We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope you had a safe and fine Memorial Day weekend. Our offices are closed today. As we do each year, today, we pause to reflect upon all of the sacrifices made by American servicemen and women and all they have done for the country, both in present times and years past.

Above, you’ll find the cover of Fightin’ Army #139, published not so long ago in 1979.

Well, it’s Memorial Day weekend, and we once again express our great appreciation for those who lost their lives serving our nation. Above, we feature the cover of Captain America’s Bicentennial Battles #1, published back in 1976. We hope everyone has a safe and eventful holiday weekend.

Okay, so who else is saddened that “Mad Men” has ended its run? We here at Abnormal Use remain crestfallen.

At long last, Overlawyered has cited Stereogum. Of course, it’s on the recent “Netflix for Vinyl” model and the legal barriers for same. See here for me.

Get this: The popular website Mental Floss ran a piece entitled “29 Fun Facts about ‘My Cousin Vinny.’” In that post, the author quotes a number of our interviews with the writer, director, and cast members. How about that? Click here to read it (and pay particular attention to numbers 7,11,12,13, and 19).

Our favorite tweet of late:

“#Lawyers have souls, contrary to popular opinion.” – @StateBarCA CEO Robert Hawley

— Joshua Lenon (@JoshuaLenon) May 21, 2015

As America has become more engulfed in the fitness craze, numerous products aimed at helping consumers with their new found healthy lifestyles have hit the marketplace. One such product is the Fitbit activity tracker, a wearable device that measures data such as steps walked, calories burned, and quality of sleep. Sounds like the perfect product for the health conscious consumer, right? According to a new class action filed in the Northern District of California, not so much.

Florida man James Brickman, as putative class representative, has filed suit against Fitbit, Inc., alleging that activity tracker’s sleep-tracking function does not work as advertised.  According to his complaint, Fitbit manufactures a number of devices, several of which contain the sleep-tracker function for an additional $30 charge.  As allegedly stated on the product packaging, the function of the sleep-tracker is to track hours slept, times woken up, and the quality of sleep of the Fitbit wearer. However, Brickman alleges that scientific research has revealed that the Fitbit consistently overestimates the amount of sleep by 67 minutes per night. Brickman “expressly disclaim[s]” any recovery for physical injury arising from the alleged misrepresentations. Nonetheless, he claims that the misrepresentations implicate serious public health concerns caused by thinking you are sleeping 67 minutes longer than you actually are. Brickman has asserted claims under California’s Unfair Competition Law, False Advertising Law, and the Consumer Legal Remedies Act. In addition, he alleges a violation of the Magnuson-Moss Warranty Act as well as common law claims for breach of express and implied warranties, fraud, negligent misrepresentation, and unjust enrichment.

Because we here at Abnormal Use have yet to buy into the fitness craze, we regretfully do not own a Fitbit device. If we did, we would expect it to work as advertised. Nonetheless, we do question how any alleged inaccuracies in the sleep-tracking function cause “serious public health concerns.”  We understand that a certain amount of sleep is a necessary component of a healthy lifestyle. However, the Fitbit’s alleged 67-minute misrepresentation as to the amount of sleep hardly seems like it would actually have an effect on one’s health. A person sleeps the amount a person sleeps regardless of how many minutes of sleep Fitbit represents to the person. We are not aware of any representations made by Fitbit that the product will actually make you sleep better or longer. The Fitbit just measures the amount of sleep (albeit allegedly incorrectly). Your sleep is your sleep. No Fitbit needed.

Call us old-fashioned, but is a sleep-tracker even necessary in the first place? People know how they feel when they wake up in the morning.  If you didn’t get enough sleep, you feel tired.  If you got enough sleep, you feel refreshed.  People don’t need a fitness tracker to tell them that.  Of course, they didn’t need to pay an extra $30 for it, either.

Get this: There is definitely a real class action lawsuit against JC Penney in federal court in California over purported “phantom discounts.”

The lawsuit accuses JC Penney of hiking retail prices on apparel and accessories to trick shoppers into believing they were receiving sizable discounts when the items were advertised as being on sale.  The long and short of it is that the when retailer would run a sale, they would allegedly markup the price of the item and then “discount” it back down to the same price it had been at for months. For example, the complaint alleges that for a sale they’d mark up a shirt that had been selling for $17.99 to $30 and then they’d sell it for 40 percent off . . . or $17.99. The class action lawsuit has been certified by the federal judge presiding over the case.

To be fair, JC Penney apparently tried to move to everyday low pricing in 2012.  Ironically,  executives billed the new pricing model as the end of “fake pricing.” Apparently the customers really wanted fake pricing because the everyday low pricing was a miserable failure and they quickly went back to a more traditional discounting model.  It does make you wonder, however, if any of these claims of phantom discounting claims occurred during the period that the retailer was switching between business models.

The Federal Trade Commission does actually have regulations governing this sort of thing.  16 C.F.R. 233.1 requires retailers to sell items at original prices for a “reasonable length of time” before discounting them.  Sort of makes you wonder how Jos. A. Bank continues its thing, but that’s a story for another day.

About this time last year, we ran a post inspired by participation in iCivics Day, which involves lawyers speaking at various schools around the community about the mechanics of the United States government.  This week, we participated in iCivics Day again, and we are again inspired to post regarding the experience.

Obviously, it is never a bad thing to volunteer in the community. The community benefits, and so does the volunteer. If you do nothing else in the community, we would argue that every lawyer should speak to a group of children about being a lawyer.

Children genuinely care about what lawyers do. They want to know war stories. They want to know what a lawyer does on a daily basis.  There will inevitably be children in the class who have already decided to be lawyers, and they want to know how to become one.

Perhaps the most fulfilling part of the experience is that children understand that lawyers are part of one of the most noble and honorable professions in the free world. Lawyers work with the basic fabric of our civilization – the law. Lawyers test the legal system to make sure it is still working. Lawyers defend laws. Lawyers challenge laws. Lawyers ensure that their clients’ legal rights are protected, and that accordingly, everyone’s rights are protected.

Bottom line: Get out there and talk to some students about what we do.  You will like it, the kids will like it, and the teacher will like it.  If you want to know more about iCivics day, and what you can do to get involved, you can visit the iCivics website, or we are sure that our own Lindsay Joyner would love to tell you more about how to become involved.

As you know, we here at Abnormal Use sometimes contribute content to other publications, and this week is no exception. Our own Kyle White saw the publication of his “Can Defense Lawyers Co-Opt the Reptile Strategy?” piece in the most recent issue of DRI’s Strictly Speaking. Here’s the first two paragraphs:

In 2009, David Ball and Don Keenan published a book called REPTILE: The 2009 Manual of the Plaintiff’s Revolution (“REPTILE”).  The $95 book is billed as a manual that teaches Plaintiff’s attorneys how to reduce tort reform’s impact on juries by using the jurors’ primitive safety and self-preservation instincts. For those who have not read the book, it begins with the premise that insurance companies, big business, et cetera, have convinced prospective jurors via tort reform propaganda campaigns that jury verdicts impact the economy in their community – that jurors walk into the courtroom with the understanding that jury verdicts threaten their basic survival.  Keenan and Ball explain that jurors will disregard the facts and law to do whatever it takes to survive, and that tort reform has taken control of those survival-oriented decision making parts of the brain.

At first glance, it seems that the reptile strategy is a gimmick designed to bilk plaintiff’s attorneys out of $95; however, those who have faced the reptile strategy know that it can be dangerous.  In fact, Keenan and Ball’s website boasts that the reptile strategy has been responsible for over $6 billion in verdicts and settlements.  This article examines pertinent aspects of the reptile strategy and suggests two potential ways that civil defense lawyers can use reptile tactics to their advantage.

Strictly Speaking is the official newsletter of DRI’s Product Liability Committee. You can read the full article here. This longer work is a revisiting of Kyle’s earlier blog post on the topic, which you can find here.

Our favorite thing about the cover of Mr. District Attorney #62 – published more than five decades ago – is not the magical villain our hero appears to be pursuing. It’s not the fact that the district attorney seems to be attempting to apprehend a criminal in the act rather than prosecuting him in court at some later date. Rather, it’s the fact that the police officer – who is a few steps behind the prosecutor – refers to him not by name but as “D.A.” There’s not even a definite or indefinite article preceding the term – just “D.A.,” as if that were his name. What gives?

Did you see our own Kyle White’s article on the reptile theory in this week’s edition of DRI’s Strictly Speaking? If not, check it out. Oh, and don’t forget, you can follow Kyle on Twitter here.

You like the ease and convenience of Netflix? You like vinyl? Well, of course you do. Who doesn’t? Well, you’ve got to read the recent piece by Michael Nelso at Stereogum on the perils of the “Netflix for vinyl” model which, apparently, violates the Record Rental Amendment of 1984.

Our favorite tweet of late comes from Lawyer Cat:

A coach on my son’s baseball team has been permanently banned by the league for screaming too much – at everyone. His job IRL? Lawyer.

— Lawyer Cat* (@LawyerCat_) May 14, 2015

Here’s something interesting.

In the factual and procedural background section of a recent opinoin, the North Carolina Court of Appeals cites to a litigant’s Facebook profile to introduce him in that section. See Staton v. Josey Lumber Co., Inc., No. COA14–1001 (N.C. Ct. App. May 5, 2015).

It’s a workers compensation case, and the claimant “injured his left leg and foot when he fell off scaffolding while welding.” The North Carolina Industial Commission found that it had no jurisdiction to hear his claim because it determined he was an independent contractor and not an employee. The claimant appealed this finding, although the court of appeals affirmed.

In the second paragraph of the factual background section (and the fifth paragraph of the opinion), the court of appeals noted:

Staton called himself a contractor on his Facebook page. He stated that “[m]ost everyone knows I’m a welder. I travel alot chasing jobs. I do shutdown work. That is when a company takes off a week or so and contractors go in and fix whatever is broke.”

The court of appeals quoted this language again in the analysis section of the opinion.

So, here, we’re not dealing with spoliation or impeachment or any of the usual issues when social media is involved in litigation. It offers no citations or footnotes to justify some type of novel citation to new social media technology.

Rather, the Court of Appeals matter-of -factly quotes the litigant’s Facebook profile (just like it would any other statement or document).

How about that?

If you’re in Charlotte, North Carolina tonight, you might be interested to know that our editor, Jim Dedman, is moderating a debate on net neutrality. Net neutrality is a complicated topic, but the debate tonight is designed to educate attendees about its origins and the potential effects of the new Federal Communications Commission regulations. If you’re interested, you can join The Bastiat Society and Johnson And Wales University for a debate on net neutrality featuring scholar Brent Skorup of the Mercatus Center at George Mason University and Charlotte attorney Brian Focht, author of the popular The Cyber Advocate law blog.

The event begins tonight at Hance Auditorium at Johnson and Wales University, which is located at 801 West Trade Street, Charlotte, North Carolina 28202

According to reports, Apple finds itself the subject of a another lawsuit regarding its power adapters. Unlike the previously settled class action lawsuit which alleged that the MagSafe adapters were defectively designed and caused unnecessary fraying of the power cords, the latest suit alleges that the adapters actually cause physical harm to others. In the latest suit filed in California, Heather Henderson allegedly suffered second and third-degree burns after coming in contact with the adapter. Such burns, Henderson believes, could have been prevented had Apple placed an appropriate warning on the MagSafe adapter.

This suit arises out of an incident that happened earlier this year. Henderson’s husband was using his Apple laptop when Henderson fell asleep with her arm on top of the adapter for approximately 40 minutes. She woke up groggy, felt “itchy,” and went to bed.  The next morning she felt pain and discovered a “one-inch boil” on her arm.  Henderson believes the boil has resulted in a permanent scar.

From what we can gather from the reports, the interesting thing about this suit is that it is couched as a failure to warn case rather than one alleging that the adapter is excessively hot.  Henderson told San Diego’s ABC affiliate that she knew the adapter could get warm, but she “didn’t know exposure to [her] bare skin would mean a second- to third-degree burn.”  Moreover, Morris stated the following regarding the adapters:

It’s a huge problem.  It’s called MagSafe, but it’s not safe at all.  People are reporting burns and fires, and Apple knows this.

Henderson and Morris allege that burns such as those suffered by Henderson could have been prevented had Apple placed a warning label on the adapter.

We here at Abnormal Use are curious as to why Henderson appears to be focusing on the lack of warning labels on the adapter.  After all, she came into contact with the adapter accidentally while sleeping.  It is not like a more effective warning label would have saved the day.  Had Henderson alleged that the adapter heated to a temperature in excess of the normal in-use temperature of MagSafe adapters or other power adapters in the industry, then she likely would have a better case.  Our guess is that there must not be sufficient evidence to establish that the temperature of the adapter was abnormal or else Henderson would have proceeded on that theory.  When accidents happen and there is no legitimate means of recovery, failure to warn becomes the default.

See here for a prior post of ours on power adapter litigation.