Food for Thought: Food Industry Decisions with Bite

Food for Thought: Summary Judgment for Tito’s Vodka Makers in Case Alleging Their Product is Not Made in an Old-Fashioned Pot Still

Mass Tort and Product Liability   |   September 27, 2016
Pye v. Fifth Generation, et al., Case No. 4:14-cv493-RH/CAS (N.D. Fla., Sept. 27, 2016)

Plaintiffs Shalinus Pye and Raisha Licht filed a lawsuit against defendants Fifth Generation, Inc. and Mockingbird Distillery Corporation alleging they purchased Tito’s Handmade Vodka in reliance on defendants’ statement on the label that Tito’s is "handmade" and made in "an old-fashioned pot still." Plaintiffs sought to represent a class of Florida buyers of Tito’s. The first amended complaint which asserted claims based on breach of express warranty, breach of implied warranty, negligence, unjust enrichment, violations of Florida’s Deceptive and Unfair Trade Practices Act, and violations of Florida’s bait-and-switch advertising statutes.

In September 2015, the district court dismissed all of plaintiffs’ claims, except for the breach of express warranty claim. However, the court’s order dismissing five of the six claims also limited the express warranty claim. Specifically, the court held that the plaintiffs could not recover based on the statement that Tito’s is "handmade," and allowed the case to proceed only as to the statement that Tito’s is made in "an old-fashioned pot still."

The district court granted defendants’ motion for summary judgment as to the one remaining claim in the case. The court held that the undisputed evidence established that Tito’s was indeed made in "an old-fashioned pot still." Plaintiffs argued that the pot still was not truly "old-fashioned" because anything that has been changed cannot truly be "old-fashioned." However, the court declined to give the term such a narrow definition and explained that "the assertion [that anything that has been changed cannot be, ‘old-fashioned,’] assigns to the term a meaning far more precise and restricted than the term ordinarily bears."

In addition, pursuant to Florida law, a prerequisite to an express warranty claim is notice to the manufacturer of the breach. The court explained that plaintiffs’ express warranty claim survived the motion to dismiss because they alleged they did provide the required notice. However, plaintiffs’ response to the summary judgment motion failed to provide evidence supporting the allegation. On the other hand, defendants submitted evidence that they did not receive notice. According to the court, defendants would be entitled to summary judgment on this basis alone.

Throughout, the court cited plaintiffs’ failure to provide evidence supporting their allegations. Specifically, the court noted that defendants provided ample evidence in support of their arguments and "rigorously cited the record for every fact on which they rely." By comparison, the court explained plaintiffs’ response "cites the record only for the wording on the Tito’s label" and "cited no record support for their other factual assertions" because "there is no record support for the assertions." As a result, defendants were entitled to summary judgment.

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