TABLE OF CONTENTS

PART I: DISCUSS THE FOLLOWING WITH EXAMPLES................................................................2

1. Torts, negligence and strict liability............................................................................................2
2. The difference between civil law and criminal law......................................................................4
PART II: CASE STUDY.........................................................................................................................6
3.1. Whether Burger King engaged in deceptive advertising, the type of deceptive advertising,
your team’s opinion.........................................................................................................................7
3.2. The remedies plaintiff could claim...........................................................................................8
3.3. The organization(s) which has authority to take action............................................................8
3.4. The law(s) under which plaintiff can file a lawsuit...................................................................9

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PART I: DISCUSS THE FOLLOWING WITH EXAMPLES
1. Torts, negligence and strict liability
Answer
I. Torts
i. The basis of Tort Law
A tort is defined as “a wrongful act or an infringement of a right (other than under
contract) leading to civil legal liability.” A tort occurs when a person wrongs someone
else in a way that exposes the offender to legal liability. This harm doesn’t always
occur because someone intentionally sets out to harm another person on purpose.
Rather, a person can commit a tort by acting negligently or failing to act
appropriately. In addition, in some types of tort cases, an actor is strictly liable for the
damages they cause even when they are as careful as possible.
ii. The purpose of Tort Law
Tort law determines whether a person should be held legally accountable for an injury
against another, as well as what type of compensation the injured party is entitled to.
iii. Damages Available in Tort Actions
In tort lawsuits, the injured party—referred to as the “plaintiff” in civil cases
(comparable to the prosecutor in a criminal case)—seeks compensation, typically
through the representation of a personal injury attorney, from the “defendant” for
damages incurred (i.e. harm to property, health, or well-being).

The 4 elements to every successful tort case are: duty, breach of duty, causation and
injury. For a tort claim to be well-founded, there must have been a breach of duty
made by the defendant against the plaintiff, which resulted in an injury.

iv. Examples and type of Torts

Tort lawsuits are the biggest category of civil litigation and can encompass a wide
range of personal injury cases. However, there are 3 main types: intentional torts,
negligence, and strict liability.

a. Intentional torts
An intentional tort is when an individual or entity purposely engages in conduct that
causes injury or damage to another. For example, striking someone in a fight would
be considered an intentional act that would fall under the tort of battery; whereas
accidentally hitting another person would not qualify as “intentional” because there
was no intent to strike the individual (however, this act may be considered negligent if
the person hit was injured).

Although it may seem like an intentional tort can be categorized as a criminal case,
there are important differences. A crime can be defined as a wrongful act that injures
or interferes with the interests of society. In comparison, intentional torts are wrongful
acts that injure or interfere with an individual’s well-being or property.

While criminal charges are brought by the government and can result in a fine or jail
sentence, tort charges are filed by a plaintiff seeking monetary compensation for
damages that the defendant must pay if they lose.

Sometimes a wrongful act may be both a criminal and tort case. A victim can
typically recover more financial damages from a civil case than a criminal case.

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 Examples of intentional torts
• Assault
• Battery
• False imprisonment
• Conversion
• Intentional infliction of emotional distress
• Fraud/deceit
• Trespass (to land and property)
• Defamation

b. Negligence
There is a specific code of conduct that every person is expected to follow, and a legal
duty of the public to act a certain way in order to reduce the risk of harm to others.

Failure to adhere to these standards is known as negligence.

Negligence is by far the most common type of tort.

Unlike intentional torts, negligence cases do not involve deliberate actions.
Negligence occurs when a person fails to act carefully enough and another person gets
hurt as a result. For this type of case, a person must owe a duty to another person.
Then, they must fail in their duty to act reasonably. Finally, that failure must result in
harm and damages.

For example, a driver on the road has a duty to drive at a reasonable speed. If a driver
travels 20 miles over the speed limit, they have acted negligently. If they hit someone
and hurt them, they have committed a negligence tort and likely owe the victim for
their losses.

Another common example of negligence torts are cases of slip and fall, which occur
when a property owner fails to act as a reasonable person would, thus resulting in
harm to the visitor or customer. For example, a janitor has a duty to put up a wet floor
sign after mopping. If he or she fails to put up the sign and someone falls and injures
themselves, a negligence tort case may be filed.

 Examples of negligence torts

• Slip and fall accidents
• Car accidents
• Truck accidents
• Motorcycle accidents
• Pedestrian accidents
• Bicycle accidents
• Medical malpractice

c. Strict liability
Lastly, there are torts involving strict liability. Strict, or “absolute,” liability applies to
cases where responsibility for an injury can be imposed on the wrongdoer without
proof of negligence or direct fault. If a case is a strict liability tort, the victim has a
right to recover even if the responsible party took every precaution and didn’t hurt
them intentionally. The only thing the victim must prove is that they were hurt

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because of the other person’s actions. What matters is that an action occurred and
resulted in the eventual injury of another person.

For example, if a company releases a defective product for consumer purchase, and a
consumer is injured because of the defect, strict liability is imposed. The company is
always held liable.

In lawsuits such as these, the injured consumer only has to establish that their injuries
were directly caused by the product in question in order to have the law on their side.
The fact that the company did not “intend” for the consumer to be injured is not a
factor.

Defective product and dog bite cases are prime examples of when liability is
maintained despite intent.

 Examples of strict liability torts

• Defective products (product liability)
• Animal attacks (dog bite lawsuits)
• Abnormally dangerous activities

2. The difference between civil law and criminal law

Ansvwer

Civil law and criminal law are two distinct branches of the legal system that serve
different purposes and involve varied procedures.

Civil Law Criminal Law

Definition Civil law deals with the Criminal law is the body
disputes between of law that deals
individuals, organizations, with crime and the legal
or between the punishment of
two, in which criminal offenses.
compensation is awarded
to the
victim.
Purpose To deal with the disputes To maintain the stability of
between individuals, the state and society by
organizations, or between punishing offenders and
the two, in which deterring them and others
compensation is awarded from offending.
to the victim.
Jury opinion In cases of civil law, the In the criminal justice
opinion of the jury may system, the jury must
not have to be unanimous. agree unanimously before
Laws vary by state and a defendant is convicted.
country. Juries are present
almost exclusively in
criminal cases; virtually

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 never involved in civil
actions. Judges ensure law
prevails over passion.
Case filed by Private party Government
Decision Defendant can be found Defendant is convicted if
liable or not liable, the guilty and acquitted if not
judge decides this guilty, the jury decide this.
Standard of proof "Preponderance of "Beyond a reasonable
evidence." Claimant must doubt":
produce evidence beyond
the balance of
probabilities.
Burden of proof The burden of proof first "Innocent until proven
lies with the plaintiff and guilty": The prosecution
then with the defendant to must prove defendant
refute the evidence guilty - The burden of
provided by the plaintiffs. proof lies with the
government in order to
prove that the defendant is
guilty.
Type of Compensation (usually A guilty defendant is
punishment financial) for injuries or subject to Custodial
damages, or an injunction (imprisonment) or Non-
in nuisance. custodial punishment
(fines or community
service). In exceptional
cases, the death penalty.
Examples Landlord/tenant disputes, Theft, assault, robbery,
divorce proceedings, child trafficking in controlled
custody proceedings, substances, murder, etc.
property disputes, personal
injury, etc.
Appeals Either party (claimant or Only the defendant may
defendant) can appeal a appeal a court's verdict.
court's decision. The prosecution is not
allowed to appeal.
Commencement of State/People/Prosecution By way of pleadings,
proceedings by summons or indictment Representatives of the
state, Prosecutor, Attorney
General.

 Example

Civil Law: Imagine a scenario where a driver accidentally hits a pedestrian while
driving. The pedestrian suffers injuries and incurs medical expenses. In this case, the
injured pedestrian can file a civil lawsuit against the driver. The aim here would be to
seek compensation for medical bills, lost wages, and other damages resulting from the
accident. The burden of proof in a civil case would require demonstrating that the
driver's negligence or recklessness caused the accident and subsequent injuries.

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Criminal Law: Now, let's say the driver was not only driving recklessly but also was
under the influence of alcohol or drugs at the time of the accident. In such a situation,
the government could bring criminal charges against the driver for offenses like
driving under the influence or even vehicular manslaughter if the accident resulted in
the death of the pedestrian. In a criminal trial, the prosecution would aim to prove
beyond a reasonable doubt that the driver committed the offense as defined by the
law. If found guilty, the driver could face penalties such as fines, license suspension,
or imprisonment.

PART II: CASE STUDY

Read the following case and discuss the topics below. (4 points)

Burger King accused of false advertising in lawsuit alleging Whoppers are too
small
The suit accuses the fast-food chain of making its food look bigger in ads compared
with what it serves up to customers in reality.

It's not the kind of Whopper Burger King wants to be associated with.

A South Florida lawyer has filed a federal lawsuit seeking class-action status alleging
that Burger King has misled customers by portraying its food as being much larger
compared with what it has served to customers in real life.

The suit, brought by attorney Anthony Russo, alleges Burger King began inflating the
size of its burgers in images around September 2017. Before that, the suit claims,
Burger King "more fairly" advertised its food products.

Today, the size of virtually every food item advertised by Burger King is "materially
overstated," the lawsuit says. Russo and the plaintiffs he is representing single out
advertisements for Burger King’s trademark Whopper, saying the entire burger is 35
percent larger than the real-life version, with double the meat than what is actually
served.

The suit cites as witnesses multiple YouTube users who specialize in food reviews
and Twitter users who complained about their orders.

It's not the first time Burger King has been accused of inflating food in its ads. The
United Kingdom's advertising authority cited the company 12 years ago for burgers
that had height and thickness "considerably less" than what was advertised.

The suit, which seeks class-action status, demands monetary damages and a court
order requiring Burger King to end what it says are its deceptive practices.
Representatives for Burger King and its parent company, Restaurant Brands
International, didn’t immediately respond to an emailed request for comment.

Jonathan Maze, the editor in chief of Restaurant Business magazine, said that while
lawsuits against fastfood companies like Russo's may seem to lack merit, they can
sometimes scare company executives into paying settlements "when they fear bad
publicity."

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In 2020, a California judge approved a $6.5 million settlement in a class-action
lawsuit filed against Chipotle over what was alleged to be a misleading non-GMO
advertising campaign.

"Big or small, justice is justice, and laws are laws," Russo said, "and just because
something happens to appear in someone’s opinion to be minor doesn’t mean that it
is."

He said he was seeking greater transparency in industry advertising more broadly.

"If I’m advertising a vehicle, you don’t Photoshop it to enhance it," he said. "Sure,
maybe you shoot it in its best light, but certainly you don’t make it misleading. That’s
really the basis for these kinds of lawsuits."

(Source: Wile, R., April 5, 2022, Burger King accused of false advertising in lawsuit
alleging Whoppers are too small, www.nbcnews.com)

Discussion topics:
3.1. Whether Burger King engaged in deceptive advertising, the type of deceptive
advertising, your team’s opinion
Answer

Burger King did engage in deceptive advertising and the type of deceptive advertising
they engaged is puffery.

These are some arguments:

1. Visual Evidence of Size Discrepancy: There were present side-by-side
comparisons of Burger King's promotional images and the actual products served,
highlighting the apparent size difference.
“The entire burger is 35 percent larger than the real-life version, with double
the meat than what is actually served.”

2. Testimonies from YouTube and Twitter Users: Include statements and

testimonies from YouTube users who specialize in food reviews, emphasizing
instances where they perceived a difference in size between the advertised and actual
products.

3. Comparisons with Previous Advertising Practices: Contrast the current

advertising practices of Burger King with their advertising approach before
September 2017. If there was a notable shift in how products were portrayed, it could
strengthen the argument for deceptive advertising.

4. Reference to Previous Regulatory Actions: This is not the first time Burger King
has been accused of inflating food in its ads. The United Kingdom's advertising
authority cited the company 12 years ago for burgers that had height and thickness
"considerably less" than what was advertised

3.2. The remedies plaintiff could claim

Answer

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1. Monetary Damages:
• Compensation for Losses: The plaintiff may seek monetary damages to
compensate customers who may have been misled by Burger King's deceptive
advertising. This could include reimbursement for overpayments or other
financial losses suffered by consumers as a result of the alleged deception.
2. Injunction:
• Court Order to Stop Deceptive Practices: The plaintiff can request an
injunction, which is a court order requiring Burger King to cease the alleged
deceptive advertising practices immediately. This would prevent the company
from continuing the practices during the course of the lawsuit and in the future.

3. Corrective Advertising:
• Mandatory Corrective Measures: The court may order Burger King to engage
in corrective advertising to rectify the perceived deception. This could involve
new advertisements or disclosures correcting the misrepresentation made in
previous campaigns.

4. Disclosure Requirements:
• Court-Ordered Transparency: The court may impose specific disclosure
requirements on Burger King, compelling the company to be more transparent in
its advertising practices. This could include clearer disclaimers about the actual
size of products compared to what is portrayed in advertisements.

5. Attorney's Fees and Costs

• Reimbursement for Legal Expenses: If successful, the plaintiff may seek to
have Burger King cover their attorney's fees and other legal costs incurred during
the litigation. This is a common remedy in many legal cases to ensure that the
party wronged is not burdened with excessive legal expenses.

6. Industry Monitoring or Oversight:

• Ongoing Monitoring or Oversight: As part of the remedies, the court might
establish a mechanism for ongoing monitoring or oversight of Burger King's
advertising practices to ensure compliance with advertising standards and prevent
future deceptive practices.

3.3. The organization(s) which has authority to take action

Answer

Federal Trade Commission (FTC):

• Role: The FTC is a U.S. government agency responsible for protecting
consumers and promoting fair competition. One of its primary functions is to
investigate and take enforcement action against deceptive and unfair business
practices, including deceptive advertising.
• Authority: The FTC has the authority to issue cease and desist orders, require
corrective advertising, and impose fines against companies found guilty of
deceptive advertising. The agency also has the power to initiate legal
proceedings.

National Advertising Division (NAD):

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• Role: The NAD is a self-regulatory body within the advertising industry and is
part of the Better Business Bureau (BBB). It builds consumer trust in advertising
and supports fair competition in the marketplace. NAD holds national advertising
across all media types to high standards of truth and accuracy by reviewing truth-
in-advertising challenges from businesses, trade associations, consumers, or on its
own initiative.
• Authority: While the NAD lacks the legal enforcement powers of government
agencies, it can make recommendations for corrective actions. Many companies
voluntarily comply with NAD recommendations to maintain a positive public
image and avoid further scrutiny.

3.4. The law(s) under which plaintiff can file a lawsuit

Answer

1. Federal Trade Commission Act (FTCA):

• The FTCA prohibits unfair or deceptive acts or practices in commerce. The
Federal Trade Commission (FTC) enforces this act and has the authority to take
action against deceptive advertising.

2. Unfair and Deceptive Acts and Practices (UDAP) Laws:

• Many states have a consumer protection statute broadly prohibiting deceptive
practices. Many also prohibit unfair or unconscionable practices, and a few
prohibit abusive practices. These UDAP statutes are consumers’ main protection
against unscrupulous businesses and can provide victimized consumers with
effective relief

The UDAP declares Deceptive Acts or Practices An act or practice is deceptive where
• A representation, omission, or practice misleads or is likely to mislead the
consumer
• A consumer’s interpretation of the representation, omission, or practice is
considered reasonable under the circumstances
• The misleading representation, omission, or practice is material.

3. Lanham Act (False Advertising):

• Section 43(a) of the Lanham Act: The Lanham Act is a federal law that includes
provisions related to false advertising. Section 43(a) allows competitors and
consumers to bring private lawsuits against parties engaging in false or
misleading advertising that harms competition.

4. Common Law Fraudulent Misrepresentation and Negligent Misrepresentation

• Plaintiffs may bring claims based on common law principles of fraud and
misrepresentation. This involves proving that the defendant made false statements
with the intent to deceive and that the plaintiff relied on those statements to their
detriment