Beer distribution company calls motion to dismiss premature in false email complaint

By Heather Isringhausen Gvillo | May 21, 2015


A beer distribution company filed an opposition to another beer company’s motion to dismiss, calling the motion premature.

Robert “Chick” Fritz Inc. filed the lawsuit on Oct. 10 against Donnewald Distributing Co., Koerner Distributor Inc. and Jeff Jones alleging defamation.

According to the complaint, Chick Fritz, Donnewald and Koerner are all beer distributors in southern Illinois, and on April 9, Koerner employee Jones entered the Shop ‘N Save in Jerseyville and took pictures of a display selling Uinta Brewing Co.’s Hop Nosh IPA, a product distributed by Donnewald, at a reduced price. The lawsuit states Jones then emailed the photo to Uinta Brewing with a false email address, alleging to be Anne Fritz for Chick Fritz, and informed them that Donnewald was delivering expired beer to Shop ‘N Save. The plaintiff says Jones knew the email would cause damage to Koerner’s reputation for disparaging Donnewald, and that is why he pretended to be a representative of Chick Fritz, putting the company in a false light.

Then on April 11, Uinta Brewing forwarded the email to Donnewald to find out if the allegations were true, and Donnewald began disparaging Chick Fritz to its customers, potential customers and craft brewers and the public, telling people not to work with the company, saying it had “no integrity,” and calling its sales representatives “liars,” the lawsuit says.

The email stated, “Check out what your supposed partners are doing to your brand. This is chain augmented pricing across their geography. Pallet drops of out of code beer at every shop n save. Donnewald is not a craft distributor and is destroying your brand equity to a point where it will be unrecoverable. Sorry for the bad news.”

As a result, the complaint states, the Edwardsville Shop ‘N Save took Chick Fritz products off display and its store managers told Chick Fritz representatives that they worked for a “[bad] company.” Chick Fritz says it approached Shop ‘N Save upper management and was able to obtain a copy of the email and security footage showing Jones taking the photo, the suit states.

Donnewald distributing Co. filed an opposition to the plaintiff’s motion to dismiss on March 6, arguing that it “had no opportunity to pursue any discovery in support of its counterclaim, nor has it had an opportunity to depose plaintiff’s affiants.”

The defendant claims the motion was premature and should be denied.

“At the very least, the court should decline to rule on plaintiff’s motion until Donnewald has had an opportunity to pursue discovery in this case,” the opposition states.

Additionally, the plaintiff accuses Donnewald of failing to maintain a contribution claim under the Illinois Joint Tortfeasor Contribution Act because the plaintiff claims to have only pleaded intentional torts against Donnewald.

However, Donnewald claims the plaintiff “does not appear to be limited solely to intentional tort theories, but rather appears to encompass both intentional and negligence-based torts.”

“To the extent plaintiff is willing to stipulate that it is pursuing only intentional tort theories against Donnewald, and not any tort claims based on negligence or any other standard, Donnewald will agree to withdraw its claim for statutory contribution,” the opposition continues.

Donnewald also filed an opposition to the plaintiff’s motion for sanctions, arguing that neither Koerner nor Jones sent the email in question.

“Given this information, and that Fritz would have a competitive motive to make such a statement, Donnewald reasonably concluded and pleaded that Fritz was responsible for sending the email,” the motion states.

“Fortunately, litigants are not required to rely upon another party’s pleaded allegations as gospel truth,” it continues. “Another party’s allegations remain just that until they are proven at trial. Indeed, the entire purpose of the discovery process is to test those allegations against the available evidence, and to compel those individuals in possession of relevant evidence to disclose it so that allegations may be vetted. That the allegations of Donnewald’s counterclaim conflict with the allegations of Fritz’s complaint is neither noteworthy nor sanctionable. Rather, it is typical of contested litigation.”

The plaintiffs filed an amended complaint on May 4 through attorney Ryan J. Mahoney of Cates Mahoney LLC in Swansea.

Chick Fritz seeks more than $50,000 in damages plus punitive damages and costs of the suit.

Circuit Judge Barbara Crowder scheduled a status conference for June 24 at 9 a.m.

Kenneth L. Halvachs, Ronald J. Abernathy Jr. and Kevin T. Dawson of Halvachs & Abernathy LLC in Belleville represents Donnewald.

Todd W. Sivia and Paul A. Marks of Sivia Business & Legal Services, P.C., in Edwardsville represents Koerner Distributor.

Samuel A. Mormino of Mormino Velloff & Snider in Alton represents Jones.

Madison County Circuit Court case number 14-L-1384

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