In 2011 Old Chicago was sued over the change from 36-ounce steins to 22-ounce steins that the VIP members of the World Beer Tour get to fill for the price of a regular pint. This amended class-action complaint was filed in the case on September 30, 2011, alleging that the class of plaintiff’s suffered from a breach of contract and violations of the Colorado Consumer Protection Act (“CCPA”) when Old Chicago switched to the 22-ounce mugs in 2011 because Old Chicago had sent out a “promise” to VIP World Beer Tour members regarding the new mugs saying “Just as always, you can fill this mug with any draft beer you wish for the price of a pint!”.
Apparently, the claim is that it’s not “just as always” if you change from 36 to 22 ounces.
Old Chicago brought a motion to dismiss the CCPA claims (not the breach of contract claims) and the Court granted the motion in this opinion. Specifically, since the CCPA requires that the plaintiffs “rely” on the alleged misrepresentation, Old Chicago argued that the statement in the complaint wasn’t plead sufficiently to even create a plausibility that the proposed plaintiffs relied on the “just as always” statement. In dismissing the consumer protection cause of action, the Court noted that:
The Court finds that the [Plaintiffs’] allegation of reliance is implausible. Consumer fraud plaintiffs typically allege a fraudulent representation that occurs before the purchase that induced them to make it. See, e.g., Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 144, 148 (Colo. 2003). The 2010 email on which the [Plaintiffs] base the CCPA claim occurred after plaintiffs had become VIP WBT (World Beer Tour) members and used their VIP steins for years. They did not complete the ten WBTs to obtain VIP status in reliance on the “just as always” promise. Rather, the [Plaintiffs] root the CCPA claims in the theory that but for Old Chicago’s failure to inform them of the new mug’s smaller size, they would have foregone use of the larger mugs in the months leading up to the exchange. As to why the [Plaintiffs] – who collectively refilled their steins 5,720 times in the preceding years – would have deprived themselves of several months of larger pours, ostensibly in protest: “From Plaintiffs’ perspective as loyal customers, there is a difference between taking advantage of rights vindicated by a court and taking advantage of rights you know you are about to be cheated out of.” (Pls.’ Mem. in Opp’n, at 15, Nov. 2, 2011, Docket No. 19.) This distinction is too slender a reed on which to rest a consumer fraud action. The Amended Complaint fails to plausibly plead reliance.
This case is an important reminder about proceeding with promotions. The CCPA is similar to many other states’ consumer protection acts. Restaurants, brewers, vintners, distillers and anyone else making promises for marketing purposes or offering promotional deals like the World Beer Tour should ensure that there are plenty of proper disclaimers that seek to do things like limit liability, set the venue, cap damages, choose arbitration on an individual basis rather than as a class action – and certainly, reserve the right to change your promotions at any time.