Friday Links


Above, you’ll find the cover to Spectacular Spider-Man #150, published back in the good old days of 1989. On the cover, we see Daily Bugle editor Joseph “Robbie” Robertson in court. Things do not appear to be going well for him (and we’re somewhat surprised that the judge is determining his guilt rather than a jury of his peers). We may need to track down this issue and learn a bit more about this trial and how Spider-Man reacts to it.

Oh, and yes, we’ll be watching the new season of “House of Cards” this weekend. Who else is watching? No spoilers!

Our favorite tweet of late comes from our own Stuart Mauney, who offers the gem below. (You know, once of these days, we’ll have to do a blog post listing all of GWB’s lawyers who maintain Twitter accounts.).

And the Award for Best Recent Oscars Reference in a Reported Case Goes to . . .

It’s that time of year again – The Oscars.  The Academy of Motion Picture Arts and Sciences was tasked with selecting the best of the best in the motion picture industry.  Those watching the Oscars saw the best picture of the year, the best director, et cetera.  As we watched the awards ceremony play out, we here at Abnormal Use became curious about whether we could find any good Oscar references in reported caselaw.   What we found was a Seventh Circuit opinion in which defendant convicted of conspiracy to distribute narcotics, among other things, took issue with a prosecutor’s reference to scenes from The Godfather in closing argument:

At the close of the government’s case (which also happened to be the end of all the evidence since Kincannon declined to present anything), Kincannon filed a motion for a judgment of acquittal, which the district court denied. The government’s closing argument came next, during which the prosecutor made an analogy to an Academy-Award-winning movie: The Godfather. Recounting a pivotal scene where the director simultaneously presented assassinations orchestrated by the protagonist, Michael Corleone, the prosecutor explained that he, like the movie’s director, would attempt to seamlessly tell the ‘story of what happened’ in this case. The prosecutor also recounted Thorburg’s drug-fueled demise, noting that ‘it illustrates the power of this stuff and why we’re on a serious purpose today in considering the charges against Mr. Kincannon.’ Eventually, the jury found Kincannon guilty on both the distribution and the conspiracy counts and rendered a special verdict, finding that the conspiracy involved 500 grams or more of methamphetamine.

United States v. Kincannon, 567 F.3d 893, 896 (7th Cir. 2009). The Court saw nothing wrong with the reference, finding that if it’s good enough for the Oscars, it’s good enough for it:

It would be one thing if the government compared Kincannon to Michael Corleone, an organized crime kingpin responsible for murders and a whole host of other criminal activity. See Alvarez v. McGinnis, 4 F.3d 531, 534 (7th Cir.1993). Such an analogy would be utterly unmoored from the record, which is probably why the government made no such connection. It was not Corleone’s criminality, but Francis Ford Coppola’s direction that was at the heart of the prosecutor’s closing remarks. The prosecutor alluded to the pivotal point in the movie where Corleone attends his godchild’s christening. Coppola cuts to various scenes of assassinations orchestrated by Corleone as a priest dubbed him the child’s godfather. The poetic implication is that the murders, like the priest’s liturgy, made Michael the godfather of the Corleone crime family. As the prosecutor said, “[n]ow that is how you present events that occur simultaneously in a movie so the viewer can understand it very easily.” We agree, as did the Academy of Motion Picture Arts and Sciences, who nominated Coppola for an Oscar for best director. The prosecutor explained to the jury that he would try to do orally what Coppola did in his film-that is, tie together the events that occurred during the two controlled buys into one seamless story. To do so as eloquently as Coppola is a tall task, but there is certainly nothing improper about the attempt.

Id. (footnotes omitted). Could it be that the Oscars not only influenced the trial, but that it also dictated the outcome of the appeal?  Probably not.

We hope that we’ve enriched your awards season.  Carry on with the heated discussions about the best dressed, snubs, and the like.  The only thing this author will add is that no snub will ever be as egregious as the snub of Leatherheads, the breathtaking piece in which “an enterprising pro football player convinces America’s too-good-to-be-true college football hero to play for his team and keep the league from going under.”  Perhaps this author is biased because he put his heart and soul into that film (as an extra), but the Oscars obviously missed something that the ESPY awards and Australian Film Institute saw. Until next year!

Abnormal Use Blogger Kyle White on Sirius/XM Radio’s “The Legal Pad” Tonight

The Legal Pad

Abnormal Use‘s own contributor Kyle White was recently interviewed by James E. McCollum, Jr., Esquire of McCollum & Associates for his Sirius/XM radio show The Legal Pad.  The Legal Pad is “[a]n informative show that examines the legal issues of today” in which “Howard University School of Law Alumni James E. McCollum, Jr., Esquire answers questions on a variety of legal topics including civil litigation, constitutional law, and administrative law.”  For SiriusXM and SiriusXM Internet Radio subscribers, the show airs on channel 141 Wednesdays at 6:30 p.m., with encores on Saturdays at 6pm and Mondays at 9 a.m. This, of course, means you can listen to Kyle’s interview tonight!

During the 27 minute show, Kyle had the opportunity to discuss with Mr. McCollum the Abnormal Use blog, general issues encountered in product liability litigation, as well as various other areas of interest.  The show’s first run is Wednesday, February 25th at 6:30 p.m. with an encore Friday, February 27th at 5 p.m., Saturday, February 28th at 6 p.m. and Monday, March 2nd at 9 a.m.  Kyle enjoyed the opportunity to speak with Mr. McCollum on his radio show, and we encourage everyone to listen to the show if you don’t already!

An Update on the Robin Thicke / Marvin Gaye “Blurred Lines” Litigation

With the 2015 Grammy’s now behind us, another battle of performers set to take the stage this week…the legal stage that is.  Trial is scheduled to start soon before U.S. District Judge John A Kronstadt in the U.S. District Court for the Central District of California to determine whether Robin Thicke’s 2013 hit, “Blurred Lines,” infringed upon Marvin Gaye’s 1977 “Got To Give It Up.”  Thicke and his producers, Pharrell Williams and Clifford Harris, Jr., have been in a legal dispute with Gaye’s children since filing a lawsuit in August 2013  seeking a declaratory judgement that “Blurred Lines” did not unlawfully infringe “Got To Give It Up.”  In their complaint, the plaintiffs indicated the Gaye defendants had claimed that the songs “Blurred Lines” and “Got To Give It Up” had the same “feel” or “sound.”  However, Thicke’s complaint insisted being “reminiscent of a ‘sound’ is not copyright infringement . . .” and, though “Blurred Lines” was intended to evoke an era of music (read: undeniably Gaye’s era of music), that the Gaye defendants are in essence “claiming ownership to an entire genre” of music.

The Gaye family struck back with a countersuit alleging not only that Thicke blatantly copied a”constellation of distinctive and  significant compositional elements of Marvin Gaye’s classic #1 song, ‘Got to Give it Up,'” but also had a “Marvin Gaye Fixation” which resulted in him copying other Gaye songs including, “After the Dance.”  Accordingly, a second copyright infringement claim was asserted over Thicke’s “Love After War,” claiming this compilation shared a similar chorus and hook melody with Gaye’s “After the Dance.”  Acknowledging in their counterclaim that “Blurred Lines” was an unprecedented commercial hit (after reaching number one in at least 114 countries and going sextuple platinum by selling over six million copies), the Gaye defendants asserted that inclusion of signature elements of “Got To Give It Up” significantly enhanced the “musical and financial value of ‘Blurred Lines.'”  At trial, they are seeking both injunctive and monetary relief for Thicke’s alleged infringement.

However, in a significant victory for the plaintiffs last month, Judge Kronstadt held that the Gaye defendants could not play the original of Gaye’s famous recording of “Got To Give It Up” during trial for jurors, on the basis that they owned only the written composition while Motown (not a party to the suit) owns the hit recording that includes Gaye’s vocals.  Judge Konstadt previously ruled that the dispute was governed by the Copyright Act of 1909, rather than the Copyright Act of 1976, which limited copyright protections to only those musical elements that appeared in the written sheet music deposited with the Copyright Office.  Prior to trial, Thicke/Williams filed a motion to exclude Gaye’s original sound recording on the basis that it would be confusing to the jury and prejudicial because it contained “substantial additional musical elements in which Defendants do not own any copyright.”  Judge Konstadt initially ordered that Gaye’s sound recordings were inadmissible entirely; however, two days later he issued a new order allowing the defendants to present edited recordings (but only those portions of the recording that are protected) at trial as long as the recordings remove all unprotected elements, such as percussion and backup vocals).

In a statement following Judge Kronstadt’s initial ruling, Thicke and Williams’ attorney, Howard E. King, noted that while his clients love Marvin Gaye (who doesn’t?), the issues to be determined in the multi-milion dollar copyright infringement trial do not involve Gaye’s voice, character, or charisma, but rather whether ‘”Blurred Lines” is a copy of what he wrote in the sheet music [which is the only thing protected under the 1909 Copyright Act],” which he obviously denied.  Although the jury will be able to hear some of Gaye’s voice pursuant to the new order, as this article points out it appears that, if anything was copied at all, it was likely the unprotected portions of Gaye’s song, which are not only totally free to be copied under the applicable law, but will also not be played for the jury.

We will be watching as this trial develops in the coming weeks.  Judge Kronstadt’s ruling leaves us wondering whether the Gaye defendants will be able to fully convey their point without the aid of playing Marvin Gaye’s original recording for jurors or will they be left thinking “Ain’t Nothing Like the Real Thing”?  In the meantime, listen to this YouTube compilation of “Blurred Lines” and “Got to Give it Up” for yourself and let us know what you think.

(See the complaint here courtesy of The Hollywood Reporter).

In Ohio, Class Action Allowed To Proceed In Target Wipes Case

Last year, Ohio’s Christopher Meta filed a class action lawsuit against Minnesota’s finest, Target. I apologize that we didn’t cover it when the news initially broke, but everyone else is too highbrow, and I was afraid that I would fall victim to an Andy Zaltzman-esque inappropriate pun run (for reference), which would stave off readers and irreparably damage our reputation here at Abnormal Use. Christopher Meta’s class action lawsuit alleges that the Target brand up&up baby wipes, which are labeled as flushable, dispersible, and sewer and septic safe, were none of the above. According to Mr. Meta’s plumber, the flushable wipes had caked together. Meta was charged $210 for the removal of the . . . products.

According to Meta’s Complaint, wipe users everywhere are suffering the same tragic fate. New York has a rather well-documented history of fighting the wipes, even going so far as having its politicians attempt to ban them (probably all Toilet Paper Lobby propaganda).

Earlier this month, an Ohio federal judge denied Target’s motion to dismiss the products liability claims in this matter. (A copy of the order is available to download). Target argued that while some of the class members experienced clogged plumbing, others did not. The district court did rule that Ohio’s Product Liability Act abrogated the plaintiff’s tortious breach of warranty, negligent design, and negligent failure to warn theories of recover. However, the court allowed the plaintiff’s four other causes of action to proceed.

We will do our best to keep abreast of this litigation. In the meantime, if you’re bold, take a gander at the plaintiff’s complaint or the photo from The New Yorker article linked above.

Friday Links


So, above is the cover of City of Heroes #6, published not so long ago in 2004. You may recall that back in August of last year we showed you the cover of issue #5, which begins the “Jury Duty” storyline in this comic book series. The cover depicts the hero Apex, who had previously received a jury summons in the preceding issue. But how does a superhero receive a jury summons? How would the relevant governmental entity know where to serve a summons upon the hero (or that the hero in question was from the proper jury pool)? Further, if the summons itself was addressed to the real name of the hero who calls himself Apex, why then did he show up to the courthouse in costume? These are good questions.

Friend of the blog Tamara Tabo recently appeared on MSNBC’s “The Docket” in order to discuss her recent piece in Above The Law about the legal implications of “Fifty Shades of Grey.” In fact, in an email, she gave us some grief (perhaps well deserved) for not including a link to her post in our own similar blog entry earlier this week. Well, we remedy that error here! To watch the MSNBC segment, please click here.

We were saddened to hear of the loss of former Baylor Law School professor Matt Dawson, who passed away this week at age 98. Information on his life can be found here. He was also instrumental in making Baylor Law’s famed Practice Court program what it is today.

In case you missed it, our own Howard Boyd authored his first blog entry this week. Check it out here if you have not before.

2015 in Recalls (So Far)

NPD Furniture Recalls 250 “Chairs”

On January 14, 2015, North Pacific Direct issued a recall  for approximately 250 Abbey Dining Chairs, which were sold from July 2014 to November 2014.  NPD issued the recall as the legs of the chairs can break unexpectedly, which poses a falling hazard.  NPD has received at least four reports of the chair legs breaking, but no injuries were reported.  If you are a proud owner of one of the 250 Abbey Dining Chairs, you may contact New Pacific Direct here to claim your refund.

Mean Green Cleaner and Degreaser Recalled for Containing Chemicals

Earlier this month, CR Brands, Inc. recalled approximately 83,800 containers of its Mean Green Super and Industrial versions of its Mean Green Cleaner and Degreaser sold between August 2014 and November 2014.  The products were recalled as they contain ammonia, which wouldn’t be an issue, except that the label says the product does not contain ammonia.  As a result, people could potentially mix the chemical with bleach, which can result in deadly vapors.  No injuries have been reported at this time.  If you have any Mean Green products, you should check the UPC and date code with those listed on the Consumer Protection Safety

Third Times the Charm: DD Brand Candles Are Being Recalled, Apparently the Wax Can Ignite

On January 8, 2015, CoScentrix expanded its recall of DD Candles to include an additional 168,000 DD brand candles sold at Hobby Lobby from June 2014 to October 2014.  I use the word expanded because CoScentrix previously recalled 256,000 candles in November 2014 and 126,000 candles in April 2014.  According to the recall, the candle’s high flame can ignite the surface of the wax, which is the reason CoScentrix originally recalled nearly 400,000 candles.  Strangely, the recall is limited only to candles sold at Hobby Lobby.  I have little to no idea of the chemical differences between the wax in CoScentrix’s candles, but it would seem that regardless of the packaging, if there is a need to recall some candles in April 2014 because the wax used can ignite (How was that not discovered during testing . . . Do they test candles?), it may be best to fix that before you sell another 400,000 candles.

The Perils of Trial Publicity And Media Coverage of Trials

Years ago, I wanted to be a journalist. Accordingly, I spent five years working at the Charleston News and Courier in a variety of roles, none of which was very close to being a real news reporter.  I worked in the proof room and the composing room, and I served as a menial “cub reporter” until I ultimately abandoned my ambitions to be one of the great newsmen of all time and decided upon law school. Journalism still fascinates me, however, and I confess I cannot start the day without reading the newspaper (an actual paper copy of the newspaper delivered to my doorstep each and every morning).  Becoming a guest blogger on our firm’s products liability blog may be the closest I come to being a journalist.

Despite my love of journalism, there is nothing more irritating than the coverage provided by the news media of cases that are being litigated.  First, they invariably give great publicity to the allegations of the complaint, most of which are false and cannot and will not be proved by the Plaintiff.  Since we are supposed to be restricted in commenting on matters which are before the courts, as lawyers, the defendant is relegated to a brief statement something along the lines of “We deny the allegations of the complaint and look forward to proving our defense in court.”  Of course, there are lots of lawyers who have not read or do not understand the ethical rules and believe they can pontificate about their case in great detail to the media, and despite efforts I have made over the years to limit those statements, the courts do not seem to be very troubled by what I think is an egregious violation of the ethical rules.  See, for example, Rule 3.6(a) of Rule 407 of the South Carolina Appellate Court Rules.

So, what to do?  Under the rules, attorneys in South Carolina are allowed to repeat to the media what is a matter of public record, e.g., the pleadings.  Thus, one solution is to include in your answer to the allegations of the complaint a “sound bite” you can use with the media to explain why the claim is unfounded and the defendant has no liability in the case.  There is nothing much worse than saying “no comment”, which the media always uses immediately following the plaintiff’s most explosive statement about the case, which makes it look as if the defendant is guilty as hell.  Thus, I always try to have something I can legitimately say about how bogus the plaintiff’s claim is other than “We deny the allegations of the complaint and will look forward to vigorously defending the case in court.”  Although caution is advised, we must always be alert and responsive in a manner which can legitimately be reported by the media concerning the strengths of our case and the weaknesses of the plaintiff’s.

Of course, notwithstanding our best efforts, after a successful outcome, by way of a very favorable settlement or a verdict in favor of the defendant, if the news publishes anything at all – which it frequently does not – the media will only make a passing reference to the jury verdict or the fact that the case has been resolved. Of course, it will then invariably regurgitate the very same allegations of the complaint which the defendant just eviscerated and completely disproved.  Nowhere does the media publish that the plaintiff offered false or unproven allegations and/or that the defendant did nothing wrong and was entirely in the right.

Sorry, rant over.

“Fifty Shades of Grey” Adult Products Allegedly Not Living Up To The Hype, New Lawsuit Says


Moviegoers everywhere took to theaters last weekend to catch the premier of Fifty Shades of Grey, the film based on author E.L. James’ erotic romance novel of the same name.  Over 100 million copies of the popular novel have been sold worldwide, elevating it to the top of numerous best seller lists.  Based on the hoopla and controversy surrounding the story’s sexual themes, we expect the film will share the novel’s success at the box office.  In fact, the “Fifty Shades” brand has become so popular that it has parlayed its success into numerous other products, including a line of adult toys and lubricants.  Unfortunately, like all other over-commercialized things in our culture, some of those spin-off products may not live up to the perceived quality of the source material.  And, guess what happens when products don’t live up to the hype?  We get lawsuits far more controversial than the book itself.

According to an MTV News report, California woman Tania Warchol has filed a proposed class action against Lovehoney, the manufacturer of the official “Fifty Shades” line of adult products, claiming that the “Fifty Shades of Grey” Come Alive Pleasure Gel for Her failed to meet expectations.  The product description contained on Lovehoney’s website website states:

Heighten your pleasure with Come Alive, an intimate arousal gel from the Fifty Shades of Grey Official Sensual Care Collection. Experience enhanced orgasms and stimulation as every tingle, touch and vibration intensifies.

Based on this description, Warchol alleges that she “believed the [gel] has powerful aphrodisiac qualities and would increase her sexual pleasure as advertised.”  However, after a couple of uses, the Come Alive Pleasure Gel allegedly didn’t rise to the occasion.

We are guessing Warchol will face a tough road ahead of her trying to meet her burden.  A quick review of the comments section on the product’s website indicates an overwhelmingly positive customer experience and a 4-star rating. Even though feedback on a product website can be, and often is, fudged by those with a vested interest in such things, the rest of Internet reveals similar results.  As such, even if it is a placebo effect, it looks like the product must be working for somebody.

Maybe Warchol should consider other external variables.

Or, if we are wrong, this lawsuit may just prove that Come Alive Pleasure Gel is as effective as a product as “Fifty Shades of Grey” is as fine literature.

Gallivan, White, & Boyd, P.A. Opens Charleston, South Carolina Office

Big news! We here at the Abnormal Use law blog and Gallivan, White, and Boyd, P.A. are very pleased to announce the opening of our new office in Charleston, South Carolina! That means that we now have five offices: Greenville, South Carolina, Columbia, South Carolina, Anderson, South Carolina, Charleston, South Carolina, and Charlotte, North Carolina.

How about that?

In conjunction with this announcement, we are also pleased to announce that Mikell Wyman and Blakely Molitor have joined our new Charlotte office.

We welcome them aboard!

To read our firm’s official press release on the new office, please click here.