Skim Milk is not Skim Milk

The Florida Department of Agriculture and Consumer Services is continuing its three year old fight with the Ocheesee Creamery in Florida concerning the company’s production of all-natural skim milk with no additives.  According to the Department, the fact that the creamery does not add vitamins to the skim milk will deceive consumers who are used to skim milk containing added vitamins.  The Department claims that consumers expect all skim milk to contain added vitamins.  The Department actually wants the creamery to list its milk as “imitation” skim milk.  Clearly, consumers who would buy something that is all-natural would be put off by labeling that states that it is imitation milk.

The case is currently in Federal Court and is scheduled for trial in November.

Bystander Liability in Florida – Impact Rule

In Florida personal injury matters, a bystander to an accident generally cannot recover for any psychological trauma which arises from witnessing the accident, absent some physical injuries which are the result of witnessing the accident.  A physical injury that can result from witnessing an accident would be something like having a heart attack because of what was witnessed.  In Florida this is known as the Impact Rule.  Under the impact rule a plaintiff must show a discernible physical injury to claim negligent infliction of emotional distress.

There are certain exceptions in Florida to the impact rule, including, most importantly, the Zell test, or the relative bystander test.  Under the Relative Bystander Test the plaintiff needs to suffer a “physical injury”, which is cause by some psychological trauma, from witnessing an accident, and the plaintiff needs to have a close personal or often familial relationship to the victim.

Florida courts have generally held that it is too difficult to quantify compensation for a bystander to an accident or personal injury who is not physically injured themselves, but rather psychically injured.

When physical injury later accompanies psychological trauma, however, recovery can be had.  If one witnesses an accident, and is a close relative of the one in the accident, and for certain reasons suffers a “physical impact” from the trauma, recovery is possible.  In a number of cases, a physical injury arose months after the accident which allowed the third party family member bystander to recover for physical symptoms.   These symptoms include insomnia, depression, usually accompanied by other physical manifestations of pain.

The Law Offices of Michael D. Stewart is currently handling a case which might test the limits of the impact rule.  In the case, the mother was run over by an automobile in the parking lot of a department store.  The car was rested upon her head and chest.  Luckily a number of good samaritans were able to lift the automobile off of the mother and call for help. The mother ended up in the trauma center and is still recovering.  The whole instance was witnessed by her young son who was powerless to assist his mother who was moaning underneath the car that she could no longer handle the pressure of the automobile on top of her.

An update will be provided when this matter is resolved or is appealed and either conforms with existing law or makes new law.

Bankruptcy Statement of Intention

The issue of whether a homeowner in bankruptcy proceedings must “surrender” their property to the bankruptcy court and then be barred from further litigating the underlying foreclosure action in state court has taken another turn.  Previously, Chief Judge Paul Hyman Jr. of the Southern District of Florida Bankruptcy Court and Judge Michael Williamson of the Middle District of Florida Bankruptcy Court held that by surrendering their properties in bankruptcy court, they were prevented from continuing to further litigate their right to keep the home in state court proceedings.

Now, Southern District of Florida Bankrutpcy Judge A. Jay Cristol has said that it would be “unconstitutional, inequitable and unjust” to prevent homeowners to continue to fight their foreclosures in state court after they have surrendered their properties to the bankruptcy court.

The main issue from the differences in opinion is what it means to surrender your property to the bankruptcy court.  Lawyers arguing under Chief Judge Hyman Jr. and Judge Michael Williamson faced sanctions for allowing their clients to continue to fight the underlying foreclosure cases in state court.  Their arguments were that the term surrender referred to surrendering the property to the trustee in the case, who had discretion concerning what to do with the property, including abandoning the property – which would allow the property owner to continue to fight with the underlying creditor over the property.

In the case in front of Judge Cristol, however, the homeowner on their Statement of Intention, which is a document which needs to be filed within 30 days of filing bankruptcy or prior to the first Meeting of the Creditors, stated that they wished to “reaffirm” the debt.

This issue might continue to have a great affect on bankruptcy law practitioners, particularly since a few lawyers have already been threatened by sanctions for attempting to argue concerning the homeowners ultimate rights to continue to litigate the underlying foreclosure action.

ICANN Remains Under United States Control

A contemplated plan to hand over the administration of internet domain names has been delayed by the United States Commerce Department.  The Internet Corporation for Assigned Names and Numbers (“ICANN”) is the current governing body having control of the internet domain name system, including top-level domain names such as .com and .org.  Due to international complaints that the United States controlled the internet domain name system, the United States considered opening up the governance of the domain name system to a more international body.  However, the Commerce department has recently indicated that the transfer to a privatized governance body would take at least another year.

Of concern is by giving up control of the domain name system, countries who do not adhere to western principles such as free speech will attempt to censor the internet domain name system.

The additional time is needed for the Department of Commerce to work out the details of how this international multistakeholder governance will work.

ICANN was created in 1998.  It is responsible for the corporate governance and policy making of the internet domain name system.  ICANN has implemented such things as the roll out of new generic top-level domain names, the WHOIS system of registration of internet domain names, and governance of internet domain name registries.  ICANN was also responsible for creating the Uniform Domain Name Dispute Resolution (UDRP) system which was put in place to prevent Cybersquatters from taking companies’ domain names.

Michael Jordan Sues Over Use of His Likeness

Michael Jordan, the famous basketball player, has sued Dominick’s supermarket chain for using an advertisement containing his image.  The advertisement for steaks stated “Michael Jordan…you are a cut above in an edition of Sports Illustrated.  A coupon for $2.00 off of steaks was attached to the advertisement.  Michael Jordan responded with a lawsuit asking for up to $10 million.  The U.S. District Court in Chicago already found Dominick’s liable for using Jordan’s image and a trial is scheduled on damages.  Jurors will have to consider issues of how much Dominick’s is liable for – and whether the amount should be based on his various other mega contracts or, as experts for Dominick’s contend, a much lesser amount as this was only a single print ad and worth an amount far less than his other licensing contracts.  Jordan has stated that whatever amount he wins, minus legal fees, will be donated to charity.

Previously, Jordan brought suit against Jewel-Osco for using his likeness in an advertisement in the same Sports Illustrated edition.  In that lawsuit,  the 7th U.S. Circuit Court of Appeals reversed a lower court ruling which held the advertisement to be noncommercial speech and entitled to full First Amendment protection.  The appeals court stated that “Jewel’s ad had an unmistakable commercial function:  enhancing the Jewel-Osco brand in the mind of consumers”.  According to the court, to rule otherwise “would have sweeping and troublesome implications for athletes, actors, celebrities an other trademark holders seeking to protect the use of their identities or marks”.

So much for congratulatory advertisements.