Skeptics have asked how anyone picking up a cake would not see the slur before he left the store. Additionally, any employee would have to know that such a slur would result in the cake being immediately returned with a likely loss of employment.
However, Brown insists that the box has not been opened and he noticed the slur when he got to the car. He specifically notes that the content and pricing UPC label is unbroken — showing that the box had not been opened.
He states: “My question is: Who could have done this? . . . It’s still inside of a sealed box . . . This is discrimination.”
The store however insists that it has the answer and that Brown did it. The store stated
“The team member wrote ‘Love Wins’ at the top of the cake as requested by the guest and that’s exactly how the cake was packaged and sold at the store . . . Our team members do not accept or design bakery orders that include language or images that are offensive. Whole Foods Market has a zero tolerance policy for discrimination. We stand behind our bakery team member, who is part of the LGBTQ community, and the additional team members from the store, who confirmed the cake was decorated with only the message ‘Love Wins.’”
In its countersuit against both Jordan and his lawyer, the store says that Brown “intentionally, knowingly and falsely accused Whole Foods and its employees of writing the homophobic slur … on a custom made cake that he ordered from WFM’s Lamar Store in Austin.”
The store notes that Brown insists that he was in the sole possession and control of the cake until his posting of the video but that “after reviewing our security footage of Mr. Brown, it’s clear that the UPC label was in fact on top of the cake box, not on the side of the package. This is evident as the cashier scans the UPC code on top of the box.” The tape is not entirely clear in my view though it does seem like the employee is pointing at the top of the box. Here is the videotape:
This makes for an interesting case. What strikes me as interesting is the forensic aspect. The question (for which I cannot seem to get an answer) is where is the cake? If Brown did write the word “Fag” there should be a measurable difference in either the width or composition of the icing. Not to turn this into CSI: Whole Foods, but getting the icing identical on a cake is not that easy. Moreover if the UPC label was moved, there should be glue residue on the top of the cake.
The suing of the lawyer is also a rare and risky step. Absent strong proof of collusion or conspiracy on a false claim, such lawsuits are met with skepticism by the courts. Attacking an opponent’s lawyer is a common temptation but, absent strong evidence, can be an invitation for a motion for sanctions for a frivolous claim. It also creates conflicts for lawyers continuing in litigation if they are also a defendant and can be done for tactical reasons that courts try to deter. Assuming that his client gave him the same account that he has given publicly, there is no reason for the lawyer to assume that the client is lying. Either account could be true at this point. Of course, if a lawyer discovers that his client is lying, he cannot put that client on the stand and usually must sever representation if he would facilitate a fraud upon the court.
The website of the church states that Pastor Brown is a Pittsburgh native raised in a family of preachers. The site quotes Brown as saying “We’ve taken tradition and religious doctrine and thrown them out the window.” The church states:
We’re a non-denominational, non-traditional, Christ-centered, welcoming, LGBT-friendly, worshiping church! Our mission is to build people’s lives through the teaching and preaching of the gospel of Jesus Christ. Church Of Open Doors stands to tear down racial and denominational walls, destroying the spirit of poverty, providing unity within the community, giving encouragement and strength for families, and providing a place for Spirit-filled and anointed worship.