Contaminated Food Recalls: The Remedy For A Mistake

Well, it has been a rough month for processed foods.  Several weeks ago, Kraft recalled 6.5 million boxes of macaroni and cheese after the discovery of metal shards in 8 of those boxes.  Last week, frozen-food manufacturer Amy’s Kitchen announced a recall of 73,000 cases of products over listeria concerns.  The recall affects those Amy’s Kitchen products which contain spinach, including vegetable lasagna, pizza, brown rice bowls, and breakfast wraps.  No illnesses have been reported, but the world’s finest chefs are sure to feel the effects of the recall.

It is hard to say whether it is worse to eat metal-laced macaroni or to suffer nausea and severe headaches arising from listeria laden pizza.  As consumers, we would all like to believe that the food we purchase from the grocery store is 100 percent safe.  In reality, mistakes can happen anywhere to anybody.  This is not just an inexpensive, processed food problem.  Even Whole Foods announced a recall of ready-to-eat products earlier in the year due to misbranding and an undeclared allergen.

With that said, product manufacturers clearly want to prevent negative effects as evidenced by Kraft and Amy’s Kitchen having ordered such massive recalls.  In addition to the desire for customer safety, litigation concerns almost certainly played a factor in these decisions.  While recalling 6.5 million boxes of macaroni when metal shards were found in only 8 of them may seem overly broad to some, the costs of litigation for a potentially widespread food contamination case is potentially far less than the cost of the recall itself.  Furthermore, a preemptive recall goes much further in promoting consumer confidence.

Friday Links

kbh

As we previously mentioned, our editor, Jim Dedman, has put together a CLE program for April 1, 2015 in Charlotte, North Carolina on the Salem Witch Trials featuring noted author Katherine Howe. Here’s the information straight from the Mecklenburg County Bar Association website:

The Salem witch trials live on in infamy as one of the most notorious examples of injustice ever perpetrated in American history. Over 100 people were accused and 19 people were put to death by the state for a crime which, less than a generation later, was held to be largely imaginary. Perhaps most chillingly of all, the trials were conducted with great care, and according to legal precedent in place in the early modern Atlantic world. This talk will examine the legal contours of the Salem witch trial, including similarities and differences between other witch trials from the same period, the nature of evidence, and precedent-setting cases that influenced the conduct of the Salem trials, with the goal of posing challenging questions about the historically-contingent nature of justice.

Speaker Katherine Howe is the New York Times bestselling author of four novels and a nonfiction book about witches. She has commented about history and fiction writing on “Good Morning America,” “CBS This Morning,” the National Geographic Channel and NPR. Her fiction has been translated into over 20 languages. A native Texan, she lives in New England and upstate New York, where she is at work on her fifth novel.

Above, of course, is the cover of The Physick Book of Deliverance Dance, Ms. Howe’s first novel.

On another note, according to the ABA Journal, “[t]he family of an 11-year-old who died after eating a chocolate chip cookie that may have contained nuts has sued the supermarket chain that sold it.” We here at Abnormal Use have written about these types of suits in the past. In fact, back in July of 2012, our own Stuart Mauney wrote a piece about packages of peanuts which contain the warning “MAY CONTAIN PEANUTS.” You can read that post here.

And for our favorite tweet of week, we turn to the one below, which says something that needed to be said:

Video Games Make Kids Do Bad Things

Like spending thousands of dollars on a parent’s credit card on microtransactions.  The problem becomes is the issue of whether it is a parent’s fault for failing to monitor the child, teaching the child to know better, or setting up parental controls. Or is it the game developer who knows the psychology behind the hook? Or the console manufacturer who links one’s credit card to the user’s account?  Well, we may never find out, but it is the subject of Jeremy Hillman’s social media post.

Hillman’s son played Fifa 15,  a soccer game made by EA Sports which sold 2.66 million copies in 2014 in the UK alone (according to the ERA). The game features microtransactions. While controversial and typically frowned upon, in-app and in-game purchases are wildly successful.  It’s the reason you saw three “free-to-play” iPhone app commercial during this year’s Super Bowl.  There are many clever ways that game developers use in-game purchases, be it energy in Candy Crush or cooldown timers in Clash of ClansFifa 15 allows players to use actual money or in-game money to purchase groups of players, like virtual packs of baseball cards, but that once purchased, the player can use during game play.

According to Hillman’s post, his son attempted to purchase several “player packs” in Fifa 15 costing around $100 but allegedly had not received them.  After talking with Microsoft about a handful of $100 purchases, Hillman was asked to confirm numerous other  charges to the tune of $4,500.  Hillman admits that “[his son] became addicted to the game, spending $100 was as easy as clicking a button, there were no barriers, and it didn’t feel like real money even though it had a dollar sign on the screen.” Further, Hillman says he has taken responsibility for his part, which as I see it includes not understanding what his child was playing, not catching months worth of other charges, and not using the parental controls, among other parenting missteps.

However, Hillman wants Microsoft to be held accountable for failing to protect him from his son.  “If there’s a lawyer out there that wants to start a class-action against Microsoft and force them into compensation and adopting a better policy, I’ll happily sign up.” Hillman’s best idea is instituting a system like iTunes, where the user must enter a password every time he or she makes a purchase.  Alternatively, Hillman suggests that the console maker (not game developer or credit card company) should flag an account for suspicious behavior and require some confirmation, as “[b]anks and credit card companies regularly do this.”  I would think that people who have suffered overdraft fees as a result of boilerplate click-wrap may disagree, but I digress.

I regret that microtransactions exist and agree with many of the articles (just Google microtransactions ruining games) that contend they robbing games of the fun they initially offered.  However, they generate immense sums of money, and thus, they aren’t going anywhere anytime soon.  It will be interesting to see how parents, like Hillman, and companies, like Microsoft, will adapt to the inevitable future.

More On The Arsenic-Wine Lawsuit

As we discussed on Monday, customers may be getting more than a cheap buzz from their inexpensive bottles of wine.  A class action lawsuit filed in California alleges that dozens of low-end California wines have dangerously high levels of arsenic in them.  Arsenic is a carcinogen that, in high doses, can lead to serious health problems.  The defendants include Sutter Homes and Trader Joes’s.

So what exactly are the plaintiff’s alleging in this case?  The complaint alleges that “just a glass or two of these arsenic contaminated wines a day over time could result in dangerous toxicity to the consumer.” Yet the plaintiffs do not assert any causes of action or allegations that anyone has suffered any actual injury from the drinking these “contaminated” wines.  Rather, the complaint asserts causes of action for violations California’s consumer protection laws, including unfair business practices, misleading and deceptive advertising, and the consumer legal remedies act. The suit seeks injunctive relief, civil penalties, disgorgement and damages, and certification of a class of California consumers who purchased the named wines since 2011.

A spokes person for the wine industry has issued a statement in response to the lawsuit and believes that the suit is meritless.  Wine Institute vice president Nancy Light told Wine Spectator, “[t]here are no [EPA] limits [on Arsenic] for other foods and beverages—including wine—because they’re not consumed at the same level as water and not deemed to be a risk. There is no research that shows that the amount of arsenic in wine poses any health risks to consumers.”

So is your cheap wine going to kill you? Seems unlikely. Do the Plaintiff’s have case related to misleading advertising and other unfair business practice? Maybe. A complete list of the wines at issue in this case can be found here

Supreme Court of New Hampshire Reminds Us How Facebook Works

So, it’s 2015, so we’re not sure that a court needs to dedicate a section of an opinion to “Explanation of Facebook Technology Relevant to this Case.”

In February, the Supreme Court of New Hampshire did just that in an appeal arising from the defendant’s convictions for stalking and witness tampering.

In its opinion, the court noted as follows:

Facebook is a widely-used social media website, available for free to anyone with an e-mail account, whose stated mission is to give people the power to share and make the world more open and connected. Facebook and other social media sites are becoming the dominant mode of communicating directly with others, exceeding e-mail usage in 2009. With over one billion active users, Facebook is revolutionizing the way people behave and interact with one another in their everyday lives through site functions that facilitate sharing information, such as a user’s “profile page,” the ability to send personal messages to other users, and by allowing users to become “Facebook friends” with other users.

A profile page is a webpage that is intended to convey information about the user. By default, Facebook profile pages are public. When a user shares something publicly, anyone including people off of Facebook can see it. Alternatively, Facebook users can restrict access to their Facebook content using Facebook’s customizable privacy settings. Access can be limited to the user’s Facebook friends, to particular groups or individuals, or to just the user.

State v. Craig, No. 2013-229 (N.H. Feb. 12, 2015) (quotations and citations omitted).

We’ve deleted the citations, but we note that the court cited to law review articles and quoted from Facebooks pages directly.

But are these basic principles really so novel that they need to be stated and then supported with citations? If the authority the court is citing indicates that Facebook has one billion active users and that social media usage has surpassed email as a communications medium, isn’t it a familiar enough phenomena in society to go without saying? Can’t the court simply jump to the discussion of the relevant Facebook usage facts without pausing to remind us how it works? Do the terms profile page and Facebook friends really need to be in quotation marks at this point?

Gasp! Cheap Wines Allegedly Contain Arsenic, Suit Claims

According to a report from CBS News, a proposed class action lawsuit has been filed in California against a number of America’s top-selling wine producers alleging that some of their wines contain dangerously high levels of arsenic.  Specifically, they allege that certain wines contain up to four and five times the amount of arsenic the Environmental Protection Agency allows for drinking water.  There are 31 different wine brand names listed in the suit, including, among others, Franzia, Menage a Trois, Sutter Home, Simply Naked, and Beringer.

The lawsuit comes on the heels of a study by Kevin Hicks of BeverageGrades, a wine analyzing laboratory. Because there are few federal regulations on the labeling requirements for wine, Hicks decided to see exactly what makes up some of our finest wines.  After testing 1,300 bottles of wine, he made a shocking discovery.  According to Hicks, “The lower the price of wine on a per-liter basis, the higher the amount of arsenic.”  We here at Abnormal Use would have never anticipated such a revelation.

We know that hearing the word “arsenic” will always cause people to panic.  However, we do not know whether the allegations contained in this new suit, if true, are a cause for any real concern. The effects of arsenic are seen upon high levels of consumption over extended periods of time. Water is the only beverage which the EPA has set arsenic limits because, presumably, people drink more water over their lifetimes than other beverages like wine. The highest arsenic levels cited in the lawsuit are less than half of the limits set by other countries such as Canada.

So, what does all this mean?  We have no idea.  What we do know is that there should be no surprise that wine from a box may not be as organic as you may like.  We here at Abnormal Use were only surprised that our cheap wine favorites, Boone’s Farm and Mad Dog, didn’t make the list.

Friday Links

jughead

So, as you know, dear readers, we are in the habit of posting legally themed comic book covers on our Friday posts. After five years of doing so, it’s become increasingly more difficult to find such covers. We often rely on a series of wonderful comic book websites to assist us in our searches for such covers, and it is not uncommon for us to input law related search terms into the search fields of the website at issue. This week, we input the search term “police,” to see if there might be some sort of criminal procedure we could explore in the comic book world. This search led us to the comic book series above, Jughead’s Time Police.

Just look at that cover. “Jughead! No! Don’t eat that spaghetti! You’re destroying the whole world!”

Here’s how Comicvine describes the narrative of the short lived series:

Short-lived science fiction series by Archie Comics. Jughead is recruited into the Time Police, a crosstime organization devoted to guarding the timestream from paradoxes and alterations. His partner and love interest is January McAndrews from the 29th century.

This is the greatest idea in the history of world literature. We are crestfallen to learn that the series lasted but six issues.

On an unrelated note, who watched HBO’s “The Jinx”? Any thoughts?

Pro tip: Follow our writers Nick Farr (@NAFarr) and Kyle White (@Kyle_J_White) on Twitter.

Salem Witch Trials CLE In Charlotte, NC on 4/1

Our editor, Jim Dedman, has put together a CLE program for April 1, 2015 in Charlotte on the Salem Witch Trials featuring noted author Katherine Howe.

This is not an April Fool’s Day joke.

Here’s the information straight from the Mecklenburg County Bar Association website:

The Salem witch trials live on in infamy as one of the most notorious examples of injustice ever perpetrated in American history. Over 100 people were accused and 19 people were put to death by the state for a crime which, less than a generation later, was held to be largely imaginary. Perhaps most chillingly of all, the trials were conducted with great care, and according to legal precedent in place in the early modern Atlantic world. This talk will examine the legal contours of the Salem witch trial, including similarities and differences between other witch trials from the same period, the nature of evidence, and precedent-setting cases that influenced the conduct of the Salem trials, with the goal of posing challenging questions about the historically-contingent nature of justice.

Speaker Katherine Howe is the New York Times bestselling author of four novels and a nonfiction book about witches. She has commented about history and fiction writing on “Good Morning America,” “CBS This Morning,” the National Geographic Channel and NPR. Her fiction has been translated into over 20 languages. A native Texan, she lives in New England and upstate New York, where she is at work on her fifth novel.

Pretty cool, eh?

For more registration information, click here.

Can Defense Lawyers Co-opt The Reptile Strategy?

Reptile

In 2009, David Ball and Don Keenan published a book called REPTILE: The 2009 Manual of the Plaintiff’s Revolution.  The $95 book is meant to teach Plaintiff’s attorneys “how to make tort reform’s impact on juries insignificant by using the jurors’ most primitive instincts of safety and self-preservation.” For those who have not read the book, it begins with the premise that insurance companies, big business, et cetera, have convinced prospective jurors via tort reform propaganda campaigns that jury verdicts impact the economy in their community – that jurors walk into the courtroom with the understanding that jury verdicts threaten their basic survival.  Keenan and Ball explain that jurors will disregard the facts, law, and so forth to do whatever it takes to survive and that tort reform has taken control of those survival-oriented decision making parts of the brain.

Accordingly, the Reptile strategy is used to retake control of the same “reptile” part of the brain and use that control to manipulate jurors into returning large verdicts.  For the reptile strategy to work, the jurors must be convinced that public safety, and their personal survival, will be negatively impacted unless they return a verdict in favor of the plaintiff.  One of the goals of the reptile strategy is to direct the jury’s focus to the total harm that could have happened, not the harm which actually happened.  The strategy involves establishing “safety rules” that protect the public from harm and then showing that the defendant violated those rules.

At first glance, it seems that the reptile strategy is a gimmick designed to bilk plaintiff’s attorneys out of $95; however, those who have faced the reptile strategy know that it can be dangerous.  In fact, Keenan and Ball’s website boasts that the reptile strategy has been responsible for $6,211,466,889 in verdicts and settlements.  In reading the book, we wondered whether the reptile strategy can be used by the defense as well, and two possible uses for the reptile by the defense come to mind.

We first wonder whether the reptile tactic can be employed in support of affirmative defenses such as contributory negligence arguments.  The reptile tactic involves establishing arbitrary safety rules which allegedly protect the public and then showing that the defendant broke those rules, thereby endangering the public.  Why can’t the defense establish that, in the process of contributing to or causing his own injuries, the plaintiff endangered the public?  Why can’t product warnings provided to the plaintiff be safety rules which protect not only the plaintiff, but the public who may be in close proximity while the product is being used?  Why doesn’t the user of the product who disregards product warnings thereby endanger the public?  There are numerous articles on combating reptile tactics by reframing questions, objecting, filing motions, et cetera.  Obviously, if a defendant takes the position that the Court should exclude the reptile from the courtroom, it would be unwise for the defense to then employ the tactic.  We simply suggest here that, if the reptile does end up in the courtroom, perhaps the defendant can fight reptile with reptile.

We also wonder whether the reptile tactic can be employed by the defense to present to the jury all of the safety rules that the defendant did follow.  That is, can the reptile brain be calmed by showing that the defendant was compliant with x number of safety rules at the time of the incident? Depending on the facts of the case, can the defendant show that it complied with the myriad of OSHA regulations, ANSI standards, FMVSS regulations, local ordinances, municipal laws, or any rules or regulations which are potentially applicable?  And that compliance with these rules not only provided protections to the plaintiff, but to the public at large?  Obviously, this is already done to an extent, but we simply ask whether the reptile tactic can be employed in this context by the defense.

Willie Nelson Latest Target of Music Copyright Infringement Suit

Just days after a jury found Robin Thicke and Pharrell liable to the tune of $7.4 million for channeling the late Marvin Gaye in creating their mega hit “Blurred Lines,” Willie Nelson finds himself as the target in a similar lawsuit.  According to a report from the Atlanta Journal Constitution, Ashley Wilson and the estate of Mark Reynolds have filed suit in federal court in Atlanta against Nelson claiming that his song, “Roll Me Up and Smoke Me When I Die” is a rip-off of their song bearing the same name.  Specifically, they allege that:

[T]he infringing work contains the same title and dominant line in the chorus as the original work, with substantially similar melody, rhythm and cadence, as well as substantially similar lyrical themes.

Nelson released his song on the Heroes album back in 2012.  Wilson and Reynolds allegedly wrote theirs in 1990, performed it throughout the 1990’s, and released it on Georgia radio.  In March 2012, prior to Nelson spending five weeks atop the American radio charts, the Wilson/Reynolds version was uploaded to YouTube.

We here at Abnormal Use will refrain from jumping to quick conclusions in this matter. Certainly, if Nelson is profiting by singing the exact same song of another without proper attribution, then he should pay for it.  On the other hand, we seriously doubt Nelson, Wilson, and Reynolds are the only potheads persons to come up with some ingenious title like “Roll Me Up and Smoke Me When I Die.”  If they all just happen to have similar stoned ideas, then perhaps no real infringing harm is done.

We don’t know what effect, if any, the Thicke/Williams lawsuit has had on this one.  However, we are concerned that with the verdict, these music infringment suits shall become more and more popular.  As both lawyers and music lovers, we are not happy with this turn of events.  We have often expressed concern that music has been on a steady decline since the 1990’s because every good idea has been used.  Every musician is influenced by those who came before him or her and those influences are naturally recycled into new songs.  What do we think will happen to music if every time one of those influences peeks its head in a new song, the forefather brings an infringement suit? Musicians could never listen to other music out of fear it might surface in their own.  And, if they never listened to music, they wouldn’t know what music is so they would never become musicians in the first place!  Alas! Music is dead.

Or, maybe we are exaggerating slightly.  Thinking about Willie Nelson songs will do that to you.