An insurer that issued commercial umbrella policies to a company that makes flavorings ingredients, including those used in butter-flavored microwave popcorn, is seeking a declaration that it has no obligation under those policies to defend or indemnify the company in lawsuits alleging respiratory injury from exposure to diacetyl. Continental Cas. Co. v. Citrus & Allied Essences Ltd., No. 650548/2011 (N.Y. Sup. Ct., filed February 28, 2011). More than 50 diacetyl lawsuits have apparently been filed against the ingredients supplier by individuals alleging workplace exposures. The insurer contends among other matters that it was not timely notified about some of the suits, the injuries did not occur during the policy coverage period, pollution exclusions preclude coverage, and the insured has settled lawsuits without the insurer’s consent.
Tag Archives New York
The New York City Department of Health and Mental Hygiene has announced a new advertising campaign designed “to educate New Yorkers about the potentially serious health effects of consuming sugary drinks.” With the tagline “Pouring on the Pounds,” the health department’s latest installment features subway advertisements and a new TV commercial, the latter of which has sparked debate over its allegedly graphic content, including a close-up of a diabetic’s decaying toes. According to a January 31, 2011, press release, the 30-second spot aims to illustrate “how a daily routine of just a few sweetened drinks can cumulate to a whopping 93 packets of sugar by the end of the day.” “Too many sugar-sweetened drinks are fueling the obesity epidemic. Obesity and the serious health consequences that result are making hundreds of thousands of New Yorkers sick or disabled,” said New York City Health Commissioner Thomas Farley. “This new campaign shows…
A federal district court in New York has granted the motion for summary judgment filed by Snapple Beverage Corp. in a case alleging that the company misled consumers by labeling its teas and juice drinks as “All Natural” because the company’s beverages contain high-fructose corn syrup (HFCS). Weiner v. Snapple Beverage Corp., No. 07-8742 (S.D.N.Y., decided January 21, 2011). The court had previously denied plaintiffs’ motion for class certification but determined, despite that denial, that it could decide the merits of the summary judgment motion even though the lawsuit now failed to satisfy the requirements of original diversity jurisdiction. The defendant argued that the plaintiffs did not offer any evidence showing injury from Snapple’s “All Natural” labeling, and the court agreed. Analyzing each claim—violation of a state deceptive practices law, unjust enrichment, and breach of express and implied warranty—the court found that the plaintiffs failed to present reliable evidence that they…
A federal court in New York has entered an order approving the pre-trial discovery and motions scheduling order agreed to by the individual plaintiffs remaining in the litigation alleging that fast-food marketing caused adverse health effects related to obesity. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., order filed December 15, 2010). Under the terms of the agreement, fact discovery will close November 30, 2011; expert discovery will close April 30, 2012; and briefing on motions for summary judgment will end August 30, 2012. The court denied the plaintiff’s motion for class certification in October; additional details about the ruling appear in Issue 370 of this Update.
A judge from the U.S. Court of International Trade, sitting by designation in a New York federal district court, has determined that the obesity-related claims filed in 2002 against McDonald’s Corp. cannot be pursued as a class action. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., decided October 27, 2010). Essentially, the court found that individual causation issues predominated over common ones and that, as to any common issues, the plaintiffs had failed to show that the putative class was sufficiently numerous for the court to certify an issues class. A spokesperson reportedly indicated that the company was pleased with the decision, stating, “As we have maintained throughout these proceedings, it is unfair to blame McDonald’s for this complex social problem.” Teenagers alleging obesity-related health problems claimed that they were misled by the fast food chain’s deceptive advertising into believing that the food could be consumed daily without any adverse health effects.…
Twenty-seven waiters, busboys and others at New York City’s Del Posto restaurant have reportedly filed a lawsuit against owner Mario Batali and partners Joseph and Lidia Bastianich, claiming that they were not paid a legal wage. The plaintiffs allege that the restaurant’s managers pooled workers’ tips in violation of state labor laws and wrongfully withheld a portion of the gratuities on wine and cheese sales. The tip pool was allegedly divided on the basis of a point system, and the plaintiffs also reportedly contend that staff working banquets did not get their proper share of the service charge billed to customers, instead receiving a flat fee. The suit, which is at least the third involving a Batali-owned facility, seeks back pay, unspecified damages and attorney’s fees. See msnbc.com, October 12, 2010.
The New York State Office of Temporary and Disability Assistance has approved and submitted to the U.S. Department of Agriculture (USDA) a New York City proposal “to exclude sugar-sweetened beverages, the largest single contributor to the obesity epidemic, from the list of allowable purchases through the nation’s food stamp program (also known as Supplemental Nutrition Assistance Program, or SNAP),” according to an October 7, 2010, press release. Unveiled by Governor David Paterson (D) and New York City Mayor Michael Bloomberg (I), the initiative would prohibit the city’s food stamp users from buying soft drinks and other sugar-sweetened beverages for up to two years while researchers study the ban’s impact. If accepted by USDA, the plan would define sugar-sweetened beverages “as those containing more than 10 calories per 8 ounces (except fruit juices without added sugar, milk products and milk substitutes).” It would also provide for “a rigorous evaluation . . .…
Snapple Beverage Corp. has requested that a federal district court dismiss the individual claims remaining in litigation alleging that the company misled consumers by labeling beverages containing high-fructose corn syrup (HFCS) as “all natural.” Weiner v. Snapple Beverage Corp., No. 07-8742 (S.D.N.Y., motion filed September 17, 2010). In August 2010, the court issued an order denying plaintiffs’ request to certify a statewide class of claimants. Additional information about that order appears in Issue 363 of this Update. According to the defendant’s memorandum of law supporting its motion, while the plaintiffs “seek recovery of an alleged ‘price premium’” that they paid for the products, they (i) do not know how much they actually paid for Snapple, (ii) made no effort to determine how comparable products were priced when they purchased Snapple beverages, (iii) lack any receipt to document a Snapple purchase, (iv) “cannot recall with any certainty the price they paid…
A federal court in New York recently refused to certify a statewide class of consumers who allege that Snapple Beverage Corp. misled them by marketing its products as “all natural” when they actually contain high-fructose corn syrup (HFCS). Weiner v. Snapple Beverage Corp., No. 07-8742 (S.D.N.Y., order entered August 5, 2010). The court apparently determined that individual issues, such as causation, injury and damages, would predominate over common ones. According to the court, “Individualized inquiries would be required to determine, for instance whether class members were fully informed about the inclusion of HFCS in Snapple beverages, whether they believed HFCS to be natural, and whether they continued to purchase Snapple despite their beliefs concerning HFCS. Such individual issues would also dwarf any issues of law or fact common to the class.” The court also reportedly determined that the named plaintiffs did not proffer a suitable methodology for establishing causation and…
A New York bankruptcy court will reportedly allow Chemtura Corp. to resolve 90 percent of the respiratory disease claims pending against it for $50 million, or one-third of the $150 million sought by factory workers allegedly exposed to the popcorn-flavoring ingredient diacetyl. In re: Chemtura Corp., No. 09-11233 (S.D.N.Y., settlement approved August 23, 2010). Responding to claims by co-defendants that the settlement may not meet “good faith” requirements, the court reportedly indicated that it was “within the range of reasonableness.” The settlement will apparently resolve 15 lawsuits and 347 proofs of claim filed by individuals alleging personal injury from diacetyl exposure. The company has indicated that eight additional individual and five corporate diacetyl claims remain pending. According to a news source, the company has also reached an agreement with its insurers to cover half the cost of the settlement and provide up to a maximum of $10 million to indemnify…
