Five Toe Discount – A Conclusion To The Vibram FiveFingers Suit

Back in April of 2012, we blogged about the class action lawsuit filed against Vibram over its product FiveFingers, the minimalist running slippers.  In our initial blog post, we (read: a fellow contributor who admitted to owning two separate pairs of barefoot running shoes) were skeptical over the evidence proffered by Plaintiff in this case.  However, a 2013 study found an increased in bone marrow edema, the precursor to a stress fracture, in at least one bone after 10 weeks of running in the Vibram foot-gloves.

After two years, the suit has come to resolution. Remember it’s a marathon, not a sprint.  Vibram has agreed to pay $3.75 million in refunds to anyone who has purchased the shoes since March 21, 2009.  Vibram is required to take out ads on social media sites notifying potential claimants of the settlement and also establish The remaining proceeds not doled out to claimants will be donated to the America Heart Association.

The Crossbow Recall

As you might suspect, we here at Abnormal Use are not avid bow and arrow hunters.  We are better eaters than hunters or gatherers.  I myself have only owned one bow and arrow, the Nerf Bow “N” Arrow with the built-in sight, which was released in 1991.  So, I am fully qualified to write about the dangers associated with the crossbow, a weapon which presumably derived from the Nerf Bow ‘n’ Arrow. On April 22, 2014, Crossbow manufacturer Excalibur Crossbow, Inc. of Canada recalled its “Excalibur Matrix Mega 405 Crossbow” according to the Consumer Products Safety Commission.   According to the recall report, Excalibur has received significant . . . wait . . . Excalibur has received one report, a single report, of the Matrix Mega firing unexpectedly and causing significant bodily injury . . . wait . . . never mind no injuries have been reported.  All joking aside, this crossbow does not fire Nerf arrows, and a crossbow that “can fire an arrow without the trigger being pulled” seems dangerous.  If you are the owner of one of the 1,000 of units being recalled, you can return them to the retailer or send them back to Excalibur for repair.  Don’t worry, they will pay the shipping.

South Carolina Supreme Court Releases Opinion on College Football Seat License Fees

As it was then, and so it is now, we here at Abnormal Use care deeply about college football.  Avid readers may recall or our 2011 post discussing a parking fee dispute that arose between the University of South Carolina and a fan that purchased a lifetime membership into the Gamecock Club. While a clever revenue raiser, lifetime memberships are a challenge because they, well, last a lifetime.  So it is no surprise that a dispute over the Gamecock Club’s lifetime membership once again makes its way through the South Carolina judicial system. That case is Lee v. University of South Carolina, et. al., No. 2012-212567 (S.C. April 2, 2014), released yesterday by the South Carolina Supreme Court.

The facts were these: In 1990, George Lee III purchased a $100,000 life insurance policy, naming the University of South Carolina the sole beneficiary, in exchange for an opportunity to purchase basketball and football tickets for the duration of Mr. Lee’s life.  In an effort to generate more revenue, the University instituted the Yearly Equitable Seating (YES) program and began requiring all Gamecock Club members to pay a seat license fee prior to purchasing season tickets. Mr. Lee did not care for the seat licensing fee and filed a declaratory judgment action. The trial court entered judgment for the University of South Carolina and the Gamecock Club, but yesterday, the South Carolina Supreme Court reversed the trial court, finding that the University breached its 1990 Agreement with Lee by requiring Lee to pay the YES fee in order to retain the opportunity to buy tickets.  The Court in reaching its conclusion found that:

 The language of the Agreement is clear.  As long as Lee performs his contractual obligations, the University must provide him with the “opportunity to purchase” season tickets to University athletic events as described in the Agreement. The Agreement contains no limitations or conditions on this contractual right. Thus, by requiring Lee to pay the seat license fee before purchasing season tickets, the University has attempted to impose an additional term that the parties did not agree upon. This unilateral attempt to modify the Agreement is impermissible.

Undoubtedly, as the University of South Carolina’s football program continues to improve, the school will look for ways reap the financial benefit.  While the Gamecocks continue to win on the field, it is may be time to abandon efforts to profit further from their lifetime members’ seats and parking spaces (as that approach appears to lead to litigation).  In order to pay for the ability to play Sandstorm more than the Vols play Rocky Top, South Carolina should increase the price of the official Head Ball Coach Visor.

The Fitbit Class Action Litigation

After recalling several models of its Fitbit Force bracelets, Fitbit now faces a class action in California.  Plaintiffs allege that Fitbit did not alert consumers of possible skin irritation.  Fitbit reported in January that it was aware of 9,900 instances of skin issues with the Fitbit, approximately 1.7 percent of users. Previously, the company issued public statements regarding the issue and offered full refunds, but that has not appeased the purportedly injured.  According to the suit, Jim Spivey, the named plaintiff, lost money or property and time and opportunity as a result of Fitbit’s alleged false advertising.  Further, the suit alleges that the defendant continues to hold money which rightfully belongs to the class for reimbursement or compensation for physical and emotional injuries.  Allegedly, the product’s wristband can increase the risk of experiencing an adverse cardiovascular event, which apparently includes increased risk of skin irritation, rash, burns, blistering, cracking, peeling, bleeding, oozing, boils and other physical injuries. Fitbit responded in The Wall Street Journal stating, “Based on our initial review of the lawsuit, the complaint asks for a recall of Force and a refund to consumers. Fitbit took initiative long before this complaint was filed, publicly offered refunds, and worked closely with the CPSC on its voluntary recall program. We strongly disagree with the statements about the product and the company.”

Interesting, Mr. Spivey, who bought his Fitbit in January, has not developed any skin irritation, so there’s that.

WaxVac Allegedly Failing to Work As Intended

The most disregarded warning in the known world is the “Do not insert into ear canal” warning found on Q-Tip and other cotton swab products.  Unauthorized use of a cotton swab can result in a ruptured eardrum and has a tendency to push wax further into the ear canal.  Thankfully, Lenfest Media Group, located in King of Prussia, Pennsylvania, created the WaxVac so that millions of Americans could enjoy clean ears without the shame of misusing cotton swabs.  The WaxVac, which looks like a hot glue gun, “gently draws dirt particles and moisture out quickly and safely.” But wait one minute, according to a class action lawsuit filed in the U.S. District Court in Pennsylvania, the WaxVac doesn’t actually work, and thousands, if not millions, of consumers have been duped.  Apparently, the FDA sent a letter to Lenfest last year informing the company that it did not have an “approved application for premarket approval” and that it should “immediately cease activities that result in the misbranding or adulteration of the WaxVac.”  Wait a minute, you are telling me that the mini-ear vacuum, a product that costs less than the process and handling fee and that can be seen on late night infomercials, might not work?!  Color me shocked.  The named plaintiffs, Marc Weinstein and Thomas Ferguson, have sued Lenfest for unjust enrichment, breach of express warranty, breach of implied warranty of merchantability, and breach of duty of good faith and fair dealing and have asked the Court to restrict Lenfest from selling the WaxVac.  They claim their damages could exceed $5 million. We’ll see what discovery reveals.

Women Injured in Stage-Diving Accident Wins $1.4 Million Dollars

According to the lead singer of Fishbone, Angelo “Dr. Madd Vibe” Moore (age 48) “[p]eople want to be on the edge when they go to a Fishbone show.”  Fishbone is an alt rock band formed in 1979, which plays a fusion of ska, punk rock, funk, hard rock, and soul. Nothing screams edgy like a 48-year-old vocalist and saxophonist nicknamed Dr. Madd Vibe hurtling himself into the crowd.   Fishbone doesn’t want to detract from the show’s theatrics and therefore does not issue warnings about its act. Well, those theatrics have cost Fishbone and Dr. Madd Vibe $1.1 million in compensatory damages and $250,000 in punitive. In 2010, Kimberly Myers was attending a Fishbone show put on by WXPN, a Philadelphia radio show, when Moore dived off the stage, colliding with Myer, knocking her to the ground, where she lost consciousness. But the show must go on, and Fishbone continued to perform as though nothing had happened.  As a result of the incident, Myers broke her skull and collarbone.  She now claims to suffer from memory problems, shoulder pain, and autoimmune problems that led to lupus. Apparently, Fishbone has been stage-diving for two decades and has been sued at least one other time for stage-diving related incidents.  According to Moore’s testimony, an ambulance is called to their venues once every couple of months.  Edgy. Apparently, the argument about stage-diving continues.  In 2013, the Ocean Collective and the Summer Slaughter Tour took shots at each other on Facebook.  The Ocean Collective was touring on the Summer Slaughter Tour.  The Ocean Collective lamented the “stupid ‘no jumping into the crowd’ rules” were boring them and told fans “if you are worried about ruining your make up, don’t be in the first row.”  Ash Avildsen, founder of the Summer Slaughter Tour, appropriately responded; including “[j]umping off things at venue doesn’t make you extreme, it makes you dangerous.”

Man in Portable Toilet Ends Up Quadriplegic; Settles For $5 Million Dollars

No one likes portable toilets; they always seem to be dirty, too hot or too cold, and one strong gust of wind away from falling.  Moreover, they leave you completely defenseless to the terrifying threat of being tipped over. I believe this author’s opinion of portable toilets is identical to the following quote about escalators: “Listen, not a year goes by, not a year, that I don’t hear about some escalator accident involving some [person] which could have easily been avoided had some parent – I don’t care which one – but some parent conditioned him to fear and respect that escalator.” That’s from Mallrats.  Well, if you needed another reason to fear and/or respect portable toilets, we have you covered. As reported by The Daily Mail, while on a fishing trip with two cousins, Douglas Adams III had to answer nature’s call.  After he entered the portable toilet, the cousins decided to play a little prank on Mr. Adams by parking a truck in front of the facility’s door.  During the ensuing banging and shaking, the portable toilet inadvertently tipped over.  As if being covered in what can only be described as the grossest blue cocktail wasn’t bad enough, Mr. Adams landed on his neck, which resulted in several cervical fractures.  He was airlifted to Thomas Jefferson Hospital in Philadelphia for surgery and spent two weeks in the hospital.  Unfortunately, due to his injures, Mr. Adams ended up a quadriplegic.

Mr. Adams and his wife sued the cousins, the installer, and Poly-San, the manufacturer, for his injures.  The cousins obviously were sued for tipping over toilet.  The installer was sued for installing the toilet on a hill and propping the unit up with wood.  The manufacturer allegedly did not provide spikes to secure the unit, even though the base of the unit had holes for spikes.  According to the report, Mr. Adams settled the lawsuit for $5 million dollars. While we recognize the need for such facilities, this case should serve as yet another warning for people everywhere to begin to taking portable toilets as serious as escalators.

Doh! FOX Wins Big in “The Simpsons” Copyright Infringement Suit

Earlier this month, FX announced that all 530 episodes of “The Simpsons” will be available for to legally watch on the Internet.  All of “The Simpsons” episodes will be available on FXX, a new channel in the FX Network, and through FXNOW, a recently released video on demand app. The deal could cost FX as much as $1 billion dollars.  To date, it has never been possible to legally watch “The Simpsons” on the Internet. There is that word again . . . Legally.

Until recently, a Canadian gentleman has run “Watch The Simpsons Online” and “Watch Family Guy Online.”  The websites launched in 2008 and 2009, respectively.  As the old moniker goes, pigs get fat, hogs get slaughtered.  Both sites earned a combined 87 million visitors.  Though “Watch The Simpsons Online” has dealt with legal issues since 2008, it has operated more or less without impediment until October 2013, when FOX filed a copyright infringement lawsuit in the federal court of Canada.  Shortly thereafter, on October 9, 2013, the site operator’s home was raided.  The site operator did not appear in the lawsuit and was presumably put into the Canadian version of default.  In his absence, the federal court awarded FOX over $10.5 million dollars.

The site operator is unable to pay the judgment, and apparently, he did not make a sustainable living from the sites.  He has since stated that the experience is the worst thing imaginable and that he simply wanted “the dinosaurs would just give their consumers what they want — which is to be able to stream their videos online easy, fast, worldwide.” FOX has showed no signs of letting up and is currently attempting to execute the judgment.  According to reports, the site operator stated that “Fox are pursing for the money and they are doing so as hard as they possibly can. They’ve ruined my life and continue to do so as long as they don’t leave me and my family alone. As it’s been referenced by a lawyer: ‘they are killing a fly with a nuke’.”  The same reports indicated that FOX’s attorney stated that “the significant judgment in this case points up the risk courted by those who engage in Internet piracy, in particular for commercial purposes.”

While we disagree with converting the intellectual property of another, especially for financial gain, the site admin has a point.  Both the number of visitors to the sites and the potential $1 billion value of the FX deal, make you scratch your head at why FOX waited this long to provide access to “The Simpsons.”  Either way, it’s probably wise just to wait until August to get your fill of The Simpsons. Also in case FOX reads this, we here at Abnormal Use have never heard of either site or the ability to stream “The Simpsons” prior to this story. We promise.

What Year is It? Blackberry Sues Ryan Seacrest’s Tech Outfit

Let’s imagine, the year is 2007 and you are Research In Motion Limited, maker of the BlackBerry. Some computer company has just announced a new touchscreen phone.  As my father now denies saying, the iPhone is not made for the business world.  Don’t panic, you have at least three more years of dominance over the iPhone. But due to a myriad of reasons, not the least of which was the failure that is the BlackBerry Storm, your days are numbered.  By 2011, you are restructuring and laying off employees.  In 2013, you release the Q10 and change your corporate name to BlackBerry Limited, but also announce that you are open for purchase and have signed a letter of intent to sell. And in the mind of this author, who moderately follows tech news and admittedly never owned a BlackBerry, you are kaput. So imagine this author’s shock when he reads that on January 4, 2014, BlackBerry filed suit against Ryan Seacrest’s tech company, Typo Products, LLC in federal court in California.  BlackBerry claims that Typo’s external case for the iPhone 5 and 5s infringes upon its patents and designs used in the Q10.  BlackBerry alleges that Typo “blatantly copied BlackBerry’s keyboard.”  BlackBerry’s chief legal officer stated: “We are flattered by the desire to graft our keyboard onto other smartphones, but we will not tolerate such activity without fair compensation for using our intellectual property and our technological innovations.”  Typo stated that it intends to defend against BlackBerry’s claims. Perhaps this move by BlackBerry is an attempt to return to the glory years of the early 2000’s, when BlackBerry was constantly involved in patent litigation.  In fact, BlackBerry is nearly as familiar with patent litigation as it is with making cell phones.  Since 2000, BlackBerry been involved in patent litigation with Glenayre Electronics, Good Technology, Handspring, NTP, Xerox, Visto, Motorola, Eatoni, and Mformation.

Whatever the outcome, this lawsuit brings back a wave of nostalgia.  I can only hope that Jordin Sparks and Paula Abdul will be called to testify. We’d like to see those depositions.