ACC 205 Business Law NAU Final Exam Review

course and scope of employment

A principal is liable for the authorized conduct of an agent only so long as the agent is acting within the course and scope of his employment an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.

affirmative action

A program that uses past discrimination to justify giving members of protected classes preferential treatment in hiring and promotion. Affirmative action programs go further than Title VII by attempting to make up for past discrimination. Affirmative action programs: are controversial because they are seen as reverse discrimination. One of the possible legal challenges to affirmative action programs is that they violate the equal protection clause of the Fourteenth Amendment. Because this amendment is at play, any affirmative action program that uses race or ethnicity as a basis for decision making is reviewed by the courts using strict scrutiny.

age discrimination

- 40+ to claim age discrimination - Qualified for job and replaced by someone younger than you The most widespread form of discrimination may be age discrimination. In an age discrimination lawsuit, the employee does NOT have the burden of establishing that age was the actual reason for the discrimination. To establish a prima facie case of age discrimination, the plaintiff must show membership in a protected class, meaning the plaintiff is at least 40 years old. In addition, the plaintiff must show qualification for the position and that age was the"but for" cause of the adverse employment action. ex: Tammy, age sixty-three, works for Westcon, Inc. Tammy has been showing up for work late, and has a habit of placing confidential work files on her personal computer in violation of company policy. Jack, Tammy's manager, fires Tammy for these reasons. Jack also considers an incidental benefit of Tammy's discharge the fact that they can get someone younger in Tammy's position. If Tammy files an Age Discrimination in Employment Act (ADEA), she will: be unsuccessful in court because Tammy's age was not the "but for" reason for her discharge.

condemnation

(expropriation) gov acquires ownership of private property for "public use" for "just compensation" over the protest of the property owner the process of taking private property for public use through the gov's power of eminent domain ex: The city of Orlando has offered to purchase Neil's land to be used for the expansion of a thoroughfare through the city. Neil has rejected the city's offer so the city will now proceed with a judicial action to take Neil's land, known as: condemnation

nominal damages

(minimal, 1$) used to show wrongdoing when no monetary loss is shown small award intended to signify plaintiff wronged by defendant you won the case but didn't prove damages A small monetary award granted when no actual damage or financial loss results from a breach of contract and only a technical injury is involved.

agent

- one authorized to act for/on behalf of principal (employee) - a fiduciary relationship in which agent acts on behalf of principal - one who hires agent to represent him/her (employer) - This is the person who accepts service of lawsuits, when you sue a company, you sue the registered agent - All employees are agents BUT not all agents are employees Principals duties to agent Compensation (pay) Reimbursement (pay back for money they spent for you) and indemnification (taking agents place in lawsuit for something they were doing for you) Cooperation (must provide instructions and guidance for employees) Safe working conditions Agent's duties to principal Loyalty- most fundamental, agent must act solely for the benefit of the principal Notification- all matters that concern subject matter of the agency Performance- duty to act with ordinary care, reasonable diligence Obedience- agent must follow lawful and stated instructions Accounting Authority of the agent liability of the principal If the agent had authority to act then the principal will be liable Contracts- unauthorized agent acts Unauthorized acts: acts that go beyond scope of agents authority or w/o permission of principal. Agent is liable The principal is not liable for the agent's unauthorized acts (regardless of whether the principal is disclosed or not) Unless there s apparent authority- then there will be an agency by estoppel

Family Medical Leave Act (FMLA)

12 weeks unpaid leave to employers to need to care for a spouse, child, or parents suffering with a serious medical condition Protects your job Serious injury or military duty can take up to 26 weeks With respect to a worker's health-care coverage, when an employee takes FMLA leave, the employer: must continue the coverage on the same terms as if the employee had continued to work.

negotiation

2 people involved Least formal Involves the parties bargaining in an attempt to resolve their dispute Give and take the best form of ADR ex: Jackson, a homeowner, files a lawsuit against Michael, his construction contractor. Prior to trial, they meet with their attorneys to try to resolve their dispute before going to trial. This proceeding is known as: negotiation

employment at will

A common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise. Exceptions: - Contracts - torts Contract theory exception: employee policy manual - Exception to employment at will

Bona Fide Occupational Qualification (BFOQ)

A defense to charges of illegal discrimination that the discrimination was required for legitimate, job-related reasons. can be gender, age, but NEVER race requires an employer to show a particular gender or age is necessary for the performance of a particular job (NEVER based on race) Used in cases of disparate treatment discrimination Ex: requiring female dressing room attending for a woman's clothing store; age limits for pilots Eastminster Presbyterian Church has an opening for a new head pastor. Mohammed, who is a Muslim, applies for the job. The church declines to hire him and continues to look for other applicants. If Mohammed files a claim of illegal discrimination against the church, the church: may assert a bona fide occupational qualification (BFOQ) defense.

mini-jury trial

arbitration

checks and balances

A system that allows each branch of government to limit the powers of the other branches in order to prevent abuse of power ex: Congress passes legislation that requires all people to have health insurance or pay fines to the government. The president analyzes the legislation and signs it. Several different individuals challenge the law as unconstitutional and the United States Supreme Court agrees to hear the case. After the hearing, the justices declare that the law is constitutional. This is an example of: The system of checks and balances

franchise

An arrangement in which the owner of intellectual property, such as a trademark, a trade name, or a copyright, licenses others to use it in the selling of goods and services. agreement between "franchisor" (owner of trade name/ trademark) and "franchisee" (person who, by specific terms of agreement, sells goods/ services under trade name/trademark) **based on contract law Chain style- McDonalds Distributorship- Car shops Manufacturing arrangement ex: Orville and Perry are negotiating a franchise agreement. Perry, the potential franchisee, asks Orville for information about the franchise. In this case, Orville: is required to disclose certain material facts that a prospective franchisee needs in order to make an informed decision concerning the purchase of a franchise

enabling legislation

Agencies created when congress passes "enabling legislation" ex: EPA was created by Congress enabling legislation You would lobby congress to create a new agency because agencies are created by enabling law which is what congress does Congress passed the Securities Exchange Act of 1934, which created the Securities Exchange Commission. This legislation, which created an independent regulatory agency, is known as: Enabling legislation

fixed-term tenancy (tenancy for years)

an express agreement for a specified period of time such a month, a year, a summer ex: Estella agrees to lease some property that she owns to the San Juan County Historical Society for a term of one year. The Historical Society's tenancy is known as a: Fixed-term tenancy

capacity

Contractual Capacity: legal ability to enter into binding K mental ability to understand the rights and obligations established by contract, with the presumptive ability to understand how to comply with the terms of the agreement 18+yrs lack capacity - Adjudicated (court ordered) insane - Those adjudicated habitually intoxicated (alcoholic) - Those with appointed legal guardians contracts made with incapacitated persons is VOID Limited capacity - Minors Mental incapacity(incompetence): some sort of mental or physical defect that prevents a natural person from being able to enter into a legally binding contract Intoxicated people: contracts voidable in most states VOIDABLE a person must have contractual capacity to be a principal, but any person can be an agent.

in personam jurisdiction

jx over a person long arm statute The power to render a decision affecting the rights of the specific persons before the court Minimum contacts: - Long arm statutes: statutes that allow persons to be served outside state as long as minimum contacts requirements are met - If a person had "minumum contacts" with a diff state, he/she can be sued in a state that they don't live in

in rem jurisdiction

jx over property Power of the court over the property at issue in the state or district The issue in the case involved property in AZ so no matter where the Plaintiff or defendant resides, AZ has JX over the property

misdemeanor

less serious crimes punishable by fines, or imprisonment for less than 1 year less serious, punishable up to 1 year in JAIL, fines*

generic mark

marks that are so common they cannot receive federal trademark protection ex: band aid

minimum wage

Congress periodically reviews minimum wage

comity

Voluntary courtesy; respect One nation will defer and give effect to the laws and judicial decrees of another country, as long as those laws and judicial decrees are consistent w/ the law and public policy of the accommodating nation >legal reciprocity ex: Amy owes child support in AZ. She moves to Canada. AZ can ask Canada to "make" her pay Because of the principle of comity Comity means: that one nation will show deference for the laws and decrees of another nation

fixtures

Certain personal property, known as fixtures, can become so closely associated with the real property to which it is attached that the law views it as real property. true ex: Brad owns a hair salon that he is selling. In the salon are various items including lobby furniture, barber chairs, wall mirrors in front of each barber chair, razors, scissors, and handheld mirrors. When he sells the hair salon, the following are most likely to be considered fixtures: The barber chairs and wall mirrors

diversity jurisdiction

requires parties to live in diff states and have a dispute exceeding $75,000

COVER

Due Diligence - Fact finding - Identify issues - Alternatives - Stakeholders (anyone and everything who's impacted by decision) - F.I.A.S (First I Ask Some Questions) Code - What laws or professional rules apply? - Are any options illegal? Outcome - Utilitarianism- greatest good for the greatest number (cost-benefit analysis) - What would if this vs what would happen if that Value - mission statement - Corporate social responsibility Editorial - public view, opinion - How do you FEEL about the public perception regarding this decision "Bad (or good) publicity" Rule - Kantian ethics - categorical imperative This is the part of COVER that requires a decision make a list and consider who is impacted Stakeholder

Centiorari

review, Supreme Court doesn't have to accept cases, to deny means they will not grant review Which of the following does the Supreme Court have to issue before it hears a case? A writ of certiorari

compensatory damages

Economic: fixing the car, medical, exc.. Noneconomic: pain and suffering damages designed to put the plaintiff in the position he would have been in K had been performed what's in the contract, damages caused by the actual breach The standard measure of compensatory damages can be stated as: the difference between the promised performance and the actual performance

EEOC (Equal Employment Opportunity Commission)

Enforces laws to prevent unfair treatment on the job due to sex, race, color, religion, national origin, disability, or age. Equal Employee Opportunity Commission monitors compliance with title VII

corporate social responsibility

Ethical theory that believes corporations should also be a "good citizen" is called Corporate social responsibility theory Values of COVER Corporate social responsibility combines a commitment to good corporate citizenship with a commitment to making ethical decisions, improving society, and minimizing environmental impact Corporate social responsibility is a relatively new concept and is not imposed on corporations by law Under the theory of corporate social responsibility, many corporations publish reports outlining how they are good corporate citizens. These are often called: corporate sustainability reports Corporate social responsibility is most successful when a company undertakes activities that are significant and related to its business operations Corporate social responsibility: involves a commitment to self regulation by businesses

insanity

Generally, death or insanity of either party will automatically and immediately terminate the agency relationship defense adjudicated insane

Act of State Doctrine

Judges of one country cannot question the validity of an act committed by another country within that country's borders. Based on the principle that a country has absolute authority over what transpires within its own territory ex: US creates M&M factory in costa rica. Costa rica gov conducts a search and seizure of hundreds of boxes of M&Ms, US gov cannot interfere or say no The act of state doctrine is NOT frequently employed in importing cases

legality

K must have a lawful purpose or subject Contracts must have a legal exchange as its subject matter and must be able to be performed legally. Otherwise, the bargain is illegal Ex: agreement to commit a crime or a torte Contracts violating statutes and/or "public policy" Ex: usury- usurious loan agreement (loan contract exceeding state-imposed mac interest rate) VOID Ex: unconscionable contract (agreement so unfair that it is "void of conscience")

acceptance

Manifestation of offeree's intent to be bound by the terms of offer and resulting contract, silence generally does not constitute acceptance, mirror image rule, Effective when communicated by offeree to offeror, Rejections effective when received, Performance must be completed for acceptance in a unilateral contract, acceptance occurs when sent including email,

employer liability for negligence

Mens pea- wrongful state of mind, such as purpose, knowledge, recklessness, or negligence The failure to exercise reasonable care to protect another's person or property, causing an unreasonable risk of harm to others. Negligence is based upon the "reasonable person standard" Duty - Obligation to do something, job, doctors, lifeguards, babysitter Breach of duty - Good samaritan - No general duty Causation - 'But for' Ex: but for this thing that the defendant did, I would not have whiplash - Proximate cause - Reasonably foreseeable Damages (Harm) Defenses to negligence - Contributory negligence- if defendant can prove that plaintiff is even 1% at fault, plaintiff gets nothing in damages - Comparative negligence- how much was the plaintiff at fault gets reduced from how much the defendant has to pay - Assumption of the risk- you chose to put yourself in a dangerous position - Superseding cause- something else caused a separate possibly related event

damages

Monetary Equitable: when $ won't work and the court is trying to make things "fair" Monetary damages Compensatory- damages designed to put the plaintiff in the position he would have been in K had been performed Things directly related to the breach Consequential- foreseeable damages that result from special facts and circumstances arising outside contract itself. These damages must be within the contemplation of the parties at time breach occurs As a result of Punitive- damages designed to punish the defendant and deter him and others from engaging in similar behavior in the future. (punitive= punish) RARE in a contract Nominal damages- small award intended to signify plaintiff wronged by defendant (nominal=small) Liquidated damages- damages for breach of contract specified in the contract itself Equitable damages Specific performance- calls for the performance of the act promised Sale of land: each piece of land is unique and substitutions not adequate remedy Personal services: may not be substitutions if unique *land is always specific performance * replacement damages are always compensatory

mediation

More formal Involves a neutral 3rd party- mediator An intensive discussion where the disputing parties select a neutral party to help facilitate communication and suggest ways for the parties to solve their dispute In a mediation, a neutral third party meets with the parties and emphasizes points of agreement to bring them toward resolution of their dispute.

arbitration

Most formal of the ADR The parties submit their dispute to a neutral party for an actual resolution. There is a decision A super informal trial, but not a real trial Arbitrator listens to both sides present their cases and decides who wins A court can order arbitration

life estate

granted for lifetime of an individual, right to possess property terminates upon life state holder's death and property will pass to another party designated by the original grantor (own property for the lifetime of an individual that's not always you- steve) ex: Teagen owns a small cottage in which Katie, her elderly aunt, lives. Teagen wants to ensure that Katie can live in the cottage for the remainder of her life, but that when Katie dies, title to the property will return to Teagen. Teagen can accomplish this objective by granting Katie a: Life estate

disparate impact discrimination

Occurs when a protected group of people is adversely affected by and employer's practices, procedures, or tests, even though they do not appear to be discriminatory Ex: pool of applicants test: plaintiff shows percentage of the protected class in employer's workforce does not reflect percentage in local labor market affects group- unintentional Business necessity is a defense to disparate impact discrimination Ex: requiring a HS diploma

disparagement of property

Occurs when economically injurious falsehoods are made about another's product or property

independent contractor

Primary issue: how much control does the employer have over the details of the work? Independent contractors are NOT employees BUT may still be an agent Ex: real estate broker One who works for, and receives payment from, an employer but whose working conditions and methods are not controlled by the employer. Not an employee, but may be an agent. ex: Napoleon owns Napoleon's Construction and agrees to renovate Mrs. Cernan's bathroom. She will provide him with the plans and then he will do the work in the manner he determines is most cost effective and appropriate. Napoleon is likely to be classified as: An independent contractor

fiduciary duties of agents and principals

Principals duties to agent - Compensation (pay) - Reimbursement (pay back for money they spent for you) and indemnification (taking agents place in lawsuit for something they were doing for you) - Cooperation (must provide instructions and guidance for employees) - Safe working conditions Agent's duties to principal - Loyalty- most fundamental, agent must act solely for the benefit of the principal - Notification- all matters that concern subject matter of the agency - Performance- duty to act with ordinary care, reasonable diligence - Obedience- agent must follow lawful and stated instructions -Accounting Agency: a fiduciary relationship in which agent acts on behalf of principal one with duty to act primarily for another person's benefit. Involves trust and confidence Partners have an "agency" relationship and a fiduciary duty duty of loyalty (not to compete or self-deal) and duty of care (not grossly negligent or break law)

due process

Procedural due process- (most common) process involved when being charged w/ a crime, Requires you're given notice and you can object and get a hearing (knowing what you did and being able to fight it) Substantive due process- substance of allegation against you, is the substance of the law clear, or is it confusing? Would I know I'm breaking the law? (ex: law says you can't pass out "annoying" flyers, how do I know if my flyer is "annoying"?) 5th amendment Procedural- notice of problem and opportunity to fight it Substantive- unclear law to the point where it is confusing Substantive due process- Requires that the government give proper notice and opportunity to be heard and follow any established processes Procedural due process- Requires that the government treat similarly situated people in a similar manner ex: If a student is kicked out of school based on an allegation of cheating but does not have an opportunity to present his case to the dean, it is likely a violation of procedural due process Ocean City passes an ordinance that prohibits all churches from meeting within its city limits. This rule affects the residents' constitutional right to: substantive due process

intellectual property

Property created by creative process Trademark Copyright Patents Trade secrets

jurisdiction

Refers to the power of a court to hear a case Abbreviation- JX Types of jurisdiction Personal and subject matter (which state and which system: fed or state) Original or appellate (original or appeal?) Personal: jurisdiction over persons and property, which state is the lawsuit going to be filed in? Two types of personal In personam jurisdiction (JX over person) The power to render a decision affecting the rights of the specific persons before the court Minimum contacts: Long arm statutes: statutes that allow persons to be served outside state as long as minimum contacts requirements are met If a person had "minumum contacts" with a diff state, he/she can be sued in a state that they don't live in In rem jurisdiction (JX over property) Power of the court over the property at issue in the state or district The issue in the case involved property in AZ so no matter where the Plaintiff or defendant resides, AZ has JX over the property Subject matter: what kind of case is this? Which system will the case be handled by (state or fed) Certain cases are always in fed systems Concurrent situation? If not, then it belongs in the state system Refers to the power of a court to hear certain kinds of cases Exclusive fed jurisdiction: few cases fall under this category. Includes admiralty, bankruptcy, fed crimes, state v. state, claims against US, and exclusive statutes State jurisdiction: majority of cases Concurrent fed jurisdiction (both) Fed questions: US constitution, fed statute/treaty Diversity of citizenship: requires parties to live in diff states and have a dispute exceeding $75,000 Numbers are usually a giveaway if they're larger than 75k and ppl live in diff states Jurisdiction: original v. appellate Original jurisdiction: the power to hear and decide cases when they first enter the legal system Trial courts hear questions of law and questions of fact Appellate jurisdiction: the power the review previous judicial decisions to determine whether trial courts erred in their decisions Courts of appeals (also called appellate courts) hear only questions of law

business necessity

Requires employer to demonstrate a job qualification is reasonably necessary to the legitimate conduct of the employer's business Business necessity is a defence to disparate impact discrimination Ex: requiring a HS diploma A defense to charges of illegal discrimination, that the discrimination should be allowed so that the business may operate normally and within the bounds of societal expectations. Race is not allowed in this defense.

employer liability for torts

Respondeat superior- A doctrine under which a principal or an employer is held liable for the wrongful acts committed by agents or employees while acting within the course and scope of their agency or employment. Vicarious liability- Legal responsibility placed on one person for the acts of another. Liability for contracts formed by an agent depends on how the principal is classified and on whether the actions of the agent were authorized or unauthorized. true Whether a worker is an employee or an independent contractor can affect the employer's liability for workers' actions. If the Internal Revenue Service decides that an employee is misclassified as an independent contractor, the employer will be responsible for paying Social Security, withholding, and unemployment taxes.

conversion

TORT A situation that occurs when a person deprives an owner of personal property or of the use of that property without the owners permission stealing or depreciating value-looks like theft

fanciful mark

The *greatest* degree of trademark protection trademark and have no other meaning than acting as a mark. Fanciful marks are considered to be the strongest type of mark

false imprisonment

The intentional confinement or restraint of another without authority or justification, and without that person's consent Which of the following has nothing to do with false imprisonment? You are made fearful of unwanted and possibly harmful contact with another person. ex: Wilhelm has an argument with his apartment roommate, Arthur. Wilhelm tells Arthur that if he leaves their apartment, Wilhelm will lock Arthur in his room when he returns. Arthur , frustrated with Wilhelm, leaves the apartment to take a walk. If Arthur were to sue Wilhelm for false imprisonment, Arthur would most likely: not be successful because threats of future harm do not constitute false imprisonment

infringement

Trademark infringement When the mark is copied to a substantial degree Creates a likelihood of confusion with the original Need not prove the infringer intended to infringe Patent infringement is a tort . It is committed when one uses, makes, or sells another's patented design, product, or process without the patent owner's permission . This is true even if the patented product is not yet put into commerce . ex: Alpha Corp. creates a syrup that is flavored with coffee and chocolate and sells it under the name MochaMerge. Beta Co. begins to sell a similar product under the name MokaMerge. This is most likely a matter of: Trademark infringement

employment discrimination

Treating employees or job applicants unequally on the basis of race, color, national origin, religion, gender, age, or disability. This is prohibited by federal statutes. There are 4 basic types of defenses to employment discrimination claims - Business necessity ( high school diploma) Requires employer to demonstrate a job qualification is reasonably necessary to the legitimate conduct of the employer's business Business necessity is a defence to disparate impact discrimination Ex: requiring a HS diploma - Bona Fide Occupational Qualification (gender and age) BFOQ defense requires an employer to show a particular gender or age is necessary for the performance of a particular job (NEVER based on race) Used in cases of disparate treatment discrimination Ex: requiring female dressing room attending for a woman's clothing store; age limits for pilots - Seniority systems Conditions the distribution of job benefits on the length if time one has worked for an employer Can be a defense only if it is a bona fide system, - After- acquired evidence Evidence of misconduct, committed by an employee who is suing an employer for employment discrimination Uncovered during process of discovery conducted in preparation for a defense against the suit Not an absolute defense for employer The most important federal statute prohibiting employment discrimination against members of a protected class is: Title VII of the Civil Rights Act of 1964

FLSA (Fair Labor Standards Act)

an extension of wage and hour regulation to workers in interstate commerce under FLSA, employees who work over 40 hours/week are entitled to 1.5 times per hourly wage for those hours worked The Fair Labor Standards Act (FLSA) does NOT: restrict the power of federal courts issuing injunctions against unions ex: Kera is an hourly employee of Xeon, Inc., who earns a wage of $10.00 an hour. During a busy season, Kera works fifty hours in one week. Xeon pays Kera $11.00 an hour for her overtime pay. Xeon is: not in conformance with the Fair Labor Standards Act because Xeon is obligated to pay no less than 1.5 times Kera's regular pay for hours she worked over forty in one week.

contract (K)

a set of legally enforceable promises Regular v. UCC Ucc is sale of goods tangible and movable only Elements of valid contract Agreement, acceptance Consideration Capacity Legality Valid Void: illegal, adjudicated incompetent Voidable- capacity issues Unenforceable: not in proper form Mirror image rule Counteroffer Unconscionable- unfair must be in writing MYLEGS - Marriage (prenup) - Year (takes longer than a year) - Land - Executor (wills) -Guarantor (debt) - Sale of goods over 500$

fraud

a lie to receive a benefit, misrepresentation to gain an advantage over another person Typically fraud requires that a defendant actively make a false representation of material facts, and silence does not involve this action. Fraudulent misrepresentation refers to misrepresentation that is consciously false and is intended to mislead another. The person making the statements knows or believes they are false.

collective mark

a mark used by members of an association or labor union to certify the region, materials, mode of manufacturer, quality, or accuracy of the goods or services

federal jurisdiction

admiralty, bankruptcy, fed crimes, state v. state, claims against US, and exclusive statutes US constitution, fed statute/treaty Cases involving federal crimes, bankruptcy, patents, copyrights, trademarks, and suits against the united states

disparate treatment

affects individual- intentional BFOQ is a defense A form of employment discrimination that results when an employer intentionally discriminates against employees who are members of a protected class. In order to show disparate-treatment discrimination, a person must show that she or he is a member of a protected class, applied for and was qualified for the job in question, was then rejected by the employer, and the employer continued to seek applicants for the position, or filled the position with a person not in a protected class. ex: Min applies for a job as a receptionist at an accounting firm. If she is denied a job because she is of Asian origin, she may be a victim of: disparate-treatment discrimination.

disclosed principal

agent not liable, principal liable A principal whose identity is known to a third party at the time the agent makes a contract with the third party.

consideration

bargained for exchange Something of value, given in exchange for something else of value, that is the product of a mutually bargained for exchange for a promise to be legally enforced by the courts, there generally must be consideration on both sides of the agreement Courts rarely consider the adequacy of consideration. Generally, any "legally sufficient" amount of consideration will do "Wishy washy" illusory promises do not constitute consideration ex: Liz agrees to cook twenty dinners for Brian, in exchange for which Brian will repair all of the plumbing in Liz's house. Liz has offered legally: sufficient consideration, because Liz has promised something of value.

limited liability company

business organization with limited liability of a corporation, taxed like a partnership Formed under state law w/ filing articles of organization Small compared to a corporation Fewer rules, more flexibility All the owners are protected from being sued personally Special formation requirements with any limited groups Owners are referred to as members Members can be elected to be taxed as a corporation *if an LLC does not make a special election it is automatically taxed as a partnership "pass through" No limitation on the number of owners permitted in an LLC Tremendous management flexibility **Jurisdiction for suing determined based on where ANY of the members live Tax optionable, passthrough, or double taxation, members Filing articles of organization

Foreseeability

consequential damages proximate cause causation

exceptions to employment at will

contract theory, tort theory, public policy Exceptions: - Contracts - torts Contract theory exception: employee policy manual - Exception to employment at will

corporation

created by state statute Filing articles of incorporation Use stocks and bonds to raise money Policy makers: board of directors Corporations CANNOT plead the 5th state sanctioned business with legal identity separate and apart from its owners (shareholders) 3. Owners (shareholders)- liability limited to amount of investment in corporation 2. Board of directors (policy makers)- elected by the shareholders, *manage the corp 1. Corporate officers (day to day)- elected by the board, hired, owe a fiduciary duty Torts and crimes- corporation, board and officers can be liable Double taxation- profits taxed as income to the corporation, and again as income to owners/shareholders Types of corporations- domestic, foreign, and alien Non-profit Closely held (private) corporations- small group of shareholders who are usually related, shares not traded publicly Corporation pros and cons Advantages - Limited liability for shareholders - Ease of raising capital by issuing (selling) stock - Profits taxed as income to shareholders (not partners) Disadvantages - Double taxation - Formalities required in establishing and maintaining corporate existence Public corporation- formed by governmental purpose (postal service) Publicly held- is a corporation that is traded in the securities market (NY stock exchange) Private (closely held)- a corporation NOT owned by the gov, stocks not publicly traded, small # of owners (hobby lobby) - Most corp - Flexibility in management, can be run like a partnership Formation of corp - Created by state statute -Articles of incorporation- filed with secretary of state Bylaws -Shares, meetings, internal management If created incorrectly, no corporate protections Piercing the corporate veil *** - Owners are exposed to personal liability - Commingled business/ personal assets - Improper formation - Inadequate capital (don't fund corp) - Trickery or fraud- officers owe fiduciary duties

beyond a reasonable doubt

criminal case burden of proof need to be about 99% positive ex: Arthur is arrested for the crime of murder. Arthur denies that he committed the crime and is planning a vigorous defense. The state will be required to show evidence to prove its case: beyond a reasonable doubt.

libel

defamation published in a permanent form, such as a magazine or newspaper

Embezzlement

the wrongful conviction of another's property by one who is lawfully in possession of that property *some sort of trusted relationship theft, relationship between thief and victim ex: Morris owns a bicycle store. He often leaves Daniel in charge of the store. One Saturday evening, after Daniel leaves the store, Morris discovers that he is missing $900 from the register. If Daniel took the cash, he could be found guilty of the crime of: embezzlement

joint tenancy

each of the co-owners owns an undivided interest in the property. On the death of a tenant interest upon death passes to the surviving owner (usually married couples but not always) The joint ownership of property by two or more co-owners in which each co-owner owns an undivided portion of the property. On the death of one of the joint tenants, his or her interest automatically passes to the surviving joint tenants. When a joint tenant transfers her or his rights to another without the consent of the other joint tenants, doing so terminates the joint tenancy. A joint tenancy differs from a tenancy in common primarily in that a joint tenancy has the: right of survivorship

appropriation

ex: Mark is a famous syndicated radio personality for TalkRadio. He has a distinctive voice and manner of speaking. MoreTalk hires Gordon, who sounds nearly identical to Mark, to host a competing show. MoreTalk encourages Gordon to imitate Mark as closely as possible while on the air. MoreTalk is most likely to be liable for: appropriation

entrapment

ex: Undercover agents of the Greenville Police invite Mack to purchase a stolen truck. Mack refuses initially, but the agents repeatedly visit Mack's home and businesses over a period of weeks, and eventually Mack agrees. In addition, they send someone to damage Mack's current vehicle so his need for the truck is greatly increased. If criminal charges are brought against Mack, he can assert the defense of: entrapment

eminent domain

govs exercise of its eminent domain power to force the sale of private property The power of a government to take land for public use from private citizens for just compensation. ex: When the government uses its power of eminent domain to acquire land owned by a private person or company, it is called A taking

arbitrary mark

trademarks or service marks that consist of a word or symbol that has nothing to do with the products or services being offered a real word, but the word is used such that there is no connection to the meaning

money laundering

having a real business used to process income from an illegal operation Criminals often resort to money laundering because they wish to conceal the identity, source, and destination of illegally gained funds. ex: Gavin runs an illegal gambling operation out of the back of a store that he owns. The store shows increasing profits because Gavin reports the profits of his gambling operation as legitimate store income on his tax returns. Gavin is engaged in: Money laundering

expectation of privacy

highly gov regulated industries (mining, firearms, tobacco, alcohol) have no expectation of privacy The U.S. Constitution does NOT specifically mention privacy as one of the protected rights U.S. citizens have Health Insurance Portability and Accountability Act- Regulates agency use and disclosure of data related to individuals Electronic Communications Privacy Act- Prohibits interception of information communicated electronically Gramm-Leach-Bliley Act- Gives individuals a right to access information about them in government files Privacy Act- Requires medical records to be used only for authorized purposes and requires informing patients of their rights to medical records Freedom of Information Act- Prohibits disclosure of nonpublic personal information about a consumer to third parties 8th amendment does not mention anything about privacy Invasion of privacy is publishing or otherwise making known or using information relating to a person's private life and affairs, with which the public has no legitimate concern, without that person's permission or approval.

employee

how much control does the employer have over the details of the work?

larceny

illegal taking/keeping something that doesn't belong to you (theft) no force The key difference between larceny and robbery is that: robbery involves force or fear of force; larceny does not. not a good example of a white collar crime ex: April owns a diamond ring that she often takes off and places on her desk while she works. She is usually careful to put it back on whenever she leaves her desk. One day, she went to lunch and forgot to take the ring. Olivia picked up the ring and did not return it to April. Olivia has probably committed the crime of: larceny

minimum contacts

in personam jx Long arm statutes: statutes that allow persons to be served outside state as long as minimum contacts requirements are met If a person had "minimum contacts" with a diff state, he/she can be sued in a state that they don't live in

easement

irrevocable right to use some part of another's land for a specific purpose, w/o taking anything from the land (electrical wiring through land)

first sale doctrine

if you own protected work you can sell it

defamation

not protected speech untrue statement that damages the reputation or character of a person, agency, corporation lies 2 types - Libel: defamation published in a permanent form, such as a magazine or newspaper - Slander: defamation made orally Defenses - Truth is an absolute defense - Opinion consists of a false statement of fact, not made under privilege , that is communicated to a third person and that causes damage to a person's reputation. For public figures, the plaintiff must also prove that the statement was made with actual malice . Invasion of privacy is publishing or otherwise making known or using information relating to a person's private life and affairs, with which the public has no legitimate concern, without that person's permission or approval.

duress

occurs when one party threatens other with wrongful act unless assent is given not legal assent, since coercion interferes with contracting party's free will For courts to rescind agreement, injured party must prove duress left no reasonable alternatives to contractual agreement Must be a real threat to the person's safety, health, family, reputation ex: "You better sign the contract or I'll expose these photos of you in a compromising situation This is a problem- likely duress To establish duress, there must be proof of a threat to do something that the threatening party has no right to do. Generally the threatening act must be wrongful or illegal and must render the threatened person incapable of exercising free will. A threat to do something legal such as suing someone ordinarily is not duress. ex: Justin is the accountant for a trucking company. A driver, Andrew, holds a gun to Justin's head and forces him to steal from the company. Justin falsifies records, obtains cash, and gives it to Andrew. If criminal charges are brought against Justin, he can assert the defense of: duress

hostile environment harassment

occurs when workplace is permeated with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim's employment and create an abusive working environment

copyright

protects the expression of a creative idea Music- lectures- works of art- computer programs- books- maps- compilations of facts Authors life +70 The copyright act names several exclusive rights - Reproduce - Derivative works - Distribute - Perform - Display Cannot copyright - Facts - Ideas -Sequences (page numbers, chapters if in sequence) - Mathematical calculations Defences - Fair use: using a protected work for educational purposes - First sale: if you own protected work you can sell it Fair use doctrine- teachers have more leeway for using copyrighted materials so long as their use doesn't affect the market Literary works, including newspapers and magazine articles; musical works and accompanying words, including advertising jingles; dramatic works, including plays or musicals; pantomimes and choreographic works, including ballet and other forms of dance; pictorial, graphic , and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works, such as drawings and designs There are several remedies available to a copyright owner for copyright infringement. Select three. - Criminal penalties, injunctions, damages don't necessarily have to register it for it to have copyright protection ex: Cason thinks of a new concept for a palm-sized computer notebook. He also thinks of a new, faster process for producing the notebooks. Federal copyright law protects: neither Cason's concept nor his process

COBRA

purchase medical coverage through company at reduced rate - Cannot claim if fired for gross misconduct

ADA (Americans with Disabilities Act)

requires employers to offer "reasonable accommodation" (not extreme costs) to employees or applicants with a disability who are otherwise qualified for the job they hold or seek Disabilities: cancer, morbid obesity, blindness, deafness ex: Wally is blind and would like to work for the Dairy Times writing articles on the dairy industry. Wally uses voice-recognition software that allows him to dictate articles to his computer. His computer is specially designed for visually impaired individuals. The Dairy Times interviews Wally but offers the job to a sighted person instead. Dairy Times may have violated: The ADA the plaintiff must first file with the Equal Employment Opportunity Commission for a ADA case The ADA defines the term "disability" very broadly . It includes any physical or mental impairment that substantially limits one or more of the major life activities of the affected individual. It also includes any record of having such an impairment. Finally, it includes being regarded as having such an impairment. The ADA has a provision that requires protecting and keeping confidential the medical information of an employee. Substance addiction is considered a disability under the ADA, but the act does not protect those who are using illegal drugs.

leasehold estate

right to possess (but not own) property (land, building fixtures, furnishings) for a stipulated period of time. A leaseholders cannot take permanent improvements with you (rental) Fixed term tenancy or tenancy for years- an express agreement for a specified period of time such a month, a year, a summer Periodic tenancy- no specified period of time but specifies that rent is to be paid a certain intervals Tenancy at will- either party can terminate the tenancy w/o notice. "For as long as we both agree" An estate in realty held by a tenant under a lease. In every leasehold estate, the tenant has a qualified right to possess and/or use the land.

fee simple absolute

right to possess for life and devise (will) to heirs upon death, the most complete interest in real property, including right to commit waste (dig holes all over, ruin property, take value away) an interest in land in which the owner has the greatest possible aggregation of rights and privileges ex: Mary owns holds property in fee simple. Mary would like to lease the property to Jack, who wants to farm the land. Because Mary holds the property in fee simple, she: can lease, sell, or give the land away as she wishes.

felony

serious, punishable by death or imprisonment in PRISON for more than 1 yr* Crimes like arson, rape, or robbery that carry the most severe sanctions

general jurisdiction

state trial courts

limited jurisdiction

state trial courts ex: Marco files a lawsuit against Allied Company in an Oregon court with limited jurisdiction. The difference between general and limited jurisdiction is based on: the subject matter of the cases that the court can decide

fair use

teachers have more leeway for using copyrighted materials so long as their use doesn't affect the market

license

temporary, revocable right to use another's property (theater ticket) A revocable right to enter onto another person's land an agreement/contract about intellectual property rights

bribery

the offering, giving, soliciting, or receiving of money of any object of value for the purpose of influencing the judgement or conduct of a person in a position of trust *moment you offer the bribe it's a crime offering to give someone a benefit in an attempt to influence Foreign Corrupt Practices Act Prohibition against bribery of foreign officials. But FCPA does allow "grease" payments to minor officials CAN make grease payments, but MUST include in financial books But NOT substantive (large sums) the offering, giving, soliciting, or receiving of money of any object of value for the purpose of influencing the judgement or conduct of a person in a position of trust *moment you offer the bribe it's a crime ex: Glenn gives Senator Smith $100,000 so that Senator Smith will make sure the federal government buys all its paper clips from Glenn's company. Glenn has: Committed the crime of bribery

litigation

trial, suing Steps in civil litigation: the pretrial stage Informal settlement- negotiation (other pretrial methods to resolve cases Meditation and Arbitration) Pleadings filed- complaint (summons- summoning you to court) (starts case) Service of process- defendant given notice (register agent for corp) Defendants response- answer Failure to do so results in default judgement Court finds in favor against you Pretrial motions Discovery- interrogatories/depositions Mechanisms for exchange of info Interrogatories: written questions you have to answer and return to other side Deposition: oral questions you have to answer Someone requests to interview someone, there's a court reporter, if the question isn't objected here it cannot be objected in court Pretrial conference- can you work this out? If no, case proceeds to trial The trial Jury selection- voir dire Opening statements Examination of witnesses and presentation of evidence= case Closing arguments Jury instructions Verdict Appellate court decisions Affirmed- appellate court accepts the lower court's judgement and result Modification- appellate court accepts the lower court's decision, but changes the remedy Reversed- appellate court overturns the ruling of the lower court Remanded- appellate court sends the case back to the lower court, usually on a specific issue *state gov cannot appeal a not guilty

general partnership

unincorporated business owned and operated by two or more persons Each partner has equal control of business Each partner has unlimited personal liability for business debts, obligations, losses= ownership interest Partners have an "agency" relationship and a fiduciary duty Treated as a separate legal entity for lawsuit purposes In the absence of a partnership agreement- the uniform partnership agreement controls taxed as pass through joint and severe liability fiduciary duties (care, loyalty) ex: Eddie and Eric enter into a partnership agreement to sell gourmet dog biscuits. If they do not specify how long the general partnership will last, the partnership will end: whenever either partner wants to end it

certification mark

used to put a level of confidence in a product a mark used one or more persons to certify the regional origin, quality, or accuracy of a good or service.

Adverse Possession

when a person openly treats real property as his/her own, without protest/permission from the real owner, for statutorily-established period of time, ownership is automatically vested in that person Must be able to prove: - Actual and exclusive (actually living there, can't leave for long periods of time) - Open visible and notorious (not in secret) - Continuous and peaceable for required time (owner not trying to evict) -Hostile and adverse (w/o owners permission ) ex: Kenneth finds a home in town that has been abandoned and moves into it. He fixes broken windows, paints the house, tends the yard and garden, and puts his name on the mailbox by the street. He contacts the county office and pays the small property tax each year with cash. The owner of the house has no idea that Kenneth is there and so has never given him permission to be there, nor asked him to move out. After a certain amount of time, Kenneth may become the owner of the house and land through the doctrine of: Adverse possession reasons for the adverse possession doctrine - Resolving boundary disputes - Resolving title concerns - Assuring property is put to productive use