UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 A Professional Corporation OREN BITAN (SBN: 0) MARK T. CRAMER (SBN: ) GEMMA KARAPETYAN (SBN: ) 000 Wilshire Boulevard, Suite 00 Los Angeles, CA 00- Telephone:..000 Fax: obitan@buchalter.com Attorneys for Defendant PABST BREWING COMPANY, LLC BRENDAN PEACOCK, on Behalf of Himself, and All Others Similarly Situated, vs. Plaintiff, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA PABST BREWING COMPANY, LLC, Defendant. Case No. :-cv-00-tln-ckd MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT PABST BREWING COMPANY, LLC S MOTION TO DISMISS OF PLAINTIFF BRENDAN PEACOCK Complaint Filed: March, 0 Hearing Date: June, 0 Hearing Time: :00 p.m. Courtroom: Judge: Hon. Troy L. Nunley 0 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT PABST BREWING COMPANY, LLC S MOTION TO DISMISS PLAINTIFF S Case No. :-cv-00-tln-ckd

2 Case :-cv-00-tln-ckd Document - Filed 0// Page of TABLE OF CONTENTS 0 0 Page I. INTRODUCTION... II. FACTUAL BACKGROUND... A. The Phrase It s the Water Does Not Appear on the Cardboard Packaging for Olympia Beer... B. The Pabst Website Does Not Make Any Reference to the Source of the Water Used in Olympia Beer... C. The Facebook Post at Issue Discloses in the Comments That Pabst is Not Brewed in Olympia and Does Not Use Water from Tumwater... D. The Label For Olympia Beer Was Approved by the TTB... III. PLAINTIFF S CLAIM AGAINST PABST FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED WITHOUT LEAVE TO AMEND... A. The Slogan It s the Water is Not a Representation of Fact and is Not Likely to Deceive a Reasonable Consumer.... The Phrase It s the Water is Not a Representation of Fact..... Pabst s Website Does Not Contain Any Representations of Fact Regarding Water..... Pabst s Facebook Account is Not Misleading..... The Picture of a Waterfall on the Olympia Label is Not Misleading.... B. Plaintiff s Unlawful Claim Under the UCL Fails as a Matter of Law Because the FDA Does Not Regulate Beer... C. Pabst s Use of the Phrase It s the Water is Sanctioned By Law, Which Provides a Complete Defense... D. Plaintiff Should Be Denied Leave to Amend... E. Plaintiff s Claim is Not Pled with the Requisite Specificity.... Rule (b) Applies to Claims Under the UCL..... Plaintiff s Claim is Not Sufficiently Pled Under Rule (b).... F. Plaintiff Lacks Standing to Seek Injunctive Relief... ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT PABST BREWING COMPANY, LLC S MOTION TO DISMISS PLAINTIFF S Case No. :-cv-00-tln-ckd

3 Case :-cv-00-tln-ckd Document - Filed 0// Page of. Plaintiff Does Not and Cannot Show Threat of Future Injury..... Plaintiff Cannot Demonstrate Injury Because He Does Not Allege an Inability to Rely on the Representations at Issue..... Plaintiff Cannot Demonstrate Injury Because He Does Not Intend to Purchase Olympia Beer As-Is In the Future.... IV. CONCLUSION iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT PABST BREWING COMPANY, LLC S MOTION TO DISMISS PLAINTIFF S Case No. :-cv-00-tln-ckd

4 Case :-cv-00-tln-ckd Document - Filed 0// Page of TABLE OF AUTHORITIES Page(s) 0 0 Cases Ashcroft v. Iqbal, U.S., (00)... Bell Atl. Corp. v. Twombly, 0 U.S., (00)... Broomfield v. Craft Brew All., Inc., No. -cv-00-blf, 0 U.S. Dist. LEXIS, at *- (N.D. Cal. Sep., 0) ( Broomfield I )..., 0,, Broomfield v. Craft Brew All., Inc., No. -cv-00-blf, 0 U.S. Dist. LEXIS (N.D. Cal. Nov., 0) ( Broomfield II )..., Brown-Forman Distillers Corp. v. Mathews, F. Supp., (W.D. Ky. )... Cel-Tech Commc ns., Inc. v. Los Angeles Cellular Tel. Co., 0 Cal. th, ()... Cruz v. Anheuser-Busch, LLC, No. CV -00 AB (ASx), 0 U.S. Dist. LEXIS 0 (C.D. Cal. June, 0)...,, 0, Davidson v. Kimberly-Clark Corp., F.d 0, (th Cir. 0)... Doe v. United States, F.d, (th Cir. )... Dumas v. Diageo PLC, No. cv BTM(BLM), 0 U.S. Dist. LEXIS (S.D. Cal. Apr., 0)...,, Fayer v. Vaughn, F.d 0, 0 (th Cir. 0)... Gardner v. Marino, F.d, 0 (th Cir. 00)... Hadley v. Kellogg Sales Co., F. Supp. d 0, 0 (N.D. Cal. 0)... Johnson v. Riverside Healthcare Sys., LP, F.d (th Cir. 00)... Kearns v. Ford Motor Co., F.d 0, (th Cir. 00)... iv MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT PABST BREWING COMPANY, LLC S MOTION TO DISMISS PLAINTIFF S Case No. :-cv-00-tln-ckd

5 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0 Lavie v. Procter & Gamble Co., 0 Cal. App. th, 0 (00)..., Lopez v. Smith, 0 F.d, (th Cir. 000)... Manzarek v. St. Paul Fire & Marine Ins. Co., F.d 0, 0 (th Cir. 00)... McKinney v. Google, Inc., No. :0-CV-0 EJD (PSG), 0 U.S. Dist. LEXIS, at * (N.D. Cal. Aug. 0, 0)... Parent v. MillerCoors Ltd. Liab. Co., No. :-cv-0-gpc-wvg, 0 U.S. Dist. LEXIS 0, at *0- (S.D. Cal. Oct., 0)..., 0, Peacock v. The st Amendment Brewery Cafe, LLC, No. -cv-0-jst, 0 U.S. Dist. LEXIS (N.D. Cal. Jan., 0)...,, Starr v. Baca, F.d 0, (th Cir. 0)... Vess v. Ciba-Geigy Corp. USA, F.d 0, 0-0 (th Cir. 00)... Vitt v. Apple Computer, Inc., Fed. Appx. 0, 0 (th Cir. 0)... Von Koenig v. Snapple Beverage Corp., F. Supp. d 0, 0 (E.D. Cal. 00)..., Statutes C.F.R.. (a)()... Section 000 of the California Sherman Food, Drug, and Cosmetic Law (Sherman Law)... Rules Fed. R. Civ. P.... Fed. R. Civ. P. (b)... Constitutional Provisions Article III of the United States Constitution... v MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT PABST BREWING COMPANY, LLC S MOTION TO DISMISS PLAINTIFF S Case No. :-cv-00-tln-ckd

6 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0 I. INTRODUCTION At issue in this case is the contrast between the expectations of a reasonable consumer and plaintiff Brendan Peacock ( Plaintiff ) when viewing the label and advertising for Olympia beer, and specifically what a reasonable consumer would think when seeing the phrase It s the Water placed below an image of an unidentified waterfall on a can of beer. A reasonable consumer would view the label and advertising for Olympia beer as either being a vague and meaningless slogan or simply a slogan that evokes the spirit or feeling of the Northwest. No reasonable consumer, therefore, would be misled into thinking that Olympia beer is made using water from Tumwater, Washington based on the wording and images used on the packaging and labeling. By contrast, Plaintiff claims he (unreasonably and implausibly) understood the phrase It s the Water to mean that the water used to brew Olympia beer is exclusively derived from artesian water from Tumwater, Washington despite the fact that no such factual representations were made. At most, the phrase It s the Water and its associated advertising is a vague and colorful expression of Olympia s association with the Northwest. It cannot be construed as a representation of fact regarding the water used to brew Olympia beer. Notably, the phrase at issue It s the Water is not even visible to the consumer at the time of purchase because it is only contained on individual cans, not on the cardboard packaging for the,, or packs. As a result, Plaintiff cannot plausibly claim that the label caused any confusion prior to his purchase. Plaintiff s claim is therefore reduced to an alleged reliance on the historical narrative listed on Pabst s website detailing the history behind Olympia beer and a single Facebook post listed on Olympia beer s Facebook account dated seven months before Plaintiff s purchase of the beer. Plaintiff s allegations regarding Pabst s website are contradicted by the text of the historical narrative, which makes no reference to the source of water used to brew Olympia. Even more farfetched is BN 0V Case No. :-cv-00-tln-ckd

7 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0 Plaintiff s reliance on Olympia beer s Facebook post, which, like Pabst s website, does not make any representations regarding the water used to brew Olympia and which contains consumer comments directly below the picture stating that Olympia Beer is not brewed using water from Tumwater. Plaintiff cannot willfully ignore such evidence and expect his decision to be sanctioned as that of a reasonable consumer. As a result, Plaintiff s claim fails as a matter of law. Plaintiff s claim also fails as a matter of law because, contrary to the Class Action Complaint and Demand for Jury Trial s ( Complaint ) allegations, Olympia beer is not governed by the Food and Drug Administration ( FDA ) and, therefore, Pabst cannot be held liable for alleged violations of FDA rules. Indeed, the product label at issue was approved by the Alcohol and Tobacco Tax and Trade Bureau ( TTB ) and is subject to a safe harbor. Because the TTB approved the label application for Olympia beer, which accurately listed Pabst Brewing Co. as the brewer of Olympia beer, Pabst cannot be held liable for any alleged misrepresentation regarding the brewing location of the beer. Plaintiff s complaint also suffers from a lack of specificity and fails to meet the heightened pleading requirements of Rule (b). The Complaint fails to include details with respect to the specific Olympia beer Plaintiff purchased (e.g. -pack, -pack, etc.), the price he paid, when he first saw the It s the Water slogan on the Olympia beer can (it cannot be viewed on the cardboard package prior to purchase), when he viewed the Facebook post at issue (and why he did not read the accompanying comment to that post that Olympia beer is no longer brewed in Washington), when he viewed the Olympia beer webpage at issue, and when he first discovered that Olympia beer is brewed in Irwindale. Even if Plaintiff attempts to cure the defects in his Complaint, his amendment would be futile. The simple fact is that there is no reasonable consumer that would be misled on the grounds Plaintiff asserts. As a result, the Court should grant the instant motion and dismiss the Complaint without leave to amend. BN 0V Case No. :-cv-00-tln-ckd

8 Case :-cv-00-tln-ckd Document - Filed 0// Page of II. FACTUAL BACKGROUND A. The Phrase It s the Water Does Not Appear on the Cardboard Packaging for Olympia Beer Each can of Olympia beer features the slogan It s the Water underneath its 0 0 trademarked waterfall and horseshoe. Request for Judicial Notice ( RJN ), Ex.. The slogan It s the Water, however, is not visible to consumers at the time of purchase because the product packaging for Olympia beer s,, and packs does not include the slogan on its cardboard packaging. Id. To see the slogan, a consumer would need to open the cardboard packaging and read the phrase on the cans inside the package. With respect to the trademarked waterfall, none of the packaging for Olympia identifies the location of the depicted waterfall. Id. Nor does it use the words artesian, Tumwater, or Washington anywhere on the packaging, advertising or labeling of Olympia beer. Id. B. The Pabst Website Does Not Make Any Reference to the Source of the Water Used in Olympia Beer The Pabst website provides a historical narrative regarding the history of Olympia beer as follows: First brewed in at a four-story wooden brewhouse near Puget Sound in Washington State, Olympia lager blends nature s finest raw materials from the Great Northwest s fields into an icon as stunning as the land itself. Crowned with a garland of fresh herbal hops, Olympia beer stands shoulders above other beers. Olympia Beer. It s the water. RJN at. Nowhere in the historical narrative does Pabst state any facts regarding the source of the water used to brew Olympia beer. In fact, the only reference to water is the slogan, It s the water. /// /// BN 0V Case No. :-cv-00-tln-ckd

9 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 C. The Facebook Post at Issue Discloses in the Comments That Pabst is Not Brewed in Olympia and Does Not Use Water from Tumwater On September 0, 0, Pabst posted a picture on its Olympia beer Facebook page featuring a can of Olympia beer held in front of a waterfall with a caption, It really is the water #OlympiaBeer. RJN at, Ex.. The post does not make any representations that the water used to brew Olympia beer is exclusively derived from Tumwater or the waterfall depicted in the photograph or that Olympia beer is brewed using water from a waterfall. The first two consumer comments directly below the Facebook post, which are necessarily visible to any person viewing the post, notes that Olympia beer has not been brewed in Olympia since 00 and that the water used to brew Olympia is not sourced from Tumwater. Id. D. The Label For Olympia Beer Was Approved by the TTB The label for Olympia beer was approved by the TTB on April, 0. RJN at, Ex.. The only geographic location referenced on the packaging and label is Milwaukee, Wisconsin. 0 III. PLAINTIFF S CLAIM AGAINST PABST FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED WITHOUT LEAVE TO AMEND Under Federal Rule of Civil Procedure (b)(), a claim may be dismissed where there is a lack of a cognizable theory or where there is an absence of sufficient facts. See Johnson v. Riverside Healthcare Sys., LP, F.d (th Cir. 00). [A] plaintiff s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action s elements will not do. Bell Atl. Corp. v. Twombly, 0 U.S., (00). To survive a motion to dismiss, a complaint must contain sufficient factual BN 0V Case No. :-cv-00-tln-ckd

10 Case :-cv-00-tln-ckd Document - Filed 0// Page 0 of 0 0 matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, U.S., (00) (citation and internal quotation marks omitted). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard requires more than a sheer possibility that a defendant has acted unlawfully. Id. Likewise, plausibility requires more than that the facts pled are merely consistent with a defendant s liability. Id. (citation and internal quotation marks omitted). A court is not required to accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Manzarek v. St. Paul Fire & Marine Ins. Co., F.d 0, 0 (th Cir. 00). Nor can a plaintiff rely on legal conclusions... cast in the form of factual allegations to defeat a motion to dismiss. Fayer v. Vaughn, F.d 0, 0 (th Cir. 0) (citation and internal quotation marks omitted). [T]he factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. Starr v. Baca, F.d 0, (th Cir. 0). As detailed below, Plaintiff s Complaint falls far short of meeting the applicable pleading requirements and fails to state a claim upon which relief can be granted. Plaintiff s claim hinges on an unreasonable misreading indeed, rewriting of the It s the water slogan on Olympia beer cans. The slogan is not a representation of fact at all, but a generalized and vague statement that is not likely to deceive a reasonable consumer into believing, as Plaintiff alleges, that Olympia beer is brewed with artesian water from Tumwater, Washington. In addition, contrary to the allegations in the Complaint, Olympia beer is not governed by the FDA and, therefore, Pabst cannot be held liable for alleged violations of FDA rules. Indeed, the product label at issue was approved by the applicable governing agency namely, the TTB and is subject to a safe harbor. BN 0V Case No. :-cv-00-tln-ckd

11 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0 A. The Slogan It s the Water is Not a Representation of Fact and is Not Likely to Deceive a Reasonable Consumer California Unfair Competition Law ( UCL ) actions alleging misleading representations are governed by the reasonable consumer test, which asks whether members of the public are likely to be deceived. Parent v. MillerCoors Ltd. Liab. Co., No. :-cv-0-gpc-wvg, 0 U.S. Dist. LEXIS 0, at *0- (S.D. Cal. Oct., 0) (citation and internal quotation marks omitted). Likely to deceive implies more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner. Lavie v. Procter & Gamble Co., 0 Cal. App. th, 0 (00). Rather, the phrase indicates that the ad is such that it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled. Id. [T]o be actionable as an affirmative misrepresentation, a statement must make a specific and measurable claim, capable of being proved false or of being reasonably interpreted as a statement of objective fact. Vitt v. Apple Computer, Inc., Fed. Appx. 0, 0 (th Cir. 0) (citation and internal quotation marks omitted) (affirming finding that descriptors mobile, durable, portable, rugged, built to withstand reasonable shock, reliable, high performance, high value, an affordable choice, and an ideal student laptop were generalized, non-actionable puffery because they are inherently vague and generalized terms and not factual representations that a given standard has been met ); Dumas v. Diageo PLC, No. cv BTM(BLM), 0 U.S. Dist. LEXIS, at *- (S.D. Cal. Apr., 0) (finding that the phrase Jamaican Style Lager was not a representation of fact regarding its origin and granting motion to dismiss false advertising claim); Parent, 0 U.S. Dist. LEXIS 0, at *- (dismissing UCL claim alleging that craft beer and Artfully Crafted were representations of fact that deceived consumers); Cruz v. Anheuser-Busch, LLC, BN 0V Case No. :-cv-00-tln-ckd

12 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0 No. CV -00 AB (ASx), 0 U.S. Dist. LEXIS 0, at *- (C.D. Cal. June, 0) (rejecting UCL claim that the term lite used on packaging was misleading). Although [m]isdescriptions of specific or absolute characteristics of a product are actionable, [g]eneralized, vague, and unspecified assertions constitute mere puffery upon which a reasonable consumer could not rely, and hence are not actionable. McKinney v. Google, Inc., No. :0-CV-0 EJD (PSG), 0 U.S. Dist. LEXIS, at * (N.D. Cal. Aug. 0, 0) (internal punctuation marks and citations omitted) (emphasis added). Here, the Complaint should be dismissed because Plaintiff s allegations, even when taken as true, do not state a cognizable claim. No reasonable consumer would be misled by Pabst s use of () the phrase It s the Water or () the image of a waterfall. Indeed, Plaintiff s allegations fail to show that Pabst made any representation of fact that is likely to deceive a reasonable consumer. Cruz, 0 U.S. Dist. LEXIS 0 at *- (dismissing claim on the grounds that no reasonable consumer would be deceived by label); Dumas, 0 U.S. Dist. LEXIS at * (dismissing claim on the ground that no reasonable consumer would be deceived by label using phrase Taste of Jamaica ).. The Phrase It s the Water is Not a Representation of Fact. Plaintiff alleges that the phrase It s the Water, which is featured on Olympia beer cans (but notably not on the cardboard packaging in which the cans are sold), constitutes a misrepresentation of fact regarding the source of the water used to brew Olympia beer. First, the phrase It s the Water does not make any representation of fact regarding the source of water used to brew Olympia beer, let alone the representation, as Plaintiff alleges, that the water used to brew Olympia beer is exclusively brewed using artesian water from Tumwater, Washington. Compl.. To the contrary, the phrase It s the Water is a generalized and vague slogan that is mere puffery. Broomfield v. Craft Brew All., Inc., No. -cv- BN 0V Case No. :-cv-00-tln-ckd

13 Case :-cv-00-tln-ckd Document - Filed 0// Page of BLF, 0 U.S. Dist. LEXIS, at *- (N.D. Cal. Sep., 0) ( Broomfield I ) (finding the phrase Liquid Aloha alongside pictures of surfboards on beer labels and packaging was non-actionable puffery), on reconsideration in part, Broomfield v. Craft Brew All., Inc., No. -cv-00-blf, 0 U.S. Dist. LEXIS (N.D. Cal. Nov., 0) ( Broomfield II ). No reasonable consumer would be misled into thinking Olympia beer is made using artesian water from Tumwater, Washington based on the wording and images used on the packaging and labeling. The words artesian, Tumwater, and Washington do not appear on the product label or in the slogan at issue. Plaintiff s alleged subjective impression of Olympia beer is unreasonable and implausible because it requires him to inject facts and representations that are not present on the packaging or advertising of the product. Specifically, Plaintiff s claim in this case would require the Court to rewrite the slogan It s the water to read It s the artesian water from Tumwater, Washington. But those bold, italicized words do not appear in any of Pabst s advertising, packaging, or labeling of Olympia beer cited by Plaintiff in his Complaint. Plaintiff does not and cannot allege any facts to support his subjective reading of the actual words on Olympia s label: It s the water. If Plaintiff actually believes what he alleges, then he is an unreasonable consumer and cannot maintain a claim under the UCL. Cruz, 0 U.S. Dist. LEXIS 0 at *0- (stating that [l]ikely to deceive means that it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled. ) (quoting Lavie, 0 Cal. App. th at 0). Moreover, the slogan It s the Water is not even visible to the consumer at the point of purchase; the slogan is included on the individual cans of Olympia beer, but not on the cardboard packaging in which the cans are sold. To see the slogan, the consumer would need to open the cardboard packaging and view the labels on the cans of Olympia beer inside the package. This issue may explain BN 0V Case No. :-cv-00-tln-ckd

14 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0 Plaintiff s failure to allege with specificity the particular circumstances surrounding his purchase of Olympia beer. For example, Plaintiff fails to allege whether he purchased a -pack or -pack of the beer, neither of which includes the slogan It s the Water. The case of Dumas v. Diageo PLC, No. cv BTM(BLM), 0 U.S. Dist. LEXIS (S.D. Cal. Apr., 0) is instructive here. In Dumas, the plaintiffs alleged that Diageo the brewer misled consumers to believe its Pennsylvania-brewed Red Stripe beer was exclusively brewed in Jamaica using Jamaican ingredients. Dumas, 0 U.S. Dist. LEXIS at *. Red Stripe was originally brewed in Jamaica, but moved its production to Pennsylvania in 0. Id. at *. The brewer continued to use the Red Stripe logo and the phrases The Taste of Jamaica in its advertising and packaging. Id. at *. In addition to using the phrase The Taste of Jamaica, marketing for the beer also included the phrase Jamaican Style Lager with the statement: For over 0 years Red Stripe has embodied the spirit, rhythm, and pulse of Jamaica and its people. Id. at *. The cans also included the TTB-compliant statement: Brewed & bottled by Red Stripe Beer Company Latrobe, PA. Id. at. The Dumas court granted defendant s motion to dismiss. The court found that the phrase The Taste of Jamaica is a vague and meaningless phrase and that the plaintiffs unreasonably interpreted the phrase literally by contending they were misled to believe that the ingredients came from Jamaica. The court reasoned that a reasonable interpretation of this phrase and the phrase Jamaican Style Lager is that the beer is made in a way that people identify with Jamaica (either a particular process and/or a certain recipe) and evokes the spirit or feeling of Jamaica. Id. at *. The court also held that the phrases and language at issue were a vague, colorful expression of Red Stripe s association with Jamaica and cannot reasonably be construed as a designation of origin. Id. at *-. Finally, the court rejected the plaintiffs contention that the Red Stripe logo was misleading. BN 0V Case No. :-cv-00-tln-ckd

15 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0 Here, like in Dumas, the phrase It s the Water is a vague and meaningless phrase. As a result, it is not an actionable representation of fact. Also like in Dumas, the fact that Olympia beer was historically brewed in Tumwater, Washington cannot serve as the basis for a false advertising claim simply because the brewing location and ingredients changed over time. Moreover, like the plaintiffs in Dumas, the Plaintiff here unreasonably and implausibly interprets the slogan It s the Water to include details and specific facts that do not appear in the slogan itself or in any of the other product labeling, packaging, or advertising. On that point, the Plaintiff s allegations in this case are even less reasonable and less plausible than the allegations in Dumas because the Plaintiff s claim here relies on a rewriting of the slogan and product advertising at issue to include specific words and representations that Pabst never made. In addition to Dumas, there are a number of other decisions that reinforce its analysis and holding. For example, in Broomfield I, 0 U.S. Dist. LEXIS at *-, the district court found that the phrase Liquid Aloha was akin to the slogan Taste of Jamaica and was not actionable. Likewise, in Parent v. MillerCoors Ltd. Liab. Co., No. :-cv-0-gpc-wvg, 0 U.S. Dist. LEXIS 0, at *- (S.D. Cal. Oct., 0), the court granted a motion to dismiss a UCL claim and found that the phrases craft beer and Artfully Crafted were not representations of fact regarding the brewing process. Here, as in Parent, the challenged advertising and packaging make no representations of fact regarding the ingredients used to brew Olympia beer. Similarly, in Cruz v. Anheuser-Busch, LLC, No. CV -00 AB (ASx), 0 U.S. Dist. LEXIS 0 (C.D. Cal. June, 0), the court rejected a UCL claim and found that the term lite used on packaging was not a representation of fact regarding the beer s calories. Like the plaintiff in Cruz, the Plaintiff here unreasonably and implausibly alleges that Pabst s advertising includes statements and representations Pabst never made. /// BN 0V 0 Case No. :-cv-00-tln-ckd

16 Case :-cv-00-tln-ckd Document - Filed 0// Page of /// 0 0. Pabst s Website Does Not Contain Any Representations of Fact Regarding Water. Plaintiff also alleges that he was exposed to Pabst s website before purchasing Olympia beer and that the website misled him as to the origin of the water used to brew Olympia beer. Pabst s website specifically states: First brewed in at a four-story wooden brewhouse near Puget Sound in Washington State, Olympia lager blends nature s finest raw materials from the Great Northwest s fields into an icon as stunning as the land itself. Crowned with a garland of fresh herbal hops, Olympia beer stands shoulders above other beers. Olympia Beer. It s the water. This historical narrative, however, is exactly that. A recitation of the history behind Olympia beer, which began in and which was first brewed in a wooden brewhouse. It does not represent any facts regarding its present day brew procedure or the water utilized to make the beer. Even assuming Plaintiff s allegation is true, it required an unreasonable logical leap by Plaintiff to understand Pabst s website to mean that Olympia beer is exclusively brewed using water from Tumwater. The remainder of the historical narrative fails to make any representation of fact regarding water. The only statement regarding beer ingredients refers to the hops and other raw materials sourced from the fields of the Great Northwest to make a beer as stunning as the land itself. Again, Plaintiff makes an unreasonable and implausible leap to allege that this refers to water. The only reference to water anywhere on this webpage is the slogan It s the water which, as detailed above, does not and cannot constitute a representation of fact regarding the water used to brew Olympia.. Pabst s Facebook Account is Not Misleading. Plaintiff also alleges that he was exposed to the Olympia Facebook account before he purchased Olympia beer and that a specific Facebook post dated BN 0V Case No. :-cv-00-tln-ckd

17 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0 September 0, 0 misled him into buying Olympia beer seven months later on April, 0 because the Facebook post purportedly represented that Olympia beer is exclusively sourced from Tumwater. Compl.. But the Facebook post makes no reference to Tumwater specifically or to the source of the water generally that was used to brew Olympia beer. It simply includes a variation of Olympia s slogan It s the Water i.e. It really is the water with a picture of a can being held in front of a waterfall. There is no representation of fact regarding Olympia beer, let alone a specific representation of fact that Olympia is brewed using water from Washington or from a waterfall. Instead, the Facebook post is part of the general branding campaign for Olympia beer to exhibit numerous outdoor locations where Olympia beer can be enjoyed. Plaintiff s Complaint also alleges facts in a selective and misleading fashion by, for example, excluding the comments to the cited Facebook post, which contradict and undermine his allegations. Indeed, the first two comments following the Facebook post note that Olympia beer has not been brewed in Olympia since 00 and that the water used to brew Olympia is not sourced from Tumwater. RJN, Ex.. Plaintiff either intentionally withheld his knowledge of these comments in his Complaint (and hence withheld his knowledge regarding the current water used to brew Olympia) or he was unreasonably and willfully ignorant when he viewed the Facebook post but failed to read the first two comments to the post. Either way, Plaintiff s claim fails because his allegations, if true, confirm he is an unreasonable consumer. Moreover, it is an unreasonable and implausible leap of logic for Plaintiff to assume that the water used to brew Olympia beer is the same water depicted in the picture of the waterfall.. The Picture of a Waterfall on the Olympia Label is Not Misleading. Plaintiff claims that he was misled by the picture of a waterfall depicted on the Olympia beer can is likewise far-fetched, unreasonable, and implausible. BN 0V Case No. :-cv-00-tln-ckd

18 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0 Plaintiff alleges that Pabst creates the impression that Olympia beer is being exclusively brewed using artesian waters from Tumwater, Washington by using imagery on the packaging which depict images of Tumwater, Washington. Compl.. But the product packaging does not identify the location of the depicted waterfall. The words Tumwater and Washington do not appear on the packaging. To reach the conclusion that the waterfall image on the product labels and packaging were from Tumwater, Washington, Plaintiff would need to have done some research beyond what appears on the labels and packaging themselves. But if Plaintiff did any research regarding Olympia beer or the location of the waterfall depicted on the product packaging, he would have discovered that the old Tumwater Brewery closed in 00. RJN, Ex.. In short, Plaintiff and his claim are caught in a Catch-. Either Plaintiff did not research the source of the image on the product packaging, in which case he has no reasonable or plausible basis for believing the image is from Tumwater, Washington. Or he did research the source of the image, in which case he has no reasonable or plausible basis for believing that Olympia beer is still brewed there. In either case, his claim fails as a matter of law and should be dismissed. B. Plaintiff s Unlawful Claim Under the UCL Fails as a Matter of Law Because the FDA Does Not Regulate Beer Plaintiff s UCL claim also fails as a matter of law because it is based on Section 000 of the California Sherman Food, Drug, and Cosmetic Law (Sherman Law). The Sherman Law incorporates Food and Drug Administration (FDA) regulations, which do not apply to alcoholic beverages, such as Olympia beer. Rather, the Federal Alcohol Administration Act (FAA), through The Alcohol and Tobacco Tax and Trade Bureau (TTB), exclusively regulates the alcoholic beverage industry. Peacock v. The st Amendment Brewery Cafe, LLC, No. - cv-0-jst, 0 U.S. Dist. LEXIS, at * (N.D. Cal. Jan., 0) (granting in part defendant s motion to dismiss under Rule (b)() on the grounds BN 0V Case No. :-cv-00-tln-ckd

19 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0 that the FDA does not have authority to regulate beer in the first place ); Cruz, 0 U.S. Dist. LEXIS 0, at * ( Plaintiffs urge the Court to take a profound step in allowing FDA regulations to apply to alcoholic beverages These arguments only make opaque what is already clear the FAA has exclusive jurisdiction in regulating alcoholic beverages. ) (citing Brown-Forman Distillers Corp. v. Mathews, F. Supp., (W.D. Ky. ) [holding that Congress intended to grant exclusive jurisdiction over the regulation of alcoholic beverage labeling to the ATF (now the TTB)]). As a result, Plaintiff cannot base his UCL claim on a purported violation of the Sherman Act, because that law does not apply here. Plaintiff and his counsel must be aware that the Sherman Act does not apply to this case because they recently litigated this precise issue in Peacock v. The st Amendment Brewery Cafe, LLC, No. -cv-0-jst, 0 U.S. Dist. LEXIS (N.D. Cal. Jan., 0) ( st Amendment Brewery ). The Peacock in the st Amendment Brewery case is the same Peacock in this case and he is represented by the same counsel. In that case, the District Court for the Northern District of California dismissed Plaintiff s UCL claim on the grounds that the FDA does not have the authority to regulate beer. st Amendment Brewery, 0 U.S.Dist.LEXIS at * (citing Cruz, 0 U.S. Dist. LEXIS 0 at *). Plaintiff s Complaint should be dismissed on this ground as well. C. Pabst s Use of the Phrase It s the Water is Sanctioned By Law, Which Provides a Complete Defense The California Supreme Court has recognized a safe harbor under the UCL for actions that the law actually bars, or for conduct the law clearly permit[s]. Parent, 0 U.S. Dist. LEXIS 0 at *0 (citing Cel-Tech Commc ns., Inc. v. Los Angeles Cellular Tel. Co., 0 Cal. th, ()). Although the unfair competition law s scope is sweeping, it is not unlimited. Courts may not simply impose their own notions of the day as to what is fair or BN 0V Case No. :-cv-00-tln-ckd

20 Case :-cv-00-tln-ckd Document - Filed 0// Page 0 of 0 0 unfair. Specific legislation may limit the judiciary s power to declare conduct unfair. If the Legislature has permitted certain conduct or considered a situation and concluded no action should lie, courts may not override that determination. Id. The doctrine applies whether state or federal law has authorized the conduct at issue. Id. (citing Von Koenig v. Snapple Beverage Corp., F. Supp. d 0, 0 (E.D. Cal. 00)). The TTB specifically addresses designation of origin on beer labels. Specifically, the TTB requires that beer labels contain the name of the bottler or packer and the place where bottled or packed. C.F.R.. (a)(). It further provides that [t]he bottler s or packer s principal place of business may be shown in lieu of the actual place where bottled or packed if the address shown is a location where bottling or packing operation takes place. Id. Importantly, the TTB empowers a TTB officer to disapprove the listing of a principal place of business if its use would create a false or misleading impression as to the geographic origin of the beer. Id. Here, the TTB approved the label for Olympia Beer on April, 0. RJN, Ex.. As a result, Pabst is entitled to safe harbor protection given its compliance with TTB regulations. D. Plaintiff Should Be Denied Leave to Amend A court can deny leave to amend if it determines that the pleading could not possibly be cured by the allegation of other facts. Lopez v. Smith, 0 F.d, (th Cir. 000) (en banc) (quoting Doe v. United States, F.d, (th Cir. )); see also Gardner v. Marino, F.d, 0 (th Cir. 00) (finding no abuse of discretion in denying leave to amend when amendment would be futile). Plaintiff is unable to cure the deficiencies in his Complaint because the slogan at issue is not a representation of fact that would mislead a reasonable consumer. Any amended allegation would necessarily still require unreasonable BN 0V Case No. :-cv-00-tln-ckd

21 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0 and implausible leaps in logic and understanding. As a result, the Court should deny Plaintiff leave to amend. E. Plaintiff s Claim is Not Pled with the Requisite Specificity. Rule (b) Applies to Claims Under the UCL. Federal Rule of Civil Procedure (b) requires that the circumstances constituting a claim for fraud be pled with particularity. Rule (b) applies not just where a complaint specifically alleges fraud as an essential element of a claim, but also where the claim sounds in fraud or is grounded in fraud. Vess v. Ciba-Geigy Corp. USA, F.d 0, 0-0 (th Cir. 00). Where Plaintiff has alleged a unified course of fraudulent conduct, Rule (b) s particularity requirement applies to the unlawful and unfair prong of the UCL in addition to the [] fraudulent prong. st Amendment Brewery, 0 U.S. Dist. LEXIS at * (quoting Hadley v. Kellogg Sales Co., F. Supp. d 0, 0 (N.D. Cal. 0). As a result, a court may dismiss a complaint if it fails to include the who, what, when, where, and how of the misconduct charged. st Amendment Brewery, 0 U.S. Dist. LEXIS at * (quoting Kearns v. Ford Motor Co., F.d 0, (th Cir. 00) and Vess, F.d at 0). Here, if the Court does not dismiss the Complaint without leave to amend based on the above arguments, there can be no credible dispute that Rule (b) applies to Plaintiff s claim because Plaintiff alleges that Pabst s actions constitute fraudulent business acts and practices Compl.. As detailed below, however, the Complaint is silent with respect to the Olympia beer Plaintiff purchased (e.g. -pack, -pack, etc.), the price he paid, when he first saw the It s the Water slogan on the Olympia beer can (it cannot be viewed on the cardboard package prior to purchase), when he viewed the Facebook post at issue (and why he did not read the accompanying comment to that post that Olympia beer is no longer brewed in Washington), when he viewed the Olympia beer webpage at issue, and when he first discovered that Olympia beer is brewed in Irwindale. BN 0V Case No. :-cv-00-tln-ckd

22 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0. Plaintiff s Claim is Not Sufficiently Pled Under Rule (b). Plaintiff alleges that he paid a premium price for the Olympia beer he purchased and that he would have paid less for the beer had he known it was not brewed in Washington. Compl.,. But he fails to specify what price he paid for the beer. Likewise, Plaintiff fails to specify when he first viewed Pabst s website or the Facebook post at issue. Instead, he vaguely alleges that he was exposed to Defendant s marketing messaging and impressions prior to purchasing the beer. Compl.. As detailed above, had Plaintiff looked at the first two comments listed below the image, he would have seen that Olympia is no longer brewed in Washington. In addition, had Plaintiff done any research into Olympia beer (including viewing the byline of the photo for the Tumwater Wikipedia page cited in paragraph to the Complaint), he would have discovered that the brewery in Washington closed in 00 and that Olympia beer is currently brewed in Irwindale, California. RJN, Exs.,. This, despite the fact that Rule (b) requires a plaintiff to state with particularity the circumstances constituting fraud. Fed. R. Civ. P. ; Von Koenig, F. Supp. d at 0. For each of these reasons, the Complaint falls far short of the heightened pleading requirements under Rule (b). F. Plaintiff Lacks Standing to Seek Injunctive Relief. Plaintiff Does Not and Cannot Show Threat of Future Injury. To seek injunctive relief, a party must have standing under Article III of the United States Constitution. Under Article III, a plaintiff must establish that he face[s] a real or immediate threat of future injury. Broomfield I, 0 U.S. Dist. LEXIS at *- (citation omitted). This standard requires a plaintiff to show that he is () unable to rely on defendant s representations in the future, or () may purchase the mislabeled product (as is) in the future. Broomfield II, 0 U.S. Dist. LEXIS at * (citing Davidson v. Kimberly-Clark Corp., F.d BN 0V Case No. :-cv-00-tln-ckd

23 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 0 0, (th Cir. 0)). As detailed below, Plaintiff does not and cannot allege either type of injury.. Plaintiff Cannot Demonstrate Injury Because He Does Not Allege an Inability to Rely on the Representations at Issue. Plaintiff alleges that he purchased Olympia beer and relied on the representations on the packaging. Compl.,. Plaintiff further alleges that he believed he was purchasing beer exclusively brewed using artesian waters from Tumwater, Washington. Id. Plaintiff allegedly was not aware that Olympia beer is brewed in Irwindale, California. Id. at 0. But Plaintiff does not allege his inability to rely on Defendant s advertising in the future. Broomfield II, 0 U.S. Dist. LEXIS at *. ( Complaint contains absolutely no allegation that Plaintiffs might purchase Kona beer under and incorrect assumption that the product is now brewed in Hawaii. ). Plaintiff does not allege that he does not know whether the products are brewed in Tumwater, Washington. Rather, Plaintiff states that he is aware that [t]he former Olympia brewery in Tumwater permanently closed in 00 and that Olympia beer today is brewed by a mega-brewery located in 0 W. st Street, Irwindale, California. Compl. -0. Accordingly, Plaintiff cannot establish injury because he cannot allege that he will be unable to rely on the Olympia beer s advertising or labeling in the future.. Plaintiff Cannot Demonstrate Injury Because He Does Not Intend to Purchase Olympia Beer As-Is In the Future. Plaintiff does not allege that he intends to purchase Olympia beer in the future as the beer is currently brewed. Instead, Plaintiff alleges that had he known the beer was not exclusively brewed in Washington, Plaintiff would not have purchased the beer. Compl.. Thus, by Plaintiff s own statements, there is no chance that he would suffer the same injury twice because he now knows the beer is brewed in Irwindale, California. Broomfield I, 0 U.S. Dist. LEXIS * BN 0V Case No. :-cv-00-tln-ckd

24 Case :-cv-00-tln-ckd Document - Filed 0// Page of 0 ( Even if Plaintiffs were to allege that they would purchase Kona beer again at its current price as it is currently brewed, such an allegation is inconsistent with their allegations that they would not have bought the beer, or would have paid significantly less for it, had they known it was not brewed in Hawaii. Plaintiffs now have knowledge that the beer is not in fact brewed in Hawaii, so they cannot show that they will be injured by [CBA] again in a similar way and that the future injury can be redressed by injunctive relief. ) (citation and internal quotations omitted). Moreover, since Plaintiff is not entitled to seek injunctive relief, he cannot represent a putative class seeking such relief. Id. at * (stating that in a class action context, [u]nless the named plaintiffs are themselves entitled to seek injunctive relief, they may not represent a class seeking that relief ) (citation and quotations omitted). As a result, Plaintiff s prayer for an injunction fails as a matter of law. IV. CONCLUSION For all the reasons stated above, Pabst respectfully requests that the Complaint be dismissed with prejudice. 0 DATED: April, 0, A Professional Corporation By: /s/ - Oren Bitan OREN BITAN MARK T. CRAMER GEMMA KARAPETYAN Attorneys for Defendant Pabst Brewing Company, LLC BN 0V Case No. :-cv-00-tln-ckd