The Range Feud 2: The Dueling Dukes

The Range Feud 2

Famed actor John Wayne was born Marion Robert Morrison, but he was perhaps best known for his nickname, “The Duke.”  The Duke personified the American Wild West.  He shot and strung up bad guys, fought his way out of tight spots, and generally exhibited a level of awesome manliness that inspired generations of American men.  The Duke also enjoyed his whiskey, and his family recently launched a “Duke” brand whiskey, “inspired by bottles from John Wayne’s personal whiskey collection, preserved for over 50 years and only recently discovered.”  Sounds great, right?  Well, not to everyone.

Reportedly,  Duke University recently filed objections in the trademark office to prevent the whiskey from using the “Duke” name, alleging that doing so will ”’cause confusion and dilution’ that hurts the school’s recruiting and reputation.”  The Duke’s family, which has filed a lawsuit of its own in California, denounces Duke University’s arguments as “ludicrous,” and argues that “[Duke University] ‘has never been in the business of producing, marketing, distributing or selling alcohol,’ [but the school] ‘seems to think it owns the word ‘Duke’ for all purposes and applications.”

It will be interesting to see how this one turns out, as both sides have some interesting arguments.  While the outcome is not clear, one thing is. Duke University should count its lucky stars that it is dealing with the family and not the Duke himself, because the Duke didn’t believe in lawsuits:  “Out here a man settles his own problems.”

Let’s Leave 911 Out Of Our Food Complaints, Shall We?

Product liability suits involving food products are not uncommon. In fact, one of the most famous product cases of all time, Stella Liebeck v. McDonald’s, involves a familiar beverage. (Don’t worry, dear readers, this is not another post about the Liebeck case.). While we here at Abnormal Use may not always agree with the outcome, we at least respect a plaintiff’s right to litigate legitimate matters in court. On the other hand, we have  little use for claimants who choose other means to air their grievances. Case in point: North Carolina woman Bevalante Hall recently used 911 to complain about her Subway order. According to a report from the Gaston Gazette, Hall called 911 after a Subway employee allegedly made her flatbread pizza with marinara rather than pizza sauce. In the 911 call, Hall stated that she wanted to make a report so she could call investigators with a local television news station. Hall didn’t get quite what she requested. As a result of the call, Hall was jailed for three minutes before being released on a $2,000 bond.

Had Hall taken to the court system, her claim undoubtedly would have been criticized (rightly) as frivolous. A marinara-sauced pizza is not exactly a defective product. After all, Subway clearly advertises its “flatizzas” as being made with marinara sauce. If suit had been filed, however, our focus would have at least been on the merits of the claim (or lack thereof). Unfortunately, Hall’s claim appears to be more about garnering publicity than resolving a grievance. Leave it to us to oblige.

Online Dating Site Targeted for Alienation of Affection

Online dating is all the rage these days. No longer is it frowned upon to turn to the interwebs in search of a soulmate. With sites like FarmersOnly.com, ClownDating.com, and SinglesWithFoodAllergies.com, it seems like there is an online dating site for just about everyone. We suppose it is a good thing to help ease the stress of trying to find one’s perfect match. But, what if those online dating sites help those who maybe shouldn’t be looking? Like married folks, for example. At least one North Carolina man finds it to be a problem and has filed suit as a result. According to a report out of the Charlotte Observer, after Robert Schindler’s now ex-wife had an affair with a man she met on AshleyMadison.com back in 2007, he filed suit against the site and the man with whom his wife cheated, alleging an alienation of affections and criminal conversation (a/k/a affair). Schindler alleges the site, whose motto is “Life is short. Have an affair,” worked together with the man to ruin his 13-year marriage. Schindler seeks monetary damages in excess of $10,000 as per the North Carolina pleadings rules. Before we dive into our thoughts on the merits of this claim, it should be noted that North Carolina narrowed its alienation laws back in 2009 to permit claims only against “natural persons.” Schindler’s attorneys have argued that because the affair began in 2007 – two years prior to the law change – he is permitted to file suit against the company. The merits of this argument will have to be played out in the courts. We’ll be watching this one closely, folks.

Alienation law changes aside, this lawsuit seems to defy common sense on its face. Yes, Ashley Madison‘s niche in the marketplace is matching up adulterous individuals. The site, however, doesn’t make anyone actually have an affair. Any affair takes two willing participants. We highly doubt that an otherwise happy spouse casually browses the Internet with a happy marriage, stumbles across Ashley Madison, and decides to pursue an affair. The site is nothing more than the vehicle she used to turn the affair into a reality. Believe it or or not, affairs occurred for years without the assistance of online dating sites. We are guessing any spouse can have an affair even without the assistance of Ashley Madison. We would never condone an extra-marital affair. We here at Abnormal Use just don’t think you should hold an online dating site liable for facilitating one. Sure, Ashley Madison‘s unabashed promotion of affairs looks bad on the surface, but is the site really any more ridiculous than a site like DarwinDating.com with a mission to weed out ugly people through the natural selection process? Online dating is simply doing behind a computer what people have been doing inside a bar for hundreds of years. Oh, well.

(Hat Tip: TortsProf Blog / Overlawyered).

North Carolina Shooting Death Leads To Lawsuit Against Gun Manufacturer

Even though talk of gun control has lessened on the political front, firearms litigation continues.  Last month, the estate of Jasmine Thar filed suit against Remington in Mecklenburg County, North Carolina, arising out of the December 23, 2011 shooting death of the North Carolina teenager.  Thar was shot when 23-year old James Blackwell’s Remington .308 Model 700 rifle allegedly misfired while he was cleaning the gun across the street.   The stray bullet also struck two other persons; however, those persons were not killed.  Blackwell claims he never touched the gun’s trigger.  He was investigated for the incident but cleared of any wrongdoing.  The estate sued the gun manufacturer, claiming the rifle malfunctions and misfires, a problem for which Remington allegedly has received thousands of complaints. Before diving into the merits of this suit, we here at Abnormal Use must admit that something about this incident doesn’t seem right.  In the days after the incident, Thar’s family refused to believe the shooting was accidental, believing it to be racially motivated after a Nazi magazine and Confederate flag were found in Blackwell’s bedroom.  The family went as far as to plan boycotts and rallies in the event the district attorney did not charge Blackwell.  Thar’s mother, Claretta McNeil, claimed:

That’s sending out a really negative message out to America.  That we can shoot people and say it’s an accident and get away with it and it’s okay.

Apparently, the message has now changed. At this point, we know little about the validity of the allegations against Remington.  On its website, Remington claims that the rifle is safe when proper precautions are followed.  The company’s own scientific testing of rifles that supposedly misfired has apparently never recreated the problem.  According to Remington,  malfunctions often involve improper maintenance or alterations to the original mechanisms and settings. Clearly, the key issue is the conduct of Blackwell.  Regardless of any defects with the gun or his own alleged racial motivations, he was clearly negligent in cleaning a weapon while it was loaded.  If this incident was accidental, then it could have been prevented with proper gun safety.  The family, however, no longer holds Blackwell responsible.   According to Bernie Coaxum, Thar’s grandfather, “Mr. Blackwell is the conduit of this tragedy, not the cause.”  Nonetheless, without Blackwell’s intervening act of negligence, the accident clearly could have been prevented.

At the end of the day, we must remember that a young girl was killed through no fault of her own.  Determining the responsible party, however, has been relegated to pointing the finger at the party with the ability to pay.

Stop The Presses! New Laches Case In North Carolina!

Our longtime readers know that we here at Abnormal Use have a favorite affirmative defense: laches. In fact, we love laches, so much so that in March of this year we authored the post “Laches – The Saddest of All Affirmative Defenses.” In that fateful post, we observed:

Just as D minor is the saddest of all keys, laches is the most forlorn of affirmative defenses.  Nevertheless, it has always been our favorite, and our dream is to one day win summary judgment based solely on our invocation of laches. But even after all of these years, we are still waiting for such a victory. Why does laches get no respect in dispositive motions?  As an affirmative defense, it’s something slightly less than the statute of limitations defense, which bars claims based on the passage of a set number of years.  Laches, as we all know, means that a party should be prevented from recovery because he or she has sat on their rights for too long, even though that period of time that they waited, may still be within the statute of limitations.

Well, guess what? Earlier this week, our own North Carolina Court of Appeals released a significant laches opinions.  See John Wm. Brown Co., Inc. v. State Employees’ Credit Union, No. 11-CVS-16809 (N.C. Ct. App. Dec. 3, 2013).but of course, the proponents of laches did not prevail.  The court did not mince words:

On appeal, [Plaintiff] contends the trial court erred in granting [Defendant's] motion to approve and enforce the Agreement because the doctrines of laches and equitable estoppel bar the enforcement of the Agreement over its objection. We disagree.

Oh, well. Here’s a very, very distilled version of the facts: Plaintiff , a general contractor, appealed the trial court’s order granting the defendant credit union’s motion to enforce a settlement agreement. As per custom and case law, the reviewing court analyzed the motion as if it were a motion for summary judgment. In invoking laches to oppose enforcement of the agreement, the plaintiff argued that an insurance company handling the bonds, with the credit union’s knowledge, “sat on its right of assignment under the Agreement of Indemnity for over a year while litigation commenced” and claimed “it was prejudiced as a result of [the insurance company's delay because it spent substantial amounts of time and money pursuing the litigation." After describing the doctrine of laches in some level of detail, the court concluded as follows:

We have been unable to find any case where the doctrine of laches has been applied in a scenario similar to the one now before this Court. Given the unique posture in which the doctrine of laches arises and the fact that [Defendant] was not the cause of the delay, we hold the doctrine of laches has no applicability in the present case and does not bar enforcement of the Agreement by [Defendant]. Nevertheless, assuming arguendo the doctrine of laches may be applied to preclude the exercise of a right of assignment by a third party in order to bar the enforcement of a settlement, the result in the present case would not be different. The language in the Agreement of Indemnity is clear, “[n]o failure or delay by [the insurance company] to exercise any right, power or remedy provided pursuant to this Agreement shall impair or be construed to be a waiver of [the insurance company's] ability or entitlement to exercise any other right, power, or remedy.”

There you have it. Another defeat for laches. Alas.

There Is Now Federal “Selfie” Authority

Who says the federal courts lag behind technical advances?

Well, thanks to last week’s United States v. Doe, No. 1:12–cr–00128–MR–DLH (W.D. N.C. Aug. 14 2013), we now have a federal definition of “selfie.” Well, kind of.

The opinion arises from a motion to suppress, and since we don’t opine on criminal law, we won’t recite the facts and specific issues.  But check out this footnote:

The term “selfie” is the name given to a self-portrait photograph, “often snapped at odd angles with smartphones[,]” and “typically made to post on a social networking website (or sen[t] in a text message)[.]”

See id. at *8 n.6 (citing Katy Steinmetz, “The Top 10 Buzzwords of 2012,” Time, Dec. 4, 2012, http://newsfeed.time.com/2012/12/04/top–10–news–lists/slide/selfie).

According to our very, very brief Westlaw search, this is the only state or federal court to use the word “selfie.”

Curiously, the link cited in the footnote is no longer active; the correct portion of the cited article can be found here.

The court also noted:

With the popularity of social media sites like Twitter, Facebook, and Instagram, together with cell phones’ capability to send text messages and pictures, common sense would lead a practical person to conclude that human behavior includes the making of flattering or unflattering “selfies.” That the Defendant’s phone probably would contain evidence of the three crimes listed in the warrant application was within the issuing magistrate’s realm of lawful consideration. The issuing magistrate, therefore, had a substantial basis for concluding that probable cause existed.

Id. at *8.

It’s good to see courts catching up to the technological trends, and we hope any selfie-related litigation cites to this opinion.

Teeth Whitening and Antitrust

For some time, the Federal Trade Commission (FTC) has been attempting to limit the scope of anti-trust immunity under the “state action doctrine.”  The state action doctrine provides that states may take regulatory actions that would have otherwise violated federal anti-trust laws.  The FTC recently recorded a big win in this ongoing fight in the matter of  North Carolina State Board of Dental Examiners v. Federal Trade CommissionCase No. 12-1172 (4th Cir. May 31, 2013).  The Fourth Circuit held that the the Board of Dental Examiners improperly expelled non-dentists from the teeth whitening market in North Carolina.

This case focused on actions of the Board, which is a state agency made up of practicing dentists, dental hygienists, and a consumer representative.  While the primary purpose of the Board is to license and discipline dentists, the board had issued dozens of cease and desist letters to non-dentists engaged in teeth-whitening services.  The FTC caught wind of this and issued an administrative complaint alleging improper exclusion of non-dentists from the market.  Of course, the Board responded by claiming that it was covered under the state action doctrine because it was a state entity that was created to regulate the practice of dentistry, which included teeth-whitening.

The Fourth Circuit held that the Board was a private actor because its majority is made up  of members who are participants in the regulated market and who were elected by fellow market participants.   In reaching this decision the Court relied on California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980), which held that private parties can only claim immunity if they act according to express state policy and are actively supervised by the state.  The Board was unable to meet this test because there wasn’t sufficient state oversight.  As such, the Board is subject to anti-trust laws.

For those of you keeping track at home, the NCAA is not subject to anti-trust laws but the actions of the a State Board of Dental Examiners are covered.  Makes sense in the grand scheme of things, right?

The North Carolina Legal Geek Meetups

Not too long ago, friend of the blog, Erik Mazzone of the North Carolina Law Blog, put together what he called a Legal Geek Meetup here in Charlotte.  This event was officially sponsored by the North Carolina Bar Association’s Law Practice Management Section (of which Mazzone is director). Assisting in the arrangements were two local Charlotte lawyers, myself and Ketan Soni.  (You didn’t think they would have a legal geek meeting in Charlotte without having us involved, did you?) The purpose of the first such event was to bring together like-minded young lawyers with an interest in social media and technology.  Here is the official description of the series of events:

Legal Geek events are designed to help lawyers and legal professionals interested in practice management and technology learn from each other. Each meetup focuses on a different topic, and may occasionally involve short presentations. While offered primarily to NCBA members, all local legal professionals are welcome to attend. There is no cost to attend these events.

The event was a success. Held at Charlotte’s new Heist Brewery, the meetup attracted at least 20 or so young lawyers.  (Even fabled North Carolina law blogger Lee S. Rosen made an appearance.). It was a fine – and low pressure – networking event (and by its very nature, it did not include a formal presentation or CLE credit).  Many, but not all, of the discussions had by the participants centered around tech or tech culture: Twitter, blogs, and using same to advance one’s practice. Basically, it was a just a fun get together for folks unafraid to refer to themselves as “legal geeks.”

There are upcoming events in Raleigh/Durham (April 11), Fayetteville (May 14), and, of course, Asheville (June 19).

If you’re interested in becoming a part of the events, see here.

North Carolina Court Declares Harlem Shake “Over,” Enjoins YouTube From Accepting Further Videos Depicting Same

This morning, a superior court judge in Wyatt County, North Carolina granted a citizen’s request for a declaration that the Harlem Shake was “over as a meme” and issued a corresponding injunction prohibiting YouTube from accepting further videos depicting or otherwise seeking to capitalize upon the phenomena.  See Yorke v. YouTube, LLC, et. al., No. 2013-CVS-20213 (N.C. Sup. Ct. April 1, 2013).

This is big news.

Filed in mid-March by North Carolina resident Robert Yorke, the complaint sought a declaration that the “Harlem Shake is, and of right ought to be, over and done as a meme” and requested injunctive relief to facilitate the declaration.  The Plaintiff, a self professed “social media scholar” living in Western North Carolina, found himself irked by the increasing deluge of “Harlem Shake” videos he encountered across the web. In an affidavit accompanying the motion, Mr. Yorke complained that he could not access Facebook, Twitter, Orkut, or even Friendster, without seeing at least two “Harlem Shake” parody videos.  Claiming that the ubiquitous meme caused him personal injury, “an unyielding ennui,” and business interruption, he also seeks money damages and class certification. He conceded that the meme could, for at least some initial period of time exist and begin to wither away, but argued that time had long since passed.

A hearing on the request for declaratory relief and the accompanying motion for temporary injunction was conducted last week.  This morning, the court issued its first order in the case granting the Plaintiff’s request for the aforementioned equitable relief.

Citing Wikipedia, the court defined the “Harlem Shake” as follows:

The videos usually last about 30 seconds and feature part of the 2012 song “Harlem Shake” by American electronic musician Baauer. Baauer’s song starts with a 15 seconds intro, a bass drop, then 15 seconds with the bass, and a lion roar at the end of the first 30 seconds. Usually, a video begins with one person (often helmeted or masked) dancing to the song alone for 15 seconds, surrounded by other people not paying attention or seemingly unaware of the dancing individual. When the bass drops, the video cuts to the entire crowd doing a crazy convulsive dance for the rest of the video. The dancing style should not be confused with the original Harlem Shake dance. Additionally, in the second half of the video, people often wear a minimum of clothes or crazy outfits or costumes while wielding strange props.

(The court also apparently cribbed a bit from this article from The Atlantic by Kevin Ashton in reciting the history of the meme.).

Noting a state’s compelling interest in the “orderly processing and disposal of cultural fads,” the court invoked its inherent power in granting the request. In so doing, the court relied heavily on the American Law Institute’s Restatement (2d) of Memes, which provides:

Memes are, by their very nature, ephemeral. The accelerated pace of digital culture demands that certain Internet fads be summarily dismissed to make way for the next viral video or concept. However, as initially popular memes continue to permeate the outer reaches of Internet culture, the initial perpetrators and early adopters of such a meme will grow increasingly more weary of them. Accordingly, formal judicial rejection thereof is sometimes appropriate when the meme outstays its welcome. Although litigation surrounding the evolution of a meme is usually inappropriate, a court may rely on its inherent power to steward a stale meme more quickly to its inevitable demise.

Restatement (2d) of Memes § 135 (2012); see also In re Gangnam Style Litig., No. 12191975, MDL–3500 (E.D. Tex. January 29, 2013) (noting “short lived” nature of memes and creating three pronged test to determine appropriateness of judicial intervention in same).

Noting that North Carolina had not yet adopted § 135 of the Restatement, attorneys for YouTube argued against the injunction, noting that the matter was “nonjusticiable” in the courts and that a legislative solution would be more appropriate under the circumstances.  In re: Morrissey Concert Cancellation Litig., 872 F.3d 606, 615 (D. Colo. 2013) (finding that the court’s could not fashion a remedy to prevent the British singer from canceling future concerts as such an order would be “futile, fruitless, and without any hope of earning obedience,” and thus, the issue was more apt to be addressed by the legislative branch).  In advancing this argument, YouTube’s counsel directed the court’s attention to the recent Anti-Rickrolling Statute adopted by Texas State Legislature.  See Tex. Civ. Prac. & Rem. Code Sec. 174.001, et. seq (prohibiting any and all attempts within the state to fool, deceive, or otherwise trick a person into viewing a video featuring and/or otherwise depicting the singer Rick Astley).  When the court rejected that argument from the bench, counsel for YouTube noted that the meme was “already dying an albeit slow death” and the parties “need only await its natural end.” Rejecting that contention as a “backwards mootness argument,” the Court proceeded to grant the Plaintiff’s request from the bench.

Under the order, YouTube has five days to develop a system to prevent uploading of additional “Harlem Shake” videos.  The order also imposed on YouTube a duty to monitor its video library for pre-injunction videos which are “particularly lame” and remove them.

The court made a number of other rulings, as well. YouTube scored a minor victory when it successfully sought to exclude the proposed expert meme testimony of Antonie Dodson at the hearing.  Further, the court denied the motion to intervene filed by a series of  YouTube commenters on the grounds that they were vexatious litigants, which the court assumed, since the movants were YouTube commenters.

A hearing on YouTube’s motion for partial summary judgment on Mr. Yorke’s alienation of affection claim has been set for May 6.

We’ll continue to keep you apprised on this case as it develops.

Stuart Mauney’s Day at the Races

Some years ago, on a hot August Friday night, “Bobby Joe” got a little too close to the action in the pit area of the local dragway.  A pickup truck, pulling a trailer loaded with a race car, ran over his foot, allegedly causing grievous injury.  It was so bad that, two days later, he decided he needed to be seen by a doctor about the bruise on the side of his foot.  Can you say “vexatious lawsuit’?  Yes, Bobby Joe sued both the truck driver and my client, the owner of the dragway.  No warnings!  No barriers to keep pedestrians away from the dangerous pit area!  No bold, yellow signs to tell spectators that it is not a good idea to absentmindedly walk near the burnout strip!  Did I mention this was my second case representing a dragway?

With this as background, I was excited when a friend invited me to attend the NHRA Four-Wide Nationals at zMax Dragway in Charlotte, North Carolina, last month.  It’s the only four-lane concrete dragstrip in the world, where every ticket is a pit pass.  I took a stroll through the pit area, funnel cake with powdered sugar in one hand and a fried turkey leg in the other.  I took in all the sights, sounds, and smells of NHRA drag racing.  The “sights” included Top Fuel dragsters and Pro Stock race cars.  The “sounds” included high speed devices used to fix parts on the dragsters and the chatter of crew members as they made the necessary adjustments.  The “smells”?  Gas!  Exhaust!  Burned rubber!  I even got to meet Leah Pruett, who was competing in the Pro Mod series for R2B2 Racing out of Duluth, Georgia.

With our VIP credentials, we wandered over to the starting line for a closer look.  As we did so, a truck pulling one of the dragsters came perilously close to running over my foot, almost causing grievous injury.  The nascent plaintiff’s lawyer in me began to think “What if . . . ?”  Would I have a claim against NHRA for my injuries?  Would my claim be barred by my own negligence in attempting to balance a funnel cake in one hand and a turkey leg in the other?  Had I assumed the risk of injury by getting too close to the staging area?

As these thoughts went through my head, my defense attorney instincts returned.  I quickly read the reverse side of my ticket to find a “Notice and Warning to Credential Holder.”

By buying or using this credential you agree that:

YOU ASSUME ALL RISKS AND DANGER of property damage, personal injury, death, and all other hazards related in any way to attending this event, anywhere at the facility and at all times before, during or after the races.  Dangers include flying objects, vehicles, other people, conditions at the facility, and unforeseen hazards.  You agree that NHRA, track owners and operators, racing participants, and each of their respective officers, owners, officials, sponsors, contractors, employees and agents shall not be liable for any loss, damage, or injury to you and you hereby release them from all claims for liability.  Be alert for hazards at all times.

Flying objects?  Does that include the kernel of kettle corn which grazed my cornea after it flew out of the hands of the 10-year-old kid standing in line next to me at the lemonade stand?  Other people?  Are the terms “other people” and “flying objects” mutually exclusive?  Could flying objects include other people?  Does other people include the no-shirt, beer-bellied fellow with the “Mama” tattoo who bumped into me as we were shopping in the NHRA merchandise trailer?  Does “unforeseen hazards” include hearing loss from the use of defective earplugs?  So many questions and so few answers.

Despite all the risks, dangers and hazards of NHRA Racing, we had fun and would do it again.  A “shout-out” to Dave Lee (President), Roger Burgess (Founder/Chairman of the Board), and all the other folks at ProCare Rx, who sponsor the R2B2 Racing Team, for a great experience.

See y’all at the races!