Friday Links

Above, you’ll find the cover of Saved By The Bell #2, published way, way back in the wonderful days of 1992. Can you believe that was 21 years ago? Why are we showing this comic book cover to you today, when we typically only depict legally themed comic book covers? Well, two years ago today, we published our interview with Mark-Paul Gosselaar and Breckin Meyer, the stars of “Franklin and Bash,” a silly lawyer show on the TNT network.  Gosselaar, of course, played Zach Morris on “Saved by the Bell.”  Apparently, “Franklin and Bash” is still airing, and its third season premieres in several weeks.  We will not be doing another interview with them, though. Alas.

Over at, there’s an article entitled “5 Ways Law Firms Screw Up Their Blogs,” in which we are mentioned (as an example of how NOT to screw up a legal blog):

“If a blog is well-written and sufficiently targeted, it can create the perception of market leadership quickly,” said Ross Fishman, CEO of Fishman Marketing. “It can help put you on the automatic short list for certain types of legal work or industry practices.”

Fishman pointed to Abnormal Use, a product liability blog written by lawyers at Gallivan White & Boyd PA, as an example of a blog with strong writers who convey substantial information with a sarcastic sense of humor. Blog posts have discussed a suit stemming from an explosion at a manufacturing facility, known as “the flaming rat case,” and ruminated over the perils of dropping pop culture references at depositions.

“They don’t take themselves too seriously,” Fishman said. “They are willing to show their personality, and that’s attractive.”

If you’re feeling nostalgic, here is the “flaming rat case” post mentioned in the article, and our old post “The Perils of Making Pop Culture References at Depositions” chronicled a failed attempt to invoke Bryan Adams on the record.

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

Banana Split: Velvet Underground and Warhol Foundation Settle

The Velvet Underground’s first album cover, which featured a drawing of a large yellow banana, has been the subject of recent litigation.  Why? In a collaborative effort with the band in the 1960’s, Andy Warhol designed the banana that was featured on the album cover.  A recent spat arose between the Velvet Underground and the  Warhol Foundation’s over the Foundation’s proposed licensing of the banana for use on case  for Apple products.  The suit recently settled out of court for an undisclosed amount.

The suit was first filed by The Velvet Underground in January of 2013 alleging that Warhol Foundation violated its rights to the album design by licensing the design for commercial purposes.  The banana graces the cover of the band’s album The Velvet Underground and Nico, which was rated by Rolling Stone as the 13th best album of all time.  However, the band never sought or received trademark registration for the image from the U.S. Patent and Trademark Office.  Nevertheless, they claim instead that they earned trademark rights by virtue of years of association with it. Without the trademark registration, the band was certainly facing an uphill battle.  It would have had to prove that the design has come to be associated by the public with the band itself.  While that may be true with regard to certain segment of the population that is really into music, most of the general public would recognize the drawing as nothing more that a typical piece from Warhol’s collection.  Especially given that the album cover also prominently featured Warhol’s signature.

Probably best for both parties that they just went ahead and split this banana (pun intended).

Seven Court Opinions That Cite The Great Gatsby

Well, we’re not turning into Buzzfeed or anything, but we did think we would take advantage of this short week and do a bit of pop culture court blogging.  Like some of you, we saw the new cinematic adaptation of F. Scott Fitzgerald’s The Great Gatsby (about which we decline further comment).  It got us thinking: How many courts have referenced the novel?

So, here are seven courts which refer to the novel by name, some in much more detail than you would suspect.

1. Legacy Healthcare Servs., Inc. v. Provident Foundation, Inc., No. 1:03CV00515., 2007 WL 275974, at *3 (N.D. Ohio Jan. 26 2007).

“While the billing documentation procedures will not likely read as clearly or fluidly as The Great Gatsby, the Medicare rules and regulations are not beyond the ken of the average layman.”

2. New York State Trawlers Ass’n v. Jorling, 16 F.3d 1303, 1312 (2d 1994).

“In closing, we are reminded of the words of F. Scott Fitzgerald. In the final passages of The Great Gatsby, Nick sits on the beach looking out over the Long Island Sound. While contemplating the Sound, Nick reflects upon the ‘fresh, green breast of the new world’ as it must have appeared to its first explorers. Not long ago, it would indeed have seemed that the Sound ‘year by year recedes before us.’ Increasingly, however, New York is recognizing its interest in protecting the rich natural resources of the Sound. The Amendments to N.Y.Envtl.Conserv.Law § 13-0329 are rationally related to that interest. Perhaps, ‘one fine morning-‘.”

3. In re Compton, 97 B.R. 970, 980 (Bkrtcy. N.D. Ind. 1989).

“It strains the court’s credulity to believe the Defendant’s love-starved and tearful explanation for her conduct. The old adage that ‘the third time is a charm’ is not applicable on these facts. As they say in baseball, three strikes and you’re out. The court is not swayed by the Defendant’s tearful exhortations. The Defendant’s conduct bears a harsh resemblance to that of F. Scott Fitzgerald’s character Daisy in The Great Gatsby. The difference however, is that Daisy’s seemingly endless wealth could support her financial follies with the men and opportunities in her life. The Defendant did not have the same riches and affluence at her disposal.”

4. Stainton v. Tarantino,  637 F.Supp. 1051, 1082-83 (E.D. Pa. 1986).

“Plaintiffs’ theory of the case was that plaintiffs were a naive shop teacher and his wife who were hoodwinked by two unscrupulous lawyers. Tarantino’s theory of the case was that two educated, sophisticated people, with great wealth, set out to destroy him because Mrs. Stainton considered him a social climber. The closing argument of defense counsel presented Tarantino’s theory of the case. The references to the wealth of the plaintiffs, including the quotation from F. Scott Fitzgerald’s Great Gatsby, were relevant to the financial sophistication of the plaintiffs and the motivation for bringing the lawsuit.”

5. Summum v. Pleasant Grove City, 499 F.3d 1170, 1179 (10th Cir. 2007)

“No one thinks The Great Gatsby is government speech just because a public school provides its students with the text. This is because the speech conveyed by the physical text remains private speech regardless of government ownership.”

6. CA, Inc. v., Inc., 780 F.Supp.2d 196, 250 (E.D.N.Y. 2009) (citations omitted).

“According to Simple, finding that the JavaScript Bible is enabling ‘is no different than saying that a dictionary would enable an author of ordinary skill to write a novel like The Great Gatsby, because it discloses all of the words used by F. Scott Fitzgerald.’ In other words, Simple asserts that CA has not met its burden of clearly and convincingly showing that the JavaScript Bible offers sufficient guidance to enable one skilled in the art to practice the subject matter claimed in the patents in suit.”

7.  In re Veal, 450 B.R. 897, 912 n.25 (9th Cir. 2011)

“The converse is also true: one can be a ‘person entitled to enforce’ without having any ownership interest in the negotiable instrument, such as when a thief swipes and absconds with a bearer instrument. See Comment 1 to UCC § 3–301. The ability of a thief to legitimately obtain payment on bearer instruments, such as bearer bonds, has factored in literature and film focusing on the dark side of humanity. See, e.g., F. Scott Fitzgerald, The Great Gatsby ch. 9 (1925) (part of Gatsby’s downfall connected with the theft or falsification of bearer bonds); Die Hard (Twentieth Century Fox Film Corp. 1988) (thieves masquerading as international terrorists seek to steal a highly valuable trove of bearer bonds); Beverly Hills Cop (Paramount Pictures 1984) (friend of protagonist is murdered for stealing bearer bonds from a drug operation’s kingpin).”

Finally, the authors of both R-Boc Representatives, Inc. v. Minemyer, No. 11 C 8433, 2012 WL 2905733, at *1 (N.D. Ill. July 16, 2012) and Metropolitan Life Ins. Co. v. Barbour, 614 F. Supp. 2d 47, 48 (D.D.C. 2009) begin their opinions by quoting the very last line of The Great Gatsby: “So we beat on, boats against the current, borne back ceaselessly into the past.”

McDonald’s Chicken Sandwich Allegedly Causes Voice Change

Well, McDonald’s once again finds itself on the wrong end of a case caption.  According to the New York Post, a gospel singer in Brooklyn, New York has sued the fast food chain claiming that her voice was ruined after biting into a piece of glass found in a chicken sandwich.  The incident, which happened way back in 2010, has allegedly caused the former alto to lose her soprano-status.  In addition, her now raspy voice has others confusing her for a man while on the phone. We suspect they may take this deposition by video.

As with any new lawsuit in its baby stages, we here at Abnormal Use have no idea whether the plaintiff’s claims are valid.  Nonetheless, we know how to defend the case from a damages perspective.  First, how is a voice ruined simply by biting into glass?  At least according to the report, it appears the singer’s allegations suggest she swallowed the glass, thereby damaging her vocal chords.  After knowingly biting into a piece of glass, wouldn’t the next step have been to spit out the food?  It seems some of these damages could have been avoided.

Second, how does one value the difference between an alto and a soprano, assuming the allegation is true?  Does an alto gospel singer find better singing gigs than sopranos?  We recognize that the change may have been unwanted, but it seems like the singer could make the most of the situation and turn this into a positive.

Unfortunately for McDonald’s, unlike the post-verdict, anti-tort reform rhetoric regarding the Stella Liebeck case, this matter won’t be tried on damages alone.  If glass was in the woman’s chicken sandwich, then it certainly should not have been there.  Once that presumed liability hurdle is surpassed, then – and only then – will her damages become an issue.

Memorial Day

Above, you’ll find the 400th issue of Sgt. Rock, published long, long ago in 1985. Wikipedia tells us: “During World War II, Sgt. Rock fought in the infantry branch of the U.S. Army in the European Theatre and eventually rose to authority within his unit, Easy Company.” We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope you had a safe and fine Memorial Day weekend. As we do each year, today, we pause to reflect upon all of the sacrifices made by American servicemen and women and all they have done for the country, both in present times and years past.

We’ll resume with regular posting tomorrow.

Friday Links

“I Met My Murderer!” proclaims the cover of Lawbreakers Always Lose! #10, published way, way back in 1949. For one, we kind of dig this comic book cover because the title of the series is a complete sentence. (Quick trivia question: How many films can you name where the title is a complete sentence, and of those, what is your favorite? Ours, clearly, is The Empire Strikes Back, but only the one released originally in 1980, not the souped-up, re-digitized detritus George Lucas would re-release later over the years.).  Second, the guy on the cover has a cool hat.  That’s probably a small consolation for meeting his murderer – although he may be the murderer.  We’re not sure.

From the Ultimate Classic Rock website: “15 Infamous Rock Lawsuits.” Yes, the Judas Priest litigation is included.

The New York Times offers this interesting piece on the use of Urban Dictionary by lawyers and even the courts.  We have to admit that we have consulted this resource a time or two, but we’d be way to shy to cite it as persuasive authority in briefing.

Our friend Ryan Steans of The Signal Watch muses on the past and present of The X-Men comic books.

Rest in peace, Ray Mazarek, fabled keyboardist of The Doors.  We were please to see this tweet from the actor Kyle MacLachlan, who played Mazarek in the 1991 film, The Doors, directed by Oliver Stone. Let’s all listen to “Riders on the Storm” this weekend, shall we?

Mediation: Uncool Wiles and Stratagems

We are crafty, we lawyers.  We often fancy ourselves as clever makers of legal strategy.  We employ wiles and stratagems on behalf of our clients.  Sometimes, a novel legal argument will carry the day.  However, at other times, we out think ourselves and utilize strategies which, though technically permitted by the rules, may actually be, for lack of a better word, uncool.  Sometimes, public policy suggests that these maneuvers, uncool as they are, are not permitted in the legal arena.  Such is the case with sham mediations designed to lure out-of-state defendants into the jurisdiction only to serve them with process if the mediation ultimately fails.

Imagine this situation: Two parties to a dispute begin to talk settlement or potential resolution before suit is filed.  This is probably a good thing.  The two parties, both from different states, agree to meet in an attempt to resolve the dispute.  Suppose that this attempt at resolution, a formal mediation, takes place in the forum state at the offices of one of the party’s attorneys.  None of this is unusual.  The mediation is scheduled, and one party, coming from out of state, travels to the forum state, presumably in good faith, in an attempt to resolve the dispute.  After all, the only reason they have to be in the state is to attend to newly scheduled mediation.  The mediation begins, with each party offering its opening statement, and then proceeds in the traditional fashion, with the mediator shuffling back and forth between the room in an effort to bring the parties closer together and resolve the dispute once and for all.

But the hosting party has a different idea.  Although it may prefer to resolve the dispute once and for all, it realizes that if the mediation fails, as they sometimes do, then it has an advantage in that its opponent is physically present in the forum where it would like to litigate the matter.  So, the hosting party develops a contingency plan:  it prepares a complaint and instructs a paralegal to hold steady at the local courthouse and stand ready to file it, if matters turn for the worse.  Further, a private process server lurks nearby the site of the mediation, ready to serve the corporate representative of its opponent as they leave the mediation, if it is unsuccessful.

At first glance, it may make sense.  After all, the foreign party is present and the jurisdiction, and therefore, subject to service of process.  Why not take advantage of this opportunity to file and serve the lawsuit during the mediation if things do not go as planned?

Though this seems technically permissible under the rules, it is frowned upon by South Carolina jurisprudence and is, as aforementioned, uncool. Where a plaintiff or someone acting on its behalf induces a defendant to enter the jurisdiction for the purposes of effecting the settlement of a controversy, and the defendant is then served with process while in the jurisdiction, the service will be set aside as having been fraudulently obtained and the complaint will be dismissed.  See generally Shaw v. Hughes, 303 S.C. 337, 400 S.E.2d 501 (Ct. App. 1991).  So, if you are the hosting party, don’t be uncool. And if you’re the visiting party, you may want to address this matter up front and agree with your opponent that no one will attempt to employ this strategy at a pre-suit mediation.

The Perils of 2013 – Or Any New Year

Wow, it’s already May.  We’re still writing 2012 on our checks. Well, actually, sometimes, we still write 1997 on our checks.  But that’s another story.

Whatever the case, let us pause briefly to reflect upon the arrival of the “new” year, because, as you know, we’ve all written 2012 on some of our documents so far, even in May.  Accordingly, we need to be aware not just of the “new” year but also its potential effect on our brains and those of our clients.

Now matter the time of year, a good rule is: Be certain to double and triple check your documents to ensure they are dated properly.

Now, what do you do when you locate a document from the past wherein someone has made this type of dating error?

First, you say, “Yikes.” Then you proceed into analytical mode.

Perusing the document at issue, it may be apparent from the body of the document that the date is incorrect.  If it is a letter, then the context clues and subject matter may refer to issues or occurrences which indisputably occurred in the prior year, thus making the error in the correspondence apparent.  It may also be that there is no reason for the other party to dispute the incorrect date, and thus, the issue would be moot. However, if some confusion prompted by the error in date, you may wish to inquire whether the other party is to make an issue of it.  If so, perhaps the error can be accomplished by way of an affidavit, a verified discovery response, or, if necessary, part of an otherwise necessary deposition. However, the best advice may be simply to be more careful in executing such documents.

Outrageous, Egregious, Preposterous: The Hoosier State Chilled Beer Law

Straight from the Hoosier State is a lawsuit that invokes memories of Jackie Chiles.  According to Business Week and the Associate Press, an Indiana trade group filed a lawsuit seeking to overturn certain restrictions on the sale of chilled beer.  Can’t you picture Kramer walking into Jackie’s office complaining about the lack of cold beer at the local convenience store? As Jackie once said, “Yeah that’s going to be a problem. It’s gonna be a problem for them. This a clear violation of your rights as a consumer. It’s an infringement on your constitutional rights. It’s outrageous, egregious, preposterous!” Under a 1963 state law, chilled beer cannot be legally sold in Indiana unless it is sold in a liquor store.  Now, the Indiana Petroleum Marketers and Convenience Store Association has challenged the ban in federal court.  The lawsuit claims that the law is arbitrary and discriminates against grocery and convenience stores.

According to a representative of the group:

“In reviewing the history, it became more and more clear to us there really was not a rational basis for the current law. The fact the law says pharmacies, convenience stores and grocery stores are capable enough to sell the product warm, then it gets rather arbitrary about what temperature it can be sold at. When you change the temperature, it doesn’t change the alcohol content.”

Ironically, the grocery stores and convenience stores can already sell chilled wine.  I’d say the probably have a decent case that the law is indeed arbitrary.  Nevertheless, it’s probably still a long shot that they win the lawsuit, but here’s to hoping the good guys win this one.

Jury Awards $20 Million, CPSC Decides to Respond

Back in 2011, Toys ‘R’ Us was hit with a $20.6 million verdict by a Massachusetts jury in a products liability case arising out of the death of 29-year old Robin Aleo.  The woman was killed while sliding down a 6-foot inflatable pool slide manufactured in China by Manly Toys and sold in the U.S. by Toys ‘R’ Us.  As the woman neared the bottom of the slide, it partially collapsed, causing her to strike her head on a concrete pool deck.  After a nearly two week trial, the jury awarded Aleo’s estate $2.6 million in compensatory damages and $18 million in punitive damages.  Toys ‘R’ Us appealed the jury award, and the Massachusetts Appeals Court heard oral arguments in the case last week.

Aside from the amount of the jury’s award, the more intriguing issue in this case is the role of the Consumer Product Safety Commission.  At trial, the estate argued that the slide did not comply with federal safety standards for swimming pool slides, citing to standards set forth by the CPSC in 1976.  Toys ‘R’ Us contends that the 1976 regulations do not apply to inflatable slides, but only to rigid pool slides.  According to the toy retail chain, inflatable slides were not around in 1976 and, thus, were not contemplated by the standards.

Nonetheless, the slides apparently were imported and never certified that they met any standards.  Regardless of whether Toys ‘R’ Us should be held responsible for this regulation snafu, it’s the CPSC’s response that draws our ire.  The CPSC did not recall the slide until May 2012 – months after the verdict and years after the 2006 incident.  The CPSC was also aware of at least two other cases of serious injury arising out of use of the slide.  If the slide really is afoul of CPSC regulations and has allegedly caused several cases of serious injury and/or death, then why wait until a jury verdict to issue a recall?  It is not like the CPSC has a firm rule to exercise due diligence in these things.  Remember Bucky Balls?

We have been critical of the CPSC in the past over its draconian measures.  Regardless, if the CPSC knows it is going to issue a recall, it might as well go ahead and do it – especially if the only fact that changed between the 2006 accident and the 2012 recall is a Massachusetts jury deciding the issue is worth $20 million.