The Beastie Boys are back in the news, but it’s not for the band’s music.  Rather, they recently obtained a $1.7 million verdict in a New York copyright infringement and false endorsement lawsuit against Monster Beverage (the makers of Monster Energy drinks) over the company’s use of the musical trio’s music and image in a promotional video. The lawsuit stemmed from the energy drink maker’s use of the Beastie Boys’ likenesses and five songs as part of a “megamix” in a snowboarding video titled “Ruckus in the Rockies.”  The video was posted on a promotional website back in 2012.  According to Monster, the whole thing was just a big misunderstanding. Apparently, an employee “inadvertently” believed Monster had been given rights to use the music.  Monster only contested damages at trial. Nevertheless, the jury came back with a “monster” judgment.

As you might suspect, Monster was not too happy with amount of the award.  The company had contended that the damages only amounted to $125,000.  Admittedly, the award does seem a little large, but it is not outrageous. “Syncing,” which is the industry term for reusing a song for commercial purposes, generates approximately $322 million per year for the music industry.

This isn’t the only time the Beastie Boys have had to “fight for their rights” this year.  In March, the group settled with a small toy company over its use of the song “Girls” in a video that went ultimately viral.

By the time this blog post goes live, GM will probably have made public the results of its internal investigation regarding how it responded to an ignition switch defect.  Part of the inquiry involves delving into why GM apparently waited more than ten years to recall 2.6 million small cars with faulty ignition switches linked to at least 13 deaths. Reportedly, a Texas woman, Candice Anderson, was recently informed that a GM ignition defect was responsible for her fiance’s 2004 death, in connection with which she pled guilty to manslaughter.  Apparently, she was driving a Saturn vehicle and her fiance had the misfortune of being the passenger.  The car left the roadway without leaving any skid marks or other signs of causation.  Anderson survived.  Her fiance perished. Anderson happened to have trace amounts of anti-anxiety medication in her system.  Anderson was charged with manslaughter, but pled guilty to negligent homicide. Anderson reportedly wants an apology from GM.  Unless the statute of limitations has expired, we have a feeling that Anderson may be destined for more than an apology.

There’s nothing worse than an error message; it’s like an electronic flat tire.  Your Internet activity comes to a screeching halt and your computer freezes.  So, you then click the “x,” but the “x” won’t click.  Then you press the “esc” key that had a good run in the 90’s, but it just doesn’t really do anything anymore (but it’s still worth a shot).  You then press the ctrl+alt+delete, using three of your fingers that should never be forced to work in concert.  If that doesn’t work, you hold the round button on the computer machine for ten seconds until the light goes off.  If that, too, fails, you buy a new computer.

We can all agree that the error message is one of the worst first world problems one can experience.  Reportedly, Verizon is litigious and unhappy that Netflix has attempted to link Verizon to this unpleasant experience in the minds of Netflix customers. Apparently, whenever there is an interruption in a Netflix video that is playing on Verizon’s network, Netflix displays an error message that essentially blames the error on Verizon.  Verizon is not appreciative of this association.  Things have apparently escalated to the point that Verizon has fired the first snail mail shot over the bow and threatened to sue if Netflix does not cease and desist.

We at Abnormal Use do not pretend to understand the series of tubes in enough detail to weigh in on who is to blame in this spat over streaming Internet entertainment, but we will say that we do not endorse the erroneous messaging of error messages.  But we await the litigation thereof.

What is happening on the cover of Public Defender in Action #8, published way, way back in 1956? It seems that Richard Manning, the title character, has been disturbed by something happening just outside of his office window. We see a police officer apparently pursuing another gentleman – who may or may not be Manning’s client.  Are we supposed to guess? What gives? (Note: We’ve previously mentioned the Public Defender in Action series here and here).

If you haven’t already, you may want to read this piece on the U.S. Supreme Court’s previously unknown practice of editing opinions after their release.

Who is going to the North Carolina Bar Association annual convention next week in Wilmington? Our editor Jim Dedman will be there, so say hi if you see him.

Our favorite headline this week: “Underground booze slushies not as innocent as they look.” That falls under food regulation, right?

Baylor University is threatening suit against the Baylor Alumni Association. To learn more about that dispute (and to read Ken Starr’s letter to the alumni group), see here.

Last month, two boys in New York were injured after falling 20 feet from an inflatable bounce house swept into the air by a gust of wind. Last week, two children in Colorado were injured when the inflatable bounce house in which they were playing rolled across a field due to heavy winds. Now, our good friends at the Consumer Product Safety Commission (“CPSC”) are launching their own investigation into the fun that is the casa de aire. In a statement given to USA Today, CPSC spokesman Scott Wolfson stated:

We’re going to look into what were the conditions prior to the incident, what led to the incident itself. . . [T]he fact that we are focusing on these two show that we are making it a priority.

The inflatable house industry might want to ask Buckyballs what it is like to be number 1 on the CPSC’s hit list.

We here at Abnormal Use are traditionally not big fans of the CPSC. This latest investigation is likely not going to alter that status. The CPSC has a useful purpose – to regulate product safety. Apparently, that focus has extended into regulating the weather itself. If these were cases of children injured because the inflatables posed a strangulation or similar-type hazard, then the CPSC has its role. But, that is not the case. Both of these incidents are freak accidents resulting from extreme gusts of wind. The problem is not with the product itself, but rather with the use of the product in certain weather conditions.

We do not know what product warnings the inflatable bounce houses may possess. If they haven’t already done so, we imagine the manufacturers will add a “Do not use in heavy winds” warning as a result of this investigation. Certainly the warning would be useful to those unaware that a product filled with air could be carried away by the wind.

(Editor’s note: We blogged on bounce houses way, way back in 2010. For that post, please see  here.).

An inexplicable coincidence happened some time ago.  I prepared a blog post about a new lawsuit filed in the area and saved the draft on our blogging platform and placed it in the queue for review by our editor. When we learn of interesting complaints in the area, we sometimes write about them, and this is what I did in this case.

The following afternoon, I received a call from a number I did not recognize.  The caller ID indicated that the call was from the corporate offices of the defendant in the lawsuit about which I had just drafted a post.  I assumed that the blog post had gone live and that someone was calling to discuss the post, clarify the facts, tell me to remove the post, etc. To my surprise, the caller was the in-house counsel at the defendant corporation calling to retain our firm in the that very lawsuit.  During the discussion, I checked our blog site and learned that my post had not yet gone live.  We took the case and elected not to run the post.

I have racked my brain in an attempt to understand this coincidence without avail.  Perhaps it was magic.

If anyone needs me, I will be typing a novel about a former litigator who had no choice but to retire at the age of 30 after winning the lottery five times in a row.

In the Fourth Circuit’s recent Barlow v. Colgate Palmolive Company, a dissenting judge determined that the majority rewarded the plaintiffs’ counsel’s bad behavior by refusing to vacate the remand order.  The facts underlying this opinion are very interesting.  The asbestos plaintiffs alleged their illnesses were caused by exposure to asbestos-containing products manufactured by a number of defendants, including Colgate.  Specifically, the plaintiffs contended that their use of Colgate’s “Cashmere Bouquet” power makeup products, which they contended “contained unhealthy levels of asbestos” caused their health problems.  However, plaintiffs also named their employers—in-state defendants, which destroyed diversity.

Despite the inclusion of the in-state defendants, Colgate removed the case to federal court arguing that the inclusion of the in-state defendants was fraudulent because the discovery taken in the case, including plaintiffs’ deposition testimony, clearly demonstrated that plaintiffs did not intend to pursue any other defendant.  Plaintiffs’ counsel moved to remand the cases and represented that there was some circumstantial evidence that the plaintiffs may have been exposed to asbestos as a result of working for the in-state defendants.  Based on those representations, the federal district court remanded the cases to state court.

Eight days after remand, plaintiffs moved to sever their cases from a trial group that was consolidated for trial.   In this motion, plaintiffs’ counsel specifically argued that plaintiffs were only arguing that the exposure to the Colgate “Cashmere Bouquet” products was the cause of their illness.  Counsel further disclaimed any exposure to asbestos at the plaintiffs’ worksites caused their illnesses.  Counsel went a step further and stated:  “In short, there is absolutely no evidence to indicate or even suggest that the Plaintiffs were exposed to asbestos in any form other than Cashmere Bouquet.”

Naturally, after receiving this motion, Colgate filed a motion with the federal district court requesting “vacatur of the remand order as a sanction.” The majority decided that it had no authority to provide such relief because the “federal removal statute generally prohibits review of orders remanding removed cases.”  The court determined that precedent also did not support Colgate’s requested relief because the court has “said, unequivocally, that ‘the district court has one shot, right or wrong,’ to decide whether a removed case should be remanded.” Further, the court rejected Colgate’s argument that it was not seeking “review” of the federal district’s court’s determination because “it seeks to relitigate the merits of an issue already litigated: whether the plaintiff’s fraudulently joined the nondiverse defendants, which was the issue the first-time around.” The court inexplicably concluded:  “Colgate had its chance to prove fraudulent joinder.  It failed.  It does not get a second try with an improved record.” Finally, the court determined that “if Congress wanted to carve out an attorney-misconduct exception to the prohibition on review of remand orders, it would have done so.”

The dissent, while acknowledging that Federal Rule of Civil Procedure 11 did not provide authority to vacate remand orders, reasoned that the federal district court did have jurisdiction to entertain the Rule 11 motion.   The dissent found the majority’s research regarding cases in which court’s embraced Colgate’s argument to be lacking and noted “it appears that every federal court that has addressed” these issues, even the Fourth Circuit. Further, the dissent referenced opinions issued by the Supreme Court of the United States that also determined that federal district courts had jurisdiction to sanction plaintiffs’ counsel.

Furthermore, the dissent determined the majority’s reliance upon the “one-shot” language in Lowe to be misplaced and explained:  “[I]f a litigant could flout his duty of candor before a district court and secure remand by misrepresentation, knowing that such remand is never subject to vacatur, he would lose all incentive to present the facts of a case honestly to the court during removal.”  The dissent was also critical of the majority’s statement that it would not carve out an exception if Congress had not done so by noting that the case to which the majority cited—Powerex Corp. v. Reliant Energy Servs., Inc. , 551 U.S. 224 (2007)—recognized exceptions that were not carved out by Congress. In sum,

 If honesty in the judicial system means anything, it means proceeding with candor before the tribunal, which plaintiffs’ counsel did not do during the removal proceedings.  Whatever prolonging of this litigation vacatur of the remand orders might cause [plaintiffs] have only their own lawyers to blame.  And the truth is well worth the delay.

Id. at 58.

We here at Abnormal Use love music, especially the classics of the good ‘ole days.  Understandably then, our attention has been drawn to the recent controversy involving Led Zeppelin’s 1971 hit “Stairway to Heaven.”  To quickly summarize, the estate of Randy California of the band Spirit has recently claimed that Zeppelin plagiarized his song “Taurus”—or more specifically, the universally recognized opening chords that introduce the Zeppelin smash hit.

We are surprised by the claim and likely pending lawsuit for several reasons.  First, “Stairway to Heaven” was released in 1971. Again, 1971!  Can California’s estate bring this claim more than forty years after the alleged rip-off?  According to the Supremes (get it?), yes.  The United States Supreme Court recently held that no delay is too long when it comes to bringing a copyright infringement suit.  Just as an FYI, the case involved a dispute over the screenplay of Raging Bull.  Classics overload in this blog post.  In any event, the decision confirms that yes, California’s estate can bring a lawsuit up to three years after an infringing act, which essentially sets up a rolling cause of action.   Led Zeppelin is gearing up to release a new version of its iconic album Led Zeppelin IV, which provides the estate with its infringing act.

Secondly, where do we draw the line between paying tribute and flat-out plagiarism?  They say imitation is the sincerest form of flattery.  The problem may lie by Zeppelin’s failure to give the proverbial “shout out” to California or Spirit.  According to Forbes, the band has a long history of appropriating songs and chords without crediting the original artists.  In fact, the band has settled or defended copyright cases over “The Lemon Song,” “Whole Lotta Love,” “Babe I’m Gonna Leave You,” and “Dazed and Confused.”  Perhaps Aloe Blacc’s track “The Man” provides guidance.   The song clearly pays homage to Elton John’s hit “Your Song” in its chorus, which repeats “you can tell everybody” in a similar fashion to John’s.   However, on his production company’s website, Blacc and the producers have provided the credits for the song, including crediting an interpolation from “Your Song” by John.  For his part, Sir Elton is loving Blacc’s track, noting that the influence means his music is still relevant and it gave him a “big kick up the bum.”  What a cheeky fellow.

We will see how this story develops in light of Zeppelin’s upcoming album release.  In any event, it is undeniable that the opening riff to “Stairway to Heaven” is iconic, often-emulated, and frankly, maybe even overplayed?  Party on, Wayne.

Above, you’ll find the cover of Superman & Savage Dragon: Chicago #1, published not so long ago in 2002. The plot, according to Comicvine, is as follows: “When Superman’s greatest foes leave their native Metropolis and join Chicago’s notorious criminal organization, the Vicious Circle, the call is put out for the Man of Steel to save the day.” (We hope that Supes had the opportunity to shop at Reckless Records while he was in the Windy City.). Whatever the case, we bring this cover to your attention today because our editor is in Chicago today attending the DRI Product Liability Committee Fly-In planning meeting. If you happen to find yourself at the same meeting today, please be sure to say hello!

Apropos of nothing, here is a link to a rejection letter that U2’s Bono received from a record label in May of 1979.

If you handle minor settlements in the State of South Carolina, you may want to review this new order from the South Carolina Supreme Court.

FYI: GWB attorney Luanne Runge, Immediate Past Chair of the Greenville Chamber of Commerce, has been named a 2014 South Carolina Super Lawyer in the area of Business Litigation.  For more information, please see here.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

I was recently offered the opportunity to help with iCivics day, which involves attorneys visiting local schools to talk with students about the framework of our country’s democracy.  As part of the iCivics day briefing, we were told that students may ask a variety of personal questions, including how much money lawyers make, why we decided to be a lawyer, et cetera.  The “why did you decide to be a lawyer” question jumped out at me and prompted a period of self-reflection.

I finally decided that the answer to that question is not simple, and that there are a variety of reasons.  One thing is certain: I am not a lawyer because of money.  Do I appreciate the fact that lawyers may earn more than members of some other professions?  Yes. However, I have found that money is not a good motivator, standing alone. When money is the only motivation for something, it will inevitably lead to demotivation and burnout.

So why am I a lawyer?

I am a lawyer because I genuinely enjoy helping people and solving their problems.  Our firm, at least in my practice areas, typically represents companies.   Even before the recent and much discussed judicial decision making it official, I have always enjoyed the fact that corporations are (and are founded, made up of, and act through) people.  People by nature occasionally need help.  Whether it’s the employee in a panic because something he has done has put the company at risk or the owner motivated to protect his company’s proud reputation, I welcome the opportunity to take ownership of their problems in order to find a solution.

I am also a lawyer because I love the courtroom.  I love everything about the courtroom.  I love the formalities of the courtroom, the magic words, the judge’s robe, the gavel, and everything else that makes the courtroom a courtroom.  I recently argued a motion in a makeshift temporary courtroom that looked more like a multi purpose room at a school than a courtroom.  I liked that, too.  Some courtrooms are nicer than others, but I like them all, mainly because of what happens in them, which brings me to my next point. There are lawyers for every detailed cases these days, even brain injury lawyer nashville tn.

I love the adversarial process.  I love investigating facts, taking depositions, arguing motions, and otherwise working hard to protect my client from whatever the party on the other side of the “v” is seeking to recover.  Of course, trial is where all of this hard work ends up under the spotlight, and that’s my favorite part of the adversarial process.  I love the various ways that lawyers try to connect with members of the jury.  I love the feeling of being prepared.  Most of all, I love cross-examination.  To be honest, it is truly my favorite thing about practicing law.  I love catching people in fibs. I love asking a difficult opposing witness a question with my back to the witness stand while making eye contact with the jury.  It is a great feeling to be the one asking the questions, but I even love watching someone else cross examine a tough witness.  A great cross examination is a beautiful thing.

Despite the lawyer jokes and occasional smear campaigns in the media, good lawyers do a great service to the community.  Whether a lawyer is representing someone charged with a crime, or whether a lawyer is closing on a house, the lawyer is tasked with ensuring that the law of the land is followed and respected.   That alone makes it a noble and important profession.