Friday Links

morrisey

We had hoped Kevin Underhill of the Lowering The Bar blog would comment upon the Morrissey/TSA debacle, and he did not disappoint. Since this is Friday Links, we’re obligated to find a comic book cover to post, and of course, we thought of the cover above, a mash-up of Action Comics and The Smiths, the famous band of which Morrissey was a part. The mash-up series – which features a number of covers with super heroes and college rock bands – was designed by a Butcher Billy, a Brazillian designer, a few years ago. For more information on that delightful project, please see here.

Yes, an appellate court has cited to the HBO television series, “The Wire.” Of course, you’d think they would have quoted Omar Little. (Hat Tip: Above The Law).

Our favorite legal tweet of the week:

Speaking of Twitter, are you following our writers Stuart Mauney, Kyle White, and Nick Farr?

Better Legal Writing . . . From The Adobe Legal Department

Whereas, the legal profession needs someone to help us write more clearly, and less lawyerly,

Whereas, we want to be understood when we communicate with a client or the court,

Whereas, we do not want others to search a legal dictionary for definitions,

In acknowledgement hereof, the Adobe Legal Department has made its Legal Style Guide available free of charge.

We here at Abnormal Use have reviewed the Adobe guide and highlight several of our very favorite suggestions.

Format your document so it is easy to read.

Use informative headings that clearly signpost the main messages.

Break text into small units—use short sections, or subdivide longer ones.

Use short sentences.

About 20 words per sentence.

Include only one idea.

Break a long sentence down into manageable parts by using further numbering, bullets, tables, or lists.

Avoid legalese or archaic English, and use everyday words.

Among; not amongst.

That/these; not aforementioned.

Above or below; not hereinabove or herein.

Omit surplus words, and use shorter words or phrases.

Then; not “at that point in time.”

Since/because; not “inasmuch as.”

Because; not “in light of the fact that.”

Do not turn verbs into nouns.

Conclude; not “arrive at the conclusion.”

Apply; not “make an application.”

Consider; not “take into consideration.”

“Simplicity is the ultimate sophistication.” (Leonardo da Vinci)

(Hat Tip: Bob Ambrogi).

Almond Milk: Not Just Another Dairy Product

Ever wonder how to milk an almond? It is a question we here at Abnormal Use ask every time we mistakenly find ourselves in the middle of a health food conversation and someone urges us to try almond milk. Contrary to our suspicions, extracting milk from an almond is possible.  However, the process may be fudged from time to time according to a new lawsuit.  As reported by Time, Tracy Albert and Dimitros Malaxianis have sued Blue Diamond alleging that its Almond Breeze milk is made with far less almonds than advertised. Interestingly, the Almond Breeze packaging does not list what percentage of the milk is made from almonds; however, its website states that it only contains 2 percent almonds. Based on “extensive” Internet research, the plaintiffs allege that the majority of almond milk contains 25-33 percent almonds. The Almond Breeze packaging contains pictures of almonds and the phrase “made from real almonds,” which allegedly deceives customers into believing that the product is made “mostly” from almonds. (While we can understand how there can be a discrepancy between 2 percent and 25-33 percent if that is what it takes to make authentic almond milk, we question how 25-33 percent equals “mostly” in any mathematical universe.)

We have no idea whether there is a standard recipe for the creation of almond milk. Nonetheless, we question whether consumers can actually be deceived by an artificial milk substitute. As discussed in the Time report, this same almond milk issue has been discussed in the United Kingdom just three short years ago. The U.K.’s Advertising Standards Authority stated:

We considered that, whilst consumers might not be aware of exactly how almond milk was produced, they were likely to realize . . . that the production of almond milk would necessarily involve combining almonds with a suitable proportion of liquid to produce a ‘milky’ consistency.

In other words, almond milk is not actually “milk” at all. It takes a certain amount of processing to make consumers think they are drinking milk in the first place. Whether it is 2 percent or 25 percent almond, consumers should simply be amazed that you can, in fact, “milk” an almond.

Daily Priority One

As you know, we here at Abnormal Use often contribute content to other websites. Our Lindsay Joyner recently wrote an article for the South Carolina Bar’s Wellness Committee, and we thought you might be interested in that piece. Here’s the first few paragraphs:

Recently, one of the Living Above The Bar’s fitness partners sent me an article entitled “Why Exercising is a Higher Priority Than My Business,” which was featured in Entrepreneurship Magazine. She told me that the article would be, in her opinion, a great read for lawyers too. Upon reading the magazine title, I wondered what entrepreneurship and general law practice have in common. While solo and small practice lawyers may have to be entrepreneurial on a daily basis, as an associate in an 80+ person law firm, I do not always feel very entrepreneurial. Yet this article really resonated with me. Several things jumped out at me.

First, the author mentions putting exercise above the 100 important things going on in his daily life. This is something that I relate to. Next, he mentions worrying about people relying on him. This is another thing that I relate to as a lawyer, both with clients and with other members of the law firm. But what I most related to was the way in which he schedules and sticks to his workouts.

In the article, the author mentions that he prioritizes his exercise over all of his work activities. Of course, he allows for some flexibility, but if there is a conflict between a run and a meeting with a client, he will generally try and reschedule the client meeting first. His reasoning for this was that his business will survive even if he does not have the client meeting at that exact time. He feels that as soon as he starts pushing workouts off, it becomes way easier to do than pushing a client off. Then before he knows, workouts stop happening altogether. But it’s what happens when you stop exercising and start prioritizing only work the truly bothers him: he becomes depressed, loses motivation at work, and does not enjoy life as much. So in the end, he concludes that what makes his business successful is his ability to have time for himself and exercise.

To read the rest of the article, please click here.

Public Service Announcement: Gateway And Beautiful Music For Beautiful Minds

Courtesy of our own Stuart Mauney, we offer this Abnormal Public Service Announcement. Much has been written about our lack of access to quality and affordable mental health care. Where do you go if you are so sick you cannot hold a job or need help with finding a place to live? Schizophrenia, schizo-affective disorder, major depression and bi-polar disorder (manic depression), are all serious medical illnesses which can be difficult to manage. These individuals often struggle with homelessness and hopelessness if they do not have the support they need.

In the Greenville, South Carolina area, a non-profit clubhouse, Gateway, provides rehab services to the chronically mentally ill, including those with these diagnoses. I am proud to serve on Gateway’s Board of Directors and chair its Development Committee.  As with any non-profit, community support is vital to the development of Gateway’s programs. On August 7, 2015, Gateway presents “Beautiful Music for Beautiful Minds,” featuring the music of Fletcher, Bell & Ward from Nashville. This community event will be held at The Poinsett Club in Greenville, South Carolina. Tickets are $75.00 each, and include hors d’oeuvres, a silent auction and beverages. All proceeds benefit Gateway.

You may buy your tickets or make a donation online at gateway-sc.org or by calling 864-242-9193.

Here’s a bit more information on Gateway from its website:

At the Gateway clubhouse, which is the center point for all assistance and activities, participants are not called patients or clients; rather they are called members. Gateway serves more than 130 active members, with an average daily clubhouse attendance of close to 90, offering a variety of programs to help members develop social, educational and employment skills – and gain friends, opportunities and self-confidence along the way.

One of the key programs is called the Work-Ordered Day, where Gateway members use their special gifts, talents, and skills while working side-by-side with staff to help operate the clubhouse. This can lead to transitional and supported independent employment. Along with these work-focused programs, there are educational programs, housing assistance programs and social interaction opportunities all built around helping those coping with mental illness lead lives that are as independent as possible.

The Clubhouse Model and programs have been so successful, that Gateway has gained an international reputation – creating a demand for colleague training. To date, more than 2,000 colleagues from 40 states and 16 countries have been trained by Gateway in the Clubhouse Model.

On behalf of the Gateway members and their families, thank you for your support!

Friday Links

4029040-tn161

Since we post a comic book cover most Fridays here at Abnormal Use, we’d be remiss if we did not at least mention the release of the new film, Ant-Man. We saw it, we enjoyed it, and we delighted in the reference to The Cure’s finest album, Disintegration. (You’ll need to see the film to understand that bit.). Above, you’ll find the cover of The Avengers #161, published way, way back in 1977. Of course, the Ant-Man depicted on the cover is Hank Pym (the character played by Michael Douglas in the new movie) and not Scott Lang (the protagonist portrayed by Paul Rudd). As Avengers purists, though, we’re content with that. If you’ve not yet seen the film, we recommend it (although we don’t plan to review it here).

Our friend Kevin Underhill at Lowering The Bar has alerted us to a lawyer advertisement featuring actor Danny Trejo. To see it, which you must do, click here.

If you’re in Asheville for the South Carolina Association of Defense Trial Attorneys Association conference, please say hello to the GWB lawyers there!

Guess what time of year it is again?

Slingbox Sued For Slinging Ads To Customers

If there’s anything this particular author hates, it’s advertisements. They are everywhere these days . . . from Taxi Cabs to Subway Turnstiles, you just can’t escape them. It’s gotten so crazy that we’ve even seen a local DUI defense law firm place ads on an “over 21″ wrist band needed to buy beer at a minor league hockey game. As annoying as the ads may be, it’s just part of modern life. Or is it? Some customers of Slingbox who have been bombarded with new adds aren’t taking it lying down and have filed a class action lawsuit against the Sling Media. If you don’t recall, Sling Media is the maker of the Slingbox, which takes customers’ home TV signal that comes from a cable box and “slings” it to a phone, tablet, or computer anywhere in the world. In a nutshell, it’s like being able to take your home TV and remote with you anywhere in the world. Slingbox is a slick device, but it comes with a hefty price tag north of $200.

According to the lawsuit, in March of this year, Slingbox devices started embedding advertising in media streamed to their mobile devices. So, now, Slingbox customers are forced to watch the embedded ads from Slingbox in addition to whatever ads are being shown through their cable provider. The plaintiffs allege that they never consented to this additional advertising. They claim that Sling Media failed to disclose that the use of the product would be contingent upon and subject to this advertising. According to the complaint, “Slingbox has perpetuated a massive ‘bait and switch’ upon thousands of unsuspecting consumers, each of whom spent as much as $300 or more for these products, but who now need to watch the defendant’s ads to use their devices as promised.”

Of course, the plaintiffs are seeking class action certification in California district court. They have alleged that the ads are misleading and violate business California consumer protection laws and constitute unfair competition or deceptive business practices. As you might expect, the Plaintiffs are not just seeking an injunction to stop the ads. They also seek restitution and disgorgement of all profits garnered from the allegedly unfair or misleading business practices. We’ll keep an eye on this one.

Why Can Plaintiffs Only Remember Solvent Defendants In Asbestos Cases?

memory

We here at Abnormal Use recently watched a TED talk by memory expert Elizabeth Loftus titled, “How Reliable Is Your Memory?” The fascinating talk provided an overview of research by cognitive scientists on why people remember some things but not others, why two people can remember the same event differently, and how people can even innocently recall an event falsely. Loftus provided several interesting examples of “false recollections” that she has come across in her research, including studies in which researchers planted the idea in the minds of subjects that the subjects had been victims of violent crimes in the past. The subjects were not intentionally lying; rather, they genuinely believed that the event occurred when it had not. Loftus explains in her paper “How To Tell If A Particular Memory Is True Or False,” that there are two types of lying that people engage in: intentional lying, and lying “without knowing they are lying.”

As Morton Durbin explains in detail in a recent, well-written DRI article, these two types of lying manifest in asbestos litigation in the context of product identification.  As noted in an excellent Mealey’s Litigation Report article from 2012, insulation manufacturer defendants such as Johns Manville were the primary defendants in asbestos litigation until they all filed for bankruptcy. Prior to the insulation manufacturer bankruptcies, all plaintiffs recalled the insulation manufacturers’ products.  As noted by Judge George Hodges in his pivotal order in the Garlock bankruptcy case, after the wave of insulation manufacturer bankruptcies, “the evidence of exposure to those insulation companies’ products also ‘disappeared.’” In re Garlock Sealing Technologies, LLC, 504 B.R. 71, 84 (Bankr. W.D.N.C. 2014).  For those who have not read Judge Hodges’ order, we would recommend taking Judge Peggy Ableman’s advice and reading the decision. The order details the apparent fraudulent lengths to which Plaintiffs’ lawyers went to conceal exposures to bankrupt companies’ products and to direct attention to fringe defendants. How can it be that (as learned in discovery in the Garlock case) Plaintiffs recalled an average of two bankrupt defendants’ products during the tort case but subsequently remembered an average of 19 bankrupt defendants’ products when it was time to file bankruptcy trust claims? Is the lying intentional, innocent, or some combination thereof?

Perhaps the better question is not whether the lying is intentional or “innocent” but how do defense lawyers successfully expose and/or combat it?  Among other strategies, Mr. Durbin explained that defense lawyers should make a clear record of all of the details that the plaintiff recalls about solvent defendants and contrast that with the dearth of details that the Plaintiff recalls about the bankrupt defendants’ products.  There is a growing trend among asbestos defendants to hire “memory experts” to address these issues.  Placing settled defendants and bankrupt defendants on the jury verdict form would be quite effective in addressing the issue, as well.

Exhibits and other documents from the Garlock bankruptcy trial have been recently unsealed and can be downloaded here.

$32.5 Million Punitive Damages Award Overturned by California State Appeals Court

Pile of cash

As Reuters recently reported:

A subsidiary of BorgWarner Inc is off the hook for a massive $32.5 million punitive damage award in an asbestos lawsuit, after a California state appeals court ruled plaintiffs had failed to delve deeply enough into the company’s financial condition.

Following a 2013 trial, a Los Angeles jury determined that a subsidiary of BorgWarner was liable to Secundino Medina’s mesothelioma, which was allegedly caused in part by exposure to BorgWarner asbestos-containing clutches during Medina’s time working at a GM factory. According to the Court of Appeal of the State of California, Second Appellate District, Division Four, opinion:

The other plaintiffs’ claims moved forward, and the jury ultimately found that [BorgWarner’s subsidiary] BWMT’s negligence was a substantial factor in causing Medina’s death and allocated 35 percent of the total fault to BWMT.  By special verdict, the jury awarded economic damages of $60,000 to Medina’s estate and $130,455.70 to each of Medina’s daughters.  The jury further awarded $2,000,000 to each of Medina’s daughters for their noneconomic losses.  After hearing evidence of BWMT’s financial condition and Medina’s pain and suffering during the second phase of trial, the jury awarded Medina’s estate $32,500,000 in punitive damages.  The court entered judgment in plaintiffs’ favor after denying BWMT’s motions for judgment notwithstanding the verdict and for a new trial.

In California, “Civil Code section 3294, subdivision (a) permits an award of exemplary or punitive damages ‘for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.’”  In the course of reaching its ultimate opinion, the Court noted that “The ultimately proper level of punitive damages is an amount not so low that defendant can absorb it with little or no discomfort [citation], nor so high that it destroys, annihilates, or cripples the defendant.  [Citations.]”  (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 621-622.).  The Court then decided that the Plaintiffs did not conduct adequate discovery into the financial condition of BWMT so as to support the $32.5 million punitive damages award, and that testimony from forensic accounting expert Robert Johnson based on publicly available financial documents was insufficient to support the award.  The Court left the $6.4 million economic and noneconomic award intact.

This case is could have an interesting impact on the scope of discovery in asbestos cases in California.  Additionally, this case is of interest because the $32.5 million punitives award was apparently the largest punitives award in California history.

Amazon Faces Trademark Lawsuit Over Search Results

Protecting customers who are somehow able to shop online but are unable to read. That seems to be the goal of a recent Ninth Circuit ruling in a trademark case filed against Amazon.  In a case between MTM and Amazon, the court ruled that Amazon is misleading consumers by providing search results that don’t explicitly state that the product you searched for is not carried. It’s like if I visited a sporting goods store and asked a clerk to see the Nike tennis shirts. If the store didn’t carry Nike shirts and the clerk simply pointed you to the tennis goods section, would the clerk’s actions reasonably mislead me into believing that every shirt in the tennis section is a Nike shirt?  Of course not.

The Amazon trademark case is essentially the scenario described above. Amazon doesn’t carry MTM watches. Customers that search for “MTM Special Ops” on Amazon.com are simply provided with a list of watches from from other brands. While the search results do not explicitly state that Amazon does not carry MTM watches, the search results do clearly state the brand names of the watches being sold.   Nevertheless, MTM argued that Amazon’s search results constituted trademark infringement.

Initially, a district court granted summary judgment to Amazon, holding that Amazon’s actions did not create a likelihood of confusion for customers. However, the Ninth Circuit Court of Appeals reversed and ordered the case to proceed to trial. The reversal is based up a trademark doctrine called “initial interest confusion.” The court’s opinion, summarized the doctrine as:

Initial interest confusion occurs not where a customer is confused about the source of a product at the time of purchase, but earlier in the shopping process, if “customer confusion… creates initial interest in a competitor’s product.” Even if that confusion is dispelled before an actual sale occurs, initial interest confusion still constitutes trademark infringement because it “impermissibly capitalizes on the goodwill associated with a mark and is therefore actionable trademark infringement.”

This whole doctrine is silly. This issue could cover a whole range of traditional sales methods, including product placement. Is a store not allowed to put Nike and Adidas shirts on the same rack? What about placing generic items on the shelves next to brand names?

The dissenting judge pointed out how curious the majority’s ruling is with respect to Amazon:

Because Amazon’s search results page clearly labels the name and manufacturer of each product offered for sale and even includes photographs of the items, no reasonably prudent consumer accustomed to shopping online would likely be confused as to the source of the products….The search results page makes clear to anyone who can read English that Amazon only carries the brands of watches that are clearly and explicitly listed on the web page. The search results page is unambiguous.

We’ll just have to wait see what a jury has to say about this whole thing.  We suspect a reasonable jury would tell MTM to take a hike.