A federal judge in California has refused to dismiss a lawsuit claiming that General Mills, Inc. was misleading consumers about the healthiness and fruit content of its ‘Fruit Roll-Ups’ and ‘Fruit by the Foot’ product lines. A California woman, Annie Lam, sued the on grounds that a “reasonable consumer” might be confused by the products’ actual fruit content.

Lam alleged that the marketing claim “made with real fruit” incorrectly described the fruit snacks’ true ingredients.  She is, of course, wrong, because the products do actually contain real fruit.  A quick flip to the back of the product reveals that it contains “pears from concentrate.”  It may not be the fruit she wants, but technically, it is “real fruit.”  We here at Abnormal Use understand the vexing frustration of having to flip a box over and read the ingredient list, but give us a break on the federal court litigation, okay?

Judge Samuel Conti, however, clearly disagrees with us.  In his decision, he held that the packaging statements “might lead a reasonable consumer to believe that [the] product is made with real strawberries, not pears from concentrate.  The names ‘Fruit Roll-Ups’ and ‘Fruit by the Foot,’ along with the fanciful depiction of these products, which resemble fruit leather, may lead to further confusion about the Fruit Snacks’ ingredients.”

The suit, which now seeks class-action status, was filed with the aid of the watchdog group Center for Science in the Public Interest.  Although there may be a time and place for pursuing companies that are trying to pull a fast one on the general public, we must be honest and say that we don’t feel much sympathy when there’s a plainly visible nutrition and ingredient label on the side of the package.  In fact, those labels are required to be by law.   Furthermore, let’s be real here . . . who in their right minds believes that Fruit Roll-Up is healthy (or, at least, as healthy as “real fruit”)?

Kids all across California are breathing a sigh of relief.  California Superior Court Judge Richard Kramer recently dismissed a proposed class-action suit that sought to stop McDonald’s from providing free toys in its signature “Happy Meals.”   As we previously noted, the lawsuit was filed by Monet Parham, a mother of two, and the Center for Science in the Public Interest who accused McDonald’s of unfair and deceptive practices in using toys to promote Happy Meals. The suit alleged  that McDonald’s “exploits very young children” and “harms their health by advertising unhealthy Happy Meals with toys directly to them.”  It further alleged that “children 8 years old and younger do not have the cognitive skills and the developmental maturity to understand the persuasive intent of marketing and advertising.”

This suit would have to rank among the most frivolous we’ve seen in a while.  The Happy Meal is clearly not “unfair” or “deceptive” with respect to the purchaser.  Now, we certainly agree that a bunch of 6 year old kids lack the cognitive skills needed to understand the world of marketing.  You know what else they lack?  The means to purchase a Happy Meal on their own.  It’s not like kids are marching out the front door, walking down the street to the local McDonald’s franchise, slapping down a crisp $10 bill on the counter , and asking for a Happy Meal without an adult of any kind involved in the transaction.  No, the parents are the ones making the decisions to purchase the Happy Meals and allow their kids to eat them.  They should certainly be able to figure out what’s going on.

Ms. Parham was actually quoted as accusing McDonald’s of “getting into my kids’ heads without my permission and actually changing what my kids want to eat.”  She added, “This litany of requests [to eat at McDonald’s] is draining and very frustrating for children. I would like this practice to stop.”  Perhaps the prayer for relief in this case should have included training to assist Ms. Parham with saying “no” to her daughter.

We are glad to see the food police get shot down on this one.  Judge Kramer’s order did not give his reasoning, but you would think dismissing such a stupid lawsuit would be a no-brainer.  Then again, this is California we are talking about here.  Some parts of the state have already take it upon themselves to act as the parents and have attempted to ban the selling of toys in children’s meals that do not meet state nutritional guidelines.

According to media reports, recently, a federal judge denied toy manufacturer Hasbro, Inc.’s request to enjoin Asus from selling its Eee Pad Transformer Prime tablet until a pending lawsuit between the parties is resolved.  As you may know, Hasbro introduced Transformers toys into the marketplace back in 1984.  Since that time, the Transformers franchise has exploded, culminating in three blockbuster movies in the last five years.  So it’s safe to say that the Transformers and their fearless leader, Optimus Prime, are now well-ingrained in most American households.  For some reason, Hasbro has a problem with Asus’ choice for the name of its Android-powered tablet.

In December, Hasbro filed suit against Asus in the U.S. District Court for the Central District of California for trademark infringement, dilution, and unfair competition.  According to the complaint, Hasbro has lent its name and logo for a number of computer-related products including an educational laptop, USB storage drives, and laptop skins.  Asus began marketing a tablet referred to on its website as the “Transformer.”  After discovering the tablet, Hasbro sent Asus a cease and desist letter.  Asus’ response?  It began marketing a second-generation tablet known as the “Transformer Prime,” the exact name of a Transformers television series launched in 2010.  Allegedly, Asus has gone so far as to market the “Transformer Prime” by evoking the home planet of the Transformers, Cybertron.  At this time, it does not appear Asus has contacted Megan Fox in an attempt to make their tablet more marketable.  The case is captioned Autobots v. Decepticon Hasbro, Inc. v. Asus Computer International, Inc., No. CV11-10437PSG (C.D.Ca. Dec. 16, 2011).

Even though the suit is still pending, the judge’s denial of the preliminary injunction should be viewed as a significant victory for Asus.  From some of the reported language of the judge, he has clearly thought this suit through.  According to paidContent.org, the judge stated:

The Autobots are led by the virtuous Optimus Prime character, while the Decepticons follow the powerful Megatron. According to Hasbro, Optimus Prime is intended to epitomize honor, duty, leadership, and freedom.

In the third film, an Autobot character known as “Brains” disguised itself as a Lenovo ThinkPad Edge Plus laptop […] Hasbro developed the “Transformers Prime” animated television series, which began airing in approximately November 2010. The series focuses on the life and story of the Optimus Prime character. “Prime” was added to the “Transformers” mark in the program’s name to emphasize this focus. Thus far, the series has received several Emmy nominations and awards and has been aired in 170 countries.

But:

There is nothing gimmicky about the Eee Pad Transformer or the Eee Pad Transformer Prime, nor can it be said that there is any similarity in the use or function between Hasbro and Asus’s products.

Further, the Court noted that “transformer” was an accurate description of the Asus tablet because the tablet could “transform” into a semi-truck laptop.

As a matter of full disclosure, we here at Abnormal Use must admit that we are slightly biased in this case.  As children of the ’80s and huge fans of Megan Fox, the Transformers are near and dear to our hearts.  We can’t hear the word “transformer” without suspecting the noted object to be a robot in disguise.  Because of this, we must throw our support behind Team Hasbro even if we have no legal basis for doing so.

Sure, the judge is right.  No one really believes Asus’s tablet is going to turn into an Autobot or a Decepticon.  But who thinks the products actually authorized by Hasbro would?  Chevrolet marketed an authorized Transformer Camaro following the release of the first Transformers film, but no one expected their car to turn into Bumblebee.

We won’t go so far as to suggest that Hasbro should have full control over the word “transformer.”  In this case, however, Asus had some interest in cashing in on the Hasbro product’s success.  Yes, their product “transforms” so to speak, but we are kidding ourselves if we think the Transformers didn’t have some bearing on the name choice?  Asus named two successive products with infamous Transformers lingo and used a Cybertron marketing campaign.  Coincidence or clever word choice?

Once again, McDonald’s finds itself drug into the court system.  But this time, the lawsuit has nothing to do with piping hot coffee.  According to reports, Shelley Lynn has filed suit in a California federal court blaming the fast food chain and her ex-husband, Keith Handley, for turning her into a prostitute.  This is not the type of success story McDonald’s typically promotes on its employment applications.

Before we jump to conclusions, there does not appear to be any evidence McDonald’s required the former store clerk to add new meaning to the term “Happy Meal.”  Rather, Lynn claims McDonald’s negligently supervised and retained Handley, who owned a franchise 20 years ago.  According to the complaint, Handley hired Lynn in 1982 as a counter person.  The two started dating in 1985.  Thereafter, Lynn revealed her dream of becoming a Vegas showgirl.  To help her achieve that ambition, Handley reportedly bought Lynn a house in Vegas.  Handley then allegedly pressured Lynn to find a job in a Vegas brothel to help pay for the home.  Succumbing to pressure, Lynn claims she found a job in 1986 at the Chicken Ranch where she became a “top booker.”  She married Handley in 1988, but the two later divorced.  There are no indications from the reports as to how long Lynn claims she remained a prostitute.

We must question how McDonald’s became a player in this lawsuit.  First, we are aware of no evidence at this time that McDonald’s knew or should have known that Handley was a potential sex trafficker.  Lynn alleges in her complaint that McDonald’s did not have a proper procedure for reporting grievances.  However, the only grievance she mentions is an incident where she was allegedly fired for insubordination.  There were no indications that the insubordination arose out of her apparent hesitancy to become a prostitute.  In fact, it appears, at least from the complaint, that Handley allegedly pressured her to enter the business only after she moved to Vegas – when she was no longer a McDonald’s employee.

Second, Lynn will have difficulty showing that it was reasonably foreseeable McKinney would hire an employee, start dating her, move her to Vegas, and force her to become a prostitute.  There’s probably a law school examination question in these facts somewhere. Sure, McDonald’s probably doesn’t want to start a pattern of franchise owners engaging in intimate relationships with employees.  But a relationship by itself is not a grounds for liability in this case.  The issue is whether it was foreseeable McKinney would allegedly force Lynn into prostitution.  There are no allegations of this conduct with any other employees.  The conduct occurred after the period in which Lynn was employed by McDonald’s.  The conduct did not take place on McDonald’s property.  While we here at Abnormal Use are not judges, this doesn’t exactly sound like a case of negligent supervision/retention.

Someone has made a federal case out of Siri. Friend of the blog Kevin Underhill, author of the very funny Lowering the Bar legal humor blog, directs our attention to a new proposed class action in which “a New York man alleges that the virtual assistant Apple built into his iPhone 4S doesn’t work as advertised.” (See Kevin’s post “Lawsuit Claims Siri Doesn’t Know What She’s Talking About,” March 30, 2012).  The plaintiff filed his suit in federal court in California.

Wikipedia tells us that Siri is a “is an intelligent personal assistant and knowledge navigator which works as an application for Apple’s iOS.” Kevin quotes the complaint (available online here): “For instance, when Plaintiff asked Siri for directions to a certain place, or to locate a store, Siri either did not understand what Plaintiff was asking, or, after a very long wait time, responded with the wrong answer. . . . Upon information and belief, Plaintiff’s problems with Siri are not unique . . . .” In his post, Kevin scrutinizes the distinction between Plaintiff’s claim that he was “exposed” to Apple’s alleged marketing misrepresentations and the traditional legal requirement that one must have “relied” upon misrepresentations in order to recover in such a lawsuit.

Concludes Kevin: “You do have to wonder if Siri will suddenly become especially good at finding things in the Northern District of California (San Jose Division), especially things that federal judges might need. Don’t do it, Siri. It’ll just look bad.”

We got to thinking about the discovery in this case.  Perhaps there will be some pre-certification interrogatories and requests for production.  But wouldn’t it be interesting if Siri, the most famous example of artificial intelligence, was deposed in the litigation?  We couldn’t wait, so we noticed that depo and began.

Of course, there are the formalities which must be addressed:

Even artificial deponents must be sworn, right?

We have found that a little background questioning is always appropriate:

That may sound like an error, but a lot of witnesses ask for clarification on that question, not being familiar with the process.

Of course, sometimes it’s best to just cut to the chase and get straight to the allegations in the lawsuit.

“I’ve never really thought about it?” An interesting concession!

Let’s go in for the kill!

Ouch! Maybe this wasn’t such a good idea after all.

(Oh, and see Kevin’s follow-up post on this type of litigation here.).

Over the past year, we here at Abnormal Use have often written on hot coffee litigation lore.  We have provided you with a comprehensive FAQ file on the famous Stella Liebeck McDonald’s hot coffee case.  We have offered our critique of Susan Saladoff’s recent documentary on the subject.  We have even tried to keep you up-to-date on hot coffee cases around the country.  Why?  With each new case, we can present a new twist on the ridiculousness that is the “unreasonably dangerous” beverage.  Enter exhibits #1,234 and #1,235.

Last week, news broke of litigation in New York and California involving spilled coffee.  In California, a man ordered a Big Mac and two coffees at a McDonald’s drive-thru in Huntington Beach California.  He claimed that a McDonald’s employee dumped “scalding” coffee into his lap, causing him to suffer first- and second-degree burns.  In his lawsuit filed in the Orange County Superior Court, the man now alleges that McDonald’s served coffee at “extremely unsafe” temperatures and used defective cup lids.  He is seeking more than $25,000 in damages.  The report was silent as to any further details.

In New York, a 10-year old girl was awarded $600,000 by a special referee for past and future pain and suffering after she too was burned with hot coffee.  The girl was a guest at a Sweet 16 birthday party when she came into contact with the electrical cord of a 40-cup commercial coffee urn.  Her contact with the cord caused the urn to overturn, spilling coffee onto unspecified parts of her body.  As a result, she suffered second- and third-degree burns and was hospitalized for ten days.  Her mother sued Mastrantonio Catering, Inc. in a New York state court.  After Mastrantonio failed to file a timely answer, the plaintiff moved for a default judgment.  The motion was intially denied, but later reversed and granted by a New York appellate court.

What can we learn here?  Hot coffee litigation spans from coast-to-coast.  Some may argue that the continued expansion of hot coffee cases is evidence that the beverage is unreasonably dangerous.  Others, including the writers here at Abnormal Use, will continue to argue coffee is meant to be served hot and, despite the numerous lawsuits, makers and consumers of coffee share this belief.  McDonald’s, as well as anyone, is familiar with these lawsuits.  Catering companies certainly recognize the need to serve products suitable to their customers.  Despite the threat of litigation, people will continue to demand that their coffee be served hot.

In the California case, the McDonald’s employee allegedly spilled the coffee onto the plaintiff.  It wasn’t that the coffee itself was unreasonably dangerous and defective; rather, the allegation is that an employee negligently spilled hot coffee onto the customer.  In the New York case, the plaintiff was awarded $600,000 after Mastrantonio went into default.  The plaintiff’s motion for default judgment was granted, not because Mastrantonio failed to present a meritorious defense, but rather, because it failed to demonstrate a justifiable excuse for its default.  Once the issue of liability was decided, the special referee was left to determine the extent of the injuries themselves.  Liability was never at issue.  We have never disputed the extent of hot coffee burns in these cases.  Rather, we fail to understand how a maker of coffee can be held liable for preparing and serving a beverage in its expected form.

These cases have one common theme – coffee is hot and can cause burns when spilled.   Some may find these cases ripe for litigation while others feel they have no place in our courtrooms.  Its all a matter of perspective.  You obviously know our perspective.  If you want to read a well-written counter-proposal from a different perspective, check out this piece from Christopher Pascale at Suite 101.

It was a slow news day at the world headquarters of Abnormal Use. Oh sure, the global economy was in the process of melting down. Washington had just created a super-Congress. And Tiger Woods was making a triumphant, yet underwhelming, return to professional golf. Yawn. But as the bureau chief for Abnormal Use: Vice Squad, I was looking for some fresh, products-based inspiration that toed the thin gray line between entertainment and decency. It’s a dirty job down here in the trenches, but there’s nowhere else I’d rather be. So as I’m sitting at the Vice Squad desk, I happened across a pharmaceutical litigation discussion board. I’d thought I’d stop in, just to see what I could see. Happily, what I saw was my inspiration for this post . . . .

Let’s take a quick poll. Imagine you have a condition that requires you to take medication that may cause certain side-effects. How far down the following list of side-effects would you go before you declined the medication, knowing – obviously – that you can’t pick and choose which side-effects you want?

(1) May cause depression.
(2) May cause compulsory shopping.
(3) May cause compulsory eating.
(4) May cause pathological gambling.
(5) May cause hypersexuality or sexually risky behavior.

Based on this list, some folks may choose to stay away from the meds. Others may look at the list of side-effects and think, all things considered, it’s not so bad. Personally, I can name eight people off the top of my head that have more than half of these side-effects and don’t even take medication. I’ll bet you can too. (Feel free to post their names in the comments.)

The side-effects listed above are alleged to occur in connection with drugs that use “dopamine agonists.” To be honest, I don’t understand what a dopamine agonist is; I don’t know what they do; I certainly don’t know how they work; and frankly, I don’t care to know. If you want to know, the best I can do is give you a link to the Wikipedia page and wish you good luck.

Based on my otherwise extensive research, meds that include dopamine agonists are commonly used to treat Parkinson’s Disease and – of all things – Restless Leg Syndrome. If the critics of dopamine agonists are right, a person could go to the doctor to get treatment for his jimmy legs and walk out with an unhealthy sex addiction, an urge to eat at Golden Corral, and the need to let it all ride on 17 black. This, of course, has prompted litigation.

One plaintiff claims that as a result of dopamine agonists, he developed a shopping compulsion and an eating disorder, went to Vegas without telling his wife, began adulterous relationships, and forged checks from his wife’s account. Other plaintiffs have made similar allegations a la that they began using dopamine agonists, that they began committing adultery, and that they would go gambling for days without telling their spouses where they were. See, e.g., Sweet v. Pfizer, 232 F.R.D. 360 (C.D. Cal. 2005). Again, this sounds exactly like people we already know.

A class action involving dopamine agonists and compulsive behavior was filed in Minnesota in 2006. The first case to be tried out of that litigation resulted in a jury verdict of $8.2 million. Charbonneau v. Boehringer Ingelheim Pharma., Inc., C.A. No. 0:06–CV–1215 (D. Minn. 2006) (Note: Since there was no written order regarding the verdict, I’ve included just the case name and docket number, if you want to do more research.  Or you can just take my word for it.). The other cases in the class were settled soon thereafter. Other litigation has sprung up around the country, and in many jurisdictions, is still pending.

As someone who normally practices corporate defense litigation, I began wondering what kinds of affirmative defenses were raised in these cases. I had a feeling they could be entertaining. I was right. I’ve set my favorite affirmative defenses out below:

(5) Proximity to Gambling Outlets. This defense is obviously designed to attack causation: “The drugs didn’t make your no-good father / husband / son / boyfriend gamble; it was the fact he lived next to Caesar’s Palace.” It’s at least plausible.

(4) Personal Susceptibility. “Plaintiff has always been depressed / been overweight / had a gambling problem / been a womanizer.” This seems to tread awfully close to inadmissible propensity evidence, but for an answer to the complaint, that’s a non-issue.

(3) Utility. “The benefits of using dopamine agonists outweigh any negative side-effects that may occur.” This seems like a hard sell when the condition is something like jimmy legs and the consequence is something like bankruptcy, adult-onset diabetes, and a no-expenses paid trip to a sexual rehabilitation clinic where the best you can hope for is sharing a lunch table with David Duchovny.

(2) Bad Gambler. There are no bad gamblers; only bad luck. Motion to strike this defense granted.

(1) Act of God. Act of God? Are you serious?  Isn’t this the same God that condemns avarice, lust, AND gluttony? Is this for real? Yes, this is for real. If you don’t believe me, check out this document: 2006 WL 1829496 (Affirmative Defense No. 5). I would pay to see this defense in action. “And therefore, Ladies and Gentlemen of the Jury, it was not dopamine agonists that caused the plaintiff to have illicit, extramarital sex and to bet on horses; it was God!” Statistically, you’d have 90 percent of Americans ready to punish you for even suggesting that God was the proximate cause of the plaintiff’s injuries. The other 10% would be ready to commit you for suggesting that a figment of humanity’s imagination was responsible. It’s a losing proposition. But it does remind me of the seminal case, United States ex rel. Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D. Pa. 1971), which I’ve linked here for your reading pleasure.

I have two last observations. A quick bit of research on Westlaw yielded a number of decisions involving dopamine agonists, none of which came out of Nevada, which of course has legalized gambling and prostitution. How, if at all, this would affect the usefulness of “proximity to temptation” as an affirmative defense, who knows? But I thought it was an interesting bit of trivia.

Finally, in a number of the cases I looked at in preparing for this article, I couldn’t help but notice an interesting trend. Many plaintiffs alleged that as a consequence of using drugs with dopamine agonists, they developed hypersexual compulsions. In those same cases, there would usually be a spouse claiming loss of consortium. Go figure.

Though we hadn’t previously known “greenwashing” was even a word, much less something around which a class-action lawsuit could be centered, we now know that at least in California, and later Wisconsin, invocation of that term may entitle the accuser to an undisclosed sum of settlement money.  We previously reported here that a California resident had filed suit in federal court on behalf of purchasers of various household products manufactured by SC Johnson, alleging that the company was deceptively marketing its products as “green,” or environmentally friendly, with its use of the trademarked “Greenlist” labeling sticker on its products.  Koh v. S.C. Johnson & Son, Inc., No. C-09-00927 RMW (N.D. Cal.).  Another suit similarly was filed in Wisconsin.

SC Johnson recently issued a detailed press release in which its CEO announced that the company will stop using its Greenlist logo on Windex products and disclosed that the company has reached “an undisclosed settlement” agreement as to the two lawsuits filed against it.  In its candid statement, the company set forth its reasons for settlement:

“We decided to settle for two reasons. First, while we believed we had a strong legal case, in retrospect we could have been more transparent about what the logo signified,” said SC Johnson Chairman and CEO Fisk Johnson. “Second, and very importantly, Greenlist™ is such a fundamentally sound and excellent process we use to green our products, that we didn’t want consumers to be confused about it due to a logo on one product.”

The statement goes on to wisely say – in words that must be echoed by many slapped with product liability suits – that “[w]hile companies always try to ensure labels are clear and understandable, different interpretations can arise.”  In any event, it looks at though SC Johnson settled these suits quickly, and likely took from it a valuable lesson in marketing practices.

A San Diego mother of two young children recently filed a class-action suit in California federal court against Chuck E. Cheese’s, in which she alleges that the restaurant chain’s gaming machines are actually illegal gambling devices which could “foster addictive behavior in children by enticing them to play repeatedly for tickets.”  Although she seeks $5 million in damages, SignOnSanDiego.com reports that her attorney says the money is secondary to his client, who primarily wants to see the gaming machines removed from the restaurants.

The attorney for the plaintiff, Eric Benink, reportedly has said he does not think that “children should be exposed to casino-style gambling devices at an arcade.”  The complaint notes that with some exceptions, gambling is illegal in the state of California, although an exception is made for games that are based predominantly on skill.  Here, the complaint (boldly) alleges, the games are based largely on chance and “create the same highs and lows experienced by adults who gamble their paychecks or the mortgage payment.”  The games, of course, rely mostly on 25-cent tokens and, depending on the player’s score, dispense tickets that can be redeemed for prizes.  The higher the player’s score, the greater number of tickets dispensed; the more tickets, the better the prize.

Attorneys for Chuck E. Cheese’s are moving to dismiss the suit on two grounds.  First, they argue that the California Legislature never intended to make the operation of a children’s arcade game a criminal act.  Second and more interestingly, they contend that even if the game systems were illegal, then the plaintiff parent would be an admitted participant in illegal gambling and therefore is barred from seeking damages and restitution.

AOL News quotes one supporter of the lawsuit, whose daughter is “addicted” to the “Claw,” as saying: “We have left Chuck E. Cheese’s in her [sic] in tears begging for one more quarter.  I’ve seen her going through my purse for quarters.  It’s devastating.”  This latest lawsuit seems to serve as one more example of a lack of accountability of parents, who certainly have the option of keeping their children away from institutions that lure them into developing “gambling habits,” without the necessity of litigation.

In Pooshs v. Philip Morris USA, Inc., No. S172303 (Cal. May 5, 2011), the plaintiff sued a number of cigarette manufacturers in California state court after being diagnosed with lung cancer in 2003. Previously, the plaintiff had been diagnosed with chronic obstructive pulmonary disease (COPD) and periodontal disease in 1989 and 1991, respectively, but chose not to pursue a claim at those times. After the state case was removed to federal court, the judge dismissed the plaintiff’s claims on statute of limitations grounds. Undeterred, the plaintiff appealed to the Ninth Circuit Court of Appeals, which in turn guidance from the California Supreme Court as to the application of the statute of limitations when separate diseases arise at different times from the same alleged wrongdoing.

The defendant manufacturers argued that allowing the plaintiff to bring her claim under these circumstances would violate the standard that a statute of limitations begins to run when the plaintiff suffers “appreciable and actual harm, however uncertain in amount.” The plaintiff argued against the application of that well-settled rule and contended that each of her three ailments was the basis of a distinct primary right. The California Supreme Court ultimately agreed with the plaintiff, holding that “two physical injuries . . . can, in some circumstances, be considered ‘qualitatively different’ . . .” for statute of limitations purposes.