Monthly Vodka Purchases Do Not Give Rise to Various Class and Individual Claims
The United States District Court for the Southern District of Ohio recently ruled
against a monthly purchaser of vodka who brought suit on behalf of herself and
class members on several claims, including class claims under the Ohio Consumer
Sales Practices Act and the Ohio Deceptive Trade Practices Act.
The defendant in Terlesky v. Fifth Dimension, Inc., Case No.1:15-cv-374 (November 17, 2015) filed a Motion to Dismiss. Dismissal was granted as to most of the claims.
The Ohio Deceptive Trade Practices Act claim was dismissed on the ground that a consumer does not have standing to sue under that act. Although the Ohio Supreme Court has not decided the issue, the Court in Terlesky sided with the majority on this point.
On the Ohio Consumer Sales Practices Act class claim, the issue was whether the statutory requirement of class action notice was met. The statute requires the defendant to be sufficiently on notice that its conduct was deceptive or unconscionable under the statute at the time it committed the act in question. Thus the plaintiff must show either that the alleged violation was declared to be deceptive or unconscionable by a rule of the Attorney General before the consumer transaction, or was determined by a court to violate the stature, with the court’s decision was available before the consumer transaction occurred. The statute also requires the plaintiff to identify in the complaint the rule or case that meets this requirement. Since this was not done in Terlesky, the class claims under the Ohio Consumer Sales Practices Act were dismissed, though plaintiff’s individual claim survives.
The Court also dismissed plaintiff’s negligent misrepresentation claim. Asserted as a class action, the Court concluded that such a claim necessarily pertained, not to a limited, foreseeable group, but to “an extensive, unresolved class of people” and thus to the public at large. As such, sufficient basis for a negligent misrepresentation claim was not alleged.
Plaintiff’s claims for fraud were also dismissed on the ground that the plaintiff failed to plead an injury proximately caused by reliance on the alleged label misrepresentation. There was no physical or psychological injury alleged, but only the allegation of financial harm as a result of purchasing a product that was satisfactory but not as expected, and therefore less valuable.
The only class claim that survived at this early point in the litigation was plaintiff’s claim for promissory estoppel. Defendant argued that Plaintiff did not plead an enforceable promise regarding a future act, as opposed to an existing or past fact. Thus the promissory estoppels claim should be dismissed. Plaintiff countered that the future-versus-existing-or-past determination is for later in the proceedings, and suggested herself that the analysis is appropriate for summary judgment. The Court held that, under the proper standard for a motion to dismiss, the plaintiff pled sufficient fact to allege promissory estoppel. But the Court also specifically noted that the legal issue might be raised later in a motion for summary judgment.
So what remains in the case are the individual claims of a plaintiff who was satisfied to buy a particular vodka once a month for the past several years, plus a class promissory estoppel claim likely to be decided upon summary judgment. Stay tuned.
In fact the proper name of the defendant is Fifth Generation, Inc. In this litigation it was represented by Susan Grogan Faller and Aaron M. Bernay of Frost Brown Todd LLC as local counsel with Ricky L. Shackelford Pro Hac Vice of Greenberg Traurig, LLP.
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Stephen E. Embry is a member of the Firm's class action, privacy and mass tort groups. He frequently defends participants in consumer class actions and mass tort litigation. Stephen is a national litigator and advisor who is experienced in developing solutions to complex litigation and corporate problems.