Business Law Final Exam

Consumer protection, Gabriel v. Albany College, Hamer v. Sidway

Advertisements are an invitation for an offer. _________________ _________________ law: Ads can't be false or deceptive. Commercials can't be false or misleading. Laws protecting consumers from fraud. Note also that, regardless of whether an ad counts as an offer, consumers have protection from deceitful retailers. Almost every state has some form of consumer protection statute, which outlaws false advertising. ____________ ____ __________ ____________ of Pharmacy: Matthew Gabriel was a student in Professor Pumo's immunology class. Professor Pumo's syllabus outlined course requirements and stated that "plagiarism will not be tolerated." instead of reporting everyone for plagiarism, Professor Pumo said she would give students a "free pass" on one copied sentence. But Gabriel's paper contained many plagiarized sen-tences, so he received a failing grade for the assignment. Gabriel sued the professor for breach of contract. He argued that the syllabus was a contract and that the "free pass" policy broke it—because that term was not part of their original agreement. According to Gabriel, since the professor breached the contract, he was no longer obligated to refrain from plagiarizing, and so should not be punished.You Be the Judge:Was the professor's syllabus an offer whose acceptance formed an enforceable contract? Argument for Gabriel: A syllabus is a contract. On the first day of class, the professor presents the syllabus as an offer and students agree by staying in the course. Once she broke her prom-ise, there was no longer a "deal." Students should not be held to her arbitrary rules. Argument for Professor: Professors do not intend to make an offer when they hand out a syllabus—much less be legally bound! The syllabus is merely an announcement that provides general information about course requirements, grading policies, and behavior guidelines. It was not a contract—Professor Pumo had the right to change the class rules, make additional assignments, or even kick Gabriel out at any time. Even if the syllabus were a contract, the phrase "plagiarism will not be tolerated" is too indefinite to be a valid offer. __________ ____ _____________: William Story wanted his nephew to grow up healthy and prosperous. In 1869, he promised the 15-year-old boy (who was also named William Story) $5,000 if the lad would refrain from drinking liquor, using tobacco, swearing, and playing cards or billiards for money until his twenty-first birthday. Uncle congratulated the young man and promised to give him the money but said he would wait a few more years before handing over the cash. The uncle died in 1887 without having paid, and his estate refused to honor the promise. Because the nephew had transferred his rights in the money, it was a man named Hamer who eventually sought to collect from the uncle's estate. The estate argued that since the nephew had given no consideration for the uncle's promise, there was no enforceable contract. The trial court found for the plaintiff, and the uncle's estate appealed. Issue: Did the nephew give consideration for the uncle's promise? The defendant contends that the contract was without consideration to sup-port it, and therefore invalid. Courts will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to anyone. It is enough that something is promised, done, for-borne, or suffered by the party to whom the promise is made as consideration for the promise made to him. It is sufficient that he restricted his lawful freedom of action within certain prescribed limits upon the faith of his uncle's agreement.

Agency, Independent Contractor, Agency Relationship, Lancaster Symphony v. NLRB

Consent-. Agency and Employment: ____________: fundamental relationship between employer and employee. Having someone do something else on your behalf. All agents are workers, not all workers are agents. Master/Servant: ________________ ________________/employee: 1.) Who controls the assignments (The more control someone has over another person, the closer it is to an employee/employer relationship). 2.) Tools and supplies, who supplies this? 3.) Are you paid by the hour, or by the project? 4.) Taxes/benefits, do you get benefits while taxes get taken out of your pay. As an employee you can only work at one company, and can't compete. The _____________ ____________________: Principal: A person who has someone else acting for him. Agent: A person who acts for someone else. To create an agency relationship, there must be: 1) A principal and 2) An agent. 3) Who mutually consent that the agent will act on behalf of the principal and 4) Be subject to the principal's control 5) Thereby creating a fiduciary relationship. To establish consent, the principal must ask the agent to do something, and the agent must agree. Principals are liable for an agent's acts because they exercise control over that person. Agents have a fiduciary duty to their principals. The trustee must act in the best interests of the beneficiary. _________________ _______________ ____ _______________: The orchestra in Lancaster, Pennsylvania hired musicians to play about four classical music concerts each year. They then signed a Musician Agree-ment, which stated that they were independent contractors.The musicians sought to unionize, but only employ-ees, not independent contractors, have the right to join a union. The National Labor Relations Board ruled that the musicians were employees. The symphony disagreed and appealed the decision. Issue: Are the musicians employees or indepen-dent contractors? Argument for the Orchestra: The musicians are inde-pendent contractors because: They are highly skilled and receive little supervision. They are responsible for rehearsing on their own. The musicians provide their own tools—their instruments. They do not work full time for the Orchestra but have other jobs as well. They are paid by the job—for each concert.The musicians do not believe they are employees—they signed a contract stating that they are inde-pendent contractors. Argument for the Musicians:The musicians are employees because: The Orchestra regulates virtually all aspects of the musicians' performance, including their dress and posture. Although the musicians supply their own instru-ments, the Orchestra supplies other crucial tools: music, stands, chairs, and concert hall.• Musicians are in effect paid by the hour because they receive additional pay for each 15 minutes that a rehearsal or concert exceeds two and a half hours.

Failure to Accomodate, EEOC v. Abercrombie

Religion: __________ ____ _________________: Plaintiff notifies employer that they have 1.) a religious practice 2.) that conflicts with 3.) workplace policy. Defendant must offer a reasonable accommodation. Plaintiff must cooperate. Employers must make "reasonable accommodation" for a worker's religion, unless the request would cause undue hardship for the business. ___________ ____ ________________ and Fitch: Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The Look Policy prohibits "caps"--a term the Policy does not define--as too informal for Abercrombie's desired image. Samantha Elauf is a practicing Muslim who, consistent with her understanding of her religion's requirements, wears a headscarf. She applied for a position in an Abercrombie store, and was interviewed by Heather Cooke, the store's assistant manager. Using Abercrombie's ordinary system for evaluating applicants, Cooke gave Elauf a rating that qualified her to be hired; Cooke was concerned, however, that Elauf's head scarf would conflict with the store's Look Policy. Cooke sought the store manager's guidance to clarify whether the headscarf was a forbidden "cap." Cooke turned to Randall Johnson, the district manager. Johnson told Cooke that Elauf's head scarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf. The EEOC sued Abercrombie on Elauf's behalf, claiming that its refusal to hire Elauf violated Title VII. Often referred to as the "disparate treatment". Abercrombie's primary argument is that an applicant cannot show disparate treatment without first showing that an employer has "actual knowledge" of the applicant's need for an accommodation. We disagree. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer's decision. The disparate-treatment provision forbids employers to: (1) "fail . . . to hire" an applicant (2) "because of" (3) "such individual's . . . religion" (which includes his religious practice). Here, of course, Abercrombie (1) failed to hire Elauf. The parties concede that (if Elauf sincerely believes that her religion so requires) Elauf's wearing of a headscarf is (3) a "religious practice." All that remains is whether she was not hired (2) "because of" her religious practice. To prevail in a disparate treatment claim under Title VII, an applicant need only show that his need for an accommodation was a motivating factor in ER's decision, not that ER actually knew of EE's need. Thus, a plaintiff need not plead or prove that the employer wished to avoid making an accommodation or could have done so without undue hardship. If a plaintiff shows that the employer took an adverse employment action because of a religious observance or practice, it is then up to the employer to plead and prove the defense. the Supreme Court held that an employer may not refuse to hire an applicant if the employer was motivated by avoiding the need to accommodate a religious practice. Such behavior violates the prohibition on religious discrimination contained in Title VII of the Civil Rights Act of 1964. Doesn't need to give notice if it's obvious. You can't not hire someone, if you think your going to make a accomodation.

Harassment, Gatter v. IKA

Sexual Harassment: 1. Subject to harassment based on a protected category. __________________ : Unwanted sexual advances, requests for sexual favors, sexual conduct of a verbal or physical nature, when 1. submission is explicitly or implicitly a term of condition of your job, 2. submission or rejection is used as the basis of a decision, or 3. the conduct has the purpose or effect of unreasonably interfering with work performance. 2. Harassment resulted in a tangible employment action or severe and pervasive that it altered terms or conditions of work. Quid Pro Quo: this for that: sleep with me or you're fired. Hostile Work Environment: the conduct has the purpose or effect of unreasonably interfering with work performance. _____________ ____ _______-Works: Courtney Gatter was a sales representative for IKA. The company was owned by the Stiegelmann family, which included René (who worked for the company), and his son, Marcel (who did not). Gatter reported to Refika Bilgic, who was both managing director and René's romantic partner. Gatter was aware of rumors linking René romantically with various female employees. Marcel, who did not have an assigned bedroom, had been sleeping on deck. Once in her room, they kissed and he suggested sexual intercourse, but Gatter rejected his advance. On the final day of the trip, Gatter apologized to Bilgic and René for her affair with Marcel. He gave Gatter an ultimatum: quit working for IKA or break up with Marcel. Gatter agreed to end the relation-ship. Although Marcel and Gatter never met again, they did continue to text. When Bilgic found out, she fired Gatter.Gatter filed suit against IKA alleging sexual harass-ment. IKA filed a motion for summary judgment. Issue: Was Gatter sexually harassed? To prevail, Gatter must show that: 1) she suffered intentional discrimination; 2) the discrimination was severe or pervasive; 3) the discrimination detrimentally affected Gatter; 4) the discrimination would detrimentally affect a reasonable person in like circumstances; and 5) the [employer's] liability. Eventually consensual, it is undisputed that Gatter rejected Marcel's initial sexual advances and a jury could reasonably conclude that a sexual proposition from a part-owner of IKA constitutes intentional sex discrimination. [A] jury could reasonably conclude that Gatter was subjected to sexual harassment sufficiently severe to alter her conditions of employment.Within the first days of that trip, Gatter was proposi-tioned for sex by a part-owner of the company (who she had never previously met), and the trip concluded with her being berated for accepting that proposition by his father who was the president of the company. This scenario rep-resents an intermingling of sex-based discrimination and employment conditions. Indeed, Gatter testified that she felt that she was "damned if I do, damned if I don't". When a hostile work environment claim is based on alleged harassment by a supervisor, an employer's liability is established if the harassment culminates in a tangible employment action. [L]liability for harassment by René can be imputed to IKA because he was the President and part-owner, and undisputedly had authority over all IKA matters. With respect to Marcel, even if he was not acting as a supervisor, a jury could reasonably find that IKA was negligent given that the entire sailing trip happened in the immediate presence of Gatter's direct supervisor and that Marcel, René, and Bilgic were in close communication throughout the trip. IKA's motion for summary judgment shall be denied.

Disparate Treatment, Prima Facie, Disparate Impact, Gulino v. Board,

Title VII: _____________ ___________________: 1.) __________ __________ Case: Treated differently because of your membership in a protected class(Plaintiff burden of proof). The plaintiff presents evidence that:• She belongs to a protected category under Title VII,• She suffered adverse employment action, and• This action occurred under conditions giving rise to an inference of discrimination. If the plaintiff can show these facts, she has made a prima facie case, that is, a case that appears to be true upon first look. 2.) There was a legitimate, non-discriminatory reason for making the decision(Defendant burden of proof). The defendant must present evidence that its decision was based on legitimate, nondis-criminatory reasons. 3.) That reason is a pretext for discrimination(Plaintiff burden of proof, reason is just a cover up for discrimination). To win, the plaintiff must now prove that the employer intentionally discriminated, although this motive can be inferred from differences in treatment. The burden of proof is on the plaintiff. She may prove her case by showing either that (1) the rea-sons the employer offered were simply a pretext or (2) that a discriminatory intent is more likely than not. Title VII: ___________ _______________: applies if the employer has a rule that, on its face, is not discriminatory, but in practice excludes too many people in a protected category. 1.) Prima Facie Case: The plaintiff must present a prima facie case. 1.) Facially neutral policy 2.) Had an adverse impact 3.) On disproportionate % of a protected category(Burden of proof Plaintiff). The plaintiff is not required to prove dis-crimination; he need only show a disparate impact—that the employment practice in question excludes a disproportionate number of people in a protected group. 2.) The policy is job-related(Defendant burden of proof). The defendant must offer some evidence that the employment practice was a job-related business necessity. 3.) That policy is a pretext for discrimination, or there is a less discriminatory way to achieve the same results(Plaintiff burden of proof). To win, the plaintiff must now prove either that the employer's reason is a pretext or that other, less discriminatory, rules would achieve the same results. Note that, unlike disparate treatment, the plaintiff in a disparate impact case, does not have to prove intentional discrimination. _____________ ___ ____________ of Education: A New York State task force on teacher qualifi-cations decided that all teachers needed a basic under-standing of liberal arts and sciences. National Evaluation Systems (NES), a professional test development company, was hired to develop the Liberal Arts and Sciences Test (LAST) to measure this knowledge. Teachers could not be licensed to teach in New York City unless they passed the LAST. Whites succeeded at a higher rate than African-Americans and Latinos. A group of minority teachers filed suit against the Board of Education for the City of New York (Board) alleging that the LAST violated Title VII. Issue:Did the LAST violate Title VII? Teachers could not be licensed to teach in New York City unless they passed the LAST. Whites succeeded at a higher rate than African-Americans and Latinos. A group of minority teachers filed suit against the Board of Education for the City of New York (Board) alleging that the LAST violated Title VII.Issue:Did the LAST violate Title VII? The third requirement is that the content of the exam must be directly related to the content of the job. The fact that the LAST is related generally to the liberal arts and sciences does not prove that the exam is job related; indeed, the liberal arts and sciences is an extremely broad field that encompasses far more than the basic knowledge all teachers need in order to be competent. Consequently, the Court finds that the Board has failed to establish that the LAST is directly related to teachers' jobs. [A court must also] determine whether the exam is scored in a way that usefully selects those applicants who can better perform the job. There is no evidence that the committees were given any guidance as to the definition of "minimally-competent." At the same time, there was no evidence that higher scores on the LAST correlated with better teacher or student performance in the classroom.In conclusion, the Court finds that the LAST is not job related, and the Board violated Title VII by requiring Plain-tiffs to pass the exam in order to receive a teaching license.

Non-Compete, ancillary to the sale of the business, Ancillary to Employment, Non-disclosure, Non-Disparagement

Contracts continued... (7) ___________________ clause: In a " " agreement, an employee promises not to work for a competitor for some time after leaving the company. Is a contract in which one party agrees not to compete with another in a stated type of business. It is never enforceable if not ancillary to a sale of busi-ness or employment. 1.) To be valid, an agreement not to compete must be part of a larger agreement. Suppose Cliff sells his gasoline station to Mina, and the two agree that Cliff will not open a competing gas station within 5 miles anytime during the next two years. Cliff's agreement not to com-pete is ancillary to the sale of his service station. 2.) Sale of a business - When a non-compete agreement is _________________ ____ ______ _______ ___ ______ ____________________, it is enforceable if reasonable in time, geographic area, and scope of activity. In other words, a court will not enforce a non-compete agreement that lasts an unreasonably long time, covers an unfairly large area, or prohibits the seller of the business from doing a type of work that she never had done before. 3.) Employment- Employers have legitimate worries that workers might go to a competitor and take with them significant business or trade secrets and other proprietary information. Some employers, though, place harsh restrictions on their employees simply to prevent them from leaving. ________________ ____ __________________: In the absence of specific state statutes, non-compete agreements are enforceable only if they meet all of the following standards: (1) They are reasonably necessary for the protection of the employer. (2) They provide a reasonable time limit. (3) They have a reasonable geographic limit. (4) They are not harsh or oppressive to the employee. (5) They are not contrary to public policy. It is never enforceable if not ancillary to a sale of busi-ness or employment. (8) _______________________ clause: Agreement that prohibits employees from revealing their employers intellectual property and trade secrets. (9) ______________________ Clause: Agreement that prohibits employees from disparaging any conditions of employment. Forbid employees to speak critically of their former bosses, even if they are expressing honest opinions or the critical statements are true. First amendment doesn't apply when this clause is signed.

Liquidated damages, Limitation of remedies, Integration, Law, Forum, Force Majeure, Severability

Contracts: A legally enforceable agreement. You can reduce risk (getting sued for negligence) to make it more manageable and predictable through contracts. Predictability of what damages will be if someone breaches the contract, and can use insurance companies. Warranty=Contract. Our freedom to contract is a fundamental right. How to limit risk in a Contract, Clauses in a Contract: (1) __________________ ___________________: Agreed upon damages included in a contract. Can only use certain times, like in real estate, and in custom orders. A clause stating in advance how much a party must pay if it breaches. It can be difficult or even impossible to prove how much damage the injured party has suffered. A court will generally enforce a liquidated damages clause if (1) at the time of creating the contract, it was very difficult to estimate actual damages, and (2) the liquidated amount is reasonable. In any other case, the liquidated damage will be considered a mere penalty and will prove unenforceable. (2) __________________ ____ _________________: Limits what you can ask for damages (repair, replacement, refurbished). Remedies are limited. A provision specifying the remedies available to the buyer if the goods are found to be defective or if the contract is otherwise breached. The seller may also limit the buyer's remedy, which means that, even if there is a breach of warranty, the buyer still may have only a very limited chance to recover against the seller. Limitation of remedy clause, by which the parties may limit or exclude the normal remedies permitted under the UCC. (3) ___________________ Clause: Can't be contradictory with oral argument. Anything the party says is irrelevant if it's not in the contract. The point of an integration clause is to prevent either side from later claiming that the two parties had agreed to additional provisions. As a car dealer, with so many salesmen making promises, this can reduce your liability exposure as a company. If no integration clause, oral agreements can be proven/accepted. (4) Choice of ________: Choice of " " provisions determine which state's laws will be used to interpret the con-tract. (5) _____________ selection: Choice of " " provisions determine the state in which any litigation would take place. (One state's courts can apply another state's laws).(6) ___________ ______________: A " " event is a disruptive, unexpected occurrence for which neither party is to blame and that prevents one or both parties from complying with the contract. Force majeure events typically include war, terrorist attack, fire, flood, or general acts of God. Occurence out of your control. Act of god or nature. If these acts happen, both parties are excused from performing until the act of god is over, suspends everything. (6) _____________________: If, for whatever reason, some part of the contract turns out to be unenforceable, a severability provision asks the court simply to delete the offending clause and enforce the rest of the con-tract.

intentional tort, Employment at-will, fire, Roe v. Teletech, public,

Controversy- Are you really within the scope of employment or on a mere detour(company still responsible if you get gas) or frolic(running your personal errands) of your own? Fiduciary duty: legal obligation to put your needs second to someone else in a work context. Liability or liable if Employee commits an _______________ ________ 1) and was motivated by a desire to help the employer. Intentional tort: an intentional harm. Civil only. Ex: Defamation, false imprisonment, assault. Liability for employee if 2) negligent hiring or negligent supervision. Liability if independent contractor and there is 1) negligent hiring or negligent supervision. It's important to distinguish between independent contractors and employees because many laws don't apply to independent contractors. Independent contractors have very little protection under the law. Employment laws: ________________ _______________: fundamental relationship, means that I can be fired for any reason, but I can also leave for any reason. Although there are exceptions to that, including common law exceptions- courts have determined over time that there are certain reasons why it's unfair to _______ someone. Exceptions: You can't fire me for a reason that 1.) Violates public policy(going to serve on a jury, vote) 2.) Can't fire me for refusing to violate the law. 3.) Can't get fired for exercising a legal right or duty(Suing BU for sexual harassment). An Employee at will could be fired for a good reason, a bad reason, or no reason at all. 1.) In essence, the public policy rule prohibits an employer from firing a worker for a reason that violates fundamental social rights, duties, or responsibilities. 2.) As a general rule, employees may not be discharged for refus-ing to break the law. 3.) As a general rule, an employer may not discharge a worker for exercising a legal right if that right supports public policy. 4.) Supporting Societal Values: Courts are sometimes willing to protect employees who do the right thing, even if they violate the boss's orders. But what about what I do at home or off-duty? ______ ____ ________________: The voters of Washington state passed the Medical Use of Marijuana Act (MUMA). Jane Roe suffered from debilitating migraine headaches that caused chronic pain, nausea, and blurred vision. Because other medications were not effective, she obtained a prescription for medical marijuana. It alleviated her symptoms without side effects and allowed Roe to work and care for her children. She ingested mari-juana only in her home.TeleTech Customer Care Mgmt. offered Roe a posi-tion as a customer service representative but required that she first pass a drug test. On the day she started work, TeleTech received notice that Roe had failed the drug test. A week later, it fired her.Roe sued TeleTech for wrongful discharge, alleging that her termination had violated ___________ policy. Issue: Did TeleTech violate public policy when it fired Roe? Was this discharge wrongful? Roe is exactly the sort of person this statute is intended to protect. A ruling in favor of TeleTech would inhibit other people from using medication that citizens voted to make available. Furthermore, the statute specifically states that, "No person ... shall be penalized in any manner, or denied any right or privilege, for such actions." Being fired is a substantial penalty.No one is asking TeleTech to tolerate drug-impaired workers. Argument for TeleTech:Just because medical marijuana is legal in Washington does not mean that it is an important social right. Indeed, employers can fire workers for many legal behaviors, such as smoking, or being disagreeable.The purpose of MUMA is to protect doctors and patients from criminal liability, not to create an unlim-ited right to use medical marijuana. The statute does not explicitly prevent employers from banning its use. This medical marijuana law only protected you if you were arrested and charged with possession.

Americans with Disabilities, record, Adams v. Rice, regarded, Cook vs. RI

Disability: ______________ ________ __________________ Act: Prohibits employers with 15 or more workers from discriminating on the basis of disability. What is a disability? (Plaintiff is disabled). Physical or mental impairment(is assessed without corrective measures), that substantially limits: compared to the average person in the general population. A major life activity. A disabled person is someone with a physical or mental impairment that substantially limits a major life activity or the operation of a major bodily function or someone who is regarded as having such an impairment. Once it is established that a worker is disabled, employers may not discriminate on the basis of disability as long as the worker can, with reasonable accommodation, perform the essential functions of the job. An accommodation is unreasonable if it would create undue hardship for the employer. Three claims: 1. Intentional discrimination 2. Disparate impact: Both disparate treatment and disparate impact claims are valid under the ADA. The steps in a disparate treatment case are:1.The plaintiff must offer prima facie evidence that the employer discriminated because of his disability.2.The employer must then offer a legitimate, nondiscriminatory reason for its action.3.To win, the plaintiff must now prove that the employer intentionally discrimi-nated. She may do so either by showing that (1) the reasons offered were simply a pretext or (2) that a discriminatory intent is more likely than not.To win a disparate impact case, the plaintiff must show that a policy that looks neutral falls more harshly on a protected group and cannot be justified by business necessity. 3. Failure to accommodate. Reasonable Accommodation: To meet this standard, employers are expected to:• Make facilities accessible,• Permit part-time schedules,• Acquire or modify equipment, and• Assign a disabled person to an open position that he can perform. Essential Functions of the Job. Undue Hardship. Or you have a ___________ of having such an impairment. ___________ ____ __________: Appellant Kathy Adams, a candidate for the United States Foreign Service, passed the required entrance examinations and received a medical clearance, only to learn thereafter that she had been diagnosed with stage-one breast cancer. Upon hearing the news, the State Department, expressing concern that many of its overseas posts lack the follow-up care it believed Adams required, revoked her medical clearance, disqualifying her from the Foreign [**2] Service. Adams sued under the Rehabilitation Act of 1973, which prohibits federal agencies from discriminating in employment against disabled individuals--including those with a "record of" a disability. In her complaint, she alleged that her surgical treatment rendered her cancer-free and able to work anywhere in the world without requiring specialized follow-up care. Plaintiff Kathy Adams brings this action under the "Rehabili..." to challenge her rejection for a position with the State Department on the grounds that it was disability discrimination. She doesn't have cancer but has a record of having cancer. They didn't think they had the medical resources in the remote location. It violates the ADA=Rehabilitation act because 1.) Mental or physical impairment limits a major life activity, she was self conscious about sexual relations because of breast surgery. They held her previous record against her. Or you are ________________ as having such an impairment. _______ ___ _____ DMH&R: Bonnie Cook worked at a mental health facility. She left voluntarily multiple times and had a spotless record. When she reapplied the state didn't give her the job because her weight would interfere with her ability to remove patients in the emergency room, or put her at greater risk of injury at her job. Morbid obesity wouldn't allow her to do her job properly. She sued claiming that she was being discriminated against for a handicap. They argued it shouldn't be covered by the law because it was caused by voluntary conduct. She was not protected by the laws because she could just lose weight and get rid of that disability. Eventually given her job back. They made her take a physical examination on her next application, and the doctor said there was no limitations for her to complete her job, your treating me like im disbaled by not hiring me. They said she wasn't born with disability. Lots of disabilities are covered under ADA no matter how you get it, even if brought upon by yourself.

Offer, Consideration, Davis v. Mason, unreasonable

Elements of a Contract 1.) Offer: All contracts begin when a person or a company proposes a deal. Invites definite response 2.) Acceptance: Once a party receives an offer, he must respond to it in a certain way. Clear manifestation of assent. Offer + Acceptance = Agreement. 3.) _____________________: What you are willing to give up to get what you want. There has to be bargaining that leads to an exchange between the parties. Contracts cannot be a one-way street; both sides must receive some measurable benefit. Bargaining really means give up. 4.) Capacity: 18+ and of sound mind. A court determines if you are of a sound mind. 5.) Legality: The contract has to be for a legal or lawful purpose. 6.) Consent: Certain kinds of trickery and force can prevent the formation of a contract. 7.) Writing: While verbal agreements are often contracts, some types of contracts must be in writing to be enforceable. __________ ____ __________ : Mason was a surgeon/apothecary in the English town of Thetford. Davis wished to apprentice himself to Mason. They further agreed that if Davis left Mason's practice, he would not set up a competing establishment within 10 miles of Thetford at any time within 14 years. Davis promised to pay £200 if he violated the agreement not to compete. Davis began working for Mason in July 1789. In August 1791, Mason dismissed Davis, claiming misconduct, although Davis denied it. Davis then established his own practice within 10 miles of Thetford. Mason sued for the £200. He claimed that the agreement should be declared illegal and unenforceable. He argued that 14 years was unreasonably long to restrict him from the town of Thetford and that 10 miles was too great a distance. Saying that it was harmful to the pub-lic health to restrict a doctor from practicing his profession. It was unfair that he should pay £200 because he did not receive anything of that value from Mason. Issue: Was the contract too _____________________ to enforce? Then it was objected that the limits within which the defendant engaged not to practise are unreasonable: but I do not see that they are necessarily unreasonable. Neither are the public likely to be injured by an agreement of this kind, since every other person is at liberty to practise as a surgeon in this town. Judgment for the Plaintiff(Mason).

Workers Compensation, Fair labor standards, Social Security, National Labor Relations, Dalton School and David Brune

Employment at-will, does this include whistleblowing? Not really, unless False Claims Act,- a statute that permits lawsuits against anyone who defrauds the government. SOX- This act protects employees of publicly traded compa-nies who provide evidence of fraud to investigators. Dodd-Frank- Anyone who provides information to the government about violations of securities or commodities laws, Internal Revenue code. Safety Net laws for Workers: _____________ _________________________: 1.) Compensation for when your injured as a result of work. 2.) Employer pays you for injury and lost wages because of injury. 3.)No fault, doesn't matter if the employee is at fault for the injury. 4.) Employee gives up their right to sue the University for the injury. So if the injury is covered by workers compensation you can't sue the university. 5.) Business has workers compensation insurance. _________ _______ __________________ act: 1.) Establishes a minimum wage 2.) Established over time = time + one-half for anything over 44hrs/wk 3.) Prohibits Child Labor 4.) Tipped Industries: -Tip belongs to tipped employees, unless pool. -Wage+ tip= min wage. -Tipped wage in MA: $4.95. -Bill to raise it to regular min wage of $13.95 over the next several years. ____________ ________________ : Pay % of wage tax (paid by employee and employer) goes into the SS Trust fund. Funds elderly, retired and disabled eligible today. Privatization: a % of what would go to SS Fund, you keep and can invest in a limited menu of private investments. This $$ stays with you and you get that $ back. The Social Security sys-tem pays benefits to workers who are retired, disabled, or tempo-rarily unemployed, and to the spouses and children of disabled or deceased workers. A worker who quits voluntarily or is fired for just cause is ineligible for unemployment benefits. _____________ ___________ ________________ Act: Right to organize/form union. Employer must recognize union and bargain in good faith. All employees: Right to engage in concerted activity. NLRA protects all employees (1) who engage in collective activity (2) relating to work conditions and (3) who are not supervisors. The National Labor Relations Board (NLRB), which enforces this statute, has long held that even non-unionized workers cannot be fired for complaining about their jobs, so long as these complaints are shared with other employees and are not inappropriately hostile or violent. ____________ ______________ _________ _____________ _____________: For 12 years, David Brune taught theater and drama at the Dalton School. All these changes required significant time and effort from Brune and other members of the theater department, who had to produce the new version in only three days. Without Brune's knowledge, Sloan gave a copy of this email to Stein, and she summoned Brune to a meeting. He denied having called her dishonest or immoral. Five weeks later, Stein met with Brune again. This time, she showed him a copy of his email and he admitted he had written it. She then fired him, effective at the end of the school year. A month later, she told him he had been fired for lying. Issue: Did Stein violate the NLRA by firing Brune? "employees shall have the right to engage in concerted activities for the purpose of collective bar-gaining or other mutual aid or protection." [T]the activi-ties of a single employee in enlisting the support of fellow employees in mutual aid and protection is con-certed activity. Brune's discharge would not be rendered lawful even if he lied to Stein. The issue in this case is whether the statements made in this email are of such a nature that they forfeit the protection of the Act. Otherwise protected activity remains protected unless found to be so violent or of such serious character as to render the employee unfit for further service.Brune did not forfeit the protection of the Act. He did not make any malicious and/or untrue statements of fact. Brune did not use any obscenities. He did not threaten management; he merely demanded an apology.[Dalton], having discriminatorily discharged an employee, must offer him reinstatement and make him whole for any loss of earnings and other benefits.

Copyright, Infringement, First Sale, Kirtsaeng v. Wiley, Bikram's Yoga v. Evolation

Intellectual Property: All conceptual. Own exclusive right to do with something whatever you want, for a period of time(like copyright). Can give permission to people to use their rights, called licensing. Apple license out all of their intellectual property to other manufacturers. __________________: Tangible expression of an idea, Book of Movie. It's the expression that's protected, not the idea. A copyright gives its creator the exclusive right to reproduce, distribute, and perform his original work for a limited time. But copyright protects the way that ideas are presented, not the ideas themselves. ___________________: Copy of original work; or had access to the original and work is substantially similar. Anyone who uses copyrighted material without permission is violating the Copyright Act. To prove a violation, the plaintiff must present evidence that the work was original and that either:• The infringer actually copied the work or• The infringer had access to the original and the two works are substantially similar. Defenses: _________ __________ Doctrine: If you acquire a book, you can make a copy of it once. Under the first sale doctrine, you have the legal right to sell that textbook. The first sale doctrine permits a person who owns a lawfully made copy of a copyrighted work to sell or otherwise dispose of the copy. ______________ ____ __________ and Sons: John Wiley & Sons, Inc. ("Wiley"), published Eng-lish language textbooks. It sold some of these books abroad through its subsidiary, Wiley Asia, at much lower prices than in the United States. These overseas books included a notice on their inside cover that they were not to be taken into the United States without Wiley's permission.In 1997, Supap Kirtsaeng moved from Thailand to the United States to attend Cornell University as an under-graduate. He asked friends and family back home to buy foreign editions of Wiley's English-language textbooks and mail them to him in the United States. He then sold the books online, reimbursed his family and friends, and kept the profit.Wiley filed suit against Kirtsaeng, claiming that his unauthorized importation and resale of its books was copyright infringement. Furthermore, Wiley argued that the first sale doctrine did not apply because it was limited geographically to products "lawfully made" in the United States. Kirtsaeng responded that the first sale doctrine permitted his actions because his books were "lawfully made" according to the Copyright Act (that is, made with the copyright owner's permission) and that the first sale doctrine was not limited by geography. Issue:Did the first sale doctrine apply to copyrighted works purchased abroad? We must decide whether the words "lawfully made under this title" restrict the scope of §109(a)'s "first sale" doctrine geographically. We consequently conclude that Kirtsaeng's nongeo-graphical reading is the better reading of the Act. We also doubt that Congress would have intended to create the practical copyright-related harms with which a geographical interpretation would threaten ordinary scholarly, artistic, commercial, and consumer activities. ___________ ________ __ ________________: Idea is the sequence of yoga poses. The book is the expression. Bikram Choudhury was a lifelong student of a type of yoga known as Hatha. In the early 1970s, he developed a method of practicing yoga, which he called Bikram. It consisted of a sequence of 26 Hatha yoga asanas, arranged in an order designed to work the muscles optimally (the Sequence). Choudhury's other innovation was to teach the Sequence in a room heated to 105 degrees. Choudhury published and copyrighted a book that included descrip-tions, photographs, and drawings of the Sequence.Many years later, Mark Drost and Zefea Samson, Choudhury's former students, opened Evolation Yoga, a studio offering "hot yoga" classes. Evolation instructors taught the Sequence in a heated room in a manner and order identical to Bikram Yoga.Choudhury sued Evolation Yoga for copyright infringe-ment. He claimed that he deserved the exclusive right to perform the Sequence because he developed it over years of research and had copyrighted the book describ-ing it. The district court granted summary judgment to Evolation, reasoning that the Sequence was an idea that could not be protected under copyright law. Issue:Was the Sequence copyrightable? The Copy-right Act of 1976 excludes protection for any idea, pro-cedure, process, system, method of operation, concept, principle, or discovery. Section 102(b) codifies the "idea/expression dichotomy," under which "every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication." Courts have routinely held that the copyright for a work describing how to perform a process does not extend to the process itself. Recipes contained in a copyrighted cookbook are not entitled to copyright protection. The Sequence is a "system." An essential element of this "system" is the order in which the yoga poses are arranged. Simply put, this attempt is precluded by copyright's idea/expression dichotomy. Consumers would have little reason to buy Choudhury's book if Choudhury held a monopoly on the practice of the very activity he sought to popularize. Rather than stimulat-ing creativity for the general public good, copyright pro-tection for the Sequence would prevent the public from engaging with Choudhury's idea and building upon it.Although there is no cause to dispute the many health, fitness, spiritual, and aesthetic benefits of Bikram Yoga, they do not bring the Sequence into the realm of copy-right protection.

Respondeat Superior, Zankel v. USA, scope,

Liability if Employee: _________________ ______________: Let the master answer, if the employee is doing work on behalf of the company, then the company is responsible for any injury that the employee causes. 1.) It's liability for negligence 2.) Of an employee 3.) If that employee is acting within their scope of employment. Not responsible for independent contractors. An employee is acting within the scope of employment if the act:1) Is one that employees are generally responsible for, 2) Takes place during hours that the employee is generally employed 3) Is part of the principal's business,4) Is similar to the one the principal authorized,5) Is one for which the principal supplied the tools, and 6) Is not seriously criminal. _________ _____ ________: Staff Sergeant William E. Dreyer was a recruiter for the United States Marine Corps, which provided Dreyer a car to drive while on government business. He was not permitted to use this car while commuting to and from home unless he had specific authorization from his boss, Major Michael Sherman, but Sherman was lenient in giv-ing authorization and even permitted his soldiers to obtain permission simply by leaving a message on his voicemail. On the day before the accident, He did not want to call Sherman that late, so he drove his gov-ernment car home without permission. He believed that, had he called, Sherman would have approved. Dreyer arrived home at midnight. He was under orders to attend an early morning training session the next day. So he awoke early and left home at 6:35 a.m. At 6:40 a.m., his car struck and killed 12-year-old Justin Zankel.The child's parents sued the U.S. government, claim-ing that it was liable for Dreyer's actions because he had been acting within the ___________ of his employment at the time of the accident. Issue: Was Dreyer within the scope of employment when he killed Zankel? Is the government liable? Argument for the Zankels: At the time of the accident, Dreyer was driving a government vehicle. Although he had not requested permission to drive the car, if he had done so, permission certainly would have been granted. His activity was of the same general nature as that authorized and it was incidental to the conduct authorized. Driving the car was part of Dreyer's work. Argument for the United States:The government had a clear policy stating that recruiters were not authorized to drive a government car without first requesting permission. Moreover, it is well established that an employee commuting to and from work is not within the scope of employment. (Ex: An employee driving to a meeting hits a pedestrian and the employee is not only responsible, but the company is as well.

Value, exchange, King v. Head Start

The issue of " " in a contract is an important one. Consideration- ___________: As we have seen, an essential part of consideration is that both parties must get something of value. That item of value can be either an "act," a "forbearance," or a promise to do either of these. A party commits an act when she does something she was not legally required to do in the first place. A forbearance is, in essence, the opposite of an act. A person forbears if he agrees not to do something he had a legal right to do. A promise to do (or not do) something in the future counts as consideration. When evaluating whether consideration exists, the promise to mow someone's lawn next week is the equivalent of actually doing the yardwork.(Applies to Hamer v. Sidway). Bargained for ______________: If you do this, I'll do that. The parties must bargain for the consideration. Something is bargained for if it is sought by the promisor and given by the promisee in exchange for their respective promises. Joe made a bad deal, but that does not mean it lacked consideration. Courts do not analyze the economic terms of an exchange to determine whether consideration was adequate. Legality- ________ ___ _________ __________ Family Hair Salons: Kathy King was a single mother supporting a col-lege-age daughter. King was primarily a stylist, though she had also managed one of the Head Start facilities.King quit Head Start and began working as manager of a Sport Clips shop, located in the same mall as the store she just left. Head Start filed suit, claiming that King was violating the noncompetition agreement that she had signed. The agreement prohibited King from working at a competing business within a 2-mile radius of any Head Start facility for 12 months after leaving the company. The trial court issued an injunction enforcing the non-compete. King appealed. Issue: Was the noncompetition agreement valid? Head Start has 30 locations throughout the Jefferson County and Shelby County area, making it virtually impossible for her to find employment in the hair-care industry at a facil-ity that does not violate the terms of the noncompetition agreement. According to King, the geographic restriction constitutes a blanket prohibition on practicing her trade. The non competition agree-ment cannot so burden King that it would result in her impoverishment. Head Start has a valid concern that King would be able to attract many of her former Head Start customers if she is allowed to provide hair-care services unencumbered by any limitations. To prevent an undue burden on King and to afford some protection to Head Start, the trial court should enforce a more reasonable geographic restriction—such as one prohibiting King from providing hair-care services within a 2-mile radius of the location of the Head Start facility at which she was formerly employed.

Quasi, Quantum Meruit, Lund v. Lund

Theories of recovery if there is no contract continued... __________-Contract: Plaintiff gave a benefit to the defendant. Plaintiff reasonably expected to get paid for it. Defendant would be unjustly enriched if they got it for free(it's not fair that the defendant got something and gave nothing). Even when there is no contract, a court may use quasi-contract to compensate a plaintiff who can show that:• The plaintiff gave some benefit to the defendant,• The plaintiff reasonably expected to be paid for the benefit and the defendant knew this, and• The defendant would be unjustly enriched if he did not pay. Plaintiff can get _____________ ___________ (the reasonable value of the service) back. Still no contract. If a court finds all of these elements present, it will generally award the value of the goods or services that the plaintiff has conferred. The damages awarded are called quantum meruit, meaning that the plaintiff gets "as much as he deserves." The court is awarding money that it believes the plaintiff morally ought to have, even though there was no valid contract entitling her to it. _________ ____ __________: Wendell Lund was a dutiful son to his parents, Orville and Betty. For most of his life, he lived and worked on the family farm. He paid half of the real estate taxes and cleared the farm's grassland, which resulted in a 22-acre organic farm. When Orville and Betty divorced, Orville bought out her half and stayed on the farm; Betty moved to Arizona; and Wendell got nothing. But Wendell thought he deserved more. He sued both his parents under a theory of quasi-contract. He argued that over a 20-year period he expended a significant amount of labor and money on the property, that his parents knew he expected an ownership interest in the farm, and that it would be unfair for them to retain the benefits of his work. The lower court disagreed and Wendell appealed, but only against his mother. Issue: Was it unfair for Wendell's mother to reap the benefits of her son's work on the family farm? The essential element in recovering under a theory of unjust enrichment is the receipt of a benefit by the defendant from the plaintiff which would be inequitable to retain without paying for its value. Wendell Lund received reciprocal ben-efits, including a house, meals, and assistance with work. On the record in this case, we agree with the district court's determination that any benefits received by Betty Lund would not be inequitable for her to retain without paying for its value. We conclude the court did not err in denying Wendell Lund's claim for unjust enrichment.

Promissory Estoppel, Harmon v. De Harness Racing

Theories of recovery if there is no contract: The plaintiff cannot claim that the defendant breached a contract, because none ever existed. 1.) _______________ _______________: 1.) Defendant made a promise knowing plaintiff would rely. 2.) Plaintiff reasonably relied on their detriment(suffered a lot) (They relied on the promise). 3.) Only way to avoid injustice is to enforce the promise. You relied on someone's promise, and sacrificed a lot which makes it unfair if they don't go through with this promise. When the plaintiff can show a promise, reason-able reliance, and injustice. ______________ ____ ____ _______________ ________________ Commission: Harmon was arrested for improperly changing a judging sheet to favor a horse. The Commission suspended him without pay pending the outcome of the criminal case. During his suspension, Harmon asked Wayne to find out from the Commission whether it would reinstate him if he was acquitted. The commissioners told Wayne he could relay that message to Harmon. Based on this promise, Harmon decided not to look for other jobs. After some time, the Commission refused to reinstate him as promised. Harmon sued the Commission claiming promissory estoppel. Harmon appealed to the Supreme Court of Delaware. Issue: Was the commissioners' promise to Harmon enforceable? To prevail on a promissory estoppel claim, a plaintiff must establish that: (i) a promise was made; (ii) it was the reasonable expecta-tion of the promisor to induce action or forbearance on the part of the promisee; (iii) the promisee reasonably relied on the promise and took action to his detriment; and (iv) such promise is binding because injustice can be avoided only by enforcement of the promise. (i) In short, there was evidence that the promise was made. (ii) If Wayne's testimony is credited, there is no real dispute about this point. (iii)The third element is that Harmon reasonably relied on the Commission's promise and took action to his det-riment. But for the Commission's promise to reinstate him, [Harmon] would have looked for other work. He was offered several horse training opportunities, but he could not pursue them. (iv) That is another way of saying that it would be unjust not to enforce the Commission's promise because Harmon suffered damages by relying on it. Based on the foregoing, the judgment of the Superior Court is reversed.

Age Discrimination, Reid v. Google, stray remarks

________ _____________________: 40+, Disparate Treatment and Disparate Impact. Under the Age Discrimination in Employment Act (ADEA), an employer with 20 or more workers may not fire, refuse to hire, fail to promote, or otherwise reduce a person's employment opportunities because he is 40 or older. Note that the standard of proof is tougher in an age discrimination case than in Title VII litigation because, under the ADEA, the plaintiff must show that age was not just one factor, it was the deciding factor. __________ _____ _____________: Note that the standard of proof is tougher in an age discrimination case than in Title VII litigation because, under the ADEA, the plaintiff must show that age was not just one factor, it was the deciding factor. During his two years at Google, Reid's only written performance review stated that he had consistently met expectations. According to Reid, even as he received a positive review, Hölzle and other employees made derogatory age-related remarks. Nineteen months after Reid joined Google, he was fired. Google says it was because of his poor performance. Reid alleges he was told it was based on a lack of "cultural fit."Reid sued Google for age discrimination. Issue:Did Reid have enough evidence of age discrimina-tion to warrant a trial? Google contends that the Court of Appeal should have applied the stray remarks doctrine, i.e., should have categorized the alleged statements by Hölzle and Rosing as irrelevant stray remarks and disregarded them in reviewing the merits of the summary judgment motion. [S]trict application of the stray remarks doctrine, as urged by Google, would result in a court's categorical exclusion of evidence even if the evi-dence was relevant. An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination. I should be left to the factfinder to assess its probative value. A stray remark alone may not create a triable issue of age discrimination. But when combined with other evidence, an otherwise stray remark may create an ensemble [that] is sufficient to defeat summary judgment. _________ ________________ doctrine: statements made by non-decision makers, or those made by a decision maker but not related to the decision process do not constitute direct evidence of a bad reason for the employment action.

Family and Medical Leave, Peterson v. Exide, OSHA, Intersectionality, Conduct, Classes,

_________ _______ _______________ Act: Full time for 1 year, and 50+ employees (-40%). 12 weeks unpaid leave. Birth or adoption of child, serious medical condition of immediate family member. Return to substantially similar job, w/ same pay and benefits and seniority. Interference, you feel like your rights under the Family and Medical Leave act have been violated, someone's interfering with your ability to take leave. ______________ ___ ____________ Tech: Over time, Exide Technologies had issued repeated warnings to Robert Peterson for driving forklifts too fast and violating other safety rules. After he was injured in a forklift crash, Peterson took FMLA leave for ten days while he recovered.During the leave period, Exide fired him for "flagrant violations of safety rules." Peterson sued, claiming that the company terminated him in retaliation for exercising his right to take FMLA leave. The lower court granted sum-mary judgment to Exide, and Peterson appealed.Issue:Was Peterson fired in retaliation for claiming FMLA leave? The Plant Manager also based his decision to fire Plaintiff on the "history of careless and unsafe conduct" reflected in Plaintiff s personnel file. Defendant has ade-quately demonstrated a nonretaliatory reason for Plaintiff's termination: his repeated safety violations. Thus, the bur-den shifts back to Plaintiff to show pretext. But even if it was, we see nothing that prevents Defendant from firing employees for minor safety violations. Therefore, the district court properly granted summary judgment. AFFIRMED. MA Paid Leave: 12 weeks paid to care for a new child. Up to 20 weeks for serious illness/injury. How much $? Capped at 64% of state ave. weekly wage ($850 in 2018). Who pays for this? .63% payroll tax can be split 50/50 employer or employees. _____________: Workplace safety laws. Does not give employees a private right to sue(you can't sue a company for a OSHA violation). Enforced by the government. Government inspects and fines businesses for non-compliance. Fines, compliance programs, shut down. Employers must comply with specific health and safety standards. Discrimination: _______________________: Peole are often disadvantaged by multiple sources of oppression: Race, class, gender, sexual orientation, religion, and other identity markers. The Civil Rights Act of 1964: Prohibits discrimination in all facets of public life. 1.) Voting (Title I) 2.) Public accommodation (hotels, movie theaters, stores, restaurants, etc.) (Title II). 3.) Federal funding (Title VI). 4.) Education (Title IX of the Education Amendments of 1972). 5.) Employment (Title VII). It is illegal for employers with 15 or more employees to discriminate on the basis of race, color, religion, sex, or national origin(part of the protected categories). There are four types of illegal activities under this statute: disparate treatment, disparate impact, hostile environment, and retaliation. Title VII: Prohibited _______________ and Protected ________________: 1.) Prohibited Conduct: cannot discriminate in hiring, terms, conditions, or privileges of employment (including retaliation for filing a discrimination claim/participating in an investigation under Title VII). Firing, promoting, placement, wages, benefits and working conditions. 2.) Protected Classes: based on race, gender, national origin, religion, or color. 3.) Covered employees: private and public employers with 15 or more employees, includes former employees.

Void, Voidable, Material, Hess v. Chase,

__________ Contract: never existed, unlawful. A void agreement is one that neither party can enforce, usually because the purpose of the deal is illegal or because one of the parties had no legal authority to make a contract. ________________: 1.) illegal conduct(void) or 2.) fraud/misrepresentation(voidable). Misrepresentation condition of the house to us. Misrepresentation of a contract makes it voidable. It can be voided at the election of the victim of the fraud. 3.) A contract with a minor, or person that lacks capacity then contract is voidable. It puts the burden on people in businesses to know with whom they are doing business. A voidable contract occurs when the law permits one party to terminate the agree-ment. This happens, for example, when an agreement is signed under duress or a party commits fraud. _______________ Fact: Any fact that influences your decision to buy this house. Material Misrepresentation: Makes contract voidable. ___________ ___ ____________ Manhattan Bank, USA, N.A.: Billy Stevens owned a paint company. This illegal dumping saved Stevens the cost of proper disposal. Employees notified the Environmental Protection Agency (EPA). Stevens defaulted on his mortgage to the land. While Chase Manhattan Bank was in the process of foreclosing, it learned that the EPA was investigating the property for contamination. Chase foreclosed and put the property up for sale "as is". Dennis Hess bought the property for $52,000.After Hess bought the land, he discovered the ille-gal waste and sued Chase for failing to disclose the EPA's investigation. The jury awarded Hess $52,000 and Chase appealed. Issue: Did Chase have a duty to disclose to Hess the ongoing investigation? The buyer has a right to rely on the seller to disclose where the undisclosed material information would not be discoverable through ordinary diligence. It is the EPA investigation into hazardous waste dumping on the property that is the material fact that Hess asserts Chase had a duty to disclose, not the pres-ence (or absence) of paint cans. "the property is being sold in AS-IS condition with no express or implied rep-resentations or warranties by the seller or its agents." What Chase misapprehends is that Hess alleges fraud in the inducement to contract, not fraud in the terms of the contract. Chase's duty to speak arose from its superior knowledge prior to the execution of this contract. The presence of a clause disclaiming warranties in a contract does not negate a pre-contractual duty to speak.

Breach of Contract, Carlil v. Carbolic, intended, Baer v. Chase, vague

__________ ____ ______________: Elements- 1.) Valid Contract (creates duty to perform) 2.) Plaintiff performed as required by the Contract. 3.) Defendant failed to perform as required by the contract. Called "breach". Generally must be material. 4.) Plaintiff suffered an economic loss as a result of defendant's breach. When the contractual obligations are performed poorly, or not at all, there is a breach of contract. What is an offer? 1.) Is there an intent to make an offer? __________ ____ _____________ Smoke Ball Co: In the early 1890s, English citizens greatly feared the Russian flu. The Carbolic Smoke Ball Company ran a newspaper ad that contained two key passages:"£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the influenza after having used the ball three times daily for two weeks according to the printed directions supplied with each ball."£1000 is deposited with the Alliance Bank, shewing our sincerity in the matter." Carlill purchased a smoke ball and used it as directed for two months. She then caught the flu. She sued, arguing that because her response to the ad had created a contract with the company, she was entitled to £100.The trial court agreed, awarding Carlill the money. The company appealed. Issues:Did the advertisement amount to an offer? If so, was the offer accepted? We are dealing with an express promise to pay £100 in certain events. We must first consider whether this was ______________ to be a promise at all. The deposit is called by the advertiser as proof of his sincerity in the matter—that is, the sincer-ity of his promise to pay this £100 in the event which he has specified. I say there is the promise, as plain as words can make it.Then it is contended that it is not binding. In the first place, the performance of the conditions is the acceptance of the offer. We, therefore, find here all the elements which are nec-essary to form a binding contract enforceable in point of law. 2.) Are terms reasonably definite? The terms of the offer must also be definite. If they are vague, then even if the offeree agrees to the deal, a court does not have enough information to enforce it and there is no contract. ________ ____ ___________: David Chase was a television writer-producer he became interested in a new program, set in New Jersey, about a "mob boss in therapy," a concept he eventually developed into The Sopranos. Robert Baer was a prosecutor in New Jersey who wanted to write for televi-sion. He submitted a Rockford Files script to Chase, who agreed to meet with Baer. When they met, Baer pitched a different idea, con-cerning "a film or television series about the New Jersey Mafia." He did not realize Chase was already working on such an idea. Later that year, Chase visited New Jersey. Baer arranged meetings for Chase with local detectives and prosecutors. Back in Los Angeles, Chase wrote and sent to Baer a draft of the first Sopranos teleplay. Baer called Chase and commented on the script. The two spoke at least four times that year, and Baer sent Chase a letter about the script. When The Sopranos became a hit television show, Baer sued Chase. He alleged that, on three separate occasions Chase had agreed that, if the program succeeded, Chase would "take care of" Baer, and would "remunerate Baer in a manner commensurate to the true value of his services." The district court dismissed the case, holding that the alleged promises were too ___________ to be enforced. Baer appealed. Issue: Was Chase's promise definite enough to be enforced? New Jersey law deems the price term, that is, the amount of compensation, an essential term of any con-tract. An agreement lacking definiteness of price, however, is not unenforceable if the parties specify a practicable method by which they can determine the amount. How-ever, in the absence of an agreement as to the manner or method of determining compensation the purported agreement is invalid. Baer premises his argument on his view that New Jersey should disregard the well-established requirement of definiteness in its contract law when the subject mat-ter of the contract is an "idea submission." Nothing in the record indicates that the parties agreed on how, how much, where, or for what period Chase would compensate Baer. The parties did not discuss who would determine the "true value" of Baer's services, when the "true value" would be calculated, or what variables would go into such a calculation. There was no discussion or agreement as to the meaning of "success" of The Sopranos.

Bilateral, Unilateral, Express, Implied, DeMasse v. ITT, implied

_______________ Contract: Both parties make promises. A promise made in exchange for another promise. ________________ Contract: Only one party makes a promise and the other side can only accept by performance. One party makes a promise that the other party can accept only by actually doing something. _______________ Contracts: Both parties have clearly stated the important terms of the contract. Some express contracts are oral. ______________ Contract: the words and conduct of the parties make it clear that the parties intended an agreement (Joe cuts the grass every week for a month getting paid when they had not spoken, and cuts grass again and the customer refuses to pay). _______________ __ _______ Corporation: Roger DeMasse and five others were employees-at-will at ITT Corporation. ITT issued an employee handbook, which it revised four times over two decades.The first four editions of the handbook stated that, within each job classification, any layoffs would be made in reverse order of seniority. The fifth handbook made two important changes. First, the document stated that "noth-ing contained herein shall be construed as a guarantee of continued employment. Second, the handbook stated that "ITT reserves the right to amend, modify, or cancel this handbook, as well as any or all of the various policies [or rules] outlined in it". Four years later, ITT notified its hourly employees that layoff guidelines for hourly employees would be based not on seniority, but on ability and performance. About ten days later, the six employees were laid off, though less senior employees kept their jobs. The six employees sued. Issue: Did ITT have the right to unilaterally change the layoff policy? Argument for the workers: ITT chose to include a promise that layoffs would be based on senior-ity. Long-term workers and new employees all understood the promise and relied on it. The company put it there to attract and retain good workers. The policy worked. A textbook definition of an ______________ contract. If one side could simply change the terms of an agreement on its own, what value would any contract have? Argument for ITT: All workers were bound by the terms of whichever handbook was then in place. Instead, we gave everyone four years' notice that things would change. Any workers unhappy with the new policies should have left to find more congenial work. The plaintiffs' position would mean that no company is ever free to change its general work policies and rules.

Negligence, Res ipsa loquitur, Foreseeable

____________________: Failing to act as a reasonable and prudent person, that failure was the cause of an injury. Negligence Elements: 1.) Duty of Due Care: The defendant had a legal responsibility to the plaintiff. To act as a reasonable and prudent person in the same or similar circumstances. Judges draw an imaginary line around the defendant and say that she owes a duty to the people within the circle, but not to those outside it. The test is generally "foreseeability". If the defendant could have foreseen injury to a particular person, she has a duty to him. 2.) Breach of Duty: The defendant failed to act as a reasonable and prudent person in the same or similar circumstances. (You can't look at negligence in hindsight, you have to look at it at the time of the injury). If a legal duty of care exists, then a plaintiff must show that the defendant did not meet it. 3.) Factual Cause:The defendant's breach of duty was the actual cause of the plaintiff's injury. If the defendant's breach led to the ultimate harm, it is the factual cause. ______ _______ ____________ (Woman buys glass bottle of coke, and it explodes before she leaves, so she sues Coke, manufacturer, bottler, distributor, convenience store. During discovery they all say they didn't breach anything. The facts imply that the defendant's negligence caused the accident. If a court uses this doctrine, then the defendant must come forward with evidence establishing that it did not cause the harm. Because res ipsa loquitur dramatically shifts the burden of proof from plaintiff to defendant, it applies only when (1) the defendant had exclusive control of the thing that caused the har,, (2) the harm normally would not have occurred without negligence, and (3) the plaintiff had no role in causing the harm. (It's utilized if you can't pinpoint the breach, or if your unable to show that the resident's breach was the actual cause of the plaintiff's injury. 4) ____________________ harm: (Or proximate cause) The plaintiff's specific injury was foreseeable from the defendant's conduct. For the defendant to be liable, the type of harm must have been reasonably foreseeable. 5) Injury: The plaintiff has an actual injury. (Damages). The plaintiff must persuade the court that he has suffered harm that is genuine, not speculative. If you're liking fear to injury you need to have science to prove.