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.

According to reports, Apple finds itself the subject of a another lawsuit regarding its power adapters. Unlike the previously settled class action lawsuit which alleged that the MagSafe adapters were defectively designed and caused unnecessary fraying of the power cords, the latest suit alleges that the adapters actually cause physical harm to others. In the latest suit filed in California, Heather Henderson allegedly suffered second and third-degree burns after coming in contact with the adapter. Such burns, Henderson believes, could have been prevented had Apple placed an appropriate warning on the MagSafe adapter.

This suit arises out of an incident that happened earlier this year. Henderson’s husband was using his Apple laptop when Henderson fell asleep with her arm on top of the adapter for approximately 40 minutes. She woke up groggy, felt “itchy,” and went to bed.  The next morning she felt pain and discovered a “one-inch boil” on her arm.  Henderson believes the boil has resulted in a permanent scar.

From what we can gather from the reports, the interesting thing about this suit is that it is couched as a failure to warn case rather than one alleging that the adapter is excessively hot.  Henderson told San Diego’s ABC affiliate that she knew the adapter could get warm, but she “didn’t know exposure to [her] bare skin would mean a second- to third-degree burn.”  Moreover, Morris stated the following regarding the adapters:

It’s a huge problem.  It’s called MagSafe, but it’s not safe at all.  People are reporting burns and fires, and Apple knows this.

Henderson and Morris allege that burns such as those suffered by Henderson could have been prevented had Apple placed a warning label on the adapter.

We here at Abnormal Use are curious as to why Henderson appears to be focusing on the lack of warning labels on the adapter.  After all, she came into contact with the adapter accidentally while sleeping.  It is not like a more effective warning label would have saved the day.  Had Henderson alleged that the adapter heated to a temperature in excess of the normal in-use temperature of MagSafe adapters or other power adapters in the industry, then she likely would have a better case.  Our guess is that there must not be sufficient evidence to establish that the temperature of the adapter was abnormal or else Henderson would have proceeded on that theory.  When accidents happen and there is no legitimate means of recovery, failure to warn becomes the default.

See here for a prior post of ours on power adapter litigation.

Pay-per-view king and boxing champ Floyd “Money” Mayweather, Jr. is certainly a polarizing figure. He is 48-0 in his professional career and largely considered the best pound for pound boxer in the world. He is one of the highest-paid athletes in the world, and his last two fights shattered previous pay-per-view records. As such, he seemingly has more money than he knows what to do with. He doesn’t wear a pair of boxers or shoes more than once, he color coats his luxury cars to match his mansions, travels with a Duffle bag full of money, and keeps over $123 million in a single bank account (though surely that number has grown considerably after the Pacquiao fight). In 2013, Tim Keown wrote an amazing article for ESPN on Mayweather titled “The Last Great American Prizefighter,” which provides a more exhaustive look at Mayweather’s life. However, Mayweather also has a significant and well-documented history of violence outside of the ring, including a 2010 incident of domestic battery against Josie Harris, his former girlfriend. In 2011, Mayweather pleaded guilty to misdemeanor battery in order to avoid a felony battery charge and found himself sentenced to 90 days in jail. He was released in August of 2012, and the matter thereupon ended. That is, until April 2015, when during an interview with Katie Couric, he claimed that he never kicked, stomped, or beat Josie Harris, but that he did restrain a woman that was on drugs.

It seems that Ms. Harris does not agree with his characterization of events. According to CNN, on May 5, 2015, Ms. Harris filed a civil suit in California state court against Mayweather claiming defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. In her pleadings, Ms. Harris alleges Mayweather entered her home and began punching and kicking her as she slept on the couch. She also denies that she abused drugs and that it was not his purported attempts to restrain her that caused her injuries but rather the beating he inflicted. Apparently, she seeks $20 million dollars in the lawsuit. At this point, it may just be best for someone with Mayweather’s track record to put his money to good use and pay Ms. Harris.

We here at Abnormal Use are lovers of craft beer.  In fact, several years ago, we brought our love of craft beer to the blawgosphere and interviewed Adam Avery, President and Brewmaster of the Avery Brewing Company.  As Avery mentioned in the interview, craft beer punches so much flavor when compared to the likes of Bud, Coors, and Miller beers which are “fairly flavorless and carbonated.”  While MillerCoors and AB InBev, the major offenders of mass-produced beer, may never admit it, they know the flavor disparity is legitimate.  Need proof?  MillerCoors maintains a “craft and import division” which attempts to capitalize on the craft beer craze with  the introduction of beers such as Blue Moon, its so-called “artfully crafted” Belgian-Style Wheat .  Unfortunately for MillerCoors, the guise is up as the craft-ness of these beers is coming under fire. According to reports, a potential class action complaint was filed in California last week against MillerCoors alleging that the company violated numerous laws by claiming that Blue Moon is a craft beer.  The plaintiffs allege that Blue Moon is brewed in MillerCoors’ Colorado and North Carolina breweries, which produce other MillerCoors’ beers like Coors, Milwaukee’s Best, Miller High Life, Icehouse, and Olde English. As an alleged attempt to deceive consumers, the MillerCoors name is nowhere to be found on the Blue Moon bottle.  Further, the plaintiffs take issue with Blue Moon’s trademark phrase “artfully crafted,” which they allege misleads consumers into thinking they are buying a craft beer.  The plaintiffs seek an injunction to stop Miller Coors from marketing Blue Moon as an independent craft beer operation and monetary damages. While there is no legal standard defining “craft beer,” the Brewer’s Association, a trade group concerned with the promotion of craft beer and homebrewing, sets forth the following qualifications for craft beer:

• Fewer than 6 million barrels are produced annually;

• A non-craft brewer can only own up to 25 percentof the craft brewer; and

• The beer is to be made using only traditional or innovative brewing ingredients.

We here at Abnormal Use do not know exactly how Blue Moon fits into these qualifications (or, if the qualification will even stand up as a matter of law).  Nonetheless, we do find the Blue Moon-MillerCoors relationship suspicious.  Officially, Blue Moon is brewed by Blue Moon Brewing Company, an entity of Tenth and Blake Beer Company, the craft and import division of MillerCoors.  Whether MillerCoors owns more than 25 percent of Blue Moon Brewing, we do not know.  But, we do know that if Blue Moon is brewed in the same vicinity as the likes of Milwaukee’s Best, Icehouse, and Olde English, then it certainly doesn’t fit within our vision of a craft brew.

Regardless of how this lawsuit ends, we hope that beer drinkers continue to explore their options.  Don’t stop drinking Blue Moon because it is associated with MillerCoors.  Stop drinking Blue Moon because there are plenty of better options for a Belgian-Style Wheat beer.  In the alternative, if you find that Blue Moon is in fact “artfully crafted,” drink it in a brown paper bag just like its other MillerCoors cohorts.

Recently, the consumer protection unit of the Orange County (CA) District Attorney’s Office filed suit against Unilever, parent company of AXE, accusing the company of fudging the packaging of its male grooming products.  According to a report out of The Orange County Register, prosecutors have accused the company of using “false bottoms, false sidewalls, false lids or false coverings” which “serve no legitimate purpose and mislead consumers as to the amount of product contained in the containers.”  The report is silent on whether prosecutors obtained the desired AXE effect when “testing” out the company’s body sprays.

Interestingly, prosecutors were quick to work out a tentative deal with Unilever, submitting a proposed settlement to the court on the day suit was filed.  Pending court approval, Unilever has agreed to cease using the “misleading” packaging and pay $750,000 in civil penalties to Orange County, plus $24,000 to cover the costs of the DA investigation.  In addition, Unilever will buy Sunday inserts with $3 coupons in several dozen California newspapers.  In other words, the County gets three quarters of a million dollars.  The “deceived” consumer gets the opportunity to buy another AXE product at a $3 discount.  So, it sounds like “everyone”, i.e. Orange County, comes out winners.

Aside from the financial windfall for Orange County, we here at Abnormal Use are curious as to the point of this lawsuit.  There is nothing contained in the report indicating that Unilever misled consumers as to the actually quantity of the product contained in the package.  Rather, this case only suggests that the product packaging was essentially larger than necessary and, thus, deceived consumers.  Apparently, the DA has never purchased a bag of potato chips.  Right or wrong, we are curious as to whether the AXE packaging deviated in any respect from common practice in the industry.  We are also curious as to the size differential, if any, between the packaging of AXE and a competitor’s product of the same stated quantity.  For AXE’s competitor’s sake, we hope those AXE packages were substantially larger.  If not, we know where the DA will be banking its payroll for the next quarter.

As we discussed on Monday, customers may be getting more than a cheap buzz from their inexpensive bottles of wine.  A class action lawsuit filed in California alleges that dozens of low-end California wines have dangerously high levels of arsenic in them.  Arsenic is a carcinogen that, in high doses, can lead to serious health problems.  The defendants include Sutter Homes and Trader Joes’s.

So what exactly are the plaintiff’s alleging in this case?  The complaint alleges that “just a glass or two of these arsenic contaminated wines a day over time could result in dangerous toxicity to the consumer.” Yet the plaintiffs do not assert any causes of action or allegations that anyone has suffered any actual injury from the drinking these “contaminated” wines.  Rather, the complaint asserts causes of action for violations California’s consumer protection laws, including unfair business practices, misleading and deceptive advertising, and the consumer legal remedies act. The suit seeks injunctive relief, civil penalties, disgorgement and damages, and certification of a class of California consumers who purchased the named wines since 2011.

A spokes person for the wine industry has issued a statement in response to the lawsuit and believes that the suit is meritless.  Wine Institute vice president Nancy Light told Wine Spectator, “[t]here are no [EPA] limits [on Arsenic] for other foods and beverages—including wine—because they’re not consumed at the same level as water and not deemed to be a risk. There is no research that shows that the amount of arsenic in wine poses any health risks to consumers.”

So is your cheap wine going to kill you? Seems unlikely. Do the Plaintiff’s have case related to misleading advertising and other unfair business practice? Maybe. A complete list of the wines at issue in this case can be found here

According to a report from CBS News, a proposed class action lawsuit has been filed in California against a number of America’s top-selling wine producers alleging that some of their wines contain dangerously high levels of arsenic.  Specifically, they allege that certain wines contain up to four and five times the amount of arsenic the Environmental Protection Agency allows for drinking water.  There are 31 different wine brand names listed in the suit, including, among others, Franzia, Menage a Trois, Sutter Home, Simply Naked, and Beringer.

The lawsuit comes on the heels of a study by Kevin Hicks of BeverageGrades, a wine analyzing laboratory. Because there are few federal regulations on the labeling requirements for wine, Hicks decided to see exactly what makes up some of our finest wines.  After testing 1,300 bottles of wine, he made a shocking discovery.  According to Hicks, “The lower the price of wine on a per-liter basis, the higher the amount of arsenic.”  We here at Abnormal Use would have never anticipated such a revelation.

We know that hearing the word “arsenic” will always cause people to panic.  However, we do not know whether the allegations contained in this new suit, if true, are a cause for any real concern. The effects of arsenic are seen upon high levels of consumption over extended periods of time. Water is the only beverage which the EPA has set arsenic limits because, presumably, people drink more water over their lifetimes than other beverages like wine. The highest arsenic levels cited in the lawsuit are less than half of the limits set by other countries such as Canada.

So, what does all this mean?  We have no idea.  What we do know is that there should be no surprise that wine from a box may not be as organic as you may like.  We here at Abnormal Use were only surprised that our cheap wine favorites, Boone’s Farm and Mad Dog, didn’t make the list.

With the 2015 Grammy’s now behind us, another battle of performers set to take the stage this week…the legal stage that is.  Trial is scheduled to start soon before U.S. District Judge John A Kronstadt in the U.S. District Court for the Central District of California to determine whether Robin Thicke’s 2013 hit, “Blurred Lines,” infringed upon Marvin Gaye’s 1977 “Got To Give It Up.”  Thicke and his producers, Pharrell Williams and Clifford Harris, Jr., have been in a legal dispute with Gaye’s children since filing a lawsuit in August 2013  seeking a declaratory judgement that “Blurred Lines” did not unlawfully infringe “Got To Give It Up.”  In their complaint, the plaintiffs indicated the Gaye defendants had claimed that the songs “Blurred Lines” and “Got To Give It Up” had the same “feel” or “sound.”  However, Thicke’s complaint insisted being “reminiscent of a ‘sound’ is not copyright infringement . . .” and, though “Blurred Lines” was intended to evoke an era of music (read: undeniably Gaye’s era of music), that the Gaye defendants are in essence “claiming ownership to an entire genre” of music.

The Gaye family struck back with a countersuit alleging not only that Thicke blatantly copied a”constellation of distinctive and  significant compositional elements of Marvin Gaye’s classic #1 song, ‘Got to Give it Up,'” but also had a “Marvin Gaye Fixation” which resulted in him copying other Gaye songs including, “After the Dance.”  Accordingly, a second copyright infringement claim was asserted over Thicke’s “Love After War,” claiming this compilation shared a similar chorus and hook melody with Gaye’s “After the Dance.”  Acknowledging in their counterclaim that “Blurred Lines” was an unprecedented commercial hit (after reaching number one in at least 114 countries and going sextuple platinum by selling over six million copies), the Gaye defendants asserted that inclusion of signature elements of “Got To Give It Up” significantly enhanced the “musical and financial value of ‘Blurred Lines.'”  At trial, they are seeking both injunctive and monetary relief for Thicke’s alleged infringement.

However, in a significant victory for the plaintiffs last month, Judge Kronstadt held that the Gaye defendants could not play the original of Gaye’s famous recording of “Got To Give It Up” during trial for jurors, on the basis that they owned only the written composition while Motown (not a party to the suit) owns the hit recording that includes Gaye’s vocals.  Judge Konstadt previously ruled that the dispute was governed by the Copyright Act of 1909, rather than the Copyright Act of 1976, which limited copyright protections to only those musical elements that appeared in the written sheet music deposited with the Copyright Office.  Prior to trial, Thicke/Williams filed a motion to exclude Gaye’s original sound recording on the basis that it would be confusing to the jury and prejudicial because it contained “substantial additional musical elements in which Defendants do not own any copyright.”  Judge Konstadt initially ordered that Gaye’s sound recordings were inadmissible entirely; however, two days later he issued a new order allowing the defendants to present edited recordings (but only those portions of the recording that are protected) at trial as long as the recordings remove all unprotected elements, such as percussion and backup vocals).

In a statement following Judge Kronstadt’s initial ruling, Thicke and Williams’ attorney, Howard E. King, noted that while his clients love Marvin Gaye (who doesn’t?), the issues to be determined in the multi-milion dollar copyright infringement trial do not involve Gaye’s voice, character, or charisma, but rather whether ‘”Blurred Lines” is a copy of what he wrote in the sheet music [which is the only thing protected under the 1909 Copyright Act],” which he obviously denied.  Although the jury will be able to hear some of Gaye’s voice pursuant to the new order, as this article points out it appears that, if anything was copied at all, it was likely the unprotected portions of Gaye’s song, which are not only totally free to be copied under the applicable law, but will also not be played for the jury.

We will be watching as this trial develops in the coming weeks.  Judge Kronstadt’s ruling leaves us wondering whether the Gaye defendants will be able to fully convey their point without the aid of playing Marvin Gaye’s original recording for jurors or will they be left thinking “Ain’t Nothing Like the Real Thing”?  In the meantime, listen to this YouTube compilation of “Blurred Lines” and “Got to Give it Up” for yourself and let us know what you think.

(See the complaint here courtesy of The Hollywood Reporter).

Moviegoers everywhere took to theaters last weekend to catch the premier of Fifty Shades of Grey, the film based on author E.L. James’ erotic romance novel of the same name.  Over 100 million copies of the popular novel have been sold worldwide, elevating it to the top of numerous best seller lists.  Based on the hoopla and controversy surrounding the story’s sexual themes, we expect the film will share the novel’s success at the box office.  In fact, the “Fifty Shades” brand has become so popular that it has parlayed its success into numerous other products, including a line of adult toys and lubricants.  Unfortunately, like all other over-commercialized things in our culture, some of those spin-off products may not live up to the perceived quality of the source material.  And, guess what happens when products don’t live up to the hype?  We get lawsuits far more controversial than the book itself.

According to an MTV News report, California woman Tania Warchol has filed a proposed class action against Lovehoney, the manufacturer of the official “Fifty Shades” line of adult products, claiming that the “Fifty Shades of Grey” Come Alive Pleasure Gel for Her failed to meet expectations.  The product description contained on Lovehoney’s website website states:

Heighten your pleasure with Come Alive, an intimate arousal gel from the Fifty Shades of Grey Official Sensual Care Collection. Experience enhanced orgasms and stimulation as every tingle, touch and vibration intensifies.

Based on this description, Warchol alleges that she “believed the [gel] has powerful aphrodisiac qualities and would increase her sexual pleasure as advertised.”  However, after a couple of uses, the Come Alive Pleasure Gel allegedly didn’t rise to the occasion.

We are guessing Warchol will face a tough road ahead of her trying to meet her burden.  A quick review of the comments section on the product’s website indicates an overwhelmingly positive customer experience and a 4-star rating. Even though feedback on a product website can be, and often is, fudged by those with a vested interest in such things, the rest of Internet reveals similar results.  As such, even if it is a placebo effect, it looks like the product must be working for somebody.

Maybe Warchol should consider other external variables.

Or, if we are wrong, this lawsuit may just prove that Come Alive Pleasure Gel is as effective as a product as “Fifty Shades of Grey” is as fine literature.

Since bourbon and vodka have recently found themselves on the wrong side of a lawsuit, beer has decided to join in on the action.  A proposed class action has been filed against Anheuser-Busch (“AB”) alleging that the American brewer deceptively marketed its light beer products.  Specifically, the named plaintiff, Sheila Cruz, alleges that AB claims that the Bud Light Lime-A-Rita (and each of its five flavor varieties) is “light” and low in calories when, in fact, it contains more calories than any other AB beer.  An 8-ounce Lime-A-Rita contains 220 calories whereas 12-ounce cans of Bud Light and Budweiser contain 110 and 145 calories, respectively.  The suit was originally filed in state court in Los Angeles, but as defendants often do, it has been removed to the U.S. District Court for the Central District of California.

On the surface, it appears that this suit could have some teeth with the Lime-A-Rita containing 50 percent more calories in two-thirds the quantity of a Budweiser, its notoriously heavy cousin.  However, is comparing the Lime-A-Rita to Budweiser or Bud Light a proper comparison?  The Lime-A-Rita’s calorie count arguably isn’t “light” by beer standards.  But, is the Lime-A-Rita really a beer?  Is it a margarita? Or, it is some kind of beer-margarita hybrid?  AB claims the following on its website:

Bud Light Lime-A-Rita has the great taste of a lime margarita with a twist of Bud Light Lime for a delightfully refreshing finish. With Bud Light Lime-Ritas, there’s no need to spend time mixing and blending to prepare a lime-flavored beer margarita. Just pop open, pour over ice and enjoy!

Beer is not something enjoyed over ice. This product sounds like a margarita-in-a-can with the joys of a Bud Light lime twist only AB could create.  While the drink may not be an actual margarita, comparing the Lime-A-Rita’s calorie count to its purebred brethren lends more credence to the “light” label than with beer comparisons.  When a standard margarita on the rocks boasts 455 calories, the Lime-A-Rita’s 220 definitely feels light by comparison.

Of course, once AB takes the position that the Lime-A-Rita is actually a margarita, it will probably face false advertisement claims from another front.