Marquez v. Sazerac Company, Inc.

On January 7, 2023, Anna Marquez (“Plaintiff”), individually and on behalf of all others similarly situated, represented by Spencer Sheehan of Sheehan & Associates, P.C., filed a personal property fraud lawsuit against Sazerac Company, Inc. (“Defendant”), seeking injunctive relief and damages for alleged misrepresentation of a product. This case was filed in the U.S. District Court for the Northern District of Illinois, with Judge Mary M. Rowland presiding.

In the complaint, the plaintiff alleged that the defendant “manufactures, markets, and sells cinnamon whisky under the Fireball brand” and that “[w]ithin the past few years, purchasers noticed what appeared to be its availability ‘in supermarkets [and convenience stores] in small bottles for 99 cents.’”

Plaintiff then alleged that “what consumers were purchasing at non-liquor stores ‘[was] not whisky at all; even though ‘the[ir] labels are almost identical.’”

The plaintiff further alleged, “When consumers ‘look closer [they] will see that it is actually called simply’ ‘Fireball Cinnamon (notice there’s no Whisky after the word Cinnamon) [which] is actually a malt beverage’ flavored to taste like its cinnamon whisky (the ‘Product’).”

Plaintiff then alleged, “Unlike whisky which is a distilled spirit, a malt beverage is based on fermentation to create a neutral base to which flavors and colors may be added.”

The plaintiff also alleged, “While federal and identical state regulations allow the Product’s use of the distilled spirit brand name of Fireball, they prohibit the overall misleading impression created as to ‘Fireball Cinnamon’ version.’ [...] The bottles appear identical but for the word ‘Whisky’ on the front label, which most purchasers seeking alcohol will not even detect.”

Plaintiff then alleged, “As a result of the false and misleading representations, the Product is sold at a premium price, $0.99 for 50 mL.”

Additionally, the plaintiff alleged that “Defendant directly marketed the Product to Plaintiff through its advertisements and marketing, through various forms of media, on the packaging, in print circulars, direct mail, product descriptions, and targeted digital advertising.”

The plaintiff then alleged, “Defendant knew the product attributes that potential customers like Plaintiff were seeking and developed its marketing and labeling to directly meet their needs and desires, which was the consumption of distilled spirits instead of a malt beverage.”

Plaintiff further alleged, “The representations about the Product were conveyed in writing and promised it would be defect-free, and Plaintiff understood this meant it would contain distilled spirits in a nonde minimis or non-negligible amount. [...] Defendant had a duty to disclose and/or provide non-deceptive promises, descriptions and marketing of the Product.”

The plaintiff also alleged, “The Product was not merchantable because it was not fit to pass in the trade as advertised, not fit for the ordinary purpose for which it was intended and did not conform to the promises or affirmations of fact made on the packaging, container, or label, because it was marketed as if it would contain distilled spirits in a non-de minimis or non-negligible amount.”

Plaintiff then alleged, “Plaintiff reasonably and justifiably relied on these negligent misrepresentations and omissions, which served to induce and did induce, her purchase of the Product.”

Plaintiff presented six claims for relief, including for alleged violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, violation of State Consumer Fraud Acts, breach of express warranty, breach of implied warranty of merchantability/fitness for a particular purpose, violation of the Magnuson-Moss Warranty Act, negligent misrepresentation, fraud, and unjust enrichment.

In the prayer for relief, the plaintiff requested a judgment for preliminary and permanent injunctive relief directing the defendant to correct the challenged practices. The plaintiff also requested an award for monetary, statutory, and punitive damages together with costs of litigation. 

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