Friday Links


We hope you enjoyed Wednesday’s post – our sixth April Fool’s Day blog entry.  Though some find April 1 joke posts to be silly and unnecessary, we have to admit that we love writing them.  If only you, our dear readers, loved reading them.  Maybe you do. If you missed it, the title was  “Federal Court Enjoins Reboots of ‘Twin Peaks’ and ‘The X-Files’ On ‘1990’s Estoppel’ Grounds.” How about that? Popehat even tweeted it!

That said, one curmudgeon from our office emailed us on Wednesday and remarked: “I might have appreciated it more if I had ever actually seen an episode of either of those shows.  Their relative obscurity, however, probably makes them perfect fodder for an April 1 post.” Relative obscurity? Sigh.

So, of course, for today’s edition of Friday Links, we had to go with an X-Files comic book cover. In fact, above, you’ll find the cover of The X-Files #1, published by Topps way, way back in the halcyon days of 1995.

By the way, in the interests of completism, we present these links to our past April Fool’s Day posts:

In Employment Case, Texas Trial Court Holds That Retweets Are, In Fact, Endorsements As A Matter Of Law” (April 1, 2014)

North Carolina Court Declares Harlem Shake ‘Over,’ Enjoins YouTube From Accepting Further Videos Depicting Same” (April 1, 2013)

American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law” (April 1, 2012)

Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (April 1, 2011)

Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds” (April 1, 2010)


German Court Orders Measles Skeptic to Pay 100,000 Euros

German Court

We recently blogged about vaccine law in light of the recent measles outbreak in the United States.  We now have a recent example of measles-related litigation which does not involve allegations of a defective vaccine. A German biologist and measles virus skeptic, Stefan Lanka, reportedly offered 100,000 euros, or $106,300 USD, to anyone who could prove the existence of the measles virus.  Lanka apparently believes that the illness is psychosomatic – that measles is actually a set of symptoms which manifests itself as part of some peoples’ unusual mental reaction to traumatic separation.  Well, unfortunately for Lanka, German doctor David Barden was able to easily gather various medical studies which show that measles is indeed a virus.  When Barden presented the proof to Lanka, Lanka dismissed the findings and refused to pay, so litigation ensued. A court in the town of Ravensburg ruled that the proof provided by Barden was sufficient, and that Lanka needed to pay up.  That is, the court ordered Lanka to pay Barden the entire 100,000 euros.  Rough day for Lanka – disproven, disgraced, and dispossessed of 100,000 euros.  And to add a cruel twist, the story has gone viral, or perhaps the spread of the story is merely psychosomatic.

Federal Court Enjoins Reboots of “Twin Peaks” and “The X-Files” On “1990’s Estoppel” Grounds

Big news from the West Coast in entertainment litigation. This morning, a federal court in California enjoined certain Hollywood studios and related companies from beginning production on the recently announced reboots of the 1990’s television series “Twin Peaks” and “The X-Files.” See Chambers v. Showtime Networks, et al, No. 4815162342 (M.D. Cal. April 1, 2015). The Plaintiff, Reginald Chambers, brought suit upon hearing news of the planned remakes of the aforementioned television programs. Chambers, a former denizen of the Usenet television forums in the 1990’s and a self-described “1990’s enthusiast,”claims he suffered bouts of severe depression, memory loss, and “unprompted wistful musings.” As a result, he sued in California state court under various theories of recovery, including negligence, fraud, unfair and deceptive trade practices, and the archaic “tortious interference with the past” cause of action (abrogated by most state courts and last invoked in the litigation which arose from the 1974 film adaptation of The Great Gatsby). Chambers also sought an injunction compelling a halt to the production of the two programs.

He sued what he called “a coterie of callous and temporally insensitive Hollywood defendants,” including Showtime Networks, Inc., CBS Corporation, and Lynch/Frost Productions, arising from the planned “Twin Peaks” reboot, and Twentieth Century Fox Television, Inc. and Ten Thirteen Productions as a result of “The X-Files” continuation. For their part, the defendants removed the case to federal court and filed various responsive pleadings, including a motion to dismiss on laches groundsThe Plaintiff’s claims against individual defendants Kyle MacLachlan and David Duchovny were dismissed in light of certain testimony from the defendants’ retained testifying expert, television critic Frederick Lowell, who opined that “television actors cannot be held accountable for their actions.” However, the federal court denied the corporate defendants’ motion to dismiss as premature and granted the motion for temporary injunction.

In supporting its conclusion, the court noted that “there is no finer episode of television in the 1990’s that ‘Clyde Bruckman’s Final Repose,’ the award winning episode of the “The X-Files” released in 1995, and to dilute it with later, lesser works in the same series would be sanctionable at best.” Further, the court found that the ambiguity of the original 1991 “Twin Peaks” finale “cast such a wonderful pall over the television landscape at the time that to undo it now via a reboot would harm both Plaintiff and the general public at large.” Further, the court held:

The federal courts have always served as the gatekeepers of the nation’s nostalgia. See In re: Buddy Holly, 235 F. 201, 202 (5th Cir. 1958); see also Iron Butterfly v. Nixon, 257 F. Supp. 47, 47-49 (E.D.N.Y. 1969). As such, federal district courts may halt a defendant’s actions when they constitute either a threat to public memory or cherished institutions of popular culture. See Estate of Hitchcock v. Van Sant, 626 F.2d 97, 101-102 (9th Cir. 1998) (noting, in case involving remake of the 1960 film Psycho, the role of the federal courts as “the praetorian guards of beloved American cinema”). In the case at bar, the Plaintiff invokes a novel theory of “1990’s estoppel,” in which he contends that “what happened, happened” and that the popular culture of that decade cannot be relitigated by the Hollywood of today. In advancing this theory, the Plaintiff points to a number of cases in support of this conclusion. See Tennant v. Eccleston, 650 U.S. 199 (2009) (finding that “matters of temporal stability and nostalgia are within the jurisdiction of the federal courts”); see also Kurtz v. George Lucas, Lucasfilm Ltd., and Indus. Light & Magic, No. 2011-1138-THX (W.D.S.C. April 1, 2011) (finding Star Wars prequels unreasonably dangerous and defective); Holder v. Swift, No. 15-1975 (S.D. Tex. January 7, 2015) (questioning a musical artist’s ability to name a commercial recording after a  year which that performer does not herself remember); but see Reznor v. Cash, 518 F. Supp. 2d 752 (N.D. Cal. 2001) (finding that a remake of a popular musical work representative of a particular decade can be “so transformative that any dispute arising from it is nonjusticiable in the federal courts”). He also points to this court’s failure to halt the production of the reboots of “Beverly Hills, 90210″ and “Dallas” as evidence of the societal damage which may result when federal courts abstain from this duty. After considering the weight of the evidence presented, the likelihood of success on the merits, and the interests of the general public at large, I hereby grant the Plaintiff’s request for an injunction prohibiting production of the aforementioned programs.

(citations included).

Curiously relying on a series of 19th century cases arising from that era’s litigation of Impressionist works, the court also rejected, by analogy, the defendants’ damages argument that “no ennui can stem from programs originally released in standard definition.”

Representing the plaintiff was well known California entertainment attorney Thomas Wyatt, who had previously argued, successfully, that it was within a California federal court’s inherent power to prevent the rock band Smash Mouth from reuniting and embarking upon a nostalgia tour. Reached this morning via email, Mr. Wyatt indicated that he regretted that he could not amend his pleadings in time to add the production company rebooting the television sitcom “Coach” as defendants in the matter.

One Shining Moment

On Monday evening, April 6, 2015, two teams will take the floor in Indianapolis for the NCAA Men’s Basketball Championship. As the winning team cuts down the nets, CBS Sports will play highlights from the tournament, set to the song, “One Shining Moment”, written by David Barrett. Versions of this song by Teddy Pendergrass and Jennifer Hudson have been used in the past; the most recent rendition is by the late Luther Vandross.

One shining moment, it’s all on the line

One shining moment, there frozen in time

One shining moment, you reached deep inside

One shining moment, you knew you were alive

The highlights will likely include the thrill of victory with upsets by UAB and GA State. There will also be the agony of defeat as top seeded Villanova failed to make the Final Four. We will see the bright faces of the winners and the teary eyes of the losers. Each of these, in their own way, had “one shining moment”.

We have previously written how lawyers are potentially vulnerable to depression, suicide and substance abuse. Perhaps one way to avoid the negative thinking that sometimes pervades our profession is to focus on the shining moments we have had in our personal and professional careers. Maybe we have never hit the winning shot in the last seconds of the championship game, but we all have had our own shining moments. Maybe you met a personal goal after much hard work. Or, perhaps, you won a particularly difficult and hard fought case. Whatever it is, take a few minutes today to remember “One Shining Moment” in your life and career.

Contaminated Food Recalls: The Remedy For A Mistake

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

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

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

Friday Links


As we previously mentioned, our editor, Jim Dedman, has put together a CLE program for April 1, 2015 in Charlotte, North Carolina on the Salem Witch Trials featuring noted author Katherine Howe. Here’s the information straight from the Mecklenburg County Bar Association website:

The Salem witch trials live on in infamy as one of the most notorious examples of injustice ever perpetrated in American history. Over 100 people were accused and 19 people were put to death by the state for a crime which, less than a generation later, was held to be largely imaginary. Perhaps most chillingly of all, the trials were conducted with great care, and according to legal precedent in place in the early modern Atlantic world. This talk will examine the legal contours of the Salem witch trial, including similarities and differences between other witch trials from the same period, the nature of evidence, and precedent-setting cases that influenced the conduct of the Salem trials, with the goal of posing challenging questions about the historically-contingent nature of justice.

Speaker Katherine Howe is the New York Times bestselling author of four novels and a nonfiction book about witches. She has commented about history and fiction writing on “Good Morning America,” “CBS This Morning,” the National Geographic Channel and NPR. Her fiction has been translated into over 20 languages. A native Texan, she lives in New England and upstate New York, where she is at work on her fifth novel.

Above, of course, is the cover of The Physick Book of Deliverance Dance, Ms. Howe’s first novel.

On another note, according to the ABA Journal, “[t]he family of an 11-year-old who died after eating a chocolate chip cookie that may have contained nuts has sued the supermarket chain that sold it.” We here at Abnormal Use have written about these types of suits in the past. In fact, back in July of 2012, our own Stuart Mauney wrote a piece about packages of peanuts which contain the warning “MAY CONTAIN PEANUTS.” You can read that post here.

And for our favorite tweet of week, we turn to the one below, which says something that needed to be said:

Video Games Make Kids Do Bad Things

Like spending thousands of dollars on a parent’s credit card on microtransactions.  The problem becomes is the issue of whether it is a parent’s fault for failing to monitor the child, teaching the child to know better, or setting up parental controls. Or is it the game developer who knows the psychology behind the hook? Or the console manufacturer who links one’s credit card to the user’s account?  Well, we may never find out, but it is the subject of Jeremy Hillman’s social media post.

Hillman’s son played Fifa 15,  a soccer game made by EA Sports which sold 2.66 million copies in 2014 in the UK alone (according to the ERA). The game features microtransactions. While controversial and typically frowned upon, in-app and in-game purchases are wildly successful.  It’s the reason you saw three “free-to-play” iPhone app commercial during this year’s Super Bowl.  There are many clever ways that game developers use in-game purchases, be it energy in Candy Crush or cooldown timers in Clash of ClansFifa 15 allows players to use actual money or in-game money to purchase groups of players, like virtual packs of baseball cards, but that once purchased, the player can use during game play.

According to Hillman’s post, his son attempted to purchase several “player packs” in Fifa 15 costing around $100 but allegedly had not received them.  After talking with Microsoft about a handful of $100 purchases, Hillman was asked to confirm numerous other  charges to the tune of $4,500.  Hillman admits that “[his son] became addicted to the game, spending $100 was as easy as clicking a button, there were no barriers, and it didn’t feel like real money even though it had a dollar sign on the screen.” Further, Hillman says he has taken responsibility for his part, which as I see it includes not understanding what his child was playing, not catching months worth of other charges, and not using the parental controls, among other parenting missteps.

However, Hillman wants Microsoft to be held accountable for failing to protect him from his son.  “If there’s a lawyer out there that wants to start a class-action against Microsoft and force them into compensation and adopting a better policy, I’ll happily sign up.” Hillman’s best idea is instituting a system like iTunes, where the user must enter a password every time he or she makes a purchase.  Alternatively, Hillman suggests that the console maker (not game developer or credit card company) should flag an account for suspicious behavior and require some confirmation, as “[b]anks and credit card companies regularly do this.”  I would think that people who have suffered overdraft fees as a result of boilerplate click-wrap may disagree, but I digress.

I regret that microtransactions exist and agree with many of the articles (just Google microtransactions ruining games) that contend they robbing games of the fun they initially offered.  However, they generate immense sums of money, and thus, they aren’t going anywhere anytime soon.  It will be interesting to see how parents, like Hillman, and companies, like Microsoft, will adapt to the inevitable future.

More On The Arsenic-Wine Lawsuit

As we discussed on Monday, customers may be getting more than a cheap buzz from their inexpensive bottles of wine.  A class action lawsuit filed in California alleges that dozens of low-end California wines have dangerously high levels of arsenic in them.  Arsenic is a carcinogen that, in high doses, can lead to serious health problems.  The defendants include Sutter Homes and Trader Joes’s.

So what exactly are the plaintiff’s alleging in this case?  The complaint alleges that “just a glass or two of these arsenic contaminated wines a day over time could result in dangerous toxicity to the consumer.” Yet the plaintiffs do not assert any causes of action or allegations that anyone has suffered any actual injury from the drinking these “contaminated” wines.  Rather, the complaint asserts causes of action for violations California’s consumer protection laws, including unfair business practices, misleading and deceptive advertising, and the consumer legal remedies act. The suit seeks injunctive relief, civil penalties, disgorgement and damages, and certification of a class of California consumers who purchased the named wines since 2011.

A spokes person for the wine industry has issued a statement in response to the lawsuit and believes that the suit is meritless.  Wine Institute vice president Nancy Light told Wine Spectator, “[t]here are no [EPA] limits [on Arsenic] for other foods and beverages—including wine—because they’re not consumed at the same level as water and not deemed to be a risk. There is no research that shows that the amount of arsenic in wine poses any health risks to consumers.”

So is your cheap wine going to kill you? Seems unlikely. Do the Plaintiff’s have case related to misleading advertising and other unfair business practice? Maybe. A complete list of the wines at issue in this case can be found here

Supreme Court of New Hampshire Reminds Us How Facebook Works

So, it’s 2015, so we’re not sure that a court needs to dedicate a section of an opinion to “Explanation of Facebook Technology Relevant to this Case.”

In February, the Supreme Court of New Hampshire did just that in an appeal arising from the defendant’s convictions for stalking and witness tampering.

In its opinion, the court noted as follows:

Facebook is a widely-used social media website, available for free to anyone with an e-mail account, whose stated mission is to give people the power to share and make the world more open and connected. Facebook and other social media sites are becoming the dominant mode of communicating directly with others, exceeding e-mail usage in 2009. With over one billion active users, Facebook is revolutionizing the way people behave and interact with one another in their everyday lives through site functions that facilitate sharing information, such as a user’s “profile page,” the ability to send personal messages to other users, and by allowing users to become “Facebook friends” with other users.

A profile page is a webpage that is intended to convey information about the user. By default, Facebook profile pages are public. When a user shares something publicly, anyone including people off of Facebook can see it. Alternatively, Facebook users can restrict access to their Facebook content using Facebook’s customizable privacy settings. Access can be limited to the user’s Facebook friends, to particular groups or individuals, or to just the user.

State v. Craig, No. 2013-229 (N.H. Feb. 12, 2015) (quotations and citations omitted).

We’ve deleted the citations, but we note that the court cited to law review articles and quoted from Facebooks pages directly.

But are these basic principles really so novel that they need to be stated and then supported with citations? If the authority the court is citing indicates that Facebook has one billion active users and that social media usage has surpassed email as a communications medium, isn’t it a familiar enough phenomena in society to go without saying? Can’t the court simply jump to the discussion of the relevant Facebook usage facts without pausing to remind us how it works? Do the terms profile page and Facebook friends really need to be in quotation marks at this point?

Gasp! Cheap Wines Allegedly Contain Arsenic, Suit Claims

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

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

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

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