Friday Links

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Our favorite thing about the cover of Mr. District Attorney #62 – published more than five decades ago – is not the magical villain our hero appears to be pursuing. It’s not the fact that the district attorney seems to be attempting to apprehend a criminal in the act rather than prosecuting him in court at some later date. Rather, it’s the fact that the police officer – who is a few steps behind the prosecutor – refers to him not by name but as “D.A.” There’s not even a definite or indefinite article preceding the term – just “D.A.,” as if that were his name. What gives?

Did you see our own Kyle White’s article on the reptile theory in this week’s edition of DRI’s Strictly Speaking? If not, check it out. Oh, and don’t forget, you can follow Kyle on Twitter here.

You like the ease and convenience of Netflix? You like vinyl? Well, of course you do. Who doesn’t? Well, you’ve got to read the recent piece by Michael Nelso at Stereogum on the perils of the “Netflix for vinyl” model which, apparently, violates the Record Rental Amendment of 1984.

Our favorite tweet of late comes from Lawyer Cat:

North Carolina Court Of Appeals Matter-Of-Factly Cites Litigant’s Facebook Profile In Factual Background Section Of Opinion

Here’s something interesting.

In the factual and procedural background section of a recent opinoin, the North Carolina Court of Appeals cites to a litigant’s Facebook profile to introduce him in that section. See Staton v. Josey Lumber Co., Inc., No. COA14–1001 (N.C. Ct. App. May 5, 2015).

It’s a workers compensation case, and the claimant “injured his left leg and foot when he fell off scaffolding while welding.” The North Carolina Industial Commission found that it had no jurisdiction to hear his claim because it determined he was an independent contractor and not an employee. The claimant appealed this finding, although the court of appeals affirmed.

In the second paragraph of the factual background section (and the fifth paragraph of the opinion), the court of appeals noted:

Staton called himself a contractor on his Facebook page. He stated that “[m]ost everyone knows I’m a welder. I travel alot chasing jobs. I do shutdown work. That is when a company takes off a week or so and contractors go in and fix whatever is broke.”

The court of appeals quoted this language again in the analysis section of the opinion.

So, here, we’re not dealing with spoliation or impeachment or any of the usual issues when social media is involved in litigation. It offers no citations or footnotes to justify some type of novel citation to new social media technology.

Rather, the Court of Appeals matter-of -factly quotes the litigant’s Facebook profile (just like it would any other statement or document).

How about that?

Abnormal Use And Net Neutrality? A Debate In Charlotte Tonight.

If you’re in Charlotte, North Carolina tonight, you might be interested to know that our editor, Jim Dedman, is moderating a debate on net neutrality. Net neutrality is a complicated topic, but the debate tonight is designed to educate attendees about its origins and the potential effects of the new Federal Communications Commission regulations. If you’re interested, you can join The Bastiat Society and Johnson And Wales University for a debate on net neutrality featuring scholar Brent Skorup of the Mercatus Center at George Mason University and Charlotte attorney Brian Focht, author of the popular The Cyber Advocate law blog.

The event begins tonight at Hance Auditorium at Johnson and Wales University, which is located at 801 West Trade Street, Charlotte, North Carolina 28202

Failure to Warn While Sleeping? Apple Targeted Once Again In Adapter Lawsuit.

According to reports, Apple finds itself the subject of a another lawsuit regarding its power adapters. Unlike the previously settled class action lawsuit which alleged that the MagSafe adapters were defectively designed and caused unnecessary fraying of the power cords, the latest suit alleges that the adapters actually cause physical harm to others. In the latest suit filed in California, Heather Henderson allegedly suffered second and third-degree burns after coming in contact with the adapter. Such burns, Henderson believes, could have been prevented had Apple placed an appropriate warning on the MagSafe adapter.

This suit arises out of an incident that happened earlier this year. Henderson’s husband was using his Apple laptop when Henderson fell asleep with her arm on top of the adapter for approximately 40 minutes. She woke up groggy, felt “itchy,” and went to bed.  The next morning she felt pain and discovered a “one-inch boil” on her arm.  Henderson believes the boil has resulted in a permanent scar.

From what we can gather from the reports, the interesting thing about this suit is that it is couched as a failure to warn case rather than one alleging that the adapter is excessively hot.  Henderson told San Diego’s ABC affiliate that she knew the adapter could get warm, but she “didn’t know exposure to [her] bare skin would mean a second- to third-degree burn.”  Moreover, Morris stated the following regarding the adapters:

It’s a huge problem.  It’s called MagSafe, but it’s not safe at all.  People are reporting burns and fires, and Apple knows this.

Henderson and Morris allege that burns such as those suffered by Henderson could have been prevented had Apple placed a warning label on the adapter.

We here at Abnormal Use are curious as to why Henderson appears to be focusing on the lack of warning labels on the adapter.  After all, she came into contact with the adapter accidentally while sleeping.  It is not like a more effective warning label would have saved the day.  Had Henderson alleged that the adapter heated to a temperature in excess of the normal in-use temperature of MagSafe adapters or other power adapters in the industry, then she likely would have a better case.  Our guess is that there must not be sufficient evidence to establish that the temperature of the adapter was abnormal or else Henderson would have proceeded on that theory.  When accidents happen and there is no legitimate means of recovery, failure to warn becomes the default.

See here for a prior post of ours on power adapter litigation.

Thoughts On The Lawsuit By Josie Harris Against Floyd Mayweather

Pay-per-view king and boxing champ Floyd “Money” Mayweather, Jr. is certainly a polarizing figure. He is 48-0 in his professional career and largely considered the best pound for pound boxer in the world. He is one of the highest-paid athletes in the world, and his last two fights shattered previous pay-per-view records. As such, he seemingly has more money than he knows what to do with. He doesn’t wear a pair of boxers or shoes more than once, he color coats his luxury cars to match his mansions, travels with a Duffle bag full of money, and keeps over $123 million in a single bank account (though surely that number has grown considerably after the Pacquiao fight). In 2013, Tim Keown wrote an amazing article for ESPN on Mayweather titled “The Last Great American Prizefighter,” which provides a more exhaustive look at Mayweather’s life. However, Mayweather also has a significant and well-documented history of violence outside of the ring, including a 2010 incident of domestic battery against Josie Harris, his former girlfriend. In 2011, Mayweather pleaded guilty to misdemeanor battery in order to avoid a felony battery charge and found himself sentenced to 90 days in jail. He was released in August of 2012, and the matter thereupon ended. That is, until April 2015, when during an interview with Katie Couric, he claimed that he never kicked, stomped, or beat Josie Harris, but that he did restrain a woman that was on drugs.

It seems that Ms. Harris does not agree with his characterization of events. According to CNN, on May 5, 2015, Ms. Harris filed a civil suit in California state court against Mayweather claiming defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. In her pleadings, Ms. Harris alleges Mayweather entered her home and began punching and kicking her as she slept on the couch. She also denies that she abused drugs and that it was not his purported attempts to restrain her that caused her injuries but rather the beating he inflicted. Apparently, she seeks $20 million dollars in the lawsuit. At this point, it may just be best for someone with Mayweather’s track record to put his money to good use and pay Ms. Harris.

Friday Links

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Our editor, Jim Dedman, is in Chicago today for the DRI Product Liability Committee Fly-In. You may remember that he is chair of that committee’s newsletter section. If you’re there, too, say hello! Because this is Friday Links, we tried to find an appropriate comic book cover depicting Chicago. However, we were unsuccessful. So instead, we bring you the cover of Kicking Television: Live in Chicago, Wilco’s 2005 live album recorded in the Windy City. In fact, according to Wikipedia, the album was recorded May 4 through 7, 2005, ten years ago this week. How about that?

Okay, if you’ve not seen the news story about the police officer suing Starbucks for spilling his free cup of coffee on himself, please see here. Apparently, he testified for eight hours on the stand at trial this week.

Are you following Abnormal Use on Facebook? If not, please join the discussion over there, as we’d love to have you! See here.

Our favorite tweet of late comes from our own Stuart Mauney:

South Carolina Changes Witness Fee Subpoena Rules

Heads up, South Carolina lawyers! In case you haven’t heard, the South Carolina Supreme Court recently revised its rule on the issuance of subpoenas to provide that the required witness fee and mileage reimbursement need not be tendered until the witness actually appears for the deposition or trial.  The court has also approved revised subpoena forms which are listed on its website.

Here is a link to the Supreme Court’s May 1, 2015 order on this issue, while here is a link to the revised subpoena forms at issue.

Environmental Groups Sue to STOP Solar Panel Farm at NJ Amusement Park

Six Flags Great Adventure, a New Jersey amusement park, wants to create a huge solar farm that will generate enough electricity to make the park energy independent.  A big business that is trying to operate on an entirely renewable energy source – that sounds like something environmentalist would be applauding, right?  Not so fast.  Several environmental groups recently filed a lawsuit to stop the project because it calls for the removal of trees on the site.

The lawsuit filed against the amusement park and the solar energy company, KDC Solar, is seeking an injunction to halt the project, which they claim will result in the clearing of 90 acres of environmentally sensitive forest land.  They argue that the solar farm project violates local ordinances for tree removal.  They further claim that the local planning board failed to follow required procedures for approving the project, including not studying alternatives to deforestation.

However, the environmental groups don’t want the project halted altogether.  They want Great Adventure to build the solar farm above its parking lot. Although Great Adventure has not commented on the lawsuit, it has previously issued public statements regarding the proposal to build the solar farm above its parking lot.  It apparently ruled out the idea because of concerns over customer safety and decreased parking area.  Increased costs of 20 to 50 percent also may have been a factor in the decision.

It should be interesting to see where this goes.  It will likely come down to whether the planning board took the right procedural actions and, if not, whether they want to cure the procedural deficiencies in order to allow the project to move forward.

Blue Moon: The Not-So-Craft Beer

We here at Abnormal Use are lovers of craft beer.  In fact, several years ago, we brought our love of craft beer to the blawgosphere and interviewed Adam Avery, President and Brewmaster of the Avery Brewing Company.  As Avery mentioned in the interview, craft beer punches so much flavor when compared to the likes of Bud, Coors, and Miller beers which are “fairly flavorless and carbonated.”  While MillerCoors and AB InBev, the major offenders of mass-produced beer, may never admit it, they know the flavor disparity is legitimate.  Need proof?  MillerCoors maintains a “craft and import division” which attempts to capitalize on the craft beer craze with  the introduction of beers such as Blue Moon, its so-called “artfully crafted” Belgian-Style Wheat .  Unfortunately for MillerCoors, the guise is up as the craft-ness of these beers is coming under fire. According to reports, a potential class action complaint was filed in California last week against MillerCoors alleging that the company violated numerous laws by claiming that Blue Moon is a craft beer.  The plaintiffs allege that Blue Moon is brewed in MillerCoors’ Colorado and North Carolina breweries, which produce other MillerCoors’ beers like Coors, Milwaukee’s Best, Miller High Life, Icehouse, and Olde English. As an alleged attempt to deceive consumers, the MillerCoors name is nowhere to be found on the Blue Moon bottle.  Further, the plaintiffs take issue with Blue Moon’s trademark phrase “artfully crafted,” which they allege misleads consumers into thinking they are buying a craft beer.  The plaintiffs seek an injunction to stop Miller Coors from marketing Blue Moon as an independent craft beer operation and monetary damages. While there is no legal standard defining “craft beer,” the Brewer’s Association, a trade group concerned with the promotion of craft beer and homebrewing, sets forth the following qualifications for craft beer:

  • Fewer than 6 million barrels are produced annually;

  • A non-craft brewer can only own up to 25 percentof the craft brewer; and

  • The beer is to be made using only traditional or innovative brewing ingredients.

We here at Abnormal Use do not know exactly how Blue Moon fits into these qualifications (or, if the qualification will even stand up as a matter of law).  Nonetheless, we do find the Blue Moon-MillerCoors relationship suspicious.  Officially, Blue Moon is brewed by Blue Moon Brewing Company, an entity of Tenth and Blake Beer Company, the craft and import division of MillerCoors.  Whether MillerCoors owns more than 25 percent of Blue Moon Brewing, we do not know.  But, we do know that if Blue Moon is brewed in the same vicinity as the likes of Milwaukee’s Best, Icehouse, and Olde English, then it certainly doesn’t fit within our vision of a craft brew.

Regardless of how this lawsuit ends, we hope that beer drinkers continue to explore their options.  Don’t stop drinking Blue Moon because it is associated with MillerCoors.  Stop drinking Blue Moon because there are plenty of better options for a Belgian-Style Wheat beer.  In the alternative, if you find that Blue Moon is in fact “artfully crafted,” drink it in a brown paper bag just like its other MillerCoors cohorts.

Private Message or Process Server – Service Through Facebook?

Revolutions have started through the use of it.

Marriages have started through the use of it.

Opinions (informed and uninformed) are shared on it.

So why should a lawsuit not start through its use?

What is it? Why Facebook and potentially other social media platforms, of course. In a recent divorce case, Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096, Mar. 27, 2015), the New York County Supreme Court permitted a wife to serve her husband solely with a summons via private message to the husband’s account on Facebook.  While recognizing that Facebook is not a statutorily permitted method of service, the Court asked and answered several relevant questions in making its way to its conclusion that service in this fashion was proper.

The Court first asked whether the standard form of personal service was at all possible. It reasoned that since the couple had never resided together, the last known address the wife had for the husband was from an apartment he left in 2011, and the husband told her he had no fixed address or employment, it was an impossibility to personally serve the husband.

The Court next had the wife show that statutorily permissible “substitute service” of serving on someone of suitable age and discretion or through “nail and mail” would also be unavailable under the circumstances.  The Court quickly rejected the possibility of substitute service since such service is premised upon knowledge of the husband’s actual place of business or home address.

The Court further insisted that the wife demonstrate that sending the summons through Facebook would be a way to reasonably expect he would receive actual notice. The Court noted that whether the method used would comport with due process was the “ultimately determinative” factor.

To ensure that the Court’s order was constitutionally reasonable, the Court required the wife to submit a supplemental affidavit verifying the husband’s Facebook account, including copies of exchanges between the husband and wife on Facebook and the identification of husband in certain photographs. The wife’s affidavit also showed that husband regularly logged into the account.  Finally, the Court determined that service by publication would be useless and costly in these circumstances, finding that publication was almost guaranteed not to provide husband with notice of the action.

The Court concluded that the wife’s attorney would log into her account, message the husband by first identifying himself, and either include an image of the summons or a hyperlink to the summons.  Additionally, the attorney would have to repeat the message once each week for three weeks or until husband acknowledged service, and after the initial transmittal, the wife and the attorney would have to call and text message the husband to inform him of the Facebook message.

Baidoo is not the only case to contemplate service by Facebook.  But could service by Facebook extend outside of cases for divorce or between individuals?

Just two years before Baidoo, the Federal Trade Commission, in alleging “that the defendants operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers,” requested leave to serve five India-based companies by means of both email and Facebook.  F.T.C. v. PCCare247 Inc., No. 12 CIV. 7189 PAE (S.D.N.Y. Mar. 7, 2013).  While the Court noted that Facebook and email were not within the scope of Article 10 of the Hague Convention on Service, it also noted that India had not objected to the use of Facebook and email as a means of service such that the Court could authorize service by those means. In turn, the Court found that the FTC’s proposal to serve defendants by both email and Facebook satisfied due process, stating that “[w]here defendants run an online business, communicate with customers via email, and advertise their business on their Facebook pages, service by email and Facebook together presents a means highly likely to reach defendants.” This holding was followed several months later in F.T.C. v. Pecon Software Ltd., No. 12 CIV. 7186 PAE (S.D.N.Y. Aug. 7, 2013).

Given these cases and the fact that the cost of publication is increasing while the likelihood of notice by publication is decreasing, service only by Facebook on even corporate defendants could be a thing of the relatively short-term future. However, given the effort that must be exerted before a court will permit such service, it will likely be a long time before service by Facebook on either individual or corporate defendants is something that is commonplace. While there may be a shot for Facebook, a search of service by other social media platforms, including Twitter, Tumblr, Instagram, and Snapchat, has not produced any results to date.