For your enjoyment, here are some 2019 holiday themed legal issues only Scrooge could love . . . threatening litigation over holiday sweaters, attacking favorite holiday candy and gifts, endless HOA litigation over holiday decorating, and “stealing” from the Grinch. Bah! Humbug!

The Coke Snorting Santa Sweater –

A Colombian government agency is threatening to sue Walmart for selling a holiday sweater that portrays a snowy Santa Claus with three lines of “grade A Colombian” cocaine. Advertised as “Men’s Let it Snow Ugly Christmas Sweater,” the website description of the sweater states:

“We all know how snow works. It’s white, powdery and the best snow comes straight from South America. That’s bad news for jolly old St. Nick, who lives far away in the North Pole. That’s why Santa really likes to savor the moment when he gets his hands on some quality, grade A Colombian snow.”

The product description said it “captures that moment when Santa is finally ready to enjoy that sweet, imported snow.”

Walmart has apologized and removed the listing, which was being sold by a third-party seller on the retailer’s Canada division website, stating that the seller “do[es] not represent Walmart Canada’s values and ha[s] no place on our website,” a spokesman said in a statement, according to NBC News. “We apologize for any unintended offense this may have caused.”

The Washington Post reports that the Columbian National Agency for Legal Defense of the State is still demanding that Walmart compensate the country of Colombia for the harm the listing caused. “The Walmart sweater is an offense to the country,” Camilo Gómez Alzate, director of the agency, said, according to the newspaper. “It generates damage to the legal products of Colombia and damage to the country’s reputation. Although Walmart apologized, the damage was done.” If Walmart fails to compensate the Colombian government, Gómez said the agency would file a lawsuit.

No word on Santa, but sources report he is still playing reindeer games.

New Class Action Over … Peanut Butter Cups!

https://www.foxnews.com/food-drink/hersheys-co-sued-misleading-white-reeses

A new class action lawsuit accuses The Hershey Company of ‘misleading’ packaging on White Reese’s Peanut Butter Cups. In a case filed on June 26, 2019 in the U.S. District Court for the Eastern District of New York against The Hershey Co. (“Hershey”) plaintiffs, Curtis Winston and “Jane Doe”, filed a complaint on behalf of themselves and others alleging deceptive trade practices, negligent misrepresentation, breach of express and implied warranty, fraud and unjust enrichment. Winston et al v. The Hershey Company, Case No. 1:19-cv-03735-ENV-JO1:19-cv-03735 (E.D.N.Y.).

As reported by Fox News, https://www.foxnews.com/food-drink/hersheys-co-sued-misleading-white-reeses, the suit alleges that the light-colored alternative to the milk chocolate version uses deceptive marketing because it does not contain “white chocolate.” The peanut butter cups are instead covered in a “white crème,” which is listed on the company’s website, Fox News says. The lawsuit alleges that since other Hershey flavors – milk and dark chocolate – are actual chocolate, consumers assume the white version is made with white chocolate. “Defendant has taken affirmative steps for consumers to mistakenly believe the products contain white chocolate and has intentionally failed to correct the misimpressions,” the suit states, according to Fox News. “The absence of any modifying term before or after ‘white’ renders the products misleading because consumers are not able to differentiate between white chocolate and cheaper substitutes like compound or confectionary coating made from vegetable oils when the term ‘white’ is applied to a product traditionally associated with chocolate.”

Notably, however, the White Reese’s wrapper does not say “white chocolate.”

Sweet News . . . according to this author’s research, no pre-holiday injunction or stocking seizure is threatened – so no need for hoarding! The initial conference previously scheduled in this matter for December 19, 2019 has been rescheduled for April 16, 2020 and discovery has been stayed by court order “pending the resolution of [Hershey’s] forthcoming motion to dismiss and the court’s decision on that anticipated motion.” Ordered by Magistrate Judge James Orenstein on 12/10/2019.

On a related note – according to a poll from Monmouth University, more than 36% of Americans say Reese’s Peanut Butter Cups are their favorite candy treat.

Multiple Class Actions Over . . . Gift Cards!

In October of this year, a small number of plaintiffs reportedly filed over 100 virtually identical class action lawsuits in New York federal court. https://www.jdsupra.com/legalnews/the-nightmare-before-christmas-gift-48055/ The lawsuits reportedly allege that retailers, restaurants, and other businesses violate Title III of the Americans with Disabilities Act (“ADA”) and the New York City and State Human Rights Laws by failing to provide gift cards with Braille.

As reported, the lawsuits are in their infancy and it is far from clear that they will survive. There appear to be a number of legal issues that may establish viable defenses. For example, businesses have various options to provide effective communication to individuals with disabilities. The ADA does not specifically require the use of Braille and the ADA does not require businesses to “alter“ inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.

Author Note: There are other gifts you may want to consider—

To borrow a quote from A Christmas Story:

Ralphie: I want an Official Red Ryder Carbine-Action Two-Hundred-Shot Range Model Air Rifle!

Santa Claus: You’ll shoot your eye out, kid.

Or to quote Bull Durham: “candlesticks always make a nice gift. . . .”

Tales of HOA Grinches – no more Dolly the Camel!

Dolly the Camel – https://firstliberty.org/cases/christmas-lights/#simple1

In past years, Jeremy and Kristy Morris hosted a Christmas display at their home in the Hayden, Idaho-area, asking visitors for donations to charities that assist those with childhood cancer and or who have suffered abuse and neglect. The display included elaborate Christmas lights, featured a live camel and donkey as well as a Santa and music and ran for two years until halted by an HOA and litigation. See https://firstliberty.org/cases/christmas-lights/#simple1

The conflict began in 2014 when the Morrises planned to move to a new home and they let their HOA know of their intention to host a Christmas display to ensure compliance with HOA regulations.

The HOA’s response reportedly stated, “I am somewhat hesitant in bringing up the fact that some of our residents are non-Christians or of another faith and I don’t even want to think of the problems that could bring up. It is not the intention of the Board to discourage you from becoming part of our great neighborhood but we do not wish to become entwined in expensive litigation to enforce long-standing rules and regulations and fill our neighborhood with the hundreds of people and possible undesirables.”

In 2017 the Morrises sued the HOA for trying to block the display. In response, the HOA countersued. After a trial, an Idaho jury found that the HOA engaged in religious discrimination against the Morrises and awarded them $60,000 in compensatory damages and $15,000 in punitive damages. The jury also found that a letter sent by the HOA in 2014 showed “preference that a non-religious individual” should purchase the home.

However, it wasn’t over. As reported in the Inlander, https://www.inlander.com/spokane/why-an-idaho-judge-just-undid-the-controversial-hayden-christmas-house-jury-verdict/Content?oid=17238655, in April 2019, the Idaho district court judge reversed the jury and concluded that religious discrimination had not occurred. In addition, he imposed an injunction preventing the Morrises from decorating their home for Christmas, and imposed thousands of dollars of attorney’s fees on the Morrises.

And, it is still not over. As reported by First Liberty, in May 2019, attorneys with First Liberty and the law firm Gibson Dunn & Crutcher, LLP filed an appeal at the U.S. Court of Appeals for the Ninth Circuit urging the court to reverse the Idaho judge’s decision. https://www.globenewswire.com/news-release/2019/10/14/1929307/0/en/Judge-s-Decision-to-Overrule-Jury-Over-Christmas-Lights-Case-Appealed-to-Ninth-Circuit.html

It appears this case could be headed all the way to the U.S. Supreme Court depending on the outcome at the Ninth Circuit. The docket shows that the case was unsuccessfully mediated on July 1, 2019 and has now been released from the mediation program. Moreover, the Morrises are represented by a team with Supreme Court experience including Allyson Ho, partner at Gibson, Dunn & Crutcher and veteran Supreme Court advocate, as well as Katherine Crawford Yarger who clerked for Associate Justice Clarence Thomas during the 2012-2013 term and previously clerked for Judge Neil M. Gorsuch when he was with the United States Court of Appeals for the Tenth Circuit

Note: No date has been set for Ninth Circuit argument and more critically no word on Dolly the camel – or the name of her donkey friend.

Tales of HOA Grinches continued – we don’t care what you are celebrating . . . don’t

As reported by WTOP, https://wtop.com/loudoun-county/2019/08/how-a-loudoun-co-familys-year-round-holiday-lights-sparked-a-lawsuit/ the Virginia’s Supreme Court recently overturned a Loudon County Circuit Court case awarding a monetary judgment, injunctive relief, and attorney fees and costs to Loudon County HOA in its suit against SanJay and Sona Sainani for violations of the HOA’s guidelines governing the use of holiday decorations.

The family reportedly displayed a string of exterior lights throughout the year on both their front door and on their back-deck railing in celebration of several Hindu, Sindhi and Sikh religious holidays throughout the year.

The HOA initially fined and then successfully sued the family in Loudon County Circuit Court. http://www.courts.state.va.us/opinions/opnscvwp/1181037.pdf The circuit court entered judgment for the HOA and awarded $884 in fines and more than $39,000 in attorney fees and costs. The lower court found that the lights at issue “were on 24/7” for “at least 300 days a year” in violation of the seasonal guidelines that prohibited leaving lights on after midnight and displaying lights outside of the permitted holiday periods (Halloween, Thanksgiving, winter holidays and the Fourth of July).

On August 26, 2019, the Virginia Supreme Court held the HOA’s seasonal guidelines were unenforceable and reversed the lower court’s decision. The Virginia Supreme Court said the HOA’s restrictive covenants did not adequately specify the conditions in which the lights would be against the rules: “We reject the HOA’s assertions that it has the ‘broad’ authority to adopt such design-control rules and that it has the implied power to regulate the aesthetics of individually-owned lots.” Sainani v. Belmont Glen Homeowners Ass’n, 831 S.E.2d 662 (Va. 2019); also available at http://www.courts.state.va.us/opinions/opnscvwp/1181037.pdf.

Author Note: The case has been remanded for further proceedings.

Tales of HOA Grinches continued – we don’t care if you are 8 months pregnant

As reported by multiple news outlets, in one San Antonio planned community, Nick Simonis Jr. and his 7-year-old son decided to start decorating for Christmas in November this year because his wife, Claudia, is pregnant with their second child, with a due date of December 25th. They started decorating early in case the new baby arrives ahead of schedule. See https://independentamericancommunities.com/2019/11/18/residents-say-bah-humbug-to-the-hoa-grinch/

The family’s holiday decor includes a life-size smiling snowman, an inflatable helicopter — piloted by a reindeer, and with an inflatable Santa hanging off the back, a small tree and a few festive Disney characters in the yard. https://www.amtrib.com/news/20191118/too-early-for-holiday-decor-texas-hoa-says-snowmans-gotta-go

However, the family lives in an HOA-governed community. As reported, Diamond Association Management and Consulting (DAMC) sent the family a letter saying it’s “too soon” to decorate for Christmas. The homeowners were instructed to take down their decorations and wait until it’s “closer to the holiday” to put them back up.

Instead of getting angry, eight months pregnant Claudia Simonis posted a copy of the HOA’s it’s-too-early-to-put-up-decorations-letter on her neighborhood Facebook group, for all 230 members to see. And, according to published reports, here’s what happened.

Neighbors expressed their support of the family to keep their decorations up and other residents put up their own holiday decor, in solidarity with the family.

And, a few days after receiving the HOA’s request, Claudia Simonis added Thanksgiving decorations and the snowman wore a Thanksgiving scarf for Thanksgiving and a scarecrow sat on a reindeer’s back.

To add humor, the Simonis family added an inflatable Grinch to their display, holding a sign that reads. “This is the HOA.”

Author Note: No litigation or word on the baby, but we hope all is calm and well at the Simonis house. And, if it’s a girl, we suggest the name Cindy Lou Who.

A case that made the Grinch’s heart shrink two sizes –

Seuss Enters., Ltd. P’ship v. Comicmix Ltd. Liab. Co., Case No. 3:16-cv-02779-JLS-BGS (S.D. Cal.), (image from Complaint filed June 22, 2017, ECF Document 39, p.13).

The United States District Court for the Southern District of California denied summary judgment to the owner of the copyrights to the works of Theodor S. Geisel, the author and illustrator of the books written under the pseudonym “Dr. Seuss” granted summary judgment in favor of the defendants. See Seuss Enters., Ltd. P’ship v. Comicmix Ltd. Liab. Co., 372 F. Supp. 3d 1101, 1106 (S.D. Cal. 2019).

The defendants created and copyrighted a “Seuss-style” Star Trek book called “Oh, the Places You’ll Boldly Go!” (“Boldly”). Plaintiff, Seuss Enters., Ltd. P’ship, sent defendants letters demanding they cease all use of the copyrighted Seuss works and when defendants refused, filed suit for copyright infringement. The court granted defendants’ motion for summary judgment and denied plaintiff’s, holding that defendants’ Star Trek themed approach to Seuss was fair use, stating: “Boldly is highly transformative. As such, Boldly serves to further ‘the goal of copyright, to promote science and the arts.’. . . Of course, [Seuss’] copyrighted works are also highly creative.” Seuss Enters., Ltd. P’ship, 372 F. Supp. 3d at 1125.

Although defendants “borrowed heavily” from the copyrighted Seuss works, the court ultimately concluded that defendants “took no more than was necessary for their purposes” and that the harm to Seuss’ market was too speculative. Id.

Image of the allegedly infringing work from the Seuss Enters., Ltd. Complaint. Seuss Enters., Ltd. P’ship v. Comicmix Ltd. Liab. Co., Case No. 3:16-cv-02779-JLS-BGS (S.D. Cal.) (image from Complaint filed June 22, 2017, ECF Document 39, p.13).

Author Note: “. . . Don’t you know you’re not supposed to take things that don’t belong to you? What’s the matter with you? You some kind of wild animal?” — The Grinch

Don’t Give Up Those Holiday Decorations Yet – you can repurpose your holiday ornament as a weapon

As reported by Fox News, last month an 88-year-old Korean War vet, Leonard Miller, saved a 10-year-old girl from a dog attack with a plastic holiday nutcracker decoration.

When a frantic neighbor rushed to him for help, after her 10-year-old sister was attacked by a dog, Mr. Miller used the plastic holiday ornament to save her.

See https://fox8.com/2019/11/25/korean-war-vet-saves-girl-from-dog-attack-with-plastic-christmas-decoration/

Author Note: Thank you for your service Mr. Miller. (and we can only imagine the lives you would save with a Red Ryder Carbine-Action Two-Hundred-Shot Range Model Air Rifle!)

Thank you for your invaluable partnership in 2019, and best wishes for a bright and happy 2020!