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wacky warnings

A recent anime (Japanese cartoon) portrays America as a land where pretty much any misadventure can be turned into grounds for a lawsuit. Siouxsie Law has the (funny? horrifying?) video clip, the plot line of which involves the catastrophic misuse of a microwave oven and its fictional legal consequences.

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November 12 roundup

by Walter Olson on November 12, 2010

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In case you didn’t know. [California Civil Justice]

“…Use Your Own” [Maggie Koerth-Baker, BoingBoing, seen on a hardwood floor sander, with picture]

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I have a bit more to say about the “warning label on the U.S. Constitution” story in Diane Macedo’s FoxNews.com report today, which is getting a lot of readership. Original posts here and here (& welcome KTRH, Lars Larson listeners). Update: statement from Wilder Publications courtesy Distaff View of the World.

Speaking of warnings, Bob Dorigo Jones has picked the finalists for his 13th annual Wacky Warning Labels Contest (on a go-cart: “This product moves when used”) and I’ve got a post on that at Cato at Liberty.

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The things you have to warn against these days [Ted at PoL]

I blogged at Cato at Liberty yesterday about a copy of the U.S. Constitution sold with a parental advisory warning (hat tip: reader Clark S.). According to the warning, it might be a good idea not to let kids read the nation’s founding document until having a discussion with them about how views on race, sex, etc. have changed since it was written. It’s just boilerplate, of course, as found on other books from the same publisher. More: Eugene Volokh and Damon Root, Reason “Hit and Run”. And reader L.S. points out that in their prefatory matter the publishers also purport to prohibit readers from using or reproducing the text of the Constitution without permission.

P.S. First Things commenter Jared: “I presume, in the interests of not being chauvinistic about the present, that which they publish written today also carries a similar warning label: ‘This book is a product of the cultural mores and prejudices of the early twenty-first century…’”

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Funny warnings from Antenna Direct of Missouri [Consumerist] And Australian prawns (shrimp) are sold with a reassurance that the accompanying promotional material is “not implicitly or explicitly directed at minors, excluded persons, or vulnerable or disadvantaged groups.” [Hey, What Did I Miss? (Institute for Public Affairs)]

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Bruce Nye has a photo of a pointless new warning McDonald’s has posted in California stores to avoid litigation. The warning seems to have a side safety benefit: by the time you finish reading it, your coffee won’t be hot any more.

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January 16 roundup

by Ted Frank on January 16, 2010

TortsProf’s Christopher Robinette notes the exceedingly cautious language employed by the publisher of a book on the Walther P-38 pistol. “It’s sad that the publisher can’t even ‘approve of,’ never mind ‘advise’ or ‘encourage,’ the ‘use of’ the material ‘in any manner.’”

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Coffee cup warning

by Walter Olson on July 23, 2009

CoffeeCupWarningFourGreenis
From Cleveland’s Erie Island Coffee Co., which now has a shop in the city’s East Fourth St. restaurant district. Courtesy @fourgreenis who records it at Twitpic.

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Britain’s Daily Mail has a pictorial feature on superfluous warning signs (via Free-Range Kids). Another peril to watch out for: “uneven surfaces” on beach sand.

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They might make you uneasy in new ways [Lowering the Bar, scroll]

May 18 roundup

by Walter Olson on May 18, 2009

  • Historic preservation and habitat preservation laws can backfire in similar ways [Dubner, Freakonomics]
  • Serious points about wacky warnings [Bob Dorigo Jones, Detroit News]
  • Texas solons consider lengthening statute of limitations to save Yearning for Zion prosecutions [The Common Room]
  • A call for law bloggers to unite against content-swiping site [Scott Greenfield]
  • Drawbacks of CFC-free pulmonary inhalers leave asthma sufferers gasping [McArdle, Atlantic]
  • Try, try again: yet another academic proposal for charging gunmakers with costs of crime [Eggen/Culhane, SSRN, via Robinette/TortsProf] More/correction: not a new paper, just new to SSRN; see comments.
  • California businesses paid $17 million last year in bounty-hunting suits under Prop 65 [Cal Biz Lit]
  • Trial lawyer lobby AAJ puts out all-points bulletin to members: send us your horror stories so we can parade ‘em in the media! [ShopFloor]

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Yes, it’s Bob Dorigo Jones’ annual Wacky Warning Label contest. Aside from the year’s winner, mentioned in the headline, other top entries included “Do not use if you cannot see clearly to read the information in the information booklet” (on a wart-removal product), “Always use this product with adult supervision” on a cereal bowl, and a bag of livestock castration rings cautioning, “For animal use only.” [AP/Times & Transcript (New Brunswick, Canada); Foundation for Fair Civil Justice] (more on wacky warnings)

Fox News contributes original reporting on some of the familiar Wacky Warning Labels made famous by Bob Dorigo Jones of Michigan Lawsuit Abuse Watch in an annual contest and book. It helps track down information, for example, regarding the origin of the warnings not to use a hair dryer while sleeping, not to heat up a cellphone in the microwave oven, not to use a curling iron in the shower, and not to swallow a fishing hook (the latter seems to have more to do with the potential toxicity of the lead in the hook than the hook aspect itself). The warning against the temptation to obtain the light necessary to check a fuel tank by flicking on a cigarette lighter recalls the Burma-Shave jingle of decades ago:

He lit a match/
To check gas tank/
That’s why/
They call him/
Skinless Frank.

Also noted in the article: a warning against using “birthday candles as earplugs ‘or for any other function that involves insertion into a body cavity’”.

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If you bought a Bluetooth headset between June 30, 2002 and February 19, 2009, the settlement of a class action lawsuit may affect your rights.” And if you want to know why your instruction manuals are overwhelmed with worthless wacky warnings, the settlement of this class action lawsuit may explain why.

We’ve covered other ridiculous failure-to-warn-of-hearing-loss consumer-fraud lawsuits, but somehow missed this one filed by the Garcia Law Firm, which was eventually consolidated with twenty-six other lawsuits against Motorola, Plantronics, and GN Netcom (which makes “Jabra” headsets) alleging that the insufficiently advertised risk of hearing loss from turning the volume up too high on a Bluetooth headset was consumer fraud meriting damages, yadda yadda, because, without a wacky warning, people might not know that loud sounds can cause hearing loss.

The settlement is remarkable: the defendants are spending approximately $1.2 million to give notice of the settlement that offers $0 to the class. That’s, right $0. There’s a total $100,000 cy pres award to four charities selected by the plaintiffs, and the manufacturers agree to provide a wacky warning that “Exposure to loud noise from any source for extended periods of time may temporarily or permanently affect your hearing.” Only lawyers like warnings like this. Such warnings make the rest of us worse off; when people see so many warnings “crying ‘wolf,’” it inures them to meaningful warnings.

In return, the trial lawyers are going to ask for up to $850,000 in fees and costs—a remarkable infinite-percentage attorneys’ fee. Nine representative plaintiffs will ask the court for a total of $12,000 in “incentive” payments.

Walter and I often get inquiries on what readers can do when they get notice of a class-action settlement that benefits lawyers to the expense of consumers and businesses. The answer all too often is nothing: asking for exclusion doesn’t prevent the lawyers from cashing in; objecting without the help of an attorney will almost always be brushed off by the court; there is no financial incentive for an attorney to get involved, unless an objector wants to pay their tremendous fees–and there is certainly not an incentive for an objector to spend thousands of dollars to hire an attorney to object to a settlement like this.

The lawsuit is plainly meritless; but it costs Motorola and the other defendants a lot of money to have Kirkland & Ellis and Arnold & Porter litigators dealing with the case. Without a loser pays rule, it’s cheaper for the defendants to pay trial lawyers protection money to go away. Because no one has an incentive to object, the settlements get rubber-stamped, and the trial lawyers go on to file the next extortionate lawsuit. And we all pay higher prices as a result: the $2 million being spent on notice and plaintiffs’ attorneys doesn’t include the hundreds of thousands (and very likely over a million) spent by these companies on defense and in-house attorneys on three years of litigation to date.

In the Grand Theft Auto case, I was a class member, so could file an objection on behalf of myself. I don’t own a Bluetooth headset, so I can’t do that here. But the fairness hearing is in Los Angeles, I’m a member of the California bar and Central District of California bar, and I wouldn’t mind having an excuse to be in California on July 6.

I’m going to float a trial balloon here (and perhaps get my friends at Kirkland mad at me). If you are a reader, and you are one of the tens of millions of members of the class (and please read the notice to ensure that you are), and you find this settlement objectionable, I may be willing to represent you pro bono to file an objection similar to the one I filed in the Grand Theft Auto case, where I argued that the settlement was evidence that the case was meritless and should be dismissed, and in no event should the attorneys get paid off. Please understand that:

  • Such an objection, if fully successful in decertifying the class, will preclude you from receiving any money in the class action settlement; you would get zero financial benefit from the objection and would be doing this solely to keep these particular attorneys from stealing $850,000 from consumers, and to be some small deterrent to future trial lawyers against bringing this type of lawsuit;
  • There is a non-zero chance that the trial lawyers will ask for your deposition in an attempt to intimidate or harass you, though I suspect that they wouldn’t want to spend the time or money to engage in a fruitless one-hour deposition;
  • There is a chance that the judge will ignore the objection and approve the settlement anyway, though we would have the right to appeal to the Ninth Circuit.

What say you, readers? Have you bought a Bluetooth headset, are you sick of extortionate lawsuits, and are you mad enough to go on the public record to say that you don’t think these attorneys should get $850,000?

This is not an April Fools’ joke; this is not an AEI-approved project. This is me, willing to spend my own spare time and money to do some real pro bono work in the original sense of pro bono publico if there is a disgruntled class member out there. (Of course, if there is a outpouring of readers who also want to donate money to defray expenses, let me know, and I’ll set up an Amazon or Paypal donation button.)

(Update: Thanks for the overwhelming response. I’ve selected five volunteers who will be the objectors, which will be more than enough.  Stay tuned to Overlawyered for updates on the case.)

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