United States District Court, S.D. California
EVAN PARENT, an individual on behalf of himself, a class of persons similarly situated, and the general public, Plaintiff,
MILLERCOORS LLC, a Delaware Limited Liability Company authorized to do business in California, and DOES 1-50, inclusive, Defendant.
ORDER GRANTING DEFENDANT MILLERCOORS LLC'S MOTION
TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT [ECF,
GONZALO P. CURIEL JUDGE
the Court is Defendant MillerCoors LLC's
("Defendant" or "MillerCoors") Motion to
Dismiss Plaintiff's First Amended Complaint. Def. Mot.
Dismiss ("Def. Mot."), ECF No. 22. The motion has
been fully briefed. Pl. Resp., ECF No. 23; Def. Reply, ECF
No. 24. Upon consideration of the moving papers and the
applicable law, and for the reasons set forth below, the
Court GRANTS Defendant's motion.
AND PROCEDURAL BACKGROUND
facts of this case concern "Blue Moon, " a popular
brand of Belgian-style wheat beer owned by Defendant
MillerCoors. MillerCoors is a major beer manufacturer with
many well-known beer brands, including Coors Light, Miller
Genuine Draft, Miller High Life, Ice house, Milwaukee's
Best, Keystone, and Olde English. First Amended Complaint
("Am. Compl.") 3, ECF No. 19. Plaintiff Evan Parent
("Plaintiff"), a "beer aficionado and home
brewer, " alleges that from 2011 until mid-2012, he
regularly paid a price premium purchasing Blue Moon beer from
San Diego-area retailers for personal and family consumption
because MillerCoors created the deceptive and misleading
impression that Blue Moon is a "craft beer."
Id. at 9.
Initial Complaint and First Motion to Dismiss
April 24, 2015, Plaintiff, a resident of California, brought
suit on behalf of himself and others similarly situated
against Defendant, a limited liability company incorporated
in Delaware and with its principal place of business in
Illinois, in San Diego Superior Court. Compl. 1, ECF No 1.
Plaintiff pled three causes of action for (1) deceptive
practices and misrepresentation in violation of
California's Consumers Legal Remedies Act
("CLRA"), Cal. Civ. Code § 1750 et
seq.; (2) untrue and misleading advertising in violation
of California's False Advertising Law ("FAL"),
Cal. Bus. & Prof. Code § 17500 et seq.; and (3)
unlawful, fraudulent and unfair business practices in
violation of California's Unfair Competition Law
("UCL"), Cal. Bus. & Prof. Code § 17200 et
initial Complaint, Plaintiff alleged that Blue Moon does not
qualify as a "craft beer" because such beers are
produced by "small, independent and traditional"
craft breweries as defined by the Brewers Association, a
trade organization for American craft brewers, and
MillerCoors is not such a brewery. Id. at 4. More
specifically, according to the Brewers Association,
"[t]o qualify as an American craft brewer, a brewery
must: (a) Produce less than 6 million barrels of beer
annually; (b) Be less than 25 percent owned or controlled by
a non-craft brewer; and (c) Make beer using only traditional
or innovative brewing ingredients." Id.
Plaintiff alleged that MillerCoors produces more than 76
million barrels of beer on an annual basis. Id.
alleged that even though Blue Moon is not really a craft
beer, MillerCoors engages in deceptive and misleading
business practices to misrepresent it as a craft beer in
order to capture a slice of the burgeoning craft beer market
and "charge up to 50% more for Blue Moon beer than it
charges for other MillerCoors products." Id. at
Plaintiff alleged that "Defendant goes to great lengths
to disassociate Blue Moon beer from the MillerCoors
name." Id. at 4. Even though Blue Moon is owned
by MillerCoors, MillerCoors' ownership of Blue Moon is
not disclosed on the bottle or the outer packaging of Blue
Moon beers, which instead states that the product is
manufactured by "Blue Moon Brewing Co."
Id. In fact, Blue Moon is brewed by MillerCoors at
its Golden, Colorado, and Eden, North Carolina breweries,
which also produce all of MillerCoors' other beers.
Id. The Blue Moon Brewing Company ("BMBC")
website also contains no reference to MillerCoors'
ownership of the brand, although MillerCoors' own website
lists Blue Moon among its "craft beer" brands.
Id. Second, Plaintiff argued that Defendant's
use of the registered trademark "Artfully Crafted"
in the labeling and advertising for Blue Moon beer misleads
consumers into thinking Blue Moon is a craft beer.
Id. at 5. Third, Plaintiff argued that Blue
Moon's "premium price, " in line with other
craft beers, as well as its "placement among other craft
beers" in San Diego-area retailers, misled him into
believing Blue Moon was a craft beer. Id.
30, 2015, Defendant removed the case to federal court
pursuant to the Class Action Fairness Act, 28 U.S.C. §
1332(d). Notice of Removal 3, ECF No. 1. On July 13, 2015,
Defendant filed their first motion to dismiss. ECF No. 6. On
October 26, 2015, the Court granted the first motion to
dismiss. Order Granting Defendant's Motion to Dismiss
("Dismissal Order"), ECF No. 17.
the Court found that the safe harbor exception to
California's consumer protection laws applied to the
Plaintiff's UCL, CRLA, and FAL claims to the extent that
those claims relied on MillerCoors' omission of their
ownership interest, or their designation of BMBC as the
brewer, on the label or packaging of Blue Moon beers.
Id. at 12.
the Court found that, based on the facts as pled in the
initial Complaint, a reasonable consumer was not likely to be
deceived by the Defendant's representations. The Court
found that: (1) based solely on the facts pled that
"there is not a single reference to MillerCoors on the
Blue Moon Brewing Company website, " while "Blue
Moon is prominently displayed on the MillerCoors website,
" the Court could not conclude that the reasonable
consumer could be misled by Blue Moon's internet
presence; (2) standing alone, MillerCoors' use of the
"Artfully Crafted" trademark was non-actionable
puffery; (3) Plaintiff could not argue that other features of
Blue Moon's advertising were deceptive because he had
pled no other features of Blue Moon's advertising; (4)
Plaintiff could not argue that Blue Moon's
"placement among other craft beers" in retail
stores was deceptive because Plaintiff did not allege, and
provided no factual allegations from which the Court could
reasonably infer, that MillerCoors has any control over where
retailers place Blue Moon on their shelves; and (5) Plaintiff
provided no authority supporting the proposition that the
price of a product constitutes a representation or statement
about the product. Id. at 12-16.
Court then found that Plaintiff's allegations were
sufficiently particular to satisfy Fed.R.Civ.P. 9(b)'s
heightened pleading requirements for fraud cases,
id. at 17, but that Plaintiff lacked standing to
seek injunctive relief, id. at 19. The Court
permitted Plaintiff leave to amend his complaint, but
cautioned that Plaintiff could not rely on MillerCoors'
use of the BMBC trade name in Blue Moon's label or
packaging or, standing alone, the "Artfully
Crafted" trademark to support his consumer protection
claims. Id. at 20.
Amended Complaint and Second Motion to Dismiss
November 25, 2015, Plaintiff filed a first amended complaint.
ECF No. 19. The amended complaint makes the same legal claims
as the original complaint, id. at 11-20, but adds a
number of new factual allegations.
the amended complaint alleges that in addition to the Brewers
Association definition, Blue Moon also does not meet the
dictionary definition of a craft beer. The term "craft
beer" is defined by Merriam-Webster Dictionary as a
"specialty beer produced in limited quantities, "
by Cambridge Dictionary as "beer made using traditional
methods in small, independent breweries, " and by the
Oxford English Dictionary as "a beer made in a
traditional or non-mechanized way by a small brewery."
Id. at 4.
the amended complaint alleges that MillerCoors engages in a
number of practices to produce the "wholesale
fiction" that Blue Moon is a craft beer produced by a
small, independent brewery, including: (a) portraying Blue
Moon as having being invented independently by Dr. Keith
Villa on the BMBC website, when in fact Dr. Villa was a
MillerCoors employee who developed Blue Moon at the direction
of MillerCoors executives; (b) portraying Blue Moon as being
brewed at a "small, limited capacity brewpub known as
‘The SandLot Brewery'" on the BMBC website and
YouTube channel, when in fact Blue Moon is brewed at
MillerCoors' Golden, Colorado and Eden, North Carolina
brewing facilities; (c) directing retail establishments,
through MillerCoors' network of distributors, to stock
Blue Moon in the craft beer section in retail establishments;
(d) endorsing retailers' misrepresentation of Blue Moon
as a craft beer by permitting such retailers to use Blue
Moon's trademark protected logo in advertisements
identifying Blue Moon as a craft beer; (e) advertising Blue
Moon as a craft beer at concert venues through
MillerCoors' sponsorship and distribution agreements; (f)
selling Blue Moon as a craft beer in non-retail venues, such
as national restaurant chains; and (g) directing Blue Moon to
be priced as a craft beer, "[t]hat is, $2.00 to $3.00,
or up to 50 percent more per six pack than the average
macrobrew, " and thereby engaging in a practice of
"falsely representing that a product has characteristics
that command a premium price, and then actually charging a
premium price for the product." Id. at 5-8.
motion to dismiss followed.