SC Johnson Reaches Undisclosed Settlement in “Greenwashing” Litigation

Though we hadn’t previously known “greenwashing” was even a word, much less something around which a class-action lawsuit could be centered, we now know that at least in California, and later Wisconsin, invocation of that term may entitle the accuser to an undisclosed sum of settlement money.  We previously reported here that a California resident had filed suit in federal court on behalf of purchasers of various household products manufactured by SC Johnson, alleging that the company was deceptively marketing its products as “green,” or environmentally friendly, with its use of the trademarked “Greenlist” labeling sticker on its products.  Koh v. S.C. Johnson & Son, Inc., No. C-09-00927 RMW (N.D. Cal.).  Another suit similarly was filed in Wisconsin.

SC Johnson recently issued a detailed press release in which its CEO announced that the company will stop using its Greenlist logo on Windex products and disclosed that the company has reached “an undisclosed settlement” agreement as to the two lawsuits filed against it.  In its candid statement, the company set forth its reasons for settlement:

“We decided to settle for two reasons. First, while we believed we had a strong legal case, in retrospect we could have been more transparent about what the logo signified,” said SC Johnson Chairman and CEO Fisk Johnson. “Second, and very importantly, Greenlist™ is such a fundamentally sound and excellent process we use to green our products, that we didn’t want consumers to be confused about it due to a logo on one product.”

The statement goes on to wisely say – in words that must be echoed by many slapped with product liability suits – that “[w]hile companies always try to ensure labels are clear and understandable, different interpretations can arise.”  In any event, it looks at though SC Johnson settled these suits quickly, and likely took from it a valuable lesson in marketing practices.

Third Circuit Upholds Application of “Negligence-Type Concepts” in Products Liability Cases

Earlier this month, on July 12, the Third Circuit upheld a jury’s verdict in favor of a manufacturer of bicycle helmets, and in doing so, affirmed the lower court’s application of a relatively new interpretation of product liability law.  Covell v. Bell Sports, Inc., No. 10–3860, —F.3d—, 2011 WL 2690396 (3d Cir. July 12,  2011). The case was filed by the parents of a 36-year-old schoolteacher who sustained serious brain injuries when he was hit by a car while bicycling to work in 2007.  The parents, in their capacity as guardians, filed suit against the manufacturer of their son’s helmet, alleging that it was defectively designed and lacked adequate warnings.  At trial, over the plaintiffs’ “strident objections,” the court permitted the helmet manufacturer to introduce expert testimony regarding the Consumer Product Safety Commission’s “Safety Standard for Bicycle Helmets.” In turn, the plaintiffs responded with their own expert regarding the CPSC safety standard.  Both experts testified at trial that the CPSC standard forms the “starting point” for any bicycle helmet design, and both agreed that the helmet at issue satisfied CPSC standards in all respects.  At the conclusion of trial, the court instructed the jury that in determining whether the helmet was defective, it could consider evidence of standards in the industry, including the CPSC standards.

The Third Circuit recognized the “core conflict” that exists within provisions of the “strict liability regime” of the Restatement (Second) of Torts: that courts are to ignore evidence that the seller “exercised all possible care in the preparation and sale of his product,” yet imposes liability only for products that are “unreasonably dangerous.”  It is, of course, often impossible for a jury to determine whether a product is “unreasonably dangerous” without referencing evidence that the seller did or did not exercise “care in the preparation” of its product. Ultimately, the court held that federal courts applying Pennsylvania law are to use the Restatement (Third) of Torts to guide both their decisions regarding the admittance of evidence and in their usage of jury instructions.  In this regard, it allows for a more negligence-friendly products liability regime than previously recognized in Pennsylvania, where juries may properly consider industry standards and government regulations.  This is certainly a defense-friendly analysis and decision.  Short of doing away with strict liability laws in their entirety, incorporating more negligence-type concepts into the analysis of manufacturer liability is a positive approach.

Emily Pincow of the Product Liability Monitor blog has additional thoughts on the case here.

Multiple Lawsuits Filed in South Carolina Over Allegedly Explosive Decorative Firepots

With summer in full swing, families head to their porches and patios to enjoy the long afternoons and evenings in the outdoors.  In two recently filed lawsuits, multiple plaintiffs allege that they suffered serious injuries during those afternoons outside when decorative firepots exploded or burst into flames, splattering them with flaming fuel gel.

Plaintiffs’ mega-firm Motley Rice, based in Charleston, South Carolina, has filed two lawsuits – one in state court in Charleston and the second in South Carolina federal court.  The first of those involves a West Ashley woman who suffered second- and third-degree burns on the lower half of her body when her firepot full of citronella gel allegedly exploded and engulfed her legs with flames.  Smilowitz v. Napa Home & Garden, Inc, et al., C.A. No. 11-CP-4202 (S.C. June 2011).  Charleston’s The Post and Courier covered the story near the May 21, 2011 incident, prior to the time suit was filed.  The second suit was filed by two Florida residents who allege in their complaint that on May 25, 2011, they were visiting relatives in Spartanburg, South Carolina, when a “torch-like” flame engulfed one individual, who was transported to a burn center in Augusta, Georgia, with second- and third-degree burns over 30% of her body.  The second plaintiff in that suit alleges he suffered serious burns while trying to extinguish the fire.  Satterfield v. Napa Home & Garden, Inc. et al., C.A. No. 7:11-CV-01514-JMC (D.S.C. June 2011).

Both of these South Carolina complaints name as defendants the manufacturer, Georgia-based Napa Home and Garden, as well as Fuel Barons, Inc. and Losorea Packaging, Inc.  They both involve Napa Firepots, which are outdoor glass or clay pots with open fuel gel containers.

These South Carolina incidents are not the only ones of record.  ABC News recently covered [link includes video] a similar incident involving a New York teenager who suffered third-degree burns to his face while preparing for a wedding reception in his cousin’s backyard.  The Consumer Products Safety Commission has reportedly since issued a warning on the gel fuel used in the firepots.  The “jelly-like” substance, it says, can easily get onto clothing and skin when on fire and can be difficult to put out with water or smothering.  With numerous reports of injury and an untold number of the products sold, additional lawsuits are likely to follow.

Another Tomato Farm Takes on FDA, Claims $11 Million in Damages

We recently reported here that a South Carolina family-owned tomato farm had sued the United States Food and Drug Administration (FDA) in South Carolina federal court in Beaufort, alleging that the agency was negligent in its issuing of a 2008 nationwide tomato recall.  Seaside Farm, Inc. v. United States, C.A. No. 9:11-cv-1199-CWH (D.S.C. May 2011).  The FDA issued that recall over fears that tomatoes were the source of salmonella contamination, though, ultimately, the outbreak was traced to a source other than tomatoes.  Well, another tomato farm has since joined in filing suit.

Law360.com reports that Williams Farms Produce Sales, Inc., which grows more than 500 acres of tomatoes in South Carolina and Florida every year, filed suit alleging that it lost $11 million as a result of the recall that later proved to be unnecessary.  The latest suit, which was filed less than one month after the Seaside Farm’s complaint, was filed in federal court in Charleston.  Williams Farms Produce Sales, Inc. v. United States, C.A. No. 2:2011-cv-1399 (D.S.C. June 2011).  Lexology.com reports hat the latest complaint includes causes of action of negligence, defamation, slander of title, product disparagement, unconstitutional taking, and violation of unfair trade practices law, for which the tomato grower seeks actual damages in excess of $11 million, special damages, compensatory damages, treble damages, attorneys’ fees, and costs.

These two lawsuits could be the firsts of many, and they certainly demonstrate that the amount of potential damages alleged against the FDA could be staggering.  MiamiHerald.com and FloridaFarmers.org have reported that Florida farmers estimated they lost $60 million as a result of the recall, and that national numbers could be $140 million or more.  They also report that previous attempts in 2008 to acquire voluntary compensation from the government to offset the losses failed, and as such, litigation was almost certain to follow.

South Carolina Tomato Farmer Sues Feds Over Recall

A South Carolina family-owned tomato farm recently sued the United States Food and Drug Administration under the Federal Tort Claims Act  seeking to recoup damages it suffered from the 2008 nationwide tomato recall over fears of salmonella contamination.  Seaside Farm, Inc. of St. Helena Island filed suit in federal court in the U.S. District Court for the District of South Carolina.   The complaint alleges causes of action of negligence, violation of the takings clause, violations of the South Carolina Unfair Trade Practices Act, and defamation.  Seaside Farm, Inc. v. United States, C.A. No. 9:11-cv-1199-CWH (D.S.C. May 2011).

According to the complaint, Seaside Farm cooperated with and and assisted in all audits and inspections of its operation prior to the start of the tomato season in 2008 and passed all inspections.  Then, in June of 2008, “at the precise time when South Carolina tomatoes are coming to market, the FDA announced a national recall of all tomatoes in the U.S.” (See South Carolina news coverage of the 2008 recall here ).  The complaint goes on to say that the FDA “improperly assumed” that tomatoes were the source of the curent salmonella outbreak, though following the recall, the FDA ultimately conceded that tomatoes were not the source the salmonella contamination.  At that point, however, Seaside Farm says the damage was done.  It seeks compensation for loss of its property, in the form of its 2008 tomato crop, as well as other general and special damages.

The FDA Law Blog reports that though the FDA issued a nationwide warning in June of 2008 for consumers to refrain from eating tomatoes, later, certain types of peppers were identified as the likely culprit of the salmonella outbreak.  The FDA thus lifted its tomato ban, but not before significant damage was done.  There was significant fallout, with some predicting that litigation likely would most certainly ensue.   According to FDA Law Blog, statutory law directs the Government Accountability Office to submit a report to Congress that reviews “new or existing mechanisms available to compensate persons for general and specific recall-related costs when a recall is subsequently determined by the relevant agency to have been an error,” and that “considers models for farmer restitution implemented in other nations in cases of erroneous recalls.”  Such provisions may fall short of the expectations of small businesses like Seaside Farm, who took the brunt of the error.

South Carolina Wins $327 Million from Drugmaker in Unfair Trade Practices Suit

Earlier this month, the State of South Carolina was awarded $327 million in damages from drugmaker Janssen Pharmaceutica, Inc., a Johnson & Johnson subsidiary, under the state’s Unfair Trade Practices Act for deceptive marketing of its anti-psychotic drug, Risperdal.  The suit alleged that the company had, for years, sent deceptive letters to doctors in which the company downplayed the links between Risperdal and diabetes.  As we previously reported here, South Carolina could have received upwards of $3 billion dollars from the suit, as the State Attorney General argued that every single prescription, sample box or “Dear Doctor” letter written since the 1990s could constitute a violation of the law worthy of a $5,000 penalty.

It was in April that the South Carolina jury found the drugmaker to be responsible.  Only recently did Spartanburg County’s Judge Roger Couch determine the amount that the company would be responsible for paying the state.  Charleston’s The Post and Courier reported that Judge Couch, in his order, wrote that Janssen knew that its drug was associated with health problems and that it intentionally hid those studies.  He said the company “systematically set about in a concerted effort to conceal that information and to manipulate the information available to the public for the purpose of protecting or improving its market share.”

The award reportedly marks the largest penalty for breaking the South Carolina Unfair Trade Practices Act and also represents the state’s largest award in a drug marketing case.  Bloomberg.com reports that on June 3, Janssen officially announced that it will appeal Judge Couch’s order.  It maintains that  company fully disclosed Risperdal’s health risks and that it properly marketed the anti-psychotic medicine.

As we previously reported, this South Carolina case is not the first of its kind.  A Pennsylvania case was dismissed in June, and another case in West Virginia was dropped in December.  A case in Pennsylvania, however, ended with a jury’s awarding of $257.7 million to the state for the drug company’s alleged offenses similar to those addressed in Judge Couch’s recent order.  As with the recent South Carolina verdict, Janssen has appealed the Pennsylvania verdict and maintains it acted properly.

TV Review: TNT’s “Franklin & Bash”

As noted in yesterday’s post on our recent interviews of Mark-Paul Gosselaar (of ”Saved by the Bell” and “NYPD Blue” fame) and Breckin Meyer (Clueless and Can’t Hardly Wait), “Franklin & Bash” is a new legal dramedy in which the duo star as brash young lawyers who will do virtually anything for their clients.  The central premise of the show: these two young lawyers – fiercely independent and unorthodox – join a stuffy big firm in Los Angeles.  As you might imagine, the partners and associates at that big firm are not all appreciative of the new interlopers. We here at Abnormal Use obtained an advance screener of  the series’ pilot episode, which debuts tonight at 9/8 Central on TNT. Written by Bill Chais and Kevin Falls and directed by Jason Ensler, the pilot is whimsical and entertaining, though hardly an accurate depiction of the legal profession or life at a large law firm.

Jared Franklin (Meyer) is a quick-witted, scrappy lawyer who is perhaps trying to stand outside the shadow of his father, a well-known and apparently highly respected attorney.  Peter Bash (Gosselaar) is more of a charmer, both in his business and personal lives.  The pair’s firm might best be described as the type you’d see advertised on a bar’s bathroom-stall door (see video of their commercial–shot from a hot tub–here).  Within the first few minutes of the pilot, the ambulance-chasing duo score a client in a manner reminiscent of the “Seinfeld” episode featuring the heiress to the O’Henry! candybar fortune.  Here, a young male driver rear-ends another vehicle when he is distracted from the road by a mattress commercial, which plays on a jumbo screen near the roadway, featuring a lingerie-clad woman.  Just as Kramer and Jackie Chiles took on Sue Ellen Mischke, so, too, do Franklin and Bash take on the perpetrators of the racy mattress advertisement.

In that dispute, young Franklin and Bash find themselves facing the megafirm of Infeld Daniels. Their antics at that trial lead to the pair’s “big break” – they are offered jobs at the prestigious firm by senior partner Stanton Infeld, played by acclaimed actor Malcolm McDowell.  Both Franklin and Bash accept the offers, and so begins their “fish out of water” experience in the big, glossy litigation firm. Comedy ensues, or that’s the idea.

The show is enjoyable enough, with a number of light-hearted moments featuring the pair’s close, almost brotherly relationship.  It also offers some romantic-themed intrigue, with Bash, played by Gosselaar, still having trouble getting over an ex-girlfriend and fellow bar member, who appears to have moved on from their prior relationship.  There also promises to be some friction between the duo and Damien Karp, an Infeld Daniels attorney and the nephew of Stanton Infeld.  Karp, played by actor Reed Diamond, is suspicious of his new co-workers and unimpressed with his uncle’s decision to bring them on board at the firm.  He is positioned by the end of the pilot episode to be a nemesis of sorts to the main characters, particularly to the aggressive Jared Franklin.

There are some problems with the believability of the show, which includes scenes and dialogue far too quirky and eccentric to be convincing to viewers.  In one scene in particular, Gosselaar’s Bash is having a heart-to-heart conversation with a client in his hot tub.  Eventually, Bash stands up out of the hot tub–naked–to quickly scan the pages of a law book and pass it to his assistant, very seriously telling her to “Shepardize this case law.”  The scene comes off as a little awkward and a lot unrealistic.

As with any legal television show, there are some errors in the depiction of the law.  That is, of course, in addition to the naked hot-tubbing with a client.  For example, when Franklin and Bash begin work at Infeld Daniels, they uncover a plot by one of its lawyers to have an airline company place blame for a near accident on its pilot.  The legal issue?  Infeld Daniels represents both the pilot and the airline.  That would simply not happen in the real-life legal world, wherein the pilot and airline would be represented by separate counsel if the airline’s strategy was to blame its pilot.

In any event, for viewers who are willing to occasionally engage in a suspension of disbelief, the show offers an enjoyable glance into the lives of its two affable, fictional lawyers.  Its tone is similar to that of previous legal shows “Ally McBeal” or “Boston Legal,” which similarly offered equal parts interesting legal issues and quirky, yet endearing characters.  Don’t necessarily expect to laugh out loud, but be moderately entertained.

Abnormal Interviews: Mark-Paul Gosselaar and Breckin Meyer, Stars of New Legal Series “Franklin & Bash”

In anticipation of TNT’s upcoming legal dramedy “Franklin & Bash,” which premiers tomorrow night at 9 p.m. Eastern, we had the opportunity to fulfill a lifelong dream briefly interview the two stars of the show, Mark-Paul Gosselaar and Breckin Meyer (during a multi-party press conference, but still).  Gosselaar is famous, of course, for playing the iconic character of Zack Morris in “Saved by the Bell” and, more recently, for his role on ”NYPD Blue.”  As for Meyer, you may recognize him as the  skateboarding high school student in Clueless or for his roles in Road Trip or Can’t Hardly Wait. So, once again, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we bring you interviews with practitioners, commentators, and, now, actors.

“Franklin & Bash” is a comedy featuring Gosselaar and Meyer as two small-time lawyers with big-time courtoom antics who are recruited by a powerful megafirm.  So begins their fish-out-of-water experience, which is the central premise of the show.  Both stars seem to be very exited about their new legal show, and for good reason. By their own accounts, they’re having fun filming the series, and as you’ll see from our review of the pilot episode tomorrow, the show offers its viewers an entertaining – though not necessarily realistic – glimpse into the lives of its fictional young lawyers.

As mentioned above, we were on a multi-party press conference call with Gosselaar, and then some time later, a separate multi-party call with Meyer. Accordingly, we were only able to ask each of them one question. Fortunately for you dear readers, we here at Abnormal Use are ace interviewers, and all we need is one question. Bearing in mind that caveat, the following is a full transcript of our exchange with Gosselaar, who plays attorney Peter Bash.

Simons:  Hey, Mark-Paul.

Gosselaar:  Hey, there.

Simons:  Our readership is made up primarily of lawyers, and I know that you’ve played lawyers in the past, but I wondered what, if anything, you did to prepare for this role.

Gosselaar:  I got a tan. That’s basically it. You know, I mean, I – you know, I’d had my legal fill when I did “Raising The Bar.”  Thankfully, you know, I was able to go with David Feige, who was the creator of that show, and my character was loosely based on him. You know, I went with him and was an intern at the Bronx Defenders for about a week and sort of got my legal, you know, insight during that week, and for the last two seasons. So no, there wasn’t much that I had to question.

But if I did have a question, one of our producers and writers, one of our head writers, Bill Chais, was a defense attorney and a lot of the stories that we deal with on the show are from his background. So, if we ever have questions we have people that we can go to, and that’s always important. And well, I think we’re pretty true to – I mean obviously it’s television, you take some liberties, but I think we’re pretty true to staying true to the sort of legal, call it, the legal frame.

During an earlier part of the call, Gosselaar also shared what makes “Franklin and Bash” different from all the other legal dramas viewers have seen before on the small-screen:

Gosselaar:  Well, I think — you know, we haven’t seen comedy in the courtroom in a while. I mean, “Boston Legal” is probably the last one, “Ally McBeal” is another one, “L.A. Law” was a brilliant legal drama with elements of comedy, so I think that’s what sets it apart from what’s currently on television, as well as sort of the relationship between the two guys.

You know, you go home with these characters at the end of the day, so I think that that’s a very important element that isn’t on television on your typical legal dramas at the moment.

Later that afternoon, we joined the press conference call with Breckin Meyer, who plays attorney Jared Franklin on the series.  Here’s a transcript of our interview with him:

Simons:  Hi, Breckin.

Meyer:  Hey, how’s it going?

Simons:  Good. Our readership is made up primarily of lawyers…

Meyer:  Okay.

Simons:  . . . I wonder if I were a client of Franklin and Bash, why would I want your character, Jared, to represent me?

Meyer:  Well, the good thing is with Franklin and Bash, you get both Franklin and Bash. . . .  Jared’s a kid who grew up with a silver spoon in his mouth. His father was a — still is a high powered litigator, and he rebelled against that by not wanting to be a lawyer, but eventually had to accept that it was his calling, but if he’s going to do it he’s going to do it on his own terms. And I think you’d definitely — you’d get lawyering like you hadn’t seen before. How about that?

Simons:  Okay. And your character’s been described as quick-witted and scrappy. Do you have anything to add to that description?

Meyer:  Really kind of almost off the chart remarkably good looking. That — I mean that’s not me, that what — I mean, that’s what I’ve heard. . . .Yes, so that’s how I’d describe it.

Turn back to Abnormal Use tomorrow for our official review of the pilot, which airs tomorrow night on TNT.

Circle K Announces Agreement with 39 States to Curb Underage Tobacco Sales

Last week, it was announced that Circle K Stores, Inc. and Mac’s Convenience Stores LLC have reached an agreement with attorneys general for 39 states and the District of Columbia to cut-down on the sales of tobacco products to minors.  (See copy of the 22-page agreement here).  The agreement, which does not include South Carolina, encompasses approximately 4,000 convenience stores.  The agreement goes into effect on June 1, 2011.  Previous multi-state agreements have similarly been reached between states and convenience stores selling fuel under Conoco, BP, Exxon, Mobil, and Shell, among others, and with retail and pharmacy chains Walgreens, Rite Aid, CVS, WalMart, Kroger, and 7-Eleven.

The agreement, called the “Assurance of Voluntary Compliance” (AVC), provides that Circle K will adopt procedures intended to reduce the amount of marketing and sales of cigarettes to minors, and additional procedures designed to curb underage tobacco sales.  Terms of the agreement include:

1. Clerks must check the IDs of all persons who appear to be under the age of 30 to avoid illegal sales based on appearance;
2. In-store advertising of tobacco must be limited in ways intended to reduce the effect on young people, and outdoor advertising of tobacco must eliminated at stores within 500 feet of playgrounds or schools;
3. Employee training will focus on the mechanics of eliminating underage tobacco sales and on emphasizing the serious health issues that give rise to the legal efforts to restrict underage access to tobacco products;
4. Circle K will test itself on these safeguards by conducting “mystery shopper” compliance checks at 500 of its stores every 6 months;
5. Circle K will pay the attorneys general a total of $225,000 to be used for consumer education, public protection, or the implementation of programs to protect against tobacco abuse by minors.

Both the AVC agreement and the individual statements of the attorneys general (see here, for example) note that more than 2,000 children per day begin smoking cigarettes and that 1/3 of those will one day die from a tobacco-related disease.  It is estimated that 690 million packs of cigarettes are sold illegally to children in the United States per year.

Parent Seeks $5 Million in Damages for Chuck E. Cheese’s Promotion of Child “Gambling”

A San Diego mother of two young children recently filed a class-action suit in California federal court against Chuck E. Cheese’s, in which she alleges that the restaurant chain’s gaming machines are actually illegal gambling devices which could “foster addictive behavior in children by enticing them to play repeatedly for tickets.”  Although she seeks $5 million in damages, SignOnSanDiego.com reports that her attorney says the money is secondary to his client, who primarily wants to see the gaming machines removed from the restaurants.

The attorney for the plaintiff, Eric Benink, reportedly has said he does not think that “children should be exposed to casino-style gambling devices at an arcade.”  The complaint notes that with some exceptions, gambling is illegal in the state of California, although an exception is made for games that are based predominantly on skill.  Here, the complaint (boldly) alleges, the games are based largely on chance and “create the same highs and lows experienced by adults who gamble their paychecks or the mortgage payment.”  The games, of course, rely mostly on 25-cent tokens and, depending on the player’s score, dispense tickets that can be redeemed for prizes.  The higher the player’s score, the greater number of tickets dispensed; the more tickets, the better the prize.

Attorneys for Chuck E. Cheese’s are moving to dismiss the suit on two grounds.  First, they argue that the California Legislature never intended to make the operation of a children’s arcade game a criminal act.  Second and more interestingly, they contend that even if the game systems were illegal, then the plaintiff parent would be an admitted participant in illegal gambling and therefore is barred from seeking damages and restitution.

AOL News quotes one supporter of the lawsuit, whose daughter is “addicted” to the “Claw,” as saying: “We have left Chuck E. Cheese’s in her [sic] in tears begging for one more quarter.  I’ve seen her going through my purse for quarters.  It’s devastating.”  This latest lawsuit seems to serve as one more example of a lack of accountability of parents, who certainly have the option of keeping their children away from institutions that lure them into developing “gambling habits,” without the necessity of litigation.