Internet Radio: eBay v. MercExchange

The Supreme Court recently turned the injunction pendulum — giving district courts a looser hand to determine whether to issue an injunction.  Intel’s GC Bruce Sewell says this:
There will now be a greater willingness to take cases to trial . . . [since] if you lose a case there is a potential you can compensate the plaintiff in dollars rather than having your whole company shut down

I was recently part of an online radio program discussing the eBay case.  The “Coast-to-Coast” discussion included Rachel Krevans from MoFo and the Legal Talk Network show was hosted by attorneys J. Craig Williams and Robert Ambrogi.

17 thoughts on “Internet Radio: eBay v. MercExchange

  1. OK Malcolm, we know what should happen if the paper cup carries the mark McDONALDS. But what if it had carried the mark “Malcolm McMooney’s Little Old Organic Farm Shop”. Would the legal action against McMooney and his tiny one man business then be well-founded, or frivolous, or vexatious? Seems to me that if the fault is the same and the damage the same then the quantum should be the same, regardless who prepared the cup of coffee. But maybe I’m overlooking the US-special “punies” factor. “The jury sent a message”. You’re right again. It travelled all over the world.

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  2. MaxDrei – you never fail to stupefy beyond belief.

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  3. “in the inherently dangerous business of selling 24 million paper buckets of boiling water with ill-fitting lids”

    According to Wikipedia, it was an incident rate of 1 report per 24 million cups of coffee sold and the woman’s injuries were significantly increased by the fact that after spilling the coffee she sat in the pool of hot coffee for 90 seconds.

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  4. Sort of ironic to have this discussin with Bruce Sewell’s quote looming above: “There will now be a greater willingness to take cases to trial . . . [since] if you lose a case there is a potential you can compensate the plaintiff in dollars”

    What got (and continues to get) the tort reformers’ undies in a bundle about this case is the amount of money that McD’s was forced to pay in compensatory and punies.

    But who’s to blame for those figures? Here we have a company that sold 24 million cups of hot black swill that was unwilling to contribute meaningfully to help a customer who was horribly burned when the product spilled on her crotch. The jury knew that. They sent a message.

    And then we have the classic American response: “outraged” “regular folks” call their Congressmen demanding that wonderful megacorporations like McD’s be protected from such “frivolous” charges. After all, if McD’s goes out of business, then where will families go to celebrate Father’s Day with a nutricious, flavorful and inexpensive meal?

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  5. On the one hand, 100 is the average intelligence quotient, and every adult has a vote. A pint of boiling water between my thighs is scary enough, but that thought is even scarier. On the other hand, out of the blue come the words “Some people are hopelessly ignorant and will never get it” and blow me down, I have to agree with that last contributor.

    700 “reports” of spills, over 11 years, in the inherently dangerous business of selling 24 million paper buckets of boiling water with ill-fitting lids. Is that a trivial number, or what?

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  6. Yes, John Smith, you are qualified for the Butt Hole Club. Some people are hopelessly ignorant and will never get it:
    “McDonald’s had received at least 700 reports of coffee burns ranging from mild to third degree, and had settled claims arising from scalding injuries for more than $500,000.”
    Even if the 81 year old woman wasn’t the brightest bulb in the pack, even if she wouldn’t have understood the technical implications of hotter that normal coffee, even if she had begun suffering from old age, so what? Accidents happen. It was her first McDonald’s hot coffee accident. It was McDonald’s 701st. Is that so hard for you butt holes to figure out? I guess it’s true, you can’t fix stupid.

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  7. I am now a member of OBSP’s club.

    Old lady goes to McDonalds, not for the first time.

    Since she is driving a car, she is not senile so she knows that McD coffee is hot and maybe went there, just like millions of others, because the coffee was hot.

    She does not put the cup in a cup holder, but rather between her legs.

    Being older than 7, she should know: paper cups are squishy, liquids spill, hot liquids burn.

    Coffee spills. She gets scalded.

    Duh

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  8. “Anyone who would post comments without reading the link is affected and belongs to the Butt Hole Club”

    Jimmy Castor, is that you?

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  9. To the two butt holes above, at least you could have the courtesy to read the story on the link posted above before making asses of yourselves. No wonder your comments are shallow and worthless.
    link to vanfirm.com
    Anyone who doesn’t find McDonald’s culpable after reading the link is a cad. Anyone who would post comments without reading the link is affected and belongs to the Butt Hole Club: “so eager to pride themselves on superior sophistication in the very act of being ignorant.”

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  10. Thanks Malcolm. Key point “The jury found her 20% at fault”. In England, the longest ever case in the history of civil litigation was when McDonalds brought proceedings against two penniless people who were handing out leaflets outside a branch of McDonalds (low nutrition, damage to the environment etc). The leafletters conducted their own defence. On the evidence (bravo the two leafletters) the court found for McDonalds on some counts, but against McDonalds on all the others. People over here, looking at the scalding incident, would think: When the beaker tips over, who’s fault could that possibly be, but that of the customer herself, 100%.

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  11. “1)Is McDonalds coffee really 20 degrees hotter than what you get, everywhere else? 2) Did McDonalds (for marketing reasons) deliberately leave the 20 degree evidence unchallenged?”

    I have no idea. I do know that this old lady got burned real bad by some hot coffee and McDonald’s was forced to toss her a few dimes. The jury found her 20% at fault.

    The Wikipedia entry on the case has an interesting comment: “Other documents obtained from McDonald’s showed that from 1982 to 1992 the company had received more than 700 reports of people burnt by McDonald’s coffee to varying degrees of severity, and had settled claims arising from scalding injuries for more than $500,000. This represents about one complaint per 24 million cups of coffee sold by McDonald’s”

    That’s a lot of coffee. A lot of McDonald’s coffee. What sort of profit does McD’s make on each cup, I wonder?

    So when Liebeck approaches McD’s with her boiled crotch and medical bills (before any suit is filed), the best McD’s can do is offer her $800?! Was McD’s afraid that other consumers were going to intentionally dump hot coffee on themselves so they could get reimbursed for their third degree burns? I mean, it’s one thing to collect the odd amputated finger and toss it into your Wendy’s chili, or maybe munch on a roach and puke it up in Taco Bell. But intentionally dumping boiling water on your privates so you can get reimbursed for medical bills?

    That’s shameless.

    Then again, so is this:

    link to youtube.com

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  12. Tom, the “ignorance”, the “forces”, the “pride” are not really to be found in my comment above, are they? Was it “blisteringly” or “special” that upset you so much?

    Why do you say that ignorance is “nice”? It’s dangerous, isn’t it? Contributing to this blog has made me wiser. That’s why I do it.

    Let’s agree that ignorant people don’t realise they are ignorant. That’s God’s kindness, isn’t it, for if they were to realise how ignorant they really are, they might get depressed.

    There are thousands of McDonalds outlets distributed over old Europe. When it comes to everyday household things like boiling water, good old “common sense” has a role to play. Isn’t common sense what the US Supreme Court is newly exhorting everybody to use?

    Back to the questions I raised, hoping seriously for a serious answer. 1)Is McDonalds coffee really 20 degrees hotter than what you get, everywhere else? 2) Did McDonalds (for marketing reasons) deliberately leave the 20 degree evidence unchallenged?

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  13. “The case is still, even now, years afterwards, putting the name McDonalds on everybody’s lips, at least here in Europe, and is a by-word for how special the US legal system is, in making a company pay for something that’s not its fault.”

    Nice of course to see that in Europe too you can easily find forces of ignorance so similar to that of Rush Limbaugh.

    Kinda funny how Europeans are so eager to pride themselves on superior sophistication in the very act of being ignorant.

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  14. The interesting thing for me is whether it’s true that coffee at McDonalds really is served 20 degrees hotter than everywhere else. I know that’s what the evidence established, but why didn’t McDonalds come through with evidence establishing the contrary? On my trips to USA, coffee served in paper cups was always blisteringly hot, regardless where I bought it (so I knew it was not a good idea to drive with a pint of the stuff between my thighs). The case is still, even now, years afterwards, putting the name McDonalds on everybody’s lips, at least here in Europe, and is a by-word for how special the US legal system is, in making a company pay for something that’s not its fault. The money McDonalds paid to the Plaintiff is presumably cheap, for that level of publicity.

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  15. ” It’s just like McDonald’s. Some woman burns herself with coffee and sues them…and wins. That should never have happened.”

    LOL. Apparently “online shopping” gets his information from Rush Limbaugh and Co. Meanwhile, back in the real world …

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  16. Online Shopping,

    I suggest you follow this link, which describes in greater detail what jurors really found out in that case, and see if you still think that the case was an obvious miscarriage of justice.

    link to vanfirm.com

    And if, afterwards, you find yourself not so convinced in the McDonald’s case, perhaps you might reconsider the patent cases you likewise now think are open and shut?

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  17. Shouldn’t there really be some major protection for companies that keep them from having to go to trial with fraudulent cases that may still win in front of a judge? I’ve heard of business insurance that helps to cover, or completely covers your backside if you have a lawsuit. Isn’t there some way to use that in these laws to make it easier for businesses, especially those with technology-backgrounds and foregrounds, to keep themselves from being bombarded with frivolous lawsuits? It’s just like McDonald’s. Some woman burns herself with coffee and sues them…and wins. That should never have happened. I personally would like to see a set of rules on what businesses can be held liable for BEFORE we create a standard that forces businesses into lengthy and/or costly trials. Isn’t there anything that can be done to genuinely protect the interests of both businesses and consumers at the same time?

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