More Monkey Business: Lawsuit Over Monkey’s Property Rights in Selfie

We recently reported on a New York case where the judge begrudgingly held that monkeys are not people in the eyes of the law. As you might imagine, PETA disagrees, and it has filed a lawsuit on behalf of a monkey named Naruto from Indonesia. The lawsuit, filed in federal court in California, alleges that Naruto has property rights in a selfie that he took of himself in 2011, which subsequently went viral. We’d post a copy of the photo, but we certainly don’t want Naruto suing us.

One of the defendants in the case is the owner of the camera that Naruto used to take the camera selfie. The lawsuit alleges that he has improperly reproduced and distributed the photo for which Naruto owns the copyright. According to the complaint:

While the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C. § 101 et seq. , is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto. Naruto should be afforded the protection of a claim of ownership, and the right to recover damages and other relief for copyright infringement, as asserted on his be half by the Next Friends.
You may be asking what relief Naruto seeks as compensation. Bananas? Apples? Nope, according to PETA, what Naruto wants and needs is money. But, of course, Naruto is not a greedy monkey, so he doesn’t want the money for himself. The complaint requests that the disgorgement of profits from the prior sales and proceeds from future sales be given PETA to do with as it the pleases.
Attorneys, in light of these events, you’d best prepare your clients to enforce their property rights. You know the fox that was chased off that old abandoned farmland in order to clear the way for a McMansion neighborhood? Squatter’s rights. That bird with a nest in the tree that was cut down? Real property damage. The whale whose song was recorded underwater without permission? Copyright infringement. Here we go . . . .

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.

Costco Shrimp Trade: Not Just Another Blood Diamond

Costco, America’s favorite wholesale warehouse, was sued last week in California over its shrimp merchandise. Interestingly, the suit has nothing to do with the actual quality of the shrimp. Rather, the plaintiffs have some serious beef with how the shrimp were procured. According to a report from Bloomberg, Costco is being accused of selling shrimp farmed through slave labor and human trafficking in Thailand. According to the complaint, Costco purchases Thai shrimp, which are fed a diet of cheap fish caught at sea through unpaid, forced labor, and, thus, such purchases help fuel the inhumane industry. The lawsuit, which seeks class status to represent all California customers of Costco shrimp, alleges that the retail giant misleads consumers into believing that it does not tolerate human trafficking and slavery in its supply chain. The plaintiffs seek to compensate the purchasers of the shrimp products and an injunction preventing it from selling the shrimp and requiring Costco to disclose those products with a tainted supply chain.  The case is Sud v. Costco Wholesale Corp., 15-cv-03783, (N.D.Ca. 2015).

Costco has responded that these allegations have been well-publicized for over a year. A previous investigation by Britain’s Guardian newspaper found that Costco supplier, Charoen Pokphand (CP) Foods, was buying fishmeal to feed its shrimp from some suppliers that owned, operated, or bought from fishing boats manned with slaves. CP Foods has since tightened up its regulations. Likewise, Costco has been working with the Thai government to shore up the supply chain and has offered dissatisfied customers full refunds.

We here at Abnormal Use certainly do not condone slavery or human trafficking.  It sounds like Costco doesn’t either (at least now).  Notwithstanding this lawsuit, it at least appears that steps are now being taken to right the ship.

What Costco knew about the tainted supply chain and when they knew it, we do not know. Certainly, those two questions would go along away to determining the merit of this suit. Nonetheless, we question what this proposed class of Costco customers really seeks to gain out of all of this? Refunds? Costco has already agreed to that.  Cleaning up the tainted supply chain?  Costco is already working on that as well. At this point, the only people who have really been damaged are those individuals forced into slavery in the first place.  Unfortunately, they are the only ones who won’t profit from this lawsuit.

Juror’s Outside Research Leads to New Trial in Tylenol Death Case

Reportedly, California federal judge John A. Kronstadt has signed an order setting aside a November Jury verdict in favor of Defendant McNeil-PPC Inc. in light of some funny business by a member of the jury.  The substance of the Plaintiff’s claim was as follows:

Kindra Robertson filed the suit against McNeil in 2011 after her 11-year-old son Tyler died of sepsis caused by pneumonia several days after ingesting Children’s Tylenol from a batch allegedly included in a voluntary recall in September 2009, according to the complaint. Robertson had the bottle tested for contamination, which was found to be positive for bacteria.


The juror in question “initially said in a declaration presented in support of the motion for a new trial that she told other jurors that the Tylenol given to Robertson’s son hadn’t been recalled.” Apparently, this research “helped change [the juror’s] vote to the defense.” The Judge was apparently concerned because the verdict needed to be unanimous, and thus, the juror at issue being influenced by the verdict was important on its own.  There was also concern that the juror communicating this information to other jurors may have influenced the other jurors to whom the juror communicated the information.

It is fairly common knowledge at this point that juror’s perform outside research despite being instructed by the Court not to do so.  Though it is all too familiar, it remains improper, and when it influences the outcome of the trial, it may give everyone the opportunity to try the case again in front of a new group of jurors, as it did in this case.

(Hat Tip: Law360).

Slingbox Sued For Slinging Ads To Customers

If there’s anything this particular author hates, it’s advertisements. They are everywhere these days . . . from Taxi Cabs to Subway Turnstiles, you just can’t escape them. It’s gotten so crazy that we’ve even seen a local DUI defense law firm place ads on an “over 21″ wrist band needed to buy beer at a minor league hockey game. As annoying as the ads may be, it’s just part of modern life. Or is it? Some customers of Slingbox who have been bombarded with new adds aren’t taking it lying down and have filed a class action lawsuit against the Sling Media. If you don’t recall, Sling Media is the maker of the Slingbox, which takes customers’ home TV signal that comes from a cable box and “slings” it to a phone, tablet, or computer anywhere in the world. In a nutshell, it’s like being able to take your home TV and remote with you anywhere in the world. Slingbox is a slick device, but it comes with a hefty price tag north of $200.

According to the lawsuit, in March of this year, Slingbox devices started embedding advertising in media streamed to their mobile devices. So, now, Slingbox customers are forced to watch the embedded ads from Slingbox in addition to whatever ads are being shown through their cable provider. The plaintiffs allege that they never consented to this additional advertising. They claim that Sling Media failed to disclose that the use of the product would be contingent upon and subject to this advertising. According to the complaint, “Slingbox has perpetuated a massive ‘bait and switch’ upon thousands of unsuspecting consumers, each of whom spent as much as $300 or more for these products, but who now need to watch the defendant’s ads to use their devices as promised.”

Of course, the plaintiffs are seeking class action certification in California district court. They have alleged that the ads are misleading and violate business California consumer protection laws and constitute unfair competition or deceptive business practices. As you might expect, the Plaintiffs are not just seeking an injunction to stop the ads. They also seek restitution and disgorgement of all profits garnered from the allegedly unfair or misleading business practices. We’ll keep an eye on this one.

The Curious Case of the Renaissance Fair Juggler

According to a report out of the San Gabriel Valley Tribune, a lawsuit has been filed against the County of Los Angeles and Geoffrey Marsh, a juggler, alleging that a minor child was seriously injured when hit by an object tossed by the juggler at a renaissance festival.  The suit, filed by Felipe Arambula on behalf of himself and his minor child, alleges that the county failed to properly supervise activities at the fair, resulting in jugglers juggling around children with no safety measures.  Accordingly, the county’s conduct was allegedly “inherently dangerous and created a peculiar risk, nuisance and trap.”  Aside from the child’s alleged injuries, Arambula allegedly suffered stress from seeing his child struck by the wayward juggler. Here at Abnormal Use, there are only two things that we fear: Renaissance festivals.  And, jugglers.  Call us crazy, but there is just something about 15th Century cosplay and people rotating multiple objects in the air that gives us the creeps.  All fears aside, a lawsuit involving jugglers and a Renaissance festival  has us (cautiously) intrigued.

Even though we may have an unnatural fear of jugglers, we must admit that we have never thought about juggling as a negligent act. Reading between the lines from the report, it appears the plaintiffs’ theory of liability against the juggler is that he was negligent by juggling in close vicinity of children.  What is unknown is whether the juggler is a professional or just some random costumed fair attendee trying to immerse himself into the period.  One would think that a professional might not need the same spacing to juggle as an amateur.  On the other hand, is there a heightened standard of care for a professional juggler compared to that of the amateur juggler? What exactly is the reasonable and prudent juggler?  Juggling in and of itself is not really a specialized act.  Anyone with access to YouTube can learn to juggle on a basic level.  But, certainly there is a difference between juggling chain saws and juggling tennis balls.   Perhaps, the renaissance common law will offer some guidance.

Nonetheless, what is truly interesting about this lawsuit is the allegation that juggling is “inherently dangerous” and created a “trap.”  We despise jugglers much more than the average person, but we question how juggling is dangerous to anyone other than the juggler.  We recognize that an argument can be made that juggling must be inherently dangerous to others because the child was injured.  But, shouldn’t there be a duty on others to keep a proper distance from jugglers?  Calling the juggling a “trap” only makes sense if the juggler backed the child into a corner such that he had no chance to avoid falling objects.  If the theory is that the crowds were so large that people had no room to stay clear of the juggler, then we question how the juggler would have had the capacity to juggle in the first place.

We are curious to see how this lawsuit turns out.  We are even more curious to see if the defendants raise attendance at a renaissance fair as a comparative negligence defense.

New Rockstar Lawsuit: Consuming Massive Amounts of Caffeine (x4) Allegedly Leads To Heart Attack

News from the energy drink litigation carousel: Rockstar Beverage Corporation has now been sued in Los Angeles Superior Court after a man allegedly suffered a heart attack after consuming one of its beverages. According to a report from NBC, Plaintiff Oscar Maldonado claims to have consumed up to four Rockstar beverages in a 6-8 hour period and subsequently developed shortness of breath and chest pains. Over the next three weeks, his symptoms worsened. He was eventually told by doctors that he was having a heart attack. Thereafter, he was taken in for an undisclosed surgical operation. Now, Maldonado alleges Rockstar is to blame.

The specific allegations against Rockstar are nothing new in the increasingly popular energy drink litigation. The suit alleges that Rockstar drinks rely on large quantities of caffeine, a “substance well-known for imposing health effects upon consumers” and “known to play a role in triggering adverse cardiac episodes.” In addition, Rockstar contains taurine, an ingredient that allegedly has a similar effect on the heart muscles. Of course, Maldonado alleges that if Rockstar had properly warned him of the risks, he would have never consumed the Rockstar drinks.

We here at Abnormal Use have often been critical of these energy drink suits. This one is nothing new. At this point, we assume (perhaps wrongly) that everyone on the planet understands that most energy drinks provide that desired boost of energy through the use of massive amounts of caffeine and that caffeine is not-exactly known as being heart-friendly. In fact, Maldonado seemingly admits as much in his complaint  As such, we question whether any warning would have actually had any affect on Maldonado’s consumption.

Given the admittedly known risks of consuming large amounts of caffeine, we wonder how Maldonado works around the fact that he consumed not one, but four, Rockstar drinks in a 6-8 hour period.  We assume his defense will be that while he knew that consuming large amounts of caffeine was hazardous, he did not know that consuming large amounts of caffeine (x4) could be hazardous enough to result in a heart attack. Alas, Rockstar definitely should have warned him of that, right? Sigh.

KFC May Face Potential Lawsuit For Allegedly Selling Man A Fried Rat

If you have been paying attention to social media of late, you have no doubt heard about Devorise Dixon and his KFC rat.  If you are slightly braver, then you have seen the pictures, which can be found here.  And if you don’t have short term memory loss, then you are skeptical.

Recently, Mr. Dixon took to social media, posting the image of the rat and claiming, “I went to KFC bought a 3-piece chicken tender! As I bit into a piece of it I noticed that it was very hard/tough and rubbery! Which sent this deep chill throughout my body. I looked down at it and saw that it was a cooked rat!!! Made me feel sick! Never new chicken was shaped like rat’s and had tails! Bought this from KFC on Wilmington and 120th in the shopping center! WATCH WHAT YOU EAT PEOPLE ARE SICK OUT THERE!” [His typos, not ours.]

As all viral horror stories go, the story exploded.  According to Mr. Dixon, he received a fried rat in his chicken fingers order from a KFC in Watts, California.  Additionally, Mr. Dixon has claimed that KFC apologized to him and that the manager admitted he was served a rat.  Mr. Dixon believes “IT’S TIME FOR A LAWYER!!!”  He also encourages people to “BESAFE DON’T EAT FAST FOOD !!!” KFC took to Facebook and stated that it was investigating the matter and at this time had no evidence to support Mr. Dixon’s claim.  Additionally, KFC claims it is aggressively trying to reach Mr. Dixon.

Immediately, skeptics took to debunking Mr. Dixon’s claim, including this image, the poster of whic believes that the whole thing is bogus.  Regardless of whether or not his claims are bogus, Mr. Dixon has catapulted into Internet fame.  We will always remember Anna Ayala, who you will remember more famously for alleging that she found a severed finger in her Wendy’s chili. While we wait for this story to develop, check out this list of the 10 fast food lawsuits.

Fitbit Faces New Lawsuit Over 67 Minutes of Sleep

As America has become more engulfed in the fitness craze, numerous products aimed at helping consumers with their new found healthy lifestyles have hit the marketplace. One such product is the Fitbit activity tracker, a wearable device that measures data such as steps walked, calories burned, and quality of sleep. Sounds like the perfect product for the health conscious consumer, right? According to a new class action filed in the Northern District of California, not so much.

Florida man James Brickman, as putative class representative, has filed suit against Fitbit, Inc., alleging that activity tracker’s sleep-tracking function does not work as advertised.  According to his complaint, Fitbit manufactures a number of devices, several of which contain the sleep-tracker function for an additional $30 charge.  As allegedly stated on the product packaging, the function of the sleep-tracker is to track hours slept, times woken up, and the quality of sleep of the Fitbit wearer. However, Brickman alleges that scientific research has revealed that the Fitbit consistently overestimates the amount of sleep by 67 minutes per night. Brickman “expressly disclaim[s]” any recovery for physical injury arising from the alleged misrepresentations. Nonetheless, he claims that the misrepresentations implicate serious public health concerns caused by thinking you are sleeping 67 minutes longer than you actually are. Brickman has asserted claims under California’s Unfair Competition Law, False Advertising Law, and the Consumer Legal Remedies Act. In addition, he alleges a violation of the Magnuson-Moss Warranty Act as well as common law claims for breach of express and implied warranties, fraud, negligent misrepresentation, and unjust enrichment.

Because we here at Abnormal Use have yet to buy into the fitness craze, we regretfully do not own a Fitbit device. If we did, we would expect it to work as advertised. Nonetheless, we do question how any alleged inaccuracies in the sleep-tracking function cause “serious public health concerns.”  We understand that a certain amount of sleep is a necessary component of a healthy lifestyle. However, the Fitbit’s alleged 67-minute misrepresentation as to the amount of sleep hardly seems like it would actually have an effect on one’s health. A person sleeps the amount a person sleeps regardless of how many minutes of sleep Fitbit represents to the person. We are not aware of any representations made by Fitbit that the product will actually make you sleep better or longer. The Fitbit just measures the amount of sleep (albeit allegedly incorrectly). Your sleep is your sleep. No Fitbit needed.

Call us old-fashioned, but is a sleep-tracker even necessary in the first place? People know how they feel when they wake up in the morning.  If you didn’t get enough sleep, you feel tired.  If you got enough sleep, you feel refreshed.  People don’t need a fitness tracker to tell them that.  Of course, they didn’t need to pay an extra $30 for it, either.

JC Penney “Phantom” Pricing Lawsuit

Get this: There is definitely a real class action lawsuit against JC Penney in federal court in California over purported “phantom discounts.”

The lawsuit accuses JC Penney of hiking retail prices on apparel and accessories to trick shoppers into believing they were receiving sizable discounts when the items were advertised as being on sale.  The long and short of it is that the when retailer would run a sale, they would allegedly markup the price of the item and then “discount” it back down to the same price it had been at for months. For example, the complaint alleges that for a sale they’d mark up a shirt that had been selling for $17.99 to $30 and then they’d sell it for 40 percent off . . . or $17.99. The class action lawsuit has been certified by the federal judge presiding over the case.

To be fair, JC Penney apparently tried to move to everyday low pricing in 2012.  Ironically,  executives billed the new pricing model as the end of “fake pricing.” Apparently the customers really wanted fake pricing because the everyday low pricing was a miserable failure and they quickly went back to a more traditional discounting model.  It does make you wonder, however, if any of these claims of phantom discounting claims occurred during the period that the retailer was switching between business models.

The Federal Trade Commission does actually have regulations governing this sort of thing.  16 C.F.R. 233.1 requires retailers to sell items at original prices for a “reasonable length of time” before discounting them.  Sort of makes you wonder how Jos. A. Bank continues its thing, but that’s a story for another day.