MGMT Review - Lecture notes all PDF

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MGMT Review Common vs civil law systems Stare Decisis Federal vs State Law Civil vs Criminal Law Public vs Private Law International vs Domestic Law Procedural vs Substantive Law - Civil procedure not on test - Easy distinction Adversarial vs Inquisitorial Systems - US has adversarial Pro Se is okay for small claims court Criminal public defender for poor, civil legal aid clinics for poor Finder of fact is the jury Civil trials usually no juries but cases like Class Action might Kitty Genovese case - no obligation to rescue case Eric j v Betty M Case - child molestation case Soldano v O’Daniels case - restaurant owner not allowing call to be made - held liable Attorney Client Relationship - Privilege only is in court proceedings, confidentiality for everything else Maintenance - third party paying for other party’s lawyer fees - illegal - Contingency fee is exception Malpractice is different from professional misconduct, hard to win malpractice Supremacy Clause, Commerce clause, necessary and proper clause Currently 27 amendments

Commerce clause test - business involving more than one state, channel of interstate commerce, instrumentalities of commerce, activities that have a substantial impact on commerce 14th amendment, 5th amendment, 6th amendment, 8th amendment 1st amendment, 4th amendment, exclusionary rule, 7th amendment 1st amendment - free speech, free religion, and freedom of press 4th amendment - right to be secure in home, persons, papers, etc. unreasonable search and seizure 5th amendment - right to silence, right to council, due process, eminent domain, double jeopardy 6th amendment - right to speedy and public trial by impartial jury in criminal prosecutions 7th amendment - right to jury trial in civil cases exceeding 20 dollars in federal court 8th amendment - no cruel and unusual punishment, or excessive bail 14th amendment - no person shall be denied equal protection of life, liberty, and property by law Exclusionary rule - prohibits illegally obtained evidence in criminal trials Preemption doctrine - federal law trumps state law Dormant commerce clause Equal protection clause - no state shall deny any person equal protection of the law Search and Seizure fourth amendment Eminent domain - private property can be taken for public use Excessive fines are considered cruel eight amendment **Levels of Scrutiny - Rational basis, low bar - Intermediate, substantially important - Strict - narrowly tailored to achieve compelling interest in the least restrictive means ADR - Negotiation, mediation, and arbitration Remedies for contracts are usually monetary things Article 2 of UCC for Sales adopted by all states except Louisiana Oral, written, implied, express, quasi are contract types Bilateral vs Unilateral contracts Main requirements for a contract: competent parties, mutual agreement, genuine assent (no duress or fraud), reciprocal consideration, legal formation and execution

Contracts are all civil law Mirror image rule in contracts important - offer must be accepted completely, a counteroffer is in turn a rejected offer Promissory Estoppel - promise is enforceable by law if promisee is reliant on detriment caused by promisor’s promise Executed vs executory contract Merchants can excuse unilateral contracts 98 Restatements - legal professionals/scholars summarizing laws and rules that are super persuasive in court but aren’t legally binding Parole evidence rule: anything outside a written contract can’t be admitted Voidable vs void contracts Intellectual property bundle of rights Trademarks: common law and Lanham act, usually logos, identify product and quality and company Classifications of trademarks, declining order or level or protection: arbitrary (apple), fanciful (kodak), suggestive (greyhound), descriptive (UPS), Generic (Kleenex) Service marks Certification Marks Color Marks - can be trademarked if distinctive and not functionable Trade dress is not functionable and it’s the look or feel of something Trade secrets: formula or pattern is protected if public doesn’t know, restricting access, NDA agreements, confidential marking Sue for infringement must show trade secret exists, unlawful means of acquisition, and used without plaintiff’s permission Economic espionage Copyright - usually for life + 70 years - Don’t need to register it but if you’re going to sue someone you do

Patents - 20 years protection Fiduciary Duty in partnerships to act in good faith for the benefit of partnership Partnerships - urban decay case Go over types of Bus. Orgs. Perpetual existence - corps can exist for life Business Judgement Rule: reasonable basis for officer decisions, no liability Piercing the corporate veil: control of business + fraud and serious wrongful conduct Franchises Corps - go over private vs public, liability shield, double taxation, and given rights like people No separate business torts from regular torts in law Make individual whole again - purpose of torts Categories - intentional (battery), negligence (texting while driving), strict liability (doctor leaving scalpel in body), products liability (defective product), economic and dignitary torts Premises liability - trespassers, no duty to warn them, but can’t use deadly force - licensees and guests, reasonable care but don’t need to go out looking for it - Invitees and customers, high level of care Defamation: libel (written) and slander (said) Fraud: knowingly false, reliance, damages Disparagement: between competitors usually (Coke and Pepsi) Defenses to general torts: assumption of risk, contributary negligence, liability waivers Product liability: manufacturing or design defect or inadequate warnings or instructions Damages for torts: special, general, nominal, or punitive *go over these American citizens bound everywhere in the world by FCPA Doesn’t matter if foreign government said its okay or encourage, FCPA still in effect

Criminal law and white collar crimes Ignorance of the law is not an excuse to be freed from criminal liability Statute of limitation Actus Reas (act) and the Mens Rea (state of mind) Plea bargain - lower sentence but also can be used against you When you accept a plea bargain you plead no contest to the crime IRAC - issue, rule or law came out from case, analysis, what precedent and reasoning were applied to get to the outcome, conclusion Know the law - the punchline and elements Review learning objectives under each unit 2nd holds company liable for product no matter what, 3rd adds condition to add function, putting less stress on business

Most likely topics on Essay Questions: Contracts CASE STUDY: Leonard v. Pepsico, Inc. 88 F. Supp.2d 116 (1999) 

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John Leonard brought this suit for breach of contract against Pepsico after they refused to redeem his 7,000,000 Pepsi Points for a harrier jet. Pepsi was running a promotion in which customers received points for purchasing Pepsi products and allowed additional points to be bought at $.10 per point. Leonard had 15 points when he cent a certified check, as permitted by the promotion, for $700,008.50 to purchase the additional points (included a 10 dollar shipping and handling fee). Associated with the promotion, Pepsi ran a television commercial showing different things that could be bought with Pepsi points, such as tshirts, that ultimately culminated with a young high school student purchasing/flying his new Harrier Jet to school, implying that a jet could be bought with Pepsi points. Ruling: The judge ejected Leonard’s claims because the ad was clearly not intended to be an enforceable offer; defendant’s motion for summary judgment is granted Takeaways:

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Basically, it comes down to what is reasonable, there is clearly was not a reasonable offer in this case as the advertisement could not be confused for an actual offer The plaintiff actually got the money for this claim from his attorney’s firm; they were using this as a test case to push the limits of the law

CASE STUDY: Lucy v. Zehmer, 196 Va 493 (1954) à Battle of the Forms 

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Defendants allegedly sold plaintiffs their farm for $50,000. Lucy had Zehmer create a writing, that was signed by Defendants, that stated “we hereby agree to sell to W.O. Lucy the Ferguson Farm complete for $50,000, title satisfactory to buyer.” Zehmer claims he thought the offer was made in jest because he had previously rebuffed Lucy, telling him he would never sell, and the offer was made over several drinks. Zehmer said he got his wife to sign the paper, thinking it was a joke. When Lucy put it in his pocket and tried to paid Zehmer $5 to bind the deal, he says he realized he was serious for the first time. Lucy claims it was not a joke. Lucy claims Zehmer refused the $5 and said ‘you don’t need to pay that because he has the signed agreement.’ Lucy says neither party was intoxicated. Lucy arranged for his brother (JC) to pay half the agreement. Zehmer claims he was so drunk he spelled the name of the farm wrong and doesn’t recognize his own handwriting. Defendants claim that this whole process was a bluff to get Lucy to admit he didn’t have $50,000. Ruling: Contract is enforceable – specific performance granted o Outward actions of the party shows that they intended the contract to be a real thing TAKEWAYS: o Parties clearly weren’t drunk; Zehmer is able to describe the events in great detail and his wife even suggested he drive Mr. Lucy home after making the deal because Lucy was drunk. o Defendant’s counsel eventually conceded he wasn’t too drunk o The spelling mistakes are not apparent in the record o The detailed negotiation, the fact Lucy objected to, and Zehmer made, two drafts of the agreement, the discussion of what was to be included, examination of the title, completeness of the instrument, and no evidence that Zehmer wanted to document back indicate that this was a real deal o Look to the outward manifestation in order to determine the intent of a contract – meaning that subjective intent will not be examined, only outward actions o Mental assent is not needed if words and other actions have but one reasonable conclusion (as they did in this case)

CASE STUDY Angry Bird vs Roly-Poly Pig Toy (copyright infringement) - Angry bird sued but because the average lay observer wouldn’t be able to recognize the Roly-Poly pig toy from the Angry bird, it wasn’t considered to be infringement Bowman vs Monsanto (patented agreement) - Monsanto invented soybean seeds that are able to resist weed killer and still grow. Bowman bought these seeds and then saved the seeds, meaning he reproduced the seeds to save for next cycle. Monsanto’s seeds had a licensed agreement to farmers not to reproduce or re-sell these seeds. Bowman tried to use exhaustion doctrine, but this states that you are not able to make additional patented items without the consent of the owner, which Bowman did. Supreme court held for Monsanto.

Torts Squish La Fish v Thomco (duty of care and negligence) 

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Squish and ProPack relied on Thomco’s advice to make a determination on the type of adhesive to use. Thomco gave them bad advice and by the time they had a new adhesive selected, the distributor wanted a guarantee the order would be on time. Squish couldn’t give that order and the distributor cancelled the contract. Squish sued Thomco for negligent misrepresentation. District Court granted summary judgment for Thomco; Squish appealed and won. TAKEAWAYS: o Jurisdictions may adopt rules from the Restatement of Torts o Elements of negligent misrepresentation  The negligent supply of false information to foreseeable persons, known or unknow  Such persons’ reasonable reliance upon that false information; and  Economic injury approximately resulting from such reliance

Palsgraf v Long Island Railroad Company 

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Plaintiff, Helen Palsgraf - injured when a train guard helped a man jump on a plan, the man dropped the package, the package contained fireworks, and the fireworks shot across the terminal, hitting a scale that fell on her head Defendant, Long Island Railroad Company – a train guard helped the man jump on the moving train, causing his package to fall and ultimately explode, leading to plaintiff’s injuries TAKEAWAYS

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If there is nothing in a situation to suggest harm may result from an action, the action is not negligent Even the most cautious person would not have expected the package to explode and cause widespread destruction No proximate cause in this case

CASE STUDY: Fuerschbach v. Southwest Airlines (assault and battery case) 

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Fuerschbach, Plaintiff – worked as a service representative for defendant. Was aware of a prank may be played on her. After the mock arrest, she needed counseling and suffered PTSD Southwest Airlines, Defendant – typically new employees are pranked once. Defendant supervisor set up a mock arrest. United States Appeals court held for Fuerschbach on assault and battery charges TAKEAWAYS: o Any bodily contract is offensive if it offends a reasonable sense of personal dignity o In the light most favorable to the plaintiff, a jury could conclude the mock arrest was offensive contact o Intent to pull a prank is not an excuse for unauthorized contact

James v Bob Ross Buick (case on invasion of privacy)  

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James, plaintiff – sale representative at a dealership owned by defendant. Was eventually fired. Bob Ross Buick, defendant – sent letters to plaintiff’s customers, addressed as if they were from plaintiffs and falsely signed by him, encouraging them to purchase a new car Trial court held for BRB, but appeals court ruled in favor of James and that he could seek damages appropriate to the benefit that BRB received from the tort TAKEAWAY: o Forgery of a signature amounts to appropriation of another’s name or likeness o Nobody may object simply because their name is being placed before the public  They may only object if their name is for a commercial or other value gaining purpose o The use of the name was clearly commercial here

CASE STUDY: Lightle v. Real Estate Commission, (Fraudulent misrepresentation)

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The Seeley’s made their offer after Lightle had accepted another but was waiting on the mortgage. Lightle accepted this offer with the intention it would be a backup offer. The Seeley’s weren’t aware of this and broke their lease to prepare to move. Seeley then rescinded her offer, demanded the return of her deposit, and filed a claim with the Real Estate Commission. The Commission heard the case and found Lightle guilty of fraudulent misrepresentation. Lightle appealed; the superior court (acting as an appellate court) upheld the ruling; Lightle appeals again TAKEAWAYS: o Elements of Misrepresentation  A misrepresentation of fact or intention  Made fraudulently (with scienter)  For the purpose or with the expectation of inducing another to act in reliance  Causing loss o All of the elements were satisfied here as Lightle knowingly and intentionally misrepresented the status of the house by saying it was available

MacPherson v. Buick Motor Company, (Removed privity for liability) 1.

MacPherson, plaintiff – bought a Buick. The wheels fell off while driving, causing an accident 2. Buick Motor Company, defendant – produced the vehicle, sold it to the dealer, did not have privity with MacPherson because they did not make the wheel, only put it on the vechile 3. Appeals court ruled that if Buick would’ve checked the wheel they used on the car before selling it, they would’ve found out about wheel and problem solved, therefore Buick was liable 4. TAKEAWAYS 1. Wheel that broke wasn’t made by the defendant but there was evidence plaintiff would have discovered it with reasonable inspection 2. A manufacturer of an inherently dangerous good that will surely be used by someone other than the buyer owes a duty of care to subsequent buyers 1. Danger must be probable, not just possible CASE STUDY: Greenman v. Yuba Power Products,(Third restatement of Torts giving more liability to the manufacturer of the product, in this case Yuba Power) 1.

Greenman, plaintiff – was using a tool to work wood produced by Shopsmith when a piece of wood flew out and hit him in the head (had

owned the machine for two years). Expert testified that the machine used inadequate setscrews to hold parts of the machine together and over time vibrations cause them to become loose. 2. Shopsmith, defendant – manufacturer of the tool 3. TAKEAWAYS 1. Defective design caused the injury 2. A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, prove to have a defect that causes injury to a human being 3. Being a retailer also gives rise to liability because of representations being made Timpte Industries, Inc. v. Gish, (Design Defects Torts) 1.

Gish, plaintiff – trucker picking up a load of fertilizer. The downspout that pours the fertilizer into the trailer (made by plaintiff) was malfunctioning so defendant climbed on top to put it in position. A gust of wind knocked him off, causing sever injuries 2. Timpte, defendant – manufacturer of the fertilizer trailer pulled by plaintiff. Trailer has a ladder, allowing a person to climb up and walk on the very narrow rail 3. TAKEAWAYS 1. To recover for a design defect claim, plaintiff must prove: 1. The product was defectively designed so as to render it unreasonably dangerous; 2. A safer alternative existed; and 3. The defect was a producing cause of the injury for which the plaintiff seeks recovery 2. To determine if a product is unreasonably dangerous (risk-utility) 1. Utility of the product to the user and public as a whole weighed against the gravity and likelihood of injury for its use; 2. The availability of a substitute product which would meet the same need and not be unsafe/unreasonably expensive; 3. Manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing costs 4. The user’s anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and 5. The expectations of the ordinary customer Timpte won because supreme court said the top two rungs of the ladder, which Gish argued were bad because they cause people to go all the way up and stand on the rail, weren’t inherently negligent and ladder would break or bend without them. And there is no evidence the design defects rendered the ladder and trailer unreasonably dangerous.

Criminal Law CASE STUDY: Commonwealth v. Angelo Todesca Corporation, (Corporation charges) 

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Gauthier - driver for defendant. was backing up a truck for delivery when he ran over a police officer and killed the officer. Knew the back-up horn on the truck was not working. Charged with driving offenses and paid a fine Angelo Todesca Corporation – knew the back-up horn was not working. Found guilty of vehicular homicide Ruling – trial court affirmed – company is guilty TAKEAWAY o An individual committed a criminal offense o That at the time of committing the offense, the individual was engaged in some corporate business or project and o The individual had been vested by the corporation with the authority to act for it, and on its behalf, in carrying out that particular corporate business or project when the offense occurred. o Elements of corporate criminal liability

Appeals court found that corporation was liable through employees because of the listed articles above and therefore commonwealth was granted damages

CASE: United States v. Young, (Evidence gathered properly - chain of evidence) 

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Young – obtained a certificate for his marine retailer business to sell tax-free ...