B-Law Midterm

An employee of the University who believes they have been sexually harassment should report the harassment to:

A University Title IX Coordinator

A fee where the lawyer receives a percentage of the amount awarded in the case is called a

Contingency fee

Which amendment to the U.S. Constitution provides that the federal government only has those powers expressly provided in the Constitution?

10th amendment

What should you consider when hiring a lawyer?

Area of legal practice needed handled Size of law firm Fee structure Correct! All of the above

Business law is primarily governed by:

Both state law and federal law

If a company's officer engages in a conflict of interest, they have most likely:

Breached a fiduciary duty

Limited Partnership (LP)

Created by filing certificate of limited partnership with the appropriate state agency, in Missouri that's the Secretary of State Limited partnerships are partnerships with two different classifications of partners: general partners and limited partners General partners have most of the management rights for business decisions but they have unlimited personal liability. Limited partners only have limited rights to participate in management but their liability for business debts and obligations is limited to their investment in the business

Limited liability partnerships (LLP)

Created by filing registration of limited liability partnership with the appropriate state agency, in Missouri that is the Secretary of State LLP's are a special kind of partnership in which all partners assume liability for their own actions and the actions of those they supervise Partners only have personal liability for the debts and obligation caused by other partners to the extent of the LLP's assets and or their capital contributions to the LLP

The seventh amendment

Extends the right to a jury trial in federal civil cases

Which of the following can be used to help locate all Federal court decisions, including those issued by Federal District Courts?

Federal Digest

Retainer (2 meanings)

Having a lawyer on retainer typically means that a client makes regular payments to the lawyer in exchange for the lawyer providing services as needed In many instances, one hiring a lawyer for a specific service only, the lawyer will require the payment of a retainer, which is simply a payment of legal fees at the time of hiring (in advance of actual services)

Common Law

In each the federal and state system, law is developed by the judicial/court system. Courts Develop common law by deciding cases that set precedent, (stare decisis) Those court decisions are typically called opinions, and they provide an explanation for a course decision in a case called a holding that provides the rules for how future court should resolve cases involving similar circumstances

Effect or first amendment

In order to regulate commercial speech government must show: it has a legitimate in substantial government interest to be served, the regulation must directly advance that government interest, and the regulations must not be more extensive than necessary to serve the government interest

Contingency Fee Agreement

In some matters, the attorney will agree that payment for services will only be paid if the attorney is successful in the case, and then it is usually a percentage of the amount of money the attorney recovered for the client Due to this nature, most common in a civil lawsuit such as a personal injury lawsuit

In which Missouri city are the main offices of the Missouri Bar located?

Jefferson city

The judiciary: Courts and case law

Judicial decisions constitute one of the most important sources of legal authority, along with legislative and regulatory enactments, in our common law system. Courts follow the doctrine of precedent, or stare decisis ("let the decision stand"), to create and build upon holdings of law so as to ensure that people in like circumstances of fact are treated alike. Published court reports provide a permanent record of judicial opinions and provide an easily cited source.

University employees who become aware of sexual harassment and are required under the policy to report the harassment are called:

Mandated reporters

What is the legal name of the business organization that currently does business as Veterans United in Columbia, Missouri?

Mortgage Research Center, LLC

commerce power

Most broad ranging power of the federal government, located in article 1 section 8 of the constitution. Interpretations: Primary authority of the federal government to pass statutes has regulations that affect businesses, Simultaneously empowers the federal government and impliedly restricts the power of state governments to burden interstate commerce (called the dormant commerce clause)

job related accidents

Most job related accidents are the result of a tort committed by an employee, even if it is simply caused by the employees carelessness, which is usually classified as the tort of negligence Employers are vicariously liable under the doctrine of respondent superior for torts committed by an employee so long as the employees tort was committed in the course of employment

Legal malpractice lawsuits typically arise from

Negligence Breach of contract Breach of fiduciary duty Correct! All of the above

Both Veterans United and Kohl's, Inc. operate for profit. Which of them, based upon the business organization they have chosen, is formed in a way that would make its/their owners/investors personally liable for debts and obligations of the business?

Neither Veterans United or Kohl's, Inc.

What kind of business organization is Veterans United Foundation?

Nonprofit corporation

Non profit corporations

Nonprofit corporations are special types of corporations that are permitted to earn profits, but they do not distribute these profits to shareholders, instead the corporation reinvest profits in its particular business or other related activity Not necessarily tax exempt under the internal revenue code Tax exempt organizations of any kind or given special status by the internal revenue service to avoid payment of federal income tax and accept deductible charitable contributions

Attorneys who specialize in representing injured plaintiffs in lawsuits against businesses and individuals are called _________.

Personal injury attorneys

Most federal power to regulate business and the economy comes from _______.

The Commerce Clause of the U.S. Constitution

What does it mean to pierce the corporate veil?

The instance where legal structure does not protect officers from liability

In a personal injury case, who files the claim to start litigation?

The plaintiff

Who ultimately determined that the Affordable Care Act of 2010 was not a proper exercise of federal power under the Commerce Clause?

U.S Supreme Court

Sales of goods are governed by__________

Uniform commercial code

What is vicarious liability?

Vicarious liability refers to a situation where liability is imposed on an employer for the acts of an employee.

Breach of fudiciary duty

When an agent fails to fulfill their duties to the principal, they have breached their duties and committed a business tort referee to as this A tort is a wrongful act other than a breach of contract that injures another and for which the law imposes civil liability or duty to pay damages. A business tort then is what occurs within a business relationship A breach is simply a failure to performing obligation created by a promise duty or law without excuse or justification

Employees as Agents

When an employee works for an employer and the employee has few dishy airy duties to the employer, because of the special relationship the employer also assumes responsibilities for many of the employees actions such as: being bound to contracts that the agent enters into on behalf of the employer, so long as the contract was within the agents power which is called authority, being liable to third parties were harmed by the agents torts

The name of the system that generally protects employers from being sued by their employees when a job-related accident occurs is called:

Workers compensation

The case opinion in the link creates which kind of law:

common law/precedent

If your business plans to raise money from the public, which form of business organization would be best?

corporation

In some instances, courts will allow plaintiffs to receive compensation from corporate officers or directors rather than limiting liability to the corporation's resources. Which of these is listed as an instance where that might happen?

failure to follow corporation formalities

three situations in which the government can constitutionally restrict speech under a less demanding standard

1.) "low first amendment value", defamation, true threats, fighting words, obscenity, child pornography, commercial advertising 2.) The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. 3.) The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are "reasonable."

Which of the following types of businesses are most likely to use a limited liability partnership business form of organization?

Accounting Firm

C Corp vs. S Corp

All regular for profit business corporations to start out being subject to double taxation, for tax purposes that results in their classification as a C corporation Subject to certain limitations smaller corporations, with no more than 100 shareholders, can elect to avoid double taxation and if they qualify then will be classified as an S corporation

fudiciary duty

An agent is considered a few dishy airy of the principal, with a potentially wide range of fiduciary duties, such as: Do you need to act in the best interest of the principal, duty to avoid conflicts of interest, duty to keep information confidential, duty to disclose information to the principal, duty to account for anything that belongs to the principal

Lawyer area of practive

Business (corporate) and commercial Personal injury Employment

The case in the link for today's lab involves the federal statutes commonly known as the Americans with Disabilities Act (ADA). Go to the Federal Statutes - U.S. Code in your Links to Primary Legal Resources. Which Chapter of Title 42 contains the Americans with Disabilities Act referred to in the case?

Chapter 126

commercial law

Commercial law focuses primarily on the sale and distribution of goods, this area of law has a heavy emphasis on the uniform commercial code, the uniform law adopted by most states to govern the sale or good and other secured transactions

Engagement Letter

Contractual agreement between the lawyer and the client Also called representation agreements Please include the promises that each party is making to the other such as exactly what the lawyer is agreeing to do for the client(including limitations) how the lawyer will communicate with the client and how the client will pay the lawyer

Corporation Disadvantages

Creating any kind of corporation requires the filing of articles of incorporation with an appropriate state agency, in Missouri this is the Secretary of State Business corporations are also typically subject to double taxation, meaning income is taxed to the business when it is earned, and then tax to the shareholders when they receive profit payments called dividends

An employer will not be liable for the acts of a worker who is:

Engaged in a frolic at the time of the tort

Who is/are the Defendant(s) in the case opinion shown in the link?

Enterprise Rent-A-Car Company and Enterprise Rent-a-Car Company of Pittsburgh

Which types of government restrictions or regulations are most likely to violate the 1st Amendment to the U.S. Constitution?

Restriction on speech on because of its content

Which of the following best describes the business entity classification for Kohl's, Inc. (formerly known as Kohl's Department Stores, Inc.) when it does business in Missouri?

Foreign for profit corporation

first amendment in depth

Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government. Speech is broadly defined as all forms of expression Federal government has held restrictions of speech based on its content. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. But starting in the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s. Today, the legal protection offered by the First Amendment is stronger than ever before in our history. Corporations are protected from government restriction on free speech upon US supreme court decision "citizens United" case

All of the following are ways an attorney can help a small business EXCEPT:

Giving tax evasion advice

Which of the following best summarizes the rights granted by the 1st Amendment to the U.S. Constitution?

Government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.

The best example of negligent hiring is:

Hiring someone who has multiple DUIs to work for a taxi service

A __________ exists when unwelcome verbal or physical conduct of a sexual nature is objectively offensive in a way that interferes with an employee's ability to participate in or benefit from University programs or employment.

Hostile Environment

Attorney Fees

Hourly fee arrangements are: the client paying the attorney for services based upon the actual time the attorney spends providing services In this arrangement clients typically must also pay all costs incurred by the lawyer in handling this matter, costs can include copies of documents, deposition, mileage etc these are often a large part of the fees incurred in legal matters

Business Entities

If an individual person decides to conduct a business simply by doing business as a private person - sole proprietorship If more than one person or other business entity joins together to conduct business with the goal of making profits but without formally creating another type of business entity, it is called a general partnership Most businesses operate in other types of business entities/organizations (LP, LLP, LLC, and corporations) It is not always easy to know what type of business entity or organization a business using because most businesses are doing business as ("D/B/A") or are doing business under a fictitious name

Harm to employees

If the person is injured as a result of the tort is an employee then the employer is generally not liable for the damages under tort law. Instead Worker's Compensation systems administered by the state government will provide an insurance like process for employees to be compensated for their injuries rather than having to sue their employers

Criminal Law

Involves the prosecution and defense of individuals charged with committing acts against society Most of the cases we deal w in this class involves civil law, which typically involves the rights and responsibilities involved in elation ships between a private person/entity and another private person or entitiy

The term used in this policy (and generally under the law) to describe improper adverse action taken against a person for making a good faith report of sexual harassment is:

Retaliation

Lawyer Malpractice

Malpractice is a word used to generally describe the liability that a professional may have for failing to fulfill the responsibilities to a client, a lawyer malpractice the most common legal theories that are used to hold the lawyer accountable to the client are: negligence, breach of contract, and breach of fiduciary duty

Agency Relationships

Many business relationships are considered agency relationships, where an agent acts on behalf of a principal and is required to fulfill fiduciary duties to that principal

What would be the correct legal name for the owners/investors of the business organization that is doing business as Veterans United?

Members

Use the link with the Court Opinion for the Cunningham v. Enterprise Rent-A-Car Company link to answer the remaining questions. Who is/are the Plaintiff(s) in the case opinion shown in the link?

Michael E. Cunningham

The directors of an general business corporation in Missouri are listed as "parties" in the filings of the Missouri Secretary of State records. What is the name of the first person listed in those records as a Director of the corporation?

Michelle Gass

Other types of employer liability

Negligent hiring or retention: this is essentially carelessness by the employer and hiring or retaining an employee that the employer knew or should've known could cause harm to others Harassment: employers liability for persistently or wrongfully subjecting an employee to offensive or troublesome behavior or environment

Does the 1st Amendment prohibit a private employer from putting restrictions on what employees say or write?

No

If you wish to file a complaint against a Missouri lawyer for failing to maintain the required degree of competence or ethics, you would file your complaint with the:

Office of Chief Disciplinary Counsel

Which of the following is an advantage of forming a general partnership?

Owners may report their share of net business losses on personal income taxes

The doctrine of _________ assures that like circumstances of fact are treated alike in the courts.

Precedent

Piercing the corporate veil

Principles in a corporation risk becoming liable for the debts and obligations of a corporation in certain circumstances This is often caused by: conducting business in a way that is not separate from the actions and assets of the principles, forming the corporation for a fraudulent purpose, failing to follow corporate formalities

Which of the following is NOT an element of breach of fiduciary duty?

Proximate clause

In a breach of fiduciary duty lawsuit, a plaintiff may receive which kind of damages in addition to actual damages?

Punitive damages

Regular business corporations

Regular for-profit business corporations provide their owners/investors called shareholders or stockholders protection from personal liability for the debts and obligations of the business These are often identified by the word Inc. or Corp. At the end of the business organization name The shareholders the only have limited rights to participate in management of the business Instead of the shareholders elect directors, who then sit on the Board of Directors, who have the responsibility to manage the corporation business activities. They typically do this by hiring supervising officers of the corporation

The Introduction to the Missouri Bar's Guide to Turning 18 lists all of the following as rights that you have after age 18 except:

Right to serve on a jury in Missouri courts

To the extent permitted by law, an employer should attempt to minimize liability for negligent hiring by:

Running a background check

The tenth amendment

Says that the federal government only has those powers delegated in the constitution. If it isn't listed it belongs to the states or to the people.

While still in Title 42 of the U.S. Code, click on that Chapter to find the section of statute that defines "disability" for purposes of the ADA. Which section of the Chapter provides that definition?

Section 12102

The Missouri Bar's Business Law Resource Guide includes information about all of the following except:

Sexual harassment

Which of the following are forms of sex discrimination according to the University's policies?

Sexual harassment Stalking on the basis of sex Dating/intimate partner violence Correct! All of these listed

What would be the correct legal name for the owners/investors of the business organization that is doing business as Kohl's, Inc.?

Shareholders

In which of the following entities is the business and the owner the same legal entity?

Sole Proprietorship

Which of the following is not an advantage of a nonprofit corporation

Tax compliance is rarely an issue

Which of the following accurately describes double taxation?

Taxation that occurs at both the corporate and shareholder/investor level

United States Courts of Appeal and United States District Courts

The Federal court system has grown extensively from the thirteen District Courts and three Circuit Courts created by the Judiciary Act of 1789. The general trial courts in the federal system are still known as the United States District courts, but there are now ninety-four districts with one or more in each state. In addition, there are several specialized trial courts, such as the Bankruptcy Courts and the Court of Federal Claims. The intermediate appellate courts in the federal system are the United States Courts of Appeal, which are divide into thirteen circuits. Each of the First through Eleventh Circuits covers several states. The Federal Circuit, which handles patent and customs matters, and the District of Columbia Circuit comprise the remaining circuits. Appellate decisions from the state Supreme Courts and intermediate appellate courts have been collected and published by the West Group (formerly West Publishing) in a set of regional reporters called the National Reporter System.

U.S. Supreme Court

The United States Supreme Court stands at the head of the judicial branch of government, and it sits as the court of last resort in the Federal court system. Only a small fraction of the cases in which Supreme Court review is sought are accepted for hearing and result in a judicial opinion. The Interior Library maintains two sets of case reporters for U.S. Supreme Court decisions, digests which assist the location of Supreme Court decisions by topic and one topical, loose-leaf service which indexes current Supreme Court cases and issues and provides the first print version of Supreme Court decisions.

Having an lawyer on retainer means that__________.

The client will make regular payments to the lawyer, and the lawyer will retain time to perform legal services for the client.

A representation agreement sets forth the terms of the relationship between the lawyer and the client including all of the following EXCEPT:

The plea the client must take

LLC (best attribute combo)

Their owners/investors Do not have a personal liability for the debts and obligations of the business, their management can be structured very flexibly giving those owners/investors hands on management rights, they can choose whether they wish to be taxed like a general partnership or corporation, these are currently the most common choice for small businesses

If you have a dispute over the fees that your lawyer has charged you can file a complaint with the Missouri Bar Fee Dispute Resolution Program. How much is the filing fee for the program?

There is no filing fee

Nuts and bolts of LLCs

These are formed by filing articles of organization with the appropriate state agency, the owners/investors of an LLC or called members, the members can choose to classify the LLCs as either member-managed or manager-managed

Personal injury lawyers

These are lawyers who handle lawsuits involving injuries, such as those caused by defective products, medical negligence/malpractice, vehicle accidents, dangerous conditions on property Etc

Decisions from state Supreme Courts and intermediate appellate courts have been collected and published by ______________.

West Group

personal liability

While sole proprietorships and general partnerships are easy to form most businesses choose to use some other form of business entity or organization so that their owners or investors will not have personal liability for the debts and obligations of the business Personal liability in this instance means that the owners of the company can be sued in their personal names anytime the business has a liability and their personal assets can be used to pay that liability

Difference between arbitration and mediation

arbitration is binding while mediation is not Arbitration - An arbitrator acts as a Judge and testimony is taken from both parties before a decision is made. It is a "lite" version of litigation and usually less costly. Mediation - A mediator acts as a neutral party and listens to each party's complaint.

Which of the following is NOT an example of a relationship involving a fiduciary duty?

employer and former employee

What does LLC stand for?

limited liability company

How many federal circuits are there in the United States?

ninety four

How do LLCs avoid the double taxation that corporations face?

passed-through taxation

First Amendment

provides several rights protections: to express ideas through speech and the press, to assemble or gather with a group to protest or for other reasons, and to ask the government to fix problems. It also protects the right to religious beliefs and practices. It prevents the government from creating or favoring a religion.

Employers are _________________ under the doctrine of "________________" for the negligent acts or omissions by their employees in the course of employment.

vicariously liable; respondeat superior