At Last, A Resolution To Our 2011 Challenge To Reed Morgan, The McDonald’s Hot Coffee Plaintiff’s Attorney

As you know, we here at Abnormal Use like to write about the infamous McDonald’s hot coffee case. Twenty years after it was tried, it remains an interesting piece of litigation, not just because of the facts and its effect on the litigation culture, but also because there are so few primary sources available to the general public. We have a number of secondary and tertiary sources in the form of editorial opinion columns, television documentaries, and the like. However, few commentators rely upon the actual pleadings, motions, and witness testimony in the underlying case. That is why in early, early 2011, we prepared a FAQ file based on some primary sources available to us at that time.

Back in 2011, we were scouring the Earth for a copy of the 1994 trial transcript. It was, of course, unavailable from the court itself, as trial transcripts are not typically filed with the clerk of court (and we doubt that the court reporter would have a 17 year old trial transcript available for order). The case was settled shortly after the trial, so any appellate record would be slight, if existent at all.

Accordingly, on June 28, 2011, we issued a challenge to Reed Morgan, the McDonald’s hot coffee Plaintiff’s attorney, asking him to release the trial transcript (assuming he still had it after all of these years).

You can read that post here. In it, we noted as follows:

 The only parties with access to all relevant information are the McDonald’s corporation and Liebeck’s estate. Despite the protestations of the plaintiff’s bar and Saladoff, the McDonald’s corporation has remained curiously tight-lipped about the case over the past 17 years. There’s no evidence that this major company has engaged in any public relations campaign; and if they had, it has not been very successful, as many people are unaware of the basic facts of the case.

If the plaintiff’s bar truly wishes to expose the “truth” behind the case, then they should look to one of their own: S. Reed Morgan of S. Reed Morgan & Associates (now of the Law Offices of S. Reed Morgan, P.C.) of Comfort, Texas, the lead plaintiff’s attorney who represented Liebeck during the original trial. Presumably, Morgan has a whole host of original material which could shed additional light on the case but which are not currently in the public record. By this, of course, we refer to deposition transcripts, discovery responses, and the trial transcript, none of which is readily available in any form. Allowing the general public, as well as legal scholars and researchers, to review this material would shed much light on the case and allow partisans of any persuasion to use the actual evidence from the actual trial to advance their agendas. (Saladoff had access to at least some of this material, although it’s unclear from whom she obtained it; she told IndieWire that she “was able to secure the transcript of the trial, and then went to Albuquerque where the case was tried, located the family, the lawyers, jurors, the doctor, and started talking to as many people as possible who would talk to me.”)

We never heard from Mr. Morgan in response to the post. Perhaps he never saw it, and we doubt a defense oriented law blog is atop the list of his concerns. To be honest, all these years later, the post had sunk into the deep recesses of our memory until last week when we saw that Mr. Morgan himself had commented on the post. Last Wednesday, almost three years to the day after our original blog post on the issue ran, he post a comment and remarked:

The trial transcript is on record at the court. Any competent lawyer knows this. So I question this so-called “challenge” as written to serve any purpose other than to create an image that I have the transcript. Of course, I do not have it. Reed Morgan

We were very pleased to see that he had read our post all these years later. The following day, we responded to the comment as follows:

Reed, we appreciate your comment and thank you for visiting our site. Over the years (and again, more recently), we have reviewed the documents available from the Civil Division of the Bernalillo County Courthouse where the case was tried in 1994. In fact, the Civil Division maintains a file of 1,070 pages comprised of the pleadings, motions, and other publicly filed documents. Unfortunately, the trial transcript is not one of the documents publicly on file or available for ordering from the court. I suspect that it might have been easier to locate or obtain in 1994, but not in 2011 (when the post to which you were responding was written and published).

In fact, anyone can visit the relevant New Mexico state court website and access its online docketing system. The official website of the State of New Mexico Second Judicial District Court maintains a case look-up function which one can utilize to see the full docket sheet for the Liebeck v. McDonald’s matter. The relevant entry offers a comprehensive accounting of the case, listing all of the hearings that took place in 1993 and 1994 as well as a description of the civil complaint and a register of actions activity ranging from the filing of the complaint on March 12, 1993 all the way to March 28, 2007 (reflecting the ultimate fate of certain exhibits). The bulk of the entries, however, range from 1993 to 1995.

Generally, a trial transcript is not something that one can obtain directly from the trial court by pulling the pleadings on file. Sometimes, when a case is appealed, one might be able to obtain the trial transcript from an appellate court (if the transcript has been requested from the court reporter), but an appeal was not meaningfully pursued in Liebeck because the case resolved in late 1994 just a few months after the verdict. Trust us when we say that in 2011 we looked many, many places to obtain a copy of the trial transcript before issuing our challenge to Reed Morgan. We are elated that he ultimately replied, although all these years later, we are no longer looking for a copy.

GM Unveils Ignition Defect Compensation Plan

Reportedly, GM has unveiled a compensation plan for those affected by the ignition switch defect.  As a part of said plan, GM cut checks to “any driver, passenger, pedestrian or occupant of another vehicle who can show they were hurt in a crash involving one of 2.6 million cars GM has recalled after admitting they were equipped with faulty ignition switches.”

The plan apparently does not have a limit on compensation.  The catch: claimants must be able to show that the vehicle’s airbags did not deploy in any crash at issue.

Interestingly, claimants who previously entered into settlements with GM prior to GM’s admission of the ignition defect can apply for additional compensation through the fund.  GM has reportedly collected evidence of 3,500 death and injury claims, but they have yet to be vetted to ascertain whether they meet the requirements of the compensation plan. As The Wall Street Journal Law Blog noted the other day: “The compensation program is limited to the 10 models GM has identified as being equipped with a faulty ignition switch. That includes the Chevrolet Cobalt, Saturn Ion and other older models.”

The claim period is from August 1 through December 31.

Flying Hot Dogs Not Inherent To The Game of Baseball, Says Missouri Supreme Court

If you follow Anne Coulter’s reasoning, we assume you aren’t caught up in the World Cup craziness. As such, you are left to focus on America’s pastime, baseball, in order to get your sports fix for the summer. Baseball is a fine sport, to be sure, but things often get a little boring at this point in the season. Thankfully, the Missouri Supreme Court has finally issued its opinion in the now infamous flying hotdog case, Coomer v. Kansas City Royals Baseball Corp., No. SC93214 (Mo. June 24, 2014), to spice up the mid-season doldrums. Of course, we had to review and comment upon this important piece of jurisprudence.

For those new to the case, the facts are these: Coomer is an avid baseball fan who had been to approximately 175 Kansas City Royals games. In September 2009, during game number 176, Coomer was hit in the face by a hotdog thrown by the Royals mascot, Sluggerrr. The impact of the flying dog allegedly caused Coomer to sustain a detached retina. Thereafter, as you might expect if you regularly read this blog, Coomer sued the Royals. The case proceeded to trial, and the jury charged as to whether the risk of being hit by a hot dog was inherent in attending a Royals game. After receiving this charge, the jury returned a defense verdict, allocating 100 percent of the fault to Coomer himself. In a lengthy opinion, the Missouri Supreme Court vacated the jury’s decision and remanded the case. At issue in the case was the so-called “Baseball Rule” which essentially protects teams from risks that are inherent to the game, i.e. foul balls entering the stands. According to the Court, the members of which have apparently never heard “Take Me Out to the Ballgame,” the risk of being injured by Sluggerrr’s hot dog toss is not one of the inherent risks of watching a Royals home game. Because assumption of risk is a question of law, the Court held that it was an error to charge the jury on the issue and that such a charge was prejudicial.

Admittedly, when we here at Abnormal Use first heard about this case, we were skeptical. It is not uncommon to see vendors tossing food to fans at a baseball game. (Note: Sluggerr’s official website indicates that he throws hot dogs.). Plus, the thought of a flying hot dog injury sounds absurd on its face. Nonetheless, we must actually agree with the Missouri Supreme Court in this instance. As crazy as a flying hot dog might sound, we don’t believe it is necessarily a risk inherent to the game of baseball nor do we believe it is within the intended scope of the “Baseball Rule.” Unlike a foul ball, this type of harm could more easily be avoided albeit to the dismay of food tossing mascots everywhere.

If this case is tried again, the jury could always return the same result if it finds Coomer was negligent in some manner by not preparing himself to catch the dog (who knows?). The real impact of this decision may not be felt by Coomer but by sports teams nationwide. Certainly, teams will have to think twice before allowing mascots to distribute items to fans by hand toss or t-shirt gun. Which begs the question, what else do mascots actually do?

No Extra Snow for Arkansas; Litigation Ensues

According to the Internet, North Little Rock, Arkansas has a yearly average snowfall of just over four inches, and unfortunately for its residents, that number does not appear to be changing any time soon.  Aquapark Holdings, LLC, a company that owns Wild River Country, rented a 50-ton snow maker from SnowMagic, Inc., as it hoped to bring snow rides to the park during the 2013-2014 season.  According to Wild River, SnowMagic claimed that the 50-ton snow maker could create and maintain snow in 70 degree weather under direct sunlight.  However, in practice, Wild River found that the snow wouldn’t “stick” in 45 degree weather and turned to slush in direct sunlight.  After numerous customer complaints, “most customers did not return and, as word of the disappointing attraction spread, attendance at the snow park diminished drastically,” according to the pleadings filed by Wild River Country. Litigation started when SnowMagic brought suit against Wild River alleging that Wild River failed to play nearly half of the $215,000 bill for the equipment rental.  Wild River then counterclaimed for catastrophic damages allegedly caused by the snow maker’s failure.  Regardless of the outcome, the real victims of the litigation may be the residents of Little Rock, who will continue to be without the winter thrill. Oh, well.

Friday Links

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We here at Abnormal Use never meant to cause you any sorry and we never meant to cause you any pain. (Those are lyrics we’re paraphrasing, as if you didn’t recognize them!). This past Wednesday, June 25, 2014, was the thirtieth anniversary of the release of Prince and The Revolution’s Purple Rain album. So, of course, we had to mention that on the blog this week. Above, you’ll find the cover of Rock N’ Roll Comics #21, published not so long ago in 1991. We encourage you, our dear readers, to revisit this album over the weekend and report back to us on Monday with your thoughts. Being law nerds, we decided to turn to the case law and see how often, if at all, the courts have referenced “Purple Rain.”

Although we harbored some initial doubts about dedicating a post to an album by Prince, in the end, we figured we would throw caution to the wind. So here we go.

If you plug the phrase “Purple Rain” into Westlaw, 17 cases appear in the results. Most of those cases reference night clubs, recreational drugs, or commercial tanning products named “Purple Rain.”

But we thought we’d share the three we found most interesting.

A relatively recent North Carolina federal court case, Controversy Music v. Mason, No. 5:09–CV–488–BR (E.D.N.C. June 24, 2010) involved a copyright action in the default judgement setting). The relevant paragraph:

Plaintiffs are the exclusive copyright owners of the three musical recordings—“Purple Rain”, “Yo, Excuse Me Miss”, and “Please Don’t Go”—specified in this case. Plaintiffs filed their complaint on 10 November 2009, alleging that Defendant infringed upon the specified copyrights by giving unauthorized public performances of their works on both specific occasions and in an ongoing manner at Club International, owned by Defendant. Plaintiffs allege that Defendant’s actions constituted willful violation of their rights, because the American Society of Composers, Authors, and Publishers (ASCAP), of which Plaintiffs are members, advised Defendant several times of his potential liability for copyright infringement. By way of the instant motion, Plaintiffs seek statutory damages of $5,000 for each of the three copyright infringements, reasonable costs and attorney’s fees in the amount of $2,650.71, and a permanent injunction against Defendant prohibiting him from publicly performing any of the copyrighted materials in ASCAP’s repertory without authorization.

In CBS Inc. v. Pennsylvania Record Outlet, Inc.,  598 F.Supp. 1549 (W.D. Pa. 1984). The record store defendant was sanctioned for continuing to sell imported Canadian copies of Purple Rain – and other albums – after representing in a consent decree that it would not do so. The opinion has several references to agents of the Plaintiff buying copies of Purple Rain – and albums by Dio and Twister Sister – on various dates in 1984.

Back in 1989, the Amarillo Court of Appeals in Texas issued its opinion in Guss v. State, 763 S.W.2d 609 (Tex. App. – Amarillo, 1989, no writ). In that case, the defendant-appellant, charged with murder, appealed an issue relating to jury destruction. The defendant’s alias was “Purple Rain.” In fact, the full style of the case is Lisa Guss, A/K/A “Purple Rain,” Appellant, v. The State of Texas, Appellee.

So, dear readers, we recommend that you read the aforementioned three cases and find your cassette tape of Purple Rain and enjoy the weekend.

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Kansas Federal Court Rebuffs Overly Broad Social Media Discovery Requests

Here we go again. Just as we’ve discussed before, the courts are limiting overly broad social media discovery requests served by defense counsel. The latest example:  Smith v. Hillshire Brands, No. 13–2605–CM (D. Kan. June 20, 2014). At its essence, Smith is an employment discrimination case in which the pro se Plaintiff alleged violations of both Title VII and FMLA. The specifics of the dispute need not be spelled out in detail as you’ve heard it all before.

Now, there were a number of components to the discovery dispute in this matter, but the social media discovery requests at issue were these:

Request No. 15: All documents constituting or relating in any way to any posting, blog, or other statement you made on or through any social networking website, including but not limited to Facebook .com, MySpace.com, Twitter.com, Orkut.com, that references or mentions in any way Hillshire and/or the matters referenced in your Complaint.

Request No. 18: Electronic copies of your complete profile on Facebook, MySpace, and Twitter (including all updates, changes, or modifications to your profile) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, and comments for the period from January 1, 2013, to present. To the extent electronic copies are not available, please provide these documents in hard copy form.

How curious to see a reference to Orkut in a social media discovery case! We wonder if the defendants had specific knowledge that the Plaintiff used Orkut or if that social media platform simply appears in all of their discovery requests.

Now, as you might imagine, Request No. 15 is legitimate and narrowly tailored, as it limits itself to social media postings relating to the employer or the events being litigated.

In fact, Plaintiff didn’t object to either of the requests, opting instead to produce – or claim to produce – all relevant documents. The dispute arose, however, when the employer defendant doubted that all documents had been produced.

Yes, the employer took the position that it could discover all of the Plaintiff’s social media activity as a result of his claims in the lawsuit. Skeptical of this argument, the Court noted:

Request No. 18 raises a more complex issue, as it seeks documentation of all of plaintiff’s activity on the named social networks since January 1, 2013, regardless of whether the activity has anything at all to do with this case or the allegations made in plaintiff’s complaint. Defendant asserts that this broad swath of information is relevant for at least two reasons. First, it “provide[s] a contemporary diary of Plaintiff’s activities, thoughts, mental/emotional condition, and actions,” which relate to plaintiff’s claim for damages arising from emotional distress. Second, it may support defendant’s “defense that Plaintiff abused his FMLA leave, which is the true reason for Plaintiff’s termination .” Defendant contends that the protective order governing this case adequately addresses plaintiff’s privacy concerns.

As it currently stands, the record does not support defendant’s extremely broad discovery request for all-inclusive access to plaintiff’s social media accounts. As plaintiff notes, such access could reveal highly personal information—such as plaintiff’s private sexual conduct—that is unlikely to lead to admissible evidence in this case. Information on social networking sites is not entitled to special protection, but a discovery request seeking it nevertheless must meet Fed.R.Civ.P. 26′s requirement that it be tailored “so that it ‘appears reasonably calculated to lead to the discovery of admissible evidence.’ “ “Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s [social networking] account[s].” The court agrees with courts that have recognized that a discovery request for unfettered access to social networking accounts—even when temporally limited—would permit the defendant “to cast too wide a net” for relevant information.

As some defendants do, the employer in this case attempted to justify the breadth of the requests by pointing to the emotional distress damages alleged by the Plaintiff. This works, sometimes, and it’s not a bad argument. As social media profiles often showcase our daily lives and the emotions we experience in our lives, what better evidence can there be to support or rebut claims of emotional distress than such things? On this point, the court was cautious:

Based on the limited record before it, the court finds it prudent to follow what appears to be the intermediate approach taken by courts addressing this issue—to allow defendant to discover not the contents of plaintiff’s entire social networking activity, but any content that reveals plaintiff’s emotions or mental state, or content that refers to events that could reasonably be expected to produce in plaintiff a significant emotion or mental state. The court concludes that this approach will permit defendant to discover information relevant to plaintiff’s emotional state, which he has put at issue, while protecting plaintiff from a fishing expedition into every thought he reduced to writing on the internet since January 1, 2013.

But it was one remark by the court that caught our eye and forced us to recognize once again the potential perils of overly broad discovery requests. Behold, the court’s suggestion that such things could be turned around on defendants:

Indeed, if the court were to accept defendant’s position on the scope of relevant discovery, defendant would likely be unhappy with the ramifications. For example, every Facebook post of every Hillshire manager and supervisor involved in the decision to terminate plaintiff could be deemed relevant because it might show discriminatory pretext.

No one wants that. Let’s be careful out there, okay?

Synthetic Marijuana Gets Tangible Victory in California

Last week, an Oakland County, California jury ruled in favor of the defendants in a wrongful death case involving synthetic marijuana. The Estate of John Anthony Sdao filed suit against Yassmine Wholesalers, the distributor of the substance, and a local gas station after Sdao, 20, committed suicide after smoking K2, a brand of synthetic marijuana. The sale of synthetic marijuana was legal at the time of the event, but it has now been banned by California law. The plaintiff presented evidence at trial of numerous other suicides which allegedly occurred as a result of using the substance. Apparently, the jury didn’t buy it under the facts of this case.

We here at Abnormal Use have not seen the verdict form nor are we aware of the full scope of evidence presented at trial. Lee Ann Rutila, who represented Yassmine, had this to say about the result:

We were pleased with the result, and I guess we’re not surprised. . . . They were basically unable to say that the suicide really wouldn’t have happened otherwise. It could have happened with or without the K2. They couldn’t put that as being the contributing factor.

Dean Kallas, who represented the gas station that was accused of selling the product to Sdao, added:

It always appeared that the suicide was unrelated to the product, and that’s been our defense all along, and that’s why I believe the jury came to the conclusions they came to.

The plaintiff apparently plans to appeal the verdict. However, the reports are not clear as to the grounds of any such appeal.

The case of synthetic marijuana is an interesting one. In the shadow of Four Loko, it is difficult to gauge how a jury may handle a product which, while legal at the time of the injury, has been banned by the time of trial. In this case, the personal accountability of the decedent apparently also played a role in the jury’s decision. Proving that it was the product, and not the decedent’s own tendencies, that caused the suicide is a difficult burden to bear.

Despite the result in this trial, we expect to see more of these synthetic marijuana cases in the future. We will be sure to keep you posted.

The Wood-Shelving, Aged Cheese Incident

Beaufort. Comté. Reblochon. Abondance. Vacherin Mont d’Or. Salers. Dry Monterrey Jack. Parmigiano Reggiano. Do you know what these names have in common? For those who are not hip to the niche, artisan cheese market, each of them is a type of cheese which is made by, among other things, being aged on a wood-board.  Now, can you imagine salads, sandwiches, grits, crackers, pasta, or wine without these tasty concoctions? While those names are a mouthful in more ways than pronunciation alone, personally, the thought of a world without easy access to Parmigiano Reggiano would not be a place of which I would want to be a part.  However, per a January communication from the Food and Drug Administration (FDA), that contemplation could become a reality. Based on a response to a question from the New York State Department of Agriculture and Markets, the FDA appeared to sound the death knell for wood-board aged cheese crafted in or imported into the United States.  Specifically, the FDA stated that “[t]he porous structure of wood enables it to absorb and retain bacteria, therefore bacteria generally colonize not only the surface but also the inside layers of wood. The shelves or boards used for aging make direct contact with finished products; hence they could be a potential source of pathogenic microorganisms in the finished products.”  This position was based upon an interpretation of 21 C.F.R. 110.40(a), a regulation about food equipment and utensils which states:

(a) All plant equipment and utensils shall be so designed and of such material and workmanship as to be adequately cleanable, and . . . shall preclude the adulteration of food with . . . any other contaminants. . . . Food-contact surfaces shall be maintained to protect food from being contaminated by any source. . . .

Like wheels of cheese aging for months on wood racks, the news of the FDA’s take on wood-board aging spread slowly to the cheese community, but like the pungent aroma of Beaufort, once it did, artisan cheese craftsmen found themselves with worse heartburn than at a habanero cheddar tasting.  However, in an effort to stave off the effects of enforcement by the FDA, the craftsmen’s advocate, the American Cheese Society, released a position statement wherein it stated that wood-board aged cheese meets food safety standards and that the FDA should give proper notification, hold a proper comment period, review scientific data, and include consideration of industry stakeholders before modifying its interpretation or implementation of its regulations. In a quick response, the FDA clarified its interpretation of its official policy to New York State Department of Agriculture and Markets. This “clarification” declared the FDA did not intend the communication to be “an official policy statement,” but instead as “background information on the use of wooden shelving for aging cheeses and as an analysis of related scientific publications.”  However, the FDA did not back away completely from the idea of ending the use of wood shelving.  Instead, it noted it has pursued enforcement actions when it found the presence of Listeria monocytogenes at facilities that used wood shelving.  The FDA claims that since 2010, more than 20 percent of inspections of artisanal cheesemakers have revealed the presence of Listeria monocytogenes. Currently, no FDA enforcement actions directly allege that wood shelving caused contamination, yet it appears the FDA has left that option open. Should the FDA be able to make a case that wood shelving is the direct cause of a harmful contamination, it can still take administrative or judicial action to enforce its regulations.  Administrative actions include product recalls, withdrawals of product approvals, or license revocations. Judicial actions include seizures of violative products, injunctions, criminal prosecutions, and certain civil money penalties.  It is unclear how the FDA would go about enforcement against the artisanal cheese community; however, generally, the FDA looks to administrative remedies first. Therefore, although the FDA has ended the initial uprising over this issue, artisan cheesemakers will need to remain aware of the FDA’s next moves.  Hopefully, the FDA will give the cheesemakers an opportunity to present their generations-old argument that wood shelving, as a porous surface, absorbs excess humidity and prevents unwanted mold as well as adds to the flavor while still remaining healthy. The future of parmesan depends on it.

GM Recall Devalues All GM Vehicles, California Class Action Alleges

When it rains, it pours for GM.  Of course, if you’re a reader of a products liability blog, then you’re certainly already familiar with the myriad difficulties facing GM in various courts across the country these days. A recent class action suit filed in California alleges that GM’s actions in handling the alleged ignition switch defect have resulted in a devaluation of all GM cars, which will cost GM customers when it comes time to resell their vehicles.  Surely you saw this one coming, right? The named plaintiff in the suit is Anna Andrews, and the firm that filed the suit on her behalf is Hagens Berman Sobol Shapiro, LLP.

The lawsuit purports to seek at least $10 billion, which is apparently over twice GM’s net earnings for 2013.  It will be interesting to see how this suit plays out.  We at Abnormal Use see this as a slippery slope in that it could lead to a class action suit by owners of a product any time a brand receives negative publicity, finds itself subject to a recall, or otherwise makes headlines relating to a defect. Only time will tell.

(Hat Tip: Law360).

Friday Links

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“Chaos in the Court!” proclaims the cover of Marvel Team-Up #51, published way, way back in 1976. In that issue, Spider-Man and Iron Man join forces to defeat a villain in a courtroom. Look closely in the top right hand corner and you’ll see the judge at his bench desperately attempting to dodge the bad guy. We can only assume that the people depicted fleeing at the bottom of the cover are lawyers or other courtroom personnel. We may need to investigate how this one turned out, but we suspect superhero battles violate the court’s local rules. If you’re curious, you can find a summary of this issue here.

You need to read about this odd lawsuit involving Eddie Murphy.

An interesting – but likely doomed – argument: “Attorneys for two people convicted in a federal mortgage fraud case are asking for a new trial, in part because they say their clients’ rights were violated when prospective jurors who did not meet the dress code at the federal courthouse in Orlando were turned away by security.” For more, please see this news article by Lyda Longa of The Daytona Beach News-Journal.

If you’re feeling some nostalgia for New Coke, you might be in luck. Click here for a trip down memory lane. (Or, if you’re a young associate, and you’ve never heard of New Coke, click that link, as well.).

Don’t forget! We here at Abnormal Use are at the North Carolina Bar Association Annual Meeting in Wilmington, North Carolina today! If you see us, say hi!