They say that golf is the ultimate sport of honor.  That may still be true on the course, but as we have seen over the past few years, it doesn’t hold up with golfers off the course (see, e.g., Tiger Woods).  This time, according to Golf Magazine, Vijahy Sing is getting into the mix by taking questionable performance enhancing substances and bringing a frivolous intentional infliction of emotional distress claim against the PGA tour.

Vijahy was privately suspended by the PGA a few months back after he admitted using a performance enhancing drug known as “deer antler spray.”  Deer antler spray allegedly contains substances banned by the PGA tour.  However, after some legal maneuvering, Vijahy was able to avoid serving any suspension. Now Vijahy claims that there never was any reason to suspend him in the first place. So, naturally, he has filed a lawsuit  alleging that the PGA tour negligently and intentional inflicted emotional distress upon him.

Emotional distress claims are notoriously difficult to prove.  Negligent infliction of emotional distress requires, at minimum, that a Plaintiff prove that he was in a zone of impact and suffered physical manifestation.  Intentional infliction of emotional distress claims require proving that the defendant intentional or reckless acted in a manner so heinous and beyond the standards of civilized decency or utterly intolerable in a civilized society.  Very very doubtful that Vijahy can prove either.

When you are pro golf and you admit to using suspect performance enhancing drugs, you run the risk of ticking off your employer and getting suspended.   Unless Vijahy’s got some really good hidden evidence in his golf bag, it is unlikely that this case is going anywhere.

It’s that moment every lawyer dreads.  It’s a quiet court room, a lawyer is examining a witness, and then you hear it.  A rogue cell phone.  Someone forgot to turn off the ringer.  As if the situation itself was not embarrassing enough.  You know the judge is one of those that treats a cell phone in his courtroom as the equivalent of a dirty bomb.  You hold your breath for a moment, wondering if you are guilty party.  Luckily it’s not your phone, but the judge does let lose on the perpetrator and holds him in contempt. And so it goes.

Well, it happened recently in a Michigan courtroom, except it was the judge himself who was the offender.  To the judge’s credit, he held himself in contempt.

According to an account at MLive, Judge Raymond Voet had recently purchased a new phone, and apparently, he didn’t lock it properly before court.  He surmises that he bumped the screen, and it began asking him who he wanted to call.  You know, the old “please say a command” prompt.  This was, of course, in the middle of the prosecution’s closing argument.

To make matters worse, Judge Voet reportedly had trouble turning it off.

The judge is apparently known for being a real stickler about cellphones.  In fact, he has signs posted outside his courtroom warning cellphone users that they face  a $25 fine and could lose their electronic device if it does off during a hearing.  He is even said to have taken phones from police officers and personal friends.

So what did the judge do about his own indiscretion?  Apologize and move on?  Consider becoming a little less strict on others?  Nope.  Judge Voet held himself in contempt and walked downstairs during a court recess to pay the same $25 fine he imposes on other offenders.

Apparently, billionaire William Koch picked the wrong hobby when he started collecting wine.  He’s seems to buy a lot of expensive fake wine.  Last year, we told you about a suit by Mr. Koch over fake wine that allegedly belonged to Thomas Jefferson.  That suit was ultimately dismissed on the statute of limitations.  Well, he clearly wasn’t deterred from pressing forward with other similar lawsuits.

Earlier this month, according to the New York Daily News, he went to trial claiming that a wine dealer sold him 24 bottles of a bogus vintage bordeaux.  A New York jury found his claim to be true and felt that this dastardly deed warranted $12 million dollars in punitive damages. Mr. Koch originally spent $300,000 on the 24 bottles of “vintage” bordeaux, which he bought from Eric Greenberg.  The wine turned out to not be the real deal.  Koch blamed Greenberg for intentionally selling him the bogus wine and perpetuating a “code of silence in the [vintage wine] industry.”   Mr. Greenberg claimed that he offered to refund Mr. Koch his money when he learned that the bottles of wine were fake.  But that was not good enough for the billionaire.  Only a lawsuit and millions of dollars in punitive damages could right this wrong.  The jury awarded him $380,000 in actual damages and $12 million in punitive damages.

Lest you think Mr. Koch is just some out of touch billionaire that likes to spend more on wine than you spent on your home, we note that he plans to put $12 million verdict to good use.  Koch said he would use the money to “set up a fund to go after wine fraud and auction fraud.”  He’s bound and determined to put an end to the travesty of really rich people buying expensive fake booze.

It isn’t helping starving kids in Africa, but its something.

The list of reasons to dislike airlines is long and familiar.  Ticket change fees, checked bag fees, bumped flights, false imprisonment on the runway, and the inevitable delays.  Now, a disgruntled United Airlines passenger is adding another item to his list: finding himself robbed of his frequent flyer miles.  A Maryland man has filed suit against United in federal court in Illinois claiming it shorted him on frequent flyer miles by using the straight line distance, rather actual distance, to calculate the credit for miles. Of course, litigation is necessary to resolve this dispute.

The lawsuit alleges that United breached its frequent flyer contract by not awarding them for miles actually flown.  According to the lawsuit, the passenger’s flight from Dulles Airport to Beijing International Airport actually measured in 7,276 miles.  However, he was awarded only 6,920 miles, which is the shortest straight line distance between the two airports.

A quick scan of the official rules for United Airlines’ frequent flyer program reveals no information as to how miles are calculated.  However, there is some vague language about being able to modify the “currently recognized” means of accumulation without notice.   When asked by The Cleveland Plain Dealer, a United spokesperson declined comment on how the miles are calculated, but we expect United will argue that the rules essentially allow them to calculate miles however they please.  United did state that it believes the lawsuit to be merit-less.

Given the low monetary value of the “missing” miles, the suit certainly appears frivolous.  It is not unreasonable for United to credit for a straight-line distance between origin and destination.  Other airlines apparently calculate miles the same way.  However, the question is, why doesn’t United just spell it out in the program rules?

In our litigious society, United should have seen this one coming from a “mile” away. Don’t sue us for our pun.

The Metropolitan Museum of Art (The Met) in New York City maintains one of the best art collections in the world.  To boot, it offers admission for a donation price of your own choosing.  The minimum donation is a mere penny.  The museum does, however, suggest patrons donate $25.   Apparently, three tourists are not satisfied with their $25 donation because they didn’t read the sign closely enough to realize that it was only a “recommended” donation.  Of course, a lawsuit was necessary to rectify this reprehensible situation. Here we go again.

As you might have guessed, the class-action lawsuit accuses The Met of duping the public into believing that the $25 donation is required for admission.  In so doing, the lawsuit claims that The Met uses misleading marketing and training of cashiers to violate an 1893 New York state law mandating free admission a certain of number of days per week. Apparently, a former museum supervisor will testify on behalf of the Plaintiffs that cashiers were trained to encourage the $25 dollar donation by advising patrons of the museum’s large costs.  Also, in 2010, The Met allegedly changed its signage from “suggested” donation to “recommended” donation.  Outrageous!

The Met has, of course, denied the allegations.  Perhaps the plaintiffs can make an issue of the 1893 law.  Arguably, requiring a one cent donation for admission violates that law.  However, a Met spokesperson claims “[t]he idea that the museum is free to everyone who doesn’t wish to pay has not been in force for nearly 40 years.”  Apparently, in 1970, the New York City Department of Cultural Affairs agreed to allow a required donation for admission so long as patrons could determine what amount they wanted to pay.

Regardless of the outcome of the suit, don’t feel too bad for The Met.  It has $2.58 billion investment portfolio and most of its donations come from non-admissions related donations.

On a related note, if you ever find yourself in New York during the spring or early fall, it is well worth it to shell out your penny for admission and head up to The Met’s Roof Garden Café and Martini Bar.  Unfortunately, the beers ($8.75) aren’t as good of a deal as the admission donation.

The University of Pennsylvania (aka “Penn”) is home to the world renowned business school named the “Wharton School.”  In fact, the name “Wharton School” is more well-known than “Penn” itself, which is often confused with Penn State.   A lawsuit recently filed by Penn alleges that another company infringed on its trademark through use of the Wharton name.

Penn brought suit in federal court against the California based Wharton Business Foundation for its use of the word “Wharton.” According to its website, the Wharton Business Foundation offers business education and consulting services.  The education component is actually called the Wharton Business Foundation University.  Penn alleges that the Wharton Business Foundation has no legitimate reason to use the name “Wharton” in its brand.  The “Meet Our Team” section of the website doesn’t list anyone with the Wharton name.

The Wharton School bears its name because it was established in 1881 via a donation from Joseph Wharton.  Penn claims it has used the Wharton registered mark since 1881 for business education and since 1953 for business consultation.  The complaint, which is available on PACER, alleges that the Wharton Business Foundation’s name creates “a likelihood of confusion in the marketplace” and “a false impressing in the minds of consumers that WBF is affiliated with, endorsed or sponsored by [Penn], particularly the Wharton School.”

We’ll be keeping our eye on this suit.

On a side note, why don’t law schools have the type of “bling” that business schools have?  Having attended both law school and business school, I suspect it is because most lawyers block out all memories of their learning years.  Business school, on the other hand, is an enjoyable experience.  Also: Most business school graduates actually find jobs in their field, and thus, have money to donate.

Yours truly just returned from a nice, albeit short, ski vacation in Park City, Utah.  Of course, I couldn’t make it through the whole trip without coming across some blog material.  Anyone who has ever been skiing out west knows that it’s big business (both literally and figuratively). The ski resorts invest millions upon millions of dollars in chair lifts, grooming equipment, dinning facilities, et cetera, all in an effort to attract thousands of skiers at daily prices of around $100 per person.  As such, it was a little surprising to learn that Park City Mountain Resort (PCMR), one of most popular ski resorts in the United States, doesn’t even own the land that its uber expensive equipment sits upon.  It was even more surprising to discover who actually owns the land.  The land is owned by Talisker Land Holdings (Talisker).  Talisker is the company that runs The Canyons, which is PCMR’s next door neighbor and one of its biggest competitors.  So, it was not surprising to then find out that they two were in a battle royal lease dispute.

Parents who haven’t learned to work the parental control features on their iPhones and iPads may be in luck. Apple has agreed to a settlement in class action lawsuit over so-called “bait apps,” which are games that can be downloaded for free but then charge users for “game currency” like virtual goods or play money.  Of course, Apple’s iOS does have a parental control feature that allows users to restrict in-app purchases, but why go to all that trouble when you can just hand over your iPhone willy nilly to a child?

So what’s the big payday for our lucky winners? As far as class action settlements go, it’s actually a pretty decent settlement for the aggrieved parties.  For any member of the class whose kids purchased made an in-alp purchase for less than $5, Apple will issue a $5 iTunes gift card. For those between $5 and $30 in unauthorized purchases, Apple will issue a full refund in the form of a gift card.  Users whose little rascals spent more than $30 can choose to get a full cash refund.

If your kids made any unauthorized in-app purchases check your inbox in the months to come.  The settlement requires Apple to send a notification to all iTunes account holders who made in-app purchases.

The Plaintiff in the Fosamax lawsuit, In re Fosamax Products Liab. Litig., 11-4358-CV, 2013 WL 335967 (2d Cir. Jan. 30, 2013) probably thought she would easily survive summary judgment via her expert physician’s testimony.  However, her medical expert reversed himself and contradicted prior testimony from an earlier case in which he was a treater, thus creating a credibility issue for the jury. Unfortunately, the court didn’t but the “new” testimony and applied the “sham issue of fact doctrine” and disregarded it.

In this case, the Plaintiff took the drug Fosamax for a number of years and now alleges that it led to bone deterioration.  Plaintiff makes a failure to warn.  The prescriber testified early in the case as a fact witness.  His testimony revealed that when he began treating her for bone deterioration he thought that Plaintiff had stopped taking Fosamax.  However, at that time, another physician was still prescribing the drug to Plaintiff.  Defendant moved for summary judgment on the “warning claim.”  After all, how could an allegedly inadequate warning have caused Plaintiff’s injuries if the treating physician was not aware that she was on the drug?

Then things took an interesting turn. After Defendant moved for summary judgment, the prescriber was designated as Plaintiff’s expert physician.  Not surprisingly the doctor’s testimony changed once he was on the payroll.  During his expert deposition, the physician stated that he actually did know that Plaintiff was taking Fosamax when he was treating her for the bone injury.  Further, he testified that had Defendant warned him about the risks of bone degeneration, he would have recommended that Plaintiff stop taking Fosamax.

It’s interesting how a few bucks in your pocket can “refresh” your memory.   The court took note of this fact.  Accordingly, the court held that the doctor’s expert testimony was clearly contradictory to his initial testimony and could be disregarded under the sham issue of fact doctrine.  That doctrine prevents a party from defeating summary judgment by simply submitting an affidavit that contradicts the party’s own previous sworn testimony.  In this case, however, the court extended the doctrine to apply to testimony from experts.  The court held that expert testimony could be ignored “where the relevant contradictions between the first and second depositions are unequivocal and inescapable, unexplained, arouse of the motion for summary judgment was filed, and are central to the claim.”

So there you have it.  A common sense ruling and a very professional way of the court saying, “liar liar, pants on fire.”