BUL 4310 USC Law Tomasella v Nestle USA Inc Case Study

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BUL 4310

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The completed paper should be from 2,200 to 2,800 words, with that total not counting the citations, the footnoted materials, or any bibliography or title page. While writing more than 2,800 words will NOT lead to a penalty (you won’t be rewarded either!), writing less than 2,200 words likely will be penalized. Please submit it in Microsoft Word. In the papers themselves, a common failing, among other things, is the absence of sources for various statements which are not yours (that you got from somewhere but have not cited). Put in footnotes one or more sources for every statement that you make which should require documentation (that is not simply your own thought). My paper is about Tomasella v. Nestle USA, Inc and I have attached an outline I wrote for it. I have also attached a sample paper "Apple v Pepper" that shows the correct format and writing style.

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1 BUL4310 Term Paper: Apple v. Pepper June 28, 2020 Nila Parvathy 2 Introduction Our world today is highly characterized by technology and its direct implications. While this resource is revolutionary, it is also very new. When it comes to the court case Apple v. Pepper, we are given the opportunity to gauge the realms in which technology exists and how it should develop. Since phenomenons such as phone applications are characterized by their novelty, it is essential that the law develops precedents surrounding such complexities. In this day and age, the law lacks stability when it comes to understanding the digital world, as it is growing at such a fast pace. In the field of business law, the growth of smart technology poses a completely new set of dilemmas that need a resolution. Some of these issues include, privacy, ownership, and monopolization. By analyzing Apple v. Pepper, the role of monopolies in the digital world will be specifically addressed. Currently there is still a lot of uncharted territory in terms of law when it comes to technological platforms such as the app store. The current era of technological emergence will serve to generate a need for more laws in relation to this growth. This specific court case will stand as a precedent for many future matters. Apple v. Pepper The case of Apple v. Pepper specifically looks at whether the app store is monopolizing the app market. With the creation of the Apple iPhone, the app store was established as a market in which apps could be sold to consumers. While Apple has some of its own apps, the majority are made by outsiders or third party developers. Many of these third party app makers did not think it was fair for Apple to take 30% of the profits generated by all apps. Some consumers of these apps also did not like the price hike associated with this rule. Due to this, multiple plaintiffs 3 decided to file a complaint against Apple. Specifically speaking, Apple was believed to be creating a monopoly out of the app store in the eyes of the plaintiffs (Pepper). 1 A major development assessed in the case was whether app purchasers were indirect or direct consumers of apple. Apple, as a company, pushed forth the idea that these consumers were indirect simply because the app store is a distributor not a creator. 2 Apple also supported their claim by referencing an older case, Illinois Brick co. v. Illinois. This court case does not allow indirect customers to sue a corporation. The plaintiffs of the Apple v. Pepper case, on the other hand, believe that since Apple generated a profit from the transaction, it is a direct relationship. The holding issued agreed with the plaintiffs perspective. The final ruling held that consumers have the right to sue Apple.3 It was made clear that one could only sue if they have evidence proving that the high prices had a major impact on them. The supreme court ultimately ruled that the Illinois Brick co. v. Illinois case could not be applied here because the format of the app store was completely different than a conventional logistical network. 4 App consumers purchase apps directly from the app store, so Apple should be held liable alongside the app developers. Apple, even after the end of the case, strongly identifies that app consumers purchase apps from a third party directly. Apple plays no part in the creation of most apps, they just push forth a platform for which the apps can be sold and used. Moreover, they believe that it is unfair 1 Apple v. Pepper. (n.d). Oyez. Retrieved May 28, 2019, from https://www.oyez.org/cases/2018/17-204 2 Besada, B., & Idicula, I. (2018, November 20). Apple Inc. v. Pepper. Retrieved May 28, 2019, from https://www.law.cornell.edu/supct/cert/17-204 3 Kifleswing. (2019, May 13). Apple failed to close off a big antitrust threat, but it probably won't feel the harm for years. Retrieved June 30, 2019, from https://www.cnbc.com/2019/05/13/apple-v-pepper-supreme-courtloss-little-harm-now-long-term-threat.html 4 Li, E. (2019, February 04). Apple v. Pepper: Will Economic Realities or Contractual Formalities Prevail at the Supreme Court? Retrieved May 28, 2019, from https://news.law.fordham.edu/jcfl/2019/02/04/apple-vpepper-will-economic-realities-or-contractual-formalities-prevail-at-the-supreme-court/ 4 for them to be blamed for the both the prices of apps (by consumers) and the 30% charge (by third party app makers).5 The plaintiffs, on the other hand, push forth the idea that Apple is taking advantage of both app consumers and developers. They believe that Apple should stop its role in price hiking apps in the app market. In a 5 to 4 ruling, the supreme court decided that consumers could sue apple for monopolizing the app market because they are in fact direct customers.6 This sets up a prominent precedent that can have a lasting impact on future technological dilemmas. Future Implications As regarded by Stare decisis, a ruling made by the highest court must be followed as precedent.7 This is a prevalent happening in common law nations. Since the recent growth of smart technology has been rapid, there is still a need for new laws to help provide a guideline for future endeavors. Certain smart technologies today exist along a frayed line of legality. For instance, Facebook highlighted the topic of privacy recently when they were directly called out for taking advantage of people’s information without true consent. With the growing use of social media, privacy is something that the law must address. Cases like Apple v. Pepper serve to remind us that the law must be constantly updated and changed to stay in tune with current involvements. When it comes to specific future implications in regards to Apple v. Pepper, it can be seen even within Apple’s own platforms. In regards to the music streaming service of Apple 5 Besada, B., & Idicula, I. (2018, November 20). Apple Inc. v. Pepper. Retrieved May 28, 2019, from https://www.law.cornell.edu/supct/cert/17-204 6 Savage, D. G., & Hussain, S. (2019, May 13). Supreme Court rules Apple can face antitrust suits from iPhone owners over App Store sales. Retrieved June 30, 2019, from https://www.latimes.com/politics/la-na-polsupreme-court-apple-smart-phone-20190513-story.html 7 Emerson, R. W. (2015). Business law. Hauppauge, NY: Barrons. 5 music, some may argue that it creates a monopoly within the field. Spotify, a major streaming service, has gone on to call out Apple for monopolizing the music streaming industry as a whole. Spotify created a video addressing its complaints about Apple’s approach to restricting competition. In the video, Spotify points out that Apple charges them a 30% tax. They claim that Apple purposefully does this to keep Spotify from charging lower prices than them. 8 In the video, it is specifically noted that Apple, “sets itself up as a referee and player in the world of audio streaming.”9 This creates an inequitable playing field in the music streaming industry. With the recent ruling of Apple v. Pepper, companies like Spotify can be pushed to consider legal action against Apple. This case creates a narrative wherein which Apple can in fact be limited from its power hungry tendencies. Spotify and other competitors can find this precedent useful when standing up against this major tech giant. As seen in Spotify’s message, Apple’s role as a technological superpower needs to be limited. The law needs to take into consideration the effects of monopolization when it comes to smart technology. Apple v. Pepper serves as the first major ruling in regards to prohibiting the monopolization of technological markets. Since it found Apple at fault, it can push major companies to become more cautious in their growth efforts. Alongside the introduction of new platforms and inventions exists the need for regulatory laws. Personal Analysis When it comes to my personal take on Apple v. Pepper, I do believe that Apple was taking advantage of the situation at hand. It is unfair for Apple to consider themselves not liable 8 Five Fast Facts about Apple’s anti-competitive behavior. (n.d.). Retrieved June 29, 2019, from https://timetoplayfair.com/ 9 Spotify. (2019, March 13). Time to Play Fair. Retrieved July 1, 2019, from https://www.youtube.com/watch?v=l8SShgWqJvg 6 for the claims of customers simply because they believe the relationship is an indirect one. Even though I am an avid Apple consumer myself, I would agree that the precedent of Illinois brick co. v Illinois does not apply to the case. Since Apple takes 30% of the profits generated by all apps, it is evident that they are attempting to have a complete sense of control. 10 The outcome of this case prevails mainly in the sense that it serves as a precedent for future cases to come. In the future, I can see Apple being held liable in similar terms when it comes to its other platforms, such as Apple music. If Apple keeps using the market it created to control a competition it partakes in, a major lawsuit is probable. The music streaming giant Spotify can use the case of Apple v. Pepper as a reference to sue Apple for monopolizing the audio streaming industry. With accurate evidence to prove Apple’s intention of limiting competition through the means of their iPhone devices, Spotify can win a legal battle against this corporate giant. As someone who has used both streaming platforms, I can say that in terms of personal aesthetics I prefer Spotify. That being said, if Spotify was pushed to charge more than Apple music I would switch back over in a heartbeat. Pricing in this industry has the capability to alter consumer actions a great deal. If Apple is able to control Spotify’s pricing, it can easily eradicate its competition. Court cases like Apple v. Pepper can be the first step to prohibit companies like Apple from overstepping boundaries. Perhaps the most important outcome of Apple v. Pepper is the clear emphasis on a need for legal guidelines for smart technology. With a major rise in technological platforms comes the need for laws that ensure safety, fairness, and opportunity. I genuinely believe that the field of business law must evolve to better grasp the innovation of the modern era. Monopolization of technology companies is a major issue that has barely been addressed on the national scale. 10 Apple v. Pepper. (n.d). Oyez. Retrieved May 28, 2019, from https://www.oyez.org/cases/2018/17-204 7 Rules and regulations must be enforced to prohibit major corporations from reigning over entire markets. As seen with the social media giant , Facebook, a monopoly on social networking truly exists. For instance, Facebook saw that WhatsApp and Instagram were growing, so they took it upon themselves to purchase both these companies as a means to eradicate competition. 11 Instead of finding a way to regulate Facebook’s endeavors, the government looked past these occurrences. While Apple v. Pepper deals with a more specific and provable version of monopolization, I believe that this case can push more people to keep up with and question the practices of tech giants. Perhaps eventually, laws will be created to further ease the monopolistic climate that exists. Conclusion Apple v. Pepper is a revolutionary case that highlights the monopolistic tendencies associated with the introductions of new technologies. Specifically speaking, Apple was called out for having too much power over the happenings of its app store. Whilst charging third parties to include their apps in the store, Apple still argued that consumers of said apps were considered indirect consumers. This put forth an aura indicating a lack of liability. Even though the supreme court ruled that people did have the right to sue Apple for their monopolistic app market, this did not stop Apple from still considering their customers as being indirect. Even so, Apple, as per the case, must treat app buyers as direct purchasers even though they do not see them in that light. While the case is complete, the effects of the case are still ongoing. Since the supreme court established that consumers have the right to sue Apple, many lawsuits must be on the way. 11 Solman, P. (2019, January 17). Why tech industry monopolies could be a 'curse' for society. Retrieved July 1, 2019, from https://www.pbs.org/newshour/show/why-tech-industry-monopolies-could-be-a-curse-forsociety 8 Because Apple is a major company though, it has the money to get consumers to settle instead of move forward with suits. The outcome of lawsuits can change the scope of technological advancements around the world. Perhaps, these suits can call for the creation of more precedents regarding this new era of innovation. With both tech giants and social media companies we see a major deterioration of competition quickly. If the law allows companies to have such a major sense of control over its competitors, there would be a major power problem present within the industry in itself. Future implications of this case can transform the way that smart technology is assessed in the United States. Perhaps, other Apple platforms such as Apple music will be challenged in accordance with their monopolistic intentions. Furthermore, with the constant emergence of new innovations coincides a need for regulations to protect the fundamental rights of both people and businesses. As the effects of the holding set in, Apple will likely have to deal with a multitude of lawsuits which can push them to enact fairer policies. There is clearly a need for more laws to oversee this generation of high-tech innovation. Apple v. Pepper is one of the first major cases to address power dynamic methodology in relation to newly introduced smart platforms. Cases like this shine a light on future conflicts of such magnitude and prioritizes finding resolutions. As the world grows fast, the legal environment needs to make it a point to keep up with revolutionary changes. 9 Works cited Apple v. Pepper. (n.d). Oyez. Retrieved May 28, 2019, from https://www.oyez.org/cases/2018/17-204 Besada, B., & Idicula, I. (2018, November 20). Apple Inc. v. Pepper. Retrieved May 28, 2019, from https://www.law.cornell.edu/supct/cert/17-204 Emerson, R. W. (2015). Business law. Hauppauge, NY: Barrons. Five Fast Facts about Apple’s anti-competitive behavior. (n.d.). Retrieved June 29, 2019, from https://timetoplayfair.com/ Kifleswing. (2019, May 13). Apple failed to close off a big antitrust threat, but it probably won't feel the harm for years. Retrieved June 30, 2019, from https://www.cnbc.com/2019/05/13/apple-v-pepper-supreme-courtloss-little-harm-now-long-term-threat.html Li, E. (2019, February 04). Apple v. Pepper: Will Economic Realities or Contractual Formalities Prevail at the Supreme Court? Retrieved May 28, 2019, from https://news.law.fordham.edu/jcfl/2019/02/04/apple-vpepper-will-economic-realities-or-contractual-formalities-prevail-at-the-supreme-court/ Savage, D. G., & Hussain, S. (2019, May 13). Supreme Court rules Apple can face antitrust suits from iPhone owners over App Store sales. Retrieved June 30, 2019, from https://www.latimes.com/politics/la-na-polsupreme-court-apple-smart-phone-20190513-story.html Solman, P. (2019, January 17). Why tech industry monopolies could be a 'curse' for society. Retrieved July 1, 2019, from https://www.pbs.org/newshour/show/why-tech-industry-monopolies-could-be-a-curse-for-society Spotify. (2019, March 13). Time to Play Fair. Retrieved July 1, 2019, from https://www.youtube.com/watch?v=l8SShgWqJvg Gennaro Annunziata Professor Emerson BUL4310 9/10/2021 Tomasella v. Nestle USA, Inc The business law case I am going to examine for my term outline paper is called Tomasella v. Nestle USA, Inc. This case was heard in the state of Massachusetts. This case has to do with advertising law and is a debating whether Nestle, one of the largest chocolate companies in the world mislead it consumers into believing their product was made without the help of child labor. In February of 2018, Danell Tomasella brought consumer class actions against the company for failing to disclose on their candy wrapping that child and slave labor in west Africa was used to produce the chocolate. Although Nestle did not include this information on the candy wrappers themselves the company did discuss the topic through other outlets such as their website where they said the company policy prohibited child labor. Despite the company’s commitments against child labor resources, they still publicly acknowledged their labor abuses and further launched corporate remedial initializes to put an end to the practice. “Tomasella alleged that the manufacturers’ failure to disclose their labor abuses on chocolate wrappers violated the Massachusetts Consumer Protection Act, Chapter 93A” (Harvard law review). Tomasella claimed that the misinformation led to consumers purchasing a product they would not have if they had known the truth and it made consumers unknowingly support child and slave labor. The main problem for Tomasella was that she just went after Nestle for not including this information on the candy wrapper itself. The court sided with the defendant Nestle and said that “Although the labor abuses were “widespread, reprehensible, and tragic,” the manufacturers’ omissions on candy wrappers were neither deceptive nor unfair under the Massachusetts statute”. Nestle never advertised anything about the labor that went into making their chocolate, therefore there was no false or misleading advertising. This is a very interesting case that is complex in many ways. Although it is terrible that this company would use child and slave labor what the Tomasella had alleged in this case did not have enough substantial information to find Nestle guilty of false adverting or misleading consumers. Maybe if Nestle was tried in court for how they produce their chocolate specifically and not how they advertise it maybe the outcome would have been different. This case of a great example of how consumers are protected from companies misleading them and how companies can protect themselves in court from claims of false advertising that don’t have solid evidence. I look forward to studying this case in further detail and examining every aspect to get a better understanding of the laws that protect consumers. Sources: https://harvardlawreview.org/2021/04/tomasella-v-nestle-usa-inc/ https://news.bloomberglaw.com/product-liability-and-toxics-law/hershey-nestle-mars-beatappeals-in-child-labor-label-suits https://www.confectionerynews.com/Article/2018/02/28/Cocoa-child-labor-lawsuits-againstMars-and-Hershey-filed# Analysis of American Electric Power Company v. Connecticut, 564 U.S. 410 (2011) Natalie Hollander BUL4310 July 2, 2019 Word count: 2,691 Natalie Hollander BUL 4310 Term Paper July 2, 2019 Introduction Global warming is a well-known concept that has gained popularity ever since the industrial revolution due to human-induced climate change. It is a relatively well-known fact that greenhouse gas emissions result in the expedite of the global warming process due to these gases trapping heat within our atmosphere. One of the major greenhouse gases is carbon dioxide. American Electric Power Company v. Connecticut was an important case that went to the Supreme Court that assisted in clarifying if the public could successfully sue private companies who emit greenhouse gases, specifically carbon dioxide, on the grounds of public nuisance. This paper will focus on the history of this case, in addition to an analysis of various viewpoints on the final ruling that was given by the Supreme Court. American Electric Power Company v. Connecticut, 564 U.S. 410 (2011) I. History of the Case The initial complaint of American Electric Power Company v. Connecticut, 564 U.S. 410 (2011) was brought to the Southern District of New York on July 21, 2004. 1 The State of Connecticut, New York, People of the State of California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin, and the City of New York were the “State Plaintiffs” while the Open Space Institute, Inc., the Open Space Conservancy, Inc., and the Audubon Society of New Hampshire were the “Private Plaintiffs” who brought action against American Electric Power Company, Inc., American Electric Power Service Corporation, The Southern Company, Tennessee Valley Authority, XCEL Energy Inc., and Cinergy Corporation on the grounds of public nuisance through these five major electric power companies contributing to greenhouse gas emissions, specifically emitting large quantities of carbon dioxide. The “State Plaintiffs” claimed to represent the interest of over 77 million people and their related environments, natural resources, and economies, while the “Private Plaintiffs” claimed to represent the interest of non-profit land trusts.2 During the time this lawsuit was brought about, the five electric power companies that composed of the Defendants were the five largest emitters of carbon dioxide in the United States and were considered some of the largest emitters worldwide. 3 Carbon dioxide is considered one of the primary greenhouse gases. Greenhouse gases trap atmospheric heat, which further contributes to the overall rising global temperature. According to court documents, the five 1 Connecticut v. American Electric Power Co. - Complaint. The United States District Court for the Southern District of New York, 21 July 2004, blogs2.law.columbia.edu/climate-change-litigation/wpcontent/uploads/sites/16/case-documents/2004/20040721_docket-04-Civ.-5669-04-Civ.5670_complaint.pdf. 2 Connecticut v. American Electric Power Co. - Opinion and Order. The United States District Court for the Southern District of New York, 19 Sept. 2005, blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/case-documents/2005/20050919_docket-04-Civ.-5669-04-Civ.5670_opinion-and-order-1.pdf. 3 Connecticut v. American Electric Power Co. - Complaint. The United States District Court for the Southern District of New York, 21 July 2004, blogs2.law.columbia.edu/climate-change-litigation/wpcontent/uploads/sites/16/case-documents/2004/20040721_docket-04-Civ.-5669-04-Civ.5670_complaint.pdf. Natalie Hollander BUL 4310 Term Paper July 2, 2019 Defendants were estimated of producing 650 million tons of carbon dioxide combined annually. 4 This amount was around one-quarter of the overall United States total electric power sectors carbon dioxide emissions, in addition to about ten percent of all carbon dioxide emissions in the United States resulting from human activities.5 The public nuisances that were claimed by the Plaintiffs that result from high carbon dioxide emissions were as follows: “increased heat deaths due to intensified and prolonged heat waves; increased ground-level smog with concomitant increases in respiratory problems like asthma; beach erosion, inundation of coastal land, and salinization of water supplies from accelerated sea level rise; reduction of the mountain snow pack in California that provides a critical source of water for the State; lowered Great Lakes water levels, which impairs commercial shipping, recreational harbors and marinas, and hydropower generation; more droughts and floods, resulting in property damage and hazard to human safety; and widespread loss of species and biodiversity, including the disappearance of hardwood forests from the northern United States.”6 The available methods to reduce these companies’ carbon footprints were claimed to all be “practical, feasible and economically viable” in the Plaintiffs opinion, such as “changing fuels, improving efficiency, increasing generation from zero-or low-carbon energy sources such as wind, solar, and gasified coal with emissions capture, co-firing wood or other biomass in coal plants, employing demand-side management techniques, altering the dispatch order of their plants, and other measures.” 7 II. Parties Arguments The Plaintiffs were seeking judicial relief under the federal common law of public nuisance or under the state law of public nuisance. The Plaintiffs sought to hold each of the Defendants jointly and severally liable for contributing to the ongoing public nuisance of global warming and enjoining each of the Defendants to lessen their contribution to the global warming by limiting their carbon dioxide emissions, with continual reductions of those emissions by a specified percentage each year for at least a decade.8 All of the Plaintiffs for each of the states brought about the cause of action to protect state property and as parens patriae on behalf of its citizens and residents to protect their health and well-being, in addition to protecting natural resources held in trust by the State.9 Parens patriae is Latin for “parent of his or her country”, and it is the power of the state to act as guardians for those who are unable to care for themselves.10 The Plaintiffs wanted the unspecified reductions of carbon dioxide emission from these five companies as they believed it would have led to a reduction in the risk and threat of 4 Connecticut v. American Electric Power Co. - Complaint. The United States District Court for the Southern District of New York, 21 July 2004, blogs2.law.columbia.edu/climate-change-litigation/wpcontent/uploads/sites/16/case-documents/2004/20040721_docket-04-Civ.-5669-04-Civ.5670_complaint.pdf. 5 See above. 6 Connecticut v. American Electric Power Co. - Complaint. The United States District Court for the Southern District of New York, 21 July 2004, blogs2.law.columbia.edu/climate-change-litigation/wpcontent/uploads/sites/16/case-documents/2004/20040721_docket-04-Civ.-5669-04-Civ.5670_complaint.pdf. 7 See above. 8 See above. 9 See above. 10 “Parens Patriae.” Legal Information Institute, Cornell Law School, 10 June 2015, www.law.cornell.edu/wex/parens_patriae. Natalie Hollander BUL 4310 Term Paper July 2, 2019 injury to the Plaintiffs and their citizens and residents from the negative effects of global warming.11 The Defendants argued multiple flaws in the Plaintiff’s complaints against them. First, the Defendants pointed out that the Plaintiffs failed to state a claim where relief can be granted, as there was no federal common law cause of action at the time this case was open to abate greenhouse gas emissions that contribute to global warming. 12 Therefore, the separation of powers principles shouldn’t allow the Southern District of New York Court to judge these actions.13 In addition, “the Defendants argued that the Southern District of New York Court lacks jurisdiction over the Plaintiffs claims because the Plaintiffs do not have standing to sue on account of global warming.”14 They argued that “the court must exercise their jurisdiction appropriately and refrain from resolving questions of high policy, which hare for the political branches.”15 The Defendants argued that with the Plaintiff asking this court to cap carbon dioxide emissions and to mandate annual reductions of an as-yet-unspecified percentage would require too much from the courts.16 The relief that the Plaintiffs were seeking would “require this court to: (1) determine the appropriate level at which to cap the carbon dioxide emissions of these Defendants; (2) determine the appropriate percentage reduction to impose upon Defendants; (3) create a schedule to implement those reductions; (4) determine and balance the implications of such relief on the United States ongoing negotiations with other nations concerning global climate change; (5) assess and measure available alternative energy resources; and (6) determine and balance the implications of such relief on the United States energy sufficiency and this its national security--all without an ‘initial policy determination’ having been made by the elected branches.”17 III. Court Decisions The Southern District of New York came to their decision on September 15, 2005. 18 The court believed that the complaints rose non-justiciable political questions that were beyond the limits of their court’s jurisdiction due to the separation-of-powers principles. 19 This can also be classified as the Political Question Doctrine. The Political Question Doctrine is, “the idea that an issue is so politically charged that federal courts, which are typically viewed as the apolitical 11 Connecticut v. American Electric Power Co. - Opinion and Order. The United States District Court for the Southern District of New York, 19 Sept. 2005, blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/case-documents/2005/20050919_docket-04-Civ.-5669-04-Civ.5670_opinion-and-order-1.pdf. 12 Connecticut v. American Electric Power Co. - Opinion and Order. The United States District Court for the Southern District of New York, 19 Sept. 2005, blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/case-documents/2005/20050919_docket-04-Civ.-5669-04-Civ.5670_opinion-and-order-1.pdf. 13 See above. 14 See above. 15 See above. 16 See above. 17 See above. 18 See above. 19 See above. Natalie Hollander BUL 4310 Term Paper July 2, 2019 branch of government, should not hear the issue.” 20 The court documents also state that the Defendants moved to dismiss the complaints due to “inter alia”, which is the lack of jurisdiction and failure to state a claim upon which relief can be granted, and these motions were granted. 21 Congress has recognized that carbon dioxide emissions cause global warming and that global warming will have severe adverse impacts in the United States, however, at the time of this ruling, Congress declined to impose any formal limits on such emissions.22 For these reasons, the complaint was dismissed, the actions were marked as closed, and all pending motions were denied.23 The United States Court of Appeals for the Second Circuit reversed the Southern District of New York Courts decision on September 21, 2009. 24 They held that the “(1) PlaintiffsAppellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and 5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority immunity from suit.”25 The United States Court of Appeals for the Second Circuit vacated the judgment of the Southern District of New York Court and remanded for further proceedings.26 They found that federal statutes did not displace the Plaintiffs’ nuisance claim under federal common law and that the complaints against the Defendants may not be dismissed on the grounds of the political question doctrine. 27 While the judgement of the district court was vacated and the cases were remanded for further proceeding, on March 5, 2010, the Secord District Court denied a motion for rehearing en banc concerning their September 2009 decision.28 This ruling resulted in the Defendants filing for a petition for certiorari with the United States Supreme Court to review the Second Circuits September 2009 ruling on August 2, 2010. 29 On December 6, 2010, the certiorari was granted by the United States Supreme Court and on June 20, 2011, the opinion was issued by the Supreme Court. 30 The Court dismissed the lawsuit 20 Hashmall, Joe. “Political Question Doctrine.” Legal Information Institute, Cornell Law School, 4 July 2017, www.law.cornell.edu/wex/political_question_doctrine. 21 Connecticut v. American Electric Power Co. - Opinion and Order. The United States District Court for the Southern District of New York, 19 Sept. 2005, blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/case-documents/2005/20050919_docket-04-Civ.-5669-04-Civ.5670_opinion-and-order-1.pdf. 22 Connecticut v. American Electric Power Co. - Opinion and Order. The United States District Court for the Southern District of New York, 19 Sept. 2005, blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/case-documents/2005/20050919_docket-04-Civ.-5669-04-Civ.5670_opinion-and-order-1.pdf. 23 See above. 24 Connecticut v. American Electric Power Co. - Opinion. The United States Court of Appeals for the Second Circuit, 21 Sept. 2009, blogs2.law.columbia.edu/climate-change-litigation/wpcontent/uploads/sites/16/case-documents/2009/20090921_docket-05-5104-cv-05-5119-cv_opinion.pdf. 25 See above. 26 See above. 27 See above. 28 “American Electric Power Co. v. Connecticut.” Climate Case Chart, Sabin Center for Climate Change Law, climatecasechart.com/case/american-electric-power-co-v-connecticut/?cn-reloaded=1. 29 See above. 30 See above. Natalie Hollander BUL 4310 Term Paper July 2, 2019 on the grounds of federal common law that applies to this case, which was Massachusetts v. EPA, 549 U. S. 497, which held that “the Clean Air Act authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases.” 31 The Supreme Court established that Congress had entrusted the Environmental Protection Agency to decide how greenhouse gases should be regulated and that it was not up to the federal courts to issue their own rules. 32 Opinion and Impact of Case This case has had multiple impacts and has been cited in multiple court cases since its final decision. Some cases where American Electric Power Company v. Connecticut have had influence in the courts’ decision include Amigos Bravos v. US Bureau of Land Management, 816 F. Supp. 2d 1118 (D.N.M. 2011), Michigan v. US Army Corps of Engineers, 667 F.3d 765 (7th Cir. 2011), Robert Masterson, Mark Brown, George Butler, Charles Westbrook, Richey Oliver, Craig Porter, Sharon Weber, June Smith, Rita Baker, Stephanie Peddy, Billie Ruth Hodges, Dallas Christian, and the Episcopal Church of the Good Shepherd v. the Diocese of Northwest Texas, the Rev. Celia Ellery, Don Griffis, and Michael Ryan, 11-0332 (Tex. 2013), and Mark Parsons v. DOJ, 14-1848 (6th Cir. 2015).33 It has had a great impact on being used as precedent and guidance for federal common law of public nuisance and related pollution cases. The Wall Street Journal provided their opinion on American Electric Power Company v. Connecticut in an article that was written after the Second Circuits Court of Appeals issued their decision but before the Supreme Court’s decision. They stated that consequences could be severe for private utility companies if judges can order emissions caps. 34 If the Supreme Court ruled in favor of the Plaintiffs, that could have resulted in the possibility of transforming, “the way the United States produces and obtains energy, limits its supply, dramatically raise its cost and jeopardize reliable service to the public.” 35 In the same article, the Obama administration offered their opinion and stated, “the executive and legislative branches of government should handle carbon-dioxide regulation, not the courts.” 36 Beginning January 2, 2011, the Environmental Protection Agency began to “force power plants, oil refineries and other major emitters of greenhouse gases to obtain permits when making major modifications to their facilities or building new ones.”37 As an environmental science major, I found this case particularly interesting. While I tend to favor environmental advocate groups over large corporations, I do agree with the Supreme Court’s decision on this case and the opinions stated above. In my opinion, I do not believe that the Plaintiffs had standing to be suing on grounds of public nuisance on behalf of 31 “American Elec. Power Co. v. Connecticut.” Legal Information Institute, Cornell University Law School, 20 June 2011, www.law.cornell.edu/supct/html/10-174.ZS.html. 32 “American Electric Power Co. v. Connecticut.” Climate Case Chart, Sabin Center for Climate Change Law, climatecasechart.com/case/american-electric-power-co-v-connecticut/?cn-reloaded=1. 33 “American Elec. Power Co. v. Connecticut, 564 U.S. 410, 131 S. Ct. 2527, 180 L. Ed. 2d 435, 2011 U.S. LEXIS 4565.” Court Listener, www.courtlistener.com/opinion/219098/american-elec-power-co-vconnecticut/. 34 Kendall, Brent, and Tennille Tracy. “Supreme Court Set to Review CO2 Suits.” The Wall Street Journal, Dow Jones & Company Inc., 7 Dec. 2010, www.wsj.com/articles/SB10001424052748704156304576003323338816658. 35 See above. 36 See above. 37 See above. Natalie Hollander BUL 4310 Term Paper July 2, 2019 their land, citizens and, residents. I believe that this case exemplifies a slippery slope argument. 38 If the Supreme Court ruled in favor of the Plaintiffs argument, it could lead to an increased number of suits with no real standing over various major companies emitting airborne pollutants and greenhouse gases, as anybody could be able to file suit on the matter and all lower courts would have to abide by the Supreme Court’s ruling due to the doctrine of stare decisis, which is the common law doctrine that courts of lower jurisdictions follow the precedents of courts above them.39 I believe that while emitting mass amounts of greenhouse gases and expediting global warming should be avoided as much as possible, it is also important to take into consideration the environmental-economic tradeoffs of the private companies, as all five of these private companies’ played a big role in the electricity sector of the United States economy. The Plaintiffs could’ve potentially made more progress going to the Environmental Protection Agency to persuade them to stricken their standards on greenhouse gas emissions, as under the Clean Air Act they set the regulations for greenhouse gas emissions. Conclusion American Electric Power Company v. Connecticut established a precedent that lower courts throughout the United States can refer to when a suit is brought about involving private companies, greenhouse gas emissions, and a public nuisance claim. The final ruling by the Supreme Court on this matter solidified that the power of regulation in regards to greenhouse gas emission, specifically carbon dioxide, lies within the legislative branch, not the judicial branch. This allows for a more equal balance of powers between the branches of government, as the Environmental Protection Agency can regulate the greenhouse gas emissions from private companies through the Clean Air Act. 38 39 Emerson, Robert W. Law, Society, and Business. 2018. p. 38 Emerson, Robert W. Law, Society, and Business. 2018. p. 15 Natalie Hollander BUL 4310 Term Paper July 2, 2019 Works Cited “American Elec. Power Co. v. Connecticut, 564 U.S. 410, 131 S. Ct. 2527, 180 L. Ed. 2d 435, 2011 U.S. LEXIS 4565.” Court Listener, www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/. “American Elec. Power Co. v. Connecticut.” Legal Information Institute, Cornell University Law School, 20 June 2011, www.law.cornell.edu/supct/html/10-174.ZS.html. “American Electric Power Co. v. Connecticut.” Climate Case Chart, Sabin Center for Climate Change Law, climatecasechart.com/case/american-electric-power-co-v-connecticut/?cnreloaded=1. Connecticut v. American Electric Power Co. - Complaint. The United States District Court for the Southern District of New York, 21 July 2004, blogs2.law.columbia.edu/climatechange-litigation/wp-content/uploads/sites/16/case-documents/2004/20040721_docket04-Civ.-5669-04-Civ.-5670_complaint.pdf. Connecticut v. American Electric Power Co. - Opinion. The United States Court of Appeals for the Second Circuit, 21 Sept. 2009, blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/case-documents/2009/20090921_docket-05-5104cv-05-5119-cv_opinion.pdf. Connecticut v. American Electric Power Co. - Opinion and Order. The United States District Court for the Southern District of New York, 19 Sept. 2005, blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/casedocuments/2005/20050919_docket-04-Civ.-5669-04-Civ.-5670_opinion-and-order-1.pdf. Emerson, Robert W. Law, Society, and Business. 2018. Hashmall, Joe. “Political Question Doctrine.” Legal Information Institute, Cornell Law School, 4 July 2017, www.law.cornell.edu/wex/political_question_doctrine. Kendall, Brent, and Tennille Tracy. “Supreme Court Set to Review CO2 Suits.” The Wall Street Journal, Dow Jones & Company Inc., 7 Dec. 2010, www.wsj.com/articles/SB10001424052748704156304576003323338816658. “Parens Patriae.” Legal Information Institute, Cornell Law School, 10 June 2015, www.law.cornell.edu/wex/parens_patriae.
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Tomasella v. Nestle USA, Inc.

Name
Institution
Instructor
Date

Surname 2
Introduction
The globalized nature of the modern world has led to the internalization of supply chains.
Companies are sourcing labor from other countries to reduce costs and achieve a competitive
advantage. This globalized nature of the supply chain has shed more light on the issue of child
labor within the supply chain. Litigation has also been on the rise for U.S Companies that have
forced and child labor within their supply chain. The argument is that child labor deprives
children of their childhood, potential, and dignity. Worse still, the companies that engage in child
labor rarely reveal this to the consumers, leading to the consumers indirectly supporting child
labor. Tomasella v. Nestle USA Inc. is a litigation case for a company with child labor within its
supply chain. The complexities and dilemmas of this case make it interesting and significant in
the world of business law.
On the one hand, a company uses child labor and does not disclose it, resulting in
misleading consumers and false advertising. On the other hand, the complainants and consumers
believe that Nestle Inc. engaged in deceptive practices through their failure to inform the public
of their use of child labor. Lastly, the court did not find Nestle Inc. guilty as per the
Massachusetts Consumer Protection Act (MCPA) provisions. The analysis of Tomasella vs.
Nestle Inc in this paper will provide an in-depth understanding of consumer protection laws and
the defense that companies accused of false advertising and misleading consumers can defend
themselves in court.
Tomasella v. Nestle USA, Inc.
This case specifically explores the issues of advertising law and deceptive consumer
practice in the state of Massachusetts. Corporate advertisers are inclined to mix messaging where
there may be a difference in their assertions of claims. As such, courts have the responsibility to

Surname 3
distinguish the meaning that customers can grip from the noise of the advertisers. Tomasella v.
Nestle Inc. began in 2018 when Danell Tomasella, a resident in Massachusetts, brought a
consumer class action against Nestle, Hershey, and Mars, who are chocolate manufacturers. For
this paper, the focus will solely be on Nestle Inc. and not the other defendants in the case.
Tomasella brought the consumer class action against the company for their failure to disclose
that they used child and slave labor as part of their production processes. Tomasella was of the
view that the company should disclose this on their candy wrappers.
Notably, the company mostly imported cocoa beans for their production processes from
the West African state of Cote d'Ivoire, which is notorious for having children forcefully
(through kidnapping or debt bondage) working in the cocoa industry1. The company did not
publicly disclose this on their candy wrappers or other products2. However, the company had
posted on their websites through their supplier codes of conduct and corporate business
principles against child and slave labor. The plaintiff alleged that Nestle Inc failed to disclose
their use of child and slave labor on chocolate wrappers, which was a violation of the MCPA,
chapter 93A, in two ways3. The omission of this important information was deceptive to the
consumers. Nestle lured the consumers into purchasing chocolate that they would not have
purchased if they were aware of the child labor practices. Secondly, the plaintiff argued that the
company practices were unfair as they made consumers unsuspecting supporters and consumers

Lafargue, P, Rogerson, M, Parry, GC & Allainguillaume, J. “Broken chocolate: biomarkers as a method for
delivering cocoa supply chain visibility." Supply Chain Management. 2021. https://doi.org/10.1108/SCM-11-20200583
2
Harvard Law Review. “Tomasella v. Nestlé USA, Inc. “First Circuit Holds that Product Packages Need Not
1

Disclose Labor Abuses.” 2021
3

Danell Tomasella, on behalf of herself and all others similarl...


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