Friday Links

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So, above, you’ll find the cover of Marc Spector: Moon Knight #17, published way, way back in 1990. “No matter what the jury decides – the secret empire demands death!” That statement seems to suggest that the outcome of the trial is irrelevant. What kind of criminal justice system is Moon Knight facing, anyway? Here’s the rather confusing summary of the issue from Comicvine:

Marc’s trial begins. Meanwhile, Marlene and Frenchie are trying to escape the mercenaries they mistakenly thought would be able to help them free Marc. They bring out the innocent victims of Raposa’s rise to power, and force Marc to look upon them, much to his dismay. Back in New York, Jeff has decided to use Moon Knight’s costume and gadgets in his absence to follow in his father’s footsteps and perform some break and enters. He accidentally stumbles upon a Secret Empire meeting and is almost killed by their security patrol. He manages to escape but is caught on camera in the process. While Marc wonders what his father would think of him right now, Marlene and Frenchie are planning their rescue from a nearby hotel room. Meanwhile, Carmilla takes the stand and Marc notices that she hesitates when asked if her husband had a weapon when he was shot. This makes Marc realise there might be more to the story. The council finds Marc guilty and he is sentenced to hang in 3 days time. Marc’s cellmates are planning their escape, and even though he originally declined their offer to join them, he has now changed his mind.

You know, it’s not easy finding these legally themed comic book covers after doing this for five and a half years.

Don’t forget! You can register for the Halloween CLE planned by our editor, Jim Dedman, by going here!

Our favorite tweet of late is an older one, from June, but it is simply perfect in its sentiment:

Abnormal Use and the Halloween CLE!

As you know, we here at Abnormal Use occasionally speak at – or even plan – CLE conferences and seminars. 2015 is no exception, and our editor, Jim Dedman, has just assembled a heckuva Halloween CLE in conjunction with the Mecklenburg County Bar.

If you seek some frightful legal topics about which to learn, check these out:

Statutory Horror: Actual Laws Governing the Supernatural and Occult
A ghastly look into the real laws that govern the occult and the supernatural in North Carolina. This program will delve into the obscure laws on the books preventing you from falling into classic horror film clichés. We will look at haunted houses, mysterious cults, graveyards, and much more, all the while relying on very real cases, statutes, and governmental regulations addressing these very strange circumstances.

Alienation of Affection: The Cause of Action that Refuses to Die
Alienation of affection remains our state’s scariest cause of action.  Although most states have abandoned this ancient tort, it refuses to die here in North Carolina. Equally frightening is criminal conversation, a closely tied tort sounding in strict liability.  This program will address both of these concepts in detail, including the elements of each, practical considerations in filing and trying such suits, and the perils of pursuing these claims.

The Ashley Madison Hack: Legal Frights Waiting To Happen
Of course, by now, you’ve heard about the Ashley Madison website, which purports to facilitate adultery by linking married individuals through its dating website. You’ve also likely heard about the hack of that website and the release of information relating to its subscribers and their various “preferences.” There may be no more terrifying news for parties in family law cases or tort litigants pursuing loss of consortium claims! This presentation will discuss the potential litigation issues that could arise from this hack and others like it.

Strange But True: Uncommon Malpractice Cases and Ethics Violations
You’ve heard the old adage, you can’t make this stuff up?  This program will offer true stories of uncommon challenges to lawyers and the malpractice cases and ethics violations they cause.  You’ll leave with our top tips to avoid the same fate from such bugaboos like:

– The Horrors of Email Scammers – This Client is Too Good to Be True
– When Slimy Clients Sue Their Attorneys
– The Lie Down With Snakes Cases
– Angry Partners and Ugly Firm Breakups — Firm Dysfunction May Cause Ethical Heartburn
– Ignore Warning Signs at Your Peril – Keep an Eye on Your Partner
– The Incredible Hulk Claims – Unrestrained Anger Will Get You in Trouble

That’s right, folks! Those are the four components of the CLE, titled “Scary Laws, Torts, and Crimes (and Ashley Madison): A Halloween CLE,” which will be held on October 29 in Charlotte, North Carolina. Registration information can be found here.

New South Carolina Court of Appeals Order Affects Notice of Entry of Master-In-Equity Order

Practice alert! If you litigate cases in South Carolina, you should be aware of a new court of appeals case, Wells Fargo Bank, N.A. v. Fallon Properties South Carolina, LLC, et al, No. 2015-000157 (S.C. Ct. App. August 26, 2015). This case states that an email from the office of a master-in-equity containing an order that was later appealed is considered notice of entry of that order. Accordingly the court of appeals denied a petition for appeal that was received 31 days after the email and 28 days after the hard copy receipt. Calendar accordingly.

Suits Filed Against Ashley Madison Over Data Breach

Ashley Madison Blog Post

Reportedly, a class action lawsuit has now been filed in California by a “John Doe” plaintiff.  A summary of the suit from Forbes:

Doe is filing on behalf of all U.S. residents who signed up for the website, alleging that Ashley Madison did not take “necessary and reasonable precautions” regarding security. Among the plaintiff’s accusations, the class action complaint lists negligence and inflicting emotional distress.

One of the alleged problems is that some of the individuals whose data ended up being published allegedly paid Ashley Madison to remove their data prior to the breach:

Ashley Madison supposedly offered a $19 “scrub” option that promised to delete users profiles so they would be untraceable. The suit alleges that Avid Life Media simply collected the money and neglected to scrub the profiles. Doe also accuses the company of not informing users of the breach in a timely manner and neglecting to inform them of its extent.

The John Doe suit is the second lawsuit filed in the days following the data breach.  Two Canadian law firms apparently filed a class action suit against the cheating website seeking $578 million:

The plaintiff is Eliot Shore, who said he briefly joined Ashley Madison following the death of his wife to breast cancer. Shore said his membership did not result in any meetings with members of the site and that he never cheated on his wife.

The suit joins a $5 million class-action lawsuit filed in Missouri in July. The anonymous female plaintiff in that case claimed she’d paid $19 to Ashley Madison to run a “paid-delete” of her personal information, which was unsuccessful.

Ashley Madison is no stranger to lawsuits based on novel legal theories.  In 2013, Ashley Madison was sued for “alienation of affections,” an antiquated cause of action which is only viable in a handful of states, including Mississippi and North Carolina.  The plaintiff in the alienation of affections lawsuit alleged that the website caused the breakup of his marriage. The disposition of the case and/or whether it is still pending is unclear.

A final interesting tidbit, Ashley Madison is apparently owned by a Canadian lawyer named Noel Biderman.

Costco Shrimp Trade: Not Just Another Blood Diamond

Costco, America’s favorite wholesale warehouse, was sued last week in California over its shrimp merchandise. Interestingly, the suit has nothing to do with the actual quality of the shrimp. Rather, the plaintiffs have some serious beef with how the shrimp were procured. According to a report from Bloomberg, Costco is being accused of selling shrimp farmed through slave labor and human trafficking in Thailand. According to the complaint, Costco purchases Thai shrimp, which are fed a diet of cheap fish caught at sea through unpaid, forced labor, and, thus, such purchases help fuel the inhumane industry. The lawsuit, which seeks class status to represent all California customers of Costco shrimp, alleges that the retail giant misleads consumers into believing that it does not tolerate human trafficking and slavery in its supply chain. The plaintiffs seek to compensate the purchasers of the shrimp products and an injunction preventing it from selling the shrimp and requiring Costco to disclose those products with a tainted supply chain.  The case is Sud v. Costco Wholesale Corp., 15-cv-03783, (N.D.Ca. 2015).

Costco has responded that these allegations have been well-publicized for over a year. A previous investigation by Britain’s Guardian newspaper found that Costco supplier, Charoen Pokphand (CP) Foods, was buying fishmeal to feed its shrimp from some suppliers that owned, operated, or bought from fishing boats manned with slaves. CP Foods has since tightened up its regulations. Likewise, Costco has been working with the Thai government to shore up the supply chain and has offered dissatisfied customers full refunds.

We here at Abnormal Use certainly do not condone slavery or human trafficking.  It sounds like Costco doesn’t either (at least now).  Notwithstanding this lawsuit, it at least appears that steps are now being taken to right the ship.

What Costco knew about the tainted supply chain and when they knew it, we do not know. Certainly, those two questions would go along away to determining the merit of this suit. Nonetheless, we question what this proposed class of Costco customers really seeks to gain out of all of this? Refunds? Costco has already agreed to that.  Cleaning up the tainted supply chain?  Costco is already working on that as well. At this point, the only people who have really been damaged are those individuals forced into slavery in the first place.  Unfortunately, they are the only ones who won’t profit from this lawsuit.

Friday Links

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Above, you’ll find the cover of Wonder Wonder #207, published way, way back in 1973. As you can see, Wonder Woman – and her mother! – are being sentenced by “The Jury of Death.” We are wondering why, if the jury was referred to as such, Wonder Woman didn’t request a bench trial. It seems like one might take one’s chances with a judge if the jurors are collectively known as “The Jury of Death.”

Our fearless leader Mills Gallivan has been named President-Elect of the Federation of Defense & Corporate Counsel (FDCC) with his term ending in July of 2016. In case you didn’t know, Mills has already written a number of blog posts for us. You can revisit them here.

On another note, we are pleased to announce that 25 of our attorneys have been named to the 2016 edition of Best Lawyers in America, one of the most respected peer-reviewed publications in the legal profession. Read more about that here.

Our favorite legal tweet of late addresses the changing legacy of famed fictional lawyer Atticus Finch:

“Palcohol” Facing Buzzkill from State Legislatures

We’ve got good news and bad news for those of you who are sick and tired of toting around a flask. The good news first: powdered alcohol has won approval from federal regulators and is very close to hitting the market. Basically, it’s freeze-dried or dehydrated alcohol that can either be consumed by itself or mixed with water to produce a drink. The product is being marketed by one company as “Palcohol.” The bad news? More than 20 states have already acted to ban it, either temporarily or outright. On Friday, New York became the latest.

In March, Palcohol received the green light from the Alcohol and Tobacco Tax and Trade Bureau. This was the last regulatory step on the federal level before the product could be sold in stores. However, the states can also regulate alcohol sales in their borders. Many have done exactly that.

Based on purported concerns about safety and underage drinking, many states have already banned the product. New York Governor Andrew Cuomo claims that powdered alcohol can easily lead to dangerous levels of intoxication if it is ingested in its powdered form or mixed incorrectly. Cuomo said in statement:

This dangerous product is a public health disaster waiting to happen. I am proud to sign this legislation that will keep powdered alcohol off the shelves and out of the wrong hands.

Palcohol is working hard to reverse these bans and claims that the so-called safety concerns are a false pretense.  On its website, Placohol states “this isn’t about powdered alcohol being a public safety threat. It’s about the liquor companies protecting their market share and profits.” Mark Philips, Palcohol’s creator, claims, “Palcohol is not some super concentrated version of alcohol. It’s simply one shot of alcohol in powdered form.”

We’ll be keeping an eye on this issue for you.

Fitbit: Causing Extreme Emotional Distress for Lawyers Everywhere

Fitbit, Inc., the maker of the popular wearable activity tracker, has seen its share of litigation. Back in 2014, Fitbit was hit with a class action lawsuit in California over complaints that the trackers caused skin irritation. Recently, it found itself the target of a second class action suit due to allegedly liberal readings from the tracker’s sleep tracking function. Those lawsuits are all well and good, but they pale in comparison to the new suit on the horizon – the one to be filed by us here at Abnormal Use.

Here’s the skinny. Wanting to join the fitness craze (and advocate for a product featured on this blog), we purchased our very own Fitbit Charge. We followed the instructions to program the tracker and set our goals for daily steps, active minutes, floors climbed, and calories burned. Thinking we were well on our way to Herculean fitness, we even got on-board for the Fitbit challenge known as the “Workweek Hustle.” But, here is the rub. Despite our religious wearing of the Fitbit device and following the instructions to the letter, we finished dead last in the Workweek Hustle! In fact, in the world of Fitbit, we are apparently the laziest of bums incapable of winning any trophies.

The thing is Fitbit fails to account for the all the strenuous activity one goes through with the daily doldrums of being a lawyer, especially during periods of extensive preparation for a federal trial. While other Fitbit users are marching towards Penguin March and Skyscraper badges, we attorneys are made to believe that we have the activity level of a vacationing snail. Such a realization is clearly hazardous to one’s health. We reviewed the packaging thoroughly and clearly Fitbit has failed to warn us of such a danger.

After first notifying the Consumer Product Safety Commission, we plan on filing suit on behalf of all other similarly situated lawyer Fitbit users. Certainly, we will seek an exorbitant amount of damages due to extreme emotional distress, but we are looking for more than a mere monetary settlement. We won’t stop our crusade against Fitbit until all activity trackers add monitors for legal research, motion writing, briefing, telephone calls, and trial preparation. If Fitbit refuses to add trackers that make attorneys feel self-important, then their product shouldn’t even be on the market. We are sure the CPSC will agree.

Networking For Lawyers: “It’s All About Relationships!”

A young lawyer recently called me to meet with him over lunch. I had referred a client to his partner, and I had never actually met this young lawyer, who had been practicing for less than two years. The purpose was simply to network.

After having lunch, I reflected on all the great questions he had asked me. If only I’d had the good sense to network more with other lawyers and ask these questions when I first started practicing law. “What are the biggest challenges young associates face in your firm?” “What networking activities have worked for you?” “Have you participated in any particular organizations or civic groups that helped you with networking?” There were many more; I even stopped him at one point and told him, “You ask great questions!”

I am not sure how much help I was to this young lawyer. I told him that young associates sometimes struggle with the practical aspects of the practice of law: relating to staff, deciding what to delegate, and to whom. He also asked about our expectations of associates for developing new business. We talked about that and ideas for his own networking activities. I also mentioned that young lawyers often do not realize how much time it takes to build the skills to be a good lawyer. Young lawyers (and older ones, too!) struggle with maintaining balance between this learning curve and the demands for personal productivity in the law firm.

I concluded our lunch by remembering some good advice I read in Jim Durham’s book, The Essential Little Book of Great Lawyering. Durham wrote, “Clients speak highly of lawyers who understand the importance of relationships.” They want their lawyer to be someone with whom everyone in this business likes to work. Clients hire lawyers who they like and trust. It’s all about relationships!

The Importance Of Chronology and Context

In personal injury cases, defense lawyers typically prepare a medical chronology, which summarizes the Plaintiff’s medical treatment in chronological fashion. This helps defense lawyers understand various important facts: how the Plaintiff’s treatment progressed, whether the complaints of injury were consistent over time, and other medical issues. But medical records are not the only source of information. We seek out employment records, family court files, and other relevant, non-medical sources of information. So why are these not typically included in the chronology?

Take, for a hypothetical example, a Plaintiff who alleges that he suffered a traumatic brain injury, which led to seizures several months later.  The medical chronology tells you that the Plaintiff sought medical treatment for head injury and that he subsequently endured seizures.  So, on its face, the TBI/seizure claim seems legitimate.

But what happens when you incorporate the worker’s compensation file and the family court file?

You find out that the plaintiff was found to be at MMI on March 1 following the January 1 accident, and that he was subsequently cleared to return to work.  You find out that his spouse filed for divorce alleging drug and alcohol abuse on March 3, including that he used twice the recommended dosage of prescription anxiety medicine every day and mixed it with high levels of alcohol.  You also learn that the Court set a hearing to temporarily work out the child custody issue on March 8.  So, the March 7 seizure, which initially appeared to be a delayed effect of TBI, now appears to be related to mixing alcohol with prescription drugs and/or withdrawals caused by quitting prescription pain medication cold turkey in order to present well at the family court hearing.

The point of this is, if you are not doing so already, you should incorporate all of the documents you receive into a master chronology that provides the entire picture.