Above, you’ll find the cover of Four Color #56, published way, way back in 1944. Prominently depicted on the cover is hero detective Dick Tracy. Now, we here at Abnormal Use aren’t criminal lawyers, but we’ve watch enough television to know that the investigating detective probably shouldn’t be touching the body with his bare hands before it’s even been removed from the scene of the crime.  What the heck? Maybe criminal procedure was a bit different back in 1944.

The Rolling Stones have started up litigation against a company alleging misusing their super famous logo.

Walter Olson has the latest on the feud between the Consumer Products Safety Commission and the manufacturer of Buckyballs.  We’ve previously written on this controversy here and here.

If you’re looking for photographs of abandoned tanks, you are in luck.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

“Exercise gives you endorphins. Endorphins make you happy. Happy people just don’t [sue their exercise clothing manufacturer], they just don’t.” – Elle Woods, Legally Blonde. Or do they? So, fitness is not usually a hot law topic; rather, lawyers tend to talk about fitness only as something they should do but do not have enough time for or as something that keeps them sane in the crazy world of the billable hour. Fitness is serious business.  Gone are the days of just going to the local YMCA for an aerobics class in a leotard and legwarmers or walking around the block in a big t-shirt and a tattered pair of Umbros.  Now, gyms are no longer one-stop shops; rather entire exercise studios are built around offering only one activity at a premium, and each seems to have its own dress code. But once you start going, you become hooked and find it normal to buy the $12 socks with special traction, the $40 sweatshirts that fall just-so off your shoulders so that you can wear it to and from exercising, the $65 dollar yoga mat that incorporates a towel into the mat itself, and do not forget the $90 pair of pants everyone says makes your backside look like you have never skipped a day of squats and lunges.

For those of you that do not know, Lululemon Athletica, Inc., a Delaware corporation with its principal place of business in Vancouver, British Columbia, is the chic, “it” fitness brand.  The easily distinguishable logo can be spotted all over town while running errands or even at brunch.  In addition to its products, Lululemon gets involved in each community in which it opens a store.  Lululemon’s pants are not your run-of-the-mill cotton exercise pants.  The fabrics are more hi-tech and breathable; the waistband is more flattering; and the cut is just more flattering to a woman’s backside.  However, in recent months, Lululemon has become associated more for what it is covering up in its books and less for what it is covering up for its customers.

In March 2013, the retailer recalled 17 percent of its stock of yoga pants. Specifically, customers that purchased the pants at issue on or after March 1, 2013 noticed and began complaining that the people behind them in their yoga classes were getting more than the “communal energy” created in the room.  Let’s just say that when the class went into downward facing dog—or really any pose that involved bending over, of which there are many, it was more of a peep show than a show of strength and flexibility.  Lululemon offered exchanges and refunds for these pants in addition to pulling the remaining pairs off of the shelves.  In a Form 8-K Securities and Exchange Commission filing on April 3, 2013, Lululemon admitted the fabric used in its black luon products was “on the low end of lululemon’s tolerance scale,” and that the company found that its “testing protocols were incomplete for some of the variables in fabric characteristics.” Although there are those that say—generally men who do not do yoga—that they would actually go to yoga to be behind these translucent pants, those who paid the premium to purchase the high quality product marketed by Lululemon have not been laughing.

Yet it has not been the customers who have provided the biggest backlash over the pants.  To date, there have been no lawsuits alleging a design defect causing injury or a failure to warn.  Instead, Lululemon’s shareholders have felt the most betrayed by the seeming lack of quality control, and their anger has taken shape in the form of two complaints alleging securities violations and breaches of fiduciary duty, Hallandale Beach Police Officers & Firefighters’ Personnel Retirement Fund v. Lululemon Athletica, Inc., No.8522-VCP (Del. Ch. May 3, 2013 & July 1, 2013), and Alkhoury v. Lululemon Athletica, Inc., No. 13-CV-4596 (S.D.N.Y. July 2, 2013).

The Plaintiff in Hallandale claim brought this action as a common stockholder of Lululemon alleging possible breaches of fiduciary duty on the party of officers and directors.  Brought in Delaware, the premise of this complaint is that Lululemon has not allowed Plaintiff to inspect its corporate books and records as provided in Section 220 of Delaware’s General Corporation Law.  Basing its complaint and amended complaint on a New York Times article, “Recall is Expensive Setback for Maker of Yoga Pants” and several of Lululemon’s most recent Form 8-K filings regarding the recall and the termination of the company’s Chief Products Officer, Plaintiff alleges the recall cost approximately $60 million and cost the company a lot of its popularity.  The amended complaint further alleges that in the midst of dealing with the fallout from the recall, the Lululemon board of directors still increased the maximum allowable payout for the executive bonus plan. The amended complaint states a cause of action for breach of fiduciary duty in that Lululemon’s chairman sold $50 million of his own stock on the day that Lululemon’s Chief Executive Officer stepped down, causing the value of the stock to decrease by 22 percent in two days.  Plaintiff claims it sent two demand letters to Lululemon demanding to inspect certain portions of its books but that the retailer did not resopnd to the demands.

Although filed around the same date as the Hallandale amended complaint, the Alkhoury complaint expands upon, in very specific terms, the allegations of the Hallandale litigation.  Notably, it is a class action, including all common stockholders that purchased or held Lululemon stock during the class period of March 21, 2013 through June 10, 2013.  The complaint alleges a violation of two sections of the Securities Exchange Act, Section 10(b), Rule 10b-5, and fraud on the market against Lululemon and Section 20(a) against the founder and Chairman of the Board of Lululemon, Dennis J. Wilson, and CEO, Christine McCormick Day. Specifically, Plaintiff claims that defendants knew Lululemon cut corners to keep profit margins up as competition in Lululemon’s niche market stiffened. Plaintiff further claims that the price of Lululemon stock was artificially inflated by the announcement of the fourth quarter and fiscal 2012 financial report for the period ending February 3, 2013 and other positive statements regarding increased quality-control measures following the recall.  Plaintiff further claims that at that time, defendant Wilson was selling 2 million shares of his personally-owned stock on the open market and receiving more than $163 million in gross proceeds during a very short trading window lasting from May 10, 2013 to June 7, 2013. It is alleged these sales were unusual both in sheer size and timing, as defendant Wilson had not sold Lululemon stock since January, and he was then aware of internal turmoil at Lululemon. Plaintiff claims that as a result of Day’s resignation from her position as CEO, the price of Lululemon stock, which had traded as high as $82.50 per share during the class period, plummeted more than 17.5 percent to close at $67.85 per share on June 11, 2013, erasing more than $1.6 billion in market capitalization. Thus, Plaintiff alleges that during the class period, defendants made false and misleading statements, engaged in a scheme to deceive the market, engaged in a course of conduct that artificially inflated the price of Lululemon common stock, and operated as a fraud or deceit on Plaintiff by misrepresenting the value of the company’s business and prospects by overstating its earnings and concealing the significant defects in its internal controls. Therefore, Plaintiff alleges that as defendants’ misrepresentations and fraudulent conduct became apparent to the market, the price of Lululemon common stock fell precipitously, and as a result of their purchases of Lululemon common stock during the class period, Plaintiff and other members of the class suffered economic loss, i.e., damages, under the federal securities laws.  Alkhoury has been designated a “complex civil case” for purposes of the Southern District of New York’s pilot program on complex civil case management, and as part of that designation and based on a July 8, 2013 Order, all defendants must have been served by July 15, 2013.

Both Complaints allege fraudulent behavior on the part of Lululemon and its officers; however, proving a breach of fiduciary duty can be much easier than proving fraud directly since plaintiffs do not need to prove criminal or fraudulent intent or the other elements of fraud. To prevail on a breach of fiduciary duty, the plaintiff must show only that the defendant occupied a position of trust or fiduciary relationship and that the defendant breached that duty to benefit personally. However, Rule 10b-5 prohibits fraudulent conduct in connection with the purchase or sale of securities; accordingly, it prohibits a person from employing any device, scheme, or artifice to defraud; making any untrue statement of material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or engaging in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. To prevail on such a securities fraud claim requires the showing of (1) a misrepresentation or omission of, (2) a material fact; (3) reliance thereon; (4) causation; (5) damages; (6) scienter or fraudulent conduct; (7) in connection with the purchase or sale of a security. Therefore, the way in which the Hallandale complaint is pled may get the desired result for shareholders more easily Alkhoury.

At this time, no answer has been filed in either of these cases.  It will be interesting to see how Lululemon balances these related matters and what is found if and when Lululemon allows its books to be reviewed.  Either way it seems that Lululemon is going to remain in the hot seat for a while even though its stock price has rebounded since these lawsuits were filed.  The stock price went from $82 per share before CEO Day stepped down following the sheer pants drama to as low as $57 per share, but the stock has been steadily climbing back, currently hovering around $72 per share.  Namaste.

Recently, we provided some commentary about an Alabama court’s interpretation of what is “reasonably foreseeable” with regard to the operation (or accidental operation) of a handgun.  As a quick reminder, that case involved a man who wound up shooting himself in the stomach because he carried his gun without any safeties engaged.  That court denied the gun manufacturer’s motion for summary judgment, buying the argument by the plaintiff’s lawyers that a gun manufacturer 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.” Today, we will continue our inquiry into what different jurisdictions perceive to be “reasonably foreseeable” in the products liability context.  Conveniently, this also continues another journey we seem to be on: the search for the stupidest plaintiff.

The case is Mohr v. Yamaha Motor Co., Ltd., A-5194-10T4 (N.J. Super. Ct. App. Div. July 19, 2013).  The plaintiff in this case lifted up the back of his friend’s Yamaha snowmobile–while the engine was running.  The track broke while the end was in the air and gave the plaintiff such a bad leg injury that the leg had to be amputated.

The plaintiff sued Yamaha on theories of products liability, “claiming that . . . Yamaha had failed to provide an adequate warning against lifting the machine while it was running.”  At trial, the jury found Yamaha liable for failure to warn.  There is some interesting commentary about the presence and adequacy of the warnings, but we find the issue of “foreseeable misuse” more interesting, in light of our recent Alabama gun case.  The court in this case provided some reminders about use and misuse under New Jersey law:

A “volunteer” can be defined as one who offers to provide a service willingly and without pay.  Apparently, one New York resident wants to rewrite the definition of volunteer.  John Chen was one of many persons that volunteered to work for free at Major League Baseball’s 2013 All-Star Fan Fest.  Now, after the fact, Mr. Chen is looking to get paid and has filed suit claiming that MLB violated wage laws. I always thought the minimum wage for volunteers was $0.  Surely, there must be more to this story, right? Allegations of fraud and deception? Broken promises? Nope, there’s nothing of the sort.

During a recent bout of boredom, we discovered the Wikipedia page for “Service of Process.”  After reading through the standard fare for manner of service, we came across this interesting tidbit:

Courts in at least two Canadian provincial jurisdictions have allowed for substituted service via Facebook.

Service via Facebook?  Certainly, it can’t be legitimate to write, “You’ve been served,” on someone’s Facebook wall and have that hold up in a court of law.  We thought that this must be a case of a wiki author having fun editing a page to poke fun at Canadians, right?  Wrong, the Court of Quebec did in fact hold back in 2011 that Facebook messaging was an appropriate method for service of process.

In Boivin v. Scott et al., a Canadian plaintiff for whatever reason encountered difficulty serving a Florida resident.  In response, the Quebec court held (via Google Translate, mind you):

The only way for the plaintiff to the defendant to convey the original application is through his Facebook address. Indeed, it is a direct and convenient way to notify the defendant that proceedings are taken against her so she could prepare his defense and to be heard, which meets the main purpose of the service.

The court was certainly correct in that Facebook service would be direct and convenient – at least for the plaintiff.  The defendant gets to finally look forward to a Facebook notification that has nothing to do with Farmville.  Of course, that only applies if the plaintiff served the correct Facebook profile in the first place.

As technologically savvy as we may be, in our opinion, due process should never take a back seat to convenience.  There are reasons why personal service is preferred and that substituted service should only be used as a last resort.  The rules are designed to protect defendants, making sure they are properly notified of suits against them.

Service by Facebook, while convenient for the plaintiff, lacks these safeguards.

Facebook service simply has too many questions.  Here are a few that come to mind:

• Just because a Facebook profile looks to be that of the defendant, who can guarantee it is?  Facebook contains millions of accounts, many real and many fake.  Serving the Facebook account of “John Doe of Greenville, SC” does not assure that the correct John Doe was actually served.
• Not that plaintiffs would ever be so sinister, but what prevents a plaintiff from making a Facebook profile for the defendant he wants to serve for the purpose of service?  If you can make a Facebook page for God, making one for the defendant is not outside the realm of possibility. What safeguards exist to guard against such malfeasance?
• Lastly, even if a person is served to the proper Facebook account, how does one know that the defendant actively uses the account and would find the complaint?  Certainly, there are tons of people with Facebook accounts who haven’t accessed them in years.  The accounts still show as active even though they have not been officially de-activated.  Do we really want to equate Facebook profiles in the same vain as a last known address? Plus, what if the account is active, but the message ends up in the somewhat hidden “Other” mailbox?

With all these questions, service by Facebook is not a process we would feel comfortably advocating.  Unfortunately, however, we think that this may be the wave of the future.  At least one U.S. court has ordered service of process by Facebook message.  We expect many more to come.

Above, you’ll find the cover of Superboy #90, published way, way back in 1961.  With all this talk of surveillance and privacy in the news these days, we feel compelled to share this issue, which features Lana Lang using a “time-telescope” to spy on future Superman and Lois Lane. “This horrid time-telescope which looks into the future!” Lana exclaims to herself. “It reveals that when Superboy grows up into Superman, he’ll forget me for that reporter, Lois Lane. I’d better do something about it now!” The question: Would the images set forth on the time telescope be admissible in a court of law? We doubt it.

The former members of the historic punk group Black Flag are suing each other. Those are some depositions we’d like to see.  For more, read here.

Adam Davidson of The New York Times had an interesting piece recently on the practice of keeping and billing time. Of course, it goes back to lawyers. An excerpt:

The notion of charging by units of time was popularized in the 1950s, when the American Bar Association was becoming alarmed that the income of lawyers was falling precipitously behind that of doctors (and, worse, dentists). The A.B.A. published an influential pamphlet, “The 1958 Lawyer and His 1938 Dollar,” which suggested that the industry should eschew fixed-rate fees and replicate the profitable efficiencies of mass-production manufacturing. Factories sold widgets, the idea went, and so lawyers should sell their services in simple, easy-to-manage units. The A.B.A. suggested a unit of time — the hour — which would allow a well-run firm to oversee its staff’s productivity as mechanically as a conveyor belt managed its throughput. This led to generations of junior associates working through the night in hopes of making partner and abusing the next crop. It was adopted by countless other service professionals, including accountants.

Friend of the blog Walter Olson, himself of the Overlawyered blog, had a letter to the editor published in The Washington Post. Check it out.

Here’s a warning label on one company’s football helmet: “No helmet system can protect you from serious brain and/or neck injuries including paralysis or death. To avoid these risks, do not engage in the sport of football.” How about that? For more on that label, see this piece at the ABA Journal by Debra Cassens Weiss.

Finally, don’t forget that today is THE LAST DAY to submit your nominations to the ABA Journal for its Blawg 100 competition. For information on how to submit, see here.

Let us turn to Jewell v. Aaron’s, Inc., No. 1:12–CV–0563–AT (N.D. Ga. July 19, 2013), for another social media discovery request. You know how we love to talk about such things.

The request at issue, to be served on a “randomly selected” set of 87 opt-in plaintiffs in the overtime/wage class action, was:

Request for Production No. 4: All documents, statements, or any activity available that you posted on any internet Web site or Web page, including, but not limited to, Facebook, MySpace, LinkedIn, Twitter, or a blog from 2009 to the present during your working hours at an Aaron’s store.

At first glance, that seems like a relatively broad request, as it seeks production of all social media posts from 2009 to present.  (In fact, the phrasing of the request, particularly its reference to activity “posted on any internet Web site,” suggests that all comments to blog posts, newspaper articles, or any other website in general would also be responsive to the request.). But note that it limits the request to posts made “during your working hours at an Aaron’s store.”

Might that make the request more palatable to the court?

Let’s see.

In response to the Plaintiff’s objection to the request, the court noted as follows:

Plaintiff objects to the request as unduly burdensome because identifying, obtaining, and producing all statements posted on Facebook or other social media sites from 2009 to the present during work hours of all 87 sample opt-ins would be a “tedious and incredibly time-consuming task.” Plaintiff contends that responding to such a request would require Plaintiff’s counsel “to assist the opt-ins in making a day-by-day, hour-by-hour search of the websites, comparing the date and time of each posting with the schedule of workdays and hours to determine if they coincided.” By way of example, Plaintiff contends that Facebook does not contain a search function, Facebook posts do not contain a timestamp, and such information can only be obtained by “individually interacting with and clicking on each post.” As a result, Plaintiff “estimates” that such a task could require anywhere from 1,323 hours to 26,462 hours depending on the number of daily posts made by each opt-in plaintiff. Plaintiff offered no evidence to support these assertions.

The Court has attempted to verify the accuracy of Plaintiff’s assertions and the potential burden imposed by Defendant’s request. Facebook employs a feature that allows a user to download her Facebook data, including “timeline” information, “wall” postings, activity log, messages, and photographs directly from the website. Once downloaded, the user may view all posts/activity in a single document in chronological order with a date/time stamp.

Indeed. Defense counsel are catching onto this technique and sometimes asking Plaintiffs directly to download all of their Facebook data and produce it directly.

However, the Court didn’t buy it, noting that the “exemplar evidence” from the named Plaintiff “did not persuade [it] that the Facebook postings will show, contrary to Plaintiffs’ claims, that they were not forced to work through their meal periods,” which was apparently one of the issues raised in the case.  In coming to that conclusion, the Court agreed with the Plaintiff that “whether or not an opt-in plaintiff made a Facebook post during work may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period as defined in 20 C.F.R. § 785.19.”

In the end, the Court found that the defendant’s justification was mere hope that they might uncover relevant evidence and that the burden imposed upon the opt-in plaintiffs would be too great.

Oh, well.

In the past several weeks, we have commented upon two cases involving a Facebook friendship and its effect on pending civil and criminal litigation. One matter involved a family law matter in which a judge was Facebook friends with the daughter of two competing divorce litigants. Another involved a criminal case in which a juror was Facebook friends with a relative of the victim of the homicide being prosecuted. In both of those cases, the appellate courts discussed generally the nature of a Facebook friendship, but they did not probe more deeply into the specifics of the Facebook friendships at issue. Certainly, the trial counsel in the underlying cases could have litigated the nature and depth of the social media connection more deeply (and in fairness, perhaps they did, but such details did not make it into the appellate opinion). This post will offer a few questions that can be asked to probe these issues more deeply.

When did the Facebook friendship come into being? This is an important question because the origin of the Facebook friendship in question is quite relevant. Did it occur years before the trial? Did it occur prior to or during the events being litigated? Was the friendship request instituted because of a familiarity brought about by the events being litigated? Or, did the Facebook friendship predate the events being litigated and its origin have little, if nothing to do with the matter being tried?

How can the Facebook friendship be characterized? Sometimes, judges, as local officials, maintain Facebook profiles, and it may be that throngs of citizens in the community have connected with their local officials via social media. Thus, it may be telling to know how many Facebook friends each party to the friendship has. Are there thousands, or are their dozens? This may make a difference. This is true even if the individuals are not public figures. Do the users accept every friend request they receive, or are they more discriminating? Have they simply connected via a Facebook friendship, or do they utilize that friendship to communicate further? Do they post on each other’s Facebook walls? Do they send private messages? If so, when, and how often? And, of course, have they ever communicated about the subject matter being litigated through social media?

Who instigated the Friendship request? This could also be important. Again, if one of the parties to the friendship is a judge or community figure, it may be that they are inundated with friend request, of which the friendship at issue was once one.  However, it may be that the friendship at issue was borne of a closer connection, and thus, the identity of the instigating party should be determined.

What is being published on the two profiles at issue? To adequately address this inquiry, one would need to know what the parties to the Facebook friendship might have learned from each other during the friendship itself. Are the friends able to see each other’s private profiles (which may not be accessible to members in the general public)? Have either of the parties to the Facebook friendship posted on their profiles about the events being litigated? Might one friend have seen relevant information about the case on another’s profile?

Have the two met in real life? It’s always important to determine if the parties have met IRL or, rather, if the Facebook friendship is evidence of an offline friendship, as well.

Accordingly, these are issues which should be addressed in any such inquiry.

As we previously noted, the deadline to nominate a legal blog to the ABA Journal‘s list is rapidly approaching:  it is August 9, 2013.

That’s THIS Friday, people.

The rules prohibit us from nominating ourselves, which is probably a good thing, as that spares us the embarrassment of doing so. We probably couldn’t resist the urge to do so if the rules permitted it, so thank goodness we can avoid the issue altogether.

As we’ve previously noted, there are many great legal blogs out there, and we hope that even if we are not your favorite that you will still participate in this process and nominate your favorite blog.  Some of our favorite legal blogs are:

• Popehat. Remind us to never, ever run afoul of Popehat’s Ken White, a criminal defense attorney and fierce defender of online free speech. He dedicates his time and his writing to skewering those who attempt to censor free speech on the Internet.
• The Drug and Device Law blog. The team behind this site, including Jim Beck, Stephen McConnell, Michelle Hart Yeary, John Sullivan, Eric Alexander, and Steven Boranian, clearly know their stuff.  In fact, their posts offer the type of exhaustive detail and extensive analysis that you typically don’t encounter on legal blogs. A fine resource, if you find yourself in this practice area. (Plus, McConnell knows his pop culture, so there’s that.).
• Torts Blog. Run by friend of the blog and law professor Alberto Bernabe, this is a site you need on your blogroll.
• Overlawyered. We’ve noted before that we’ve been reading Walter Olson’s Overlawyered blog for more than a decade. To be honest, we don’t know how Walter does it. He’s one of the most prolific writers and tweeters in the online legal world. A must read.
• The Law and The Multiverse blog. A blog analyzing legal issues in the comic book universe? Why didn’t we think of that? Run by James Daily and Ryan Davidson, this blog is not to be missed.
• Litigation & Trial. Every once and again, we like to leave our comfort zone and read a Plaintiff’s lawyer’s blog.  Well, there is none better than this one operated by Max Kennerly. We disagree with him, lots, in fact, but it’s always good to read opposing views.

You can complete the very brief nomination form here.  It will only take you a few moments.

Despite what you might think from reading our posts here at Abnormal Use, not all McDonald’s litigation concerns hot coffee.  As obsessed as we are with the subject, this revelation came as a bit of a surprise.  It is shocking to learn that in the post-Stella Liebeck era any non-coffee related information could be considering newsworthy – especially for a distinguished legal blog.  Thankfully, our eyes have been opened or else we would have missed out on these two incredible stories.

Back in July,  an intoxicated Florida woman was arrested after blocking a McDonald’s drive-thru in search of free Big Macs for breakfast. According to the Consumerist, the woman pulled up to the drive-thru around 6:00 a.m. and demanded two free Big Macs as retribution for past discrepancies.  After being told that Big Macs are not available for breakfast, the woman politely changed her demand to two free Egg McMuffins.  Sounds reasonable.  Unfortunately, McDonald’s balked at the idea of giving away free food and asked the woman to leave.  She valiantly responded by blocking the drive-thru until police arrived.  She was arrested for DUI and apparently taken to jail hungry.

Last week, a Georgia man called 9-1-1 after McDonald’s allegedly messed up his order.  According to reports, the man entered the restaurant and ordered 7 McDoubles, a McChicken, and an order of fries to-go.  When the man returned to his truck, he discovered that the employee placed not 7, but 6, McDoubles in the bag.    He then re-entered the restaurant and apparently got some “attitude” from the employee rather than his AWOL burger.  The man’s response?  Call 9-1-1 and report that his burger had been swapped with a serving of ‘tude.  The police were not fond of the man’s use of the emergency response system, arresting the man and having him spend a night in jail.

Even though these cases do not involve coffee, they share a common theme:  Mess with McDonald’s and expect to make the news.