MIAMI - This city has a lot going for it.
The Miami Heat. Miami beaches. Miami food. Miami
art, fashion and celebrities.
It also has Miami courts that, as of late, have
seen their fair share of false advertising class action lawsuits filed against
major brewing companies - particularly for alleged deceptive labels.
In a country full of interesting cities and
well-established federal jurisdictions, this trend begs the questions: Why the
increase in this type of litigation now, and why, specifically, is it being
found in the U.S. District Court for the Southern District of Florida?
Leffe Beer of Anheuser-Busch Companies (AB
InBev) is the latest to be accused of utilizing deceptive labels and wording.
The beer’s alleged false advertisements caused plaintiff Dr. Henry Vazquez to
believe it is still handcrafted by monks at the Abbey of Leffe in Belgium, which
is not the case.
The plaintiffs could have filed in state court,
but under the Class Action Fairness Act of 2005, AB InBev would have removed
the case to federal court anyway, said Yvonne McKenzie, a partner with Pepper
Hamilton LLP. The case met the requirements of CAFA, specifically that the
putative class include 100 or more diverse members and the amount in
controversy exceed $5 million.
That suit still is pending, but the Leffe case
is not the only deceptive-labeling class action to hit AB InBev. The beverage
giant has settled similar suits twice before in Miami, when its labels
allegedly steered consumers into believing Beck’s Beer was brewed exclusively
in Germany and Kirin Ichiban was brewed exclusively in Japan. Both beers also
are brewed in the U.S.
AB InBev is not alone.
MillerCoors faced litigation in February in
Miami by Joaquin Lorenzo, who claimed the Coors brands aren’t exclusively
brewed in the Rocky Mountains with “pure Rock Mountain spring water,” as Coors
Light labels allegedly suggest, but instead, have manufacturing locations
throughout the U.S.
Florida seems to be a hotbed for this type of
class action, with the same lawyers bringing the same kinds of action, McKenzie
Kozyak Tropin Throckmorton in Coral Gables, for
instance, represented plaintiffs in both the Beck’s and Kirin Ichiban cases.
Part of Miami’s class action popularity could
stem from the fact that the Florida Deceptive and Unfair Trade Practices Act -
under which the Leffe case was filed - is a pro-plaintiff protection act, with
plaintiffs able to recover attorneys’ fees in a settlement, McKenzie said.
“This is certainly lawyer-driven litigation,”
she said. “Look who actually benefits in this litigation. Lawyers are kind of
emboldened to bring these claims. Specifically in Florida, the laws are very
plaintiff friendly … . It’s a low bar for consumers to bring these lawsuits.”
In the Beck’s case, AB InBev settled for $20
million, which it may never actually pay out, said Alva Mather, a partner with
Pepper Hamilton and leading attorney in the alcoholic beverage industry.
Individuals who had a receipt showing they had purchased Beck’s were entitled
to recover up to $50; those without receipts could recover up to $12.
“The [$20 million] sticker shock for
Anheuser-Busch is significant and drawing attention to them,” Mather said.
“[What] the actual payout is, I would be very surprised if it actually got to
However, attorney’s fees added up to $3.5
“That is the answer to why we’re seeing more of
these cases,” Mather said. “If you can get past the motion to dismiss, that’s
where the money is. It’s not worth it for the defendant to go through the
entire litigation, so they end up settling.”
William Large, president of the Florida Justice
Reform Institute, agrees.
“The problem is that most class action lawsuits
tend to become about attorneys’ fees and the huge award in fees versus the
nature of the controversy in question,” Large said. “How is the class in
general being compensated? So often times at the end of litigation, you see a
huge fee award and the members of the class get a miniscule settlement.”
Miami also has seen more class action litigation
because the city’s litigators are more than capable of taking on these types of
cases, said Ervin Gonzalez, a partner at Colson Hicks Eidson in Coral Gables
who is representing Vazquez in the Leffe case.
“Miami, like other very large cities, have
sophisticated attorneys that handle [these types of cases],” Gonzalez said.
“Others may not have practitioners that are well versed in these areas.”
Trevor Brewer, a partner at BrewerLong in
Maitland, agrees in theory.
“You have a bar of attorneys in Florida,
particularly southern Florida, who have made a practice of bringing class
action lawsuits on a number of claims … they have that experience level,” said
Brewer, a business and beverage attorney who advises Florida breweries. “I
can’t see any other reason other than their proximity to the courts to do that.
Many of these cases, especially against larger corporations, end up settling in
any event, so I don’t know that you can say there’s a particularly friendly
Some believe Miami has become a hub due to “venue
shopping,” a technique used by entrepreneurial attorneys to file smaller test
cases until they find a jurisdiction that is hospitable to their claims.
“Other types of litigation have been brought
against [AB InBev] in Florida, and plaintiffs have had success in those
litigations,” said Mather. “There may be a perception that those judges are
more amenable to plaintiffs.”
“I don’t have first-hand knowledge of Miami judges,
but it is very common for plaintiffs’ attorneys to file cases in venues that
they think are more favorable for their case,” McKenzie said. “That is one of
the reasons you’ll see high concentrations of litigation in certain venues.
Philadelphia, for example, has been recognized as one of those
McKenzie also has noticed there have been more
suits filed by attorney generals, which seems to show that the states are
pursuing more aggressive litigation to protect consumers.
“I think they’re trying to come from a place
with more benevolence for their constituents and their consumers,” she said.
“They want people to think twice about what they say and what they put out
there. We can debate whether it’s appropriate … [but] I don’t think they’ll
change [the current laws]. Politicians and lawmakers have no particular
incentive to change them either. They’re coming from a place of protection, and
being leaders, almost, in protecting their consumers - the people who live in
those states. I would surmise they see this almost as a source of pride.”