Popular culture has seen its share of humans posthumously becoming re-animated and attempting to perform various activities.   We have seen the dead vote in elections, stagger around in search of human flesh, and participate in hilarious party weekends.  Just when we thought we had seen it all, Kimberly Haman proves that the dead can file lawsuits. That’s right, Ms. Haman has filed suit in the United States District Court for the Eastern District of Missouri against Equifax and the Heartland Bank for, among other things, violating the Fair Credit Reporting Act (“FCRA”) by wrongfully killing her.  Apparently, Ms. Haman went to Heartland Bank in order to be added to her parents’ joint bank account.  In connection therewith, the bank required Ms. Haman to submit to a credit inquiry.  Much to Ms. Haman’s dismay, the consequences of this seemingly innocent inquiry into her creditworthiness would be deadly. That is, Ms. Haman alleges that in the process of performing the credit inquiry, the bank informed Equifax that Ms. Haman was deceased, and this somehow became part of Ms. Haman’s credit report.  According to Ms. Haman, she is, in fact, not deceased.

As you might imagine, lenders are less confident that an individual will be able to repay his or debts if that individual is deceased.  According to Ms. Haman, this mistake caused her to be denied credit cards and mortgage refinancing, among other financial woes.  The mistake was not remedied by the defendants despite repeated assurances that the error would be corrected.

This is an interesting case.  All we have at this point is the complaint, so the factual allegations have not been truly tested.  Those of us who have applied for any form of financing can sympathize with Ms. Haman.  At least one jury sympathized with an Oregon woman who alleged that Equifax ruined her credit score, awarding her over $18 million.  On the other side of the coin, we can also sympathize with the employee(s) of the defendant(s) who may have made an innocent clerical mistake that resulted in litigation.  The truth is likely somewhere in the middle as it often is.  It will be interesting to see how this case plays out.

(Hat tip: Courtside).

On January 6, 2014, New Jersey citizen Josh Finkelman sued the NFL in federal court after he paid $4,000.00 for two tickets to the Super Bowl.  I can only speculate how the Super Bowl Ticket Litigation began.  Here’s my guess:

Mrs. Finkelman:  You spent how much on Super Bowl tickets?  We could go on a nice family vacation to Miami or Myrtle Beach for $4,000.00, and you spent it all on some stupid football game that you want to go to with your idiot friends!

Mr. Finkelman: [initially debating whether to pull the fire alarm or jump out of a window, but finally comes up with a brilliant excuse] Honey, it wasn’t me.  The NFL made me do it. Then they made the tickets more expensive than they should be.   It’s criminal really.  I think I’m going to file a lawsuit!

Mrs. Finkelman:  [rolling eyes and trying to remember the number for the divorce attorney from TV] Okay, you do that.  You file a lawsuit.

Of course, the above is merely speculation.  However, my hypothetical explanation is less far-fetched than Mr. Finkelman’s theory of liability against the NFL. Mr. Finkelman believes that he was forced to pay $4,000.00 for two Super Bowl tickets because the NFL offered 4 percent less tickets to the general public than it should have.  That is, New Jersey consumer protection laws allegedly require that 5 percent of tickets to an event be offered to the general public.  Because the NFL offers only 1 percent to the general public (and gives the rest to teams, networks, broadcasters, etc.), scalpers charge more for the tickets than they should on the secondary market, and Mr. Finkelman was somehow forced to buy these exorbitantly priced tickets from scalpers.  Interesting theory. Maybe there’s something to this, maybe there isn’t, but here are my initial thoughts:

Super Bowl tickets are expensive.  Everyone expects them to be expensive, and everyone knows that most people cannot afford to go to the Super Bowl.  It is the most prestigious sporting event in the United States.  It should not surprise anyone when tickets to the Super Bowl go for $2,000.00 per ticket.  Frankly, I would not be surprised if Super Bowl tickets were $40,000.00 per ticket. Also, how did the NFL force Mr. Finkelman to buy Super Bowl tickets from scalpers?  This is America.  If you don’t like the price, don’t buy the tickets.  Watch the game on your couch like everyone else.  The commercials are the best part of the game anyway.  I would argue that the NFL tried to discourage people from buying tickets by having the game in East Rutherford, New Jersey in February. Perhaps Mr. Finkelman is a fan of an AFC team and got a bad case of buyer’s regret when he realized that the Panthers are a lock to win the Super Bowl this year.

(Hat Tip: Reason).

The first question you probably have is, “What is a ‘hurricane verdict?'”  It is possible that we here at Abnormal Use are coining a term because a quick search on the Interwebs yields no references to this new phrase.  In any event, a hurricane verdict is a verdict which is both a windfall to the plaintiffs and a rainfall in that it creates a slippery slope.  I got pretty lost in the series of remittiturs and offsets, so it is unclear how big the verdict in Asahi Kasei Pharma v. Actelion Ltd. actually was, but it appears that the verdict awarded by the California jury totaled roughly $500 million.

You probably have a lot of questions.

For starters, you are probably wondering whether a hurricane is called a typhoon or a cyclone on the Pacific coast.  As it turns out, in order to be considered a typhoon, the storm must form west of the international dateline. Your next question is probably about the case.  In a nutshell, Asahi, a Japanese pharmaceutical company, contracted with a U.S. company, CoTherix, to sell its product in the U.S.  As part of the contract, CoTherix was required to perform all necessary pre-sale regulatory and other work. Actelion, a Swiss company, had a competitor drug on the market in the U.S., which accounted for almost all of its U.S. sales.  Allegedly, fearing the effects of competition, Actelion purchased CoTherix solely for the purpose of preventing the sale of Asahi’s drug on the U.S. market.  Actelion’s acquisition of CoTherix was successful, and CoTherix backed out of the agreement with Asahi.  As it often does, litigation ensued.

It appears that this $500 million verdict, which included lost profits for a drug that never made it to market, would qualify as a windfall, or “an unexpected, unearned, or sudden gain or advantage.”  That is just my initial reaction.  Those of us who have waded into the waters of proving/disproving and/or calculating consequential damages know that it is complicated and tedious. I do not have the time to devote to unravelling the specifics of the consequentials in the Asahi case for this post.  The bottom line, though, is that after subtracting litigation costs, Asahi ended with hundreds of millions in revenues for a product that it never had to put on the shelf.  Of course, Asahi went to great lengths to prove that these numbers were not speculative.  It was able to show that the drug had already been approved in China and Japan, and that is was a good drug in those markets, among other things.  Notwithstanding, as a practical matter, Asahi never had to face the risks involved with selling the drug in the U.S.  It never had to worry about suits against it based on side effects of the drug.  It never had to spend money to market the drug.  Apart from the courtroom, Asahi never had to actually compete with Actelion’s drug, which already had a foothold on the U.S. market.

The rainfall portion of the hurricane verdict is more problematic than the windfall component.  As always, the case had its nuances, but essentially, the basis for liability against Actelion was that it intentionally interfered with the contract between CoTherix and Asahi by buying CoTherix and directing it to breach.   In other words, even though CoTherix was a wholly-owned subsidiary of Actelion at the time of the breach, Actelion was treated as a third-party – a stranger to the contract in this case.  This is important because the difference between breaching the contract and interfering with the contract was essentially a $400 million difference.  How did I determine that?  Asahi pursued ICC arbitration against CoTherix, the company that actually breached the contract, and was awarded just shy of $100 million.  The verdict against Actelion, based on the interference with the contract, was around $500 million, and there were no remaining claims against CoTherix when the case went to trial. So there are several layers to Asahi’s rake.  CoTherix’s actual breach of the contract was worth $100 million. Actelion’s interference with the contract was worth $400 million (after the CoTherix offset).  And there is yet another layer that is perhaps the most disturbing aspect of the verdict.  While there were no punitive damages awarded against Actelion, there were roughly $30 million in punitives awarded against three Actelion executives who allegedly directed the interference with the contract.

The result in this case does not add up.  The civil conspiracy theory of liability (that all of the defendants conspired to harm Asahi) was dismissed before trial, so the jury did not find that executives of CoTherix, and Actelion were in cahoots.  Yet both organizations and all three executives were all found liable for essentially the same act.  The antitrust allegations did not make it to trial, either.  The sole theory of liability was that Actelion purchased a controlling interest in CoTherix such that CoTherix no longer made its own decisions, and that it did so in order to direct CoTherix to induce the breach.

This result sets precedent for three distinct theories of liability based essentially on a single breach by a single organization – 1) the subsidiary with no control over its decisions is liable for the actual breach; 2) the parent company is liable as a nonparty for inducing the subsidiary to breach; and 3) the executives who made the decision to induce the breach are even more liable (such that punitives are warranted) for making the decision to induce the breach.  Piercing the corporate veil understates what occurred here.  Asahi was able to fire a bunker busting bomb that went through CoTherix, through Actelion, and exploded in the executive wing of Actelion. Additionally, one could argue that this decision sets the dangerous precedent that companies cannot purchase competitor companies without giving rise to liability.  Actelion had a duty to its stockholders to maximize profit.  Had CoTherix performed on the contract, and had the competitor drug been successful, Asahi would have been able to consume an indeterminate amount of Actelion’s market share.  Had Actelion not purchased CoTherix when it was possible to do so, it would have resulted in an indeterminate amount of market share loss.  Thus, arguably Actelion could have been liable to its shareholders for not purchasing CoTherix and inducing the breach.

So it appears that the real theory of liability is negligent purchase of a competitor, which Actelion was arguably compelled to do in the course of business.  The verdict and decision are arguably an unfair restriction on free markets and the capitalist system in general.

Like a stubborn grinnow, the English language is not going anywhere.  We lawyers must use its words to communicate arguments, describe evidence to fact-finders, and to otherwise educate and persuade.  The Huffington Post recently published an article highlighting seven forgotten English words that it selected from The Horologicon, by Mark Forsyth.  As foreshadowed by the title of this post, these words may be forgotten, but litigators have an intimate understanding of the concepts.

We have all run into the jack of all trades expert who provides opinions on everything from the mechanics of a hand gun to the health risks of toxic chemicals.  There are a variety of vulgar phrases which can be used to describe this individual off the record, but now you can confidently out this individual on the record for practicing ultracrepidarianism, or providing opinions on subjects about which he or she knows nothing. However, beware of the cloaked ultracrepidarian. See, e.g., Sheinkopf v. Stone, 927 F.2d 1259, 1269 (1st Cir. 1991) (“That Saltiel also made use of them in his personal business activities is hardly extraordinary, nor is it even remotely sufficient to cloak his ultracrepidarian activities with Nutter’s apparent authority.”).

The English language also provides a word for the shrewd, unprincipled fact witness – a snollygoster. At least one appellant has claimed that he had a run in with such a person.  Donald F. Capatosto, Appellant, EEOC DOC 01943257, 1994 WL 727940 (E.E.O.C. July 14, 1994). (“Appellant stated that he was ‘snollygostered (sic)’ by the agency into believing a second meeting would be held which would address his performance standards.”).  Use this word with caution.  The only problem is, by the time you finish verbalizing the four-syllables of the word “snollygoster,” the snollygoster may have already absconded with your wallet. We are happy to warn you here of such perils.

Ever wish that your witness would stop talking?  What you are actually wishing for is mumbudget.  The problem is, if your witness happens to be an ultracrepidarian, you may have problems accomplishing mumbudget.

Even if one is not a litigator, he or she has likely been unable to shake an issue from his or her mind in the night.  We have all been there. No matter how much we toss and turn, we are unable to stop thinking about an important issue or argument.  This, ladies and gentlemen, is known as uhtceare, or lying awake before dawn and worrying.

Even if you are unable to relate to any of the above, you can still print this post and take it with you to family scrabble games this holiday season. However, do so with caution.  If you are able to work any of the above words into your scrabble game, you may be accused of being a guttle of points, and your family may throw things at you.

There’s always one guy in the foursome who hits the ball six(teen) times and writes down a four.  He is the same guy whose ball miraculously lands on the edge of the fairway even though everyone in the group saw it drop directly into the middle of the woods without touching a branch.  He takes between 6 and 10 practice swings.  He often takes a “provisional,” which is really a mulligan, but when one calls it a provisional, it becomes an interesting type of shot that’s effect changes significantly from the time it is hit until the time that the player’s score is entered onto the card.  When provisional guy declares he is taking a provisional, he does so in a fashion similar to this: “I’m going to take a provisional. I’ll only take it if I can’t find my first one.”  The next step in the provisional process is usually:  1) the provisional guy will declare that he “lost his provisional but luckily he found his first one”; or 2) the provisional guy will not say anything and pretend that he never hit two balls in the first place.  The final step in the process is always the same – the provisional is not counted and it is as if the first tee shot never happened.

Point is, everyone who plays golf has this friend (note: if you don’t have this friend, you probably are this friend), and the good news is that you no longer must calendar the date that the statute of limitations will run on every one of his mulligans, at least in New Jersey.  Judge Vena’s recent opinion in Corino v. Kyle Duffy et al provides this provisional safety. In Corino, Thomas Schweizer and Bryan Chovanec decided to play a round of golf with Kyle Duffy on August 23, 2011 at Skyview Golf Club in Sparta, New Jersey.  On the 15th tee,  Duffy had one get away from him.  It is unclear where Duffy’s shot went, but he apparently did not like the outcome.  One thing is clear – Duffy has an awful slice, but a clear command of the aforementioned provisional maneuver.

Mr. Corino had the misfortune of being located on the 16th fairway when Duffy’s group was on the 15th.  The layout of the course apparently provided the basis for this misfortune, as the 16th hole ran parallel to the 15th hole.  Corino saw that all three members of Duffy’s group hit their tee shot, so Corino addressed his ball.  Unbeknownst to Corino, while he was taking practice swings, Duffy was laying a foundation for the provisional with his golfing buddies (Disclaimer – this part is not in the record.  All we know from the record is that Duffy took a provisional.  The rest is speculation on the part of the author of this post).  One does not take his time with a provisional. The quicker one steps up to hit a provisional, the less it seems like an extra stroke.  A provisional, like a card trick, should be executed with sleight of hand.  While Corino was hitting his shot on the 16th, Duffy quickly hit a provisional, which he (shockingly) sliced into the 16th fairway.  Apparently, no one yelled “fore”, so the errant golf ball was a bad surprise for Corino.  Duffy’s ball shattered Corino’s sunglasses and severely lacerated Corino’s eye.

Corino’s injuries were severe and not funny, but the fact that Corino joined Duffy’s golfing buddies in the ensuing lawsuit provides some comic relief to an otherwise dire situation.  Corino sued Schweizer and Chovenac for allowing Duffy to take a provisional and for not yelling fore.  Schweizer and Chovenac filed summary judgment motions.  After reviewing the official rules of golf and New Jersey golf case law, the judge determined that it was Duffy’s duty to yell “fore” (or to provide some other warning), and that the other two golf buddies were in the clear.  Summary judgment was granted and the claims against Duffy’s golfing buddies were dismissed. Great result for Schweizer and Chovenac, but does this holding have broader implications?  Do the rules of golf now preempt principles of common law negligence?  Does the violation of a rule of golf provide a basis for a negligence per se claim?  Is every hacker on the golf course now imputed with knowledge of the rules of golf?  Can someone be jailed for slowing down the group behind him or her? (the last one is wishful thinking).

(Hat tip: TortsProf Blog).

Litigation in the United States can often be a protracted affair.  Some of the more complex cases may span decades before reaching conclusion.  For example, the case of Bigfoot, or Sasquatch, has been pending for centuries without any real resolution.  According to the Encyclopedia Britannica, the first Bigfoot case, David Thompson v. Squatch was first initiated in 1811 by British explorer David Thompson.  Since then, the number of cases has snowballed and costly discoveryhas been conducted ever since by organizations such as the North American Wood Ape Conservancy.

Courts around the country have struggled with how to deal with Bigfoot.  Some courts have implicitly acknowledged Bigfoot’s existence and have equated it to a contract.  See Dumont Tel. Co. v. Power & Tel. Supply Co., C 13-3030-MWB, 2013 WL 4516428 (N.D. Iowa 2013) (“The contract at the heart of this case is a lot like Bigfoot . . .”).  Some courts have taken a more traditional, strict constructionist approach to interpretation of Bigfoot.  See, e.g., Doyle v. Commr., New Hampshire Dep’t of Resources &Econ. Dev., 37 A.3d 343, 345-46 (N.H. 2012) (“Bigfoot, also known as Sasquatch, is ‘a large, hairy humanlike creature believed by some persons to exist in the northwestern United States and western Canada. . . .’”)  Other courts have engaged in what some would call judicial activism on the issue and have concluded that Bigfoot simply does not exist.  Peracchi v. C.I.R., 143 F.3d 487, 491 (9th Cir. 1998) (“. . . negative basis, like Bigfoot, doesn’t exist.” ).  In any event, trial courts need resolution on the issue once and for all so they can decide Bigfoot-related evidentiary disputes and the like.  Park v. CAS Enterprises, Inc., CIV 08CV385 DMS NLS, 2010 WL 55888 (S.D. Cal. 2010) (“Ultimately, Park argues that there is no evidence the DB50 ever existed, and ultimately compares it to a ‘video of Sasquatch or the Loch Ness Monster, [where] actual proof of the DB50 is apparently impossible to capture on film.’”).  When courts are this divided, a decision needs to be made.

South Carolina is not typically thought of as a bellwether state; however, the state may now have the opportunity to resolve the Squatch issue once and for all in the recent case of CSPRI v. Squatch. According to reputable news sources covering the case, “[e]vidence of Bigfoot’s existence has been found in Oconee County [South Carolina], according to the Carolina Society for Paranormal Research and Investigation.” Legal scholars are engaging in heated debate about whether this newly discovered evidence will be sufficient to withstand the inevitable summary judgment motion.  In the state courts of South Carolina, “[s]ummary judgment is proper if, viewing the evidence in a light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Preservation Capital Consultants, LLC v. First Am. Title Ins. Co., 2012-209186, 2013 WL 6091617 (S.C. 2013).  So what is this bombshell evidence?  Is it enough to present a genuine issue of material fact as to the existence of Bigfoot?

Apparently the Carolina Society for Paranormal Research and Investigation (CSPRI) first determined that the woods of Oconee County, South Carolina would be a “perfect place” for Bigfoot.  They determined this based on the observation that Bigfoot constructed various “wood structures” and “nests” in the woods of Oconee County, and that footprints have been discovered which are “too large and wide to be normal human.”  According to CSPRI, “intertwined [tree] limbs” were also a dead giveaway because, among other things, “a bear has no thumbs . . .” Presumably, although it is not explicitly set forth in any of the information proved by CSPRI, Bigfoot does in fact have thumbs.

My take:  Since summary judgment is discretionary, this one is a toss-up.  Evidence of Bigfoot’s existence has been presented. There does not appear to be a challenge to CSPRI’s methodology or qualifications, so the decision will hinge upon whether the weight of evidence presented is sufficient. Personally, I still have questions.  Are these wood structures and nests, which were purportedly constructed by Bigfoot, currently occupied by a Bigfoot?  There is no evidence in the record that Bigfeet typically build homes and then abandon them.  Were they spec nests for which Bigfoot just couldn’t find a buyer?  The footprints found in the woods are above-average size for human feet, but what is the average size of the foot on an average Bigfoot? Why is Bigfoot twisting around all of the tree limbs in our South Carolina woods?  Is this destructive behavior typical of Bigfeet?  As it stands, I do not believe that this is enough to withstand a motion for summary judgment.

Perhaps sensing the same, CSPRI has scheduled a “full-blown hunt” for Bigfoot on December 14, 2013.  As additional discovery is already scheduled, the Judge may see the motion for summary judgment as premature and may revisit the issue after the full-blown hunt.

The Chinese automotive industry (both domestic and import) has grown exponentially in recent years.  Reportedly, some of the consumers driving this growth have complained of defects in the vehicles they purchased, and apparently, some of them feel that their complaints have been ignored. This problem received attention in a YouTube video featuring several men destroying an Italian sports car with sledge hammers.  According to the video’s caption, a Chinese man purchased a Lamborghini Gallardo, and much to his dismay, the engine would not start.  He believed that his attempts to reach out to the manufacturer and Chinese affiliates were ignored, so naturally, he decided to make a statement by paying a group of men to destroy his vehicle.  The aggrieved Lamborghini purchaser succeeded in making a statement, as his destruction video has received over 722,000 hits on YouTube.

In the United States, consumers have legal redress if the vehicle they purchase turns out to be defective.  Most states have a “lemon law” which protects consumers in the event that they have purchased a defective vehicle, or a “lemon.”  For example, South Carolina has legislation in place which  requires the manufacturer of a new vehicle to conform to all express warranties within the first twelve months of purchase or first 12,000 miles of operation, whichever occurs first (S.C. Code Ann. § 56-28-30).  If the vehicle is nonconforming as defined by the statute, the manufacturer is required to make necessary repairs if the consumer provides requisite notice to the manufacturer.  Alabama’s lemon law protects consumers from certain defects in specified vehicles for two years or 24,000 miles, provided that various notice and other requirements are met.  (Code of Alabama §§8-20A-1 through 8-20A-6).  Until recently, China had no such law, so Chinese consumers were stuck with the costs of repair of a defective vehicle, or the cost of a sledgehammer mob if they decided to go that route.

On October 1st, 2013, a new Chinese law went into effect to address the apparent spate of consumer complaints regarding lemons.  The law is known as San Bao, or The Three Guarantees. The law is part of a consumer protection plan engineered by the Chinese government to protect consumers.  San Bao allows the manufacturer and/or consumer to choose from three methods of making the purchaser of a defective vehicle whole:  repair, exchange, or return.  The law is meant to balance consumer protection with the interests of the Chinese automotive industry. The immediate effect on the consumer is obvious, but the costs to the Chinese automotive industry are uncertain at present. At the moment, Chinese automotive sales are perhaps the biggest driver in the global automotive sector, and with some predicting Chinese automotive sales to nearly double by 2019, San Bao could have a global economic impact. We’ll keep you posted on this front.