the litigation horizon
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The Litigation Horizon. Richard J. Idell The Idell Firm LLP. Litigation Horizon Overview. Potential Plaintiff Theories Products Liability Negligence Breach of Warranty California Consumer Legal Remedies Act Defensive Strategies Class Action Lawsuits. - PowerPoint PPT PresentationTRANSCRIPT
Idell & Seitel LLP, 2008
The Litigation Horizon
Richard J. Idell
The Idell Firm LLP
Idell & Seitel LLP, 2008
Litigation Horizon Overview
Potential Plaintiff Theories Products Liability Negligence Breach of Warranty California Consumer Legal Remedies Act
Defensive Strategies Class Action Lawsuits
Idell & Seitel LLP, 2008
Products Liability: Plaintiff’s Prima Facie Case
Defendant manufactured, distributed or sold the product
The product had a manufacturing defect when it left defendant’s possession
Plaintiff’s use of the product was reasonably foreseeable
Plaintiff was harmed; and The product’s defect was a substantial factor in
causing plaintiff’s harm.See, e.g. Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 134-35.
Idell & Seitel LLP, 2008
Negligence: Prima Facie Case
Defendant had a legal duty to conform to a standard of conduct to protect the plaintiff;
The defendant failed to meet this standard; The defendant’s failure was the proximate or
legal cause of the resulting injury; The plaintiff was damaged.
See, e.g., Ladd v. Cty of San Mateo, 12 Cal.4th 913, 917 (1996)
Idell & Seitel LLP, 2008
Breach of Implied Statutory Warranties
Implied warranty of merchantability. Cal. Civ. C. § 1792.
Implied warranty of fitness for a particular purpose. Cal. Civ. C. § 1792.1.
Implied warranties can only be disclaimed by conspicuous warning that product is sold “as-is.” Cal. Civ. C. § 1792.4
Idell & Seitel LLP, 2008
California Consumer Legal Remedies Act
California Civil Code Sections 1750 to 1784
Prohibits deceptive practices in a transaction intended to result or which results in the sale or lease of goods to any consumer.
Idell & Seitel LLP, 2008
California Consumer Legal Remedies Act
Required Notice Period At least 30 days before filing suit, the consumer
must give written notice to the defendant by registered or certified mail.
If prospective defendant agrees to an appropriate correction or other remedy within 30 days, plaintiff cannot sue. This defense does not apply to class-actions
under the CLRA, which will be discussed later.
Idell & Seitel LLP, 2008
Defenses to Claims that Video Games Cause Epilepsy
Seizures were unrelated to video game play.
The manufacturer provided adequate warnings of triggering of seizure players who were predisposed to epileptic seizures.
Plaintiff failed to heed the warnings.
Idell & Seitel LLP, 2008
General Defenses for Strict Product Liability Lawsuits
The defect was not the proximate cause of the injury.
The seller provided adequate warning.
Plaintiff misused the product.
Intervening third-party culpability.
Idell & Seitel LLP, 2008
General Defenses for Negligence Lawsuits
Plaintiff’s comparative negligence
Plaintiff’s assumption of risk
Plaintiff’s failure to mitigate damages
Idell & Seitel LLP, 2008
General Defense to Breach of Implied Warranty
Civil Code 1792.4 states that a “conspicuous” disclaimer, attached to product at the time of sale, must say: Goods are being sold on an “as is” or “with all faults” basis; Entire risk as to the quality and performance of the goods
is with the buyer; Should the goods prove defective following their purchase,
the buyer and not the manufacturer assumes the cost of all necessary service or repair.
Idell & Seitel LLP, 2008
Recent Consumer Cases Involving Epilepsy
Roccaforte v. Nintendo of America, 917 So. 2d 1143 (2005). Parents sued Nintendo after their child suffered
violent seizures while playing video games. After a seven-day trial, jury found in favor of
Nintendo. Appeals court ordered new trial because of
Nintendo’s discovery abuses.
Idell & Seitel LLP, 2008
Spypro New York Litigation
In March 2007, several gaming web sites reported that a plaintiff sued Vivendi Games, Sierroa Entertainment and Sony after her infant had an epileptic seizure while playing a video game.
The suit was reportedly brought in Supreme Court of New York (state trial court).
No reported decision is available.
Idell & Seitel LLP, 2008
Cases Regarding Violent Content of Video Games
James v. Meow, 300 F.3d 683 (6th Cir. 2002)
High school student shot several other students. Victims’ parents sued video game and movie companies, alleging that the content of video games and movies had desensitized the shooter to violence and “caused the murders.”
Plaintiffs sued for negligence and products liability.
Idell & Seitel LLP, 2008
James v. Meow, cont.
The court found:
Defendants did not owe a duty to third-party shooting victims.
Murderer’s actions were not reasonably foreseeable to defendants.
Products liability only applies to “tangible” products. The alleged defect – violent content – was intangible. Therefore, products liability did not apply.
Idell & Seitel LLP, 2008
Cases Regarding Violent Content of Video Games
Sanders v. Acclaim Entertainment, Inc., 188 F.Supp. 2d 1264 (D.C. Colo 2002) Plaintiffs sued video game makers, alleging that
violent video games caused the Columbine shootings.
Court concluded: Columbine shootings were not reasonably
foreseeable. Shooters’ criminal acts were a superceding cause of
harm to plaintiffs.
Idell & Seitel LLP, 2008
Sanders, cont.
Court distinguished between tangible and intangible properties. Products liability only applies to tangible
properties. Video game contents are intangible, so there was
no products liability cause of action.
Idell & Seitel LLP, 2008
Cases Regarding Violent Content of Video Games
Wilson v. Midway Games, Inc., 198 F.Supp. 167 (D.C. Conn. 2002) Plaintiff sued Midway for products liability, alleging
that violent video games made her son’s friend stab her son.
As in prior cases, court distinguished between tangible and intangible properties.
It declined to apply products liability to intangible content, such as video game content.
Idell & Seitel LLP, 2008
Cases Regarding Violent Content of Video Games
Video Software Dealers Assoc. v. Maleng, 325 F.Supp. 1180 (W.D. Wa. 2004) Video game manufacturers sued to enjoin
enforcement of a federal law restricting dissemination of violent video games to children.
Court found that video games were protected speech and that the law was unconstitutional because it was not narrowly tailored enough.
Court enjoined enforcement of the law.
Idell & Seitel LLP, 2008
Class-Action Cases
Smith v. Microsoft Corp., 04:08-CV-00061 (S.D. Tex. 1/4/08) Microsoft’s Xbox Live, an online gaming
community, was down for several weeks in December 2007.
Plaintiff filed a class-action lawsuit for breach of contract, breach of warranty and negligent misrepresentation.
Class has not been certified.
Idell & Seitel LLP, 2008
Class-Action Cases
In re. Grand Theft Auto Video Game Consumer Litigation, 1:06-MD-1739 (S.D.N.Y. 2006) Plaintiffs sued for fraud on the basis that the
game should have been rated “Adults Only.” Apparently there was readily available code that
would add sexually graphic content to the game. The settlement agreement, in which defendants
denied all liability, was filed on 11/19/07.
Idell & Seitel LLP, 2008
Class-Action Cases
Nunez v. Microsoft, CV:07-2209 (S.D. Ca. 2007). Class-action lawsuit alleges that Halo 3 video
game, which was designed and sold for use on the Xbox console, makes the Xbox freeze or crash while the game is being played.
Sues for breach of implied warranty of merchantability and fitness for a particular purpose.
Class has not been certified.
Idell & Seitel LLP, 2008
Class-Action Cases
Ray v. Microsoft Corp., 2:06-CV-01720 (W.D. Wash. 2006) Plaintiff alleged that his Xbox 360 console was
destroyed by a software update from Microsoft. Filed a class-action complaint against Microsoft
for breach of contract and negligence. Microsoft moved for summary judgment, saying
he had been wholly reimbursed for his Xbox. The parties stipulated to a dismissal w/ prejudice.
Idell & Seitel LLP, 2008
Prerequisites for Bringing Class Actions in Federal Court
Rule 23(a) requires: The class must be so numerous that joinder is
impractical. There must be common questions of law or fact. The claims or defenses of the class.
representatives must be typical of the class. The representatives must fairly and adequately
protect the interests of the class.
Idell & Seitel LLP, 2008
Grounds for Bringing Class Actions in Federal Court
Plaintiff must show either that: There is a risk of prejudice from separate actions
establishing incompatible standards of conduct; Judgments in individual lawsuits would adversely
affect the rights of other class members; The party opposing the class has acted in a way
applicable to the class generally; or Common questions of law or fact “predominate”
over those affecting individual members.Rule 23(b)
Idell & Seitel LLP, 2008
Prerequisites for Class Action Under Cal. Civ. C. 382
California Civil Code Section 382 establishes two requirements: Existence of an ascertainable class
Depends on class definition, size of class, means of identifying the class
Well-defined community of interest in questions of law and fact involved in the case. Predominant questions of law or fact; Class representatives’ claims are typical of class Class representatives can adequately represent the
class.
Idell & Seitel LLP, 2008
Prerequisites for Class Action Consumer Legal Remedies Act
Cal. Civ. C. § 1781(b) is the only way to bring a class-action under Consumer Legal Remedies Act.
Consumer must put the prospective defendant on notice prior to filing suit.
Total damages must be $1,000.00 or more.
Idell & Seitel LLP, 2008
Prerequisites for Class Action Consumer Legal Remedies Act
The court must permit class certification if: It is impracticable to bring all members of the
claim before the court. The questions of law or fact common to the class
are substantially similar and predominate over individual questions.
Claims and defenses of the representative plaintiffs are typical of the class; and
Representative plaintiffs will fairly and adequately represent everyone’s interests.