Friday Links

adv-supes

You know, we must ask what exactly is occurring on the cover of Adventure Comics #370, depicted above and published way, way back in 1968. Our heroes face “The Devil’s Jury,” suggesting perhaps that Superboy did not retain a jury consultant. “Legionnaires, for numerous acts of anti-crime, I sentence you to the Devil’s Island of Space!” exclaims the sorcerer jurist. That sounds unpleasant. Why is it that villains are always sentencing people to vile punishments at mock tribunals? Why are they concerned about the appearance of due process? This makes little sense.

Apparently, Thomson Reuters is officially retiring Westlaw Classic. We don’t know what we are going to do without it.

Okay, the rock band Kiss is being sued by a security guard claiming injuries arising from confetti. Yes, you read that correctly: confetti. For more on that, see here.

Guess what? GWB’s own David Rheney was recently named Lawyer of the Year in Insurance Law for Greenville by Best Lawyers in America. See here on that story.

Here’s our favorite tweet of the week from Texas country musician Owen Temple:

Massachusetts Consumers Allegedly Forgot the Meaning of Coke

To us here at Abnormal Use, Coca-Cola is a lot of things. A delicious beverage on a summer afternoon. An entertaining museum in downtown Atlanta. A title sponsor of the longest race in NASCAR. While Coca-Cola may be a lot of great things, we never considered it particularly “healthy” or “natural.” A purported class of Coke consumers in Massachusetts, however, apparently felt otherwise. Accordingly, they have filed a new suit in federal court alleging that they were duped by Coca-Cola into believing that the product was, in fact, healthy.

According to the complaint, Coca-Cola allegedly found itself facing decreased market share due to increasing consumer preference for beverages without artificial flavoring or chemical preservatives. Rather than alter its product to satisfy consumer demand, Coca-Cola, the consumers allege, embarked on a campaign to intentionally deceive them into believing that Coke is natural and healthy. In addition, the consumers allege that Coca-Cola misrepresented its history by claiming the beverage has not deviated from its original 1886 formula. Because the product is purportedly misbranded, the consumers allege that the product that they purchased has zero value. Had the consumers known about the misrepresentations, they allegedly would not have purchased the product. The suit is captioned Marino v. Coca-Cola Co., 1:14-cv-13446 (D. Mass.) and contains causes of action for breach of warranties, negligent misrepresentation, negligence, and violations of federal and state food labeling laws.

While we are huge proponents of Coca-Cola, we do not pretend to know anything about its ingredients nor do we care. We just know that Coke is delicious. Certainly, no product should be mislabeled whether intentionally or unintentionally. Even if mislabeled, we question whether any of these consumers have actually been damaged. When we first heard of this lawsuit, we thought it must have been the dubious work of The Onion. Who really purchases Coke under the guise that it is healthy? It has been common knowledge for years that sodas, Coke included, are not health foods. Unless these consumers are ostriches with their heads in the sand, we assume they purchased Cokes with the same knowledge as the rest of us.

Salon Allegedly Offers Extra Hospitality – A Pot Cookie – With Its Hospitality Trays

Hospitality food tray skeptics should pay attention to this new California lawsuit. According to a report from CBS Los Angeles, 72-year old Jo Ann Nickerson has filed suit in the Los Angeles Superior Court against a San Fernando Valley hair salon after eating a cookie allegedly laced with marijuana. Nickerson alleges that she ate a cookie from a hospitality tray left for patrons. Shortly thereafter, she allegedly developed hallucinations, rapid heartbeat, confusion, disorientation, light-headedness, dizziness, blurred vision, tingling, headaches, and nausea. Blood tests allegedly found THC in Nickerson’s system. The suit asserts claims for negligence, strict product liability, and negligent infliction of emotional distress.

Not much is known at this time apart from that stated in the pleadings. Nonetheless, we here at Abnormal Use have plenty of questions. For starters, how is Nickerson going to prove that she ingested THC from these hospitality cookies? We are suspicious of gratuitous, unsealed food for a variety of reasons, but the possibility of infused drug cookies has never previously occurred to us. (Of course, we’re in the Carolinas, not California.).  Was Nickerson’s cookie the only pot-cookie in the batch? If not, wouldn’t others have reported sharing similar symptoms? If it was the only one, how did it get there? It seems unlikely that a fellow patron would have a pot-cookie in his/her pocket that could easily disguise itself amongst the other cookies already placed upon the hospitality tray. What the pot cookie preserved? Is there a spoliation of evidence issue? It will be interesting to see how this all unravels.

These marijuana suits become even more intriguing now that marijuana is legal either recreationally or medically in several jurisdictions. If marijuana were legal in California for recreational purposes, would this lawsuit have the same punch, if true? Certainly, the effects were unwanted as Nickerson didn’t choose to ingest THC. In fact, she claims to have never smoked marijuana in her 72 years of age. But, do these cases have the potential to morph into something analogous to second hand smoke claims as society becomes more tolerant of marijuana? Or will the long held taboo still affect these cases post-legalization? Today, this thought is nothing more than idle speculation. In the future, who knows?

Texas Follows Pennsylvania’s Lead And Rejects “Any Exposure” Theory In Mesothelioma Case

Science

In asbestos injury cases, plaintiffs typically advance the theory that any exposure, no matter how slight, is a substantial contributing factor in causing the plaintiff’s asbestos-related disease. This is known as the “any exposure” or “each and every exposure” theory. If this argument is successful, it allows the Plaintiff to pursue numerous defendants simultaneously without having to quantify the amount of asbestos to which an individual defendant’s product caused him to be exposed. Not too long ago, the Texas Supreme Court has joined the list of Courts which have rejected the theory.

The Texas Supreme Court previously held that the theory was insufficient to establish causation in asbestosis cases. Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007). In response to attempts by plaintiffs to distinguish the holding to avoid its application in mesothelioma cases, the Texas high court has recently held that the theory is insufficient to show specific causation in mesothelioma cases. Bostic v. Georgia-Pac. Corp., 10-0775 (Tex. July 11, 2014) (holding that “even in mesothelioma cases proof of some exposure or any exposure alone will not suffice to establish causation.”) (quotations omitted). In Bostic, the appeal followed a jury verdict of $11.6 million with an allocation of 75 percent of the fault to a joint compound manufacturer. Id. In affirming the ruling of the Court of Appeals, which reversed and rendered a defense verdict, the Texas Supreme Court found that the Plaintiff had not sufficiently established specific causation with respect to the joint compound manufacturer where the Plaintiff: (1) relied on experts who testified that any exposure to asbestos should be considered a cause of his mesothelioma; (2) failed to quantify the aggregate dose, (3) failed to quantify the dose attributable to the joint compound manufacturer, and (4) failed to show that the dose fairly assignable to the joint compound manufacturer “more than doubled [the plaintiff’s] chances of contracting mesothelioma.” Id. at *19 (“And even in a single-exposure case, we think that proof of dose would be required . . . ‘One of toxicology’s central tenets is that the dose makes the poison.’”).

The Bostic court joins the growing number of state courts which have struck down the each and every exposure theory. See, e.g., Betz v. Pneumo Abex, LLC, 44 A.3d 27, 56 (Pa. 2012) (holding that the theory was inadmissible after finding that “Dr. Maddox’ any-exposure opinion is in irreconcilable conflict with itself”); Free v. Ametek, No. 07-2-04091-9 SEA (Wash. Super. Ct. King County Feb. 29, 2009) (applying the Frye standard and holding that the theory “is not a scientifically proved proposition that is generally accepted in the field of epidemiology, pulmonary pathology, or any other field relevant to this case.”); Butler v. Union Carbide Corp., 712 S.E.2d 537, 549 (Ga. Ct. App. 2011) (affirming the lower court’s ruling that the theory did not “properly utilize[] the scientific method to make scientifically valid decisions in reaching his specific causation opinions as required by Daubert.”).

Happy Labor Day!

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As we often do, we were scouring the Internet for an appropriate comic book cover to use for today. There are not many comic book covers dedicated to Labor Day. However, the above comic book, Batman: Li’l Gotham #9, may suffice. Published earlier this year, this issue features a story which takes place on Labor Day (if you can believe it). Here’s the summary from the indispensable Comicvine website:

When Batman and Robin chase the cunning Clayface into Gotham City’s biggest Comic-Con, they run into security, other heroes, and trouble! And on Labor Day, Jenna Duffy—carpenter to Gotham City’s criminal class—takes the day off. But will interruptions doom her personal project?

Who knew?

On another note, we hope everyone is enjoying the Labor Day weekend. We here at Abnormal Use wrote this post far in advance and set it to run this morning so that we could celebrate the occasion. Although some of us here are a little disappointed with the results of the South Carolina football game on Thursday, we have mostly recovered. We trust that you have taken some time for yourself and your family and don’t overly dread the return to work tomorrow.

For our past Labor Day posts (including some other efforts to find labor related comics), please see here, here, here, and here.

By the way, this is our 1,250th post! How about that?

Friday Links

spidey-jury

Okay, so above is the cover of Spider-Man: The Arachnis Project #3, published back in 1994.  The cover boldly proclaims: “The Jury is in and the verdict for Spider-Man is death.” Well, Spider-Man is certainly not in a courtroom. According to Wikipedia, “[t]he Jury is a fictional group of armored vigilantes in the Marvel Comics universe.” Get it? They’re armed vigilantes, and they call themselves “The Jury.” Sigh. In light of that, we suppose the cover above depicts Spider-Man exercising his peremptory challenges. Yes, you read that right. We tried to make a joke about a comic book vigilante group called The Jury. We’re sorry about that.

On a more serious note, the U.S. District Court for the District of South Carolina recently issued the following notice about its local rules:

The Local Civil and Criminal Rules for this district were amended effective August 20, 2014.  The amendments include numerous stylistic changes including changes to capitalization, punctuation, citation form, and sentence structure.  Two rules were modified substantively:  Local Civil Rule 83.I.07 (Withdrawal of Appearance); and Local Civil Rule 83.VII.07 (Application for Attorney Fees [in Social Security cases]).

The amended rules as well as redlined comparisons of the most recent amendments to the November 15, 2013 versions of the Local Civil and Criminal Rules are available on the court’s website (http://www.scd.uscourts.gov) under the “What’s New” and “Rules” tabs.

We have to hand it to the Popehat Twitter account, which has perfectly captured the ennui of Star Wars fans of a certain age in the tweet below. As you might guess from our posts here and here, we are sympathetic.

Finally, we hope everyone has an eventful and safe holiday weekend. We here at Abnormal Use will be watching college football.

Punitive Damages Award Against Wal-Mart Affirmed in South Carolina Weird Transaction Case

The South Carolina Court of Appeals recently upheld a Spartanburg county jury’s award of actual and punitive damages against Wal-Mart in an interesting case involving negligence at the checkout counter.  Solanki v. Wal-Mart Store #2806, No. 2012-213247 (S.C. Ct. App. Aug. 20, 2014).  In his dissent, Justice H. Bruce Williams references the trial court judge’s remark as to the “weirdness of the transaction” underlying the claim, and the transaction was weird, indeed.

weird science

The Plaintiff, Mr. Solanki, trekked to the Wal-Mart in Boiling Springs for a shopping trip.  When he attempted to checkout, the clerk tried three times unsuccessfully to charge the amount owed to Mr. Solanki’s credit card.  The clerk then manually stenciled the credit card and entered the credit card number into the computer.  Unfortunately, the number was entered into the computer incorrectly, and the number actually entered belonged to Ms. Martin. She noticed the apparently fraudulent transaction and reported it to the police department.  Wal-Mart provided the police department with the manually sketched credit card bearing Mr. Solanki’s signature, the surveillance tape, and various other information pertaining to the transaction.  Mr. Solanki was subsequently arrested in Georgia and spent almost a week in jail in Georgia before being extradited to South Carolina.  Everything was eventually sorted out, and the indictment was dropped. However, Mr. Solanki filed suit against Wal-Mart as well as the police department shortly thereafter.  Following a jury trial, the Spartanburg jury awarded $50,000 in actual damages and $225,000 in punitive damages.

Judgment was entered on the verdict, and post-trial motions were denied.

On appeal, Wal-mart argued that the evidence presented did not support an award of punitive damages, which in South Carolina requires the plaintiff to prove “by clear and convincing evidence the defendant’s misconduct was willful, wanton, or in reckless disregard of the plaintiff’s rights.”  The Court of Appeals held that Mr. Solanki “presented sufficient evidence of Wal-Mart’s willful, wanton, or reckless misconduct to send punitive damages to the jury in two factual circumstances— the taking of the credit card information for the sale and the turning over of the credit card information to law enforcement.”  Regarding the taking of the credit card information for the sale, the Court took into consideration that “[a]t the end of the transaction, the receipt presented had Mr. Solanki’s signature but showed Martin’s credit card information.”  Regarding the credit card fraud investigation, the Court noted the trial court’s conclusion that “Wal-Mart was responsible for the creation and production of the evidence used to arrest Mr. Solanki and it was in the best possible position to point out the discrepancies to the police officers.”

This opinion is based on a unique set of facts, so its application to other contexts may be limited. However, it would appear at first glance that this holding imposes a heightened duty on retailers in the context of a criminal investigation, and eases the burden of proof for plaintiffs in punitive damages cases, either of which could create problems for defendants in the future.

Tech Giants’ Anti-Poaching Settlement Rejected In California Federal Case

“Not in my house!”  That is essentially what U.S. District Judge Lucy Koh recently said in rejecting a proposed settlement agreement in a federal case pending in California between several Silicon Valley tech giants and a class of tech employees who claimed that the companies conspired to suppress their wages.  As we here at Abnormal Use previously reported in April, the companies (including Apple, Intel, and Google) and the tech workers agreed to settle their dispute for approximately $325 million.  According to Judge Koh, that settlement amount ”falls below the range of reasonableness.” Once the plaintiffs’  lawyers take their slice of the pie, the settlement would have provided the class members just over $3,500.  In reaching the conclusion that such an amount was unreasonable, Judge Koh noted that other class members settled the same claims last year against Pixar and Lucasfilm Ltd. more money per plaintiff, despite the fact these current plaintiffs had newly discovered evidence that made their claims even stronger.  The order also notes that to reach the same level as the previously settling class members, the current class members would need to receive $380 million. Check out the order’s conclusion:

This Court has lived with this case for nearly three years, and during that time, the Court has reviewed a significant number of documents in adjudicating not only the substantive motions, but also the voluminous sealing requests. Having done so, the Court cannot conclude that the instant settlement falls within the range of reasonableness. As this Court stated in its summary judgment order, there is ample evidence of an overarching conspiracy between the seven Defendants, including the similarities in the various agreements, the small number of intertwining high-level executives who entered into and enforced the agreements, Defendants’ knowledge about the other agreements, the sharing and benchmarking of confidential compensation information among Defendants and even between firms that did not have bilateral anti-solicitation agreements, along with Defendants’ expansion and attempted expansion of the anti-solicitation agreements. Moreover, as discussed above and in this Court’s class certification order, the evidence of Defendants’ rigid wage structures and internal equity concerns, along with statements from Defendants’ own executives, are likely to prove compelling in establishing the impact of the anti-solicitation agreements: a Class-wide depression of wages.

In light of this evidence, the Court is troubled by the fact that the instant settlement with Remaining Defendants is proportionally lower than the settlements with the Settled Defendants. This concern is magnified by the fact that the case evolved in Plaintiffs’ favor since those settlements. At the time those settlements were reached, Defendants still could have defeated class certification before this Court, Defendants still could have successfully sought appellate review and reversal of any class certification, Defendants still could have prevailed on summary judgment, or Defendants still could have succeeded in their attempt to exclude Plaintiffs’ principal expert. In contrast, the instant settlement was reached a mere month before trial was set to commence and after these opportunities for Defendants had evaporated. While the unpredictable nature of trial would have undoubtedly posed challenges for Plaintiffs, the exposure for Defendants was even more substantial, both in terms of the potential of more than $9 billion in damages and in terms of other collateral consequences, including the spotlight that would have been placed on the evidence discussed in this Order and other evidence and testimony that would have been brought to light. The procedural history and proximity to trial should have increased, not decreased, Plaintiffs’ leverage from the time the settlements with the Settled Defendants were reached a year ago.

The Court acknowledges that Class counsel have been zealous advocates for the Class and have funded this litigation themselves against extraordinarily well-resourced adversaries. Moreover, there very well may be weaknesses and challenges in Plaintiffs’ case that counsel cannot reveal to this Court. Nonetheless, the Court concludes that the Remaining Defendants should, at a minimum, pay their fair share as compared to the Settled Defendants, who resolved their case with Plaintiffs at a stage of the litigation where Defendants had much more leverage over Plaintiffs.

(Quotations and citations omitted).

This ruling is not at all surprising.  As we noted in our initial coverage, given the number of employees involved the settlement amounts to peanuts compared what the alleged conspiracy likely cost the workers.  We’re going to go out on a limb and guess that the class members and the defendants reach new deal for exactly $380 million. The order in question is In re High-Tech Employee Antitrust Litigation, No.: 11-CV-02509-LHK (N.D. Cal. Aug. 8, 2014).

Abnormal Interviews: Lawyer and She-Hulk Comic Book Writer Charles Soule

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Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners and makers of legal themed popular culture. For the latest installment, we turn to Charles Soule, the writer of the current She-Hulk comic book series. As we have noted once and again (here, here, here, here, here, here, and here), the Marvel comic book superhero She-Hulk is, in her regular life, a practicing lawyer. As you also may know, we here at Abnormal Use like to write about legally themed comic books, and occasionally, we have been fortunate enough to interview creators of them. Back in 2011, we interviewed Mark Waid, the writer of Marvel’s Daredevil, a series which features a lawyer superhero. Last year, we interviewed Ryan Ferrier, creator of the series Tiger Lawyer. So, today, we are very pleased to run an interview with Charles Soule who, in addition to being a prolific comic book writer, is also a practicing lawyer. How about that? Without further ado, the interview is as follows:

She-Hulk has two full time jobs: lawyer and superhero. But, as an attorney and comic book writer, so do you. What are the challenges facing a practicing attorney who also writes comic books? How do you find the time to engage in both professions?

It can be difficult, honestly. As I type this, I’m in my office thinking about various client issues I need to handle, as well as some writing work that will kick in the very moment I’m done. I can say that law school and subsequent legal practice (both at the firms I worked for initially and in my own solo practice) gave me a pretty solid set of time management skills. I’m used to handling pretty significant workloads and self-motivating. It’s certainly very, very intense right now, but as I’ve told folks who have asked me this question in the past (I get it a lot), I’m writing incredibly fun projects using some of my favorite characters, building an audience, and running my own successful business at the same time. There’s a lot of work, but I wouldn’t characterize it as a chore.

How did you come to write comic books as a practicing lawyer?

In a nutshell, I’ve always been creatively-oriented. I’ve been playing music since I was very young, and I worked regularly as a professional musician for years before and during law school. Some of that continued afterwards, but it became apparent that I might want to find another creative outlet that I could do more easily around the weird, unpredictable hours of being a young attorney. Writing seemed obvious, and I started my first novel during my post-bar vacation. Novels were/are fun, but also very time-consuming, and after a few years of working in that field, I tried my hand at comics, which I had always loved. Cut through about a decade of near-constant work, networking and good times, and here we are today.

How do the deadlines in the comic book industry compare to those in the legal field, and how do you prefer to handle them simultaneously?

Deadlines are deadlines. I think the most important thing about deadlines is just to know they exist. If I know they’re there, I can handle them – I can’t recall a situation where I couldn’t make things work if I had a little bit of time to adjust. There are a lot of deadlines these days, big and small, but I think it helps that it’s my own practice (so I’m the boss…) and that I’ve learned how to manage my time on the comics end really well. I wouldn’t mind fewer deadlines – who wouldn’t – but I’m on it.

shprOne of the most interesting sequences in She-Hulk #1 is the associate performance review when She-Hulk meets the partners at her firm. What was the inspiration for that part of the narrative?

It’s taken very much in spirit from associate reviews either I had or friends of mine had. What you realize as a young associate at a big firm is that you’re courted to join, but once the honeymoon period is over (right around the time of those first reviews), it becomes clear that the goals of the partners do not necessarily align with those of the young associates. That’s totally fine, mind you – it’s a business – but it can be a bit of a rude awakening.

What has been the reaction of your fellow lawyers to the legal scenes in your run on She-Hulk?

So far, all good! I was interviewed by the ABA Journal, which was a fun little professional milestone. I get the occasional quibble over details from lawyers, but it’s mostly pretty relaxed. Attorneys seem pretty pleased to see a lawyer represented even somewhat realistically in comics, even if I mess up the occasional practice point. Fortunately, I can always rely on one line: “The laws are different in the Marvel Universe.” Easy.

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In issue 4, She-Hulk meets briefly with Marvel’s other famous lawyer super-hero, Daredevil, who remarks that it’s odd the two have never faced each other in court. First off, is that foreshadowing, and secondly, what specific challenges face those who write about lawyer superheroes as opposed to non-lawyer characters?

Foreshadowing indeed. By this point, it’s out in the world that She-Hulk and Daredevil finally will face each other in the courtroom over issues 8-10 of the series. They’re working on a wrongful death lawsuit out in California. It’s been one of the most challenging things I’ve ever written – you can imagine that writing a case involving two brilliant lawyers, where both have to come off as brilliant lawyers, who can’t be shown in a non-heroic light . . . tricky. But fun! I’m very proud of that storyline.

Throughout your run on the series, we’ve seen immigration hearings, injunctive relief proceedings, daily life at law firms, and even the face of pleadings, all of which are unique to the medium. How do you determine which legal issues appear in your work?

It’s really about areas that I feel like I can write with some authority, or that I’m interested in researching. I’ve always liked admiralty, for example, as well as international law. I’m experienced with immigration, contracts, IP, licensing, transactional work . . . so all that stuff finds its way in. I’m not very experienced with litigation, but that’s the sort of thing people visualize when they think about a legal drama, so I can’t get away from courtroom scenes. I also have a ton of experience (obviously) with running my own small practice, which is something I bring into She-Hulk in every issue.

What is the best way to portray legal issues and proceedings to non-lawyers in a visual medium?

You would have to ask Javier Pulido, Muntsa Vicente, Clayton Cowles, Ron Wimberly and Rico Renzi, since they’re the artists who have to make my chatty scripts work. I’m constantly amazed and impressed by their ability to make ordinary conversations pop. She-Hulk wouldn’t work without the art team, there’s no doubt about it.

BONUS QUESTIONS:

Who is your favorite fictional lawyer, and why?

It’s hard to beat She-Hulk for me at the moment, but I’ve always had a soft spot for Lionel Hutz, and Saul Goodman was an amazing character among amazing characters in “Breaking Bad.” I guess I like my fictional lawyers to be on the exaggerated side.

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What is the first comic book you remember reading, and how did you comic across it?

Fantastic Four #224 – “Prisoners of the Space Gods.” They get taken prisoner by a bunch of Asgardians (which will happen). My dad bought it for me in the drugstore one day – he got them for my siblings and me to keep us quiet in the backseat – it totally worked.

What do you think is the best pop culture depiction of law school?

You know, law school doesn’t get a lot of representation, at least that I’m aware of. One L, probably?

Are there any legal or comic book blogs that you enjoy that you might recommend to our readers?

Other than this one? I wouldn’t dare.

BIOGRAPHY: Charles Soule, a graduate of Columbia Law School, has been practicing law for over a decade. Prior to starting his own practice (The Law Offices of Charles D. Soule, PLLC in Brooklyn), he worked in the New York offices of Ropes & Gray, LLP. He is a member of the New York State Bar and the American Immigration Lawyers Association. He earned his undergraduate degree from the University of Pennsylvania in Asian and Middle Eastern Studies, with a concentration in Chinese language and history. You can follow him on Twitter here.

The Art of War, Pomegranate Style, in The U.S. Supreme Court

Sun Tzu wrote: “All warfare is based on deception.”  In addition to the art of war, this sentiment reaches far into the world of consumer advertising, as well.  With recent mega-decisions coming from the United States Supreme Court, most notably the Hobby Lobby decision, we here at Abnormal Use overlooked a recent deceptive advertising decision of the Supremes.  As reported by Sam Hananel of the Associated Press and The Huffington Post, the Big Nine (err, Big Eight in this instance as Justice Breyer warmed the bench this go-round) ruled in June that juice maker Pom Wonderful can proceed with its lawsuit against the Coca-Cola Co. and its version of pomegranate juice.  See POM Wonderful LLC v. The Coca Cola Company, — U.S. — (June 14, 2014). The lawsuit alleged that the label on Coke’s “Pomegranate Blueberry Flavored Blend of 5 Juices” beverage of its Minute Maid line was somehow misleading to consumers.  Why? Well, Pom alleges that 99 percent of the pomegranate blueberry concoction is actually apple and grape juice.

Justice Kennedy, author of the 8-0 decision, focused on the Coke juice’s actual pomegranate and blueberry content, .3 percent and .2 percent, respectively, despite the drink’s potentially misleading label, which showed the words “Pomegranate Blueberry” in much larger typeface than the rest of the drink’s official name and included a large pomegranate graphic set among other small fruits.  Previously, the lower courts had sided with Coke, finding that the drink’s label conformed to the FDA’s rules and the law.  In a refusal to elevate form over substance, Justice Kennedy conceded that the juice may comply with FDA rules but rejected the notion that technical compliance with the FDA absolves a company from potential liability where a label may mislead consumers for different reasons.

In this instance, Justice Kennedy noted that Pom was not precluded from suing Coke under the Lanham Act for unfair competition based on false or misleading claims.

Representatives of Coke vowed to continue to fight the lawsuit against Pom now that the Supreme Court has permitted it to go forward.

But what are the larger ramifications of the ruling?  It appears the decision presents the distinct possibility that a company may have increased exposure to private litigation for deceptive labeling, despite its compliance with FDA rules and regulations.