Kenneth Lowe Nov. 4, 2014, 11:47am

A federal judge late last month refused to certify a class for those aggrieved by agave.

Amy Langendorf filed a lawsuit in November 2011 in Chicago’s federal court, alleging that Skinnygirl Cocktails LLC was putting out a pre-mixed margarita with lofty claims it was made with “100% Blue Agave” when in fact it was not.

“Defendants falsely claim that ‘Skinnygirl Margarita’ is made with ‘100% Blue Agave clear tequila’ when in fact it appears to have been made with a lower-quality and lower purity tequila by-product called mixto - essentially a mash of tequila and some unknown additives (rarely organic) which may comprise as much as 49 percent of the final mixed liquor,” Langendorf argued in her original suit.

Skinnygirl --a label made famous by Bethenny Frankel, a reality TV star who appeared on The Apprentice and Real Housewives of New York -- includes a range of various kinds of hard liquor and cocktail mixes often marketed as all-natural or otherwise healthier than other brands of adult beverages.

Frankel, as well as SGC Global LLC and Beam Global Spirits & Wine Inc., are also named as defendants in Langendorf's lawsuit that sought class action status.

In addition to the claims of being less than all-natural, Langendorf accused Skinnygirl of putting in “carcinogenic preservatives.”

“Skinnygirl also falsely labels its margarita as ‘all-natural,’ ‘with natural flavors’ and ‘the margarita you can trust,’” Langendorf alleged.

The suit cites Frankel’s personal endorsement of the margarita and its purportedly all-natural ingredients. Neither Frankel nor the product’s bottle made any mention of the preservative sodium benzoate, “an unnatural carcinogenic preservative,” which was discovered in the product and ultimately caused health-food grocery store chain Whole Foods to remove the cocktail from its shelves, according to the suit.

Langendorf, in bringing her action, sought to designate a class of plaintiffs that would have included anybody in Illinois who had purchased Skinnygirl margarita spirits since March of 2009.

In an Oct. 30 ruling, U.S. District Judge Manish S. Shah denied the class certification request, saying that while the definition of the proposed class made sense, Langendorf did not lay out any strategy for finding members of the class.

“[Langendorf] has not offered any method by which the court could find out who the purchasers were,” Shah wrote. “[Langendorf] says class membership can be verified by the dates of purchase, the locations of retail establishments, the frequency of purchases, the quantity of purchases, and the cost of purchase ... but does not offer any showing that this can be done.”

Shah also cited Skinnygirl’s concerns that Langendorf’s counsel, Larry D. Drury of Chicago-based Larry D. Drury Ltd., could have a potential conflict of interest.

Shah said in his ruling that Langendorf’s father, who is an attorney, apparently recommended Drury as counsel and that the two men have worked together on at least five other class action suits, including complaints filed after the one in question.

“Indeed, the father’s name and contact information appeared in the signature block of written discovery responses in this case (and no one has explained why),” Shah wrote, noting that Drury has also brought class action suits on behalf of other members of Langendorf's family.

Langendorf's suit will proceed, just not as a class action. Court records show a status hearing is set for Nov. 13.

In her complaint, Langendorf alleges violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of express warranty, breach of implied warranty, breach of contract and unjust enrichment.

She is seeking damages and an injunction against Skinnygirl’s continued sale and distribution of the margaritas in question.

Besides Drury, court records show that Langendorf is being represented by Chicago attorney James R. Rowe.

Chicago attorneys Francis A Citera and Paul Joseph Ferak of Greenberg Traurig are representing Skinnygirl Cocktails and SGC Global. Beam Global Spirits & Wine is represented by Richard J. Keating Jr. and Christopher T. Sheean of Swanson, Martin & Bell in Chicago and Michael Samalin, Donald I. Strauber , Stacey Trimmer Mary T. Yelenick and Kimberly Zafran of Chadbourne & Parke LLP in New York.

California attorneys Laura Diane Castner, Suann Caulfield Macisaac, Patricia Anne Millett and Howard Weitzman of Kinsella Weitzman Iser Kump & Aldisert are representing Frankel.

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