# Puig v. Sazerac Company, Inc.

> District Court, M.D. Florida · September 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10642955

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## 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 review of Defendant’s
1
Motion to Dismiss (Doc. #37) filed on July 17, 2024. Plaintiff
filed a Response in Opposition (Doc. #38) on August 6, 2024. With
permission from the Court, Defendant filed a Reply (Doc. #41) on
August 27, 2024. For the reasons set forth below, the motion is
denied.

1
This is the second version of Defendant’s motion to dismiss.
(See Doc. #35.) This updated version corrected the previous
version’s header and service list. (See Doc. #37, p. 1 n. 1.) The
first version, (Doc. #35), is therefore denied as moot.
I.
As the Court recently recounted:
This case centers around the following two products
that Sazerac Company, Inc. (Sazerac or Defendant)
produces and sells:

i
ra an AB
Bs
al a | “ ¥

INNAMON WHIS

(Doc. #25, TI 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 liguor 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.
(Doc. #32, p. 2.)
The Second Amended Complaint (SAC), the operative complaint,
makes the following factual allegations: Victor Puig (Puig or
Plaintiff) “prefer[s] alcoholic beverages based on distilled
spirits to those based on brewing and fermentation” and is
“familiar” with the whisky beverage. (Doc. #33, IFT 85-86.) “P[uig]
saw” the malt beverage at “gas stations, drug stores, convenience
stores,” and other similar locations (hereinafter ‘non-liquor
retailors’). (Id. at 7 93.) He “observed” the malt beverage’s red,

yellow, and brown fonts and graphics. (Id. at ¶ 56, 96.) He then
observed its “charred” label edges, twist-off grooved red cap, and
the red dragon between the words “Red” and “Hot”. (Id. at ¶¶ 57,

96.) He also observed the miniature bottle it came in. (Id. at ¶
21, 96.) Puig “expected” and “figured” the malt beverage was the
whisky beverage. (Id. at ¶¶ 91, 94.) So, “between 2022 and October
8, 2023,” Puig bought the malt beverage. (Id. at ¶ 99.) “[H]e would
not have bought [the malt beverage] or would have paid less” had
he known it was not the whisky beverage. (Id. at ¶ 101.)
Sazerac has sold its whisky beverage at liquor stores since
1989. (Id. at ¶ 8.) But in 2020, seeking “to expand the number[]
of locations in which it could sell its products,” (id. at ¶ 14),
Sazerac began to sell the malt beverage at 170,000 non-liquor
retailors. (Id. at ¶ 23.) These retailers describe the malt
beverage as a “Fireball Cinnamon Shot” when selling it. (Id. at ¶

61.) It is sold with “mini ‘shot’ cups” and from “standalone
display racks” that read “Mini Mania”, “specially designed
‘buckets’” near registers of stores, and “locked . . . glass
casing[s] . . . .” (Id. at ¶¶ 61-64.) Sazerac intentionally sells
the malt beverage at these non-liquor locations and the whisky
beverage at liquor locations so consumers are unable to compare
the two beverages at the point-of-sale. (Id. at ¶ 59.)
The SAC’s sole claim alleges that, because these acts and
practices are false, unfair, and deceptive, Sazerac has violated
Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA).
Sazerac moves to dismiss the SAC with prejudice on the grounds it
fails to state a plausible FDUTPA claim because: (1) Puig’s alleged

preference and familiarity with the whisky beverage, along with
the malt beverage’s label disclosures, make clear he could not
have thought he was purchasing the whisky beverage; (2) concluding
that mini bottles are associated with distilled spirits is an
unsupported conclusion; (3) Puig does not allege he personally saw
the non-liquor retailors’ misleading displays; and (4) social
media posts cited by the SAC cannot be a basis for a FDUTPA claim.
(Doc. #37.) Each argument will be addressed in turn.
II.
A. Pleading Standard
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
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.
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)).
B. Erie Doctrine
In a diversity case, the Court applies the substantive law of
the forum state — in this case, Florida. See Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938). “Because we are interpreting Florida
law, we look first for case precedent from Florida's highest court—
the Florida Supreme Court.” SE Prop. Holdings, LLC v. Welch, 65

F.4th 1335, 1342 (11th Cir. 2023)(citing Winn-Dixie Stores, Inc.
v. Dolgencorp, LLC, 746 F.3d 1008, 1021 (11th Cir. 2014)). “Where
that court has not spoken, however, we must predict how the highest
court would decide this case.” Id. (quoting Turner v. Wells, 879
F.3d 1254, 1262 (11th Cir. 2018)). “In making this prediction, ‘we
are bound to adhere to the decisions of the state's intermediate
appellate courts absent some persuasive indication that the
state's highest court would decide the issue otherwise.’” Id.
(cleaned up)(quoting Winn-Dixie, 746 F.3d at 1021).
III.
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)).
“An objective test is used to determine whether an act is
deceptive under FDUTPA, and ‘the plaintiff must show that the
alleged practice was likely to deceive a consumer acting reasonably

in the same circumstances.’” Marrache v. Bacardi U.S.A., Inc., 17
F.4th 1084, 1098 (11th Cir. 2021)(quoting Carriuolo, 823 F.3d at
983-84 (cleaned up). “This standard requires a showing of
‘probable, not possible, deception’ that is ‘likely to cause injury
to a reasonable relying consumer.’” Zlotnick v. Premier Sales Grp.,
Inc., 480 F.3d 1281, 1284 (11th Cir. 2007)(quoting Millennium
Commc'ns & Fulfillment, Inc. v. Office of the Att'y Gen., 761 So.2d
1256, 1263 (Fla. 3d DCA 2000)). “To establish an unfair practice,
the plaintiff must show that it is ‘one that offends established
public policy and one that is immoral, unethical, oppressive,
unscrupulous or substantially injurious to consumers.’” Marrache,
17 F.4th at 1098 (quoting PNR, Inc. v. Beacon Prop. Mgmt., Inc.,

842 So. 2d 773, 777 (Fla. 2003))(cleaned up). “Since FDUTPA is the
state counterpart to the Federal Trade Commission Act, in deciding
whether an act or practice may be deemed deceptive, we must give
due consideration and great weight to the interpretations made by
the Federal Trade Commission and the federal courts.” Millennium
Commc'ns & Fulfillment, Inc. v. Off. of Att'y Gen., Dep't of Legal
Affs., State of Fla., 761 So. 2d 1256, 1263 (Fla. 3d DCA 2000).
The Court turns to Defendant’s arguments and whether the
factual allegations in the SAC state a plausible FDUTPA claim.
A. Puig’s preference and familiarity with the whisky
beverage, along with the malt beverage’s label
disclosures, do not make his claim implausible
As a sister court has persuasively said:
“In determining whether a representation is likely
to mislead consumers acting reasonably, courts consider
the net impression created.” F.T.C. v. RCA Credit
Servs., LLC, 727 F.Supp.2d 1320, 1329 (M.D. Fla. 2010)
(emphasis added). If the statements are “likely to
mislead reasonable consumers,” then it makes no
difference if the statements are “technically or
literally true.” F.T.C. v. Peoples Credit First, LLC,
244 F. App'x 942, 944 (11th Cir. 2007). And how a
reasonable consumer would interpret a term is an issue
of fact. Jankus v. Edge Inv'rs, L.P., 650 F.Supp.2d 1248,
1258 (S.D. Fla. 2009).
Coleman v. CubeSmart, 328 F. Supp. 3d 1349, 1361 (S.D. Fla.
2018)(footnote omitted); see also Prates v. Westgates Resorts,
Ltd, No. 616CV217ORL41TBS, 2016 WL 11774203, at *3 (M.D. Fla. Aug.
4, 2016)(stating that under FDUTPA, “[w]hether particular conduct
constitutes . . . an unfair or deceptive trade practice is a

question of fact.” (quoting Siever v. BWGaskets, Inc., 669 F. Supp.
2d 1286, 1293 (M.D. Fla. 2009))).
Sazerac’s first argument is that consumers like Puig, who
prefer and are familiar with the whisky beverage, “could not be
misled into believing that they were purchasing distilled spirits
at [non-liquor retailers] where such products are not sold,”
especially given the true label disclosures on the malt beverage.
(Doc. #37, p. 10.) Essentially, Sazerac argues that the net
impression caused could not have misled reasonable consumers.
Despite Sazerac’s arguments to the contrary, the Court largely
agrees with another district court who rejected the same arguments
as to the same beverages:

First, taken as true, the complaint sufficiently
alleges that Sazerac's label and packaging are
affirmatively misleading. The label for Fireball Malt is
substantially the same as the label for Fireball Whisky;
both include . . . Sazerac's fire-breathing dragon logo,
the words “RED HOT,” the same color scheme, burnt edge,
font and labeling, and the words “CINNAMON.”
. . .
Likewise, here, a number of features of the Whisky Malt
packaging could affirmatively mislead consumers: for
instance, as described above: insinuating that Fireball
Malt was as strong as Fireball Whisky by packaging it in
a “shot” size, [and] deceptively labeling Fireball Malt
and Fireball Whisky with nearly identical packaging . .
. .
A reasonable [Florida] consumer could nonetheless
believe that he was buying Fireball Whisky [at a non-
liquor retailor]. For instance, he could well be unaware
of which establishments hold which liquor license types.
He may not know that a gas station store can sell malt
but not whisky. This is especially so if he is making a
quick roadside purchase. He might also assume that the
store is not complying with the terms of its liquor
license.
McKay v. Sazerac Co., Inc., No. 23-CV-00522-EMC, 2023 WL 3549515,
at *6 (N.D. Cal. May 17, 2023).
Sazerac’s contention that no reasonable Florida consumer
could be misled to believe the malt beverage is the whisky beverage
is undercut by the highlighted social media comments in the SAC
from purported consumers who seemingly confuse the beverages even
at non-liquor retailors. (See Doc. #33, ¶¶ 40-46.) It’s argument
regarding the label disclosures fails to move the needle because
technically or literally true statements can still be misleading.
See CubeSmart, 328 F. Supp. 3d at 1361. The Court cannot conclude
in this motion to dismiss that no reasonable Florida consumer could
be deceived by Sazerac’s alleged practices, especially given that
whether an act or practice is deceptive is generally a question of
fact. Prates, No. 616CV217ORL41TBS, 2016 WL 11774203, at *3.
B. That miniature bottles are associated with distilled
spirits is sufficiently supported
The SAC alleges the malt beverage’s miniature bottle is
deceptive because it is similar to the bottle size of the whisky
beverage and because consumers expect miniature bottles to be “more
potent” and contain “higher alcohol content.” (Doc. #33, ¶¶ 117-
18.) Sazerac’s second argument targets the latter allegation; it
contends that the SAC’s allegation that “miniature bottles . . .

are associated with distilled spirts” is an unsupported
conclusion. (Doc. #37, p. 14.) Puig responds that the conclusion
is sufficiently supported, and the Court agrees.
The SAC cites the National Institute on Alcohol Abuse and
Alcoholism (NIAAA) which states “one U.S. standard drink” of
“distilled spirits” like “whiskey” is “1.5 fl[uid] o[unces].”
(Doc. #33, ¶ 32.) The SAC further states that the “[m]iniature
bottles[,] . . . also known as a ‘shot’ or ‘shooters’ to drinkers,”
(id. at ¶ 29), “fits” the 1.5 ounces “perfectly with a little room
to spare.” (Id. at ¶ 30-31.) Sazerac’s argument regarding the
pertinency or weight, if any, of the NIAAA’s statement is best
left for a later date. For now, Sazerac has been given “fair notice

of what the . . . claim is and the grounds upon which it rests.”
Erickson, 551 U.S. at 93 (quoting Twombly, 550 U.S. at 555). Since
that is all that is required, the SAC’s allegations are sufficient
and Sazerac’s argument to contrary are unpersuasive.
C. The SAC’s failure to specifically allege that Puig saw and
relied upon the non-liquor retailor displays is not fatal
to claim
Sazerac’s third argument is that the allegedly deceptive non-
liquor retailor displays do not help Puig establish plausibility
because the SAC does not allege that he even encountered them, let
alone that his purchasing decisions were based thereon. 2 (Doc.
#37, p. 15-16.) The argument fails for two reasons.
First, as Puig points out, “the issue [in FDUTPA claims] is

not whether the plaintiff actually relied on the alleged practice,
but whether the practice was likely to deceive a consumer acting
reasonably in the same circumstances.” State, Off. of Atty. Gen.,
Dep't of Legal Affs. v. Wyndham Int'l, Inc., 869 So. 2d 592, 598
(Fla. 1st DCA 2004)(citing Davis v. Powertel, Inc., 776 So.2d 971,
974 (Fla. 1st DCA 2000)). So, “a party asserting a deceptive trade
practice claim need not show actual reliance on the representation
or omission at issue.” Id.; see also Carriuolo, 823 F.3d at 985.
Sazerac’s argument fails because a FDUTPA claim need not allege a
consumer encountered or viewed the alleged misrepresentations. See
Lewis v. Mercedes-Benz USA, LLC, 530 F. Supp. 3d 1183, 1234 (S.D.

2
Sazerac’s Reply (Doc. #41, p. 5) improperly raises for the
first time the issues of causation and standing. See Herring v.
Secretary, Dep't of Corrs., 397 F.3d 1338, 1342 (11th Cir.
2005) (“As we repeatedly have admonished, arguments raised for the
first time in a reply brief are not properly before a reviewing
court.”) (internal quotes omitted). This is especially true here,
where Puig, “[t]he party invoking federal jurisdiction[,] bears
the burden of establishing the[] elements” of standing, Lujan v.
Defs. of Wildlife, 504 U.S. 555, 561 (1992), but is deprived of
such an opportunity because Sazerac raises the issue at the closing
of briefing. Nonetheless, since the issue of standing “may be
raised at any time,” Henderson ex rel. Henderson v. Shinseki, 562
U.S. 428, 434 (2011), Sazerac is “free to properly raise Article
III standing arguments at a later date, at which time [Puig] will
have an opportunity to respond.” Miller v. Hamm, 640 F. Supp. 3d
1220, 1245 (M.D. Ala. 2022).
Fla. 2021)(denying argument that plaintiff must have “allege[d]
they viewed any specific advertisements” on the same grounds).
Second, under the liberal federal pleading standards, “the

pleading party is not required to ‘allege a specific fact to cover
every element or allege with precision each element of a claim[;]
it is [just] necessary that a complaint contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.”
Frazile v. EMC Mortg. Corp., 382 F. App'x 833, 836 (11th Cir.
2010)(quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d
678, 683 (11th Cir. 2001)).3 The SAC alleges that Puig observed
the malt beverages at non-liquor retailers and that those retailors
displayed the malt beverages a certain way. Even if the FDUTPA
claim required Puig to have actually encountered the displays, it
can be inferred that he did so. Sazerac’s argument is unpersuasive.
D. The SAC’s cited social media posts support the SAC’s
allegations
Sazerac’s last argument objecting to the SAC’s incorporated
social media commentary fares no better. The SAC does not entirely
rely on the social media posts, as Sazerac suggests. (See Doc.
#37, p. 17)(“Sazerac notes that if all it takes to establish a

3
“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).
plausible FDUTPA claim is citation to a few social media posts and
comments, the courts will be flooded with undismissable [sic]
claims . . . .). Of the SAC’s one hundred forty-six paragraphs,

the social media posts constitute fifteen paragraphs. (See Doc.
#33, ¶¶ 38-49, 51-53.) The FDUTPA claim’s plausibility is carried
not by the social media posts but by factual allegations, as
discussed above, that allow the Court to draw the reasonable
inference that Sazerac is liable for the misconduct alleged. See
supra Section III.A.
Nevertheless, the social media comments do serve to support
Puig’s allegations because they purportedly show Florida consumers
confusing the malt beverage for the whisky beverage. (See Doc.
#33, ¶ 40-46)(showing Florida resident Holly Brooke posting a
TikTok video of the malt beverage and asking “[c]an someone please
explain HOW TF they are selling liquor at a gas station in

Florida?” and other social media users commenting that some gas
stations sell liquor, not realizing the malt beverage was not
liquor at all). These social media posts and others cited by the
SAC do not need to explicitly state they are being deceived. They
show a multitude of social media users confused and believing the
malt beverage is liquor, and thus supporting Puig’s allegation
that reasonable consumers could be misled by the malt beverage.
Sazerac’s argument is unpersuasive.
Accordingly, it is now
ORDERED:
1. Defendant’s Motion to Dismiss (Doc. #37) is DENIED.
2. Defendant’s Motion to Dismiss (Doc. #35) is DENIED as moot.
DONE AND ORDERED at Fort Myers, Florida, this 12th day of
September, 2024.

— (2. □ i
AA 9 Pe,
JQH E. STEELE
5 ISR UNITED STATES DISTRICT JUDGE

Copies:
Parties of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642955. Public record. Not legal advice.