Abnormal Use On The Clemson/Auburn Game

The 2016 college football season started out with a bang this past Labor Day weekend. Surprisingly, the weekend that was billed as the greatest opening weekend in College Football history actually lived up to the hype. There were numerous upsets and close calls for several powerhouse programs. See e.g., Oklahoma v. Houston, 3 ABC 15 (September 3, 2016); LSU v. Wisconsin, 5 ABC Unranked (hereinafter “X”) (September 3, 2016); Notre Dame v. Texas, 10 ABC X (September 4, 2016); and Appalachian State v. Tennessee, X ESPN 17 (September 1, 2016). There were also a few upsets involving some not-so-powerful programs that some here at Abnormal Use would contend have been, at times, unjustifiably held in higher regard due to their conference affiliations. See e.g., Southern Mississippi v. Kentucky, unpublished opinion #44-35 (September 3, 2016); and South Alabama v. Mississippi State, unpublished opinion #21-20 (September 3, 2015).

Before getting into the highly anticipated Battle on the Plains between the Tigers of the ACC and the Tigers / War Eagle of the SEC, let us go back to how the college football season and highly anticipated opening weekend kicked off. While we would not go so far as to say Thursday night’s season opener for USC, excuse me, Carolina, I mean, South Carolina did much to prepare us for the excitement that was to follow, we here at Abnormal Use must give credit where it is due. Under the leadership of new Coach Will “Boom” (see https://www.youtube.com/watch?v=JZSy2JH8iu4 for further information regarding the origin of the nickname) Muschamp, the Fighting Gamecocks of South Carolina downed the Vanderbilt Commodores; thanks in large part to a booming, no pun intended, 55 yard game-winning field goal supplied by South Carolina’s adorable golf enthusiast kicker, Elliot Fry (see http://thebiglead.com/2016/09/02/south-carolina-kicker-elliot-fry-talked-golf-on-sportscenter-after-game-winning-kick/).

Then came the main event, Clemson versus Auburn under the lights at Jordan-Hare Stadium. Despite the immensely high expectations for Clemson’s offense, led by pre-season Heisman front-runner, Deshaun Watson, it was never easy for Clemson’s offense, as they could only muster 399 yards—79 yards less than Deshaun Watson accounted for alone the last time this offense took the field in the National Championship game against Alabama’s juggernaut defense. Despite the struggles on offense, there were certainly bright spots for the Clemson offense. Mike Williams, in his first game back since suffering a cervical fracture on the opening drive of the 2015 season, amassed 174 yards on nine catches. The little walk-on that could, Hunter Renfrow, again stepped up in the clutch, when he hauled in a spectacular touchdown reception at a critical moment in the fourth quarter. Then there was Wayne Gallman, who somehow managed to quietly gain 123 yards on 30 carries.

The real hero in this game, however, was Clemson’s defense. For the second straight year, Brent Venables’s unit outperformed its national expectations, holding Auburn’s traditionally powerful rushing attack to a meager 1 yard rushing in the first half of play. A large part of Clemson’s success on defense was due to terrific defensive line play. True freshman behemoth, Dexter Lawrence, who stands 6’5” and weighs 340 pounds, recorded five solo tackles, including a sack. That is not to say the defensive line is the only group that came up big down the stretch for the Tigers. Clemson’s brash linebacker, Ben Boulware, intercepted an Auburn pass deep inside the redzone with only six minutes remaining to hold Clemson’s lead at 19-13. Unfortunately, however, Clemson was not able to capitalize on offense, which resulted in Auburn regaining possession at Clemson’s 36 yard line. After incurring a costly roughing the passer penalty on 3rd and 10, Clemson surrendered a nine yard touchdown run the following play.

With just 3:22 remaining on the game clock, many felt the Tiger offense would be able to run out the clock, especially after Auburn was ultimately forced to burn their timeouts. In an uncharacteristic mistake, however, Wayne Gallman went out of bounds on a 3rd down run play. This resulted in Clemson being faced with a 4th down with roughly 40 seconds remaining. Considering the Tigers were well within field goal range, your humble author was quite surprised when Clemson elected to go for it on 4th and 5. As it unfolded, the unsuccessful 4th down attempt resulted in Auburn taking over on their own 15 yard line with no timeouts and exactly 40 seconds remaining. In the words of Ricky Ricardo, it also resulted in Dabo Swinney having some splainin’ to do to his fan base after the game.

When it was all said and done, Auburn was able to strike fear in the hearts of the Clemson faithful everywhere, not once but twice with two Hail Mary passes into the endzone. Fortunately, however, both attempts fell harmlessly to the ground. Thanks be to Jadar Johnson. When the dust settled on this weekend of upsets, Clemson was the only top 25 team to come away with a win in a true road game that was not on a neutral site. While this is great news for some of us here at Abnormal Use, suffice it to say that there is little doubt anyone was more relieved when the final whistle blew than one unknown bettor at the William Hill sports book in Lake Tahoe, who laid $122,000.00 on Clemson defeating Auburn Straight up. Because Clemson was a heavy favorite, the brazen bettor won $38,125.00, which amounts to only a little more than 30 percentof the wager. No doubt, he or she is happy with their decision not to play the money line.

Friday Links

Yesterday, we ran “12 Steps Toward Fulfillment in the Practice of Law (Step 1),” the first of a twelve part series by our own Stuart Mauney. That’s right, a 12 part series! Come back each Thursday for the next two months and we’ll keep you posted.

Are we the only one’s that don’t hate Jefferson Starship’s biggest single?

Did you see that Lindsay Lohan’s lawsuit against the makers of Grant Theft Auto was dismissed? We previously wrote about the suit here and here.

Of course, we are saddened by the death of beloved actor Gene Wilder. We can’t even begin to speculate how many times we saw Willy Wonka and the Chocolate Factory in the 1980’s Just as Michael Keaton is our Batman, Wilder is our Wonka. Rest in peace, Mr. Wilder.

12 Steps Toward Fulfillment in the Practice of Law (Step 1)

We know lawyers are especially vulnerable to depression and substance abuse disorders. So how do lawyers avoid those problems and achieve a balanced life and fulfillment in the practice of law? In 2003, the ABA published a book, Lawyer Life – Finding a Life and a Higher Calling in the Practice of Law, written by the Honorable Carl Horn, III, a former U. S. Magistrate Judge in North Carolina, now in private practice in Charlotte, North Carolina. After examining the profession and its various problems, Judge Horn set forth “12 Steps Toward Fulfillment in the Practice of Law,” which is based on choices that an individual lawyer can make to enhance professional fulfillment. For the next twelve weeks, we will discuss each step in the 12 Steps offered by Judge Horn.

Step 1 – Face the Facts

Every 12 Step program begins with an exhortation to those in the targeted group to acknowledge their need. In the current context, perhaps one would say, “I’m a lawyer who went to law school, or began practice with high ideals, intentions to live a balanced life, and all that, but now …” By honestly and openly asking the right questions, we increase our chances, or take the first step, toward a balanced, fulfilling professional life. Are we emotionally healthy? Are we satisfied with the key relationships in our lives? When we look back on these years, will we be pleased with our priorities as evidenced by how we actually spent our time, or will we regret not having spent more time with our family and close friends? In short, do we feel good about where we are professionally and personally, and where our life appears to be going?

Let honesty be the rule here. We must face these facts on a regular basis if our lives are to remain balanced and on course. Lawyers who do not ask these questions, who fail to engage in periodic introspection, are more likely to experience what has been described as “the lingering feeling of emptiness despite material success.”

Step 1 – Face the facts.

Join us next week for Step 2 – Establish Clear Priorities.

Exchanging The Machete for a Copyright: The New Friday the 13th Lawsuit

Like their antagonists, the slasher films of the 1980’s never die. By our count, there have been eleven renditions of Friday the 13th, ten of Halloween, and eight of Nightmare of Elm Street. Add in the Freddy v. Jason cross-over and that is a whole lot of slasher gore. Good or bad, they just keep coming back as if nothing can stand in their way. Not bad reviews. Not transporting the evil 445 years into the future. And not even silly Rob Zombie remakes. It seems like nothing can stop them. Up until this point, however, Freddy, Jason Voorhees, and Michael Myers have never stared into the face of a copyright lawsuit.

According to a report from The Hollywood Reporter, a lawsuit has been filed in Connecticut questioning who has the rights to license new film versions of Friday the 13th. Here’s the story: Victor Miller wrote the script for the original film back in 1979 and created the characters in some of the sequels. According to the complaint, Miller wrote the script as a “work-for-hire” employee of the Manning Company at the request of Sean Cunningham, its general partner. Thereafter, Georgetown Productions financed the production of the film in exchange for an assignment of the Manny Company’s rights to the screenplay, including any and all copyrights therein.  Now, some 36 years later, Miller is attempting to terminate the grant of rights and reclaim ownership.

To hedge off Miller’s attempts, Plaintiffs Horror, Inc., a successor entity of Georgetown, and the Manny Company, filed suit against Miller, alleging that because the screenplay was written as a “work for hire,” he does not have the right to terminate Horror’s copyright interests under Section 203(a) of the United States Copyright Act. In addition to seeking a declaration of the parties’ respective rights, Horror and the Manny Company seek a determination that Miller has materially breached the Employment Agreement, slandered Horror’s title in “Friday the 13th”, and engaged in unfair trade practices.

We here at Abnormal Use find this suit intriguing, not because of the legal copyright issues, but because of the history behind the making of the Friday the 13th franchise. Miller and Cunningham began working together in 1976. Prior to Friday the 13th, Miller wrote and Cunningham produced family friendly classics such as Here Come the Tigers and Manny’s Orphans. We understand if you have never heard of them. Miller and Cunningham got into the horror genre only after witnessing the huge success of Halloween in 1979. Wanting to capitalize on that success, Cunningham asked Miller to write what is essentially a copycat film placed in a different setting (the stories of Jason Voorhees and Michael Myers took much different paths in the sequels). While we do not know who reaped the most benefits, we assume they both earned a nice check over the years. With this background, we find it silly that Miller and Cunningham are now wanting to fight over the rights to this “novel” idea all of these years later.

Regardless of the outcome, we have not seen the last of Jason Voorhees. A little copyright dispute is nothing for Camp Crystal Lake’s indestructible, machete-wielding mass murderer.

All These Hacks, But Why Should I Care?

In 2002, I had my first exposure to computers with the most basic computer class called “Computers,” where we played games on Mavis Beacon to improve our typing. For many, that would be our last formal education in the world of computing. But look around, in 2016, 84 percent of all stock trades are by high frequency computers, and 86 percent of Americans between 18 and 29 carry around smartphones, the examples of technology and computing integration are nearly endless. Unfortunately, wherever there is money, you will also find those who want to exploit and take advantage of the system. No one ever got robbed at an ATM until ATMs existed and there were no hackers until the Internet and computers existed.

People have always been terrified of being robbed, but being hacked? Many people and businesses still regard hackers as nerds who live in their mother’s basement. But again, it’s 2016, and times have changed, and bank robbers may make the local news, but hackers are making the national news, just look at the recent headlines. But let’s say you aren’t a presidential candidate or never had a MySpace account, you have probably been a victim, but just didn’t pay attention to it. In February 2015, Anthem, the second-largest health insurer in the United States, was hacked, potentially exposing approximately 80 million members’ names, dates of birth, social security numbers, addresses, phone numbers, and email addresses. According to Anthem’s website, the perpetrator’s identity is still undiscovered. In 2014, hackers obtained the names, passwords, email address, physical addresses, and other information from “a large amount” of eBay’s 148 million active members. Need more examples, in the past 4 years, Target, T-Mobile, ScottTrade, JP Morgan Chase, Home Depot, AOL, Adobe, Tumblr, Evernote, Linkedin, and Snapchat have all been hacked, and the list goes on and on.  You can see the biggest data breaches here represented by visually pleasing bubbles.

But, those are all big companies, and sure, though they are losing your information, that’s on them, and hacking won’t impact me in my day to day life, right? Wrong. The reality is that anything that is connected to the Internet is vulnerable, that means your smartphone, your smart TV, and even your car.  In July 2015, a Wired editor volunteered to be the victim of a car-hack. As he drove a Jeep Cherokee down the highway, two programmers took full control of every computerized function within the vehicle, the entertainment system, the dashboard, the steering, the brakes, and the transmission. Chrysler, with the help of the two programmers, has since released a patch to correct the exploit, but other exploits are surely coming.

Unfortunately, short of going off the grid, it isn’t possible to avoid being a victim in the current computerized world. However, the best defense for both businesses and individuals alike is to be proactive. Stop ignoring those updates on your computer (or notices from your car company to return to the dealership to have a patch installed), be skeptical about the email you receive, and change your passwords. In fact, read this guide from Carnegie Mellon about choosing good passwords. For businesses, be smart about what you store electronically and give very real thought to how that information is stored and protected.

Friday Links

Believe it or not, but tomorrow is the 25th anniversary of the release of Pearl Jam’s Ten, the band’s debut album which arrived in stores on August 27, 1991. Those were the days. More than a few of us here at Abnormal Use and Gallivan, White, & Boyd, P.A. have seen the band live over the years. We encourage everyone to spend just a bit of this weekend revisiting that album and its very fine songs “Alive” and “Black.” Early 1990’s alternative rock doesn’t get much better than that.

GWB attorney and current IADC President John T. Lay, Jr. was recently quoted in an article concerning a growing trend in the legal profession: Level Insurance.  If you’d like to read the article, please click here.

Don’t forget that you can follow us on Twitter at @GWBLawfirm! A number of our writers are also on Twitter, as well, including Jim Dedman (@JimDedman), Nick Farr (@NAFarr), Kyle White (@Kyle_J_White), and of course, Stuart Mauney (@StuartMauney).

One of us here at Abnormal Use is moving soon, and in light of that, our favorite tweet of the week comes from music critic Steven Hyden.

Hot Coffee Karma: The Day Was Bound To Happen

I have written about the hot coffee litigation for years. So much so that I suspected that one day I, too, would face my own hot coffee incident. After all, there is only so many times one can say, “Coffee is meant to be served hot and producers shouldn’t be held liable for serving it that way,” before the fates intervened. Karma works that way.  As I anticipated, that day finally came.

Recently, I had an out-of-town deposition that required me to leave my house long before nature intended humans to wake. After the lengthy deposition concluded, I began my sojourn home and thought it wise to acquire a cup of coffee. Thankfully, I found a not-to-be-named establishment selling coffee near the deposition location. I purchased a cup at the drive-thru and proceeded towards the exit to make my way to the interstate. Unfortunately, fate had other plans.

Turning left out of a parking lot with a cup of hot coffee in your right hand is not the best idea. Not able to coordinate the counterclockwise turning of the steering wheel with the proper handling of hot liquid, I squeezed the cup a bit excessively and dropped it. The lid dislodged, and piping hot coffee poured into my lap. And, let me be the first to tell you, it was hot. Really hot. Just how I like to drink it, but not so much how I want it soaking my nether regions. Apparently, karma burns.

Thankfully, I learned a thing or two about hot coffee during my studies (and knew to exercise a bit of common sense). I jumped out of the car (stopping first, of course) and pulled my pants away from my legs rather than allowing the hot coffee to cling to my skin. Thereafter, I engaged in a bit of a “shimmy” typically only acceptable on the dance floor of a wedding reception. In not so scientific terms, the movement kept the clothing fabric separated from the skin and allowed the coffee spill to air dry (or something like that). After several minutes of the “shimmy,” the worst passed. I wiped up the coffee lingering in my car seat with a towel, and  I was out of harm’s way.

While karma may have won the moment, the spill wasn’t the epiphany it may have desired. Rather than learn the horrors of hot coffee, I went right back to the drive-thru and ordered a second cup. I didn’t tell the establishment to lower the temperature. I didn’t call the news to report the hot coffee spill. I didn’t threaten to sue. Nope. Not me. I put that coffee right to my lips and enjoyed that first sip of piping hot nectar just like I always do.

You know why?

Coffee is meant to be served hot and producers shouldn’t be held liable for serving it that way.

 

Friday Links

More than five years ago, we here at Abnormal Use compiled a list of songs about lawyers and judges. It was quite a feat! If you’re feeling nostalgic or wish to cite to a song about expert witnesses, revisit that list here!

Congratulations to GWB’s Greg Sloan who has been elected Eastern Regional Vice President for the National Association of Railroad Trial Counsel.  The Eastern Region is the largest region of the NARTC with 25 states.

Okay, so who has watched “Stranger Things” on Netflix?

Our favorite tweet of late, from our own Stuart Mauney, deals with the perils of email and vacation.

Suicide Squad Lawsuit In The Works Over Lack Of Joker Screen Time

Last weekend’s Suicide Squad premiere was a huge box office success. In spite of dismal critical reviews, the film raked in receipts in excess of $135 million. Apparently, those moviegoers by-and-large didn’t share the same opinions as the critics – the film has netted a 71 percent audience score on Rotten Tomatoes.  But don’t count Reddit user BlackPanther2016 (“BP”) as one of those posting favorable reviews. He was so disappointed in the film that he has threatened to sue Warner Brothers and DC Comics. Here we go.

According to an Independent report, BP drove over 300 miles from Scotland to London to see the film, and upon seeing it, he was none too pleased with the fruits of his pilgrimage. After demanding a refund from the theater and earning only laughter from its owners, BP claims to be voicing his dissatisfaction in another forum by filing a lawsuit on August 11 against the studio. His legal grounds? BP takes issue with Joker scenes shown in the movie trailers that did not make their way into the film, an act BP claims amounts to “unjust false advertising.”

While we don’t know the allegations that will be contained in this much anticipated complaint, if it is in fact filed, we can only hope that they are somewhat similar to this Reddit user’s epic rant. BP offered the following thoughts on the grave injustice he experienced:

Movie trailers are like food menus, they give you a preview of what you’re gonna get. You look at a McDonald’s menu and you choose to get your favourite burger, presented in a nice picture with pickles, chicken, mild cheese (your favourite, in fact that’s the only reason you’re getting this burger, because you love mild cheese). You use your hard-worked money to pay for this burger, you get the burger, only to find out that this isn’t the burger you ordered. Yes it has pickles and chicken but it doesn’t have mild cheese, it has regular cheese.

Suicide Squad trailers showcased several specific Joker scenes that I had to pay for the whole movie just so that I can go watch those specific scenes that Warner Bros/DC Comics had advertised in their trailers and TV spots. These scenes are: when Joker banged his head on his car window, when Joker says ‘“Let me show you my toys’, when Joker punches the roof of his car, when Joker drops a bomb with his face all messed up and says, ‘Bye bye!’ None of these scenes were in the movie.

I drove 300 miles to London to go watch these specific scenes they had explicitly advertised in their TV ads…and they didn’t show them to me. Adding to this, they were also two specific Katana scenes they advertised that were also the reason I wanted to go watch the movie. These scenes were: Katana’s eyes going black, and a slow motion shot of her and her sword taking souls in a smoky kind of style. These scenes were advertised several times in the first trailer and many TV ads but they didn’t show it to me in the movie. I wasted a lot of money paying and travelling to go watch this movie because of these specific scenes they had advertised to me and all of us saying, ‘Hey, check out our preview! This will all be in our movie, come watch it on the 5th!’ All lies.

BP goes on to say that he is taking matters to court so he can obtain his refund as well as compensation for his fuel costs and the trauma of being embarrassed by people laughing at him for wanting his refund. We completely understand how BP feels. We, too, anticipated much more Joker in the film based on the trailers, and we too were disappointed by his lack of screen time. We also understand that passion of die hard comic fans. (However, we can’t imagine driving 300 miles to meet the actual Joker much less see him in a blockbuster film). Nonetheless, we can’t imagine filing suit over our dissatisfaction with a movie. We understand cut scenes in a trailer can, in some respects, be considered false or deceptive, but what trailer isn’t misleading on some level? Even when all of the trailer scenes make into the final product, we recall countless examples of trailers making a film look like something it is not. Whether it is showing the only “good” scenes or making an otherwise boring drama look like an action film, a trailer’s very purpose is to trick you into seeing the film.

Every movie has scenes that get cut, and often, those cut scenes find their way into the trailers. Unfortunately for BP, he was one of those super fans that actually noticed. At least for BP’s sake, the Joker made his way into the film albeit not as much as he would like. While we understand how he feels, we just can’t seem to quantify his damages.

The Latest Twist In The Ecuadorian Rainforest Pollution Litigation – Chevron Is Victorious In $9.5 Billion Oil Pollution Appeal

Reportedly, a three-judge panel of the Second Circuit, “unanimously affirmed a trial court’s determination that, in 2011, the lead attorney for some 30,000 Ecuadorians had won a $9.5 billion judgment against Chevron by means of bribery, coercion, and fraud.” For those who need background on the underlying case, Steven Dozinger, the lawyer at issue, obtained a $19 billion verdict in Ecuador in 2011 that “was supposed to compensate residents of the Amazon rainforest in eastern Ecuador for contamination allegedly left behind by Texaco, which drilled for oil in the region from 1964 to 1992. (Chevron acquired Texaco in 2001.).” The Ecuadorian judgment was then reduced in 2013 from $19 billion by the Ecuadorian Supreme Court. Apparently, Chevron owns no property in Ecuador, so there was no mechanism by which the judgment could be enforced in Ecuador, so the Plaintiffs attempted to enforce the judgment in Canada, and in September of 2015, “the highest court in Canada . . . ruled that villagers can move forward with an effort to seize assets tied to the oil company.”

Meanwhile, Chevron filed suit in federal court in New York, and Judge Lewis Kaplan concluded that “Donziger had won the judgment against Chevron in Lago Agrio, Ecuador, Kaplan . . . , by engaging in extortion, wire fraud, obstruction of justice, witness tampering, money laundering, bribery, and Foreign Corrupt Practices Act violations in a pattern of conduct that also amounted to a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO).”  Interestingly, the decision did not address the merits of the underlying pollution case; it simply said that the methods by which Dozinger acquired the judgment were improper and that no one could enforce the judgment in the U.S. or profit from it in the United States. The recent Second Circuit opinion affirmed Judge Kaplan.

This is an interesting development in a lengthy saga that has involved PR campaigns by both Chevron and Dozinger. Chevron also filed suit in Gibraltar against Amazonia Recovery Ltd, the company set up by Plaintiffs’ attorneys to collect the Ecuadorian judgment and obtained a $28 million verdict. According to Dozinger, “the villagers have filed standard collection actions against Chevron in jurisdictions where the company maintains substantial assets (thus far, Canada, Brazil, and Argentina).” This is an interesting, monstrous piece of litigation that has cost everyone involved an extraordinary amount of money. Judging by the appearances listing on the U.S. District Court opinion, this case has kept plenty of lawyers on both sides busy for a long time. It will be interesting to see what happens next.