3 replies

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Toof_75_75

@mikel81:

The picture in the post reminds me of this video...

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gStein_*|bringing starpipe back|*

@mikel81: no, Sunday.

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Laura Northrup

@gStein_has joined the star bandwagon: Pretty much.

Also, best avatar ever.

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The Marionette

Why would anyone be surprised by the outcome? That would be like someone trying to sue microsoft because they told them the idea of integrating other os stuff into their newer windows (years ago) and ms went ahead and did it. Then years later (after \"x\" feature was put in) the person tries suing ms.

4 replies

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The Marionette

@The Marionette: Maybe I should've rephrased what I said. To translate what I said it's kinda gutsy for a person (or even a couple of people in this case) to go go after a big company for money. So no ludwik, it's not fixed.

@mythago: Pepsico and MS are both big companies, but considering pepsico being $96.37 Billion and Microsoft being $253.23 Billion, I'm sure microsoft would've been more at the top of their game at keeping track of pending lawsuits.

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ludwigk

@The Marionette: And after filing papers in court, and notifying ms, MS failing to respond in a timely manner, causing a judge to enter summary judgment against them for failure to defend themselves.

There, fixed.

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Esquire99

@ludwigk:
Summary Judgment is not the same as a default judgment. Summary judgment is granted based on the merits, not on a failure to appear. If you don't know what the terms mean don't use them.

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mythago

@The Marionette: And through a series of incompetence and big-organization dumbassery, Microsoft doesn't bother to respond to the lawsuit?

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coren

It shouldn't have been vacated. I mean ok the law disfavors it - doesn't disallow, just disfavors. And sure the plaintiffs wouldn't be harmed...well except we're taking away that big ol judgment they got. And if the underlying complaint is defective, maybe Pepsi should have showed up in the first place to, oh, I don't know, dispute it?

4 replies

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XTC46

@coren: Default judgments are frequently overturned in favor of actually trying a case on its merits, not on one parties ability to meet a deadline. A month or so back we all cheered when a default judgment won by cash for gold was over turned becasue the woman they sued just didn't know what she was supposed to do, and that's a good thing. Small things can fall through the cracks at big companies, it happens, but as long as they didn't intentionally blow off the case, there is no reason they shouldnt be allowed to have it heard.

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coren

@xtc46 - thinksmarter on twitter: While I see your point, there's a difference between an individual who is unaware of the legal process (and may have been unaware of the filing, I am not sure, although I doubt it) and a ginormous company who has a legal team or law firm on retainer.

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tmed

@coren: In some ways, however, the huge corporation has MORE excuse to misplace the summons. A certified letter to an individual is typically received and signed by that individual or a household member. Sent to a corporation, the summons likely has a much tougher route to get to a responsible party.

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coren

@coren: Then again, IANAL

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Esquire99

@coren:
The plaintiffs wouldn't be harmed in the sense that they won't be in any worse position absent the default. Taking away the judgment doesn't count as \"harm\" when the judge is deciding whether or not to vacate the default.

If the plaintiffs think they have a good case, they shouldn't be afraid of trying it on the merits.

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PølάrβǽЯ

I didn't realize you could patent the idea of selling water. If so, every municipality in the country should be sued.

As for the vacation, if someone sues me and I don't show up for court, I'm screwed. Why should Pepsi be given special treatment?

November 13, 2009 4:36 PM

3 replies

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jswilson64

@Ursus Maritimus: Pepsi gets a do-over because they have duffel bags full of money to pay to lawyers. You don't get a do-over because you don't.

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bohemian

@Ursus Maritimus: That was my first thought on this. Why is Pepsi getting special treatment and a \"do over\". I doubt an individual could get a default un-done by the court. They have a real problem in states like SD. The bar for contacting the other party is really low. You can make attempts to send a certified letter, have it send back as unclaimed and move forward. So the other party can send it to any address they please, including a known old address or the zoo and still move forward with the case. I know a few people who ended up with default judgments without their knowledge this way.

How Pepsi was allowed to ignore the suit AND get a do-over is just disgusting.

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Esquire99

@bohemian:
Defaults are not hard to get vacated, by anyone, unless you literally have no excuse for not showing up. Unless you go in and say \"Yes, I knew about the hearing and I chose not to show up because I simply didn't want to,\" judges are generally amendable to vacating and trying the case on the merits.

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ChemicallyInert

@Esquire99: Am I to assume from your screen-name that you are a lawyer/law student. (Not trying to make a point, just genuinely curious)

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menty666

I think the important thing to keep in mind here is that there really is no hard and fast 'law', just shades of gray that vary depending on how many lawyers you can afford.

I'm not saying it was a good judgement, frankly they lost because of one incompetent employee, but still, it just shows that laws don't actually apply anymore to whiny crybabies.

2 replies

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humphrmi

@menty666: I'm not sure that \"how many lawyers you can afford\" affects reversing a default judgment. I've gotten a default judgment thrown out, pro-se. You just tell the judge that you never received notification of the court date.

Default judgments are pretty much universally thrown out just by asking nice.

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Esquire99

@humphrmi:
+1.

It's generally not hard to get a Default Judgment vacated unless you walk into court and tell the judge that the only reason you didn't show up was because you didn't want to.

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humphrmi

@Esquire99: In fact, I knew an attorney who used default judgments as a tool - in cases where a delay tactic is being used, attorneys tell their clients not to show up for the first court date, then they get the default judgment vacated later. It buys them more time, and when it is vacated, it gives the plaintiffs a sense of having their chain yanked by the defendant. In fact, I wouldn't be surprised if Pepsi did this on purpose... now after some elation about getting a default judgment for 1 billion dollars, the plaintiffs have nothing and need to go back to court to prove their case -- deflating any sense of victory that they had.

And, again, it doesn't really require a lawyer - the motion to vacate is pretty simple in most courts.

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mythago

@Esquire99: Same. I just had a default judgment vacated because the papers were served and the hearing happened during a time I was so sick that I couldn't get out of bed (much less, you know, drive to court).

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ZeGoggles

GET THAT CAT AWAY FROM THE SINK RIGHT NOW.

..Sorry. I always wanted to \"yell\" at a cat picture. Carry on. Happy Sunday.

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Trai_Dep

The simple fact is that PepsiCo's inept law team wasted both the court's and the plaintiff's time, as well as the bandwidth of cases that care enough to actually show up for their appointed case.
While NO case should be lost for this sort of screw-up (not just when a mega-corp that drops the ball), there should be a prohibitively costly sanction for missing a trial, say, 10x whatever everyone else's time costs or 10% of whatever the final judgement turns out to be (even if the tardy team wins).

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Esquire99

@Trai_Dep:
Pepsi didn't miss a \"trial,\" it failed to answer, or otherwise respond to, the complaint in the prescribed time. There likely wasn't a significant amount of time wasted by anyone and the \"sanction\" for that comes in the form of the cost and time necessary to prepare a motion to vacate.

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Trai_Dep

@Esquire99: They're professional adults who are highly paid to, among other things, read a calendar and their mail. It's absurd.
They should be punished. (Again, everyone should be able to easily vacate these things, but it should sting)

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XTC46

@Trai_Dep: everyone is typically easily able to vacate these things. If you read the original complaint, the legal team didn't disregard this, a secretary didn't think it was as important as a board meeting, and didn't tell anyone. And Ill bet she does get punished.

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treimel

@xtc46 - thinksmarter on twitter:

Well, she probably shouldn't be punished. I know its counter-intuitive, but default judgments aren't usually a big deal.

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Trai_Dep

@xtc46 - thinksmarter on twitter: OK, thanks. I hoped this was the case, so it's good to hear.

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mrsultana can't get a password to work

I gotta admit, the Pepsico lawyer made me laugh. Essentially, their argument was, \"If those guys are right, they'll still win the trial. If they're wrong, then they shouldn't have won in the first place.\"
Getting someone to acquiesce by the ol' \"if you're innocent, you have nothing to worry about\" defense is something usually reserved for people advocating me giving up my first amendment rights.

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MooseOfReason

\"I want $1 billion because they became successful.\"

I mean, I don't sympathize with the plaintiffs at all.

2 replies

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Inglix_the_Mad

@MooseOfReason: Then again I can't exactly sympathize with PepsiCo here. Not exactly rocket science to respond to a court order.

November 13, 2009 4:36 PM

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secret_curse

@Inglix_the_Mad: Well, it would require psychic powers to respond to a court order you've never read. Pepsico claims their lawyers never actually saw the court order because it wasn't passed on by the secretary that signed for the letter. Now that they've been informed of the claim, they wish to try the case on merit. That seems reasonable to me...

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ChemicallyInert

On the one hand I like seeing Pepsi get the ol' one-two. But, on the other hand I see the judge's point and I'm sure that favoritism or BS wasn't an issue here. I feel like a kid who just conceded that he should in fact share his favorite toys with his siblings.

*Hangs head*
\"Okay...\"

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Thaddeus

As I said in the previous post leading up to this one: Had the situation been reversed, Pepsi would be fighting to keep the default judgment on their behalf.

Then everyone started yelling.

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Al Swearengen

I love the \"law disfavors it argument\". Those are not solid rules, it is just something a judge can use to reverse a decision he doesn't like. If the law really disfavored default judgments they wouldn't be allowed at all. I did think the case was B.S., but if a huge corporation is arrogant enough to not even respond to a complaint, then they should be hit with a default judgment. And now all that will happen is it gets litgated for the next 10 years, millions of dollars are wasted, and then they will settle and everyone eats their own fees. How about the court disfavoring wasting everyone's time?

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Blueskylaw

Purifying and selling tap water can be considered a proprietary idea?

Can grinding up coffee beans and boiling them in water also be considered a proprietary idea?

Also, Pepsi and their lawyers were arrogant when they failed to acknowledge the suit. The old standby \"paperwork got lost somewhere\" doesn't work anymore when you're talking billions of Dollars.

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katstermonster

@Blueskylaw: But if a secretary really didn't pass along the mail, and NO ONE from the legal team even knew there was a complaint, I fail to see how that's arrogance. That could very well be a cover story, and the legal team themselves \"lost\" the complaint in a trash can, but if the story is true, it wasn't arrogance. Just...stupidity.