Call Ghostbusters . . . and give me my security deposit back!

Sometimes, we here at Abnormal Use feel like we’ve seen it all, as far as crazy lawsuits go.  However, every now and then, a lawsuit comes along that makes us do a serious double take.  This is one of those cases.  A New Jersey couple fled their rental home just one week after moving in and is now suing for the return of their security $2,500 deposit.  The reason?  They claim the home is haunted.

Apparently, Josue Chinchilla and his fiancé, Michele Callan, thought they rented Jersey’s version of the Amityville Horror house. They claimed to have heard bizarre sounds and seen flickering lights. The couple also alleges that a voice whispered, presumably in an ominous fashion, “Let it burn!”  But it gets better (or worse depending on your viewpoint). Chinchilla says that once, a “shapeless dark apparition” tugged at the sheets when he was in bed and grabbed his arm.  The couple left the home one week after moving in, though they had paid a full month’s rent along with the security deposit.

In prosecuting the suit, the plaintiffs hired two sets of paranormal investigators.  These supernatural detectives say something is amiss at the home but disagree whether Chinchilla and Callan are plagued by a “residual haunting or an active haunting.” Now that’s a battle of the experts. I wonder if Plaintiff’s counsel will be able to get these two qualified under Daubert?

The landlord, orthodontist Richard Lopez, counter-claimed against the couple for breaking the lease.  Mr. Lopez’s attorney, David Semanchik, said his client has been renting the house to tenants for more than 10 years and this is the first time anyone has claimed the house is haunted. He thinks Callan and Chinchilla can’t afford the rent and are using the ghost story as cover.

We have to wonder if Mr. Semanchik considered counter claiming for the plaintiffs bringing the ghosts with them to the property?

Friday Links

We all remember Hank Ketcham’s “Dennis The Menace” comic strip.  It was so popular that the strips were collected and published in volumes, such as “Dennis The Menace Vs. Everybody,” depicted above and published way back in 1957.  We assume that with that title, Dennis has sued everybody, making him the Plaintiff.  Is he being cross examined on the book’s cover? We’d like to see that, although we’re a bit disappointed that Dennis has elected not to wear proper courtroom attire.  We wonder what Mr. Wilson would say about that. (Hat tip: Patrick Condon by way of Chuck Klosterman).

If you missed last night’s episode of NBC’s “Community,” you need to seek it out immediately, as it is a hilarious parody of NBC’s “Law & Order” franchise, complete with a send-up of all of that show’s legal cliches.  The best part: The characters stage a mock trial of sorts in which they make many frivolous objections (and then attempt to withdraw their own objectionable cross examination questions). Our favorite: When the character of Annie (played by Alison Brie) impressively begins to lay the foundation for a series of impeachment, her opponent exclaims: “Objection, she’s clearly ramping up to something!” The episode is entitled “Basic Lupine Urology,” a play on the name of “Law & Order” showrunner Dick Wolf.  For the time being, you can watch the episode on NBC’s official website here.

You may recall that in last week’s edition of “Friday Links,” we showed you the cover of Mr. District Attorney #63, published way back in 1958.  On it, the title character presents a suspect, “The Man in the Martian Suit,” to the police sergeant for fingerprinting.  Friend of the blog Kevin Underhill, who runs the seriously funny Lowering The Bar legal humor blog, couldn’t resist weighing on that comic book cover.  See his thoughts here.

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Happy Meal lawsuit dismissed. Kids everywhere rejoice.

Kids all across California are breathing a sigh of relief.  California Superior Court Judge Richard Kramer recently dismissed a proposed class-action suit that sought to stop McDonald’s from providing free toys in its signature “Happy Meals.”   As we previously noted, the lawsuit was filed by Monet Parham, a mother of two, and the Center for Science in the Public Interest who accused McDonald’s of unfair and deceptive practices in using toys to promote Happy Meals. The suit alleged  that McDonald’s “exploits very young children” and “harms their health by advertising unhealthy Happy Meals with toys directly to them.”  It further alleged that “children 8 years old and younger do not have the cognitive skills and the developmental maturity to understand the persuasive intent of marketing and advertising.”

This suit would have to rank among the most frivolous we’ve seen in a while.  The Happy Meal is clearly not “unfair” or “deceptive” with respect to the purchaser.  Now, we certainly agree that a bunch of 6 year old kids lack the cognitive skills needed to understand the world of marketing.  You know what else they lack?  The means to purchase a Happy Meal on their own.  It’s not like kids are marching out the front door, walking down the street to the local McDonald’s franchise, slapping down a crisp $10 bill on the counter , and asking for a Happy Meal without an adult of any kind involved in the transaction.  No, the parents are the ones making the decisions to purchase the Happy Meals and allow their kids to eat them.  They should certainly be able to figure out what’s going on.

Ms. Parham was actually quoted as accusing McDonald’s of “getting into my kids’ heads without my permission and actually changing what my kids want to eat.”  She added, “This litany of requests [to eat at McDonald's] is draining and very frustrating for children. I would like this practice to stop.”  Perhaps the prayer for relief in this case should have included training to assist Ms. Parham with saying “no” to her daughter.

We are glad to see the food police get shot down on this one.  Judge Kramer’s order did not give his reasoning, but you would think dismissing such a stupid lawsuit would be a no-brainer.  Then again, this is California we are talking about here.  Some parts of the state have already take it upon themselves to act as the parents and have attempted to ban the selling of toys in children’s meals that do not meet state nutritional guidelines.

Transformers v. “Transformer”: Judge denies injunction preventing tablet manufacturer from utilizing franchise trademark

According to media reports, recently, a federal judge denied toy manufacturer Hasbro, Inc.’s request to enjoin Asus from selling its Eee Pad Transformer Prime tablet until a pending lawsuit between the parties is resolved.  As you may know, Hasbro introduced Transformers toys into the marketplace back in 1984.  Since that time, the Transformers franchise has exploded, culminating in three blockbuster movies in the last five years.  So it’s safe to say that the Transformers and their fearless leader, Optimus Prime, are now well-ingrained in most American households.  For some reason, Hasbro has a problem with Asus’ choice for the name of its Android-powered tablet.

In December, Hasbro filed suit against Asus in the U.S. District Court for the Central District of California for trademark infringement, dilution, and unfair competition.  According to the complaint, Hasbro has lent its name and logo for a number of computer-related products including an educational laptop, USB storage drives, and laptop skins.  Asus began marketing a tablet referred to on its website as the “Transformer.”  After discovering the tablet, Hasbro sent Asus a cease and desist letter.  Asus’ response?  It began marketing a second-generation tablet known as the “Transformer Prime,” the exact name of a Transformers television series launched in 2010.  Allegedly, Asus has gone so far as to market the “Transformer Prime” by evoking the home planet of the Transformers, Cybertron.  At this time, it does not appear Asus has contacted Megan Fox in an attempt to make their tablet more marketable.  The case is captioned Autobots v. Decepticon Hasbro, Inc. v. Asus Computer International, Inc., No. CV11-10437PSG (C.D.Ca. Dec. 16, 2011).

Even though the suit is still pending, the judge’s denial of the preliminary injunction should be viewed as a significant victory for Asus.  From some of the reported language of the judge, he has clearly thought this suit through.  According to paidContent.org, the judge stated:

The Autobots are led by the virtuous Optimus Prime character, while the Decepticons follow the powerful Megatron. According to Hasbro, Optimus Prime is intended to epitomize honor, duty, leadership, and freedom.

In the third film, an Autobot character known as “Brains” disguised itself as a Lenovo ThinkPad Edge Plus laptop [...] Hasbro developed the “Transformers Prime” animated television series, which began airing in approximately November 2010. The series focuses on the life and story of the Optimus Prime character. “Prime” was added to the “Transformers” mark in the program’s name to emphasize this focus. Thus far, the series has received several Emmy nominations and awards and has been aired in 170 countries.

But:

There is nothing gimmicky about the Eee Pad Transformer or the Eee Pad Transformer Prime, nor can it be said that there is any similarity in the use or function between Hasbro and Asus’s products.

Further, the Court noted that “transformer” was an accurate description of the Asus tablet because the tablet could “transform” into a semi-truck laptop.

As a matter of full disclosure, we here at Abnormal Use must admit that we are slightly biased in this case.  As children of the ’80s and huge fans of Megan Fox, the Transformers are near and dear to our hearts.  We can’t hear the word “transformer” without suspecting the noted object to be a robot in disguise.  Because of this, we must throw our support behind Team Hasbro even if we have no legal basis for doing so.

Sure, the judge is right.  No one really believes Asus’s tablet is going to turn into an Autobot or a Decepticon.  But who thinks the products actually authorized by Hasbro would?  Chevrolet marketed an authorized Transformer Camaro following the release of the first Transformers film, but no one expected their car to turn into Bumblebee.

We won’t go so far as to suggest that Hasbro should have full control over the word “transformer.”  In this case, however, Asus had some interest in cashing in on the Hasbro product’s success.  Yes, their product “transforms” so to speak, but we are kidding ourselves if we think the Transformers didn’t have some bearing on the name choice?  Asus named two successive products with infamous Transformers lingo and used a Cybertron marketing campaign.  Coincidence or clever word choice?

Woman Sues McDonald’s, Ex-Husband for Turning Her Into a Prostitute

Once again, McDonald’s finds itself drug into the court system.  But this time, the lawsuit has nothing to do with piping hot coffee.  According to reports, Shelley Lynn has filed suit in a California federal court blaming the fast food chain and her ex-husband, Keith Handley, for turning her into a prostitute.  This is not the type of success story McDonald’s typically promotes on its employment applications.

Before we jump to conclusions, there does not appear to be any evidence McDonald’s required the former store clerk to add new meaning to the term “Happy Meal.”  Rather, Lynn claims McDonald’s negligently supervised and retained Handley, who owned a franchise 20 years ago.  According to the complaint, Handley hired Lynn in 1982 as a counter person.  The two started dating in 1985.  Thereafter, Lynn revealed her dream of becoming a Vegas showgirl.  To help her achieve that ambition, Handley reportedly bought Lynn a house in Vegas.  Handley then allegedly pressured Lynn to find a job in a Vegas brothel to help pay for the home.  Succumbing to pressure, Lynn claims she found a job in 1986 at the Chicken Ranch where she became a “top booker.”  She married Handley in 1988, but the two later divorced.  There are no indications from the reports as to how long Lynn claims she remained a prostitute.

We must question how McDonald’s became a player in this lawsuit.  First, we are aware of no evidence at this time that McDonald’s knew or should have known that Handley was a potential sex trafficker.  Lynn alleges in her complaint that McDonald’s did not have a proper procedure for reporting grievances.  However, the only grievance she mentions is an incident where she was allegedly fired for insubordination.  There were no indications that the insubordination arose out of her apparent hesitancy to become a prostitute.  In fact, it appears, at least from the complaint, that Handley allegedly pressured her to enter the business only after she moved to Vegas – when she was no longer a McDonald’s employee.

Second, Lynn will have difficulty showing that it was reasonably foreseeable McKinney would hire an employee, start dating her, move her to Vegas, and force her to become a prostitute.  There’s probably a law school examination question in these facts somewhere. Sure, McDonald’s probably doesn’t want to start a pattern of franchise owners engaging in intimate relationships with employees.  But a relationship by itself is not a grounds for liability in this case.  The issue is whether it was foreseeable McKinney would allegedly force Lynn into prostitution.  There are no allegations of this conduct with any other employees.  The conduct occurred after the period in which Lynn was employed by McDonald’s.  The conduct did not take place on McDonald’s property.  While we here at Abnormal Use are not judges, this doesn’t exactly sound like a case of negligent supervision/retention.

The Charlotte Office of Gallivan, White, & Boyd, P.A.

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. began this blogging thing in January 2010 as a law firm with one office in Upstate South Carolina.  Now, more than two years later, we have three offices in two states.  As you know, we recently celebrated the first anniversary of our Charlotte office. Our editor, Jim Dedman, just moved from our Greenville, South Carolina  home office to our Charlotte office.  And there is more news from Charlotte. After a number of months of occupying what was called the “temporary permanent space,” a smaller, nondescript series of offices in which we worked while waiting for our “permanent permanent space” to be renovated and completed, we have finally arrived in the permanent permanent space.

We are mighty pleased with our new digs.  We even have a private terrace:

How about that? So, update your address books and note the change in suite numbers in the left hand sidebar on our site.

And if you ever find yourself in the SouthPark area of Charlotte, North Carolina, let us know.

Friday Links

Above, behold the cover of Mr. District Attorney #63, published way, way back in 1958.  Note that the cover story is entitled “The Man in the Martian Suit,” which suggests something about the events depicted upon the cover.  Our hero, the district attorney, presents himself and the presumably costumed crook to the police fingerprint desk.  Says the DA: “Check those fingerprints, sergeant! We’ll find out who this masquerading criminal is!”  Replies the sergeant: “But, Mr. D.A. . . . These prints are like nothing on this Earth!” You would think that the district attorney, in apprehending the “man in the Martian suit,” would have removed the Martian suit from the suspect before presenting him to the police sergeant for print.  Or, if the suit was, in fact, not a suit, but the exterior of an extra-terrestrial, you’d think the D.A. would have figured it out before this point in the criminal process, too.  Sigh.

Friend of the blog Max Kennerly, of the Litigation & Trial law blog has an interesting post: “How To Excel At The Basics As A Young Litigator.” Complete with Robert Caro references! You can follow Max on Twitter here.

We are disappointed to report that friend of the bog Stephen J. McConnell has announced his retirement – temporary, hopefully – from the famed Drug and Device Law blog.  You can read his last post – published past Monday – here.  Through our blogs, we’ve become pals with Steve, and he very recently participated in our collection of “My Cousin Vinny” reviews. Although our two blogs have previously quibbled on musical issues, we once joined forces to compile a huge list of songs about lawyers, judges, and attorneys, which was an immense amount of fun. We even quoted Steve in a prior edition of Friday Links on the occasion of the death of Clarence Clemons. In the mean time, Jim Beck and company will continue to provide sharp commentary on the drug and device beat.  We’ll miss you, Steve.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

Funny Shoes = Funny Lawsuit?

Virbram, the maker of those funny looking “toe shoes” called FiveFingers, has been sued over claims made in its advertising relating to the purported health benefits of its products.  The FiveFingers shoes are meant to mimic barefoot running, which Vibram claims is actually healthier than running in a traditional shoes.  The class action lawsuit filed in federal court in Massachusetts alleges that Vibram made deceptive statements about the benefits of running barefoot.

According to the complaint:

“Defendants have claimed that running in FiveFingers, inter alia, improves posture and foot health, reduces risk of injury, strengthens muscles in feet and lower legs, and promotes spine alignment. Defendants have used these claims to charge a premium for FiveFingers that consumers readily paid, believing FiveFingers would confer upon them significant health benefits. Unbeknownst to consumers, Defendants’ health benefit claims are deceptive because FiveFingers are not proven to provide any of the health benefits beyond what conventional running shoes provide.”

Interestingly, the plaintiffs’ lengthy complaint repeatedly claims that the FiveFingers product causes injury, yet presents no scientific evidence to support this claim.  Basically, the plaintiffs argue that there are no studies to support Vibram’s claims.  The plaintiffs then turn around and present no science to dispute Vibram’s claim.  Plaintiffs don’t rely on any type of scientific and controlled testing that they expect of Vibram.  Instead, they offer on the same anecdotal “evidence” that they criticize Vibram for using.  They quote a story in which a podiatrist says that 85 percent of her patients sustained injuries trying to transition to minimalist shoes.  They, of course, fail to note that a podiatrist is unlikely to be examining runners who have not sustained some sort of injury.  They also fail to mention whether that podiatrist’s patients followed Vibram’s warnings against over training.

Where this suit goes from here could have wide reaching impact on the footwear industry.  Many other shoe companies have been jumping on the barefoot running bandwagon, including New Balance, Merrill, and Adidas.  These companies use technology similar to that of the Vibram FiveFingers.   Merrill seems to have  aggressive advertising materials similar to that of  Vibram.  However, New Balance and Adidas tend to make far less claims as to the benefits of barefoot running.

In the interest of full disclosure, I actually own a pair of FiveFingers and a pair of the New Balance Minimus.  I’m happy to report that haven’t sustained any running injuries while using theses shoes.  Then again, I don’t think anyone would accuse me over training.

Keys to a Successful Mediation: Patience, Perseverance, and Jill’s Mother?

Some years ago, I represented a family-owned trucking company, whose dump truck driver tried to pass a car on a narrow two-lane road in rural South Carolina.  The driver was speeding and not paying attention.  He ran the car off the road, injuring the car’s driver, “Jane,” and her passenger, “Jill.” We’re all about the pseudonyms here at Abnormal Use. Both Jane and Jill hired a local lawyer and then sued the trucking company.

Jane was more seriously injured, and we ended up settling her case at mediation.  As I recall, we paid her a significant sum of money.  Despite that fact, when the mediator came to our conference room, he said he had “good news and bad news.”  The good news was that the case was settled.  The bad news?  He said we needed to leave the office through the back door!  This is the first, and last, time in my legal career that has happened.

To this day, I do not know how or why we may have offended Jane.  Perhaps she doubted the sincerity of our apology on behalf of the trucking company.  Perhaps she was tired and irritated after a long day of intense negotiations.  Resolution often comes only when both parties have been pushed beyond their comfort level.  Patience and perseverance are often the keys to a successful mediation.

Then, there was Jill.  She was not hurt as seriously as Jane, had fewer medical bills, and was able to return to work.  Yet, as some Plaintiffs somehow do, she testified about a number of physical limitations which were inconsistent with her medical condition.  She did have a diagnosis of meralgia paresthetica, an unusual neurological condition with which I was previously unfamiliar.

We also mediated Jill’s case.  We were making little progress in settlement negotiations when the mediator asked me, “Mauney, why are you being so cheap?  This lady is hurt!”  I told him that we had recently conducted surveillance, which had not yet been disclosed to Jill or her lawyer.  The surveillance – as it sometimes does – showed Jill doing some things which were inconsistent with her deposition testimony, including walking around a flea market for four hours without sitting down or resting and hopping up her apartment steps two at a time without holding onto the railing.  The mediator suggested we hold off on disclosing this information until later in the mediation.  Yet another key to a successful mediation is being able to trust the mediator with this type of information.  In this instance, I trusted the mediator’s judgment on when we should disclose the surveillance during mediation.

When we appeared to reach an impasse, the mediator asked for the surveillance tape to show Jill and her lawyer.  Shortly thereafter, we began to make more progress, as Jill and her lawyer became more reasonable.  My client and I were pleased that we were making real progress toward settlement.

Then, that progress came to a quick halt.  We hit the wall.  The mediator told us that we were not going to be able to settle the case.  Why?  Jill, a grown woman, in her mid 30’s, called her mother from the mediation and told her about the surveillance.  The mother was not amused.  In fact, she accused the big, bad trucking company and its evil insurance company of spying on her daughter.  Jill’s mother was furious; she told her daughter that she had better not come home that day if she accepted the offer that was on the table at that time.

It is always interesting to learn who you need to persuade to get a case resolved.  We had no idea that Jill’s mother was someone of such great influence.

And now for the rest of the story.  Fast forward a few months later to the jury trial of Jill v. Big Bad Trucking Company.  (Yes, that was the actual case caption!) We expected the jury to return a verdict for Jill.  This suspicion was influenced, in part, by the fact that our driver smelled of alcohol when he showed up for his deposition.  He was nowhere near the courtroom when we tried the case.  We offered testimony from a medical expert to refute Jill’s injury claims and also called the private investigator as a witness to show the surveillance tape. Just as expected, the jury returned a verdict for Jill.  But Jill and her mother must have been disappointed, as the verdict was a full 25 percent less than we had offered at mediation.  I always suspected that Jill’s lawyer knew we were offering a settlement that was fair and reasonable.  He probably also thought that Jill’s mother should have stayed out of it!

[Editor’s Note: Click here for Stuart Mauney’s previous story of how he got burned at mediation by his own Facebook post.]

The Abnormal Use Informal Guide to Law School Rankings

Recently, U.S. New & World Report released its annual law school rankings.  After finding your alma mater on the list, we are sure you were left with a plethora of questions.  As a public service, we here at Abnormal Use are here to answer some of your most pressing questions.

Question 1: What do these annual rankings mean, anyway? Not nearly as much as U.S. News wants you to believe.  The publication ranks each of the 195 fully-accredited law schools based on a number of factors, including peer and judicial assessments, LSAT scores, bar passage rates, faculty resources, and employment rates for graduates.  Unfortunately for our own Nick Farr (UNC-Chapel Hill), success of each school’s basketball team is not among the criteria.

Most proponents of the rankings do not question the criteria itself, but rather, the weight each factor is assigned in the formula.  If the weight is manipulated, the rankings could easily be different.  For example, the peer assessment among law school deans accounts for 25 percent of the overall score, while the assessments of judges and legal professionals only account for 15 percent.  Apparently, the opinions of law school deans with a vested interest in the rankings are more valuable than the opinions of judges and lawyers who encounter alumni on a daily basis.  The employment rate of alumni is weighted a whopping 20 percent of the rankings.  Obviously, this is an important factor, but the rankings do not account for the numerous external variables affecting the employment rate.  By way of illustration, some states contain a disproportionate amount of law schools compared to their population.  While legal jobs are scarce, the overabundance of new lawyers in these states makes finding a job even more difficult.  When employment rates account for 20 percent of the criteria, law schools in these states surely took a hit in the rankings.

Question 2:  Oh, no!  My law school can’t possibly be ranked that low! Whatever will I do? First, don’t sweat it.  Most of you reading this blog are probably already gainfully employed attorneys.  Aside from the prestige of graduating from a top-tier law school, these rankings probably have little to no bearing on your legal career.  No deposition has ever been cancelled or trial continued upon the discovery that counsel’s law school slipped 8 places in the U.S. News rankings.  You have the same degree as your colleagues, and we are sure that you are just as competent.  If opposing counsel champions his or her law school’s U.S. News ranking, just smile and do on what the rest of us do – be a lawyer.

Second, if you are a recent law school grad looking for a job, take the rankings with a grain of salt.  Chances are most firms in your state are more interested in hiring from in-state law schools than they are those graduating from the U.S. News top ten schools. Sure, you don’t want to go head-to-head with a summa cum laude Yale graduate, but those are few and far between, especially if find yourself far from New Haven  Your difficulty finding a job has much more to do with the poor legal market than your school’s ranking.  Keep your head up.  Your time will come. This too will pass. You know the drill.

Question 3:  In light of these rankings, will I ever become a Supreme Court justice? Probably not, but to our knowledge, the President of the United States rarely consults with U.S. News before making appointments.  Unless you went to Harvard or Yale, you probably never stood a chance anyway.  Of the nine current justices, six graduated from Harvard and three from Yale.  Thirty-seven out of the 83 justices who actually attended law school graduated from schools ranked in the top-4 of U.S. News‘ rankings (Harvard-18; Yale-10; Columbia-7; Stanford-2).  Didn’t graduate from one of these schools?  Don’t fret.  The William Mitchell School of Law (No. 127 in the U.S. News rankings) produced the fifteenth Chief Justice, Warren Burger.

Bottom Line.  Take these rankings with a grain of salt.  If your school ranked highly, take pride in the fact that someone, albeit the U.S. News, acknowledged what you already knew – that you received a quality education.  If your school didn’t fare as well, who cares?  You have the same degree as each of our Supreme Court justices.