New Mexico Woman Sues Flask Maker For Placing Her Likeness On Flash

Imagine perusing a novelty store only to see your high school yearbook photo plastered on a flask along with the phrase: “I’m going to be the most popular girl in rehab.”  Apparently, that frightful experience actually happened to a New Mexico woman.  She didn’t find it very humorous, and thus, she is suing the novelty products maker over the flask that included her likeness.

According a complaint filed by Veronica Vigil federal court, defendant Anne Taintor, Inc. obtained and used her high school graduation picture from ethe 1970’s without her permission on flask with the aforementioned phrase emblazoned thereupon. It is not entirely clear how Anne Traitor obtained the picture (although according to news reports they do claim to have purchased the image).  Nevertheless, Ms. Vigil alleges that the New York company defamed her by linking her image to a product that makes light of substance abuse. According to the complaint, Ms. Vigil is “an active member of her church and does not consume alcohol or drugs.”

The flask is no longer available on the company’s website (Annetaintor.com).  There is, however, a used one listed on Amazon.com for the bargain price of $229.00.

More Semantics In Half-Baked, “Store-Baked” Lawsuit

The field of “semantics law” is growing at a rapid pace.  We recently reported on two lawsuits revolving around the use of the term “handmade” with respect to bourbon and vodka.  Here’s another to add to the list.  Whole Foods and two other grocers (Wegman’s and Acme) in New Jersey have been hit with a lawsuit alleging deceptive use of the term “store-baked.”

So what heinous crime have these grocers committed? It’s nothing as dastardly as trying to pass day-old bagels as fresh. Rather, the lawsuit contends some of the bread sold as “store-baked” is being made off site and only being heated on the store’s premises.  Apparently, the Plaintiffs’ sensitive palates require that baked goods be made from scratch on the premises. The Plaintiffs contend that these grocers’ alleged evil deeds violate the New Jersey Consumer Protection Act, and in bringing the suit, they purport to represent a class of approximately 10,000 customers of each chain. Further, they seek damages of at least $100 per customer.  That’s a lot of dough.

Whole Foods declined to comment on the matter, but Wegman’s and Acme denied any deceptive practices. If these types of cases are allowed to move forward, expect a lot more Plaintiffs bringing cases that pivot on semantics.

New Jersey Plaintiffs: “Tito, Your Vodka Isn’t Handmade!”

Two plaintiffs from New Jersey are on a mission to exact justice on behalf of those who they believe were duped in to buying mass produced vodka. Gasp!  The alleged evildoer? The maker of Tito’s Handmade Vodka.  The plaintiffs have filed a lawsuit alleging that Tito’s production process is “the complete opposite of the product being handmade.”  This comes on the heels of a similar suit on which we reported against the distiller of Maker’s Mark Bourbon.

Plaintiffs Marc McBrearty and Paul Cantilina say Tito’s had a legitimate claim to the “handmade” label when the vodka was made in a 16-gallon pot still. However, the plaintiff’s claim that “it is now manufactured by machines in a highly mechanized process on a 26 acre operation that produced approximately 850,000 cases in 2012.”  They allege that by using this process and not dropping the “handmade” moniker, Tito’s is intentionally misrepresenting its product in violation of New Jersey’s Consumer Protection Act.

According to a 2013 Forbes article, Tito’s did nearly $85 million in sales in 2012 at around 12 million bottles.  In spite of this huge number, Tito’s founder, Bert “Bertito” Beveridge, certainly isn’t conceding that his product fails to live up to its name.  He told Forbes, “If someone tells me my brand isn’t a craft-distilled spirit because it’s too big, I just say, ‘I make it the same way I’ve always made it. I just have a lot more stills.”

On the one hand, the lawsuit seems very silly, considering that all decent vodka tastes exactly the same.  However, given that fact, little schticks like being “handmade” are what sets the brands apart. We’ll be watching this lawsuit and the others like.

“You Drawin’ Me?” ‘Goodfella’ Sues ‘The Simpsons’

Actor Frank Sivero, who played Goodfellas character Frankie Carbone, is suing Fox TV Studios, 21st Century Fox America, and “The Simpsons” creator Matt Groening for $250 million.  He claims that the show’s creators based one of the mob characters from “The Simpsons” on his likeness without his permission.  The character, Louie, is a part of Springfield’s Mafia that originally appeared on the show more than two decades ago. Sivero alleges that he had contact with some of the writers for “The Simpsons” in 1989 when they all lived in the same apartment complex in Sherman Oaks, California. According to the complaint:

During this time, both writers knew who Sivero was, and they saw each other almost every day. They knew he was developing the character he was to play in the movie Goodfellas, a movie Sivero did in 1989. In fact, they were aware the entire character of ‘Frankie Carbone’ was created and developed by Sivero, who based this character on his own personality…. Just one year later The Simpsons went on to base one of their “Wise Guy” characters on the character ‘Frankie Carbone’…

Sivero’s suit alleges that the defendants violated California laws regarding publicity rights, misappropriation of ideas, and misappropriation of likeness.  He claims that as a result of these wrongful acts, the value of the character he created was diluted and that it contributed to his own “type-casting” as an actor.

This will likely be Plaintiff’s Exhibit A:

$40 Million Settlement Over Junk Advertisements

If there’s something people pretty much unanimously hate, it’s junk mail and telemarketing.  So if you are going to get into the business of unsolicited advertising, it is probably a good idea to make sure you know the ins-and-outs of the Telephone Consumer Protection Act (TCPA) and other applicable federal laws.  Interline Brands Inc., who allegedly sent out improper fax advertisements from 2007 to 2011, is learning this lesson the hard way after paying $40 million to settle claims against it.

The TCPA and the Junk Fax Act prohibit sending unsolicited advertisements to any fax machine unless the recipients have “established business relationship” with the sender.  Even where there is an established business relationship, any fax advertisements must have opt-out provisions. The TCPA gives private citizens the right to sue and recover the greater of actual monetary damages or $500 in damages for each junk fax.  That $500 dollars can add up quickly.

The lawsuit filed against Interline Brands was a class action suit that started by the Craftwood Lumber Company in Illinois.  The complaint (available here) alleged that Interline Brands sent out 735,000 facsimile transmissions in direct violation of federal law.  The transmissions allegedly included advertisements that did not comply with the TCPA opt-out notice requirements.  Although Interline Brand has settled the lawsuit against it for $40 million, it has denied any wrongdoing.

Airbag Defects Allegedly Causing Injuries by Shooting Debris

Earlier this month, the Florida police opened an investigation into an apparent stabbing of a woman.  Hien Tran was  found alone in her 2001 Honda Accord with neck lacerations following an accident.  The investigation took a strange twist when investigators discovered the alleged source of her injuries.  Investigators believe that a defective airbag exploded and projected metal debris at Ms. Tran which caused her injuries.

The airbags involved in Ms. Tran’s accident were manufactured by a Japanese company named Takata.  Takata’s air bags have been installed in millions of cars manufactured by numerous automakers, including Honda, Toyota, Nissan, Mazda, and BMW.  Investigators at the National Highway Traffic Safety Administration (NHTSA) are looking into whether the Takata airbags produced from 2001 to 2007 may have used a faulty propellant which can cause airbags to deploy with excessive force and project metal and plastic debris at the vehicle’s occupants.  This problem can apparently exacerbated in places like Florida with high humidity.

Although Ms. Tran’s case is garnering a lot of national attention, the problem with the Takata airbags has been a bit of an ongoing saga.  There were two fatalities that occurred in 2009, which are alleged to be related to faulty Takata airbags.  A third purportedly related death occurred in 2013.  In 2008, Honda began recalling certain vehicles with Takata air bags and has been gradually expanding the scope of the recall.  Apparently, Ms. Tran’s vehicle was one of those covered by the recall but had not been repaired.  According to reports, she may not have had notice of the recall because she bought the vehicle second hand.

The NTSHA has issued an “act immediately” warning to owners of affected vehicles to get their airbags fixed.  However, there may not be enough parts to immediately replace or repair the airbags in the millions of affected vehicles.  Some automakers concerned are addressing the issue first in warm and high humidity regions , but it will likely take some time before all the problematic equipment is repaired or replaced.

Gross Negligence? BP Asks Louisiana Court To Reconsider Ruling

File this one under ho-hum appeals with multibillion dollar ramifications.. BP has asked the U.S. District Court for the Eastern District of Louisiana for reconsideration of the trial judge’s ruling that it was “grossly negligent” in its role in the the 2010 oil release in the Gulf of Mexico.  In September, the trial judge found that BP’s “profit driven decisions” prior to release amounted to gross negligence.  With that finding, BP’s potential liability has been estimated at about $18 billion.
In the ruling, Judge Carl Barbier found BP’s actions showed “an extreme deviation from the standard of care and a conscious disregard of known risks.”  The main reason behind this finding was that several “profit driven” decisions by BP purportedly prompted the release of oil.  The decisions at issue included drilling in dangerous conditions for the final 100 feet of depth and not running an additional test of the cement used to seal the well. In its reconsideration motion, BP argued that some of the so-called profit driven decisions that formed the basis for the gross negligence finding were based on theories given by an expert whose testimony had been excluded by the court.  During the trial, the judge excluded one expert’s theory as to the cause because BP had no prior opportunity to counter that evidence. Nevertheless,  when the judge outlined the basis for his gross negligence ruling, he included factors that would have been relevant only if excluded theory had been admitted into evidence.

It’s difficult to say, at this point, whether this is a legitimate gripe or a potential $18 billion technicality.  Either way, it’s got big money ramifications.

Footing The Bill: California Drug Disposal Law Aimed At Drug Makers Upheld

Who foots the tab for the disposal of prescription drugs that aren’t (improperly) flushed down the drain or thrown into landfill?  One California county believes that such costs should fall to drug companies. Armed with that belief, county officials passed an ordinance in 2012 requiring drug companies to pay for a drug-disposal program.  Last month, the Ninth Circuit upheld Alameda County’s ordinance, which drug industry groups claimed was unconstitutional. The Safe Drug Disposal Ordinance at issue mandates that companies selling or distributing prescription drugs in Alameda County fund a program to ensure safe disposal of unused drugs.  The goal is to remove unused and unwanted drugs from households without contaminating water supplies. Under the law, drug companies must establish drop-off stations for the disposal of unused drugs.

Three trade groups sued Alameda County, alleging that the ordinance violated the the dormant commerce clause. If you don’t remember, the dormant commerce clause prohibits states from passing legislation that improperly burdens or discriminates against interstate commerce. The trade groups alleged that the ordinance would constitute an economic burden in the magnitude of approximately $1 million per year for each drug company required to comply.  Alameda County claimed this cost was exaggerated and argued that any burden would be minimal in comparison to the nearly $1 billion in drugs sales that occurred in their county each year.

The Ninth Circuit agreed with the county and unanimously held that the ordinance did not violate the dormant commerce clause. The court further held that the ordinance treats all manufacturers equally without respect to the geographic location of the manufacturer  Finally, the court held that the plaintiffs presented no evidence that the ordinance would substantially burden the flow of interstate prescription drugs.  In so doing, the court observed that the U.S. Supreme Court is “reluctant to invalidate regulations that touch upon safety.”  As such, it upheld the district court’s dismissal of the case. In concluding the opinion, the court stated:

Opinions vary widely as to whether adoption of the Ordinance was a good idea. We leave that debate to other institutions and the public at large. We needed only to review the Ordinance and determine whether it violates the dormant Commerce Clause of the United States Constitution. We did; it does not.

The case is PRMA, et al. v. County of Alameda, et al.,  No. 13-16833 (9th Circuit Sept. 30, 2014).

No Small Peanuts: Food Exec Guilty In Deadly Salmonella Outbreak

Last month, a jury in Georgia convicted a former peanut company executive of conspiracy and fraud charges in a case stemming from a deadly salmonella outbreak between 2007 and 2009.  As a result of the outbreak, nine people died, and more than 700 others became ill.  The verdict marks the first federal felony conviction for a company executive in a food safety case. The jury’s verdict came after a several week long trial for Stewart Parnell, the president of Peanut Corp.  Mr. Parnell was charged with 76 federal counts linked to intentionally shipping salmonella-laced peanut products. Prosecutors presented thousands of documents and called nearly 50 witnesses to show that Parnell and others ignored safety in order to increase profits. Among other things, Mr. Parnell and Co. allegedly hid results that their peanut products tested positive for salmonella.

Perhaps the most damning evidence at the trial was a 2007 email from Mr. Parnell to a plant manager regarding the safety of the tainted products.  In response to concerns from the manager over the tainted products, Mr. Parnell replied: “Just ship it.” This verdict is not insignificant, as it comes in the midst of a new focus by the Department of Justice on food safety cases brought under the Federal Food, Drug and Cosmetic Act.  Last year, the owners of a cantaloupe farm pleaded guilty to misdemeanor charges related to a listeria outbreak. Earlier in this year, federal prosecutors filed charges against the executives at an egg company linked to a 2010 salmonella outbreak.

Mr. Parnell and the others convicted now await sentencing.

Pharmaceutical Companies Sued Over Marketing Of Pain Killers

Painkiller abuse has  become a big problem in the past decade, and now, three governmental entities are seeking to hold pharmaceutical companies responsible.  The City of Chicago and two California counties have filed separate lawsuits alleging that “aggressive marketing” by several pharmaceutical companies has purportedly led to addiction and abuse of painkillers by their taxpayers.  The named defendants are Jansen Pharmaceuticals, Purdue Pharma, Actavis, Endo Health Solutions Inc., and Cephalon. The core allegation in these suits is that the companies fraudulently downplayed the known risks of painkiller addiction in their marketing materials, which allegedly misled the public and led physicians to overprescribe the drugs.  This conduct allegedly costs taxpayers and the government millions of dollars in the form of unnecessary prescriptions and emergency medical care.  The City of Chicago’s complaint alleges that in Chicago alone there were over 1,000 ER visits attributable to painkiller abuse in 2009.

These lawsuits are an interesting attempt to regulate, through litigation, what is already one of the most heavily regulated industries in the United States.  Matters relating to prescription drugs typically fall under the jurisdiction of the FDA.  Moreover, federal laws and regulations already require that pharmaceutical promotional materials must be supported by substantial scientific evidence and must reflect a “fair balance” in describing the benefits and risks of the drugs.  See, e.g., 21 U.S.C. 352(a); 21 C.F.R. 201(e)(g).

Not surprisingly, the pharmaceutical companies are already angling to dismiss these lawsuits.  Earlier this month, they moved to dismiss the City of Chicago’s complaint on, among other grounds,  the ground that this matter should be decided by the FDA under the primary jurisdiction doctrine.  The primary jurisdiction doctrine is a judicial doctrine whereby a court tends to favor allowing an agency an initial opportunity to decide an issue in a case in which the court and the agency have concurrent jurisdiction.