Regular viewers of Comedy Central’s Colbert Report – the author’s preferred source of punditry – should be familiar with the recurring segment, “Better Know a District.” In that segment, Stephen Colbert comically provides facts about a United States Congressional district and interviews the district’s representative. The viewer walks away from the segment knowing a little about the district and its representative and generally feels less impressed with Congress. As highlighted by a recent Southern District of New York decision denying class certification, counsel opposing certification of consumer class actions should follow Stephen Colbert’s lead and better know the plaintiffs.
The case, Rapcinsky v Skinnygirl Cocktails, L.L.C., 1:11-cv-06546 (S.D.N.Y.), is related to another basic-cable staple, the Real Housewives of New York. For those who do not watch the Real Housewives of New York (or will not admit to watching it), in 2009, one of the Real Housewives (who was not actually a wife at the time, but that is a story for another day), Bethenny Frankel, along with her business partner, David Kanbar, formed Skinnygirl Cocktails, L.L.C. and developed Skinnygirl Margarita, a low calorie alternative to typical margarita mixes. Skinnygirl Margarita was advertised as being “All-natural” and containing “100% Blue Agave tequila.”
In 2011, plaintiff Christopher Rapczynski, a Massachusetts resident, bought a bottle of Skinnygirl Margarita, as a surprise present for his wife, from a convenience store across the street from his Massachusetts home. On September 20, 2011, after discovering that Skinnygirl Margarita contained the preservative sodium benzoate (not natural) and a tequila byproduct (not 100% Blue Agave tequila), Rapczynski filed a class action suit alleging that Defendants caused “millions of purchasers of ‘Skinnygirl Margarita’ to purchase that product under the false pretense that it was ‘All-natural’ and contained only ‘100% Blue Agave tequila,’ Agave nectar and caramel color.” Rapczynski accused Defendants of false advertising under New York General Business Law § 349 and breach of express warranty, promissory estoppel, and New York Agriculture and Markets Law.
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