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.

Urban Outfitters and Forever 21 Accused of Ripping Off Tupac Images

Retailer Urban Outfitters is known, in part, for its trendy t-shirts. Whether it be a catchy slogan or a retro graphic, Urban Outfitters covers your t-shirt needs. But, where exactly does it obtain the endless supply of images for all of those shirts? Well, according to a new lawsuit, at least some of those images are pilfered from certain artists.

According to a report from ConsumeristPlaintiff Danny Clinch filed a lawsuit against Urban Outfitters and fellow retailer Forever 21 (and several other entities discussed below) alleging that the retailers infringed on his copyrights by producing t-shirts featuring images of rapper Tupac Shakur. Clinch alleges that he took the photos which were featured on the cover of Rolling Stone magazine in 1993 and 1996. The photos were copyrighted in 2002. Nonetheless, Amaru/AWA Merchandising, the company in charge of licensing TuPac merchandise, entered into a license agreement with a company called Planet Productions which purported to grant Planet a license to use the copyrighted photographs. Planet then authorized an outfit known as Bioworld Merchandising to produce the t-shirts which, in turn, were sold to Urban Outfitters and Forever 21. While Urban Outfitters and Forever 21 are the “big ticket” defendants in this matter, we don’t know what, if anything, they knew about the chain of custody surrounding the Tupac photos’ copyright. Whatever the case, this is not the first time Urban Outfitters and Forever 21 have faced such allegations. As reported by Teen Vogue:

Designer Charles Smith II and Alala founder Denise Lee both recently accused Forever 21 of ripping off their designs. On top of that, people on Twitter have been accusing Forever 21 of stealing fonts from Kanye West’s Life of Pablo merchandise and ripping off Rihanna’s Fenty x Puma sandals. Just last month, Frank Ocean accused the company of plagiarizing a font from his Blonde cover. For Urban Outfitters’ part, Coachella sued Urban Outfitters, Inc. in March over its sister company Free People’s Coachella collection, which it says was sold without the festival’s permission.

Again, who knows what, if anything, Urban Outfitters and Forever 21 knew about any of these alleged copyright infringements? However, at this point, Urban Outfitters may want to just start designing t-shirts itself just to be safe.

The Art of “Litigation” War (Part I)

During a recent bout of insomnia, I found myself reading Sun Tzu’s The Art of War. I have read the ancient Chinese military treatise several times over the years but never during my time as a practicing attorney. As I read the text, now through the eyes of a litigator, I realized that all attorneys could learn from Sun Tzu’s wisdom. Aside from his guidance on the proper usage of spies, attacks by fire, and whatnot, Sun Tzu’s military stratagem is a perfect litigation guide book. While a quick Google search reveals that I was not the first to make this observation, we here at Abnormal Use now offer our perspective on the issue (in a multi-part series, of course).

As an initial matter, we must caution that we by no means view litigation as “war” in the traditional sense. In our experience, litigation is most often handled with the utmost civility between attorneys fairly representing their clients. While litigation is adversarial, we do not suggest it should be hostile. Rather, we contend that some of Sun Tzu’s strategies can aid litigators in effective advocacy.

With this backdrop, we begin our series by analyzing the following tactic from “Laying Plans,” the first chapter of the book:

[W]hen able to attack, we must seem unable; when using our forces, we must seem inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.

Much of “Laying Plans” deals with deception in warfare. While we condemn unethical deceptions in litigation, Sun Tzu’s general premise is well-taken. When you are weak, you must appear strong. When you are strong, you must appear weak. When we enter a courtroom and stand before a judge or a jury, we must speak with confidence. Regardless of the challenges we might face in arguing our positions, we must speak authoritatively. If we do not act and speak like we should prevail, then we should not expect to do so.

A former professor tells a story from his early days of practice. He was to try a criminal case in front of an unfamiliar judge. He received a tip from a local practitioner that the judge was a real stickler for the rules of evidence and, when the judge would hear something objectionable, he would look up from his notes and tilt his head slightly to the right. With this tip in mind, the professor made a point to observe the judge for the duration of the trial. Every time the judge tilted his head, the professor stood and objected.  Without pause, the judge sustained every objection. Even though the professor’s client was ultimately convicted, the judge spread the word of a young attorney who knew the rules of evidence better than any other lawyer who had appeared before him. As a result, the professor quickly became known among the bar as an evidence expert. Little did they know that he had earned a “C” in his evidence class at Duke Law School. They also never suspected that if the judge had asked him to specify the grounds for his objections, he would have fainted on the spot. Nonetheless, he owed his newfound stardom to his ability to speak with authority.

Conversely, there is also merit, as Sun Tzu suggests, to appearing “weak” when you are strong. By “weak,” we do not necessarily mean acting as if you do not know the law. Rather, the appearance of “weakness” can be much more subtle and nuanced. For example, when we have what we believe to be a strong case, it is natural to state that position up front to opposing counsel. While there is a time and place for that, there is much to be said by holding back. As good as your case may be, it is likely not as good as you suspect. There are no “perfect” cases.  As such, rather than championing your position and showing all your cards, be more reserved. Let opposing counsel share his or her side first. It will help you to better assess the holes in you case (which are undoubtedly there).

When in law school, I participated in a civil practice program which allowed 3L students to gain experience by representing indigent parties under the supervision of a licensed attorney. In handling a landlord-tenant matter, I called opposing counsel, an experienced attorney 30 years my senior. After a pleasant conversation, I hung up the phone and saw a scowl from my supervisor. She informed me that I had put myself in a bad position – not because of the substance of the conversation – but because I had said, “Yes, sir” (as any good Southerner would do).  As such, she believed that I had placed myself in an inferior position and would remain that way throughout the litigation. The case ultimately resolved favorably for my client. While I agree that we should show strength when we are weak, I did not agree with my supervisor at the time, nor do I agree with her now. Call it “weakness” or “strength,” but not enough can be said about simply being friendly to opposing counsel.  Regardless of how good (or bad) my case may be, a little bit of kindness goes a long way in litigation. Resolving disputes is never easy, but it is much easier when you have friends on the other side.

Sun Tzu would have said the same, right?

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