Update: T-shirts critical of Wal-Mart

by Walter Olson on March 26, 2008

Updating our Mar. 29, 2006 post: “Computer store owner Charles Smith has won a two-year legal battle with Wal-Mart, which has demanded he stop making and selling T-shirts and other items with slogans such as ‘Wal-ocaust’ and ‘Wal-Qaeda.’ U.S. District Judge Timothy C. Batten Sr. found that Smith’s products qualified as protected noncommercial speech because his goal was to criticize Wal-Mart, not to make a profit from his products. The judge noted that Smith had sold only 62 T-shirts, including 15 to one of Wal-Mart’s outside law firms.” (Janet L. Conley, “Parody of Wal-Mart Trumps Its Trademark”, Fulton County Daily Report, Mar. 26; Likelihood of Confusion, Mar. 22; Randazza, Mar. 23).

{ 6 comments }

1 Barry Nordin 03.26.08 at 10:31 pm

How about reporting on the woman crippled in a car-truck accident eight years ago who worked for Wal-Mart. She received payments from her company policy until she won just $700K for her catastrophic injuries. After lawyers got their share, she was left with $417K in a trust fund to pay for her care in her nursing home, where she lies basically brain-dead.

Ah, but she won’t get to use that money since Wal-Mart, with its 11 Billion dollar profits, sued her for not $417K but $470K to recompense them for what they paid out. And they just won.

And shortly thereafter, the woman’s son was killed in Iraq, something she may never know, thank God.

From Countdown, MSNBC, March 26

2 gitarcarver 03.26.08 at 11:37 pm

I believe Debbie Shank’s case has been mentioned here before.

She signed an agreement that allows Wal-Mart to re-coup what it paid out if she won a judgement. That is exactly what they did. If WalMart’s insurance company had said “since the accident was not Shank’s fault, we won’t pay anything for her care,” people would rightfully be screaming about “evil WalMart not living up to its agreements.”

As it is, WalMart followed through with its agreement with Shank.

While this is tragic, the real culprit here is the trucking company whose truck hit Shank. The company had such limited insurance on their drivers that it forced the Shanks into a settlement far below what is most likely fair.

A company has the right and the obligation to keep its costs down. It should not randomly say “we’ll agree to this rule in this case, but not in another.” It should not pass on the failings of other companies to its employees and customers.

That being said, the Shank family would be more than willing to accept donations from WalMart employees, or even people ouside the company.

3 Jason Barney 03.27.08 at 12:37 am

I saw the Wal-Mart story too. Sad, indeed. The story smacks of anti Wal-Mart bias, though.

The story doesn’t report why she settled for only $700K when permanent brain damage and around the clock care can easily run the claim value into the millions.

What I suspect the story left out is that she was at least partially at fault for the accident or that liability was disputed altogether, and that the settlement was reached as a compromise to a jury trial–where she may have received nothing.

So, she settles for $700K and after the lawyer fee and costs she’s left with about $417K, not even enough to pay back Wal-Mart’s subrogated lien. This fact alone strongly suggests she had some real problems with her case.

Wal-Mart has every right to seek what it paid back from the tortfeasor. And, perhaps it should cut its lien if its insured worker’s case was that problematic. Wal-Mart had the same risk of zero recovery at trial.

Keith Olbermann’s opinion piece on MSNBC reports the plaintiff was “broadsided” but that does not indicate who is at fault. He goes on to sarcastically suggest Wal-Mart is owned by the devil.

Most every first party insurance policy has a subrogation clause; it’s customary and makes sense. Don’t be surprised if a defective toaster burns your house down that when you sue the toaster folks for your uninsured losses that your insurance company won’t allow you to collect the money it paid for insured losses. Duh.

And what about her attorney’s liability for failing to protect and/or compromise the lien? Shouldn’t someone think of holding him accountable for his potential error?

4 Daille Nation-Ashley 03.27.08 at 10:29 am

Back to the original post. Did you know that Walmart is seeking trademark protection for the smiley face? The district judge in his judgement said “trademark protection is available only to distinctive marks, and to establish a common-law right in the smiley face, Wal-Mart must show it has imbued the mark with secondary meaning”. Now what secondary meaning has Walmart attributed to the universal symbol of happiness. I suspect many would suggest a rather ugly stain.

5 Heather 03.27.08 at 1:47 pm

Now what secondary meaning has Walmart attributed to the universal symbol of happiness. I suspect many would suggest a rather ugly stain.

Damn them for allowing poor people to afford new electronics and housewares instead of waiting for their betters to take cast-offs to Goodwill!

6 Daille Nation-Ashley 03.28.08 at 7:02 pm

Including those poor mom and pops they put out of business. Damnn them for trying to capitalize on the public domain smiley face.

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