According to a report from BevNet, energy drink manufacturer Red Bull has settled a proposed class action lawsuit filed against it for $13 million.  The suit, filed last year by Benjamin Careathers in the U.S. District Court for the Southern District of New York, alleged that Red Bull’s signature “It gives you wings” slogan is false and misleads customers about the drink’s superiority.  While the company’s advertisements may in fact show Red Bull drinkers growing wings, the plaintiff alleges that Red Bull offers no increased performance, concentration, or reaction speed.  As you might expect, Red Bull has denied any liability.

We assume – and hope – that the plaintiff didn’t actually believe Red Bull would give him actual wings.  (We doubt New York recognizes the “negligent failure to bestow wings” cause of action.). In fact, we seriously doubt that Red Bull would have paid out millions on such claims even if it was concerned about litigation costs. As such, we will refrain, mostly, from commenting on the absurdity of such a lawsuit and focus on the more plausible allegations.

This lawsuit was never about wings, but rather, it centered upon whether Red Bull actually delivers that energy fix we all crave.  After all, that energy boost is why people spend $3 on an 8-ounce drink in the first place, right?  Or, $2 for a cup of Starbucks coffee, for that matter.  The suit, however, alleges that Red Bull’s primary active ingredient (caffeine) is the same as that of coffee and, thus, it is not worthy of the premium price.  Maybe so, but the suit fails to take into account the cognitive effects that come along with drinking an “energy drink.”  Even if it offers a mere placebo effect, the energy drink didn’t become a multi-billion dollar industry without repeat customers.

The truth is that the energy drink is not some new phenomenon.  For centuries, people have been looking for ways to give themselves an extra burst of energy.  Coffee has been, and continues to be, the drink of choice for many across the globe.  However, in the 1960’s, Japanese manufacturer Taisho upped the ante when it released Lipovitan D – an energizing tonic sold in mini-bottles.  Thereafter, other beverage companies joined in the game.  Pop culture legend Jolt Cola was once marketed to the masses as having “all the sugar and twice the caffeine.”  Those were the days. Even the soft drink giants, Coca-Cola and Pepsi, have tried their hand at distributing coffee replacements over the years.  Today, the game has evolved into the billion dollar “energy drink” industry featuring companies like Red Bull and Monster.

Our guess is that this lawsuit will have little, if any, impact on the energy drink industry.  For those angry about Red Bull’s alleged false advertising, Red Bull has placed $6.5 million of the $13 million settlement into a fund for consumers.  If you have purchased a Red Bull in the last 10 years, you can go here for a $10 refund or two free Red Bull products.   No word on whether the free products give you wings.

We here at Abnormal Use took notice of a recent Wall Street Journal article which examined the use of adverbs in legal documents in the United States.  The article highlights the impact that the usage of adverbs have had in SCOTUS jurisprudence.  For example, in the recent Burwell v. Hobby Lobby case, the Court was faced with the determination of whether certain regulations “substantially burden the exercise of religion” as defined by the Religious Freedom Restoration Act (RFRA).  See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759, 189 L. Ed. 2d 675 (2014).  In a recent “net neutrality” case, the United States Court of Appeals for the District of Columbia was forced to determine the impact of a rule requiring service providers to “serve the public indiscriminately.” Verizon v. F.C.C., 740 F.3d 623, 655-56 (D.C. Cir. 2014).

In the piece, the WSJ examines the glut of adverbs in the legal system against the backdrop of numerous opinions of successful writers, including Stephen King, who warns against the use of adverbs:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”

However, the article acknowledges that research on the subject has yielded mixed results:

According to a 2008 study by two scholars at the University of Oregon School of Law and Brigham Young University, lawyers who stuff so-call intensifier adverbs in their legal briefs—words such as “very,” “obviously,” “clearly,” “absolutely” and “really”—are more likely to lose an appeal in court than attorneys who avoid those “weasel words,” as Mr. Garner described them. But notably, the study found that the habit can actually work in a lawyer’s favor if the presiding judge really likes to use those adverbs, too.

Our take is that lawyers should be aware of their audience.  If the audience likes adverbs, use adverbs.  If the audience hates adverbs, don’t use adverbs.  If you are unsure whether your audience likes adverbs, or if you are writing a mystery novel in your free time, err on the side of avoiding adverbs. But do so carefully.

(Hat Tip: ABA Journal).

Good news: Fleetwood Mac is coming to the Carolinas.

Rest in peace, Jan Hooks.

Our Stuart Mauney has spent a good bit of this week at the ABA 2014 National Conference for Lawyer Assistance Programs. Of course, he’s been live tweeting the event. You can follow Stuart on Twitter and see his conference related tweets here.

Speaking of Twitter, our favorite legal tweet of late comes from Popehat:

Four things that are always better the next day: meat loaf, chili, pinto beans, and a trial as told to other lawyers.

— Popehat (@Popehat) October 3, 2014

Who foots the tab for the disposal of prescription drugs that aren’t (improperly) flushed down the drain or thrown into landfill?  One California county believes that such costs should fall to drug companies. Armed with that belief, county officials passed an ordinance in 2012 requiring drug companies to pay for a drug-disposal program.  Last month, the Ninth Circuit upheld Alameda County’s ordinance, which drug industry groups claimed was unconstitutional. The Safe Drug Disposal Ordinance at issue mandates that companies selling or distributing prescription drugs in Alameda County fund a program to ensure safe disposal of unused drugs.  The goal is to remove unused and unwanted drugs from households without contaminating water supplies. Under the law, drug companies must establish drop-off stations for the disposal of unused drugs.

Three trade groups sued Alameda County, alleging that the ordinance violated the the dormant commerce clause. If you don’t remember, the dormant commerce clause prohibits states from passing legislation that improperly burdens or discriminates against interstate commerce. The trade groups alleged that the ordinance would constitute an economic burden in the magnitude of approximately $1 million per year for each drug company required to comply.  Alameda County claimed this cost was exaggerated and argued that any burden would be minimal in comparison to the nearly $1 billion in drugs sales that occurred in their county each year.

The Ninth Circuit agreed with the county and unanimously held that the ordinance did not violate the dormant commerce clause. The court further held that the ordinance treats all manufacturers equally without respect to the geographic location of the manufacturer  Finally, the court held that the plaintiffs presented no evidence that the ordinance would substantially burden the flow of interstate prescription drugs.  In so doing, the court observed that the U.S. Supreme Court is “reluctant to invalidate regulations that touch upon safety.”  As such, it upheld the district court’s dismissal of the case. In concluding the opinion, the court stated:

Opinions vary widely as to whether adoption of the Ordinance was a good idea. We leave that debate to other institutions and the public at large. We needed only to review the Ordinance and determine whether it violates the dormant Commerce Clause of the United States Constitution. We did; it does not.

The case is PRMA, et al. v. County of Alameda, et al.,  No. 13-16833 (9th Circuit Sept. 30, 2014).

Several months ago, actor/comedian Tracy Morgan and several others filed suit against Walmart in a New Jersey federal court after he was involved in an accident with a Walmart truck on the New Jersey Turnpike which left one person dead and several others seriously injured.  The suit alleges that Walmart driver Kevin Roper had been awake for more than 24 consecutive hours when he crashed into the side of the limousine van carrying Morgan and several others.  Further, Roper was allegedly so fatigued that he fell asleep at the wheel prior to impact.  According to the investigation conducted by the NTSB, Roper was travelling 65 mph in a 45 mph zone.  He has pleaded not guilty  to death by auto and assault by auto charges.

Last week, Walmart filed its answer to Morgan’s complaint and, needless to say, it caused a bit of an uproar.  According to a report from the Hollywood Reporter, Walmart’s answer contains nine affirmative defenses – most of which are fairly typical in personal injury lawsuits (i.e. failure to mitigate damages, punitive damages are unconstitutional, et cetera).  One of those affirmative defenses, however, prompted much criticism.  Specifically, Walmart alleged that the plaintiffs’ injuries “were caused, in whole or in part, by plaintiffs’ failure to properly wear an appropriate available seatbelt restraint device.”  The media focused upon this defense and accused Walmart of a blatant “blame the victim” campaign.

Likewise, Morgan himself responded in a statement, “I can’t believe Walmart is blaming me for an accident that they caused.”

We here at Abnormal Use do not know the merits of either side of this case; however, we question the national lynching of Walmart at this early stage of the litigation.  Is Walmart attempting to shift all or some of the blame to the plaintiffs?  Certainly.  That is the very nature of an affirmative defense.  Should Walmart be publicly criticized for it?  Absolutely not.  Under New Jersey law, all passengers of a motor vehicle are required to wear a seat belt.  N.J.S. 39:3-76.2f. Unlike some jurisdictions wear the use of a seat belt is inadmissible in a civil action, in New Jersey, evidence of nonusage of a seat belt is a comparative negligence issue and is admissible on issues of whether the nonuse increased extent and severity of injuries.  As such, Walmart is raising a defense which it is entitled to raise by law.

We can certainly appreciate the sentiment that pleading the failure to use a seat belt “looks” bad when compared to the alleged negligence of the truck in this case.  However, Walmart is acting fully within the laws set forth by the State of New Jersey in its pleadings.  If the plaintiffs’ injuries could have been lessened or avoided altogether by using a seat belt, then Walmart is entitled to have that matter decided by a jury.  This isn’t a matter of Walmart claiming that Morgan and the other plaintiffs caused the accident itself but, rather, that perhaps some of the injuries could have been avoided if the plaintiffs had also followed the law.  Again, if the case goes to trial, a jury may determine that the defense is not applicable and award the plaintiffs sizable damages. But, it is completely unfair to chastise Walmart for raising the matter as an affirmative defense in its initial pleading.   As with any affirmative defense, if Walmart didn’t plead the seat belt usage defense, then it would be forever waived.  If discovery reveals that the defense is groundless, then Walmart can always withdraw it.

We wonder if the media would report on that development.

For those readers who were eagerly anticipating the arraignment of Mike “The Situation” Sorrentino, originally scheduled for this week, you must unfortunately wait even longer.  Reportedly, the arraignment has been delayed so that The Situation can film another reality TV show. For those unfamiliar with the case, The Situation and his brother allegedly falsified tax returns in order to avoid nearly $9 million in taxes. A Justice Department press release explains that The Situation and his brother “did not properly pay taxes on $8.9 million in income Michael Sorrentino received from promotional activities . . . .”  The press release goes on to explain that:

Michael Sorrentino is a reality television personality who first gained fame on “The Jersey Shore,” which appeared on the MTV network. Marc Sorrentino is Michael’s brother and manager. The pair conspired to fail to pay all federal income tax owed on approximately $8.9 million earned by Michael Sorrentino between 2010 and 2012. This income was largely received by two companies controlled by the brothers: MPS Entertainment, LLC and Situation Nation, Inc.

As part of the conspiracy, the brothers submitted or caused to be submitted to the IRS false documents which understated the gross receipts received by the brothers and the two companies. The brothers also submitted false personal tax returns which failed to report all of the income they received, and Michael failed to file a personal tax return in 2011, despite earning $1,995,757 that year.

As part of the conspiracy, the brothers also fraudulently claimed millions of dollars in personal expenses as business expenses, including payments for high-end vehicles and clothing, personal grooming expenses, and distributions – or direct payments – from the businesses to personal bank accounts.

The conspiracy count carries a maximum potential penalty of five years in prison and a $250,000 fine; the filing false tax return counts each carry a maximum potential penalty of three years in prison and a $250,000 fine. The count charging Michael Sorrentino with failing to file a tax return carries a maximum potential penalty of one year in prison and a $100,000 fine.

U.S. Attorney Fishman credited special agents of IRS-Criminal Investigation, under the direction of Acting Special Agent in Charge Larsen, with the investigation.

The prosecutors assigned to the case are Assistant U.S. Attorneys Evan S. Weitz and Jonathan W. Romankow of the U.S. Attorney’s Office Criminal Division in Newark, as well as Trial Attorney Tino Lisella of the Tax Division of the United States Department of Justice. Weitz is no stranger to high profile financial cases, having handled the case against Karen Febles, who allegedly stole millions from an investment banker. Romankow was involved in the prosecution of reality stars Teresa and Joe Guidice and Lisella has been involved with the case of the New Jersey doctor who allegedly participated in an oxycodon distribution conspiracy.  Point is, the prosecution team is no stranger to high profile cases.   The Situation’s defense attorney, Richard Sapinski, may have his work cut out for him.

For more information, the indictment is located here.

Well, it finally happened.

We have long suspected that someday it would happen, but recently, it finally did happen.

Of course, we are referring to the possibility that an opponent in litigation might cite to our blog in an effort to defeat our argument in a motion hearing.

We’ve been blogging here at Abnormal Use for more than four and a half years, and it has finally come to be.

The scene was thus: I arrived at a county courthouse relatively early, as I like to have a few moments to myself before court convenes to review my notes and any case authority once more before the hearing begins. Lawyers were beginning to enter the courtroom, although the judge had not yet arrived. I was there to argue a motion which was opposed by counsel for the plaintiff as well as other parties in the litigation. As fate might have it, the issue was being litigated that day was a relatively novel one, and there was not a wealth of authority on the particular common law issue in dispute. Counsel for one of the non-movants came into the courtroom, and as we had not previously met in person, we introduced ourselves and exchanged the customary pleasantries. We even chuckled about a few events in the case, as lawyers sometimes do before a hearing, and we then sat down – apart from each other, of course, so that we could finalize our preparations for the imminent hearing. Put another way, we had to get into character.

A few moments later, counsel for the non-movant looked back and raised a packet of notes in the air. Atop the stack was a color printout of a blog post from this website.

The conversation began.

“I guess I am supposed to show you this,” counsel for the non-movant said.

“What’s that?” I replied, not yet seeing what my opponent held before me.

“My associate found this for me. It’s from your blog.”

“Oh?” I asked, now realizing that what the opposing lawyer held was a printout from our blog and seeing several highlighted paragraphs from the post in question.

She read me the title of the post, and I immediately realized that it was not one that I myself had written. Getting a closer look, I saw that the post had run in our blog’s very early days – 2010! – and that the post in question was more in the form of a case summary than an argument on behalf of a legal principle.

“I’ve never had anyone cite my blog against me,” I said. “However, I don’t think that’s one of my posts.”

Looking disappointed, counsel for the non-movant gave the printout a closer look and realized that the author was another attorney.

“Oh, you’re the editor of the blog.”

“Yes, that’s right.”

Counsel for the non-movement seemed a bit crestfallen, as if this particular arrow in the quiver was suddenly less effective or appealing.

Ultimately, the blog post was not used during the hearing.

So, in the end, we suppose that we dodged this particular social media peril. But we knew something like this would happen someday.

As you know, we here at Abnormal Use love courtroom themed comic book covers. After posting comic book covers for nearly five years, though, we are always on the lookout for ones we’ve missed. Well, we’re not entirely certain what is occurring on the cover of My Secret Life #26, published way, way back in 1958. We have a witness either taking or leaving the witness stand, a judge apparently about to strike his gavel, and a mysterious hand, perhaps that of a lawyer, holding a pair of glasses.

Did you watch “Bad Judge” last night? If so, any thoughts? If you missed Nick Farr’s review of the first two episodes, click here.

You know, since today is the first Friday in October, perhaps it is a good day to revisit U2’s October album, released way back in 1981.

Our favorite legal tweet of the week is, of course, related to famed cartoon lawyer Lionel Hutz:

“So you *don’t* work on a contingency basis?” “No, money down!” pic.twitter.com/JIob7fB09L

— SimpsonsQOTD (@SimpsonsQOTD) September 27, 2014

Tonight, NBC airs the premiere episode of “Bad Judge,” a new legally themed sitcom starring television and film veteran Kate Walsh as a municipal court judge with a chaotic personal life. Created by Anne Heche and produced by Adam McKay and Will Ferrell, “Bad Judge” looks and feels like the legal version of the similarly named Cameron Diaz movie, “Bad Teacher.” As you might imagine, “Bad Judge” does not go out of its way to accurately depict the legal profession or the daily working lives of judges. Nonetheless, “Bad Judge” is certainly amusing if not believable once the aspirations for legal realism are set aside.  Warning: Spoilers abound in the review below.

Walsh plays Rebecca Wright, whose life as a hard living, sexually charged woman intermingles with her career as a criminal court judge.  Aided by stashed away liquor and sexual flings with the State’s expert witness in her chambers, she is somehow able to manage her judicial responsibilities despite her battles with hangovers and pregnancy scares.  Through unorthodox sentencing methods (i.e. in the pilot episode, she orders a defendant to enroll in a college feminism class and to attend wearing an “I Am a Convicted Bigamist” t-shirt), she takes seriously the idea that the criminal code is a mechanism of rehabilitation rather than punishment.  Despite the flaws in her personal life, Wright goes out of her way to aid the families of defendants while their loved ones are locked away.

At least in the first two episodes, the focus is exclusively on Wright and set primarily within the courthouse.  Rounding out the cast are John Ducey as prosecutor Tom Barlow, Mather Zickel as Wright’s aforementioned expert witness love interest Dr. Gary Boyd, and Tone Bell as the awkwardly ever present bailiff Tedward Mulray.

The pilot primarily sets the stage for Wright’s life and career path.  While fighting a hangover and after making a pit stop for a pregnancy test, Wright presides over a bail hearing for an alleged bigamist.  Announced as one of the most prominent psychologists in all of California, Dr. Boyd testifies that the bigamist is a flight risk and, thus, Wright denies bail.  Shortly thereafter, Wright and Boyd retire to chambers to continue what is apparently an on-again, off-again sexual relationship.  Wright then leaves the courthouse to serve as “counsel” for Robby Shoemaker (Theodore Barnes), the child of persons previously sentenced by Wright, as he awaits punishment at his elementary school for drawing derogatory pictures of his teacher.  Later, she returns to the courthouse in order to convict and sentence the aforementioned bigamist.

The second episode, “Meteor Shower,” is much of the same.  Rather than stopping for a pregnancy test, Wright’s pilgrimage to the courthouse is interrupted in order for her to place a fireman’s axe into the front tire of an angry motorist’s convertible.  Wright presides over the “trial” of a teen actress and welcomes the paparazzi with a double-fisted, middle finger salute.  After getting stood up by Dr. Boyd, Wright gets a little too high and has to call EMS after eating two pot brownies stolen from the evidence locker.  Not to be deterred, Wright gets back on her feet, returns to the courthouse, and sentences the teen actress to four weeks of seclusion at a convent so that she can “find herself.”

From a legal perspective, “Bad Judge” has it all wrong.  The show is so legally inaccurate, one has to wonder if the writers intentionally made it so.  From the timing of the legal proceedings to the courtroom candor and unethical conduct of Wright and the attorneys alike, it seems implausible that the writers engaged in any research whatsoever.  If “Bad Judge” is the product of legal research, then that research is the equivalent of writing a doctoral thesis with Wikipedia as a primary source.

Giving them the benefit of the doubt, we will assume that the writers intentionally made no attempt to create an accurate portrayal of the legal system.  And, that is okay.  There is nothing worse than a show that contains just enough realism to make it believable while butchering key components and leaving the general public with absurd ideas about the legal system.  No one will come away from watching “Bad Judge” thinking they have gained some insight into the inner workings of a courtroom.  Clearly, that is not the purpose of the show.  “Bad Judge” is a comedy centered around Wright’s disheveled life.  While the character is a polar opposite of her previous roles in “Grey’s Anatomy” and “Private Practice,” Walsh plays the role brilliantly. And, in this, “Bad Judge” certainly delivers.

The pilot episode airs tonight at 9:00 EST on NBC.