South Carolina Supreme Court Releases Opinion on College Football Seat License Fees

As it was then, and so it is now, we here at Abnormal Use care deeply about college football.  Avid readers may recall or our 2011 post discussing a parking fee dispute that arose between the University of South Carolina and a fan that purchased a lifetime membership into the Gamecock Club. While a clever revenue raiser, lifetime memberships are a challenge because they, well, last a lifetime.  So it is no surprise that a dispute over the Gamecock Club’s lifetime membership once again makes its way through the South Carolina judicial system. That case is Lee v. University of South Carolina, et. al., No. 2012-212567 (S.C. April 2, 2014), released yesterday by the South Carolina Supreme Court.

The facts were these: In 1990, George Lee III purchased a $100,000 life insurance policy, naming the University of South Carolina the sole beneficiary, in exchange for an opportunity to purchase basketball and football tickets for the duration of Mr. Lee’s life.  In an effort to generate more revenue, the University instituted the Yearly Equitable Seating (YES) program and began requiring all Gamecock Club members to pay a seat license fee prior to purchasing season tickets. Mr. Lee did not care for the seat licensing fee and filed a declaratory judgment action. The trial court entered judgment for the University of South Carolina and the Gamecock Club, but yesterday, the South Carolina Supreme Court reversed the trial court, finding that the University breached its 1990 Agreement with Lee by requiring Lee to pay the YES fee in order to retain the opportunity to buy tickets.  The Court in reaching its conclusion found that:

 The language of the Agreement is clear.  As long as Lee performs his contractual obligations, the University must provide him with the “opportunity to purchase” season tickets to University athletic events as described in the Agreement. The Agreement contains no limitations or conditions on this contractual right. Thus, by requiring Lee to pay the seat license fee before purchasing season tickets, the University has attempted to impose an additional term that the parties did not agree upon. This unilateral attempt to modify the Agreement is impermissible.

Undoubtedly, as the University of South Carolina’s football program continues to improve, the school will look for ways reap the financial benefit.  While the Gamecocks continue to win on the field, it is may be time to abandon efforts to profit further from their lifetime members’ seats and parking spaces (as that approach appears to lead to litigation).  In order to pay for the ability to play Sandstorm more than the Vols play Rocky Top, South Carolina should increase the price of the official Head Ball Coach Visor.

Music Re-Recordings: Inferior or New Classics?

Most of us consider music to have reached its prime during the days of our youth.  Be it the 60′s, the 70′s, or even the 80′s, music of one’s formative years is arguably the best a person will ever hear.  Today’s music just doesn’t cut it.  Instead, we download the songs of yesteryear on iTunes or have our Sirius/XM radios perpetually set on the 90′s channel.  (Those were the days.). Others go so far as to purchase “as seen on TV” compilations like “We Love the 80′s” or, better yet, “Monster Ballads.”  After all, who could ever complain about having the world’s greatest music in one accessible CD?  Believe it or not, there is actually a proposed class of angry music-lovers who have filed a new lawsuit in a New Jersey federal court against Tutm Entertainment (d/b/a Drew’s Entertainment), the producer of the monumental “Hits of the 80′s” and “Hits of the 90′s” albums. Why is the proposed class so angry? According the the complaint filed by Celeste Farrell, the named plaintiff for the proposed class, purchasers of these albums aren’t getting the classics they grew to love but, rather, “poorly re-recorded songs.” Specifically,Farrell alleges:

Instead of conveying the source of the recording to allow the consumer to make an informed purchase decision, Tutm provides no information on the Albums’ cover or back label to indicate to the consumer that the songs are not the original songs.

We here at Abnormal Use have not listened to these albums, so we cannot comment on the quality of the re-recordings and cover versions contained on them. But, we don’t see how anyone could really complain about any recording of “Ice, Ice Baby,” whether it be the original or a new version? That said, when people fall in love with a song, they fall in love with a particular version of that song (usually the first version of it they ever heard which, of course, is typically the original version). Anything else might as well be “new music.” We can understand purchasers hoping to get the same when buying these compilation albums.

Whether Tutm’s conduct in selling these albums without a disclosure is fraudulent, however, is another question. Sure, Tutm may have known purchasers would expect the original recordings. But, they also may have thought people could be equally as excited about new recordings of the classics? After all, isn’t Motley Crue still touring? Whatever the case, we’re not sure that covers of “Jessie’s Girl” or “Take on Me” should be litigated in federal court.

In Employment Case, Texas Trial Court Holds That Retweets Are, In Fact, Endorsements As A Matter Of Law

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As you know, we here at Abnormal Use adore Twitter, and we often write about the perils of social media in litigation. That said, we were a bit unprepared for the trial court’s summary judgment ruling in Frost v. New Public News, L.L.C, No. 2014-CV-12052 (21st District Court of Harris County, Texas, April 1, 2014). In that case, a Harris County, Texas district court judge held that retweets are, in fact, endorsements as a matter of law.

Some background (from the court’s summary judgment order): Houstonian Elliott Frost served as the entertainment editor of The New Public News, one of those alternative news weeklies found in large metropolitan areas. As such, he reviewed films, authored record reviews, and generally commented upon the slings and arrows of the local and national entertainment industry. Just a few weeks ago, on Oscar night, when Academy Awards host Ellen Degeneres asked viewers to retweet her now infamous Hollywood selfie, Frost dutifully complied with the request from his official Twitter account. He later stated that he “only did so ironically, you know, because who still watches the Oscars in any other way?” The following day, the paper’s executive editor, Charles Cain, terminated Frost, noting that by retweeting Ellen’s selfie, he had endorsed it, thereby making a mockery of the paper’s “removed – and bemused – detachment from that which we cover.” Frost’s Twitter account was closely associated with and used to promote his work at The New Public News, and his Twitter biography identified him as the publication’s entertainment editor. However, the last sentence of his Twitter biography read: “Retweets ≠ endorsements.” See In re Application of the U.S. for an Order Pursuant to 18 U.S.C. |2703(d), 830 F.Supp.2d 114, 118 (E.D. Va. 2011) (“In addition to posting their own tweets, users may send messages to a single user (‘direct messages’) or repost other users’ tweets (‘retweet’)”).

For those who might not be familiar with Twitter, that caveat is invoked by Twitter users, primarily reporters, to preserve some semblance of journalistic objectivity.

Almost immediately after his firing, Frost retained an attorney and filed a lawsuit alleging wrongful termination in violation of public policy, intentional infliction of emotional distress, and the novel alienation of reputation cause of action (based on Frost’s belief that the paper’s characterizations of his actions had made him “seem uncool,” thereby depriving him of the benefits of his carefully constructed facade.). For its part, the defendant answered, asserting various affirmative defenses, but relying principally on the notion that Frost’s retweet was, in fact, an endorsement and inconsistent with the paper’s editorial philosophy. The parties submitted cross motions for summary judgment and a hearing was held early last week. (When asked about the great speed of this litigation, which went from the filing of a petition all the way to a summary judgment hearing in a matter of weeks, both parties replied that celerity was necessary to resolve the dispute before coverage of the twentieth anniversary of the death of Kurt Cobain could begin.).

In an affidavit submitted with his motion for summary judgment, Frost presented evidence of a storied career in journalism, which began a decade ago as a cub reporter for the Hill Valley Telegraph and a brief stint at the music desk of the New York Inquirer. He chronicled his long history of film and record reviews and noted that he always made certain to disdain a once subversive artist or director just at the precise moment he or she verged on mainstream success. Cain, in his own affidavit, noted that promoting the “commercial villains of Hollywood” via retweet was a “cardinal sin of the alt-newsweekly” and that the only commentary required of the Oscars this year was “the expression of woe at the death of Philip Seymour Hoffman.” Cain concluded: “When it comes to preserving our publications indie street cred, we simply cannot permit a managerial level employee to foster good will for or approval of the antics of mainstream Hollywood actors.” (Despite Cain’s affidavit testimony, Frost’s lawyer noted at the hearing that Cain is a big fan of “House of Cards,” featuring Kevin Spacey, who is prominently featured in the photograph which was the subject of the retweet in question. “[Cain] binge watched that show the second it was uploaded to Netflix,” Frost’s lawyer claimed.).

The trial court sided with the newspaper employer.  In its order granting summary judgment for the defendant, the trial court noted that the central issue in the case was the “status of the retweet.” Relying in part on Texas Rule of Evidence 801(e)(2), which provides that a statement is not hearsay if it is “offered against a party and is a statement which the party has manifested an adoption or belief in its truth,” the trial referenced, by analogy, the long tradition in the courts of finding that another’s statement was adopted by the declarant. He also turned to the plain meaning of the word “retweet,” and in so doing, examined the dictionary definitions of certain terms:

Webster’s Dictionary defines “tweet” as “a chirping noise,” while Dictionary.com tells us that the prefix “re-” “occur[s] originally in loanwords from Latin, [and is] used with the meaning ‘again’ or ‘again and again’ to indicate repetition . . . .” By retweeting the tweet of Ms. Degeneres, Plaintiff promoted her statement “again,” thereby adopting it as his own and rendering his purported disclaimer ineffective. Once Plaintiff formally adopted a statement which stood in stark contrast to the editorial mission of his employer, the Defendant was empowered to act and terminate his employment. Under the facts of this case, the termination was not, and could not be, in violation of Texas public policy. See Lovecraft v. Zuckerburg, 645 S.W.3d 173, 175 (Tex. App. – Austin 2011, pet. denied) (noting that once a Facebook user “likes” a status, comment, or photograph on Facebook, said user is estopped from contending that he or she dislikes it); In re: Friendster Litig., 567 F. Supp. 2d. 13 (D.S.C. 2004) ( “One is bound by one’s admissions on social media. Always.”); Cf. Appian Way, Co. v. Caecillius, Inc., 143 S.W.3d 521, 525 (Tex. App. – Houston [14th Dist.] 1997, no pet. h.) (noting that in cases involving the interpretation of Latin prefixes greater weight is always given to the party defending the claims at issue). As for Plaintiff’s argument that his Twitter biography rebutted any presumption of endorsement, the court need only look to the Texas Civil Practices & Remedies Code, which expressly states that any purported liability waiver containing the “≠” symbol is void under Texas law. See Tex. Civ. Prac & Rem. Code § 175.001, et. seq. Thus, we are forced to construe the Twitter biography as if there was no such attempt at waiver.

The Plaintiff has already announced his plan to appeal, and his attorney contends that they may petition the intermediate courts for a writ of mandamus to ensure that Frost returns to work and oversees any Cobain anniversary coverage.

The Plaintiff was represented by the Beaumont, Texas office of Goodman, Lieber, Kurtzberg & Holliway, L.L.P., while the defendant was represented by the Houston office of Gage Whitney Pace, L.L.P.

Under Armour and Nike Settle Trademark Infringement Lawsuit

Since we are in the midst of March Madness, we here at Abnormal Use take this opportunity to relay a recent apropos settlement involving two sports brand powerhouses. According to the Baltimore Sun, last month, Under Armour and Nike settled a trademark infringement lawsuit arising from Nike’s use of the certain phrasing in its advertising.  In its complaint filed early last year in federal district court in Maryland, Under Armour alleged that Nike launched an advertising campaign that appropriated “I Will” prominently and repeatedly, which suggests Under Armour’s longstanding use of its iconic “I Will” tagline for its similar performance products.  Under Armour claimed that Nike used slogans such as “I will finish what I started” and “I will sweat while they sleep” in various social media ads.  The company also complained that Nike used a variation of Under Armour’s phrase “protect this house” by using the Nike tag line “I will protect my home court.” As one might expect, the terms of the settlement were not revealed.  (The Sun quotes Under Armour as saying only: “The litigation has been resolved on a confidential and mutually agreeable basis.”). But one can only imagine the settlement amount was a drop in Nike’s proverbial bucket of revenue.  Quite frankly, when we here at Abnormal Use first got wind of the “I Will” dispute, we thought it was Under Armour’s, not Nike’s, use of the phrase that was causing such flack.  Why?  “I Will” is an appropriate and clever response to Nike’s universally known command “Just Do It.”

Friday Links

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Okay, so we’re going old school today with All-American Comics #62, published way, way back in December of 1944.  According to Wikipedia, All-American Comics was the brainchild of All-American Publications, a predecessor company of the more well known DC Comics. On the cover, we see the original Green Lantern presiding as a judge with gavel in hand while Doiby Dickles, a Green Lantern sidekick, is acting a prosecutor, apparently, although we’re not certain of the identity of the witness, presumably the defendant.

The Drug and Device Law blog doing Throwback Thursday is the best thing ever. See here.

The Hollywood, Esq. blog brings us this story: “Teller Wins Lawsuit Over Copied Magic Trick Performance.”

Heads up! Yesterday, the senior resident superior court judge of the Mecklenburg County, North Carolina superior court division issued the following administrative order:

In order to promote the efficient and timely disposition of matters appealed from the Clerk of Superior Court and to prevent the development of a backlog of pending appeals, the undersigned Senior Resident Superior Court Judge for the 26th Judicial District enters the following Order.

IT IS ORDERED that, in all appeals from decisions of the Office of the Clerk of Superior Court of Mecklenburg County, the appellant shall contact the Caseflow Management Division of the Trial Court Administrator’s Office of the 26th Judicial District not later than 30 days from the date of the appeal to schedule a hearing before a Superior Court Judge. A failure to comply with this Order shall result in a summary dismissal of the appeal, and the matter shall be remanded to Clerk of Superior Court.

Finally, we were saddened to hear the news of the recent death of character actor James Rebhorn. Two years ago, he kindly agreed to an interview with us on the occasion of the twentieth anniversary of the release of My Cousin Vinny, in which he appeared as an expert witness. You can read that interview here. In fact, The Guardian quoted a paragraph of our interview in its obituary of Rebhorn. Rest in peace.

Court of Appeals Puts Unnecessary Quotation Marks Around “Facebook”

Okay, so we don’t usually write about family law cases here at Abnormal Use, and it’s been a while since we wrote about events from the state of Nebraska. Yesterday, while perusing cases mentioning Facebook, we stumbled across In re Interest of A.W. & L.W., No. A-13-540 (Neb. Ct. App. Feb. 25, 2014), a recent case in which the court of appeals found “that the evidence clearly and convincingly established that termination of [the father’s] parental rights was warranted pursuant to [the relevant statute] and that termination was in [the children’s] best interests.” Yes, this is a case involving a father’s appeal of the trial court’s termination of his parental rights and the appellate court that affirmed that decision.

Chiefly, the case concerns the frequency of the father’s contacts with his children – or the lack thereof. This being the modern age, some of those contacts occurred via social media. Here’s some excerpts from the opinion itself:

After moving to Las Vegas, [the father] claimed that he attempted to maintain contact with his children through his uncle’s “Facebook” account. However, according to [the father], 2 weeks after he moved, [the mother] learned that [the father] had been using the uncle’s “Facebook” account and blocked the uncle from her and the children’s “Facebook” accounts. [The father] made no other attempts to contact his children during the time that he resided in Las Vegas until he moved to Larchwood, Iowa, in 2012, at which point he had two visits with his children: a 2–hour supervised visit on March 31, 2012, and a 1 1/2–hour therapeutic visit on January 4, 2013, supervised by [another adult]. [The father] did not see his children after the January 4 visit, despite his requests to have visits.

[The father] claimed that he did not contact his children while he was in Las Vegas after [the mother] blocked his uncle’s “Facebook” account because he thought that [the mother] had a protection order against him and he would have to contact his children through her. During the time that [the father] was in Las Vegas, [the mother] did not receive any communications from [the father], his friends, or relatives regarding arranging visitation with the children, even though [the father] had [the mother's] e-mail address which was known to [the father] prior to his move to Las Vegas and remained the same. Further, [the father] did not send the children any letters, cards, or presents during that timeframe.

[The father] first contends that the county court erred in finding that he had abandoned his children pursuant to § 43–292(1). He contends that he did not abandon his children for the relevant 6 months immediately prior to [the mother's] filing of the complaint for modification, which requested termination of his parental rights, because he continued to pay child support and attempted to contact his children through “Facebook” during that 6–month time period.

[The father] admits his efforts at maintaining contact with his children from November 2010 until March 2012 were minimal. He testified that he attempted to contact [the children] through his uncle’s “Facebook” account for about 2 weeks after moving to Las Vegas, but then he claimed that [the mother] discovered he was using the “Facebook” account and blocked his uncle from her account and the children’s accounts. [The father] admits that after the initial 2 weeks that he was in Las Vegas, he did not contact the children but claimed that he did not make additional attempts to contact his children for 1 year because he believed that [the mother] had a protection order filed against him.

Nothing extraordinary there, right? Certainly, it’s not unusual for references to Facebook to make their way into litigation, particularly family law cases, where the parent’s everyday decisions and lifestyle may be at issue. Most of us communicate using the Internet generally, or social media specifically, and a case analyzing one’s communications will likely stray into Facebook, Twitter, and the like.

But here’s the thing: It’s 2014. Why is the court of appeals placing scare quotes around the word Facebook? Isn’t Facebook such a prevalent and prominent website that we can now refer to it without quotation marks? By our count, the court mentions Facebook seven times in the opinion, and each time it does so, it places unnecessary quotation marks around the company name. Why?

The Fitbit Class Action Litigation

After recalling several models of its Fitbit Force bracelets, Fitbit now faces a class action in California.  Plaintiffs allege that Fitbit did not alert consumers of possible skin irritation.  Fitbit reported in January that it was aware of 9,900 instances of skin issues with the Fitbit, approximately 1.7 percent of users. Previously, the company issued public statements regarding the issue and offered full refunds, but that has not appeased the purportedly injured.  According to the suit, Jim Spivey, the named plaintiff, lost money or property and time and opportunity as a result of Fitbit’s alleged false advertising.  Further, the suit alleges that the defendant continues to hold money which rightfully belongs to the class for reimbursement or compensation for physical and emotional injuries.  Allegedly, the product’s wristband can increase the risk of experiencing an adverse cardiovascular event, which apparently includes increased risk of skin irritation, rash, burns, blistering, cracking, peeling, bleeding, oozing, boils and other physical injuries. Fitbit responded in The Wall Street Journal stating, “Based on our initial review of the lawsuit, the complaint asks for a recall of Force and a refund to consumers. Fitbit took initiative long before this complaint was filed, publicly offered refunds, and worked closely with the CPSC on its voluntary recall program. We strongly disagree with the statements about the product and the company.”

Interesting, Mr. Spivey, who bought his Fitbit in January, has not developed any skin irritation, so there’s that.

Coffee: The Next Great Humanitarian

 Exo-Reaction-Housing-System-Easy-to-Assemble-Flat-Pack-Emergency-Shelter-7-537x340

We here at Abnormal Use have written about coffee numerous times in recent years.  Typically, those posts have addressed whether hot coffee presents an “unreasonably dangerous” condition for which merchants can be held liable.  It is a topic oft-debated and one that can elicit some negative responses.  Rather than rekindle the hostility, we here at Abnormal Use would now like to educate you on the more noble, altruistic side of coffee.  The side that can serve as a support system for thousands of displaced people.  Prepare to be amazed. Watching thousands of people crowded into shelters in the aftermath of Hurricane Katrina, Michael McDaniel developed the Exo Housing System -  a  portable sheltering system, light enough to be moved by hand but “strong enough to stop bullets” according to the website of McDaniels’ company, Reaction.  The Exo provides living and sleeping quarters with a climate-controlled environment for a family of four following a disaster.  So, what does this have to do with coffee you might ask?  Well, coffee was the motivation for it all.

The design of the Exo is based on none other than an upside down coffee cup.  According to McDaniels:

The Exo design stems from a very simple premise. Four people are able to lift it by hand and set it up in under 2 minutes without the need for any tools or heavy machinery. And the idea came from, literally, your basic coffee cup.

So just a few days after Hurricane Katrina, the idea dawned on us. So if you take a coffee cup and turn it upside down, essentially you have a 2-part design that literally snaps together. Your floor snaps onto your roof and walls, and it’s an insulated, rigid structure. They actually sleeve together, so we can actually put a tremendous amount of shelter in a very small volume for efficient transportation and shipment. The reaction: we get calls literally every day from around the world with people needing shelter now. We’re ramping up our capabilities to respond, but we need your help.

It is hard to believe that a Styrofoam cup and lid, often criticized in hot coffee litigation for not being secure enough, can form the foundation of living quarters.  Obviously, the Exo bears little resemblance to an actual coffee cup, but amazing nonetheless.

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 While this is not really an example of coffee itself saving the world, it is a reminder that a coffee cup is not merely a combination of Styrofoam and plastic.  A great deal of design and innovation goes into the way coffee is served.  And, it is all done to protect consumers, assuming the lids are appropriately attached to the cups.

School Punishes Student for Getting Bullied

If recent reports are true, the Buncombe County, North Carolina School District deserves some scrutiny for its “handling” of a recent bullying incident. The school district of Buncombe County, North Carolina, like many schools, expresses a student-oriented mission.  Buncombe County even has a set of “core values,” which include: “[l]earning environments must be safe and supportive, with equity of opportunities for personal growth” and “[u]nderstanding and respecting diversity enriches the individual and the community.”  The school leads the public to believe that its goal is a safe school and encourages students to immediately report bullying. The school district’s web page even refers readers to stopbullying.gov, which among other things encourages adults to “[a]ssure the child that bullying is not their fault.”   At first glance, this school is doing everything right – encouraging students to embrace their unique qualities and creating a safe, bully-free environment for those students to thrive.  Presumably, this would be the perfect school for Grayson Bruce, a nine year old male student who is into My Little Pony.  My little pony’s slogan is “friendship is magic,” but young boys who play with My Little Ponies are often bullied.  Grayson was not immune to this, as he was punched, pushed, called horrible names, and otherwise victimized when he brought his My Little Pony bag to school.   Per the school policy, the bullying was reported.  One would expect the school to punish the bullies or otherwise do whatever it takes for Grayson to have the opportunity to both learn and be himself.  Shockingly, the school punished Grayson instead, ordering him to stop bringing the My Little Pony bag to school, under the rationale that the My Little Pony bag was the trigger for the bullies.  

Luckily, other students have supported Grayson, and the support and media attention pressured the school to remedy the situation.  Bullying is disgusting, and it is harmful for our society.  Luckily, this author never had to experience bullying as a child or adolescent, but I understand how damaging it can be for the development of a young person.  The recent focus on bullying-prevention nationwide is a positive development, and hopefully it will reduce or eliminate the phenomenon for future generations of young people.

(Hat Tip: Alias!)

Friday Links

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Above, you’ll find the cover of Daredevil #36, published in February of this very year. Note that Matt Murdock, Daredevil’s alter ego, sits outside of his former law office with all of his possessions in the hallway. “Closed for business,” the sign on the door proclaims. Quite frankly, we never understood how Murdock could meet his billable hour requirement and moonlight as a superhero. Whatever the case, sad times for Daredevil. We’ve previously written about Daredevil and his alter ego’s career as an attorney. In fact, back in the day, we even published an interview with Mark Waid, the writer of the current Daredevil series. You can revisit that interview here. Apparently, issue #36 was the final issue of this series (although the series was instantly restarted a month later). According to the comic book website Newsarama: “In Daredevil #36, readers saw Matt Murdock put on the stand and forced to fully admit his superhero identity in a place where he can’t argue his way out of it. After the bombshell was dropped, a cascading series of events played out where Daredevil put his origin and his thoughts on secret identity and superheroics in a brand new context, while simultaneously seeing his final battle with the Sons of the Serpent.”

This ABA Journal article about New York City night court becoming a tourist attraction does not mention the old NBC sitcom “Night Court.” Hmmmm.

Advice from Lifehacker: “If you’re feeling a bit low about yourself, turn off all your social media.” (Hat Tip: The Rainmaker Institute).

Headline of the Week: “Lawsuit Ends With 100,000 Tubes of Toothpaste on the Streets of Manhattan.” From The Wall Street Journal’s Law Blog, of all places. Enjoy.

GWB attorneys Phil Reeves, Stuart Mauney, and Steve Buckingham will receive the 2014 Leadership in the Law recognition by South Carolina Lawyers Weekly.  Get this: They are three of only 30 South Carolina attorneys to receive the Leadership in Law recognition this year. Winning attorneys were nominated by peers and colleagues and selected by the publisher and staff of South Carolina Lawyers Weekly.

Have you heard that veteran litigator John Cuttino has joined our firm as a shareholder in our Columbia, South Carolina, office? Well, if you’re not following John on Twitter yet, you can do so by clicking here.