United States District Court, D. Massachusetts
KIERAN O'HARA, Plaintiff.
DIAGEO-GUINNESS, USA, INC. and DIAGEO NORTH AMERICA, INC., Defendants.
MEMORANDUM AND ORDER
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.
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.
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.
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.
MOTION FOR RECONSIDERATION
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).
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) .
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,
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
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).
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.
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 . . . ...