Phony Choices

by Dechert LLP

It's hard to draft the Monday post without being unduly influenced by the weekend's bloviations and dissipations. Between the WSJ weekend review section, the NYT Week in Review, the television parade of talking heads, and the requisite pitcher of mojitos on the deck, at least one random and silly Big Thought is certain to weasel its way into our case discussion. This week's semi-pertinent idea comes from a WSJ article on the "Death of Duopoly." The article discusses how binary power is bad for business (e.g., it wasn't good when photographers were stuck with just Kodak or Fuji for their film needs) and also probably bad for the public interest. The focus was on the phony or feckless choices presented by Republicans vs. Democrats. The WSJ presented some of those creepy photo merges, such as Obama and W, Carter and Reagan, and Nixon and Kennedy. The point seemed to be that the two choices are inadequate and usually crumble after a long enough period of consumer dissatisfaction. Thus, digital photography wrecked the Kodak-Fuji duopoly. And wither the Whigs?

Of course, we usually don't see the Next Thing coming. We are plagued by something that has to go down as the best phrase we've heard so far this year: "existence bias." People assume that the status quo will endure. The ultimate point of the WSJ article seemed to be that something new will emerge from the current political gridlock and might already be slouching toward us. Frankly, we were more interested in other examples of sticky choices, such as Celtics-Lakers or Beatles-Stones. (When we were in college, you were supposed to pick sides between the Talking Heads or Springsteen. Decades later, that choice seems as dumb and pointless as Beatles-Stones and now it's obvious from the calm perch of middle age that one can like them both. And for those of us who do, the recent passing of Clarence Clemons is as sad as the long, wailing sax note near the end of "Jungleland." It was, indeed, momentous when the Big Man joined the Band.)

There's a phony choice in the middle of the recent opinion in In re Zicam Cold Remedy, 2011 WL 2181188 (D. Ariz. June 3, 2011). It results in a ruling that is weaker than the mojito from the bottom of the pitcher after most of the ice has melted. The defendant moved for summary judgment on general causation grounds. The plaintiffs claimed that Zicam results in loss of the sense of smell. And if "existence bias" is the phrase of the day, then "anosmia" is the word of the day........

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