Just as D minor is the saddest of all keys, laches is the most forlorn of affirmative defenses.  Nevertheless, it has always been our favorite, and our dream is to one day win summary judgment based solely on our invocation of laches. But even after all of these years, we are still waiting for such a victory. Why does laches get no respect in dispositive motions?  As an affirmative defense, it’s something slightly less than the statute of limitations defense, which bars claims based on the passage of a set number of years.  Laches, as we all know, means that a party should be prevented from recovery because he or she has sat on their rights for too long, even though that period of time that they waited, may still be within the statute of limitations.

We have all seen plaintiffs wait until the last day before the statute of limitations before they file their lawsuits.  We have all seen plaintiffs appear to suffer no injury or damages whatsoever until their lawsuit is filed the day before the statute of limitation runs.  But how can a defendant successfully invoke laches?

Here’s how North Carolina defines the laches defense:

To establish the affirmative defense of laches, our case law recognizes that 1) the doctrine applies where a delay of time has resulted in some change in the condition of the property or in the relations of the parties; 2) the delay necessary to constitute laches depends upon the facts and circumstances of each case; however, the mere passage of time is insufficient to support a finding of laches; 3) the delay must be shown to be unreasonable and must have worked to the disadvantage, injury or prejudice of the person seeking to invoke the doctrine of laches; and 4) the defense of laches will only work as a bar when the claimant knew of the existence of the grounds for the claim.

MMR Holdings, LLC v. City of Charlotte, 148 N.C.App. 208, 209–10, 558 S.E.2d 197, 198 (2001); compare Hallums v. Hallums, 296 S.C. 195, 198–99, 371 S.E.2d 525, 527 (1988) ( “Laches is neglect for an unreasonable and unexplained length of time, under circumstances affording opportunity for diligence, to do what in law should have been done. Whether a claim is barred by laches is to be determined in light of [the] facts of each case, taking into consideration whether the delay has worked injury, prejudice, or disadvantage to the other party; delay alone in assertion of a right does not constitute laches.”) (citations omitted).

When you think about it, there’s actually a number of circumstances where this defense might apply readily.  Plaintiffs sit on their rights all the time, forgetting key or relevant information (whether it be the basis of the claim itself or even the names of doctors they’ve seen or the location of notes or photographs which might shed additional light on their claims).

Its time to allow laches to prevail more often in the courtroom. That would be something.

Here at Abnormal Use, we like to keep tabs on all products, especially those that we use regularly, so we couldn’t help but notice the lawsuits filed against Budweiser’s parent company, AB InBev, for allegedly overstating the alcohol content in its beer.  According to the complaints filed in federal courts in New Jersey and San Francisco, AB InBev allegedly adds extra water to its finished products to produce beer with substantially less alcohol than what is displayed on its labels.  If this is true, it may violate various state statutes on consumer protection, as well as some Federal Trade Commission requirements.  The complaints are not limited to Budweiser, but also include Bud Ice, Bud Light Platinum, Michelob, King Cobra, Busch Ice, Black Crown, Bud Light Lime, Hurricane High Gravity Lager, Natural Ice and Michelob Ultra.  One of my favorite aspects of these cases is the factual basis for the damages alleged, so let’s take a closer look.

In the New Jersey case the purported class representative is partial to Michelob Ultra.  As an initial matter, it is utterly hilarious that anyone who regularly purchases Michelob Ultra would complain they have been deceived into purchasing “watered-down beer.”  If you can’t tell you’re drinking watered-down beer from the taste of Michelob Ultra alone, you have obviously have no idea what “beer” should actually taste like.  This is apparently the case with Brian Wilson, who is suing AB InBev based on his previous purchase of one case of Michelob Ultra per month.  Come on Brian, couldn’t you have at least saved face, claimed you were buying the Ultra for your wife, and had her file the lawsuit?  We suspect Brian’s friends are having a field day with this one.

In an added bit of embarrassment for Mr. Wilson, the California case was filed by Nina Giampaoli, a female citizen of wine-swigging Sonoma County.  Ms. Giampaoli at least has the good taste to have purchased a sixer of Budweiser per week over the past four years.  Obviously Ms. Giampaoli knows “beer,” and we can appreciate her consternation on being unable to cop a proper buzz off six Budweisers.

Now, for a real class representative we turn to the Greenbergs, who filed their case in federal court in the Eastern District of Pennsylvania.  The Greenbergs allege they routinely purchased “as many as” four cases of Budweiser a month during the past four years.  One can only assume that the Greenbergs, having filed the case in Philadelphia, are devout Eagles fans, forced to drown their sorrows week after week.  Of course, they could also be Phillies, Flyers, and 76ers fans as well, which would explain the case per week over the course of several years.  Either way, Mr. Wilson could certainly learn a thing about two about beer drinking from the Greenbergs.

We here at Abnormal Use will be keeping a close watch as these cases develop and can’t wait to see who will reign as the true “class representative” for all Budweiser lovers nationwide.  Apparently the allegations in these cases were supported by former employees of the brewery, but it will of course ultimately depend on the actual alcohol content of the beers at issue, and what constitutes “watered-down” beyond what is advertised.  As for Mr. Wilson, we invite him to put down the Michelob Ultra and experience everything real beer has to offer.  He may just decide that he wasn’t being deceived after all; he just didn’t know any better.

Above, you’ll find the cover of Real Fact Comics #19, published way, way back in 1949.  An interesting evidentiary issue is presented on the cover, which proclaims: “Exclusive! I Am A Camera Cop! The True Story Of A Lawman Whose Pictures Sent Criminals To The Chair!” If we were law professors (and woe unto our students if we were), we would simply place this comic book cover within our final examination and ask the students to describe how, under the relevant rules of evidence, the Camera Cop’s photographs would be made admissible. That would be cool.

“Is the Past a Foreign Country,” asks historian Suzannah Lipscomb in a TEDx video. An interesting answer.

Hey, folks, friend of the blog Brian Comer serves on the DRI Products Liability Steering Committee, and he is currently planning the DRI Products Liability annual conference, set to begin on April 3, 2013 in Washington, DC. (We are confident that the talk of that conference will be the genius of our upcoming April Fool’s Day post, which will have been published and received much acclaim two days beforehand.). You may even be able to meet one of us there, as Abnormal Use and our firm, Gallivan, White, & Boyd, P.A., usually sends a representative or two. For more information, including a link to the registration procedure, head on over to Brian’s blog and check out this entry. And, if you decide to attend, drop us a line, and we’ll look out for you.

Happy 15th anniversary to one of our favorite films, The Big Lebowski.  For anniversary coverage, please see here.

Mark our words: The casting of Harrison Ford, Mark Hamill, and Carrie Fisher in the new Star Wars sequels is bad, bad news. Trust us on this one.  We’re nostalgic, too, perhaps overly so.  But we sense doom on this one. Check back with us in 2015, and we’ll collect our accolades and vindication.

Last weekend, I spent nearly 10 hours in the car to travel to and from Greenville, South Carolina to Savannah, Georgia.  My father turns 65 in a few days, so my husband and I packed up our two boys, ages 3 and 11 months, and loaded the family truckster for a weekend of sugar and celebration. Ten hours of car riding in three days is a lot for little guys to handle, and they become restless and bored along the way.  So, about halfway through each leg of the trip, I found myself crawling between two VERY large carseats in the back to help feed/entertain the boys.  Along the way, I started to think about the products that I already possessed that made these tasks easier, and the ones that I wish had already been invented.  I thought I’d share that list with you.

The “Haves”

1.  The in-car DVD system. Before I actually had children, I vowed never to own a car that had a DVD system for the back seat.  When I was a kid, I had to entertain myself with books, crayons, and generally annoying my brother.  Why couldn’t my kids make do with the same?  Well, when we bought the family truckster, the DVD system came standard, so I didn’t have a choice.  And, in the past three years, I have learned a very valuable lesson.  While I may not be able to see anything on the screen from the front seat, the DVD system has NOTHING to do with the kids.  It’s for the PARENTS!  We still have restrictions on how much of the trip can be “TV time,” but I found myself very thankful for the DVD yesterday when we were stuck in traffic.

2.  Child window locks. The 3-year old has a mischievous streak.  Enough said.

3.  Baby mirror. When angled correctly, a mirror hanging from the back seat can allow the baby and the driver to see each other, or the baby to see himself.  Hours (okay, at least minutes) of fun, especially if you put a hat on the baby.

The Wish List

1.  Automated “peek a boo” parent. My 11 month old is still sitting backwards, and he isn’t very interested in DVDs yet anyway, so he got very bored very quickly staring at the backseat.  As a result, I spent a lot of my time hiding behind my hands/his hands/blankets/stuffed animals and playing peek-a-boo with him.  It would be nice to have something that could do that for me, at least for a little bit.  Because while I got a bit tired of that game, he never did.  Don’t get me wrong – I loved playing with him for a little while, but by hour three, I was exhausted!

2.  Extended trailer hitch changing table (with optional heater). Let’s face it.  No parent wants to change his or her child in a rest area or fast food restaurant bathroom, even with those fold-out Koala tables.  Gross.  But with two kids and two adults, plus all of their stuff, there wasn’t any flat place in the car to change the baby, either.  Plus, it was early March, and quite chilly–no person, baby or not, wants his bare rear end exposed to 40 degree weather!  My solution?  Some sort of table that extends from the car, flat and just big enough on which to change a baby.  It would appear the same way as, say, automatic running boards that appear from the bottom of the car when it is turned off.  Key feature?  A heating element for those bare bottoms.

3.  New York City cab-style impact-resistent glass divider between front and back seats. When you get two boys together, there is a reasonable chance of something flying from the backseat to the front seat, square into the back of Dad’s head, or rolling under Mom’s feet as she tries to pass that 18-wheeler.  A nice optional feature would be soundproofing for meltdowns/temper tantrums that just cannot be quelled.

4.  Teleporter. Beam me up, Scotty!  A teleporter would really obviate the need for all of this other stuff.  Simply load up the car, punch in a destination Delorean-style (yes, I am aware I am mixing pop culture references, thank you), and race toward the downed power line.  Not only would this allow us to miss all the drama of the 10-hour trip, but it would have allowed us to spend more time with the birthday boy, my dad.

Yet, this wish item falls not at the top of my list, but the bottom.  Some of my fondest memories, believe it or not, were on family trips when my brother and I were hostages in the back seat, forced to find our own fun and (gasp!) talk to my parents.  In fact, we all reminisced about some of those trips this past weekend, laughing so hard we couldn’t breathe.  I think they made my brother and I closer to our parents, and to each other.  I hope that these trips do the same for my sons.  Nevertheless, if you take away my DVD player, I may have to hurt you.

It’s funny how the Internet works. We here at Abnormal Use have previously extolled the virtues of the @TweetsOfOld Twitter account, which in its own words, “attempt[s] to reveal the lives of our predecessors through the tweets of yesteryear.” In so doing, that Twitter account utilizes “real one-line brevities from old newspapers, as they appeared – or close.” Usually, the folks behind that account offer compelling, intriguing, and occasionally curious moments from periodicals published at least a century ago. Sometimes, the tweets center around some type of legal issue, made all the more interesting by the age of the event being profiled. On December 29, 2012, the TweetsOfOld account issued the following tweet:

“The Ohio Supreme Court says a man can whale a boy for snowballing him. IL1912.”

The alpha-numeric abbreviation at the end of the tweet signifies that this report came from an Illinois newspaper in 1912.

This got us thinking.  If the Ohio Supreme Court made a ruling which made the news in Illinois, surely we could locate that opinion.

We assume that any such ruling would have been issued in 1912, although it’s possible it could have been released in late 1911.

So we turned to Westlaw and the trusty Ohio Cases (OH-CS) database. We set a date field restriction such that only cases between 1910 and 1913 would be searched. The search term “Whal!” revealed two cases, neither of which were the one at issue.  The search term “snow!” produced 11 cases, most of which were not Supreme Court cases and none of which were the opinion in question.

We then went to the Ohio Supreme Court’s official website, and its oldest featured opinions online are from 1992.

After a total of five minutes of looking, we gave up, as other duties called. Oh, the Internet, what crazy errands you prompt.

A couple of years ago, we here at Abnormal Use interviewed Adam Avery, President and Brewmaster of the Avery Brewing Company, as part of our “Abnormal Interviews” series. When asked how beer can be a catalyst to solving problems, Avery replied:

I think Homer Simpson said it best: “Beer, the cause of all the world’s problems and the solution.” I mean, beer is that thing that almost everybody loves. Most people that say they don’t like beer, they think of beer as Bud, Miller, Coors. They think of something that’s fairly flavorless and just carbonated. So, once we get everybody on board with how much flavor can come out of a craft beer, especially something like Collaboration Not Litigation. Everybody drinks a beer together and it just seems like an easy way to – it definitely helps to solve problems.

At the time, we thought Avery’s comments about the mass-produced American beers were common knowledge. Little did we know, he foresaw a future lawsuit. Last week, consumers filed lawsuits in federal courts in Philadelphia, San Francisco, and New Jersey against Anheuser-Busch InBev, the world’s largest brewer, for allegedly overstating the alcohol content in Budweiser. The suits allege that the company routinely adds extra water to produce beer with significantly less alcohol content than that displayed on the label. The complaints also allege that the mislabeling extends to Bud Ice, Bud Light Platinum, Michelob, King Cobra, Busch Ice, Black Crown, Bud Light Lime, Hurricane High Gravity Lager, Natural Ice and Michelob Ultra. According to Josh Boxer, the attorney for the plaintiffs in the California action, the allegations are based on information received from former employees of Anheuser-Busch.

The consumers seek damages in excess of $5 million.

This suit is still in its infant stages, so little information is available. Even if the allegations are true, we have to question the purported damages claims. Consuming one beer – whether it contains the stated 5% ABV or the watered down 3-4% ABV – will have little effect on intoxication. Anheuser-Busch products aren’t necessarily the beers many would just drink one or two of for pleasure. It is conceivable that people drinking watered-down beer would require an additional beer or two in order to reach a certain state of impairment. We guess the plaintiffs could have been damaged in having to pay for those extra beers over the years. But $5 million is a lot of “one mores.” (Plus, there must be some public policy argument to thwart a “I couldn’t get as drunk as quickly as I wanted” claim.).

What remains to be seen is whether the plaintiffs will claim that the watered-down product somehow has less taste than a beer with the stated ABV. Considering the beers allegedly effected, such a claim would be downright silly. Many seasoned beer drinkers, like Adam Avery, would suggest that the beer was flavorless regardless of its alcohol content. Even if the beer is not completely devoid of flavor, we doubt the flavor difference would be tangible to even the most sophisticated palates.

If the plaintiffs’ allegations are true, then the situation obviously needs to be corrected. But if the plaintiffs’ damage is drinking a flavorless watered-down beer, then they may have assumed the risk with their beverage choice.

Lawyers in South Carolina should be aware of an alert issued by the South Carolina Bar related to the LinkedIn social network. In its entirety, the new notice, issued last week, is as follows:

LinkedIn loophole
The social media site LinkedIn has proved problematic for S.C. Lawyers, owing to an as-yet unremovable section on each lawyer’s page titled “Skills and Expertise.” Any member of the public may endorse a Bar member and note areas of “expertise.” However, under Rule 7.4 of the S.C. Rules of Professional Conduct, only certified specialists may use the term “expert” or other forms of the word. To avoid possible discipline while maintaining your LinkedIn page, follow these instructions on how to hide skill endorsements and minimize the risk. For ethics and professional responsibility assistance, contact Risk Management Director Jill Rothstein at jrothstein@scbar.org. For questions about running your law practice, contact PMAP Director Courtney Kennaday at pmap@scbar.org.

In response to the alert, we here at Abnormal Use have investigated this issue further. First, it seems clear from the alert that LinkedIn endorsements themselves are not necessarily prohibited by the South Carolina rules. Rather, the alert simply reminds South Carolina attorneys of the requisites of Rule 7.4(b) of the South Carolina Rules of Professional Conduct, which provides:

A lawyer who is not certified as a specialist but who concentrates in, limits his or her practice to, or wishes to announce a willingness to accept cases in a particular field may so advertise or publicly state in any manner otherwise permitted by these rules. To avoid confusing or misleading the public and to protect the objectives of the South Carolina certified specialization program, any such advertisement or statements shall be strictly factual and shall not contain any form of the words “certified,” “specialist,” “expert,” or “authority” except as permitted by Rule 7.4(d).

Here’s the problem: LinkedIn endorsements, by their very nature, are included in a section of the user profile entitled “Skills & Expertise.”  The rule prohibits attorneys from referring to themselves as “experts” except where certified as such.  Thus, because the LinkedIn endorsements can only appear in a section with an objectionable title, the South Carolina Bar has warned its members that any such endorsements should be hidden from view and/or deleted. In sum, it appears that the Bar’s position is that nothing should be listed under “Skills & Expertise” section of one’s LinkedIn profile.  We have learned that members of the South Carolina Bar have already contacted LinkedIn about removing the word “expertise” from the section.  We do not know how, or whether, they will respond.

Okay. Why are comic book superheroes and villains always being tried, and more importantly, why are the covers of the comics featuring those trials always set OUTSIDE the courtroom? What gives?  Above, you’ll find the cover of Spider-Man #60, published not so long ago in 1995. Here’s how Comicvine describes the narrative:

Peter Parker goes on trial for multiple murders in Utah committed by his clone Kaine.

The clone defense?  Must that be pleaded or waived? Sigh.

In this piece, entitled “Suicide as Gender Issue,” The Journal of Gender, Race, & Justice cites our own Stuart Mauney’s blog post on “The Lawyers’ Epidemic: Depression, Suicide, and Substance Abuse.”  Stuart recently served as the chair of the South Carolina Bar’s HELP Task Force, an entity dedicated to educating lawyers and judges about substance abuse and mental health issues in the legal profession.Check it out.  Speaking of Stuart, don’t forget that you can follow him on Twitter  here.

GWB’s own Tom Vanderbloemen recently met with the Sterling School‘s 4th thru 8th grade First Lego League/USFirst Organization team about an invention they have developed. He spoke with students concerning patent law, its history, and the processes involved in patenting a new invention. For more, see here.

As you know, sometimes we here at Abnormal Use discuss popular culture, whether it be comic books, music, or the cinema. This weekend, we received a curious email from an associate at our firm: “Did you know that our Charlotte office was in Shallow Hal? The exact building and everything. I just had this realization.” Pictured above is the screen capture he attached to that email.

Oh, my goodness.  That is, in fact, the entrance to the building which houses our Charlotte office.

It could not be more clear.  Compare to the pictures we previously posted here and here, and you’ll find the resemblance unmistakable.

Does this mean our office was once famous?  Well, let’s see.

Shallow Hal, an otherwise forgettable attempt at comedy, was releaed on November 9, 2001. It starred Jack Black and Gwyneth Paltrow.  According to the Internet Movie Database, the film was shot in and around Charlotte, North Carolina during that time frame. As for us, we did not move into this building until late 2011, so we missed the brush with fame by eleven years. Alas.

This news has presented an existential dilemma of sorts: we’d prefer that a better film had been shot here.

Now, our researchers are working diligently to determine whether or not our Greenville and Columbia offices have been featured on film.

On a related Hollywood note, Wilford Brimley once left us a voicemail.

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.