Marek, et al. v. Molson Coors Brewing Company USA LLC

This case involves all Vizzy brand hard seltzer beverages, including all flavors and package sizes (the “Products”), purchased in the United States between January 1, 2020, and March 10, 2023 by adults over the age of 21 except for purpose of resale.

For purposes of Settlement only, the Court has conditionally certified the following Settlement Class: “All persons, other than Excluded Persons, who, between January 1, 2020 and March 10, 2023 purchased any Vizzy brand hard seltzer beverage in the United States, except for the purpose of resale.” Excluded Persons are: (1) the Honorable Judge William Orrick, the Honorable Iain D. Johnston, the Honorable Lisa Jensen, the Honorable William P. Dimitrouleas, the Honorable Jay Gandhi (Ret.), and any member of their immediate families; (2) any government entity; (3) Defendant; (4) any entity in which Defendant has a controlling interest; (5) any of Defendant’s subsidiaries, parents, affiliates, and officers, directors, employees, legal representatives, heirs, successors, or assigns; and (6) any persons who timely opt-out of the Settlement Class.

If the Settlement does not become effective (for example, because it is not finally approved, or the approval is reversed on appeal), then this lawsuit will continue.

Plaintiffs brought this lawsuit against Defendant for the marketing and labeling of the Products with the representation “with antioxidant vitamin C from acerola superfruit.” Plaintiffs contend that Defendant’s marketing and labeling of its Products misleads consumers about the beverage’s health properties. Plaintiffs contend that Defendant caused consumers to purchase the Products when they would not otherwise have done so and/or that consumers paid more for the Products as a result of the “with antioxidant vitamin C from acerola superfruit” claim.

Defendant denies there is any factual or legal basis for Plaintiffs’ allegations. Defendant contends that its Product labeling is truthful and accurate, denies making any misrepresentations and, therefore, denies any liability. Defendant further contends that Plaintiffs’ claims are preempted by federal law. Defendant also denies that Plaintiffs or any other members of the Class have suffered any injury or are entitled to monetary or other relief.

The Court has not determined who is correct.

The lawsuit seeks to recover, on behalf of all Class Members, money damages and an injunction to stop Defendant from labeling and marketing the Products with the claim “with antioxidant vitamin C from acerola superfruit.”

Plaintiffs filed this lawsuit on September 16, 2021, in the Northern District of California. Since then, Plaintiffs’ Counsel have investigated the manufacturing, marketing, and labeling of the Products. Plaintiffs’ Counsel has reviewed thousands of pages of documents produced by Defendant and served subpoenas on third parties. Witnesses from each party have given deposition testimony under oath, and Plaintiffs have retained an expert.

Counsel for both Plaintiffs and Defendant have determined that there is significant risk in continuing the litigation. Among the risks of continued litigation for Plaintiffs are the risks of failing to prove liability or restitution and damages on a class-wide or individual basis. In particular, there may be difficulties establishing: (1) that Defendant’s statements on the Product labels (and other advertising and marketing materials), as challenged by Plaintiffs, were likely to deceive reasonable persons; (2) that the alleged misrepresentations and omissions were material to reasonable persons; and (3) that damages or restitution should be awarded or, if so, that the amount of the award would be more than nominal.

On July 28, 2022, the Parties participated in an all-day mediation conducted by Honorable Jay Gandhi (Ret.), at JAMS. The Parties also participated in a continued mediation on August 12, 2022. After considering the risks and costs of further litigation, the parties have concluded that it is desirable to settle Plaintiffs’ claims on the terms of the Settlement Agreement.

Plaintiffs and their Counsel believe that the terms and conditions of the Settlement are fair, reasonable, adequate, and equitable, and that the Settlement is in the best interest of the Class Members. Defendant has agreed not to use the phrase “with antioxidant vitamin C from acerola superfruit” in connection with the labeling and marketing of in the Products. Plaintiffs’ expert has determined that the “with antioxidant vitamin C from acerola superfruit” representation led Class Members to pay an approximately 11% price premium for the Products. Based on this conclusion and Product sales data, Plaintiffs estimate that they could recover up to $36 million in damages on behalf of purchasers nationwide if they were completely successful at trial. By contrast, Defendant contends there was no price premium, the Products were priced identically to other hard seltzers, and Plaintiffs’ damages are $0.00. The Settlement creates a common fund of $9,500,000 and allows Settlement Class Members to file a Claim to obtain a Cash Payment up to as follows: five dollars ($5) per 24-pack Unit of the Product purchased; three dollars ($3.00) per 12-pack Unit of the Product purchased; and seventy-five cents ($0.75) per Single Can Unit of the Product purchased. This exceeds the damages that might be recovered at trial on a per-Unit basis. Furthermore, even if Plaintiffs succeeded at trial, it would be necessary for Class Members to make claims, because Defendant does not have records identifying the Class Members.

Settlement Class Members may file Claims to obtain a Cash Payment for Products purchased between January 1, 2020, and March 10, 2023 except for purposes of resale, regardless of the price the Settlement Class Member paid. Valid Claims will be paid according to the following procedures:

1. Settlement Class Members who submit a Valid Claim shall receive a Minimum Cash Payment of six dollars ($6.00), though the Cash Payment may be reduced depending upon the number of Valid Claims and the amount of the Settlement Fund devoted to other costs, such as Attorneys’ Fees and Expenses, notice and administration costs, and payments to the Class Representatives.
2. Settlement Class Members who submit a Valid Claim shall receive up to the following: five dollars ($5) per 24-pack Unit of the Product purchased; three dollars ($3.00) per 12-pack Unit of the Product purchased; and seventy-five cents ($0.75) per Single Can Unit of the Product purchased, subject to the restrictions set forth below, though the Cash Payment may be reduced depending upon the number of Valid Claims and the amount of the Settlement Fund devoted to other costs, such as Attorneys’ Fees and Expenses, notice and administration costs, and payments to the Class Representatives. A “24-pack Unit” means a single quantity of a 24-pack of the Product; a “12-pack Unit” means a single quantity of a 12-pack of the Product; and a “Single Can Unit” means a single quantity of a 24-ounce can or 16-ounce can of the Product.
3. A Settlement Class Member who does not provide valid Proof of Purchase may recover a maximum Cash Payment of fifteen dollars ($15.00), per Household.
4. All Claims submitted from the same Household shall be treated as a single Claim including for the purposes of meeting these maximums and the Proof of Purchase requirements.
5. The Settlement also provides for a permanent injunction that requires Defendant to phase out, and eventually stop using, the claim “with antioxidant vitamin C from acerola superfruit” in any Product Labeling or marketing.

“Proof of Purchase” means a receipt or other documentation, produced by a third-party commercial source (such as a store), that reasonably establishes the fact and date of purchase of the Product during the Class Period.

Claims will be paid a Cash Payment only if deemed valid and only after the Court approves the Settlement.

To make a Claim, you must fill out the Claim Form available on this Settlement Website. You can submit the Claim Form online, or you can print, complete and mail the Claim form available on the Important Documents page to the Claim Administrator at:

Vizzy Settlement Administrator
1650 Arch Street, Suite 2210
Philadelphia, PA 19103.

If submitted online, Claim Forms must be submitted no later than June 6, 2023. If mailed, claim forms must be postmarked by the Claim Administrator, no later than June 6, 2023. Cash Payments will be issued only if the Court gives final approval to the proposed Settlement and after the final approval is no longer subject to appeal. Please be patient as this may take months or even years in the event of an appeal.

Filing a Claim does not provide a guaranteed Cash Payment to you. A Final Approval Hearing will be held on July 12, 2023 at 2:00 p.m. If the Court approves the Settlement and there are no appeals, then Cash Payments on Valid Claim will be distributed within 60 days after the Settlement is no longer subject to appeal or review, unless otherwise ordered by the Court. If the Court does not approve the Settlement, or if the Settlement is overturned on appeal, no Cash Payments will be issued.

To date, Plaintiffs’ lawyers have not been compensated for any of their work on this case. Plaintiff’s lawyers will present evidence to the Court that they have spent nearly 800 hours litigating this case. In addition, Plaintiffs’ lawyers will present evidence that they have paid out-of-pocket expenses (including deposition transcript fees, court reporter fees, filing fees, service costs, copying costs, and travel expenses) of more than $75,000. None of these expenses has yet been reimbursed. As part of the Settlement, Plaintiffs’ lawyers may apply to the Court to award them no more than $2,500,000 to pay their attorneys’ fees and approximately $75,000 in out-of-pocket expenses.

In addition, the nine named Plaintiffs in this case may apply to the Court for incentive awards of between $2,500 and $5,000 each, for a combined total of not more than $35,000. These payments are designed to compensate the Plaintiffs for the time, effort, and risks they undertook in pursuing this litigation and for executing a broader release of claims than other Settlement Class members.

Plaintiffs and their lawyers have filed a motion with the Court in support of their applications for Attorneys’ Fees and Expenses and payment of Incentive Awards to the Plaintiffs. A copy of that motion is available on the Settlement Website. The Court will determine what amounts of fees, costs, expenses, and Incentive Awards to award.

The award of Attorneys’ Fees and Expenses will be paid to Plaintiffs’ lawyers within seven days after the Court grants Final Approval to the Settlement. If the order finally approving the Settlement is later reversed on appeal, Plaintiffs’ lawyers will be required to repay to the Settlement Fund the previously awarded fees, costs and expenses, plus interest.

If you are a Settlement Class Member and you do not Opt-Out from the Settlement, you will be legally bound by all orders and judgments of the Court, and you will also be legally bound to release the Released Claims as provided in the Settlement, even if you do not file a Valid Claim or receive a Cash Payment. This means that in exchange for being a Settlement Class Member and being eligible for the Cash Payments, you will not be able to sue, continue to sue, or be part of any other lawsuit against Molson Coors Beverage Company USA LLC and/or any of the Released Parties that involves the marketing, labeling or formulation of Vizzy Products with regards to the claim “with antioxidant vitamin C from acerola superfruit” from January 1, 2020 to the present.

You will not be responsible for any out-of-pocket costs or attorneys’ fees concerning this case if you stay in the Class.

Staying in the Class means that you agree to the following terms of the Settlement that describe exactly the legal claims that you give up:

1. Upon Final Approval, Settlement Class Members shall have unconditionally, completely, and irrevocably released and discharged the Released Parties from any and all claims that were, or could have been, asserted in the Litigation that arise out of or relate to the allegations in the Complaints described above that Defendant’s Vizzy product included unlawful, false, misleading or deceptive claims regarding its ingredients; (ii) the allegations that Defendant engaged in unfair or unlawful business practices with respect to the use of the “with antioxidant vitamin C from acerola superfruit” claim, and (iii) Defendant’s inclusion of acerola cherry juice and/or Vitamin C as ingredients in the Products. (the “Released Claims”), except that there shall be no release of claims for personal injury allegedly arising out of use of the Products. Upon Final Approval, Settlement Class Members shall be forever barred from initiating, maintaining, or prosecuting any Released Claims against Released Parties.
2. With respect to the released claims set forth in the preceding paragraph, each Settlement Class Member shall be deemed to have waived and relinquished, to the fullest extent permitted by law, the provisions, rights and benefits conferred by any law of any state of the United States, or principle of common law or otherwise, which is similar, comparable, or equivalent to section 1542 of the California Civil Code, which provides:
   

   A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

   
   The Settlement Class Members understand and acknowledge the significance of these waivers of California Civil Code section 1542 and any other applicable federal or state statute, case law, rule or regulation relating to limitations on releases. In connection with such waivers and relinquishment, the Settlement Class Members acknowledge that they are aware that they may hereafter discover facts in addition to, or different from, those facts that they now know or believe to be true with respect to the subject matter of the Settlement, but that it is their intention to release fully, finally, and forever all Released Claims with respect to the Released Parties, and in furtherance of such intention, the release of the Released Claims will be and remain in effect notwithstanding the discovery or existence of any such additional or different facts.
3. The Settlement Class Members shall be deemed to have agreed that the release set forth herein will be and may be raised as a complete defense to and will preclude any action or proceeding based on the Released Claims.
4. Nothing in this release shall operate to bar or release any claim for personal injury or property damage arising out of the use of the Product, nor shall anything in this release operate to bar any defense, cross-claim or counter-claim in any action initiated by any of the Released Parties against any Settlement Class Member.

You can Opt-Out if you wish to retain the right to sue Defendant separately for the Released Claims. If you Opt-Out, you cannot file a Claim or Objection to the Settlement. You need not exclude yourself if you merely want to retain a right to sue for personal injury arising out of your use of the Products.

To Opt-Out, you must complete the online form at the Settlement Website or mail an Opt-Out request to the Claim Administrator at Vizzy Settlement Administrator, Attn: Exclusions, P.O. Box 58220, Philadelphia, PA 19102, with copies mailed to Plaintiffs’ Counsel and counsel for Defendant. If mailed, the Opt-Out request must be signed by you, contain your full name, address, and phone number(s), and the following statement: “I/We request to Opt-Out from the settlement in the Vizzy Class Action.” The Opt-Out request must be submitted online or mailed to and received by the Administrator by June 6, 2023.

You can ask the Court to deny approval of the Settlement by timely filing an Objection with the Court. You may object to any aspect of the Settlement, including the fairness of the Settlement and/or any of the requested awards. If the Court denies approval to the entire Settlement, no Cash Payments will be sent out, and the lawsuit will continue. If that is what you want to happen, you must object.

You may also appear at the Final Approval Hearing, either in person or through your own attorney. If you appear through your own attorney, you are responsible for paying that attorney. If you want to raise an objection to the Settlement at the Final Approval Hearing, you must submit that objection in writing, by the Objection Deadline, May 19, 2023.

If you want to raise an Objection to the Settlement at the Final Approval Hearing, you must submit that Objection in writing to the Class Action Clerk for the Northern District of California at the address below, by the Objection Deadline set forth above. Any Objection must include: (1) a reference at the beginning to Marek, et al. v. Molson Coors Beverage Company USA LLC, Case No. 21-cv-07174-WHO; (2) your name, address, telephone number, and, if available, email address; (3) a detailed statement of your objection(s); (4) a statement as to whether you are requesting the opportunity to appear and be heard at the Final Approval Hearing; and (5) your signature as objector, in addition to the signature of your attorney, if an attorney is representing you with the objection. Failure to include this information and documentation may be grounds for overruling and rejecting your objection.

All the information listed above must be filed as a written objection with the Clerk of the Court at the address below, postmarked by mail, express mail, or personal delivery, such that the Objection is postmarked no later than the Objection Deadline. By filing an objection, you consent to the jurisdiction of the Court, including to any order of the Court to produce documents or provide testimony prior to the Final Fairness Hearing.

If you file an Objection to the Settlement but still want to submit a Claim in the event the Court approves the Settlement, you must still timely submit a Claim Form according to the instructions described above.

The Court will hold a hearing on July 12, 2023 at 2:00 p.m., to consider whether to finally approve of the Settlement. The hearing will be held in the United States District Court of the Northern District of California, before the Honorable William H. Orrick, in the San Francisco Courthouse, 450 Golden Gate Avenue, in courtroom 2 on the 17th Floor, or such other judge assigned by the Court.

The hearing is open to the public. This hearing date may change without further notice to you. For updated information on the hearing date and time, consult the Settlement Website at www.vizzysettlement.com or the Court docket in this case available for a fee through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102-3489, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays.

You can inspect many of the court documents connected with this case on the Settlement Website. Other papers filed in this lawsuit are available by accessing the Court docket in this case available for a fee through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays.

PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE ABOUT THIS SETTLEMENT OR THE CLAIM PROCESS.

You can contact the Claim Administrator at Vizzy Settlement Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103, or by telephone at (844) 509-3005.

You can also obtain additional information by contacting Class Counsel: