Friday Links

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Our editor, Jim Dedman, is in Chicago today for the DRI Product Liability Committee Fly-In. You may remember that he is chair of that committee’s newsletter section. If you’re there, too, say hello! Because this is Friday Links, we tried to find an appropriate comic book cover depicting Chicago. However, we were unsuccessful. So instead, we bring you the cover of Kicking Television: Live in Chicago, Wilco’s 2005 live album recorded in the Windy City. In fact, according to Wikipedia, the album was recorded May 4 through 7, 2005, ten years ago this week. How about that?

Okay, if you’ve not seen the news story about the police officer suing Starbucks for spilling his free cup of coffee on himself, please see here. Apparently, he testified for eight hours on the stand at trial this week.

Are you following Abnormal Use on Facebook? If not, please join the discussion over there, as we’d love to have you! See here.

Our favorite tweet of late comes from our own Stuart Mauney:

South Carolina Changes Witness Fee Subpoena Rules

Heads up, South Carolina lawyers! In case you haven’t heard, the South Carolina Supreme Court recently revised its rule on the issuance of subpoenas to provide that the required witness fee and mileage reimbursement need not be tendered until the witness actually appears for the deposition or trial.  The court has also approved revised subpoena forms which are listed on its website.

Here is a link to the Supreme Court’s May 1, 2015 order on this issue, while here is a link to the revised subpoena forms at issue.

Environmental Groups Sue to STOP Solar Panel Farm at NJ Amusement Park

Six Flags Great Adventure, a New Jersey amusement park, wants to create a huge solar farm that will generate enough electricity to make the park energy independent.  A big business that is trying to operate on an entirely renewable energy source – that sounds like something environmentalist would be applauding, right?  Not so fast.  Several environmental groups recently filed a lawsuit to stop the project because it calls for the removal of trees on the site.

The lawsuit filed against the amusement park and the solar energy company, KDC Solar, is seeking an injunction to halt the project, which they claim will result in the clearing of 90 acres of environmentally sensitive forest land.  They argue that the solar farm project violates local ordinances for tree removal.  They further claim that the local planning board failed to follow required procedures for approving the project, including not studying alternatives to deforestation.

However, the environmental groups don’t want the project halted altogether.  They want Great Adventure to build the solar farm above its parking lot. Although Great Adventure has not commented on the lawsuit, it has previously issued public statements regarding the proposal to build the solar farm above its parking lot.  It apparently ruled out the idea because of concerns over customer safety and decreased parking area.  Increased costs of 20 to 50 percent also may have been a factor in the decision.

It should be interesting to see where this goes.  It will likely come down to whether the planning board took the right procedural actions and, if not, whether they want to cure the procedural deficiencies in order to allow the project to move forward.

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.

Private Message or Process Server – Service Through Facebook?

Revolutions have started through the use of it.

Marriages have started through the use of it.

Opinions (informed and uninformed) are shared on it.

So why should a lawsuit not start through its use?

What is it? Why Facebook and potentially other social media platforms, of course. In a recent divorce case, Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096, Mar. 27, 2015), the New York County Supreme Court permitted a wife to serve her husband solely with a summons via private message to the husband’s account on Facebook.  While recognizing that Facebook is not a statutorily permitted method of service, the Court asked and answered several relevant questions in making its way to its conclusion that service in this fashion was proper.

The Court first asked whether the standard form of personal service was at all possible. It reasoned that since the couple had never resided together, the last known address the wife had for the husband was from an apartment he left in 2011, and the husband told her he had no fixed address or employment, it was an impossibility to personally serve the husband.

The Court next had the wife show that statutorily permissible “substitute service” of serving on someone of suitable age and discretion or through “nail and mail” would also be unavailable under the circumstances.  The Court quickly rejected the possibility of substitute service since such service is premised upon knowledge of the husband’s actual place of business or home address.

The Court further insisted that the wife demonstrate that sending the summons through Facebook would be a way to reasonably expect he would receive actual notice. The Court noted that whether the method used would comport with due process was the “ultimately determinative” factor.

To ensure that the Court’s order was constitutionally reasonable, the Court required the wife to submit a supplemental affidavit verifying the husband’s Facebook account, including copies of exchanges between the husband and wife on Facebook and the identification of husband in certain photographs. The wife’s affidavit also showed that husband regularly logged into the account.  Finally, the Court determined that service by publication would be useless and costly in these circumstances, finding that publication was almost guaranteed not to provide husband with notice of the action.

The Court concluded that the wife’s attorney would log into her account, message the husband by first identifying himself, and either include an image of the summons or a hyperlink to the summons.  Additionally, the attorney would have to repeat the message once each week for three weeks or until husband acknowledged service, and after the initial transmittal, the wife and the attorney would have to call and text message the husband to inform him of the Facebook message.

Baidoo is not the only case to contemplate service by Facebook.  But could service by Facebook extend outside of cases for divorce or between individuals?

Just two years before Baidoo, the Federal Trade Commission, in alleging “that the defendants operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers,” requested leave to serve five India-based companies by means of both email and Facebook.  F.T.C. v. PCCare247 Inc., No. 12 CIV. 7189 PAE (S.D.N.Y. Mar. 7, 2013).  While the Court noted that Facebook and email were not within the scope of Article 10 of the Hague Convention on Service, it also noted that India had not objected to the use of Facebook and email as a means of service such that the Court could authorize service by those means. In turn, the Court found that the FTC’s proposal to serve defendants by both email and Facebook satisfied due process, stating that “[w]here defendants run an online business, communicate with customers via email, and advertise their business on their Facebook pages, service by email and Facebook together presents a means highly likely to reach defendants.” This holding was followed several months later in F.T.C. v. Pecon Software Ltd., No. 12 CIV. 7186 PAE (S.D.N.Y. Aug. 7, 2013).

Given these cases and the fact that the cost of publication is increasing while the likelihood of notice by publication is decreasing, service only by Facebook on even corporate defendants could be a thing of the relatively short-term future. However, given the effort that must be exerted before a court will permit such service, it will likely be a long time before service by Facebook on either individual or corporate defendants is something that is commonplace. While there may be a shot for Facebook, a search of service by other social media platforms, including Twitter, Tumblr, Instagram, and Snapchat, has not produced any results to date.

Friday Links

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This does not look like a good jurisdiction for Batman. See here for a bit more on this issue of Batman, which we first mentioned way, way back in 2010.

Our editor, Jim Dedman, will be speaking on social media research to the South Carolina Association of Legal Investigators annual conference in Charleston on Monday. Spoiler alert: He may be using the image above of the Joker judge and jury in his PowerPoint presentation.

By the way, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. are pleased to announce that shareholder John T. Lay, Jr. has begun his term as president of the South Carolina Chapter of the American Board of Trial Advocates (ABOTA). How about that?

Our favorite tweet of the week:

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.

Mosquito Magnet, A Tale of Secondary Attractants

At first blush, this product already sounds like the worst. Who, besides Dr. Hammond, wants more mosquitoes? However, what the name doesn’t reveal is the product’s benefits in the war against the enemy. According to its website, the Mosquito Magnet battles against these relentless and dangerous pests and functions as a trap that uses carbon dioxide, heat, and moisture and a secondary attractant to lure the bugs to their death. Secondary attractant? That’s vague, right? The website lists three different attractants, Lurex3, R-Octenol, and Octenol, which according to the product details, are all EPA-registered.

However, while the Mosquito Magnet may thwart the backyard pests, its fumes are not for human consumption. Earlier this month, a lawsuit was filed against Woodstream Corp. and Accessories Marketing, who are both allegedly involved in the manufacture of the Mosquito Magnet. According to the lawsuit, in 2012, 46-year-old Mary Jo McCool was found dead in her pool minutes after installing a Mosquito Magnet. The lawsuit alleges that McCool’s death was caused by the fumes of the Mosquito Magnet and further alleges that a police officer who was subsequently investigating the death became light headed and dizzy while kneeling next to the trap. He then began to gasp for air before making it to the interior of the home. According to Theodore Leopold, the Plaintiff’s attorney, McCool was subjected to the fumes, which caused her to fall into the pool and drown.

A quick Internet search did not find any other lawsuits against the company for the product or any CPSC recalls, other than a 2006 leaky hose recall, related to the product. While I have no experience with the Mosquito Magnet, I do celebrate anything that aids in our fight against them. Further, it would seem that such a claim may be difficult to prove as no one actually witnessed McCool immediately before falling into the pool. However, as summer approaches, we remind readers to steer clear of inhaling anything named Lurex3.

Can Potential South Carolina Defendants Decide When And Where a Lawsuit will be Filed?

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Plaintiffs often send notice of claim and pre-suit demands. Occasionally, it is a good idea to resolve a claim before filing suit, but more often than not, pre-suit resolution is not possible, and everyone knows that a lawsuit will eventually be filed. Typically, there will be an extended silence following the breakdown of pre-suit negotiations, and nothing else happens until the plaintiff files the lawsuit, which often happens the day before the statute of limitations runs. Meanwhile, the Plaintiff is free to collect evidence and otherwise build his or her case, choose the best venue for the case, and examine other relevant issues.  All the while, the defendant waits in the dark, at least procedurally. But what if a potential defendant could decide when and where the dispute is taken to  court?  What if the defendant could begin discovery while recollections and evidence remain fresh? Perhaps the South Carolina Uniform Declaratory Judgment Act (SCUDJA) provides the opportunity to do so.

Accordingly, we’ve been doing some brainstorming on this topic.

Declaratory judgments are typically filed to settle insurance coverage disputes, constitutional issues, and other nontraditional legal disputes. However, the SCUDJA bestows upon courts the power to declare “rights, status, and other legal relationships whether or not further relief is or could be claimed.”  SC Code Ann § 15-53-20.  A DJ can be used to ask the court to construe a contract “before or after there has been a breach thereof.”  SC Code Ann § 15-53-40. A DJ can be used to try and determine an issue of fact “in the same manner that issues of fact are determined in other civil actions” and parties to a DJ have a right to a jury trial.  SC Code Ann § 15-53-90.  The purpose of the SCUDJA is to provide “relief from uncertainty,” and the statute is to be “liberally construed.” SC Code Ann § 15-53-130; Harrington v. Blackston, 311 S.C. 459, 463, 429 S.E.2d 826, 829 (Ct. App. 1993) (“Moreover, our Supreme Court has held that declaratory judgment actions must be liberally construed to settle legal rights and remove insecurity from legal relationships without awaiting a violation of the relationships.”).

Once a potential defendant receives notice of a claim and a demand, it would appear that it is then aware of a dispute. We would submit that the potential defendant should be able to then file a DJ, asking the court to declare that the potential defendant has not violated the rights of the potential plaintiff. This would resolve the dispute, the uncertainty, and would accordingly further the purpose of the SCUDJA. Pretty crazy, right?

Obviously, the DJ plaintiff would need to determine whether a DJ makes sense from a strategic standpoint. Considerations would include: the amount in controversy, the likelihood that the claimant will actually file suit; the strength of the potential defense to the claim; whether there is an advantage to beginning discovery now instead of waiting for the claimant to file suit; and of course venue considerations. This is a novel approach, to be certain, and it woudn’t be appropriate in most cases. But there might be that one case – that unusual set of facts and legal issues – that prompts consideration of this approach.

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

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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.