this element for three reasons: (a) the

heightened pleading standard of Rule 9(b) applies and has not been

satisfied (Doc. #26, pp. 13-14); (b) “no reasonable Florida

consumer encountering Fireball Cinnamon at a gas station,

convenience store, or supermarket would understand the product to

be whisky” (id. at p. 7); and (c) Puig’s reliance on federal

labeling regulations do not create a viable claim. (Id. at pp. 14-

15.) Each argument will be addressed in turn as to the remaining

viable portions of the FDUTPA claim.

(a) Puig’s FDUTPA Claim Satisfies Rule 9(b)’s

Heightened Pleading Standard

As this Court recently stated:

Courts are divided as to whether a FDUTPA claim

must adhere to the heightened pleading standard of Rule

9(b), and there is no clear direction from the Florida

Supreme Court or the Eleventh Circuit. See Eli Lilly &

Co. v. Tyco Integrated Sec., LLC, No. 13-80371-CIV, 2015

WL 11251732, at *2, 2015 U.S. Dist. LEXIS 191652 (S.D.

Fla. Feb. 10, 2015) (collecting cases and providing

overview of the opposing arguments). It seems to the

undersigned that Rule 9(b)’s more stringent pleading

requirements do not apply to all FDUTPA claims, only to

those that sound in fraud.

Smith v. REV Grp., Inc., No. 2:22-CV-742-JES-NPM, 2023 WL 1861414,

at *4 (M.D. Fla. Feb. 9, 2023). The FAC consistently refers to

misrepresentations and falsehoods. (Doc. #25 at ¶¶ 43, 52, 85,

107, 110, 121.) The Court finds that Puig’s assertions that

Sazerac misleads consumers by producing the malt and whisky

beverages in nearly identical bottles, describing the drink as

“shots” at retailers, and selling it at retailers alongside mini

shot cups sound in fraud. Therefore, Puig must comply with Rule

9(b)’s heightened pleading standard as to its FDUTPA claim.

The Court further finds that the FAC is sufficiently pled. It

identifies the precise misrepresentations allegedly made: the

labelling of the malt beverage in a bottle “with identical colors,

themes, fonts, graphics, and other matter, such as the Fireball

Dragon logo, the iconic red cap, and ‘charred’ label edges” as the

whisky beverage and selling it alongside “mini ‘shot’ cups” while

describing it as “shots”. (Doc. #25, ¶¶ 50, 109.) The FAC

identifies the “Defendant[]” as the one causing the alleged

misrepresentations and omissions, (id. at ¶ 121), and specifies

the Defendant is “Sazerac Company, Inc. . . . a New Orleans

corporation with a principal place of business in Kentucky.” (Id.

at ¶ 68.) The times and places were identified as “between 2022

and October 8, 2023 . . . at grocery stores, big box stores,

bodegas, gas stations, warehouse club stores, drug stores,

convenience stores, specialty grocery stores, ethnic food stores,

gas station convenience stores, and other similar locations . . .

.” (Id. at ¶ 82.) The FAC asserts the alleged misrepresentations

made “Plaintiff believe[] the Product was Fireball Cinnamon Whisky

and contained whisky, in more than a negligible amount,” (id. at

¶ 118), which Sazerac benefited from because it charged a “price

premium for the Product . . . .” (Id. at ¶ 121.) This fulfills

9(b)’s purpose of “alerting defendant[] to the precise misconduct

with which [it is] charged and protecting defendant[] against

spurious charges of immoral and fraudulent behavior.” United

States ex rel. 84Partners, LLC v. Nuflo, Inc., 79 F.4th 1353, 1360

(11th Cir. 2023)(quoting United States ex rel. Clausen v. Lab.

Corp. of Am., Inc., 290 F.3d 1301, 1310 (11th Cir. 2002)). This

portion of Sazerac’s motion is denied.

(b) Whether the Alleged Conduct Constitutes a FDUTPA

Violation

Sazerac argues that “dismissal of Plaintiff’s FDUTPA claim is

appropriate because no reasonable Florida consumer encountering

Fireball Cinnamon at a gas station, convenience store, or

supermarket would understand the product to be whisky.” (Doc. #26,

p. 7.)

A practice is deceptive under FDUTPA when “there is a

representation, omission, or practice that is likely to mislead

the consumer acting reasonably in the circumstances, to the

consumer's detriment.” Zlotnick v. Premier Sales Grp., Inc., 480

F.3d 1281, 1284 (11th Cir. 2007) (quoting PNR, Inc. v. Beacon Prop.

Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003)). See also Harrison

v. Lee Auto Holdings, Inc., 295 So. 3d 857, 862 (Fla. 1st DCA

2020). To satisfy this element, plaintiff must show that “the

alleged practice was likely to deceive a consumer acting reasonably

in the same circumstances.” Carriuolo v. General Motors, 823 F.3d

977, 983-84 (11th Cir. 2016) (quoting State, Office of the Att'y

Gen. v. Commerce Comm. Leasing, LLC, 946 So.2d 1253, 1258 (Fla.

1st DCA 2007)). “Under Florida law, an objective test is employed

in determining whether the practice was likely to deceive a

consumer acting reasonably.” Id.

Generally, under FDUTPA, “[w]hether particular conduct

constitutes . . . an unfair or deceptive trade practice is a

question of fact.” Prates v. Westgates Resorts, Ltd, No.

616CV217ORL41TBS, 2016 WL 11774203, at *3 (M.D. Fla. Aug. 4,

2016)(quoting Siever v. BWGaskets, Inc., 669 F. Supp. 2d 1286,

1293 (M.D. Fla. 2009)). Although Sazerac argues “[t]he label cannot

be misleading when it identifies and describes the product

accurately,” (Doc. #26, p. 7), this statement is not quite

accurate. “If the statements are ‘likely to mislead reasonable

consumers,’ then it makes no difference if the statements are

‘technically or literally true.’” Coleman v. CubeSmart, 328 F.

Supp. 3d 1349, 1361 (S.D. Fla. 2018)(quoting F.T.C. v. Peoples

Credit First, LLC, 244 F. App'x 942, 944 (11th Cir. 2007)). Because

the FAC contains “sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face,” see Iqbal,

556 U.S. at 678(internal quotation marks and citation omitted),

this portion of Sazerac’s motion is denied.

(c) Puig’s Cited Regulations Do Not Create a Viable

FDUTPA Claim

Lastly, Sazerac argues that Puig’s cited regulations do not

create a viable FDUTPA claim. (See Doc. #26, pp. 14-15.) The Court

agrees.

One of the ways a plaintiff can establish a FDUTPA claim is

by plausibly alleging a per se FDUTPA violation. “Per se violations

of FDUTPA stem from the transgression of ‘[a]ny law, statue, rule,

regulation, or ordinance which proscribes unfair methods of

competition, or unfair, deceptive, or unconscionable acts or

practices.’” Feheley v. LAI Games Sales, Inc., No. 08-23060-CIV,

2009 WL 2474061, at *4 (S.D. Fla. Aug. 11, 2009)(quoting Fla. Stat.

§ 501.203(3)(c)).

Various federal label regulations are quoted throughout the

FAC, implying that Sazerac’s malt beverage label violated these

regulations. (See Doc. #25, ¶¶ 33, 37, 39-44.) The FAC asserts

these “regulations prohibit consumer deception by companies in the

labeling of alcoholic beverages” (id. at ¶ 116) and compiles them

into a list:

27 C.F.R. § 7.52(a)

27 C.F.R. § 7.52(c)

27 C.F.R. § 7.63(a)(1)

27 C.F.R. § 7.63(a)(2)

27 C.F.R. § 7.63(a)(3)

27 C.F.R. § 7.64(b)

27 C.F.R. § 7.128(a)

27 C.F.R. § 7.141(b)(2)

27 C.F.R. § 7.147(b)(2)(i)

27 C.F.R. § 7.235(a)(8)

(Id. at ¶ 117.) These are the same regulations cited, quoted, or

otherwise addressed in this Court’s FDUTPA safe harbor analysis.

See supra Section III.A.1.b. To the extent Puig attempts to assert

per se FDUTPA violations by quoting and citing these federal

labeling regulations, such efforts fail. These regulations do not

provide Puig with grounds to sue Sazerac under FDUTPA. To the

contrary, these regulations are inapposite or limit Puig’s ability

to sue Sazerac, as explained in the Court’s FDUTPA safe harbor

analysis. See id.

B. Puig’s § 817.41 Claim is Sufficiently Pled

Florida’s misleading advertising statute states that “[i]t

shall be unlawful for any person to make or disseminate or cause

to be made or disseminated before the general public . . . any

misleading advertisement.” Fla. Stat. § 817.41(1). To state a claim

under § 817.41, a plaintiff must allege that: (1) the representor

made a misrepresentation of a material fact; (2) the representor

knew or should have known of the falsity of the statement; (3) the

representor intended that the representation would induce another

to rely and act on it; and (4) the plaintiff suffered injury in

justifiable reliance on the representation. Westgate Resorts, Ltd.

v. Reed Hein & Assocs., LLC, No. 618CV1088ORL31DCI, 2018 WL

5279156, at *8 (M.D. Fla. Oct. 24, 2018)(citing Third Party

Verification, Inc. v. Signaturelink, Inc., 492 F. Supp. 2d 1314,

1322 (M.D. Fla. 2007)). “Because claims under § 817.41 are founded

in common law fraud-in-the-inducement, Rule 9(b)’s heightened

pleading standards govern.” Volinsky v. Lenovo (United States)

Inc., No. 8:23-CV-00250-KKM-NHA, 2024 WL 1299315, at *6 (M.D. Fla.

Mar. 27, 2024)(citing Smith v. Mellon Bank, 957 F.2d 856, 858 (11th

Cir. 1992)).

Though Sazerac argues otherwise, the first, second, and third

elements are pled with sufficient particularity. The FAC asserts

that: Sazerac misrepresented the malt beverage by packaging it in

a bottle “with identical colors, themes, fonts, graphics, and other

matter, such as the Fireball Dragon logo, the iconic red cap, and

‘charred’ label edges” as the whisky beverage, (Doc. #25, ¶ 123),

which were “material in that they are likely to influence consumer

purchasing decisions, since consumers buying alcoholic beverages

in small bottles will expect them to be of higher potency, or

“proof,” alcohol by volume percentage . . . .” (Id. at ¶ 126.) The

first element is pled with sufficient particularity.

The second and third elements—knowledge and intent—are also

pled with sufficient particularity. The FAC asserts that Sazerac

“knew its statements, representations, and omissions were false

and/or misleading or designed to mislead consumers who were

familiar with Fireball and expected to be buying Fireball Cinnamon

Whisky” and that Sazerac “intended for consumers to rely on its

false statements, omissions, graphics, design elements and other

indicia, for the purpose of selling the Product.” (Id. at ¶¶ 127-

28.) Sazerac argues these are mere assertions without requisite

supporting facts. (Doc. #26, p. 17.) “It is true that Rule 9(b)

requires particularity when pleading ‘fraud or mistake,’” but it

also “allow[s] ‘[m]alice, intent, knowledge, and other conditions

of a person's mind [to] be alleged generally.’” Iqbal, 556 U.S. at

686 (quoting Fed. R. Civ. P. 9(b)). “Under Rule 9(b)'s standards,

these general allegations are sufficient.” See U.S. ex rel. Matheny

v. Medco Health Sols., Inc., 671 F.3d 1217, 1224 (11th Cir.

2012)(holding complaint there met the False Claims Act’s knowledge

requirement after it alleged parties knowingly did certain

conduct).

C. First-Filed Rule

Sazerac argues in a footnote that “[i]n the alternative, the

Court should dismiss or stay th[is] action based on the ‘first-

filed’ rule.” (Doc. #26, p. 18, n. 10.) “The first-filed rule

provides that when parties have instituted competing or parallel

litigation in separate courts, the court initially seized of the

controversy should hear the case.” Collegiate Licensing Co. v. Am.

Cas. Co. of Reading, Pa., 713 F.3d 71, 78 (11th Cir. 2013)(citing

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d

1169, 1174 (11th Cir. 1982)). Sazerac’s two-sentence first-filed

rule argument does not establish that there are actions previously

filed in other federal courts that are competing or parallel to

this litigation. This portion of Sazerac’s motion is denied.

Accordingly, it is now

ORDERED :

Defendant’s Motion to Dismiss for Failure to State a Claim

(Doc. #26) is GRANTED IN PART AND DENIED IN PART. The First Amended

Class Action Complaint is dismissed without prejudice to filing a

second Amended Complaint within FOURTEEN (14) DAYS of this Opinion

and Order. Any future amended complaint cannot advance a FDUTPA

claim based on the malt beverage’s brand name, statement of

composition, alcohol content, or cited regulations herein. It

shall also correct any scrivener errors.

DONE AND ORDERED at Fort Myers, Florida, this 18th □□□

of June, 2024.

f <= Cf

At Ws E., Zook

J9GHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

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