Friday Links

We here at Abnormal Use are very pleased to announce that our own Mills Gallivan has been named President of the Federation of Defense & Corporate Counsel (FDCC) with his term as President ending in July of 2017. As you may recall, Mills has authored a post or three here at Abnormal Use, and you can view the archive of his contributions by clicking here.

To all of this week’s weary takers of state bar examinations, get some rest.

So who’s seen Star Trek Beyond? Any thoughts? We must confess we enjoyed it, and once some time has passed, we may offer some thoughts about the usage of popular music in the film. But, dear readers, this is a spoiler free zone, so we will share no more details here at this time.

Our favorite legal tweet of the week references a feeling we too experience:

Snapchat Now Accused of Stealing Faces

Social media giant Snapchat just can’t seem to keep itself out of the courtroom in recent months. Back in April, Snapchat was sued over a distracted driving accident. Earlier in July, the company was sued over allegedly offensive content surfacing on the app. Now, Snapchat is being sued for stealing people’s faces. That’s right, stealing faces.

So how can social media app can steal someone’s face? Well, it hasn’t joined the cult of the Many-Faced God if that is what you are thinking.In reality, it is a little more complicated. According to a report from NBC Chicago, two Illinois men have filed a class-action suit in California alleging that Snapchat captures users’ facial data without their consent in violation of the Illinois Biometric Information Privacy Act. Specifically, the suit targets Snapchat’s Lenses technology, an object recognition feature contained the app that allows users to swap faces or add quirky elements to their snapshot.

The biometric law at issue was introduced back in 2008 in response to certain gas stations and grocery stores testing the use of fingerprinting to make financial transactions. The American Civil Liberties Union took issue with the practice and spearheaded the passage of the law in an effort to prevent biometric identifiers getting into the hands of the wrong people.

For the same reason, the ACLU has been eyeballing Snapchat. According to ACLU legislative director Mary Dixon:

What we were concerned about is how [facial recognition technology] could be acquired and used, even in ways we didn’t know about . . . While you can, with great difficulty, change your Social Security number, you cannot change your unique biological identifier.

We here at Abnormal Use can certainly appreciate the right to privacy. Nonetheless, we think the fear of the plaintiffs and the ACLU are unfounded. The Lenses technology apparently does not capture and create a database of faces. Rather, it simply figures out whether an object is a face and, if so, where each facial feature is located. For Snapchat users, this is the technology that lets the app know where to put the dog nose, the heart eyes, and the rainbow tongue. In other words, it is the all the good in Snapchat.

New Hero Armed with 24-Year Old Drawing Emerges In Fight Against Apple

During the last few years, Apple has been no stranger to patent litigation over the design of its smartphones and tablets. In fact, to many of us, it seems as if the smartphone patent wars may extend into an era where no one has ever heard of an iPhone. While Apple’s feud with Samsung garners all the media attention, we here at Abnormal Use are here to tell you that a new opponent has entered the arena.

That opponent is Florida resident, Thomas S. Ross. Or, as we like to refer to him as “David” (or “Jon Snow” or “Frodo” or any other hero facing seemingly insurmountable odds). If you have never heard of Ross, you will.  According to reports, Ross filed suit against Apple in the U.S. District Court for the Southern District of Florida alleging that the iPhone, iPad, and iPod are a rip off of his idea.  That idea being Ross’ 1992 hand-drawn “Electronic Reading Device” (depicted below).


Ross alleges that he was the “first to file a device so designed and aggregated” nearly 15 years before the introduction of the iPhone. The gadget, imagined by Ross in 1992, possessed the capability for mixed media-browsing and communications and featured a touch-screen display, a disk drive, a modem and solar panels to power up the device.  s a result of Apple’s alleged patent thievery, Ross allegedly has experienced “great and irreparable injury that cannot fully be compensated or measured in money.” He will, however, settle for $10 billion in damages plus 1.5 percent of upcoming iPhone sales.

To be fair to Ross, he did, in fact, apply for a utility patent with the U.S. Patent and Trademark Office for the drawings of his gadget back in November 1992. However, the application was declared abandoned in April 1995, for failure to pay application fees. Ross also submitted a copyright application with the U.S. Copyright Office in 2014. While we have serious doubts Ross will ever see anything close to those financial demands contained in his lawsuit, we hope this goes well for him. We still have a picture of a flying car we drew after the release of Back to the Future II in 1989 that we would love to cash-in on in the future.

California Federal Magistrate Stresses Proportionality Requirement Under New Federal Rule 26

As we have previously reported here and here, the Federal Rules of Civil Procedure have recently changed. One of the major changes to the rules is the new definition of scope of discovery under Rule 26:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any  party’s claim or defense and proportional to the  needs of the case, considering the importance of  the issues at stake in the action, the amount in controversy, the parties’ relative access to  relevant information, the parties’ resources, the  importance of the discovery in resolving the  issues, and whether the burden or expense of the  proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

In her June 9, 2016 order in the FTC v. DirecTV, Inc., U.S. Magistrate Judge Maria Elena-James stressed the importance of the new proportionality requirement. The following is a summary of the issue in dispute. DirecTV asked for all consumer complaints received by the FTC pertaining to ten different companies, and the FTC challenged the scope of the request. The parties were ordered to meet and confer regarding the scope of the request. Following negotiations, DirecTV limited its request to three of its competitors, but it still requested all complaints. A query run by the FTC showed that “all complaints” pertaining to the three competitors included over 200,000 complaints, and the FTC again pushed back on the scope of the request and proposed that random sampling of the complaints be conducted to determine whether they are relevant. Judge Elena-James concluded as follows:

Having reviewed the parties’ positions, the Court finds the FTC’s sampling proposal more closely comports with Rule 26’s demand for proportionality. Rule 26 provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Factors to consider include “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. Under Rule 26, “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed. R. Civ. P. 26 advisory committee notes (2015 amendments). Thus, there is “a shared responsibility on all the parties to consider the factors bearing on proportionality before propounding discovery requests, issuing responses and objections, or raising discovery disputes before the courts.” Salazar v. McDonald’s Corp., 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 2016); Goes Int’l, AB v. Dodur Ltd., 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016) (citing advisory committee notes for proposition that parties share a “collective responsibility” to consider proportionality and requiring that “[b]oth parties . . . tailor their efforts to the needs of th[e] case”).

She ultimately agreed with the FTC that sampling was appropriate as “the relevance of these materials is largely speculative and a random sample therefore gives DIRECTV what it seeks through these Requests for Production while rendering the FTC’s burden reasonably proportional to the materials’ purported evidentiary value.”

The Perfect Is The Enemy Of The Good

The phrase “The Perfect is the Enemy of the Good” can be traced back to one of Voltaire’s 18th century poems. Shakespeare expressed similar sentiments: “Were it not sinful then, striving to mend, to mar the subject that before was well?”

Doing a good job becomes almost impossible when we strive to do it perfectly. In many cases, we do not begin the project, much less finish it, since we know it cannot be done perfectly. How many times have we been afflicted with “paralysis by analysis,” pursuing perfection?

Perfectionism can lead to negative consequences. Research suggests that those who suffer from intense perfectionism are at higher risk for suicide. They are driven by an intense need to avoid failure. To these people, nothing seems quite good enough, and they are unable to derive satisfaction from what ordinarily might be considered even superior performance (Dr. Sidney J. Blatt, “The Destructiveness of Perfectionism:  Implications for the Treatment of Depression,” American Psychologist, Volume 49, Number 12 (1997)).

In Stress Management for Lawyers, Dr. Amiram Elwork notes that perfectionism is rewarded in both law school and the practice of law. However, it can lead to negative thinking: “If I don’t do it perfectly, I’m no good; it’s no use; I should just give up,” or “I have to do it perfectly and I can’t quit until it’s perfect.” This type of thinking can lead to isolation and depression.

In his book Lawyer Life: Balancing Life and a Career in Law (American Bar Association, 2003), Judge Carl Horn said that striving for professional excellence is a good and worthy goal.  In sharp and important contrast, trying to achieve perfection is not.  In his book, Letters to a Young Lawyer, In his book, Letters To A Young Lawyer,  Alan Dershowitz wrote a chapter titled, “The Perfect is the Enemy of the Excellent.” He observed that “every book, painting, symphony or speech could be improved.  The search for perfection is illusory and has no end.”

As Judge Horn advises, we would do well to strive for professional excellence but be wary of any tendency we may have toward perfectionism.

Should Judges Allow Juries To Hear A Windfall May Be Bad For A Plaintiff?

Windfall Plaintiff

Around times of big lottery jackpots, it is widely reported that bad things often happen to people who win the lottery or receive a large financial windfall, and the statistics are staggering:

Indeed, 44% of those who have ever won large lottery prizes were broke within five years, according to a 2015 Camelot Group study. The Certified Financial Planner Board of Standards says nearly a third declared bankruptcy—meaning they were worse off than before they became rich. Other studies show that lottery winners frequently become estranged from family and friends, and incur a greater incidence of depression, drug and alcohol abuse, divorce, and suicide than the average American.

Some reports even say that “70 percent of people who suddenly receive a windfall of cash will lose it within a few years.” There are horror stories like Abraham Shakespeare’s:

Abraham Shakespeare was murdered in 2009 after he won a $30 million lotto jackpot. The 47-year-old Florida man was shot twice in the chest and then buried under a slab of concrete in a backyard, ABC News reported. DeeDee Moore, who authorities say befriended him after his lotto win, was found guilty of first degree murder in 2012. His brother, Robert Brown, told the BBC that Shakespeare always said he regretted winning the lottery. ‘I’d have been better off broke.’ He said that to me all the time,’ Brown said.

The odds suggest that it is not only possible that a windfall will leave someone worse off than they were before the windfall, but it is likely. The question we have is, if a plaintiff asks the jury for a large noneconomic damages award, for example, should the defendant be able to put on evidence of the potential harm that such an award could do to the Plaintiff? Should expert testimony on the subject be permitted? We don’t have the answers, but it seems like a topic worth exploring.

Oregon Bankruptcy Judge Finds Erin Andrews Stalker Responsible For Share Of Verdict

Erin Andrews bankruptcy

We have previously posted regarding the Erin Andrews peephole trial on several occasions. We coverage of the trial here. We then covered the multi-million dollar verdict here. Here, we discussed it in the context of lawsuits not being worth the amount of money that the plaintiff requests in the complaint and we questioned whether Andrews would ever collect the alleged stalker’s, Mr. Barret’s, portion of the verdict:

In the Erin Andrews case, the “$75 million lawsuit” tag turned out to be misleading. The Plaintiff’s attorney did not ask the jury for a specific amount of money in closing, and the jury ultimately awarded $55 million. Of the $55 million, the hotel owner defendant was required to pay $26 million when its share of the verdict was reduced proportionate to its percentage of fault. The $28 million portion of the verdict that the jury assigned to the individual defendant (who is currently serving time in prison) might as well be forgotten, as that will never be collected. With the uncertainty of what will happen on appeal, and potentially applicable insurance policy limits that are well below the amount awarded, the case will likely settle for significantly less than the jury awarded.

As it turns out, Mr. Barret filed bankruptcy in Irving, TX and asked the bankruptcy court to discharge his duties to make good on the Erin Andrews verdict. Reportedly, “Mr. Barrett’s bankruptcy allowed him to cancel a portion of the nearly $160,000 in debt he faced, but Ms. Andrews’s lawyers argued that federal law prevents him from getting out of paying damages owed for recording and posting a video showing her naked in her a hotel room.” Judge Trish Brown, Oregon bankruptcy judge, denied Barret’s request that the damages award obligation be discharged, concluding that the damages owed by Barret to Erin Andrews were non-dischargeable.

Despite the bankruptcy judge’s ruling, we still agree with former professor at this author’s alma mater and current legal analyst for Sport Illustrated, Michael McCann’s conclusion that Barret is likely judgment proof:

Andrews’s capacity to collect the $55 million in damages will soon come into focus. First consider that 51% of her damages—about $28 million—are assigned to the 54-year-old Barrett. It stands to reason that Barrett is what’s known in law as ‘judgment proof,’ meaning someone who is ordered by a court to pay damages but lacks the financial wherewithal to do so. Before his incarceration in 2010, Barrett was an insurance executive, which presumably paid him a good salary. But after his release in 2012, it’s not clear if he has been employed. It’s a safe bet to assume he hasn’t amassed anything near $28 million. In fact, in 2010, Barrett’s attorney, David Willingham, said Barrett had lost entire life savings. If Andrews receives any money from Barrett over the rest of their lives, it will likely be a very small amount.

This one illustrates one of the three major challenges that Plaintiff’s attorney’s face. Sometimes they have a great case on liability but no damages. Other times they have a great case on damages, but there is no liability. And other times, they have a great case on liability and damages, only to find out that the defendant is a turnip-turned-attempted-blood-donor.

Real Lawyers Don’t Cry

My parents, Grady and Mary Mauney, were good friends and neighbors of the local Chevrolet dealer, Bill Turner, and his wife, Trilby. They had two kids about my age, and then later had another child, TK. At a young age, TK developed meningitis and was hospitalized at Bowman Gray Hospital in Winston-Salem, North Carolina. TK was eventually placed on a ventilator, her prognosis poor. I rode with my parents from Forest City, North Carolina to see Bill and Trilby at the hospital. I still remember the steadfast strength shown by Bill Turner while facing this personal tragedy. Trilby demonstrated her own strength through her faith in God.

We listened as Bill described how the doctors had just reported the results of an EEG, which showed no brain activity. They were faced with a gut wrenching decision. I watched as my Dad listened, saying little, but offering his support through his presence there. His eyes welled up with tears. I had never seen my Dad cry. He probably had, especially when his brother Charles died a few years earlier. My Dad was a real man, lover of sports, a father of three, husband to my Mom. He was a professional, a dentist, who took pride in his work and his family. But I had never seen him cry. Until he sat next to Bill Turner and learned of TK’s likely fate. She died shortly after our visit.

As lawyers, (Flagler Personal Injury Group handles motorcycle accident cases and you must know about them) we are most often problem solvers, working through difficult situations for our clients, perhaps resolving some conflict, as you can see if you visit original source. We are trained to dispassionately scrutinize the facts and analytically apply the law to those facts. In doing so, lawyers often neglect their internal feelings, suppressing their innermost emotions and thoughts in favor of cold, analytical reasoning. The result is that lawyers for dentists often struggle with their own mental health, not paying enough attention to that side of ourselves. We need to be reminded of the importance of our own emotional well-being, taking the necessary steps to be both physically and emotionally healthy.

It was appropriate for my Dad to cry that day, as he visited with Bill and Trilby Turner. It was an emotionally healthy thing for him to do. It showed that he understood the depth of their suffering.  As professionals, we should learn that lesson and let ourselves fully experience our emotions under appropriate circumstances.

Friday Links


Okay, so we here at Abnormal Use saw the new Ghostbusters film last night, and we can report that we enjoyed it! Funny, for the most part, and save for the wholly typical big budget action climax at the film’s end, the film worked! In fact, the only cringeworthy moments were the cameos of the members of the original cast (which seemed awkward, forced, and generally inconsistent with the other portions of the film). Our recommendation: Go see it. Above, to celebrate the release of the new film and the renewal of the franchise, we’ve appended the cover of Ghostbusters #1, published not so long ago in 2011.

Congratulations to our own John T. Lay, who has been elected president of the International Association of Defense Counsel (IADC)! For more information on that news, please see here.

Did you read Keith Lee’s “Is PokemonGo Illegal?” blog post this week? Speaking of which, our favorite legal tweet of the week is Pokemon related:

Gotta Catch ‘Em All: Abnormal Use On Pokemon Go

As many of you are now aware, the Pokémon Go app was unveiled last week in the United States. Although the app has only been officially released in limited areas, the app has had more than a significant impact on Nintendo’s (the parent company) worth. In just a matter of days after the release of the new Pokémon Go app, Nintendo’s value increased by more than $10 billion.

The popular app has also stirred up quite a few entertaining stories, and there are more to come. One particularly interesting anecdote was shared by a gentleman named Boon Sheridan via his Twitter account. Mr. Sheridan reported that his home (which was previously the location of a church over 40 years ago) was designated as a gym by the app. So over the past few days, scores of Pokémon Go participants have appeared outside of Mr. Sheridan’s home to “train” their Pokémon characters in this virtual gym. Initially, Mr. Sheridan seemed amused that his home was identified as a gym; however, he may not have realized the app’s popularity and his amusement soon turned to irritation as people continued to loiter outside of his home for 10-15 minutes and then leave. Mr. Sheridan complained of constant traffic and even the possibility of decreasing property values. Recently, there was also a motor vehicle accident reported in Auburn where a driver went off the road and struck a tree while playing the Pokémon Go game.

With so many interesting stories surfacing every day, it seems inevitable that at some point someone will bring a claim against the Nintendo Co. I believe it will be unlikely that a driver distracted by the game will have success in bringing a claim, but maybe an unsuspecting pedestrian chasing a Squirtle into a precarious situation, or a player going to the wrong gym at the wrong time, will be the first to take a shot at Nintendo. I think this may be the most likely scenario judging from the reports of extremely odd locations of some of the Pokémon landmarks and strange encounters that have occurred while playing the game.

In any event, it will be interesting to see if the app will maintain its popularity and player enthusiasm, and if so, what stories will we hear next.