Bus 340 Exam 3

Exclusionary rule

"fruit of the poisonous tree" a defense to criminal law a mean s to suppress evidence that was obtained illegally

Respondent superior

"let the master answer" master liable for agents misbehavior whether or not the principal was at fault

Defenses to negligence (3)

1. Affirmative defense: a response by the defendant that raises a justification or excuse for the defendants conduct 2. Assumption of risk: a defense in which the plaintiff is barred from recovery because the plaintiff voluntarily and knowingly assumed known risk 3. Open and obvious: a doctrine under which the landowner is protected from liability if an invitee is injured by an open and obvious danger or hazard - not available if defendant caused dangerous situation 4. comparative neg. rule: a partial defense that reduces the plaintiff recovery by the amount of the plaintiffs own negligence

5 elements that must be present in Agency Law:

1. Consent 2. Control 3. Principle 4. Agent 5. Fiduciary Relationship

Defenses to fraud- Criminal law

1. exclusionary rule (fruit of the poisonous tree): a means to suppress evidence that was obtained illegally (Miranda warnings) 2. entrapment: gov induces someone to commit a crime that they had no previous propensity to commit 3. insanity 4. double jeopardy: gov may not prosecute twice for the same crime

Master and servant

1. servants 2. independent contractors

Mass tort

A civil tort involving numerous plaintiffs against one or few defendants.

Tort

A civil wrong, other than breach of contract.

Probation

A common penalty for committing crime, which means that the criminal is under the supervision of the court but is not confined.

Patent holding companies (patent trolls)

A company whose sole purpose is to acquire patents and sue potential infringers. Known pejoratively as patent trolls

Due process

A constitutional guarantee of fairness by procedure.

End User License Agreement (EULA)

A contract between a copyright holder and user, typically used in software licenses

Misdemeanor

A criminal offense that is less serious than a felony but more serious than an infraction.

Infraction

A criminal offense, which is less serious than a misdemeanor

Assumption of risk

A defense in which the plaintiff is barred from recovery because the plaintiff voluntarily and knowingly assumed known risks,

entrapment

A defense that may be raised by a criminal defendant. Entrapment occurs when the government induces someone to commit a crime that he or she had no previous propensity to commit

Open and obvious

A doctrine under which the landowner is protected from liability if an invitee is injured by an open and obvious danger or hazard.

Joint and several liability

A doctrine under which the plaintiff may pursue a claim against any party liable for the claim as if they were jointly liable, and defendants then sort out their respective proportions of liability.

Burden of proof

A duty to prove. In a criminal trial, the burden of proof is on the prosecution. In a civil trial, the burden of proof is usually the plaintiff's burden.

Digital Millennium Copyright Act (DMCA)

A federal law outlawing any attempt to circumvent a copy protection device or scheme

Anti-cybersquatting consumer protection act

A federal law outlawing cbersquatiing

Patent

A federal right granted to inventors for processes, machines, and compositions of matter. Illegal to have no matter what

Sherman Anti-Trust Act

A federal statue prohibiting antitrust activities.

Racketeer Influenced and Corrupt Organizations Act

A federal statute that penalizes racketeering activities

Foreign Corrupt Practices Act (FCPA)

A federal statute that, among other things, outlaws the payment of bribes.

Unauthorized Access to Stored Communications Act

A federal statute to protect the confidentiality of e-mail and voicemail.

Forgery

A form of counterfeiting

Blackmail

A form of extortion that occurs when someone threatens to reveal a harmful truth, such as involvement in criminal activity, but agrees to remain silent if he is paid.

Insider Trading

A form of securities fraud

Indictment

A formal document in which the government accuses a legal person of a crime.

Genericide

A former or claimed trademark indicating a general class of goods, not eligible for trademark protection

Blue-collar crime

A generic term used to describe crimes that are not white colar crimes

Mens rea

A guilty mind, or a criminal state of mind

Patent pending

A label claiming patent protection for an application not yet granted.

Insanity

A lack of capacity defense, specifically applicable when the defendant did not understand that his or her actions were wrong.

Criminal

A legal person convicted of a crime

Felon

A legal person convicted of a felony

Protected class

A legislatively created category of workers that are protected from unfavorable employment actions due to their membership in the protected class

Bona fide occupational qualification (BFOQ)

A legitimate reason for why an employer might discriminate against someone who belongs to a protected class

Bill of material

A list of components constituting an assembled good

Principles liability for torts

A master is liable for physical harm caused by negligent conduct of servants within the scope of employment

Uniform Trade Secrets Act (UTSA)

A model law to protect trade secrets, adopted by over forty states

Creative Commons

A nonprofit organization dedicated to the free distribution of creative content, and publisher of several standard copyright licenses.

Comparative negligence

A partial defense that reduces the plaintiff's recovery by the amount of the plaintiff's own negligence.

One click patent

A patent granted to Amazon.com that allows customers to use one mouse click to purchase items on the Internet

tortfeasor

A person who commits a tort

Qualified disabled

A person who meets the minimum educational, skill, and experience requirements for the job posted, with or without reasonable accommodation

Authority

A principal is bound by the acts of the agent if the agent has authority. 3 types of authority: expressed, implied, apparent

Crime

A public injury

Ponzi scheme

A pyramid scheme, which is a particular type of fraud.

Affirmative defense

A response by the defendant that raises a justification or excuse for the defendant's conduct.

Compulsory licensing

A scheme used by countries to force pharmaceutical drug licensing in light of a medical emergency

Felony

A serious criminal offense, punishable with a prison sentence of more than one year or, in some circumstances, death.

Geographic indicator

A system whereby names for products, especially foodstuffs, are reserved exclusively for products originating from a particular region.

White collar crime

A term used to describe nonviolent crimes committed by people in their professional capacity or by organizations

white collar crime

A term used to describe nonviolent crimes committed by people in their professional capacity or by organizations.

Disparate impact

A theory of liability under employment discrimination law that prohibits an employer from using a facially neutral policy that has an unfavorable impact on members of a protected class.

Certification mark (or certification trademark)

A trademark representing a good or service meeting minimum standards established by owner of the certification mark

Collective mark (or collective trademark)

A trademark representing membership in a group as established by owner of the collective mark.

Larceny

A trespassory taking of property with intent to deprive owner of it- theft meaning they have no right to the property

Intentional tort

A type of tort where the defendant acts with intent to cause a particular outcome.

Plant patent

A unique patent right granted to inventors of new forms of plants

Design patent

A unique patent right granted to protect the look, not functionality, of an invention.

ADEA waiver

A waiver signed by an employee that he or she is voluntarily giving up his or her rights to file a claim under the ADEA

General Public License (GP)

A widely used free software license

Obstruction of justice

Acting in a manner that creates obstacles to the administration of justice.

Contributory negligence

An absolute defense in situations where the plaintiff contributed to his or her own injuries.

Proximate causation

An act from which an injury results as a natural and direct consequence.

Consent

An exception to the warrant requirement, in which a person with valid authority permits a search to proceed without a warrant.

Stop and frisk

An exception to the warrant requirement, specifically permitted when a person is stopped for some permissible purpose by law enforcement officers. Allows a pat-down search or a "frisk.

Lawful arrest

An exception to the warrant requirement, specifically referring to a pat-down search permitted when someone is lawfully arrested.

exigent circumstances

An exception to the warrant requirement, specifically when an emergency exists, such as a hot pursuit

Automobile exception

An exception to the warrant requirement, specifically when the vehicle is detained pursuant to a lawful stop.

Assault

An intentional, unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive contact.

Retaliation

Any adverse employment action taken against an employee who has filed, or is contemplating filing, charges of illegal discrimination

Public domains

Any intellectual property not protected by law and freely available for any member of the public to use

Attractive nuisance

Any item or condition on a property that would be attractive and dangerous to children, even if the children are trespassing.

Trademark

Any logo, mark, sound, or other identifying characteristic that signifies the unique origin of particular goods or services

Principal

Any person or entity that authorizes an agent to act on its behalf with a third party

Agent

Any person or entity that is authorized to act on behalf of a principal with a third party, under the control and for the benefit of the principal

Agency

Any relationship between a principal and agent

Reasonable accommodation

Any requested reasonable change in the work environment of a disabled person that would permit that person to perform the essential functions of his or her job.

Battery

Any unconsented touching

Trade secret

Anything of value a company takes reasonable steps to protect from disclosure.

Conversion

Civil tort of stealing property from another person.

Compensatory damages

Compensation for actual injuries suffered by a plaintiff.

Malice

Conscious, intentional wrongdoing.

Federal Sentencing Guidelines

Created by the U.S. Sentencing Commission to provide advisory guidelines to federal judges when sentencing criminals.

Cyercrimes

Crimes that are committed virtually

Criminal v. civil law

Criminal: - injury to public - prosecuted by gov - attorney provided - bop: beyond a reasonable doubt (99%) - conviction may result in civil disabilities or loss of liberty - penalties potentially include loss of liberty Civil: - private injury - plaintiff sues defendant - parties provide own attorney - bop- preponderance of evidence (51%) - no civil disabilities and no loss of liberty - penalties typically monetary

when agent does things not per-instruction: detour v. frolic

DETOUR: A detour occurs when an employee makes a minor departure from their employer's charge. EXAMPLE: The employee is told to go to the post office to drop off a package. While at the post office, the employee goes to buy a birthday card and whacks another customer with their elbow while pulling the card out of the display carousel. Since the employee's actions of getting a birthday card to buy at the same time as dropping off the package to be mailed was very minor, the action of getting the card would be considered a detour. FROLIC: A frolic happens when an employee, or agent, makes a serious departure from their employer's, or principal's, required service. EXAMPLE: An employee is supposed to deliver a package to a post office. During their trip, they drive to a grocery store and hit a pedestrian in the parking lot of the store. The trip to the store was so far outside of the employee's scope of assigned duties that it constitutes a frolic.

Defenses to intentional torts: Defamation, assault, battery, false imprisonment

Defamation- truth, opinion, privilege, not taken literal assault/ battery- self defense, defense of others false imprisonment- shopkeepers privilege

Reverse discrimination

Discrimination against a majority group

Respondeat superior

Doctrine that holds employers liable for tortious acts committed by employees while acting within the scope of their employment.

First sale

Doctrine under which the first owner of a piece of copyrighted work can do whatever he or she pleases with it, including resell the work.

Agent to Principle Duty: 5 Duties

Duty of loyalty- The agent must act solely for the benefit of the principle in all matters connected with the agency (agent is bound by the duty of loyalty whether or not the agent and principle consciously agreed) Duty to obey instruction- An agent must obey her principals instructions unless the principal directs her to behave illegally or unethically Duty of care- Agent has a duty to act with reasonable care. Duty to provide information- An agent has a duty to provide the principal with all information in her possession that she has reason to believe the principal wants to know. (Duty to provide accurate information). Duty to keep information confidential- Agents cam neither disclose nor use for for their own benefit any confidential information they acquire . This duty continues even after relationship ends.

Principle to Agent Duty: 2 Duties

Duty to cooperate- Principal must furnish agent with the opportunity to work Duty to reimburse- falls into 3 categories 1. principal must reimburse agent for any expenses or damages reasonably incurred in carrying out his agency responsibilities 2. principle must reimburse agent for tort claims brought by a 3rd party if principal authorized agents behavior and the agent did not realize he was committing a tort 3. principal must reimburse the agent for any liability she has incurred from a 3rd party as a result of entering into a contract or the principals behalf, including attorney's fees and reasonable settlement.

Intentional Infliction of Emotional Distress (IIED)

Extreme and outrageous conduct (measured objectively) that intentionally or recklessly causes severe emotional distress to another.

Equal Employment Opportunity Commission (EEOC)

Federal agency established by the Civil Rights Act of 1964 to enforce antidiscrimination laws

Lanham Act

Federal law protecting trademarks

Pregnancy Discrimination Act of 1978

Federal law that amended Title VII to make it illegal to discriminate against a woman because she is pregnant or considering pregnancy or because of prejudices against pregnant women by coworkers or customers

Americans with Disabilities Amendments Act of 2008 (ADAA)

Federal law that amends the Americans with Disabilities Act and reverses several key Supreme Court opinions interpreting the ADA.

1866 Civil Rights Act

Federal law that makes everyone born in the United States citizens and makes job discrimination on the basis of race illegal

Americans with Disabilities Act of 1990 (ADA)

Federal law that prohibits discrimination against persons with disabilities.

Age Discrimination in Employment of 1967 (ADEA)

Federal law that prohibits discrimination on the basis of age, protecting workers over the age of forty.

Equal Pay Act of 1963

Federal law that requires equal pay for equal work

IP: Federal v. state

Federal: - Trademark - Patent - Copyright State: - Trade secret

Financial institution fraud

Fraud against banks and other similar institutions, such as credit unions.

Securities fraud

Fraud committed in the context of investments regulated by the SEC.

Health care fraud

Fraud committed in the context of the health care field

Wire fraud

Fraud committed over interstate wire, such by telephone.

Hostile work environment

Harassing actions that are so severe and pervasive that they alter the conditions of one's employment

Fiduciary Relationship

High standards Beneficiary places special confidence in the fiduciary who is obligated to act in good faith and candor , putting his own need 2nd, Purpose: 1 person to benefit another

Business necessity

If a policy has a disparate impact on members of a protected class, the employer can justify the policy if it is essential to the employer and no alternative nondiscriminatory policy exists.

Quid pro quo

In sexual harassment law, asking for sexual favors in return for favorable job action

Kickbacks

Incentive payments that are given to someone who makes decisions to encourage others to pay for something.

Intellectual property

Intangible property, the product of human ingenuity, protected by law. Also known as IP.

Nuisance

Intentional acts that interfere with another person's use or quiet enjoyment of land.

Tortious interference

Intentional damage of another person's valid contractual relationship.

Disparate treatment

Intentional discrimination against a member of a protected class.

Trespass to Land

Intentional entry to land owned by another without a legal excuse.

False imprisonment

Intentionally confining or restraining another person's movement without justification.

Forfeiture

Involuntarily losing ownership of property that was used in criminal activities.

Essential functions

Job functions whose removal would fundamentally change the nature of the job

Employee theft

Larceny by employees

Shoplifting

Larceny of goods in a retail establishment

Antitrust laws

Laws that seek to prevent activities that reduce or eliminate economic competition.

Employment at will

Legal doctrine that employees can be hired and fired at the will of the employer.

Strict liability

Liability without fault.

Perjury

Lying under oath

Punitive damages

Money awarded to the plaintiff when the defendant acts wantonly, to punish the defendant and to deter future wrongdoing.

Malpractice

Negligence committed by certain professionals

Negligence per se

Negligence due to a criminal violation

Custodial interrogation

Occurs when a suspect is in custody, which means that the suspect cannot leave, and subject to interrogation, which means that words spoken or actions undertaken by government officials are likely to induce a response.

Money laundering

Occurs when funds gained from illegal activities are processed through a seemingly legitimate business to "clean" the funds from association with criminal activities.

Bribery

Occurs when someone pays a government official to influence his or her decision or actions in his or her official capacity for the benefit of the person paying the bribe.

Embezzlement

Occurs when someone takes property that was in his or her possession lawfully and then converts it to his or her own use.

Slander

Oral form of defamation

Business method patents

Patents granted for a way of doing business

Grease payments

Payments given to speed up a process that will occur, rather than to influence a decision.

Patent trolls

Pejorative term for patent holding companies

Restitution

Penalty levied to repay to damages

whistleblowers

People who report the illegal activity of their employers or of their organization to authorities.

Servants

Principal controls agent principal is liable for servants torts, even if principle was not negligent.

Expressed authority

Principal grants express authority by words or conduct that reasonably interpreted, cause the agent to believe the principal desires her to act on the principals account- principal asks agent to do something and the agent does it

Consent:

Principle must ask agent and agent must agree. Consent can be verbal or contractual

Control

Principles are liable for the acts of their agents because they exercise control over the agents

Injurious falsehood (or trade disparagement)

Publishing false information about another person's product.

Defamation

Publishing or saying untrue statements about a living person that harms his or her reputation.

Miranda warnings

Read to persons in custody, so that they are made aware of some of their constitutional rights. Failure to read Miranda warnings when someone is subject to a custodial interrogation may render statements uttered by the suspect inadmissible under the exclusionary rule.

Self- defense

Reasonable and proportionate force to defend oneself from harm or injury.

Defense of others

Reasonable and proportionate force used to defend another person from harm or injury.

Affirmative action

Specific actions taken by employers to eliminate the effects of past discrimination

Dram shop acts

State laws establishing strict liability for taverns, bars, and restaurants for serving alcohol to minor or visibly intoxicated persons who then cause death or injury to others.

Good Samaritan Law

State laws that shield those who aid the injured from negligence liability.

Actus reus

THe guilty act, or the criminal action

Negligence

The breach of the duty of all persons, as established by state tort law, to act reasonably and to exercise a reasonable amount of care in their dealings and interactions with others.

Copyright clause

The clause within Article I, Section 8 of the U.S. Constitution that authorizes Congress to pass laws protecting intellectual property

Trade dress

The distinctive and unique look, feel, or shape of a product or service that signifies unique origin.

Copyright

The exclusive rights of authors to their respective works, to the exclusion of others.

Invasion of privacy

The intrusion into the personal life of another without legal justification.

Fraud (or misrepresentation)

The misrepresentation of facts (lying) with knowledge they are false or with reckless disregard for the truth

Utility patent

The most common type of patent, awarded for inventions or improvements to methods, processes, machinery, and compositions of matter

Race norming

The practice of grading employment-related tests or qualifications differently, based on the race of the candidate or applicant.

Cyber-squatting (or domain name squatting)

The practice of registering Internet domain names for the sole purpose of selling the name to its rightful trademark owner

Presumption of innocence

The presumption made about any criminal defendant prior to verdict. Criminal defendants do not have to prove their innocence.

Reverse engineering

The process of tearing down a finished good to its components to figure out how it was designed or manufactured. Legal way to figure out a trade secret

Shopkeeper's privilege

The right of a business owner to detain a suspected shoplifter for a reasonable period of time and under reasonable conditions.

Fair use

The right of the public, under circumstances laid out in copyright and trademark law, to use protected intellectual property without permission.

Preponderance of the evidence

The standard of proof in a civil trial. It means that the evidence that supports the claim is more likely than not.

Beyond a reasonable doubt

The standard of proof in a criminal trial. It means that the evidence must be so compelling that there is no reasonable doubt as to the defendant's guilt.

Probable cause

The standard required for a search warrant to be issued. It arises when there is enough evidence, such as through corroborating evidence, to reasonably lead to the belief that someone has committed a crime.

Larceny

The trespassory taking of property with the intent to deprive the owner of it

Identity theft

The unauthorized use of someone else's identity, typically for financial gain.

Dilution

The use of a famous trademark in a manner intended or designed to cause tarnishment of the mark.

Fraud

The use of deception to acquire mone or property

Corporate espionage

The use of deception to acquire the secrets of an economic competitor for financial gain.

Insurance fraud

The use of deception to receive insurance funds

Double Jeopardy

This means that the government may not prosecute someone twice for the same offense. It is prohibited by the Fifth Amendment to the U.S. Constitution.

Prosecution (of patents)

To apply for, and argue on behalf of, patents before the U.S. Patent and Trademark Office (USPTO)

Infringe

To step on, or violate, someone else's property rights

IP Time length

Trade secret- forever Copyright- 70 years after the death of author Trademark- lasts forever as long as it is still associated with the brand/ company Patent: - design- 14 years - utility- 20 years

Misappropriation (Trade Secret, Intentional Torts, Crime)

Trade secret: Appropriating wrongly or without justification. Intentional Torts: Using another's name, likeness, or identifying characteristic without his or her permission. Crime: Obtaining a trade secret by improper means.

Service mark

Trademark for an entity providing services, as opposed to goods.

Intentional tort examples

Trespass to land Conversion Battery Assault False Imprisonment Nuisance Intentional Infliction of Emotional Distress Defamation

Strict Product Liability

Under strict product liability, manufacturers, distributors, and retailers are strictly liable for injuries caused by unreasonably dangerous products.

US Patent and Trademark Office (USPTO)

United States Patent and Trademark Office. This federal agency approves patent applications and officially grants trademark status to qualified marks, but only a court can finally determine the validity of a patent or trademark application

Trespass to personal property

Unlawful taking or harming of another person's property without the owner's permission.

Extortion

When someone obtains property through coercion by threat of some future action

Independent contractor

Workers, not in an agency relationship with their employers, who offer their services to the general public and have the right to control or direct only the result of the work, not how it will be done

Libel

Written form of defamation.

exclusionary rule

a means to suppress evidence that was obtained illegally

Fine

a monetary penalty

Apparent authority

a principal can be liable for the acts of an agent who is not, acting with authority if the principal conduct causes a 3rd party reasonably to believe that the agent is authorized

Fully disclosed principal

an agent is not liable for any contracts she makes on behalf of a fully disclosed principal principal is liable

6th amendment

criminal defendants have a right to an attorney

doctrine of respondeat superior

doctrine that holds employers liable for tortious acts committed by employees while acting withing the scope of their employment

patentee

holder of a patent

why does agency laws matter

if agent signs contract and commits tort principle is responsible under doctrine of respondeat superior

Partially disclosed principal

in the case of a partially disclosed principal, the 3rd party can recover from either the agent or the principal principal or agent is liable

undisclosed principal

in the case of an undisclosed principal the 3rd party can recover from either the agent or the principal principal is kept secret agent is liable

Negligent and intentional torts

master is liable if servant commits negligent tort that causes physical harm to a person or property master is not liable for intentional torts of a servant unless servant was motivated by a desire to serve the master

scope of employment

principals are only liable for torts that a servant commits within the scope of employment that is why it is important to have a job description

Independent contractor

principle is not in control of independent contractor principle is not liable for torts unless principle was negligent in hiring and supervising.

4th amendment

prohibition against illegal searches and siezures

8th amendment

prohibits cruel and unusual punishment

5th amendment

right to avoid self incrimination

Intermediary agent

someone who hires sub agents for the principal agents cannot delegate her tasks to another without principals authority subagents: hired by intermediary agent- tasks may include being a chef, waiters, dishwashers

arson

the act of intentionally setting fire to property

acquitted

to be found not guilty of a crime

Implied authority

unless otherwise agreed, authority to conduct a transaction includes authority to do acts that are reasonable necessary to accomplish it

Patent infringement

violation of a patent holder's rights

Vandalism

willful or malicious destruction of property