Tito’s Handmade Vodka Maker Pushes for Dismissal of Class Action

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Fifth Generation Inc., a Texas-based distiller, submitted a memorandum supporting their previously filed motion to dismiss a proposed Tito’s Handmade Vodka class action lawsuit, arguing the case should be thrown out of federal court because the plaintiffs have allegedly failed to state a claim under New Jersey’s Consumers Fraud Act.

The proposed false advertising class action lawsuit claims that Fifth Generation’s vodka is not handmade. This New Jersey case is one of at least eight other Tito’s Handmade Vodka class action lawsuits filed against Fifth Generation.

The first of these false advertising class action lawsuits was filed in California federal court and Fifth Generation has also attempted to have this case dismissed.

According to the maker of Tito’s Handmade Vodka, plaintiffs Marc McBearty and Paul Cantilina failed to correct the problems that caused the court to throw out their NJCFA claim back in August, more specifically their allegations that they and other consumers paid a premium Tito’s Vodka under the assumption that the alcohol was made by hand.

“Quality, like beauty, is in the eye of the beholder; or, in this case, the mouth of the drinker,” Fifth Generation’s memorandum states. “If the product truly did not meet plaintiffs’ subjective taste and quality expectations, then it is highly implausible that they would have bought 94 bottles over three years at any price.”

The plaintiffs of this New Jersey Tito’s Handmade Vodka class action lawsuit allege the manufacturer’s use of modern equipment to make their brand-name vodka makes the label misleading and also violates New Jersey consumer laws.

Tito’s Handmade Vodka’s maker has shot back that it has described its product as “handmade” over about 20 years and has never faced scrutiny or action from a federal agency.

Fifth Generation allegedly makes its Vodka in “old-fashioned pot still,” which according to the company’s memorandum in support of their motion to dismiss the class action, provides the basis for the founder’s “handmade” vodka claim and justifies the company’s position that its current labeling is not misleading.

In an additional response to the “handmade” labeling, the company argues, “no consumer would reasonably conclude that a distilled spirit can be made without the use of machines.”

Furthermore, the company argues the agency’s approval of Tito’s Vodka preempts the NJCFA, and also points out that even if the plaintiffs were able to apply this state law, McBrearty and Cantilina have yet to show any evidence that Fifth Generation has committed a crime as required by the NJCFA.

Tito’s Handmade Vodka’s manufacturer has asked the court to dismiss the amended false advertising class action lawsuit without prejudice, though Fifth Generation has also said that New Jersey court could alternatively strike plaintiffs’ NJCFA claims and liquor buyers club subclass.

The plaintiffs are represented by Barry J. Gainey of Gainey McKenna & Egleston.

The Tito’s Handmade Vodka Class Action Lawsuit is McBrearty, et al. v. Fifth Generation Inc., et al., Case No. 2:14-cv-07667, in the U.S. District Court for New Jersey.

UPDATE: On Jan. 11, 2016, plaintiffs Gary Hofmann and Marc Cabrera, who filed separate but similar Tito’s Handmade Vodka class action lawsuits, asked a California federal court judge to certify a proposed class of affected consumers.