If you have been paying attention to social media of late, you have no doubt heard about Devorise Dixon and his KFC rat.  If you are slightly braver, then you have seen the pictures, which can be found here.  And if you don’t have short term memory loss, then you are skeptical.

Recently, Mr. Dixon took to social media, posting the image of the rat and claiming, “I went to KFC bought a 3-piece chicken tender! As I bit into a piece of it I noticed that it was very hard/tough and rubbery! Which sent this deep chill throughout my body. I looked down at it and saw that it was a cooked rat!!! Made me feel sick! Never new chicken was shaped like rat’s and had tails! Bought this from KFC on Wilmington and 120th in the shopping center! WATCH WHAT YOU EAT PEOPLE ARE SICK OUT THERE!” [His typos, not ours.]

As all viral horror stories go, the story exploded.  According to Mr. Dixon, he received a fried rat in his chicken fingers order from a KFC in Watts, California.  Additionally, Mr. Dixon has claimed that KFC apologized to him and that the manager admitted he was served a rat.  Mr. Dixon believes “IT’S TIME FOR A LAWYER!!!”  He also encourages people to “BESAFE DON’T EAT FAST FOOD !!!” KFC took to Facebook and stated that it was investigating the matter and at this time had no evidence to support Mr. Dixon’s claim.  Additionally, KFC claims it is aggressively trying to reach Mr. Dixon.

Immediately, skeptics took to debunking Mr. Dixon’s claim, including this image, the poster of whic believes that the whole thing is bogus.  Regardless of whether or not his claims are bogus, Mr. Dixon has catapulted into Internet fame.  We will always remember Anna Ayala, who you will remember more famously for alleging that she found a severed finger in her Wendy’s chili. While we wait for this story to develop, check out this list of the 10 fast food lawsuits.

You’d be surprised at how difficult it becomes to find legally themed comic books covers after five years of scouring the Earth for them. Today, we present the cover of Checkmate #24, published not so long ago in 1990. “I accuse you of being the traitor!” exclaims a character we assume to be a heroic authority figure to another character we assume may not, actually, be a traitor. Maybe there’s a law school examination question here addressing defamation (or the evidence required to establish treason in a court of law). To be honest, we’re more curious about the menacing robot on the view screen and its role in the process.

By the way, don’t forget that our editor, Jim Dedman, is attending the North Carolina Bar Association Annual Meeting this weekend. If you see him, say hello! We know he’ll be tweeting using the hashtag #NCBAAM15, so investigate that, as well!

Our favorite tweet of late comes from Stacy Linn Moon:

Don’t allow unpleasant opposing counsel to control your mood. It gives them power.

— Stacy Linn Moon (@StacyMoon02) June 16, 2015

We are incredibly saddened by the tragic news from Charleston. Our thoughts and prayers are with the members of the Emanuel African Methodist Episcopal Church and their families.

As you might know, this week heralds the arrival of the North Carolina Bar Association Annual Meeting. This year, it’s in Asheville, North Carolina, a fine place indeed.

You might not know that we here at Abnormal Use and Gallivan, White, & Boyd, P.A. will be making an appearance at the Annual Meeting. Our editor, Jim Dedman, will be there. In fact, on Friday afternoon, he’ll be presenting a CLE on brewery law. The program, planned by Jim, is called “Insights to a Great Brew: From ABC Regulations to Branding and More.” It features a number of celebrated beer and hospitality lawyers. Don’t miss it if you’re in town for the convention, as there’s still time to register. For more on the program (including individual topics and speakers), click here.

Oh, and don’t forget to follow the action on Twitter via the hashtag #NCBAAM15.

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.