Friday Links

joker

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?

braveheart

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

Temple_Of_The_Dog

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.

Friday Links

630788-7

Above, you’ll find the cover of  Rock N’ Roll Comics #7, published way, way back in the halcyon days of 1990. We post this cover this week because we here at Abnormal Use saw The Who live in concerts this past Tuesday night in Raleigh. What a show! We have now seen “Baba O’Riley” live! Good times.

Our own Stuart Mauney’s blog post on the lack of outrage over binge drinking was recently featured on the CoLAP Cafe  blog, the online newsletter from the ABA Commission on Lawyer Assistance Programs. Click here to read further.

We’re sticklers for certain rules in legal writing. Thus, our favorite tweet of late comes from Judge Dillard:

D.C. Court of Appeals Rebukes Asbestos Plaintiff’s Attorneys Strategy

As you may know, we sometimes contribute content to other online ventures. Not too long ago, our editor, Jim Dedman, saw the publication on an article he wrote in DRI’s The Voice. Get this: It’s about a case in which the court chided the plaintiff’s counsel for attempting to have it both ways. Sort of.

Here’s the first paragraph of the piece:

The strategy that attorneys use in litigation may come back to haunt them, as one plaintiff’s attorney in a federal asbestos exposure case recently learned. See Wannall v. Honeywell, Inc., — F.3d—, 2014 WL 7373517 (D.C. Cir. Dec. 30, 2014). The case began in the superior court in the District of Columbia when a former amateur mechanic and his wife brought suit against a number of defendants claiming that their products exposed him to asbestos. The plaintiff died during the pendency of the litigation, and his personal representative later appeared on behalf of his estate.

You can read the rest of the article here.

Can’t Buy Me Love? Amazon Sues to Block Purchased 5 Star Reviews

As we reported on Monday, Amazon.com is apparently none too happy with a person or persons that runs handful of websites with names like “buyamazonreviews.com” that offer to give glowing reviews of sellers’  products on Amazon for a price.  We have a few more thoughts on this matter. On April 8th, Amazon filed a lawsuit against the websites’ owner or owners  in Washington state court. Amazon calls the of buying and selling of reviews an “unhealthy ecosystem” that is damaging its brand.

The complaint filed in King County Superior Court names an individual named Jay Gentile as the operator of buyazonreviews.com.  Amazon also asserted claims against a John Doe defendant since it does not know who is operating buyamazonreviews.com, bayreviews.net and buyreviewsnow.com. Amazon wants the court to shut the websites down for trademark infringement, unfair competition and violation of the Consumer Protection Act.  The complaint also seeks an injunction to stoping  the selling fake reviews and an order requiring the sites to identify each Amazon review created in exchange for payment.

Amazon expressly prohibits paid reviews and threatens to suspend sellers that buy fake reviews. According to the complaint:

[the] Defendants are misleading Amazon’s customers and tarnishing Amazon’s brand for their own profit and the profit of a handful of dishonest sellers and manufacturers…Amazon is bringing this action to protect its customers from this misconduct, by stopping Defendants and disrupting the marketplace in which they participate.”

Although there’s no way of knowing which products have reviews that may have been purchased form one of these website.  However, this review seems to be a very likely candidate as it appears to have been written by J. Peterman.

Bashing Political Candidates? Let’s Leave Their Legal Careers Out Of It

We here at Abnormal Use try to steer clear of politics. In today’s landscape, political topics are polarizing and incite far, far too much animosity. For a legal blog whose writers’ views span the political spectrum, such topics are ones we would just assume avoid.  Nonetheless, upon reading a recent article from Mother Jones chastising a former lawyer, turned presidential candidate, based on his former clients, we felt it is time to break our silence (just this once).

In the article, writer David Corn attempts to expose Senator Ted Cruz as a “well-paid private attorney who helped corporations found guilty of wrongdoing.”  Specifically, Corn states:

[Cruz] was a lawyer for Kraft in a major lawsuit against Starbucks. He represented Pfizer when a California county accused the drug manufacturer and other pharmaceutical firms of overcharging. (In a win for Big Pharma, the Supreme Court tossed out the case.) He defended Eagle Freight Systems when drivers sued the company seeking unpaid overtime wages and expenses. (Cruz lost a bid to uphold a lower court ruling that shut down the drivers’ suit. Two years later, when Cruz was no longer involved in the case, the trucking company prevailed.) In a controversial move, he represented a Pennsylvania developer who was a central player in a corruption scandal that exploited juveniles, handling a dispute this crooked developer had with his insurance company.

As an apparent representative sample of Cruz’s more “egregious” acts, Corn details two other cases in which Cruz served as appellate counsel (one of which was on-brief only).  First, in Tire Engineering and Distribution v. Shandong Linglong Rubber Company and Al Dobowi Ltd., 682 F.3d 292 (4th Cir. 2012), Cruz wrote an appellate brief for a Chinese manufacturer hit with a $26 million verdict in a copyright infringement case.  Second, in Lynn Morrison v. B. Braun Medical, 663 F.3d 251 (6th Cir. 2011), Cruz handled an appeal of a verdict against a company accused of wrongfully terminating the plaintiff for refusing to violate anti-kickback laws. So, what is the point of all this?  Essentially, to call Cruz a hypocrite.  As Corn writes:

Cruz, a tea party favorite who calls himself a “courageous conservative,” has railed against “crony capitalism” and decried “corporate welfare.” He has boasted that he authored “legislation to end federal dollars subsidizing corporate fat cats.” Yet as a private legal gun for hire—who billed at least $695 per hour—Cruz sometimes defended corporations that engaged in sleazy practices to screw the little guy or gal.

Again, we must ask what is the point?

If one wants to write a negative piece on Ted Cruz, feel free to criticize his position on immigration, marriage equality, foreign policy, or any other viewpoint with which you might disagree. If you want to accuse Cruz of being a hypocrite, point out that he reaps the benefits of his health insurance from Obamacare while simultaneously opposing the law. Associating Cruz with his former clients or his work as an attorney, however, should have nothing to do with it.

As attorneys, we all have a job to do – advocate for our clients.  Whether it is civil or criminal, plaintiff or defendant, an attorney’s job is to counsel and to look out for the well-being of his or her clients. As a former lawyer, Cruz was simply doing the job he was hired to do in the best way he could to protect his client’s interests. There is no reason to chastise him for it. People and businesses deserve to have attorneys to help navigate them through the legal system.

The fundamental flaw in Corn’s logic lies within his premise itself, that being that Cruz is a “well-paid private attorney who helped corporations found guilty of wrongdoing.” In the two cases specifically cited by Corn, Cruz stepped in as appellate counsel following an unfavorable result for the client at the trial level.  Apparently unbeknownst to Corn, the legal process does not necessarily end at the trial stage (nor do civil cases result in corporations being found “guilty”), but, rather, can continue on with the right to appeal.  When Cruz stepped in to “help” these corporations with their appeals, he did so on the grounds that the verdicts were somehow reached in error.  While the corporation may have been found liable at the trial stage, it did not necessarily mean that the judgment would stand on appeal.  Of course, Corn would apparently have us ignore this whole process and essentially put appellate lawyers out of work.

The point of all of this is that lawyers are not their clients.  Lawyers aid their clients in reaching a resolution to legal disputes.  While lawyers can, and often do, turn down cases for a variety of reasons, lawyers shouldn’t be criticized for doing their job in the cases that they do decide to take. With any political candidate, there is plenty to criticize without the necessity of reviewing every legal brief he or she wrote in her pre-political career.

Amazon Sues Product-Reviewer-For-Hire

Apparently, there are various services out there which provide fake reviews for products in exchange for payment. Who knew? Amazon did, and it may be the first company to take a stand via a lawsuit to combat this practice:

According to GeekWire, the e-commerce giant has filed a lawsuit against a man known as Jay Gentile from California, who was identified as the operator of several websites that peddle product reviews, including bayreviews.net, buyreviewsnow.com, buyazonreviews.com and buyamazonreviews.com. The Seattle Times, however, notes that while the last two are included in the lawsuit, they are owned by different people, and that buyamazonreviews.com belongs to someone named Mark Collins.

The lawsuit alleges that the defendants were “offering fake verified reviews for a price and . . . telling potential customers that they can just ship empty boxes to his writers for the website to recognize the purchase.” According to sections on www.buyamazonreviews.com explaining the nature of the business:

Never has it been easier to get multiple 4 and 5 star reviews on your Amazon product page. We provide real reviews from aged accounts with real buying activity. Most products in the Amazon marketplace will never even be seen. The more positive reviews you have the better your chances are.

The website also explains that:

A purchase of your product is not required for us to post a review. If you would like a verified purchase review however we can buy your product first. If the cost is $2.00 or less we will cover the price. If it is more than this you will need to make arrangements with us to reimburse the cost. We are only accepting very limited amounts of verified purchase reviews, please contact us before ordering if you are interested in these.

The site also provides pricing information for various quantities of reviews:

Amazon Reviews

Thus, it appears that buyamazonreviews.com is quite up front and public about the nature of its business.  Presumably, someone has at least looked into whether the practice is legal or in compliance with the website’s terms of service.  It will be interesting to see whether the business model is defensible in court.

We have several questions regarding the legal issues surrounding the case.  For example, does Amazon have standing to file suit essentially on behalf of its customers?Presumably, if the “enhanced” reviews drove more sales, Amazon actually experienced increased sales.  What if a product for which review are purchased is simply a great product, and the review from a normal customer would have been a four or five star rating anyway?  Along those same lines, if the customers who actually purchased the products because of the high reviews, and the customers ended up liking the product, are there damages?  What if the reviews at issue actually caused Amazon to have increased sales? As noted above, we suspect this may be an abuse of the terms of service, and Amazon is just policing things to ensure that its reviews are intellectually honest. We’ll see.