Winnie The Pooh, beware. Jackie Chiles is coming for you. Chiles, the flamboyant and opportunistic trial lawyer of “Seinfeld” fame, has been retained by Jim Beam to enjoin bears everywhere from continuing with their honey theft.

So what’s Jim Beam’s beef with bears? Well, the Kentucky bourbon whiskey brand has developed a new product infused with honey and liqueur known as Jim Beam Honey. It appears that honey production has been depressed by a decline in the honey bee population. Even though the supply is waning, Jim Beam needs its honey – and it is willing to fight the largest consumer to get it.

Speaking to the media through his handlers, Chiles had this to say about the suit:

“Bears are egregious, devious, and just plain mischievous! . . . I’m here to go on the record – with Jim Beam Honey as my witness – to ensure that sweet, mouth-watering justice is served!”

With Chiles leading the charge for Beam, the bears may be in trouble. For their sake, we hope the bears have Vincent Gambini on speed dial.

We here at Abnormal Use are glad to see Chiles back in action. We are typically not fans of frivolous lawsuits, but Chiles is a friend of the blog. (We previously scored an interview with Phil Morris, the actor who brought Chiles to life). We have no idea what will happen with the bears, but for some reason, hearing about Chiles’ revival makes us want to buy a bottle of Jim Beam Honey. In fairness, though, we probably would have done that anyway.

Above, you’ll find the cover of Daredevil: The Movie #1, a comic book film adaptation published a decade ago in 2003. Ben Affleck, as you may recall, portrayed Daredevil. Yesterday, we learned that Mr. Affleck will play Batman in the upcoming sequel to the Superman movie Man of Steel. Twitter fell over itself responding to the news. We here at Abnormal Use are not certain how to react.  On the one hand, Affleck played George Reeves, the actor who played Superman on television in days of yore, in the 2006 film, Hollywoodland.  He wasn’t too bad in that.  But on the other hand – it is Ben Affleck! Gigli! Jersey Girl! How can this be? We are crestfallen. (Note to our readers: Technically, this is a legal themed comic book post because, after all, Daredevil’s alter ego was attorney Matt Murdock. So there.).

Okay, so imagine that you had to open a new matter and run a conflicts check on this dispute.

We think we remember these Empire Strikes Back trading cards. Those were the days, no?

In huge legal name change news, there’s this.

Friend of the blog Neil Burger of the Carrington Coleman firm has unveiled a new blog: Sua Sponte: The Dallas Appellate Blog. Check it out.

Eric Goldman asks: “Are the Days of Independent Legal Blogging Over?” We think not.

Our friends over at the North Carolina Law Blog reran our post “There Is Now Federal ‘Selfie’ Authority.”  Check out that post at their site, or here, as well as their archives of other news.

Two Pennsylvania women brought a state law nuisance claim in federal court against the owner of coal fired power plant that allegedly damaged their property through the emissions of ash, chemicals, and odors.  The power plant, which is owned by GenOn Power, was apparently in compliance with the state and federal environmental regulations that govern the operation of coal power plants.  The lawsuit was initially dismissed by the district court, which held the suit was preempted by the Clean Air Act.   The Third Circuit recently reversed the district court and held that the Clean Air Act is not preemptive.

In its decision, the Third Circuit found that “nothing in the Clean Air Act [indicates] that Congress intended to preempt state common law tort claims.”  The Court further stated that the Clean Air Act is “a regulatory floor, not a ceiling, and expressly held that states are free to impose higher standards on their own sources of pollution, and that state law tort is permissible way of doing so.”  The Third Circuit relied in large part on the Supreme Court’s holding in International Paper Co. v. Ouellette, 479 U.S. 481 (1987),which held that the Clean Water Act did not preempt state law tort claims.

The Third Circuit’s ruling appears to go against strong authority supporting preemption.  In Am. Elec. Power Co., Inc. v. Connecticut, the Supreme Court held that the Clean Air Act preempted federal common law nuisance claims as a means to curb emissions from a power plant. 131 S. Ct. 2527 (2011). In that case, the Supreme Court noted that the EPA has been designated to serve as the emission regulator and is better suited to do so than judges issuing ad hoc injunctions.  Additionally, the Fourth Circuit has held that that state law nuisance claims against power plants are preempted because they threaten the comprehensive regulatory scheme. See N. Carolina, ex rel. Cooper v. Tennessee Valley Auth., 615 F.3d 291, 303 (4th Cir. 2010).

This new ruling is very significant as it opens the door to a potential onslaught of litigation.  It means that residents can pursue property claims against power plants even though they are in compliance with state and federal regulations.  That sound that citizens in Northeast are hearing is the sound of their electricity rates and bills clicking higher.

Who says the federal courts lag behind technical advances?

Well, thanks to last week’s United States v. Doe, No. 1:12–cr–00128–MR–DLH (W.D. N.C. Aug. 14 2013), we now have a federal definition of “selfie.” Well, kind of.

The opinion arises from a motion to suppress, and since we don’t opine on criminal law, we won’t recite the facts and specific issues.  But check out this footnote:

The term “selfie” is the name given to a self-portrait photograph, “often snapped at odd angles with smartphones[,]” and “typically made to post on a social networking website (or sen[t] in a text message)[.]”

See id. at *8 n.6 (citing Katy Steinmetz, “The Top 10 Buzzwords of 2012,” Time, Dec. 4, 2012, http://newsfeed.time.com/2012/12/04/top–10–news–lists/slide/selfie).

According to our very, very brief Westlaw search, this is the only state or federal court to use the word “selfie.”

Curiously, the link cited in the footnote is no longer active; the correct portion of the cited article can be found here.

The court also noted:

With the popularity of social media sites like Twitter, Facebook, and Instagram, together with cell phones’ capability to send text messages and pictures, common sense would lead a practical person to conclude that human behavior includes the making of flattering or unflattering “selfies.” That the Defendant’s phone probably would contain evidence of the three crimes listed in the warrant application was within the issuing magistrate’s realm of lawful consideration. The issuing magistrate, therefore, had a substantial basis for concluding that probable cause existed.

Id. at *8.

It’s good to see courts catching up to the technological trends, and we hope any selfie-related litigation cites to this opinion.

Here we go again with the social media discovery, in our own territory no less. In McKinney v. Pedery, — S.E.2d —-, No. 5165   (S.C. Ct. App. Aug. 14 2013), a family law matter, a husband appealed the trial court’s ruling which had terminated his former wife’s requirement to pay permanent periodic alimony “when the court found that Husband continuously cohabitated with his paramour in contravention of section 20–3–130(B)(1) of the South Carolina Code.” Apparently, that statute requires the termination of alimony “on the remarriage or continued cohabitation of the supported spouse.” Of course, Facebook is at issue in this opinion. Our favorite paragraph of the opinion:

Wife submitted evidence to family law attorneys from Davis Law Firm [Husband’s Purported Cohabitant] kept all of her personal belongings at Husband’s residence, including her clothing, undergarments, shoes, and toiletries. Husband’s testimony that [Husband’s Purported Cohabitant] only packed an “overnight” bag when she traveled to Duncan to care for her grandchildren lends support for the conclusion that [Husband’s Purported Cohabitant] “lived under the same roof” as Husband. Further, Husband admitted that he gave [Husband’s Purported Cohabitant] an engagement ring and that [Husband’s Purported Cohabitant’s] relationship status was listed as “engaged” on Facebook prior to Wife filing for termination of alimony. We are not persuaded by Husband subsequently referring to [her] engagement ring as a “friendship ring” or by [Husband’s Purported Cohabitant] changing her relationship status from “engaged” to “in a relationship” immediately following Wife’s initiation of this action. Rather, this is evidence of Husband’s attempt to downplay their relationship and living arrangements, which we find unconvincing.

(Emphasis added).

So, there’s that.

If you are a football fan, you have probably heard about the concussion/brain injury litigation against the NFL. The litigation has been going on for quite some time and seems to be growing with every passing week. We here at Abnormal Use first wrote about it way, way back in 2011. Two years later, there appears to be no end in site. While we have no idea when the litigation will end, we have a pretty good idea of how it might do so. More than likely, the numerous current and former player plaintiffs will find themselves the recipients of a hefty settlement. But the financial and legal ramifications of this suit should be the least of the NFL’s concern. We here at Abnormal Use fear that this litigation may put a nail in the coffin of football as we know it.

Before you criticize us for such draconian ideas, hear us out. Since the early days of football, the game has gotten safer as technology has evolved. Safety should always be a concern, and we encourage any equipment upgrades which can offer the players better protection. With that being said, however, we strongly oppose altering the game of football as we generally know it.

Undoubtedly motivated by the litigation, the NFL has revealed a number of new safety rules for the 2013 season, including a rule that prohibits ball carriers from initiating contact with the crown of the helmet. Likewise, the NCAA has instituted automatic ejections for helmet-first contact. For the naysayers, these new rules sound reasonable and prudent. For football purists, on the other hand, these rules are the first steps in the game’s demise.

As we stated back in 2011, football by its very nature is a dangerous sport. The players are bigger and more athletic than ever before. The NFL and the NCAA can and should continue to explore safer equipment alternatives to protect these athletes. But changing the rules in an effort to eliminate “dangerous” contact robs the game of its very essence. Sure, the new rules are aimed to lessen head injuries and may very well serve their purpose. We are concerned, however, of the slippery slope in store. Now that players can’t hit high, they have nowhere else to hit but low. With more lower hits, comes more season or career ending knee injuries. Football probably needs a rule to prohibit that, too.

Football is a contact sport; therefore, contact will happen. The only way to truly prevent injuries, short of dressing players in sumo costumes, is to do away with contact altogether. If the NFL continues to be overly reactive to the threat of litigation, football will become so regulated that it no longer resembles the sport we have come to love.

Above, you’ll find the cover of Four Color #56, published way, way back in 1944. Prominently depicted on the cover is hero detective Dick Tracy. Now, we here at Abnormal Use aren’t criminal lawyers, but we’ve watch enough television to know that the investigating detective probably shouldn’t be touching the body with his bare hands before it’s even been removed from the scene of the crime.  What the heck? Maybe criminal procedure was a bit different back in 1944.

The Rolling Stones have started up litigation against a company alleging misusing their super famous logo.

Walter Olson has the latest on the feud between the Consumer Products Safety Commission and the manufacturer of Buckyballs.  We’ve previously written on this controversy here and here.

If you’re looking for photographs of abandoned tanks, you are in luck.

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

“Exercise gives you endorphins. Endorphins make you happy. Happy people just don’t [sue their exercise clothing manufacturer], they just don’t.” – Elle Woods, Legally Blonde. Or do they? So, fitness is not usually a hot law topic; rather, lawyers tend to talk about fitness only as something they should do but do not have enough time for or as something that keeps them sane in the crazy world of the billable hour. Fitness is serious business.  Gone are the days of just going to the local YMCA for an aerobics class in a leotard and legwarmers or walking around the block in a big t-shirt and a tattered pair of Umbros.  Now, gyms are no longer one-stop shops; rather entire exercise studios are built around offering only one activity at a premium, and each seems to have its own dress code. But once you start going, you become hooked and find it normal to buy the $12 socks with special traction, the $40 sweatshirts that fall just-so off your shoulders so that you can wear it to and from exercising, the $65 dollar yoga mat that incorporates a towel into the mat itself, and do not forget the $90 pair of pants everyone says makes your backside look like you have never skipped a day of squats and lunges.

For those of you that do not know, Lululemon Athletica, Inc., a Delaware corporation with its principal place of business in Vancouver, British Columbia, is the chic, “it” fitness brand.  The easily distinguishable logo can be spotted all over town while running errands or even at brunch.  In addition to its products, Lululemon gets involved in each community in which it opens a store.  Lululemon’s pants are not your run-of-the-mill cotton exercise pants.  The fabrics are more hi-tech and breathable; the waistband is more flattering; and the cut is just more flattering to a woman’s backside.  However, in recent months, Lululemon has become associated more for what it is covering up in its books and less for what it is covering up for its customers.

In March 2013, the retailer recalled 17 percent of its stock of yoga pants. Specifically, customers that purchased the pants at issue on or after March 1, 2013 noticed and began complaining that the people behind them in their yoga classes were getting more than the “communal energy” created in the room.  Let’s just say that when the class went into downward facing dog—or really any pose that involved bending over, of which there are many, it was more of a peep show than a show of strength and flexibility.  Lululemon offered exchanges and refunds for these pants in addition to pulling the remaining pairs off of the shelves.  In a Form 8-K Securities and Exchange Commission filing on April 3, 2013, Lululemon admitted the fabric used in its black luon products was “on the low end of lululemon’s tolerance scale,” and that the company found that its “testing protocols were incomplete for some of the variables in fabric characteristics.” Although there are those that say—generally men who do not do yoga—that they would actually go to yoga to be behind these translucent pants, those who paid the premium to purchase the high quality product marketed by Lululemon have not been laughing.

Yet it has not been the customers who have provided the biggest backlash over the pants.  To date, there have been no lawsuits alleging a design defect causing injury or a failure to warn.  Instead, Lululemon’s shareholders have felt the most betrayed by the seeming lack of quality control, and their anger has taken shape in the form of two complaints alleging securities violations and breaches of fiduciary duty, Hallandale Beach Police Officers & Firefighters’ Personnel Retirement Fund v. Lululemon Athletica, Inc., No.8522-VCP (Del. Ch. May 3, 2013 & July 1, 2013), and Alkhoury v. Lululemon Athletica, Inc., No. 13-CV-4596 (S.D.N.Y. July 2, 2013).

The Plaintiff in Hallandale claim brought this action as a common stockholder of Lululemon alleging possible breaches of fiduciary duty on the party of officers and directors.  Brought in Delaware, the premise of this complaint is that Lululemon has not allowed Plaintiff to inspect its corporate books and records as provided in Section 220 of Delaware’s General Corporation Law.  Basing its complaint and amended complaint on a New York Times article, “Recall is Expensive Setback for Maker of Yoga Pants” and several of Lululemon’s most recent Form 8-K filings regarding the recall and the termination of the company’s Chief Products Officer, Plaintiff alleges the recall cost approximately $60 million and cost the company a lot of its popularity.  The amended complaint further alleges that in the midst of dealing with the fallout from the recall, the Lululemon board of directors still increased the maximum allowable payout for the executive bonus plan. The amended complaint states a cause of action for breach of fiduciary duty in that Lululemon’s chairman sold $50 million of his own stock on the day that Lululemon’s Chief Executive Officer stepped down, causing the value of the stock to decrease by 22 percent in two days.  Plaintiff claims it sent two demand letters to Lululemon demanding to inspect certain portions of its books but that the retailer did not resopnd to the demands.

Although filed around the same date as the Hallandale amended complaint, the Alkhoury complaint expands upon, in very specific terms, the allegations of the Hallandale litigation.  Notably, it is a class action, including all common stockholders that purchased or held Lululemon stock during the class period of March 21, 2013 through June 10, 2013.  The complaint alleges a violation of two sections of the Securities Exchange Act, Section 10(b), Rule 10b-5, and fraud on the market against Lululemon and Section 20(a) against the founder and Chairman of the Board of Lululemon, Dennis J. Wilson, and CEO, Christine McCormick Day. Specifically, Plaintiff claims that defendants knew Lululemon cut corners to keep profit margins up as competition in Lululemon’s niche market stiffened. Plaintiff further claims that the price of Lululemon stock was artificially inflated by the announcement of the fourth quarter and fiscal 2012 financial report for the period ending February 3, 2013 and other positive statements regarding increased quality-control measures following the recall.  Plaintiff further claims that at that time, defendant Wilson was selling 2 million shares of his personally-owned stock on the open market and receiving more than $163 million in gross proceeds during a very short trading window lasting from May 10, 2013 to June 7, 2013. It is alleged these sales were unusual both in sheer size and timing, as defendant Wilson had not sold Lululemon stock since January, and he was then aware of internal turmoil at Lululemon. Plaintiff claims that as a result of Day’s resignation from her position as CEO, the price of Lululemon stock, which had traded as high as $82.50 per share during the class period, plummeted more than 17.5 percent to close at $67.85 per share on June 11, 2013, erasing more than $1.6 billion in market capitalization. Thus, Plaintiff alleges that during the class period, defendants made false and misleading statements, engaged in a scheme to deceive the market, engaged in a course of conduct that artificially inflated the price of Lululemon common stock, and operated as a fraud or deceit on Plaintiff by misrepresenting the value of the company’s business and prospects by overstating its earnings and concealing the significant defects in its internal controls. Therefore, Plaintiff alleges that as defendants’ misrepresentations and fraudulent conduct became apparent to the market, the price of Lululemon common stock fell precipitously, and as a result of their purchases of Lululemon common stock during the class period, Plaintiff and other members of the class suffered economic loss, i.e., damages, under the federal securities laws.  Alkhoury has been designated a “complex civil case” for purposes of the Southern District of New York’s pilot program on complex civil case management, and as part of that designation and based on a July 8, 2013 Order, all defendants must have been served by July 15, 2013.

Both Complaints allege fraudulent behavior on the part of Lululemon and its officers; however, proving a breach of fiduciary duty can be much easier than proving fraud directly since plaintiffs do not need to prove criminal or fraudulent intent or the other elements of fraud. To prevail on a breach of fiduciary duty, the plaintiff must show only that the defendant occupied a position of trust or fiduciary relationship and that the defendant breached that duty to benefit personally. However, Rule 10b-5 prohibits fraudulent conduct in connection with the purchase or sale of securities; accordingly, it prohibits a person from employing any device, scheme, or artifice to defraud; making any untrue statement of material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or engaging in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. To prevail on such a securities fraud claim requires the showing of (1) a misrepresentation or omission of, (2) a material fact; (3) reliance thereon; (4) causation; (5) damages; (6) scienter or fraudulent conduct; (7) in connection with the purchase or sale of a security. Therefore, the way in which the Hallandale complaint is pled may get the desired result for shareholders more easily Alkhoury.

At this time, no answer has been filed in either of these cases.  It will be interesting to see how Lululemon balances these related matters and what is found if and when Lululemon allows its books to be reviewed.  Either way it seems that Lululemon is going to remain in the hot seat for a while even though its stock price has rebounded since these lawsuits were filed.  The stock price went from $82 per share before CEO Day stepped down following the sheer pants drama to as low as $57 per share, but the stock has been steadily climbing back, currently hovering around $72 per share.  Namaste.

Recently, we provided some commentary about an Alabama court’s interpretation of what is “reasonably foreseeable” with regard to the operation (or accidental operation) of a handgun.  As a quick reminder, that case involved a man who wound up shooting himself in the stomach because he carried his gun without any safeties engaged.  That court denied the gun manufacturer’s motion for summary judgment, buying the argument by the plaintiff’s lawyers that a gun manufacturer should have reasonably anticipated that a carrier of the derringer might need to fire the gun so quickly that “a pause to disengage the two safety features [of the derringer] would destroy the defensive advantage he was buying.” Today, we will continue our inquiry into what different jurisdictions perceive to be “reasonably foreseeable” in the products liability context.  Conveniently, this also continues another journey we seem to be on: the search for the stupidest plaintiff.

The case is Mohr v. Yamaha Motor Co., Ltd., A-5194-10T4 (N.J. Super. Ct. App. Div. July 19, 2013).  The plaintiff in this case lifted up the back of his friend’s Yamaha snowmobile–while the engine was running.  The track broke while the end was in the air and gave the plaintiff such a bad leg injury that the leg had to be amputated.

The plaintiff sued Yamaha on theories of products liability, “claiming that . . . Yamaha had failed to provide an adequate warning against lifting the machine while it was running.”  At trial, the jury found Yamaha liable for failure to warn.  There is some interesting commentary about the presence and adequacy of the warnings, but we find the issue of “foreseeable misuse” more interesting, in light of our recent Alabama gun case.  The court in this case provided some reminders about use and misuse under New Jersey law:

A “volunteer” can be defined as one who offers to provide a service willingly and without pay.  Apparently, one New York resident wants to rewrite the definition of volunteer.  John Chen was one of many persons that volunteered to work for free at Major League Baseball’s 2013 All-Star Fan Fest.  Now, after the fact, Mr. Chen is looking to get paid and has filed suit claiming that MLB violated wage laws. I always thought the minimum wage for volunteers was $0.  Surely, there must be more to this story, right? Allegations of fraud and deception? Broken promises? Nope, there’s nothing of the sort.