Legal Issues: Administrative and Rulemaking Process - Assignment Example

• Administrative/Rulemaking Process

Administrative process/rulemaking process refers to the procedure for making new regulations by the federal agencies as stipulated in chapter five of the Administrative Procedure Act (APA) (5 U.S.C.). The procedure begins by legislatures establishing policies to authorize the relevant agencies to create detailed regulations (Brito & Dudley, 2012). Then federal agencies engage in regulatory planning involving the creation of rulemaking planning document to notify the public about the upcoming rulemaking activity. The next step is to involve the relevant stakeholders to get their input on the drafting regulations by posting in the Federal Register an Advance Notice of Proposed Rulemaking to get their views before extending the commenting to the general public. The agencies then develop a proposal based on the stakeholder's views after which they publish the proposed rule in the Federal Register to inform the public about the requirements of the new regulations and the basis for proposing those changes (Carey, 2013). The aim of this publication is to solicit feedback from the public to enable the agency improve the proposed rule and make it more effective. The agency reviews the comments or views received from the public and uses it to determine whether to terminate the rulemaking process or propose a new regulation to meet the expectations of the targeted group. The final proposed rule is reviewed by other federal agencies such as the Office of Information and Regulatory Affairs (OIRA), the office of the Management and Budget’s (OMB) in accordance with the procedure set by Executive Order (Carey, 2013). Once approved by the reviewing agencies, the final rule is published in the Federal Register with a specific date when it is expected to become operational or effective and the same is codified in the Code of Federal Regulations (Brito & Dudley, 2012). From the citizens’ point of view the rulemaking process involves receiving the notification of the suggested regulations and the opportunity to make their opinion about what they expect or what they want in the regulation. Once the duration of making suggestion lapses the citizens expect the federal agencies to collate their views or ideas into an implementable rule after which the public is notified of the new regulation and the effective date.

• Legal Advice to Roc Regarding Contributions to the Food Safety Training Facility in Atlanta, Georgia

Kay Roc, the owner of fast food chain, McWilliams has a personal issue with the newly published rule because it will incur the additional business expenses to obtain additional expenses and more work. However, Roc has an option to use make contributions to the food safety training facility in Atlanta, Georgia to influence certain personalities in the Food and Drug Administration (FDA) agency to scrap the new regulation. The Federal rulemaking process involves a due process which is intended to promote fairness in the law making the process by giving the public an opportunity to participate in the legislative process and avoiding making secret regulations (Chen-Wishart, 2012). Therefore, the rulemaking process is governed by the APA Publication Provisions 5 USC § 552(a). The Federal laws allow individuals to challenge the implementation of the new regulations for various reasons.

During the rulemaking process stipulated in APA, the proposed rule is published in the Federal Register before its implementation to allow the members of the public to raise any issue they might be having before the rule is implemented. However even after the federal agencies have published the regulation as the final law, individuals can challenge it in the court if the rulemaking process violated failed to fulfil certain conditions. For instance, if the Federal agencies did not follow the process set by the APA, the rule surpasses the power of the agency given by the Congress or the regulation infringes the right of the claimant established in the constitution or statutory laws such regulation can be rendered invalid by the court in favor of the claimant (Brito & Dudley, 2012). CAA § 307(d)(7)(B) requires the petitioner to ascertain the circumstances leading to the claim. The petitioner should go through the reputable court like district court. Nevertheless, the issues raised by Roc do not meet the threshold required to challenge the new regulation successfully. Roc has an option to make contributions to the food safety training facility in Atlanta, Georgia and use that platform to request the FDA officials to get rid of the proposed rule in favor of McWilliams.

Therefore, I would recommend Roc to accept the new regulations and not to make such contribution because the FDA followed the due process set by APA by publishing the proposed rule in the interest of the public while Roc’s claims are of personal interest (Carey, 2013). Also, there is not prove that the proposed rule violates the constitutional rights of the claimant or any evidence that the FDA overstepped its Rulemaking power mandate granted by the Congress. Since Roc is concerned about building the reputation of McWilliams giving of such contributions in exchange for the elimination of the new policy is unethical and violates business integrity. The passage of the new regulation is in the interest of the public and once it is published the dissatisfied individuals should raise complaints through the right procedure which involves the court process.

• Personal Responsibility

The claim raised by Hal Coker against McWilliams involves the responsibilities and negligence of the fast foods businesses in offering substandard meals that are believed to have adverse consequences on the consumers. It involves making of personal choices by the consumers thus involving the claimant in the negligence. The intention of the Act is to ensure traders do not take advantage of the consumers’ unknowing state to sell bad or substandard goods. The Federal Trade Commission (FTC) is responsible for handling consumer issues relating to unfair trade practices, and it is also responsible for regulating unfair trade practices. The defense against claims of unfair trade practices involving fast foods takes into consideration of the plaintiff’s use of common sense (Goldman & Corrada, 2011). The law will focus on contributory negligence, the assumption of risk and the existence of obvious risks in the products. Considering the nature of claim brought by Hal, it is evident McWilliams is likely to win because it was the plaintiff’s personal choice to eat fast foods and may not have taken the time to inquire about the healthy status of the foods or may have assumed the risk associated with such foods.

Furthermore, the plaintiff may not have any evidence to show that injury suffered they suffered after eating fast foods hence without cause-effect relationship the plaintiff cannot win the case. In a similar case of McFat Litigation I - Pelman v. McDonald's Corp., 237 F.Supp.2d 512 (S.D.N.Y. Jan 22, 2003) the plaintiff sued McDonald on behalf of the minor arguing that McDonald engaged in deceptive trade practices because they did not disclose the information about the harm caused by their foods in their advertisements. However, the plaintiff lost the case because they could not establish the cause-effect relationship. Also, the plaintiff did not make an effort to get all relevant information related to the product hence there was an issue of contributory negligence of assumption of risk. Furthermore, personal Responsibility in Food Consumption Act (HR 339) preclude consumers from raising claims against the sellers or marketers of fast foods.

• Allison Children V. McWilliams

The case of Allison’s children and McWilliams is that of wrongful death believed to have occurred as a result of negligence by McWilliams to heed to the distress call made to the manager through 911. The manager acted negligently by failing to engage in what he called a family matter when Allison called for help following the threat of attack by her husband. If the manager acted positively in response to the call for help probably, the lives of the four family members could have been saved. When a wrongful death occurs the family members of relatives of the deceased can raise a lawsuit against the defendant (Marson & Ferris, 2015). The plaintiffs were invitees having been in the premises for clients. The law requires the managers, business owners and premise owners to ensure adequate security for the invitees including providing security against any physical assault as happened in this case as held in the case of Bass v. Gopal, Inc., 384 S.C. 238, 680 S.E.2d 917. (S.C. Ct. App. 2009). The plaintiff can sue for damages associated with mental anguish suffered by the children for the loss of parents, the damages for loss of breadwinners of the family and hospital bills incurred by the children.

• Intellectual Property Right

Intellectual property rights are the creation of intellect such as trademarks, patents, industrial designs rights and copyrights which are granted protections to safeguard owners against breach or theft. MW logo and mascot, McBurger are intellectual properties of the trademark in nature since they are designed to signify the company’s products. It helps the consumers to identify the company’s products. As decided in the case of Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008) the company can prevent protect its intellectual property to prevent another company from using the similar logos in its businesses because in doing so they will confuse the consumers. Protecting McWilliams logos nationally and internationally will preclude other traders from importing or trading with its products without the permission from the company. Nevertheless, McWilliams cannot succeed in a lawsuit against McDonald because the golden arches are not similar to MW golden logos and they cannot be associated with McWilliams in any way.

• Requirements of a Contract

The contract can be defined a relationship that subsists when the two parties’ minds come together, and the parties have the intention to enforce the agreement legally (Marson & Ferris, 2015). For a contract to exist, there should be an offer from one party and acceptance by the other party. Also, there should be consideration and intention of the parties to form a legally binding agreement. Both parties must have the capacity to enter into a legally binding agreement. Although a written contract is preferred and easier to enforce, the parties can have an oral agreement which is still enforceable (Guerin & Barreiro, 2016).

The employment contract between Eric and Bean& Counter was valid. Bean & Counter made the offer for employment and Eric accepted the offer. The terms were well stipulated in the contract agreement signed by Eric on 28th of November hence the contract became valid when the parties signed the agreement. However, it is upon the bereaved party to decide whether to take legal action against the other party or not in the case of breach of contract.

In an employment contract, the parties may decide to include a non-compete provision to protect the interest of the employer during and after termination of the contract (Chen-Wishart, 2012). This provision prevents the employee from using the information of the former employer or dealing with clients of the former employer to the competitors’ advantage and the detriment of the former employer (Guerin & Barreiro, 2016). However, the restraint imposed by the employer with regard to duration and distance within which the former employee should not work for the competitor must be reasonable (Goldman & Corrada, 2011). Since the employer breached the contract they had with Eric, but Eric decided not to take any legal action against the employer then Bean & Counter cannot enforce the non-compete provision anymore, and Eric has a legal right to seek for taking job from other employers including Cookie and Brooks’s firm. The non-compete provision should be in public interest, and Eric does not affect the Bean & Counter business.

I believe the agreement between Roc and Bean & Counter was invalid because it was based on past consideration as stated in Re McArdle (1951) Ch 669 Court of Appeal. Since Roc had offered to give the accounting department of McWilliams to Bean & Counter under the condition that they would offer employment to Eric, this was past consideration since Bean & Counter had already entered into an employment agreement with Eric two days earlier.

The issue between Scott and Turner purported contract for the sale of the property is a matter of the party’s capacity to enter into a legally binding contract. The parties must have a legal capacity to enter into a valid contract at the time they enter into an agreement (Chen-Wishart, 2012). Scott was the director of the McWilliams hence he had the capacity to form a valid contract. Also, although Turner was advanced in age and may have been on medication, he was in a capacity to enter into a legal agreement unless he convinces the court otherwise. However, another issue in this relationship was the occurrence of a common mistake (Guerin & Barreiro, 2016). Both parties had entered into an agreement for the sale of property worth $400,000, but unknown to both parties the purchase price was written as $40,000. Common mistake renders the agreement void hence there was no contract between the parties. Furthermore, there was no consideration in this case since as a contract for the sale of property the offeree should have given money or promise to pay as a consideration for the sale of property.