LEGL 2700 FINAL EXAM- TRIPP

Fee Simple Defeasbible

"To Juanita so long as it is used as a manufacturing plant" If she does not used it in the way that is outlined, it goes back to the original owner

Natural easement

(ie landlocked property) the ability to use someone else's infrastructure to get to the nearest road

Waiver

- A party gives up a right to enforce a contract - Timing: after non-performance

Personal property

- All movable resources - Divided into tangible and intangible

False claims under healthcare

- Billing for services not actually performed. - Falsifying a patient's diagnosis to justify tests, surgery, or other procedures that are not medically necessary. - Uncoding or billing for a more costly procedure than the one actually performed. - Unbundling or billing each stage of a procedure as if it were a separate procedure. - Accepting kickbacks for patient referrals. - Billing a patient more than the copay amount

Answer

- Defendant will admit or deny each allegation - Failure to respond could result in default judgment in favor of the plaintiff

Strict Scrutiny

- Is the classification necessary to achieve a compelling state interest/purpose - Examples: race, national origin, legitimacy, fundamental rights

Minimum Rationality

- Is the classification rationally related to a permissible or legitimate govt objective - Examples: height, weight, age, testing, marriage, school desegregation

Quasi-Strict Scrutiny

- Is the classification substantially related to an important govt interest/objective - Examples: gender

Real property

- Land and interest in land (includes buildings) - you have to have transfer of this property in writing

Subsurface rights

- Landowner owns the liquids, gasses, rocks, and minerals beneath the land​ - Can be separately sold another - Rule of Capture a. who has rights to the materials that "make their way" over to the neighboring property from my land? the people of capture it on their land b. no responsibility for drainage, natural flow, etc so long that there was no human intervention- technology, interference physically making its way to the other person's property

Non-Profit Corp

- Must be approved by the IRS - 501(c)(3) - Created for a specific reason allowed by law - Must be created for a public purpose and not to personally benefit owners or members - Must return any profits made to the organization to be used for future operations - Tax exempt status

Elements of an enforceable contract

- Offer to enter into a contract - Acceptance of the offer - Consideration for each promise - Capacity of each party to enter into a binding agreement - Legality

Diversity of Citizenship

- Plaintiffs/Defendants are citizens of different states - claim must be for more than $75,000 - for corporations, citizen of the state its incorporated in and where it has its principal state of business must be different - for partnerships, all parties must have different principal POBs

Burden of Proof in Civil Cases

- Preponderance of evidence (easiest to prove: is it more likely than not) - Clear and convincing proof (60/40 split most often)

Release

- When a party allows the other not to perform - Timing: before non-performance

S-Corp

- elect unanimously to have the corporation treated as a partnership for tax purposes. - Shareholders must account on their individual returns for their shares of the corp's profits or losses. - Include all legal features of a corporation, except: a. cannot have more than 100 shareholders b. only individuals (not entities) can be owners.

Administrative Agency

A board, bureau, commission, or organization set up by a federal state gov't Creates rules or regulation and enforce laws that impact the legal environment of business Examples include FDA, EPA, and the Federal Reserve Board

Materiality under '34 Act Section 10b and Rule 10b-5

A plaintiff seeking damages must establish the existence of: a material misrepresentation or omission made in connection with the purchase or sale of a security and the culpable of the defendant Liability requires proof of the defendant's intent to deceive. Simple negligence isn't enough Must establish the defendant's practice is manipulative and not merely corporate mismanagement. Includes not only untrue statements of material facts but also the failure to state material facts necessary to prevent statements from being misleading. Materiality depends on the significance a reasonable investor would place on the withheld or misrepresented information

Trespass to Chattel

AKA Trespass to Personal Property When soeone uses personal property without permission or otherwise interferes with the owner's posession of personal property

Mailbox Rule

Acceptance becomes legally binding when the offeree dispatches it (email counts)

Duress

Action that coples another to do what he or she would not otherwise do Force or threat of force

Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010

Addresses many issues of financial reform Required safety and soundness measures (stress testing, liquidity requirements, etc.) for large financial institutions Congress authorized the creation of new administrative agencies to achieve the goals of Dodd-Frank Act - Consumer Financial Protection Bureau (CFPB) - Financial Stability Oversight Council (FSOC) - Federal Insurance Office (FIO) -Office of Housing Counseling (HUD) - Office of Credit Ratings (SEC) - Investment Advisory Committee (SEC) - Office of Investor Advocate (SEC)

Workers Compensation System

Administered by a state administrative agency with quasi-judicial powers Employers pay workers' comp. premiums Awards are formulaic based on percentage of wages Provides for medical care

Quasi-Judicial Staff

Administrative Law Judges: perform the adjudicative fact finding functions ALJ's hear cases of alleged law violations and apply law to the facts

Review of Agency Decisions: Rulemaking

Administrative agency must proposes rules and regulations within its power Unwise rule adopted by an agency is corrected by legislature Basic issues challenging the validity of the rule... 1. Is delegation valid? Must be definite, must be limited 2. Has the Agency exceeded its authority? Look at rule and regulation and decide intent

Influencing Agency Decisions

Agencies give public notice of proposed rules and hold public hearings Interested parties present evidence in support or opposition to the regulation Agencies react to the force of public opinion Each branch of government has control over the administrative process

Organization of Agencies

Agencies, Boards, or Commissions consist of 5-7 members (One member is appointed as chairperson) Appointments require Senate confirmation Appointees are not permitted to engage in other employment during the terms Agencies have distinctive organizational structure to meet its responsibilities

The Howey test

An investment of money in a common business activity with a reasonable expectation of profit based on the efforts of someone other than the investor Not just stocks You can invest in orange trees in FLA

What is a Security?

Any interest or instrument that offers the right to subscribe to or purchase, stock, bond, or any certificate of interest Covers much more than corporate stocks and bonds Notes, stock, treasury stock, investment contract Involves an investment in a common enterprise with profits to come solely from the efforts of persons other than the investor

The '33 Act (Securities Act of 1933)

Applies only to the INITIAL SALE of the security to the public Requires the disclosure of information to the potential investors (Registration Statement & Prospectus) Information must not be false or misleading Sanctions for violations (Criminal punishments, civil liability, equitable remedy of injunction)

Lucia v. SEC

Are these ALJ's officers of the United States? Plaintiff filed lawsuit challenging the use of the SEC's ALJ's under the Appointments Clause of the Constitution Ultimately, they decided ALJ's ARE officers of the United States Used a test if they exercise significant authority

Materiality Defense

Argument that the false or misleading information is not material and therefore should not have had an impact on the purchaser's decision making process. ​

Blue Sky Example

Assume a security is exempt from Blue Sky Registration Requirements if the issue sells (or offers to sell) securities to no more than 35 investors during any 12 month period. Assume the below transactions occur with each investor being a different person or entity. 2/1/13 issuer sells to 5 investors 6/1/13 issuer sells to 10 investors 9/1/13 sells to 10 investors 12/1/13 sells to 5 investors 3/1/14 sells to 5 investors 5/1/14 sells to 10 investors NOT EXEMPT! LOOK AT THE WHOLE PICTURE!

Example of Employer vs Employment Agencies

Assume that a contractor with an American gov't contract seeks a qualified Black engineer to request an employment agency to refer one. The agency complies with the request. Has the employer violated Title VII of the Civil Rights Act? - NO Has the employee agency violated Title VII of the Civil Rights Act? - YES

Personal jurisdiction

Authority of the parties to the case on the part of the court Obtained over a plaintff when the plaintiff files the lawsuit Obtained over the defendant by summons & service of process Minimum Contacts Test: Has the defendant committed a tort within the state? Does the defendant own property within the state that is the subject matter of the lawsuit? Has the defendant entered into a contract within the state or transacted the business that is the subject matter of the lawsuit within that state? If the answer is yes to ANY of these questions, we have satisfied the minimum contacts requirement

Apparent Auhtority

Authority perceived by a third party when no actual authority exists Note, Agent would be liable to principal - if i am fired from the restaurant and go to the same store and charge things on the company card, how would the store owner know to not let me charge the company card? (it looks like i have authority when i actually don't) restaurant owner would need to call the store and tell them to not let me buy things

Implied Authority

Authority that is incidental to express authority (arises from the position held and by the history of express authority) - the boss is out on vacation but i as the manager notice we're low on apples so i go to the same store and purchase apples on the company card

State Blue Sky Laws

Blue Sky Laws = state statutes designed to protect the public from the sale of fraudulent stocks and bonds Protect the potential investor from buying risky securities without financial and other information Apply to securities subject to federal laws and securities exempt from federal statutes Uniform Securities Act, 1956 Provides a model for blue sky laws

Publicly-held organizations

Businesses owned by hundreds or thousands of persons

Malicious Prosecution

Causing someone to be arrested criminally without proper grounds Example: a security guard accuses someone of stealing money from a bank when more than one person was involved

Sexual Harassment Claims

Ch. 20

Sexual Orientation Discrimination

Ch. 20

General Counsel

Chief law officer and legal advisor

Conversion

Civil version of theft Wrongful excercise of dominion (power) and control over personal (nonland) resources that belong to another Can be temporary or permanent BUT must be a substantial or a serious invasion of property

Felony

Commenced by a Grand Jury Indictment Fine or imprisonment for 1 year or more

Misdemeanor

Commenced when the government files a charge called an information Fine or imprisonment less than 1 year

Strict Products Liability

Commercial seller who sells an unreasonably dangerous defective product that causes injury to a user of the product is strictly liable Production defects & design defects

Misappropriation Theory

Committed by individuals outside a company The outsider uses access to non-public classified or insider information about the company for securities trade, thereby committing fraud/misappropriation. Usually, outsiders get access to nonpublic information of a company through a source This information is used during a securities trade, thereby betraying the trust of the source resulting in securities fraud. Goal is to upkeep the integrity of the stock market

Common law vs. Civil law

Common: emphasizes the role of judges in determining the meaning of laws and how they apply; Judges follow precedent whenever possible Civil: relies more on legislation than judicial decisions t determine what the law is; Judges do not make lw and don't feel obligated to follow prior judicial decisions

Rule of Law

Concept that laws are made generally and equaly applicable; idea that the law applies to EVERYONE in the same way

What can I get if I've been Discriminated Against?

Congress amended the Civil Rights Act in 1991 to allow the recovery of compensatory and punitive damages of up to $300,000 per person depending on the size of the employer These damages are in addition to other remedies such as job reinstatement, back pay, & front pay.

Sources of law hierarchy

Constitution (top) Statutes of Congress Federal administration regulation State constitutions State Statutes State administrative regulation Local ordinances Case law (bottom)

Supremacy Clause

Constitution is the supreme law of the land; Federal law is supreme over state law

Fair use defense for copyrights

Copyright Act specifies the use of coprighted materials is not an infringement of the owner's property Includes: - criticism - comment - news reporting - teaching - scholarship - research

Review of Agency Decisions: Factual Determination

Courts presume the agency was right Evidence is assessed by analyzing the record of the agency's proceedings Courts do not.... 1. Reweigh the evidence 2. Make independent determinations of facts 3. Substitute tier view of evidence The Standard: Courts determine if there is substantial evidence to support the action taken. If so, the agency's findings and conclusions are upheld

Consequential damages

Damages for downstream impact of the breach (arises from unusual losses) - ie lost sales (shutting down your resturant because a fridge doesn't arrive)

Due Diligence Defense

Defense for experts Must prove: ​ A reasonable investigation of the financial statements of the issuer & controlling persons was conducted, AND​ as a result of that investigation an expert exercising due diligence must prove that there was no reason to believe any of the information in the registration statement or prospectus was false or misleading.

Criticism of Administrative Agencies: Procedures

Delay in the decision-making process Administrative process is overwhelmed with paperwork and meetings Rules and regulations are written in complex legal language Dictatorial in nature

Criticism of Administrative Agencies: Personnel

Difficulty in hiring and retaining the most qualified people Difficult to discharge unsatisfactory employees Personnel in top positions are selected for political reasons

What class is NOT protected under Title VII?

Disability

Discrimination is prohibited under:

Discharge Refusal to hire Compensation Promotion Terms, conditions, or privileges of employment Additional exemptions - Preferential treatment for veterans

SCOTUS abilities

Do they have to hear your case? NO To hear it, 4 of 9 Justices must agree to take the case.

Director of Operations

Duties may vary across agencies

Elements of Negligence

Duty of Care Breach of Duty Causation in Fact Proximate Causation Actual Injury

Disparate Treatment

Employer intentionally discriminates against a protected class Employer's policies, practices, or procedures are set up to intentionally eliminate a protected class You can't intentionally single out or treat an individual in a protected class less favorably. Employer Defense? Bona fide occupational qualification (BFOQ) relating to religion, sex, or national origin

Pregnancy Discrimination Act

Employers with health or disability plans must cover pregnancy and childbirth and related medical conditions in the same manner as other conditions Law covers unmarried and married women

Whistleblower Protection under SOX

Encourages individuals to report the corruption Whistleblowers can recover civil damages for retaliation Improperly terminated employees can be reinstated

Trespass to Land

Entering another's land without consent or to remain there after being asked to leave (the crossing of an owner's boundaries)

Fair Labor Standards Act (1938)

Establishes minimum wage, overtime pay, record-keeping requirements, and child labor standards. Minimum wage = $7.25/hour Minimum wage for tipped workers = $2.13 Overtime = 1.5 x regular rate of pay for every hour over 40 hours - EXEMPT EMPLOYEES: Executive administration, managers, professional positions, highly compensated employees - NONEXEMPT EMPLOYEES: all others Minimum age = 14 Limits on hours for minors under 16

Impossibility

Excuse for nonperformance: performance is illegal or physically impossible (under common law)

Actual Authority

Express (written, spoken, or derived from the circumstances) authority given to an agent - Ex: go to the grocery store and get 100 apples so the restaurant can make apple pies. you have permission to charge the company card

T/F? Omitting immaterial facts in filing a securities registration statement is a basis for liability

FALSE

Brown and Williamson Tobacco

FDA after the Food and Safety Act.... Typically, we allow agencies to have control, BUT ruled Congress would keep control so that the FDA could not OVER REGULATE

2 Step Process for Title VII Civil Rights Act of 1964

First look for right amount of employees Then apply whatever act it is

Attorney-Client Privilege

Forbids a lawyer to reveal confidential facts and testify against a client; extends to lawyers' employees

Excuses for nonperformance

Force Majeure Impossibility Frustration of Purpose Commercial Impracticability (UCC!) Waiver Release

Employment At Will

General Rule: Employers may discharge employees without cause at any time All states in the US follow this except Montana Exceptions: - Violations of Statutes - Contractual Rights - Public Policy

Beneficiaries

General rule: third parties cannot enforce a contract Exceptions: creditor & donee cases

Jumpstart Our Business Startups (JOBS) Act of 2012

Goals - Ease burdensome federal regulations - Allow individuals to invest in start-ups through relaxed rules Title II - Allows companies to advertise that they are seeking investments Title III - Allows a company to raise up to $1 million by selling securities

Discrimination in Health Insurance

Health Insurance Portability and Accountability Act (HIPAA) Affordable Care Act

History of Workers Compensation

Historically, employees could sue their employers for negligence. Employer could defend based on: - Assumption of the risk - Contributory Negligence - The fellow-servant rule In 1855, Georgia and Alabama passed Employer Liability Acts. By 1949, every state had a workers' compensation program.

Alien partnership

I live in Georgia and it is filed in Mexico

Foreign partnership

I live in Georgia and it is filed in Texas

Domestic partnership

I live in Goergia and it is filed in Georgia

Disparate Treatment or Disparate Impact? All applicants are required to take a pre-employment assessment test. Only whites are eliminated based on the results of the assessment

IMPACT

Section 18 of the Securities Exchange Act

Imposes liability on persons who shall make false and misleading statements of material fact Must prove the defendant knowingly made a false statement, that plaintiff relied on it and suffered damage. Defendant's good faith is a defense

Fraud under the '33 Act

Individual investors may sue under:​ 1. Section 11 - for false or misleading registration statement 2. Section 12(a)(2) - For false or misleading prospectus or oral communications SEC may bring an civil enforcement action under:​ 1. Section 17 - for fraud during the initial sale or issuance DOJ may bring criminal charges under:​ Section 24 - willful fraud during the initial sale or issuance ​

Difference between Insider Trading vs Misappropriation Theory

Insider Trading happens INSIDE a company Misappropriation happens OUTSIDE of a company

Who is an insider?

Insiders include officers, directors, employees, and professionals in fiduciary relationship with the firm AND tippees (a person who learns nonpublic info from an insider)

False Imprisonment

Intentional unjustified confinement of a nonconsenting person Example: you can detain someone who you suspect is shoplifting in a reasonable manner (cops must be called, can't lock them away/harm the person unreasonably)

Agencies: Investigating

Investigate activities and practices that may be illegal Subpoena powers to require reports, examine witnesses under oath and examine documents

Reviewability

Is the action or decision of the agency subject to judicial review? Does the state preclude review? Is the agency action committed to agency discretion by law?

Exemptions from Blue Sky Laws

Isolated transaction Limited offer to a limited number of offerees within a stated time period Private offering Sale in which the number of holders after the sale does not exceed a specific number

Thompson Vs. North American Stainless

Issue- Thompson's fiance claimed that she was being discriminated against on the basis of her gender so she filed a complaint. Thompson's employer then fired him and he sued for retaliation Holding- this was considered retaliation and the employer was found guilty of violating Title VII

Insider Trading Case

Issue: SEC filed suit against O'Hagan alleging that he defrauded his law firm and client by using non-public info for his own trading purposes Misappropriation Theory... A person (AKA temporary insider) commits fraud in connection with a securities transaction (thereby violating 10(b) and 10(b)5 when he misappropriated/ conveys nonpublic confidential info for securities trading purposes, in breach of a duty owed to the source of the information He owed a duty of trust and confidence to his law firm and its client

Case Under 10b-5

Issue: Whether a person who is not a "maker" of statement (3rd party), but disseminates false or misleading info with intent to defraud, can be liable under Rule 10b-5 Holding: Even though you aren't the maker or creator of the info, you can be held liable under Rule 10b-5 if you send out the information if you know it's false

Parties Regulated under the '33 Act

Issuer: individual or business offering a security for sale to the public Underwriter: anyone who participates in the original distribution of securities by selling securities for the issuer or guaranteeing their sale (Investment Bank or Securities Brokerage Firms) Controlling Person: is one who controls or is controlled by the issuer (Major Stockholder of a corporation) Seller: anyone who contracts with a purchaser or who is a motivating influence that causes the purchase transaction to occur

Review of Agency Decisions: Adjudications

Judicial review of agencies' adjudications is limited Courts exercise restraint and resolve doubtful issues in favor of an agency Agencies develop own rules of procedure Allows agencies to design rules peculiar to the industry and the tasks of the agency Courts lack the authority to substitute judgment for agency

Review of Agency Decisions: Standing to Sue

Judicial review of any administrative agency's decision requires standing to sue In order to establish standing, challenging party must address two issues.... Reviewability and Aggrieved Party

How do administrative agencies get their power?

Legislative, Executive, and Judicial Branches

Special/Limited Warranty deed

Limits the liability of the grantor/seller. Does not hold the grantor liable for what happened prior to his or her ownership - no guarantee against title defects dating from previous owners - cannot account for previous owners, but the seller is claiming good title to the property that they are selling. limits liability

Exhaustion of Remedies

Limits when courts can review administrative decisions Courts refuse to review administrative actions until a complaining party has exhausted all the administrative remedies and procedures available to him or her

Defenses to avoid Civil Liability under the '33 Act

Materiality Statute of Limitations Due Diligence

Request for an admission

Method of discovery: a chance to admit or deny the relevance of some issues in the case

Request for production of documents

Method of discovery: either party asking the other to produce specific documents

Depositions

Method of discovery: lawyer orally asks questions of the possible witness

Interrogatories

Method of discovery: series of written questions presened to the opposing parties

Are you entitled to take a lunch break?

NO

Can I refuse to provide health insurance if you have a pre-existing condition?

NO

Does the freedom of the press permit prior restraints?

NO

Is there a duty owed for non-conduct (hiking/bear example)?

NO

Advisory Council

Not employed by the agency Provide interaction between regulators and those being regulated

Do we have federal laws that protect against discrimination on a sexual basis?

Not federal, but we have state laws

Limited partners

Not responsible for the debts of the business organization - Unless they participate in the management or control of the organization- stay in your lane! Can assign interest without dissolving the partnership.

Agency Law

Operating the Organization through Agents General rule: a principal (the employer/business organization) can be held liable for the damages caused by its agent.

Consent Order

Order entered by the agency that is agreed upon by the accused and requires the accused to waive rights to judicial review Settlement Agreement: business agrees to comply with the rules and waiving rights to judicial review (Fines can be $10,000 a day)

Age Discrimination

Over 40 Years old

Do bailments refer to private or personal property?

PERSONAL

Aggrieved Party

Person suffered legal wrong because of agency action OR Adversely affected or aggrieved by agency action

General partners

Personally liable for the organization's debts Manage and control the company

Criticism of Administrative Agencies

Personnel Procedures Substance Cost to Business Cost to Society

Petit Jury vs Grand Jury

Petit: trial jury that return a verdict in criminal and civil situations Grand: does not make the decision; asks if we have probable cause to take it to trial

Standing to sue

Plaintiff must allege that a legal wrong has been committed against them AND that they have personal stake in the resolution

Motion to dismiss

Pretrial motion: examples are lack of jurisdiction, statute of limition bars suit

Motion for Summary Judgment

Pretrial motion: no general factual dispute exists and one party to the lawsuit is entitled to judgment as a matter of law. here the judge looks at evidence and not just the pleadings

Motion of Judgment on the Pleadings

Pretrial motion: the complaint does not meet all of the elements necessary to state a claim

Health Insurance Portability and Accountability Act (HIPAA)

Prevents discrimination against individual employees in small businesses

Sarbanes-Oxley Act of 2002 (SOX)

Primary Purpose: To ensure accuracy and integrity in the financial reporting of public companies. Applies to all public companies in the U.S. and international companies registered with the SEC This Act Revitalized the SEC... - Increased power over governance issues - Congress empowered the SEC to increase corporate accountability Created the Public Company Accounting Oversight Board (PCAOB) - Monitors accounting firms that audit public companies -Requires auditing firms to refrain from conducting non-auditing services -Non Auditing services include bookkeeping, system designs and implementation, appraisals and valuations, actuarial services, human resources functions, and investment banking.

Section 10b of the '34 Act and Rule 10b-5 of the SEC

Primary anti fraud law and rule relating to the secondary distribution of securities Unlawful to use interstate commerce or national securities to defraud any person in connection with the purchase or sale of any security. Allows investors to sue

Limited liability partnerships are generally used by

Professionals such as attorneys, accountants, and doctors

Equal Pay Act

Prohibits an employer from discriminating on the basis of sex in paying wages performing the same work under similar conditions in the same establishment Exception: Discrimination is allowed if it arises from a seniority or merit system

Americans with Disabilities Act

Prohibits both private and public employers with 15 or more employees from: - Requiring a pre employment medical examination (First job has to be offered and employee is chosen, then ask if they are physically able to complete the job) - Asking questions about the job applicant's medical history (First job has to be offered and employee is chosen, then ask if they are physically able to complete the job) Requires employers to provide reasonable accommodations: Adjusting a job or work environment to fit the needs of disabled employees - Employer can plead undue hardship Applies only to the qualified disabled: those with a disability who with or without a reasonable accommodation, can perform the essential functions of a particular job position

Age Discrimination in Employment Act (ADEA) of 1967

Prohibits employment discrimination against employees aged 40 and above Applies to both private and public employers with 20 or more employees Prohibits forced retirement Does NOT apply to executives (CEOs, CFOs) or true occupational limitations (police officers, pilots) Employer Defense: Employers must establish that a reasonable factor other than age accounted for the discriminatory impact..

Affordable Care Act

Prohibits insurance companies from refusing to cover individuals based on preexisting conditions Established exchanges where people can purchase health insurance outside of their employers Required insurers to allow children to stay on their parents' insurance until they are 26

Title VII of the Civil Rights Act of 1964

Prohibits job discrimination based on race, color, religion, sex, or national origin Applies to employers with 15 or more employees (KNOW THE NUMBER!) - Includes both public and private employers PROCESS - Aggrieved party must first report the discrimination to the Equal Employment Opportunity Commission (SEC) - Employee must file charges of illegal discrimination within 180 days - If the employee first filed with a state fair employment practices commission, the law extends the time for filing with the EEOC to 300 days.

Pros and cons of Common law

Pros: Laws can be concise Stare decisis: let the prior decision stand Judges follow precedents whenever possible Ensures certainty, stability, and predictability in the law Cons: Volume of cases Conflicting precedents Distinction between the holding and the dicta (increases the difficulty of determining the precedent) Rejection of precedent/bad precedent (belief cases were wrongly decided or times have changed)

Prospectus Con'td

Provided to interested investor Company has to describe important information about its business operations, financial conditions, results of operations, risk factors, and management Includes audited financial statements

Securities Enforcement Remedies Act

Provides civil fines of up to $500,000 per organization and $100,000 per individuals Prohibits convicted individuals from serving as officer or director of a business organization

Adverse possession

Provides ownership of land under state statute when the possession is: - Open and notorious: not trying to hide use of the land - Actual and exclusive: physically occupying the land (building, fence) - Continuous: possession must not be interrupted - Wrongful: cannot have the permission of the owner to use the land - For a prescribed period of 20 years

What areas of law fall under public v. private law?

Public Law: Includes those matters that involve the regulation of society as opposed to individual interacting Government represents society Includes Constitutional law, Administrative law, and Criminal law Private Law: Covers those legal problems that concern your private resources and relationships with other people

Cost to Society

Public is forced to pay for things that are not needed Inefficient regulatory process increases the cost significantly Agencies are required to publish guidelines and rules in the Federal Register

Statute of Limitations Defense

Purchaser must bring action within certain timeframe.​ Basic period is 1 year (1 year does not start to run until the discovery of the untrue statement or omission OR it does not start to run until the time such discovery would have been made with reasonable diligence) ​ In no event may a suit be brought more than 3 years after the sale​ Also a defense to criminal liability

Workers Compensation

Purpose: Protect employees and their families from the risks of accidental injury or death resulting from employment Applies to: injuries in the course of employment Creates strict (no fault) liability for employers of accidentally injured workers - Liability of employer exists regardless of lack of negligence or fault - The three defenses employers had are eliminated Provides cash payments for loss of income and medical benefits Tests for determining compensation - Was the injury accidental? - Did the injury arise out of and in the course of employment? Exclusive remedy rule: Employee's sole remedy for workplace injury shall be workers' compensation

Agencies: Adjudicating

Quasi-Judicial Function: involves fact-finding and applying the law to the facts, as well as making decisions like courts do Tools include Cease and Desist Order & Consent Order

Agencies: Rule Making

Quasi-legislative power Regulations have the force and effect of law (MUST ALLOW FOR PUBLIC COMMENT AFTER PROPOSING REGULATIONS) Guidelines are advisory but do not have the force and effect of law

Difference between quid-pro-quo and hostile work environment?

Quid-pro-quo: this for that Hostile: highly inappropriate

Employers vs Employment Agencies

RULE: Employment agencies are prohibited from either failing to refer or from actually referring an individual for employment on the basis of race, color, religion, sex, or national origin The above rule differs from the law binding employers, where it is unlawful only to fail or refuse to hire on discriminatory grounds. - The affirmative act of hiring for a discriminatory reason is apparently not illegal for employers

Protected Classes Under Title VII

Race, Color, Religion, Sex, and National Origin

Documents Required Under the '33 Act

Registration Statement (Form S-1): detailed disclosure of financial information about the issuer and controlling individuals filed with the SEC Prefiling period - issuer may only engage in preliminary negotiations and agreements with underwriters Waiting period - accuracy of the registration statement is assessed. Issuer may only solicit buyer or receive offers (but cannot accept yet) Post Effective period (20 days after registration is filed) - issuer may sell securities​ Prospectus - Contains key information contained in the company's registration statement

3 Types of Registration Requirements under State Blue Sky Laws

Registration by Notification: allows issuers to offer securities for sale automatically after a stated time period expires (unless the administrative agency takes action to prevent the offering). Registration by Qualification: requires a detailed disclosure by the issuer A security can't be offered for sale until administrative agency grants the issuer a license or certificate to sell securities Registration by Coordination: For issuers who must register with the SEC, state registration becomes effective when the federal registration is deemed effective.

Securities & Exchange Act of 1934 (The '34 Act)

Regulates transfers of securities after the initial (secondary distribution) Created the Securities and Exchange Commission (SEC) Illegal to sell unregistered securities on national securities Registration requires filing prescribed forms with the applicable stock exchange and SEC

Cost to Business

Regulation increases the cost of doing business Consumer pays both direct in taxes and indirect cost of regulation Companies are forced to create an internal bureaucracy to deal with the agency Cost of paperwork: additional cost to the business community

Agencies: Advising

Reporting to the President Recommending legislation to Congress Reporting to the general public Issuing Advisory Opinions to Businesses or Individuals Not binding

Family and Medical Leave Act (FMLA)(1993)

Requires employers to provide up to 12 weeks of unpaid leave for: - Birth and care of a newborn child - Adoption of child or placement of foster child - Care of an immediate family member (spouse, minor child, parent) with a serious health condition - Employee is unable to work due to a serious health condition Applies to: - Employers who employ 50 or more employees Eligible employees: - Worked for a minimum of 12 months for the employer Employers: - Must notify employees that they are eligible for leave under the Act - May request medical certification that a qualifying event has occurred - Must keep the job available for the employee upon return

Securities and Exchange Commission (SEC)

Responsible for administering the federal securities laws Consists of five commissioners appointed by the President for 5 year terms Possess quasi-legislative and quasi-judicial powers

Judicial restraint vs Judicial activism

Restraint: following precedent where applicable; Judicial review should not be used except in unusual cases Activism: interpreting the Constitution relevant to the times we're living in; Judicial review should be used when the needs of society justify its use

Functions of Agencies

Rule Making Adjudicating Advising Investigating

Criticism of Administrative Agencies: Substance

Rules and regulations overlap and conflict Actions for illegal conduct end only with consent orders Enforcement of law varies over time

Separation of Powers vs. Federalism

SOP: Separation between the Legislative (A1), Executive (A2), and Judicial (A3) Brnaches Fed: Separation between local and state governments

Corporate Governance under SOX

SOX increases the independence of the auditors Members of public company's audit committee must be independent from the control of the company - Public Companies can no longer place its finance officer or other employee on the audit committee. -Minimum one member should be financial expert Auditors should report to the audit committee Audit records must be preserved for 7 years

Civil Liability Sections under the '33 Act

Section 12(a)(1) - Liability for failure to file registration statement Section 11 - Liability for false or misleading registration statement (Anybody involved can be held liable) Section 12(a)(2) - Liability for false or misleading prospectus or other interstate communication (by mail, telephone internet)

Short Swing Profits by Insiders under Section 16

Section 16 prohibits short-swing profits (profits made within a six month time period) Based on the assumption that insiders have material, nonpublic information during this period. As such, any trades during this period are per se illegal (regardless of the insiders' state of mind) Any profits derived from the sale are forfeited to the corporation or to the investor Not prohibited by the SEC

Financial Statements & Controls Under SOX

Section 302 of SOX - Requires CEOs and CFOs to certify the accuracy of the quarterly and annual financial statements filed with the SEC Section 404 of SOX - Mandates the certification of internal financial controls Decline in restatements of financial reports indicate the positive impact of Sarbanes-Oxley Act

Civil Liability Under the '34 Act

Securities Enforcement Remedies Act Section 18 of the Securities Exchange Act

Criminal Liability under the '34 Act

Securities Exchange Act, 1934 Provides for criminal sanctions for willful violations Imposed for false material statements in applications, reports, registration statements, and documents Renders fines of up to $5,000,000 per individual and $25,000,000 per organization Provides imprisonment up to 20 years (individual) and 25 years (business organization)

Reasons for Administrative Agencies

Specificity Expertise Protection Regulation Services

Leave to take care of...

Spouse Minor Child Parent Can't be an in-law

What can/can't be patented

Subject Matter that CAN be Patented: Process (can be controversial) Machine Article of Manufacture or Composition of Matter (or improvement thereto) Subject matter that CAN'T be patented: Laws of Nature Natural phenomena Abstract idea Mathematical algorithms or formulas

Disparate Treatment or Disparate Impact? All-girls middle school with 50 employees seeks to hire a female only teacher

TREATMENT

Disparate Treatment or Disparate Impact? Only African American applicants are required to take a pre-employment assessment test

TREATMENT

Securities Act of 1933

The first major federal law regulating the securities industry. It requires firms issuing new stock in a public offering to file a registration statement with the SEC.

Fee Simple Absolute

The maximum possible estate or right of ownership of real property, continuing forever "To Juanita"

Tippees are only liable if...

Tippees are only liable if the tipper breaches a fiduciary duty to the business organization or fellow shareholders AND if that tippee knows that the tipper breached that duty to the company.

Disparate Impact

Unintentional Employer's policy, practices, or procedures are unbiased but end in a disproportionate impact on a protected class Employer Defense? The challenged employment practice is job-related and consistent with business necessity

Frolic and detour

Was the employee in the scope of his/her employment when the tort occured? you work at a store. someone is returning clothes, you get into an argument with the customer and hit them. your employee is responsible and the company is liable. VS if they are talking about football and get into an argument, it is a different outcome

Undue Influence

When one is taken advantage of unfairly by a party who misuses a position of relationship or legal confidence Example: Often arise when persons weakened by age or illness are persuaded to enter into a disadvantageous contract. TRUST

Motion for a directed verdict

When? After the plaintiff has presented his/her case What? Requests the judge to issue a ruling after determining that there is no legally sufficient reason for a reasonable jury to reach a different conclusion Removes the jury's discretion

Section 16 Insider Trading

Who is an insider? Person who owns more than 10% of any security AND is a director or officer of the issuer of the security. Insider trading is prohibited to prevent the use of information available to an insider but not to the general public

Section 10b of the '34 Act Con't

Who is liable? Parties directly connected to a fraudulent scheme in the sale of securities are liable To win, a plaintiff must prove: Material misrepresentation or omission by defendant Scienter (intent) Connection between misrepresentation/omission and the transaction Reliance on the misrepresentation/omission Economic loss (Damages) Loss causation

Criminal Liability (Section 24 of the '33 Act)

Willful violation of the act or fraud in the initial offer or sale of securities​ Fraud? Any material fact is omitted or misrepresented that causes a statement to be misleading Punishable by fines and/or imprisonment Actions are brought by the Department of Justice (DOJ)

Can I factor in the brand of the business when we're talking about discrimination?

YES

Can failure to disclose or silence be fraud?

YES

Can there be overlapping intellectual property rights example: cellphone screen, buttons, etc

YES

Can we allow 3rd parties to file a retaliation?

YES

Do contract terms have to be definite and specific?

YES

Does an employer have to fill the gap for a waiter if tips aren't making minimum wage?

YES

Does the freedom of speech apply to symbols?

YES

Expectation of privacy- private

YES high

Expectation of privacy- public/commercial

YES lower threshold

Can you get out of a contract even after you turn 18?

YES you can still say you want to get out of a contract so long that it has been a reasonable amount of time

Technically, can an employer hire someone on a discriminatory basis?

Yes, they just can't refuse to hire on a discriminatory basis

Service Mark

a mark associated with a service

Certification Mark

a mark used by someone other than the owner to certify the quality of goods or services

Option Contract

a promise to keep an offer open

Duty of Care

a responsibility to another person to excercise reasonable care and skill to avoid causing injury or harm example: safe driving

Mirror Image Rule

acceptance must match the offer exactly to create a binding contract, otherwise it is a counteroffer

Negative easement

an agreement that you will not do anything to your property that will damage my property and cause it to cave in, collapse, etc.

Overt act

any act knowingly committed by at least one of the conspirators in an effort to carry out or accoplish some objective of the conspriracy

Trade Secrets

any form of knowledge or information that has economic value from nit being generally known to othes or readily ascertainable by proper means; the owner as to make reasonable efforts to maintain secrecy

Primary Jurisdiction

applies when a claim is originally filed in the courts invoked when referral to the agency is preferable due to its expertise (judicial process is suspended pending referral to the administrative agency)

Patents

associated with an inventive act, and conveys a right to exclude others from making, using, sellng, or importing the covered invention; exclusive with the PTO for a limited period of time

Burden of Proof in Criminal Cases

beyond a resonable doubt (highest standard/hardest to prove)

Defense to Treatment

bona fide occupational qualification but only relates to religion, sex, or national origin

Burglary

breaking into building or house with the intent to commit a felony

Intervening Cause

causes of injury that intervene between the defendat's negligence and the plaintiff's injury can destroy the necessary proximate causation

Obstruction of Justice

commission of an act with the intent to interefere with the legislative or judicial process

Front Pay

compensation for future wage loss as a result of discrimination When the employee is looking for a new job or is waiting for reinstatement to their job

Back Pay

compensation for lost wages for the time employee was not working due to illegal workplace discrimination

Offer to Contract

contains a specifc promise and a specific demand; makes a commitment to the offeree general rule: contractual terms must be definite and specific in order to be enforcebale

Compensatory damages

damages that aim to put the plaintiff in the same position as if the contract had been performed

Intent (Intentional Tort)

deliberate actions that cause injury or harm; the desire to bring about certain results (with your actions)

Deed

document of title that trasnfers ownership of land

Role of jurors

fact-finding body

First Amendment Protections

freedom of religion, freedom of speech, commercial speech, freedom of press

Establishment Clause

government cannot prefer one religion over another or endorse religion in general

Free Excercise Clause

government generally cannot limit your ability to practice your religion

Defense to Impact

have to show what we're doing is job related and a necessity

Easement by prescription

if someone has been openly, wrongfully, and continuously crossing or using the land and you don't say anything, you cannot try to prevent them from crossing or using your property (if you don't do anything in a 20 year span, your complaint would be void)

Civil Liability Section 17 ('33 Act)

imposes civil liability for using any device, scheme, or artifice of fraud in the initial sale of security​ (A catchall for the fraud not picked up by the other sections we've covered) More specifically, you can't use any instrument of interstate communication in the offer or sale of any security when the result is: ​ 1. To defraud (Have to prove intent_ 2. To obtain money or property by means of an untrue or misleading statement, 3. To engage in a business transaction or practice that may operate to defraud or deceive a purchaser.

If you have a complaint...

it is not a final decision and you cannot get an outside court to look at it

Robbery

lacrency by violence or threat

Zoning ordinances

laws that divide counties into use districts designated residential, commercial, or industrial

Pleadings

legal documents that are filed with a court to begin the litigation process

What is property?

legal right to exclude others from resources that are originally possessed or are acquired without force, theft, or fraud

Quitclaim deed

makes no guarantees other than that the grantor surrenders all claim against the land - offers no kinds of protections for the land - seller is not claiming good title for themselves or anyone prior

Trademark

mark, word, picture, or design that attaches to goods to indicate their source

Jury Selection

may be excused for a specific reason or a peremptory challenege may be used

Acceptance of an Offer

necessary to create a valid, enforcable contract bilateral: accepted when offeree has made the required promise unilateral: accepted by performing a equested act (not by making a promise)

Peremptory Challenge

no cause or reason needs to be given to excuse a prospective juror; allowed a certain number per court

When is an offeror's revocation effective?

not effective until the offeree actually receives it

Characteristics of patents

novelty, non-obviousness, utility

Slander

oral defamation

Closely held organizations

organizations owned by only a few people ex: family-owned and family-operated businesses

Parole Evidence Rule

parties to a complete and final written contract cannot introduce evidence of oral agreements made at either the time of or prior to the wroteen contract that would change the term of the contract

Subject Matter Jurisdiction

power over the issues involved in a case

Chairperson

presiding officer at meetings, most visible, usually belongs to same political party as the president

Discovery

procedure by which one party obtains information relevant to the case from the other party of third persons

Warranty deed

promises the grantee that the grantor has good ownership and the full power to convey it. Buyer can sue the seller if someone else claims the land - not only do you have good title to the property being conveyed, but everyone prior to me also had good title of the ownership

Copyrights

property right in creative expression that protects creators; afford an author, artist, or other creator a monopoly in the right to copy and market their creative expression for a lmited time

Immunity

protection of judges from liability for damages based on decisions don't want them to have liability when making decisions

Consideration

receipt of a legal benefit or the suffering of a legal detriment; bargained for exchange Examples: - A promise to pay - A promise to deliver goods or perform services - An agreement not to sue - A promise to keep an offer open (option contract)

Secretary

responsible for the minutes and records, signs orders and official correspondence

Appeal Court Judges/Justices

review the law and decide an appeal (with reasons); assume that the trial court got the facts correct; decisions become precedent

Easement

right of someone other than the owner to cross over land or use the land

Cease and Desist Order

ruling requiring a company to stop an unfair business practice that reduces or limits competition

The three groups that run a corporation are

shareholders, Board of Directors, and officers

Accession

something that is added - Law: when people apply efforts to any raw material and change its nature into finished products, they own the finished products - Airplane parts example

Equal Protection

the law should not treat people differently without a satisfactory reason

Trade dress

the look or design of a product or service

Rejection

the offeree rejects the offer made

Revocation

the offeror retracts the offer before it is accepted

Eminent Domain

the right of government to take private property for public use

Insider Trading (Fraud under 10b and Rule 10b-5)

the sale or purchase of securities by individuals privy to non-public, material info based upon his/her special relationship with the corporation

Burden of Proof

the standard that the plaintiff would have to demonstrate in order to recover damages from the other party

Wire Fraud

unlawful to use any electronic means of interstate communication (e.g., radio, TV, phone call, text message, fax, internet, email) to defraud someone

Negligence

unreasonable behvior that causes injury

Subject Matter Illegality

when a change in the law renders the agreement illegal, acceptance is no longer possible

Liquidated damages

when the amount of damages is stipulated in the contract - not trying to assess a penalty; only trying to assess the amount of damages for the contract value

Subject Matter Destruction

when the object of the contract is destroyed or legally eliminated

Lapse of time

when the offeree faisl to accept by a deadline defined in the offer or after a reasonable period of time

Counteroffer

when the offeree makes a counterpropsal to request new contractual terms

Offeror Death or Insanity

when the offeror no longer has the capacity to make the offer

Embezzlement

when you entrust someone with money or property, then they use that money for their own use

Libel

written defamation, including TV and radio

Complaint

written statement of plaintiff's position and allegations

Moral Responsibility vs. Legal Duty

you may feel a moral responsibility to inform someone of something otentially dangerous, but there is no legal duty to do so