DeJoria v. Maghreb Petroleum Exploration

John Paul DeJoria, the tycoon who created Paul Mitchell hair care products, decided to venture into oil exploration. With the blessing of the Moroccan government, he set about doing this, but the reserves never materialized. DeJoria abandoned the project and is now being sued for $100 million by Maghreb Petroleum Exploration, the new manager. Originally filed in Moroccan courts, the case has been brought to Texas, as Maghreb is seeking enforcement of the judgment.

Reversals in the Texas District and Circuit Courts

The Texas district court refused to recognize the decision based on the lack of due process in Moroccan courts. However, the Fifth Circuit reversed the decision, stating that under the Texas UFMJRA, which recognizes the decisions of foreign courts, a lack of due process wasn’t enough to refuse recognition.

Subsequently, DeJoria’s lawyers went before the Texas legislature to amend the UFMJRA. Texas adopted the UFCMJRA, which allows failures of due process to result in non-recognition. Ironically, the new statute had a look-back clause, allowing it to be applied retroactively to pending cases.

On these dubious grounds, DeJoria was able to restate his case. The Texas district court found that DeJoria did not receive due process, stating the defendant couldn’t attend the Moroccan proceedings or obtain representation there. On appeal, the Fifth Circuit stated it would only look at the case again for errors of fact — despite the that there was no presentation of evidence thus far in the Texas portion of the conflict. In other words, the nonrecognition was based solely on affidavits.

What Makes This Case an Anomaly?

Texas law allowed for this finding, despite the fact that a claim must be pleaded and proven. To avoid a trial, DeJoria could have filed a Civil Procedure and brought a motion for summary judgment. This would have prevented a finding of fact.

The Fifth Circuit affirmed that DeJoria had a valid defense to recognition. His inability to present his case in Moroccan court denied his right to due process. Therefore, the Texas courts refused to recognize the decision of the Moroccan courts.

Plant-Based Milks vs. The Dairy Industry

The battle between the dairy industry and plant-based milk products to limit the legal use of the term “milk”, while perhaps not earth-shaking, is an interesting example of how regulation can be used to clarify and limit the use of terms. And when you think about the business of the law, in reality, that’s what much of it is about. You can’t have regulation and law without a strict definition of many concepts. Food standards of identity (SOI) are requirements by the FDA that do just that.

Legal Definitions

For an example close to that of the dairy vs. other kinds of milk battle, think of the use of the term “organic.” Often, the legitimate use of that term boosts a product’s value by a substantial amount. But what exactly determines whether a product is organic? A governing body must set the standards to clearly outline what “organic” is considered to be. The USDA does this for many products.

Counterfeit Milk?

The term “milk” is not problematic in the same way. It’s not as if most consumers don’t realize almond or soy milk are not from cows. They certainly do. We know, for example, that almond milk has nothing to do with bovine lactations, but features a certain type of nut. The fight seems to boil down to a certain type of proprietary value that the dairy industry feels is connected to the term “milk.” And, doubtless, the products produced by those in the plant-based segment of the milk market have converted an increasing amount of dairy-product customers.

Smelling the Roses

Does a rose by any other name really smell as sweet? In this case, the dairy industry seems to say it does not. When governing bodies like the FDA make a determination to limit a term, like “organic”, or “meat” there are usually counterfeit products claiming to be something they are not. But the many non-dairy products that use the term “milk” simply seem to be using the term in a more general, but still accepted, way, similar to the way the term “juice” is used. It’s difficult to say how much economic value use of the term “milk” has. It seems slightly ridiculous to enforce limited usage at this late stage. Still, the final determination on who exactly can utilize the term “milk” hasn’t been made yet, although an upcoming FDA public meeting may do just that.

ADA Compliance Online

The American Disabilities Act (ADA), a civil rights law protecting the disabled was put in force in 1990. The ADA prohibits discrimination against individuals with disabilities. Discrimination is not allowed in all areas of public life, including jobs, schools, transportation, and all public and private places enjoyed by the public by providing the disabled “reasonable accommodations” irrespectively of disability. For example, in the area of employment, reasonable accommodations are any modifications that help a covered person under the ADA to satisfy the essential job functions.

The essential purpose of the ADA is to allow people who are physically disabled to enter public buildings (via ramps, wide doors, large bathroom stalls, etc.) and to provide auditory and visual aids for those with visual and auditory impairments, as well as modified educational programs for the learning disabled. Internet websites were not contemplated by the ADA, and in 1990 there were no ADA accessibility rules for websites. Websites offer content and have not been considered to require modifications to comply with the ADA.

However, there are both linguistic and nonlinguistic elements of content that add to an understanding of such through the development of the Web Content Accessibility Guidelines (WCAG). WCAG is prepared by a worldwide group of individuals and organizations. Standard guidelines are developed to make content accessible and meet the needs of website development by individuals, organizations, and governments internationally to place websites within the sphere of disability regulations. The focus on ADA compliance is on the elements of content such as:

a) perceivable issues,

b) operable issues involve the ability to navigate the website,

c) understandable issues to comprehend website content and

d) robust issues that test the strength and adaptability of the website to meet the linguistic needs of the disabled.

ADA is under the control of the Department of Justice (DOJ). Modifications of the WCAG guidelines are continually being upgraded. For example, the final rule of the WCAG 2.0 guideline was adopted in January 2017 and again in 2019. Initially, the WCAG guidelines were modified to update Section 508 of the Rehabilitation Act of 1973. To be ADA compliant, you must adopt the final rules prepared by the WCAG and the DOJ enforces website accessibility. The fail-safe method to be compliant is to find sources that tutor one in how to analyze the complexities of website compliance or retain professionals that apply the technical ADA rules of website compliance.

American Vape Epidemic: The need for federal intervention

As of September 17th, the Center For Disease Control (CDC) announced the number of vaping related injuries has reached 530 cases across 38 states and confirmed that a seventh person has died from their illness. Health officials are racing to determine the exact cause of the injuries but have been unable to pinpoint a common factor among test samples. The current official recommendation is to avoid all vaping products.

The recent epidemic of sudden and severe injuries has accentuated the need for standardized federal regulations for nicotine and cannabis vaping industries. The Tobacco Control Act (2016) gives the U.S. Food and Drug Administration (FDA) regulatory authority over electronic nicotine devices. The Center for Tobacco Products (CTP) monitors e-cigarette manufacturing, including the ingredients, production process, and marketing campaigns. Unfortunately, similar legislation does not exist for products containing THC, the primary ingredient in cannabis responsible for its medicinal and mind-altering properties.

Currently, 33 states permit medical marijuana use and 11 have legalized recreational use. A lack of federal oversight allows each state to define its own set of laws and regulations, making it impossible to create a consistent standard by which to compare and evaluate products. While many states have testing and reporting policies, there is no interstate collaboration, creating a confusing environment for suppliers and consumers.

Outside of registered dispensaries, illegal street products represent a more serious risk to the public. A complete absence of regulation makes it cheap and easy for suppliers to distribute substances that may contain harmful ingredients or toxins. Legal dispensary owners are pointing the finger at illegal street products as the root of the recent vaping illnesses.

Several countries have set standards for the vaping industry. France and the U.K. have led the charge in creating uniform policies to govern vape products. The International Organization for Standardization (ISO), a Swiss-based committee, is working with over 17 countries to develop standards for e-liquids and vaping equipment. The group promotes safety and quality requirements, standardized test methods, transparent ingredient reporting, and accurate labeling.

It clear that the Federal Government must act swiftly to protect the American public from the harmful effects of vaping. Marijuana advocates and medical professionals are calling for regulation that would eliminate black-market products and enforce rigid production, safety, and testing methods for legal distributors.

Data in Law

Data may be the biggest business there is these days. The speed of modern computers permits them to mine voluminous data sources to find correlations simply unfindable and unthinkable not many years back. Perhaps unsurprisingly, the data itself says that data is vital to decision making. According to that data, data-driven organizations are many times more likely to keep customers and be profitable. That shouldn’t shock anyone. Quantification turns the vagaries of hunch and intuition into measurable facts. The advent of the computer simply permitted the beginning of the full realization of the potential of data use. Why, then, has the legal profession, which represents some of the largest, most profitable, data-utilizing organizations in the world, lagged so far behind in becoming data-driven as well?

Tradition and Transformation

Simple tradition is one answer often given. The law is steeped in it. The traditional law firm structure has been blamed. Mark Cohen, in Forbes, called the transition occurring now to more customer-centered structures, one from guild to marketplace. This transition is being driven by a number of factors. Areas of expertise long monopolized by attorneys are now being digitized and utilized directly by consumers. Lower-level legal functions are increasingly being handled by a paralegal or other legal functionaries. There is a definite movement among larger corporations to utilize in-house legal departments and coordinate corporate data functions with legal matters. As Cohen puts it, the legal delivery system pyramid has been turned on its head. All of these changes are eroding the traditional law firm’s old familiar structures and ways of doing business.

Data into Information

Causation is complex and almost never completely transparent. Regardless, increased use of data analytics will doubtlessly continue to transform the legal profession, as the medical profession has been changed, with more specialization and democratization of knowledge. That transformation is visible and already underway. Without context, data means little. To be properly utilized, data has to be set into a framework and turned into information. That information, if valid, can find hidden correlations of value. It can help predict the desires and needs of consumers in the future, and point to ways to meet them. The most innovative and knowledgeable in the legal industry, in general, and the most effective utilizers of data, in particular, will have, by far, the best chances to survive and prosper.

$58M Judgment for NYC Chemistry Class Injuries

A jury in New York awarded $58 million to a former student injured by a dangerous chemistry class experiment in January 2014.

The New York City Dept. of Education and the Board of Education are defendants ordered to pay the sum. The city education department and board intend to appeal the judgment amount to levels more commonly awarded in similar cases.

Alonzo Yanes was a sophomore at New York’s Beacon High School when he attempted an experiment called the “rainbow demonstration.” The experiment involves combusting various chemicals and salt, which let off multi-colored smoke.

Instead of creating smoke, the experiment caused an explosion and fire. The mishap caused chemical burns to Yanes’ upper torso, neck and face. Yanes still receives autografts for his injuries and said he continues to endure pain and suffering. Yanes argued the city education department and board did not alert the school and its teachers about potential dangers involving the rainbow experiment. That caused Yanes to unknowingly face a high-risk of suffering injury, and he said the resulting explosion ensured his injuries would be severe and produce enduring pain.

The U.S. Chemical Safety and Hazard Investigation Board in December 2013 warned about dangers involving the rainbow demonstration. At the time, the experiment was relatively common in high school chemistry classes. It uses a flammable solvent to create combustion and colorful smoke. The U.S. Chemical Safety and Hazard Investigation Board, though, warned the demonstration was “high-risk” when carried out on an open bench.

Yanes said his high school chemistry teacher completely controlled the demonstration and was responsible for his and other students’ safety. He now is disfigured and has permanent scarring.

Shortly after Yanes’ mishap, the American Chemical Society’s Committee on Chemical safety recommended schools stop using the experiment. New York City schools no longer use the demonstration.

A jury awarded Yanes $29 million for pain and suffering. It also awarded $29 million to pay for future rehabilitation. That money will pay for plastic surgery, but Yanes said he suffered life-changing injuries and endures ongoing pain.

The New York City Dept. of Education and the Board of Education intend to seek a reduction in damage amounts. They say they want the amount reduced to those paid in judgments for similar accidents.

The Case Against Roundup – Now with Lighter Consequences

Bayer AG, the company behind the popular weed control product Roundup, has made top headlines throughout the news this week with their poor management practices and shocking number of personal injury lawsuits.

As of 2019, Bayer was found to knowingly include the controversial active ingredient glyphosate, an agricultural chemical that some health officials find harbor known carcinogenic properties. The Roundup product has undergone continuous production since the 1970s, holding its place as one of the most popular weed control products on the market. A study done by the International Agency for Research on Cancer in 2015 found that the active chemical glyphosate was indeed a cancerous product, but this didn’t stop the new owners of the Monsanto Corporation from marketing their product in stores across the country. After thousands of personal injury cases surfaced citing Roundup as the cause for their disease, Bayer faced nearly $75 million in punitive damages.

This all changed on June 29 when San Franciscan District Judge Vince Chhabria ruled that the $75 million verdict was not legal due to previous case precedents. Punitive damages, which chastise willful, malicious, oppressive, fraudulent, or reckless behavior, must not be more than four times larger than listed compensatory damages. Reduced by Judge Chhabria to $20 million, this significant update has cut Bayer’s award amount by more than 69%.

The Judge still had scathing words for the agricultural giant, writing in a statement that trial evidence had proven Bayer’s marketing of Roundup “was indeed reprehensible.” To him, the agricultural control company seemed to almost be “focused on attacking or undermining the people who raised concerns, to the exclusion of being an objective arbiter of Roundup’s safety.” Bayer AG declined to comment on the accusation, instead welcoming the lowered award amount and assuring stakeholders that all would be well.

Even after the barrage of allegations and legal ramifications, the German-owned company has continuously assured the public that their popular weed killer is safe for use. Losing three trials in California based courts as of last year, the company is more desperate than ever to restore their image and smooth over dropping stock shares. Only time will tell how much damage both Bayer and its victims will suffer.

Woman Charged $185,000 to Fight Her Sexual Harassment Case

Karen Ward was sexual harassed by her boss and then later faced retaliation when she spoke up. Ward, a former Ernst & Young employee, was then later fired. Ward is now fighting back but the case is costing her a surprising amount of money in order to bring the case to court.

So far she has paid $185,000 to have judges hear the discrimination and sexual harassment complaint against her former employer. This firm makes billions of dollars in revenue yearly, according to the complaint Ward filed in federal court. In the court filing, Ward asks about how many victims can afford to pay this much money in order to have their claims heard.

The costs have added up because her case is in arbitration, which means it’s in a private court and not a part of the public justice system. These cases are heard by retired lawyers or judges who will bill the parties as much as $1,000 an hour to hear the cases. A panel of three different arbitrators is hearing Ward’s specific case. The reason she has to go through with arbitration is because her employment contract contained a forced arbitration clause. Many companies include this to prevent allegations from any former employees from going public. If she were able to file the harassment claims publicly in the state of New York, where the company is based, the costs would only be about $450.

Ward is arguing that the high costs of arbitration mean the employment agreement is unenforceable and she wants the right to take the suit to open court. The fight against the high fees isn’t just about her. She is able to pay these fees with her savings but believes that discrimination and retaliation are wrong and shouldn’t be ignored. Lawyers say the company knows that these high fees can cause other women to never bring these claims. If Ward is able to get her case before a jury, she could win millions.

This case helps to shine a light on arbitration, which is a process that will usually advantage larger employers over the workers. Companies have a lot of advantages in arbitration since it discourages employees from filing a case and it’s usually private. If an employee does win, the payouts are usually much lower than in a public case.

Amazon Ignored Hoverboard Fires

A Nashville family is suing Amazon.com. Inc after they say a hoverboard caught on fire and destroyed their $1 million home – and Amazon knew about the fire hazard.

Stacey Barchenger at Knox News first reported on the story.

Steve Anderson, from the law firm Anderson & Reynolds, said that the Fox family “…contends that Amazon and its various subsidiaries had information about the danger of this product well in advance [of the fire], and on top of that, they had notice, they should have known the product was being misrepresented on their website.”

The Fox family is a family of six. The father, Brian Fox, had to rescue two of his children from the burning home, according to fire officials quoted in the lawsuit.

Almost every single possession of the family was destroyed in a matter of minutes due to the blaze.

The family is alleging that they were sold a counterfeit hoverboard from China, not the hoverboards with Samsung lithium-ion batteries they were under the impression they were purchasing from Amazon.

Hoverboards are similar to skateboards, but are powered by a battery pack. The listing claimed the hoverboards had Samsung batteries, but were actually powered by counterfeit batteries from China.

In Tennessee, product liability laws state that the seller is responsible for damages if the manufacturer of the product cannot be found. The hoverboard in question was listed online to an organization that is registered to a New York City apartment. No one at the residence has responded to lawyers’ requests.

The 6th Circuit U.S. Court of Appeals ruled that Amazon knew the hoverboards were exploding. Amazon quietly stopped the sale of the hoverboards after an investigation showed proof of the potential for the boards to catch on fire.

The online shopping behemoth did not warn 250,000 buyers of the products that the hoverboards posed a fire hazard – instead, the shopping retailer sent out a mass email that vaguely reported that there were “news reports of safety issues” with products containing a similar lithium-ion battery.

The lawsuit from the Fox family is seeking $30 million in damages, as well as additional penalties against Amazon. The family is looking to recoup the loss of their home, personal possessions, and to be compensated for the emotional distress and physical injuries they have sustained.

photo courtesy of Nashville Fire Dept.

Johnson & Johnson Optimistic Despite Facing Lawsuits

Johnson & Johnson, one of the most-trusted names in baby care, is facing thousands of lawsuits alleging that its talc-based baby powder of the same name caused ovarian cancer or mesothelioma. However, the company’s problems do not end there, as a separate lawsuit states that Johnson & Johnson helped fuel the State of Oklahoma’s opioid crisis.

More than 14,000 lawsuits have been filed regarding the company’s talc-based baby powder of the same name. Subpoenas from the Justice Department and the Securities and Exchange Commission have also been filed. However, Johnson & Johnson Chief Financial Officer Joseph Wolk remains optimistic. On a phone call discussing the company’s earnings he told analysts that the talc-based powder is “safe” and the company acted “responsibly.”

“We’ll continue to pursue the defense of the company’s actions, as well as the product going forward,” he said.

Beginning July 22, a federal judge will evaluate expert witnesses from both Johnson & Johnson and the plaintiffs. US District Judge Freda Wolfson in Trenton, New Jersey will review studies and other evidence legal teams plan on submitting to decide what juries will hear. This process will help to ensure that expert witness testimonies are based on sound science.

Johnson & Johnson says it is challenging plaintiffs’ witnesses scientific principles, arguing that it cannot be proven that its baby powder causes cancer. It wants all 22 witnesses dismissed, along with all cases. The federal judge review could provide Johnson & Johnson with a possible way out of more than three-quarters of all outstanding baby powder suits, should she throw out expert witnesses or studies provided by the plaintiffs.

Previous concluded trials have had mixed results for Johnson & Johnson. Last year, a Missouri jury ordered Johnson & Johnson to pay $4.6 billion to 22 women who alleged the company’s talc-based baby powders contained asbestos and caused them to develop ovarian cancer.

In a separate lawsuit, the State of Oklahoma is suing Johnson & Johnson for allegedly fueling the state’s opioid crisis. Oklahoma is accusing Johnson & Johnson of acting as the “kingpin” because it sold painkillers and grew and imported raw materials that other opioid manufacturers used.

In response to the lawsuit, Wolk said, “We agree that there’s an epidemic with opiate addiction. However, it’s going to be multiple factorial in terms of the solution set and it’s going to require many sophisticated parties to make sure that we’ve got the right remedies in place for people who suffer from that.”