WHITE PLAINS, N.Y. (Legal Newsline) - Having defeated some of a motion to dismiss, lawyers are now asking for class action status in a case alleging malt miniature bottles of Southern Comfort trick customers into thinking they are buying whiskey.
Charles Moore of Reese LLP, Spencer Sheehan and others filed their motion for class certification on March 15 in New York federal court.
"Despite... impressive sales, state liquor laws prevent Defendant from selling Southern Comfort whiskey in all but a few locations," the motion says.
"To get around these restrictions and further profit, Defendant exploited its consumer base's loyalty for its branding and created Southern Comfort Malt."
Judge Arun Subramanian on Sept. 28 tossed the complaint's unjust enrichment claim but allowed others under a New York consumer protection law to proceed, finding they weren't preempted by federal law.
Defendant Sazerac failed to show its promotion of the malt Southern Comfort as being made with whiskey flavors was required under a law that requires a statement of composition on malt beverages, as it faced a "heavy" burden at the pleading stage.
The complaint alleges "Natural Whiskey Flavors" on the drink leads consumers to think it is made with more than a de minimis amount, plus "Oak Extract" creates the false impression it was aged in barrels.
Should a class be certified, the case will get much more expensive for Sazerac to handle and could lead to a settlement on behalf of all persons who purchased Southern Comfort malt in New York since Feb. 8, 2020.