Friday Links

“All rise for Marge Simpson, TV’s Latest Judge!” Above, you’ll find the cover of Simpsons Comics #64, published not so long ago in 2001 (which seems a bit late, actually, to parody the TV judge thing). That said, we wouldn’t mind appearing before Judge Simpson, although perhaps not for a dispositive motion hearing. That would be too risky, we think. Oh, well.

Reports The Huffington Post: “A $675,000 verdict against a former Boston University student who illegally downloaded and shared songs on the Internet has been upheld.” Wow.

In Tennessee, the war on bacon-infused liquor has begun in earnest. (Hat tip: Radley Balko).

For a sad story in Buncombe County, North Carolina in 1883, please see here.

If you are a fan of HBO’s “Game of Thrones,” or the books upon which they are based, this flowchart is for you.

FAA May Loosen Restrictions on Personal Electronic Devices; There Was Much Rejoicing

A preface: This post is about products, to be sure, but not necessarily products liability.  We, as lawyers, travel very often. With us, we carry many personal electronic devices.  Not so long ago, we’d have to carry cell phones, Blackberries, laptops, and iPods.  Now, for the most part, we can get away with just a smart phone and perhaps a laptop or tablet. All of this, though, still makes air travel more difficult.

But there is hope on the horizon.

Could it be that we, as consumers of air travel, may soon be allowed to listen to our iPods upon take off and landings?

Could it truly be?

The Guardian – which has been in the news itself of late for unrelated reasons – reports that the Federal Aviation Administration is considering new rules on the use of personal electronic devices:

Relief may be on the way for airline passengers who can’t bear to be separated even briefly from their personal electronic devices, as the Federal Aviation Administration moves towards allowing gate-to-gate use of music players, tablets, laptops, smartphones and other gadgets.

Restrictions on cellphone calls and internet use and transmission are not expected to be changed.

Now we wait.

(Hat tip:  Spin).

Court Finds Juror’s Facebook Friendship With Murder Victim’s Spouse Not Grounds For Disqualification

As you know, we often write about social media and the law, so we simply must direct your attention to last week’s McGaha v. Commonwealth, — S.W.3d —- (Ky. June 20, 2013), in which the appellant, convicted of murder, unsuccessfully argued that he was entitled to a new trial because one of the jurors failed to disclose that she was Facebook friends with the victim’s wife. Wow.

Apparently, the juror – identified in the opinion as “Juror 234” was questioned during voir dire about her relationship with anyone involved in the case.  She admitted during questioning by the trial court that she knew “some of the [the victim’s] family, not close but I do know them.”  She described the relationship as “casual” and noted that she worked with the victim’s nephew.

Sometime after the trial, the Appellant’s lawyers discovered that Juror 234 was one of the victim’s wife’s Facebook friends.  (We wonder if his counsel investigated all of the juror’s social media presence.). After learning of the social media link, the Appellant sought a new trial based upon those grounds, a request which the trial court denied.

Unimpressed with the argument, the Kentucky Supreme Court parsed Juror 234’s answers to the voir dire questions, noting that although they were “succinct” she was never directly asked about any social media relationships.  However, the best part of the opinion comes when the Kentucky Supreme Court addresses the issue of how meaningful a Facebook friendship really is:

It is now common knowledge that merely being friends on Facebook does not, per se, establish a close relationship from which bias or partiality on the part of a juror may reasonably be presumed. This principle is well illustrated in this case. Here, an attachment to the supplemental motion for a new trial that Appellant filed with the trial court discloses that Juror 234 had, at the time of the trial, 629 “friends” on Facebook. She could not possibly have had a disqualifying relationship with each one of them. As we held in Sluss, “ ‘[F]riendships’ on Facebook and other similar social networking websites do not necessarily carry the same weight as true friendships or relationships in the community, which are generally the concern during voir dire.” Therefore, no presumption arises about the nature of the relationship between a juror and another person with an interest in the litigation simply from their status as Facebook friends.

So there you have it.  The appellant could not meet “the heavy burden” for challenging the verdict.  Strangely, no one challenged her for cause on the grounds that she casually knew – and worked with – the victim’s family in the real world. Oh, well.

Supreme Court Shoots Down Use of DMV Records for Solicitation of Clients

One way Plaintiffs attorneys identify potential clients is through FOIA requests seeking DMV records.  Not surprisingly, some citizens aren’t pleased about this practice. Recently, a South Carolina case on this issue went all the way to the United States Supreme Court, which held that lawyers may not obtain personal information via state driver license records in order to recruit clients for lawsuits.

In Marachich v. Spears, the justices voted 5-4 in favor of South Carolina residents who objected to solicitations from lawyers to join a lawsuit against car dealers.  The respondent attorneys had used the South Carolina FOIA process to obtain the contact information for thousands of individuals in order to solicit them for a lawsuit pending against several car dealerships.  They used this information to send approximately 34,000 letters explaining the lawsuit and enclosing a reply card to join it.  Justice Kennedy said in his “brief” 31 page majority opinion that this type of solicitation of clients is prohibited by a federal privacy law intended to shield such records.

The Driver’s Privacy Protection Act of 1994 (DPPA) prohibits the use of personal information from motor vehicle records for bulk solicitation.  However, the respondents argued that their use fell under an exception for use of the information in connection with civil or criminal proceedings, including the “investigation of anticipated litigation.”  The majority disagreed, noting that an exception to a general policy statement should be usually be read narrowly to preserve the provision’s primary operation.   They further held that reading the exception to permit disclosure of personal information when there is any potential connection to a legal dispute would undermine the DPPA’s purposes.

Cap’n Crunch Outed, Consumers Cry Foul

Scandal is afoot at Quaker.  Cap’n Crunch has been outed for not being a real Captain.  The truth has been right in front of us for years – the three stripes on Cap’n’s uniform signify the rank of Commander – yet, we have been blinded by Quaker’s deceptive advertising.  Certainly, a class action among the millions duped into enjoying the fraud’s variety of cereals over the years is in the works.

In response to the scandal, the Cap’n took to twitter to declare his innocence:

Tell that to all of the legitimate captains that have come before you, Cap’n.

As Gawker has noted, because Cap’n commands the S.S. Guppy, he is entitled to be addressed as Captain regardless of his official rank.  Even so, consumers have been purchasing the cereal for years under the assumption that it had been blessed by a man who had fully paid his dues.  With no disrespect to Commanders, something about the cereal now seems less fulfilling.

The food and beverage industry must be run amok over the scandal.  Somewhere, we expect the good folks over at Coca-Cola are checking the credentials of Dr. Pepper, hoping the guy actually received his degree.  Can you imagine the outcry if Dr. Pepper lovers discover they have actually been consuming an over-priced Mr. Pibb all these years?  Where will the carnage stop? Companies are right to utilize the services of spokespersons to market their products.  A likeable spokesperson helps consumers identify with a product.  But, companies need to start engaging in thorough background checks in order to save themselves from Quaker’s embarrassment.  Certainly, in this case, checking the official rank of a military veteran would not have been outside the scope of discovery.

Friday Links

Above, you’ll find the cover of COPS #1, published way, way back in 1988.  “Fighting Crime in a Future Time,” proclaims the cover, although we suspect that the constitutional case law must have evolved in the future, as the cops appear to be recklessly and indiscriminately shooting up their jurisdiction.  This comic series, of course, was a tie-in with an animated television series of the same name, which was itself essentially a weekly commercial for a Hasbro line of toys produced during the late 1980’s. Those were the days.

There are process servers, and there are process servers.  We often write about the law, and we sometimes write about music. But we’ve never heard of a musician being served with process while on stage performing a concert.  For more on this unusual story (including video of the service in question), please see here. It’s a sight to see.

So, did everyone see Man of Steel this past week? Any thoughts? (We’ve still not yet seen it. Alas.).

Martha Neil of the ABA Journal asks: “Did Superman have a legal duty to save lives?”  Beware, the article contains Man of Steel spoilers.

This is our 936th post, by the way. Can you believe that?

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 presented by experienced dentists at Eccella Smiles 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. There is a reputable orthodontist that you could go to.

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. First consult a good family dentist for a second opinion on your teeth decisions.

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?


Vote for Breon Walker!

Some of you readers may know Breon Walker, a partner in our Columbia office.  We are pleased to announce to announce she has been chosen to receive the prestigious Nation’s Best Advocates: 40 Lawyers Under 40 award presented by the National Bar Association (NBA) and IMPACT.  The Nation’s Best Advocates: 40 Lawyers Under 40 award recognizes distinguished attorneys within the African American legal community who have earned the highest level of respect and distinction in their legal practice through unrelenting dedication to their profession and community. Award recipients are selected based on achievement, community involvement, innovation, vision, and leadership. As one of this year’s recipients, she is also eligible for five awards that will be given to this year’s Class: Nation’s Best Advocate of the Year, Excellence in Leadership, Excellence in Service, Excellence in Activism, and Excellence in Innovation.  The recipient of each award is selected by a popular vote. Please visit her profile on the Nation’s Best Advocates website to cast your vote for her! Voting has already started,  and it ends on July 15th. You can vote once a day, so please show her your support.

The Results Are In: The Latest Wacky Warning Contest

As you know, this is a products liability blog, and we very often writing about product warnings. In so doing, we’ve previously blogged about the annual Wacky Warning Contest sponsored by Bob Dorigo Jones and the Center for America.  Well, the five finalists of the 16th Annual Wacky Warning Contest have been announced, and so of course, we  had to bring that to your attention.

Our favorite of the final five:

“Not for contact lenses or direct use in eyes.”  A warning on a small bottle of spray-on anti-fog cleaner submitted by Melanie Champagne of Raeford, North Carolina.

Not for human consumption.”  A warning on a package of rubber worms made for fishing submitted by Lars Eckberg of Knoxville, Tennessee.

Sometimes, these warnings are prompted by actual events, and we shudder to think who ate the rubber fishing worms.  Yuck.

You can find the full list and accompanying announcement on the website of Bob Dorigo Jones here.

Don’t forget! Way back in July of 2011, we interviewed Bob Dorigo Jones, and you can read the transcript here.

(Hat tip: Overlawyered).

Guns and Products Liability in Alabama

Maybe I’m naive.  Maybe I just haven’t felt the need to carry a firearm for personal protection in my everyday life.  Maybe I’m just not from Alabama.  But this case confuses me.

Out of the Northern District of Alabama comes the case of Avery v. Cobra Enterprises of Utah, Inc., C.A. No. 2:11-cv-02870, 2013 WL 2532320 (N.D. Ala. May 23, 2013).  The facts are simple.  James Avery was given a Cobra Model C32 derringer by his son.  Beginning in 2004, Mr. Avery began carrying the derringer every day for protection.  As the Court notes, Avery “regularly carried it without the safety engaged.” Here’s a picture of the gun at issue:

Now, you can guess where this is going.  One day, Avery returned home from running errands.  He got out of his car carrying not only the derringer (safety off), but magazines (the reading kind), wallet, keys, and soda bottles.  He got as far as the trashcan, but when he tried to open it, he dropped the gun.  The gun hit the ground and discharged, like Complete AK 47 rifles would, shooting Avery in the abdomen.

Avery sued Cobra Enterprises, the manufacturer of the derringer, asserting several theories of products liability; however, the only claim that survived to the summary judgment stage was a claim for breach of implied warranty of merchantability.  Under Alabama law, one of the requirements is that a product must be “fit for the ordinary purposes for which such goods are used.”

Avery’s lawyers did something clever with this claim after Cobra filed a motion for summary judgment.  They claimed that “ordinary purposes” include not only those uses intended by the manufacturer or seller, but those which are reasonably foreseeable.  Their argument is that the manufacturer of a firearm should have reasonably anticipated that a carrier of the derringer might need to fire the gun so quickly, that “a pause to disengage the two safety features [of the derringer] would destroy the defensive advantage he was buying.”

The Court basically called this out as the “wild west” argument, but unbelievably, denied Cobra’s motion for summary judgment, in part on this basis:

This is analogous to the reasoning of hair trigger artists of the Old West.  It may be an uphill battle for the Averys to convince a jury that there exists such a reasonable expectation, either by seller or by user, but on the current state of the evidence, the Averys will be afforded the opportunity to put their theory to the jury test.

Unbelievable.  One other point should be made about Avery, lest you think that he, like me, was simply naive about the way guns work and how they can be safely handled on an everyday basis:

Avery had experience with firearms throughout his life. He went hunting for the first time at age 6, used a pistol around age 8, handled a semi-automatic handgun around age 18, and has carried a pistol permit since the age of 18. He also served in the Navy where he received formal firearm training. He had experience both with firearms that have manual safeties and firearms that have no safeties at all. He had no experience with a derringer until he acquired the one at issue. Upon receiving any new firearm, he always examined it himself to figure out how it works, but he does not typically read the instruction manual right away. He said he “probably … looked over” the derringer’s manual at some point while he owned it. Avery July 18, 2012 depo at 53. He testified that he knew a firearm could discharge if mishandled, but he did not know that a firearm could be expected to discharge if dropped while fully loaded with the safety off.
I’ll withhold further commentary here, except to say that I hope that the jury gets a well drafted contributory negligence charge from the Court.  Sharpen your pencils, counselors.