Business Law and Ethics Final LEB 320F

Fraserside IP, LLC v. Youngtek Solutions, LTD

- Plaintiff Fraserside, an Iowa corporation, filed a copyright and trademark infringement lawsuit in Iowa federal court against defendant Youngtek, a Cyprus-based company. - Youngtek moved to dismiss, claiming that the court lacked personal jurisdiction over it. - Fraerside failed to make a case of personal jurisdiction in Iowa. -According to the Iowa long-arm statute, substantial contact was not established - Motion to dismiss was granted

Summary Jury Trial

A jury is selected in the normal way, and they view a presentation of evidence in a real courtroom in what they believe is a real case. Before trials, it is often true that both sides expect to win. But after a jury in a _________ returns its verdict, one side quickly sees that it is vulnerable. Cases tend to settle shortly thereafter.

Adversarial system

A legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth and pass judgment accordingly

Inquisitorial system

A legal system where the court or a part of the court is actively involved in investigating the facts of the case

3 basic requirements for an offer:

A manifestation of an intent to contract, A reasonably definite indication of what the offeror and the offeree are to do, A communication of the proposal to the intended offeree

Judgment notwithstanding the verdict (JNOV)

A type of judgment as a matter of law (JMOL) that is sometimes rendered at the conclusion of a jury trial. The practice whereby the presiding judge in a civil jury trial may overrule the decision of a jury and reverse or amend their verdict.

Hypernorm

A value that would be fully accepted in almost all cultures and organizations, such as fundamental human rights and basic prescriptions common to most religions.

Punitive damages

Allow a jury to go beyond merely compensating a plaintiff for his injuries and punish defendants who have behaved particularly badly. If the jury is outraged by an intentional tort, they are allowed a significant discretion in awarding these extra damages.

Depositions

Allow attorneys to question witnesses under oath before a trial begins.

Interrogatories

Allow lawyers to demand answers to written questions.

Requests for production of documents

Allow lawyers to gather emails, business records, and the like.

The Family and Medical Leave Act

Allows workers with at least one year of service at a company, which has at least 50 employees, to demand unpaid time off to handle certain medical situations.

A challenge for cause

An attorney tries to convince a judge that a prospective juror will likely not be fair and impartial.

Classification of a trademark

Arbitrary or fanciful, suggestive, descriptive, and generic are all ___________ which have specific requirements that must be met in order to maintain the trademark.

Kelo vs City of New London

Case involves the use of eminent domain to transfer land from one private owner to further economic development. - Plaintiff claiming city misused its eminent domain powers - Supreme Court held that the general benefits a community enjoyed from economic growth qualified private redevelop plans as permissible "public use" under the 5th Amendment.

Negligence Torts

Cases arise when a defendant has carelessly caused harm to a plaintiff. In order to win a, a plaintiff must demonstrate that the defendant breached a duty of care, and was a proximate cause of the plaintiff's injury.

Intentional Torts

Cases when a defendant has deliberately caused harm. Plaintiff can receive compensatory and punitive damages. Assault and battery, Defamation, False Imprisonment, Nuisance, Trespassing, Invasion of Privacy, Infliction of emotional distress, Intentional Interference with a business relationship

Minimum contact (Long arm statute)

Causing an accident in the state - Sue in the state accident occurred Sign a contract in the state Do regular business in the state Cause foreseeable harm Take a formal step to defend a lawsuit

Peppercorn rule.

Even something of very small but measurable value (like a single peppercorn) can amount to consideration.

Promissory estoppel

Even though an agreement is not supported by traditional consideration, a court will enforce it anyway using this. This doctrine allows courts to stop the breaking of a promise if a gross injustice would arise otherwise

Proximate cause

Hold a defendant legally liable for harm suffered by a plaintiff, we are saying that he caused harm in a way that should have been reasonably foreseeable.

Defenses in Negligence Cases

If a defendant can demonstrate that a plaintiff shares some comparative fault for his own injury, then the plaintiff's award may be reduced. (ex: The jury concludes that the wreck was 90% Bredeson's fault and 10% Prentice's fault. Any damages going to Prentice would be reduced by 10%.) OR statute of limitations expired.

Supreme Court

If a party is unhappy with an intermediate court's actions, it can ask a this court to give a final review to the case.

Contract may be found to lack a legal purpose.

If agreement might violate an administrative regulation, or it might, in a court's opinion, make for poor public policy.

U.S. Courts of Appeal or circuit courts

If parties to a lawsuit are dissatisfied with how a trial court handled a case, they can take an appeal here. Where a panel of judges reviews the case for errors. Intermediate appellate courts

An exculpatory clause seeking to relieve a parking lot owner from liability for negligence typically will only be effective if what is true?

If the clause is very conspicuous and clearly states that the bailee will not be liable.

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property (Knight v. Just Born, Inc. case)

If the seller is engaged in the business of selling a product and it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold then...

When must contracts be written?

Sale of Land, Contracts that are not performable in one year, Promises to pay another's debts, Sales of goods of $500 or more, and Promises made in consideration of marriage, prenuptial agreements, and executors' contract.

Discovery

Second pre-trail phase. Lawyers representing each side in a lawsuit have expanded powers to obtain information that may be relevant to the case. Commonly used tools for information gathering include depositions, interrogatories, and requests for production of documents.

True Courts often consider the textual context of a statute when trying to interpret the meaning of the statute prior to considering the circumstantial context of when the statute was passed.

T/F A court will generally consider the textual context of a statute when attempting to determine the meaning of an ambiguous statute, prior to taking into account the circumstantial context of the passing of the statute.

True In such a case, the debt is said to have been "revived" and the creditor now has a new statutory period in which to bring suit.

T/F A debtor's written promise to pay a debt after the statute of limitations has expired is enforceable despite lack of consideration.

False A deposition is testimony of a witness given under oath. Both parties are generally present during the testimony and have an opportunity to cross-examine the witness

T/F A deposition is a series of questions sent by one party to the other, which much be answered under oath.

False Under the UCC's firm offer rule, merchants can only be forced to hold an offer open if the offer to keep it upon is written.

T/F A merchant's verbal promise to keep an offer open for two weeks, in the absence of paid consideration, is binding under Article 2.

False A J.N.O.V. or JMOL (judgment as a matter of law) may only be filed following a jury verdict. A motion to dismiss is filed prior to filing an answer.

T/F A party may file for a motion for judgment notwithstanding the verdict (also known as a J.N.O.V.) only prior to filing an answer.

Suggestive terms

Suggest something about a product without directly describing it, and they do not require a showing of a secondary meaning. Coppertone (sunscreen) and Sleekcraft (boats) are examples

False Most jurisdictions consider any defense claiming lack of personal jurisdiction to be waived when a party makes an appearance before the court.

T/F A party may make a special appearance at any point in a trial.

False Due to the level of trust and confidence between a seller and their close friend, they may be required to speak up. Failure to disclose, therefore, is more likely to constitute fraud if the plaintiff is a friend, a relative or a partner than if the plaintiff is a stranger.

T/F A seller generally doesn't owe a different level of duty to a stranger than they do to a close friend.

True The system is illegal only if it is intentionally used to discriminate.

T/F A seniority system does not violate Title VII simply because it has a discriminatory impact.

True A warranty is more likely to be found if the statement is objectively verifiable. Statements of opinion do not give rise to warranties.

T/F A statement is more likely to be considered an express warranty if it is objectively verifiable.

False A threat of future contact or a threat by a defendant far away is insufficient to establish a claim for assault. An assault involves a threat of imminent bodily contact.

T/F A threat of future injury can satisfy a claim for assault.

True If a trademark consists primarily of a geographic designation or someone's last name, the law treats it in the same way as a descriptive mark, and secondary meaning must be proved for the mark to be protectable.

T/F A trademark consisting primarily of a geographic designation or someone's last name does not require a secondary meaning.

False Simply having a website, "without requiring some level of 'interactivity' between the defendant and consumers in the forum state" is not enough to establish general jursidiction in a given jurisdiction.

T/F A website accessible in a jurisdiction is enough to establish general jurisdiction.

True Other factors, such as an independent intervening cause, may cause the jury or the judge to rule that the defendant is not liable for negligence even though the defendant was more careless than a reasonable person would have been.

T/F Even if a duty of care is established, and a legal cause is established, the defendant may still not be liable for a claim of negligence.

The concept of federal preemption is a general principle of constitutional law that applies to any state-federal conflict. The doctrine of preemption is relevant regardless of whether particular federal power comes from the Commerce Clause or from other provision of the Constitution.

T/F Federal Preemption can apply to conflicts that don't involve the Commerce Clause.

True Although in cases such as The T.J.Hooper, industry custom did not prevent liability, following an industry or cultural standard often constitutes following a reasonable person standard.

T/F Following the custom of an industry or culture may be evidence that the defendant met the "reasonable person" standard, even if people of a different industry or culture may find this action reckless.

True Criminal cases require that the case be proved "beyond a reasonable doubt." Civil cases vary, but generally require proof by a "preponderance of evidence."

T/F For a criminal trial, the government must prove their case "beyond a reasonable doubt" in order to secure a guilty verdict

True The discrimination can also be implied.

T/F For the doctrine of discrimination against interstate commerce to apply, the discrimination does not need to be explicit.

True If the defendant has a duty to disclose certain information, the elements of fraud may be met even if the defendant did not lie. Fraud can include false statements or failure to disclose where a duty to disclose exists.

T/F Fraud may be committed by a failure to disclose information.

False Under the doctrine of transferred intent, if A has intent to battery anybody (or assault anybody), he is liable for any battery he may complete.

T/F If A shoots at B, but accidentally hits C, A is not liable for a battery against C because he had no intent to injure C.

True This is called express preemption and is a power derived from the Supremacy Clause.

T/F If Congress exercises its authority expressly to preempt state regulation, no state can adopt a law that is essentially the same as the law provided by Congress.

True If the original court did not have jurisdiction over the original controversy, the courts of other states are not obligated to, and will not, recognize the judgment of the original court.

T/F If a court in Texas grants a judgment against a debtor, but a court in California finds that Texas did not originally have jurisdiction, California may disregard the Full Faith and Credit Clause.

False Losing a counterclaim does not necessarily bar a plaintiff from winning their original suit because it is possible for the counterclaim to be based on a separate cause of action. Because of this, a plaintiff may win their claim and a defendant may also win their counterclaim.

T/F If a defendant wins a counterclaim, the plaintiff cannot win their suit.

True Summary judgment can only be granted against a plaintiff when the defendant successfully shows that there is no genuine issue of material fact, that is, that there is no dispute regarding evidence that may allow for the possibility of the plaintiff to win the suit on that particular claim.

T/F If a plaintiff presents enough evidence to create a "genuine issue of material fact" following discovery, a judge should not grant summary judgment against that party.

False The principle of direct conflict does not void the law just because the state provision deals with the same type of activity. Moreover, the mere fact that a state law is more stringent than a similar federal law does not automatically make the state law void.

T/F If a state law is more stringent than a federal law concerning the same subject matter, it is invalidated due to the principle of direct conflict.

False The bailee only owes a reasonable level of care. This means that if something completely unexpected destroys the item, a bailee is not liable. A bailee is typically liable only if his negligence caused the loss.

T/F If objects in a bailee's care are destroyed, the bailee must replace the objects regardless of the reason for the destruction.

True Most states embrace a doctrine of tolling statute of limitations until the person becomes aware of their injury, within certain limitations.

T/F If someone does not become aware of an injury caused via the negligence of another for more than two years after the negligent act of another, their claim is not waived under the statute of limitations in most states.

False The seller must have proof that the consumer noticed the terms on the website and had the opportunity to read them. Requiring the potential buyer to click an "I accept" button is a common way for the seller to establish this fact.

T/F In "browse wrap" cases, as long as terms and conditions are somewhere on a website, they are enforceable

False If the seller's actions or other words that show the seller intended to make a warranty, this can constitute an express warranty. There are no magic words that must be used.

T/F In order for an express warranty to be formed, the seller must use the word "warranty" or "guarantee."

False A delegation of duties may be made without an assignment of the delegator's rights under his contract with the obligee. In such cases, the general rule is that the delegatee's only obligation is to the delegator.

T/F In order for duties of a contract to be delegated, the rights of the contract must be assigned as well.

False If there is a legally imposed duty, a failure to perform may constitute the actus reus of a criminal offense.

T/F In order to be convicted of a criminal offense, an act must be performed.

True Under the common law, in order to create an option contract, the offeree must give the offeror some form of consideration in order for the offeror's promise to keep the offer open.

T/F In order to create an option contract under the common law, the offeree must give the offeror some form of consideration in order for the offeror's promise to keep the offer open.

True This is because the lack of a basis for a genuine, good faith dispute about the amount of the debt means that there is also a lack of legal detriment on behalf of the debtor. If a promisee suffers no detriment, the promisor's promise is unsupported by consideration.

T/F In the instance of a liquidated debt, a debtor is not released from his debt in most jurisdictions even if the creditor agrees to a settlement.

True Although there are many exceptions, a third party generally has no legal obligation to assist a third party.

T/F Individuals are generally not required by law to help a third party when they request aid.

True Under the Anti-cybersquatting Consumer Protection Act, it is illegal to register an Internet domain name (1) that is the same as or confusingly similar to someone else's protected trademark, (2) where there is a bad faith intent to commercially exploit the trademark, and (3) the likely effect is to either cause confusions, or, if the mark is famous, to cause dilution.

T/F Internet domain name similar or that are the same as someone else's protected trademarks.

False A defendant moving for summary judgment only needs to prove that there is no genuine issue of material fact while a plaintiff must produce evidence strong enough to prove all elements of the claim, the defendant failed to present evidence that creates any doubt about any elements of the claim, and the defendant has failed to present evidence sufficient to create a genuine issue regarding an affirmative defense.

T/F It is generally easier for a plaintiff to win on summary judgment than a defendant.

True The concept of property is very broad under the Takings Clause. It includes any tangible property and intangible property rights such as those that exist in a company's trade secret information.

T/F The Takings Clause can be applied to allow for the government to take trade secret information from corporations.

False The UCC was made by a non-government entity offered in hopes that all states accept it, in order to increase uniformity for legal issues faced by multi-state corporations. Although most states have adopted it, many states still have variations of many pieces of it.

T/F The UCC is Federal law that applies to all states.

True Because the adversarial system requires that the lawyers do the majority of the investigation and research, it tends to cost more for the private sector. The inquisitorial system requires much more out of the judges and, therefore, costs more for the public sector.

T/F The adversarial judicial system tends to put more cost in the private sector while the inquisitorial system tends to put more cost in the public sector.

Substantive due process

The notion that the substance, or content, of laws must be at least minimally fair. Laws that courts view as arbitrary or irrational may be struck down. Over the years, the Supreme Court has used this doctrine to void laws that have capped the number of hours employees may work in a week, banned the sale of contraceptives, and done many other things.

A contractual right cannot be assigned if which of the following is (are) true?

The terms of the contract expressly prohibit assignment, the contract is "personal" in nature; the right in question involves a substantial personal relationship between the original parties, the assignment would materially alter the duties of the obligor.

Warranties of title

These warranties guarantee that items sold have not been stolen and are not encumbered by security interests.

Privileges and Immunities

This clause in Article IV of the Constitution is used to prevent states from discriminating against citizens who live out of state in various ways. Nonresidents must be allowed to travel freely and access the courts, for example.

Long arm statutes

This statue can establish personal jurisdiction if a defendant has had minimum contacts, or some reasonable degree of interaction, with a state

Trademark infringement lawsuits

To win in court, a plaintiff must usually demonstrate that consumers would tend to be confused about the origin of a product. OR with the dilution theory

A composition agreement

Involves two creditors accepting a portion of what they are owed from a single debtor. This is considered binding because, in order to receive any money from the debtor, both creditors accept only a portion of what they are owed.

Mirror image rule

Under the common law, this rule requires that acceptances be unconditional and that they do not add to or change the terms of an offer.

Writ of execution

When a plaintiff encounters a slow-to-pay defendant, this allows a sheriff to seize a defendant's property and sell it at auction to raise some or all of the money that the defendant owes.

Warranty of fitness

When a seller knows or has reason to know that a buyer needs a product for some specific use, and that the buyer will rely on the seller's recommendation or expertise, this type of warranty is created.

Disparate treatment

When an employer intentionally discriminates based on race or any other factor covered by the Civil Rights Act

Offer is revoked

When an offeror takes back their original offer. Normally, an offeror can revoke an offer up until the instant it is accepted. But if an offeree buys an option to keep offers open for a specific length of time, which is an option, an offer can be made temporarily irrevocable.

Mistakes

When both sides make an error about the "existence, character, or identity" of the contract's subject matter, a voidable contract may be formed.

Strict scrutiny

When laws make distinctions based on race, national origin, or fundamental rights, the courts apply this. It requires that the government show a compelling rationale to justify the law, and in the end, very few laws can pass the test.

Nuisance

When someone makes so much noise, odor, or pollution that he interferes with another's enjoyment of his real property

Statute

When the Congress or a state legislature creates a new law

When can a party appeal

When the judge makes a mistake such as: ruling on a motion, ruling on an objection, or jury directions

Error of law

When the judge makes an error as to the law applicable in the case; A mistake made by a judge in legal procedures or rulings during a trial that may allow the case to be appealed

Copyright Act directs courts to evaluate

Whether a use is commercial or educational, the nature of a copyrighted work, the portion of the work used relative to the whole, and the effects on potential markets for the work.

Under common law, a modification must be supported by consideration.

Which of the following are specifically required for a contract modification to be valid under the common law?

Res Ipsa Loquitur is a doctrine used to presume the negligence of a defendant from the fact that an accident occurred. The plaintiff must show that the defendant controlled the product and that the injury would not normally occur absent someone's negligence.

Which of the following is a doctrine used to presume negligence from the fact that an accident occurred?

The offer must be made by, not accepted by, a merchant. The offer must be to buy or sell goods, the offer must be written and signed by the offeror, the offer must give assurance that it will be held open.

Which of the following is necessary element to establish a firm offer?

The quantity must be determined, and cannot be inserted via gap-filler.

Which of the following is not a term that can be filled by a "gap-filler" provision under the UCC?

Unduly burdening interstate commerce focuses only on the impact of legislation while discrimination against interstate commerce involves a question of intent.

Which of the following is the largest difference between the doctrine of unduly burdening interstate commerce and the doctrine of discrimination against interstate commerce.

One which is impliedly authorized by the language of the offer, One customarily used in prior dealings between the parties, The same one used by the offeror in making the offer.

Which of the following is, in most states, an example of a reasonable medium under the reasonable medium rule?

Nothing/Default judgment

Defendants fail to make a timely response of any kind. This can result in a judge entering a ___________in favor of the plaintiff. The legal effect is that everything in the complaint is accepted by a court as established or proven, and a defendant loses without having a chance to make a defense in court.

Bona fide occupational qualification (BFOQ)

Defense, although quite difficult to meet, occasionally allows companies to legally justify intentional discrimination.

Generic words

Describe an entire class of goods. A company would probably be delighted to have the exclusive right to sell a product and call it Water, but water is a ________ and cannot be trademarked.

Which of the following classifications of trademarks require proof of a secondary meaning?

Descriptive Terms require proof of a secondary meaning because it merely identifies a characteristic or quality of a product or service.

Fanciful mark

Consists of a new word (neologism) that didn't exist before, such as Xerox or Kodak.

Summary Judgement

A trial judge deciding a case as a matter of law because there is "no genuine issue of material fact." A judge may decide the outcome of a case without allowing the case to go before a jury.

Friedman

Believes that managers should be allowed t devote their own time and money to whatever projects they deem fit., but that using corporate resources for such projects they are breaching their duty of loyalty to the shareholders.

Saldano v. O'Daniels

- Family of deceased sued bar for not allowing good samaritan to use phone. - Lower trial court dismissed the case - Went to California Court of Appeals - Ruled that bartender (O'Daniels) had a duty to allow Good Samaritan to use phone as it was of little burden and in a public space. - Based off of Supreme Court precedent that certain factors create a duty for a 3rd person

Knight vs Just Born Inc.

- Issue: Does "Consumer Contemplation Test" apply? - Knight's mouth and tongue were burned from eating Hot Tamales Candy. - Did "Hot Tamale" company perform as an ordinary consumer would expect them to? - Plaintiff must prove what an ordinary consumer would expect, and prove that the defendant failed to meet these expectations. - Rule product Liability Civil Action - was there a manufacturing defect or a design defect? - Analysis - plaintiff doesn't need to prove evidence of defect. By placing food in the marketplace, the seller represents to consumers that the product is safe for consumption. A jury could conclude that the candy did not meet the consumer's expectations. - Conclusion - plaintiff has enough evidence to go to a jury w/ this claim because of a manufacturing defect, defendant's candy did not meet the consumer expectation test.

Milliken v. Jacono

- man shot his wife and himself on his property, Jaconos purchased the property and then tried to flip it, informing their listing agent of the murder suicide. Question: does the occurrence of a murder suicide in a house constitute a material defect to the property? - Court concluded that murder/suicide does not amount to a material defect.

Odis Engineering vs Clark

-Drunk employee told to go home by employer. Killed 2 women on the way home. Husband sued corporation for wrongful death tort, claiming the supervisor was negligent. - While no one is legally required to aid another in distress, they are required to not worsen the situation. - Defendant (employer) argued that the employee was not working within the scope of his employment, so it was not their responsibility - Came down to a question of FORESEEABILITY - the employer has a duty to take prudent action to prevent unreasonable risk of harm to others (employer should have called a cab and not let employee drive)

To win a conviction in criminal cases, a prosecutor must generally demonstrate beyond a reasonable doubt the following:

1. A defendant's actions violated a criminal statute. 2. The defendant committed the illegal acts beyond a reasonable doubt. Merely thinking of committing a crime is generally insufficient to demonstrate a guilty act, but taking a step towards committing a crime usually counts. 3. The defendant intended to violate the law. To some degree, defendants must be shown to have a "guilty mind."

Which of the following is a reason a potential juror may be dismissed during voir dire?

A judge excuses a person by granting a challenge for cause made by one of the attorneys. And an attorney uses a peremptory challenge or a strike against the juror.

Compulsory counterclaim

A claim made by a defendant against a plaintiff that arises from the same transaction or occurrence as the plaintiff's claim

California If there is a provision that all litigation regarding the contract will be brought in a specific state, it should be brought in that state as long as there is a passing connection to the parties or to the transaction with the state.

A contract between a Texas corporation and a California corporation, signed in New York contains a provision that all litigation regarding the contract will be performed in California. What state's law should be applied to the litigation?

Under what circumstances does a court come to have authority over a defendant?

A court has personal jurisdiction over a defendant if he makes an appearance, or takes a formal step to defend a lawsuit. A defendant may also be served with a summons, or formal notice of a lawsuit.

File a motion to dismiss

A court will grant this motion if it agrees that even if everything in the complaint is proven, there will still be no legal basis for a recovery by the plaintiff (Ashcroft case)

Jurisdiction

A court's power or authority over a case

Personal jurisdiction

A court's power or authority over the parties involved in a lawsuit. Plaintiffs voluntarily submit themselves to a court's jurisdiction upon filing a lawsuit, so the focus here is always on defendants.

Subject matter jurisdiction

A court's power to hear a particular type or category of case. Some courts have been created to decide only one particular kind of case.

File an answer

A defendant admits or denies each item in the plaintiff's complaint, and also sometimes raises defenses that may be asserted at trial.

Battery

A harmful (for example, a punch in the face) or offensive (for example, an unwelcome sexual contact) bodily contact.

Voidable contracts

A person in a legally recognized weakened position is given an option to enforce or cancel obligations.

Whom among of the following would be protected under the ADA?

A person with HIV. An HIV infection is a disability under the definition of the ADA.

Disparate impact

A plaintiff begins by arguing that a company policy impacts groups differently

Considered by courts when determining if the defendant owed the plaintiff a duty of care in a negligence claim

A policy of preventing future harm, the availability, cost, and prevalence of insurance for the risk involved, the moral blame attached to the defendant's conduct, the foreseeability of the harm to the plaintiff, the degree of certainty the plaintiff suffered an injury, the closeness of the connection between the defendant's conduct and the injury suffered, and the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with the resulting liability

Labels used to identify the different level of duty a landowner owes to a person on his property

A trespasser, A licensee, An invitee.

Not objected to, do not materially alter the deal, and are not specifically prohibited by an offer

Additional terms can become part of a UCC contract if they are:

Creditor beneficiaries

Al owes Betty $100. Al makes this agreement with Carl: "I'll mow your lawn while you are on vacation, if you'll pay Betty $100." Betty, as someone outside Al and Carl's contract, is a third party. But because Al owed her a debt, and Al and Carl intended that she benefit from their agreement, Betty is a creditor beneficiary of Al and Carl's deal and she can sue to enforce it.

Which of the following should an answer always contain?

All answers should contain a denial. If an answer does not contain a denial, the defense is essentially forfeiting the case. Although an answer may contain an affirmative defense or a counterclaim, neither is necessary.

Cybersquatting

An issue that arises when someone registers a domain name in bad faith with a desire to exploit a trademark for profit.

Trade secret

Any information a company possesses that is not generally available through legal means and gives a company a competitive advantage. To qualify, a company must keep the information relatively secret by taking reasonable security measures to protect it.

The mailbox rule

Applies to delayed, non-real-time communications about offers. It creates two key standards. First, acceptances count as soon as they are sent. Second, rejections and revocations are not effective until received by the other side.

Ladd's theory

Based on the idea that an organization is nothing more than an inorganic group of papers, laws, etc. Group dynamics is organization theory's concept that groups of employees often behave very differently than any single employee would have behaved in isolation, causing an organization to have a moral will of its own.

Beachcomber coins v. Boskett

Beachcomber bought a counterfeit coin and demanded a refund. When Boskett, the seller, refused, plaintiff brought this action asking rescission of the contract The trial judge found that there was a mutual mistake of fact (a mistake as to the coin's genuineness) that would ordinarily justify rescission of the contract. However, a buyer of a coin who was permitted to examine it before purchase "assumed the risk" that it might be counterfeit. He therefore dismissed the action and plaintiff appealed. Since both parties were certain that the coin was genuine the court thus reversed the judgment, and ordered rescission of the contract.

Convention on Contracts for the International Sale of Goods (CISG)

Body of contract law that has been adopted by most nations including the United States. These rules automatically apply to contracts for a sale of goods between buyers and sellers from different nations, unless the parties specifically opt for some other body of contract law.

Uniform Commercial Code (UCC)

Body of law with the goal of harmonizing the law of sales and other commercial transactions across the United States. Article 2 governs contracts that involve a sale of goods.

Burden of Proof

Civil Lawsuits: Must prove a case more likely than not 51% more convincing than defendant Evidence has to be just good enough Criminal lawsuits: Government's has to prove it is beyond reasonable doubt

Arbitrary terms

Common words used in a meaningless context. If your company sells apples, you have no chance to gain the exclusive right to call your product Apples. But Apple has no problem enjoying trademark protection because computers, iPods, and the like have nothing to do with actual apples.

Cases of express preemption

Congress creates a statute and specifically bans states from creating similar laws.

What is required to establish an agency relationship?

Consent and capacity. Although obedience is owed by the agent to the principal, it is not a necessary element to establish agency

Executed contract

Contract has been fully performed by both sides

Executory contract

Contract has been made, but one or both sides have not yet fulfilled all of their obligations

Contract of adhesion

Contract presented on a take-it-or-leave it basis.

Implied contracts

Contracts that are sometimes inferred by courts after examining the conduct of the parties

Hostile work environmen

Conversations about sex, jokes with a sexual theme, and pornographic images are among the things that can lead to such a claim, though they are actionable only if "severe or pervasive."

Statutory interpretation

Court objective is not to interpret a statute in the way the judges think it should have been written but, instead, in the way the judges think that the legislature would have wanted it applied.

Injunctions

Court orders to stop doing something

State courts

Courts of general jurisdiction that have much broader subject matter jurisdiction and can even entertain federal question and diversity cases, with some major exceptions.

Federal courts

Courts of limited jurisdiction (limited to the types of cases the Constitution says they can hear)

Express warranties

Created by a seller's words or actions. When sellers make a factual statement about a product, describe it, or provide a buyer with a sample, they generally create this

Under the UCC, which of the following is not a path a court may take after finding a contract unconscionable?

Enforce punitive damages against the offending party.

Discrimination against interstate commerce

Ex: If Texas tried to pass a law that made it illegal to sell oil from Texas to buyers in other states

Patent

Exclusive rights to sell product for 20 years. It must be the right kind of subject matter, must have utility or accomplish something useful, cannot be obvious or more than a trivial change to an existing invention, must be novel.

Unilateral contracts

Exist when an offer can only be accepted by actually doing something and not by merely promising to do something.

When defendants receive a complaint they can

File a motion to dismiss, File an answer or Nothing/Default judgment

A complaint

Filed by a plaintiff and amounts to a list of allegations. Plaintiffs submit a list of factual statements that, if proven with evidence, might show a defendant guilty. Also tends to make a request for damages or some other remedy.

Leonard v Pepsico

Fact: Pepsi had an add that claims if you get XX points you can even win a jet. Leonard manages to get that many points but Pepsi said the jet wasn't really an offer but just an add boast. Issue: was the ad an offer Result: No it wasn't Reason: objective reasonable person would not conclude that Pepsi would give them a Jet for that claim. Intent of the offer wasn't there

Federal courts only have subject matter jurisdiction over 2 major types of lawsuits

Federal Question Cases and Diversity of Citizenship Cases

District Courts

First stop of every lawsuit, where lawyers file pleadings, select juries, place witnesses on the stand for examination. Judges rule on motions and objections, give juries instructions, and enter judgments. Juries listen to evidence, deliberate, and return verdicts.

Deontology

Focuses on the act itself, rather than the consequences.

Which of the following are factors in determining if a duty is owed to assist a third party?

Foreseeability of harm to the plaintiff, extent of burden to the defendant, consequences to the community of imposing a duty to exercise care with resulting liability for breach, the degree of certainty that the plaintiff suffered injury, the closeness of connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the availability, cost, and prevalence of insurance for the risk involved.

A void agreement

Has a major flaw in one or more of the key areas and is completely unenforceable

Mediation

Have no power to decide cases. They can act as a neutral person in a dispute and help the two sides have a civil discussion about how to settle a case.

Donee beneficiaries

Have rights to enforce contracts. This person is intended to benefit from other people's contracts

Descriptive terms

Identify a characteristic of a product. True descriptive terms (like Vision Center) and company names that use a geographic designation (East Coast Comics) or a person's name (J.C. Penny) can be trademarked only if they acquire a secondary meaning, which means that a substantial percentage of a population associates the term with a particular company.

Negotiated settlement

In many cases, a dispute ends without a trial because the parties communicate and agree to a ___________.

Supremacy Clause

In the Constitution makes federal law the supreme law of the land

Minitrial

In this type of ADR, corporate executives view an abbreviated presentation of evidence, and then directly begin settlement negotiations. Sometimes, executives who get a look at what a jury would see in a future trial become more likely to want to settle a case

Covenants not to compete (or non competes)

In this type of agreement, one party agrees not to compete with the other. A news anchor in Los Angeles might have a clause in a contract with a local news station that says, "In the event that I leave News 5, I agree not to work as an on-air presenter for any other station within 100 miles of Los Angeles for a period of six months."

Courts of limited jurisdiction

Includes justice of the peace courts, municipal courts, traffic courts, probate courts, and domestic relations courts.

State Laws

Laws created by individual states

Federal Laws

Laws that come from the government of the United States

Peremptory challenges

Lawyers can send a limited number of prospective jurors home without stating any reason in particular

Voir dire

Lawyers on both sides of a case have a chance to ask questions of prospective jurors

Common Law

Legal ideas that originate in court opinions

Statutory Law

Legal rules created by bodies of elected representatives

Trespass

Make unauthorized use of real property, which consists mainly of land and permanent structures like homes and stores.

Tort Law

Many different kinds of civil lawsuits that are not related to broken agreements. Two types: Negligence and Intentional

The doctrine of implied preemption

May also block states from creating valid laws even when Congress does not specifically prohibit such actions.

Alternative dispute resolution (ADR)

Methods of settling disputes outside of a courtroom. Negotiated settlement, Arbitration, Mediation, Summary Jury Trial, Minitrial

Breach of contract

Not a tort, but an independent claim that arises out of contract law.

Undue Influence

Occasionally, one person is found to dominate the will of another. Especially when a young nurse or relative induces a very old (and wealthy) individual to sign over assets in a way that seems to take extreme advantage of the relationship, courts will sometimes allow parties to escape liability for agreements

Duress

Occurs when a party to a contract compels the other to accept an offer by committing a wrongful act or making a wrongful threat.

False imprisonment

Occurs when a person is held against her will by a person with no legal authority to confine her. Retailers in particular must be familiar with this tort.(Wal-Mart v. Cockrell)

When is a trade secret misappropriated?

Occurs when a trade secret is wrongfully taken. If a hacker invades a computer network and accesses trade secrets, or if a company sends James Bond into a competitor's research lab to steal the blueprints for a new weapon, then a trade secret lawsuit would be successful. (If two companies create the same product or reverse engineering then both companies have the right to sell)

Assault

Occurs when a victim is made reasonably afraid that he is about to be battered. And so, an attacker that pulls back his fist as if to swing it commits an assault.

The implied warranty of merchantability

Part of the UCC that applies only to merchants. It creates a promise that when a merchant sells goods, they are fit for their ordinary purpose. The wheels should not fall off a new bicycle during a ride around the neighborhood, even if the seller has not said anything in particular about the bicycle.

Bilateral contract

Parties exchange promises. You might promise to move a neighbor's furniture to his new apartment next Saturday and he might promise to pay you $150 when you do.

Civil lawsuit

People seeking compensation from others for wrongdoing against them

Which of the following is, according to Benjamin Cardozo, a "directive force" which shapes the law?

Philosophy, History, Custom and Social Welfare

Diversity of Citizenship Cases

Plaintiff & defendants live in different states and plaintiffs seeks at least $75,000

Burden of proof

Plaintiff must demonstrate that their claims are true by presenting evidence. A plaintiff might back up claims by having eyewitnesses to an accident testify in court by introducing documents like contracts, wills, or medical records or by any number of methods

Federal Question Cases

Plaintiffs base their claims on federal laws or statutes. (Ex: Plaintiffs believe they should win their case because of Civil Rights of 1964 or provision to the U.S Constitution)

Civil Lawsuit Burden of proof

Plaintiffs is to prove their case by a preponderance of the evidence, or to a "more likely than not" standard. A plaintiff can win without having an overwhelmingly convincing case. Great evidence is better, but merely good evidence is often sufficient. So long as a jury is 51% convinced that a plaintiff's allegations are true, a plaintiff has met this

Trademark Dilution Revision Act (TRDA)

Provides federal anti-dilution protection for famous trademarks

The parol evidence rule

Prohibits a party to a written contract from unilaterally introducing either oral or written statements or agreements made at or prior to the time the written contract was made which either conflict with, or add to, the clear, unambiguous terms of the written contract.

Warranties

Promises that goods will meet various standards. Damages rewarded are compensatory not punitive

Copyrights

Protect creative works or the expression of ideas. If you write a novel, record a song, draft a blueprint for a new building, take a photograph, or paint a painting, your creation is covered. Work must be stored in a tangible medium. Last for the life of the author plus another 70 years after his or her death

Copyrights on works for hire

Protect for 120 years from the date of creation or 95 years from first publication.

Trademarks

Protect four things: distinctive words, phrases, symbols, and designs. (Ex: Microsoft, ad slogans or McDonald's golden arc) short and simple. Good for 10 years, can renew unlimited number of times

Slander

Refers to spoken defamation. Plaintiff must show a specific economic loss stemming from the slander to be able to recover damages. To win a slander case, a plaintiff must be able to show something beyond mere embarrassment.

Procedural due process

Requires that the government follow certain steps, or procedures, before it takes life, liberty, or property. If the government seeks to terminate a government worker's job, suspend a student from a public high school, or sentence a criminal to 10 years in prison, it must follow procedural requirements. Broadly speaking, notice and a chance to present a case to a neutral decision maker are the key procedures.

Quid pro quo ("this for that")

Sexual harassment, unwelcome sexual advances and says or implies that a tangible job benefit is on the line.

Contributory negligence

Shared fault cases; both sides get zero out of the lawsuit

Affirmative defenses to a claim of assault and battery

Statute of Limitations, Self-defense and Consent

Merchants

Someone who makes their living buying and selling goods. Wholesalers, manufactures and retailers

Magnuson-Moss Warranty Act

Special warranty obligations that apply to consumer transactions. When companies choose to create express warranties on any but the least expensive consumer goods, they must describe their warranty as full or limited, express the warranty in clear language and in a single document, and cannot disclaim implied warranties.

Compensatory damages

Standard awards. In most types of lawsuits, a plaintiff can seek to recover actual losses. Such as: cover a car's repair bill, medical care she had to seek, lost wages, and perhaps pain and suffering.

Unduly burdening interstate commerce

States also cannot pass laws that create significant roadblocks to interstate commerce. (Granholm v. Heald case)

True Because Aaron's claim against AJ arises out of the same set of circumstances, it is a compulsory counterclaim. Compulsory counterclaims which are not brought in an answer are generally waived.

T/F AJ buys a car from Aaron. The car AJ buys breaks down the first day, so AJ sues Aaron. Because of the car breaking down, AJ has failed to make payments on the car. In most states, Aaron's suit against AJ must be brought as a compulsory counterclaim, or else it he will lose the ability to pursue the claim.

False Under the rule of interpretation known as expressio unius est exclusio alterius, it is assumed that when there is a list of certain items, the exclusion of others is presumed to be intentional. Therefore, because the FLSA allows for a suit arising from violation of minimum wage laws, overtime regulations, or child labor regulations, it is implied that other issues, such as uncomfortable working conditions, are excluded from being enforced under the act.

T/F John was dissatisfied with the work environment he had to endure while working at B12. John had to work in a building where the A/C was never put below 75 degrees. Under the Fair Labor Standards Act (FLSA), a piece of federal legislation outlining certain practices which employers engaged in interstate commerce can and cannot do, an employee has the ability to bring a lawsuit against a company if the company fails to meet certain standards. These standards include a mandatory minimum wage, overtime regulations, and child labor regulations. John would be able to sue under the FLSA.

False Under §§ 2-204, 2-305, 2-309, and 2-310 of the UCC, certain details can be taken care of by gap-fillers. This includes delivery date and exact pricing.

T/F A UCC contract must have all details, such as delivery date and the exact price, included in order to be considered complete.

True Any case that arises out of a federal statute, such as the Americans with disabilities act, can be brought in a Federal District court.

T/F A claim arising out of the Americans with disabilities act, which is a Federal statute, would be a Federal Question case and, therefore, be within a federal district court's jurisdiction.

True This is called secondary infringemen

T/F A company can be charged with copyright infringement for simply providing the means to the actual infringer to commit the infringement.

True A contract may be rescinded due to a unilateral mistake if the mistake was apparent, or should have been, to the other party.

T/F A contract may sometimes be rescinded if only one party is mistaken as to a portion of the contract.

False A corporation can only be held criminally liable for acts performed by an employee if that employee is acting within the scope of his or her authority for the purpose of benefiting the corporation.

T/F A corporation can be held criminally liable for any act of its employees.

True A quasi-contract, also known as a contract implied-in-law, is a contract implied regardless of whether the promisee had any intention of making a contract. The promise is enforce as a matter of equity to ensure that one party is not unjustly enriched, even though there is no @ *A. True B. False agreement between the parties.

T/F A court can enforce a promise even though there was no express or implied acceptance of the contract.

Intentional Interference with a Business Relationship

When a firm intentionally attempts to entice a customer to break an existing contract with another firm (Texaco v. Pennzoil case)

True If a defendant has continuous and systematic contacts with a jurisdiction, it has general jurisdiction over the defendant. When a state has general jurisdiction over a party, it has personal jurisdiction over the party.

T/F ACC, a Florida company, sells Zach, a Louisiana citizen, a car in Minnesota. The car breaks down while Zach is driving in Oklahoma. Florida has continuous and systematic contacts with Oklahoma because it manufactures products in Oklahoma. Oklahoma has general jurisdiction over ACC and, therefore, has personal jurisdiction over ACC.

False The ADA expressly provides that a current user of alcohol or illegal drugs is not protected by law. Having the mere status of an alcoholic or drug addict is protected, however.

T/F Addiction is a protected disability under the ADA for current users of drugs.

False Generally, any words or conduct indicating an intention on the part of the assignor to transfer his rights is sufficient. Some types of assignments, however, are required by statute to be written.

T/F All assignments of contractual rights must be in writing

False The Supreme Court gets to choose which cases it hears. Generally, only cases granted writ of certiorari are heard by the Supreme Court

T/F All cases before a federal Circuit court have the right to be heard on appeal.

False This is the general rule, but there are numerous exceptions. Under § 2-201, a verbal contract exceeding $500 can be binding if (1) the seller has already substantially begun producing specially made goods; (2) payment has been made and accepted or goods have been received and accepted; (3) between merchants there has been a confirmatory memorandum sent and the receiving party did not object in writing within 10 days; or (4) the party against whom the contract is to be enforced admitted in court proceedings that an oral agreement existed.

T/F All contracts for a sale of goods exceeding $500 must be in writing in order to be enforceable.

False If a judge does not agree with the majority of the case, he can write a concurrence if he disagrees with the reasoning and agrees with the outcome, or a dissent if he disagrees with the outcome.

T/F All judges in a panel for a circuit court must agree on the outcome of the case and the reasoning used to justify the outcome.

False An effective manager will attempt to alter political situations and regulations to aid their company.

T/F An effective manager of a corporation should not attempt to alter political situations.

True Even if a state law does have an effect on preexisting contracts, the legislation does not violate the contract clause if the law promotes an important state interest and interferes with contracts only to an extent that is reasonably necessary to further that state interests.

T/F An exception to the Contract Clause may exist if the legislation is reasonably necessary to further a substantial state interest.

True An incidental beneficiary is a person whom the contracting parties did not intent to benefit by making the contract. Because of this, an incidental beneficiary has no rights under a contract and cannot enforce it.

T/F An incidental beneficiary has no rights under a contract and cannot enforce it.

False In some circumstances, a court has found a motel negligent for the criminal acts of a third party if the motel had reason to anticipate the possibility of the third party's act, such as knowledge of a history of criminal activity in the area. Other similar instances have caused courts to find individuals liable in many other settings. However, some courts refuse to find individuals liable for criminal third party actions.

T/F An individual cannot be held liable on a negligence theory for the criminal acts of a third party.

False Unlike most other intentional torts, the intent element of a trespass cause of action requires the plaintiff to demonstrate only that the defendant intended to enter the place and that the place belonged to the plaintiff. The defendant need not intend to do any harm or to do anything wrong at all

T/F An intent to harm is necessary to establish a case for trespass.

False The applicant is not required to have actually made the invention physically in order to file a patent.

T/F An invention must be manufactured in order for the inventor to file a patent application on the item.

False Some appeals from specialized federal courts go to federal district courts for their appeals, while others go to Circuit Courts.

T/F Appeals from specialized federal courts, such as bankruptcy courts always go to the Federal Court of Appeals.

True Article 2 governs the sale of goods. In order for something to be considered a good, it must be movable and tangible.

T/F Article 2 of the UCC applies to the sale of goods.

False Criminal law requires that the defendant's guilt be proven "beyond a reasonable doubt" while civil actions must only be proved by "a preponderance of the evidence."

T/F Civil law and criminal law require the same burden of proof to be established in order to prove a case.

True In Wickard v. Filburn, the Supreme Court held that Congress can regulate the growth of wheat, even if it is used for entirely personal purposes, as long as, when taken in aggregate, the effect of the activity would alter interstate commerce.

T/F Congress can regulate activity as long as, when the aggregate effect of breaking the law is considered, it would have an effect on interstate commerce.

False In Nat'l Federation of Indep. Business v. Sebelius, also known as Obamacare or the Affordable Care Act Case, the Supreme Court ruled in a 5-4 decision that Congress cannot force individuals into economic activity so that that activity can be regulated.

T/F Congress is allowed to force individuals into commerce and regulate that interstate activity.

True Unless otherwise stated, the sale of land consists of the earth's surface, vegetation, buildings, and other structure permanently attached to the soil. This included growing crops.

T/F Crops currently growing on property are presumed to be part of a contract for the sale of land.

True Disclosure of true facts would not be defamation, but could constitute the tort of disclosure of embarrassing or offensive private facts in some jurisdictions.

T/F Disclosing true facts may create a valid tort claim.

False Corporations are considered to be citizens of both the state in which they are incorporated in and where their principle place of business is. Because USC's principle place of business is in Texas and Johnny is a citizen of Texas, diversity jurisdiction cannot be established.

T/F Johnny, a citizen of Texas, sues USC, a corporation incorporated in California with a principle place of business in Texas, for $2.5 million on a claim arising from state law. This suit can be brought in Federal Court.

False Joint and several liability means that the plaintiff can get up to 100% of the damages awarded from either defendant, but not more than 100% total. The defendant who had to pay more than his or her share can then seek the difference in what they were supposed to pay from the other defendant.

T/F Joint and several liability means that each defendant can be forced to pay up to 100% of the damages and that the plaintiff can get several times the damages awarded to him.

False Under Rules of Civil Procedure 4(k)(2), if a foreign defendant has a significant amount of contact with the United states, but personal jurisdiction cannot be established with any individual state, the foreign defendant can still be found to have personal jurisdiction.

T/F Magnus, a citizen of Sweden, has a significant number of contacts with the United States as a whole to establish personal jurisdiction, but not enough contacts with an individual state to establish jurisdiction. An American court cannot establish personal jurisdiction over Magnus.

False While making a promise to pay a debt after the statute of limitations has expired typically revives the debt and resets the statute of limitations, this exception does not apply to debts that have been discharged in bankruptcy.

T/F Making a payment or acknowledging a debt revives the debt and resets the statute of limitations, even if the debt has been discharged by bankruptcy.

True The most notable of these exceptions can be grouped together under the heading of "public policy." Most commonly, courts provide remedies to individuals who are terminated because they refuse to follow instructions to violate the law

T/F Many states have created common law exceptions to the common law doctrine of employment at will.

False Rare coins and all money treated like a commodity are considered goods, although money used as a medium of exchange is not.

T/F Money is never treated as a good for the purposes of the UCC.

False Such a statement would almost always be inconsistent with the words or conduct that created the express warranty. Because of this, it is extremely difficult for a seller to disclaim an express warranty which has become part of a contract

T/F Most express warranties can easily be disclaimed via the text of a contract.

True Trademark law also protects "trade dress"- very distinctive packaging or nonfunctional product design if it serves the same purpose as a trademark. Trade names and service marks are also protected in similar fashion.

T/F Packaging and nonfunctional product design can be protected under the same principle as trademarks

True They often buy up other patent rights, choose not to use them, and then demand fees when other patents may infringe them.

T/F Patent "trolls" often do not actually use or commercialize their invention beyond actually filing the patent.

False State law determines what is necessary to sell or otherwise transfer patent ownership. Patents are often bought, sold, and licensed.

T/F Patent rights are non-transferable

True In Rem jurisdiction, which can be established by having property within the jurisdiction of the court, can satisfy jurisdictional requirements for a case.

T/F Personal jurisdiction over certain cases, such as bankruptcy cases, can be established simply by having property relevant to the suit within the jurisdiction of the court.

False Because no contract is formed until the hammer falls or "sold" is announced, the seller is free to withdraw the item from sale if no bids are as high as the seller desires. BUT a seller who advertises an item as being up for auction "without reserve," is essentially promising to sell it to the highest bidder.

T/F Placing an item up for sale in a typical "with reserve" auction constitutes a binding offer by the seller.

A court does not have to follow the precedent from a higher court if the higher court is not directly above it. This means that Texas courts do not have to follow Oklahoma precedent, even if it is the Supreme Court of Oklahoma.

T/F Precedent set by other states (such as Oklahoma) is mandatory authority which a Texas state court must follow.

True Malice is not found if the defendant's actions are legally justifiable, such as when a third party's legitimate interests are being protected by the action.

T/F Protecting a third party's legitimate interests can be a defense to a claim of intentional interference with business relationships.

True Under the DMCA, this constitutes copyright infringement

T/F Simply removing the encryption of a DVD can constitute copyright infringement.

True An example of this spawns from the Racketeer Influence and Corrupt Organizations Act, which provides both civil and criminal penalties for committing acts of "racketeering" such as mail fraud, wire fraud, and bankruptcy fraud as part of a "pattern" of criminal activity.

T/F Some acts carry both civil and criminal penalties.

True If the buyer deliberately refuses to examine the goods at all, no implied warranty exists for reasonably apparent defects.

T/F Some warranties can be waived simply because the buyer expressly refused to examine the goods.

False The age of the plaintiff must be 40 or older.

T/F The ADEA can support a cause of action by plaintiffs only if they are over 50 years old.

The Magnuson-Moss Act applies only to purchases by ultimate consumers for personal, family, or household purposes and not to transactions in commercial or industrial settings.

T/F The Magnuson-Moss Warranty Act applies to all purchases and sales.

True The P&I Clause is one of the few constitutional protections that applies only to individuals and not to corporations.

T/F The Privileges and Immunities Clause applies only to individuals and not to corporations.

True As long as, at the time of the contracting, the seller had reason to know of the particular purpose for which the goods were bought, had reason to know the buyer was relying on the seller's skill or judgment to furnish the goods, an implied warranty of fitness for a particular purpose can be applied.

T/F The implied warranty of fitness for a particular purpose can be applied even when the item was used for something other than its usual use.

True Under the implied warranty of merchantability, there is no guarantee that goods will be of the highest quality available; they are required to be only of average or medium grade, in addition to being adequately packaged and labeled.

T/F The implied warranty of merchantability requires only that the goods are of average or medium grade.

True If the defendant knows that the plaintiff is an unusually sensitive person and threatens contact that the plaintiff finds offensive although most persons would not, an assault occurs.

T/F The reasonable person standard is not always applied to cases of assault.

True Genericide, or allowing a trademarked term to become generic, can cause a trademarked term to lose its legal protection

T/F The rights of a trademark can be lost if a trademark term becomes generic.

True The rules of evidence apply whether the judge or the jury is the fact finder in a given case.

T/F The rules of evidence apply even if there is no jury.

True A general charge asks only for a general verdict; that is, it only asks for a guilty or innocent finding and the damages, if relevant. A special charge includes several different questions, such as the percent liability each side may have, if, in cases where the defendant can win by disproving just one of several elements of a cause of action, the jury found a specific element of a cause of action lacking, or other relevant questions.

T/F There are three types of charges to the jury: general, special, or a combination.

False Trademark infringement can occur even if the defendant did not intend it, or even if the defendant didn't know about the plaintiff's mark.

T/F Trademark infringement can happen only if a defendant intentionally copies another's trademark.

True Strict liability claims under § 402A of the UCC only covers a defective product if it is "unreasonably dangerous."

T/F Under § 402A of the UCC, a strict liability claim will not be supported if the suit arises simply because the product fails to perform its ordinary purpose.

False If an injury occurred due to an action outside the rules of the game, it occurs outside of the consent given by the plaintiff. Due to this, an injury caused by an action outside of the rules of a game may be enough to state a claim for battery.

T/F When engaged in contact sports, all possible injuries are considered to be barred by the defense of consent.

Quasi-contracts.

The concept of unjust enrichment. Ben did not truly agree to pay the bill, but he would be unjustly enriched if the law did not make him do so.

Filing of the pleadings

The first significant pre-trial event

Takings Clause

The government can take your land for a public purpose, even if you don't want to relinquish it. If the government decides that it needs your property for a road extension, then it can take the land with the power of eminent domain. The 5th Amendment's___________ will not allow you to block the seizure, but it will entitle you to just compensation.

Criminal Lawsuit

The government prosecuting someone for breaking the law

Consideration

The idea that a contract must be a bargained for-exchange. Both parties receive something of measurable value. Something-for-nothing agreements are not typically contracts.

Which of the following is a reason for the increasing popularity of arbitration?

The parties have more control over the process, the proceeding can be kept private, no expensive pretrial discovery.

Express contract

The parties involved have fully and specifically stated the terms of the deal

Which of the following is a necessary element in establishing a claim for retaliation?

The plaintiff suffered an adverse employment action, the plaintiff engaged in a protected activity, there is a connection between the protected activity and the adverse employment action.

The UCC specifically allows for some terms in an offer to be left open

The price to be paid by the buyer, the time of performance, the method of delivery, and the method of payment.

2 conditions for implied preemption to be found in most circumstances:

The regulation is relatively comprehensive and there is a need for uniform national regulatory policy in the area of the regulation.

An element required for a cause of action under defamation

The statement was made as though it were a fact. The statement was defamatory. The statement was false The plaintiff's reputation was harmed.

Ejusdem generis and expression uniusest exclusion alterius

Two common rules of grammar often used by the courts to interpret legislative intent from the words of the statute and they are explained in the text.

Arbitration

Two parties sign a contract that gives one or more arbitrator the power to resolve a dispute. They then present evidence to the arbitrator, who makes a decision. Agreement can be signed after a dispute arises or before there is any problem to begin with. Much faster and significantly less expensive than a trial. On the negative side, there are no appellate arbitrators. These decisions tend to be final.

When can a lawsuit proceed without a court having personal jurisdiction over a defendant?

When a court has in rem jurisdiction over property located in the same state that a court sits, it can act as a substitute for personal jurisdiction if the property is the focus of the claim

The case is remanded to the lower court with instructions on what the lower court erred on and how to properly try the case.

What happens when an appellate court finds that a lower court judge erred in granting summary judgment?

Central Hudson Gas held that these 3 requirements be met: The regulation directly advances the governmental interest and is not more extensive than is necessary to serve that interest., the speech in question must concern lawful activity and not be misleading, the asserted governmental interest to be served by the regulation must be substantial

Which of the following requirements has to be met in order for a commercial speech regulation to be constitutionally permissible?

The right to an attorney has been incorporated and must be followed by individual states. None of the other rights has been incorporated into the U.S. Constitution, although they may be necessary under individual state constitutions

Which of the following rights granted by the Bill of Rights has been incorporated under the doctrine of incorporation?

A requirement that a landowner must grant public access on beachfront property in order to get a building permit, building a highway through the property, creating an area where air traffic must fly low above property. (Not zoning laws)

Which of the following would generally be considered a taking?

Exculpatory clauses

With these clauses, people and businesses seek to avoid liability for negligence or other acts by claiming, "We are not responsible for X," in a contract, on a sign, or sometimes on the back of a ticket stub. Effective when associated with purely recreational activities

Intermediate scrutiny

With this level of scrutiny, governments must successfully argue that their law substantially advances an important government interest. Especially in claims of laws that discriminate based on gender

Libel

Written defamation and does not require a showing of special damages.

A warranty of title is implied for every sale. There is an implied warranty of fitness for a particular purpose stemming from John's knowledge that the product will actually be used to grow hair on his hand. There is always an implied warranty of merchantability if the seller is a merchant with respect to the type of goods being sold, which John is. This warranty assures that the product will actually be able to cure baldness. And there is also an express warranty guaranteeing that the product can cause hair to grow on a hand.

Xeon, a manufacturing company, sells product X to John's store, which in turn sells it to Paul. X is a product designed to cure baldness of the head, but Paul attempted to use it to increase body hair on his right hand. Prior to selling the product to Paul, John, the owner of John's store, contacted Xeon to ensure that the product was safe for those uses. After Xeon confirmed this, John told Paul that his hand would have hair if he used the product and that he will be happy with his new hairy hand. Following this, Paul uses the product on his hand. To his dismay, not only does hair not grow on his hand, but the product causes severe scarring. Which of the following types of warranties were made?

Sorrell vs INS Health

he Supreme Court held that a Vermont statute that restricted the sale, disclosure, and use of records that revealed the prescribing practices of individual doctors violated the 1st Amendment. - in 2007, Vermont passed the Prescription Confidentiality Law which required that records containing a doctor's prescribing practices not be sold or used for marketing purposes unless the doctor consented - data mining companies and pharmaceutical manufacturers contended that the law violated their 1st Amendment rights. - Trial court upheld Vermont statute, appellate court said the statute was in violation of the 1st Amendment, and the Supreme Court upheld the decision that the statute violated the 1st Amendment and the statute was struck down.