An Ohio federal court has dismissed fraud and consumer-protection claims against Fifth Dimension, maker of Tito’s Handmade Vodka®, in a putative class action alleging the beverage company misrepresents the process of making its vodka by calling the product “handmade.” Terlesky v. Fifth Dimension, No. 15-0374 (S.D. Ohio, W. Div., order entered November 17, 2015).
The court analyzed each claim, first finding that the plaintiff did not have standing to sue under the Ohio Deceptive Trade Practices Act. Turning to the Ohio Consumer Sales Protection Act, the court determined that plaintiffs bringing class claims must show the alleged violation was declared to be deceptive by the attorney general or a court before the transaction. Finding no such facts in the case, the court dismissed the class claim but allowed the individual claim to proceed. The court also allowed the plaintiff’s promissory estoppel claim to continue.
Turning then to the negligent misrepresentation claim, the court agreed with Fifth Dimension in its argument that a plaintiff “may not maintain an action for negligent misrepresentation when the alleged misrepresentation is intended to reach an extensive, unresolved class of persons” rather than a limited class. The court also dismissed the fraud claim because the plaintiff alleged an economic harm only, not a physical or psychological injury. Quoting a 2003 decision, the court found that “to allow such claims to proceed would be to eradicate the viability of the tort system by overcompensating buyers and creating inefficient incentives for manufacturers.”