ACC508 Exam 2

Actions Releasing the Surety and Guarantor

-material mod to the OG terms w/o consent (if prejudicial?) -surrender/impairmt of collateral w/o consent to extent of any loss suffered -pmt/tender of pmt -release of a co-surety releases surety to extent he is damaged

Exemptions in Liquidation Proceedings

-up to 22,975 in equity in debtor's residence and burial plot -int in motor vehicle up to 3,675 -12,260 aggregate value (575 per indiv item) of household goods, furniture, appliances, clothes, books, animals, crops, or musical instruments -int in jewelry up to 1,550 -any other prop up to 1,225 plus unused homestead of 22,975, up to 11,500 -debtors tools, up to 2,300 -a life ins contract owned by debtor -certain ints in accrued divs and int not to exceed 12,250 -professional prescribed health aids -social security and other benefits -right to receive certain personal-injury and other awards up to 22,975 Most states restrict debtors to state exemptions, others allow choice.

Types of Liens

1. Mechanics liens (statutory): provide security for anyone providing labor, materials, or services on real estate (which secures the debt). Must be filed w/in 120 days of last furnishing. Must use foreclosure to enforce w/in 180 days of last furnishing or expire. They get priority from the date of first furnishing (not based on who filed lien first). 2. Artisan's Liens (common law): for repair/improvemt of personal prop. Lienholder must retain possession bc lien terminated if possession voluntarily surrendered. Get priority over other creditor's liens on same prop. Can foreclose on (sell) the prop to satisfy the debt. 3. Judicial: from ct decision. Last 10 yrs. -Writ of attachment occurs when ct orders sheriff to seize non-exempt prop before judgment. Typically only issued if defendant nonres, corp's pres is missing, or state resident is hiding/leaving state. -Writ of execution occurs w/ a ct order to seize/sell debtor's non-exempt real/personal prop to satisfy judgment debt. Redemption is possible anytime before sale.

Problem 35-10

2 black plaintiffs sued producers of bachelor/bachelorette for racial discrim. Claimed shows had never had people of color as leads and producers didn't provide those who auditioned w/ same opps as white people who auditioned. -can they make a prima facie case of disparate-treatmt discrim? Prob could bc people of color who auditioned didn't get same opps as white people who auditioned. -can they est disparate-impact discrim? Probably if never had person of color in lead role, but depends on numbers and races of applicants as well as rqmts to be on shows. -if they did have prima facie case and burden shifted to employer to give legal reason for not hiring, what legit reasons could employer use? Should law req TV producers to hire people of color for leads? If few people of color applied, prob little statistical impact in disparate-impact case. Also may not have met criteria, which could have failed to meet bus necessity. Could say roles are filled on first-apply, first-cast basis. IMO no, but it isn't in the answer key. Prob will be essay on test.

Defenses to Employment Discrimination

4 types: 1. Business necessity: employer must demonstrate job qualification is reasonably necessary to legit conduct of employer's bus. Defense to disparate impact discrim (like needing diploma). 2. BFOQ: employer must show particular skill is necessary for performance of a particular job (never race/national origin). Defense to disparate treatmt discrim. 3. Seniority systems: conditions distr of job benefits on length of time worked for employer. Defense only if bona fide system not designed to evade effects of discrim laws. 4. After-acq'd evidence of employee misconduct: uncovered during process of discovery in prep for defense against lawsuit. Not an absolute defense for employer but may limit damages.

Employee Privacy Rights

>1/2 of employers use electronic monitoring of employees. ECPA bus extension exception allows employer to monitor personal comms if made on employer devices. Courts weigh employer rights against employees' reasonable expectation of privacy. No expectation of privacy if employees are informed of monitoring or employer provides comm system. EPPA (1988) prohibits private employers from req'ing lie-detector tests or using the results in employmt decisions. Exceptions for security service firms, controlled substances, or investigating embezzlemt losses. For drug testing, public employers are limited by 4th amendmt to transportation workers, public safety jobs, or reasonable suspicion. Private employers are governed by state law. NC allows drug testing if certain guidelines followed incl notice of procedures. GINA (2008) prohibits use of genetic testing by employers in hiring, firing, or promotions. Also prohibits health plans and insurers from denying coverage or using results in premium calcs.

Coker Case

AAA contracted w/ 5 star to tow and repair cars. Driver of 5 star truck responded to AAA call and assaulted passenger (Coker) in car w/ knife. Coker sued everyone, and ct said driver was 5 star's employee, who was an indep contractor of AAA, so AAA not liable. Coker appealed. Ct said nope bc 5 star had its own equip and AAA didn't supervise them. 5 star was also own bus who worked for other customers. Guy tried to say providing towing/roadside assistance was the focus of the reg bus of AAA. Ct said nope bc AAA provides other services, etc.

Problem 33-2

ABC hires traveling sales guy and gives him geo area/time sch to solicit orders and service customers. Gets co car. Takes personal car to work one day. Finished appointmt at 11AM, next one at 2PM. Visits old friend on the way, runs late, and hits a tractor in his haste. Tractor driver sues ABC. ABC liab? Prob not a substantial departure from bus (frolic) bc all travel time of a travelling salesperson is usually w/in scope of employmt and he was on his way to appointment at the time of the tort. ABC would be liable.

Asphalt Case

ACS worked on play pad at Catholic school. Project manager Wood contacted Johnson at trucking co to get dump truck to haul material from quarry to job site. While driving dump truck btw job site and quarry, truck struck and injured Perry. Perry sued ACS, saying Johnson was negligent and their employee. Jury agreed w/ Perry, ACS appealed. Ct said Johnson was subj to ACS' control, so ACS was liable for his negligence.

Problem 34-2

Again no answer, so best guess. Denton and Carlo worked for appliance plant. Job req'd them to do maintenance work while standing on wire mesh high up. Other employees had fallen through/been killed before. Didn't want to go on mesh bc fear of harm. Fired. -wrongful discharge? Yes -what law? OSHA -what fed agency/department could help? DOL

Discrimination Based on Age

Age Discrim in Employmt Act (ADEA) protects indivs 40 or older from workplace discrim favoring younger workers and retaliation for complaints. Applies to employers w/ >= 20 employees affecting interstate commerce. Also prohibits mandatory retiremt age unless high level exec or bona-fide occupational qualification (BFOQ). Plaintiff must show discrim was *THE* reason (not a reason) for adverse employmt action in order to shift burden to employer to show an objectively non age factor w/ legit bus purpose. Can't replace older workers w/ younger ones to cut costs if motivated by age bias. State employees aren't covered by ADEA.

Agency Relationships

Agency is most common/important legal relationship where 1 party (agent) agrees to rep another (principal). Fiduciary relationship based on trust/confidence. Employer-employee relationships: Employees dealing w/ 3rd parties are normally agents. Indep contractor may/may not be agents. Determination of status is an issue of control. Consider (parenthesis show answer indicating employee status): -does employer exercise control over work details? (yes) -is worked engaged in occupation distinct from employer? (no) -is the work usually done under employer's supervision? (yes) -does employer provide the tools? (yes) -has the worker been employed a long time? (yes) -is the worker paid at the end? (no) -is there a lot of skill req'd? (no) Employee v. contractor issues cause disputes regarding tort liab. The misclassification also concerns the IRS, since employers have to do a bunch of tax stuff (withholding, ss, etc.) for employees but not indep contractors. Protection of employmt laws also makes the distinction important.

Principal's Liability for Agent's Crimes

Agent is liable for own crimes. Principal isn't liable, even if crime committed w/in scope of employmt, UNLESS: -principal participated in crime -in some states principals may be liable for agent violations of regulations (selling liquor to minors)

Duties of Agents and Principals

Agent's duties to principal: -performance: implied condition to use reasonable diligence/skill. -notification: to principal of all matters concerning subj matter of agency. -loyalty: fiduciary duty to act solely for principal's benefit (no conflict of int), confidentiality, no secret profits unless full disclosure/approval. -obedience: follow all lawful and clearly stated instructions unless emergency or unclear instructions so acted in good faith. -accting: maintain acct of all receipts/disbursemts. Agent must not intermingle principle's funds w/ their own. Principal's duties to agent: -comp (express/implied) -reimbursemt/indemnification -cooperation -safe working conditions

Rights and Remedies of Agents and Principals

Agent's rights and remedies: -right to be comp'd, reimbursed, and indemnified, and to work in safe environmt. -tort/contract remedies but no right to specific performance. -withhold performance and demand an accting. Principal's rights and remedies: -remedies for breach of fiduciary duty and agent's torts. -constructive trust: anything agent obtains during employmt/agency belongs to principal. -indemnification: principal can sue agent where principal liable to 3rd party due to agent's negligence.

Discrimination Based on Disability

Americans w/ Disability Act (ADA) reqs employers w/ >= 15 workers to offer reasonable accommodation to employees/applicants w/ a disability who are otherwise qualified for job, unless undue hardship. Plaintiff must show: -has disability -is otherwise qualified for job and -was excluded from employmt *SOLELY* bc of disability A disability incl physical/mental impairmt that subtantially limits 1+ major life activities, a record of such impairmt, or being regarded as having such impairmt. 2008 amendments broaden to incl corrective devices or meds. Reasonable accommodation incl: -mods to applications/selection process so disabled can compete. -employers are restricted on pre-hiring Qs and physical exams unless for everyone. Current drug users aren't protected by law (only former who completed/are gong through supervised drug rehab). Employers can fire an alcoholic if poses substantial risk. Must be equal access to health care plans for the disabled.

Problem 33-1

Arden was purch agent-employee for coal supply co. Had auth to purch coal. While leaving coal mine, car breaks down. Walks into store for help, encounters guy owning 360 acres w/ mineral rights. He offers to sell it to her for 1,500 per acre. She decides prop has coal, so contracts on behalf of coal supply co to purch. Mgmt is pissed. Before closing, guy and pship learn value of land is at least 15k/acre. Rights of co and guy? No express/implied/apparent auth. Contract unaccepted offer unless co ratifies before guy withdraws. Can only happen if co aware of all material facts. If co confirms before guy withdraws, enforceable. If he withdraws first, unenforceable.

Secured Transactions

Article 9 of UCC governs these in personal prop (incl fixtures and intangibles) to ensure pmt to sellers/lenders. Creditor is concerned w/ ability to possess/sell collateral and have priority over other creditors/buyers. In a security int, debtor and creditor agree that creditor will have security int in collateral of debtor, which secures the loan and ensures creditor has pmt if debtor defaults. To become a secured party, creditor must "attach" a security int in the collateral of the debtor. 3 rqmts to do so: 1. Oral agreemt and possession of collateral OR a written agreemt. When collateral isn't possessed by secured party, security agreemt must be written or authenticated (electronic), reasonably descr collateral, and be signed by debtor. 2. Secured creditor gives debtor value. Creditor gives any consideration that would support a simple contract. If antecedent debt, creditor already gave consideration. 3. Debtor has rights in collateral. Must have some int (not necessarily oship) in collateral, or right to obtain possession. Can be future/current legal ints (like future inv).

Bailey Case

Bailey was an employee of Titlemax. Boss told him no OT, so worked off the clock a lot, or logged less time on instruction of supervisor. Supervisor also changed his records to show fewer hrs. He left Titlemax and sued for unpaid OT under FLSA. Titlemax said he was responsible for the unpaid time bc he never complained abt his boss and violated co policy abt keeping accurate time records. Ct ruled in favor of Titlemax, Bailey appealed. Ct said Bailey worked OT w/o pay and Titlemax knew or should have known abt it. Ruled in favor of Bailey by remanding to trial ct.

Ballard Case

Ballard worked for Chicago Park District. Lived w/ mom, who had heart failure. Ballard was her primary caregiver. Planned fam trip to Vegas. Asked for time off to go w/ mom as caregiver. Park District said no, Ballard went anyway, they fired her. She sued. Ct ruled in Ballard's favor. Park district appealed bc they said it was a recreational trip. Ct ruled in Ballard's favor, saying it didn't matter where the care took place.

29-3 Foreclosure on Mortgages and Liens

Bank loaned 8 M to co to build an apartment complex. Loan was secured by a mortgage. Co hired contractors to do work. Went bankrupt and still owed bank 3 M. Contractors recorded mechanic's liens when they weren't paid. Prop was sold at sheriff's sale for 1.3 M. Contractors claimed their mechanic's liens S/B satisfied out of the 1.3 M before funds were dist to bank for mortgage. Trial ct distr the 1.3 M primarily to the bank, w/ only a small fraction to the contractors. Do the liens come before the mortgage in priority? Would prop allocate pro rata as selling price x (value before improvemts/total value) to bank and rest to contractors.

Reviewing Case

Barton had prop mgmt co. Went on spending spree for surround-sound system, kayak and roof rack, Toyota 4-runner, and 6 MAC comps. All under installmt sales contracts. 6 mos later, his bus was failing, couldn't make pms on anything, defaulted. Would need financing stmt to perfect comps. If contract for comps only mentioned the name of the co, not specific enough for financing stmt. All of these would be a PMSI but comps. If surround-sound system was repo'd, co could keep.

Default

Basic remedies (cumulative): -repo of collateral: self-help remedy if done peacefully. Can retain or sell collateral. -judicial remedies: creditor can give up sec int and sue to get judgment, then execute/levy. Disposition of collateral: -retention by secured party: can retain unless consumer goods and buyer has paid 60% of price, then must sell/dispose of w/in 90 days (9-620). -generally, seller must give timely notice of retention to debtor, and in non-consumer goods, anyone who notifies seller of claim to collateral and any junior lienholder. If w/in 20 days of notice, secured party gets objection, must sell collateral. Can dispose of in public or private sale, as long as commercially reasonable after written notice. If not, deficiency may be reduced by ct. Secured party can purch the collateral at public sale. Disposition of cash proceeds can be from reasonable exps incurred by secured party, balance of debt owed to them, junior lienholders, and surplus to debtor. Deficiency judgment is diff btw sale proceeds and what's actually owed by debtor. Debtor liable to creditor for this amt. Under redemption rights, debtor or other secured party can retake/maintain the collateral before disposition upon full pmt.

Bauer Case

Bauer tried to join FBI as special agent. Failed physical fitness test, passed once. Went to academy, failed 5 more times bc he couldn't reach male std of push-ups. Resigned, got job w/ FBI later. Sued attorney general bc said diff gender-based physical fitness stds were discrim. District ct agreed, attorney general appealed. Ct said not discrim bc men/women have physiological fitness so was testing same level of fitness btw them even though rqmts were diff. Case remanded.

HSBC Case

Brandwine borrowed 15.9 M from HSBC. Brian O'Neill signed a guaranty as "primary obligor" for 8.1 M of the loan. Brandywine defaulted, HSBC sued O'Neill, he alleged fraud in counterclaim. He based his fraud on 2 provisions in the loan agreemt: -loan-to-value ratio valued prop at 26.2 M and wasn't real value. Made him think little/no chance they'd need his $. -HSBC could recover loan by selling prop if Brandywine defaulted (he thought they should sell before trying to collect from him). Ct dismissed O'Neill, ruled in favor of HSBC. O'Neill appealed and said they fraudulently induced him to sign the guaranty. Ct ruled in favor of HSBC again, bc reliance on misreps contradicting the terms of an agreemt isn't a reasonable matter of law and can't support an inducemt claim.

Problem 35-3

Burlington coat factory had a dress code requiring male sales clerks to wear bus attire and females to wear smocks. Female employees refused to wear smocks and came to work in bus attire. Were suspended and eventually fired for violating dress code. All other conditions of employmt were the same btw male/female employees. Dress come discrim? Yes! Gender-based discrim. Made women seem to have lower professional status than men. Perpetuated sexual stereotypes of inferiority.

Mortgages

Called deeds of trust in NC. Written instrument giving the creditor (mortgagee) an int in/lien on the debtor's real prop as security for the debt's pmt. If fixed-rate: std mortgage w/ a fixed IR and fixed pmts for the life of the loan. If adjustable-rate mortgage (ARM): rate of int changes periodically as do pmts. Record the mortgage in the county register of deeds (public record). For creditor protection, they req mortgage ins if down pmt < 20%. Incl contract provisions (prepmt penalty, maintain homeowner's ins, pay taxes, define default). If homeowner doesn't make pmts, lender can foreclose.

Mortgage Foreclosure

Can avoid by: -deed in lieu of foreclosure: give them the prop. -workout agreemt (modification) -short sale: sell prop for less than the bal of the mortgage loan. Lender has approval rights, buyer has to show hardship. If foreclosure happens, buyer has redemption rights, so can pay full amt and exercise his equitable right of redemption before foreclosure. Statutory right of redemption after foreclosure exists too (10 days in NC), which means buyer could upset the bid after sale.

Termination of an Agency

Can be terminated by an act of the parties or by op of law. Once terminated, agent has no actual auth to bind principal, but may have apparent auth to bind principal so proper notice must be given (actual if dealt w/ agent directly v constructive if havent). Term by act of parties incl: -lapse of time/reasonable time -purpose achieved -occurrence of specific event -mutual agreemt -term by one party (power isn't the same as right here) -notice of term (actual or constructive depends on 3rd party dealings w/ agent) Term by op of law (auto so no duty of notice) incl: -death/insanity of principal or agent -impossibility (subj matter destroyed) -changed circumstances -bankruptcy of either principal or agent -war

Discharge

Certain claims aren't dischargeable in bankruptcy: -2 yr back taxes -claims against debtor from fraud -claims by creditors not notified of bankruptcy -domestic support obligations, student loans, retiremt acct loans, consumer before > 650 for luxury goods w/in 90 days of order for relief, cash advance on open-end consumer credit w/in 70 days. Ct may deny discharge based on debtor's conduct (concealmt, failure to do education class), but assets are still distr'd. Discharge voids or sets aside any judgmt and prohibits collector action. Will be revoked w/in 1 yr if debtor acted fraudulently/dishonestly during proceedings. A reaffirmation of debt occurs when the debtor agrees to pay a debt dischargeable in bankruptcy by executing a reaffirmation agreemt. Reaffirmation process and disclosures must occur before discharge and generally req ct approval.

Reorganizations

Ch 11- mostly corps. Debtor/creditors make plan where debtor pays a portion of debts and is discharged of rest while bus continues. Sim ch 7. There's a fast tract ch 11 for small bus debtors whose liabs don't exceed 2.49 M and who don't own/manage real estate. Debtor in Possession (DIP) is where bus is operated by debtor under ct supervision or ct may appoint trustee (receiver) w/ strong arm powers to op bus. Reorg plan must be fair/equitable to all parties and be accepted by each class of creditors, but ct can confirm over objection of some creditors (cram down provision).

Bankruptcy Relief Under Chapter 13 and Chapter 12

Ch 13: indivs' repmt plans (adjustmt of debts of indiv w/ reg inc). For indivs w/ reg inc who owe fixed unsecured debts < 383,175 or fixed secured debts of <1,149,525. Initiated only by voluntary petition or ct conversion of ch 7 based on subst abuse. Repmt plan: -turn over future earnings necessary to execute plan to trustee -full pmt through deferred cash pmts of all priority claims (like taxes) -identical treatment of all claims w/in a class -use means test to determine disposable inc Ct holds hearing and must confirm plan. Can be for 3-5 yrs depending on inc, debts, etc. Ct can convert to ch 7 if timely pmts not made by debtor. Generally all debts covered by the plan are dischargeable except: -claims for domestic-support obligations -debts related to injury/prop damage caused by DWI or drugs -allowed claims not provided for by plan -certain LT debts provided by plan -certain tax claims/pmts on retiremt accts Ch 12: family farmers and fishermen w/ certain limited amts of debt. -fam farmer has 50% of gross inc from farming and 80% of debts are farm related. -fam fisherman has 50% of gross inc dependent on commercial finishing ops.

Lundberg Case

Church owned horse breeding farm managed by Bagley. Ads for breedings rights to Church's horse directed inquiries to Bagley. The Lundbergs contacted Bagley and executed preprinted contract giving them breeding rights to the horse subj to Church's approval of their horses. Bagley wrote in a guarantee of 6 live foals w/in 1st 2 yrs. Only 1 live foal and Church moved horse away. Lundburgs sued him for breach of contract by moving horse. He said Bagley couldn't sign contracts for him or change/add terms. Jury ruled in favor or Lundbergs, Church appealed. Ct said Bagley had apparent auth bc he was in the approved ad, had a signature line on contracts, etc. Ruled in favor of Lundbergs.

Affirmative Action

Constitutionality of affirmative action programs to alleviate effects of past discrim by giving preferential treatmt: -may violate 14th amendmt (equal protection). -constitutional only if it attempts to remedy past discrim and doesn't use quotas or preferences. Generally admissions programs at schools that auto award minority students extra points is unconstitutional. Still permissible to use race as a factor.

Involuntary Bankruptcy

Creditors force debtor into bankruptcy. If 12 or more creditors, need 3 or more w/ unsecured claims totaling at least $15,325 to join in petition. If < 12 creditors, one or more with $15,325 debt may file. Debtor can challenge this, but ct will grant order for relief if either: -debtor isn't paying debts as they come due OR -debtor was in receivership w/in 120 days before filing the petition. If the ct dismisses involuntary petition, creditors may be req'd to pay fees/costs and possibly punitive damages as a penalty for a frivolous petition.

Creditors' Composition Agreements

Creditors take less than owed on a liquidated debt. Binding on those who agree bc consideration is given by each depending on one another.

Cummings Case

Cummings filed for ch 7. Filed 2 amended versions of req'd schedules and trustee asked for more time to investigate, which ct granted. They then filed 3rd amended schedule, which disclosed existence of their co for "fresh start" after bankruptcy. Trustee said failure to disclosure their int in the co was lies. Ct agreed and denied discharge, they appealed. Ct said fact that they eventually disclosed co didn't negate initial fraud.

Wage, Hours, and Layoffs

Davis-Bacon Act (prevailing wage for contractors) and Walsh-Healey Act (min wage for employees) both involve contracts w/ US govt. Fair Labor Stds Act (FLSA) of 1938 extends wage/hr regulation to workers engaged in/producing goods for interstate commerce. Prohibits oppressive child labor, incl restrictions on hrs worked. If under 14, can only do certain types of work. If under 18, no hazardous jobs. Ethics Q: smoking breaks. Not protected, can choose not to hire someone who is a smoker. 2016 min wage $7.25/hr in covered industries. Exemptions allow lower spec'd amts for disabled workers, full-time students, student-learners (high school vocation course), youth under age 20 (first 90 days) if employer gets certificate from wage and hr division of DOL. $2.13 if employee gets tips. State min wage trumps fed. Under FLSA, workers working over 40 hrs/week get 1.5x hrly pay as OT for those hrs. Threshold was around 23k, now around 50k. Exemptions incl certain employees- exec/professional w/ salary, mgmt, discretion. Layoffs (plant closings/mass layoffs) covered by Worker Adjustment and Retraining Notification (WARN) Act. Applies to employers w/ >= 100 full-time employees. Req 60 days notice before mass layoff, meaning: -plant closing: 50 full-time employees at 1 job site -mass layoff: >33% of workforce at 1 job site. Must notify workers and local/state officials. If violate, owe fines and back pay to employees. State laws could also req layoff notices (not NC).

Problem 33-11

Dean bros own/op steel drum mfg plant. Plant superintendent hired security co to guard the prop. He knew some security guards were armed. Sidell, a security guard, wasn't certified as armed but had his gun w/ him. While working, shot Gaines thinking he was an intruder. He died and his mom sued saying he died bc of security co's negligence, for which dean bros was responsible. -Argument for Dean's responsibility: security co's work creates risk of harm to others, so harm caused by lack of reasonable preventative care. Also not casual type of risk. -Dean's best defense: hiring armed guard doesn't create a peculiar risk and isn't inherently dangerous work. Security co indep contractor so Dean not liable.

Perfection of a Security Interest

Debtors often put the same prop up as collateral to multiple creditors. Generally, 1st creditor to perfect security int gets the collateral. Most common method of perfection is filing financing stmt w/ the sec of state office (county if fixtures). UCC form must contain debtor's name/address, name of secured party, and descr collateral. UCC form doesn't req debtor's signature. Must use real debtor name, no "doing bus as." The financing stmt may be filed before attachment. Security agreemt can be filed to perfect if it contains req'd info. Security agreemt descr must be more precise than financing stmt. Filings by debtor name are public record. Changes in the debtor's name are effective for 4 mos before req'd to file amendmt. Any improper filing renders secured party's int unperfected, creates an unsecured int in bankruptcy. Financing stmt is effective for 5 yrs. If continuation stmt is filed w/in 6 mos before expiration, OG stmt is extended 5 more yrs. 2 types of perfection w/o filing financing stmt: 1. when collateral is transferred into possession of secured party (pledge); no writing req'd. 2. auto perfection on attachment: most common is purch money security int (PMSI) in consumer goods for personal/fam/household use. Credit from seller/lender for purch perfected automatically at time of sale when created. Exceptions to auto perfection incl: -certain types of security ints subj to fed/state laws (car titles) -PMSI's in non-consumer goods (bus inv or livestock)

Title VII of the Civil Rights Act of 1964; Constructive Discharge

Employee leaves job voluntarily bc employer causes working conditions to be so intolerable that a reasonable person would feel compelled to quit. Must prove employer's illegal discrim caused intolerable working conditions and employer knew or had reason to know of conditions but didn't correct. Resignation must be a foreseeable result.

Harassment by Co-Workers

Employer generally only liable if knew/should have known and failed to take action (notice to supervisor is sufficient under agency law). Could be liable for harassment by non-employees if employer knew abt it and failed to take corrective action.

More Income Security

Employer-Sponsored Group Health Care Plans: HIPAA (health ins portability and accountability act) (1996) applies to health plans/health care providers. Doesn't req health ins but does est rqmts for health plans. Safeguards to protect privacy of personal health info and restrict use/disclosure w/o patient auth. Affordable Care Act (ACA): Employers w/ >50 employees req'd to offer health ins benefits w/ certain affordability rules and possible 35% tax credits to offset costs. Can be fined <=2k per employee only if employee receives subsidized mktplace coverage. Smaller bus may get tax credit for providing coverage.

Family and Medical Leave Act of 1993

FMLA reqs employers w/ >50 employees to provide up to 12 weeks unpaid fam/med leave for newborn or adopted child or a spouse/child/parent w/ serious med condition or situation w/ active duty military member. Prior work rqmts to be eligible are 1250 hrs in the last 12 mos. The employer must continue worker's health care on same terms, and employee must be reinstated to OG or comparable position on return to work unless key employee (top 10% pay), if subst economic hardship applies. Violations provide damages, job reinstatemt, and promotion if denied. State law supplements fed act.

Title VII of the Civil Rights Act of 1964; Protected Classes, Disparate-impact, and Disparate-treatment Discrimination

Fed laws prohibit employmt discrim against members of protected classes. Title VII prohibits discrim on basis of race, sec, color, religion, and national origin at any stage of employmt. Sex now incl pregnancy. Applies to employers involved w/ interstate commerce w/ 15+ employees. Equal employmt opportunity commission (EEOC) monitors compliance w/ title VII. Employee must file claim w/ EEOC before lawsuit. Limits on class actions like in Walmart case w/ women who weren't considered part of a class. Title VII prohibits intentional/unintentional discrim. Disparate-treatmt discrim: intentional. Elements of proof to est prima facie case: -plaintiff in protected class -applied, qualified for job -rejected by employer and -employer sought other applicants/filled job w/ person not in protected class Once prima facie case proved, burden of proof shifts to employer to present defense of other valid reason for action. Plaintiff must show merely pretext so employer still motivated by discrim Disparate-impact discrim: unintentional. Happens when protected group is adversely affected by employer's practices/procs/tests, even though they don't appear discrim. Plaintiff must show practice is statistically discrim in effect (neutral policies/practices have disprop averse affect on members of protected class). 2 ways to prove this: -pool of applicants test: plaintiff shows % of protected class in employer's workforce doesn't reflect % in local labor mkt that are qualified due to some practice/proc/test of employer. -rate of hiring: plaintiff compares selection rates of members of protected class w/ nonmembers in employer's workforce. According to EEOC, selection rate <80% may show disparate impact. These shift burden to employer to explain.

Employment at Will

Fed/state statutes displace many common law doctrines. Employmt relationships have historically been governed by the common law doctrine of employmt at will. Either party may terminate at any time for any reason *unless* contract provides to the contrary. Exceptions: -contract theory: is there an implied employmt agreemt? Oral promises from employer? Employees reasonable expectations based on terms in employee handbook, written personnel policies, and/or implied covenant of good faith. -tort theory: wrongful/abuse discharge (fraud). Based on things like discrim. -public policy: whistleblower claims. Can't retaliate.

Harassment by Supervisors

For employer to be liable, supervisor must have taken tangible employmt action against employee (firing, refused promotion, demotion). There were cases where employer can be liable for supervisor acts even if unaware (failure to give notice and complaint process) and can be liable even if employee didn't suffer adverse job consequences. These cases established affirmative defense for employer where they weren't liable for supervisor's harassmt. This was called Ellerth/Faragher affirmative defense. 2 elements: 1. employer must have taken reasonable care to prevent/prompty correct any sexual harassmt AND 2. plaintiff-employee must have unreasonably failed to take adv of preventative/corrective opps to avoid harm. Employers can't retaliate w/ tangible employmt actions against employees that complain about sexual harassmt or other title VII violations.

Principal's Liability for Independent Contractor's Torts

Generally, employer isn't liable for acts of indep contractors bc employer has no right to control. Exceptions incl strict liab for unusually hazardous activities, transport of highly volatile chemicals, or use of poisonous gases.

Problem 32-1

Gett is a well known fin expert. His friend tells Brown he is Gett's agent to buy rare coins. Brown contracts w/ friend to sell a coin valued at 25k to Gett. Friend takes the coin and disappears. Brown tries to get $$$ from Gett, but Gett says friend was never his agent. Was there agency? Nope, not agency by estoppel bc principal didn't cause 3rd party to believe another person was their agent. Acts of agent don't create agency by estoppel.

The Bankruptcy Code

Goals of fed bankruptcy law (2005 bankruptcy reform act) were to protect debtors w/ a fresh start and ensure equitable treatmt of all creditors. There are bankruptcy cts/judges. Filing bankruptcy doesn't req insolvency, whether voluntary or not. Types: -ch 7: liquidation. Sell all nonexempt assets and distr proceeds to creditors. -ch 11: recorgs. Usually corp where keep bus going and pay creditors over time. -ch 12: adjustmt of debts of fam farmers and fishermen w/ reg incomes. -ch 13: adjustmt of debts of indivs w/ reg incomes usually allowing them to pay debts over time (3-5 yrs). Special rqmts for consumer-debtors: -debtors whose debt comes primarily from purch of goods for personal/fam/household use. -clerk of bankruptcy ct must give special notice abt credit counseling and purpose, benefits, and costs of each ch.

Problem 31-2

Guy entered voluntary bankruptcy. 3 major claims against him; by friend who had note for 2,500, by employee who had back wages of 4,500, and by bank w/ 5k unsecured loan. Acctant owed 500 and prop taxes of 1k owed to country. His nonexempt prop was liquidated w/ 5k proceeds. Dist in order: -500 to acctant -2k for back wages (lim to 2k per claimant) -1k taxes -10k to general creditors. Since only 1,500 remaining for gen creditors, allocate pro rata.

Immigration Law

IRCA (1986) makes it illegal to hire someone not auth to work in US (citizen or work visa). I-9 employmt verification req'd for new hires and kept on file. Worker must provide documentation of legal employability (deported if false). ICE enforces law w/ compliance audits that don't req warrants or subpoenas. Penalties are fines that incr w/ multiple violations. Pattern of violations could mean jail. The immigration act (1990) allows limited hiring of foreign workers due to shortage of domestic workers. Places caps on no of visas that can be issued annually. Employer has to petition to hire worker w/ visa for specific job, generally special skills or professionals. Businesses may hire a worker w/ I-551 alien registration receipts (green card) for lawful perm res. Must show necessity for hiring foreign worker to perm full-time position. H1-B visa program allows US cos to hire limited no of highly qualified specialty occupation foreign workers (high-tech) for 3-6 yrs. Shortage is causing job outsourcing. Employer must file notice promising commensurate wages. Other types of temp visas for diff employee categories are H-2, O, L, and E. State immigration legislation exists for illegal immigrants. Arizona has show me your papers statute that was upheld by US sup ct over preemption challenge, but case set some limits on enactment of state immigration laws.

Problem 34-4

LL worked for bioscience co, Mark was her boss. He told her to call competitors and pretend to be potential customer to get pricing info, etc. She said no bc she thought it was illegal. Legal department recommended against it, but Mark asked her to do it again and wrote poor performance reviews bc she couldn't get the info when she called and ID'd herself as an employee of the co. She was fired on his recommendation. Wrongful discharge? Yes, illegal acts requested.

Problem 31-4

Lady leased Chevy impala. Filed for bankruptcy. Ct notified car place abt bankruptcy and auto stay. Car place repo'd car anyway. Attorney reminded them abt auto stay, but they didn't give car back. She had emotional distress, lost wages, attorney's fees, and car rental expenses bc of lost car. She can recover bc the place willfully violated the auto stay.

Problem 31-10

Lady took out student loans. After grad, irregularly employed as a teacher before filing for ch 13. Ct confirmed 5 yr plan where she was req'd to give disposable inc to student loans. < 1 yr later, laid off and owed >100k in loans. Asked ct to discharge bc undue hardship. -normal discharge under ch 13? Not until complete pmts under 3-5 yr repmt plan. -undue hardship allows exception? Student loans exempted from discharge unless undue hardship. -goals of bankruptcy law and argue to support her. Protect debtor w/ fresh start, so no fresh start if don't come out debt-free. Prob couldn't get discharge until end of plan, and even then only w/ undue hardship bc student loans. She's basically committing to pmt plan w/o guarantee loans will be discharged after, so ct might agree to discharge after repmt plan.

Reviewing Case Ch 31

Lady's husband died of cancer. Left her w/ >50k med bills and 2 kids to support. She was a librarian earning 1,500 per month and 2,600 in SS benefits (4,100 total monthly inc). After mortgage pmt of 1,500 and paying amts due on other debts, she had barely enough to buy groceries. Files for ch 7. He didn't provide answers. She must take a class before filing. Her inc W/B compared to median fam inc in her area and if less, no presumption of abuse. If more, further calcs. If she had ability to pay some bills, convert to ch 13.

Liability for Contracts

Liab for contracts depends on how principal is classified and whether agent's acts were authorized. When agent acts w/in scope of auth, principal is obligated regardless, but agent liab depends if principal disclosed. Principal C/B: -disclosed: identity known to 3rd party. -partially disclosed: 3rd party knows he's dealing w/ agent, but doesn't know who principal is. -undisclosed: 3rd party doesn't know he's dealing w/ agent and principal's identity is totally unknown. For authorized acts w/ disclosed or partially disclosed principal, principal is liable to 3rd party if agent acts w/in scope of auth. Agent has no liab to 3rd party for disclosed principal's non-performance. C/B liable if partially disclosed, since treated as party to contract. If undisclosed, principal is liable, but agent is also liable until identity revealed and indemnified. Principal can enforce against 3rd party unless: -principal expressly excluded. -contract is negotiable instrument signed by agent w/o indicating representative capacity. -agent's performance is personal to the contract. For unauth acts (outside agent's express/implied/apparent auth), principal isn't liable and agent is personally liable based on breach of implied warranty of authority. UNLESS 3rd party knows agent lacks auth at time of contract or agent expresses uncertainty abt extent of auth. E-agents are semi-autonomous comp programs who can execute specific tasks for the principal. Used by e-commerce to create contracts. Uniform electronic trans act reqs e-agent to provide opp to prevent errors (on-screen confirm) or trans voidable by other party.

Laws Assisting Creditors

Liens, garnishment, and creditors' composition agreements. Liens are an encumbrance (claim upon) prop to satisfy a debt/protect a claim for the pmt of debt. Can be common law or statutory.

Ch 33 Reviewing Case

Meyer stopped at Buy-Mart on her way to bus meeting to grab a new phone charger. Long line but cashier opened another counter and started to load cash drawer. Meyer asked her to hurry, so employee slowed down. Meyer hit employee (not sure if on purpose or not). Employee beat her up. Mgmt broke up the fight and questioned them, employee fired. Meyer sued Buy-Mart for employee tort. -might be liable under respondeat superior. -key factor in determining if liable is control. -More liable if they knew she had violent tendencies.

29-2 Liens

Nabil owns a relatively old home valued at 105k. The electrical system is failing and wire needs replacing. Contracts w/ co to replace the system, which does the repairs and bills him 10k. Nabil is having financial probs so doesn't pay. His only asset is his home, but his state's homestead exemption is 60k. Discuss contractor's remedies. Mechanic's lien preferable; cheaper, quicker, exemptions on personal prop don't apply.

Liability for Agent's Negligence v Intentional Torts

Negligence is the most common tort. Under doctrine of respondeat superior (let the superior principal respond), employer is vicariously liable for employee's negligent torts committed w/in agent's course/scope of employmt. Liable when no fault of principal bc employer manages and derives benefit, there's effective recovery for the victim, and to spread the risk (liab ins). To determine scope of employmt, consider on a case by case basis (parenthesis indicate answer that would mean employer was liable): -was employee's act auth by employer? (???) -was act commonly performed by employees? (yes) -did act advance employer's ints? (yes) -did employer furnish instrumentality (tools)? (yes) -did employer have reason to know employee would do act? (yes) -did the act involve a serious crime? (never liable) If detour principal is liable, is frolic not liable (matter of degree). Commuting and meals usually outside scope, but employee travel time usually w/in scope for duration of bus trip. Notice of dangerous conditions- the knowledge of the agent is imputed to the principal. Principal is liable for intentional torts committed w/in the scope of employmt (have some relation to employmt). Also liable for employee's acts that employer knew or should have known the employee had a propensity to commit.

Bankruptcy Trustee

No specific attorney/CPA qualifications listed, but obv better if so. Appointed by bankruptcy ct. Duties incl collecting assets and paying creditors in order of priority. Powers incl: -right to strong arm creditors to get debtor's prop (like judgmt lien creditor priority over unperfected security int). -has certain avoidance powers to set aside certain transfers; (1) voidable rights: stands in shoes of debtor to assert any grounds to obtain return of prop (incl fraud, duress, incapacity, etc). (2) preferences: debtor not permitted to transfer prop or make a pmt that favors/gives preference to one creditor over another. For trustee to recover pmt, debtor must be insolvent and transferred prop for preexisting debt w/in 90 days before filing. (3) fraudulent transfers: trustee can avoid fraudulent transfers made if w/in 2 yrs of filing petition or w/ actual intent to hinder, delay, or defraud a creditor. Preferences to insiders (close relationship w/ debtor): avoidance power of trustee extends to transfers made 1 yr before filing. Transfers not constituting preferences: pmts for services rendered w/in 15 days before pmt, pmts made in ord course of bus, and generally not preexisting debts.

Worker Health and Safety

Occupational Safety and Health Act (OSHA) is fundamental fed law aimed at workplace safety. Specific safety stds established, incl safeguards on equip, max exposure to certain substances, posting of notices, specific records maintained, and submission of time-sensitive reports following work injuries/deaths. There are inspections to monitor compliance or after complaints. Employers w/ >11 employees must keep occupational injury/illness records for each. State workers' comp laws est procs for comping workers injured OTJ. NC applies to bus w/ >3 employees. Instead of suing for injuries, worker is comp'd based on schedule for injuries (employer ins/self insured). Applies to employees injured OTJ or in course of employmt, regardless of fault. Plaitiff/employee lawsuit barred (unless intentional injury) but also no defendant/employer defenses. Unavailable for intentional/self-inflicted, willful intoxication, or preexisting physical conditions. Claims are filed w/ NC industrial commission.

Ratification

Occurs when principal accepts responsibility for agent's unauth act (express/implied). Rqmts: -agent must act on behalf of principal -principal must affirm entire deal -principal must affirm before 3rd party withdraws from trans (bc they can revoke w/o liab before ratification) -principal and 3rd party must have legal capacity to contract when agent made deal -principals must know all material facts involved in trans

Ch 7 Liquidation Proceedings

Ord/straight bankruptcy. Debtor gives all assets to bankruptcy trustee, who sells nonexempt prop and distrs proceeds to creditors. Remaining debts are usually discharged. This is available to any indiv, corp, or pship but not railroads, ins cos, banks, S&Ls, investmt cos, or credit unions. Commenced by filing voluntary petition by debtor or involuntary petition by creditors w/ bankruptcy ct. Debtor must get credit counseling w/in 180 days before filing and submit a certificate. Attorney must file an affidavit informing consumer-debtor abt other chs. Petition must contain these schedules: -list of secured/unsecured creditors, their addresses, and the amt owed to each. -stmt of financial affairs of the debtor. -list of all prop owned by debtor, incl prop claimed by debtor to be exempt. -a listing of current inc/exps. -certificate of credit counseling. -proof of pmts received from employers w/in 60 days before filing of petition. -stmt of monthly inc, itemized to show how calc'd. -copy of fed IT return for most recent YE before filing. Proper filing is an order for relief and trustee and creditors are notified w/in 20 days. Estate in bankruptcy generally incl prop acq'd prior to filing petition, while prop acq'd later belongs to debtor. Also incl prop transferred in a trans voidable by trustee and certain after-acq'd prop like inheritances, prop settlements, and life ins death proceeds (w/in 180 days of filing).

Smith Case

P borrowed $$ from D. Notes to D were secured w/ pledges of stock and other collateral. P defaulted. D took possession of the stock. Sold it in 2 private trans and released remaining collateral to P, as well as the excess funds from the sales. P sued, saying sales weren't commercially reasonable. D moved the trial ct for summary judgmt, granted, P appealed. Ct agreed w/ D bc tried to get best stock price and entered private sales due to volatility in public sales.

Garnishment

Permits a creditor to collect a debt by seizing the prop of the debtor held by a 3rd party (garnishee). This is typically the employer, C/B tax refund. Fed/state laws limit the amt that can be taken out of a debtor's take home pay.

Problem 32-2

Peter hires Alice as an agent to sell his prop. Price S/B at least 30k. Alice discovers FMV is actually at least 45k and C/B higher bc shopping mall will be built nearby soon. Forms real estate pship w/ her cousin, and preps contract selling prop to her cousin for 32k. Peter signs it, and right before closing learns abt mall and incr FMV. Refuses deed to cousin, who says Alice solicited a price above that agreed upon so contract binding/enforceable. Is Peter bound? No, breach of agent's duty by basically selling prop to herself. Also she didn't disclose knowledge abt mall and incr FMV, so another breach of fiduciary duties. Contract voidable at election of principal and he can term agency relationship.

Scope of Agent's Authority

Principal is liable for agent's acts when agent has actual/apparent auth. Actual can be express/implied. Express is clear, definite terms given orally or in writing. The equal dignity rule says if law req's written contract, agent's auth must be in writing, or contract voidable by principal (real estate broker). Exceptions: -exec officer conducting ord bus for corp. -agent acts in principal's presence. -agent's act of signing is a mere formality. POA gives express auth. Written doc, usually notarized. If special POA, for specified acts only. If general, for all bus of principal. Norm terms on principal's death or incapacity, but durable POA takes affect upon and survives incapacity if recorded. Implied auth relates to what's reasonably necessary to carry out express auth. Inferred/conferred by custom or agent's position. Apparent authority exists when principal's conduct (or pattern over time) causes 3rd party to reasonably believe agent has auth to act for principal. If 3rd party changes legal position by relying on principal's reps to his detriment, principal estopped from denying agent had auth to contract. Emergency powers arise when agent should protect principal and can't comm w/ them.

The Scope of a Security Interest

Proceeds (9-315) incl cash/prop received when collateral is sold/disposed of. Gives creditor a security int in the proceeds from sale/lease of collateral. Perfects automatically but perfection terminated after 20 days unless identifiable cash proceeds or same office rule. Seller can always amend before filing to perfect w/in 20 day pd. Prop debtor acqs after execution of security agreemt is called after acq'd prop. Generally debtor buys new inv to replace old, so security agreemt has after-acq'd clause to give secured party security int in new collateral. Future advances are used in a line of credit, where creditor wants to lend money in the future that will be secured by the same collateral from the 1st loan. Called cross-collateralization. The floating lien concept is illustrated by security int in proceeds, after-acq'd prop, or collateral subj to future advances (lien floats over changing inv).

Problem 30-1

Redford sells generators. Buys a lot of them from manufacturer by making down pmt and signing agreemt to make the balance of the pmts over time. Gave manufacturer sec int in proceeds and generators. Manufacturer filed financing stmt. Redford got generators, sold one. Buyer knew abt security int. 2 mos later, Redford defaulted. Manufacturer's rights? 3rd party was buyer in ord course of bus, so perfection of security int isn't effective against them. Manufacturer has no rights to their generator. Has rights to pmts received for generator.

Ch 34 Reviewing Case

Rick was a traveling salesman for a winery and sales were 90% of his work time. Worked avg of 50 hrs/week, no OT. New boss said he had been inflating his sales and req'd him to submit to polygraph. Rick reported him to US DOL, which stopped boss from making him take the test. Rick's wife had a head injury. Gave work letter from doctor and took leave to care for her. When he came back, was told his job was gone bc his sales territory was combined w/ another. Best shot bc no answers posted. -entitled to receive OT? No, above pay rate plus salesman. *Travelling salespeople can't get OT*! -max time he could take leave? 12 weeks. -when polygraph allowed? If he worked for security co, was using controlled substances, or there was embezzlement concern. -could boss avoid reinstating under key employee exception? No, not in top 10% pay.

Rights and Duties of Debtors and Creditors

Secured party can release collateral, assign sec int, or amend the OG filing (add/subst collateral) by filing new form. If amendmt adds new collateral, priority for new collateral begins on amendmt filing date. Confirmation of unpaid debt or list of collateral may be requested by debtor every 6 mos. Termination stmt: for consumer debts must be filed w/in 1 mo of final pmt or, if requested in writing, w/in 20 days of receipt of request. For non-consumer goods, not req'd to file unless written demand which reqs filing w/in 20 days.

Priorities

Secured v unsecured creditors: secured wins. Perfected v unperfected secured creditors: perfected wins. Secured v secured creditor: 1st in time wins. Buyer not in ord course of seller's bus: BNIOCB loses. Buyer in ord course of seller's bus: BIOCB wins.

Income Security

Social security: Portion of inc (paycheck or self-employed) goes to Fed Ins Contributions Act (FICA) to protect employees/fams from financial impact of retiremt, disability, death, hospitalization. OASDI= old age, survivors, disability ins. 6.2% capped at $118,500 in 2015. SS is funded by employers and employees. Medicare: Fed govt health-ins program for ppl 65+ or under 65 and disabled. 1.45% w/o cap. Additional medicare tax (3.8%) on net investmt inc if AGI exceeds thresholds. Fed statute regulating private pension plans: ERISA (employee retiremt inc security act) doesn't req employers to setup pensions, but provides rules on mgmt/investmt. For employer funds, either fully vested after 3 yrs or graduated vesting sch over 6 yrs. Then employee has legal right to funds. Unemployment ins: FUTA and SUTA create state-run system providing unemploymt comp for ppl losing jobs. Funded only by employers. Those eligible for benefits must: -meet certain min threshold for past earnings (determines benefit amts) -be unemployed through no fault of own -be able/available to work and actively seeking job COBRA (consol omnibus budget reconciliation act) provides a fed right to continued health ins upon term of employmt if >= 20 workers. Worker has 60 days to decide, employer must continue policy for 18 mos, and employee must pay premiums (not free!).

Protection for Debtors

State law exempts certain prop from creditor claims, incl: -homestead: entirely or up to a $ amt. -household furniture to a limit. -clothing/personal possessions. -vehicle for transportation. -equip debtor uses in a trade/bus up to a $ amt.

Title VII of the Civil Rights Act of 1964; Sexual Harassment

Sup ct has interpreted Title VII's prohibition against sex discrim to incl sexual harassment. 2 forms: 1. Quid Pro Quo: demands for sexual favors for job opps/promotions/salary/tangible benefits. 2. Hostile work environment: when workplace is permeated w/ discrim intimidation, ridicule, insult severe enough to alter conditions of victim's employmt and create abusive working environmt. Case by case determination if sexually offensive conduct is severe enough. In 1998 sup ct held in Onacle v Sundowner Offshore Services that Title VII prohibits against sexual harassmt extended to same-sex harassmt. Easier to prove when harasser homosexual.

Suretyship and Guaranty

Suretyship is a promise by a 3rd person to be primarily liable for the debtor's obligation to the creditor (like it's their own). There's an express contract btw the surety/creditor. Creditor can demand pmt from surety at any time after debt is due, doesn't need to exhaust all legal remedies against debtor before holding surety liable. If there are multiple sureties allocate the debt based on portion guaranteed. W/ a guaranty, the 3rd person making it is secondarily liable, only after principal debtor defaults. Statue of frauds reqs guaranty to be in writing, unless main purpose exception. Defenses to suretyship/guaranty: -surety can use any of principal debtor's defenses except incapacity (minor) of debtor, bankruptcy of debtor, or statute of lims. -surety can use defense of fraud if creditor fraudulently induces a person to act as surety. Rights of surety/guarantor: -right of subrogation (Stands in shoes of creditor) to pursue remedies available to creditor. -right of reimbursement from debtor. -right of contr from co-surities based on relative liabs.

Automatic Stay

The moment any petition is properly filed, an auto stay is granted protecting the debtor from all creditors. Creditors can't commence/continue most legal actions to collect/recover claims from debtor. Damages for knowing violation of stay. Doesn't apply to certain repeat bankruptcy debtors. The adequate protection doctrine protects secured creditors from losing their security int due to the auto stay (decline in value) by ordering cash pmts or other collateral. This is if perfected security int. Exceptions to auto stay: -recent pending bankruptcy case (w/in last yr) -divorce/child support actions -certain IRS tax proceedings (not collection) -certain statutory liens for prop taxes -repmt of pension loans -criminal actions Secured creditors can request relief from auto stay, esp when debtor has little equity int in prop. Auto stay on secured prop auto terminated 45 days after creditors meeting, unless debtor reaffirms debt or redeems prop.

Title VII of the Civil Rights Act of 1964; Sexual Orientation, Online Harassment, Overall Remedies

Title VII doesn't prohibit discrim based on sexual orientation. Online harassmt is a hostile work environmt created w/ co chat, blogs, and email. Employers can avoid liab w/ prompt remedial action. Employees may be discharged for using co computers wrong. Remedies under the act include reinstatemt, back pay, retroactive promotions, and damages.

Title VII of the Civil Rights Act of 1964; Discrimination Based on Color, National Origin, Race, Religion, or Gender

Title VII prohibits employmt policies or intentional/negligent discrim on basis of race/color/national origin. Policies that discrim are illegal, unless (except for race) they have substantial demonstrable relationship to realistic job qualifications. Appearance based discrim isn't really considered discrim. Title VII also protects against reverse discrim against a majority group like white males. Discrim based on religion: employers must reasonably accommodate the sincerely held religious practices of employees unless to do so would cause undue hardship to their bus. Employers can't classify jobs based on gender unless can prove it's essential to the job. Equal pay act reqs equal pay for employees working at same bus doing sim work. No violation if wage diff due to factors other than gender (seniority/merit). Lilly Ledbetter Fair Pay Act of 2009 extends time pd for filing suit indefinitely.

Distribution of Property

To secured creditors, to unsecured creditors (paid in order of priority), and leftover amt returned to debtor. Debtor's nonexempt prop, prop transferred in voidable trans, certain after-acq'd prop, and proceeds/profits from all of these are collected and distr by trustee. Go first to secured creditors, then to unsecured in order, then to debtor. Secured creditors have priority to the extent of proceeds from collateral. Each class is paid in order in full, unless insufficient funds - then proportionate.

Liability for Torts and Crimes

Torts are wrongs committed against someone else. Agent is liable to 3rd party for own torts. Principal may be liable for agent's torts if they result from: -principal's tortious conduct (improper instructions) -principal's auth of agent's tortious conduct -agent's misrep made w/in the scope of their auth: principal liable if knew agent was not aware of things and didn't correct them. Apparent implied auth makes principal liable for fraudulent acts (partners in pship). Innocent misrep made w/in scope of agents auth.

Creditor's Meeting

Trustee calls meeting of creditors to examine debtor under oath, but only debtor req'd to attend. Each creditor must file a proof of claim w/in 90 days of meeting.

Means Test

Used to determine eligibility for ch 7 and prevent substantial abuse. Basic formula is debtor's avg monthly inc compared to median inc in area where they live. If below median, no presumption of abuse so can file. If above median, further calcs needed to determine if enough disposable inc (subtr living exp and secured debt pmts) to repay unsecured debt. Could be dismissed for convictions of violent crime or drug trafficking or failure to pay post-petition domestic-support obligations.

Formation of the Agency Relationship

Usually these: -are consensual -req no consideration -req principal to have contractual capacity (agent doesn't) -can be created for any legal purpose -usually are formed through express/implied agreemt (oral/written) Agency by ratification occurs if principal by word or act approves/affirms contract entered by agent outside of auth or by person who isn't agent. Authority by estoppel occurs when principal causes a 3rd person to believe another person is their agent and that person reasonably relies on that belief. Agency by op of law occurs when social policy or emergency happens and unable to contact principal. Action req'd to prevent loss.

Taser Case

Ward was Taser's VP of marketing. Thought about making his own devices, talked to patent attorneys/product developmt co and completed most of bus plan. When he resigned from Taser, started own co. 10 months later, Taser announced product sim to his. Taser sued Ward for breach of duty of loyalty. Ct ruled in favor of Taser, Ward appealed. Ct said the subst design/developmt efforts by Ward during his employmt was direct competition w/ bus activities of Taser and violated duty of loyalty. Competition can't be limited to just sales of competing products.

General Rules of Priority

When more than 1 creditor claims rights in collateral. -perfected security int has priority over unsecured/unperfected creditors -conflicting perfected security ints: 1st to file has priority. -conflicting unperfected security ints: first to attach has priority. Exceptions: 1- buyers in ord course of bus (9-320): takes goods free of perfected sec int. Even if buyer knows of existence of perfected sec int. 2- PMSI in goods other than inv and livestock has priority if perfected w/in 20 days after buyer takes possession (9-324). 3- PMSI in inv has priority over prior conflicting int if perfected and notice given to prior secured party before buyer takes possession (9-324)

Young Case

Young was a UPS driver who became preg. Doctor told her not to life >20 lbs. Job req'd lifting of up to 70 lbs, told her she couldn't work under restriction. She sued bc they had light lifting exceptions for injury categories creating work restrictions sim hers. UPS said she didn't fall into the categories so it hadn't discrim. Ct ruled in UPS' favor, appeal. Ct said seemed like intentional discrim since they accommodated nonpreg workers but not preg. Ruled in favor of Young.