October 30th, 2009

Monster Energy Drink’s Monstery Conduct – Just In Time For Halloween

Monster Energy Drink’s lawyers seem intent on living up to their product’s monster name. Since I consider frivolous legal conduct to be within my wheelhouse, and this evening being Halloween eve, I thought I would look at the monstery conduct of Hansen Natural, the billion dollar company that makes this brew.

Could this company really have issues in this scary season, or am I just trying to piggy-back a play on names today? You be the judge:

In one act of brilliance, the legal wizards thought it would be a fine idea to send a take down notice to a beverage reviewing website. The site is actually called BevReview.com, making it pretty clear at the outset what their focus is. They reviewed the product. And they trashed it:

The color of the drink was dark yellowish… I guess you could call it amber, but who really knows. Think apple juice with a somewhat red tint. As for the taste, well… it was odd. Think citrus + medicine. Yum! There wasn’t a lot of carbonation (which reminded me somewhat of how Vault is being positioned as a hybrid soda/energy drink). The aftertaste was somewhat bitter, rather acidic. Not really pleasant, to tell you the truth. I actually couldn’t quite place what the heck the flavor actually was. It starts out smooth, and then the aftertaste kicks in and ruins it. (Of course, this might also have to do with the fact that sucralose is listed as an ingredient.)

Overall, the taste was weird and I don’t think I’d want to drink this again.

No problem, right? Except that their chief legal eagle, Darlene R. Seymour tried to scare the crap out of this little web site by threatening them with a lawyer letter. Perhaps she missed the class on that First Amendment thingie. The web site posted the letter, apparently telling Hansen to take the proverbial long walk on the short pier.

And in another attempt at making its name synonymous with evil, the billion dollar company sent a cease and desist letter to the tiny Vermont Rock Art Brewery for trademark infringement for making Vermonster Beer. Hansen thought there might be some confusion in the marketplace, despite the fact that they don’t even make beer.

But that didn’t work out so well either, as the brewer fought back with a viral marketing campaign including a YouTube video hit. The owner went with the Web Defense under the assumption that the legal defense, while clearly winnable, would bankrupt his tiny brewery. So instead of waiting for the economic end game to hit him, he went after the giant.

In one of the great David v. Goliath battles of the web, which ended with a fast win for the brewery, the brewer turned the tables on the mega-monster when Hansen distributors started to boycott Monster Energy. Instead of punishing the brewer with legal fees, Hansen was now being punished with its products being pulled from shelves.

And others chirped in that, by the way, their stuff tastes like camel piss. Welcome to the web, Hansen.

So instead of pounding the brewer into salt, it was Hansen that got pounded. Just check some of these links out:

  • Corporate monster picks on ‘Vermonster’:

    Where are those lawsuit reform groups when you really need them? You know, such outfits as Citizens Against Lawsuit Abuse that are always squawking about “frivolous” lawsuits and demanding new laws to prevent people from suing big corporations.

  • Some Kind of Monster: Vermonster vs. Monster:

    All of this got me thinking. I seem to remember a lot of monsters throughout history. These monsters have no problem with Rock Art’s Vermonster or Monster energy drink co-opting their name and hopefully when they call for a jury of their peers, some of them will sit on that jury.

  • A Corporate Monster vs. “the Vermonster”:

    Chance are that you’ve seen ads, letters-to-the-editor, op-ed pieces and other materials put out by outfits with such civic-sounding names on Citizens Against Lawsuit Abuse. By whatever name, the message is always the same, usually delivered in a sort of urgent, basso profundo voice saying something like this: “Bloodsucking lawyers are constantly filing frivolous lawsuits against beleaguered corporations.

  • MONSTER Mash: Analyzing MONSTER ENERGY v. THE VERMONSTER:

    I would predict an outcome in favor of Rock Art. The fact is, Hansen is far from the first to use or register a MONSTER-formative mark for beverages.

  • Why Monster’s Trademark Claims Against Vermonster Stink

    Hansen’s argument, however, is weak for several reasons. First, why would anyone believe that a product named “VERmonster” — a mark alluding to the state of Vermont — is affiliated with Monster energy drinks? Second, the term “monster” isn’t exactly distinct to Hansen’s energy drink. In fact, we correlate the term “monster” with so many things (e.g., job-searching websites, creatures in Loch Ness, etc.). Third, while some energy drinks have moved into the alcoholic beverage market, none of them have yet entered the beer market. For these reasons, it’s doubtful that Hansen has a viable argument that Rock Art’s “Vermonster” causes a “likelihood of confusion.”

And in a note to the shining legal talents that represent Hansen, you should note that my mockery of your product in the image shown here also falls within the ambit of First Amendment protection. (Both ass sweat and camel piss are, as far as I know, natural products, which you seem to tout in your drinks, so I figured you’d appreciate that. You might also like the trailer for Booty Sweat Energy Drink, but that would require an actual sense of humor.)

Perhaps you think my comments may lead to some confusion in the marketplace as to your actual ingredients. But that’s unlikely, since I don’t presume that readers of this blog are total morons.

I know that I shouldn’t have to explain that to you, and that is should be readily apparent to all lawyers (and in fact, everyone that made it out of high school), but you guys do seem to need a bit of help in that department.

 

October 28th, 2009

Blawg Review – Coming Attractions (I’m next week’s host)


Well, I’m hosting Blawg Review again, this coming Monday. So the floor is now open for suggestions on what to include in this weekly round-up of the legal blogosphere that travels from one blog to another on a week-to-week basis.

As with my 2007 marathon-themed Blawg Review (a long-running hit) and my 2008 Thanksgiving Blawg Review (which I loved writing but which some thought was a turkey), I will not be focusing on personal injury law. Because this is, after all, a round-up of posts from around the legal spectrum, not just my itty, bitty niche.

I’m still scratching my head for how to handle this particular review and what theme to use, so feel free to give me ideas. But you should note that the prior sentence was an outright lie and that I’ve already decided on a theme. It’s my blog, and I’m allowed to do that kind of thing. But send me the tip anyway in case I’m afflicted with the sudden onset of Alzheimers.

To be considered for inclusion you can send an email to Post@BlawgReview.com or go to the Blawg Review site (and read the guidelines) and use the template. Or you can hope that I find your blog on my own as I stumble my way across the interwebs.

Blog post submissions (feel free to submit from any blog, including your own) should be:

1. Interesting to read; and
2. Free of self-promotion and self-aggrandizement. If your post has a suggestion to call you (If you too have driven a car into a pool…) then save yourself the cost of the email as well as the potential humiliation.

Unfortunately, I’m following on the heels of some great reads:

Blawg Review #235 at Counsel to Counsel, focused on posts that dealt with how the practice of law has changed with the Great Recession (and a subject I hit back in August with 10 Tips for Laid Off Lawyers);

Blawg Review #234 at Settle it Now, focusing on a “200 year present” and conflict resolution that is so chock full of links and information it scares the hell out of me as I think about my own;

Blawg Review #233 at Popehat with its tribute to Joshua Norton I, Emperor of the United States of America and Protector of Mexico. What? You’ve never heard of him? Neither had I, but I now consider myself at expert as the review wove in the lessons of our revered 19th century emperor and the modern lessons he brought;

Blawg Review #232 at Solo Practice University, with its tribute to — what else? — teaching;

Blawg Review #231 at Legally Unbound with its focus on Sin City. And lawyers have plenty of issues when it comes to sin;

Blawg Review #230 at Unsilent Partners, which comes at us from two long time blogs (Charon QC and Infamy or Praise) on two continents with its takes on war and peace; and

Blawg Review #229 at Blawgletter with its homage to John Harvard. Yes, that Harvard.

I am so dead. So very, very dead.

 

October 26th, 2009

Medical Malpractice or General Negligence (Part 2)


When I last touched the often imperceptible dividing line between medical malpractice and general negligence, it was because the difference in the statute of limitations was crucial to survival of the case. In that matter, there was trauma to the leg that resulted in death as the patent’s leg slammed into a bed rail. With a statute of limitations of three years for general negligence, but two and one-half years for malpractice, it’s easy to see how this can create litigation. (See: Medical Malpractice (So You Think You Know What It Is?)) A divided First Department decision ensued with Justice Catterson doing a lengthy analysis of the difference in Friedman v. New York Hospital-Cornell Medical Center.

The issue arose again last week, now in the Second Department, in Spiegel v. Goldfarb. This time the issue was the legal fee. You see, in New York, the legal fees are substantially lower in malpractice cases than in general liability, as a result of tort “reform” measures in the ’80s. These “reforms” resulted in de facto immunity for many medical professionals, and made it difficult for many victims to found counsel. In addition to a shorter limitations period, the legal fees were cut. Rather than a 1/3 fee, the malpractice legal fee (discussed further in one of my first posts on this blog) is:

30% of the first $250,000 of the sum recovered;
25% of the next $250,000 of the sum recovered;
20% of the next $500,000 of the sum recovered;
15% of the next $250,000 of the sum recovered;
10% of any amount over 1,250,000 of the sum recovered.

In Spiegel v. Goldfarb, the underlying case was a about a failure to diagnose endocarditis, an infection of the heart valves. One of those that settled was a lab. These are the magic words that make up the standard, but they don’t exactly give bright line definitions, which leads inevitably to litigation:

In distinguishing whether conduct may be deemed malpractice or negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached. A negligent act or omission by a health care provider that “constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes [medical] malpractice.” More specifically, an alleged negligent act constitutes medical malpractice when it can be characterized as a “crucial element of diagnosis and treatment” and “an integral part of the process of rendering medical treatment to [the plaintiff].”

The fault for this, of course, is not with the appellate division. Because the difference is often impossible to define. Rather, the solution is doing away with this artificial difference.

Malpractice cases are both more expensive and more difficult to handle. There is no compelling reason that the statute of limitations should be shorter or legal fees lower. If anything, the statute should be longer and the fees should be greater. And that is because many acts of malpractice are not even known at the time they occur (unlike an auto accident) and due to the complexity of the litigation.

There are some occasions, of course, when the reduced legal fee benefits the litigants. Those cases arise when they can actually find a lawyer to take the matter. (Though the 10% legal fee at the top end is often used by insurers in an attempt to drive a wedge between the plaintiffs and their counsel, by creating an incentive to take a smaller settlement because the risk-reward of going forward has become so unfavorable.) For many potential litigants, there is simply no lawyer to be found.

How do I know there is no lawyer to be found? Because I get these types of calls all the time. After I’ve declined the case because of the economics involved, many of these callers tell me that they’ve heard this before from several others that they’ve tried.

Frankly, it’s time New York stopped crapping on the victims of malpractice — and that is what those “reforms” are” — and restore fairness to the law.

 

October 23rd, 2009

Move Over Pants Pearson, Here Comes the Hanes Underwear Lawsuit


Another victory for the tort “reform” movement. Albert Freed wanted to sue Hanes because of a claim that his underwear gaped open and hurt his penis (and he didn’t do anything about it). It’s notable that he represented himself, since apparently no lawyer would have been moronic enough to touch it. (Not the plaintiff–>>)

This spectacularly stupid lawsuit (coming to us by way of Above the Law, where there will no doubt be abundant commentary that is NSFW) had its origins in a two week vacation to Hawaii, and new briefs that the plaintiff’s wife bought for him. He testified that they gaped open at the fly, that this was apparent to him on the second day of the trip, that he got an abrasion, that he did nothing about it for two week, that he didn’t even look at himself, and that some topical ointment cleared the problem up in a day or two when he got home. He brought suit for defectively manufactured briefs.

Previously I’d written about Roy “Pants” Pearson and his $54 million case against a dry cleaner for his lost trousers. OK, pretty much everyone in the world had written about that one. But Freed can now take his place beside Pearson in the pantheon of public humiliation over ill-considered lawsuits. Pearson probably still has the lead here based on the fact that he is an attorney, but still, Freed has given him a run for his money.

Why did Freed do this? I’m going to take a shot at this here: He won the trip as a reward for selling $20,000 of diet products. Yet he weighed 280-290 pounds. Perhaps he thought he could sell anything to anyone.

Why do tort “reformers” like these kinds of nutty suits? Because the corporate-run movement is based on anecdotes and not empirical evidence. If the U.S. Chamber of Commerce trots out a few losers like this, then they think they can make headway into closing the courthouse doors to legitimate suits. It is rare suits like this that make news, not the legitimate suits that are “ordinary” by comparison and that make up the bulk of the cases in the courthouse.

On a final note, you really have to read footnote 3 to the opinion, about the lawyer sitting in the gallery “minding his own business” who was suddenly called as an expert witness, since he was the only male available that was watching the proceedings that was not involved.This was a “prominent” local defense lawyer who was “conscripted” into the proceedings to talk about “penile discomfort.” The court declined to name him, but acknowledged the lawyer was a “good sport” about it.
Opinion via ATL:/Freed-v-Hanes.pdf

Links to this post:

Handling a Products Liability Case on the Fly
I must confess I have never spent a lot of time thinking about men’s underwear. Thus, it never crossed my mind that a products liability case could arise from men’s underwear of any type. Women’s underwear are different. …
posted by jday@dayblair.com (John Day) @ October 26, 2009 5:46 AM

 

October 22nd, 2009

Target Lawsuit Over Counterfeiting Claim Settles After $3.1M Verdict


Last year I wrote about Rita Cantrell, who was falsely accused by Target of using a counterfeit $100 bill. The bill was authentic, but lacking some of the modern anti-counterfeiting devices simply because it was an older series.

The resulting suit led to a $100,00 compensatory damage verdict with $3,000,000 in punitive damages for the defamation. Some tort “reformers” smelled an opportunity and a small kerfuffle was set off in the legal blogosphere (see: Target Hit for $3M in Defamation Punitives (And Tort “Reformer” Sees Opportunity).

The suit, Cantrell v. Target, has now settled. While this is good for the parties involved, it’s not so good for the opinionators who were wondering what the Court of Appeals would do with the verdict and the 1:30 compensatory:punitive damage ratio. A Magistrate Judge had previously refused to toss out or modify the damage award, leading to the appeal. (And the Supreme Court had let stand a 1:100 ratio earlier this year.)

According to this paper, the 4th U.S. Circuit Court of Appeals dismissed the appeal “upon such terms as have been agreed to by the parties.” The parties didn’t disclose the terms.

(h/t Stegmaier)

The case was discussed previously here:

Links to this post:

October 23 roundup
Is it against the law to report police movements on Twitter? [Valetk, Law.com; Volokh]; “Attorney Charged With Posting Ad Seeking ‘Secretary With Benefits’” [Legal Profession Blog via Bruce Carton, Legal Blog Watch]; Maker of Monster …
posted by Walter Olson @ October 23, 2009 8:43 AM