Blue Moon: The Not-So-Craft Beer

We here at Abnormal Use are lovers of craft beer.  In fact, several years ago, we brought our love of craft beer to the blawgosphere and interviewed Adam Avery, President and Brewmaster of the Avery Brewing Company.  As Avery mentioned in the interview, craft beer punches so much flavor when compared to the likes of Bud, Coors, and Miller beers which are “fairly flavorless and carbonated.”  While MillerCoors and AB InBev, the major offenders of mass-produced beer, may never admit it, they know the flavor disparity is legitimate.  Need proof?  MillerCoors maintains a “craft and import division” which attempts to capitalize on the craft beer craze with  the introduction of beers such as Blue Moon, its so-called “artfully crafted” Belgian-Style Wheat .  Unfortunately for MillerCoors, the guise is up as the craft-ness of these beers is coming under fire. According to reports, a potential class action complaint was filed in California last week against MillerCoors alleging that the company violated numerous laws by claiming that Blue Moon is a craft beer.  The plaintiffs allege that Blue Moon is brewed in MillerCoors’ Colorado and North Carolina breweries, which produce other MillerCoors’ beers like Coors, Milwaukee’s Best, Miller High Life, Icehouse, and Olde English. As an alleged attempt to deceive consumers, the MillerCoors name is nowhere to be found on the Blue Moon bottle.  Further, the plaintiffs take issue with Blue Moon’s trademark phrase “artfully crafted,” which they allege misleads consumers into thinking they are buying a craft beer.  The plaintiffs seek an injunction to stop Miller Coors from marketing Blue Moon as an independent craft beer operation and monetary damages. While there is no legal standard defining “craft beer,” the Brewer’s Association, a trade group concerned with the promotion of craft beer and homebrewing, sets forth the following qualifications for craft beer:

  • Fewer than 6 million barrels are produced annually;

  • A non-craft brewer can only own up to 25 percentof the craft brewer; and

  • The beer is to be made using only traditional or innovative brewing ingredients.

We here at Abnormal Use do not know exactly how Blue Moon fits into these qualifications (or, if the qualification will even stand up as a matter of law).  Nonetheless, we do find the Blue Moon-MillerCoors relationship suspicious.  Officially, Blue Moon is brewed by Blue Moon Brewing Company, an entity of Tenth and Blake Beer Company, the craft and import division of MillerCoors.  Whether MillerCoors owns more than 25 percent of Blue Moon Brewing, we do not know.  But, we do know that if Blue Moon is brewed in the same vicinity as the likes of Milwaukee’s Best, Icehouse, and Olde English, then it certainly doesn’t fit within our vision of a craft brew.

Regardless of how this lawsuit ends, we hope that beer drinkers continue to explore their options.  Don’t stop drinking Blue Moon because it is associated with MillerCoors.  Stop drinking Blue Moon because there are plenty of better options for a Belgian-Style Wheat beer.  In the alternative, if you find that Blue Moon is in fact “artfully crafted,” drink it in a brown paper bag just like its other MillerCoors cohorts.

Orange County DA Sues Unilever, Quickly Banks $750,000 Over Purported Deceptive Packaging

Recently, the consumer protection unit of the Orange County (CA) District Attorney’s Office filed suit against Unilever, parent company of AXE, accusing the company of fudging the packaging of its male grooming products.  According to a report out of The Orange County Register, prosecutors have accused the company of using “false bottoms, false sidewalls, false lids or false coverings” which “serve no legitimate purpose and mislead consumers as to the amount of product contained in the containers.”  The report is silent on whether prosecutors obtained the desired AXE effect when “testing” out the company’s body sprays.

Interestingly, prosecutors were quick to work out a tentative deal with Unilever, submitting a proposed settlement to the court on the day suit was filed.  Pending court approval, Unilever has agreed to cease using the “misleading” packaging and pay $750,000 in civil penalties to Orange County, plus $24,000 to cover the costs of the DA investigation.  In addition, Unilever will buy Sunday inserts with $3 coupons in several dozen California newspapers.  In other words, the County gets three quarters of a million dollars.  The “deceived” consumer gets the opportunity to buy another AXE product at a $3 discount.  So, it sounds like “everyone”, i.e. Orange County, comes out winners.

Aside from the financial windfall for Orange County, we here at Abnormal Use are curious as to the point of this lawsuit.  There is nothing contained in the report indicating that Unilever misled consumers as to the actually quantity of the product contained in the package.  Rather, this case only suggests that the product packaging was essentially larger than necessary and, thus, deceived consumers.  Apparently, the DA has never purchased a bag of potato chips.  Right or wrong, we are curious as to whether the AXE packaging deviated in any respect from common practice in the industry.  We are also curious as to the size differential, if any, between the packaging of AXE and a competitor’s product of the same stated quantity.  For AXE’s competitor’s sake, we hope those AXE packages were substantially larger.  If not, we know where the DA will be banking its payroll for the next quarter.

Grunge Fight: Temple of the Dog Master Recordings Up For Grabs

Temple_Of_The_Dog

If the 1990’s was the greatest decade for rock music, Seattle was its greatest destination.  The birthplace of grunge, Seattle brought us such influential bands as Nirvana, Pearl Jam, Alice in Chains, Soundgarden, Mudhoney, and Stone Temple Pilots to name a few. Without question, the Seattle sound served as the proverbial nail in the coffin of the over-the-top 1980’s hair bands that had dominated radio the previous decade. And, for this we should be thankful. For those of us here at Abnormal Use, however, we are most thankful that Seattle gave us the famed super group, Temple of the Dog.  Not just because the band was the beautiful fusion of Soundgarden and Pearl Jam, blowing the minds of grunge aficionados. But, rather, because Temple of the Dog is the subject of a new lawsuit, and thus, became perfect blawg fodder.

According to a report from the Seattle Times, A&M Records has filed a lawsuit in federal court in Seattle regarding the possession of the master recording tapes to Temple of the Dog’s self-titled – and only – album. As legend has it, Temple of the Dog was recorded at the London Bridge Studios in Seattle over 15 days in 1990.  In the suit, A&M Records claims it bought the album from the band in 1991; however, Rajan Parashar, co-founder of London Bridge Studios, won’t turn over the master tapes.

According to the lawsuit, London Bridge produced the album by way of a verbal agreement with the band. A&M Records released the album in 1991. The band subsequently played a single full convert set before parting ways. With the growing popularity of Soundgarden and Pearl Jam, A&M found itself sitting on a gold mine and re-released the album in 1992 to much greater success.  At that point, A&M alleges it memorialized a deal with London Bridge in which London Bridge agreed to turn over the master tapes.

If you are wondering why this 1991 transaction has become the subject of a 2015 lawsuit, A&M apparently only recently discovered London Bridge still had tapes.  A&M believed that the artists kept the master recordings. Upon that discovery, A&M filed suit.

As music fans, we here at Abnormal Use care not who has the legal right to the tapes. As lawyers, however, we recognize that we are expected to take a side. Nonetheless, it is difficult to do so without knowing the actual scope of any agreements between the parties. Our guess is that neither London Bridge nor A&M suspected the future significance of those tapes back in the early 1990’s. As such, it wouldn’t surprise us if London Bridge agreed to hand them over. Nor would it surprise us to learn that A&M failed to negotiate for them. What we do know is that both sides want those tapes today – some 20 years later.

Bashing Political Candidates? Let’s Leave Their Legal Careers Out Of It

We here at Abnormal Use try to steer clear of politics. In today’s landscape, political topics are polarizing and incite far, far too much animosity. For a legal blog whose writers’ views span the political spectrum, such topics are ones we would just assume avoid.  Nonetheless, upon reading a recent article from Mother Jones chastising a former lawyer, turned presidential candidate, based on his former clients, we felt it is time to break our silence (just this once).

In the article, writer David Corn attempts to expose Senator Ted Cruz as a “well-paid private attorney who helped corporations found guilty of wrongdoing.”  Specifically, Corn states:

[Cruz] was a lawyer for Kraft in a major lawsuit against Starbucks. He represented Pfizer when a California county accused the drug manufacturer and other pharmaceutical firms of overcharging. (In a win for Big Pharma, the Supreme Court tossed out the case.) He defended Eagle Freight Systems when drivers sued the company seeking unpaid overtime wages and expenses. (Cruz lost a bid to uphold a lower court ruling that shut down the drivers’ suit. Two years later, when Cruz was no longer involved in the case, the trucking company prevailed.) In a controversial move, he represented a Pennsylvania developer who was a central player in a corruption scandal that exploited juveniles, handling a dispute this crooked developer had with his insurance company.

As an apparent representative sample of Cruz’s more “egregious” acts, Corn details two other cases in which Cruz served as appellate counsel (one of which was on-brief only).  First, in Tire Engineering and Distribution v. Shandong Linglong Rubber Company and Al Dobowi Ltd., 682 F.3d 292 (4th Cir. 2012), Cruz wrote an appellate brief for a Chinese manufacturer hit with a $26 million verdict in a copyright infringement case.  Second, in Lynn Morrison v. B. Braun Medical, 663 F.3d 251 (6th Cir. 2011), Cruz handled an appeal of a verdict against a company accused of wrongfully terminating the plaintiff for refusing to violate anti-kickback laws. So, what is the point of all this?  Essentially, to call Cruz a hypocrite.  As Corn writes:

Cruz, a tea party favorite who calls himself a “courageous conservative,” has railed against “crony capitalism” and decried “corporate welfare.” He has boasted that he authored “legislation to end federal dollars subsidizing corporate fat cats.” Yet as a private legal gun for hire—who billed at least $695 per hour—Cruz sometimes defended corporations that engaged in sleazy practices to screw the little guy or gal.

Again, we must ask what is the point?

If one wants to write a negative piece on Ted Cruz, feel free to criticize his position on immigration, marriage equality, foreign policy, or any other viewpoint with which you might disagree. If you want to accuse Cruz of being a hypocrite, point out that he reaps the benefits of his health insurance from Obamacare while simultaneously opposing the law. Associating Cruz with his former clients or his work as an attorney, however, should have nothing to do with it.

As attorneys, we all have a job to do – advocate for our clients.  Whether it is civil or criminal, plaintiff or defendant, an attorney’s job is to counsel and to look out for the well-being of his or her clients. As a former lawyer, Cruz was simply doing the job he was hired to do in the best way he could to protect his client’s interests. There is no reason to chastise him for it. People and businesses deserve to have attorneys to help navigate them through the legal system.

The fundamental flaw in Corn’s logic lies within his premise itself, that being that Cruz is a “well-paid private attorney who helped corporations found guilty of wrongdoing.” In the two cases specifically cited by Corn, Cruz stepped in as appellate counsel following an unfavorable result for the client at the trial level.  Apparently unbeknownst to Corn, the legal process does not necessarily end at the trial stage (nor do civil cases result in corporations being found “guilty”), but, rather, can continue on with the right to appeal.  When Cruz stepped in to “help” these corporations with their appeals, he did so on the grounds that the verdicts were somehow reached in error.  While the corporation may have been found liable at the trial stage, it did not necessarily mean that the judgment would stand on appeal.  Of course, Corn would apparently have us ignore this whole process and essentially put appellate lawyers out of work.

The point of all of this is that lawyers are not their clients.  Lawyers aid their clients in reaching a resolution to legal disputes.  While lawyers can, and often do, turn down cases for a variety of reasons, lawyers shouldn’t be criticized for doing their job in the cases that they do decide to take. With any political candidate, there is plenty to criticize without the necessity of reviewing every legal brief he or she wrote in her pre-political career.

The Search For Immediate Cold Relief: Realistic Or Just Another Atlantis?

According to the old axiom, there is no cure for the common cold.  Nonetheless, cold medications dominate the shelves of any pharmacy.  While there may be no “cure,” pharmaceutical companies have made billions of dollars offering products aimed at relieving cold symptoms.  At least, in theory.  According to a class action lawsuit filed in the British Columbia Supreme Court, the claims of Canada’s best selling cold medication aren’t worth snot.

The proposed class filed suit against Valeant Pharmaceuticals and Afexa Life Sciences way back in 2012 alleging that the companies misled consumers into believing that the cold medicine known as Cold-FX could bring “immediate relief” for cold and flu symptoms.  According to the complaint, the defendants commissioned research which they represented to consumers as providing “science” to back the product.  While the research may support a claim that Cold-FX may reduce the frequency, duration, and severity of cold and flu symptoms, the science allegedly did not support the “immediate relief” representation.  Moreover, the plaintiffs allege that the defendants omitted the fact that research participants took Cold-FX over periods ranging from 2-6 months and that prolonged use of the drug was necessary to experience any added benefits.  Valeant and Afexa have since removed and representations regarding “immediate relief” from product packaging.  However, there are still no disclosures about how long the drug must be administered.  Back in February, the plaintiffs moved to amend their pleadings to assert additional causes of action for fraud, fraudulent misrepresentation, and deceit.

According to a report from the National Post, the defendants filed an affidavit in support of their product in which the cited their popularity on social media.  Apparently, Cold-FX has  24,000 likes on Facebook and 26,000 mentions on Twitter. One comment said, “Cold-FX is like some miracle pill,” and another claimed it “knocked my cold away.”  Case closed.

We here at Abnormal Use are interested to see what will come of this lawsuit. As people who often find themselves falling victim to colds, we would sure love to find a product that actually could provide “immediate relief.” We assume nothing like this exists now nor will it ever be created. As such, when we see a product claim that it provides “immediate relief,” we take it as mere puffery. Of course, maybe they haven’t heard of the old axiom in Canada.

Contaminated Food Recalls: The Remedy For A Mistake

Well, it has been a rough month for processed foods.  Several weeks ago, Kraft recalled 6.5 million boxes of macaroni and cheese after the discovery of metal shards in 8 of those boxes.  Last week, frozen-food manufacturer Amy’s Kitchen announced a recall of 73,000 cases of products over listeria concerns.  The recall affects those Amy’s Kitchen products which contain spinach, including vegetable lasagna, pizza, brown rice bowls, and breakfast wraps.  No illnesses have been reported, but the world’s finest chefs are sure to feel the effects of the recall.

It is hard to say whether it is worse to eat metal-laced macaroni or to suffer nausea and severe headaches arising from listeria laden pizza.  As consumers, we would all like to believe that the food we purchase from the grocery store is 100 percent safe.  In reality, mistakes can happen anywhere to anybody.  This is not just an inexpensive, processed food problem.  Even Whole Foods announced a recall of ready-to-eat products earlier in the year due to misbranding and an undeclared allergen.

With that said, product manufacturers clearly want to prevent negative effects as evidenced by Kraft and Amy’s Kitchen having ordered such massive recalls.  In addition to the desire for customer safety, litigation concerns almost certainly played a factor in these decisions.  While recalling 6.5 million boxes of macaroni when metal shards were found in only 8 of them may seem overly broad to some, the costs of litigation for a potentially widespread food contamination case is potentially far less than the cost of the recall itself.  Furthermore, a preemptive recall goes much further in promoting consumer confidence.

Gasp! Cheap Wines Allegedly Contain Arsenic, Suit Claims

According to a report from CBS News, a proposed class action lawsuit has been filed in California against a number of America’s top-selling wine producers alleging that some of their wines contain dangerously high levels of arsenic.  Specifically, they allege that certain wines contain up to four and five times the amount of arsenic the Environmental Protection Agency allows for drinking water.  There are 31 different wine brand names listed in the suit, including, among others, Franzia, Menage a Trois, Sutter Home, Simply Naked, and Beringer.

The lawsuit comes on the heels of a study by Kevin Hicks of BeverageGrades, a wine analyzing laboratory. Because there are few federal regulations on the labeling requirements for wine, Hicks decided to see exactly what makes up some of our finest wines.  After testing 1,300 bottles of wine, he made a shocking discovery.  According to Hicks, “The lower the price of wine on a per-liter basis, the higher the amount of arsenic.”  We here at Abnormal Use would have never anticipated such a revelation.

We know that hearing the word “arsenic” will always cause people to panic.  However, we do not know whether the allegations contained in this new suit, if true, are a cause for any real concern. The effects of arsenic are seen upon high levels of consumption over extended periods of time. Water is the only beverage which the EPA has set arsenic limits because, presumably, people drink more water over their lifetimes than other beverages like wine. The highest arsenic levels cited in the lawsuit are less than half of the limits set by other countries such as Canada.

So, what does all this mean?  We have no idea.  What we do know is that there should be no surprise that wine from a box may not be as organic as you may like.  We here at Abnormal Use were only surprised that our cheap wine favorites, Boone’s Farm and Mad Dog, didn’t make the list.

Willie Nelson Latest Target of Music Copyright Infringement Suit

Just days after a jury found Robin Thicke and Pharrell liable to the tune of $7.4 million for channeling the late Marvin Gaye in creating their mega hit “Blurred Lines,” Willie Nelson finds himself as the target in a similar lawsuit.  According to a report from the Atlanta Journal Constitution, Ashley Wilson and the estate of Mark Reynolds have filed suit in federal court in Atlanta against Nelson claiming that his song, “Roll Me Up and Smoke Me When I Die” is a rip-off of their song bearing the same name.  Specifically, they allege that:

[T]he infringing work contains the same title and dominant line in the chorus as the original work, with substantially similar melody, rhythm and cadence, as well as substantially similar lyrical themes.

Nelson released his song on the Heroes album back in 2012.  Wilson and Reynolds allegedly wrote theirs in 1990, performed it throughout the 1990’s, and released it on Georgia radio.  In March 2012, prior to Nelson spending five weeks atop the American radio charts, the Wilson/Reynolds version was uploaded to YouTube.

We here at Abnormal Use will refrain from jumping to quick conclusions in this matter. Certainly, if Nelson is profiting by singing the exact same song of another without proper attribution, then he should pay for it.  On the other hand, we seriously doubt Nelson, Wilson, and Reynolds are the only potheads persons to come up with some ingenious title like “Roll Me Up and Smoke Me When I Die.”  If they all just happen to have similar stoned ideas, then perhaps no real infringing harm is done.

We don’t know what effect, if any, the Thicke/Williams lawsuit has had on this one.  However, we are concerned that with the verdict, these music infringment suits shall become more and more popular.  As both lawyers and music lovers, we are not happy with this turn of events.  We have often expressed concern that music has been on a steady decline since the 1990’s because every good idea has been used.  Every musician is influenced by those who came before him or her and those influences are naturally recycled into new songs.  What do we think will happen to music if every time one of those influences peeks its head in a new song, the forefather brings an infringement suit? Musicians could never listen to other music out of fear it might surface in their own.  And, if they never listened to music, they wouldn’t know what music is so they would never become musicians in the first place!  Alas! Music is dead.

Or, maybe we are exaggerating slightly.  Thinking about Willie Nelson songs will do that to you.

Court Finds Sizzling Nature of “Sizzling Fajita Skillets” Is Open and Obvious

In the latest news from the hot food injury front, a New Jersey appellate court affirmed the dismissal of a lawsuit against Applebee’s arising from some alleged steak fajita burns.  According to reports, a man ordered the signature steak fajita skillet (identified more specifically on the menu as “Sizzling Skillet Fajitas”) from a New Jersey Applebee’s back in 2010 and apparently did not feel he was “eating good in the neighborhood.”  When the man bowed his head to pray, he alleges that he heard a sizzling and popping noise coming from the fajita.  Thereafter, in the midst of his prayer, he felt grease burning his left eye and face.  Panicking from the burns, he knocked the sizzling steak fajitas into his lap, causing additional injury.  None of the burns were severe enough to cause scarring, apparently.  The man filed suit on the grounds that the restaurant and his waitress failed to warn him the steak fajita skillet meal was hot.  The court, however, found that any dangers posed by the dish were open and obvious.  The case is Jiminez v. Applebees’s Neighborhood Bar & Grill et al., No. A-2247-13T2 (N.J. App. 2015).

We have to agree with the Court’s ruling.  Any hot food failure to warn case should be thrown out as a matter of law when the food contains the word “sizzling” in its title on the restaurant’s menu.  Something just doesn’t sound right about ordering “sizzling” fajitas and suing the restaurant when those fajitas are, in fact, sizzling.

What makes the case interesting is a fact seemingly glossed over in the reports – when were the fajitas delivered to the table during the praying process?   Thankfully, we have the opinion to let us know that the food had been delivered prior to the man starting his prayer. With this fact in hand, it can be argued that the man should have observed the food sizzling prior to hanging his head over it.  The food didn’t leave the kitchen warm and wait until arriving at his table to begin sizzling.  On the other hand, if the man had begun praying before the fajitas arrived and the waitress delivered them under his bowed head, then arguably the waitress (and Applebee’s vicariously) could be held liable.  Such liability would not come from the temperature of the food but, rather, from the act placing the man in close contact to it without his knowledge.

The most notable omission from the news reports is that this case is absolutely not reminiscent of the infamous McDonald’s hot coffee case  even though they can’t help but claim it is.  This case had a single cause of action – a negligence claim sounding in premises liability.  The McDonald’s case, on the other hand, was couched in product liability where the hot coffee itself was alleged to be unreasonably dangerous and defective by virtue of its temperature.  We would have sided with the defendant here under either theory, but let’s at least try to not to compare apples to oranges.  Or sizzling fajitas to hot coffee.

New Suit Claims Helmets Turn Firefighters Into Bobbleheads

Every day, police officers, firefighters, and other first responders face the difficult job of protecting our well-being.  They are often placed in harm’s way with nothing to protect them other than their government provided safety equipment.  Providing the latest, most effective equipment is the least taxpayers can do to help protect these brave men and women.  A group of retired and active firefighters, however, has filed a new lawsuit, claiming that their equipment does more harm than good.

According to a report from the Tampa Bay Times, five St. Petersburg  city firefighters have filed suit in Pinellas-Pasco (FL) Circuit Court against Mine Safety Appliance Co. and Ten-8 Fire Equipment Inc., claiming that the helmets they were issued in 2010 were designed poorly and caused head and neck injuries.  Specifically, the firefighters allege that the 1044 Cairns model helmet, manufactured by Mine Safety and distributed by Ten-8, is uneven and causes musculoskeletal injuries.  Translation: These helmets allegedly turn the firefighters into life size bobble heads.

While the report is silent as to the nature of the injuries, we here at Abnormal Use can reasonably conceive how a weighty helmet could cause neck injuries.  After all, we are all prisoners of gravity and the hazards of top heaviness. Nonetheless, we question what alleged design defect in the 1044 Cairns model distinguishes it from any other helmet.  It seems as if any over-sized helmet would have the propensity to promote bobble head-like movement.  As such, even though the firefighters allege that this helmet is uneven, they might face some difficulty demonstrating that the injuries are the result of the 1044 Cairns and not repetitive trauma from prior models.  Further, it will also be interesting to see if this alleged problem is limited to the St. Petersburg department or whether it is more widespread.