California Federal Magistrate Stresses Proportionality Requirement Under New Federal Rule 26

As we have previously reported here and here, the Federal Rules of Civil Procedure have recently changed. One of the major changes to the rules is the new definition of scope of discovery under Rule 26:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any  party’s claim or defense and proportional to the  needs of the case, considering the importance of  the issues at stake in the action, the amount in controversy, the parties’ relative access to  relevant information, the parties’ resources, the  importance of the discovery in resolving the  issues, and whether the burden or expense of the  proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

In her June 9, 2016 order in the FTC v. DirecTV, Inc., U.S. Magistrate Judge Maria Elena-James stressed the importance of the new proportionality requirement. The following is a summary of the issue in dispute. DirecTV asked for all consumer complaints received by the FTC pertaining to ten different companies, and the FTC challenged the scope of the request. The parties were ordered to meet and confer regarding the scope of the request. Following negotiations, DirecTV limited its request to three of its competitors, but it still requested all complaints. A query run by the FTC showed that “all complaints” pertaining to the three competitors included over 200,000 complaints, and the FTC again pushed back on the scope of the request and proposed that random sampling of the complaints be conducted to determine whether they are relevant. Judge Elena-James concluded as follows:

Having reviewed the parties’ positions, the Court finds the FTC’s sampling proposal more closely comports with Rule 26’s demand for proportionality. Rule 26 provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Factors to consider include “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. Under Rule 26, “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed. R. Civ. P. 26 advisory committee notes (2015 amendments). Thus, there is “a shared responsibility on all the parties to consider the factors bearing on proportionality before propounding discovery requests, issuing responses and objections, or raising discovery disputes before the courts.” Salazar v. McDonald’s Corp., 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 2016); Goes Int’l, AB v. Dodur Ltd., 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016) (citing advisory committee notes for proposition that parties share a “collective responsibility” to consider proportionality and requiring that “[b]oth parties . . . tailor their efforts to the needs of th[e] case”).

She ultimately agreed with the FTC that sampling was appropriate as “the relevance of these materials is largely speculative and a random sample therefore gives DIRECTV what it seeks through these Requests for Production while rendering the FTC’s burden reasonably proportional to the materials’ purported evidentiary value.”

Goya Accused Of The Old Octopus Bait and Switch

According to a report from Business Insider, a lawsuit has been filed in California against Goya Foods, Inc., the largest Hispanic-owned U.S. food company, alleging that the company has been selling canned octopus products that actually contain canned squid. Apparently, independent DNA testing has confirmed the alleged cephalopod bait and switch. The lawsuit was filed by Plaintiff Luis Diego Zapata Fonseca on behalf of purchasers of Goya canned octopus in garlic sauce, hot sauce, pickled sauce, or olive oil, and seeks $5 million in damages.

We here at Abnormal Use do not know what is more surprising, that there is a market for canned octopus or that the suit was filed in the first place. We have eaten our fair share of canned food in our day and take no issue with the practice. However, we can’t imagine a world where octopus-in-a-can is acceptable. If there were ever a product we would assume should be served fresh, octopus would be it. Tentacles just don’t sound like they would take well to preservation. But, what do we know?

In any event, we acknowledge that it is probably deceptive to sell one animal product as another. Nonetheless, how much damage have consumers really sustained in this case? We are sure the most sophisticated palate could distinguish between octopus and squid, but we have serious doubts as to whether those people are actually buying canned octopus bathed in garlic sauce, hot sauce, pickled sauce, or olive oil. Our guess is that the average canned-octopus buyer can’t tell the difference between octopus and squid tentacles. In fact, the plaintiff in the lawsuit seems to acknowledge the same. In the complaint, Fonseca alleges that Goya “intentionally replaced the octopus in its octopus products with squid as a cheap substitute to save money because it knew an ordinary consumer would have trouble distinguishing the difference.” We are certain that we would fall squarely within that category.

As with many class actions, we predict this class action will be resolved with all class members receiving a voucher for a free, delicious canned octopus product of their choosing. Hopefully, they will then have an existential awakening about why they are eating garlic marinated octopus out of a can in the first place.

Some Class Members Unhappy About Uber Class Action Settlement

Uber Settlement

We have previously covered developments in the Uber class action saga here and here. A settlement of one of the class actions has reportedly now been proposed, but it still must be approved by a San Francisco federal judge. The settlement provides a $100 million payout to drivers, which equates to a payout per driver of between twelve dollars to a few thousand dollars, depending on how many miles they drove. However, the deal is apparently contingent upon Uber’s company valuation increasing by 150 percent. There are also non-monetary provisions included in the settlement which are set to expire in two years (but they can be extended if Uber so decides). According to an industry blogger, the following is a sampling of some of the non-monetary provisions of the settlement:

  • Uber will publish a deactivation policy for the first time;
  • There will be an appeal process following deactivation;
  • Drivers can post signs for tips in their vehicles; and
  • There is no more deactivation for low acceptance rates.

The blogger also expressed discontent with the settlement, and his post apparently received over 100 comments.  A hearing on the proposed settlement is set for June, and it will be interesting to see whether the settlement is approved.

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.

Revolutionary Hot Coffee Lawsuits Filed in California

According to a report from ABC-30 (Fresno, CA), two Fresno women have recently filed suit against McDonald’s alleging that they sustained burns caused by hot coffee. There is nothing unique or interesting about two new hot coffee suits as they have been commonplace in the 20+ years since the infamous jury verdict in Liebeck v. McDonald’s. What is interesting, however, is that Plaintiffs’ counsel and ABC-30 seem to think they made some newfound discovery as to the reason these suits keep popping up. As reported by ABC-30:

Wagner says hotter coffee stays fresh longer, so McDonald’s usually chooses to keep it too hot — saving more than $1 million a day at franchises across the country. Legal analyst Jeff Hammerschmidt says that savings may be more valuable than customer safety. ‘It appears McDonald’s has made a business decision to sell the coffee hotter to be able to make more profit and they continue to make more profit even if they’re paying settlements,” he said.

In other words, McDonald’s serves hot coffee because it is good for business. Talk about a newsflash.

We jest at this recent epiphany about the association between hot coffee and higher profits, but the argument is clearly nothing new. The argument was pivotal in the Liebeck  trial and the jury based its $2.7 million punitive damages award on McDonald’s two day revenue from hot coffee sales. In any event, this “corporate greed” theory ignores the simple point made here at Abnormal Use many times – coffee is served hot because people like it that way. In discussing a hot coffee suit filed against Chick-Fil-A back in 2011, we had this to say about the hot coffee-sales comparison:

Back in 1994, Plaintiff’s expert Dr. Charles Baxter opined during the Liebeck trial that the optimal temperature to serve coffee was between 155 and 160 degrees. Defense expert Dr. Turner Osler indicated that coffee served at a temperature as low as 130 degrees could result in burns similar to those sustained by Ms. Liebeck. Further, Reed Morgan, Ms. Liebeck’s counsel, theorized that any coffee served over 140 degrees was “unreasonably dangerous.” If this testimony from the Liebeck trial is true, why do top fast food chains continue to serve an allegedly “dangerous product?” Either restaurants have a diabolical agenda to harm their patrons or they have recognized that people enjoy their coffee piping hot.

The ABC affiliate’s study demonstrates that the Liebeck case did little, if anything, to alter the manner in which fast food restaurants serve coffee. Further, it reveals that the conduct of McDonald’s in the early 1990s conformed to industry standards – both then and now. Critics of the restaurant chain – and those who attempt to use the Liebeck case to advance the agenda of the Plaintiffs’ bar – simply fail to acknowledge the fact that coffee, by its very nature, is meant to be served hot. No one wants to consume a lukewarm cup of sub-140 degree coffee. Restaurants recognize this fact, as do consumers of coffee. Why can’t the trial bar? If Mr. Morgan honestly believes that any coffee served at a temperature greater than 140 degrees is “unreasonably dangerous,” then he essentially argues that coffee should be taken off of restaurant menus. Starbucks did not become a morning staple because of its iced coffee selections.

Does McDonald’s serve hot coffee because it is concerned about its bottom line?  Sure, it does, but what business doesn’t act in ways to maximize profits?  McDonald’s, Starbucks, or any other coffee-selling establishment serves coffee hot because the consumer demands it.  And, for this reason, we have questioned whether coffee can be construed as “unreasonably dangerous” in most situations.

On an interesting note, ABC-30 measured the serving temperature at the McDonald’s at issue in the recent lawsuits and found the temperature to be 153 degrees – less than the optimal serving temperature prescribed by the plaintiff’s expert in the Liebeck case. The coffee in ABC-30‘s break room? It was served at 167.5 degrees.

Mozzarella v. McDonald’s: The Latest Chapter in the Restaurant’s Litigation Saga


We here at Abnormal Use have written much about McDonald’s and its history with absurd lawsuits. Of course, much of the discourse centered around the infamous Stella Liebeck hot coffee case and its progeny. As much as we have downplayed its significance, we must admit that the most recent suit filed against McDonald’s makes the Liebeck case look like Marbury v. Madison. According to a report from, a California man has filed a class action lawsuit against the fast food chain seeking $5 million in damages over purportedly defective mozzarella sticks. Kind of makes burns from a cup of hot coffee sound like child’s play.

So how was the man (or the proposed class) injured by the McDonald’s mozzarella sticks you ask? They weren’t. At least not in a way that necessitated medical attention. The plaintiff, Chris Howe, takes issue with McDonald’s claims that the sticks are “100% real cheese” and “real mozzarella.” Specifically, Howe alleges:

The sticks are filled with a substance that is composed (in part) of starch, in violation of the federal standards of identity for ‘mozzarella’ cheese, and contrary to reasonable consumers’ expectations regarding the meaning of the term ‘mozzarella.’

Howe believes McDonald’s cut costs by using a starch filler to comprise 3.76 percent of the “cheese,” and, thus, has engaged in deceptive practices. For the record, McDonald’s denies the allegations, stating that the mozzarella sticks are made with “100% low moisture part skim mozzarella cheese.” Whatever that means.

Regardless of the genetic make-up of the McDonald’s mozzarella sticks, the real question is whether anyone can actually be deceived by their contents. Last we checked, the mozzarella sticks are a new item made a part of the “2 for $2” menu. In layman’s terms, a customer can get mozzarella sticks and a double cheeseburger for $2. Federal standards for identifying “mozzarella” aside, don’t expect the finest organic, farm-to-table ingredients in dollar cheese sticks. And, if you really think McDonald’s is an appropriate destination to satisfy for mozzarella craving, don’t expect anyone to fork over $5 million when they don’t live up to your expectations.

Dismissal Of Erection-Causing Motorcycle Lawsuit Affirmed On Appeal

When men reach a certain age, they purchase sports cars or motorcycles to make them feel younger. The “mid-life crisis,” if you will.  According to the allegations in a recent lawsuit against BMW, this phenomenon took an entirely new angle for one California man.

As reported by The Marin Independent Journal, a California appellate court affirmed the dismissal of a 2012 lawsuit filed against BMW North American and Corbin-Pacific Inc., a manufacturer of motorcycle seats. In the suit, Henry Wolf alleged that he suffered from a multi-day erection after riding his 1993 BMW motorcycle for two hours allegedly due to vibrations stemming from the “ridge-like” seat. The suit contained product liability, negligence, and negligent infliction of emotional distress causes of action. None of the claims were properly before the court, apparently. The trial court previously found in favor of BMW and Corbin-Pacific due a lack of evidence supporting Wolfe’s claims. Likewise, the appellate court found that the appeal “fails to comply with the rules of appellate procedure” and “contains no intelligible argument.” As a result, the dismissal was affirmed and Wolfe was ordered to pay the defendants’ costs on appeal.

We don’t know what to make of the merits of this case. This is the first we have heard about a motorcycle inducing a prolonged erection. At the trial level, Wolfe’s urologist, Dr Jack McAninch, did, in fact, testify that Wolfe suffered from priapism, a condition involving a persistent erection. Likewise, Wolfe also offered testimony from a neurologist, Dr Jonathan Rutchik, that it was possible for vibrations from a motorcycle to cause priapism (this testimony was apparently excluded).

There is certainly an infinite number of jokes we could make about the relationship between motorcycles and the male anatomy. But, hey, we are professionals.

Exploding E-Cigarettes: The Combination Of Batteries And Heat Has Expected Result

Recently, electronic cigarettes, battery-powered vaporizers which simulate the feeling of smoking without burning tobacco, have taken the tobacco industry by storm. While they claim to be a new, “safer” alternative to traditional cigarettes, the benefits and health risks of e-cigarettes remain uncertain. Perhaps the more immediate safety risk, however, is not with the effects of inhaling vaporized nicotine, but rather, with placing a battery-powered device in one’s mouth. According to a couple of California men, such a risk resulted in their e-cigarettes exploding.

As reported by The Bakersfield Californian, Vincent Garza has filed suit against e-cigarette manufacturer, Flawless Vapes and Supplies, LLC, as well the stores at which he purchased the e-cigarette and the battery charger, claiming that he suffered severe injuries to his mouth, tongue and finger as a result of an exploding e-cigarette. Gregory Phillips is also filing suit because his e-cigarette allegedly exploded in his pocket, causing severe injuries to his leg. The suits allege that the manufacturing and design of the e-cigarettes does not take the appropriate measures to ensure that the devices are safe.

Obviously, no consumer product should be placed on the market if it explodes when operated properly. Nonetheless, we here at Abnormal Use can’t say we are even remotely surprised by these allegations. E-cigarettes typically have a heating element used to atomize the “e-liquid” solution to create the vapor. Heat + battery + mouth would seem to equate to a dangerous proposition. Even if e-cigarettes are “safer” on the lungs than traditional cigarettes, it seems as if they are just replacing one safety hazard with another. To be fair, we are not aware of any evidence that exploding e-cigarettes are actually a significant problem. Millions of e-cigarettes have been sold, and these lawsuits represent a statistically insignificant minority, numerically speaking. Our point is simply that the risk should have been anticipated. In the grand scheme of things, we suppose that risk, when compared to the known risks of smoking traditional cigarettes, is worth the trade off.

U.S. Soccer Announces New Safety Initiatives: Just How Effective Are They?

In response to a class-action lawsuit filed last year against FIFA, U.S. Soccer, and the American Youth Soccer Organization, the United States Soccer Federation has announced a number of new safety policies to address head injuries in the game of soccer. As reported by The New York Times, the new regulations, which will be mandatory for U.S. youth national teams and recommended for other soccer associations beyond U.S. Soccer’s control, include the prohibition of players age 10 and younger from heading the ball. In addition, substitution rules will be modified (the specifics have not yet been announced) to help monitor players suspected of sustaining a head injury in the field of play. The announcement ends the suit filed last year in federal court in California by a group of players and parents concerned with the way soccer leagues monitor head injuries. The plaintiffs sought rule changes and not financial damages.

In this regard, we suppose the plaintiffs should proclaim, “Mission accomplished.”

We here at Abnormal Use fully support safety initiatives in sports. While we understand and support the intent of these new initiatives, we wonder how effective they will be. In regard to the unspecified new substitution rules, we again appreciate the intent. Assuming the new rule allows a temporary substitution while a team monitors a suspected head injury, the rule would theoretically encourage teams to pull the injured player off the field without playing a man down. Makes sense. But why should a head injury be treated differently than any other injury in this regard? Who monitors whether a player has a suspected head injury? What is to keep a player who injured a knee, but can’t leave the field without using one of the team’s three substitutions or forcing the team to play a man down, from saying he also hit his head and, thus, alleviating his team from the predicament? Maybe we are over-thinking this (as usual), but it seems a rule like this could cause more difficulty than good.

The bigger hole with substitution rule (again, assuming it is for a temporary substitution), though, is that it doesn’t address a fundamental principle in all sports – players want to be on the field. Players at all levels, in all sports, often hide or minimize their injuries so they can continue playing. Sure, soccer players are aware of the current substitution rules and don’t want to put their teams at a disadvantage, but what they really want is to stay on the field regardless of whether there is or is not a sub. For this reason, we hope that the new rules have some measure of monitoring for suspected injuries or else they might not have much of an effect.

Prohibiting headers by young players is a noble idea. On the surface, what better way to limit head injuries than keeping kids from purposely striking balls with their heads? The prohibition, of course, would also seem to limit the number of mid-air collisions occurring between players leaping to head balls. This much is good. It ignores the fact, however, that soccer remains a contact sport. A contact sport where players do not wear protective head gear. According to the complaint in this matter, nearly 50,000 high school soccer players sustained concussions in 2010. That number is greater than the combined total of players in baseball, basketball, softball, and wrestling. We assume that only a percentage of those numbers were injuries sustained in the course of a header. Rather than simply forbidding the practice for youth (which will become an important part of the game as they progress through the ranks), why not consider head gear which will aid in all aspects of the game?

Ask the NFL how that has worked out.

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 . . . .