You’ll recall back in October we reported that the district court had certified the class in the action brought by consumers claiming they were mislead by Kona’s labels into purchasing the craft brewer’s beer because they believed it was made in Hawaii.
Similar to other statements or implications of origin labelling suits, a alcoholic beverage producer is sued for alleged inferences or direct statements of origin made on its labels. Plaintiffs allege that they would not have bought the beverage, and would have purchased a cheaper beverage, but for the labeling implications.
Kona thought the decision to certify the class against them was improper and they sought leave to appeal that decision to the Ninth Circuit Court of Appeals back in November shortly after the class was certified.
On Friday, the Court of Appeals denied Kona’s request for an appeal of the determination. While these orders are typically issued without much written support or comment, it is important here that at least one judge, Judge Gould, recognized what a denial of the appeal would mean for Kona and added a dissent expressing that fact which eloquently summarizes the pressures faced by Kona on account of the denial:
Judge Gould respectfully dissents and would grant the petition for the reasons that (1) certification may cause the defendant unduly to feel pressed to reach a settlement without regard to merits because of the size of the California market for beer; (2) certification could resolve important unsettled legal questions presented in the petition where the Supreme Court’s position may be uncertain, and thus certification could contribute to the development of the law; and (3) as for whether there is manifest error, that is less clear because of my view that the law is somewhat unsettled, but the importance of the issues to me favor review.
You can read a copy of the order from the 9th Circuit here (link).