In “Game Of Thrones” Litigation, South Carolina State Court Enters Judgment Against George R.R. Martin

We here at Abnormal Use remain fans of HBO’s “Game of Thrones,” so it was with great interest that we read this morning’s opinion in McCammon v. Home Box Office, Inc. and George R.R. Martin, No. 15-28712 (U.S. District Court for the Western District of South Carolina, April 1, 2016). Martin, as we all know, is the author of the “Song of Fire And Ice” fantasy novels, upon which HBO’s successful television series, “Game of Thrones,” is based. Over the past twenty years, Martin has released five novels in the series, the first in 1996, and the most recent in 2011. At least two more novels in the series are planned. “Game of Thrones,” the television series, debuted on HBO in 2011. Its sixth season is scheduled to premiere later this month, and the television writers have nearly exhausted all of Martin’s published source material. This, of course, means that the television show is now actually ahead of the narrative in the books (which is a curious thing indeed). We here at the blog have a number of opinions on that development, but today, we write about the federal litigation arising from it.

The factual background: Bill McCammon, a librarian and blogger from Greer, South Carolina, sued HBO and Martin in federal court following the finale of the most recent season of “Game of Thrones” in June of 2015. In so doing, he asserted various causes of action against Martin, including a claim for “negligent artistry,” alienation of affection, and a novel use of laches, which is traditionally an affirmative defense asserted by defendants against plaintiffs accused of unreasonable delay. In the complaint, McCammon further complained that he had “suffered a loss of moral superiority, as his status as a reader of the novels provided him with foreknowledge of the events of the HBO series, thereby distinguishing him from mere watchers of popular television.” Martin’s delay, McCammon contended, cost him that “precious” status. McCammon further contended that HBO was vicariously liable for Martin’s torts in light of their artistic relationship. (Before the court’s order, McCammon abandoned an unrelated claim seeking restitution from HBO for both the cancellation of “Deadwood” and the perpetration of “True Blood.”).

For its part, HBO answered the suit and cross-claimed against Martin for contractual and common law indemnity. Martin, on the other hand, failed to answer the complaint, although he did file multiple pro se motions for extensions of time to do so. His final filing on the docket was a motion for leave to exceed page limitations.

In today’s order, the court granted McCammon’s motion for default judgment against Martin but denied his motion for summary judgment against HBO. Adopting McCammon’s laches theory, the Court observed that “art, unlike molasses, must move quickly, and thus, an artist’s unreasonable delay in releasing a promised work must subject that creator to liability.” (citing In Re: Chinese Democracy Litig., 61 F.3d 21 (W.D. Tex. 2007) (mandating that the rock band Guns N’ Roses release its long overdue album “with all deliberate speed”) and Shearer v. Lewis, 572 S.E.2d 492, 652 (Ga. Ct. App. 2009) (finding that it was “well within the Court’s inherent power to order the release of defendant’s unreleased film, The Day The Clown Cried“)). Thus, Martin was liable to McCammon. In its briefing, HBO attempted to counter that line of authority, citing a number of cases holding that “federal courts should refrain from regulating an artist’s output, lest the artist be forced to release too much material.” (citing Adams v. Adams, 867 F.3d 539 (S.D.N.Y 2006) (invoking the “merciful estoppel doctrine” in granting the singer Bryan Adams’ request for an injunction enjoining the singer Ryan Adams from releasing more than three albums per year); In re: Kanye West Litig., 901 F.3d 42 (S.D.N.Y 2015) (self explanatory). However, the Court found that McCammon’s vicarious liability theory against the premium cable network “constituted a mummer’s farce” and, thus, granted HBO’s motion for summary judgment on those claims. Additionally, the Court granted HBO’s motion for default judgment against Martin, noting the author’s failure to answer and, deciding to reach the merits of the dispute, invoking “the common law rule that litigants with multiple middle initials are estopped to deny indemnity claims arising from works of art.” (citing WingNut Films, Ltd. v. The Tolkien Estate, 721 F.2d 551 (9th Cir. 2002)).

In response to the ruling, Martin, through his literary agent, declined to comment, saying he was too busy working on other projects to prepare a response to the ruling.

GWB Attorney Kyle White Featured in SC Lawyers Weekly Article

Not too long ago, our own Kyle White, a regular contributor here at Abnormal Use, was quoted in South Carolina Lawyers Weekly about the South Carolina statute of repose. Here are the paragraphs in which he is quoted:

Kyle White of Gallivan, White & Boyd in Greenville is not affiliated with this case, but is interested in the litigation, particularly with respect to the statute of repose, as an attorney whose caseload contains a heavy dose of product liability.

“I think what the judge was telling us is that one of the most important considerations is the degree to which the equipment or the appliance or the structure at issue is actually affixed to the real estate,” White said. “And so, without a determination to what extent it is, it’s really difficult to determine whether the item is an improvement for the purpose of the statute of repose.”

The interview was prompted by the release of Murray v. D.R. Horton, Inc., No. 4:15-cv-00191-RBH (D.S.C. December 30, 2015). The article describes the background of the case in some detail.

You can read the full article here.

DRI’s Strictly Speaking Newsletter Seeking Contributions

As you may recall, our editor, Jim Dedman, also serves as the newsletter chair of the DRI’s Product Liability Committee newsletter, Strictly Speaking. As such, he attended the DRI’s Product Liability Conference in New Orleans in February. Because there is some overlap between the readership of Abnormal Use and Strictly Speaking, we thought we would alert you, our dear readers, to a recent call for articles.  Articles for the next edition are of Strictly Speaking are due April 18, 2016. Articles can come in a host of forms: federal or state case summaries, practice tips and pointers, war stories, analysis of regulations, and the like. If you have a particularly compelling story from your own practice which might aid other practitioners, Strictly Speaking is interested. If you would like to submit content, please email Jim with any questions you might have about the enterprise.

Zen Magnets Fights Back Against CPSC

Not too long ago, we here at Abnormal Use chronicled the saga of Buckyballs in the company’s two year fight against the draconian measures of the Consumer Product Safety Commission to take spherical desktop magnets from the marketplace. When Buckyballs eventually settled with the CPSC, Colorado-based Zen Magnets seized the torch in the fight against the CPSC over the right to manufacture and distribute spherical magnets. Back in 2014, Shihan Qu of Zen Magnets described his reasons for continuing the fight as follows:

I have two very distinct but related motives for continuing this fight.

The first one is obvious. I want to win. I want to keep selling magnets. I want to continue seeing the passion, joy, and inspiration they bring. I want to stay in business. I want to see a victory for magnets.

But number two, I want the CPSC to LOSE. I really really want them to lose. They need some humility and to be reminded of the standard of liberty in this country.

The single biggest issue that must be challenged, the aspect that makes this a landmark case, is that this is the first time the CPSC is arguing that warnings don’t work, which has incredibly vast policy implications. Putting warnings on this is mostly what the CPSC does. Small parts, choking hazards, etc.

Warnings are a sort of agreement a customer accepts upon use of a product. And by assuming that people cannot follow — by the way, there is still nobody who can confirm even a single Zen Magnet ingestion incident — instructions to keep magnets away from children and mouths, they are assuming the American Population is not capable of deciding for themselves. They are taking your right to consent, and fleecing your freedom to do as you will.

We’re the last line of defense, and if Zen Magnets doesn’t stand up, the CPSC gains a remarkable amount of power from consumers. They show the ability to determine behind their closed walls, what America can and can’t have, despite roaring public opposition. They set the precedence of creating an all-ages, nation-wide ban, with the assumption that an American cannot be “expected” to understand or follow warnings.

At long last, we are pleased to report that Qu’s mission has been accomplished (for the most part). By order dated March 25, 2016, Administrative Law Judge Dean Metry found that small rare earth magnets (“SREMs”) are not defective, did not contain inadequate warnings, and, when sold with appropriate warnings, are not substantial product hazards.  In other words, Qu’s reasons for fighting were not in vain.  The case is captioned, In the Matter of Zen Magnets, LLC, CPSC Docket No. 12-2 (March 25, 2016).

As you may recall, the CPSC has argued that SREMs are defective because ingesting the magnets creates a serious risk of injury. While the ALJ agreed that ingesting SREMs can result in serious injury, ingestion is a misuse of the product and not part of the product’s normal operation and use. SREMs, when used properly, are harmless. As such, the ALJ found that SREMs are not defective under 16 C.F.R. 1115.4.

The CPSC also argued that SREMs were defective because the product warnings were inadequate in mitigating the risk. Specifically, the CPSC took issue that a warning label could not be placed on each individual SREM due to the magnets small size and, thus, any persons who obtain lost or shared SREMs will not see any warnings. The ALJ didn’t buy it. As of at least 2012, Zen Magnets contained warnings, including our personal favorite:

OMFG READ ME

This is serious! The grumpy CPSC is about to BAN magnet spheres in the US because they are an ingestion hazard. They don’t trust that you are capable of understanding and following warnings. Prove them wrong, or we all can’t have nice things.  Zen Magnets, LLC, the producer of Neoballs, has had no record of ingestion and we’d like to keep it that way. High powered magnets can cause potentially fatal intestinal pinching if swallowed. Keep magnet spheres away from all orifices (sic), especially the mouth and nose. High powered magnets are not a toy. Keep away from anybody who does not understand these dangers. SRSLY.

The ALJ found that the warnings, including our favorite above, did not contain any fault, flaw, or irregularity. In fact, the ALJ stated “[i]t would be near absurdity to fault [Zen Magnets] for not labeling each individual SREM with a warning.”

Notwithstanding these findings, the ALJ found that prior to May 2010, ZEN Magnets sold some SREMs without warnings and with a suggested age of 12 (rather than 14) and above. As such, those products sold before 2010 are considered toys and substantial product hazards under the Standard for Consumer Safety Specification for Toy Safety. Accordingly, the ALJ granted the CPSC partial relief and required Zen Magnets to compile a list of pre-May 2010 purchasers and offer them a full refund. Ultimately, however, Zen Magnets has to consider this decision a huge win for spherical magnets.

Interestingly, if one were to look for news reports on the ALJ Order, they are nowhere to be found. However, the news is filled with reports like this one about the recent recall of “dangerous” magnets. Those reports arise out of a March 22, 2016 decision from a a related case pending in the U.S. District Court for the District of Colorado involving Zen Magnets sale of certain recalled products it acquired from another company (Star Networks USA) after that company reached a settlement with the CPSC. So, not quite the indictment on Zen’s SREMs the reports may suggest. We will assume their reports on the ALJ decision are forthcoming.

Friday Links

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So, we saw Batman v Superman: Dawn Of Justice. Oh, boy. What a mess! Aren’t superhero movies supposed to be, well, fun? All we can say is that we really, really miss Christopher Reeve. Above, you can find the cover of Superman/Batman #14, published not so long ago in 2005, but long enough ago as to where we knew not of Man of Steel or this new Dawn of Justice film. Alas.

Our own Nick Farr was recently linked at Overlawyered, which saw fit to quote his piece on the recent Starbucks “fill to the brim” litigation. See here.

Rest in peace, Garry Shandling. In fact, our tweet of the week is from our editor, Jim Dedman, who offered this memory upon learning of Shandling’s death.

Change Is Here, And More Is Coming

As you know, we here at Abnormal Use oftentimes link to other outlets who have published our bloggers (or attorneys at our firm who may not be bloggers at Abnormal Use). Recently, our own John Cuttino – the current president-elect of DRI – saw the publication of his article, “Change Is Here, And More Is Coming” in March 2016 edition of For The Defense. Here’s the first few paragraphs of the piece:

“We are shaping the world faster than we can change ourselves, and we are applying to the present the habits of the past,” Winston Churchill.

Those wise words are particularly appropriate in 2016. Our profession is undeniably in the midst of great change. Some of those changes have happened, some are in process, and some have not yet begun. Some are very visible to us, and others are presently out of our sight. Humans that we are, it is likely that each of us is engaged in some form of denial of the changes in our profession. I’m betting some of us are like the cigarette smoker who, despite the evidence, believes (hopes) that the laws of nature will be suspended and that he or she will have no adverse health effects from smoking. Perhaps we think the changes won’t affect us because we live in a smaller city or state, or we have loyal clients, or it’ll be a while longer before the change impacts us directly, or we’ll be retired before major change affects our practice. Or maybe we know it’s coming, but we are just too busy to think much about it right now.

Regardless of what we think, change is here. And more is coming. I’m no soothsayer about this profession, but I’ve made it a point to read and learn everything I can about the near term future of the practice of law. As a result, I’d like to share with you some observations and predictions about changes you will see in your working lifetime.

To read the full article, which addresses everything from alternate legal service providers, virtual law practice, and law school education,, see here.

Class Action (25th Anniversary)

As you know, we here at Abnormal Use are fans of popular culture, legally themed films in particularly. Twenty five years on this month, on March 15, 1991, the film Class Action saw its release. You may remember it. As we noted a few years back, the film “chronicles a products liability suit involving an allegedly defective station wagon, which when struck from the rear when the left turn signal is operating, bursts into flames.” The gimmick is that a Big Law defense lawyer, played by Mary Elizabeth Mastrantonio, finds herself on the opposite side of the case as her father, a plaintiff’s attorney played by Gene Hackman. It is a fun, but dated, film.

Five years ago this month, back in 2010, we published an interview with producer Robert W. Cort and writer-producers Carolyn Shelby and Christopher Ames. In light of the film’s 25th anniversary, we wanted to direct your attention back to that interview, which you can find by clicking here.

Our favorite scoop from the interview was this bit of Hollywood gossip:

DEDMAN: How did Gene Hackman and Mary Elizabeth Mastrantonio become involved with the project?

CORT: . . . Gene was always kind of in our mind. We wanted a very powerful character who played against the Henry Fonda of that character . . . We wanted someone who had been toughened and was tough because that’s who those people are; they’re not saints. They’re rough people even if their passions will have been shaded over into obsessiveness. And if you look at a lot of Hackman’s roles, going back to Popeye [Doyle] and The Conversation, you see a character in pursuit of what he believes is right [who] will go to any length and ignore everything else, including, in this particular case, his daughter.

. . . I had seen Mystic Pizza, and there was an enormous amount of heat about this young actress and it was, of course, Julia Roberts. We had given it to a few other major actresses and we’d been passed on . . . The character had a lot of gravitas and huge intelligence and a fair piece of alienation even though she was working very much within the system. . . . Michael Apted and I and Scott and Chris and Carolyn met with Julia, kind of saw what she was like, and she desperately wanted to do the movie. And we really believed in her. I was friendly with the people at Disney and knew that they had not released Pretty Woman yet, but that they were through the roof on the movie. They thought that she was going to be the biggest movie star around and she desperately wanted to do it, we wanted her, Joe Roth, who was the head of Fox, just didn’t believe in her, and he just kept fighting us and fighting us and he said “Well, all right maybe.” And we thought, “Oh my God, we’re going to get her.” And then he called me one day, and he said, “Forget Julia Roberts.” He said, “I have just seen the biggest movie star of her generation.” And he had just come from a screening of James Cameron’s The Abyss, in which Mary Elizabeth starred. Mary Elizabeth had been in, at that time, The Color of Money, in which she was great. She’s a terrific actress, absolutely a terrific actress. We couldn’t see the movie because Cameron wouldn’t show us. We never got to see it. Joe was sure it was going to be titanic. Obviously, it turned out not to be titanic. He said, “You’ve got to go to her, and if she doesn’t do it, all right you can use Julia Roberts.” So, we made the offer, she was represented by a man named Sam Cohn, who is a legendary agent in New York, and he gave it to her, and she delayed, and she hadn’t read it. I kept calling, and I said, “Sam, we need an answer ,”and he said, “Yeah, I’ll get you an answer.” I called Roth, and I said, “Look, we’re just getting jerked around, let us go with Julia.” He said, “All right, I’m calling Sam. If she doesn’t commit to it by noon on Friday, noon L.A. time, 3:00 in the afternoon in New York, go with Julia Roberts.” I absolutely kid you not, at 11:55, the phone rang in my office in L.A. and it was Sam Cohn saying “All right, Mary Elizabeth will do the movie.” So, by five minutes, we missed the part being played by Julia Roberts. And I think that it wasn’t just, in my opinion, the fact that Julia Roberts became this enormous star, and we would have been following Pretty Woman, [adding] incalculable value to that. But I think that Mary Elizabeth is a very dramatic actress, and she always went for the very dramatic and the very hard. And Julia, by nature of who she was and what she brought to it, always had that vulnerable, softer quality. And I think it would have been, opposite Hackman . . . it would have taken the movie, perhaps from a commercial standpoint, to another dimension. And the great story was that she got so mad that she went to see Joe Roth and said, “You didn’t believe in me,” and she and Joe Roth became unbelievably good friends. Basically, I didn’t talk to her again until she did Runaway Bride for us.

How about that?

In conjunction with our interview, we also ran a full review of Class Action, which you can find by clicking here.

 

South Carolina’s Electronic Filing Pilot Program Expands To Greenville County

As our South Carolina attorney readers know, the Supreme Court of South Carolina has been slowly unveiling a state court electronic filing pilot program in counties throughout the state. In a March 10 order, the Supreme Court expanded the program to Greenville County.

The order is effective as to Greenville County as of yesterday, March 22, 2016.

You can read the full order here.

Starbucks Lattes Allegedly Leave Room For More

On the heels of the announcement that Subway settled its 11-inch footlong sub suit, a new class action has been filed alleging that a national chain’s products don’t quite measure up. This time, it is Starbucks in the cross-hairs. According to a report from Top Class ActionsPlaintiffs Siera Strumlauf and Benjamin Robles have filed suit against the coffee giant in the U.S. District Court for the Northern District of California, alleging that Starbucks intentionally underfills its lattes by 25 percent. Starbucks’ baristas are allegedly instructed to make lattes by filling a pitcher with steamed milk up to a “fill to” line, pour shots of espresso into a serving cup, pour the steamed milk into the serving cup, top the latte with milk foam and leave 1/4 inch of free space at the top. The plaintiffs, however, allege that the “fill to” lines don’t correspond to the 12, 16, and 20 ounce cup sizes – an allegedly conscious decision made by Starbucks to save on the cost of milk.

Regardless of the merits of the short-pouring allegations, one particular allegation in the suit gave us pause. The plaintiffs allege that “Starbucks refuses to fill any hot beverage to the brim of the cup. Thus, under no circumstances will Starbucks ever serve a Grande Latte that actually meets the fluid ounces represented on the menu.” If we read that correctly, it sounds like the plaintiffs are actually suggesting that hot coffee should be filled to the brim of the cup to ensure that they are getting the full bang for their buck. We are guessing that had Starbucks done so, there would be a whole other class of plaintiffs clamoring for some massive hot coffee burn litigation. Maybe the plaintiffs should demand Starbucks use bigger cups and let the not filling to the brim policy stand for those who value safety.

It is too early to tell whether this suit will follow in the footsteps of the Subway litigation. Regardless of the size of any potential monetary settlement, we doubt it will be too life changing for any of the plaintiffs. If approved, the class will be open to all persons in the United States who have purchased a Starbucks latte. In other words, all 318 million U.S. citizens can be class members and should expect a free cup of coffee.

Friday Links

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Bad news: They are making another Indiana Jones film. With Harrison Ford. To be released in 2019. Sigh. What an awful, awful idea (proven, of course, by the tone and tenor of 2008’s Indiana Jones and the Kingdom of the Crystal Skull). Because we’re feeling a bit nostalgic, we direct your attention above to the cover of Indiana Jones #1, published way, way back in 1984. Those were the days, weren’t they?

So, we now have a SCOTUS nominee, Merrick Garland, to replace the late Justice Antonin Scalia. You may have read that somewhere.

Rest in peace, Larry Drake, the great character actor from “L.A. Law.”