Alcohol isn’t tobacco, unfortunately for trial lawyers

Class action lawyers — led by David Boies III, son of famed litigator David Boies — continue to try to attack the alcohol industry the same way they did the tobacco industry, but with far less success. Back in June 2006 we reported that Boies the Younger had been racking up an impressive track record… of losing. His lawsuits are based on the marketing practices of the alcohol companies; the claim is that the advertising was aimed at (who else?) children. But the suits don’t allege any actual harms suffered by, well, anybody. Instead, they claim that the marketing caused the plaintiffs’ underage children to buy alcohol. Even with creative lawyering, the only damages that they could allege were that the kids spent their parents’ money on the alcohol.

The lower courts have laughed these suits out of court, and last month, in response to Boies’ appeals, the Sixth Circuit did the same (PDF), finding that the plaintiffs didn’t even have standing to bring the suits. And when they did so, they gave a little civics reminder of how our legal system is supposed to work:

In any event, if outlawing the actual sale and purchase is insufficient to remedy the alleged injuries (which is the premise underlying the plaintiffs’ theories), then outlawing mere advertising must be insufficient as well. Consequently, the plaintiffs cannot demonstrate redressability. If these plaintiffs are convinced that alcohol advertising (i.e., First Amendment commercial speech) should be outlawed, then the means must be by legislation or constitutional amendment, not by judicial fiat.

In a rational world, this would be the end of these trial lawyer efforts. But since there’s no loser pays, our legal system doesn’t work that way. Trial lawyers can keep filing these over and over again in state after state, tweaking their arguments slightly from time to time, hoping to win the lottery; all they need to do is prevail once to earn back their entire investment in this litigation scheme. Whereas the alcohol companies have to win every one of these suits to avoid a backbreaking financial penalty.

The Sixth Circuit’s opinion is short and to the point, but the decisions of the lower courts dismissing the plaintiffs’ suits give a flavor of how absurd the plaintiffs’ claims are. A few choice quotes:

  • “Plaintiffs claim that by exposing underage drinkers to alcohol advertising, Defendants are implicitly advertising that underage consumers can drink those beverages and this is tantamount to advertising a benefit that does not exist.” (Yes, this sort of sophistry — and Roy Pearson’s pants — is what “consumer protection” lawsuits amount to nowadays.)
  • “The Complaint does not indicate whether Plaintiff’s children were minors, whether they consumed any of Defendants’ products, whether they even viewed any of the advertisements, let alone whether any of Defendants’ ads had such a profound affect on her children that they were induced to use ‘family assets’ to illegally purchase any one of Defendants’ products. ”
  • “The MCPA creates a statutory duty to disclose material facts, but Defendants had no duty under the MCPA, or the common law, to disclose the either inherent dangers of consuming alcoholic beverages, or that alcohol would not make fantasies come to life. Nor did Defendants have a duty to disclose that underage drinking is illegal. ” (Again, this is what passes for a consumer protection claim.)
  • “Plaintiff argues that because of their age, minors are unable to appreciate or understand the deleterious affects of alcohol, or that Defendants’ ads that show “unrestricted merriment” after consuming alcohol are not true. However, to suggest that minors, especially teenagers, cannot reasonably be expected to discover the omission at issue, i.e., that alcohol does not make your fantasies come true, is untenable. To assert that minors, because of their age, cannot understand that alcohol does not, in fact, make everyone more attractive, transport them to a tropical paradise, or other similar scenarios that are common themes in alcohol ads is ridiculous at best. “
I know I’m disappointed to learn that alcohol doesn’t make me more attractive, and disillusioned to find that I’m not going to end up in a tropical paradise. (H/T: On Point News)

Earlier coverage: Dec. 2003.

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