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.”

ABA Releases Ethics Opinion On Juror Social Media Research

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Recently, his piece, “ABA Releases Ethics Opinion On Juror Social Media Research,” was published in the Defense Research Institute’s Trials and Tribulations Newsletter. In the piece, he surveys and comments upon the recent ABA rulings and notes its broader implications.

Here’s the first two paragraphs of the article:

In 2014, we, as practicing defense lawyers, find ourselves more than a decade into the age of social media in litigation. These days, without fail, nearly every legal publication and trade journal of note features an article about the value of social media in litigation. Over the years, we’ve learned the benefits of an online investigation of Plaintiffs (and the potential for splendid impeachment material which can arise from such queries), efforts to explore the backgrounds of Plaintiffs’ retained testifying experts , and of course, the general perils of lawyers using social media. We all know that prospective and sitting jurors use – and occasionally abuse – social media. In fact, these days, when preparing for trial, litigators rely upon social media data in determining which prospective jurors to consider or strike from the venire panel. Recently, on April 24, 2014, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466, entitled “Lawyer Reviewing Jurors’ Internet Presence.” Generally, this comprehensive nine page ethical opinion offers guidance to litigators using social media to investigate potential and sitting jurors. Interpreting pre-Internet principles and applying them to the ever growing social media landscape, the new ABA opinion, as persuasive authority, offers guidance on these issues. The bottom line: When preparing for trial and investigating jurors, be mindful of the potential ethical issues at hand.

First and foremost, yes, litigators can investigate and review publicly available social media profiles of sitting and prospective jurors. The ABA opinion provides that “a lawyer may passively review a juror’s public presence on the Internet.” Like many, jurors have profiles on Twitter, Facebook, and LinkedIn (and countless other sites), and lawyers can input the juror’s name into their search engine of choice and review the results without fear of ethical implications. This conclusion makes perfect sense, as there is no reason to deprive lawyers of the ability to access information that the juror has published online for the world to see. In the opinion, the ABA committee likens this “passive review” of such public information to a lawyer “driving down the street where the prospective juror lives to observe the environs in order to glean publically available information that could inform the lawyer’s jury-selection decisions.”

For the rest of the article, please click here.

Juggalo Lawsuit Against The FBI And DOJ Dismissed For Lack Of Standing

Earlier this year, the Insane Clown Posse and several fans sued the Department of Justice and the FBI in federal court in Michigan for designating Juggalos as a “loosely organized hybrid gang” in the 2011 National Gang Threat Assessment, which cites a National Gang Intelligence Report about the Juggalos.  Both the NGIC report and the FBI report described increasing criminal activity among Juggalos.  In its report, the NGIC noted that over the years, two sides of the Juggalo sub-culture had emerged and that there were two very different factions of Juggalos, the music fans and the criminal street gang.  IThe FBI report does not distinguish between the two factions.

According to the complaint, people with Juggalo tattoos and clothing were targeted by police and denied jobs as a result of the FBI’s report.  The Justice Department maintained that ICP and its fans lacked standing to sue because the government is not responsible for how police agencies use the information in the gang reports. Agreeing with the Justice Department, the court dismissed the lawsuit last month due to the Plaintiffs’ lack of standing.  In his opinion, U.S. District Court Judge Robert Cleland held that because “Plaintiffs complain of independent actions by third-parties who are not currently before the court” and “the court is reluctant to endorse standing theories that rest on speculation about the decisions of independent actors.”   The Court noted that the alleged discriminatory actions were performed by independent third-parties and not at the direction of the FBI or DOJ.  ICP and the Michigan ACLU have vowed to appeal the decision. To be honest, from a standing perspective, this sounds like the correct result.

Unfortunately, the actions of a small portion of a population appear to have stigmatized the entire group.  Admittedly, we here at Abnormal Use know little about the oeuvre of Insane Clown Posse or the Juggalo subculture.  We do know that they apparently sometimes wear face paint, drink Faygo, and question the power of magnets.  And now, all of  the non-violent Juggalos have little legal recourse against the feds on this issue.

(See also: Huffington Post).

EPA Launches Investigation Into Its Own Troubling Environmental Issues

The stated mission of the United States Environmental Protection Agency (EPA) is to “protect human health and the environment.”  However, a recent scandal is forcing the EPA to focus its mission inward.  Reportedly, the EPA Denver office recently sent an email to all employees regarding “recent incidents” including “an individual placing feces in the hallway.”  Apparently, the EPA is “taking this situation very seriously and will take whatever actions are necessary to identify and prosecute these individuals.”  Criminal charges could include “disorderly conduct” or “vandalism.” We at Abnormal Use remain confused and troubled by this news.  Is this ironic environmental scandal worse than the NSA domestic surveillance debacle?  Possibly.  We just hope that the miscreant offenders face justice so that these federal antics don’t become a trend, like Tebowing or planking.

(Hat tip: FindLaw).

Friday Links


As our editor recently tweeted, we here at Abnormal Use recently stumbled across the comic book cover above, that of Avengers #228, published way, way back in 1983. “At Last! The Trial of Yellow Jacket!” the cover proclaims. If you only know The Avengers from the recent films, you may be unfamiliar with Yellow Jacket a/k/a Hank Pym a/k/a Ant Man a/k/a as Giant Man a/k/a Goliath. He’s also the creator of the villainous robot Ultron (who will apparently be the main menace in the upcoming Avengers film sequel). Anyway, the producers of the Avengers films didn’t see fit to include Pym in the films, despite his status as a founding member of the group in the comics. Let’s just say, though, that he had some issues, as you might suspect from the cover above. Visible in the courtroom are She-Hulk, Captain America, Hawkeye, Thor, and Janet Pym a/k/a The Wasp, whose troubled marriage to Hank was explored in the comics for years. Here’s a summary of the issue we located:

While both the Avengers and the general public anxiously await the outcome of Hank Pym’s trial for treason, Egghead again reforms the Masters of Evil and sends them to the courthouse to free Hank. During the resultant battle with the Avengers, the newly recruited Radioactive Man unleashes a gamma ray burst which changes the She-Hulk back to Jennifer Walters, thus turning the tide in his allies’ favor. Despite the heroes’ best efforts, their opponents succeed in spiriting Hank away, while deliberately leaving behind a brainwashed Shocker to assert that the former Avenger planned his own escape. Now believing that he can never be cleared, the captive Hank is seemingly coerced into aiding Egghead’s latest scheme.

An Avenger on trial for treason, eh? How about that? In fact, we once wrote about this trial back in early 2013. For that edition of Friday Links, please see here.

In case you missed it, South Carolina Bar President Cal Watson penned an editorial entitled “Lawyers fight for America’s founding principles” for The State newspaper. You can read it here.

You know, we write a lot about McDonald’s litigation and hot coffee, but we’ve never written about bears at McDonald’s.

“Too Fast” Bat Decision Upheld By Tenth Circuit

Not too long ago, we reported on the decision of an Oklahoma federal court to toss a $951,000 jury verdict against Hillerich and Bradsby, the manufacturer of Louisville Slugger baseball bats. As you may recall, the jury had awarded a 15-year old boy and his parents nearly $1 million after he was struck in the face by a line drive, causing severe facial injuries. In reaching its decision, the jury determined that the aluminum bat was defective and unreasonably dangerous because it could hit a ball faster than its wooden counterparts – a condition for which Louisville Slugger failed to warn. Moreover, it determined that the boy did not assume the risk of injury when electing to play baseball. The court held, however, that there was “no basis for a reasonable jury to find that the bat had ‘dangerous characteristics.’”

In an unpublished decision, the Tenth Circuit Court of Appeals recently affirmed the trial court’s decision to grant Hellerich’s motion for judgment as a matter of law. In a well-written opinion, the Court examined the plaintiff’s theory that the bat was unreasonably dangerous because it hit a ball “too fast.” In order to recover on such a theory, logically the plaintiff would need to show the the speed of a ball off of an “ordinary” bat versus the speed of the ball off of the bat at issue. Because the plaintiff produced no objective evidence of either component, the Court held that the district court judge did not err in correcting the jury’s verdict on defective design. The opinion can be found at Yeaman v. Hillerich & Bradsby Co., No. 12-6254 (10th. Cir. June 30. 2014).

While this case involves a much different set of facts and rests on a different theory of recovery, it is an interesting contrast to the recent flying hot dog opinion in which the court held that the risk of being hit by a flying dog was not inherent to baseball and, thus, a baseball team could not be shielded from liability. The risks of being injured by a ball struck by a bat are clearly inherent to the game. This Louisville Slugger case, on the other hand, attempted to establish that the bat was somehow unreasonably dangerous beyond those inherent risks. An interesting theory, to be sure. While the jury may have bought it, the court saw otherwise.

Lindsay Lohan Alleges That Grand Theft Video Game Steals More Than Autos

Lacey Jonas

Apparently, if believe the news, pro se Plaintiff Jonathan Lee Riches isn’t the only person to have fallen victim to “Batman and identity robbin.”  Troubled actress Lindsay Lohan recently filed suit against the makers of the Grand Theft Auto V video game alleging that they improperly used her likeness in a “a look-alike side mission.” The character in question is named Lacey Jonas and begs the main character for a ride so that she can avoid the flock of paparazzi chasing her. This is not Lohan’s first legal action involving an alleged theft of her likeness.  In 2010, Lohan sued E-Trade in connection with a baby’s reference to “that milkaholic Lindsay” during an E-Trade ad aired during the Super Bowl.  In 2011, Lohan sued Pitbull for a reference in one of his songs to having it “locked up like Lindsay Lohan.” It will be interesting to see how this one turns out.  We at Abnormal Use are thankful to Lindsay for the material.  Keep it coming!

(Hat tip: FindLaw).

And the 2013-2014 Judicial Hellhole Finalists Are . . .

We here at Abnormal Use love awards shows. Sure, call us saps, but we must confess our interest in such things. The Upstate of South Carolina is abuzz with talk of Lanie Hudson, Clemson student and Anderson native, taking the Miss South Carolina crown.  In similar pageant news, the American Tort Reform Foundation has released this year’s list of “judicial hellholes.”  The short list is here, and the full report can be found here.

This year’s standouts are South Florida, Madison and St. Clair Counties in Illinois, New York City, the entire state of California, all of Louisiana, and beautiful West Virginia.  This year’s notable snubs include this author’s former state of Mississippi, although Jones County, Mississippi did make the “watch list.” We welcome your thoughts on this year’s honorees as well as the concept of naming such jurisdictions hellholes in the first place.

Google Wiretapping Trial Moves Forward

We take for granted how the world of navigation has changed in the last twenty years.  Growing up, we would unfold enormous and unwieldy maps and attempt to plot the best way to travel around new cities.  Then, with the arrival of new technology, travelers then turned to MapQuest and printed their specific directions.  In fact, in the early 2000’s, I myself used eleven printed pages of MapQuest instructions to navigate across this great country of ours.  However, somewhere along the way, the printed pages also sank into the depths of history.  We now use apps on our smart phones to provide turn by turn directions; they update themselves in real time and provide a plethora of related information, like Google Street View.  In 2013, Google Street View cars had covered more than 3,000 cities and 6 million miles since the project began in 2007, reported CNN.  However, that level of technology and accessibility apparently comes with a price.

Recently, the U.S. Supreme Court refused to hear Google’s challenge to a lawsuit which alleged that the Internet behemoth’s Street View Cars spied on individuals by collecting personal information from private Wi-Fi networks.  The information accessed included emails, passwords, web histories, and text messages.  Google does not deny that such invasions into privacy occurred.  In fact, in 2010, Sergey Brin admitted that “[Google] screwed up” and that he “would not make any excuses about it.” Google has since blamed a rogue engineer and announced that the information was stolen “mistakenly.” In 2011, Google paid $7 million dollars and agreed to destroy the data to settle a case brought by 38 states for violating federal wiretapping laws.  The settlement did not include private actions. Recently a federal appeals court upheld a ruling that Google had indeed violated the U.S. Wiretap Act.  Apparently, Google then sought refuge in the U.S. Supreme Court, arguing that Wi-Fi networks fell within the radio signal exception to the Wiretap Act.  On June 30, 2014, without explanation, the Supreme Court declined to hear the appeal.

It remains to be seen whether Plaintiffs’ class action suit will be granted certification or whether Google can ultimately prevail on its theory that Wi-Fi networks are radio communications, which are not encompassed under the U.S. Wiretap Act.  However, it does appear that Google may get an opportunity to view the inside of a couple more courtrooms.

Friday Links (Fourth of July Edition)


Happy Fourth of July, dear readers! We assume that you, like us, are out of the office today, but we certainly felt obligated to prepare a patriotic edition of Friday Links for today! We hope that everyone has a safe and festive holiday weekend, and we encourage everyone to pause briefly to remember what happened 238 years ago today. In the spirit of the day, above, you’ll find the cover of Roger Rabbit #15, published not so long ago in 1991. We wonder if the children of today know of Roger Rabbit or still watch the classic 1980’s film, Who Framed Roger Rabbit? We certainly hope so. To visit our prior Fourth of July posts (and see some other spirited comic book covers), please see here, here, here, and here.

As always, we will return to regular posting on Monday.