Kona Brewing Co. and its owner, the Craft Brew Alliance Inc., can’t immediately appeal a decision certifying classes of California consumers who allege they were tricked into thinking Kona beers are made in Hawaii.

A split panel of the U.S. Court of Appeals for the Ninth Circuit Feb. 1 denied Kona’s request.

Dissenting Judge Ronald M. Gould said certification may cause Craft Brew Alliance “unduly to feel pressed to reach a settlement without regard to merits because of the size of the California market for beer.” Additionally, the company raised important unsettled legal questions, he said.

Only a fraction of food and beverage labeling suits have been certified as class actions. Immediate appeals from certification decisions aren’t frequently granted.

Theodore Broomfield alleged beers such as Longboard Island Lager and Big Wave Golden Ale come in packaging replete with illustrations of surfers and other images of Hawaii and Hawaiian culture. But they are brewed in less exotic locales like New Hampshire and Tennessee, he said.

Last year, the U.S. District Court for the Northern District of California certified classes of California consumers who bought six- and 12-packs of Kona beers.

The suit differs from most food-labeling class actions because the plaintiffs alleged the imagery was deceptive but didn’t challenge any statements about the beer, Kona arguedin seeking an immediate appeal.

Whether classwide liability can be based on imagery by itself is a question of first impression for the Ninth Circuit, Kona said.

Additionally, the district court didn’t adequately analyze whether the plaintiffs put forth an adequate classwide damages model, Kona said.

Faruqi & Faruqi, LLP and The Wand Law Firm represented the plaintiffs.

Shook, Hardy & Bacon LLP represented Craft Brew Alliance d/b/a Kona Beer.

The case is Broomfield v. Craft Brewing Alliance d/b/a Kona Brewing, Inc., 9th Cir., No. 18-80145, 2/1/19