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Defendant.
Plaintiff Ethel Thomas (“Plaintiff”), by and through her counsel, hereby files this Class
Action Complaint, individually, and on behalf of all others similarly situated, and alleges against
Defendant Phusion Projects, LLC d/b/a Drink Four Brewing Co. (“Phusion”), as follows:
named Four Loko (“Four Loko”), which comes in a variety of fruity flavors.
3. Due to this effect, Four Loko has gained significant popularity, particularly with
4. The fact is, since the caffeine in Four Loko masks the effects of alcohol, it tricks
users into believing they can keep drinking well past the point of drunkenness. As such, this
5. In an effort to continue reaping large financial gains from the sale of Four Loko,
Phusion has omitted from its advertising and promoting of Four Loko these harmful effects.
6. This Court has jurisdiction over the subject matter presented by this Class Action
Complaint because it is a class action arising under the Class Action Fairness Act of 2005
(“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005), which explicitly provides for the original
jurisdiction of the Federal Courts of any class action in which any member of the plaintiff class
is a citizen of a state different from any defendant, and in which the matter in controversy
exceeds in the aggregate the sum of $5,000,000.00, exclusive of interest and costs. Plaintiff
alleges that the total claims of the individual members of the Plaintiff Class in this action are in
7. As set forth below, Plaintiff is a citizen of Florida, and Phusion can be considered
U.S.C. § 1332(d)(2)(A). Furthermore, Plaintiff alleges on information and belief that more than
two-thirds of all of the members of the proposed Plaintiff Class in the aggregate are citizens of a
state other than Florida, where this action is originally being filed, and that the total number of
members of the proposed Plaintiff Class is greater than 100, pursuant to 28 U.S.C. §
1332(d)(5)(B).
set forth below, Phusion conducts business in, and may be found in, this district, and Plaintiff
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PARTIES
County, Florida.
10. Phusion is a corporation organized and existing under the laws of the state of
Delaware. It maintains its headquarters at 1658 Milwaukee Avenue, Suite 424, Chicago, IL
60647, and lists with the Delaware Division of Corporations an authorized agent for service as:
Jaisen Russell Freeman, 1658 Milwaukee Avenue, Suite 424, Chicago, IL 60647. Phusion
conducts business in this jurisdiction and in this judicial district by advertising and through the
distributors and retailers that deliver and sell its product to consumers.
11. Plaintiff alleges, on information and belief, that at all times relevant herein,
Phusion and its employees, subsidiaries, affiliates, and other related entities, were the agents,
servants and employees of each other, and at all times relevant herein, each was acting within the
purpose and scope of that agency and employment. Plaintiff further alleges, on information and
belief, that at all times relevant herein, the distributors and retailers who deliver and sell Four
Loko, the alcoholic beverage at issue, also were Phusion’s agents, servants and employees, and
at all times herein, each was acting within the purpose and scope of that agency and employment.
12. Whenever reference in this Class Action Complaint is made to any act of the
Phusion, such allegation shall be deemed to mean that the principals, officers, directors,
authorized, ratified and/or directed that act on behalf of Phusion while actively engaged in the
13. All allegations herein are based on information and belief and/or are likely to
have evidentiary support after reasonable opportunity for further investigation and discovery.
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FACTUAL ALLEGATIONS
14. Phusion markets and sells through retailers various flavored caffeinated alcoholic
15. Four Loko was created in 2005 by three Ohio State University students, who had
noticed that university students were mixing alcohol and caffeine. Between 2007 and 2009, Four
Loko became available in 46 American states and in Europe. The drink has been dubbed as
“blackout in a can.”
16. Four Loko contains 12% alcohol and comes in flavors such as fruit punch, orange
blend, grape, watermelon, blue raspberry, kiwi strawberry, lemonade, cranberry lemonade, and
lemon lime. It is sold in a 23.5-ounce can, which when consumed, can be as potent as drinking
four to six beers. According to experts, one can of Four Loko contains the equivalent of 6 cans
17. Normally, when an individual consumes too much alcohol, he or she falls asleep.
When consuming Four Loko, however, an individual will stay awake from the caffeine, even
18. Several studies have suggested that individuals become more intoxicated and
engage in riskier behavior when they drink the combination of alcohol and caffeine rather than
when they drink alcohol alone. 1 Caffeine masks the effects of alcohol, tricking users into
believing they can keep drinking well past the point of drunkenness, which in turn causes
sickness and alcohol poisoning. At the same time, caffeine does not change the level of blood
1. See EXHIBIT A, attached hereto and incorporated herein, FDA Press Release, dated November 17, 2010,
available at http://www.fda.gov/forconsumers/consumerupdates.
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alcohol content, therefore it does nothing to reduce the deleterious effects associated with
drinking alcohol. 2
19. At least six states have already banned the drink, including New York,
Massachusetts, Michigan, Washington, Utah and Oklahoma because, inter alia, the colorful
packaging and fruitful flavors are designed to attract inexperienced and/or under-age drinkers.
20. The United States Food & Drug Administration (the “FDA”) recently stated that
Four Loko has “Serious concerns over alcoholic beverages with added caffeine.” 3
21. According to the FDA, “[r]eports in the scientific literature have raised concerns
regarding the formulation and packaging of pre-mixed products containing added caffeine and
alcohol. For example, these products, presented as fruity soft drinks in colorful single-serving
packages, seemingly target the young adult user. Furthermore, the marketing of the caffeinated
adults.”4
22. Moreover, the caffeine content of Four Loko “could result in central nervous
23. Furthermore, the consumption of Four Loko may result in adverse behavioral
outcomes because the caffeine is likely to counteract some, but not all, of the adverse effects of
alcohol. 6
2. Id.
3. Id.
5. Id.
6. Id.
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24. In fact, numerous incidents of hospitalization and several deaths have been
reported as a result of individuals consuming Four Loko. These include, but are not limited to,
the following:
b. On September 17, 2010, a 20-year old college student fatally shot himself after a
30-hour partying binge consisting of consuming Four Loko.
d. On November 5, 2010, a 21-year old died after drinking two cans of Four Loko
and crashing her vehicle into a telephone pole. Her friends stated that after
consuming Four Loko, “[s]he was not the same person,” and “[s]he could not
remember people’s names. She was passed out within 30 minutes of having the
alcoholic beverage.”
25. Plaintiff purchased Phusion’s Blue Raspberry Four Loko, on October 31, 2010,
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26. The following image of the labeling of Four Loko is similar in all material
27. Plaintiff viewed the above labeling which was material to her decision to purchase
28. Given the harmful effects of Four Loko, as set forth in detail above, Plaintiff has
been misled by Phusion into purchasing and paying for a product that was not safe to consume,
and that she has, as a direct result, suffered actual damages in that she has been deprived of the
benefit of her bargain and has spent money purchasing Four Loko at a price premium when Four
Loko actually had less value than was reflected in that price she paid for Four Loko.
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29. Almost immediately after consuming Four Loko, Plaintiff became ill and her
illness continued for several days. Had she known the harmful effects of consuming Four Loko,
she would not have purchased it and would not have consumed it.
30. Phusion has deceptively omitted the true nature of its Four Loko alcoholic
beverage and failed to warn consumers of the dangerousness of its product. Phusion has also
deceitfully packaged its product to appeal to inexperienced and/or under-age drinkers, who are
either trying to become rapidly intoxicated, or are unaware what they are getting themselves into.
Further, Phusion fails to warn and educate purchasers that the contents contain the equivalent of
31. As a result of its deceptive and unfair marketing of Four Loko, Phusion has been
32. On or about November 16, 2010, under heavy pressure from the FDA and state
governments across the country, Phusion announced its plan to remove caffeine and other
sources of the stimulant from its Four Loko beverage products. This announcement was made
just prior to the FDA’s warning letter, planning to ban the drink from the market.
33. Phusion released a statement stating that it planned to remove caffeine, guarana
and taurine nationwide and that Phusion will only produce non-caffeinated versions of Four
CLASS ALLEGATIONS
34. Plaintiff re-alleges and incorporates by reference the allegations set forth in each
7. Rob Stein & Jenna Johnson, Maker of Four Loko to Remove Caffeine From Alcoholic Drinks, WASH. POST,
November 17, 2010, available at http://www.washingtonpost.com/wp-
dyn/content/article/2010/11/16/AR2010111606149.html.
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35. Pursuant to Fed. R. Civ. P. 23, Plaintiff brings this action on behalf of herself and
a Class of persons comprised of all consumers who purchased Four Loko for personal, family or
household purposes in the State of Florida during the past four years (the “Class”). Phusion’s
advertising and promotional practices as detailed above were applied uniformly to all members
of the Class throughout the relevant time period, so that the questions of law and fact detailed
herein are common to all members of the Class. All Class members were and are similarly
affected by purchasing Four Loko for its intended and foreseeable purpose as promoted,
advertised, packaged, and labeled by Phusion and as set forth in detail above.
36. Based on the annual sales of Four Loko and their popularity, the number of
purchasers of Four Loko would likely be in the many thousands, thereby making individual
joinder impossible. The Class is therefore so numerous that joinder of all members would be
impracticable. Questions of law and fact common to the Class exist and predominate over
(a) Whether Phusion’s practices and representations made in connection with the
labeling, advertising, marketing, promotion and sales of Four Loko were
deceptive, unlawful or unfair in any respect, thereby violating Florida’s Deceptive
and Unfair Trade Practices Act (“FDUTPA”), section 501.201, et seq. Florida
Statutes;
(b) Whether Phusion was unjustly enriched because of its unlawful conduct;;
(c) Whether Plaintiff and the Class was injured and, if so, the amount of damages or
other economic relief to be awarded; and
(d) Whether Phusion should be enjoined from engaging in the practices complained
of herein.
37. The claims asserted by Plaintiff in this action are typical of the claims of the
members of the Class, as the claims arise from the same course of conduct by Phusion, and the
relief sought is common. Plaintiff will fairly and adequately represent and protect the interests of
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the members of the Class. Plaintiff has retained counsel competent and experienced in both
38. Certification of this class action is appropriate under Fed. R. Civ. P. 23 because
the questions of law or fact common to the Class members as detailed above predominate over
questions of law or fact affecting only individual members. This predominance makes class
litigation superior to any other methods available for the fair and efficient group-wide
adjudication of these claims. Absent a class action remedy, it would be highly unlikely that other
Class members would be able to protect their own interests because the cost of litigation through
39. Certification is also appropriate because Phusion has acted or refused to act, and
continues to act, on grounds generally applicable to the Class, thereby making appropriate final
injunctive relief with respect to the Class as a whole. Further, given the large number of
consumers of Four Loko, allowing individual actions to proceed in lieu of a class action would
40. A class action is a fair and appropriate method for the adjudication of the
controversy, in that it will permit a large number of claims to be resolved in a single forum
simultaneously, efficiently, and without the unnecessary hardship that would result from the
prosecution of numerous individual actions and the duplication of discovery, effort, expense and
41. The benefits of proceeding as a class action, including providing a method for
obtaining redress for claims that would not be practical to pursue individually, outweigh any
difficulties that might be argued with regard to the management of this class action.
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COUNT I
FOR VIOLATIONS OF FLORIDA’S DECEPTIVE
AND UNFAIR TRADE PRACTICES ACT,
FLA. STAT. § 501.201, ET SEQ.
42. Plaintiff realleges and incorporates by reference the allegations contained in the
43. Phusion violated and continue to violate Florida’s Deceptive and Unfair Trade
Practices Act by engaging in unfair methods of competition, unconscionable acts and practices,
and unfair and deceptive acts and practices in the conduct of their business.
44. The omissions alleged herein constitute deceptive and unfair trade practices, in
that they were intended to and did deceive Plaintiff and the general public into believing that
Phusion’s Four Loko product was safe to consume, when in fact, as set forth in detail above, it
has harmful effects, including, but not limited to, causing sickness and alcohol poisoning, and
even death.
45. Had Plaintiff known that Four Loko would cause such harmful effects, she would
46. As a result of Phusion’s deceptive and unfair acts, Plaintiff and Class members
have been damaged in the amount of the difference between the premium price paid for Four
Loko and the price they would have paid had they not been misled through Phusion’s omissions,
47. Phusion’s conduct offends established public policy, and is immoral, unethical,
48. Plaintiff and Class members are entitled to damages in an amount to be proven at
trial.
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49. Phusion should also be ordered to cease their deceptive advertising, and should be
made to engage in a corrective advertising campaign, to inform consumers that Four Loko is
equivalent to six beers and two cups of coffee and moreover, that it causes harmful effects
including, but not limited to, sickness and alcohol poisoning, and even death.
COUNT II
UNJUST ENRICHMENT
50. Plaintiff realleges and incorporates by reference the allegations contained in the
51. Phusion has benefited from its unlawful acts by receiving excessive revenue
derived from the sales of Four Loko herein alleged. Phusion appreciated and/or knew the
52. This excessive revenue has been received by Phusion at the expense of Plaintiff
and other members of the Class, under circumstances in which it would be unjust for Phusion to
53. In this regard, Phusion did not provide Plaintiff or other members of the Class
what they bargained for. Four Loko is worth less than Plaintiff and other members of the Class
paid for it. Plaintiff has made a demand for the return of such monies, but that has been refused.
54. Therefore, Plaintiff and other members of the Class are entitled to the
establishment of a constructive trust consisting of the benefits conferred upon Phusion in the
form of its excessive revenue derived from the sale of Four Loko, from which Plaintiff and other
Class members may make claims on a pro rata basis for restitution.
prays for relief pursuant to each cause of action set forth in this Complaint as follows:
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1. For an order certifying the action may be maintained as a class action, certifying
Plaintiff as representative of the Class, and designating their counsel as counsel for the Class;
(a) Enjoining Phusion from making any claims for Four Loko found to violate
FDUTPA or that are otherwise deemed misbranded, as set forth above;
(c) Requiring Phusion to disgorge all ill-gotten gains flowing from the
conduct described in this Class Action Complaint.
conferring upon and enriching Phusion in the form of its excessive revenue derived from the sale
of Four Loko, from which Plaintiff and other Class members may make claims on a pro rata
6. For an award of costs and any other award the Court might deem proper; and
JURY DEMAND
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