Author Archive for Kristen Johnson

Zillow’s “Zestimate” Makes Property Owner Fight Back

With the availability of online real estate marketplaces, such as Realator.com and Trulia, a lot of people look online first for their potential new home before looking at any properties in person. Many people also rely on the estimate of a property’s value as provided by such websites to determine just how much they are willing to offer for the property. As a result, the estimates provided by online real estate marketplaces can negatively impact a property’s value or impede its ability to sell. The estimate provided by Zillow has so negatively impacted one homeowner’s efforts to sell her home in Illinois that she is suing the company.

What Happened?

Barbara Andersen has been trying to sell her home in Glenview for a while at the price for which she bought the property. The houses across the street from Ms. Andersen’s home have been selling for $100,000 over Ms. Andersen’s asking price. Despite the higher value of the properties across the street, Zillow’s Zestimate, which is Zillow’s property value estimate, for Ms. Andersen’s property is significantly lower than her asking price. Ms. Andersen asserts that the estimate has prevented her from selling her property for the amount she is seeking. Thus, Ms. Andersen is seeking an injunction to stop Zillow from listing any Zestimate about her property.

What’s the Law Surrounding This?

Illinois attempts to prevent inaccurate property estimates from influencing the real estate market by requiring anyone who wishes to offer appraisals of a property’s worth to obtain a license permitting them to provide real estate appraisals. If a person or a company attempts to offer an appraisal in Illinois without having the proper license, then they have committed a Class A misdemeanor when they offer an appraisal for the first time and a Class 4 felony for any subsequent time that offer an appraisal.

Zillow does claim to have a license that would allow the company to make real estate appraisals, but it does assert that the real estate estimates produced as part of its Zestimate feature do not qualify as appraisals, which means that Zillow does not think that it is violating the law in Illinois. However, an appraisal is essentially defined as an opinion of value by Illinois law. The Zestimate is Zillow’s opinion of how much the property is worth, which can be interpreted as an opinion of the value of a piece of real estate. If the court determines that the Zestimate is an opinion of the value of a piece of real estate, then it will likely find that Zillow is making appraisals of real estate in Illinois.

Although it seems unlikely that a company as well-known as Zillow would not have made sure that it possessed all of the necessary licenses it would need to operate in each state in which is transact business, the employees and owners of Zillow who are involved in the Zestimate feature appear to have issued appraisals for Illinois properties without having a proper license, and are guilty of at least a Class A misdemeanor.

zillowWhat Can Ms. Andersen Do to Succeed?

Proving that a person or a company has committed a crime does not automatically grant a victim of the crime an injunction because only a civil court may grant an injunction. To get an injunction in this situation, Ms. Andersen will need to prove three things: that she has a right that needs to be protected, that she will suffer irreparable harm if an injunction is not granted against Zillow, and a monetary award is not enough to remedy the harm that Ms. Andersen is suffering due to Zillow’s allegedly illegal Zestimate.

It is easy to see that Ms. Andersen has a right that needs to be protected. Anyone who owns a piece of property has the right to dispose of it as they see fit, so long as it does not violate the law. Thus, Ms. Andersen has a right to sell her property. It is clear that, by being based on lower-value property and failing to reflect a fair and accurate of the property, the Zestimate of Ms. Andersen’s property is negatively impacting her ability to sell the property. Assuming that Zillow providing an estimate is illegal, then Ms. Andersen’s right to sell her property is in need of protection from being harmed by Zillow’s illegal action of providing the Zestimate.

Ms. Andersen will also have a reasonably easy time that she will continue to suffer irreparable harm if Zillow is not prevented from continuing to provide a Zestimate for the property. It must be noted that, upon a request by Ms. Andersen, Zillow did manually change the Zestimate to a price that was more comparable to the price at which the property is listed. However, the change only lasted for a brief amount of time before the Zestimate was changed back to the original, much lower amount without any formal explanation for the change. Upon realizing that the Zestimate had been changed back, Ms. Andersen contacted Zillow multiple times, asking the company to either change the Zestimate again or to remove it entirely from the company’s website. Unlike last time, Zillow did not do anything to remove or otherwise alter the current Zestimate. The fact that Zillow reverted back to the original Zestimate relatively soon after changing it and continues to provide it despite Ms. Andersen’s repeated requests demonstrates that the company will likely continue to provide a seemingly inaccurate and harmful assessment of the value of Ms. Andersen’s property unless the court stops Zillow from providing it.

Compared to the first two things that she must prove, it may be more difficult for Ms. Andersen to prove that a monetary award is not enough to compensate her for the harm that Zillow’s actions may have caused her. The harm that Ms. Andersen is suffering as a result of Zillow providing its Zestimate is an inability to sell her property at the current price for which it is listed. Ms. Andersen’s harm appears to be based entirely on money, specifically on the difference in the price that she wishes to receive for her property and the price that Zillow has listed as its Zestimate for the property. Thus, Ms. Andersen’s harm can likely be remedied by an amount of money to compensate her for any difference in price between Ms. Andersen’s estimated value and Zillow’s estimated value because she will not be missing out on any money as a result of having to sell her property at the Zestimate instead of selling it at the price for which she wishes to sell it. As a monetary amount is most likely enough to compensate Ms. Andersen for the harm she has suffered, even if Zillow keeps listing the lower Zestimate for the property, it is unlikely that a court will determine that an injunction is necessary to make sure that Ms. Andersen is adequately compensated for any harm or loss caused by Zillow’s actions.

But Will She Win?

Ms. Andersen, therefore, will likely not be granted an injunction against Zillow because her harm can be remedied with money instead of an injunction, despite the fact that Ms. Andersen will continued to have her rights as a property owner negatively impacted if Zillow is not stopped from providing its Zestimate. However, Zillow’s act of providing a Zestimate on Ms. Andersen’s property is likely against the law in Illinois because Zillow likely lacks the proper credentials required to provide such an assessment. Since this allegedly illegal act does infringe upon Ms. Andersen’s rights with regard to her property, and cause her harm as a result, it is likely that Ms. Andersen will receive compensation for the harm that Zillow has caused her.

Even though Ms. Andersen is unlikely going to be able to get an injunction against Zillow, the company will likely still stop providing Zestimates for not only Ms. Andersen’s property, but also for all properties in Illinois because the court will likely address the matter of whether the Zestimate is an appraisal under Illinois law for which a license is required. If it does find that Zillow needs to possess a license to provide a Zestimate, which seems to be the case, then Zillow will likely remove all Zestimates from Illinois properties until it acquires the necessary license to make appraisals. Thus, Ms. Andersen will likely both get money to make up for any loss that she would experience by having to sell her property for the lower price listed by Zillow and stop Zillow from listing a Zestimate for her property for at least a short while.

What Can We Do If We’re Trying to Sell Our Home?

It can be difficult to sell a property, and the last thing that you need is an outside party trying to devalue your property through an inaccurate appraisal of the value of the property. This is especially true when that outside party is providing an appraisal that appears to be official and reliable, but is actually illegal. If a company is publishing a very inaccurate appraisal of your property and preventing you from selling your property for its true value, then you should contact a real estate lawyer. Not only can they advise you on all of the rights you have as a property owner, but a real estate lawyer can also help you confront the company that is interfering with your right to sell your property and represent you against them in court if necessary.

Dress Code: Trump’s Alleged Requirements for Female Staffers is Surprisingly Legal

Long before he became President of the United States, President Donald Trump was obsessed with his public image, despite his apparent inability to get a decent haircut, and the image projected by those surrounding him.  This obsession with how he and his staff look has not gone away since he took office, but it has come under increased scrutiny. Now, thanks to a few comments made by one of President Trump’s campaign assistants, people who have already derided President Trump’s misogynistic ways have a new reason to hate him because he prefers that his female staffers dress “like women.” This particular preference has reportedly led to women feeling pressured to eschew pants in favor of dresses when in President Trump’s political workplace.

It is legal for an employer to have a dress code and even grooming standards. For certain industries, these restrictions are necessary for safety, such as prohibiting hospital employees from wearing jewelry that might interfere with their ability to assist patients or requiring construction workers to wear steel-toed boots. In other industries, these restrictions are part of the image presented by the company, which is the case with Disney and its infamous grooming requirements for theme park employees.

If Women Must Dress Like Women, Then Men Must Dress Like Men

dress codeEven though dress codes and grooming standards are legal, they are subject to anti-discrimination laws on both the federal and state level. In terms of laws prohibiting gender discrimination, employees of one gender cannot be required to adhere to far more regulations than employees of another gender. For instance, a restaurant cannot require male wait staff to wear three-piece bespoke navy suits while allowing female wait staff to dress however they want, regardless of whether that clothing choice is a ball gown or dirty old sweatpants.

To that end, though, a company can require its employees to dress within certain perimeters, if those perimeters are comparable between genders. A company can require all of its employees to dress in jeans and t-shirts or in suits and dresses. The courts have already made it clear that the dress code can, to the average person, appear to be sexist, so long as it is equal. An example of a dress code that may appear to be sexist at first would be cocktail waitress outfits. These outfits are notoriously skimpy, and many people label them as sexist because they promote the objectification of women. However, so long as the male counterparts of the waitresses have a similarly demanding dress code, a dress code demanding skimpy outfits is perfectly legal.

Since the courts have determined that requiring women to dress a certain way is not discriminatory, so long as it is comparable to what the men must wear, it is not discriminatory for Donald Trump to request that women wear feminine attire, as long as he makes a similar request of men to dress in masculine attire. It does appear that men who work for Donald Trump are required to wear suits complete with ties. Requiring a man to wear a suit with a tie is comparable to making a woman wear a dress or other such feminine business attire. Thus, Donald Trump’s requirement for women to dress “like women” appears to be perfectly legal because he requires his male staffers to essentially dress like men, meaning that the burden for both genders is equal.

Dressing Like a Woman Does Not Mean Wearing an Ivanka Trump Dress

Now, if Donald Trump were to start requiring his female staff to wear Ivanka Trump-brand dresses, which he might start doing to increase the sales of his daughter’s clothing line, then he might wind up running afoul of the law. This is because making employees wear a specific item of clothing from a specific manufacturer or brand is tantamount to making them wear a uniform like those worn by McDonald’s employees. An employer can require the employees to wear uniforms if it is used to promote the brand or for any reasons why a dress code can be implemented. Additionally, under federal law, an employer can take the money required to cover the cost of the uniform out of the employee’s paycheck or require the employee to buy the uniform, the latter method being the one preferred by retail stores that have their employees dress in the store’s clothing. However, the amount used to cover the cost of the uniform cannot be so high that the employee is left with a wage that is below their state’s minimum wage. With the average Ivanka Trump-brand dress costing anywhere between $50 and $150, some lower-level staffers for the White House may end up facing clothing bills that would exceed their paychecks. Thus, if Donald Trump does end up requiring female White House staffers to wear dresses from his daughter’s clothing label, then he would likely be legally obligated to cover the cost of the dresses because they are very specific clothing items and their prices most likely make them cost-prohibitive to some employees.

Of course, requiring his female staffers to wear dresses from Ivanka Trump’s clothing line may lead to other problems for Donald Trump and his staff because of his position in the federal government, which are problems that President Trump may already be dealing with outside of the media’s scrutinizing eye due to his preference to see male staffers in Trump-brand ties. Employees of the executive branch are free to wear whatever clothing brands they want, but they cannot actively promote the brand that they are wearing. Doing so is seen as a “misuse of position,” and is prohibited by a regulation put forth by the Office of Government Ethics. Kellyanne Conway, a counselor to President Trump, was recently accused of violating this regulation when she talked about Ivanka Trump’s clothing line on a television program and encouraged people to buy clothes from the brand. Often, employers have their employees wear clothing from only one brand in order to promote that brand, especially where the employees are working for a clothing brand in a retail store setting. Even though the White House is not a clothing retailer, requiring all of its female employees wear the same brand of clothing may give the impression that it is promoting that particular brand and, thus, a misuse of the White House’s position in the federal government.

It is also a misuse of position if a holder of a public office uses their government position for their own private gain or the private gain of their friends or family. If President Trump were to put all of his female staffers into Ivanka Trump-brand dresses at their own expense, he would be using his position as President to provide financial gain to his daughter as a private business owner. Additionally, if President Trump were to use federal funds to pay for the dresses, much like a traditional private employer would use company funds to cover the cost of uniforms, then Ivanka and her clothing line would be receiving a direct financial gain from the federal government as a result of her dad being President.

Even if Donald Trump were to pay for the dresses out of his own pocket, the female staffers would only be wearing the dresses as a result of Donald being President, so Ivanka would be experiencing a personal financial benefit from the White House female staffers wearing her company’s dresses courtesy of her father’s position. Ergo, Donald Trump would be misusing his official role as President of the United States in two ways if he required his female staffers to wear Ivanka Trump’s dresses: by promoting his daughter’s company and by providing her with private financial gain.

Ultimately, It Is Allowed

While it may come off as sexist, Donald Trump can require his female staffers to dress “like women,” so long as he continues to hold his male staffers to the same general standard for grooming and dress codes. However, if the dress code becomes more restrictive by Donald Trump making his female staffers all wear dresses from one brand, especially if the dresses come from Ivanka Trump’s clothing line, then such a restrictive dress code may be illegal and in violation of federal government regulations. If you are facing a dress code at work that seems to be unfairly restrictive or heavily biased toward one gender, then you may want to talk to an employment lawyer about your rights as an employee in the workplace.

Driving With FaceTime: Apple Faces Lawsuit from Grieving Family

Talking on a hand-held cell phone while driving. Texting while driving. Both of these activities are major causes of accidents that have now been banned in most states. However, with the development of technology, a new problematic activity has emerged: engaging in FaceTime while driving. FaceTime is Apple’s video-chatting program, and it is a standard part of the latest versions of the iPhone. Not only does the program require hand interaction in the form of holding the device and interacting with the device’s interface to commence and end a FaceTime session, but it also requires visual attention because of the video aspect of the program. Since using FaceTime requires a person to both continuously look at the device and hold/physically interact with the device, using FaceTime while driving is arguably more dangerous than texting while driving and talking on a hand-held cell phone. However, using Facetime while driving is currently not a crime in any state, nor has Apple, the company behind FaceTime, taken any steps to discourage users from using it while driving. That may all change soon now that a family in Texas is suing Apple over a car accident that was caused by a driving using FaceTime.

Apple iPhone FaceTime

On Christmas Eve of 2014, Garrett Wilhelm crashed into the Modisette family’s car while engaged in a conversation using FaceTime on his iPhone 6 Plus rather than paying attention to traffic. All four members of the Modisette family suffered from serious injuries, and one for the two young daughters ended up dying from her injuries. At the scene of the accident, Mr. Wilhelm admitted to the police that he was using FaceTime when he crashed into the Modisette family’s car and the police noticed that FaceTime was still running on Mr. Wilhelm’s iPhone 6 Plus after the accident, which suggests that the use of FaceTime helped cause the accident.

Holding Apple Responsible for FaceTime’s Role

The Modisettes filed a lawsuit against Apple for the role that FaceTime played in causing the accident. They have accused Apple of being negligent in the design of FaceTime by failing to include either a warning to users alerting them to the dangers of using FaceTime while driving or a mechanism that would allow for FaceTime to become disabled when the device containing FaceTime is in a moving vehicle. What makes Apple’s failure to include either a warning or disabling mechanism even more noticeable is the fact that prior to the release of the iPhone 6 Plus, Apple was granted a patent for a electronic device mechanism that would disable certain distracting features within the electronic device, such as texting and video chatting, if the mechanism sensed that the device was traveling at or beyond a certain speed that would indicate that the device was in a vehicle.

How Can Manufacturers Be Held Responsible?

Manufacturers owe a duty to consumers to create safe products. If a product can be made safer without sacrificing any of its essential aspects, then the manufacturer is obligated to change the way that it makes the product to include the new additional safety measures. If a manufacturer keeps making the product in the same manner as before without implementing the changes to make it safer, then the manufacturer has used a defective design and is liable for any harm that may result from the product with the defective design when that product is being used in a way that is either intended by the manufacturer or reasonably foreseeable by the manufacturer.

Apple knew that iPhone owners used their iPhones while driving, including for texting and chatting purposes. In fact, that knowledge is why Apple created the mechanism for which they sought the patent, according to the background information in the company’s patent application. Since the patent application was granted in April 2014 and the iPhone 6 Plus was initially released in September 2014, Apple was in possession of a patent for a mechanism that would have disabled iPhone owners from being able to use their iPhones in a distracting manner while driving months before Mr. Wilhelm could have purchased his iPhone 6 Plus. Thus, not only was Apple aware of the current dangerous design of the iPhone in lacking a mechanism to disable certain features of the iPhone while the owner is driving, it was also aware of a way to make the iPhone with a mechanism that would disable certain features in the iPhone while the owner is driving. Despite this knowledge, Apple did not implement the safer design that would have included the mechanism when manufacturing the iPhone 6 Plus. Thus, Apple’s iPhone 6 Plus contained a design defect for which Apple is liable.

But Can Apple Really Be Liable for a Car Accident?

Since Apple is liable for the defective design of the iPhone 6 Plus, they are then liable for any harm that may result from a reasonably foreseeable use of the iPhone 6 Plus that may have been avoided if the safer design was implemented. Apple should have reasonably foreseen that Mr. Wilhelm would have been using FaceTime on his iPhone 6 Plus while driving because the company stated its awareness of drivers using cell phones while driving in the patent application. Mr. Wilhelm would likely have been unable to use FaceTime on his iPhone 6 Plus if Apple had manufactured the device with the disabling mechanism. However, since that safety mechanism was not present in Mr. Wilhelm’s iPhone 6 Plus, Mr. Wilhelm engaged in distracted driving and crashed into the Modisettes’ car. Thus, it is likely that Apple is liable for Mr. Wilhelm crashing into the Modisette’s car and the subsequent damage that resulted from the crash.

If the court does find Apple liable for the car crash involving Mr. Wilhelm and the Modisettes, then the court will likely require Apple to provide financial compensation to the Modisette family and order Apple begin implementing the safer design featuring the disabling mechanism. The compensation that the Modisettes may receive from Apple will likely include quantifiable damages such as incurred medical costs and the cost of repairing or replacing their car, as well as more speculative damages such as money for the loss of companionship due to the daughter’s death and pain and suffering. Additionally, Apple may be required to pay punitive damages, which are damages designed to punish defendants for terrible behavior, because Apple was already in possession of a patented way to make the iPhone 6 Plus safer before it was manufactured and yet chose to still manufacture the iPhone 6 Plus with the less safe design.

What Can Consumers Do to Protect Themselves?

Manufacturers should always make their products as safe as is feasible. If they fail to make products that are safe to be used as is foreseeable, then they should be held liable for causing harm to consumers. You should contact a defective products lawyer if you have been harmed by a defective product. A lawyer can assist you in talking to the maker of the defective product about compensating you for your injuries and filing a lawsuit if necessary.

Arkansas Court’s Issue 7 Ballot Ban Leads to Another Lawsuit

Election Day is when new leaders are chosen and new laws are made by voters. That is why it is imperative that various government entities afford voters an opportunity to be well-informed on the matters and candidates that they are voting on. However, three voters in Arkansas have felt that they were not properly informed when they cast their ballots and filed a lawsuit in response.

When Jim and Cynde Watson voted in Marion County, they were not informed that a provision that still appeared on the printed ballot was no longer available for people to vote on. That provision was Issue 7, a controversial state law measure better known as the Medical Cannabis Act. The Arkansas Supreme Court barred Issue 7 from being a matter to be voted on when it was determined that over 12,000 signatures were obtained improperly. However, by the time that the Arkansas Supreme Court made the decision, the ballots had already been printed and were available for people to vote. So it was up to the pollworkers to inform voters that they could no longer vote on Issue 7.

Ms. Watson had heard about the lawsuit involving Issue 7. However, when Ms. Watson inquired about whether she and her husband could still vote on Issue 7, the pollworker she asked wrongly informed her that Issue 7 could still be voted on. A small sign notifying voters that Issue 7 could not be voted on was present in the polling place, but Mr. and Ms. Watson are arguing that the sign was placed in a location where it did not grab their attention. The Watsons and their fellow voter who joined them in the lawsuit over the lack of information regarding Issue 7 state that their misunderstanding over whether they could vote for Issue 7 impacted how they voted on another issue on the ballot.
Arkansas Issue 7

What Are the States Required to Tell Voters?

States are required by federal law to inform local voters about everything that they are voting on. The Help America Vote Act of 2002 (HAVA) requires states to have a formal plan for voter education to ensure that all voters have access to all of the information that they need to vote, especially with regard to measures that could become laws. As a basic part of providing voter education, states need to ensure that voters know what measures they can vote on and what measures they cannot vote on, even though the measures are still on the ballot. Informing voters about what cannot be considered on the ballot is especially important as this information can influence how a voter chooses to vote, which is what allegedly happened in Arkansas.

When the Watsons were misinformed by the pollworker as to whether Issue 7 could still be voted on, they voted in a manner that was different than if they had known for sure that their vote for Issue 7 would not count. On the original ballots for the 2016 Arkansas state and national elections, there were two measures that would lead to the legalization of medical marijuana. In addition to Issue 7, Arkansas voters were also able to legalize medical marijuana through Issue 6. However, Issue 6 did not contain a provision that would permit certain patients to grow marijuana on their own, making Issue 7 the more popular choice between the two measures. The Watsons chose to vote for Issue 7 because they preferred Issue 7 to Issue 6, and they were under the impression that they could still vote for Issue 7. If the Watsons knew that they could not vote for Issue 7, and that their only choice for legalizing medical marijuana was Issue 6, then they would have voted for Issue 6.

After the Watsons had voted, choosing to vote for Issue 7 and vote against Issue 6, they realized that the pollworker was wrong about the validity of their vote for Issue 7.  However, it was too late for the Watsons to change their votes and vote for Issue 6 instead. Out of concern that there were other voters like them who thought that their vote for Issue 7 would count when that vote was cast, the Watsons decided to file a lawsuit asking that everyone who voted for Issue 7 to be able to recast their vote with regard to Issue 6. The lawsuit also sought to change the manner in which pollworkers inform voters about the change in the ballot. Instead of merely having a small sign tucked away in amongst several other signs where it may not be seen, the plaintiffs wanted three signs clearly notifying voters that Issue 7 could no longer be voted on placed in prominent locations in each polling place. This would likely be sufficient to inform voters that, despite Issue 7’s appearance on the ballot, they could not vote on the matter.

Why This Matters, Now and In the Long Run.

Issue 6 did pass in Arkansas, thereby negating the need for anyone who voted for Issue 7 and against Issue 6 to change their vote. However, the larger issue of the misinformation shared by the pollworker and the need to improve voter education remains. By filing the lawsuit, the voters highlighted the blatant inadequacies of the current voter education system in Arkansas. Lawsuits such as this are important, as they can be the only way that impactful change is made. Regardless of the official outcome of the lawsuit, Arkansas will likely change how it informs voters about any changes made to the ballot and about any issues that can no longer be voted on.

Providing access to voter education materials and ensuring that registered voters know about what they are voting on are important duties of every state government. If you feel that you are being denied access to voter education or that your right to vote is otherwise being impeded by your state’s government, contact a government lawyer.

KFC’s Colonel Accused of a Deep-Fried Falsehood

First Starbucks was sued for not putting enough liquid in their cups, and now KFC is being sued over not providing enough fried chicken in its buckets. A New York woman has filed a lawsuit against Kentucky Fried Chicken for false advertisement with regard to just how many pieces were in her bucket.

Anna Wurtzburger decided to file a lawsuit after she was disappointed in the number of pieces of chicken that she was given as part of her “Family Fill Up” meal. Ms. Wurtzburger ordered the meal, expecting to receive what she saw in a commercial, which featured a KFC bucket overflowing with fried chicken. Instead, all she got was 8 pieces of chicken, which did not even fill up the entire bucket.

When Ms. Wurtzburger contacted Kentucky Fried Chicken to complain about her portion size, the company responded that the chicken appeared emerging from the bucket so as to display it in all of its deep-fried glory. The overflowing bucket was never meant to be an accurate depiction of the portion size that would be served with the meal. Well, that did not sit well with Ms. Wurtzburger, who decided to sue Kentucky Fried Chicken for $20 million in response to her lack of chicken.

False advertising is frowned upon throughout the United States, and every state has at least one law that requires advertising to not be intentionally misleading. Section 350 of New York’s General Business Law is what prohibits false advertising in New York. Under New York law, false advertising is defined as advertising of an item that is misleading in a material respect. If an advertisement is found to be false, then the punishment can be an injunction, a fine of up to $5000, actual damages, three times the actual damages up to $10,000 if the advertiser acted willfully or knowingly, and attorney’s fees.

In order to find KFC guilty of committing false advertisement when the company aired the “Family Fill Up” meal commercial featuring the overflowing fried chicken bucket, it must be determined that reasonable people could be misled into believing that they will receive a bucket of chicken that is indeed overflowing if they order the “Family Fill Up” meal. If it is determined that a reasonable person would have expected to receive an overflowing bucket of chicken based upon seeing the commercial, then Kentucky Fried Chicken may have committed false advertising if it can also be proven that the buckets are normally not filled to the point of having pieces of chicken rise above the top of the bucket.

The actual damages that Ms. Wurtzburger would receive would likely just be the difference between how much she paid for the meal and how much it would have cost her to have a bucket overflowing with chicken, which probably would not be a lot of money. However, the intent to display the chicken emerging from the bucket in the commercial indicates that KFC knowingly portrayed the bucket as overflowing in its commercial, which would entitle Ms. Wurtzburger to three times the amount of her actual damages. Furthermore, Kentuckey Fried Chicken may also be on the hook for covering the costs of Ms. Wurtzburger’s legal representation and for a fine paid to New York state.

Kentucky Fried Chicken can counter Ms. Wurtzburger’s argument that she was misled by the image of the overflowing chicken bucket with an argument that no reasonable person would mistakenly think that they would receive an overflowing bucket because a reasonable person would not simply go off of the image portrayed in the commercial to determine just how many pieces they would receive as part of the meal. The company can present evidence showing that the vast majority of people do not believe that their bucket of chicken will consist of more than eight pieces or that the bucket would not be overflowing with chicken. KFC can also show that it has shown similar images in the past as part of their advertisements with no ill effects or accusations of engaging in false advertising.

Whether or not KFC truly intended for those buckets to be perceived as being overabundant in the commercial, the company may now think twice about how it shows off its delectable chicken in advertisements, even if the company ends up not having to pay $20 million to Ms. Wurtzburger over the lack of anticipated chicken. At the very least, Kentucky Fried Chicken may deem it necessary to make it painfully clear just how many pieces are included in each meal in every single commercial it airs.