Not too long ago, we reported on a suit against Unilever in which the Orange County (CA) District Attorney’s Office accused the company of fudging the packing of its AXE line of male grooming products. Now, a new product finds itself the target of a deceptive packaging lawsuit, and the plaintiff bringing the action may surprise you.  Rather than a disgruntled consumer or, as in the Unilever case, an entity acting on behalf of consumers, the plaintiff is the target defendant’s competitor.

According to a report from the Star Tribune, Watkins, Inc., a Minnesota-based manufacturer of a variety of baking products including pepper and vanilla extract, filed suit against McCormick & Co. alleging that the spice giant is deceiving consumers. Specifically, Watkins alleges that McCormick decreased the amount of black pepper in its tins by 25 percent without shrinking its containers or lowering its prices. According to the complaint, McCormick’s and Watkins’ black pepper tins appear similar in size while maintaining different quantities of product. As such, McCormick’s packaging has allegedly led to confusion in the marketplace.

Reducing the quantity of product contained in a package is a common practice of manufacturers looking for alternatives to raising prices.  Nonetheless, we here at Abnormal Use can see how such a practice might possibly be viewed as deceptive. That said, we question whether Watkins is the appropriate plaintiff to file such a grievance.  If a consumers buys six ounces of a product under the reasonable belief that her or she is actually purchasing eight ounces., isn’t it the consumer who has been damaged?  In fact, Watkins seems to acknowledge as much as its complaint is littered with references to the deceived “consumer.”

Obviously, Watkins’ real beef is its belief that McCormick’s alleged deceptive packaging has damaged its share of the marketplace. Even if true, such damage is trivial.  McCormick has a 43 percent share of the U.S. black pepper market. Its next biggest competitor, Tone’s, has a 9 percent share.  Watkins’ current share is marginal at best.

With that said, this picture embedded in the Complaint (with insets provided by The Consumerist) tells an interesting story:

As you can see, the two McCormick tins appear to be the same size, but the quantities have decreased from eight ounces to six ounces.  The Watkins’ tin on the right contains six ounces of black pepper. Even though McCormick’s tin is clearly marked, we can see Watkins’ issue.  But, the real question is how many consumers actually purchase black pepper based on quantity versus the name brand to which they are accustomed? People know the McCormick name. We doubt Watkins has the same brand recognition. We question how many people faced with the perilous task of buying pepper, if any, have ever been torn with the choice between McCormick and Watkins and elected to buy McCormick because of the bigger tin? Certainly not us, as we are still trying to finish off the tin we bought many moons ago.

Rarely do we write about criminal cases on this site, but we did feel it appropriate to mention a new case in which the defendant challenged his burglary and assault convictions, in part, on the grounds that his lawyer did not object to the admission of certain Facebook posts into evidence. State v. Fawver, No. 32271-8-III (Wash. Ct. App. June 9, 2015 (unpublished).

The facts were these:

The incident in question arose after Mr. Fawver was forcefully thrown out of a New Year’s Party at the residence of Christopher Pierce in Deer Park. Pierce punched and pushed Fawver out of the event in the early hours of January 1, 2013. Fawver left on foot and texted a friend that he had been “jumped” at the party.
Three friends arrived in a truck to pick up Fawver; they were followed in another car by two other men. The six men drove in the two vehicles back to Pierce’s residence, arriving around 3:00 a.m. Several of the men, armed with baseball bats, entered the residence and a melee ensued. Many of the partygoers fought back against the invaders. Two of them identified Fawver as being among the group wielding baseball bats.

A detective later found a Facebook post on the page of one “Corey Fawner” in which the owner of the account posted the following status update: “Wow What a fun Night ppl [people] in dp [Deer Park] are not bad as they think they are.” The defendant was, of course, convicted.

On appeal, the defendant raised the issue of ineffective assistance of counsel because his attorney failed to object to the Facebook post.

Finding the the defendant’s argument that the Facebook post was not properly authenticated to be “questionable,” the court noted as follows:

There are at least as many ways to try a case as there are trial attorneys. Skilled counsel often do not raise objections to the form in which otherwise admissible evidence is entered. In most instances, it will be nigh impossible to establish that counsel erred by failing to make an objection that, if successfully lodged, would simply require the opposing party to offer the evidence in a different manner. That is the situation here. Mr. Fawver does not argue that the posting could never be authenticated; he only argues that this authentication was inadequate. Under the circumstances, it is doubtful that counsel’s decision to not object was such an egregious decision that it constitutes a failure to live up to the standards of the profession.
Nonetheless, even if this type of behavior could constitute error under Strickland, it does not do so here. Mr. Fawver has identified no Washington authority, nor have we, that sets forth authentication requirements for Facebook postings. On that basis alone, it is difficult to conclude that counsel erred since there is no governing authority to establish a failure to adhere to professional norms.

However, the court also went to some length to describe how the Facebook post, or “screen-grab” as it called it, was authenticated:

Given the unique comment posted so close in time to the assault, the fact that a friend of Mr. Fawver recognized it as his Facebook page, the name on the post matched Mr. Corey Fawver’s name, the picture was identified as the picture of Mr. Fawver, and the fact that Facebook is widely known to generally be password protected, the Facebook post appears to have been properly authenticated.

Keep that in mind, folks. Most of those authentication components would be the same regardless of whether the evidence was digital in nature. The circumstances surrounding the post, the manner in which the detective was led to it, and the facts contained therein all served to authenticate it.

Remember that when you’re litigating these issues in civil cases.

Rest in peace, Vincent Bugliosi, famed prosecutor of Charles Manson. Many years ago, we read his book, “Helter Skelter,” the account of the Manson Family trial. Of course, it is a frightful tale. But it was the story of the investigation into the murders and the resulting trial which sparked our interest in becoming a lawyer.

Our editor, Jim Dedman, has planned another CLE, this one dedicated to the law of food trucks and breweries. Taking place in Charlotte, North Carolina on Thursday, June 25, its official title is “Mobile Food Trucks: Public Health Laws & Regulations and Changes Brewing in North Carolina.” You can register here.

You may want to check out Robert Ambrogi’s recent article, “How Legal Blogging Has Changed Over the Decade.” That’s a lot of blogging.

Our favorite tweet of late:

There are a lot of things law school doesn’t teach you about practicing law. How to manage a practice is probably the biggest one.

— Criminelle Law (@CriminelleLaw) June 8, 2015

As you know, we here at Abnormal Use often submit content to other publications, and 2015 is no exception. Our editor, Jim Dedman, recently had an article entitled “Revisiting Asbestos Plaintiff and Fact Witness Depositions” published in DRI’s For the Defense magazine. Here’s the first paragraph:

Over the years, many defense attorneys have found themselves playing a part in a plaintiff’s or the plaintiff’s coworker’s deposition in an asbestos or other toxic tort case. Whether a deponent is a plaintiff claiming exposure to asbestos, a personal representative of the estate of an individual who allegedly died as a result of such exposure, or a former co-worker of a plaintiff or a decedent, such depositions are often different than typical depositions, if only due to the sheer number of attorneys in the room. It is not uncommon for a dozen—or dozens—of defense attorneys to be present representing numerous manufacturers of products alleged to have contained asbestos. In light of the number of competing interests, asbestos depositions can sometimes veer into unexpected territory, and as a result, important factual information and deposition basics may be overlooked. Considering the potential traps for the unwary, attorneys can sometimes lose sight of the forest for the trees. To guard against such a risk, defense attorneys must not forget the basics of deposition taking when confronted with an asbestos deposition. This lesson is particularly important for young lawyers, many of whom are dispatched such depositions, who may see many cases settle and few proceed to trial.

You can read the rest of the article here.

Black. White. Male. Female. Gay. Straight. Transgendered. Asian. Jewish. Christian. Muslim. Hispanic. Blind. Paraplegic. Diversity has more faces than just color.

Just like the rest of the population, there are lawyers who would identify with each of these adjectives and more. And just like the rest of the population, lawyers identifying with these adjectives often face challenges within the profession.

To open the lines of communication regarding these challenges and how best to evolve from them, the South Carolina Bar’s Young Lawyers Division is presenting a diversity series of luncheons highlighting the different types of diversity faced by lawyers. The goal is to emphasize the benefits of diversity and encourage a frank discussion on how to get the legal profession to reflect the people it serves. The first two luncheons discussed the topics of women in the law and people of color and how those populations are making waves within the profession. Conversations in the first two luncheons have already birthed ideas for next year’s events on religion, disability, national origin, and sexual orientation.

Here at GWB, we are pleased to be a part of this series by hosting the third diversity luncheon of this year, discussing the very pressing issue of diversity and inclusion.

What does inclusion mean here? After all, it is arguable that hiring someone is including that person. But is it? It’s kind of like if you ask or accept the invitation to a dance from someone that you really have no feelings for or who is not at all like you. Then, when the day of the dance comes, you let him pay for the flowers, dinner and dance tickets. But once you cross the threshold of that gym floor, you ditch him to hang out with your friends, pretending as if you did him a favor by showing up with him or acting like you’ve never seen him before. Emily Post would roll over in her grave at such a poor display of manners. The comparable analogy in the law, though, is when firms brag and pat themselves on the back because they have a woman at the counsel table for trial because it looks good to the jury, but once back in the office, the firm does not support or encourage her to build her own book of business or makes it difficult for her to work or feel invested with the firm after she has children.

Inclusion means it’s not enough to simply hire someone who brings diversity to your workplace and trot that person out on special occasions. That person—while maybe not the same color or religion as the majority of others in the office—has to be more than a token or window dressing. And like the majority, that person should be valued for the contributions he or she brings to the firm or workplace, not just to check another diversity box to use in marketing the firm to potential clients.

There is much conversation these days about the future of the profession. To remain competitive and relevant, we as a profession must evolve to reflect those we are representing and serving. And conversations regarding how to have a better understanding and create a inclusive atmosphere are precisely what the South Carolina Bar’s Young Lawyers Division and this diversity series hope to foster and develop.

There are no gold stars for simply inviting someone to the dance.

It is not uncommon for people to come down with a case of “food poisoning,” typically due to ingestion of Salmonella or E.Coli bacteria. It is also not uncommon to hear people suffering from food poisoning claim that they contracted the illness by eating a certain food product at a particular restaurant. While these origin theories may be correct, they are often difficult to prove unless the person can show that many people who also ate that same suspect food also became sick. Salmonella and E. coli symptoms typically manifest themselves anywhere from 12 to 72 hours after the contamination.  With such a variance in the time frame, the person could have been exposed to the bacteria in any number of ways other than the initially suspect food products.  For these reasons, potential claims against the culprit often face an uphill battle.

Social media, however, is coming to the rescue.  According the L.A. Times, a number of customers took to Yelp in March to warn others about their negative, salmonella-inducing experiences at Don Antonio’s, a popular West Los Angeles Mexican restaurant.  When at least 12 patrons complained of contracting salmonella, the L.A. County Department of Public Health conducted an inspection of the restaurant and allegedly discovered a number of serious safety code violations. The Department had previously given the restaurant an “A” rating. Two of those complainants have now filed suit against the restaurant, alleging product liability, negligence, breach of warranty, and negligent infliction of emotional distress.

In yesteryear, it was very possible that salmonella and E. coli outbreaks like this one could have flown under the radar. These days, because of Yelp and other forms of social media, it is much less likely that outbreaks will remain clandestine. As such, when a claimant points the finger at a particular restaurant when inflicted with food poisoning, it is now much easier to prove (or at least corroborate) the merits of those allegations.

According to a report from the Daily Local News, Pennsylvania woman Jaquelyn Collas has filed suit against IKEA after her two year old son was crushed to death in his bedroom by a dresser she purchased from the Swedish furniture giant. The crux of the suit is that the 136 pound, six drawer MALM dresser lacked “sufficient or proper warnings or instructions” and failed to include “sufficient or proper hardware, tools and equipment” to secure the dresser to the wall which would have prevented it from falling. Callas alleges that IKEA knew of the tip-over hazards associated with the dresser and other vertical furniture. You can also head on over to the best furniture store in Dunedin to find more information related to the same.

In response to the suit, IKEA issued the following statement to media outlets:

All of us at IKEA express our sincerest condolences to the Collas family. At IKEA, the safety of our products is our top priority. All of our products go through extensive testing and are regularly evaluated. IKEA chests of drawers are safe for their intended use when properly assembled and permanently attached to the wall, in accordance with the warnings and instructions. The best way to ensure the stability of chests of drawers is to permanently attach them to the wall.

IKEA’s statement regarding the warnings appears to be supported by the current assembly instructions accompanying the dresser.  On the top of the second page of the instructions, the following warning is found (in 30 languages):

Important!

This furniture must be affixed to the wall with the enclosed wall fastener.

Different wall materials require different types of fixing devices.  Use fixing devices suitable for the walls in your home (not included).  If you are uncertain about what type of screw of fitting to use, please contact your hardware store.

Smack in the middle of the step-by-step instructions, you will also find this image:

With the written warning and accompanying diagram, it appears that IKEA has at least attempted to warn of the danger of vertical furniture contrary to Collas’ allegations.  (Of course, we do not know when Collas purchased the dresser and is at least possible that the instructions were modified thereafter.)  Regardless, we question whether such warnings should be necessary in the first place. Essentially, the tip-over hazard associated with any piece of vertical furniture is a result of physics and the law of gravity.   While the average person may not be well-versed in the nuances of physics or know that the standard acceleration due to gravity is 9.8 meters per second squared, they should be aware of the general center-of-gravity principles in layman’s terms. Think Newton and his apple.

A related, but possibly more problematic issue, is that Collas may have a difficult time proving exactly how the dresser fell in the first place. Collas discovered the accident when she entered her son’s room and found him face-up, wedged between his bed and the dresser. Did the dresser fall on its own? Did it fall because the boy attempted to climb it? Did it fall due to some other unknown reason? Certainly, Collas’ fallback position will be that the dresser wouldn’t have fallen due to any reason had IKEA just told her to affix it to the wall. IKEA then counters that it did so as discussed above and circular argument enthusiasts rejoice.

At the end of the day, this is a tragic accident that could have been avoided.  We just question whether it was IKEA’s job to do so.

Above, you’ll find the cover of Life With Archie #18, published way, way back in 1963. For many reasons, it is our new favorite. First and foremost, the publishers include the word “denouement” on the cover. You’ve got to love that bit. Second, the cover proclaims that the narrative shall be gripping, but the dialogue thereupon suggests otherwise. You have the prosecutor declaring in open court that Archie Andrews is guilty while Archie himself thinks to himself that he is innocent. Honestly, that seems rather routine for a criminal trial, no?

Podcast Question #1: Who is listening to the new Starlee Kine podcast, “Mystery Show”? The tagline: “A podcast where Starlee Kine solves mysteries.” This week, we investigated the first two episodes, and it’s a fun one. Check it out here.

Podcast Question #2: Who is listening to “Undisclosed,” the relatively new podcast dedicated to the Adnan Syed case (which was initially profiled on the very, very popular podcast, “Serial”)? Check it out here.

We here at Abnormal Use have a question for you. Any chance that you would come across a company named CaseRails and inadvertently think you had found a company named CaseWebs or CaseSpace? Neither did we. However, one misguided lawyer who owns trademarks for the latter entities thinks you might. He recently sent a cease and desist letter to CaseRails demanding that they fork over their company name and Internet domain name.

CaseRails is a small startup that offers a document management system designed to automate the process for drafting, storing, and reusing legal documents.  Sanford Asman, a trademark lawyer, claims that the name CaseRails infringes on his trademarks for the terms “CaseWebs” and “CaseSpace.” CaseWebs is purportedly a litigation support software owned by Asman.  It’s not clear that the name CaseSpace is being actively used Asman.

Apparently, Asman believes he’s got a corner on the market for any legal software names starting with the generic word “case.” His cease and desist letter can be read here. In the letter, he claims: “I take very seriously any third party attempts to use ‘Case’ formative marks in connection with web-based legal applications.” Maybe he should give LegalZoom a call and offer to help them pursue all those companies using names starting with generic word “legal.”

Luckily for the guys at CaseRails, Asman is generously willing to work out a resolution if they’d be so kind as to hand over the rights to the name CaseRails and the domain name CaseRails.com. We can understand that the guys at CaseRails might not want to spend valuable resources in a battle over their name. However, that is almost certainly what Asman is banking on.  We hope they do fight the matter as this thing is just down right silly.

I have noticed several references in recent literature, memoranda, and legal journals to the “attorney work product rule.” It is beyond me why so many otherwise bright and knowledgeable people continue to refer to the Work Product Doctrine in this fashion. The Doctrine is, of course, not limited to attorneys, and in fact, really has nothing to do with attorneys specifically except that attorneys are one of the many representatives of a party whose work product and thoughts about litigation are protected.  Obviously, attorneys are the most common representatives to provide or prepare documents and tangible things that are prepared in anticipation of litigation or for trial, but the rule expressly applies to a party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). It further provides absolute protection against discovery of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

A surprising number of attorneys apparently incorrectly believe that the Doctrine does not apply unless, like the attorney-client privilege, a lawyer is somehow involved in the preparation of the materials in question.  Nothing could be further from the truth, and as a result, the Work Product Doctrine is much broader than the attorney-client privilege, and generally, much easier to sustain in discovery disputes.  As defense lawyers, we certainly do not want to do anything to incorrectly limit the scope and effect of the Work Product Doctrine, and all of us need to strive to broadly interpret the protection rather than narrowing it. Since defendants generally use lawyers and other representatives to analyze potential or threatened litigation, and plaintiffs less so (except in business and commercial litigation between corporate entities) the plaintiff’s bar generally attacks and tries to limit the Work Product Doctrine just as it has attacked the attorney-client privilege down through the years. These attacks need to be fiercely resisted and our courts encouraged to apply the Work Product Doctrine broadly to protect the doctrine to prevent what the U.S. Supreme Court correctly noted in Hickman v. Taylor as practicing law “on the wits of your adversary.”  Parties have no right to, and should not even request, disclosure of what the other side thinks about the lawsuit or the merits of the case regardless of which representative of the party expressed those views.