MGMT 209 Exam 2

Differences between sections 1 and 2 of the Sherman Act

1 Requires 2 or more people since you can't conspire with yourself. Illegal activity is the act of conspiring together. Cases dealing with 1st section are concerned with finding an agreement that leads to a restraint of trade. 2 can apply to either 1 person or to 2 or more people. unilateral conduct counts. 2 cases deal with the structure of a monopoly that exists in the marketplace or the so called misuse of monopoly power in the marketplace.

Attempts to Monopolize require 3 elements as proof

1. Anticompetitive behavior 2. Specific intent to exclude competition and garner monopoly power 3. Dangerous probability of success in achieving monopoly power

Appropriation of identity elements

1. Appropriate statutes- Hannah white suing video game company for using her likeness. 2. Invidivuals right to privacy includes the right to the exclusive use of his or her identity- something you can pass on through will. Marilyn monroe merchandise can be sold bc she left no will.

False Imprisonment Elements

1. Barriers/restraints can be physical or oral threats of physical force. 2. Person being restrained must not agree to the restraint. (consent) 3. Shoplifters- some states statutorily give businesses defense to allow them to detain shoplifters for a reasonable time and in a reasonable manner, if the business has probable cause to justify the delay. Most people are actually shopping.

Telemarketing and Consumer Fraud and Abuse Prevention Act of 1994

1. Before making sales pitch, telemarketers must inform the recipient that the call is a sales call and to id the seller and the product. 2. Telemarketers must inform recipients of the total cost of goods, any restrictions in obtaining or using the goods and whether the sales will be considered final and nonrefundable. 3. Telemarketer must remove a consumers name from its contact list if requested.

Defenses to Wrongful Interference

1. Bona fide competitive behavior- such as marketing and advertising strategies is permissible even if it results in the breaching of a contract. 2. Agressive marketing and advertising strategies.

Section 2: Two Types of Behavior Violate Section 2 of Sherman Anti Trust

1. Conduct pursued by a firm that is already a monopolist is condemned as monopolization if the conduct interferes with free trade and is intended to preserve the firms monopoly. 2. Conduct intended to capture monopoly power is condemned as an attempt to monopolize. Predatory pricing is a violation of two. When one firm attempts to drive its competitors away from the market by selling its products substantially below the normal costs of production. Eliminates competition and then raises prices well above the normal competitive level to recoup its losses and earn higher profits after.

Inentional Infliction of Emotional Distress

1. Difficult to prove (especially in Texas where you have to prove it); need truly outrageous conduct. Extreme and outrageous conduct cases serious emotional distress to another. 2. May have to show evidence of physical symptoms or illness or some emotional disturbance documented by medical or psychiatric evidence. 3. Defense used by media when "outrageous conduct" is about public figures. (Hustler magazine v. Jerry Falwell 1988)

Special Negligence Statuses

1. Dram Shop Act a. if a bar owner or bartender serves drinks to a drunk person, he may be liable to persons who are injured by the drunk person. b. social hosts- people hosting parties may be liable for injuries caused by guests who became intoxicated at the hosts home. 2. Good Samaritan Statute a. Persons who are aided voluntarily by others cannot sue there person who aided them for negligence. b. Passed primarily to encourage health care professionals to voluntarily stop and render aid at accident without fear of liability.

Four elements of Negligence

1. Duty: Actor (defendant) must owe a duty of care to the injured party (plaintiff). 2. Breach: Defendant must breach that duty. 3. Causation: Defendant's breach must cause plaintiff's injury. Can be broken into two parts that have to BOTH be prove: Factual "But for" Cause and Proximate "Forseeability" Cause 4. Damages: Plaintif must suffer a legally recognizable injury.

What is patentable?

1. Federal law states that "whoever invents of discovers any new and useful process, machine, manufacture, or composition of matter or any new and useful improvement thereof, may obtain a patent therefore and is subject to the condition and requirements of this title". 2. Basically anything that is novel and not obvious can be patented. 3. Not patentable items include laws of nature, natural phenomena, abstract ideas, including algorithms.

FTC actions against deceptive advertising

1. Formal Complaint-If FTC thinks ad was violated, it drafts a formal complaints to be sent to offender. 2. FTC Orders and Remedies a. Ceases and Desist Order- Pull ad. b. Counter Advertising-requires company to publish new ads correcting misinformation. c. Multiple Product Orders- requires company to stop false advertising for all products, not just the one involved originally. d. Restitution- ad led to wrongful payments by consumers that must be repaid.

Public Accountability: Four Acts

1. Freedom of Information Act- requires federal government to disclose certain records to any person or entity on written request, even if no reason is given. Can keep some documents related to national security. 2. Government in the Sunshine Act- agencies must disclose all meetings with some exceptions. 3. Regulatory Flexibility Act 4. Small Business Regulatory Enforcement Fairness Act.

Non-defenses to conversion

1. Good intentions 2. The good you purchased was stolen (like a product bought at a garage sale or a storage auction)

Wrongful Interference with a Business Relationship

1. Individuals may not interfere unreasonably with another's business to gain a share of the market (mostly focuses on market-consumer relationship). 2. Includes Predatory behavior whereby the predator business is soliciting only to those customers who have already shown an interest in the similar product or service of a specific competitor. -This means they are doing no ads of there own, just picking customers off.

Intentional torts

1. Intent is required to do the act that causes the harm. 2. No evil or harmful motive is required. 3. Only need to intend the act that results in the harm; do not have to intend the harm itself. 4. "Tortfeasor"=person committing the tort.

Three classifications of torts

1. Intentional-against persons, businesses and property. 2. Negligence- majority of cases. Larger damages. 3. Strict liability- responsible even if defendant is not at fault (intentionally at fault that is).

4 acts qualify as an invasion of privacy

1. Intrusion- into private life (landlord spying on you in your apartment. 2. False light- publishing info that cast doubts on a persons beliefs or reputation. 3. Public disclosure of private facts (things people don't want to share) 4. Appropriation of Identity- use of a person;s name, picture, likeness or other identifiable characteristic for commercial purposes without permission.

Three different groups you have care duty to

1. Invitees-business 2. Licensees- social guests 3. Trespassers-without permission.

Three qualifications of Abnormally Dangerous Activities

1. Involves potential degree of serious harm. 2. Involves a high degree of risk that cannot be completely guarded against with the uses of reasonable care. AND 3. Is not commonly performed in the community or area.

Other Applications of Strict Liability

1. Keeping Wild Animals- (lions, tigers, bears). If you keep something with mischievous tendencies and it escapes and causes damages, you are liable. 2. Keeping Domestic Animals (qualified)- only strictly liable if we know or should know the animal is dangerous. Exception: Pit Bulls held strictly liable Treated like wild animal. 3. Quid Pro Quo Sexual Harassment- Hostile working environment. This for that. Providing benefits for sexual favors.

fradulent misrepresentation elements

1. Misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for truth. 2. Intent to induce another to rely on the misrepresentation. 3. Justifiable reliance by the deceived party (reasonable person would have believed what was presented). 4. Damages suffered as a result of the reliance (money). 5. A causal connection between the misrepresentation and the injury.

To establish a violation of section 2 a plaintiff must prove both monopoly power and intent to monopolize.

1. Monopoly power- control of relevant market. Usually to win the plaintiff must show that the firm has dominant share of relevant market and there are significant barriers for new companies. 2. Relevant Market-before a court can determine whether a firm has a dominant market share, the relent market must be defined by 2 factors. a. Relevant product market-includes all products with identical attributes (products made by different manufacturers) and are interchangeable (like sugar, stevia, splenda, sweet n low) b. Relevant geographic market- this market includes geographic area in which the company and competitors sell the products/services; nationwide vs. local markets. 3. Intent Requirement: second part of Plaintiffs case requires intent to monopolize. Usually seen as powerful act to acquire or maintain monopoly power through anticompetitive means.

Injury Requirement and Damages

1. Must have legally recognizable injury (suffer some loss, harm, wrong or invasion of a protected interest). 2. No injury, no recovery.

Agency Functions: Adjudication

1. Negotiated Settlements: rectify the problem to the agency's satisfaction without the need for additional proceedings. 2. Formal Complaints- If settlement not reached, agency issues formal complaint. 3. Role of Administrative Law Judge: Required to be unbiased. Presides over hearing and has the power to administer oaths, take testimony, rule on questions of evidence and make determinations of fact. 4. Hearing procedures: Before hearing, agency must issue a notice that includes the facts and law on which the complaint is based, the legal authority for the hearing and the time and place. Vary widely. Agencies typically exercise substantial discretion over the type of procedure. Disputes typically resolved through informal adjudication proceedings. Must comply with APA. 5. Agency orders: After hearing, Judge issues an initial order on the case. They can appeal this to the board or commission of agency. If displeased with that, you can appeal to a federal appellate court.

Negligence (Unintentional Tort)

1. No longer dealing with intentional acts. 2. Actor's conduct merely creates a foreseeable risk of harm. 3. Actor fails to live up to a required duty of care.

Section 1: Per se violation vs. Rules of Reasons Violations

1. Per se violations deal with price fixing or other substantially anticompetitive behavior. 2. Rule of Reasons Violations: the court balances the reasons for the agreement against its potentially anticompetitive effects. Factors used by court include: a. purpose of the agreement. b. the parties power to implement the agreement to achieve the purpose. c. the effect or potential effect of the agreement on competition d. whether the parties could have relied on a less restrictive means to achieve their purpose. Wii v. X-Box is a rule of reason. Brantley v. Universal, NBC, Disney is rule of reason. High and low demand channels packaged together. Customers forced to pay for channels that they don't want. Dismissed by court that says bundling of channels does not diminish competition.

Requirements for Strict Product Liability- 402 A of the Restantment 2d of Torts (6 elements)

1. Product must be in a defective condition when the defendant sells it. 2. The defendant must normally be engaged in the business of selling (or distributing) the product 3. The product must be unreasonably dangers to the user or consumer because of a defective condition. 4. The plaintiff must incur physical harm to self or property because of the consumption of the product. 5. The defective condition must be the proximate cause of injury. 6. The goods must not have been substantially changed from the time sold to the time of injury.

The Federal Food, Drug and Cosmetic Act.

1. Protects consumers against misbranded and adulterated foods and drugs. 2. Establishes food standards, specifies safe levels of potentially hazardous food additives and sets classifications of food and food advertising. 3. FDA monitors and enforces the FFDCA; a. Drugs must be proven effective and safe before marketed to public. b. Food additives suspected of causing cancer are banned. c. FDA regulates medical devices and equipment.

Property Types (2)

1. Real- land and things permanently attracted to the land (like a home) 2. Personal- everything else (car, jewelry, papers, bank accounts, etc.)- can include tangible and intangible property.

Antitrust laws are statutes and principles that:

1. Regulate business conduct in order to promote the forms of competition that benefit society 2. Reign in the unrestrained exercise of market power. Need for statutes started in post-Civil War era with John Rockefeller and Standard Oil Trust.

Special Negligence Doctrines and Statutes

1. Res Ipsa Loquitur 2. Negligence Per Se 3. Special Negligence Statutes

Consumer Product Safety Commission (CPSC)

1. Sets safety standards for consumer products. 2. Bans the manufacture/sale of any product commission believes possesses an unreasonable risk to consumers. 3. Remove from market any product it believes to be imminently hazardous. 4. Require manufacturers to immediately notify CPSC of products already sold or intended for sale if manufacturer receives info that the product is hazardous. 5. Administer other product safety legislation.

Defenses to Product Liability: Assumption of the Risk

1. The plaintiff knew and appreciated the risk created by the product defect. 2. The plaintiff voluntarily assumed the risk-by express agreement or by words or conduct-even though it was unreasonable to do so.

Unreasonably Dangerous products

1. The product was dangerous beyond the expectation of the ordinary consumer. 2. A less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it. Risk v. Utility. The risk outweighs usefulness?

What is protected expression (copyright)?

1. To be protected, a work must be fixed in a durable medium from which it can be perceived, reproduced or communicated. 2. Original 3. Fall into one of the 8 categories: a. Literary Works b. Musical Works and accompanying words c. Dramatic works and accompanying music d. Pantomime or choreographic work (all forms of dance) e. Pictorial, graphic and other sculptural works (includes stuffed animals, posters and anything graphic) f. Motion pictures and other audio-visual works g. Sound recordings h. Architectural works

Remedies for Patent Infringement

1. injunctions- patent holder must prove they suffered an irreparable injury and that the public interest would not be dissolved by a permanent injunction. 2. Damages for royalties and lost profits. 3. Attorney's fees. 4. Treble damages (Latin for triple)- three times actual damages

fradulent misrepresentation must be

1. more than mere puffery (seller's talk)-only involves subjective terms; facts vs. opinions 2. Reliance on a statement of opinion may be fraud if the person making the statement has superior knowledge on the subject matter.

Trade Secrets

1.Trade secret law protects some business process and information that are not or cannot be patented, copyrighted or trademarked against appropriation by competitors. 2.Examples include: customer lists, plans, research, and development, pricing information, marketing methods, production techniques, recipes, and generally anything that makes an individual company uniques and that would have value to a competitor. *This can only protect things you keep secret. 3. Unlike copyright and trademark protection, protection of trade secrets extends to both idea and to their expression. 4. Trade secret involves no registration or filing requirements. 5. State and Federal Law on Trade Secrets. A. 757 of the Restraint of Torts, states: "One who discloses or uses another trade secret, without a privilege to do so, is liable to the other if: a. he discover the secret by improper means or b. his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him.

Pros/Cons of Patents

20 year right to exclude others-relatively short Expensive ($5000-$100,000+ sometimes even millions)

Apple v. Samsung

2015 federal trial court in California said 5 of Apple's patents display of icons, shell, screen and button design were infringed upon by Samsung. Appellate court for federal circuit reversed bc the product features in question were functional and essential to the use or purpose of the phone.

Fair Credit Reporting Act

A federal law that established procedures that consumer-reporting agencies must follow in order to ensure that records are confidential, accurate, relevant and properly used. Requires lender and other credits report relevant, correct and up to date info. If consumer is denied credit or insurance based on credit report, they must be notified of that fact. Remedies- actual DAS but additional DAS up to $1000 and attorney's fees.

Fair Debt Collection Practices Act (FDCPA)

A federal law, enacted in 1978, that regulates debt collection activities. Collection agencies cannot: 1. Contact the debtor at the place of employment if the employer objects. 2. Contact debtor at inconvenient times or any time the debtor is being represented by an attorney. 3. Contact third parties other than parents, spouse or financial advisor about the payment unless court authorized. 4. Harass or intimidate debtor (with abusive language, threats) or make false or misleading statements (posing as law enforcement) 5. Communicate with debtor at a any time after receiving notice that debtor is refusing to pay, except to advise of further action by collection agency.

Patents

A grant from the government that gives an inventor the right to exclude others from making, using and selling an invention for a period of 20 years from the date of filing the application for a patent. Patents for designs, as opposed to inventions are given a 14 year period. Times are given even if people using it are not making money off of it.

Trespass to land

A person, without permission, enters onto, above, or below the surface of land that is owned by another; causes anything to enter onto the land; or remains on the land or permits anything to remain on it after being told to leave. No harm to land is necessary. Reasonable intrusion into air space is allowed.

Distinctiveness of Mark

A trademark must be sufficiently distinct to enable consumers to identify the manufacturer of the goods easily and to distinguish between those goods and competing products. 1. Strong Marks a. Fanciful Trademarks: include invented words like Google, Xerox, Kleenex, Kodak b. Arbitrary Trademarks- those that use common words in an uncommon way that is not descriptive- Dutch Boy (Paint) c. Suggestive Trademarks-imply something about a product w/o directly describing the product. Dairy Queen-dairy products or Quicken-quick and easy service 2. Secondary Meaning- descriptive terms, geographic terms, and personal names are not inherently distinctive and do not receive protection under the law until they acquire a secondary meaning. London Fog- a clothing company. 3. Generic terms like bicycle and computer do not receive protection even if they acquire a secondary meaning.

Enforcement and Exemptions of AntiTrust laws

A. Agency actions 1. DOJ and FTC can enforce the federal antitrust laws. 2. DOJ can prosecute violations of the Sherman Act as civil or criminal. 3. DOJ/FTC can enforce Clayton as civil cases. 4. Civil penalties can include divestiture of assets and dissolution of companies. B. Private Actions Private parties injured due to violations of the Sherman/Clayton acts can sue for Treble damages, attorney's fees and in some cases injunctive relief C. Exemptions from Anti Trust law include a. Labor- clayton act permits unions to organize, bargain, strike and perform other activities without violating b. Insurance Co.- Ferguson Act- exempts in states where business is regulated c. Exporters - webb-pomerene act allows U.S. to engage in cooperative activity to compete with foreign associations and the export trading company act permits the don to exempt certain exporters.

Agency Investigations

A. Inspections- can come with or without a warrant B. Subpoena ad testifcandum- ordinary subpoena to come testify at an agency hearing. Subpoena duces tecum- ordering a witness to hand over books, papers, or other documents to the agency. Limits to subpoenas: 1. The purpose of the investigation. 2. The relevance of information being sought. 3. The specificity of the demand for testimony or documents. 4. The burden of the demand on the party from whom the information is being sought. C. Searches during Site inspections- digging through files. Supposed to have a warrant but you can consent. Not required in highly regulated industries (liquor, firearms, coal mines). Can go without warrant in emergency.

Strict Product Liability (product liability case based on strict liability- absolute, without regard to fault, liability)

A. Public Policy Justifications 1. Consumers should be protected against unsafe products. 2. Manufacturers should not escape liability for defective products just because not in privity with injured person. 3. Manufacturers and sellers are in a better position to bear the costs associated with injuries caused by their products. Manufacturer strictly liable regardless of contractual relationship with plaintiff and steps taken to protect the consumer.

Defenses of Negligence: Comparative Negligence

Abolishes contributory negligence. Majority Rule. Trier of fact (judge or jury) determine both the plaintiff and the defendant's negligence percentage and the liability for damages is assessed accordingly. 1. Pure Form- plaintiff recovers money based on the defendants negligence percentage. 2. 50% rule- exactly like pure form, except if plaintiff is responsible for more than 50% of damages, they recover nothing. 3. Texas uses 50% rule.

Deceptive Advertising

According to the FTC, any ad in which there is a misrepresentation, omission, or other practice that can mislead a significant number of reasonable consumers to their detriment.

Trust

An arrangement in which title to property is held by one person (a trustee) for the benefit of another (a beneficiary).

The Fair and Accurate Credit Transactions Act (identity theft) (FACT)

An effort to combat identity theft. Established national fraud alert system. Consumer places credit files on alert when they have been victimized. When a customer established id theft. the credit reporting agency must stop reporting the allegedly fraudulent information. Account #s on credit receipts have to be truncated.

Copyright Law

An intangible property right granted by federal statute to the author or originator of a literary or artistic production of a specified type. An author's exclusive right to publish, print or sell a product of her intellect for a certain period of time. Note not everything is copyrightable.

Assault

An intentional, unexcused (referring to a defensive perspective, has to be proven unexcused) act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive contact. Ex: Threatening phone call? Still have to prove its immediate. Assault can lead to battery. No malice necessary.

Horizontal Restraints

Any agreement that in some way restrains competition between rival firms competing in the same market. This is between companies at the same level of operation and in direct competition with each other. Retailers of a similar product located in the same geographical market. 1. Price fixing- restricting output by eliminating price competition in which companies seek to sell more by charging less than their rivals. 2 grocery stores. a. U.S. v. Saucony Vaccum Oil Company (Madison Oil). Texas/Louisiana Oil company had lots of oil being produced in the depression and it couldn't be sold. Worked with maidens to get rid of excess oil. Seen as anti trust behavior (per se violation). b. E-Books- price fixing of apple v. amazon kindle books 2. Group boycotts- an agreement by 2 or more sellers to refuse to do business with another person or company 3. Horizontal market divisions- agreements to divide the market between rival companies. Includes dividing up the territory or diving up the types of customers. Per se violations.

Vertical Restraints

Any restraint on trade created by agreements between firms at different levels in the manufacturing and distribution process. Can encompass entire chain of production from inputs, basic manufacturing, distribution to wholesalers, and retail sales. 1. Territorial or Customer Restrictions- manufacturers instituting territorial restrictions or attempting to prohibit wholesalers or retailers from reselling the products to certain classes or buyers such as competing retailers. These are judges under the Rule of Reason. 2. Resale Price Management Agreements- an agreement between a manufacturere and a distributor or retailer in which the manufacturer specifies what real price its products must be. (Max resale price maintenance agreement could increase competition and benefit customers). Rule of Reason

proof necessary for a patent

Applicant for a patent must demonstrate to the satisfaction of the US Patent and Trademark Office that the invention, discovery, process, or design is novel useful, and not obvious in the light of current technology.

Consumer Safety Act of 1972

Applies to consumer products-toys, clothes, cleaning supplies, etc. Excludes products intended for industrial purposes and consumer products already covered by other regulatory agencies. Established the Consumer Product Safety Commission- deals with consumer goods.

FTC v. Verity International, LTD (2006)

Billed phone-line subscribers who accessed certain online pornography sites at the rate for international calls to Madagascar. Court ordered Verity to pay restitution to consumers close to 18 million.

Boles v. Sun Ergoline, Inc.

Boles signed contract acknowledging risk. Fingers were amputated in tanning bed fan. Sued for strict product liability. Colorado Supreme Court ruled assumption of risk was not liable bc strict product liability is driven by public-policy considerations. Focuses on the nature of the product rather than the conduct of the manufacturer or person injured.

Martin v. Wal-Mart Stores, Inc.

Box of gun pellets fell on floor. Martin trips and injures himself. Walmart claims he should've know better than to walk on pellets.

Katko v. Briney

Briney- landowner of an abandoned farmhouse. Used farm to store antiques. Series of thefts from the property. Police did nothing. He rigs up a trip wire tied to a spring action shotgun. Katko was robbing the farmhouse when he was shot. He sues and and ins the case against Briney. NOT A TEXAS CASE

Registration of Copyrights

Can be registered (not required) with US Copyright office in Washington, D.C. A copyright owner no longer needs to place the symbol or the term copr. or copyright on the work to have it protected against infringement. Chances are that if somebody created it, somebody owns it. It is not possible to copyright an idea. Ideas embodied in a work may be freely used by others. What is copyrightable is the particular way in which an idea and an expression is expressed. If someone other than the copyright owner wishes to use the copyrighted material, a license agreement (contract) should be formed and royalties paid to the copyright owner.

Pros/Cons

Can be the longest lived form of IP- as long as its secret Can be inexpensive Can be expensive-Stelth Fighters Doesn't always work- secrets still get out.

Coca-Cola v. The Koke Co. of America (U.S. 1920)

Coca-Cola wanted to prevent the Koke Co. and other beverage companies from using the word Koke for their products. Trial court granted an injunction but appellate court reversed it. Coca Cola Appealed to Supreme Court. The district courts injunction was allowed to stand and competing beverage companies were enjoined from calling their products Koke. Precedent used for Lanham Act of 1946.

Starbucks v Lundberg

Coffee shop owner created business called SamBucks. Very similar to Starbucks name. There was both a high degree of similarity between the marks but the companies both had coffee-related services. Use reduced the value of Starbucks famous mark and constituted trademark dilution.

Compensatory Damages

Compensatory damages compensate or reimburse the plaintiff for actual losses. Broken down into special and general damages.

False Advertising under the Lanham Act

Competitors right to sue over ads. To state a successful claim for false ads under this act, business must establish these elements: 1. An injury to a commercial interest in reputation or sales. 2. Direct causation of the injury by fake or deceptive ads. 3. A loss of business from buyers who were deceived by the ads.

What is the practical significance of administrative law?

Congress or state legislature usually adopts a general statutes and leaves its implementation (details) to an administrative agency. Benefits to society, the environment, etc. result from administrative law, but there are great costs to businesses.

MacPherson v. Buick (1916)

Convertible car with wooden wheels and no seatbelt. Wheel crumbled and Mac injured. A reasonable inspection of the wheels could have told Buick that the wooden wheel was rotten. MacPherson won. Buick held liable even though the product was manufactured by another company.

Hustler Magazine v. Falwell

Court held that intentional infliction of emotional distress was permissible First Amendment free speech- so long as such speech was about a public official (figure), and could not reasonably be construed to state actual facts about its subject. Falwell sued for 30 different tourists and claims emotional distress. The ad portrayed Falwell as a drunk and having incestuous relations with his mother. Press gets away with torts on this behavior because of Free Speech.

Admin Procedures: Arbitrary and Capricious Test

Courts should hold "unlawful and set aside" agency actions found to be "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law". Includes factors like 1. Failed to provide a rational explanation for its decision. 2. Changed its prior policy without justification. 3. Considered legally inappropriate factors. 4. Entirely failed to consider a relevant factor. 5. Rendered a decision plainly contrary to the evidence.

Oil Pollution Act

Creates liability for damages to natural resources, private property and local economies caused by the discharge of oil into navigable waters or onto an adjoining shore.

Defenses to Product Liability: Comparative Negligence

Defense in strict liability cases. Not defense to the idea of abnormally dangerous activities. Can lessen the percentage of liability of the defendant in the case by showing negligence on the other parties behalf.

Duty of Care and its Breach & Duty of Landowners

Depends on circumstances (such as responsibilities when driving at night vs. during the day). 1. Reasonable person standard- measure of duty given int the circumstances. 2. Duty of Landowners: based on category of person present on land. A. Landowner must exercise reasonable care to protect business invitees from harm, including: 1. Foreseeable risks that the owner knew about. 2. Risks the owner should have known about -even includes foreseeable criminal acts. 3. Obvious dangers: a. Generally there is no duty to warn but still may be liable fro failure to maintain safe premises. b. Exception- may have duty to warn children. B. Landowner has to warn licensees (social guests) of known risks. C. Landowner has a duty not to willfully injure a trespasser.

Duty of Employers- "Negligent Hiring/Retention"

Duty to hire people that won't be harmful to general public.

Federal Regulations

EPA- primary federal agency dealing with environmental law. Other federal agencies- agencies in department of interior, defense, labor, FDA, Nuclear regulation commission. Can sue to enforce.

Safe Drinking Water Act (1974)

Empowered the EPA to set max levels for pollutants in public water system. Suppliers of drinking water must send to every household a statement containing: levels of contaminators in water, possible health concerns and the source of water.

Agency Creation and powers

Enabling legislation is passed to create an agency. Specifies name purposes, functions and powers of the agency. Example: The Federal Trade Commission (FTC) The Act that created the agency was created as a means of prohibiting unfair methods of competition and deceptive trade practices. Describes the procedures they must follow to charge orgs with violations. Provides for judicial review of agency orders. Granted powers like 1. Create rules and regulations for the purposed of carrying out the act. 2. Conduct investigations of business practices, etc.

Auto Fuel Economy Labels

Energy Policy and Conservation Act governed by EPA. Required to attach label to every new car info about gas mileage.

Defenses

Even if the plaintiff can prove the tort they allege, they don't always win. Defendants can excuse their actions if they prove a defense. This can be poking holes in the plaintiffs case OR giving reasons why you acted in this manner.

Examples and Non-examples of Intellect and Creativity that can become Intellectual Properties:

Examples: Source codes, software, logos, covers, names of companies, product of someones intellect,, secret recipes, designs, motif, blueprints, patents of cars Non-examples: Land, House, Car, Shovel

Owner must implicitly or expressly establish that the person is a trespasser to land

Expressly- telling a guest to leave and they won't or by posting no trespassing signs. Implicitly: anyone o the property to commit an illegal act (has criminal intent).

Food labeling

Fair Packaging and Labeling Act requires products labels to identify: 1. The product 2. The net quantity 3. Serving size if the number of serving is given 4. Manufacturer 5. packager or distributor

Blake v. Giustibelli

Family attorney bashed online by clients who exaggerated their claims. The libel was widely publicized. Attorney won the case.

Two Types of Agencies

Federal Executive Agencies- formed to help the President carrying out executive functions. Include cabinet departments of the executive branch. Dept. of State, Treasury (includes IRS), Justice (includes FBI, DEA), Defense (NSA), Health and Human Services (FDA, Center for Disease Control), and Homeland Security (ICE). AND Independent Regulatory Agencies- outside of the major executive departments (Federal Reserve System, FTC- regulates the way a company makes its products, SEC- regulates company capital structure, financing and financial reporting, Equal Employment Opportunity Commission- regulates the employer-employee relationship, EPA, OSHA-Occupational Safety and Health Commission regulates how a company makes its products) .

Clayton Act of 1914

Four activities made illegal but only if they substantially tended to lesson competition or create a monopoly power. Only CIVIL. 1. Four actions are a. Price Discrimination b. Exclusionary Practices c. Corporate mergers d. Interlocking directorates 2. Defenses a. cost justification b. meeting a competitors prices c. Changing market conditions

Product Liability based on Misrepresentation

Fraudulent misrepresentation (fraud) a. Misrepresentation of a material fact concerning the quality, nature, or approximate use of the product is made knowingly or with reckless disregard for the truth. As a result of the fraud, injury occurs and c. The buyer/plaintiff relied on the misrepresentation. Ex: Intentional mislabeling of products or concealment of product defects.

Administrative Procedure Act (APA) of 1946

General statute which details the procedural requirements of all federal agencies. Congress can change the procedural requirements for an agency in its enabling statute. But in the absence of the specific directive from Congress, agencies must follow the APA.

Labelling and Packaging Laws

Generally, 1. Labels must be accurate and use words that are easily understood by the ordinary consumer. 2. Sometimes labels must specify the raw materials used like cotton, nylon, etc. 3. Sometimes, a warning label is required

Texaco v. Pennzoil

Getty Oil Company has contracted a sellout with Pennzoil where pennzoil would give them an amount of money. Getty then sells out to Texaco who offers them more money. Pennzoil sues Texaco for wrongful interference with a contractual relationship because they have deeper pockets than Getty. $10.3 billion awarded by Supreme Court to Pennzoil.

Copyright Act of 1976 & Copyright Term Extension Act of 1998

Gives the author or originator exclusive rights to there works for a specific amount of time as follows: 1. Works created after January 1st, 1978: Automatically given copyright protection for life and 70 years after the authors death. 2. Works owned by publishing houses: Automatically given copyright protection for 95 years from publication date or 120 years from date of creation, whichever comes first. 3. Works by more than one author: Lifetime plus 70 years after death of last surviving author.

Product Liability Based on Negligence

If a manufacturer fails to exercise "due care" to make a product safe, a person who is injured by the product may sue the manufacturer for negligence. 1. Privity of contract is NOT required. -refers to the relationship that exists between the parties of a contract. The reason that normally only the parties can enforce the contract. 2. Plaintiff does not have to prove the specific defect that caused the injury. Plaintiff could sue the entire chain of production (manufacturer, distributor, wholesaler, retailer)

Defenses of Negligence: Contributory Negligence

If plaintiff is also negligent, then plaintiff has breached a duty and does not recover anything. Minority of states use this defense.

Defense to Trespass of personal property

If the meddling was warranted. Most states for instance allow car repair shops to hold car if customer refuses to pay for repairs already completed.

Market Share Liability

If the plaintiff cannot prove which manufacturer produced the particular product that caused harm, then all manufacturers are liable in proportion to its share of the market

Defenses to Negligence: Assumption of Risk

If the plaintiff voluntarily enters into a risky situation knowing the risk involved, you are not allowed to recover damages you may incur. A. Requirements: a. Knowledge of risk b. Voluntary assumption of risk B. Can be an expressed agreement C. Can be implied by actions. Only assume normal risk carried by the activity. Risks are not deemed assumed in emergencies. Some statutes protect classes of people. Ex: Employees cannot assume risks of employer's safety violations.

Disparagement of Property

Includes Slander of Quality (Trade Libel) and Slander of Title (Evidence of Ownership)

Common law and Anti Trust Law

Ineffective means of protecting competition

Pro/Cons to Trademarks

Inexpense and long lasting (think of McDonald's and Walt Disney) You can keep trademarks virtually forever if you keep renewing the paperwork.

Pros/Cons to Copyright

Inexpensive- $20 to register copyright Long-lasting Does NOT protect ideas Still lots of controversy with technology

Intellectual Property

Intellectual property is the work of the human mind which consists of the products that result from intellectual and creative processes. Aren't always tangible. An author or inventor has exclusive rights to their intellectual properties. They are personal property rights- intangible personal property rights. U.S. Constitution, Article 1, Section 8: Congress is authorized to promote the Progress of Science and useful Arts by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.

res ipsa loquitur (the facts speak for themselves)

Law infers that the defendant was negligent and then the burden of proof shifts to the defendant to prove he was not negligent. Very rare/different from normal negligence case. a. Only applies when the event creating the damage is one that usually does not occur in the absence of negligence. (like an elevator falling 20 floors, derailed train, wheel flying off vehicle). b. Event must have been caused by the defendant, the defeats agent or instrumentality within the defendant's exclusive control and must bot be due to any voluntary action or contribution of the plaintiff.

cooling-off laws

Laws that allow buyers a period of time, such as three business days, in which to cancel door-to-door sales contracts. Also, notified in Spanish if thats the language the sale was conducted in. Includes trade shows, home equity loans, internet purchase contracts and door to door sales.

Product Liability Defense: Statute of Limitations and Statute of Repose

Limitations: cases are dismissed because the person didn't file it in time (usually 2 years in torts) Repose: Time limites. Maximum amount of time that liability exists. Most states have this. Dated from manufacturing date. Usually between 10-12 years.

Clean Water Act of 1972

Limits discharges of pollutants into water used for navigation, recreation or swimming. Similar fines and penalties to Clean Air Act.

Warner-Lambert Co. v. FTC (1977)

Listerine mouthwash - had claimed for years without evidence that Listerine was a cure for colds and sore throats. Had to publish counter ads to correct misinformation.

White v. Jump King

Little girl injured on trampoline even though 9 warning labels on bounce thing. Assumes risk of use.

Actual malice

Making statements knowing they are false or with reckless disregard for the truth.

Product Defects

Manufacturing defects- a product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. Particular product was defective, not every product was of the Same make.

FTC Mail or Telephone Order Merchandise Rule

Merchants (mail, internet, phone or fax) required to ship orders within promised time in their ads and notify consumers when order cannot be shipped on time.

Remedies for Copyright Infringement

Money damages Injunction- stop the production of permanently

Causations to prove in Negligence

Must prove both questions. 1. Is there cause in fact? a. Uses the "but for" test- but for the breach of duty the injury would not have occurred. b. Burden on party claiming harm by preponderance of evidence. 2. Is there proximate cause? Must be foreseeable. a. Is the causal connection between an act and an injury strong enough to justify imposing legal liability? b. Foreseeability is the test for proximate cause after the Palsgraf ruling- if the consequences of the harm done to victim of the harm is unforeseeable, no proximate cause. If no proximate cause, NO LEGAL LIABILITY.

US v. Microsoft

Navigaior-First geographical internet browser. Microsoft saw it as a threat to its operating system market so they developed Internet explorer. Required computer makers that wanted to install Window OS to install Internet Explorer and exclude Navigator. Includeded codes that would cripple the OS if IE was deleted and paid internet services to distribute IE and exclude Navigator. Microsoft won.

Environmental: Negligence and Strict Liability

Negligence based on a businesses alleged failure to use reasonable care toward a party whose injury was foreseeable and was caused by lack of reasonable care. (Air pollution causing employees to suffer from respiratory illnesses) Businesses that engage in ultra hazardous activities like transporting radioactive materials are strictly liable for injuries that their activities cause.

Product Liability Defense: Commonly Known Dangers

No warning necessary. Obvious dangers/risks. Like a knife will cut you and matches will burn you. Jamieson v. Woodward & Lothrop (1957) Woman using workout elastic band when the band shoots back and she loses the retina in her eye. Sues manufacturers and claims that there should have been a warning. Loses because court claims this is common knowledge and the plaintiff should have known better.

Is plagiarism the same thing as copyright? What is plagiarism? Can be engaged in fair use, therefore, not infringement, and still be committing plagiarism?

No, not the same thing. Plagiarism is quoting but no reference given to the source. Yes you can be engaged in fair use but still be committing plagiarism if you don't cite the work.

Can an owner remove a trespasser from their land?

Owner can remove trespasser from the premiss through the use of reasonable force without being liable for assault and battery. Reasonable force is dictated by the circumstances.

Palsgraf v. Long Island Railroad (1928)

Palsgraf is a woman at a translation. Sitting on platform when another train leaves the station. Man running after that train with a package containing explosives. It explodes when he drops it and causes her injury. She sues railroad company. She loses bc the event was not foreseeable.

Product Liability Defense: Knowledgeable User

Particular to that user (that they should've known). Not generally known by entire public, but known by this particular user. Pelman v. McDonalds Parents sue McDonalds claiming it made their kids fat and unhealthy. Court rules in favor of McDonalds because as a fast food consumer, you should know that fast food is not nutritious and contains high cholesterol, sugars and fat which is unhealthy.

Three elements of wrongful interference in a business relationship

Plaintiffs must prove all three to win 1. Established business relationship 2. Tortfeasor used predatory behavior 3. Tortfeasor intentionally caused the business relationship to end.

If you own a dog, should you put up a "beware of dog sign"?

Probably not. A lot easier to make a case for negligence than strict liability. What would the plaintiff prove if they were bitten by your dog and sued for negligence? Ask yourself what they would prove if they were bitten and sued for strict liablity? Guard dog is used to defend home, don't want them to use case for strict liability.

Defenses to Liability: Product Misuse

Product is used in a way not intended by the manufacturer. 1. Courts have limited this defense to when the particular use is NOT foreseeable. Ex: Purdue Pharma. Produced pain killer drug. Some user would crush medications or shoot up through veins to create greater pain killing effect. They are sued, but win claiming misuse. They argue that they could not have reasonably foreseen people misusing this product in this fashion. 2. If the use is reasonably foreseeable, the manufacturer must warn. Stults v. International Flavors and Fragrances (2014) Popcorn Lung Case Manufacturers of microwave popcorn used a chemical that creates a popcorn lung problem similar to COPD. Stunts claims they should've warned him about the risk. Court agrees with Plaintiff and says the company should have warned him of the risk.

Slander of Title

Publication denies or casts doubt on another's legal ownership of property, which results in financial loss to the owner. Someone knowingly publishes an untrue statement about property with the intent of discouraging a third person from dealing with the person slandered.

Slander of Quality (Trade Libel)

Publication of false information about another's product alleging it is not what its seller claims. Actual damages must be proved to have proximately resulted from the statements about a competitors products. For example, Claiming a product is addictive when it in fact is not.

Schmude v. Tricam Industries Inc. (2008)

Purchased step ladder. It collapsed. Filed lawsuit against Tricam based on manufacturing defect. Misalignment of rungs. The defect made the ladder unreasonably dangerous and awarded Schmude $677,000 in damages.

Defenses of Negligence: Superseding Intervening Force

Relieves the defendant of liability for injuries caused by the intervening event. Overriding/intervening force. Hit woman with bike. Nearby plane crashes and woman gets burned. She sues biker for injuries. Biker cannot be held liable for burns bc it is a superseding and intervening force.

Nutrition Labeling and Education Act of 1990

Required nutritional labeling of almost all foods covered by the FDA with a specific layout and content that reflects consumers' dietary concerns for chronic disease prevention

Sherman Antitrust Act (1890)

Restraint of Trade: any agreement between firms that has the effect of reducing competition in the marketplace. Major provisions: 1. Every contract, combination in form of trust or conspiracy in restraint of trade or commerce among the state or with foreign nations is illegal and is felony punishable with fine/imprisonment. 2. Every person who monopolizes or attempts to monopolize or combine or conspire with any other person or persons to monopolize any part of trade or commerce in the states or with any foreign nation shall be guilty of a felony.

Standard Oil Trust

Rockefeller's company, in 1881, owned 90 percent of the oil refinery business, with a board of trustees at the head. Controlling almost all of the oil refining and distribution by 1882. SCOTUS ordered the dissolution of the company in 1892. Rockefeller simply created a new company called Standard Oil of New Jersey and continued to thwart the legal system.

Three jobs of agencies

Rule making Investigating/enforcing rules Judge Violations of the Laws (Adjudication)

Monopolization: Section 2

SCOTUS defines as "The possession of monopoly power in the relevant market AND the willful acquisition or maintenance of the power as distinguished from growth or development asa consequence of a superior product, business acumen or historic accident."

S.A.D.

Safer Alternative Design- has to be economically feasible. Prove this in design defect cases.

Riley v. Ford Motor Co. (2015)

Sheriff Riley's car rolled over and door broke resulting in Riley's death. Widow sued Ford for making car with faulty door latch. Won $900,000 in damages. Evidence shows that ford was aware of the safety problems presented and after conducting a risk-utility analysis, Ford found that an alternative system was feasible and perhaps superior.

Special vs General Damages

Special damages compensate the plaintiff for quantifiable monetary losses, such as medical expenses and lost wages and benefits. General damages compensate individuals (not companies) for the non monetary aspects of the harm suffered, such as pain and suffering, emotional pain, disfigurement, etc.

Texas Deceptive Trade Practices Act (DTPA)

Texas consumer law that has a long list of deceptive and unfair practices that a merchant/seller can be held liable. Remedies include Treble DAS, Attorneys fees and costs of court.

Rulemaking Procedure

The APA defines a rule as "an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law and policy." Notice comment rule making a. Notice of the Proposed Rule-making: publish notice of proposed rule making in Federal Register. b. Comment Period- following publication, the agency must allow ample time for persons to comment in writing on the proposed rule. Gives interested parties the opportunity to express views on policy. c. Final Rule- after comment period. Published final piece in the Federal Register. Explains reasoning behind rule. Informal Agency Actions- Interpreted Rules- exempted from APA's requirements bc they do not establish legal rights.

Statutory Protections of Trademarks

The Lanahm Trademark Act of 1946- enacted in part to protect manufacturers from using business to rival companies that used confusingly similar trademarks. Act incorporates common law of trademarks and provides remedies for owners of trademarks who wish to enforce claims in federal court. Amended by the Federal Trademark dilution act of 1995. Under this, to state a claim for trademark dilution a plaintiff must prove 4 things: 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 associaten between the marks. 4. The association is likely to impair the distinctiveness of the famous mark or harm its reputation. Protected even when use is on noncompeting goods or is unlikely to cause confusion.

Warning defects

The foreseeable risk of harm posed by the product could have been reduced or avoided by reasonable instructions or warnings. Made safer with warnings or better warnings. a. Obvious risks- No duty to warn about risks that are obvious or commonly known. b. Foreseeable misuses- Seller must warn! Drugs required to explain all possible side effects.

Clean Air Act of 1970

The law aimed at combating air pollution, by charging the EPA with protecting and improving the quality of the nation's air. Created the EPA. Criminal penalties include fines and jail time. Private citizens can sue to enforce the act and earn up to $10,000 for reporting violations. Mobile source of air pollution such as cars, other vehicles, and stationary sources of pollution such as electricity/utility and industrial plants. Violations can include civil penalties up to $25,000 a day and $5000 a day for things like failure to maintain records.

exception slander per se

These are defamation in and of themselves. 1. Statement that person has loathsome, communicable diseases like an STD or AIDS. 2. Statement that a person has committed improprieties in their profession or trade. 3. Statement that person has committed or been imprisoned for a serious crime like murder, rape or molestation of a minor. 4. Statement that an unmarried woman in unchaste. or that she sleeps around.

Postal Reorganization Act of 1970

This law provides that unsolicited merchandise sent by U.S. mail may be retained, used, discarded, or disposed of in any manner deemed appropriate by the recipient, without the recipient's incurring any obligation to the sender.

Uniform Trade Secrets Act of 1979

This uniform law was presented to the states in 1979 in an effort to reduce the unpredictability of the common law amongst the states in this area. Parts of the act have been adopted by about 44 states as of 2007.

Confidentiality Agreements

Trade secrets must be disclosed to some persons, particularly key employees. So, businesses protect their trade secrets contractually by having all employees who use the process or information agree in their employment contracts to never divulge it.

Trademark Registration

Trademarks may be registered with state or federal government. To register federally, a person must file an application with the U.S. Patent and Trademark Office in Washington, D.C. A trademark can be registered if: 1. It is currently in commerce or 2. The applicant intends to put it into commerce within 6 months. R with circle is federal trademark. TM is state trademark. State is not as difficult to obtain in a timely manner.

Claims Based on Half-Truths

True but incomplete and may lead to false conclusions.

Tennenbaum v RGB

Use software. Was not under fair use bc they stole the whole song. Violated copyright law.

Johnson v. Medtronic Inc.

Valid Product liability, design defect A defective product has been put into the stream of commerce Too easy for the doctor to switch between the two modes on the defibrillator In favor of Johnson

FTC v. MedLab, Inc.

Weightless supplement. Claims you can lose 15 lbs a week. Court said ad was false and misleading, granted FTC a summary judgment and issued a permanent injunction to stop MedLab from running the ads.

Public Domain

When copyrights expire, protected works return to the public domain. It is a creative commons where the law cannot control what you do with the material you find. Which is why Disney can use Bros. Grimm fairytales in their films.

Trademark Infringement

Whenever a trademark is copied to a substantial degree or used in its entirety by another, intentionally or unintentionally, the trademark has been infringed. Mi Cocina in Bryan v. Chain Mi Cocina. Local Mexican food restaurant owner is sued by chain for trademark infringement. Had to change the name on everything.

Taylor v. Baseball Club of Seattle (2006)

Woman and her family went to baseball game. Went early to watch warmup. She is hit by a ball. Court rules that she assumed risk when she went to the baseball game. She voluntarily chose to sit in unprotected area. Appellate court upheld lower court ruling that club was not responsible.

Intentional Torts Against Property

Wrong is committed against the individual who has legally recognized rights with regard to real or personal property.

Defamation and Types

Wrongfully harming a person's good reputation (cannot be true) 1. Libel- written 2. Slander- oral

Truth in Lending Act (TILA)

a disclosure law that requires sellers and lender to disclose credit terms and loan terms so that we can shop around for the best financing options. 1. Application-Applies to business who lend funds or sell products on credit. 2. Disclosure Requirements- Regulation Z- all terms must be clearly and conspicuously disclosed. If there are more than 4 installment payments in a credit transaction, there are certain disclosure requirements. 3. Credit Card Rules- provisions regarding credit cards. Unsolicited credit card: card is stolen, company that issued that card cannot charge that consumer for any unauthorized charges. Solicited credit card: card is stolen; company can only charge consumer $50 per card for any unauthorized charges after being notified that the card is stolen. Company must disclose balance computation and methods.

Trademarks

a distinctive mark, name, word, motto, device or implement that a manufacturer stamps, prints or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known. A trademark is a source indicator. The stronger the presence of a product is, the more protections it has.

Economic Espionage Act (1996)

a law that makes the theft of trade secrets by foreign entities a federal crime in the United States

What are monopolies?

a market in which theres is a single seller or a firm that although not the sole seller in the market, can nonetheless substantially ignore rival firms in setting a selling price for its product or can in some way limit rivals from competing in the market. All monopolies are not illegal. Only ones that use its power to corrupt industry.

Elements of prima facie case of defamation

a. Defendant made a false statement of fact. b. the statement was understood as being about the plaintiff and intended to harm their reputation. c. Published to a third party- someone other than the plaintiff. Can even be someone overhearing a conversation. d. I the plaintiff is a public figure, he/she must prove "actual malice" to win.

Checks and Balances of Agencies

a. Executive- appointment of officers and veto power b. Legislative- enabling legislation allows Congress to abolish and agency and to defund c. Judicial- court review of agency actions subject to the Exhaustion doctrine: plaintiff must have exhausted all available administrative remedies before seeking a court review.

No duty to rescue

a. It is not necessary to go to the aid of a stranger. b. Exceptions- you put them in the situation. Act as reasonable person in circumstances.

Trespasser is liable for damages caused to the property and generally cannot hold the owner liable for injuries that the trespasser sustains except:

a. Reasonable Duty- Some jurisdictions, by statute, are replacing common law rule with a reasonable duty rule that varies depending on the status of the parties. In other words, the owner would have a duty to warn in certain circumstances. b. Attractive Nuisance Doctrine- young children (9 in Texas) do not assume the risk if they are attracted to the premises by some object (pool, trampoline, etc.)

Defenses to Trespass to Land

a. Trespasser enters to assist someone in danger even if that person is a trespasser. b. Trespasser enters to protect property.

Defenses against defamation

a. Truth is an absolute defense. b. Privileged speech- given permission to defame 1. Absolute: judicial and legislative proceedings 2. Qualified (conditional): made in good faith and made to those with legitimate interest in communication. c. Public figure plaintiffs- 1. Public figures have higher burden in proving defamation. 2. Must prove "actual malice" which means statement was made with intention to tarnish reputation.

Three elements of Wrongful Interference with a Contractual Relationship

a. Valid, enforceable contract between two parties. b. Third party knew of the contract. c. Third party must intentionally induce a party to the contract to breach the contract. MUST HAVE ALL THREE

Defenses to assault and battery

a. consent- like in contact sports or drunken fighting. b. Self-defense and Defense of others 1. Reasonable defense in both real and apparent danger (Believe that dangers exist and you are only acting to defend) 2. Force must be reasonably necessary.

Defenses to Conversion

a. necessity b. purported owner does not in fact own the property or does not have a right to possess it that is superior to the right of the hold.

Telephone Consumer Protection Act of 1991

a. prohibits telephone solicitation using automatic dialing or a prerecorded voice. b. Prohibits ads via fax without first obtaining the recipients consent. c. Enforced by FCC. $11,000/day for violations. d. Also allows for private lawsuits 1. Consumer can recover actual monetary loss or 2. $500 for each violation, whichever is greater 3. If willful or knowing violation, court can triple the damages.

Bait and Switch Advertising

advertising a very low price for a particular item that will likely be unavailable to the consumer, who will then be encouraged to purchase a more expensive item

Battery

an unexcused and harmful or offensive physical contact intentionally performed. Physical touching. Can include things you are holding like a cafeteria tray (from example), purse or wallet. No malice necessary.

Conversion

any act that deprives an owner of personal property or of the use of that property without the owner's permission and without just cause that places the property in the service of the trespasser or other person. This is equivalent to theft (civil theft). Can include action for trespass to personal property.

wrongful interference with a contractual relationship

any lawful contract can be the basis for this action. The contract exists between two parties and the interference is made by a third party who was NOT involved in the contract. Plaintiff must prove that defendant actually knew of the contracts existence and induced the breach of the contractual relationship.

Torts

civil wrongs other than breach of contract

David Beckham v. In-Touch Magazine

claimed Beckham had an affair with young girl. Since he was a public figure and had to prove actual malice, he lost the case.

FTC v. Whole Foods

contained 12% of natural food market, planned to merge with competitor that had 1%. FTC challenged and require sell of some market share. Had to sell 13 stores which were formerly wild oats (company they bought). Section 2 violation dealing with relevant market.

Monopoly power

control of relevant market

Abusive or Frivolous Litigation

filing a lawsuit without a legit basis for cause of action. Often used as a counterclaim by the defendant. Defending themselves in the face of absurdities and used when there is no basis of claims.

Credit Protection

governed by the Consumer Financial Protection Bureau (independent)

Liebeck v. McDonalds (1994)

hot coffee causes 3rd degree burns, she wins 1M, but she was 20% responsible so gets 600000. Liebeck claims McDonalds should have warned her of extreme heat.

Patent Infringement

if a firm makes, uses, or sells another's patented design, product, or process without the patent owner's permission (tort)

False imprisonment definition

intentional confinement or restraint of another without justification.

Product liability

lawsuits involving facts of company selling/making a product that is the case of the plaintiffs actions.

Strict Liability

liability without fault. Automatic liability. Liability that focuses on the nature of the situation instead of the actors actions. Applied first in American law to Abnormally dangerous activities.

Negligence per se

means in and of itself a. May occur if person violates a statute providing for a criminal penalty and causes another to be injured b. Burden of proof on injured party to show 3 things: 1. Statute clearly sets out what is the expected conduct, when and where expected and by whom expected. 2. He is in the statutorily protected class. 3. Statute was designed to prevent the type of injury suffered by the plaintiff.

Duty of Professionals

most commonly affects doctors and attorneys. Based on the profession itself. a. Professional held to higher standard- depends on the type of professional. b. Violation of duty of care leads to malpractice.

fair use exception to copyright infringement

permits a person/organization to reproduce copyrighted material w/o ones permission and without paying royalties. 6 fair uses 1. Criticism-quote them 2. Commentary 3. News reporting 4. Teaching 5. Scholarship 6. Research And the four statutory factors used by courts: 1. The purpose and character of use 2. The nature of the copyrighted work 3. The amount/portion of the work used in relation to the whole work 4. Effect of the use on potential market or value of the work

Damages Available in Tort Actions

plaintiff getting money for the wrong they have allegedly suffered by the actions of the defendants.

Slander damages

plaintiff must prove special damages (statement actually caused monetary loss). Reason: slander is temporary.

Market Power

power of a firm to control the market for its product

Libel damages

proof of special damages is not necessary.

Ocean Dumping Act

regulates the transportation and dumping of pollutants into ocean waters

Invasion of the right to privacy

right to solitude and freedom from prying public eyes.

Design Defect

the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design. The whole line of products is faulty.

Market power

the power of a firm to control the market for its product

embezzlement

theft or misappropriation of funds placed in one's trust or belonging to one's employer.

liscensing agreement

to avoid a lawsuit for infringement on an intellectual property a user of another;s property can enter into a contract to receive rights to use the property and in exchange pay a royalty. Limited right to use.

nusiance

tort cause of action. A person may be liable if they use their property in a manner than unreasonably interferes with others right to use or enjoy their own property.

Four Types of Intellectual Property

trademarks, copyrights, patents, trade secrets

Trespass to Personal Property

wrongfully harming or interfering with the personal property owner's right to the exclusive possession and enjoyment of their property. Involves intentional meddling. Ex: Roommate takes your car for a day without your permission.