“Fifty Shades of Grey” Adult Products Allegedly Not Living Up To The Hype, New Lawsuit Says

image

Moviegoers everywhere took to theaters last weekend to catch the premier of Fifty Shades of Grey, the film based on author E.L. James’ erotic romance novel of the same name.  Over 100 million copies of the popular novel have been sold worldwide, elevating it to the top of numerous best seller lists.  Based on the hoopla and controversy surrounding the story’s sexual themes, we expect the film will share the novel’s success at the box office.  In fact, the “Fifty Shades” brand has become so popular that it has parlayed its success into numerous other products, including a line of adult toys and lubricants.  Unfortunately, like all other over-commercialized things in our culture, some of those spin-off products may not live up to the perceived quality of the source material.  And, guess what happens when products don’t live up to the hype?  We get lawsuits far more controversial than the book itself.

According to an MTV News report, California woman Tania Warchol has filed a proposed class action against Lovehoney, the manufacturer of the official “Fifty Shades” line of adult products, claiming that the “Fifty Shades of Grey” Come Alive Pleasure Gel for Her failed to meet expectations.  The product description contained on Lovehoney’s website website states:

Heighten your pleasure with Come Alive, an intimate arousal gel from the Fifty Shades of Grey Official Sensual Care Collection. Experience enhanced orgasms and stimulation as every tingle, touch and vibration intensifies.

Based on this description, Warchol alleges that she “believed the [gel] has powerful aphrodisiac qualities and would increase her sexual pleasure as advertised.”  However, after a couple of uses, the Come Alive Pleasure Gel allegedly didn’t rise to the occasion.

We are guessing Warchol will face a tough road ahead of her trying to meet her burden.  A quick review of the comments section on the product’s website indicates an overwhelmingly positive customer experience and a 4-star rating. Even though feedback on a product website can be, and often is, fudged by those with a vested interest in such things, the rest of Internet reveals similar results.  As such, even if it is a placebo effect, it looks like the product must be working for somebody.

Maybe Warchol should consider other external variables.

Or, if we are wrong, this lawsuit may just prove that Come Alive Pleasure Gel is as effective as a product as “Fifty Shades of Grey” is as fine literature.

Potential Lawsuits Lead to Draconian Measures

An occupational hazard for attorneys is being able to foresee the most benign things as potential lawsuits. The world is not really one giant lawsuit waiting to happen, but it sure seems that way. Call us old-fashioned, but we yearn for the days of yesteryear when people could enjoy their lives without fear of being sued. Unfortunately, our hopes appear to be nothing more than a pipe dream.

Case in point, NBC News recently reported on the rising number of towns which have banned or restricted sledding. Guess why anyone would want to ban sledding, the quintessential winter activity? Lawsuit concerns, of course. Mayor Roy Buol of Dubuque, Iowa, explained to NBC News in discussing his town’s recent ban:

We’re worried about litigation about the city not doing their research or their work to prepare sledding areas for sledders and making the city liable for the accidents that would occur on those properties.

We understand towns wanting to make sure their citizens are safe, but should they really have to be concerned about sledding liability? If a town encourages its residents to sled in a minefield, yes, it should be concerned.  But towns shouldn’t live in fear of being sued for the run-of-the-mill sledding accident. People choose where they want to sled.  When people choose to slide down a hill with nothing between them and the snow and ice but a piece of plastic, accidents are bound to happen. The city has nothing to do with that.

With that said, we understand the draconian measures these towns have taken. They can’t possibly pad every curb and utility pole and place cushioned backstops at the base of every hill. Until they do so, the risk of future litigation is real unless they just outlaw the very mechanism that can lead to those lawsuits in the first place. At least, that is what our lawyerly intuition tells us.

Coach Belichick, we know Mona Lisa Vito. And you are no Mona Lisa Vito.

image

Unless you been completely disconnected from the media over the last week, you have undoubtedly heard about the purported scandal arising out of the New England Patriots’ alleged deflation of footballs prior to the AFC Championship game. We here at Abnormal Use have our thoughts on the scandal, but we are not interested in wasting valuable space on the legal blogosphere reveling in the inflation pressure of pigskin. We do, however,want to discuss the most notable thing to come out of the “Deflategate” scandal – New England Head Coach Bill Belichick’s comparing himself to My Cousin Vinny’s Mona Lisa Vito.

The scandalous comparison occurred last Saturday during an impromptu news conference held in an effort to clear the Patriots of any wrongdoing. (You can find the full press conference here). In the conference, Belichick offered an elementary physics lesson in an attempt to explain how eleven of the Pats’ twelve footballs were discovered to be 2 psi below the required pressure limit. After doing so, Belichick exclaimed, “I would not say that I’m Mona Lisa Vito of the football world.” No, Coach, you are not.

There is no limit to the differences between Bill Belichick and Mona Lisa Vito.  Personality, charisma, and class are the obvious ones, but that isn’t what Belichick had in my mind.  He was referring to his use of scientific knowledge as a lay person to support his case in a manner similar to, but not quite the same as, Vito in the Vinny trial.  In reality, the differences between Vito’s testimony and Belichick’s comments are far more stark.

For starters, Vito was actually qualified as an expert.  Everyone remembers the infamous voir dire in which she rattled off enough information about ignition times to make Henry Ford jealous, leaving the district attorney speechless and with no concerns about her qualifications. Belichick, on the other hand, likely used no first hand knowledge at all and relied on whatever information team informants obtained from a Google search on air pressure.  No one left that press conference thinking Belichick could teach a high school physics class.

Base of knowledge aside, the biggest difference between Vito and Belichick is that Vito’s testimony left no doubts as to its truth. With her testimony, the case was won. The judge knew it. The jury knew it. The State knew it. There were no doubts. On the other hand, Belichick offered a possible explanation, at best.  His comments sparked more debate on the accuracy of his science and in his credibility than they settled. No one listened to Belichick speak and definitively felt that the Patriots were innocent of any charges.

After devoting a full week to My Cousin Vinny‘s twentieth anniversary, Vito and her trial testimony are topics we know well. For Belichick to compare himself to Vito by saying he is not like Vito is heresy. We assume he made the reference because, at least to him, he thought there was some similarity.  But Coach, we have news for you. Absent your reference, no one on the planet would have opined that using scientific words fed to you by your public relations manager makes you Mona Lisa Vito.

Real knowledge comes from being an out-of-work hairdresser.

Oh, and many thanks to friend of the blog Jay Hornack for reminding us that we needed to draft a post on this fateful subject:

Colorado Inmate Stands Up For Dez Bryant, Cowboys Fans Everywhere (For Only $89 Billion)

It is the week of the Super Bowl, the biggest sporting event of the year, and we here at Abnormal Use are having trouble getting excited. It has nothing to do with our beloved Carolina Panthers bowing down to the Seahawks earlier in these playoffs. No, our excitement is subdued because this is the first Super Bowl in our memory involving two teams that arguably shouldn’t be there. The Patriots are marred by “Deflategate” paranoia. The Seahawks are technically scandal-free, but everyone knows the NFC champ would have been the Dallas Cowboys but for the overturn of Dez Bryant’s crucial fourth quarter catch against the Packers. The NFL won’t do anything to stop the injustice.  Fortunately, Colorado inmate, Terry Hendrix, is not so constrained and has filed a lawsuit against the NFL, Commissioner Roger Goodell, and referee Gene Steratore seeking $88,987,654,321.88 over the abysmal call that kept the Cowboys out of the big game.

According to the complaint filed in the U.S. District Court for the Northern District of Texas, Hendrix, who apparently serves as counsel for “Dez Bryant, all Dallas Cowboys fans and all people in or from the sovereign republic of Texas,” is suing the defendants for negligence, breach of fiduciary duty, and “wreckless disregard.” He alleges that the video reversal of Bryant’s catch was “fraud, theft, and gross stupidity.” As a result, Hendrix claims that victory was clearly stolen from the plaintiffs because “the Cowboys’ offensive line would have perfectly created an ‘Autobahn’ for DeMarco Murray to drive into the endzone for the score and victory.”  Obviously.

The Super Bowl is big business. The least the NFL can do is make sure the right teams make it to the big game.  Like Hendrix said, the Cowboys obviously would have won but for the blown call (despite how they played the other 59 minutes).  And, they obviously would have gone on the road to beat Seattle where the Packers couldn’t win even when Russell Wilson throws four interceptions.  Just cancel the Super Bowl already and give the Cowboys the trophy.

Credit Hendrix for standing up for Bryant, the Cowboys, and the great state of Texas and trying to honor the integrity of the game.  We are certain when he recovers $89 billion from the NFL, Hendrix will share it with them evenly.

Rick Springfield (And His Rear) Not Liable In New York Personal Injury Suit

image

At long last, we have some resolution to the now infamous Rick Springfield butt-injury case.  Last week, a jury returned a verdict in favor of Springfield, finding that his hindquarters were not responsible for the injuries allegedly sustained by 45-year old Vicki Colcagno way, way back in 2004.  Colcagno alleged that during a concert at the New York State fair, Springfield was jostled by the audience and lost his balance, causing his rear to strike her.  The butt-hit allegedly knocked Colcagno to the ground where she struck her head, causing a traumatic brain injury.  Exhibit A (pictured above) of Colcagno’s case was a picture of Springfield’s rear end taken just moments before the alleged incident.  After all the evidence was heard, the jury took 61 minutes to render a defense verdict.

The location of the allegedly dangerous body part aside, we here at Abnormal Use are not surprised by the jury verdict.  Colcagno had no witnesses from the concert to corroborate her story.  She had no video evidence (aside from the aforementioned pre-accident butt shot).  After the alleged incident, she remained at the concert and continued taking fan photos of Springfield.  She also attended a Cyndi Lauper concert a week after the Springfield incident. (Lauper kept her body parts on stage).  Moreover, the jury probably didn’t like hearing how Colcagno asked Springfield for concert tickets during a 2010 deposition.

In any event, we applaud Springfield and his legal team for following this case through to trial.  Settlement would have undoubtedly been the path of least resistance.  The life of an 80’s pop star is certainly busy and keeping up with litigation was probably not high on his list.  But, rather than settle, Springfield boldly stuck to his position that he did nothing wrong. Now, if Springfield can channel the momentum of this trial victory into a new “Jessie’s Girl,” we can all be winners.

WestlawNext: The Reason It Was Time For Westlaw Classic To Go

Recently, we here at Abnormal Use mourned the passing of Westlaw Classic. While our editor lamented a world sans Classic, many of us do not share that same sentiment. There is a good reason why Thomson Reuters bid farewell to the foundational online legal research tool. It gave birth to something better. Something superior to Westlaw Classic in every way imaginable. Something that will make your life as a lawyer significantly easier: WestlawNext.

If you want to compare Westlaw Classic to WestlawNext, think original iPhone to iPhone 3G. The comparisons stop with the name with the latter improving significantly on the former.  Unlike Classic’s archaic search methods, WestlawNext’s algorithm-based “WestSearch” (think Google) makes research a breeze. No more confusing Boolean or connector searches.  Just tell Next what is on your mind. It is that easy.

If that is not enough to bid adieu to Westlaw Classic, wait until you see WestSearch’s comprehensive search capabilities. A simple search instantly reveals not only case law but also statutes, regulations, secondary sources, briefs, and trial court documents. No more having to painfully select three or four databases. Now, you can search them all. At once.  In a seamless, well-organized fashion.  And, if that search doesn’t seem to be working, just click on that trial court document tab to get a lead from your colleagues who have drafted that memo in support of motion for summary judgment before you.

Aside from the drastically improved search functions, WestlawNext offers many more features than Westlaw Classic ever did.  Want to highlight excerpts from cases on-screen?  You can do that. Want to copy text complete with Bluebook citations?  You can do that, too. Want to organize your research in folders so you can access it later?  Yep, not a problem with WestlawNext. In other words, WestlawNext makes Westlaw Classic look like a stack of volumes in an old library.

As a pioneer in its field, Westlaw Classic will always hold a special place in the hearts of those who have ever had to Shepardize cases the old fashioned way.  But, let’s face it.  Westlaw Classic was a dinosaur when compared to the advancements made by Thomson Reuters.  While we have no qualms about taking a moment to mourn Westlaw Classic’s passing, it is time to move on.  WestlawNext welcomes you with open arms.

Bud Light Lime-A-Rita: Light Beer or Light Margarita?

image

Since bourbon and vodka have recently found themselves on the wrong side of a lawsuit, beer has decided to join in on the action.  A proposed class action has been filed against Anheuser-Busch (“AB”) alleging that the American brewer deceptively marketed its light beer products.  Specifically, the named plaintiff, Sheila Cruz, alleges that AB claims that the Bud Light Lime-A-Rita (and each of its five flavor varieties) is “light” and low in calories when, in fact, it contains more calories than any other AB beer.  An 8-ounce Lime-A-Rita contains 220 calories whereas 12-ounce cans of Bud Light and Budweiser contain 110 and 145 calories, respectively.  The suit was originally filed in state court in Los Angeles, but as defendants often do, it has been removed to the U.S. District Court for the Central District of California.

On the surface, it appears that this suit could have some teeth with the Lime-A-Rita containing 50 percent more calories in two-thirds the quantity of a Budweiser, its notoriously heavy cousin.  However, is comparing the Lime-A-Rita to Budweiser or Bud Light a proper comparison?  The Lime-A-Rita’s calorie count arguably isn’t “light” by beer standards.  But, is the Lime-A-Rita really a beer?  Is it a margarita? Or, it is some kind of beer-margarita hybrid?  AB claims the following on its website:

Bud Light Lime-A-Rita has the great taste of a lime margarita with a twist of Bud Light Lime for a delightfully refreshing finish. With Bud Light Lime-Ritas, there’s no need to spend time mixing and blending to prepare a lime-flavored beer margarita. Just pop open, pour over ice and enjoy!

Beer is not something enjoyed over ice. This product sounds like a margarita-in-a-can with the joys of a Bud Light lime twist only AB could create.  While the drink may not be an actual margarita, comparing the Lime-A-Rita’s calorie count to its purebred brethren lends more credence to the “light” label than with beer comparisons.  When a standard margarita on the rocks boasts 455 calories, the Lime-A-Rita’s 220 definitely feels light by comparison.

Of course, once AB takes the position that the Lime-A-Rita is actually a margarita, it will probably face false advertisement claims from another front.

CPSC Recall’s Keurig Coffee Makers: Not Another Stella Liebeck Case

If you follow the storied history of hot coffee in product liability litigation, the Consumer Product Safety Commission’s decision to recall certain Keurig home coffee makers last week probably grabbed your attention.  Certain reports have already surfaced (like this one from Forbes) attempting to compare this CPSC move to the infamous Stella Liebeck case and to use the recall as another example of hot coffee being an unreasonably dangerous product.  Before making such comparisons, we need to take a better look at the substance of the CPSC’s decision.

According to the CPSC report, the Keurig MINI Plus Brewing System, model number K10, is being recalled after 90 burn-related injuries were reported.  Here is the kicker:  the burn injuries were not the result of people drinking or spilling hot coffee as was the case with Stella Liebeck but rather the result of hot liquid spewing out of the coffee maker during the brewing process.  Nothing about this recall speaks to the Keurig’s brewing or serving temperature being too hot.  Nor does this recall dispel the notion that people like their coffee to be served hot.  Rather, the recall speaks for exactly what it says – people don’t like to get sprayed with hot water while their coffee is brewing.

We here at Abnormal Use understand the call to compare every bit of hot coffee-related news to the Liebeck case.  In fact, we are guilty of doing it often ourselves.  This CPSC recall and the corresponding reports is just another example of how a single cup of coffee served 20 years ago in a New Mexico McDonald’s has fundamentally altered how the general public perceives the beverage and our legal system. So, again, we appreciate the notion.  Nonetheless, before we make these comparisons, let’s at least make sure we are comparing apples to apples.

Take 2: Alas! Another Liquor Under Fire Over Being “Handmade”

titos-handmade-vodka

Yesterday, we reported on the Tito’s Handmade Vodka lawsuit over the liquor’s “handmade” label.  That news came on the heels of the lawsuit filed against Maker’s Mark in California challenging the validity of the claims that the Kentucky bourbon is itself handmade.  With so much fuss about handmade liquor, we here at Abnormal Use thought it worthwhile to add an additional day of commentary.

As you may recall, the Tito’s lawsuit was filed by two New Jersey men on behalf of themselves and vodka drinkers everywhere who claim the Texas company’s “handmade” moniker is a sham. In addition to featuring the word “handmade” right in its brand name, Tito’s website states:

[Tito’s vodka] is microdistilled in an old-fashioned pot still, just like fine single malt scotches and high-end French cognacs. This time-honored method of distillation requires more skill and effort than modern column stills, but it’s well worth it.

According to the latest lawsuit, however, this “time-honored method” actually involves a large manufacturing plant in Texas.  Specifically, Plaintiffs allege:

This entire manufacturing process of the defendants is devoid of the caring touch of human hands.  This is a material factor in many individuals’ purchasing decisions, as they believe they are purchasing a product that is made in small amounts that is of inherently superior quality.

As such, the vodka is allegedly “not worth the purchase price paid.”

Even assuming the allegations are true, how have these plaintiffs really been damaged?  As was the case with Maker’s Mark, we here at Abnormal Use don’t pretend to know the difference between “handmade” and machine-made liquor.  We do, however, recognize that there is a certain premium associated with any handmade product.  For many, handmade products are perceived to be better made and, thus, come with a higher price tag.  On the other hand, we do not know whether handmade vodka is really better than that “devoid of the caring touch of human hands.”  Our guess is that blind testing would reveal a certain placebo effect associated with knowledge that the vodka is homemade.  After all, “top shelf” just means where the bottle is stored, right?

Obviously, if Tito’s represents one thing to consumers while doing another, it may pose a problem.  But the real question is whether the vodka-Red Bull of a regular Tito’s drinker now tastes a little less fulfilling after learning of this lawsuit.  Sometimes, ignorance is bliss.

Manufacturer’s “Handmade” Bourbon Made by Robots, Suit Alleges

_makers-mark-4_3

When it comes to beer, wine, and liquor, many consumers are purists.  For such people, drinking beer not brewed by a craft brewer or wine not originating from a French grape is sacrilegious. Recently, a proposed class of bourbon drinkers took to the courtroom to test this principle.  Named plaintiffs Safora Nawrouzi and Travis Williams have filed suit against Maker’s Mark in federal court in San Diego alleging that the Kentucky bourbon’s claims to be “handmade” are false and misleading to the tune of $5 million in damages.  In other words, put an allegedly false label on spirits and be prepared to award the plaintiffs a pond full of liquor. The problem apparently lies with the Maker’s Mark bottle, which contains a label that reads, “Maker’s Mark Kentucky Straight Bourbon Whisky Handmade.”  Plaintiffs find this label inaccurate.  According to the Complaint, Maker’s Mark

promotes its whiskey as being ‘handmade’ when in fact defendant’s whiskey is manufactured using mechanized and-or automated processes, which involves little to no human supervision, assistance or involvement, as demonstrated by photos and video footage of defendant’s manufacturing process.

Specifically, Plaintiffs allege that the automated process includes grinding and breaking up the grains, mixing grains with yeast and water, transferring to fermenting vats, and bottling.

We here at Abnormal Use do not know what effect, if any, the alleged mechanized processes may have on the taste of the bourbon.  According to Plaintiffs, however, it has enough of any effect that they wouldn’t have purchased the bourbon had they known it wasn’t “handmade.”  Of course, the bigger question is what Plaintiffs (and Maker’s Mark for that matter) mean by “handmade.”  For a company that sells more than 9 million bottles of bourbon a year, we would think it reasonable for Plaintiffs to expect some amount of automation.  Maker’s Mark, however, will have to prove that there remains a “hand” other than a robotic one involved in the process. As bourbon drinkers, this will be a suit we will follow closely.