Patients, of course, have long wondered whether these “generics” are truly the equivalent of the brand name drugs they were designed to compete against. They have been told by their physicians, pharmacists and insurers there is no difference whatsoever. Unfortunately, the last few years have proved there is a massive difference between generics and brand name drugs: Liability of the manufacturer for damages caused by dangerous side effects!

Because the Hatch Waxman Act prevents the manufacturer of a generic drug from distinguishing itself in any way from the original, the United States Supreme Court has ruled that the maker of a generic drug may not change the warning label from the FDA approved original label even if the generic manufacturer knew or should have known of dangerous side effects that were not included in the original warning label. Unfortunately, this means that someone taking a generic drug will actually have less rights than one taking the equivalent brand name drug when it comes to a court of law. This immunity from the duty to warn of known dangers is currently being re-examined by our legislature, and WBM will be on the front line of this fight.

The following tips are for attorneys who try cases. Over the past 25 years, and particularly in the last few years, I have spent many, many weeks in a variety of complex commercial litigation jury trials, which have resulted in millions of dollars in verdicts. As the years have gone by, I have noticed, or developed, trial techniques that consistently work well. I have also seen techniques that go over with the jury like the proverbial lead balloon, and observed some astonishingly bad things that lawyers do during trial. So the following advice includes not only the practices that work well during trial, but also the practices that don’t work well during trial. Close adherence to these items will help make you a better trial lawyer and result in better verdicts for your clients.

1. Watch the jury to see how you are doing   

Some of you may say "duh" - of course you do that. However, I’ve noticed that once trial begins and the bullets start to fly, most attorneys don't observe their jury closely enough. Pay attention to them: watch how they are reacting to your witnesses and to the witnesses of the defense. This should be common sense, but we can get so caught up in a particular witness that we forget to judge the impact on the jury. I often ask an associate, co-counsel, or a paralegal to observe the jurors while I am putting on the witness or cross-examining a witness. Jurors are people, and most people do not have good poker faces. Their facial expressions tell you whether they like you or your witness. Do they smile at you when you make eye contact, or do they avoid eye contact? Does the juror nod his head approvingly when your witnesses are testifying? If the judge allows note taking, is the juror taking notes when your witness is making important points? And, finally, do the jurors make eye contact with you when they file back into the courtroom to announce their verdict? If not, it’s usually a bad sign.

2. Structure your evidence to support the three main points made during your opening

Your entire trial should have a plan that revolves around three main trial points or themes. Most law school trial classes teach this tried and true tip, but it is so essential it bears repeating. Your trial must have a carefully thought-out plan or strategy. You simply don't realize the information dump that hits jurors. If you don't continually hammer home your three main points, jurors will seize upon or focus on irrelevant information. I have spoken to numerous jurors after a trial, and I'm always amazed at what they think was important versus what I thought was important. I've read that people forget an astonishing amount of what you tell them in a very short time period. Therefore, it is important to keep making the same points and driving them home with everything you do in the trial.

Recently, I was a judge in a mock trial competition. I had read the materials beforehand. There were two witnesses for each side, four or five exhibits, and a few short deposition excerpts. The trial lasted about two hours. Of course I didn't know the material as well as the competing law school teams, but I was amazed at how difficult it was to process the information. It was so much easier to understand when a team reiterated their three main themes. This practice is critical in a simple mock trial, and even more so in a real trial.

3. Use effective illustrative exhibits

This sounds obvious, but jurors really need simple illustrations of the most complex points of your case to help them understand your evidence. Also, jurors love good illustrative exhibits. A good illustrative exhibit is good trial strategy in several respects. First, it forces the defense to attack the point being made by the illustrative exhibit (which they were going to do anyway), BUT on your terms with your exhibit. Also, I have found judges to be very liberal about not requiring notice to the defense, which means their cross examination will be less effective. Don't get me wrong, I'm not saying to not provide proper disclosures, I'm saying that you can call your expert down from the stand and ask him to "illustrate" important points in his testimony without having to give prior notice.

In a recent case we had to deal with a complex issue of which type of "filter fabric" drained the best. The fabric was used in a sea wall that had failed. Sounds really dull (and it was). In order to liven up this critical point we filled mason jars with water, attached samples of various fabrics to the tops, then turned the jars upside down to see which fabrics drained the best. The fabric used by the defendant contractor to construct the sea wall didn't drain at all, and the retained water added too much weight to the sea wall, causing it to fail. The jury was crystal clear on this point when we argued that the improper fabric contributed to the failure of the sea wall. In summary, think of your most complex point and figure out a simple way to present it.

4. Anticipate evidentiary conflicts and have a short memo prepared

During every trial of any length there will be a number of evidentiary disputes. Most will turn on a particular rule of evidence. I'm amazed at how many lawyers do not seem to be prepared when evidentiary disputes arise. If you really know your case, and the case of your opponent, you should be able to anticipate the vast majority of these issues. For example, most disputes that I have been involved with in recent years seem to arise from documents, letters, charts, reports, and articles. Which of these items are admissible and which are not? Expert reports are hearsay! Letters are hearsay unless introduced through the author. Articles, at best, are learned treatises which can be discussed with a witness, but can not be admitted as substantive. Governmental reports are self-authenticating, but opinions contained in them may not be. My point is to be well prepared for these type of issues, because they are certain to come up in your trial. Also, if you anticipate that your objection will take more than a few minutes, ask the judge to dismiss the jury to avoid frustrating them.

5. Cross examination should consist of you testifying

In my opinion, this is one of my most important tips, and every trial guide makes this point, too. Ninety percent of cross examination (if not more) should consist of you making out your case and the witness responding yes or no to your carefully crafted questions. I NEVER ask a witness an open-ended question during cross examination UNLESS I know the precise answer. This requires a very good summary of the witness’s deposition, so that if the witness varies in any respect from their testimony you can promptly impeach them with the transcript. I probably spend more time working on carefully crafted cross-examinations than anything else. A good cross-examination needs to be focused, hard hitting, and effective.

6. Don't elicit irrelevant testimony in a complex case

Jurors want to do a good job, and most of them attempt to try to understand everything that is being said. Accordingly, you should only elicit relevant and critical testimony in support of your case. Not only is it good practice, but Rule of Evidence 401 requires it. If you elicit irrelevant or noncritical testimony you will either confuse the jury, or the jury may give undue weight to this irrelevant testimony. Remember, jurors are hearing your case cold. They have a difficult time processing relevant and critical evidence, so don't make it harder by eliciting irrelevant or not critical evidence. I will often interrupt a witness if they veer into irrelevant areas.

7. Have your expert "teach" the jury as much as possible

I have some very firm opinions about presenting expert testimony. If done poorly, jurors’ eyes glaze over when experts are testifying. If done properly, jurors find the expert’s testimony fascinating, and their natural curiosity is engaged. First and foremost, an expert should "teach" the jury. This involves the expert stepping down from the stand, using effective illustrative exhibits, and drawing simple illustrations of his opinions, if appropriate.

An expert's testimony should be divided into three main categories. First, his credentials. Firmly establish that your expert is very knowledgeable. You should spend at least 15-30 minutes with the expert to describe his background. Introduce his CV as an exhibit and put it on the ELMO. It is very important that jurors view your expert as someone with real expertise and not just a hired gun. Next, have your expert "teach" the jurors about the complex ideas or principles he is going to testify about as applied to your case. This part of the testimony should NOT discuss the specific facts of the case; rather, the expert should explain principles that are difficult to understand. For example, we had a case involving defective roads in a development. The expert spent significant time testifying, with simple diagrams, about how roads are constructed, but didn’t mention our specific roads. Finally, the expert should show how the principles he just “taught” the jury apply to the facts of the case. At this juncture, jurors should be able to understand how the defendants deviated from the industry standards they have just learned about.

8. Call an adverse witnesses during your case

This has worked for me many times through the years. Call your most adverse witness during your case, often as an early witness. If you have taken a good deposition, you can craft a very succinct examination of your most adverse witness. This examination will both highlight their unreasonable behavior as well as support your theory of the case. Since the witness is adverse, you will be allowed to lead them during the examination. This always seems to annoy defense counsel immensely, because they are then faced with the tough decision of whether to do their direct testimony of that witness immediately following your questioning (which they are often not prepared to do), or save it for their case. It puts them on the defensive immediately, which is obviously what you want. If you do this effectively, it will completely eviscerate the defense case. By the time you rest the jury has already heard the defense case, but in a manner most advantageous to the plaintiff. It takes guts to do this, but trust me: it works.

9. Address the weakest points for each witness during their direct examination

This is critically important. Why let the defense attorney dramatically flay your witness over a bad point if you can bring it up, address it squarely, and put it in the light most favorable for you? Then when the defense attorney brings up the issue the jury will already believe the main points your witness made during direct. For example, in a recent trial we had a contractor witness who had estimated the multimillion dollar repair costs for the damaged property at issue. Unfortunately, the contractor did not have the appropriate contractor’s license to bid on or do work of this value. This was a problem. However, when we brought this issue up on direct the contractor explained how he "obviously was not appropriately licensed at the present time," but he “certainly would obtain the appropriate license before contracting for the work," and he “would never attempt to contract for work for which he was not appropriately licensed,” etc. You get the point. When defense counsel attacked him on this valid weakness, the jury had already decided it was no big deal. Bottom line: address your weaknesses. Don't fool yourself that defense counsel may not bring them up.

10. Never let the judge or jury see you sweat

It is critical that you always project absolute confidence in your case in front of the jury and judge. I always like to roll my eyes slightly when leaving a bench conference in order to create the impression that the defense attorneys are once again making a stupid argument and trying to keep the truth from the jury. Body language is very important. Displaying confidence at all times in the courtroom is a must for any trial attorney. People pay attention, at least on a subliminal basis, to how you walk and talk during a trial. Since the jury cannot talk about the case, they will talk about the attorneys: what they are wearing, if they fidget, and so on. I've had jurors tell me after a trial, "I liked you, but to be honest, it was annoying when you rattled your change in your pocket while standing." I didn't know I had done this, and I stopped carrying any change during trial. In summary, jurors pick up on whether you truly believe in your case, and they pick up on your level of preparedness.

However, after the Order in Tiara Condominium Association, Inc., the Florida Supreme Court has now held that the ELR can only be applied in products liability cases. In Tiara, the Eleventh Circuit of Florida had asked the Florida Supreme Court to decide whether insurance brokers could use the ELR to prevent tort claims by policy holders who were not provided adequate insurance coverage and suffered financial losses. Instead of answering this limited question, the Florida Supreme Court decided to hold that, even when parties are in privity of contract for things such as construction project and service contracts, the ELR can no longer be used as a defense to tort claims outside of the product liability context. Based upon this ruling, it will be interesting to see how the various courts in Florida determine what constitutes “product liability” and whether products that are incorporated into homes are still considered products.

Why would they do that?  Because these crafty defendants  want first to test the waters in federal court, and scare potential litigants off with expensive litigation.  In other words, old fashioned forum shopping.  But a recent line of cases may have put a lid on this strategy before  it could gather much steam.

The first case in this series arise from a mass of a cases involving overdraft fees charged by most major banks.  The plaintiffs in these  cases claimed that the banks intentionally ordered the payment of checks to create overdrafts so they could charge their customers an over draft fee.  Suffice it to say, these case have not gone very well for the banks.  See. e.g.,  Forbes.com, “Shady Overdraft Fees Could Cost Banks Over $1 Billion,”  (July 7, 2012).  Seeking to escape the prospects of settling the class action it, Well Fargo  moved in a class action pending against it case to compel arbitration. But it did so only after declining two invitation from the court to compel arbitration and, for more than a year thereafter, preparing its case for trial.   Finding that Wells Fargo had acted inconsistently with its arbitration right (a provision in its terms of service agreement),  the Ninth Circuit affirmed the lower court’s finding that Wells Fargo had waived it right to arbitration.  Garcia v. Wachovia Corp. et al, No. 11-16029 (9^th Cir., Oct. 26, 2012).

Similarly, in a construction defect case pending in North Carolina. the Business Court denied a builder’s motion to compel more than  three years after a complaint filed against it. By that point, the parties had expended substantial effort, time and money in discovery and motion practice.  Indeed, the Court had granted plaintiffs’ motion for class certification.  The court held that the builder waived its right to compel arbitration. Elliott v. KB Home North Carolina, et al., No. 08-CVS-21190 (N.C. Super. Court,  Nov. 2, 2012.).

Recent federal decision further suggest that a defendants cannot se how it fares in court before moving  to compel arbitration.  A party “should not be allowed to delay its demand for arbitration and us federal court proceedings to test the water before taking a swim.”   In re: Pharmacy Benefit Managers Antitrust Litigation, MDL  1782, No, 12-1430 (3^rd Cir,  Sept. 10. 2012).

In sum, defendant’s who use arbitration to forum shop are unlikely to succeed with that tactic.  If an arbitration provision is valid and enforceable, it  must be invoked early in the litigation so that it serves the one purpose for which it purportedly exists, that is, to avoid the high costs of  litigating in court.  

This article was originally published in The Corporate Observer.

             Nonetheless, Whirlpool contends that Judge Stranch and the Sixth Circuit, which refused to rehear the case en banc, got it wrong and failed to follow the Supreme Court's precedent-setting Walmart v. Dukes decision.  According to Whirlpool, the undisputed evidence shows that only a small fraction of the class have ever experienced mold problems and consequently, there is no common injury.  The "premium price" theory, it says, does not salvage the class since it is a creature of California statutory law wrongfully applied to Ohio.  What's left, it claims, is a class consisting mainly of uninjured consumers who have nothing  in common with the few who may have been harmed.  If those facts were properly resolved in Whirlpool's favor, it says, the case  could not be certified as either overbroad or as including too many members who lack standing to proceed.

                We think the Sixth Circuit got it right and not for the first time post-Dukes. The same circuit also this year affirmed class certification in one of our consumer cases.  Despite defendants' laments, the federal judges in the Sixth Circuit are not failing to carefully examine the evidence or ignoring Dukes.  The district courts are just doing their job and recognizing that cases arising from bum consumer products that have caused or may cause similar injury to the persons who purchased them can best proceed as class actions.

                We doubt the Supreme Court will take up this case, but if it does, we have concern.  As Dukes demonstrates, the Roberts Court is more than willing to upend decades of class action jurisprudence in the interest of protecting corporate America. We fear, that given the opportunity, it will do do so again.

                 You can find Whirlpool's certiorari petition here: Whirlpool_Cert_Petition.pdf.

First, some background on the FLSA and the so-called “half-time” method of overtime pay. On June 25, 1938, Congress enacted the FLSA, creating a maximum number of hours an employee could work without receiving overtime compensation. The FLSA was enacted to eliminate labor conditions that are detrimental to the health, efficiency, and general welfare of workers. In his message to Congress urging passage of the Act, President Roosevelt explained that the Act was intended to ensure workers “a fair day's pay for a fair day's work” because “[a] self-supporting and self-respecting democracy can plead no . . . economic reason for chiseling workers' wages or stretching workers' hours.” The FLSA constituted Congress's determination that employment should be spread among many workers and work hours should be limited to a reasonable number. The FLSA accomplishes these twin goals by requiring employers to pay employees time-and-a-half when an employee works over 40 hours in a week.

The time-and-a-half overtime "premium" required by the FLSA is thus intended to penalize employers that concentrate work in the hands of fewer employees, requiring those employees to work more hours. The intended purpose of the time-and-a-half overtime requirement was that employers would act in an economically rational manner by limiting employees’ workweeks to 40 hours wherever possible, and hiring additional employees whenever necessary, thus reducing unemployment.

There is an exception to the time-and-a-half overtime requirement called the fluctuating workweek method (“FWW”) of calculating overtime pay. This method is also known colloquially and derogatively as “Chinese overtime” or “half-time.” Under the FWW method of overtime pay, an employee is only paid one-half a worker’s hourly rate for all hours worked over forty per workweek. This results in a perverse situation where, as the Supreme Court recognized, the more hours an employee works, the less overtime pay the employee receives, because the overtime rate decreases as the number of hours increase, causing the regular rate to decrease. See Overnight Motor Co. v. Missel, 316 U.S. 572, 580 (1942) (noting strict fixed salary requirement because “the longer the hours, the less the rate and the pay per hour”). The FWW method has naturally proven popular among employers paying overtime pay because it enables employers to pay employees substantially less than time-and-a-half a worker’s hourly rate.

With that as background, now back to the recent decision from the United States District Court for the Western District of Pennsylvania, Foster v. Kraft Foods Global, Inc., CIV.A. 09-453, 2012 WL 3704992 (W.D. Pa. Aug. 27, 2012), that analyzed the FWW method of overtime pay in relation to the PMWA. In Foster, the defendant argued that the:

FWW method complies with the ... PMWA's [1 and½ times] requirement because the employee's weekly salary is intended to compensate Plaintiff for all hours worked ... [, including] overtime hours. Thus, the employee receives the “time” for each hour worked by receiving a weekly salary and is only entitled to the “and a half” of her regular rate for hours worked in excess of forty. Once the half is paid, the employee has received the full time and one-half for all overtime hours.”

Id. at * 5.

The court noted that while this is the rationale used to justify the FWW method under the federal regulations that implement the FLSA, the language of the PMWA differed from the FLSA because it does not reference half-time pay. Thus, the court held that “payment of overtime under the FWW method, at any rate less than one and one-half times the “regular” or “basic” rate, is impermissible” under the PMWA. Id.

The end result is that workers in Pennsylvania now have another good decision to point to support their claims for time-and-a-half overtime. Moreover, the twin purposes of the FLSA and state wage and hour laws – to reduce unemployment by spreading work among many workers, and to limit work hours to a reasonable number – have now been lent increased support in Pennsylvania.

So-called "food misrepresentation" cases, like the Nutella case, have exploded in the last few years.  The claims vary widely but predominantly fall into three general categories: (1) claims that a product is "made with real fruit" when it is not; (2) claims that foods are "healthy" when they contain ingredients that are not "healthy"; and (3) "all-natural" claims on foods that contain "unnatural" ingredients.  Some claims are successful, while others should be avoided.

Let’s start with every kid’s favorite lunchbox treat, Fruit Roll-Ups.  The ingredients of strawberry-flavored Fruit Roll-Ups list "pears from concentrate" as its first ingredient, not strawberries.  But the statement "made with real fruit" as well as the word "strawberry" appear in large and colorful letters all over the packaging.  Would a reasonable consumer believe that the product was made of real fruit?  Yes.  See Lam v. General Mills, Inc., 2012 WL 1656731, at *6 (N.D. Cal. May 10, 2012). But, what about Kellogg's Froot Loops? Although the packaging depicts pictures of actual fruit, the cereal rings do not resemble any known fruit, and therefore no reasonable consumer would be deceived into thinking otherwise.  See Videtto v. Kellogg USA, 2009 WL 1439086, at *3 (E.D. Cal. May 21, 2009).

What kid (or grown-up) doesn't love the taste of Teddy Grahams?  Well, buyer beware.  Teddy Grahams actually contain highly refined sugar, white flour, high fructose corn syrup, and manufactured food additives.  In light of these ingredients, the Court in Red v. Kraft Foods, Inc., 754 F.Supp.2d 1137 (C.D. Cal. 2010) held that the representation that Teddy Grahams "helps support kids’ growth and development" could be misleading.  Id. at 1144.  Similarly, the phrase "vitamins + water = all you need" on the ubiquitous "Vitaminwater" is misleading as it leads consumers to believe that the product is solely composed of vitamins and water.  See Ackerman v. Coca-Cola Co., 2010 WL 2925955, at *15 (E.D.N.Y. July 21, 2010).  But, in comparison, a label stating "Made with a Blend of Nutritious Oils" does not, to a reasonable consumer, imply that the product contains only nutritious oils.  Rosen v. Unilever United States, Inc., 2010 WL 4807100, at *4 (N.D. Cal. May 3, 2010).

And, what about Snapple?  It bills itself as "all natural" and "Made from the Best Stuff on Earth."  Well, last time I checked, high fructose corn syrup isn’t "all natural."  According to the Eastern District of California, the label "Made from the Best Stuff on Earth" is likely to deceive a reasonable consumer.  Von Koenig v. Snapple Beverage Corp., 713 F.Supp.2d 1066, 1080 (E.D. Cal. 2010).  Similarly, the Central District of California held that guacamole and bean dip labeled as "all-natural" but containing substantial and dangerous levels of artificial transfat could potentially mislead consumers.  Henderson v. Gruma Corp., 2011 WL 1362188, at *11 (C.D. Cal. Apr. 11, 2011). 

We all rely on food labels to give us an accurate picture of the nutritional content of the foods we buy for ourselves and our families.  Food companies today are facing greater scrutiny of their product labeling and advertising—by regulatory agencies, consumer groups, and the plaintiffs’ bar.  The result has been a dramatic increase in putative class action lawsuits, a trend that will likely continue.

*This is a modified version of  Donna Solen and Monica Bansal's  article "Pleading a Putative Food Misrepresentation Class Case? Avoid the Pitfalls," which was published in the Summer 2012 American Association for Justice Class Action Litigation Group Newsletter.  Click here to view the article in its entirety.

Of course not.  You could see it coming.  Verizon has joined the list of  great American corporations which have decided to deprive  consumers of their rights  to go to court against it with a class action and to have a trial by jury.

We have previously reported that Sony, Microsoft and, of course, AT&T have forced arbitration provisions upon their customers.  Now Verizon, the nation’s largest wireless service provider, has joined the bandwagon.

So, my fellow  Verizon customers, whether you like it or not, you have now agreed with Verizon to resolve disputes “only by arbitration or in small claims court. “   And in case there was any doubt as to what Verizon is up to, here it is, just as Verizon printed it, in all bold caps:

17.3 THIS AGREEMENT DOES NOT ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA OR BBB PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR SHALL NOT HAVE THE POWER TO DETERMINE THAT CLASS ARBITRATION IS PERMISSIBLE. THE ARBITRATOR ALSO SHALL NOT HAVE THE POWER TO PRESIDE OVER CLASS OR COLLECTIVE ARBITRATION, OR TO AWARD ANY FORM OF CLASSWIDE OR COLLECTIVE REMEDY. INSTEAD, THE ARBITRATOR SHALL HAVE POWER TO AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT. NO AAA OR BBB RULE WILL APPLY IF IT CONFLICTS WITH THE PROVISIONS OF THIS AGREEMENT. IN ADDITION, NOTWITHSTANDING ANY CONTRARY PROVISION IN THE AAA OR BBB RULES, THE ARBITRATOR WILL BE BOUND TO APPLY LEGAL PRINCIPLES AND THE LAWS THAT GOVERN THIS AGREEMENT.

 Still not convinced that Verizon is trying as hard as it can to make sure you can’t file a class action against it?  Then read this:

            17.7 IF FOR SOME REASON THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH IN SUBSECTION 17.3 CANNOT BE ENFORCED, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.

 And if for some reason, you are able to get your class action case into a court room, Verizon is going to still stick it to you and prevent a jury from hearing your case:

 17.8 IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND VERIZON AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND VERIZON UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT.

The tidal wave of forced arbitration provisions in consumer contracts is upon us.  Until Congress takes action, consumers will have band together to counter corporations which have unilaterally decided to take away our rights to bring class actions and have our disputes resolved by a jury of our peers. 

Want to learn more about forced arbitration provisions and how you can fight back?  Visit www.consumerscount.org.

In a blog posted on May 25, 2012,  Microsoft announced that it had “updated” its user agreements for all its consumers products and services. This so-called update requires consumers to bring unresolved claims against Microsoft to arbitration or small claims court, but not as part of a class action.  Put plainly, this means that if something happens to your Xbox or any of your Microsoft products, you can't sue Microsoft. Nor can you join in a class action suit targeting Microsoft.

Microsoft is certainly not the first company to add arbitration and class action waiver provisions to the Terms of Service.  As Microsoft says in the blog, “Many companies have adopted this approach, which the U.S. Supreme Court permitted in a case it decided in 2011.”  We, of course, know exactly what case that is – the notorious AT&T Mobility v Concepcion.

Sony was among the first electronic publishes to introduce a “ no sue” clause as part of its terms of service in September 2011, a move quickly followed by Electronic Arts. Now Microsoft has  joined the post-Concepcion arbitration provision bandwagon.

These new terms have been drafted by Sony, EA, and scores of other companies for the same reason -  arbitration is the ticket to corporate immunity from unfair and deceptive practices. Rather than having to face thousands of consumers  represented by attorneys, arbitration is designed to make consumers face a corporation alone and have their grievances determined by an arbitrator paid for by the corporation.  In short, arbitration is designed to deprive you of your fundamental right to a trial by jury. This right, enumerated as the VII Amendment to the Constitution, was explicitly designed to prevent the kangaroo court that arbitration is meant to be.

Further, arbitration rulings are final, not appealable and often secret.  Without any means of review by a court, or public awareness, corporations that force you into mandatory arbitration can steamroll the consumer without worrying about damaging their reputations.

Microsoft claims that with its new approach, consumers should expect their complaints to be resolved faster than before. We suspect that is likely, but not for the reasons Microsoft asserts. In reality, consumers will not bring claims at all. With no attorney willing to represent their interests, and facing the intimidating prospect of having to fight a corporation alone, consumers will quickly realize that however “fast” the resolution of their claim will be, it will not likely justify the actual time they will need to spend to obtain the resolution they seek. In short, corporate America is setting up a system to deprive you of your rights and institutionalize a corporate license to steal.  Better still, without any public disclosure of arbitration proceedings, you will never know. Very convenient. 

Want to learn more about forced arbitration provisions and how you can fight back?  Visit www.consumerscount.org.

Our Hayes Equipment trial began like any other trial, which just so happens to resemble the calling of names on “The Price is Right.” The only difference is generally on “The Price is Right,” those in the audience are praying for their name to get called. In our case, we can only speculate that potential jurors were praying to not hear their name or magic juror number for our intensely complicated and highly anticipated rock crusher trial. Those who were lucky enough to get called to the front for questioning took their places and listened intently while the judge and each attorney took their turn with questions.

While the Plaintiff’s attorney, John Whitfield, was finishing up his part of voir dire (questions to the jury), we were all “Saved by the Bell,” literally. In the brand new, $19 Million dollar Hopkins County Judicial Center, the fire alarm started going off. Thankfully no one panicked. In fact, no one moved at all. Thinking this was simply a drill, everyone remained seated and stayed calm. About a minute later we got instructions from the bench to calmly exit the building. The fire department concluded the alarm got set off because of smoke in one of the inmate holding cells. It is particularly interesting to me that an inmate could smuggle something into the new courthouse that could be used to cause a fire, considering I got patted down by the “Entourage” because of a bottle of water in my bag and my watch which set off the metal detector.

Once back in the courtroom, the jury was seated and opening statements ensued. The jury learned that this case involved two rock crushers and the contracts surrounding the orders to produce these crushers. At this point, if you are like me, you are “Lost.” You have never heard of a rock crusher and have no idea what they do. Well, let me take this moment to educate you about a topic you will only use in Trivial Pursuit. Rock crushers are semi-truck sized machines which are basically mounted on a trailer and can be pulled behind a massive truck. The portable crushers we were dealing with in this case were to be used to crush limestone from about 2 foot squares into manageable pieces, generally around softball size. Once crushed, these rocks are used for materials such as concrete. The main dispute of the case concerned cost overruns on the production of the first crusher. The purchase order specifically stated that all cost overruns had to be approved in writing. Long story short, there was no approval of overruns in writing and the cost of the first crusher ended up being 88% higher than the agreed upon price. The defendant then put a lien on the second crusher being built to obtain the 88% cost overruns from the first. Plaintiff wants his crusher back, defendant wants the overruns, and plaintiff wants damages he had to pay to finish production on the second crusher because the defendant stopped work on it. Easy enough, right? Only problem was, the purchase order was never signed, so one of the jury questions was whether this was still an enforceable contract.

Throughout the witness examinations, there are numerous notable quotes which could not have been more entertaining if they were acted out on “Saturday Night Live.” For some reason, a couple witnesses that took the stand thought it would be beneficial to begin asking Mr. Whitfield questions, instead of answering the ones asked to them. Whitfield politely let them know that he was not the “Person of Interest,” was not under oath, and would be asking the questions. The defendant in particular, like most, wanted “Revenge” for what he believed to be harm done to him. He was quick to tell the jury while he was on the stand that he had waited 12 years for this day (this case was filed back in 2001) and attempted to disagree with just about any question posed to him.

The Plaintiff’s case lasted almost three full days. The Defense then presented proof for the rest of day three and a couple hours into day four. At that point, it was time for “The Closer.” Defense counsel was short, focusing on jury instructions. Mr. Whitfield then took his place in front of the jury to summarize the proof and tell why the Plaintiff should win. Surprisingly, mid-closing, there was an outburst from the congregation by the Defendant’s wife, who felt it pertinent to interject her opinion about the proof. I guess that was her “Big Bang Theory” in an effort to assist her husband. Once silenced, she decided to storm out of the courtroom, and to say a few choice words on the way out. Personally, I chalk her up as being a “Survivor,” since she was not escorted out of the courthouse by the “Heroes” in “Suits” (AKA bailiffs). Mr. Whitfield finished his closing and the jury retired to deliberate.

After “60 Minutes” there was a knock at the jury door. Unfortunately, it was because the jury had a couple questions for the judge. They asked the judge whether an unsigned purchase order constituted a contract, which made our chances look “Grimm.” In our minds, this question indicated that the jury was thinking there may not have been a contract at all, which would mean the Plaintiff owes all of the overages. The judge told the jury he could not answer this question, and they again returned to deliberate. After another hour, they came back with a verdict. As we all sat on the edge of our seats, the judge read the jury form which indicated a Plaintiff’s verdict on all counts. The jury agreed with our client on every instruction presented to them.

These are the “Happy Days” for attorneys. When we can represent clients, fight for them through the “Weeds,” and obtain verdicts that help them move on through life. While every story may not start with “Once upon a Time,” it is final verdicts like this one, which was 11 years in the making, that make practicing law worthwhile.

Time to return to “The Office” and see what we missed. “Cheers.”