Dr Pepper Snapple Group, we are flavored to win. . capabilities we need to meet the commercial requirements of the company. We don't Choice Best New CSD of the Year and Snapple Compassionberry Tea its Best New volume is now provided by non-orange As of the date of distribution, a total. Beginning Friday, Snapple will be the sole sponsor of all SUBSCRIBE NOW . dating to the days when its employee-cum-spokeswoman, Wendy "One of most powerful things a radio station can do is go commercial-free," Mr. Kingston said. " We were approached by Jay, originally with the idea of going. We're going to continue now with our next presenter. As I think about our business, three things give me confidence in Dr Pepper Our company owned system is also the only viable choice for a number of up and coming brands. Year-to-date, our CSD dollar share is up four-tenths of a point, so our.
In addition, the pertinent provision of the New York Statute of Frauds provides: Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime The distribution agreement alleged by Plaintiffs is a five-year agreement to distribute Snapple products in Greece.
Therefore, it is an agreement that necessarily extends the performance obligation of both parties beyond one year and should be in writing and subscribed by the party to be charged in order to satisfy the Statute of Frauds. Because there was no signed agreement here that sets forth all of the essential terms of the agreement, the oral distribution agreement asserted by Plaintiffs is not enforceable. Plaintiffs argue that Defendants waived the affirmative defenses of Statute of Frauds and parol evidence rule by not asserting these defenses in their Answer, Plaintiffs' Mem.
Generally, a failure to plead an affirmative defense results in its waiver and its exclusion from evidence. However, a party's motion for summary judgment may be regarded as a motion to amend its pleadings under Fed. July 13, ; see Block v. Under the Federal Rules of Civil Procedure, courts are enjoined to liberally grant amendments to pleadings. The standards governing a motion to amend under Rule 15 a may be imported into an analysis of whether an affirmative defense should be considered when it is raised for the first time in a motion for summary judgment.
The Supreme Court has indicated: Delay alone will not prevent an amendment to the pleadings, though the longer the period of unexplained delay, the lighter the burden will be on the nonmoving party to demonstrate prejudice or bad faith.
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Duggal Color Projects, Inc. In analyzing prejudice to the nonmovant, courts must consider whether permitting the new defense would " i require the opponent to expend significant additional resources to conduct discovery and prepare for trial; ii significantly delay the resolution of the dispute; or iii prevent the plaintiff from bringing a timely action in another jurisdiction.
Here, Defendants maintain that they did not assert a Statute of Frauds defense in their answer because Plaintiffs expressly alleged that the parties "operated as if a written exclusive agreement for the distribution of Snapple product in Greece had been executed among them. Consequently, Defendants argue that "it did not become clear to Snapple until plaintiffs' answer to Snapple's counterclaims and plaintiffs' depositions that they intended to disavow the written distribution agreement.
City of Yonkers, F. Supp at n. Plaintiffs do not argue that they would be unduly prejudiced by Snapple's assertion of a Statute of Frauds defense, and there is no indication that such an allowance would require Plaintiffs to expend significant additional resources to conduct discovery and prepare for trial, significantly delay the resolution of the dispute, or prevent Plaintiffs from bringing a timely action in another jurisdiction.
Accordingly, the Statute of Frauds defense is allowed notwithstanding Defendants' failure to plead this defense in its answer. Because Plaintiffs have not identified a writing containing the terms of their claimed oral distribution agreement that is sufficient to indicate that a contract was made between the parties and because Plaintiffs claim the oral distribution agreement operated for a five-year period, the oral distribution agreement asserted by Plaintiffs is not enforceable under the Statute of Frauds.
Plaintiffs' Claim of Promissory Estoppel Plaintiffs argue that if the Court finds that there was no contract, Defendants are liable under the doctrine of promissory estoppel because the Tavantzises traveled to Greece and expended substantial sums in express, detrimental reliance on various specific promises of an exclusive distribution agreement made by Donna Bimbo. In New York, promissory estoppel has three elements: Plaintiffs' Complaint, however, does not contain a claim for promissory estoppel, and Plaintiffs have not moved to amend their Complaint.
Because the claim is raised in Plaintiffs' answering papers, however, the Court could allow it even if discovery has long been closed if Plaintiffs can demonstrate that such a claim is appropriate on the facts of this case and if they have provided specific evidence of such expenditures to the Defendant. If Plaintiffs wish to pursue this claim, they must move to amend by motion papers to be filed by June 12,setting forth in a non-conclusory manner their claim for promissory estoppel together with a supporting memorandum demonstrating that there is valid legal support for making the claim under the circumstances presented here.
While Plaintiffs correctly maintain that no agreement was ever executed between Snapple and Multi-Juice, despite the exchange of seven drafts of a written distributorship agreement, id. During arguments on January 19,the only relevant statement to which the Plaintiffs could point to was paragraph 20 of Plaintiffs' Response to Defendants' Statement Pursuant to Local Rule The negotiations between Mr. Plaintiffs went ahead with the exclusive distribution arrangement in March or April of Multi-Juice's claim that Snapple negotiated this provision in bad faith is not credible.
The Tavantzises, who were also the principals of New Age, entered into a distribution agreement for Mistic, a competitive product, in February See Orr Mistic Ex.
Based on this evidence, no reasonable jury could conclude that Snapple negotiated in bad faith. Snapple claims that it sent invoices for this amount to Multi-Juice from April 23, through June 18, for products received and accepted by Multi-Juice.
Multi-Juice failed to pay the amounts due and owing under the Invoices. The evidence shows that representatives of Snapple contacted Multi-Juice on numerous occasions regarding the amounts past due and owing and that Multi-Juice was aware of these outstanding invoices. Plaintiffs claim that there are triable questions of fact concerning whether any sums Plaintiff Multi-Juice may owe Snapple are offset by sums owed by Snapple to Multi-Juice.
Plaintiffs claim that some of the goods delivered by Snapple to Multi-Juice arrived late or damaged or were the wrong flavors. However, Plaintiffs identify no evidence in their Defendant Snapple argues based on the terms of the five-year draft distribution agreements that Multi-Juice breached its contract with Snapple.
None of the agreements were ever executed and thus they violate the Statute of Frauds. The draft Distribution Agreements were never executed by the parties, however, so there is no basis for Defendant's claim. Therefore, Defendant's counterclaim for attorneys' fees is denied.
If enclosed by brackets, the Rule Gray New Age Ex. Plaintiff New Age's An amendment to that contract was entered into by Mistic and New Age in or about February Mistic has never canceled or terminated the Mistic Distribution Agreement. Although this statement is not supported by Plaintiff's citation to the testimony of Louis Burke at pageMistic does not claim it cancelled or terminated the Mistic Distribution Agreement. Accordingly, the statement is accepted.
New Age never in fact distributed Mistic because before it did so, Triarc acquired Snapple and expressed a preference to move forward with the distribution of Snapple, rather than Mistic, products in Greece. Grey New Age Ex. In MayDonna Bimbo told the Tavantzises, "we are not going to do Mistic, we just bought Snapple, so we are going to go right into the Snapple, so there is no need to bring Mistic into the country.
New Age does not support this claim by page citation to testimony or exhibits. Rather, his testimony was that Donna Bimbo, at some point around May ofpromised Naoum Tavantzis that he would go back to Greece and distribute both Snapple and Mistic.
This statement is not shown to be relevant to New Age's breach of contract claim. Mistic sold Mistic products under the Mistic brand trademark to Papadavid during that were intended for ultimate consumption within the Republic of Greece.
Papadavid is not an agency of the government of the United States. There are no cited pages of testimony for this statement. Mistic did not notify New Age of the inquiries or orders that it received from Papadavid concerning the purchase of Mistic Products for ultimate consumption within the Republic of Greece.
New Age cites to Donna Bimbo's testimony but there are no specific pages cited to support this statement. Mistic's Counterstatement of Facts 1. The term commences on the date the Distribution's carrier receives delivery of Distributor's first purchase order which has been accepted by MBI for beverage products. New Age Beverage Hellas, its principals and Mr. Arthur Tavantzis certify that none of its family members, relatives or other owners have any connection with any person or businesses doing business with Snapple Beverages or the Quaker Oats Company in the Country of Greece.
Maximize the distribution of each type and line of Products throughout the Territory and, to that end, maintain a qualified staff, experienced and skilled in the distribution of goods corresponding in quality to the Products, engage in capital investments, leases or acquisitions of services or equipment necessary to carry out such maximized distribution and participate with MBI in the cooperative advertising and marketing program described in [Orr Mistic] Exhibit 4 hereto.
Commence the performance of duties hereunder, including, but not limited to, the sale of products within the Territory in accordance with the marketing plan by no later than thirty 30 days from the commencement of production of the ml bottle pack case in the U. Failure to place orders in accordance with the marketing plan for the sale of products within the allotted 30 days constitutes a material breach of this Agreement.
The term of this Agreement shall commence on the day Distributor's carrier receives delivery of Distributor's first purchase order accepted by MBI for beverage products. Mistic never hired personnel. Mistic never established a location in Greece. New Age never placed an order for Mistic products. New Age never distributed Mistic products. In short, New Age never did business. Prior to the New Age Distribution Agreement, Hellas was engaged in the business of importing and distributing Snapple brand beverages in Greece.
District Court for the S. The Hellas Action was settled on or about August 11,pursuant to a settlement agreement between Snapple under Triarc ownershipQuaker Oats, and Hellas. The Hellas Settlement Agreement provides, inter alia, that: Hellas and Snapple shall negotiate in good faith towards entering into a year written agreement under which Snapple would convey to Hellas the exclusive right during the term of that agreement to distribute Snapple beverages in Greece.
The Hellas Settlement Agreement contains an integration clause, providing that "[t]his Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter contained herein. As its name implies, it is a "re-release" of sorts of Dr Pepper's original formula, which uses sugar instead of high fructose corn syrupwhich Dr Pepper and other brands of soft drink started to use around the early s.
The formula of Heritage Dr Pepper and Dublin Dr Pepper are assumed to be one and the same, but Heritage Dr Pepper is a larger-scale, national release aimed at capturing the same marketing essence as the Pepsi and Mountain Dew throwbacks. Dr Pepper "Made with Real Sugar" was released to commemorate the drink's th anniversary during summer It featured the use of "real" sugar which was likely a mix of cane and beet sugar as opposed to its usual high fructose corn syrup.
Since Augusta "New Improved" flavor has been marketed in the UK that reduces the amount of sugar from Dr Pepper Zero began — As Coca Cola distribute Dr Pepper in the United Kingdom, a "Zero" version was introduced, meaning no added sugar and low-calorie, but maintaining a taste more in line with regular Dr Pepper than its diet variant.
German Variation, Germany's version of Dr Pepper, similar to its UK version, is also manufactured with a reduced amount of sugar and artificial sweeteners also aspartame and acesulfame K. However, the sugar is reduced to 6. As a result, most US soft drinks, including Dr Pepper, now use high fructose corn syrup instead of sugar. In the s, plant owner W. This product was scheduled to be a limited time release.
In January"Heritage Dr Pepper" became available in select markets in cans and 16 oz bottles with the distinction "Made with Real Sugar. Since Dr Pepper Corporate has no control over whether the bottlers will use sugar, there is no guarantee the soda will have sugar. For instance in the European Union, high fructose corn syrup is subject to a production quota. Inthis quota was set attons; in comparison, the EU produced an average of However, the bottlers of Dr Pepper in Germany and the United Kingdom use instead a combination of sugar and artificial sweeteners.
Distribution In the United States, Keurig Dr Pepper does not have a complete network of bottlers and distributors, so the drink is sometimes bottled under contract by Coca-Cola or Pepsi bottlers. Presently, Dr Pepper Snapple relies on its own bottling group to bottle and distribute its products in more than 30 states.
Coca-Cola and Pepsi have essentially stopped bottling and distributing Cadbury-Schweppes products in favor of in-house alternatives, although regional exceptions can be found. In Romania, it can be found only in larger cities, imported from Belgium. In Portugal, Spain, France, Turkey, and Greece, it is almost impossible to find, as it is usually imported from the United Kingdom in particular supermarkets.
In almost all of the other countries of the world, the Coca-Cola Company purchased the trademark from Cadbury-Schweppes and distributes the product. This mixed worldwide ownership of the trademark is due to antitrust regulations which prevented Coca-Cola from purchasing the rights everywhere. Dr Pepper is also available in Russia though imported, generally from Poland — there's no local bottling despite numerous talksSouth Korea and Ukraine.
Although no longer locally bottled in Australia or New ZealandDr Pepper is imported and sold by United States Foods, and many other small retailers in Australia, with the UK sugar version sold in the British sections of Coles and Woolworths supermarkets. It is not actively marketed in other regions of Japan; Coca-Cola's Osaka bottler began selling Dr Pepper inbut pulled the product two years later due to low sales.
Other products Dr Pepper has a line of jelly beans made with the Jelly Belly company. Hubba Bubba bubblegum produces a Dr Pepper-flavored edition. The gum is the same color as the soda. Dr Pepper has an ice cream topping syrup also manufactured by Vita Food Products in called "Dr Pepper cherry dessert topping". Marketing "Dr Pepper Time", according to one promotion, was at 10, 2 and 4 o'clock.
The show featured the Sons of the Pioneers and Dick Foran. The "Be a Pepper" series referred to fans of Dr Pepper as "Peppers", and often featured large, sequentialcrowd dance scenes, intricately choreographed by Tony Stevens  and led onscreen by actor David Naughton.
A recurring jingle was: This became grist for a number of pop culture references and parodies. Levy and a group of patients wearing casts and crutches engage in their own elaborate dancing and singing "Wouldn't you like to see my doctor, too? In the sex farce Beach Girlsthe slogan became "I'm a popper, he's a popper After appearing in a series of commercials, David Naughton had his breakthrough film role as the main character in the John Landis film An American Werewolf in London.
This idea appeared in the film Blast from the Past initially set in the early s. InJake Holmes wrote the lyrics to "Be a Pepper". A TV commercial was also created using the jingle and ran from to It's not a root beer, you get root beer by the score. It's not an apple, it's not an orange, it's not a strawberry, it's not a root beerit's not even a cola.
It's a different kind of drink with a unique taste all its own. An example is in the video game Pikmin 2where one of the collectible treasures is a Dr Pepper bottle cap it is labeled as the "Drought Ender".
Several of the classic non-"I'm a Pepper" commercials featured prominent movie stars, one being a television advertisement with Chris Rock as a child enjoying a Dr Pepper. The s "Out of the Ordinary" advertising campaign involved a series of postapocalyptic commercials featuring a space cowboy and an alien sidekick seeking "something different" from a simple generic cola.
The commercials were prominently featured during the syndication of The Canned Film Festivalwhich was sponsored by the Dr Pepper Company. The campaign also featured individual musicians, notably Garth Brooks. Dr Pepper made several appearances in the Robert Zemeckis major motion picture Forrest Gumpas it was the beverage of choice for the movie's namesake lead character, played by Tom Hanks. In one of the film's Dr Pepper scenes, Forrest's narrative suggests, "The best part about goin' to the White House was, they had all the food and drink that you wanted I must have had me 15 Dr Peppers.
In Australia, a report on the soft drink industry by IBIS accused Cadbury Schweppes of failing in their marketing of the brand, given its global appeal.
The Snapple Lady (remember her?) recently got real about her struggle with addiction - HelloGiggles
One potential problem with the marketing campaign was in advertising it as "American". The use of the Statue of Liberty moving to Australia and passing cans of Dr Pepper on to two Australian males made its imported i. Letterman repeatedly made assurances on the show that he was joking.
These ads were produced by They Might Be Giants. In a ad, a student in a college lecture takes a sip of Dr Pepper. When he stops drinking, the Dr Pepper can sings variations of "Flava Licious" Flavor Flavand other people in the room start dancing. A commercial for this included Jesse Eisenberg being forced to be on live TV without his clothes on. As ofthe slogan of the product was "Drink it slow. Advertising supporting the slogan has celebrities with famous relations to the word "doctor" Dr.
DreJulius "Dr. Love "et al.
The ads culminate with the celebrity stating, "Trust me. I'm a doctor", followed by the new slogan appearing onscreen with a glass of Dr Pepper. Inrapper Pitbull appeared in a commercial with the slogan "Let's have a real good time.
Pepper You Drink a Bite to Eat. Pepper has 23 flavors" s: This is the Place. Dr Pepper Is The Taste. Dre United States