Suit Over Smaller Beer Steins Loses Some Head

(CN) - A federal judge has scaled back some claims over downsized Old Chicago mugs available to VIP members of the restaurant chain's World Beer Tour.

Old Chicago offers World Beer Tour membership to patrons who have bought a glass of all 110 beers available at its restaurants. Members obtain VIP status and a beer stein when they complete 10 tours of the 110 beers.A 36

Up until fall 2010, Old Chicago steins could hold 36 ounces, more than twice as much as a typical pint glass. VIP members could bring their 36-ounce stein to any Old Chicago location and have it filled for the price of a pint.

When the restaurant shrank stein sizes to 22 ounces, a group of VIP members filed suit.

They claimed that the Old Chicago's corporate parent, Rock Bottom Restaurants, breached its contract by decreasing stein sizes. Michael Lex and Katie Kugler-Lex belong to a subclass that claims Rock Bottom violated the Colorado Consumer Protection Act (CCPA) by not disclosing the smaller size of the new steins when promoting the mugs in an email sent two months before VIP members received the new mugs in the mail.

U.S. District Court Judge John Tunheim in Minneapolis dismissed the CCPA claims with prejudice Monday.

"Consumer fraud plaintiffs typically allege a fraudulent representation that occurs before the purchase that induced them to make it," Tunheim wrote (emphasis in original). "The 2010 email on which the Lex plaintiffs base the CCPA claimed occurred after plaintiffs had become VIP WBT 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 Lex 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 Lex 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.' This distinction is too slender a reed on which to rest a consumer fraud action."

Though the Lexes alleges violations of five CCPA provisions, four of the provisions "are patently inapplicable," according to the court.

"Two provisions require advertisements of a product with intent not to sell the product as advertised," the decision states.

But Rock Bottom's email "was not selling anything; it was announcing a replacement mug in the rewards program that the restaurant would provide for free," Tunheim wrote.

The judge also concluded that the claims did not satisfy the two other provisions, which require that an advertisement make a false statement.

"The only sentence of the email alleged to be fraudulent - 'just as always, you can fill this mug with any draft beer you wish for the price of a pint' - was accurate on its face," he wrote. "Plaintiffs could (and can) continue to fill their steins for the price of a pint. The steins are simply smaller." (emphasis and parentheses in original)

The plaintiffs can still pursue claims for breach of contract.

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