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O'Hara v. Diageo-Guinness, USA, Inc.

United States District Court, D. Massachusetts

March 30, 2019

KIERAN O'HARA, Plaintiff.
v.
DIAGEO-GUINNESS, USA, INC. and DIAGEO NORTH AMERICA, INC., Defendants.

          MEMORANDUM AND ORDER

          WOLF, D.J.

         I. BACKGROUND

         Defendants Diageo-Guinness, USA, Inc. and Diageo North America, Inc. make and market Guinness Extra Stout ("Extra Stout"), a form of beer, for distribution in the United States. Plaintiff Kieran O'Hara filed a putative class action complaint alleging that he bought Extra Stout in part because defendants deceptively advertised that it was brewed at St. James's Gate brewery, Dublin, Ireland. Plaintiff alleges that Extra Stout was actually brewed in New Brunswick, Canada. Plaintiff also asserts that he paid more for the Extra Stout than he would have if defendants had disclosed its origin. Plaintiff subsequently filed an Amended Complaint with seven claims, including common law misrepresentation (Count I), unjust enrichment (Count II), unfair and deceptive practices in violation of Mass. Gen. Laws Chapter 93A (Counts III-VI), and a request for injunctive declaratory relief (Count VII). See Docket No. 4.

         Defendants moved to dismiss all counts of the amended complaint. See Docket No. 17. On March 29, 2018, the court issued a Memorandum and Order denying the motion to dismiss in part and allowing it in part. See Docket No. 35. More specifically, the court denied the motion as to Count I, and Counts III and IV to the extent that they alleged that the statements on defendants' website violated Chapter 93A. The court allowed the motion as to Counts III and IV to the extent that they alleged that the statements on Extra Stout bottle labels and cartons violated Chapter 93A. The court reasoned that dismissal of Counts III and IV as related to the bottle labels and cartons was justified because the Alcohol Tobacco Tax and Trade Bureau (the "TTB") had issued a Certificate of Label Approval ("COLA") concerning the allegedly deceptive statements on the bottles and on the cartons, providing the bottle labels and cartons safe harbor protection under Chapter 93A, §3. Id. at 35-43. The court then understood that the TTB's approval applied both to the challenged labels on Extra Stout's bottles and on its outer packaging, the cartons. Id. at 41-43. The court allowed the motion to dismiss as to all the remaining counts, and the requests for injunctive and declaratory relief. Id. at 50.

         Plaintiff filed a Motion for Reconsideration, pursuant to Federal Rule of Civil Procedure 60(b), of the decision dismissing Counts III and IV relating to the statements on the Extra Stout cartons. See Docket Nos. 44, 45. Plaintiff also filed a Motion to Amend the First Amended Complaint. See Docket Nos. 4 6, 47. In the Motion to Amend, plaintiff seeks to update the case caption, amend the class definition, and add a claim for alleged violations of Chapter 93A based on the Tariff Act, 19 U.S.C. §1304(a), and certain regulations, 19 C.F.R. §134.46, and 21 C.F.R. §101.18. Id. Plaintiff included a proposed Second Amended Complaint as an exhibit to his memorandum in support of the Motion to Amend, with Count IV of the proposed second amended complaint constituting the new claim plaintiff proposes. See Docket No. 47-1.

         For the reasons explained in this Memorandum and Order, the Motion for Reconsideration is being allowed because newly discovered evidence has prompted the court to recognize that it erred in finding that the TTB had approved the statements on the Extra Stout cartons. Therefore, Chapter 93A, §3 does not protect the statements on the cartons from potentially being found to be deceptive and/or to causing the labels on the Extra Stout bottles to be deceptive. The Motion to Amend is being allowed with regard to the case caption and the definition of the putative class, and denied without prejudice concerning the proposed new Chapter 93A claim.

         II. THE MOTION FOR RECONSIDERATION

         A. The Applicable Standard

         Motions for relief from judgment under Federal Rule of Civil Procedure 60 may be granted only in limited circumstances. Rule 60(b) gives the court the discretion to revise a final judgement when the party satisfies one of several stated grounds for relief. See Fed. R. Civ. Pr. 60(b). Rule 60(b) provides, in pertinent part, that a motion for reconsideration should be allowed when: (1) the moving party presents newly discovered evidence that is material to the court's decision; (2) there has been an intervening change in the law; or (3) the earlier decision was based on a manifest error of law or was clearly unjust. See United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009).

         Courts should not, however, permit motions for reconsideration to be used as vehicles for pressing arguments that could have been asserted earlier or for rearguing theories that have been previously advanced and rejected. See Palmer v. Champion Mortgage, 465 F.3d 24, 30 (1st Cir. 2006). "[S]imple disagreement with the court's decision is not a basis for reconsideration." Ofori v. Ruby Tuesday, Inc., 205 Fed.Appx. 851, 853 (1st Cir. 2006) .

         B. Analysis

         Plaintiff asserts that the court should reconsider and reverse its decision that the TTB approved the statements on the Extra Stout cartons and, therefore, that they cannot be found to be deceptive because of the safe harbor provided by Chapter 93A, §3.

         As explained in the March 29, 2018 Memorandum and Order:

Chapter 93A exempts a defendant's conduct from liability if the conduct is authorized under another statute. Specifically, Chapter 93A, §3 provides that "nothing in this chapter shall apply to transactions or action otherwise permitted under laws as administered by a regulatory board or officer acting under statutory authority of the commonwealth or of the United States." The defendant has the burden of proving that its conduct fell under this "safe harbor" exemption. See Aspinall v. Philip Morris Companies, Inc., 453 Mass. 431, 434-35 (2009). To sustain that burden, it "must show more than the mere existence of a related or even overlapping regulatory scheme that covers the transaction. Rather, [the] defendant must show that such scheme affirmatively permits the practice which is alleged to be unfair or deceptive." Bierig v. Everett Sq. Plaza Assocs., 34 Mass.App.Ct. 354, 367 n. 14 (1993); Greany, Chapter 93A Right and Remedies §6-4 (1992).
***
Courts applying Bierig, including this court, have held that Chapter 93A claims are precluded when a regulator authorized to review the defendant's actions has determined that those actions, in particular, were not unfair or deceptive.

Docket No. 35 at 12-13 (citations omitted).

         As also explained in the March 29, 2018 Memorandum and Order, the Federal Alcohol Administration Act (the "FAAA"), 27 U.S.C. §§201-219, regulates the sale of beer and other alcoholic beverages. Among other things, the statute requires that alcoholic beverages be "bottled, packaged, and labeled in conformity with regulations to be prescribed by the Secretary of the Treasury." 27 U.S.C. §205(e). These regulations must prohibit deception of consumers of the alcoholic beverage, Id. at 14-17.

         The responsibility and authority to prevent deception concerning alcoholic beverages has been delegated to the TTB. The relevant regulations require, among other things, that "each bottle of beer . . . show by label or otherwise . . . the place of production . . . ...


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