KANSAS CITY - A putative class action that claims Canada Dry Ginger Ale does not contain ginger can proceed.
U.S. District Judge Roseann Ketchmark on April 25 denied a motion to dismiss brought by Dr. Pepper Snapple Group and Dr Pepper/Seven Up Inc. in a case that alleges that laboratory testing of the product does not contain "a detectable amount of ginger."
Lead plaintiff Arnold E. Webb claims that he and others relied on the product makers' "deceptive representation about the product, and believing that the product contained a detectable amount of ginger."
The litigation also claims that had Webb and others known that Ginger Ale did not contain a detectable amount of ginger they would not have purchased it, or would have paid substantially less at the checkout counter.
Webb claims alleged violations of the Missouri Merchandising Practices Act (MMPA), breach of express warranty, breach of implied warranty of merchantability, common law fraud, intentional misrepresentation, negligent misrepresentation and quasi contract/unjust enrichment/restitution. The proposed class seeks damages, restitution, declaratory relief and injunctive relief.
In her ruling, Ketchmark found that plaintiffs' pleadings sufficiently satisfied a federal rule requiring "particularity."
"[T]he court finds plaintiff has alleged a claim that is plausible on its face and satisfied Rule 9(b) particularity requirements," Ketchmark wrote. "Here, the plaintiff has sufficiently presented the “who,' “what," “where," “when," and “how” of his claims to survive a motion to dismiss under Fed. R. Civ. 9(b) with respect to the laboratory testing and the television advertising campaigns."
She further held that plaintiffs had pleaded sufficient facts to state claims for breach of express and implied warranty under Missouri statute, as well as on plaintiffs’ other claims.
"Plaintiff alleged that defendants were enriched by a benefit from plaintiff’s purchase of the product in that defendants retained monies paid to them by plaintiff ... the enrichment occurred at plaintiff’s expense because he was induced into purchasing the product and did not obtain the full value of the benefit conferred on Defendants ... and therefore, it would be unjust to allow defendants to retain the benefit," the ruling states.