“Born in Brazil” Vita Coco Sued Over its Source

DBR 2By Celia Ampel, Daily Business Review

Miami lawyers are suing the makers of Vita Coco coconut water, alleging packaging that says “Born in Brazil” is misleading because some products are manufactured in other countries.

The class action aims to follow the success of another Southern District of Florida lawsuit against Anheuser-Busch over its marketing of Beck’s Beer. The company agreed last year to pay about $20 million and change the beer’s packaging to settle claims that it led customers to believe Beck’s was brewed in Germany rather than St. Louis.

“The Southern District found that the term ‘originated in Germany’ was deceptive and could reasonably mislead a consumer about where the product was made,” said Richard Segal, who is representing the Vita Coco plaintiffs with Philippe Lieberman and Steve Silverman, all of Kluger Kaplan in Miami. ” ‘Born in Brazil’ is directly analogous to ‘originated in Germany.’ ”


South Florida Condo Boards Rip Off Consumers with High Application Fees

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Kluger Kaplan’s Josh Rubens weighs in on the condo controversy in the front cover of the Miami Herald story.

Condo associations across South Florida are ripping off consumers with high application fees in violation of state law, a Miami Herald investigation has found.

Castellanos v. Next Door Co.: Assuring Reasonable Compensation for Workers’ Compensation Attorneys and their Clients

By James Diamond

In April 2016, the Florida Supreme Court issued an important ruling in Castellanos v. Next Door Co., significantly impacting Florida’s workers’ compensation statute.  The high court struck down the fixed amount of attorneys’ fees that successful workers’ compensation claimants are entitled to under Fla. Stat. § 440.34 on due process grounds, opening the possibility for successful workers’ compensation claimants to obtain increased attorneys’ fees awards.

Prior to the Castellanos decision, Section 440.34(1) strictly limited successful claimants’ recovery of attorneys’ fees based upon the amount of workers’ compensation benefits obtained. Specifically, a judge of compensation claims (“JCC”)—a judge responsible for adjudicating disputes over workers compensation benefits—could only award attorneys’ fees in an amount not exceeding 20% of the first $5,000.00 of the benefits secured, 15% of the next $5,000.00 of benefits, 10% of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5% of the benefits secured after 10 years. Furthermore, Section 440.34(1) created an irrebuttable presumption that precluded consideration of whether the statutory attorneys’ fee award was reasonable.

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Why Do So Few Americans Have Advance Directives?

Kluger Kaplan’s Jamie Zuckerman explains in Wealth Management the importance of advance directives and why – regardless of age and health – everyone should consider one.  

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By Jamie Zuckerman

Advance directives enable individuals to exercise control over their futures and ensure that the care they receive at the end of their lives is pursuant to their wishes.  Yet, the majority of individuals have not taken advantage of advance directives and the opportunity to control their futures.

There are two forms of advance directives—instruction directives and proxy directives. An instruction directive is one in which a person leaves instructions for his or her future care, but does not appoint an agent to carry out the directions.  A living will is the most widely used instruction directive. A proxy directive is one in which instructions are combined with the designation of a person to carry out instructions or to make decisions for the person executing the document. A durable power of attorney for health care or property is an example of a proxy directive.

Kluger- JamieTo record his or her medical preferences, an individual will need to execute written documents detailing them. A living will allows the declarant to document his or her wishes concerning medical treatments at the end of life if the individual is unable to speak for themselves. A health care power of attorney appoints someone to make health care decisions—and not just decisions regarding life-prolonging treatments— on one’s behalf. The appointed health care agent (also called an attorney-in-fact or proxy) becomes the patient’s spokesman and advocate on a range of medical treatments the patient sets out in the document. This type of document is sometimes referred to as a health care proxy, appointment of a health care agent or durable power of attorney for health care.

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Daubert, Frye, or Both: Becoming an Expert on the Standards for Experts

By Gina P. Villar

Up until 2013, the standard for admitting expert testimony in Florida was fairly simple to comprehend: any expert opinion based on scientific technique is “inadmissible unless that technique is generally accepted as reliable in the relevant scientific community.” Thus, according to what many attorneys refer to as the Frye test, the expert testimony must be generally accepted as reliable among his or her peers in order to be admissible in court.

Effective July 1, 2013, Florida changed its expert testimony standard from Frye to Daubert pursuant to Fla. Stat. § 90.702. The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals rejected the Frye standard and implemented a new standard for allowing experts to testify based on Federal Rule of Evidence 702, which in the simplest way, is comprised of two parts: 1) the testimony must be based on “scientific, technical, or other specialized knowledge;” and 2) the testimony must “assist the trier of fact to understand the evidence.” The Court also explained that judges can look to other factors in making its determination including if the theory has been tested; peer reviewed; published; contains a small rate of error; and is generally accepted in the relevant scientific community. The Supreme Court made clear that the less-stringent Frye test is just a factor under Daubert.

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