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Archive for May, 2015

Where Art Tito and Blue Moon? June 4 Webinar

I am very pleased to announce that we will be joining with Chicago law firm Locke Lord to provide the following webinar. Simon and Tom have lots of experience representing consumer products companies in defending class action lawsuits. They have been closely involved with the wave of litigation that has descended upon the alcohol beverage industry in the past couple of years. Robert has worked with Simon and Tom on some of these cases in the past, and has more than 25 years of experience focused on how federal and state governments, and private plaintiffs, work together to affect alcohol beverage labels, formulas and marketing.


 

Locke Lord and Lehrman Beverage Law invite you to

Spirits Industry Under Fire

Webinar: Thursday, June 4, 2015
1:00 pm – 2:30 pm ET

 

 

Locke Lord and Lehrman Beverage Law invite brewers, distillers, and producers, distributors and retailers of beer, wine and spirits to a free webinar.


spacerLocke Lord Speakers
Thomas J. Cunningham
Partner
Chicago
T: 312-443-1731
Email

 

Simon A. Fleischmann
Partner
Chicago
T: 312-443-0462
Email
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Lehrman Beverage Law Speaker
Robert C. Lehrman
Principal Attorney
Washington, DC
T: 202-449-3739
Email

What to Expect:

Tom Cunningham, Simon Fleischmann and Robert Lehrman will describe the current wave of litigation hitting the beer, wine and spirits industry, including the cases against Tito’s Vodka and others. They will discuss and provide information about:

  • What these class action lawsuits are about
  • Why they were filed
  • How the courts are dealing with them
  • What they mean for beer, wine and spirits industry players who have not been sued yet
  • Who is a likely target for future lawsuits
  • What companies can do to minimize the likelihood of being sued

The program will run approximately 75 minutes with 15 minutes set aside for questions and answers. If you would like to attend this free program, please register below.

This program is pending approval for 1.0 hour MCLE credit. Please specify the state from which you would like to receive credit when registering.


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alcohol beverages generally


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A Great Day for Maker’s Mark. A Good Day for Tito(?)

domino

Whoa! The first of the “handmade” cases wrapped up within the past week. On May 1, 2015 the U.S. District Court in Tallahassee dismissed the class action lawsuit against Maker’s Mark “with prejudice.” The now-defunct case alleged that Beam Suntory was bs’ing about whether the bourbon was “handmade.” The court seems to be saying “handmade” is a puff term, like “delicious.”

The term at issue has been amorphous, over the centuries, and Judge Hinkle seems to have dumped that burden on the plaintiffs:

the plaintiffs have been unable to articulate a consistent, plausible explanation of what they understood ‘handmade’ to mean in this context. This is understandable; nobody could believe a bourbon marketed this widely at this volume is made entirely or predominantly by hand. This order grants the defendant’s motion to dismiss for failure to state a claim on which relief can be granted.

The Judge makes a good point, saying:

But the term ‘handmade’ is no longer used in that sense. The same dictionary now gives a circular definition:  ‘handmade’ means ‘[m]ade by hand.’ Id. But the term obviously cannot be used literally to describe bourbon. One can knit a sweater by hand, but one cannot make bourbon by hand. Or at least, one cannot make bourbon by hand at the volume required for a nationally marketed brand like Maker’s Mark. No reasonable consumer could believe otherwise.

In sum, no reasonable person would understand “handmade” in this context to mean literally made by hand. No reasonable person would understand “handmade” in this context to mean substantial equipment was not used. If “handmade” means only made from scratch, or in small units, or in a carefully monitored process, then the plaintiffs have alleged no facts plausibly suggesting the statement is untrue. If “handmade” is understood to mean something else—some ill-defined effort to glom onto a trend toward products like craft beer—the statement is the kind of puffery that cannot support claims of this kind.

Another Maker’s Mark case is still pending, but darned if Judge Hinkle does not shoot a hole through its heart. The result here is refreshing in that I have rarely seen an important court case move so quickly. I suspect most observers expected this to grind on longer than it takes to make the very best Bourbon.

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