BL Final Study

How to reduce double taxation

1) reduce tax liability by making tax-deductible payments to shareholders (paying interest or rent, paying employee compensation to shareholders active in business) 2) retain business income and don't distribute it to shareholders

A partnership written agreement usually includes..

1) terms 2) capital characteristics 3) division of profits and losses 4) partnership salaries or withdrawals 5) duties of partners 6) consequences if someone sells their share or dies

Family and Medical Leave Act of 1993

Allow employees to take time off from work to handle domestic responsibilities, such as birth or adoption of a child or care of an elderly parent. Guaranteed job security despite familial responsibilities - 50+ employees at work sites within 75 miles of each other - part time employees are excluded

de jure corporation

Entity is a corporation by right and cannot be challenged

emerging growth company

Had revenues of less than $1B in most recent fiscal year

Closely held corporation

Has a small number of shareholders and is characterized by the absence of a market for its stock Greater duty of loyalty and care on corporation's directors and majority shareholders

aiding and abetting

Private plaintiff cannot maintain an aiding and abetting suit under 10(b) SEC can though if they can show... 1) existence of a violation of section 10(b) or Rule 10b-5 by primary party 2) defendant's knowledge of (or recklessness as to) that primary violation 3) substantial assistance of the violation of the defendant

Remedies for patent infringement

preliminary (prevent any further infringement) and permanent injunctive relief damages (based on patent holder's lost profits, infringers profits, royalty. Courts can increase damage award by up to 3x for intentional or willful infringement) court costs and attorney's fees

red-herring prospectus

preliminary prospective -- because it has a notice on cover that says its not final and is subject to revision says the range for selling price and omits the names of co-managers

file-wrapper estoppel

prevents a patent owner from asserting any claim interpretation at odds with the application on file with PTO

Equal Employment Opportunity Commission (EEOC)

primary enforcer of civil rights legislation in US individual must file a complaint within charging period - ex: Title VII claims must be filed within 180 days after alleged unlawful employment practice

appraisal rights

right to receive in cash the fair value of shares they were forced to give up as a result of the transaction

covered security

securities listed on a national exchange and securities issued by a registered investment company

Other marks

service marks - a trademark used in connection with a tangible product (law almost identical to trademarks) trade names - cannot be registered under federal law unless also used as trademarks or service marks Certification marks - indicates that product has met certifier's standards of safety or quality

S-3 Registration statement

short-form registration statement that can be used by certain companies that have timely filed periodic reports under the 1934 Act for at least 12 months. Must have a widespread following in the marketplace -- aggregate market value of voting and nonvoting stock held by nonaffiliates must be $75M or more

restricted stock

stock not acquired in a registered offering

leveraged buyout

stock purchase financed by debt debt financing is typically secured by the assets of the target company

arbitrary marks

suggests something about the product without directly describing it - immediately protectable

suggestive marks

suggests something about the product without directly describing it - more protectable than descriptive marks

wrongful discharge

termination of employment without a good cause based on: - public policy - implicit contract - implied covenant of good faith and fair dealing

bust-up takeover

the acquired corporation is taken apart and its assets are sold piecemeal

prima facie

the apparent nature of something upon initial observation

Section 7 of NLRA

Prohibits a lot of employer conduct 1) threatening employees with any adverse action for organizing or supporting a union 2) promising employees any benefits if they abandon support for a union 3) interrogating employees about union sentiment or activity 4) engaging in surveillance of employees' union activities Gives protection for engaging in concerted activities

Regulation Analyst Certification (Regulation AC)

Prohibits analysts from issuing reports that they do not personally believe to be true

Immigration Reform and Control Act of 1986 (IRCA)

Prohibits discrimination against applicants or employees based on national origin or citizenship status - 4+ employees

Rehabilitation Act of 1973

Prohibits discrimination against physically and mentally disabled Imposes affirmative action obligations on employers having contracts with federal government in excess of $10,000 - employers receiving federal financial assistance of any amount

Registration procedure

Registration statement automatically becomes effective on 20th day after filing unless SEC fixes an earlier date -- but most registrants file the statement saying "it will not be effective until declared effective by the SEC" to give the SEC enough time to review

Waiting period

Time between filing and its becoming effective - also called quiet period - law severely limits what issuer and underwriters may say or publish during this time - no sale can occur - but underwriters can assemble selling groups, distribute copies of prospectus, even solicit offers to buy - roadshows are allowed, but written communication is not allowed

Remote and direct tippees

Tippers and all direct and remote tippers in insider trading cases are jointly and severally liable for the illicit gains or avoided losses

Retaliation against a close person

Title VII prohibits retaliation against "someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights" Both must be employees

Same-Sex sexual harassment

To be actionable, harassment must be tied to some type of gender discrimination: must be discrimination because of sex

Alter ego theory

When the owners of a corporation have so mingled their own affairs with those of the corporation that the corporation does not exist as a distinct entity - instead it is an alter ego of its owners - if individual exerts so much control that standard corporate decision-making mechanisms are not in operation - if books and funds of corp and controlling shareholder have been commingled - if action that requires approval by a board proceeds without a board meeting being held, or other procedural rules are consistently broken

paramour cases

Where coworkers claim that an employee has received preferential treatment as a result of having sexual relations with a supervisor - most courts have struck down such claims

tippee

Will only be held liable if they are a derivative insider -- if the insider's duty of disclosure can somehow be imposed on the tippee -- so not liable unless the tippee and tipper join in a co-venture to exploit the info -- liable ONLY IF they knew or should've known that the tipper's disclosure of the confidential info constituted a fiduciary breach

Provisional patent application

Without formal patent claims low-cost way to establish early filing date for later, nonprovisional patent application "patent pending" Must be followed by nonprovisional app within 12 months

first sale doctrine

a copyright owner has exhausted statutory right to control distribution of a copyrighted item once the owner sells the item and thereby puts it in the stream of commerce - once an owner has sold copyrighted product, owner cannot prevent resale

bespeaks caution doctrine

a court may determine that the inclusion of sufficient cautionary statements in a document renders immaterial any misrepresentation and omission contained therein - applies only to projections, estimates, and other forward-looking statements that are accompanied by precise cautionary language that adequately discloses the risks involved

self-tender

company would agree to buy back the shareholders' rights for a fair price

gun-jumping

conditioning the market to whip up interest in the offering with a news article or press release about the company - may violate 1933 Act

Useful article doctrine

copyright protection does not extend to the useful application of an idea

de facto corporation

corporation in fact even though it is not technically a corporation by law

reverse piercing

corporation may be held liable for debts of a shareholder

dead-hand pill

could be redeemed only by the directors in office before the hostile bidder gained control or by their designated successors Bad because it gives one category of directors distinctive voting rights that are not shred by other directors Violates directors' duty of loyalty

no-hand pill

could not be redeemed for six months even if the insurgent's slate of directors was elected and wanted to redeem it

Federal Economic Espionage Act

criminal liability for people who intentionally or knowingly steal a trade secret or knowingly receives or purchases a wrongfully obtained trade secret applies extraterritorially

blank check company

development-stage company that has no specific business plan or has a business plan to acquire a currently unknown business

plurality

director could be elected as long as they receive the most votes

majority

director must receive majority of shares voted to be elected

tip

disclose material nonpublic information to a person and withhold it from the general public

drawings and declaration

drawings must show claimed invention Declaration - inventor believes he or she is the first inventor of the invention Must make full disclosure of relevant prior art

fraudulent inducement

during difficult economic times, a business may exaggerate to keep and attract highly qualified personnel - sometimes court will hold that its fraudulent inducement, sometimes not

cumulative voting

each shareholder may cast all of their votes for one nominee, or allocate them as they see fit. Total number of votes = number of directors to be elected * number of shares owned Minority shareholders have greater likelihood of electing at least one director Number of shares (x) required to elect a given number of directors (y) where z is total number of shares voting and d is total number of directors to be elected........ x = [(y*z)/(1+d)] +1

work made for hire

either 1) employee created the work within scope of employment 2) work is in one of nine listed categories and is specifically commissioned through a SIGNED writing statement that work is made for hire

at-will contract

employee can quit at any time, and employer can discharge the employee at any time, for any or no reason, with or without advance notice. NOT SUBJECT TO AT-WILL: Public employees, employees who have express employment contracts for a fixed term, unionized workers

patent

government-granted right to exclude others from making, using, selling, or importing an invention - utility - design - plant patents After a period of time, patent expires and invention is dedicated to the public PTO has issued more than 8 million patents since 1790

Generic terms

grants no protection to generic terms Not protected even when they acquire secondary meaning

fanciful mark

had no prior meaning until used as a trademark in connection with a particular product - immediately protectable

well-known seasoned issuer

has at least $700M public worldwide common equity float held by non affiliates OR has issued for cash at least $1B in aggregate principal amount of registered non-convertible debt securities in the past 3 years ***can make unrestricted oral and written offers before a registration statement is filed

quorum

holders of at least 50% of the outstanding shares are present in person or by proxy

unorthodox transaction

if a purchase or sale by an officer, director, or great than 10% shareholder that would otherwise result in recoverable short-swing profits was involuntary and did not involve the payment of cash, and if there was no possibility of speculative abuse of inside info

material

if a reasonable investor would consider it important in deciding how to act

corporation by estoppel

if a third party in all of its transactions with the enterprise acts as if it were doing business with a corporation, the third party is prevented (or estopped) from claiming that the enterprise is not a corporation

line-of-business test

if officer, director, shareholder learns of an opportunity in the corp's line of business, a court will not permit the officer, director, or controlling shareholder to keep the opportunity for himself

Fair Use Doctrine

if person uses copyrighted material while engaging in literary criticism, social comment, news reporting, education, scholarship, or research Courts consider: 1) purpose and character of use (including whether it was for profit) 2) economic effect of the use on copyright owner 3) nature of the work used 4) the amount of work used ***if new work is deemed transformative, then there is no infringement (ex: parody) common in academic environment

S-1 Registration statement

includes a complete description of the securities being offered, use of the proceeds, the business of the issuer, the risk factors, the management, and major shareholders - 3 years of audited financial statements + 5 years of selected financial info -- unless its an emerging growth company

quasi-foreign corporations

incorporations incorporated outside of california but 1) have more than 50% of their stock owned by Cali residents and 2) derive more than 50% of their sales, payroll, and property tax from activities in california

indirect patent infringement

inducement to infringe - active inducement of another party to infringe a patent

contributory copyright infringement

inducing, causing, or materially contributing to infringing conduct of another with knowledge of the infringing activity providing a hyper-link to a copyrighted work is not ALONE copyright infringement ***key is that they do have knowledge

trade secret

info that gives a business an advantage over its competitors that do not know the info no application process

descriptive mark

initially unprotectable specify certain characteristics of the goods, such as size or color can be protectable if they acquire secondary meaning - mental association by the buyer that links the mark with a single source of product

proxy contests

insurgents propose their own slate of directors, or rally to oppose a board proposal by sending out their own proxy statement and soliciting proxies for their candidates or position

scienter

intent to deceive, manipulate, or defraud - info from anonymous sources must be discounted when considering whether there are plausible competing inferences

Calculation of damages for 10b-5

out-of-pocket loss: what investor paid (received) - fair value of the stock on the date of the transaction Prejudgement interest can also be given - interest on amount of the award between date of purchase and date of judgement Punitive damages are not available

patent misuse

patent holder abused its patent rights - improperly expanding physical or temporal scope of a patent - inequitable conduct ---- patent holder is barred from recovering for any infringement of its patent during the period of misuse

doctrine of equivalents

patented invention is replicated in a product or process that works in substantially the same way and accomplishes substantially the same result - only is available to inventors who did not amend their applications in order to satisfy patentability requirements ***now provides patent owners with considerably less recourse against competitors who design around their patents

innocent infringement

patented item did not carry adequate notice of its patent status -- patent owner cannot recover damages arising out of the infringement occurring before the defendant received actual notice of the infringement

Sarbanes-Oxley's clawback provision

pay back bonuses or other incentive compensation received during the year after the erroneous filing

shareholders of record

persons whose names appear on the corporation's shareholder list on a specified date

Securities Litigation Uniform Standards Act (SLUSA)

precludes class actions based on state law that allege a "misrepresentation of material fact in connection with the purchase or sale of a covered security"

derivative works

based on copyrighted work

shareholder derivative suit

brought by a shareholder on behalf of the corporation

LLC

combines pass-through entity tax advantages with LL advantages of a corporation flexibility Filed with secretary of state Name must include LLC Owners called members LLCs not taxed at firm level unless they elect to be taxed as corporations LLCs are usually taxed as partnerships Lack of restrictions on shareholders, can have more than one class of securities, no limit on number of members Controlling members owe fiduciary duty to members

federal statues that forbid discrimination...

only apply to employees, not independent contractors

Private Securities Litigation Reform Act of 1995

Added a variety of procedural provisions designed to correct perceived abuses in private securities litigation that increased cost of raising capital & chilled corporate disclosure to investors

Claims

(numbered paragraphs at the end of the patent) describe elements of the invention that the patent will protect MUST be specifically set forth in claims or it won't be protected

invalidity

1) invention was not novel, useful, or obvious 2) patent covers nonstatutory subject matter 3) a statutory bar was created by the publication or sale of the invention prior to the filing of the patent application 4) any other requirement of patent law was not met

Post-grant review

***designed to eliminate invalid patents more promptly Third party (competitor) can petition the PTO to review validity of a patent after issuance (must be within 9 months after issuance) - after 9 months, can see inter partes review, but this requires higher standard of proof - Can also bring a derivation proceeding in which it claims applicant derived or stole invention from original inventor

Term of copyright

***term is life of author plus 70 years Work made for hire or pseudonymous work, term is the lesser of 95 years after first publication or 120 years after creation of work

prospectus

- a selling document with best possible view of the investment AND - a disclosure document (predominantly)

remedies in discrimination cases

- compensation for lost salary and benefits (back pay) - hiring, wage adjustments, promotion, reinstatement, and other injunctive relief - front pay equal to what employee would have received had he not been discharged (usually awarded when reinstatement is inappropriate because position is unavailable or there's hostility) - front pay is limited in duration ***may receive pack pay up to 2 years preceding timely filing of EEOC claim compensatory damages - loss of enjoyment of life - lost future earnings compensate for a lifetime of harm of diminished earnings resulting from reputational harm suffered as a result of discrimination. - can get front pay and damages for lost future earnings - can even get punitive damages as well

Sarbanes-Oxley Act of 2002

- created Public Company Accounting Oversight Board (PCAOB) to regulate and inspect public accounting firms - prohibits the provision of non-audit services to audit clients in all but very limited circumstances - made it illegal to improperly influence auditors - created new, severe criminal penalties for those who defraud shareholders of publicly held corps - auditors have to retain records relevant to financial audits for 7 years after the completion - protection for whistleblowers - increased max fines for securities and mail and wire fraud by tens of millions of dollars & increased imprisonment duration ****also did a bunch of other stuff but there are like 20 things so check page 648 if necessary

best efforts underwriting

- underwriters do not agree to purchase the securities being offered - agree to use their best efforts to find buyers at an agreed-on-price - used for IPOs or for companies that are unseasoned risk is entirely with issuer

Defenses to patent infringement

1) noninfringement of patent 2) invalidity of the patent 3) misuse of the patent 4) innocent infringement

trademarking a color

1) color must have attained secondary meaning so that it identifies and distinguishes a particular brand 2) must not serve a useful function

To recover damages under 10b-5, plaintiff must show...

1) defendant used an instrumentality of interstate commerce or the mails or a facility of a national securities exchange 2) misrepresented or omitted a fact 3) the fact was material 4) the misrepresentation or omission was made with scienter 5) the statement or omission was in connection with the purchase or sale of securities 6) the plaintiff relied on the misrepresentation, or on the assumption that the market price of the stock accurately reflected its value 7) defendant's misrepresentation or omission led to losses suffered by plaintiff

Registration of a securities offering

1) file the registration statement with SEC, which includes filing the prospectus 2) during waiting period between filing of registration statement and date statement becomes effective with the SEC, written and oral offers to sell the security may be made -- but all written offers must either be made pursuant to a prospectus (statutory prospectus) or accompanied by/preceded by a prospectus 3) once statement becomes effective (going effective) sales of securities may be consummated -- but any written offer or sale made within 40 days after going effective must be preceded or accompanied by a statutory prospectus ----- seems fair. provide the investors with info before selling something new to them

Close corporation

1) has elected in its charter to be treated as close corporation 2) has a "small" number of shareholders - no more than 30 Doesn't need to use same formalities as normal corporation

supervisors

1) hold authority to engage an any 1 of 12 supervisory functions (including disciplining) 2) exercise of such authority requires use of "independent judgement" 3) authority is held in the interest of the employer Under Title VII, held as supervisor for purposes of vicarious liability only if he or she is empowered by the employer to take tangible employment actions against the employee Not held personally liable for discrimination under VII, but can be held under other statues

exceptions to statutory bar

1) if original inventor disclosed invention or sold it before filing a patent application - inventor can still get patent as long as they file the app within 1 year of disclosure or sale 2) if person who disclosed or sold it or filed a patent application DERIVED it from original inventor's work - then patent will go to original inventor as long as original inventor files app within 1 year after public disclosure or sale

Obtaining patent protection

4 parts: 1) specifications 2) claims 3) drawings (except in chemical cases) 4) declaration by the inventor

proxy statement

A document containing the information that a company is required by the SEC to provide to shareholders so they can make informed decisions about matters that will be brought up at an annual stockholder meeting.

quid pro quo harassment

A specific, job-related adverse action, such as denial of a promotion, in retaliation for a person's refusal to respond to his or her supervisor's sexual harassment - employer is always vicariously liable under the aided-in-the-agency-relation standard when a supervisor takes a tangible employment action against a subordinate, regardless of whether employer knew or should have known about conduct To establish the defense, employer must prove: 1) it exercised reasonable care to prevent and promptly correct any harassing behavior 2) employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise

hostile environment harassment

A threat of adverse job action in retaliation for rebuffing sexual advances or other stuff that is NOT CARRIED OUT - Must be sufficient offensive conduct to give rise to a pervasively hostile atmosphere - Title VII comes to play before the harassing leads to a nervous breakdown Courts look at 1) frequency and severity of discriminatory conduct 2) whether its physically threatening or humiliating 3) whether it unreasonably interferes with employee's work performance To be actionable under Title VII - Sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment - conduct must be extreme

Dodd-Frank

Added more whistleblower provisions that employers cannot discriminate against employees who provide info to SEC or make disclosures that are lawful - SEC can bring retaliation claim against employer - BUT anti-retalitation provisions do not apply extraterritorially -- to whistleblowers who live outside the US

English-Only Laws

An english-only policy itself, not just its effect, may create or contribute to the hostility of the work environment

investment contract

An investment of money in a common enterprise with profits to come solely from the efforts of others - also counts as a security

intellectual property

Any product or result of a mental process that is given legal protection against unauthorized use - patents - copyrights - trademarks - trade secrets

fraud on the market

Anyone who buys or sells the stock at the market price may be considered to have relied on those misstatements Plaintiffs do not have to show that they read or heard a defendant's misstatement to recover damages Its presumed if investor shows: 1) defendant made a public material misrepresentation that would have caused reasonable investors to misjudge the value of the defendant's stock 2) investor traded shares in an open securities market after misrepresentations were made and before the truth was revealed 3) misrepresentation did in fact have an impact on the market price

Copyright registration

Author is not required to register their work, but people who do get substantial benefits Cannot sue for infringement without registration with Copyright Office Statutory damages and attorney's fees only available if: 1) work was registered prior to infringement at issue OR 2) owner registered the work within 90 days after first publication

Disinterested Decision

Business judgement rule is not applicable if the directors have a financial or other personal interest in the transaction But even if one or more individual directors have an interest in the transaction, board's decision may still be entitled to protection of business judgement rule if the transaction is approved by a majority of the disinterested directors

Causation in Title VII retaliation case

But for the employer's desire to retaliate against the plaintiff, the employer would not have taken any adverse employment action

background checks during hiring

Background checks should not be used in ways that could discriminate based on a protected characteristic Employers may not reject applicants of one ethnicity with certain financial histories or criminal records if applicants of different ethnicities with same histories or records are hired

C corp

Better ability to raise money from venture capitalists

second-step back-end merger

Bidder first acquires more than 50% of shares of a company through a tender offer and replaces target company's board with its own people

Reliability of experts' reports

Board should engage a reputable and independent investment banking firm to 1) prepare a valuation study AND 2) give a written opinion as to the financial fairness of the transaction and of any related purchase of assets or options

Defenses under Title VII

Bona Fide Occupational Qualification (BFOQ) - employer may lawfully hire an individual on basis of religion, sex, or national origin if those characteristics are a bona fide qualification reasonably necessary to the normal operation of that particular business ***NOT available when discriminatory treatment is based on race or color Gender will not qualify when a gender-based restriction is based on 1) assumptions of comparative employment characteristics 2) stereotyped characterizations of the sexes 3) preferences of coworkers

Civil Rights Act of 1991

Caps compensatory and punitive damages for discrimination based on sex or religion: 15-100 employees - $50,000 101-200 employees - $100,000 201-500 employees - $200,000 500+ - $300,000

S corporation

Can avoid double taxation Taxed as a pass-through entity Shareholders pay tax on their pro rata shares of corporation's income Must: 1) have no more than 100 shareholders, all who have to be US citizens 2) only one class of stock 3) domestic 4) timely election to be treated as S corporation 5) can't be financial institution, insurance company, domestic international sales corp

Directors' liability for breach of duty of care vs breach of duty of loyalty

Can be limited for breach of duty of care but Unlimited for breach of duty of loyalty

Americans with Disabilities Act

Can't discriminate in employment on basis of a person's disability Should provide reasonable accommodation to disabled unless accommodation would result in undue hardship on business operations - 15+ employees

RICO & securities fraud claims

Cannot be used as a predicate act in a civil case under RICO unless the defendant has been criminally convicted in connection with the fraud

Property transfers of a C corporation vs partnership or LLC

Cash or any other transfer is a taxable transaction Easier to transfer property to and from partnership or LLC than a C corp or an S corp Property that has appreciated in value can be more easily distributed tax free from partnership or LLC than a corporation

statutory bar

Claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention - makes patent protection unavailable

scheme liability

Claims against third parties that engaged in fraudulent business transactions designed to enable the issuer to mislead investors by artificially inflating its earnings

1934 Act

Continuous disclosure Required to file periodic reports with the SEC Framework established for self-regulation of the securities industry ***basically saying firms have to keep giving info at specified periods

Nonobvious

Courts consider: -scope and content of the prior art - differences between claimed invention and prior art - level of ordinary skill in the art - secondary indicia of nonobviousness Combination of 2 inventions can be non-obvious if there is no prior art suggesting they be combined

Vicarious copyright infringement and Active Inducement to Infringe

Defendant 1) has the right and ability to control infringer's acts AND 2) receives a direct financial benefit from the infringement May also be liable if it actively induces copyright infringement of another Does not require that defendant know of primary infringement ***key here is that they don't necessarily have knowledge

Sexual Orientation and Transgender Harassment

EEOC: Discrimination claims based on gender identity are cognizable under Title VII

NLRB will certify a union if its elected by...

Either 1) major signature drive 2) secret NLRB election, which is held if more than 30% of employees in a bargaining unit sign statements asking for representation by a union ***Once union is certified, both employer and union have duty to bargain collectively in good faith

Retaliation under Title VII

Employee must show: 1) employee's activity was protected by Title VII 2) employer knew of employee's exercise of protected rights 3) employer took some adverse employment action against employee or employee was subjected to harassment by a supervisor 4) there was causal connection between protected activity and adverse employment action Generally filed in conjunction with underlying claim of discrimination Both current and former employees can sue Must only show "a reasonable employee would have found the challenged action materially adverse, which means it might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination'"

Section 219(2) of Restatement (Second) of Agency

Employer is liable for torts of employees not acting within scope of employment IF: 1) Employer intended the conduct 2) employee's high rank makes him or her the employer's alter ego 3) employer was negligent or 4) employee was aided in accomplishing the tort by the existence of the agency relation

Whether or not board must redeem a pill....

Favor keeping the pill in place if: 1) tender offer that is only slightly above the market price of the stock 2) tender offer for less than all of the shares 3) active attempt by board to solicit other offers 4) conscious effort by board to allow its outside directors, deemed more disinterested, to make decisions in this area 5) tender offer is only in its early stages

claiming whistleblower protection under First Amendment

For discharged govt. workers, its usually unsuccessful

LLP

For law firms, accounting firms, etc. Insulates partners from vicarious liability from misconduct of a partner Unlimited liability for own malpractice Advantages: for existing partners - can attain LLP status without significant modification to business' partnership agreement also pass-through taxation treatment

appropriate collective bargaining unit of employees

Group must: share a community of interest - similar compensation, working conditions, supervision, work under same general employer policies

in connection with any purchase or sale of any security

only persons who actually purchase or sell securities can sue under Rule 10b-5

1933 Act

Give investors adequate disclosure of material info about firm issuing securities. Promoters of securities offerings must register them with the SEC - firms can be sued by the SEC (public enforcement) and by private investors DOES NOT protect investors from making highly speculative investments. ***basically saying firms have to give material info

Uniformed Services Employment and Reemployment Rights Act of 1994

Gives employees who served in military at any time the right to be reinstated in employment without loss of benefits and right not to be discharged without cause for one year following such reinstatement - all employers

pierce the corporate veil

Hold the shareholders liable for claims against the corporation Done to prevent the evasion of statues, the perpetration of fraud, or other activities against public policy Done only if the corporation is unable to pay its own debts

References for former employees

If employer's reference is not fair and has impugned former employee's reputation, former employee can sue for defamation - but growing trend towards protection for employers that disclose in good faith info about former employee's performance - Employer giving untrue assessment of former employee may be liable to new employer who relies on recommendation and ALSO to 3rd parties harmed as a foreseeable result of this recommendation

False Claims Act (FCA) - qui tam suit

Individual can receive monetary award in successful whistleblower suit includes provision allowing a private person to file a lawsuit on behalf of govt. to recover damages for FCA violations

Useful

Invention must have a practical or real-world benefit

securities fraud involving a publicly traded company

It's a felony to knowingly execute or attempt to execute a scheme or artifice 1) to defraud any person in connection with any security 2) to obtain, by means of bad things, any money or property in connection with the purchase/sale of any security of a publicly traded company

Jumpstart Our Business Startups Act (JOBS Act)

Made it easier for startups and other small businesses to raise limited amounts of capital from members of the public using the Internet (crowdfunding) - and for emerging growth companies to make an IPO without having to comply with many of the more onerous requirements imposed by 1933 Act, 1934 Act, and SOX

Review and patent issuance

Majority of the time, first patent app is rejected - then applicant contests the rejection or amends application - then they refile app as a continuation application or appeal to the PTO's Board of Appeals -> US Court of Appeals next - examiner and applicant then agree on the precise language of the claims, then it will be issued

utility patents

Most frequently issued patent To be eligible, must be: 1) novel 2) useful 3) nonobvious 4) patentable as to subject matter - a process, machine, manufacture, or composition of matter OR - novel, useful, and nonobvious improvement thereof First to file patent will get the patent If PTO issues patent, owner has EXCLUSIVE right to exclude others from making, using, selling, and importing invention for TWENTY YEARS from date on which application was filed

concerted activity

Must be engaged in with or on the authority of other employees, and not solely by and on behalf of employee himself Must relate to terms and conditions of epmloyment

duty to correct

Must correct when a company makes a statement that was true at the time but becomes misleading in light of later events ***Neither section 10(b) or Rule 10b-5 imposes a duty to correct prior statements, particularly those regarding intent, as long as the statements were true when made

To obtain a permanent injunction

Must demonstrate 1) irreparable injury exists 2) remedies available at law, such as monetary damages, are inadequate 3) an injunction is appropriate given balance of hardships between plaintiff and defendant 4) public interest would not be disserved by a permanent injunction

Forming limited partnerships

Must file a certificate of limited partnerships, clearly designate limited partners as such ***A limited partner's liability is limited UNLESS he or she takes part in the control of a business ***also a limited partner's name cannot appear in the name of the partnership without them incurring unlimited liability

representation elections

NLRB oversees them elections among employees to decide whether they want a union to represent them for collective bargaining Conducting an election process: 1) filing a petition with a regional office of the NLRB

Private sector avoiding at-will

Negotiate a contract that provides for a specific term of employment, how contract can be terminated - severance pay - some level of payment & benefits if employee quits "for good reason"

Personal names

Not distinctive But arbitrary use of a historical name for a savings bank does not require secondary meaning to be protectable

infringement on business method patents

Not infringed unless all claimed infringing activities are performed by the same party

Joint venture

One-time partnership for a specific purpose 1) share a community of interest 2) have mutual right to direct and govern 3) share in profits and losses 4) combine property, money, effort, skill, knowledge not a continuing relationship

trademark infringement

Owner must prove 1) validity of mark 2) priority of usage of the mark 3) a likelihood of confusion in the minds of purchasers of products in question If trademark is not registered, proof is a matter of fact. Establishing likelihood of confusion has a lot of factors

Types of copyright infringement

Party copies, modifies, displays, publicly performs, or distributes a copyrighted work without the owner's permission Plaintiff must show: 1) work in question is substantially similar to protection expression (not just the ideas) 2) alleged infringer had access to the plaintiff's work 3 forms: - direct - contributory - vicarious

Title VII of Civil Rights Act of 1964 (Title VII)

Prohibits discrimination on race, color, religion, national origin, sex, pregnancy, childbirth, or medical conditions - employers with 15 or more employees Claims fall in four main categories: traditional discrimination, harassment, failure to accommodate religious beliefs, and retaliation Two distinct legal theories: disparate treatment and disparate impact

Section 16(c)

Prohibits officers and directors from short selling any of their company's equity securities

family resemblance test

Promissory note is initially presumed to be a security based on the literal language of the securities acts - this can be rebutted by showing the note bears a "strong resemblance" to an enumerated category commonly held not to constitute securities 4 factors 1) motivations that would prompt a reasonable seller and buyer to enter the transaction 2) plan of the distribution of the instrument 3) reasonable expectations of the investing public 4) whether some factor significantly reduces the risk of the instrument

Florida whistleblower statue

Protects employees who 1) object to activities that violate a law 2) have disclosed or threatened to disclose, in writing under oath, to a govt. agency activities that violate a law provided employee has first raised that issue 3) provide info or testify on activities that violate a law

Age Discrimination in Employment Act of 1967 (ADEA)

Protects people 40 or older from discrimination based on age - 20+ employees

Capital Markets Efficiency Act of 1996

Provide more uniformity between federal and state securities regulation.

Electronic Data Gathering, Analysis, and Retrieval (EDGAR)

Provides companies that are required to file documents with the SEC an efficient ant fair way to publicly present those documents

Stop Trading On Congressional Knowledge Acts

Public officials and their tippees can be held liable for trading based on material nonpublic info derived from their position

Vietnam Era Veterans' Readjustment Assistance Acts of 1972 and 1974

Require affirmative action to employ disabled Vietnam-era veterans - Employers holding federal contracts of $10K or more

security

SUPER broad definition any stock, note, treasury stock, security future, security-based swap, bond, ......etc Not a security: Stock in a cooperative association owning an apartment building (because the unit is used as a place of habitation, so inducement to purchase was solely to acquire living space and not to invest for profit)

Principle Antifraud Provisions

Section 11 - registered offerings Section 12(a)(2) - applies only to public offerings not exempt from the 1933 Act's registration requirements Section 10(b) - ALL securities

Controlling Person Liability

Section 20(a) imposes joint and several liability on every person who controls another person who is liable under the 1934 Act unless controlling person acted in good faith and didn't induce the acts constituting the violation

California whistleblower statue

Similar to New York, but does not limit protection to violations of law that create a danger to public health or safety

merit review

State securities commissioner making sure the offering is fair

statue of limitations

Suits under 10(b) must be brought within 2 years after the date the plaintiff discovered the facts of the violation OR within 5 years after violation occurred (whichever is earlier)

Interracial Association

TItle VII protects employees from discrimination based on their association with a person of a different race

IPO

Takes 12-16 weeks

Review procedure

Takes 30 days usually First-time registrants get a more complete review

C Corporation

The standard corporation Doesn't meet requirements for S corporation Pays tax on income generated by the business, then shareholders pay tax on same income when its distributed as dividends

truth on the market

There is no fraud on the market if the market makers were privy to the truth

Disparate impact

Typically class actions brought against large employers, claiming that they systematically excluded women or particular ethnic groups from certain types of jobs Proof of intentional discrimination not necessary Only need proof that an employment practice disproportionately affects a protected group in a negative way Employer must prove that their policy is a business necessity for job performance

Expression vs idea

Underlying ideas in copyrighted work remain freely usable by others

Copyright statutory damages

Up to $30K per infringement or $150K per willful infringement

Benefit Corporation (B Corp)

Uses power of business to solve social and environmental problems No duty to maximize shareholder value Basically just certified as a B corp

poison pill or shareholder rights plan

Would make any takeover not approved by the directors prohibitively expensive - example: Preferred Share Purchase Rights Plan - where every common shareholder would receive a "right" for every common share. The right would be to purchase $200 of common stock of the acquiring company for only $100. ***if these rights were triggered and exercised, they would dilute the value of the stock of the acquiring company

fiduciary out

a clause allowing the board of directors to negotiate with other bidders or to terminate a merger agreement In the past, permissible if 1) stockholders could freely vote for or against existing merger agreement and choose between present merger, subsequent merger, or no merger 2) board agreed to the provision as a way to end an auction for sale of a company after a thorough canvass of the market

Low profit limited liability corporation (L3C)

a for-profit company with a non-profit soul Can distribute its profits to investors while serving a philanthropic purpose

Corporation

a legal entity distinct from its owners - has its own name owned by shareholders board of directors has central decision-making authority Shareholders' liability is limited to investments Can raise significant capital by selling transferable ownership shares Perpetual life

inside director

a member of the board serving as an officer (ex: Lloyd Blankfein)

straight voting

a shareholder can cast one vote for each share the shareholder owns for each nominee Shareholder who controls more than half the voting stock of corporation can effectively elect the entire board

fait accompli

a thing that has already happened or been decided before those affected hear about it, leaving them with no option but to accept -- a bulletproof deal, where minority stockholders weren't forced to vote for the merger but they were required to accept it because it was already decided

remedies for copyright infringement

actual damages and defendant's profits attributable to the infringements If copyright is registered within 3 months of first publication or prior to alleged infringement, can recover statutory damages (capped at $30K for infringement, $150K for willful infringement) as well as attorney's fees sometimes Injunctive relief, seizure of infringing copies, exclusion of infringing copies from import into US Defendant in copyright infringement suit in which copyright owner seeks statutory damages is entitled to jury trial under 7th Amendment

Sarbanes-Oxley Act (SOX)

added whistleblower provisions applicable to non-govt. employees 1) provides criminal penalties for public and private company employers who retaliate against a person who provides truthful info about an offense 2) public companies - prohibits company from discharging/discriminating against employee in terms and conditions of employment because of any lawful act done by employee

General partnership (pass-through entity)

agreement can be express or implied, must share in real profits each partner has some control, each may have authority to bind partnership with respect to third parties Is a separate entity, can acquire property in its own name Advantages: wide variety of operational and profit-sharing arrangements, only one level of tax, not dissolved on partner's death Disadvantages: personal liability

noninfringement

allegedly infringing matter does not fall within the claims of the issued patent - specific language -- which is something the courts decide, not the jury

First Sale (Patent Exhaustion) Doctrine

an authorized sale of a patented article exhausts the patent holder's exclusive rights as that article

noncompete agreement

ancillary to another agreement (such as employment contract) that is designed to protect a company's interests by limiting a former employee's ability to use trade secrets when working for competitor - courts will enforce only reasonable restrictions on competition unreasonableness can be found on: - duration of limitation - geographic extent - scope of activities prohibited - employer's relation to interests being protected

blackout period

any period longer than three consecutive business days during which 50% or more of the participants in a pension fund are prevented from trading - SOX prohibits officers and directors from trading equity securities acquired in connection with their services as officers or directors during any pension fund blackout period

business judgement rule

as long as certain standards are met, a court will presume that the directors have acted in good faith and in the honest belief that the action was taken in the best interest of the company Courts will NOT respect directors' business judgement if the directors: 1) were interested in the transaction 2) did not act in good faith 3) acted in a manner that cannot be attributed to a rational purpose 4) reached their decision by a grossly negligent process

assignment of copyright

author of copyrighted work can transfer ownership

damages for trademark infringement

available only if defendant willfully intended to trade on reputation of famous mark's owner or to cause dilution of famous mark - can recover damages and costs, as well as dilutor's profit injunctive relief flagrant infringement - attorney's fees counterfeit mark - substantial fines and/or imprisonment

implied covenant of good faith and fair dealing related to at-will

bad faith exception Example: preventing employer from terminating employee for purpose of depriving them of compensation earned, but not received, for services performed before dismissal Recovery: generally contract damages

fetal-protection policies

bar a woman from certain jobs unless her inability to bear children was medically documented -- illegal. Violates Title VII

Master Limited Partnership (MLP)

can raise money on public exchanges, doesn't pay income tax at a corporate level (pass-through entity) Avoid corporate taxes, but retain characteristics of a corporation Mutual funds can't invest in them

New York whistleblower statue

cannot take retaliatory action against employee because employee "discloses or threatens to disclose an activity, policy, or practice of employer that is in violation of law"

freeze-out merger

cash merger public shareholders are required to surrender their shares in the disappearing corporation for cash they retain no interest in the surviving corporation

National Labor Relations Act (NLRA)

central statue governing labor relations in most private industries Section 7 grants rights to employees NOT to independent contractors or supervisors

adverse employment action

demotions, reductions in pay, refusals to hire or promote, and other actions that adversely affect individual's employment status or opportunities in a tangible manner - giving unwarranted negative job evaluations - disadvantageous transfers or assignments - depriving employee of support services - cutting off challenging assignments

Specifications

describe invention in best mode and the manner and process of making and using the invention - person skilled in the relevant field could make and use it Best way the inventor knows how to make the invention - must be clear, concise, exact

disparate treatment

employer intentionally discriminated against him or her by denying a benefit or privilege of employment because of race, color, religion, sex, or national origin Employee must first prove prima facie case: 1) he or she is member of protected class of persons 2) he or she was denied a position or benefit that he or she sought, for which he or she was qualified, that was available Employer must present evidence (but not prove) that it had legitimate, nondiscriminatory grounds for its decision Once employer produces evidence, employee must prove that grounds offered by employer were merely a pretext for employer's actions, and that intentional discrimination was real reason

public policy exception

employer is prohibited from discharging employee for a reason that violates public policy Most states consider - statues - constitutional provisions - administrative regulations - professional codes of ethics - common law

respondeat superior

employers are vicariously liable for all torts committed by employees acting within the scope of employment - but when supervisor harasses employee, they are rarely acting within scope of their employment

sole proprietorship

ends on discontinuation of business or death of proprietor Advantages: flexibility, easiest and least costly to set up, only one level of income tax, receives all profits Disadvantages: all of your assets are at risk, can only tap personal funds and borrow money

Officer and Director responsibility for SEC filings

ensure the accuracy and completeness of public company filings with the SEC

Equal Pay Act of 1963

equal pay for equal work without regard to gender - employers with 20 or more employees

offer

every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value ***an offer that is too vague for contract law can still be an offer for federal securities law

sale

every contract of sale or disposition of a security or interest in a security for value -- value here is a very broad term

omission

fact left out of a statement that makes it misleading. - there can be no fraud absent a duty to speak - no comment or silence will not lead to liability if the company has not previously spoken on the subject, and insiders are not trading or tipping -- but must "no comment" on both true and untrue info

defenses to trademark infringement

first sale and fair use doctrines, nominative use, genericity, and first amendment

constructive trust

force the officer to hold the profits for the benefit of the corporation and make them pay over to the corporation on request

Limited Partnership

general partners and limited partners general partners - jointly and severely liable limited partners - no liability for debts beyond contributed capital, no right to management Used to raise capital. More difficult to create than general partnership. Does not come into existence until certificate of limited partnership has been filed

punitive damages under Title VII

only available in cases of intentional discrimination Employee must show employer had "requisite discriminatory mental state"

A general partnership interest is found to be a security if..

it meets any of these three tests: 1) partnership agreement leaves so little power to the partners that the arrangement is tantamount to a limited partnership 2) investor is so inexperienced that they're incapable of intelligently exercising their partnership powers 3) investor is so dependent on unique management ability of promoter/manager that they cannot replace the manager or exercise meaningful partnership powers

copyrights

legal right to prevent others from copying an original expression embodied in any original work of authorship fixed in a tangible medium Owner has exclusive rights to reproduce, distribute, display, publicly perform the work & create derivative works works must be FIXED in a tangible medium Must fall within these categories 1) literary works 2) musical works 3) dramatic works 4) pantomimes and choreographic works 5) pictoral, graphic, and sculptural works 6) motion pictures and other audiovisual works 7) sound recordings NOT names, familiar phrases, government publications, standardized info, facts

deal protection devices

like no-talk provisions Delaware Supreme Court will uphold such provisions as long as they 1) are reasonable 2) are not coercive or preclusive 3) do not impair the board's ability to exercise its fiduciary duties

proxies

limited written powers of attorney entitling the proxy holder to vote the shares owned by the person giving the proxy - key to success in a proxy contest: the merit of the insurgent's arguments, not the size of his or her holdings

termination fees/breakup fees

liquidated damage provisions - what you pay the bidder if the deal fails to close because the target terminates the agreement usually 2-3% of the value of the deal

Direct patent infringement

making, use, or sale of any patented invention within the US during the term of US patent - can be innocent or unintentional

recklessness

may or may not be sufficient for finding scienter

misstatement

misrepresentation of a fact - a prediction about the future can be a misstatement, but only if the person making the prediction does not believe it at the time - if there's no reasonable basis for a prediction, then it is a misstatement

directors duty of loyalty

must act in good faith and subordinate their own interests to those of the corporation and its shareholders

loss causation

must show misstatement or omission CAUSED him or her to suffer economic loss. not enough to show that the price was inflated because of misrepresentation

Geographic terms

nondistinctive unless a secondary meaning has been established

blurring

nonfamous mark reduces strong association with owner of famous mark and its products

biotech

nonhuman, multicellular living organisms are patentable subject matter

novel

not anticipated - not previously known or used by others NOT novel if its an obvious development over existing technology (prior art)

Direct copyright infringement

occurs when copyright alleges the defendant violated at least 1 of the 5 exclusive rights of the copyright holder

free writing prospectus

offers securities but does not meet the statutory requirements for a prospectus (written)

corporate opportunity doctrine

officers and directors may not take personal advantage of a business opportunity that rightfully belongs to the corporation

affiliates

officers, directors, controlling shareholders

contributory patent infringement

one party knowingly sells an item with one specific use that will result in the infringement of another's patent

Patentable subject matter

process machine manufacture composition of matter NO PROTECTION for abstract ideas, mental processes, naturally occurring substances, arrangements of printed matter, scientific principles, laws of nature

misappropriation theory

prohibits anyone from trading or tipping based on material nonpublic information in violation of a duty of trust or confidence owed to the source of the info

Genetic Info Nondescrimination Act of 2008 (GINA)

prohibits employers, group health plans, and health insurers for discriminating based on genetic information - 15+ employees

Section 17(a)

prohibits fraud in connection with the sale of securities --- does not require proof of scienter. --- private parties cannot sue based on it

classic theory of insider trading

prohibits insiders of a firm from trading that firm's securities based on material nonpublic information

Patient Protection and Affordable Care Act (ACA)

prohibits insurance for preexisting conditions; facilitates comparable coverage for mental and physical conditions; and requires most Americans to maintain health insurance - 50+ employees

Civil Rights Act of 1866 (Section 1981)

prohibits racial discrimination of any size in making and enforcement of contracts

Regulation FD (Fair Disclosure)

prohibits the practice of selective disclosure -- issuers of publicly traded securities disclose material nonpublic info to securities analysts or selected institutional investors before making full disclosure of same info to general public

plant patents

protect any distinct and new variety of plant that is asexually reproduced - variety must not exist naturally Right to exclude others from asexually reproducing, using, or selling the plant Obtaining plant patent != securing utility patent for same plant

design patent

protects any novel, original (rather than nonobvious), and ornamental (rather than useful) design for an article of manufacture protects against copying appearance or shape Design dictated by function rather than aesthetic cannot be protected by design (but maybe utility) Duration of 14 years from date of filing

tender offer

public offer to all the shareholders of a target corporation to buy their shares at a stated price, usually higher than market price

cybersquatting

registering famous trademarks as domain names, then offering to sell them to trademark owners for a "ransom"

shelf registration of securities

registration of a number of securities at one time for issuance later - can then be issued over a period of time

blue sky laws

regulates the offering and sale of securities to protect the public from fraud

Public employees

require just cause for discharge

union contracts

require just cause for termination and establish grievance procedures

Employee Retirement Income Security Act (ERISA)

required employers to manage pension funds in a prudent manner to protect employees' retirement benefits and regulated healthcare

Securities Litigation Uniform Standards Act of 1998

requires removal of securities fraud cases from state to federal court

How to meet the Howey test

the investor relies solely on the efforts of others for the expectation of profits must show "vertical commonality" between the promoter and the investor or whether there must be "horizontal commonality" --- multiple investors who pool their funds and receive a pro rata share of the profits, or buy very similar assets that are managed jointly - limited partnership is almost always held to be a security - 35 states and the SEC believe LLC interests are securities

implied employment contracts - exception to at-will

the parties' conduct is sufficient to imply a contract that limits the employer's right to discharge even when there is no written or express oral contract Some factors that could create the implied obligation: 1) has been a long-term employee 2) has never been formally criticized or warned about their conduct 3) has received raises, bonuses, promotions throughout career 4) has been assured that employment would continue if they did a good job or that company did not terminate employees at the same level except for good cause 5) has been assured by management that he or she was doing a good job ***employer may terminate employee suspected of misconduct if, acting in good faith and following an investigation that is "appropriate under circumstances" that employer has "reasonable grounds" for believing employee engaged in misconduct

Section 16(b) -- short-swing trading

the purchase and sale by insiders of equity securities of a public company registered under 1934 act within a 6 month period - cannot be offset by trading losses that were incurred in the same period

syndicate

the underwriting group

10b5-1 plan

think a plan written explaining how a CEO is going to sell off their shares before they sell them off so that they can't be held liable

insider trading

trading by people based on material nonpublic information Illegal only if 1) there is a breach of duty by the person trading to the issuer 2) the person trading is the recipient of a tip OR 3) the person trading or the tipper violated a duty of trust or confidence owed to the source of the nonpublic information

whistleblowing protection

under public policy exception protects employees from discharge for reporting an employer's unlawful or wrongful conduct

firm commitment underwriting

underwriters agree to purchase the entire offering - shifting risk of offering from issuers to the underwriters - underwriters typically buy stock from the issuer at a discount from the public offering price (6-7%) - usually won't do a firm commitment underwriting unless they have tentative offers from buyers for as many as 2-5x the number of shares being offered ***attractive to issuers and investors

Section 8a of NLRB

unfair labor practices - prohibits employers from engaging in specified activities against employees or their unions Prohibits employers for retaliating against a group of employees who complain to management about some aspect of their working conditions

Section 10b-5

unlawful for any person to use a fraudulent, manipulative, or deceptive device in connection with the purchase or sale of a security -- applies to ALL purchases and sales of securities Illegal to: 1) employ any device, scheme, or artifice to defraud 2) make any untrue statement of material fact or to omit to state a material fact 3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit in connection with the purchase or sale of any security ***DOES NOT APPLY EXTRA TERRITORIALLY

nominative use

uses the mark to reference a competitor's product, even if defendant's ultimate goal is to describe its own product

patent litigation

very expensive! Proceed through the regular trial court system (inefficient and horribly expensive)

Revlon mode

what constitutes an event triggering the Revlon duty to maximize shareholder value? Depends if there's a change in control

copyright misuse

when a copyright owner leverages his or her statutory copyright to gain control over areas outside the copyright's intended scope If a court finds misuse, copyright owner cannot enforce its copyright against infringers until misuse has been purged

greenmail

when a raider acquires stock in the target company, then threatens to commence a hostile takeover unless the stock is repurchased by the target at a premium over the price market

duty to update

when a statement, reasonable at the time it is made, becomes misleading to to a subsequent event -- no duty to update if original statement was not material OR when the original statement was not forward looking and does not contain some factual representation that remains "alive" in the minds of investors as a continuing representation -- but there is a duty to update if investors are reasonably relying on the previous statements (ex: update its financial projections when a projection changes)

undercapitalization theory

when corporation is a separate entity, but its deliberate lack of adequate capital allows it to skirt potential liabilities - whether founders should have reasonably anticipated that corporation would be unable to pay debts or liabilities it would incur - whether undercapitalization was an intentional device to avoid responsibility

tarnishment

when famous mark is used in connection with a particular category of goods or goods of inferior quality

Merger doctrine

when idea and its expression are inseparable This kind of expression is not copyrightable

criminal liability for copyright infringement

willful infringers could face criminal penalties as well fines and prison time for people who copy compact discs/software worth over $1000 without permission

trademarks

words or symbols (such as brand names) that identify the source of the goods or services - embody the goodwill of the business, so not legally transferrable without that goodwill - protected for an indefinite time 1) provides an identification symbol for a particular merchant's goods 2) indicates that the goods are from a single source 3) guarantees that all goods are of a constant quality 4) advertises the goods

proxy

written authorization for another to vote on his or her behalf