Armstrong Happenings: Spring 2020 E-Newsletter

THAT’S A LAWSUIT WAITIN’ TO HAPPEN!

By: Lamar Armstrong, III

Dear Humans,
We sometimes see our fellow humans doing some – shall we say – head-scratching things.  Sometimes worthy of a “Darwin Award”.  Other times simply worthy of the observation “that’s a lawsuit waitin’ to happen!”. Enter this column. The idea is simple:  capture and share with others “lawsuits waiting to happen”.  With the end goal of laughing at them – not with them.  If you think that’s harsh, no worries – you can skip to the serious parts of this newsletter. For the remaining folks with senses of humor…. If you happen across a “lawsuit waiting to happen”, please please share it with us at Lamar3@armstronglawyers.com.  With video or picture if you have either.  If we think its funny enough (no, this is not a democracy), we’ll include it in a future edition of this column.  You’ll get the credit and become famous. Without further ado, introducing the newest lawsuit waiting to happen:

Unfairness, Deception, and…..Lip Balm?

          A potential class action lawsuit is brewing in Illinois against Blistex, alleging that Blistex unfairly and deceptively claimed each stick contained .15 ounces of lip balm, when they actually contained .133 ounces (a difference of .017 ounces, or about 11% less).  Apparently the .15 ounces included the weight of the packaging of about .017 ounces.

          I have long suspected that Blistex designed the balm to make lips more dry/cracked over time, creating dependency on the product.  OR that Blistex implants a substance in the balm or packaging that, once released into a woman’s system, awakens her inner desire to torture her man or child(ren) with incessant, unnecessary smear campaigns. (anyone else see lip balm in their nightmares, or is it just me???).

But never did I suspect that Blistex was up to something much more sinister.  Much more repulsive.  Much more….deceptive?

The lead plaintiff in this lawsuit insists she (and others) would not have purchased the $2.30 stick if she had known, or she would have paid less.  Clearly Blistex has not gotten into her subconscious…yet.  Stay strong lead plaintiff.  Resist the grease.

Conspiracy theories aside, it will be interesting to see where this goes.  Because on the one hand, you should get what you’re told you’re getting and what you paid for, right?

On the other hand, is it unfair and deceptive?  I’m no Illinois lawyer, but it sounds like Illinois has a similar “unfair or deceptive acts and practices” (a/k/a “UDAP”) statute that North Carolina does.

In North Carolina, a “UDAP” violation occurs if the unfair or deceptive act or practice is “in or affecting commerce”.  Such an act/practice is unfair or deceptive if it has a tendency or capacity to deceive.  It doesn’t matter if a defendant intended to deceive.

So regardless of Blistex’s intent (I’ve made my feelings clear there), the important questions are whether their “.15 ounces” statement on packaging is false, and unfair or deceptive.  Even if technically false, does it have a tendency to deceive people?  Are folks buying up this stuff at the going rate because of the amount stated?  Would people not buy this stuff at the going rate if they knew the truth?

I don’t know if a judge will toss this case or if it will be decided by a jury.  But if it makes it to a jury, the trial strategist in me wonders how the average joe/jane jurors would react to this.  Ripoff, and Blistex should pay?  Or, nothing to see here?

The real kicker in the short term is class action status.  The big companies like Blistex start feeling the heat more if the judge “certifies the class” – meaning the judge finds that the requirements for a class action are met.  Because if there is a “class”, then those “deceptive” 20-30 cent per-stick upcharges add up, once you factor the vast number of sticks bought up (half by my dear mother…ok I’ll stop, for real this time).  Yet if there is no “class”, then effectively there is no lawsuit.  Nobody is going to sue over 20-30 cents if his/her claim cannot be joined in a large class of other similarly-situated lip balm ripoff-ees.

If there is a class action, chances are Blistex will settle the case with their spare change, and perhaps jump into the hand sanitizer market (I hear that one is booming, and ripe for deceptive duping).

Lastly, if the judge certifies the class, there is no settlement, and it makes it to a jury, then Blistex may really be sweating it.  A UDAP verdict in a plaintiff’s favor (at least in NC) opens the door to triple damages and potential reimbursement of plaintiffs’ attorney’s fees.  On second thought, Blistex better not wait to jump into the hand sanitizer business.

LEGAL-EASE

By: Eason A. Keeney 

Child custody during separation and divorce.  What are my chances?

Brad and Angelina married 20 years ago.  They have three beautiful daughters.  They acquired substantial property and still have some debt. Brad supported the family financially while Angelina stayed home to raise the girls.  Both consult with domestic attorneys.  Brad and Angelina’s conflicting priority is who obtains custody of their daughters.  A lesser priority is resolving the legal issues dealing with property distribution and spousal support.

Angelina asks her attorney “what are my chances of getting primary custody?”

Brad asks his attorney “what are my chances of getting equal custody?”

The answer is “it depends.”  Historically, mothers got primary custody and fathers got secondary custody that was often visitation every other weekend.  That historical preference is changing due changes in judicial biases as well as through policy shifts created by our legislature.

In 2015 the North Carolina Legislature revised North Carolina General Statute, section 50-13.2 to  promote the public policy that children benefit from maximum time spent with both parents.  The statute reads in subpart (a):

“Between the parents… no presumption shall apply as to who will better promote the interest and welfare of the child.  Joint custody to the parents shall be considered upon the request of either parent.” (emphasis added)

At the request of at least one of the parents, the Court must consider awarding “joint” custody to the parents.  The statute does not define “joint,” so the Court still has discretion to determine the schedule it believes will best promote the interests of the children.  This statutory policy simply reflects this growing trend towards more evenly (if not exactly 50-50) dividing custody between both parents.

For example, Brad moves out of the house (marital residence) and into a two bedroom apartment 50 miles away.  He also works 60 hours a week at a big company 30 miles from the marital residence.  Angelina still lives in the marital residence 5 miles from their daughters’ schools.  Based on these facts, the Court determines an equal, 50-50 custody schedule is not feasible.  Brad cannot reasonably care for their daughters given his long work hours, and he lives too far from their schools to get them to school each morning by 8:00 a.m.  Furthermore, their extra-curricular activities are close by the marital residence and schools.

Instead, assume Brad owns an acting agency located 5 minutes from the marital residence and determines his own work schedule.  The local middle school where two of the daughters attend hired Angelina as the new drama teacher soon after Brad moves out.  Under these circumstances, the Court determines that both parents can reasonably care for their daughters and thus awards equal, 50-50 custody to Brad and Angelina.

Ultimately, judges still have a lot of leeway to do what they think works best for the children.  The revised version of N.C. Gen. Stat. § 50-13.2 just encourages the Court to strongly consider joint custody to the extent that it allows both parents to be as involved as possible with their children.

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LAWYERS IN REAL LIFE

By:  Cortney (guest writer)

The Armstrongs and I go wayyyyy back… Eason and I have been best friends since we were 5 years old.

Since becoming a lawyer, Eason’s explained this concept of “lawyering.”  Apparently law school ingrains this whole new way of thinking, reasoning, and discussing issues.  “Lawyering” is meant to be used in their profession obviously, but often bleeds over into their personal lives as well.  Basically, when an issue arises or discussion starts, lawyers instinctively resort to their training and try to steer the discussion through a precise analytical framework often reserved for legal issues.

Lawyers like to think they are merely applying logic and reason to a particular set a facts, which must lead to only one conclusion (theirs!).  The rest of us just call it arguing.  And sometimes we call it annoying, too. 😉.  If they are really good at it, they can pull it off and “win their case” without the other person even realizing what’s happening. Thankfully, Eason’s been kind enough to hold back her “lawyering” with me throughout our friendship, and when she can’t help herself, she’s usually pretty good about owning it.  Anyway, all you non-lawyers out there….pay attention!  You may be getting “lawyered” and don’t even realize it! 😊  Also, just try to forgive the lawyer, they really can’t help themselves.