Our Office Appeared in the 2001 film SHALLOW HAL.

As you know, sometimes we here at Abnormal Use discuss popular culture, whether it be comic books, music, or the cinema. This weekend, we received a curious email from an associate at our firm: “Did you know that our Charlotte office was in Shallow Hal? The exact building and everything. I just had this realization.” Pictured above is the screen capture he attached to that email.

Oh, my goodness.  That is, in fact, the entrance to the building which houses our Charlotte office.

It could not be more clear.  Compare to the pictures we previously posted here and here, and you’ll find the resemblance unmistakable.

Does this mean our office was once famous?  Well, let’s see.

Shallow Hal, an otherwise forgettable attempt at comedy, was releaed on November 9, 2001. It starred Jack Black and Gwyneth Paltrow.  According to the Internet Movie Database, the film was shot in and around Charlotte, North Carolina during that time frame. As for us, we did not move into this building until late 2011, so we missed the brush with fame by eleven years. Alas.

This news has presented an existential dilemma of sorts: we’d prefer that a better film had been shot here.

Now, our researchers are working diligently to determine whether or not our Greenville and Columbia offices have been featured on film.

On a related Hollywood note, Wilford Brimley once left us a voicemail.

Parents Take a Bite at Apple

Parents who haven’t learned to work the parental control features on their iPhones and iPads may be in luck. Apple has agreed to a settlement in class action lawsuit over so-called “bait apps,” which are games that can be downloaded for free but then charge users for “game currency” like virtual goods or play money.  Of course, Apple’s iOS does have a parental control feature that allows users to restrict in-app purchases, but why go to all that trouble when you can just hand over your iPhone willy nilly to a child?

The lawsuit alleged that children were able to purchase “game currencies” without their parents’ knowledge or authorization while playing game applications, provided by Apple and advertised as free. Apparently, prior to early 2011, Apple let users buy game currency up to 15 times without re-entering a password in the game. The parents claim they were unaware that purchases could be made without re-entering the password. Some of their little angels racked up charges on their accounts ranging in amounts ranging from $99.99 to $338.72.  The lawsuit, of course, ignores the fact that Apple’s iOS had a parental control feature that allowed users to restrict such purchases. One victim wrote a whole article about the ordeal before a reader pointed out the parental control feature. Oops.

So what’s the big payday for our lucky winners? As far as class action settlements go, it’s actually a pretty decent settlement for the aggrieved parties.  For any member of the class whose kids purchased made an in-alp purchase for less than $5, Apple will issue a $5 iTunes gift card. For those between $5 and $30 in unauthorized purchases, Apple will issue a full refund in the form of a gift card.  Users whose little rascals spent more than $30 can choose to get a full cash refund.

If your kids made any unauthorized in-app purchases check your inbox in the months to come.  The settlement requires Apple to send a notification to all iTunes account holders who made in-app purchases.

Thoughts on the Postal Service

Some thoughts on recent postal news of note:

1.  The United States Postal Service has announced that it will no longer deliver letters on Saturdays.

2.  This, of course, means that letters you would have received on Saturday will now arrive Monday at the earliest, possibly later.

3.  The news also means that some letters you deposit into the mail on Fridays may not even be retrieved by the Postal Service until Mondays.

4.  Many, if not most, of our state and federal rules of civil procedure contemplate service by mail.

5.  Rule 6 of the Federal Rules of Procedure contains a provision entitled “Additional Time After Certain Kinds of Service,” otherwise known as “the mailing rule.”   As has been noted by other bloggers, this rule “gives lawyers an additional three days if served by mail.”

6.  Although the number of days the post office will be delivering letters has decreased, the number of days a lawyer has to respond to items served by mail will remain the same for the time being.

7.  Discuss.

Power Balance Bracelets Lose Another Battle

For as long as there have been products to sell, manufacturers used puffery in their advertising.  Whether it is the claim that a vacuum cleaner will make you happier in the 1940′s or the purported health benefits of cigarettes in the 1920′s, companies often take  “artistic liberties.”  Most companies are careful enough not to guarantee their results; they include a healthy “results not typical” disclosure. With that in mind, let’s take a look at the Rawlings Power Balance bracelets, pictured below.

According to Rawlings’ website, the bracelets have a “power balance hologram embedded with frequencies that react positively with your body’s natural energy fields” to provide strength and flexibility.  It may sound crazy, but the concept behind balancing energy fields is nothing new. Back in August, Stacy Orlick commenced a proposed class action against Rawlings in the U.S. District Court for the Central District of California for allegedly falsely advertising the bracelets on Walmart.com.  Orlick claims she purchased a $35 bracelet based on a Walmart.com ad and never received the advertised benefits.  Rawlings moved to dismiss the complaint, alleging the plaintiff failed to demonstrate that it was responsible for the Internet advertisement.  However, because the Walmart.com ad “substantially mirror[ed]” the ad Rawlings uses on its own website, U.S. District Court Judge George King denied the motion.  The case is captioned Stacy Orlick v. Rawlings Sporting Goods Co., No. 12-cv-06787 (C.D. Cal. 2012).

Now that the suit has survived the dismissal, it will be interesting to see how things transpire.  Rawlings’ best defense is obviously the truth.  The question: How is it measured in this context?  We cannot observe energy fields with the naked eye.  We imagine some objective strength and flexibility testing could be conducted.  But, if testing reveals that any positive effects of the bracelet are the result of a placebo effect, then can Rawlings be found liable for false advertising?  If users derive some placebo-led benefit from the use of the bracelet, then there does not appear to be any harm.

We here at Abnormal Use confess to using power balance bracelets.  In so doing, we have had more energy and, overall, just felt better.  We have no idea whether these results are the product of the “power balance hologram” or of us just really, really liking bracelets.

Friday Links

Depicted above is the cover of Captain America #615, published not so long ago in 2011.  As you might surmise, this issue is a part of – and indeed the finale to – “The Trial of Captain America” storyline, which we previously mentioned here back in July of that year.  At that time, we noted:

The secret identity of the Captain America we all knew growing up was Steve Rogers.  Apparently, somewhere along the way, that Captain America’s sidekick, Bucky, replaced the original Captain America, but not before moonlighting as a Russian hitman during the Cold War when the original Captain America thought he was dead.  It’s his actions as a Soviet agent that caused him to be on trial.  That’s confusing (although we wonder if there was a motion in limine on whether he could wear his costume at trial).

We’re still a bit confused, but we suppose it makes sense that Captain America is on trial if it is not the real Captain America. Oh, and if you need some background and persuasive authority on him, here you go: “Captain America, a.k.a. Steve Rogers, was an army-reject turned superhero who was charged with protecting America from all enemies, especially Nazi spies.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 282 (2d Cir. 2002) (previously mentioned by Abnormal Use way back in July of 2010 here).

Adam Liptak of The New York Times has this interesting piece on cameras in the U.S. Supreme Court.  It seems that nominees to the U.S. Supreme Court are much more excited about the possibility than actual members of the U.S. Supreme Court, and those initially curious nominees become far more skeptical of the issues following their confirmation.  Hmmm.

Behold: The Courtroom Video Supercut.  Described by the maker of this video as “Hollywood’s most hackneyed genre,” the courtroom film does, typically, rely on annoying cliches. But if you’ve got four minutes today to watch an amusing YouTube video, this is the one.

And last but not least, this article is not about the law, but it is the most interesting thing we read all week. We promise.

Our Two Favorite Things: Alcohol and Lawsuits

Ah, what’s a little alcohol without a little insult?  Our friends at Overlawyered recently reported on one brand beer that is changing its name due to today’s politically-correct climate.  “Albino Rhino,” a craft beer brewed by Earls Restaurants in Canada, will change its name after 25 years.  The new name: just “Rhino.” A woman who suffers from albinism had filed an official complaint with the BC Human Rights Tribunal, prompting the brewer to opt for the name change. In response to this news, we here at Abnormal Use started looking at some other beer brands that have resulted in litigation.  To our delight, we found a lot!  Booze, apparently, often prompts suits.

Last year, the Michigan Liquor Control Commission banned Flying Dog’s Raging Bitch beer.  Flying Dog filed a First Amendment lawsuit as reported by Beerpulse.com, which bills itself as the “World’s #1 daily beer news website.”  (Sidebar:  now there’s a website we need to visit more often!  Why has no one told us about this before? Clearly, we have been reading too many legal websites).  Don’t forget about Bad Frog Beer, whose label prompted one state alcohol authority to ban it (as it featured a frog shooting the bird at the drinker).

There are, of course, the trademark infringement suits, which beg mentioning because of some of the words these breweries are trying to protect!  Here’s a story about two companies fighting over the use of the word “idiot!”  The most famous case, of course, involved that little spat between Budweiser and Budvar.  Read about it here, and take our word for it–the American beer is inferior to its Czech counterpart.  No comparison.

Of course, if we were to talk about beer and lawsuits, we can’t go without mentioning Collaboration Not Litigation Ale, brewed by Avery Brewery Company.  I can think of mediation or two that might have fared better with a little beer, and some that actually have.

If you’re just looking for offensive beer names, there’s a website for that.  Check out this page, which has a link to more names on this page, too.  WARNING:  Some of them are actually pretty awful, and probably warrant a Rated X label.  You’ve been warned!

Liar Liar, Pants on Fire: Sham Issue of Fact Doctrine

The Plaintiff in the Fosamax lawsuit, In re Fosamax Products Liab. Litig., 11-4358-CV, 2013 WL 335967 (2d Cir. Jan. 30, 2013) probably thought she would easily survive summary judgment via her expert physician’s testimony.  However, her medical expert reversed himself and contradicted prior testimony from an earlier case in which he was a treater, thus creating a credibility issue for the jury. Unfortunately, the court didn’t but the “new” testimony and applied the “sham issue of fact doctrine” and disregarded it.

In this case, the Plaintiff took the drug Fosamax for a number of years and now alleges that it led to bone deterioration.  Plaintiff makes a failure to warn.  The prescriber testified early in the case as a fact witness.  His testimony revealed that when he began treating her for bone deterioration he thought that Plaintiff had stopped taking Fosamax.  However, at that time, another physician was still prescribing the drug to Plaintiff.  Defendant moved for summary judgment on the “warning claim.”  After all, how could an allegedly inadequate warning have caused Plaintiff’s injuries if the treating physician was not aware that she was on the drug?

Then things took an interesting turn. After Defendant moved for summary judgment, the prescriber was designated as Plaintiff’s expert physician.  Not surprisingly the doctor’s testimony changed once he was on the payroll.  During his expert deposition, the physician stated that he actually did know that Plaintiff was taking Fosamax when he was treating her for the bone injury.  Further, he testified that had Defendant warned him about the risks of bone degeneration, he would have recommended that Plaintiff stop taking Fosamax.

It’s interesting how a few bucks in your pocket can “refresh” your memory.   The court took note of this fact.  Accordingly, the court held that the doctor’s expert testimony was clearly contradictory to his initial testimony and could be disregarded under the sham issue of fact doctrine.  That doctrine prevents a party from defeating summary judgment by simply submitting an affidavit that contradicts the party’s own previous sworn testimony.  In this case, however, the court extended the doctrine to apply to testimony from experts.  The court held that expert testimony could be ignored “where the relevant contradictions between the first and second depositions are unequivocal and inescapable, unexplained, arouse of the motion for summary judgment was filed, and are central to the claim.”

So there you have it.  A common sense ruling and a very professional way of the court saying, “liar liar, pants on fire.”

Online Dating Warning Labels: A Necessary Evil?

As you might suspect, we here at Abnormal Use don’t get out much. However, we hear that online dating is kind of a big deal. Every time we turn on the television, it seems we come across another one of these social experiments. Match.com. Eharmony.com. Plentyoffish.com. There are even sites geared towards certain groups like farmers or cat lovers. If these sites help people meet that special someone, then more power to them. But what happens when that “perfect match” turns out to be an online predator?

Many states now have or have proposed laws requiring sites to notify users whether they conduct background checks. Sounds good, right? Tim Carney of the Washington Examiner doesn’t seem to think so. According to Carney, a driving force behind New Jersey’s law was the Safer Online Dating Alliance (SODA), an arm of dating site True.com. Because True.com already conducted background checks, he alleges that the proposed regulations were a means of scaring users away from competitors.

Carney may be right in questioning the motives behind the regulations, but he has obviously overlooked the legal ramifications of warning labels. Advertising that your dating site conducts background checks is a means of increasing user confidences. Conversely, disclosing that your site does not conduct checks acts to warn users of the potential hazards associated with meeting up with a total stranger. While we are not aware of any litigation against dating sites by users who were set up with dangerous individuals, such suits should be expected. A good warning label may be just the thing dating sites need to protect themselves.

Are these “warning labels” needed? Probably not. There is no question that users should assume the risk of their online mate not working out in the real world. But if we have to warn consumers that a jar of peanuts may contain peanuts, then we may want to let them understand they may be dating a predator. Sigh.

(Hat tip: Walter Olsen, Overlawyered)

Happy Presidents Day

Here we are again on Presidents Day (or, as the federal government officially refers to it, Washington’s Birthday).  As we noted last year on this festive occasion:

5 U.S.C.A. § 6103(a) sets forth that today, the third Monday in February, is Washington’s Birthday, and thus, a legal public holiday. George Washington was born on February 21, 1732 (although confusingly, under the old calendar in effect at the time of his birth, he was actually born on February 11, 1731). Perhaps that’s an issue that will be litigated someday.

Above, you’ll find the cover of Prez #1, published way, way back in 1973. We must confess that we had never heard of this series before we took drafting this post. Here’s what Wikipedia has to say about this curious series:

Prez: First Teen President was a four issue comic series by writer Joe Simon (the creator of Captain America) and artist Jerry Grandenetti, released by DC Comics in 1973 and 1974. It followed the adventures of Prez Rickard, the first teenage President of the United States of America, whose election had been made possible by a Constitutional amendment lowering the age of eligibility to accommodate the then-influential youth culture of the baby boom . . . .

Um, okay. Whatever the case, just remember that there is no mail today.

Friday Links

So, apparently, Hollywood made yet another Die Hard film. Really? That prompts us to direct your attention to the cover of Die Hard: Year One #1, published by BOOM Studios! back in 2009. That series shows us the origins of John McClane, the street smart New York Cop played by Bruce Willis in the films.  We wonder how much Supreme Court criminal procedure jurisprudence McClane’s time on the force would have generated were he a real police officer. The narrative, apparently, takes place during the Bicentennial in 1976.  We’d rather see that as a movie than another tired sequel starring Bruce Willis in the role, but hey, that’s just us.  Alas.

Maybe this dispute between Justin Bieber and the drummer for The Black Keys will lead to litigation.  Maybe.

Remember in the days before the Internet when you could safely avoid spoilers of your favorite films and television shows? Well, you’ll be pleased to learn that we were never, ever safe from pop culture spoilers.  Behold: the first Star Wars spoiler, back in 1978!

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