Tito’s Vodka Maker Opposes Deceptive Marketing MDL

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On April 28, Fifth Generation Inc.—the makers of Tito’s Handmade Vodka—pleaded with the U.S. Judicial Panel on Multidistrict Litigation (JPML) to not transfer eight deceptive marketing class action lawsuits filed across the country into California federal court, arguing that the state law claims in each case should be addressed separately and not as a multidistrict litigation (or MDL).

The Tito’s vodka class action lawsuits challenge the use of the word “Handmade” on product labels because, according to plaintiffs, Tito’s is “mass produced” by machines and equipment in a large industrial facility.

The Tito’s class actions are just a few cases in a recent string of suits alleging that alcohol manufacturers are misleading consumers by labeling their products as handcrafted or handmade, even though these alcohol products are allegedly made in mass automated batches. [See “Maker’s Mark Not ‘Handmade,’ Class Action Lawsuit Alleges” and “Jim Beam Shot with Class Action Over ‘Handcrafted’ Claims.”]

Fifth Generation’s motion to oppose the Tito’s Vodka MDL, proposed as In re: Tito’s Handmade Vodka Marketing and Sales Practices Litigation, MDL No. 2634,  states that the cases “are all in the initial pleadings stages and are not ripe for consideration of any MDL proceeding.”

The company further argues that the eight class action lawsuits, filed in seven districts, are all based on a the key issue of whether  or not Tito’s “Handmade” label is in violation of state specific consumer protection laws.

While the majority of the Tito’s vodka class action lawsuits have been filed in California district court, others have also been filed in Illinois, New Jersey, and  Florida courts as well. In their motions to dismiss these cases, Fifth Generation argued that state-specific “safe harbor” laws allegedly shield Tito’s Handmade Vodka label from litigation, as the label was approved by the Alcohol and Tobacco Tax and Trade Bureau. This argument, however, was already struck down by at least one judge back in March of this year.

According to Fifth Generation’s motion opposing the consolidation of the Tito’s Handmade Vodka class action lawsuits, “If successful, the safe harbor defenses would eliminate a number of causes of action and thus significantly alter the litigation landscape, leaving a patchwork quilt of diverse actions, rather than the overlapping lawsuits the plaintiffs have portrayed.”

Lead Plaintiff Gary Hoffman submitted his motion to transfer the class action lawsuits into one MDL in early April, and argued that pretrial consolidation would help avoid “duplicative discovery” and make the litigation process more convenient for the parties involved in the various class actions. Other plaintiffs have also informed the JPML that they support Hoffman’s motion.

However, the maker of Tito’s Handmade Vodka disagrees with Hoffman, disputing the benefits of a deceptive marketing MDL:

“From the defense side, the witnesses and other discoverable information will be substantially the same in each action. On the other hand, the plaintiffs’ residences are all over the country. It would make little sense to require plaintiffs from New Jersey or Massachusetts to be deposed in San Diego. So the notion that significant convenience in discovery would result from an MDL proceeding in the Southern District of California is far from self-evident.”

Additionally, the company has stated that even if the JPML does decide to consolidate the cases and create a national Tito’s Vodka MDL, Fifth Generation will reject the venue of the California federal court and will submit a bid for Texas or Florida court as the best venue for the proposed MDL.

Plaintiff  Gary Hoffman is represented by Jonathan W. Cuneo and Taylor Asen of Cuneo Gilbert & LaDuca LLP and John Donboli of Del Mar Law Group LLP.

The California Tito’s Handmade Vodka Deceptive Marketing Class Action Lawsuit is Hofmann v. Fifth Dimension Inc., Case No. 37-2014-00031150-CU-NP-CTL, in the Superior Court of California for the County of San Diego.

The proposed Tito’s Handmade Vodka Deceptive Marketing MDL is In Re: Tito’s Handmade Vodka Marketing and Sales Practices Litigation, MDL No. 2634, before the Judicial Panel on Multidistrict Litigation.

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.