DRI’s Annual Meeting

As you may know, our firm, Gallivan, White, & Boyd, P.A. is very, very active in DRI. John Cuttino of our Columbia office serves as its president. Jim Dedman, the editor of this blog, currently acts as the liaison of the Product Liability Committee to the Annual Meeting, which is taking place this week! It’s the upcoming Annual Meeting we discuss today.

We are very excited for the upcoming 2017 Annual Meeting, which takes place this week in Chicago on October 4-8, 2017. Rest assured that we have planned a fun dine-around for the Product Liability Committee on the evening of Wednesday, October 4 (more about which below)!

Plus, DRI has put together a phenomenal line-up of cutting-edge CLE presentations (up to 12.0 hours) and networking events. This year’s speakers and special guests, include:

• John O. Brennan, Former Director of the CIA
• Eric H. Holder, Jr., Former U.S. Attorney General
• Jeffrey R. Toobin, Senior Legal Analyst, CNN Worldwide, and Supreme Court Expert extraordinaire
• Sandra L. Phillips Rogers, Group Vice President, General Counsel and Chief Legal Officer, Toyota Motor North America, Inc.

The Product Liability Committee will have itsdine-around on the evening of Wednesday, October 4. For more details, please contact Jim Dedman at jdedman@gwblawfirm.com.

The Product Liability Committee’s CLE and business meeting will take place on the afternoon of Thursday, October 5th. Here’s the information:

· Jeffrey A. Curran of GableGotwals and Kevin Schiferl of Frost Brown Todd, LLC will speak on “We’re Not in Kansas Anymore: The Challenges of Trying Cases in Unfamiliar Jurisdictions.” That program will take place on Thursday, October 5 from 3:30 to 4:30 p.m. Following the program, we will have a brief Product Liability Committee business meeting to move our agenda forward for the coming year.

We hope to see you this week!

Friday Links

According to this News Alert, the Clerk’s Office of the U.S. District Court for the Middle District of North Carolina has posted some electronic filing tips for ECF users. You can read the new handout here.

How many of you are attending the DRI Annual Meeting in Chicago in a few weeks?

As you may recall, our editor, Jim Dedman, plans the annual Mecklenburg County Bar’s Halloween CLE each year. This year, it’s called “Halloween CLE III: The Law of Clowns, Ghostbusters, and Scary Movies.” That’s right; there is literally a component on clown law. You can learn more here.

Our favorite legal tweet of the week is one of our own, as we feel our colleague Lindsay Joyner deserves some additional recognition for being named one of Columbia, South Carolina’s Best & Brightest!

 

Friday Links

Who’s going to the DRI Annual Meeting in Chicago next month? We’ll be there, so let us know! In fact, next week, we will be posting a bit more about this topic, so stay tuned for more information about the DRI Product Liability Committee’s events at the Annual Meeting.

Rest in peace, Grant Hart of the band, Hüsker Dü. In 1986, the band released Candy Apple Grey, which featured the single “Sorry Somehow,” written by Grant Hart. It features our favorite rock lyric about subpoenas. Read more about him here.

Our favorite legal tweet of the week comes from the North Carolina Bar Association, a committee of which recently addressed the Oxford comma debate. Behold that tweet below!

Charleston Office Closed Tuesday Due To Inclement Weather

Our Charleston, South Carolina office will be closed on Tuesday, September 12, 2017 due to inclement weather caused by Hurricane Irma. Our Charlotte, North Carolina office and our Greenville and Columbia, South Carolina offices will be open as usual. We wish everyone a safe journey during these days of difficult weather conditions.

The Art of “Litigation” War (Part II)

In this installment of Abnormal Use‘s exploration of Sun Tzu’s The Art of War, we analyze the following tactics from “Waging War,” the second chapter of the book:

There is no instance of a country having benefited from prolonged warfare. . . . In war, then, let your great object be victory, not lengthy campaigns.

In “Waging War,” Sun Tzu stresses the importance of curtailed warfare. As Sun Tzu aptly notes, “if the campaign is protracted, the resources of the State will not be equal to the strain.” The longer war is waged, the more resources consumed and the more lives lost. As such, prolonged warfare results in a smaller net benefit to be gained by victory. Such is often true in litigation.

It is no secret that plaintiffs and their attorneys often have more to gain by resolving a case sooner rather than later. Resolution of a claim early in litigation (or even pre-suit) benefits a plaintiff by putting money in his or her pocket earlier and cuts down on the amount of fees a plaintiff must reimburse his or her attorneys. Likewise, for the attorney, who is most often working on a contingency fee, an early settlement provides a certainty of recovery and frees up time to work on other matters. Certainly, there are situations in which an early resolution is not possible (i.e., a lack of a meaningful pre-suit settlement offer). Assuming there is a legitimate offer on the table, however, the net benefit of protracted litigation only to obtain a slightly better settlement or judgment may not be worth the risk.

While not as obvious on the surface, there is often little for defendants to gain by way of lengthy litigation. Any seasoned defense attorney can tell tales of cases that were ultimately resolved after lengthy litigation for a sum far greater than what they could have pre-suit. Those cases are usually ones in which the defendant was operating with its optimal leverage pre-suit (due to a preliminary understanding of liability and/or damages) only to see the price of playing poker rise as discovery called into question the facts or theories upon which the defendant relied. Similarly, there are those cases that ultimately resolve at the pre-suit evaluation, but only after thousands of dollars in fees were incurred. In either situation, the net benefit of litigation, at least from a financial perspective, may be negligible.

Certainly, there are cases for both plaintiffs and defendants that should be tried for a variety of reasons. Unlike Sun Tzu, we would not venture so far as saying that there are “no” instances of a party benefiting from “prolonged warfare.”  In those cases, however, it is imperative that counsel and their clients be on the same page regarding the costs of “war” and the risks of battle. Inherent in every case is risk. There is not a good case that cannot be lost (or, conversely, a bad case that cannot be won). Litigators should never be fearful of prolonged litigation, including trial. However, they should always be cognizant of the risks and costs of protracted litigation when searching for that necessary “victory.”

Note: An online translation of The Art of War can be accessed here.

Part I of The Art of “Litigation” War can be accessed here.

Charleston Office Closed Monday Due To Inclement Weather

Our Charleston, South Carolina office will be closed on Monday, September 11, 2017 due to inclement weather caused by Hurricane Irma. Our Charlotte, North Carolina office and our Greenville and Columbia, South Carolina offices will be open as usual. We wish everyone a safe journey during these days of difficult weather conditions.

Festival Litigation Class Action Lawsuit Filed in California

Once again, we turn to the world of music for news of curious litigation. For those unfamiliar with the Fyre Festival, the following is a synopsis:

The music event (from April 28–30 and May 5–7) is touting itself as “the cultural experience of the decade.” Though these islands are part of the Bahamas, this scattered string of pearls is way more barefoot and bronzed than cruise ships and coconut cocktails.

The Fyre Festival website explains its origins as follows:

Billy McFarland and Ja Rule started a partnership over a mutual interest in technology, the ocean, and rap music. This unique combination of interests led them to the idea that, through their combined passions, they could create a new type of music festival and experience on a remote island.

Reportedly, festival tickets cost $450 for a day pass and up to a $250,000.00 for a full VIP experience. Unfortunately, its organizers canceled the festival at the last minute, and hundreds of attendees allege that they were stranded on the remote island with sparse food and dangerously rustic accommodations. That sounds a bit more perilous than Woodstock, no?

Litigation, of course, ensued.

Famed Plaintiffs’ attorney Mark J. Geragos filed a class action lawsuit in the U.S. District Court for the Central District of California. The named Plaintiff, Daniel Jung, alleges as follows:

Allegations of Jung Complaint

Additionally, the suit alleges that the problems were known before the information was disclosed to prospective attendees, but that the information was not disclosed in a timely manner:

Additional Allegations

It is anticipated that there will be at least 150 members of the class. The lawsuit seeks at least $100 million in damages. Presumably, the lawsuit will be hotly contested, but Fyre Festival organizers are promising that “[a]ll festival goers this year will be refunded in full” and that they “will be working on refunds over the next few days and will be in touch directly with guests with more details.” Aggrieved guests may be pleased to find out that “all guests from this year will have free VIP passes to next year’s festival.” Who knows how that turned out?

On May 7, the Plaintiff amended the Complaint, and no defendant has answered. In fact, it appears that there may be some issues with serving them.

The case is Daniel Jung v. Billy McFarland, et al, 2:17-cv-03245-ODW-JC, U.S. District Court for the Central District of California (Western Division – Los Angeles).

We at Abnormal Use are skeptical that a jury would be excited about awarding money to a 20-30 year old who has $250,000.00 lying around for VIP tickets to an island music festival, but maybe we are wrong. This could be the case of the century arising out of what could have been the music festival of the century.

Happy Labor Day!

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you a festive and restful Labor Day. We thought we would celebrate this day of days by featuring an image of the cover of Rush’s “Working Man” single, but apparently, that song, though epic, was not released as a single. So, there is no such image to post here! That said, we’ve elected to post the cover of the original score soundtrack for the cult classic, Office Space.

Over the years, on Labor Day, we’ve featured the covers of labor-related comic books, examples of which you can find here, here, and here. (While preparing this post, we did find a reference to the Kryptonian Labor Guild, but that just doesn’t seem right for today.).

Whatever the case, be safe on this holiday, and we’ll see you back here on the blog tomorrow.

Friday Links

We hope you are doing well, dear readers. As you might imagine, it’s been a tough week.

We here at Abnormal Use are saddened by the destruction wrought by Hurricane Harvey in Texas. Are you looking to help the citizens of Texas? From yesterday’s E-Blast from the South Carolina Bar:

The Supreme Court of Texas has issued an order to allow out-of-state attorneys to provide legal services in Texas as part of Hurricane Harvey relief efforts. Bar members wishing to participate in these efforts must meet these requirements and complete and return the registration for temporary practice of Texas law attached to this order. The State Bar of Texas has also asked attorney volunteers to fill out this form regarding assistance they are able to provide. More information about how to assist will be provided as opportunities are organized.

If you can assist, please do.

On a lighter note, our favorite legal tweet of the week involves, of all things, the Oxford comma.

Oh, and don’t forget to listen to Vampire Weekend’s song, “Oxford Comma,” to celebrate.

As we ready ourselves for the Labor Day weekend, we wish all of you a safe and festive holiday. We will see you again next week.

Giving Out Free Swag? Remember Product Safety Still Applies

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Whether attending a convention as an exhibitor or a participant, free swag is important. In many cases, swag is the eye candy that starts that discussion or creates a lasting impression of your business. If you are an exhibitor, salesperson, or marketing professional, chances are you receive catalogs full of swag that can be stamped with your logo. In the last several years, the swag industry has upped its game with attractive offerings such as power banks and fitness watches. But there’s still plenty of classic swag. Stress balls, t-shirts and highlighters are still very popular in trade show exhibit halls.

But, dear readers, are you paying attention to how safe these free gifts are?

We here at Abnormal Use want to remind you that even when you are giving away a promotional item to employees or prospects to keep in mind the potential safety hazards. Even if it does not ultimately pose a legal impact on your business, it could negatively impact your image. The Consumer Product Safety Commission is paying closer attention to these items more than in years past. Remember who your audience is and who they come in contact with. Items with sharp edges, small parts, or components that are easily breakable are potential hazards to children.  Also keep in mind not just who the audience is, but the target market audience of the gift. For example, if the event is a trade show in the toy industry, just because the attendees are all adults will not ease the burden of ensuring that the items are child friendly. And speaking of toys, handing out items such as a Nerf football may place you in the realm of children’s product regulations. In a world where lanyards pose choking hazards and ink on t-shirts may be toxic, we cannot be too careful. As a tip, make sure that your lanyards have breakaway clasps, as this greatly reduces the possibility of choking.

Ultimately, do your due diligence when purchasing and giving away promotional items. While cheaper items may bring you more impressions per dollar, they may present lasting legal and image problems down the road. Try to use reputable promotions companies that offer safe and well-documented products. They may not be the cheapest, but they might add an extra layer of protection.