Bad News For Barbie Jeep Joy Riders: Barbie Jeeping While Intoxicated Will Get You Jailed

Lowering the Bar recently blogged about a young college student who figured out a way to maintain style and mobility following an alcohol-related license suspension:

Tara Monroe is a college student in Texas who has gained some notoriety for her response to a DWI arrest in March. Monroe, whose “license was automatically suspended after [she refused] a breathalyzer test after a Waka Flocka concert,” then had to find some other way to get around. She has a bike, but “[r]iding a bike around campus sucks,” she noted. “Like, really sucks,” she added.

Left with no virtually no other choice, Ms. Monroe purchased a $60 Barbie convertible to drive around campus. Obviously, she draws the attention of other students, who apparently also take frequent photographs.

Barbie Jeep

There is basically no downside to this mode of transportation, right?  Drive around in electric pink glory, drawing the attention of everyone you encounter, pounding booze the whole way, all without consequences? Wrong. Cue the buzzkill lawyers with their “legal opinions.” Lowering the Bar apologizes for being the “bearer of bad news,” but adds that the pounding booze aspect of driving the Barbie car is “not a good idea”:

As many of you know by now, driving something unusual is your right as an American, but driving something unusual while intoxicated can still get you in legal trouble. That’s been true even for vehicles that arguably are not at all dangerous to anyone (e.g., Zamboni, wheelchair, inflatable raft, motorized beer cooler), and there’s no “ridiculous vehicle” exception (e.g., golf cart, motorized bar stool, Christmas parade float). In any event, it always comes down to what the state’s law provides.

Lowering the Bar goes on to examine Texas law on the issue and determines that Texas apparently frowns upon driving unusual vehicles while drinking, in that doing so is illegal. But aha! Apparently, “there are no Texas cases (yet) that address these laws in the specific context of Barbie jeeps” and apparently you can drink and joy ride in a Barbie Jeep to your heart’s content as long as [no one is harmed] and you “at least stay on private property.”

Our brief research tells us that you also can also be arrested for: “stealing a lawn mower while intoxicated. State v. Bombailey, No. E2003-00421-CCA-R3CD, 2004 WL 170350, at *1 (Tenn. Crim. App. Jan. 28, 2004); [as noted by Lowering the Bar] “operating a riding lawn mower on a county road, apparently intoxicated” Williams v. State, No. 03-02-00751-CR, 2004 WL 34840, at *1 (Tex. App. Jan. 8, 2004); driving a bicycle while intoxicated. Velasquez v. Superior Court, 227 Cal. App. 4th 1471, 1478, 174 Cal. Rptr. 3d 541, 546 (2014), reh’g denied (Aug. 13, 2014), review denied (Oct. 22, 2014). However, the good news for Segway pub crawl participants is that “[t]he Minnesota Court of Appeals has concluded that operating a Segway while intoxicated does not violate Minnesota’s DWI statute.” Greenman v. Jessen, 787 F.3d 882, 891 (8th Cir. 2015). It is also worth noting that, while “driving a tricycle while intoxicated” may be fair game, one who is caught “driv[ing] onto a sidewalk, crush[ing] a child’s tricycle and driv[ing] off, seeming intoxicated” will likely not evade arrest. See Bagheri v. State, 119 S.W.3d 755, 762 n.4 (Tex. Crim. App. 2003); State v. Wallace, 539 So. 2d 123, 124 (La. Ct. App.) writ denied, 544 So. 2d 400 (La. 1989).

Tech Giants’ Anti-Poaching Suit Settlement Finally Approved.

It looks like the anti-poaching saga for Apple, Google, Intel, and Adobe is finally over. We previously reported on a proposed settlement of the case and the court’s rejection of that settlement. By way of refresher, the Plaintiffs in the class action lawsuit alleged that the four Silicon Valley companies agreed to not poach each others’ employees which, in effect, formed an anti-competitive cabal that kept software engineers’ wages down.  After rejecting a prior proposed settlement of $325 million, the court has now approved a $415 million settlement.

The settlement covers more than 60,000 workers in the class. The net effect is that the settlement will provide payouts of approximately $5,000 per plaintiff. Not an insignificant amount of money, but certainly not a windfall for the types of employees whose wages were allegedly suppressed. However, it’s not as though no one received a windfall. The settlement provides for approximately $40 million in fees to the plaintiffs’ attorneys. Lest you think $40 million in attorneys’ fees is unreasonable, this number was down from the $81 million in fees originally requested. Apparently, the court had the good sense to cut fees in half.

It looks like Adobe was the only company to comment on the settlement, telling

Adobe firmly believes that our recruiting policies have in no way diminished competition for talent in the marketplace. Adobe strongly denies that it violated any laws or engaged in any wrongdoing. Nevertheless, we elected to settle this matter in order to avoid the uncertainties, cost and distraction of litigation. We are pleased to have the matter resolved.

How about that?

Jessica Alba’s Honest Company Allegedly Not So Honest

Frustrated with the lack of safe and eco-friendly products for her new baby, movie and television star Jessica Alba teamed up with Christian Gavigan to found The Honest Company. With an emphasis on ethical consumerism, The Honest Company produces a number of non-toxic household products including diapers, sunscreen, and personal care items, among others. With such a benevolent name, The Honest Company holds itself to pretty high standards and operates pursuant to the aptly named “Honestly FREE Guarantee.” According to The Honest Company’s website, the following is what such a guarantee means:

We believe the products people use should be safe and non-toxic (surprisingly, many companies don’t!) — not filled with questionable, risky, untested, or harsh ingredients. We also believe it’s better to be safe than sorry when deciding what goes in our products and we’re vigilant about the latest science regarding chemicals and health to ensure we’re being mindfully cautious.

Based on these beliefs, we created our Honestly FREE Guarantee — a core commitment we make to you and your children. And, it’s another way for us to be Honest — educating, empowering and inspiring people to make better choices for their health & families. Providing clear, credible, transparent information. No smoke and mirrors. No confusion.

Unfortunately, a new class action lawsuit filed in California has accused The Honest Company of being not so honest.  According to a report from the Business Insider, the lawsuit, filed by plaintiff Jonathan D. Rubin, alleges that the company’s hand soap, dish soap, diapers, and multi-surface cleaner are “deceptively and misleadingly labeled.” Rubin alleges that even though the company markets its products as being “natural,” in reality the products contain multiple synthetic preservatives. The complaint contains causes of action for breach of contract, unjust enrichment, and violations of several California consumer protection laws. The proposed class is seeking damages in excess of $5,000,000.

In response, Jessica Alba provided Business Insider with the following statement:

Seven years ago, when I was pregnant with my first daughter, I was frustrated by the lack of healthy and safe product options for me and my new family. In fact, prior to launching The Honest Company, I began lobbying Congress to require that ingredients used in everyday products are tested for safety prior to entry into the marketplace.

I started The Honest Company to develop safe and effective products not just for my children, but for families everywhere. I am very proud that we have built this company into an industry leader focused on using natural ingredients and developing products that people love.

We believe that consumers deserve to know what’s in their products — whether it’s diapers for their children, cleaning products for their families or beauty products for themselves. Our formulations are made with integrity and strict standards of safety, and we label each ingredient that goes into every product – not because we have to, but because it’s the right thing to do.

The allegations against us are baseless and without merit. We strongly stand behind our products and the responsibility we have to our consumers. We are steadfast in our commitment to transparency and openness.

I know my children, Honor and Haven, are growing up in a safer home because of our products.

Interestingly, we here at Abnormal Use have made a thorough review of The Honest Company’s website and nowhere did we find any reference to the products being all-natural or made without synthetic preservatives. Rather, The Honest Company claims to be “non-toxic,” a term that it defines much broader than many of its competitors. In fact, as a part of the Honestly Free Guarantee, each product contains a list of the products that are specifically not used in creating the product as well as those that are. It is hard to imagine how such a product could be any more transparent.

We hope this suit turns out well for The Honest Company. We have always liked Jessica Alba and applaud her company’s mission. Honestly.

Labor Day

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you and your family a fun and festive Labor Day. We hope you’ve enjoyed your weekend of leisure and college football (although our editor, a graduate of the University of Texas, had a tough weekend in light of the results of the Notre Dame game).

We’ll resume our normal posting schedule tomorrow.

Try not to bill any time today, lawyer readers!

Friday Links


Forgive us, as it’s possible we’ve used this comic book cover before, but there aren’t too many referencing Labor Day. So, we feature Batman: The Long Halloween #12, published not so long ago in the halcyon days of 1997. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope everyone has a fun and festive Labor Day.

Um, this is a curious Westlaw Next warning. Spoiler alert: We still miss Westlaw Classic. If you’re also feeling nostalgic, you can reread our Westlaw Classic obituary here.

Our favorite tweet of late is from June, but it’s a still good one:

GWB’s New Charleston Office Digs!


Back in February, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. announced that we had opened an office in Charleston, South Carolina. Exciting news, that. Well, we can now announce that our permanent office in Charleston has now opened and we’ve officially moved into that space. Yes, that’s a conference room picture above. As always, you can find all of the relevant contact information for our offices over on the official website, which you can access here. Be sure to let us know when you next find yourself in Charleston!

The Return Of College Football

Well, the wait is over. As of tomorrow, college football will have returned. As you may know, we here at Abnormal Use are college football fans. How could we not be? So, to prepare for this momentous occasion, we have prepared a list of links to our prior football related posts. Mind you, some of these posts concern professional football (which seems to result in more litigation). Oh, and let us know which Carolina you’ll be rooting for tomorrow night in the big game! (Since we have offices in both North and South Carolina and lawyers with alma maters in both states, it may be a tense day.).

NFL Litigation May Forever Change Football” (August 19, 2013).

PA vs. NCAA: Does the Commonwealth Have Standing?” (January 16, 2013).

NFL Punter Claims Turf Unreasonably Dangerous” (November 29, 2012).

Former NFL Players Allege NFL Concealed Risks of Injury” (September 14, 2011).

The Return of College Football (And Some Law Stuff)” (September 1, 2011).

South Carolina’s College Football Stadium Parking Jurisprudence” (July 12, 2011).

Oh, and here’s one that sounds like it’s about college football, but it’s really not:

Georgia vs. Texas” (March 25, 2010).

Sixth Circuit Answers Ancient Abnormal Use Question

Several years ago when discussing the case of Turner v. Taser International, Inc., No. 3:10-CV-00125 (W.D.N.C.), we here at Abnormal Use discussed the scope of TASER’s duty to warn of the risks inherent when shocking someone with 5000 volts of pulsed current.  In doing so, we asked the following:

It stands to reason that being shocked with large amounts of electricity may not be synonymous with a trip to the spa.  According to TASER’s website, however, the 5000 volts of electricity exerted by its product have a lower risk of danger than a 110 volt wall outlet.  TASER bases this conclusion on a taser’s pulsated current versus the continuous current found in a wall outlet.  Even at a pulsated rate, 37 seconds still seems like a long time to be subjected to 5000 volts of electricity – especially in the chest area.

A study recently released by the United States Department of Justice indicated that “there is currently no medical evidence that CEDs pose a significant health risk for induced cardiac dysrhythmia when deployed reasonably.” (emphasis added)  Interestingly enough, the study fails to define “reasonably.”  Regardless of how it is interpreted, the risk of injury is present. The question is what is TASER’s duty to warn?

Now, four years later, the Sixth Circuit Court of Appeals has answered our question.

In Mitchell v. City of Warren, et al., No. 14-2075 (6th Cir. 2015), the Sixth Circuit affirmed a Michigan federal court’s granting of summary judgment in favor of TASER in a case involving the tasing death of a 16-year old. The crux of the opinion centered around TASER’s duty (or lack thereof) to warn of the possibility of death. The Court acknowledged that studies have shown that death is a possibility after being struck with the taser. However, it found that studies showing a possibility of death are insufficient to establish a duty to warn.  Specifically, the Court stated:

The plaintiff must show that a manufacturer knew or should have known its product posed the particular risk at issue in case. . . . We have refused to rely on studies establishing that the product can possibly cause an injury to prove that a product probably caused the injury.

Likewise, in regards to the appellant’s arguments that TASER had a post-sale duty to warn, the Court reasoned, “If Taser had no such duty to warn based on the pre-sale information available, it could not be liable if later studies suggested safer ways to design and market its products.” Based on the lack of evidence in the record that the risk of death was no more than a possibility, the Court held that TASER had no duty to warn of such a risk.

So there you have it. At least according to the Sixth Circuit, TASER has no duty to warn of the possibility of death.

Before Trump, There Was a Lawyer Turned CEO Named Willkie


For better or worse, Donald Trump virtually controls the conversation surrounding the 2016 United States presidential election. He has offended. He has inspired. He has tweeted. He is unapologetic. But the thing that really sets him apart from the stereotypical presidential candidate is that, prior to entering the presidential race, he did not hold a political office. Rather, Trump’s chief occupation was corporate chief executive officer. As reported by The New York Times, “[o]nly once in American History has a major political party granted its prize to someone whose principal qualification was to have served as a corporate chief executive.” Apparently, the last time was in 1940, when Wendell Willke, the president of the Commonwealth and Southern, ran against President Franklin Roosevelt. The aspect of Willke’s background that caught our attention is that he was a lawyer who moved up the ranks to CEO be:

Born in the small town of Elwood, Ind., the well-read, bighearted, chain-smoking Willkie was a lawyer. Before his promotion to chief executive, he had been the company’s counsel. Until 1939, he had been a registered Democrat; he changed his party affiliation without fanfare. After Willkie made known his intention to run for president, James E. Watson, a Republican and former United States senator from Indiana, warned him that it would be difficult for a party switcher to be nominated.

Willke did not win the election, and his national political career was short-lived. CEO’s have typically not been nominated by either of the major political parties since, with a few well-known exceptions:

Since then, the two major parties have seldom sought out C.E.O.s for the White House. Some political consultants tried and failed to draft Lee Iacocca to run for president as a Democrat, on the heels of his best-selling autobiography, which described his success in reviving the Chrysler Corporation. In February 1992, the businessman H. Ross Perot pledged on the CNN program “Larry King Live” to attack the national deficit if he ran as an independent candidate, saying, “My strength is creating jobs and fixing things.” A Gallup poll that June found Mr. Perot running ahead of the major party candidates, George H. W. Bush and Bill Clinton. That November, after closing down (he later said he feared political “dirty tricks”) and then resuming his campaign, Mr. Perot won 19 percent of the popular vote. More recently, in 2012, Republicans nominated Mitt Romney, a founder and C.E.O. of Bain Capital who had also served as governor of Massachusetts.

Like Willke, Trump is a colorful chief executive; however, Trump is not a lawyer.  \That’s not to say that Trump is a stranger to the civil justice system. According to Fortune, Trump “has filed many, many lawsuits over the years.”  Trump apparently filed a lawsuit in the 1980’s against the Julius and Edmond Trump for misappropriating his last name for their business titled the Trump Group.  Trump apparently sued his ex-wife Ivana, “accusing her of fraud and of breaking an agreement not to talk about their relationship.” Trump was apparently awarded $5 million in his lawsuit against a former Miss USA pageant contestant who “claimed that the entire contest was rigged.”  And, of course, most recently Trump filed suit against Univision, seeking $500 million following Univision’s decision to drop coverage of Miss USA following comments by Trump regarding Mexican immigrants. These are just some of the lawsuits in which Trump has been involved.  Additional lawsuits involving Trump are covered here and here.

Friday Links


So, above, you’ll find the cover of Marc Spector: Moon Knight #17, published way, way back in 1990. “No matter what the jury decides – the secret empire demands death!” That statement seems to suggest that the outcome of the trial is irrelevant. What kind of criminal justice system is Moon Knight facing, anyway? Here’s the rather confusing summary of the issue from Comicvine:

Marc’s trial begins. Meanwhile, Marlene and Frenchie are trying to escape the mercenaries they mistakenly thought would be able to help them free Marc. They bring out the innocent victims of Raposa’s rise to power, and force Marc to look upon them, much to his dismay. Back in New York, Jeff has decided to use Moon Knight’s costume and gadgets in his absence to follow in his father’s footsteps and perform some break and enters. He accidentally stumbles upon a Secret Empire meeting and is almost killed by their security patrol. He manages to escape but is caught on camera in the process. While Marc wonders what his father would think of him right now, Marlene and Frenchie are planning their rescue from a nearby hotel room. Meanwhile, Carmilla takes the stand and Marc notices that she hesitates when asked if her husband had a weapon when he was shot. This makes Marc realise there might be more to the story. The council finds Marc guilty and he is sentenced to hang in 3 days time. Marc’s cellmates are planning their escape, and even though he originally declined their offer to join them, he has now changed his mind.

You know, it’s not easy finding these legally themed comic book covers after doing this for five and a half years.

Don’t forget! You can register for the Halloween CLE planned by our editor, Jim Dedman, by going here!

Our favorite tweet of late is an older one, from June, but it is simply perfect in its sentiment: