An Illinois federal court has declined to certify a class in a lawsuit alleging that Skinnygirl Margarita, a pre-mixed alcohol beverage sold by Skinnygirl Cocktails, and its founder, Bethenny Frankel of reality show “The Real Housewives of New York City” and talk show “Bethenny,” was labeled as “all natural” despite containing the non-natural preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., order entered October 30, 2014).

The plaintiff sought to represent a class of all consumers who purchased Skinnygirl Margarita spirits in Illinois after March 1, 2009, but the court identified several shortcomings with the proposed class. First, the court found that the plaintiff failed to offer a valid method to identify the purchasers. “Plaintiff says class membership can be verified by the dates of purchase, the locations of retail establishments, the frequency of purchases, the quantity of purchases, and the cost of purchase, but does not offer any showing that this can be done,” in part because Skinnygirl Cocktails never sold the product directly to consumers. Acknowledging that this ascertainability standard could be interpreted too strictly, the court stated that it at least required “a showing by plaintiff that some method exists to identify the members. Here there has been none.”

While the court found that the plaintiff met the numerosity, commonality and typicality requirements for class certification, it had concerns with the adequacy of representation. Dismissing Skinnygirl Cocktails’ challenge to the plaintiff’s credibility, the court assessed the company’s argument that an apparent personal relationship between the plaintiff and lead counsel caused a conflict of interest. The plaintiff’s father, an attorney, had in other cases served as co-counsel with the lead attorney representing the plaintiff, which the court stated “causes genuine concern about conflicts of interest.” But because the plaintiff’s reply brief had largely ignored Skinnygirl Cocktails’ adequacy-of representation argument, the court found that she had not met her burden of proving that the putative class members would be adequately represented.

The court then assessed whether class members would have individual issues relevant to the determination of Skinnygirl Cocktails’ liability. The plaintiff argued that why each class member purchased the product was irrelevant because “the simple fact is that Plaintiff and the Class id not get what they paid for, i.e. ‘All Natural’ or ‘Blue Agave.’” The plaintiff failed to show that any other potential class members were actually harmed because they had purchased the product based on the “All Natural” representation, the court said. It cited Suchanek v. Sturm Foods, Inc., No. 13-3843 (7th Cir., order entered August 22, 2014), to note that the plaintiffs in that case had “produced evidence tending to how the materiality of the misleading marketing.” In Suchanek, a coffee-pod producer had allegedly sold instant coffee in pods at premium prices and implied on its label that the coffee was not instant, and the court in Skinnygirl said that “few (if any)” of the consumers who purchased the pods would have done so if they had known the ingredients of the product. In contrast, the court could not find any evidence to show that the potential class members who purchased the Skinnygirl Margarita product would not have bought it based on “the presence of a small quantity of sodium benzoate.” Additional information about Suchanek appears in Issue 536 of this Update. Finally, the court dismissed as moot the plaintiff’s motion to exclude Skinnygirl Cocktails’ expert because it had reached its decision without relying on the expert opinion, so a full Daubert analysis was unnecessary.

 

Issue 544

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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