Business Torts

Monday, February 8, 2016

The Newest Trend in French Fashion: A “Healthy” Weight

Kelly Lynn O’Connell

Dec. 30, 2015

    In the fashion industry, France is arguably the fashion capital of the world. However, this past December, its legislature passed laws that will impact the industry both on and off the runway. The French Parliament voted to ban super-skinny models from catwalk shows and imposed disclosure requirements when using retouched images of models in advertisements.

    The new health reform package aims at ending the ‘glorification of anorexia’ and the ‘promotion of malnutrition.’ Anorexia nervosa, an eating disorder with the highest mortality rate for any mental disorder, is one of the leading causes of death in young women in western nations. In France, approximately 40,000 people suffer from the disease.

    France is not taking the matter lightly, and it is specifically targeting the fashion industry.

    The new law requires that models present a medical certificate declaring that the model is healthy enough to work. Doctors will make the fitness determination by taking into account the model’s body shape, age, and gender. Body mass index (BMI), while not determinative, will play an important role. Hiring a model without a medical certificate will result in heavy fines of up to €75,000 ($82,000) and jail time up to 6 months.

    Neurologist Olivier Veran called for the change because "[i]t is intolerable to promote malnutrition or glorify anorexia and to commercially exploit people who are endangering their own health… [a] level of acceptable body mass index must be set and enforced.”

    Additionally, published photographs that alter a model’s body by widening or narrowing the silhouette must label the image as “photograph touched up.” Failing to do so may result in a fine of up to €37,500 ($41,000), or 30% of the value of the advertisement starring the model.

    Some, like the modeling agencies, oppose the legislation of “healthy” weight, arguing that thinness does not always connote disease.  They also worry that the new regulations will weaken the French fashion industry.

    “It's very serious to conflate anorexia with the thinness of models and it ignores the fact that anorexia is a psychogenic illness," explained Isabelle Saint-Felix, the head of France’s National Union of Modeling Agencies. “It’s important that the models are healthy, but it’s a little simplistic to think there won’t be any more anorexics if we get rid of very thin models.”

    Despite the disapproval of many in the industry, the Italian designer Giorgio Armani calls for responsibility. He believes that the “industry has to recognize the link between its preference for abnormally thin models and the growth in eating disorders among young women.”

    Many wonder if these new paternalistic “health” trends will catch on in other nations, like the US, and if these transformations are here to stay.  Setting limits such as these could mean substantial changes in the fashion, photography, and advertising arenas – or not.  In reality, these types of measures may not deter the industry at all, as the fashion world is known for rebelliousness, creativity, and pushing the limits.  What is more likely is that a cottage industry of doctors will spring up and simply sell certificates to all but the most emaciated models.  Similarly, since virtually all photos are touched up these days, the industry will simply put the required disclaimer at some inconspicuous location on all ads, thereby creating “warning overload” that will soon be ignored just as consumers have become immune to the endless existing warning labels in the marketplace.

    Similar regulations already exist in Spain, Italy, Israel, and India. Academics at Harvard’s School of Public Health argue the US should be the next nation to follow suit.  

    “The workplace is often hazardous to health; the US government regulates the extent to which any other industry can expose employees to significant harm (e.g., mining, shipping, production lines)… [t]hat it does not do the same for runway models is reflective of the idealization of skeletal women, which has detrimental effects beyond the workplace: anorexia nervosa has [the] highest mortality rate of all mental illnesses in the United States.”

    Meanwhile, in the US, according to the National Association of Anorexia Nervosa and Associated Disorders approximately 30 million people suffer from eating disorders like anorexia, bulimia, and binge eating disorder.  Currently, the US only makes suggestions of healthy weights for models.  Any strict mandatory restrictions could potentially impact the US’s large advertising industry.  According to the New York Times, in a single day, the average city dweller is exposed to nearly 5,000 advertisements.

    Nevertheless, laws such as the ones recently enacted in France are not likely to make their way to the American runway or billboards anytime soon, if ever. Such laws are likely to meet stiff resistance, including constitutional challenges based on the First Amendment’s guaranteed freedom of expression.

    The First Amendment to the US Constitution prohibits the passing of any law that abridges the freedom of speech. Freedom of speech guarantees much more than the ability to speak freely; it also permits individuals or corporations to express their opinions, appearance, and beliefs in public.

    Courts provide less protection to commercial speech, such as advertisements, than to other constitutionally guaranteed expression. However, the First Amendment still protects commercial speech from unjustified government regulation. Whether regulation on advertisement is constitutional or not depends on whether the law in question passes the test in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 565 (1980).  Under Central Hudson, the government must justify their restrictions on any non-misleading commercial speech by demonstrating that its actions directly advance a substantial state interest and are no more extensive than necessary to serve that interest.

    Barring a factual determination that advertisements are somehow misleading because they portray slim models, advertisers will be protected by Central Hudson. The First Amendment protection will likely especially apply when the advertisers use untouched images of naturally skinny models.

    To pass constitutional muster, the regulations in question would have to “directly advance” a substantial state interest. Although the prevention of eating disorders is likely to be considered a substantial state interest, arguments can be made that regulating fashion and advertisement industries, as France is doing, is not a direct way of advancing the interest. For example, such advertisements individually are fairly harmless to most Americans. Courts would likely weigh such facts against the harm caused by restricting commercial speech, such as a potentially adverse effect on business and the intrusion upon constitutionally protected rights.

    Finally, if the regulations are to survive a constitutional challenge, they must not be more extensive than necessary to serve that interest (i.e., be “narrowly tailored”). In the case of constitutionally questionable regulations, courts are generally able to find less limiting alternatives.  This creates a significant hurdle for the government and is likely to constrain the potential regulation’s scope.

    Should other industries worry about their appearance-based policies?  Since the dawn of the airline industry, there has been an ongoing struggle over the looks, weight, and role of flight attendants. In recent years, several cases involving flight attendants being forced to conform to weight guidelines yielded mixed results.  India Air and China’s Qingdao Airlines made headlines grounding “overweight” flight attendants that did not conform to height and weight charts. Critics argue that the measures were in place to make the airlines more competitive and as a proxy to weed out more senior workers for younger beauties.

    In the US, there are no official weight regulations however most airlines do look for weight to be proportionate to height.  Under the Americans With Disabilities Act (ADA) the definition of disability requires that applicants establish “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” § 12102(2).

    This allows for legal discrimination to some degree as the EEOC (Equal Employment Opportunity Commission) currently takes the view that the ADA categorizes as ‘disabled’ persons suffering from extreme obesity, and obesity that results in other physical ailments.  This would essentially leave out overweight but non-obese employees, and those who do not have an additional physical condition due to their obesity.  This approach is somewhat irrational because under that definition a moderately over-weight flight attendant could be fired, but a 400 pound flight attendant would have to be retained and accommodations made for her medical condition.  That leads to the next exception in appearance-based discrimination, where employers may discriminate to use a “bona-fide occupational qualification” defense (BFOQ) that is reasonably necessary to the normal performance of a job. In the flight attendant cases, airlines could discriminate if the qualification dealt with the flight attendant’s ability to perform safety duties, making the airplane too heavy, or inability to navigate the narrow aisles.

    Interestingly, France’s new health bill also targets obesity issues by mandating free water at all bars and restaurants and by targeting food served in schools, including limiting sugary sodas. The French health ministry spokesman said: “It is clearly unhealthy to be either too fat or too thin, and we are aiming to legislate for both.”

    As far as the US following France’s regulations on limiting unhealthy food, like soda, this is unlikely to pass constitutional muster.  Recent attempts to regulate foods in New York City were found unconstitutional because the city’s health board lacked legislative authority to impose the “Sugary Drinks Portion Cap Rule,” failed to bring evidence soda consumption was unhealthy, and did not act from a purely public health point of view. New York Statewide Coal. of Hispanic Chambers of Commerce v. New York City Dep’t of Health & Mental Hygiene, 110 A.D.3d 1, 970 N.Y.S.2d 200 (2013) aff’d, 23 N.Y.3d 681, 16 N.E.3d 538 (2014).

    While New York’s soda ban failed, the judicial opinion that struck it down hinted that if the right measures are implemented by individual state legislatures, “health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health.” This leaves open the possibility of more “nanny state” attempts by state governments in the future to restrict individual rights. Additionally, initiatives in other cities have the potential to pass, such as a tax or labeling on soda to deter consumption.

    Clearly health is an important issue in all governments.  Fortunately, the US government is not as paternalistic as European nations. The United States is unlikely to make swift, extensive changes within the fashion industry or to address unhealthy eating habits at the federal level as they did in France.  The bottom line is that most Americans do not like to be told by the government what they can or cannot eat, what they should look like, how much they should weigh, etc.  Most people believe that the nanny state has no business in the wardrobe room or at the photoshoot. 


Saturday, June 13, 2015

These Drivers can be Uber Dangerous

Recently we have seen quite a buzz on unique “taxi” companies such as Uber and Lyft all around the United States. These companies are based on smartphone apps that allow anyone in need of a ride to post their location and nearby drivers who have signed up for Uber and Lyft will come and pick you up and drive you where you want to go for less money than a taxi would charge.  The problem is that these drivers are not regulated, no special licensure is required, and there is no fingerprint background check.  What riders do not consider is that these drivers could be anybody, including dangerous criminals, rapists, psycho killers, etc. 

This new “service” flies in the face of what we have all been taught as little kids – “Never, never, never, get in a car with a stranger.”  Children are cautioned that a molester or kidnapper might drive up in a car and say “come here little girl/boy, do you want some candy?” Or, “come over here and see this cute little puppy.”  Children are cautioned to run because once you get in that car, you are their prisoner and they can take you to a desolate area and do horrible things to you and even kill you.  Now the lure of candy and puppies has transformed into the lure of saving a few dollars on cab fare.   It is analogous to electronic hitchhiking.  You have no idea who is picking you up. There is no doubt that if one were to ask a victim of a horrific kidnapping/rape if they had it to do all over again would they place more importance on saving a few bucks ahead of their safety, their answer would be obvious.  They would gladly have paid a thousand times that amount to never have gone through that. 

In cities across the world, drivers have sexually harassed and even raped victims, as well as hit and killed children.  The crimes are egregious and indisputable. But the question remains, is Uber legally responsible for them? Its terms of service warns riders, “You expressly waive and release the company from any and all any liability… arising from or in any way related to the third party transportation provider.” That caveat hasn’t stopped victims from issuing lawsuits and entire countries banning the app entirely; however, the argument that the business has no connection with its employees’ abuses appears patently disingenuous.


Just last month yet another incident happened in Houston, Texas, where an Uber driver picked up a drunk female passenger and raped her. 


On November 16, a Chicago woman was reportedly raped by a driver who asked her to sit in the front of his car because he was “unfamiliar with the area,” according to the Chicago Tribune. Uber has removed the driver from its service and is complying with the city police.

Los Angeles

Similarly, a female student at the University of Southern California was raped by an Uber driver.

Both Los Angeles and San Francisco are suing Uber for misrepresenting the quality of its background checks, especially in light of the company’s added $1 “Safe Rides fee” that tout its driver screening. Uber’s process is actually “completely worthless,” argued San Francisco District Attorney George Gascon. Lyft, an app-based car company that is weathering regulation better than its larger, more aggressive competitor, recently settled the suit for $500,000.

San Francisco

Roberto Chicas, a San Francisco bartender, may lose vision in an eye over an UberX ride after the driver took a hammer to his passenger’s face during a dispute in September. “There’s no doubt that the trail of liability leads back to Uber’s doorstep,” said Harry Stern, the victim’s lawyer, who plans to sue the company. “We believe they should pay.”


In November, Uber suspended operations in the state of Nevada after a judge granted the state’s request to block the company, successfully arguing that drivers’ Uber-enabled ability to use their personal cars to carry paid passengers goes against the rights of taxi companies. “I’m not going to risk the safety of the public,” said Judge Scott Freeman.

London, U.K.

A London woman was offered $31 in Uber credit after her driver “asked me if I wanted him to go down on me,” Newsweek discovered. “I feel that people really trust the Uber name (as I do) and my trust was completely violated,” the woman said.

New Delhi, India

Delhi driver Shiv Kumar Yadav picked up a 26-year-old woman in his Uber car, but instead of bringing her home, Yadav drove her to a secluded area and raped her. According to police, the driver later confessed to the crime. After a storm of bad press, the government “banned Uber to provide any transport related service in Delhi,” the state government announced. Mumbai and Hyderabad are joining in on the ban, as well.


A judge in Spain laid a temporary ban on Uber, accusing the company of "unfair competition” following a complaint from the Madrid Taxi Association. Drivers Drivers "lack the administrative authorization to carry out the job,” the ruling reads. Yet the company maintains it is "still operating" in the country, reports the BBC.

There are numerous countries where Uber is being outlawed. But the company’s website tells a different story, toting its services in 52 countries, including many that supposedly ban it.

 No meaningful Background Checks

Although these drivers receive a very basic screening, no one can know how safe or trustworthy they are. It is very easy for a dangerous criminal to change his name or steal a new social security number.  In contrast to Uber or Lyft drivers, legitimate taxi drivers undergo FBI fingerprint and background checks.  Their license and photograph are posted on the dashboard, and the industry is heavily regulated. 

Particularly in Miami, these companies have been in the spotlight due to the protests taking place by local taxi drivers and even police who are furious that these drivers are diverting business from legitimate taxi drivers and are putting the public at great risk.  It is certain that we will soon be seeing lawsuits against Uber, Lyft, and other such companies for negligent hiring and retention and other causes of action, and it is likely that municipalities and states will begin enacting laws to regulate these companies and enforcing existing laws that regulate taxi drivers.  In most areas of the country, there are already laws in place that place stiff fines on drivers if they are caught acting as a taxi without a license.  It is also anticipated that police may soon set up stings to catch these illegal drivers.  Until then, all we can do is remember the valuable lessons that our parents taught us.  Don’t accept rides from strangers. 


Wednesday, May 14, 2014

Miami Attorney Tom J Manos Wins Dismissal of $60 Million Fraud Case in Miami Court Against His Client in Favor of Venezuelan Forum

Tom J. Manos, representing a Miami defendant who was doing business with a failed stock brokerage in Venezuela, won an appeal affirming the dismissal of a case in Miami-Dade Circuit Court alleging a $60 million fraud, civil theft and conspiracy against his client in favor of litigation in the courts of Venezuela on forum non conveniens grounds.

The doctrine of forum non conveniens permits defendants to move to dismiss cases filed in Florida where a foreign forum would be more convenient for the defendant and the court finds the alternative forum to be available and adequate to hear the case.

In this case, Manos obtained a dismissal in the trial court for his client in favor of litigating in the courts of Venezuela, arguing at an evidentiary hearing that Venezuela's court system was an adequate alternative forum for the litigation and that other factors also favored Venezuela's courts over Miami's courts. On appeal of the dismissal order, and after oral argument, the Third District Court of Appeal affirmed without opinion on February 26, 2014, and on March 31, 2014 denied a motion by the plaintiff for rehearing and rehearing en banc, or in the alternative for a written opinion. See, Vasquez-Estrella v. Camperos, Case No. 11-035080, Miami-Dade Circuit Court, Third District Court of Appeal case No. 13-2342. The appllate court's order is now final.

Thursday, April 26, 2012

Company booked fake concerts, ran off with money

By Pankaj Ladhar of Manos • Alwine P.L.

A company filed a lawsuit against Black Velvet Entertainment and its chief, alleging that it falsely claimed to represent musicians and would book them for concerts. One of the singers the company said it represented was Kanye West.
In 2009, Black Velvet contacted the company and said that they would book a concert with Kanye West for $45,000. Eventually, Black Velvet "came clean" about not representing Kanye West, but would apply the money to book another concert. The company sent another $100,000 to Black Velvet for another concert, but learned that Black Velvet did not represent that singer, nor did it apply the $45,000 to the booking fee for the second concert.

According to allegations in the lawsuit, the company alleged that Black Velvet had every intention of conning the company from the beginning. The company did not realize this until after Black Velvet offered another booking with a $10,000 binder, and the money was wired to Black Velvet. Documents say that the whole situation turned into a shell game.

The plaintiff company also states that they did not know that Black Velvet had been defrauding business partners for over 10 years. The defendants Black Velvet and its chief allegedly had been setting bookings for all this time, when they had no authority from the personalities to do so. Once Black Velvet solicited money from companies, it would disappear. According to court documents, the plaintiff company is seeking punitive and compensatory damages for conspiracy to defraud, fraud, breach of contract and conversion.

Source: Pollstar, "Fake Kanye Concert Lawsuit," April 21, 2012

Thursday, April 5, 2012

Nike files lawsuit against Reebok over licensed jerseys

By Pankaj Ladhar of Manos • Alwine P.L.

Reebok was the official sponsor for the National Football League Players Association to produce and sell player apparel in Florida and throughout the country. That decade long contract expired before March 1 of this year. However, Nike will become the exclusive supplier of NFL jerseys and apparel for all NFL teams beginning in April. Reportedly, Nike paid $1.1 billion for the right to hold the official license for the next five years.

So what is the business dispute between these two competitors? The dispute surrounds Tim Tebow, the NFL quarterback who grabbed headlines last season. He was recently traded from the Broncos to his new team, the Jets.

Though Nike assumed that Reebok would only be selling off its remaining inventory, Reebok has decided to supply jerseys with Tebow's name on them to retailers. Although these sales were for a limited period of time, Nike obviously expected to be the exclusive seller of these jerseys.

Nike certainly would like to protect its interests as the NFL's official jersey seller, and especially of Tim Tebow apparel, which is obviously a hot commodity. In fact, Tebow jerseys were the second highest selling jersey for the entire league last year.

Did Reebok have authorization to sell these jerseys? Does their agreement with the NFL Players Association grant Reebok the license to sell this product? Or was Reebok taking advantage of this unique situation at the end of their licensing agreement?

Nike filed a lawsuit to have a court address these questions surrounding the shirts and other apparel that Reebok is selling featuring the name and number of Tebow. Nike claims that Reebok's sales have caused Nike financial harm as they are now at a competitive disadvantage and have already lost substantial sales because of Reebok's actions.

Source: The Wall Street Journal, "Nike Sues Reebok Over Tebow Shirts," Chad Bray and Miguel Bustillo, March 28, 2012

Monday, March 26, 2012

Florida financial firm sued over cancelled IPO

By Pankaj Ladhar of Manos • Alwine P.L.

With large business opportunities come large business risks. When several companies come together to pursue a common goal there is often a great deal of optimism and positive messages about the future of the joint venture. Contracts are signed and hands are shaken as all the parties begin to try to carry out their responsibilities under the agreement. It is at this point that plans can sometimes go off the rails, deadlines and payment may be missed and the finger pointing begins.

A Florida financial firm now finds itself involved in a commercial lawsuit as part of a joint venture that was intended to facilitate the initial public offering of a security alarm servicing company. The lawsuit claims that the Florida firm, along with its partner intentionally destroyed the alarm servicing company by cancelling the IPO. They claimed that his was a breach of their contract and amounted to a "double cross."

The lawsuit indicates that the decision to cancel the IPO was an assertion on the part of the Florida firm and its partner that the alarm company had defaulted on a payment on an $85 million loan. It appears that the allegedly missed loan payment was supposed to come about as a result of an IPO by the alarm company on March 1. When the IPO did not happen the Florida firm stepped in and cancelled the IPO that was expected to close in April.

In response the alarm company says that they have actually paid $47 million and that they had not, in fact, defaulted on their loan payment. The alarm company is seeking $20 million in damages as a result of the cancelled IPO.

Source: Reuters, "Siemens sued for calling off alarm company IPO," Karen Freifeld, March 22, 2012

Wednesday, January 25, 2012

Restaurants in dispute over similar name

By Pankaj Ladhar of Manos • Alwine P.L.

Owners of two similarly named Chinese restaurants in Miami Beach have taken their argument to the courtroom. The owner of a high end Chinese franchise, Mr. Chow, is bringing a federal lawsuit against the owner of "Philippe by Philippe Chow."

The owner of Mr. Chow has a successful franchise of restaurants and is suing the owner of Philippe for trademark infringement. The suit claims that the new restaurant is trying to cash in on the style, ambiance, name, and even recipes of Mr. Chow. The owner of Philippe's is a former employee of Mr. Chow. The owner of Philippe's struck out on his own with the help of some high profile financial backing and is seeking to create his own chain up opscale Chinese restaurants.

The owner of Mr. Chow is seeking $20 million in damages. The proprietor claims that the owner of Philippe's is training to present himself as the "original Chow." For his part, the owner of Philippe's says that he actually created much of Mr. Chow's menu and is countersuing for defamation.

It may turn out to be a celebrity studded trial as numerous current and former athletes from the NFL and NBA are financial backers of Philippe's establishment and plan to testify in court. They are expected to contend that the owner of Mr. Chow is the figurehead of the company, not the chef, thus helping to diffuse the claims of recipe theft. The owner of Mr. Chow is also bringing a lawsuit against an hotelier who has a hotel and restaurant called Mr. C. The owner of Mr. Chow claims that this is too similar to the name of his establishment.

Source: Miami Herald, "Chow vs. Chow: Miami Beach feud food lands in federal court," Adam Beasley, Jan. 12, 2012

Wednesday, August 24, 2011

Investors, employees and others went unpaid when theatre closes

By Pankaj Ladhar of Manos • Alwine P.L.

When a movie theatre opened last year in Florida, employees and others doing business with the owner assumed that the owner would do his best to keep up with his bills and payroll. But when the business went under they were all left empty-handed and discovered that they were not the first ones to find themselves in this position.

According to local news sources, the owner and his business have been the subject of numerous commercial lawsuits resulting from an apparent failure to pay creditors and employees. An investigation determined that the owner was associated with at least 88 theatres in Florida and other states, but that the majority of these never opened or were open only for a short time. It was also determined that the owner and his business have been subject to lawsuits at least 69 times and have been ordered to pay more than $24 million in civil judgments.

The owner is alleged to have convinced commercial property owners to provide upfront funding for construction or renovation of the theatres. In some cases the owner actually hired contractors to do the work but then failed to pay them when the bills came due.

When investors, contractors and employees have attempted to collect on these unpaid bills and judgments, they assert that the owner hid all of his assets and property, while all the while living in an upscale condominium. Surprisingly there is no record of criminal fraud actions against the owner.

In many situations, business disputes arise because the entrepreneurial plans of one party do not work out as well as they had hoped. In this case however it appears that there was an absence of good faith in the owner's business dealings.

Source: Treasure Coast Palm "Ex-owner of failed Stuart theater leaves behind unpaid bills, fraud allegations" Matt Clark, Aug. 23, 2011

Archived Posts


Manos Schenk is located in Miami, Florida, and serves Miami as well as the surrounding South Florida communities, including Aventura, Kendall, Coral Gables, Homestead, Pinecrest, Hialeah, Miami Beach, Doral, Fort Lauderdale, Hollywood, Key Biscayne, Coconut Grove, Palm Beach, South Beach, Miami-Dade County, Broward County, Palm Beach County and Monroe County.

© 2019 Manos Schenk PL, Attorneys and Counselors at Law
1001 Brickell Bay Drive, Suite 1200, Miami, FL 33131
| Phone: 305-341-3100

Practice Areas | Media Center | Our Professionals | NEWS


Law Firm Website Design by
Zola Creative