Parents Take a Bite at Apple

Parents who haven’t learned to work the parental control features on their iPhones and iPads may be in luck. Apple has agreed to a settlement in class action lawsuit over so-called “bait apps,” which are games that can be downloaded for free but then charge users for “game currency” like virtual goods or play money.  Of course, Apple’s iOS does have a parental control feature that allows users to restrict in-app purchases, but why go to all that trouble when you can just hand over your iPhone willy nilly to a child?

The lawsuit alleged that children were able to purchase “game currencies” without their parents’ knowledge or authorization while playing game applications, provided by Apple and advertised as free. Apparently, prior to early 2011, Apple let users buy game currency up to 15 times without re-entering a password in the game. The parents claim they were unaware that purchases could be made without re-entering the password. Some of their little angels racked up charges on their accounts ranging in amounts ranging from $99.99 to $338.72.  The lawsuit, of course, ignores the fact that Apple’s iOS had a parental control feature that allowed users to restrict such purchases. One victim wrote a whole article about the ordeal before a reader pointed out the parental control feature. Oops.

So what’s the big payday for our lucky winners? As far as class action settlements go, it’s actually a pretty decent settlement for the aggrieved parties.  For any member of the class whose kids purchased made an in-alp purchase for less than $5, Apple will issue a $5 iTunes gift card. For those between $5 and $30 in unauthorized purchases, Apple will issue a full refund in the form of a gift card.  Users whose little rascals spent more than $30 can choose to get a full cash refund.

If your kids made any unauthorized in-app purchases check your inbox in the months to come.  The settlement requires Apple to send a notification to all iTunes account holders who made in-app purchases.

Power Balance Bracelets Lose Another Battle

For as long as there have been products to sell, manufacturers used puffery in their advertising.  Whether it is the claim that a vacuum cleaner will make you happier in the 1940′s or the purported health benefits of cigarettes in the 1920′s, companies often take  “artistic liberties.”  Most companies are careful enough not to guarantee their results; they include a healthy “results not typical” disclosure. With that in mind, let’s take a look at the Rawlings Power Balance bracelets, pictured below.

According to Rawlings’ website, the bracelets have a “power balance hologram embedded with frequencies that react positively with your body’s natural energy fields” to provide strength and flexibility.  It may sound crazy, but the concept behind balancing energy fields is nothing new. Back in August, Stacy Orlick commenced a proposed class action against Rawlings in the U.S. District Court for the Central District of California for allegedly falsely advertising the bracelets on Walmart.com.  Orlick claims she purchased a $35 bracelet based on a Walmart.com ad and never received the advertised benefits.  Rawlings moved to dismiss the complaint, alleging the plaintiff failed to demonstrate that it was responsible for the Internet advertisement.  However, because the Walmart.com ad “substantially mirror[ed]” the ad Rawlings uses on its own website, U.S. District Court Judge George King denied the motion.  The case is captioned Stacy Orlick v. Rawlings Sporting Goods Co., No. 12-cv-06787 (C.D. Cal. 2012).

Now that the suit has survived the dismissal, it will be interesting to see how things transpire.  Rawlings’ best defense is obviously the truth.  The question: How is it measured in this context?  We cannot observe energy fields with the naked eye.  We imagine some objective strength and flexibility testing could be conducted.  But, if testing reveals that any positive effects of the bracelet are the result of a placebo effect, then can Rawlings be found liable for false advertising?  If users derive some placebo-led benefit from the use of the bracelet, then there does not appear to be any harm.

We here at Abnormal Use confess to using power balance bracelets.  In so doing, we have had more energy and, overall, just felt better.  We have no idea whether these results are the product of the “power balance hologram” or of us just really, really liking bracelets.

Another Engle Statute Of Limitations Issue Arises In Florida Smoking Case

In November of 2012, we blogged about the Castleman case, the most recent Engle decision in Florida, where the court found itself in the strange position of hearing the plaintiff argue for an earlier manifestation date in his smoking/lung injury case.  Usually, the plaintiff is arguing for a later date to prove that he hasn’t blown the statute of limitations.  But, as we discussed in that post, the earlier manifestation date would have allowed the plaintiff to gain class member status, affording him the benefits of certain preclusive findings in his own case.

Well, Engle issues also arose in the October 2012 decision of Philip Morris USA, Inc. v. Barbanell, 100 So. 3d 152 (Fla. Dist. Ct. App. 2012) [PDF].  This case involved, predictably, the death of the plaintiff’s decedent as a result of smoking Philip Morris-manufactured cigarettes.

The other issue before the court in Barnabell, as in Castleman, was the statute of limitations.  Philip Morris argued that the court erred by not granting the company’s motion for summary judgment on the issue.  This appeals court affirmed the trial court’s decision and declined to grant Philip Morris judgment as a matter of law.

Specifically, the issue was whether the statute of limitations began to run when the decedent started to experience lung-related conditions including shortness of breath, “hard breathing,” and other breathing-related difficulties, or whether the clock didn’t start until the decedent was specifically informed by her doctor that she suffered from smoking-related emphysema and, later, lung cancer.

The court held that the latter diagnoses should be the measure by which the statute of limitations was calculated:

In this case, the trial court directed a verdict on PM’s affirmative defense that the statute of limitations barred Barbanell’s claim of wrongful death from lung cancer, and the jury made the finding that Shirley Barbanell did not know or have reason to know that she had COPD prior to May 5, 1990. Therefore, the unspecified injury that the jury determined that Mrs. Barbanell was aware of prior to May 5, 1990, was not COPD nor was it the lung cancer. We therefore affirm the trial court in all respects as to the direct appeal and cross-appeal. 

100 So. 3d 152 at 160.  The decision drew a strong dissent on whether or not the issue should have been decided by the court at all or allowed to go to the jury.  Nevertheless, the statute of limitations continues to be a heavily litigated issue in these smoking cases.

Another Engle Smoking Class Action Decision In Florida

On August 17, 2012, the Florida District Court of Appeal issued its decision in Castleman v. R.J. Reynolds Tobaco Co., 97 So.3d 875 (Fla. Dist. Ct. App. 2012) [PDF].  The case represents another decision arising out of the Engle class action against the tobacco company, jurisprudence which Abnormal Use has been following for some time now.  Prior posts on the subject can be found here. As a reminder, the Engle class is comprised of Florida citizens and residents, and their survivors, “who have suffered, presently suffer, or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.”  Those who fall into that class enjoy, inter alia, an extended limitations period for filing suit and res judicata on several findings of fact.

Two other dates are extremely important for those seeking membership in the class.  First, the class member(s) have to show that their tobacco-related disease or condition first manifested itself before the trial court’s order certifying the class, which was filed on November 21, 1996.  Second, suit must have been filed before January 11, 2008.

And now to the facts of this case.  Lewis Castleman started smoking cigarettes at the age of 19 in 1953.  He continued to smoke for 30 years but quit in 1983.  It was not until the early 1990′s that he began experiencing shortness of breath and chest pain, and it was not until 1998, when he underwent heart bypass surgery, that his doctors linked the symptoms to his smoking history.

Mr. Castleman and his wife sought membership in the Engle class, but the trial court denied them membership.  The appeals court affirmed summary judgment for R.J. Reynolds in this case, holding that because Mr. Castleman did not attribute his symptoms to his smoking history until 1998, he did not meet the class definition as of November 21, 1996 because the disease or condition had not “manifested” by the applicable date.

The appeals court relied on another case, Frazier v. Philip Morris USA, Inc. [PDF], in which the Third District Court of Appeal considered the definition of “manifestation” and held that symptoms such as shortness of breath and persistent coughing did not constitute a sufficient legal basis for intiating a lawsuit against a tobacco company – there must be something more that causes the individual to attribute the symptoms to tobacco use.  Because Mr. Castleman did not make that connection until 1998, the court reasoned in this case that the condition did not “manifest” itself before the date of the court’s order.

It strikes me that the courts in these cases are defining “manifestation” in a way that is 180 degrees from the way it is interpreted in many other cases.  It is strange to have a plaintiff arguing for an earlier manifestation date; usually, under traditional discovery rule interpretation, it is the defendants arguing that the plaintiff “should have known” that his disease was caused by the product at issue at an earlier date than the plaintiff cares to acknowledge.  In these cases, however, to have a chance at class membership, the plaintiffs are actually arguing for the earlier date, so that they can get the benfit of the Engle class provisions.  We will continue to monitor – and report on – this very interesting class as it develops.

Questionable Decisions by Lawyers and Judges

As you can imagine, we here at Abnormal Use are big fans of the United States court system.  We recognize that it’s not perfect, but, on balance, it does a pretty good job protecting the rights of litigants–both plaintiffs and defendants.  We also believe, however, that some lawsuits are just ridiculous.  We are not advocating that some people be denied access to the court system.  What we might want, however, is for lawyers to sometimes take a step back and ask potential clients, “Do you really want to bring this before a judge?”  Below are two lawsuits we found recently that might have benefited from such an inquiry.

The case of the prematurely fading lipstick:

The Wall Street Journal Law Blog recently posted about a new suit seeking class action status against Maybelline, a cosmetics company that sells lip gloss and lipstick lines that it claims will last for 10 hours and 14 hours, respectively.  The plaintiffs allege, as you can imagine, that the lip color does not last nearly as long as advertised by Maybelline and have filed suit in Manhattan federal court. That’s right.  A New York federal court is going to have to decide if Maybelline has violated federal law, as well as consumer protection laws in New York, Michigan and New Jersey, simply because women might have to re-apply lip color more than once every 10 hours.

The case of the beer bottle in the bar-room brawl:

Hat tip:  Overlawyered:

A Texas appeals court has affirmed the dismissal of a lawsuit seeking to hold Anheuser-Busch liable for an assault suffered by a bar patron. The suit alleged that the long-neck design of the bottle made it too attractive for assailants seeking a weapon; the court agreed with the brewer that the plaintiff had failed to make out a sufficient case to avoid summary judgment.

I would love to see a total bill for the court fees, lawyer time and expenses, and pro-rated judge, court reporter, and bailiff salaries that were incurred just getting this thing thrown out.  One of the comments on the Overlawyered blog suggested that the plaintiff’s lawyer be sanctioned under Rule 11.  Not sure we’d go that far, but this one definitely doesn’t pass our smell test.

Forum shopping fiasco:

While we’re on the subject of questionable moves in the legal world, I noticed a story in the Wall Street Journal on September 24, 2012 about the Philadelphia Court of Common Pleas.  Apparently, budget cuts prompted Judge Pamela Dembe to throw wide the doors of Philly’s courthouses for lawsuits–and, in turn, open the court’s wallet for filing fees.

As the story noted, lawsuits–primarily in the asbestos and pharma areas–exploded “from 550 in 2008 to nearly 2,700 last year.”   A new administrative judge, John Herron, is trying to clean up the mess that Judge Dembe’s invitation created for the court system up there.  As Judge Herron commented in the story, “Courts should not be in the business of making money.”  In our opinion, such blatant forum shopping should not be condoned–let alone suggested or supported.

Rewriting David and Goliath: Plaintiffs’ attorneys get payoff in Vioxx litigation

On August 9, 2011, the Eastern District of Louisiana approved the distribution of attorneys’ fees following the global settlement of litigation involving Merck’s troubled drug Vioxx in In re Vioxx Product Liability Litigation, — F.3d — , No. 2:05-MD-01657, 2011 WL 3563004 (E.D. La. Aug. 9, 2011) [PDF].    Developed and marketed to treat arthritis, menstual pain and migraine headaches, the drug was approved for sale by the Federal Drug Administration on May 20, 1999.  Merck pulled the drug off the market on September 20, 2004, after a clinical trial found that the drug increased the risk of cardiac incidents like stroke and heart attacks.

As expected, thousands of individual cases and multiple class actions filed against Merck in the aftermath of the recall.  Eventually, those cases filed in federal court were consolidated in an MDL in the Eastern District of Louisiana.  It was estimated that more than 50,000 claims were filed against Merck after 20 million patients took the medication.  After consolidated discovery, several trials commenced before the parties started talking about a global settlement.  Those talks were successful, and a Settlement Agreement was entered.   See Settlement Agreement, In re Vioxx Prods. Liab. Litig., MDL 1657 (E.D.La. Nov. 9, 2007), available at http://www.browngreer.com/vioxxsettlement.

The Settlement Agreement gave people the ability to opt-in to resolve their pending or tolled cases against Merck, and the total amount set aside for the payment of claims was $4.85 billion.  With a “b.”  Apparently, according to the August 9 order, the settlements went smoothly from a logistical standpoint:

The Settlement Program proceeded at a very rapid rate and Merck made additional payments in order to ensure that the claimants would receive funds in a timely fashion. . . . [I]n only 31 months, the parties to this MDL case were able to reach a global settlement and distribute Four Billion, Three Hundred and Fifty-three Million, One Hundred Fifty-two Thousand and Sixty-four Dollars ($4,353,152,064) to 32,886 claimants, out of a pool of 49,893 eligible and enrolled claimants. This efficiency is unprecedented in mass tort settlements of this size. It was due in large part to the ability, industry, and professionalism of the attorneys for both sides, the plan administrators, the lien administrators, the pro se curator, and the special masters.

With the payments to the claimants completed, it was time to pay the lawyers who had displayed such commendable “ability, industry, and professionalism.”  A Fee Allocation Committee was convened, and they had their work cut out for them.  The court quoted a prior pretrial order regarding reimbursement for expenses:
“[A]ny attorney wishing to have their time considered for an allocation of any common benefit award” was directed to submit a three-page written affidavit to the FAC articulating their contribution, with emphasis on factors including “substantial contribution to the outcome of the litigation,” quality of work, “consistency quantum, duration, and intensity of … commitment to the litigation,” “level of partner participation,” committee membership and leadership positions, the “jurisdiction in which non-MDL common benefit work occurred,” “[a]ctivities surrounding trials of individual Vioxx claimants, including bellwether trials and non-MDL trials that impacted proceedings on a common benefit level,” participation in ongoing work for the common benefit, involvement in Vioxx litigation prior to withdrawal of Vioxx from the market or the MDL, contribution to funding of the litigation, commitment to the litigation after adverse verdicts, and any other relevant factors.
Over one hundred firms or attorneys submitted almost twenty-four hundred pages of affidavits and supporting documentation, all of which were entered into the record.  Although they requested 8 percent, the Court approved a compensation of 6.5 percent of the final settlement for the plaintiffs’ attorneys, a total of $315,250,000.00.  Oh, and just a side note: that was in addition to their fees.  In the end, 108 law firms were granted monetary awards from the common benefit fund.
There is an old saying: you have to have money to make money.  Usually, it’s used in the conext of investing.  But this case demonstrates that the same is true in litigation.  Just seeing a few of the reimbursement amounts –$500,000 to one law firm, $4 million to another — proves that in many cases, only the large plaintiffs’ firms who could front those kinds of expenses could take these cases, which were ultimately quite profitable once the underlying settlements  and attorneys’ fees were approved.  So the next time a plaintiff’s attorney plays the David and Goliath game at trial against your firm, remember this case.  Sometimes,you have to be Goliath, too.

No Class Action to Recover Return Costs of Toys Laced with Date Rape Drug

In 2007, Spin Master Ltd. recalled more than four million Aqua Dots toys in the United States after discovering the product’s Chinese manufacturer mistakenly substituted 1,4 butanediol for the adhesive 1,5 pentanediol.  When ingested, 1,4 butanediol metabolizes into gamma-hydrobutyric acid (GHB), otherwise known as the date rape drug.  Reportedly, two children in the U.S. and three children in Australia were hospitalized after ingesting the product.  We are guessing this is not what Wal-Mart had in mind when it deemed the product one of its “Top 12 Toys of Christmas.”

Not surprisingly, coating a child’s toy with a pre-metabolized date rape drug resulted in some legal action against the company and the product’s major retailer, Wal-Mart.  Recently, in Aqua Dots Products Liability Litigation, — F. 3d —-, 2011 WL 3629723 (7th Cir. August 17, 2011), the Seventh Circuit issued an opinion regarding class certification in the multi-district litigation.  The proposed class did not sue Spin Master due to any physical injury the plaintiffs suffered from the butanediol-coated toys.  Rather, the plaintiffs elected not to pursue a refund from the distributor and challenged the adequacy of the company’s recall program.  The District Court for the Northern District of Illinois, relying on Federal Rule of Civil Procedure 23(b)(3), denied the plaintiffs’ motion to certify the class holding that it would be more advantageous for the plaintiffs to return their products for a refund rather than pursuing litigation and racking up attorneys’ fees.   Not happy with this result, the plaintiffs filed an interlocutory appeal.

The Seventh Circuit criticized the district court’s interpretation of Rule 23(b)(3). According to the rule, class certification is proper when “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” While it recognized the district court’s objective, the Seventh Circuit did not equate a recall campaign with a form of adjudication.  Apparently, that three-judge panel has never attempted to return a product to Wal-Mart.

While the Seventh Circuit disagreed with the district court’s reasoning under Rule 23(b)(3), it ultimately agreed with the court’s decision – albeit under Rule 23(a)(4).  Under Rule 23(a)(4), a court may certify a class action only if “the representative parties will fairly and adequately protect the interests of the class.”  On that point, the Seventh Circuit had this to say:

Plaintiffs want relief that duplicates a remedy that most buyers already have received, and that remains available to all members of the putative class.  A representative who proposes that high transaction costs (notice and attorneys’ fees) be incurred at the class members’ expense to obtain a refund that already is on offer is not adequately protecting the class members’ best interests.

There is no question about the inherent dangers of exposing young children to the date rape drug; however, it is nice to see a court stand up for a company who has acted reasonably under the circumstances.  Spin Master acknowledged that a mistake had been made and took a reasonable course of action to remedy that mistake.  Unless the proposed class can demonstrate some long-term physical harm due to 1,4 butanediol exposure, the only damage these plaintiffs have suffered is the time spent returning the product.

To be fair, we here at Abnormal Use have also had to return products a time or two and can attest to the hassle.  Getting in the car, driving to the store, and – dare we say – waiting in line all amounts to time better spent doing anything else.  It’s torture for sure, but somehow we endure.  Even with the perils of this arduous task, however, we will gladly do it ourselves instead of paying a plaintiff’s attorney a 30 percent take to do it for us.

Tip of the hat to our friend, Ted Frank at the Point of Law blog for alerting us to this opinion.

SC Johnson Reaches Undisclosed Settlement in “Greenwashing” Litigation

Though we hadn’t previously known “greenwashing” was even a word, much less something around which a class-action lawsuit could be centered, we now know that at least in California, and later Wisconsin, invocation of that term may entitle the accuser to an undisclosed sum of settlement money.  We previously reported here that a California resident had filed suit in federal court on behalf of purchasers of various household products manufactured by SC Johnson, alleging that the company was deceptively marketing its products as “green,” or environmentally friendly, with its use of the trademarked “Greenlist” labeling sticker on its products.  Koh v. S.C. Johnson & Son, Inc., No. C-09-00927 RMW (N.D. Cal.).  Another suit similarly was filed in Wisconsin.

SC Johnson recently issued a detailed press release in which its CEO announced that the company will stop using its Greenlist logo on Windex products and disclosed that the company has reached “an undisclosed settlement” agreement as to the two lawsuits filed against it.  In its candid statement, the company set forth its reasons for settlement:

“We decided to settle for two reasons. First, while we believed we had a strong legal case, in retrospect we could have been more transparent about what the logo signified,” said SC Johnson Chairman and CEO Fisk Johnson. “Second, and very importantly, Greenlist™ is such a fundamentally sound and excellent process we use to green our products, that we didn’t want consumers to be confused about it due to a logo on one product.”

The statement goes on to wisely say – in words that must be echoed by many slapped with product liability suits – that “[w]hile companies always try to ensure labels are clear and understandable, different interpretations can arise.”  In any event, it looks at though SC Johnson settled these suits quickly, and likely took from it a valuable lesson in marketing practices.

Film Review: Class Action (1991)

You might recall that back in March, we interviewed the writers and producer of the 1991 film, Class Action, which starred Gene Hackman and Mary Elizabeth Mastrantonio as an estranged father and daughter, both lawyers, who find themselves on opposite sides of the same products liability case. We always intended to revisit and review the film, but as sometimes happens, time slipped away from us, and we never finished our draft of the review.  Tardy, but unfazed, we here at Abnormal Use resolved to use the recent Fourth of July holiday weekend to finalize the review, and so we have finally done so.

Primarily written by Carolyn Shelby and Christopher Ames, and directed by Michael Apted, the film is actually pretty good, and holds up well as a legal drama, even when viewed by weary and cynical attorneys 20 years after its original release. Shelby and Ames apparently came on board after the initial draft by attorney Samantha Shad had been developed. Their script received much praise from Roger Ebert in his 1991 review:

The screenplay by Carolyn Shelby, Christopher Ames, and Samantha Shad contains dialogue scenes so well-heard and written it’s hard to believe this is a Hollywood movie, with Hollywood’s tendency to have characters underline every emotion so that the audience won’t have to listen so carefully. There is a scene, for example, where father and daughter are preparing dinner together, and their civility gradually collapses into anger and tearful recrimination. And other scenes, deliberately of few words, in which lawyers try to say things without saying them – to imply what must be done, without being trapped into actually issuing unethical orders.

The film begins with a intercut sequence comparing the styles of Hackman’s fiery Plaintiff’s attorney Jedediah Tucker Ward and his estranged and far more conservative defense lawyer daughter, Maggie, played by Mastrantonio. While Maggie is a by-the-book defense lawyer who opines that certain principles are “deeply embedded in the black letter law of the state” and that “appeals to the contrary based on emotion have no place in a court of law,” Jed simultaneously argues in an adjacent courtroom that those assembled are “not in a court of law, but ‘rabbit hole’ leading to ‘Wonderland’ and ‘Mad Hatter’s tea party’.” Maggie, an associate who desperately wants litigation experience in order to make partner, is also sleeping with Michael, the junior partner liaison to an automotive company client. We ultimately learn this is not a very good idea. For his part, Jed is the type of plaintiff’s lawyer we all know who complains of “fascist Reagan judges” who throw cases out if they target big corporations. The two main characters are also huge law nerds. Jed and Maggie, during brief periods of personal détente, actually quiz each other about the underlying facts of old cases, including Weems v. United States, 217 U.S. 349 (1910), a cruel and unusual punishment case. Nevertheless, their long standing personal conflict escalates when they find themselves on opposite sides of the bar in a products liability case involving an allegedly defective automobile (although the film is careful to include a scene confirming that all necessary waivers have been signed – although we wonder if that conflict could be waived). The relationship is further exasperated when Jed’s wife and Maggie’s mother (JoAnna Merlin) dies of an aneurysm in the courthouse immediately following a contentious motion to compel hearing.

The products lawsuit proceeds as many depicted on film do, with the Plaintiff (Robert David Hall) – who viewers will recognize now as the medical examiner on television’s “CSI: Crime Scene Investigation” – painted as a sympathetic victim of obvious corporate gross negligence. The automotive company, of course, is the villain of the film; its corporate execs have disposed of an unfavorable report indicating circuitry problems in the vehicle at the behest of the aforementioned junior partner. Further, the fictional auto company internally concluded that it would be cheaper to defend 200 subsequent lawsuits than to recall the model of vehicle in question (not unlike the famous Ford Pinto case). We bet you can guess who wins the suit.

In 2011, the narrative remains interesting, even to legal viewers, although there is some nitpicking required.  Spoiler Alert!

At a motion to compel hearing at which Jed is seeking the addresses of current and former employees of the automotive company, Maggie properly responds and notes that the request may be unduly burdensome and require them to investigate the whereabouts of many, many people. However, Jed responds by admitting he called the automotive company’s pension department in a feigned attempt to locate an old friend.  He claims the department provided him with a current address, which the judge uses as a justification to grant Jed’s motion to compel. No objection to improper contact is made.

Near the conclusion of the trial, Jed calls Michael, the aforementioned junior partner who represents the auto company, to the stand. Although much ado is made of this move, no one mentions the attorney-client privilege and the fact that he cannot be compelled to discuss his communications with his client. Further, Maggie has a chance to examine the witness, and she does so! She elicits testimony that she knows to be false (in what is later revealed as her attempt to do justice at the expense of her own client because of her misgivings about the junior partner’s destruction of relevant evidence). However, during the examination of her colleague, she does nothing in that immediate moment to alert the court that Michael has given false testimony about the existence of the unfavorable report that he destroyed. Oh, my, the ethical dilemmas pile up quickly in this film.

The senior partner at Maggie’s Big Law firm, Quinn (Donald Moffat), notes that he will attend the deposition of the plaintiff and expresses some concern about whether Maggie has the fortitude to “eliminate” him as an effective witness. At the deposition, Maggie confronts the plaintiff with a number of facts, including evidence that he was treated by a psychologist for “car phobia,” his history of past accidents and tickets for driving to slow, and photographs of the accident scene, all of which seemed perfectly appropriate and relevant to the line of questioning in a products liability lawsuit. However, Jed and his law partner, Nick Holbrook (Laurence Fishburne, back in the days when he was credited as Larry Fishburne), strenuously object to the line of questioning and prematurely terminate the deposition upon the presentation of the accident photographs. Maggie copes with the aftermath of this deposition by drinking alone at a bar and comparing herself to a contract killer. However, the types of questions being asked by Maggie seem like standard, almost boiler plate, queries for a plaintiff’s deposition (particularly a class rep), though they are treated as if they are affront to justice and human dignity.

The large corporate film depicted in the film is portrayed as completely and totally unethical. The aforementioned junior partner, Michael, advises the corporate client that a report that he has not read is acceptable. When this report ultimately comes to light during the litigation, he makes efforts to destroy or bury the report when he learns it is actually unfavorable. When Maggie objects to such misconduct, she takes it to the attention of the senior partner Quinn, who initially appears to understand her dilemma. Quinn suggests that the report be buried in the voluminous set of documents delivered to Jed in dozens and dozens of banker’s boxes. However, Quinn ultimately condones Michael’s purposeful error in misfiling the report amongst those documents to make it even more difficult to find than a needle in the haystack. Maggie later learns that the report was not produced at all – even in the voluminous document dump. At the end of the film, we learn she uses this information to advise her father of a particularly relevant witness who can confirm the existence of the report. However, her actions to correct the discovery abuse and unethical conduct of her fellow members of the firm is done on the sly and not with the advice and counsel of an outside lawyer, the state bar, or even the judge. In light of that, although Maggie was acting to correct misconduct, she may have done so in a fashion that subjected her to disciplinary review as well, although that is not explored in the film.

Some fun other notes: At the time of the release of this film in 1991, Mastrantonio was just about to appear in Robin Hood: Prince of Thieves, while Hackman was on the verge of appearing in that year’s Unforgiven (a role for which he would win the Oscar). As revealed in our interview with Cort, Shelby, and Ames, Julia Roberts was nearly cast as Maggie over Mastrantonio, which would have made for a very, very different film.

Parent Seeks $5 Million in Damages for Chuck E. Cheese’s Promotion of Child “Gambling”

A San Diego mother of two young children recently filed a class-action suit in California federal court against Chuck E. Cheese’s, in which she alleges that the restaurant chain’s gaming machines are actually illegal gambling devices which could “foster addictive behavior in children by enticing them to play repeatedly for tickets.”  Although she seeks $5 million in damages, SignOnSanDiego.com reports that her attorney says the money is secondary to his client, who primarily wants to see the gaming machines removed from the restaurants.

The attorney for the plaintiff, Eric Benink, reportedly has said he does not think that “children should be exposed to casino-style gambling devices at an arcade.”  The complaint notes that with some exceptions, gambling is illegal in the state of California, although an exception is made for games that are based predominantly on skill.  Here, the complaint (boldly) alleges, the games are based largely on chance and “create the same highs and lows experienced by adults who gamble their paychecks or the mortgage payment.”  The games, of course, rely mostly on 25-cent tokens and, depending on the player’s score, dispense tickets that can be redeemed for prizes.  The higher the player’s score, the greater number of tickets dispensed; the more tickets, the better the prize.

Attorneys for Chuck E. Cheese’s are moving to dismiss the suit on two grounds.  First, they argue that the California Legislature never intended to make the operation of a children’s arcade game a criminal act.  Second and more interestingly, they contend that even if the game systems were illegal, then the plaintiff parent would be an admitted participant in illegal gambling and therefore is barred from seeking damages and restitution.

AOL News quotes one supporter of the lawsuit, whose daughter is “addicted” to the “Claw,” as saying: “We have left Chuck E. Cheese’s in her [sic] in tears begging for one more quarter.  I’ve seen her going through my purse for quarters.  It’s devastating.”  This latest lawsuit seems to serve as one more example of a lack of accountability of parents, who certainly have the option of keeping their children away from institutions that lure them into developing “gambling habits,” without the necessity of litigation.