The Crossbow Recall

As you might suspect, we here at Abnormal Use are not avid bow and arrow hunters.  We are better eaters than hunters or gatherers.  I myself have only owned one bow and arrow, the Nerf Bow “N” Arrow with the built-in sight, which was released in 1991.  So, I am fully qualified to write about the dangers associated with the crossbow, a weapon which presumably derived from the Nerf Bow ‘n’ Arrow. On April 22, 2014, Crossbow manufacturer Excalibur Crossbow, Inc. of Canada recalled its “Excalibur Matrix Mega 405 Crossbow” according to the Consumer Products Safety Commission.   According to the recall report, Excalibur has received significant . . . wait . . . Excalibur has received one report, a single report, of the Matrix Mega firing unexpectedly and causing significant bodily injury . . . wait . . . never mind no injuries have been reported.  All joking aside, this crossbow does not fire Nerf arrows, and a crossbow that “can fire an arrow without the trigger being pulled” seems dangerous.  If you are the owner of one of the 1,000 of units being recalled, you can return them to the retailer or send them back to Excalibur for repair.  Don’t worry, they will pay the shipping.

Tech Giants Agree to Settle (No) Poaching Lawsuit

On the eve of what could have been very embarrassing litigation for Apple, Google, Intel, and Adobe, the four tech giants agreed to settle a federal lawsuit in California alleging that they conspired to keep wages lows for certain employees.  The settlement is worth approximately $325 million. That would seem like a pretty massive settlement for these companies unless you consider the fact that Google and Apple alone have a combined market cap of nearly $1 trillion.

The Plaintiffs in the lawsuit alleged the four tech companies agreed to not poach each others’ employees, which in effect formed an anti-competitive cabal that kept engineers’ wages down.  A class-action antitrust lawsuit was filed to compensate the engineers that worked for the tech giants from approximately 2005 through 2006.  There were more than 60,000 workers in the class.  Class members claimed that the no poaching agreement resulted in $3 billion of lost wages.  That’s a far cry from the $324 million settlement agreement. Although some of the companies admitted the no-poaching agreement, they disputed the fact that it was done to keep price wages down.  Right. So, these multi-billion companies claim ignorance of basic economic principles?  I know some of these tech guys pride themselves on not having college degrees, but maybe they should take a few online college courses?  Economics 101 would be a start.

Some of the alleged actions of the executives laid out in the Reuters article are just comical:

  • After a Google recruiter solicited an Apple employee, then-Google CEO Eric Schmidt told Apple co-founder Steve Jobs that the recruiter would be fired.  Jobs then forwarded the email to an Apple HR executive with a smiley face.
  • A Google human resources director sent an email asking Schmidt about sharing its no-cold call agreements with competitors.  Schmidt replied that the agreement should be spread “verbally, since I don’t want to create a paper trail over which we can be sued later?

If you are going to go the route of avoiding a paper trail, wouldn’t you pick up the phone to tell someone that?  Maybe its just me.

Lucasfilm, Intuit, and Pixar were also defendants in the original lawsuit, but those companies settled before the class was formed. Those companies got off relatively cheap, paying approximately $20 million to settle the claims against them.

We often say that in class action lawsuits there’s really no winner other than the lawyers.  However, I think it’s safe to say that the tech companies won here.  $325 million is nothing to sneeze at, but it really works out to about $5,500 per employee (before deducting fees and costs).  While that’s certainly better than the $10 gift cards that are the spoils of many class action settlements, it’s not a lot of money in comparison to what these employees may have lost.

McDonald’s Gets A New Face

imageLast week, McDonald’s unveiled a new look for Ronald McDonald, the face of its vast fast food franchise. After sporting the same hair, makeup, and clothes for the past 51 years, Ronald has been given a much needed makeover. According to a report from by Yahoo! Finance:

The yellow jumpsuit Ronald’s worn for so long will be replaced with cargo pants and a vest, along with a red-and-white striped rugby-type shirt. That’s going to be the standard uniform. For “special occasions,” he’ll sport a red jacket, bowtie and yellow pants, the company says. At the same time, he’ll also get involved with the corporate office’s social media efforts.

While we here at Abnormal Use are fans of McDonald’s (and write about it often), we must admit that Ronald has always given us the creeps. As clowns go, his looks have always been more “Pennywise” than “Bozo.” Unfortunately, the new Ronald doesn’t look much better. Giving Ronald a bow tie and a rugby shirt can’t mask the fact that he remains a creepy clown. On the positive side, Ronald has decided to ditch one-piece jumpsuit. So, there’s that.

As excited as everyone is about the update, we are more interested in hearing new Ronald’s position on hot coffee. Under the leadership of the former Ronald, McDonald’s held strong in the midst of much coffee litigation, including the infamous Stella Liebeck suit. Much to the delight of millions of customers, Old Ronald followed the basic principle that coffee is meant to be served hot. In this regard, old Ronald emerged as a pillar of the coffee community regardless of his unfortunate appearance. We only hope the new Ronald can display the same strength and fortitude, but fear he may face challenges with the bow tie and Craig Sager-esque jacket. Only time will tell.

Friday Links


“I’m about to commit my first crime – and you, Batman, are about to be the victim!” exclaims Superman on the cover of World’s Finest #180, published way, way back in 1968. We believe him! However, the title of the story appears to be “Superman’s Perfect Crime,” and we must dispute that characterization. If Superman is attempting to commit the perfect crime, then perhaps he should refrain from literally shouting his confession from the rooftop in broad daylight.

If you like tweets about medical malpractice trials, this tweet might be the one for you.

Did you see this article in The Charlotte Observer this week about the proposed new regulations for food trucks? If not, click here for the story by Caroline McMillan Portillo. Speaking of food trucks, our editor, Jim Dedman, has planned a CLE on Food Truck Law in conjunction with the Mecklenburg County Bar Association. Best part: The CLE – which will start at 4:00 p.m. on Thursday, May 22, will be at the Unknown Brewery in near Charlotte’s South End. For more information on the CLE, click here.

Speaking of our editor, he’s now on Twitter. You can follow him here at @JimDedman.

Liebeck v. McDonalds Restaurants: The Original Coffee Product Liability Case

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Recently, his piece, “Liebeck v. McDonalds Restaurants: The Original Coffee Product Liability Case,” was published by DRI Today. Although the case is often discussed as one involving Ms. Liebeck’s potential contributory negligence (or lack thereof, depending upon your perspective), the article focuses on the case and the specific products liability claims asserted therein. Here’s the first two paragraphs of the article:

Back in 1994, Stella Liebeck v. McDonalds Restaurants became one of the most talked about lawsuits in American history. To this day, that New Mexico state court case is an essential component of any tort reform debate or discussion of litigation lore.  At that time, and to this day, the thought of a fast food drive-thru customer spilling coffee on herself in her vehicle and later recovering a punitive verdict of $2.7 million was simply too much for many members of the public. As we all know, the case became fodder for late night talk show hosts and later, Internet commentators, most of whom were relatively unfamiliar with the basic facts of the case. Over the years, the case has become part cautionary tale, part urban legend, and individuals seeking confirmation of even the most basic facts of the case have encountered great difficulty (in part because the case resulted in no formal appellate opinion setting forth its factual and procedural background).

In recent years, the trial lawyers, initially put on the defensive by the verdict and its ensuing publicity, have attempted to rehabilitate the reputation of the case, using the severity of Ms. Liebeck’s physical injuries as evidence of the lawsuit’s purported merit. Two years ago, trial lawyer turned filmmaker Susan Saladoff released Hot Coffee, an editorial documentary using the Liebeck case, and other cases of note, as examples of the purported evils of tort reform. To some degree, the success of the documentary, and the editorial coverage thereof, has prompted the public to rethink some of the issues of this case.  In said documentary, Saladoff stressed the McDonald’s policy of serving 180 to 190 degree coffee which, when spilled, could result in second and third degree burns like those Liebeck sustained more than two decades ago. However, reviewing the basic facts of the case and the legal issues in play, it is apparent, even two decades later, that the Liebeck case was questionable at best, frivolous at worst.

For the rest of the article, please see here.

Gasp! Cheese Dogs Accidentally Find Themselves in the Marketplace

Not wanting to be outdone by Hebrew National, Kraft has seized its opportunity to corner hot dog related legal news. According to a CNN report, Kraft has recalled 96,000 pounds of Oscar Mayer hot dogs due to a package labeling error. On April 18, a consumer opened his package of Oscar Mayer Classic Wieners only to discover that the package contained cheese dogs. In a statement issued by the U.S. Department of Agriculture’s Food Safety and Inspection Service, the classic label is said to “not reflect the ingredients associated with the pasteurized cheese in the cheese dogs.” In other words, milk is not a standard ingredient in the average dog.

This recall comes just in time. We here at Abnormal Use can not imagine the horror of discovering that our hot dogs had been replaced by those horrid cheese dogs. Not even an April Fool’s joke could be that cruel. Cheese has no place inside of a hot dog. On top, maybe. Inside, never. Thankfully, we have governmental agencies like the Department of Agriculture to facilitate swift remedies to these types of ills.

In all seriousness, we understand the purpose of the recall. For business purposes, Kraft obviously does not want mislabeled products in the stream of commerce. For legal reasons, we assume the company wanted to protect itself from claims arising out of the accidental ingestion of milk, a known allergen. Or, from angry consumers who accidentally took a bite of such vile food products. The latter is a failure to warn claim even we could get behind.

GM Faces Derivative Shareholder Lawsuit

General Motors (GM) has recently faced a flurry of legal problems and bad publicity stemming from a decision to delay the recall of nearly 3 million vehicles with allegedly faulty ignition switches.  The automaker is being investigated by multiple government entities, including the Department of Justice, regarding the timing of its recall.  Now it can add one more problem to the list.  A shareholder recently filed a derivative shareholder lawsuit against GM, several current and former GM officers, and several GM board members. The Plaintiff’s lawsuit, which was filed in federal court in Michigan, alleges a breach of fiduciary duties and a waste of assets.  The shareholder is seeking damages and a court order requiring the Detroit automaker to overhaul its corporate governance structure to protect shareholders from future “damaging events.”  Specifically, he wants GM to create a board committee responsible for safety, inspection, and maintenance.  He claims that such a committee will give shareholders more input into board polices and guidelines.  The Plaintiff has also sought a court order that shareholders be allowed nominate at least four candidates to the board. Regardless of whether the Plaintiff is successful in this suit, GM looks to be in a world of trouble over this recall controversy.  We expect to see the federal government levy a fine against GM that is as bad or worse than that handed down to Toyota.  In March, Department of Justice officials scolded Toyota for its actions during the unintended acceleration recall and announced a $1.2 billion criminal penalty against Toyota.   The irony of GM running into problems with the government is that GM was essentially owned by the federal government from 2008 until just last December.  This time period covers at least part of the time when GM is alleged to have committed wrongdoing with respect to failing to recall the vehicles.

A New Lawsuit: Did Chobani Pilfer Its Yogurt Recipe?

It has been a tough few months for the Chobani Greek yogurt company.  In February, we here at Abnormal Use  reported on both a court’s then recent ruling that the company could not label its yogurt “Greek” since its products are made in America and Russia’s decision to block Chobani’s yogurt from reaching U.S. athletes in Sochi.  Now, the company faces a new problem: allegations of corporate espionage.  According t0 the New York Post, a recent court filing alleges that Hamdi Ulukaya, founder of the Chobani, stole the Chobani yogurt recipe from rival yogurt company Fage.  The allegation is part of a 2012 lawsuit brought by Ulukaya’s ex-wife, Ayse Giray. The suit alleges that Giray owns 53 percent of Chobani based on a 2003 handwritten letter from Ulukaya promising her an ownership interest in a Chobani precursor company (Euphrates).  That ownership interest was allegedly given in exchange for Giray providing $500,000 in capital.  However, she has no stock or other proof of ownership in the company.

Now as part of her lawsuit, Giray is alleging that Ulukaya paid a former Fage employee approximately $4o,ooo for the yogurt recipe. Regardless of whether the allegation is true, it is a bit of head-scratcher. Why would a person who allegedly owns 53 percent of a company-to-be claim that the company developed its main product through corporate espionage?  We can only figure that perhaps it was meant to discourage an investment firm from  purchasing a stake in Chobani that would dilute her 53 percent.

Bloomberg Business Week actually did a cursory analysis of the Chiobani and Fage yogurts ingredients, which revealed some difference.  Most notably, Chobani’s yogurt uses nearly 1/4 more milk than Fage’s yogurt.  So maybe this whole thing is much ado about nothing.

Friday Links


Above you’ll find the cover of the House of Secrets #43, published way, way back in 1961. As you can see, the two defendants find themselves in the “Court of Creatures” facing the death penalty. Yikes. We do not believe the Defendants will fare well in this forum.

Writing at The Mac Lawyer, Ben Stevens asks “What if You Could Charge an iPhone in 30 Seconds?” That would be something, wouldn’t it?


Tomorrow is the fourth anniversary of Professor Mark Osler’s Last Lecture at Baylor Law School (more about which in the image above). For even more on that occasion, see Professor Osler’s 2010 blog post  here. Now, of course, Professor Osler teaches at the University of St. Thomas Law School in Minnesota. Back in 2000, he joined the faculty of Baylor Law, where he stayed until 2010. By the way, you can read Professor Osler’s blog, Osler’s Razor, here, and you can follow him on Twitter here.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

Casino Loses Millions, Sues Card Manufacturer

Recently, we wrote about a man suing a Las Vegas casino after he lost $500,000 gambling while intoxicated.  As ridiculous as that suit may be, the Borgata Hotel Casino and Spa in Atlantic City is now vying for silliest casino lawsuit of the year.  In a new suit filed in federal court, the Borgatta is suing Phillip Ivey, Jr., a big time professional gambler, and Gemaco, Inc., a card manufacturer, claiming Ivey won $9.6 million in a baccarat card-cheating scheme.

We imagine the nearly $10 million in winnings was  against the house edge.

The real kicker is not that Ivey won such a large amount of money but, rather, how he was able to do so.  According to the complaint, Ivey exploited a defect in the cards that allowed him to improperly sort and arrange them using a technique called “edge sorting” – illegal under the New Jersey casino gambling regulations.  The cards, manufactured by Gemaco, were allegedly defective in that the pattern on their backs was not uniform.  Where the cards were supposed to have a row of small white circles designed to look like the tops of diamonds, some of the cards apparently only had half or quarter diamonds.  Allegedly, Ivey was able to sort desirable cards from undesirable ones after observing the defect.

We have to wonder when the Borgatta discovered this alleged defect. In an industry so heavily controlled and regulated, we find it hard to believe that any deck of cards would ever see the light of a casino floor without first being inspected and approved by the casino.  With so much money on the line, Judi online have never been shy about self-policing.  If this “defect” was an obvious one, we imagine these cards would have been sent right back to Gemaco.  If there actually was a defect, then it was most likely so slight that it was undetected by even the most careful inspectors.  The fact that Ivey was able to notice the flaw is impressive. Sure, it is easy for the Borgatta to point the finger at Gemaco.  After all, its alleged flaw may have cost the casino nearly $10 million.  But, why did Borgatta use a card with a decorative card backing in the first place?  It seems like such cards would be more susceptible to non-uniformity and enable these types of situations.

We suppose a simple solid design would have been too tacky for the Borgatta.  A casino’s extravagance is what draws the gamblers in to throw away their money.  Unfortunately, this time it backfired.