Whence Cometh Evil? Making Sense of Human Suffering and COVID-19

CHARLES E. BINKLEY

Surgeon and bioethicist Charles E. Binkley, MD, offers a perspective on how we might make sense of suffering, particularly in light of the present COVID-19 pandemic. Binkley suggests that through suffering, we are paradoxically able to find good, and in this instance, that good might be the practice of social reciprocity.

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Beardsall v. CVS Pharmacy, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1850

Opinion Date: March 24, 2020

Judge: HAMILTON

Areas of Law: Business Law, Commercial Law, Consumer Law

Defendant manufactures aloe vera gel, sold under its own brand and as private‐label versions. Suppliers harvest, fillet, and de-pulp aloe vera leaves. The resulting aloe is pasteurized, filtered, treated with preservatives, and dehydrated for shipping. Defendant reconstitutes the dehydrated aloe and adds stabilizers, thickeners, and preservatives to make the product shelf‐stable. The products are 98% aloe gel and 2% other ingredients. Labels describe the product as aloe vera gel that can be used to treat dry, irritated, or sunburned skin. One label calls the product “100% Pure Aloe Vera Gel.” An asterisk leads to information on the back of the label: “Plus stabilizers and preservatives to insure [sic] potency and efficacy.” Each label contains an ingredient list showing aloe juice and other substances. Plaintiffs brought consumer deception claims, alleging that the products did not contain any aloe vera and lacked acemannan, a compound purportedly responsible for the plant’s therapeutic qualities. Discovery showed those allegations to be false. Plaintiffs changed their theory, claiming that the products were degraded and did not contain enough acemannan so that it was misleading to represent them as “100% Pure Aloe Vera Gel,” and to market the therapeutic effects associated with aloe vera. The Seventh Circuit affirmed summary judgment in favor of the defendants. There was no evidence that some concentration of acemannan is necessary to call a product aloe or to produce a therapeutic effect, nor evidence that consumers care about acemannan concentration.

Rexing Quality Eggs v. Rembrandt Enterprises, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2146

Opinion Date: March 26, 2020

Judge: Diane Pamela Wood

Areas of Law: Business Law, Civil Procedure, Contracts

Rembrandt contracted to supply Rexing with 3,240,000 cage-free eggs every week for a year. Eight months later, Rexing claimed that Rembrandt failed to provide eggs that met the specified quality standards. Rexing sought a declaration that it was excused from accepting any more eggs, and incidental and consequential damages. Rembrandt counterclaimed, seeking damages. The trial court determined that Rexing had unilaterally terminated the contract and that the breach was not excused. Rembrandt was awarded $1,522,302.61 in damages. Rexing voluntarily dismissed its subsequent appeal and filed suit in state court, alleging conversion and deception. Rexing claimed that Rembrandt had refused to return reusable shipping materials, the “EggsCargoSystem,” Rexing had provided. In the first suit, Rexing had sought the value of the EggsCargoSystem as part of the start-up costs that it allegedly incurred in reliance on the agreement. Rembrandt removed the second suit to federal court and argued that the claims were barred by claim-preclusion in light of the district court’s grant of summary judgment in the first suit and that Rexing had improperly split its claims between the two cases. The Seventh Circuit affirmed the dismissal of the second suit. Rexing impermissibly split its claims. Both suits centered around the same controversy. Under Indiana’s doctrine prohibiting claim splitting, a plaintiff cannot bring a new lawsuit based upon the same transaction or occurrence that underlies claims brought in another lawsuit.

United States v. DISH Network L.L.C.

Court: US Court of Appeals for the Seventh Circuit

Docket: 17-3111

Opinion Date: March 26, 2020

Judge: Frank Hoover Easterbrook

Areas of Law: Business Law, Communications Law, Labor & Employment Law

DISH sold its satellite TV service through its own staff plus third parties: “telemarketing vendors”; “full-service retailers” that sold, installed, and serviced satellite gear; and “order-entry retailers” that used phones to sell nationwide. The United States and four states sued DISH and four order-entry retailers. The district court found that the defendants violated the Telemarketing Sales Rule, 16 C.F.R. 310, the Telephone Consumer Protection Act, 47 U.S.C. 227, and related state laws. A $280 million penalty was imposed. DISH appealed concerning the extent to which DISH had to coordinate do-not-call lists with and among these retailers or was otherwise responsible for their acts. The Seventh Circuit affirmed, except for a holding that DISH is liable for “substantially assisting” Star Satellite and its measure of damages; those violations were essentially counted twice. Regardless of the definition of “cause” under the rule, which makes it unlawful for a seller to “cause a telemarketer to engage in” violations, the retailers were DISH's agents, regardless of any contractual disclaimer. They acted directly for DISH, entering orders into DISH’s system; they did not have their own inventory and were not resellers of any kind. The retailers were authorized to sell DISH’s service by phone nationwide; the district court found that DISH knew about these retailers’ wrongful acts, so DISH is liable as the principal.

Jet Midwest International Co. v. Ohadi

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1098

Opinion Date: March 25, 2020

Judge: Lavenski R. Smith

Areas of Law: Business Law

The Eighth Circuit affirmed the district court's order granting Jet Midwest and PMC's motion for a preliminary injunction to prevent Appellant Ohadi and Woolley from foreclosing on the assets of JMG until the parties conduct an expedited trial on the merits of the underlying fraudulent transfer act. The court held that the district court properly applied the Dataphase factors and did not abuse its discretion in making the reasonable decision to grant the preliminary injunction to maintain the status quo and expedite the trial to further develop the record. In this case, the district court did not abuse its discretion in determining that Jet Midwest demonstrated a likelihood of success on the merits where there was no dispute that the sale initially contained parts from Jet Midwest's Aircraft and that Jet Midwest had a purchase money interest in the Aircraft; Jet Midwest would suffer irreparable harm if Ohadi and Woolley were allowed to proceed with the foreclosure sale; Ohadi and Woolley's burden is outweighed by the serious potential harm Jet Midwest would face if Ohadi and Woolley conducted a foreclosure sale of its possible interests; and the district court did not abuse its discretion in finding that the public interest favored enforcing the injunction to prevent fraud.

Medical Marijuana, Inc. v. ProjectCBD.com

Court: California Courts of Appeal

Docket: D074755(Fourth Appellate District)

Opinion Date: March 20, 2020

Judge: Cynthia Aaron

Areas of Law: Business Law, Civil Procedure

The Project CBD defendants, ProjectCBD.com, website founder Martin Lee, and article author Aaron Cantu, appealed a trial court's order denying their special motion to strike the three causes of action asserted in the second amended complaint. The Project CBD defendants contended the trial court erred in denying their motion because the plaintiffs failed to demonstrate a probability of prevailing on their claims. This case arose from the publication of an article regarding the safety of a cannabidiol (CBD) product, Real Scientific Hemp Oil (RSHO), sold by plaintiffs Medical Marijuana, Inc. (MMI) and HempMeds PX, LLC (HempMeds) (jointly the plaintiffs). The plaintiffs contended the article contained false information about RSHO and that the named defendants who were involved in the publication of the article, should be held liable for libel, false light, and unfair competition due to their publication of the article. After review, the Court of Appeal concluded the trial court erred in determining that the plaintiffs demonstrated a probability of prevailing on the merits of their claims. The Court therefore reversed the trial court's order and remanded the matter with directions to enter an order granting the Project CBD defendants' anti-SLAPP motion.

Phoenix Lighting Group, LLC v. Genlyte Thomas Group, LLC

Court: Supreme Court of Ohio

Citation: 2020-Ohio-1056

Opinion Date: March 25, 2020

Judge: Stewart

Areas of Law: Business Law

In this appeal concerning the trial court's award of $3,983,014 in attorney fees the Supreme Court reversed the judgment of the court of appeals affirming the award of attorney fees, holding that the "lodestar" reflected a reasonable fee based on the prevailing market rate for the services rendered by Appellees' attorneys, and therefore, the trial court's enhancement to the lodestar was in error. Appellees were awarded a jury verdict against Appellant for compensatory and punitive damages, treble damages, prejudgment interest, and litigation costs and expenses. In determining attorney fees, the trial court established a lodestar - the reasonable hourly rate multiplied by the number of hours worked - of $1,991,507. Then court then doubled the attorney fees due to the complexity and length of the case and the "highly favorable outcome" obtained by the attorneys. The court of appeals affirmed the award. The Supreme Court reversed, holding that Appellees' attorneys were reasonably compensated, so there should have been no enhancement to the lodestar.