# Puig v. Sazerac Company, Inc.

> District Court, M.D. Florida · June 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10116249

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 18, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10116249

## How later opinions describe it (automated extraction)

- holding complaint there met the False Claims Act’s knowledge requirement after it alleged parties knowingly did certain conduct

## Opinion text

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

Copies:
Parties of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10116249. Public record. Not legal advice.