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Judge : Couple's lawsuit over CD lyrics can proceed

January 14, 2006|BY DAVID DISHNEAU

A judge refused Friday to dismiss a complaint that Wal-Mart Stores Inc. deceived customers by selling recordings by the rock group Evanescence that contained explicit language without parental advisory labels.

The ruling by Washington County Circuit Judge W. Kennedy Boone means a lawsuit over the group's 2004 CD and DVD, "Anywhere But Home," can proceed.

But Boone also dealt a blow to the plaintiffs by refusing to certify their complaint as a class action. Certification would have made anyone who bought the album in Maryland potentially eligible for compensation. The judge's order allows the plaintiffs to renew the motion.

Attorney Jon D. Pels, representing plaintiffs Trevin and Melanie Skeens, said they would continue to seek a court order forcing Wal-Mart to label recordings that it knows contain explicit language, and to change its policy so that customers offended by such language on unlabeled recordings may obtain refunds.

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The Skeens, of Boonsboro, filed their complaint in December 2004 after their daughter bought the CD for her 13th birthday and played it in the car on the way home. The parents said they were shocked to hear an obscene word in one of the songs, "Thoughtless."

Their complaint alleges Wal-Mart promotes itself as a seller of clean music, but knew the recordings contained foul language. The Skeens assert that a censored version of the song was available at Walmart.com, the retailer's Web site.

In seeking dismissal of the complaint, Wal-Mart argued that the decision to affix a parental advisory label rested with Sony BMG Music Entertainment and its Wind-Up Records subsidiary. The record companies were dropped from the lawsuit last year after agreeing to offer refunds to people who bought the albums at Maryland Wal-Marts.

Wal-Mart also contends that Wal-Mart and Walmart.com are separate corporate entities, and that liability cannot be imputed to one based upon the conduct of the other.

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