In a nonprecedential summary order, the Second Circuit Court of Appeals has affirmed a lower court ruling against Kosher Sports, Inc., a New Jersey-based provider of kosher food products, which had a 10-year contract with Queens Ballpark Co., the company that operates Citi Field, where the New York Mets play their home games. Kosher Sports, Inc. v. Queens Ballpark Co., LLC, No. 12-2162 (2d Cir., decided March 12, 2013). Kosher Sports claimed that the operating company breached the agreement by refusing to allow it to sell Glatt Kosher hot dogs and sausages and other products on Friday nights and Saturdays. It also claimed that Queens Ballpark failed to provide a suitable location for the company’s fourth cart to sell its products at the stadium. The court found that the unambiguous terms of the contract simply “set forth [Kosher Sports’] ‘rights’ to advertising space, tickets, and freedom from competition” but did…
Tag Archives New York
Immediately after a New York court determined that the New York City Department of Health and Mental Hygiene lacked the authority and a rational basis to adopt a prohibition on the sale of sugary beverages in containers larger than 16 ounces, the city filed a notice of appeal, which will reportedly be heard during the first week of June 2013. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No. 653584/12 (N.Y. App. Div., filed March 12, 2013). Declaring the rule invalid, the state’s supreme court—New York’s trial court—enjoined and permanently restrained the city from implementing or enforcing it. The “Portion Cap Rule” was set to take effect on March 12, but New York Supreme Court Judge Milton Tingling, after exploring at length the scope of the Department of Health’s authority as reflected in city charters dating back to the 1600s, found that it…
The North American Olive Oil Association has brought an unfair competition and false advertising action against The Gourmet Factory claiming that it sells its Capatriti® brand as “100% Pure Olive Oil” when it is actually made from “leftover olive skins and pits using a combination of chemical solvents and high temperatures.” N. Am. Olive Oil Ass’n v. Kangadis Food Inc., d/b/a The Gourmet Factory, No. 113-868 (S.D.N.Y., filed February 6, 2013). The process apparently creates a byproduct referred to as “pomace,” and the complaint alleges that products containing pomace may not be marketed and labeled as olive oil under “an array of olive-oil making conventions, standard industry practices, international regulations, and federal and state laws.” The association allegedly purchased tins of the defendant’s product from store shelves in New York and New Jersey and shipped them to an expert in Italy for testing, which purportedly confirmed the presence of chemicals and…
A company that issued Citrus and Allied Essences Ltd. a commercial umbrella insurance policy in 2006 and 2007 has filed suit in a New York state court seeking a declaration that it is not obligated to defend the food-flavoring company in suits by those alleging respiratory injury from diacetyl exposure or to pay damages. Cont’l Cas. Co. v. Citrus & Allied Essences Ltd., No. 650158/2013 (N.Y. Sup. Ct., N.Y. Cty., filed January 17, 2013). According to the complaint, Citrus and its other insurers have claimed that the primary insurance policies for those years have been exhausted by settlements with plaintiffs in the underlying lawsuits. According to the umbrella insurer, however, because the bodily injury did not take place during the policy period, those other policies have not been exhausted. The insurance plaintiff also seeks to recover the amount it paid under a reservation of rights to cover a “shortfall” to…
The NAACP’s New York state branch and the Hispanic Federation have joined those arguing in court that New York City’s restrictions on the size of sugary beverages sold by certain vendors, such as corner stores and delis, should not take effect on March 12, 2013. During the January 23 hearing, opponents, including several City Council members, apparently argued that the rule should have been adopted by the elected City Council rather than the mayor’s appointed health board and that it was too narrow, exempting certain other types of beverages and excluding convenience stores and supermarkets, to be fair. The American Beverage Association and groups including movie theater owners and Korean grocers were expected to oppose the rule, but the issue is reportedly complex for minority advocates in light of high obesity rates in the African-American and Hispanic communities. Still, these groups claimed in an amicus brief that the rule will…
A New York resident has filed a putative nationwide class action against the company that makes Red Bull energy drinks, alleging that the product does not, as advertised, “give you wings,” that is, provide more benefit than a cup of coffee. Careathers v. Red Bull GMBH, No. 12-369 (S.D.N.Y., filed January 16, 2013). According to the complaint, the defendants allegedly base their claims that the product will “significantly improve a consumer’s physiological and mental performance beyond what a simple cup of coffee or caffeine pill would do” on scientific studies. The plaintiff claims, “there is no genuine scientific research and there are no scientifically reliable studies in existence that support the extraordinary claims of Defendants.” The complaint outlines the beverage’s history and development, beginning as tonic created in Thailand in the 1980s, and cites research that analyzed energy drink ingredients and concluded, “With the exception of some weak evidence for…
Ruling that the named plaintiff’s claims are not typical of those of the putative class in a false-labeling suit brought against the companies that made and marketed Skinnygirl Margaritas®, a federal court in New York has denied his motion for class certification. Rapcinsky v. Skinnygirl Cocktails, L.L.C., No. 11-6546 (S.D.N.Y., decided January 9, 2013). The named plaintiff, a Massachusetts resident, allegedly purchased the product in that state as a gift for his wife who had indicated that she had been served the beverage during a party with friends and liked it. He brought the suit under New York statutes that apply to products purchased in New York and involve deceptive acts or practices involving in-state residents. He also claimed common-law breach of warranty. According to the court, the laws invoked do not protect the plaintiff’s purchases. While his alleged injury may be the same as class members, the plaintiff, “having not…
Soft drink manufacturers and restaurateurs have reportedly requested that the court reschedule oral arguments in their challenge to a New York City prohibition on the sale of sweetened beverages in sizes that exceed 16 ounces. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No. 653584/2012 (N.Y. Sup. Ct., filed October 12, 2012). Additional details about the case appear in Issue 458 of this Update. According to a news source, the industry interests seek oral argument before January 2013, claiming it will take up to three months to “retool” their operations to comply with the new requirements, which will take effect in March 2013, if upheld by the court. City attorneys have apparently decided not to oppose the request, noting that everyone’s interest will be served if the matter is “resolved sooner rather than later.” See Reuters, December 5. 2012.
A coalition of industry and union interests has filed a petition seeking to enjoin or invalidate the New York City (NYC) Department of Health prohibition on the sale of certain sugar-sweetened beverages in servings exceeding 16 ounces from certain types of business establishments. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No. 653584/2012 (N.Y. Sup. Ct., N.Y. Cty., filed October 12, 2012). The coalition contends that the Board of Health acted beyond its powers in adopting the prohibition and that it is arbitrary and capricious in its design and application. Members of the coalition include trade associations for Korean-American grocers, restaurants, beverage makers, and theater owners, as well as the Hispanic Chamber of Commerce and a soft drink and brewery workers union local. According to the petition, the rule does not apply to beverages higher in calories than soft drinks, including alcohol-based drinks, wines,…
A coalition of industry and union interests has filed a petition seeking to enjoin or invalidate the New York City (NYC) Department of Health prohibition on the sale of certain sugar-sweetened beverages in servings exceeding 16 ounces from certain types of business establishments. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No. 653584/2012 (N.Y. Sup. Ct., N.Y. Cty., filed October 12, 2012). The coalition contends that the Board of Health acted beyond its powers in adopting the prohibition and that it is arbitrary and capricious in its design and application. Members of the coalition include trade associations for Korean-American grocers, restaurants, beverage makers, and theater owners, as well as the Hispanic Chamber of Commerce and a soft drink and brewery workers union local. According to the petition, the rule does not apply to beverages higher in calories than soft drinks, including alcohol-based…
