Tunick v. Takara Sake USA Inc.

Background

Colby Tunick alleged that Takara deceptively labeled and marketed three Sho Chiku Bai products as made in Japan even though they were produced in California: Sho Chiku Bai Nigori Unfiltered Sake, Sho Chiku Bai Classic Junmai, and Sho Chiku Bai Tokubetsu Junmai. He identified three alleged Japanese-origin representations: Japanese lettering on the front labels, the “Licensed by TaKaRa Japan, Since 1851” gold emblem, and the Japanese phrase “Sho Chiku Bai.” Tunick alleged that he bought a 375 mL bottle of Nigori Unfiltered Sake in San Diego and would not have bought it, or would have paid significantly less, if he had known it was not made in Japan.

Tunick asserted claims under California’s Consumers Legal Remedies Act, False Advertising Law, and Unfair Competition Law, along with claims for breach of express warranty, breach of implied warranty, and unjust enrichment. He proposed a class consisting of all persons who, during the class period of February 8, 2019, through the present, purchased one or more of the products in California for purposes other than resale at a retail location or online.

Rule 23 Requirements

The court found that the proposed class satisfied Rule 23(a)’s requirements of numerosity, commonality, typicality, and adequacy. Although the parties disputed the number of products sold and whether Tunick bought the product he identified, the court reasonably inferred that at least 40 people purchased one or more of the products during the class period. The same alleged label representations created a common question: whether they would mislead a reasonable consumer into believing that the products were made in Japan.

The court also found Tunick’s claims typical of the class. Takara relied on a declaration from Manny Keriakos, who said that a store where Tunick claimed to have made his purchase did not stock the 375 mL product. The court found that declaration insufficient at the certification stage to show that Tunick did not purchase the sake at all. The court also concluded that inconsistencies in Tunick’s recollection could be addressed through cross-examination and were not likely to become the main focus of the litigation.

The court found Tunick adequate to represent the class because he showed basic familiarity with his claims, the label features involved, and his role as class representative. The court also found his counsel adequate; Takara did not contend that counsel’s representation was deficient.

Rule 23(b)(3) Damages Class

Rule 23(b)(3) requires common questions to predominate over individual questions and requires a class action to be superior to other methods of resolving the dispute. The court found the superiority requirement satisfied because the cost of individual litigation would exceed the likely recovery of an individual consumer.

The court nevertheless denied certification of the damages class. Takara presented evidence that some online listings did not clearly display or make readable the “Licensed By” emblem and that some stores or online listings identified the products as made in California or the United States. The court held that individual questions about whether online purchasers were exposed to the emblem would predominate over common issues for a damages class. Online purchasers remained in the proposed class, but their individual exposure to the emblem would have to be assessed.

The court also found a mismatch between Tunick’s theory of liability and his proposed damages model. Tunick alleged that consumers were misled by three origin-related representations, but his damages model attempted to measure only the price premium attributable to the gold “Licensed By” emblem. His survey did not isolate the effect of that emblem from the brand name, Japanese characters, imagery, bottle shape, and other label features. Because the model did not reliably measure damages attributable to the alleged conduct supporting liability, the court denied certification under Rule 23(b)(3).

The court rejected a separate challenge to the implied-warranty claim based on lack of direct contractual relationship between Tunick and Takara. It held that California’s “foodstuffs” exception to the usual direct-sale requirement applies to these beverages, so Tunick did not need to show direct contractual relationship with the manufacturer for purposes of class certification.

Rule 23(b)(2) Injunction-Focused Class

Rule 23(b)(2) permits certification when the defendant acted on grounds generally applicable to the class and injunctive or declaratory relief would be appropriate for the class as a whole. The court found that Tunick had standing to seek an injunction because he alleged that he would buy the products in the future if he could know with confidence that they were made in Japan. The court held that this alleged inability to rely on Takara’s labeling created an actual and imminent threat of future harm.

The court certified a Rule 23(b)(2) class for Tunick’s claims under the California Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act. It held that Takara’s alleged labeling practices applied generally to the class because the representations appeared on the products’ labels. The fact that some online purchasers may not have been able to read the emblem did not defeat certification under Rule 23(b)(2), which does not require common issues to predominate in the same way as Rule 23(b)(3).

Disposition

Judge Thomas S. Hixson granted in part and denied in part Tunick’s motion for class certification. The court granted certification of an injunction-focused class under Rule 23(b)(2) and denied certification of a damages class under Rule 23(b)(3). It appointed Tunick as class representative and Treehouse Law, LLP and Clarkson Law Firm, P.C. as class counsel. The parties were directed to meet and confer about proposed class notice, and the court set a further case-management conference for October 16, 2025.