On October 31, Weil won a victory for PepsiCo by securing a complete dismissal with prejudice of a suit by New York Attorney General Letitia James alleging that PepsiCo had created a “public nuisance” of plastic litter and marine plastic pollution in New York’s Buffalo River and surrounding environs. PepsiCo is the first company to win a dismissal on the merits of these types of claims in a decision.

After filing the complaint, the New York Attorney General held a press a conference hailing the suit as “historic” and “groundbreaking,” and ran a media blitz criticizing PepsiCo for misrepresenting its recyclability efforts to the public. 

But following briefing and oral argument, Justice Colaiacovo of the New York Supreme Court rejected the Attorney General’s claims in a forceful 19-page opinion.  The court held that using the tort of public nuisance in this way “is nothing more than selective prosecution based on a naïve theory” and that “this theory has never been adopted by a court in this state or any other.”  The court also noted the “great cost” the State had incurred in bringing the suit, even though the AG knew that “imposing civil liability on a manufacturer for the acts of a third party seems contrary to every norm of established jurisprudence.”

The Court ended its opinion with a strong rebuke to the Attorney General for overstepping her authority: “While I can think of no reasonable person who does not believe in the imperatives of recycling and being better stewards of our environment, this does not give rise to phantom assertions of liability that do nothing to solve the problem that exists. Plaintiff’s proposed use of the judicial system to punish select purported offenders for what she believes to be a righteous cause risks transforming the judiciary into an arm of the legislature, or at the very least a passive partner in expanding duties that strain the bedrock of well-established law for policy purposes.”

This is the first of many cases filed by state and local governments against consumer products companies like PepsiCo alleging – through public nuisance theories – that the companies are responsible for a plastic waste pollution in oceans, rivers, beaches, and cities.  The Weil team consisted of Complex Commercial Litigation Co-Head Drew Tulumello, partners Arianna Scavetti and Robert Niles-Weed, and associates Claire Chapla, Shai Berman, and Dan Lifton.