BLAW Test 2 Cases and Vocabulary
domain name
The series of letters and symbols used to identify site operators on the Internet; Internet "addresses."
peer-to-peer (P2P) networking
The sharing of resources (such as files, hard drives, and processing styles) among multiple computers without necessarily requiring a central network server.
actus reus
A guilty (prohibited) act. The commission of a prohibited act is one of the two essential elements required for criminal liability, the other element being the intent to commit a crime.
sublease
A lease executed by the lessee of real estate to a third person, conveying the same interest that the lessee enjoys but for a shorter term than that held by the lessee.
hacker
A person who uses one computer to break into another. Professional computer programmers refer to such persons as "crackers."
promise
A person's assurance that he or she will or will not do something.
crime
A wrong against society proclaimed in a statute and punishable by society through fines and/or imprisonment—or, in some cases, death.
computer crime
Any violation of criminal law that involves knowledge of computer technology for its perpetration, investigation, or prosecution.
trade secret
Information or a process that gives a business an advantage over competitors who do not know the information or process.
Identity theft
The act of stealing another's identifying information—such as a name, date of birth, or Social Security number—and using that information to access the victim's financial resources.
Sharon Watkins
-"Whistle blower" -SEC launched investigation
Arthur Anderson
-Acct firm -shredded more than 1 ton of paper -Andersen received $1M a week -Andersen for obstructing justice, oldest acct firm gone, 29000 jobs gone and shareholders sued
Rent
-Amount agreed to by the parties, or -If no specific agreement, then fair rental value.
When is rent payable?
-At time and place agreed to by the parties, or -If no specific agreement, then -If lease is a month or shorter, at the beginning of the lease term, or -If lease is longer than a month, in equal monthly installments at the beginning of the month.
Andrew Fastow
-CFO -Cover up fact that company was losing money -Structured finance -hide 30B in debt -LJM $45 M for himself -Anderson approved it -Skilling and Lay did sign off -fired after making millions off LJM -$30M fine and got 10 yrs in prison
Ken Lay
-Chairman/CEO -didn't think they did anything wrong -largest corporate campaign supporter for George W. Bush -Bush/Lay were friendly -came from poor family -phd in economics -liberate businessmen from government, wanted deregulation -billions of subsidies for Enron from Bush Sr. -Enron oil scandal Vahalla Scandal 1987 -traders gambled away all reserves -Took over as CEO after Skilling stepped down
Length of Rental Agreement
-For the term set forth in the rental agreement, or -If no term in the rental agreement, week to week in case of a roomer who pays weekly rent, and in all other cases month to month
Specialty visas
-H-2 visas provide for workers performing agricultural labor of a seasonal nature. -O visas provide entry for persons who have "extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim." -L visas allow a company's foreign managers or executives to work inside the United States. -E visas permit the entry of certain foreign investors or entrepreneurs.
If natural disaster occurs,
-If the dwelling unit or premises are damaged or destroyed by fire or casualty to an extent that enjoyment of the dwelling unit is substantially impaired, the tenant may: -Immediately vacate the premises and notify the landlord in writing within fourteen days thereafter of his intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating; or -If continued occupancy is lawful, vacate any part of the dwelling unit rendered unusable by the fire or casualty, in which case the tenant's liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit. -If the rental agreement is terminated the landlord shall return all prepaid rent and security deposit recoverable. Accounting for rent in the event of termination or apportionment is to occur as of the date of the casualty. Notwithstanding the provisions of this section, the tenant is responsible for damage caused by his negligence.
Nebraska Statute Uniform Residential Landlord and Tenant Act does not apply to:
-Institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious, or similar service. -Contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser or a person who succeeds to his or her interest. -Member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization. -Transient in a hotel or motel. -Employee of a landlord whose right to occupancy is conditional upon employment. -Owner of a condominium unit or a holder of a proprietary lease in a cooperative. -Rental agreement covering premises used by the occupant primarily for agricultural purposes. -A lease of improved or unimproved residential land for a term of five years or more.
If tenant discontinues paying rent, can landlord lock out the tenant?
-Landlord must follow legal and notice requirements under the Act. -Landlord must make demand in writing that rent be paid within 3 days, and if not paid, rental agreement will be terminated-If tenant pays, agreement cannot be terminated. -If tenant doesn't pay and refuses to voluntarily leave, landlord may file lawsuit to have tenant evicted. -Landlord may not lock out a tenant, take possession of the tenant's belongings or remove the tenant's belongings. -A court order of eviction is required before the tenant can be forced to move.
Deposits at termination of tenancy
-Money landlord holds can be applied to unpaid rent and damage to property -Upon demand of tenant, landlord is required to return any balance and a written itemization within 14 days -If the landlord does not do so, tenant may recover the property and money due him/her and reasonable attorney's fees
Jeff Skilling
-President and CEO, -friends with Baxter -didn't think they did anything wrong -big ideas -mark to market accounting - approved by Anderson -book potential future profits - could forge numbers, open to manipulation -"selfish gene" - jeffs fave book -Darwinian view of life - only money should matter -PRC - performance review committee (10% had to be a 5, and people had to be fired, brutal process) -very aggressive traders -huge risk taker -weird dangerous trips w/ customers and employees -stock market rose a ton -pump & dump, raise stock prices then cash them all in -"guys with spikes" with Ken Rice and Baxter and Lou Pi -Skilling was very emotionally unstable -Skilling randomly resigned in 2001 -insider trading and conspiracy 23$M to lawyers
Lou Pi
-Strippers & money -Strip club every night, charged to Enron & brought strippers to office, -lost interest in EES, -sold all stock after divorce, to marry stripper girlfriend who had child with him, moved to CO
Landlord's access
-Tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations, or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen, or contractors. -Landlord may enter the dwelling unit without consent of the tenant in case of emergency. -Landlord shall not abuse the right of access or use it to harass the tenant. Except in case of emergency or if it is impracticable to do so, the landlord shall give the tenant at least one day's notice of his intent to enter and enter only at reasonable times. -Also if tenant is absent in excess of 7 days then at times reasonably necessary, if tenant has abandoned or surrendered the premises, or by court order.
Tim Beldon
-West coast -rolling blackouts, forced outage to increase electricity prices -made bets that electricity prices would go up
Can landlord raise the rent?
-What does the rental agreement say? -If month-to-month lease, landlord cannot raise without a 30 day notice that the rent will be raised on or before a rental payment date, beginning at the next rental payment date or later.
Enron
-largest corporate bankruptcy -Everything was in the interest of the shareholders -7th largest corporation -20,000 lost jobs, 2 Billion in pensions gone -55$ in bonuses -$2B in pension gone -Enron merged with Portland General to enter electricity market
Defenses to Negligence
1. The accountant was not negligent. 2. If the accountant was negligent, this negligence was not the proximate cause of the client's losses. 3. The client was also negligent (depending on whether the state applies contributory negligence or comparative negligence.
indictment
A charge by a grand jury that a reasonable basis (probable cause) exists for believing that a crime has been committed and that a trial should be held.
Internet service providers (ISPs)
A business or organization that offers users access to the Internet and related services.
employment at will
A common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise.
implied contract
A contract formed in whole or in part from the conduct of the parties (as opposed to an express contract). Also known as implied-in-fact contract.
void contract
A contract having no legal force or binding effect.
express contract
A contract in which the terms of the agreement are fully and explicitly stated in words, oral or written.
Formal contracts
A contract that by law requires a specific form, such as being executed under seal, to be valid.
Informal contracts
A contract that does not require a specified form or formality in order to be valid.
executed contract
A contract that has been completely performed by both parties.
executory contract
A contract that has not as yet been fully performed.
voidable contract
A contract that may be legally avoided (canceled, or annulled) at the option of one of the parties.
unilateral contract
A contract that results when an offer can only be accepted by the offeree's performance.
valid contract
A contract that results when elements necessary for contract formation (agreement, consideration, legal purpose, and contractual capacity) are present.
cyber crime
A crime that occurs online, in the virtual community of the Internet, as opposed to the physical world.
Felonies
A crime—such as arson, murder, rape, or robbery—that carries the most severe sanctions, usually ranging from one year in a state or federal prison to the forfeiture of one's life.
trademark
A distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they may be identified on the market and their origins made known. Once a trademark is established (under the common law or through registration), the owner is entitled to its exclusive use.
Quasi contracts
A fictional contract imposed on parties by a court in the interests of fairness and justice; usually, quasi contracts are imposed to avoid the unjust enrichment of one party at the expense of another.
I-9 Verification
A form from the Department of Homeland Security, U.S. Citizenship and Immigration Services, used for employment eligibility verification; a form that documents that each new employee is authorized to work in the United States
typosquatting
A form of cybersquatting that relies on mistakes, such as typographical errors, made by Internet users when inputting information into a Web browser.
information
A formal accusation or complaint (without an indictment) issued in certain types of actions (usually criminal actions involving lesser crimes) by a law officer, such as a magistrate.
patent
A government grant that gives an inventor the exclusive right or privilege to make, use, or sell his or her invention for a limited time period. The word patent usually refers to some invention and designates either the instrument by which patent rights are evidenced or the patent itself.
grand jury
A group of citizens called to decide, after hearing the state's evidence, whether a reasonable basis (probable cause) exists for believing that a crime has been committed and whether a trial ought to be held.
Misdemeanors
A lesser crime than a felony, punishable by a fine or imprisonment for up to one year in other than a state or federal penitentiary.
collective mark
A mark used by members of a cooperative, association, or other organization to certify the region, materials, mode of manufacture, quality, or accuracy of the specific goods or services. Examples of collective marks include the labor union marks found on tags of certain products and the credits of movies, which indicate the various associations and organizations that participated in the making of the movies.
certification mark
A mark used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or accuracy of the owner's goods or services. When used by members of a cooperative, association, or other organization, such a mark is referred to as a collective mark. Examples of certification marks include the "Good Housekeeping Seal of Approval" and "UL Tested."
service mark
A mark used in the sale or the advertising of services, such as to distinguish the services of one person from the services of others. Titles, character names, and other distinctive features of radio and television programs may be registered as service marks.
distributed network
A network that can be used by persons located (distributed) around the country or the globe to share computer files.
promisee
A person to whom a promise is made.
offeree
A person to whom an offer is made.
promisor
A person who makes a promise.
offeror
A person who makes an offer.
due diligence
A required standard of care that certain professionals, such as accountants, must meet to avoid liability for securities violations. Under securities law, an accountant will be deemed to have exercised due diligence if he or she followed generally accepted accounting principles and generally accepted auditing standards and had, "after reasonable investigation, reasonable grounds to believe and did believe, at the time such part of the registration statement became effective, that the statements therein were true and that there was no omission of a material fact required to be stated therein or necessary to make the statements therein not misleading."
license
A revocable right or privilege of a person to come on another person's land.
International Financial Reporting Standards (IFRS)
A set of global accounting standards created by the International Accounting Standards Board (IASB) that are being phased in by companies in the United States. The Securities and Exchange Commission is working towards a convergence between the IASB and U.S. accounting standards.
double jeopardy
A situation occurring when a person is tried twice for the same criminal offense; prohibited by the Fifth Amendment to the Constitution.
trade name
A term that is used to indicate part or all of a business's name and that is directly related to the business's reputation and goodwill. Trade names are protected under the common law (and under trademark law, if the name is the same as the firm's trademark).
objective theory of contracts
A theory under which the intent to form a contract will be judged by outward, objective facts (what the party said when entering into the contract, how the party acted or appeared, and the circumstances surrounding the transaction) as interpreted by a reasonable person, rather than by the party's own secret, subjective intentions.
Cyber torts
A tort committed via the Internet.
bilateral contract
A type of contract that arises when a promise is given in exchange for a return promise.
worm
A type of malware that is designed to copy itself from one computer to another without human interaction. A worm can copy itself automatically and can replicate in great volume and with great speed. Worms, for example, can send out copies of themselves to every contact in your e-mail address book.
virus
A type of malware that is transmitted between computers and attempts to do deliberate damage to systems and data.
unenforceable contract
A valid contract rendered unenforceable by some statute or law.
Case 11.3 Wagner v. Columbia Pictures Industries, Inc.
Actor Robert Wagner entered into an agreement with Spelling-Goldberg Productions (SGP) "relating to Charlie's Angels (herein called the 'series' )." The contract entitled Wagner to 50 percent of the net profits that SGP received from broadcasting the series and from all ancillary, music, and subsidiary rights in connection with the series. SGP hired Ivan Goff and Ben Roberts to write the series, under a contract subject to the Writers Guild of America Minimum Basic Agreement (MBA).Footnote The MBA stipulates that the writer of a television show retains the right to make and market films based on the material, subject to the producer's right to buy this right if the writer decides to sell it within five years. The first Charlie's Angels episode aired in 1976. In 1982, SGP sold its rights to the series to Columbia Pictures Industries, Inc. Thirteen years later, Columbia bought the movie rights to the material from Goff's and Roberts's heirs. In 2000 and 2003, Columbia produced and distributed two Charlie's Angels films. Wagner filed a suit in a California state court against Columbia, claiming a share of the profits from the films. The court granted Columbia's motion for summary judgment. Wagner appealed to a state intermediate appellate court. The state intermediate appellate court affirmed the lower court's summary judgment in favor of Columbia. The contract "unambiguously" stated the conditions under which the parties were to share the films' profits, and those conditions had not occurred.
auditor
An accountant qualified to perform audits (systematic inspections) of a business's financial records.
cease-and-desist order
An administrative or judicial order prohibiting a person or business firm from conducting activities that an agency or court has deemed illegal.
contract
An agreement that can be enforced in court; formed by two or more parties, each of whom agrees to perform or to refrain from performing some act now or in the future.
wrongful discharge
An employer's termination of an employee's employment in violation of an employment contract or laws that protect employees.
Case 47.1 Kelley v. Buckley
Attorneys Michael Kelley and James Ferraro founded Kelley & Ferraro, LLP (K&F), an Ohio law firm. When Kelley died, his widow, Lynn Kelley, contacted lawyer Brent Buckley of Buckley King, LPA, who had drafted the K&F partnership agreement. The agreement provided that on Michael's death, Lynn was to be paid 40 percent of the firm's gross revenues. Buckley King had recently been retained by Ferraro to represent his interests in any dispute with Michael's estate, however, and Brent Buckley himself advised Lynn, the executor of the estate, to settle with Ferraro quickly. Despite Lynn's repeated requests, Buckley did not give her a copy of the partnership agreement. Meanwhile, she became embroiled in litigation with lawyer John Sivinski, who had worked for K&F and claimed a share of Michael's profits. Buckley King represented Ferraro and K&F in this dispute and withheld copies of an employment contract between K&F and Sivinski. When Lynn eventually obtained a copy of Sivinski's contract, it revealed that his claim against the estate was fraudulent. She then filed a suit in an Ohio state court against Brent Buckley and Buckley King, alleging malpractice. The court issued a summary judgment in favor of Buckley and the firm. Lynn appealed. A state intermediate appellate court reversed the summary judgment in the defendants' favor and remanded the case for additional discovery and a trial. The court found genuine issues of material fact relating to all of Lynn's claims. The court also awarded Lynn the costs of the appeal.
spam
Bulk, unsolicited (junk) e-mail.
minimum wage
The lowest wage, either by government regulation or union contract, that an employer may pay an hourly worker.
mens rea
Criminal intent. A wrongful mental state, which is as necessary as a wrongful act, to establish criminal liability. What constitutes a guilty mental state varies according to the wrongful action. Thus, for murder, the mens rea is the intent to take a life. For theft, the mens rea must involve both the knowledge that the property belongs to another and the intent to deprive the owner of it.
Ch 8
Ch 8
Ch 9
Ch 9
Chapter 10
Chapter 10
Chapter 11
Chapter 11
Chapter 34
Chapter 34
Chapter 47
Chapter 47
Chapter 49 Sec 6
Chapter 49 Sec 6
Case 8.1 The Coca-Cola Co. v. The Koke Co. of America
Coca-Cola sued Koke for trademark dilution because it sounded like their drink.
Extrinsic evidence
Evidence that relates to a contract but is not contained within the document itself, such as the testimony of parties and witnesses, or additional agreements or communications. A court may consider extrinsic evidence only when a contract term is ambiguous and the evidence does not contradict the express terms of the contract.
Case 10.3 Miranda v. Arizona
Ernesto Miranda was arrested at his home for the kidnapping and rape of an eighteen-year-old woman. Miranda was taken to a Phoenix, Arizona, police station and questioned by two officers. Two hours later, the officers emerged from the interrogation room with a written confession signed by Miranda. A paragraph at the top of the confession stated that the confession had been made voluntarily, without threats or promises of immunity, and "with full knowledge of my legal rights, understanding any statement I make may be used against me." Miranda was never advised that he had a right to remain silent and a right to have a lawyer present. The confession was admitted into evidence at his trial, and Miranda was convicted and sentenced to prison for twenty to thirty years. Miranda appealed, claiming that he had not been informed of his constitutional rights. The Supreme Court of Arizona held that Miranda's constitutional rights had not been violated and affirmed his conviction. The Miranda case was subsequently reviewed by the United States Supreme Court.
Nebraska Statute Uniform Residential Landlord and Tenant Act applies to:
Dwelling units within Nebraska
Enron Movie
Enron Movie
John "Cliff" Baxter
Enron employee, committed suicide and found in car with gunshot wound to head, friends with Jeff Skilling -manic depressive -Baxter and Fastow didn't like each other
Money laundering
Falsely reporting income that has been obtained through criminal activity as income obtained through a legitimate business enterprise—in effect, "laundering" the "dirty money."
Cyber fraud
Fraud that involves the online theft of credit card information, banking details, and other information for criminal use.
Case 47.2 Overton v. Todman & Co., CPAs
From 1999 through 2002, Todman & Company, CPAs, P.C., audited the financial statements of Direct Brokerage, Inc. (DBI), a broker-dealer in New York registered with the Securities and Exchange Commission (SEC). Each year, Todman issued an unqualified opinion that DBI's financial statements were accurate. DBI filed its statements and Todman's opinions with the SEC. Despite the certifications of accuracy, Todman made significant errors that concealed DBI's largest liability—its payroll taxes—in the 1999 and 2000 audits. The errors came to light in 2003 when the New York State Division of Taxation subpoenaed DBI's payroll records, and it became clear that the company had not filed or paid its payroll taxes for 1999 and 2000. This put DBI in a precarious financial position, owing the state more than $3 million in unpaid taxes, interest, and penalties. To meet its needs, DBI sought outside investors, including David Overton, who relied on DBI's statements and Todman's opinion for 2002 to invest in DBI. When DBI collapsed under the weight of its liabilities in 2004, Overton and others filed a suit in a federal district court against Todman, asserting, among other things, fraud under Section 10(b) and Rule 10b-5. The court dismissed the complaint. The plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit. The U.S. Court of Appeals for the Second Circuit held that an accountant is liable in these circumstances under Section 10(b) and Rule 10b-5. The court vacated the lower court's dismissal and remanded the case.
Case 47.2 Perez v. Stern
Guido is the mother of two minor children. Martinez, the children's father, died after he was run over by a car. Martinez was the victim of a hit-and-run accident. Guido, as personal representative of Martinez's estate, retained Stern to file a wrongful death lawsuit. Stern filed a wrongful death complaint in the district court. But Stern admits that she never perfected service of the complaint, and because the complaint was not served within six months of filing, the case was dismissed by operation of law. Guido filed these legal malpractice claims against Stern on behalf of herself, the children, and the estate. Guido alleged that the wrongful death claim expired as a result of Stern's failure to timely perfect service of the complaint. Stern moved for summary judgment on the ground that the malpractice claims were barred by the two-year statute of limitations for professional negligence. Before the court ruled on the motion, Guido voluntarily dismissed her individual claim, but maintained claims as personal representative of the estate and next friend of the children. The district court found that the malpractice claims when the wrongful death claim was dismissed. The court found that the estate's claim against Stern was time barred. In response to Guido's argument that the children's minority tolled the statute of limitations with respect to them, the court found that because the children could not have brought the underlying wrongful death claim in their own names, the statute of limitations for the legal malpractice claims was not tolled by reason of the children's minority. The court granted summary judgment in favor of Stern and dismissed the complaint. Guido [appealed, claiming] that the district court erred in granting Stern's motion for summary judgment on her affirmative defense of the statute of limitations and, specifically, determining that the children had no independent standing to sue Stern and that Stern owed no independent duty to the minor children to protect their rights and interests. We note that neither Guido's assignments of error nor the argument in her appellate brief challenges the district court's dismissal of Guido's claims as an individual and as personal representative of Martinez's estate. Therefore, those aspects of the court's judgment will be affirmed. The issue in this case is whether Stern owed an independent duty to the children, as Martinez's next of kin, to timely prosecute the underlying wrongful death claim. In Nebraska, a lawyer owes a duty to his or her client to use reasonable care and skill in the discharge of his or her duties, but ordinarily this duty does not extend to third parties, absent facts establishing a duty to them. [Emphasis added.] But that does not end our analysis. We have never said that privity [of contract] is an absolute requirement of a legal malpractice claim. Instead, we have said that a lawyer's duty to use reasonable care and skill in the discharge of his or her duties ordinarily does not extend to third parties, absent facts establishing a duty to them. On the facts of this case, we conclude, as have other courts to have addressed this issue in the context of a wrongful death action, that the facts establish an independent legal duty from Stern to Martinez's statutory beneficiaries. In this case, we conclude that Stern owed a duty to the children, as direct and intended beneficiaries of her services, to competently represent their interests. To hold otherwise would deny legal recourse to the children for whose benefit Stern was hired in the first place. Stern owed a legal duty to Martinez's minor children to exercise reasonable care in representing their interests. Therefore, they have standing to sue Stern for neglecting that duty, and their claims against Stern were tolled by their minority. The district court erred in concluding that their claims were time barred. We affirm the court's dismissal of Guido's individual claim and its determination that the estate's claim against Stern was time barred. But with respect to the children, this cause is reversed and remanded for further proceedings to fully adjudicate Guido's claims on behalf of the children. Affirmed in part, and in part reversed and remanded for further proceedings.
Case 9.1 Hasbro, Inc. v. Internet Entertainment Group, Ltd.
Hasbro owns Candy Land and candyland.com was a porn site, so Hasbro filed a trademark dilution claim in a federal court, seeking a permanent injunction to prevent the dependents from using the Candy Land trademark. The federal district court granted Hasbro an injunction against the defendants, agreeing that the domain name candyland was "causing irreparable injury to Hasbro." The judge ordered the defendants to immediately remove all content from the candyland.com Web site and to stop using the Candy Land mark.
Case 34.2: National Aeronautics and Space Administration v. Nelson
In 2007, under newly implemented standards, contract employees with long-term access to federal facilities were ordered to complete a standard background check. The National Agency Check with Inquiries (NACI) performs background checks for the government. The NACI is designed to obtain information on such issues as counseling and treatment, as well as mental and financial stability. Robert Nelson and other JPL employees filed a lawsuit in a federal district court against NASA, claiming that the NACI violated their privacy rights. The court denied the plaintiffs' request to prohibit use of the NACI, but the U.S. Court of Appeals for the Ninth Circuit reversed this decision. NASA appealed to the United States Supreme Court, arguing that the Privacy Act of 1974 provides sufficient protection for employees' privacy. This act allows the government to retain information only for "relevant and necessary" purposes, requires written consent before the information may be disclosed, and imposes criminal liability for violations. Respondents in this case, federal contract employees at a Government laboratory, claim that two parts of a standard employment background investigation violate their rights * * * . Respondents challenge a section of a form questionnaire that asks employees about treatment or counseling for recent illegal-drug use. They also object to certain open-ended questions on a form sent to employees' designated references. The United States Supreme Court reversed the judgment of the lower court and remanded the case. The NACI does not violate an individual's right to privacy because its inquiries are reasonable and the Privacy Act protects against the disclosure of private information.
necessity
In criminal law, a defense against liability; under Section 3.02 of the Model Penal Code, this defense is justifiable if "the harm or evil sought to be avoided" by a given action "is greater than that sought to be prevented by the law defining the offense charged."
Entrapment
In criminal law, a defense in which the defendant claims that he or she was induced by a public official—usually an undercover agent or police officer—to commit a crime that he or she would otherwise not have committed.
Petty offenses
In criminal law, the least serious kind of criminal offense, such as a traffic or building-code violation.
exclusionary rule
In criminal procedure, a rule under which any evidence that is obtained in violation of the accused's constitutional rights guaranteed by the Fourth, Fifth, and Sixth Amendments, as well as any evidence derived from illegally obtained evidence, will not be admissible in court.
lease
In real property law, a contract by which the owner of real property (the landlord, or lessor) grants to a person (the tenant, or lessee) an exclusive right to use and possess the property, usually for a specified period of time, in return for rent or some other form of payment.
goodwill
In the business context, the valuable reputation of a business viewed as an intangible asset.
Case 9.2 In re O'Brien
Jennifer O'Brien talked about how she was a teacher of "future criminals" in her first grade class. The deputy superintendent of schools filed a complaint against O'Brien, charging her with conduct unbecoming a teacher. The charges were filed with the Commissioner of Education, and the matter was referred to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ). She was fired. She appealed, and it was affirmed.
If tenant discontinues paying rent, can landlord shut off services?
Landlord cannot interrupt electric, gas, water or other essential services, nor can the landlord attempt to recover possession of the dwelling unit by doing so.
quantum meruit
Literally, "as much as he deserves"—an expression describing the extent of liability on a contract implied in law (quasi contract). An equitable doctrine based on the concept that one who benefits from another's labor and materials should not be unjustly enriched thereby but should be required to pay a reasonable amount for the benefits received, even absent a contract.
Landlord Duties
Maintain a fit premises, including: -Comply with applicable minimum housing codes materially affecting health and safety; -Make all repairs and keep the premises in a fit and habitable condition; -Keep all common areas in a clean and safe condition; -Maintain all electrical, plumbing, sanitary, heating, ventilating, air conditioning, elevators and other facilities and appliances; -Provide and maintain appropriate receptacles for the removal of garbage; and -Supply water (including hot water) and heat. -A landlord may employ a tenant, or alternatively, as part of the lease, can agree to have the tenant perform some of the obligations of the landlord.
Tenant duties
Maintain dwelling unit: -Comply with minimum standards of building and housing codes materially affecting health or safety; -Keep unit clean and safe and when rent term is over, place unit in as clean of condition as when tenancy began, excepting ordinary wear and tear; -Dispose of trash; -Keep all plumbing fixtures clean; -Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning, elevators and other facilities and appliances; -Do not destroy or deface unit; -Do not disturb neighbors' peaceful enjoyment of the premises; and -Abide by all dwelling unit rules.
malware
Malicious software programs designed to disrupt or harm a computer, network, smartphone, or other device.
Nebraska Landlord/Tenant Laws
Nebraska Landlord/Tenant Laws
Is there an overall maximum amount of rent that can be charged?
No maximum unless rent-controlled dwelling unit (Nebraska is not)
white-collar crime
Nonviolent crime committed by individuals or corporations to obtain a personal or business advantage.
phishing
Online fraud in which criminals pretend to be legitimate companies by using e-mails or malicious Web sites that trick individuals and companies into providing useful information, such as bank account numbers, Social Security numbers, and credit card numbers.
I-551 Alien Registration Receipt
Proof that a noncitizen has obtained permanent residency in the United States; the so-called green card.
Intellectual property
Property resulting from intellectual, creative processes. Patents, trademarks, and copyrights are examples of intellectual property.
Case 11.2 Seawest Services Association v. Copenhaver
Seawest Services Association owned and operated a water distribution system that served homes both inside and outside a housing development. Seawest had two classes of members. "Full members" owned property in the housing development, and "limited members" received water services for homes outside the development. Both full and limited members paid water bills and, as necessary, assessments for work performed on the water system. In 2001, the Copenhavers purchased a home outside the housing development. They did not have an express contract with Seawest, but they paid water bills for eight years and paid one $3,950 assessment for water system upgrades. In 2009, a dispute arose between the parties, and the Copenhavers began refusing to pay their water bills and assessments. Seawest sued the Copenhavers in a Washington state court. The trial court found that the Copenhavers were limited members of Seawest and thus were liable for the unpaid water bills and assessments. The Copenhavers appealed. The Washington appellate court affirmed the trial court's judgment. It held that the Copenhavers were liable to Seawest because the parties had a quasi contract.
botnets
Short for robot network—a group of computers that run an application that is controlled and manipulated only by the software source. Although sometimes a legitimate network, usually this term is reserved for a group of computers that have been infected by malicious robot software. In a botnet, each connected computer becomes a zombie, or drone.
generally accepted auditing standards (GAAS)
Standards concerning an auditor's professional qualities and the judgment exercised by him or her in the performance of an examination and report. The source of the standards is the American Institute of Certified Public Accountants.
worker's compensation laws
State statutes establishing an administrative procedure for compensating workers' injuries that arise out of—or in the course of—their employment, regardless of fault.
Case 10.2 Messerschmidt v. Millender
The LA County Sheriff's Department was protecting a woman from Jerry Ray Bowen, when he tried to kill her with a shotgun. The woman told the police that she and Bowen used to date, that Bowen was a gang member, and that she thought Bowen was staying at the home of Augusta Millender, his former foster mother. After investigating the incident further, the police prepared a warrant to search the home for all guns and gang-related material, and a magistrate approved it. When the police, including Curt Messerschmidt, served the search warrant, they discovered that Bowen was not at the home, but they searched it anyway. The homeowners sued individual police officers in federal court for subjecting them to an illegal search. A federal appellate court held that the police lacked probable cause for such a broad search and that the police officers could be held personally liable. The police officers appealed. The United States Supreme Court granted certiorari to determine whether the police officers were immune from personal liability.
Case 8.3 Golan v. Holder
The United States joined the Berne Convention in 1989, but it failed to give foreign copyright holders the same protections enjoyed by U.S. authors. Contrary to the Berne Convention, the United States did not protect any foreign work that had already entered the public domain. A federal appellate court held that Congress did not violate the copyright clause by passing the URAA. The petitioners appealed. The United States Supreme Court granted certiorari to resolve the matter.
Robbery
The act of forcefully and unlawfully taking personal property of any value from another; force or intimidation is usually necessary for an act of theft to be considered a robbery.
Cybersquatting
The act of registering a domain name that is the same as, or confusingly similar to, the trademark of another and then offering to sell that domain name back to the trademark owner.
generally accepted accounting principles (GAAP)
The conventions, rules, and procedures that define accepted accounting practices at a particular time. The source of the principles is the Financial Accounting Standards Board.
cloud computing
The delivery to users of on-demand services from third-party servers over a network. Cloud computing is a delivery model. The most widely used cloud computing services are Software as a Service (SaaS), which offers companies a cheaper way to buy and use packaged applications that are no longer run on servers in house.
copyright
The exclusive right of authors to publish, print, or sell an intellectual production for a statutory period of time. A copyright has the same monopolistic nature as a patent or trademark, but it differs in that it applies exclusively to works of art, literature, and other works of authorship, including computer programs.
embezzlement
The fraudulent appropriation of money or other property by a person to whom the money or property has been entrusted.
forgery
The fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another.
trade dress
The image and overall appearance of a product—for example, the distinctive decor, menu, layout, and style of service of a particular restaurant. Basically, trade dress is subject to the same protection as trademarks.
self-defense
The legally recognized privilege to protect one's self or property against injury by another. The privilege of self-defense protects only acts that are reasonably necessary to protect one's self or property.
arson
The malicious burning of another's dwelling. Some statutes have expanded this to include any real property regardless of ownership and the destruction of property by other means—for example, by explosion.
Social media
The means by which people can create, share, and exchange ideas and comments via the Internet.
defalcation
The misuse of funds.
Case 11.1 Pan Handle Realty, LLC v. Olins
The plaintiff is a Connecticut limited liability company [a form of business organization], which constructed a luxury home at 4 Pan Handle Lane in Westport [Connecticut]. The defendant [Robert Olins] expressed an interest in leasing the property from the plaintiff for a period of one year. In pursuit of that interest, he submitted an application proposing to rent the property from the plaintiff at the rate of $12,000 per month, together with an accompanying financial statement. The plaintiff responded to the defendant's proposal by preparing a draft lease for his review, which the defendant promptly forwarded to his attorney. The defendant and his real estate agent, Laura Sydney, met with Irwin Stillman, then acting as the plaintiff's representative, to discuss the draft lease. At that meeting, the defendant and Irwin Stillman agreed to several revisions to the draft lease that had been proposed by the defendant's attorney, then incorporated the revisions into the lease and signed it. The resulting lease, which was dated January 19, 2009, specified a lump sum annual rent of $138,000. At the time of the signing, the defendant gave the plaintiff a postdated check for $138,000. The lease agreement required the plaintiff to make certain modifications to the property prior to the occupancy date, including the removal of all of the furnishings from the leased premises. The plaintiff's real estate broker informed it that, according to Sydney, the defendant planned to move into the property. The next day, the defendant requested information from the plaintiff for his renter's insurance policy, which the plaintiff duly provided. By that time, the plaintiff had also completed the modifications requested by the defendant at the meeting and agreed to in the lease agreement, including the removal of the furniture. The defendant's check, which was postdated was deposited by the plaintiff on that date. The following day, however, Citibank advised the plaintiff that the defendant had issued a stop payment order on his postdated rental check and explained that the check would not be honored. The plaintiff subsequently received a letter from the defendant's attorney stating that "[the defendant] is unable to pursue any further interest in the property." Thereafter, the plaintiff made substantial efforts to secure a new tenant for the property, listing the property with a real estate broker, advertising its availability and expending $80,000 to restage it. Although, by these efforts, the plaintiff generated several offers to lease the property, it was never able to find a qualified tenant, or, for that reason, to enter into an acceptable lease agreement with anyone for all or any part of the one year period of the defendant's lease. The plaintiff filed this action [in a Connecticut state court], alleging that the defendant had breached an enforceable lease agreement. The plaintiff further alleged that, despite its efforts to mitigate [lessen] its damages, it had sustained damages as a result of the defendant's breach, including unpaid rental payments it was to have received under the lease, brokerage commissions it incurred to rent the property again and the cost of modifications to the property that were completed at the defendant's request. The court issued a memorandum of decision resolving the merits of the case in favor of the plaintiff. In that decision, the court found, more particularly, that the plaintiff had met its burden of proving that the parties had entered into an enforceable lease agreement, that the defendant had breached that agreement, and that the breach had caused the plaintiff damages in lost rent and utility bills incurred during the lease period. On the basis of these findings, the court awarded the plaintiff compensatory damages in the amount of $146,000—$138,000 in unpaid rent for the term of the lease and $8,000 in utility fees incurred by the plaintiff during the lease period—plus interest, and attorney's fees. This appeal followed. The judgment is affirmed.
plea bargaining
The process by which a criminal defendant and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case, subject to court approval; usually involves the defendant's pleading guilty to a lesser offense in return for a lighter sentence.
beyond a reasonable doubt
The standard used to determine the guilt or innocence of a person criminally charged. To be guilty of a crime, one must be proved guilty "beyond and to the exclusion of every reasonable doubt." A reasonable doubt is one that would cause a prudent person to hesitate before acting in matters important to him or her.
The Ultramares Rule
The traditional rule regarding an accountant's liability to third parties based on privity of contract was enunciated by Chief Judge Benjamin Cardozo in 1931.
burglary
The unlawful entry into a building with the intent to commit a felony. (Some state statutes expand this to include the intent to commit any crime.)
working papers
The various documents used and developed by an accountant during an audit. Working papers include notes, computations, memoranda, copies, and other papers that make up the work product of an accountant's services to a client.
larceny
The wrongful taking and carrying away of another person's personal property with the intent to permanently deprive the owner of the property. Some states classify larceny as either grand or petit, depending on the property's value.
Case 8.2 Winstead v. Jackson
Winstead said that Curtis Jackson (50 Cent) infringed the copyright of his book because it talked about similar things about growing up on the streets. Case was dismissed in district court, Winstead appealed, and the court's dismissal was affirmed.
Vesting
Under the Employee Retirement Income Security Act of 1974, a pension plan becomes vested when an employee has a legal right to the benefits purchased with the employer's contributions, even if the employee is no longer working for this employer.
Trademark Dilution Revision Act (TDRA)
Under the TDRA, to state a claim for trademark dilution, a plaintiff must prove the following: 1. The plaintiff owns a famous mark that is distinctive. 2. The defendant has begun using a mark in commerce that allegedly is diluting the famous mark. 3. The similarity between the defendant's mark and the famous mark gives rise to an association between the marks. 4. The association is likely to impair the distinctiveness of the famous mark or harm its reputation.
Duress
Unlawful pressure brought to bear on a person, causing the person to perform an act that he or she would not otherwise perform.
Case 34.1: Waddell v. Boyce Thompson Institute for Plant Research, Inc.
Waddell worked as a business office supervisor for the Boyce Thompson Institute for Plant Research. Waddell did not have an employment contract for a fixed term. The Institute's employee manual said that his job was "terminable at the will of either the employee or [the Institute], at any time, with or without cause." Several months after hiring Waddell, the Institute implemented a whistleblower policy designed to encourage "the highest standards of financial reporting and lawful and ethical behavior." The whistleblower policy stated that the Institute would not retaliate against an employee for making a complaint "in good faith pursuant to this policy." Beginning in May 2010, Waddell repeatedly complained that his supervisor, Sophia Darling, needed to file certain financial documents more promptly. In August 2010, Darling fired Waddell, telling him that his disrespectful and insubordinate conduct violated the Institute's Code of Conduct. Waddell then sued the Institute, and the trial court held that he failed to state a proper claim for breach of an implied contract. Waddell appealed. It is well settled that, "absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party." This presumption may be rebutted by proof establishing that "the employer made the employee aware of its express written policy limiting its right of discharge and that the employee detrimentally relied on that policy in accepting the employment." Notably, "the requirements for such an implied contract of employment have been strictly construed, and the successful plaintiff must sustain an 'explicit and difficult pleading burden.' " We find that plaintiff has failed to state a cause of action for breach of an implied contract. It is undisputed that the Whistleblower Policy had not been implemented until several months after plaintiff began employment with defendant. As such, [the trial court] correctly found that the essential element of detrimental reliance in accepting employment was lacking. Further, plaintiff did not allege that he forsook any other employment opportunities in reliance upon defendant's Whistleblower Policy or because of what he believed to be defendant's termination policy. Nor is the quality of plaintiff's service relevant in determining whether the presumption of at-will employment has been overcome. Accordingly, plaintiff's claim for breach of an implied employment contract was properly dismissed. The New York appellate court found that Waddell did not state a proper claim for breach of contract. It therefore affirmed the judgment for the Institute.
Case 10.1 People v. Whitmer
Whitmer did offline sales that had no immediate credit approval or denial, then he would sell vehicles to other countries. A jury in a California state court convicted him on all counts. He appealed to a state intermediate appellate court, contending that he was unlawfully convicted.]
9.2 Maverick Recording Co. v. Harper
Whitney Harper used a file-sharing program to share digital audio files with other users of a peer-to-peer network. The plaintiffs brought an action in a federal court against Harper for copyright infringement. The court, however, awarded the plaintiffs only $200 for each infringed work. Both parties appealed. Harper claimed that there was insufficient evidence of copyright infringement. The plaintiffs argued that the district court had erred by failing to rule out the innocent infringer defense as a matter of law.
dilution
With respect to trademarks, a doctrine under which distinctive or famous trademarks are protected from certain unauthorized uses of the marks regardless of a showing of competition or a likelihood of confusion. Congress created a federal cause of action for dilution in 1995 with the passage of the Federal Trademark Dilution Act.
Case 34.3: Services Employees International Union v. National Union of Healthcare Workers
[SEIU filed a suit in a federal district court against the NUHW and the UHW officials] for breach of fiduciary duties. * * * The jury returned a verdict awarding damages against the individual defendants * * *, and the district court entered judgment against the defendants. [The defendants appealed.] The judgment of liability was properly entered when a correctly instructed jury, on a sufficient factual record, found the defendants in breach of their fiduciary duties under Section 501 of the LMRDA.
Tenant
a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others
Dwelling Unit
a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household
Rental Agreement
all agreements, written or oral, between a landlord and tenant, and valid rules and regulations adopted under § 76-1422 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premise
Rent
all payments to be made to the landlord under the rental agreement
The Walsh-Healey Act
applies to U.S. government contracts. It requires that a minimum wage, as well as overtime pay at 1.5 times regular pay rates, be paid to employees of manufacturers or suppliers entering into contracts with agencies of the federal government.
Bill Lerach
attorney for Enron Shareholders
The Fair Labor Standards Act (FLSA)
extended wage-hour requirements to cover all employers engaged in interstate commerce or in producing goods for interstate commerce, plus selected other types of businesses. The FLSA, as amended, provides the most comprehensive federal regulation of wages and hours today.
The Lanham Act
incorporates the common law of trademarks and provides remedies for owners of trademarks who wish to enforce their claims in federal court
Cookies
invisible files that computers, smartphones, and other mobile devices create to track a user's Web browsing activities
Pet deposit
maximum of 1/4 month's rent
Security deposit
maximum of one month's rent
Deposits
not required by law but almost always required by landlords
The Davis-Bacon Act
requires contractors and subcontractors working on federal government construction projects to pay "prevailing wages" to their employees.
Landlord
the owner, lessor, or sublessor of the dwelling unit or the building of which it is a part
