We frequently post on social media issues, including issues pertaining to Facebook. As we recently reported, an article authored by our editor, Jim Dedman, was recently published in the January 2016 edition of The Inside Scoop, the newsletter of the North Carolina Bar Association’s Corporate Counsel section.

But we’ve got more news on this front.

Facebook is apparently in the news again for legal reasons following “[a] report commissioned by the Belgian privacy commission [that] as found that Facebook is acting in violation of European law, despite updating its privacy policy.” The study at issue was conducted by the Centre of Interdisciplinary Law and ICT at the University of Leuven in Belgium. The report “claimed that Facebook’s privacy policy update in January had only expanded older policy and practices, and found that it still violates European consumer protection law.” Specifically, a number of provisions in the new privacy policy still fail to comply with the Unfair Contract Terms Directive in a number of ways, including but not limited to:

• Placing too much burden on Facebook users to navigate Facebook’s “complex web of settings in search of potential opt-outs”
• Providing no mechanism by which users can stop Facebook from collecting location information on users via its smartphone app besides stopping location access on the phone via the mobile operating system
• Offering no choice regarding the user’s appearance in “sponsored stories” or sharing of data pertaining to location.

Facebook has apparently met with Bart Tommelein, the Belgian privacy minister, to discuss the issues raised in the report, and to convey its position that its new privacy policy does not violate any laws.  Facebook is supposedly being investigated by various other European nations for various privacy infractions as well.

As you know, we here at Abnormal Use enjoy writing at other publications, as well, and this week is no different. Our editor, Jim Dedman, has penned a piece called “The Ethics of Social Media Research,” which was recently published in the January 2016 edition of The Inside Scoop, the newsletter of the North Carolina Bar Association’s Corporate Counsel section. Here’s the first paragraph for you:

Lawyers now find themselves well into the era of social media discovery. Time was, Internet evidence was a novelty, and courts eyed such issues with wonder and skepticism. Cf. St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774 (S.D. Tex. 1999) (“[A]ny evidence procured off the Internet is adequate for almost nothing . . . .”). These days, these inquiries are routine. Accordingly, corporate counsel should be aware of the ethical principles governing social media research in litigation (whether they be conducting such  research internally or relying on outside counsel to do so).

First and foremost, lawyers must familiarize themselves with legal technology issues. Generally, “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” See ABA Model Rule of Prof’l Conduct 1.1, cmt. In fact, North Carolina has applied this requirement to social media specifically, noting that “[c]ompetent representation includes knowledge of social media . . . .”  See NC 2014 Formal Ethics Opinion 5.

You can read the full article here.

Super Bowl 50 has come and gone, here are a few takeaways from the Abnormal Use sports department.

It wasn’t a boring game, it was just unappreciated. There are countless news articles and commentaries calling Super Bowl 50 “boring” or “underwhelming.” But spectators and fans of the game should have appreciated the dominate performance of Von Miller and the rest of the Denver Broncos’ defensive line. Denver won in the trenches and that was the difference in the game. Seeing Demarcus Ware wreaking havoc in the backfield and the rest of Denver’s defensive line constantly getting pressure on one of the most elusive quarterbacks in the NFL was quite a sight. Hats off to Denver’s defense

Peyton Manning was unquestionably one of the greatest QBs of all time. Peyton Manning is the winningest QB of all time with 200 career wins. He is also the first QB to win Super Bowls with two different teams (as the starting QB). He holds the record for career passing touchdowns, single season touchdowns, passing yards in a single season, and a host of other accolades. Now it is time to retire. I love the “Sheriff” and have the utmost respect for his impact on the game, but this should be the end of the line for the ol’ gunslinger. It has been difficult at times to watch the Sheriff struggle to throw a ball beyond 10 yards. It’s time for him to saddle up and ride off into the horizon.

Marshawn Lynch took a very Marshawn Lynch approach to his retirement announcement (or at least what appeared to be his retirement announcement). Marshawn Lynch was a violent RB who would punish opposing tacklers. He is also well-known for his refusal to hold press conferences and/or attempts to answer questions in as few words as possible. During the Super Bowl, Mr. Lynch tweeted out a picture of neon green cleats hanging from a powerline and a “peace out” emoji in the caption. It is unfortunate that “Beastmode” will be leaving the game, but this may have been the greatest retirement announcement of all time.

We here at Abnormal Use have written much about McDonald’s and its history with absurd lawsuits. Of course, much of the discourse centered around the infamous Stella Liebeck hot coffee case and its progeny. As much as we have downplayed its significance, we must admit that the most recent suit filed against McDonald’s makes the Liebeck case look like Marbury v. Madison. According to a report from Eater.com, a California man has filed a class action lawsuit against the fast food chain seeking $5 million in damages over purportedly defective mozzarella sticks. Kind of makes burns from a cup of hot coffee sound like child’s play.

So how was the man (or the proposed class) injured by the McDonald’s mozzarella sticks you ask? They weren’t. At least not in a way that necessitated medical attention. The plaintiff, Chris Howe, takes issue with McDonald’s claims that the sticks are “100% real cheese” and “real mozzarella.” Specifically, Howe alleges:

The sticks are filled with a substance that is composed (in part) of starch, in violation of the federal standards of identity for ‘mozzarella’ cheese, and contrary to reasonable consumers’ expectations regarding the meaning of the term ‘mozzarella.’

Howe believes McDonald’s cut costs by using a starch filler to comprise 3.76 percent of the “cheese,” and, thus, has engaged in deceptive practices. For the record, McDonald’s denies the allegations, stating that the mozzarella sticks are made with “100% low moisture part skim mozzarella cheese.” Whatever that means.

Regardless of the genetic make-up of the McDonald’s mozzarella sticks, the real question is whether anyone can actually be deceived by their contents. Last we checked, the mozzarella sticks are a new item made a part of the “2 for $2” menu. In layman’s terms, a customer can get mozzarella sticks and a double cheeseburger for $2. Federal standards for identifying “mozzarella” aside, don’t expect the finest organic, farm-to-table ingredients in dollar cheese sticks. And, if you really think McDonald’s is an appropriate destination to satisfy for mozzarella craving, don’t expect anyone to fork over $5 million when they don’t live up to your expectations.

Well, the Super Bowl will be held this coming Sunday, and since we here at Abnormal Use and Gallivan, White, & Boyd, P.A. maintain an office in Charlotte, North Carolina, you can imagine that we are excited about the prospects of the Panthers. How about that Cam Newton, eh? So, yes, we’ll be watching the game, perhaps even tweeting about it here and there, enjoying it all the while. Keep Pounding!

Our favorite tweet of the week, of course, is also Panthers related:

TEAM. #SB50 #KeepPounding pic.twitter.com/0jG62erVfZ

— Carolina Panthers (@Panthers) February 5, 2016

With the Super Bowl looming (and our own Charlotte Panthers participating therein), we here at Abnormal Use thought it would be best to revisit some of our favorite football posts. Sure, some of them relate to college football, while others relate to the NFL. But they all address legal issues relating to one of our favorite games. So, please enjoy.

“NFL Litigation May Forever Change Football” (August 19, 2013).

“PA vs. NCAA: Does the Commonwealth Have Standing?” (January 16, 2013).

“NFL Punter Claims Turf Unreasonably Dangerous” (November 29, 2012).

“Former NFL Players Allege NFL Concealed Risks of Injury” (September 14, 2011).

“The Return of College Football (And Some Law Stuff)” (September 1, 2011).

“South Carolina’s College Football Stadium Parking Jurisprudence” (July 12, 2011).

Oh, and here’s one that sounds like it’s about college football, but it’s really not:

“Georgia vs. Texas” (March 25, 2010).

We here at Abnormal Use have been writing about products liability cases for six years now. So, it may not surprise you, dear readers, that we will be attending the 2016 DRI Product Liability Conference this week in New Orleans, Louisiana. As you may suspect, we here at the blog and at Gallivan, White, & Boyd, P.A. are big fans of DRI and remain very active in that organization. So, our editor, Jim Dedman, will be at this week’s products liability conference. If you see him, please introduce yourself. He may even have with him some snazzy promotional materials we created in support of our blogging efforts. (Jim is also the chair for newsletters for the DRI Product Liability Committee.).

If Jim follows tradition, he will be live tweeting at least some portions of the conference. You can follow him either at his personal Twitter account, @JimDedman, or our firm’s official Twitter account, @GWBLawFirm. If you yourself are on Twitter (and surely you must be), please check it out and send us a note. We understand that DRI is using the hashtag #DRIProducts for the conference, so look there, too!

Two years ago, we reported on a lawsuit filed by Josh Finkelman against the NFL. We summarized the allegations of the lawsuit as follows:

. . . New Jersey consumer protection laws allegedly require that 5 percent of tickets to an event be offered to the general public.  Because the NFL offers only 1 percent to the general public (and gives the rest to teams, networks, broadcasters, etc.), scalpers charge more for the tickets than they should on the secondary market, and Mr. Finkelman was somehow forced to buy these exorbitantly priced tickets from scalpers.

Finkelman was also joined by another plaintiff, Ben Hoch-Parker. The NFL filed a motion to dismiss, arguing that Hoch-Parker lacked standing (because he had not actually purchased a ticket). The NFL also argued that since “[n]either plaintiff alleges that he attempted to purchase tickets at face value through the NFL lottery . . . plaintiffs cannot demonstrate that defendants caused them to pay . . . above face value for their tickets.”

Reportedly, in early 2015, federal judge Peter G. Sheridan granted the NFL’s motion to dismiss the class action lawsuit. In late 2015, the Third Circuit Court of Appeals apparently agreed to hear the Plaintiffs’ appeal, and a three judge panel of the Third Circuit recently affirmed the district court, “concluding that the plaintiffs lacked standing to sue in federal court.”

We did not reach out to the lawyers involved for comments, but we assume the lawyers who represented the NFL would provide comments similar to the following:

We would also like to add – GO PANTHERS!

Just a couple weeks ago, we wrote about the new class action lawsuit over the insanely popular Evolution of Smooth (EOS) lip balm. In that suit, the plaintiffs allege that even though the EOS packaging claims the product makes lips “moist, soft, and sensationally smooth,” the lip balm allegedly caused blisters and rashes around the mouth. We questioned whether there was any inherent difference between the ingredients of EOS lip balm and its competitors, and in so doing, and we became curious how the suit might fare. Well, according to new reports, the wait is over. Unfortunately, questions remain.

As reported by Today, EOS has announced that it resolved the lawsuit as soon as it began. While the full terms of the settlement are unclear, EOS will not be required to change any of its ingredients, but the packaging will contain more details about those ingredients and how to use the product safely. The financial terms of the settlement have not yet been disclosed.

EOS had the following to say about the agreement:

We are pleased to announce that the class action lawsuit brought against eos earlier this month has been resolved. Our products are safe — and this settlement confirms that. Our lip balms are hypoallergenic, dermatologist tested, made with the highest quality ingredients, meet or exceed all safety and quality standards set by our industry and are validated by rigorous safety testing conducted by independent labs. We love our customers and their enjoyment of our products is our top priority. We thank them for their continued support.

The quick settlement of this class action suit is quite interesting. Clearly, EOS wanted to send the simple message that there is nothing defective about its product. Resolving the case early and with a statement that all of the product ingredients will remain the same certainly makes good business sense and likely puts the clamps on loyal customers who may have thought about switching to a competitor.  But, the question remains, at what cost? For a product that is safe, we hope for EOS sake that any financial settlement was in the cost of defense range.

The most intriguing part of the settlement is, of course, the agreement to add instructions to the product packaging on how to use the product safely. While we are admittedly novice lip balm users and in no way consider ourselves to be experts, we are curious as to how users could use lip balm in an unsafe manner. It seems inherent in the name that lip balm is to be applied to the lips. But, surely, that is not the issue. Maybe the instructions say something about not applying the lip balm obsessively every five minutes? But, if the product keeps lips “moist, soft and sensationally smooth,” how can constant application be a bad thing? We are so confused.

How about those Carolina Panthers, eh? To celebrate the Panthers earning a spot in the Super Bowl, we’ve featured the cover of NFL SuperPro Super Bowl Special #1, published way, way back in the halcyon days of 1991. We have no idea what sort of marketing stunt Marvel Comics and the NFL were attempting here, but behold it in all of its glory.

We must confess that we’re a bit envious of legal comedy blogger Kevin Underhill, who writes at the very funny Lowering The Bar site. John Cleese responded to one of his tweets? Can you believe that? If you don’t believe us, please click here.

Rest in peace, Abe Vigoda. Let’s all watch Tessio’s final scene to honor the late actor.

Our favorite tweet of late is both law and football related:

If a quarterback could sue his offensive line for malpractice, Tom Brady’s lawyer would have already written the demand letter.

— Michael McCann (@McCannSportsLaw) January 24, 2016