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?

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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”

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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

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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.

Chick-Fil-A And The Case of the Heart Attack Causing Cherry

With a fact pattern straight from a torts textbook, a Texas woman has sued Chick-Fil-A and its cherry supplier, Dell’s Maraschino Cherries Co., Inc. after the cherry on her milkshake allegedly caused her to have a heart attack.  According to a report from the New York Daily News, Cyndi Scruggs purchased a milkshake topped with whip cream and a maraschino cherry from a Chick-Fil-A restaurant in Plano, Texas.  She bit into the cherry and discovered that it allegedly “had not been properly de-pitted.”  The improperly de-pitted cherry caused her to fracture two teeth below the gum line.  To make matters worse, Scruggs developed a gum infection and sepsis which allegedly caused her heart attack.  She is seeking between $200,000 and $1 million in damages.

This is case is certainly a test in foreseeability and proximate causation.  Assuming that Scruggs did bite into a faulty cherry and that her damages allegations are valid, it seems very tenuous on the surface that a cherry could lead to a heart attack.  Nonetheless, if Scruggs can prove an unbroken chain between the cherry and the attack then she may be able to recover, as crazy as it may be.

Damages aside, we here at Abnormal Use have to question why anyone would eat the milkshake cherry in the first place.  We always thought the cherry was more visually appealing than edible. In our opinion, cherries are a Jolly Rancher flavored and should never actually be consumed.  Of course, there is no prohibition on the consumption of such things.  But shouldn’t we assume the risk of injury for biting into something that has no valid purpose on the milkshake in the first place?

The Dark Knight Won’t Share His Likeness With European Soccer Team

According to a report from Sports Illustrated, La Liga football club Valencia will abandon its new logo following an objection from DC Comics.  Last week, Valencia filed a trademark application for its re-designed bat logo.  DC Comics filed an objection to the application, claiming that the logo looked too similar to the crest of the Dark Knight himself.

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As you can see, the two logos are similar in that they are both black in color and resemble a bat.  Beyond that, we here at Abnormal Use fail to see how the proposed logo will cause much confusion.  We seriously doubt the Valencia logo, with its soft lines and rounded ears, would strike much fear in Gotham’s criminals.  Certainly, even though the most amateur Batman fan could easily point out the differences.

An interesting component to this trademark suit is trying to decipher just which Batman logo Valencia is allegedly infringing. The Batman symbol has evolved over the years.  The comparison (shown above) used by Sports Illustrated and other media outlets reporting on the story compares the Valencia logo to the Dark Knight logo released in 2008.  Perhaps DC Comics’ complaints would make more sense had they focused on the logo from the 1999 “Batman Beyond” animated series:

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At least with the 1999 logo, the wings are in the same position as that of the Valencia logo.  This trademark lawsuit would be one we could understand. In any event, Valencia has used a bat in its official team crest since 1922.  The City of Valencia has incorporated a bat in its coat of arms for even longer.  Batman didn’t emerge until 1939.  The bat logos for each have undergone a number of changes through the years, but for whatever reason, this is the first time DC Comics saw a problem.

It Has Come To This: McDonald’s Customer Allegedly Fabricates Hot Coffee Injury

As you of course already know, we here at Abnormal Use have devoted much time to the discussion of hot coffee lawsuits.  As we have often suggested, supporters of cases like the infamous Stella Liebeck v. McDonald’s case focus too much on the damages and not enough on the liability issues, such as whether coffee is an “unreasonably dangerous” product.  After all, in a tort action, a plaintiff doesn’t get to damages without first proving liability.

Now, a new report has us questioning our position.

According to a news report from CBS-Los Angeles,  a California woman is facing two dozen counts of felony insurance and workers compensation fraud for allegedly submitting false damages materials pertaining to a hot coffee claim.  The criminal complaint filed in the San Bernardino County Superior Court states that the woman claimed that hot coffee was spilled on her hand when she was handed a cup with an unsecured lid at a McDonalds drive-thru.  Thereafter, she submitted photos of second-degree burns she allegedly lifted from the Internet.  Couple that with medical records she allegedly doctored, and you have serious fraud, if true.  And, to think, after all this time, after writing about all of these cases, we just assumed the burns were legit.

In all seriousness, we know that hot coffee can cause burns, and this incident is an outlier.  That said, we have to wonder how much influence the Liebeck verdict and its legacy had on this woman’s plan.  Or, maybe she consulted with Jackie Chiles.  Either way, we have to give her some credit.  At least she knew to attribute some independent act of negligence to McDonalds (i.e. spilling the coffee) rather than complain about the temperature of the coffee itself.

Four Loko Manufacturer Not Immune From Suit As Manufacturer of Alcohol

The father of a Four Loko drinker who was shot and killed by the police has been granted a second chance to pursue his claims against the drink manufacturer.  After the death of Ron Fiorini, a 23-year old college student, Fiorini’s father, Brett Fiorini, filed suit against City Brewing Company, LLC in the Superior Court of Fresno County (CA) and asserted negligence and strict liability claims.  Specifically, Fiorini alleged that Four Loko’s combination of alcohol and caffeine, as well as other stimulants, was unreasonably dangerous and increased the risk of violent and other high-risk behavior.  The circuit court granted City Brewing’s motion for summary judgment on the grounds that the company was protected by the civil immunity in California’s dram shop statutes.  Last week, a California appellate court reversed the judgment in favor of City Brewing.  The case is Fiorini v. City Brewing Co., LLC, No. F067045 (Cal. App. 5th Nov. 7, 2014).

We have written before on Four Loko lawsuits, but factually, this one offers a few new twists.  On the day of Fiorini’s death, he and some friends purchased two cans of Four Loko and a quantity of beer from a convenience store.  Thereafter, Fiorini drank the Four Loko and some beer and began acting agitated and disoriented.  Fiorini became delusional, grabbed a shotgun, and started shooting at a fence, exclaiming that “they” were coming for him.  When police arrived, Fiorini wielded the gun on the front porch and police opened fire.  The crux of the lawsuit is that had the Four Loko not contained caffeine and other stimulants, Fiorini would have lost consciousness due to his level of alcohol consumption.  Instead, he remained awake in his disoriented state.

On appeal, City Brewing argued that the trial court correctly granted its motion for summary judgment based on a California statute which protects the manufacturers of alcohol from liabilty for common consumer products, i.e. alcohol.  The Court, however, held that an alcoholic energy drink, which combines alcohol and caffeine, is not a common consumer product for the purpose of statutory immunity.

While we here at Abnormal Use recognize that the alcoholic energy drink is a fairly new phenomenon, we question whether the risks are not common knowledge.  People know the risks of alcohol.  They know the risks of caffeine.  It doesn’t take a chemist to presume what the risks may be of combining those two items.  After all, it is what probably drives most people to purchase Four Loko in the first place.  The Court rejected this so-called “deconstruction” approach, but it is certainly an approach we would have considered taking.

Now that the case has been remanded back to the trial court, we are interested to see what a jury may do with these claims.  Four Loko has had its share of bad press over the last few years.  It is now time to see whether that negative reputation holds up to a legal analysis.

TV Review: USA’s “Benched,” Starring Eliza Coupe

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This past Tuesday night, the USA network aired the premiere episode of “Benched,” a new legally themed sitcom starring Eliza Coupe (“Happy Endings,” “Scrubs”) as an ex-corporate lawyer experiencing the trials and tribulations of life as a public defender. Created by Michaela Watkins and Damon Jones, “Benched” brings the fun back to the legal sitcom in ways many of its recent predecessors have failed.  While “Benched” is not a perfect depiction of the legal profession, lawyers, particularly those engaged in a criminal practice, will relate to the challenges faced by its PD protagonist.

Coupe plays Nina Whitley whose life as a prominent corporate attorney is derailed by a comedic in-office blow-up following her discovery that she failed to make partner.  Now plagued by the gossip surrounding her breakdown, Whitley finds herself with few employment options despite her impressive pedigree.  Reluctantly, she takes a job with the public defender’s office in an attempt to revamp her career, but in the process, rediscovers herself.

At least in the pilot, the focus is exclusively on Whitley and set primarily within the confines of the courtroom and the public defender’s office.  We assume, however, that the show may dive deeper into Whitley’s personal life in future episodes based on the groundwork set forth in the pilot.  Rounding out the cast are Jay Harrington as fellow public defender Phil Quinlan, Fred Melamed as Judge Don Nelson, Jolene Purdy as legal intern Micah, and Carter MacIntyre as Whitley’s ex-fiancé turned prosecutor Trent Barber.

The pilot sets the stage for Whitley’s career path.  Waiting to become the next partner at her law firm, Whitley discovers that the position has been given to her attractive yet less legally-qualified colleague.  Enraged by the news, Whitley unleashes an epic rant on her firm and co-workers which ends with her smashing a vase given to the firm by Sir Elton John himself.  Preceded by exaggerated rumors of her blow-up, Whitley emerges in the public defender’s office and immediately learns she is scheduled to be in court for numerous arraignment hearings five minutes later.  As if walking into court completely unprepared wasn’t bad enough, Whitley discovers that the prosecutor is none other than her ex-fiancé, now legal nemesis.  Frustrated after “losing” multiple requests for bail, Whitley finally uses her legal moxie to achieve having bail set at $1 for an alleged diaper thief, much to the chagrin of her nemesis.

We here at Abnormal Use are not criminal lawyers, and we certainly do not pretend to know the internal machinations of a public defender’s office.  “Benched” goes out of its way to create a stark contrast between the work environment of those in the public sector from the cozy confines of a big law firm.  Just as many shows exaggerate the perceived “luxuries” of the firm life, we assume “Benched” took similar liberties with the PD’s office.  We seriously doubt the typical PD’s office mirrors the chaotic confines of a debt collection call center.  Nonetheless, many of the portrayals of the difficulties faced by lawyers in the public sector are well-founded.  Too many files without the time or opportunity to work them up as much as the lawyer would prefer is not just a story made for Hollywood.  Yet, like Whitley, lawyers make it work.

At its roots, “Benched” is a comedy and Coupe will certainly make you laugh.  For lawyers, the show is more than just a half hour of comedic relief.  Whether or not the message was intended, “Benched” serves as an excellent reminder of what makes this profession so great. Regardless of a lawyer’s practice area, there will always be more work that can conceivably be addressed.  Yet, when the lights come on in the courtroom, the skills take over and lawyers find a way to make each case look like it is the only one on his or her radar.  Like any great lawyer, Whitley finds a way to thrive in the face of insurmountable odds.  While the general public will love Coupe as an actor, lawyers will love Whitley as an attorney.  Sure, “Benched” takes some artistic liberties with the legal profession, but lawyers will certainly be able to relate to its shenanigans.

“Benched” airs on USA Tuesday nights at 10:30 pm EST.