Week5-Assignment - week 5 PDF

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CASE BRIEF 12.1: 1. Describe the series of events that led to Yale requesting that the minor pay for the medical services Harun Fountain, a minor, was shot in the back of the head by a friend and required medical services in view of the injuries sustained. Yale Diagnostic Radiology (plaintiff), one of the medical service providers, billed Vernetta Turner-Tucker (Fountain’s mother) the amount of $17,694. Tucker filed a suit against the boy who shot Fountain. However, Fountain succumbed to his injuries and passed away before the case was settled. The settlement on the tort case was placed into probate court as part of Fountain’s estate. Yale then filed a claim against Fountain’s estate with the probate court and this claim was denied for the reason that the parties liable for medical services to a minor are his parents. The probate court denied the claim against Fountain’s estate holding that the parent of Fountain should be held liable and this led the plaintiff’s appeal to superior court where the judgement was reversed and under Connecticut law, minor could be held liable for the payment of their necessaries. 2. What public policy issues and concerns result from this decision? The principles included doctrine of necessities and the doctrine of unjust enrichment. These two principles serve to protect the people whom the minor may enter in contract with and who may be prejudiced in every contractual obligation. When as a result of a transaction justice and equity demands that law must interfere. In this case, the medical service provider has extended its aid and services to the child, justice and equity demands that they be compensated by the child if his parents do not have sufficient money. If the medical service provider is unpaid then the unjust situation will be created. 3. What benefits does the decision provide? The law gives preferential attention to the welfare if the children by rendering any contract entered into by a minor child voidable. This means that upon reaching the age of majority he may avoid any contract he entered into when he was below the age of majority. The common law also extended its protection to the company who game medical services to the minor.

CASE BRIEF 12.4: 1. What were the problems with Globe’s marketing materials? The court finds Globe’s promotional documents are ambiguous and should be interpreted to meet the reasonable expectations of an objectively reasonable applicant. The pamphlets expressly state that Globe is offering “First-day coverage” which indicates that interim coverage begins immediately. It also states that applications can “Buy direct by mail” with “No waiting period”. These statements indicate that an applicant can submit an application by mail and receive immediate interim coverage. The pamphlet further states that if the applicant’s responses to the application show good health, coverage begins after the application is approved. Here, the plaintiff answered “No” too all of the health-related questions in the application. Thus the advertisement use by the Glob’s marketing team is ambiguous because it does not specify the appropriate functionality. On the other hand, the application or enrollment form is similar to the pamphlet without explaining the terms and conditions in a detailed manner. 2. Develop a timeline for the events from the time of the policy mailer. Why are Khalil’s arrest and previous counselling not required to be disclosed? Late August September 2, 2011 September 9 (or 12), 2011

September 20, 2011 September 22, 2011 September 28, 2011 October 1, 2011 October 6, 2011 October 24, 2011 February 6, 2012 February 21, 2012 July 6, 2012

Plaintiff applied for second life insurance for Khalil Wallace Khalil was charged with possession of marijuana Enrollment form was completed and premium was paid / premium check was cashed; Plaintiff contends her policy took effect on these dates. Khalil disappeared into a van with unidentified individuals. Also the date Khalil was killed due to multiple gunshot wounds. Plaintiff was informed about son’s disappearance and filed a missing persons report Plaintiff called Globe to complete QA Globe formally approved plaintiff’s policy Khalil’s body was found. Plaintiff calls Globe to report her son’s death. Plaintiff submits claim for payment Globe begins investigating the claim Globe informs plaintiff that it was voiding the policy because plaintiff misrepresented material facts during application process.

Globe’s marketing pamphlets and enrollment forms suggested that there are questions regarding the health issues and no questions regarding previous felony or convictions. Thus Khalil’s arrests and previous counselling were not required to be disclosed. 3. Describe how Glove should have asked its questions. Glove should have framed its Q&A in a more specific and detailed manner. They should categorize any customer based on his/her history. The application form should have consisted of questions like: 1. Has the applicant been convicted of any crime/felony before? 2. Can I change my mind after purchasing the policy? 3. Drug history of the applicant 4. Specify health issues of the applicant.

CASE BRIEF 12.5 1. Were all the De Musz corporations completely dependent on Borden? Yes, all the De Musz corporations were completely dependent on Borden 2. What impact does “good faith” have on termination of a contract? For Borden and the majority of the Appellate Division, however, the sole issue was whether the implied covenant of good faith and fair dealing can override an express and unambiguous termination clause in a contract. That position focuses only on whether Borden breached the express terms of the termination provision and ignores the fact that a party’s performance may breach the implied covenant of good faith and fair dealing even when termination of the contract itself does not violate the termination provision. Although the parties agree that the only issue on appeal is Borden’s breach of good faith, they disagree on what conduct is at issue. Borden focuses only on its termination of the contract whereas Sons of Thunder asserts that Borden’s performance over the course of the contract, including its termination, should be considered. The issue is unclear because of the manner in which the special interrogatories were phrased. It is suggested that the good faith issue deals only with Borden’s termination of the contract. In fact, the majority’s opinion was premised on that interpretation. 3. What are the damages when there is a lack of good faith in the termination of a contract? In viewing the evidence in a light most favorable to Sons of Thunder, we find that the trial court correctly determined that the jury could have reasonably found that Borden breached its obligation to perform its duties in good faith. Even though DeMusz is not the plaintiff, his dealings with Borden are critical to the outcome of this appeal because he was the point man for Sons of Thunder and because the different corporations were so intertwined. When all those relationships are viewed together, there is sufficient evidence for the jury’s conclusion that Borden breached its duty to perform the contract in good faith. In reaching that conclusion, we consider only Borden’s performance during the contractual period, including the conduct surrounding the termination of the contract. We do not consider Borden’s dealings following the termination of the contract because they are irrelevant to whether Borden performed the contract in good faith. 4. What provisions would you suggest be added to a contract such as this in which the relationship is one of contract, but also one of dependence? Instead of just performing the contract in good faith, some more legal obligations should be considered and added to a contract such as this in which the relationship is one of contract and also one of dependence.

CASE BRIEF 13.2 1. What claims does FTC question in the Listerine ads and why? The FTC is a regulating body of the United States government to prevent ant-competitive business practices and to provide consumer protection. Listerine was a product of Warner-Lambert Company to cure cold and also sore throats. The FTC questioned Warner-Lambert’s claims that Listerine will cure/can be used as a treatment for colds and sore throats The FTC found that the advertisement to

market Listerine was not relevant as the product did not possess quality to cure cold and sore throats as claimed in the ads. The FTC found that the ingredients of Listerine are not present in sufficient quantities to have any therapeutic effect nor that with gargling it is impossible to reach critical areas of the body in medically significant concentration and doesn’t have any more benefits than gargling with salt water or hot water. The FTC then ordered the company to stop the advertisement in the previous manner and asked the company to adopt methods of advertisement prescribed by FTC. 2. What proposals for corrective advertising are made in the order? The FTC held hearings to go over the issues on Listerine ads by Warner-Lambert in 1972. The FTC proposed the following measures for corrective advertising: i. The FTC Ordered Warner-Lambert to “cease and desist representing that Listerine will cure colds and sore throats”. It proposed that Warner-Lambert stop making any claims that using Listerine will prevent colds or sore throats, or that users will have fewer colds than nonusers. ii. FTC ordered Warner-Lambert to “cease and desist representing that Listerine is a treatment for, or will lessen the severity of colds or sore throats”. Warner-Lambert were asked to remove any ads claiming that Listereine will have any significant beneficial effect on symptoms of sore throats or colds or the ability of Listerine to kill germs would help in treating these conditions. iii. Finally, Warner-Lambert were asked to stop publishing any advertisements for Listerine unless it is clearly disclosed that using Listerine will nto prevent colds or sore throats as mentioned previously. The FTC proposed that Warner-Lambert use the exact statement – “Contrary to prior advertising, Listerine will not prevent colds or sore throats or lessen their severity” – in the next 10 million Listerine would spend on advertising after the order. 3. What happens to the preamble, “Contrary to prior advertising”? In response to the FTC imposing the preamble “Contrary to prior advertising” as a form of corrective advertising, Warner-Lambert feels that even if its advertising claims in the past were false the proposal exceeds the Commission’s statutory power. The Court feels that the specifications are enough to assure that the disclosure will reach the public and will attract the notice of readers, viewers and listeners and be plainly conveyed. It feels that the preamble “Contrary to prior advertising” is not necessary as it will only serve either of these two purposes: to attract the attention that a correction follows or to humiliate the advertiser. It is the commissions motive to only bring out the first purpose of the order, which is obviated by the other terms of the order. If the second purpose were intended, it might be called for in an egregious case of deliberate deception. Thus the Court deems the preamble not warranted and has the order modified with the preamble removed. 4. What standard does the case establish for corrective ads once the FTC finds a company’s ads have deceived the public?

CASE BRIEF 14.2 1. Explain what Apple did with the publishers and why.

In 2009, when Apple planned to release the iPad, it saw an opportunity to sell e-books on the iPad through the iBookstore, a virtual marketplace and went directly into negotiations with 5 major publishing companies in the United States (Publishing Defendants) who agreed to sell e-books on the iPad under arrangements whereby the publishers had the authority to set prices and could set the prices of new releases and NY Times Best sellers as high as $19.99 and $14.99 respectively. Apple used the “most-favored nation” clause (MFN clause) to devise an alternative to explicitly requiring publishers to switch other retailers like Amazon to agency pricing. The MFN clause would require the publisher to offer any ebook in Apple’s iBookstore for no more than what the same ebook was offered elsewhere. By these agreements, the Publisher Defendant will receive less per e-book sold via Apple as opposed to what he earns from Amazon, even given the higher consumer prices on the iBookstore. What the publishers sacrificed by means of short-term revenue, they hoped to fain in long-term stability by acquiring more control over pricing and the ability to protect their hardcover sales. 2. What is the “hub and spoke” theory of antitrust violations? Horizontal agreements to set prices involve coordination “between competitors at the same level of market structure”. Vertical agreements to set prices are created between parties at different levels of market structure. In antitrust law, a hub-and-spoke conspiracy is one in which a firm (the hub) organizes collusion (the rim) among upstream or downstream firms (the spokes) through vertical agreements (i.e.) “the hub” coordinates an agreement among competitors at a different level,” the spokes”. 3. What issue does the dissent raise regarding the case? The dissent raises three decisive errors made by the district court regarding the case. It points out the district court’s ruling that a verbal enabler of horizontal price-fixing is in per se violation of antitrust laws. Secondly, it points out the the district courst assessed impacts on competition without recognizing that Apple’s role as a vertical player differentiated it from the publishers. The dissent feels that the courst should have instead considered Apple as a competitor on the distinct horizontal plane of retailers where Apple competed with Amazon. Next it states that Apple’s conduct, assessed under the rule of reason on horizontal plane of retail competition, was unambiguously pro-competitive. Apple was a major potential competitor in a market dominated by Amazon and was justifiably unwilling to enter a market on terms that would assure a loss on sales. The dissent says that the district court was wrong in deeming Amazon’s price ($9.99) categorically good for competition because it was lower than cost, and because e-book prices rose after the monopoly was broken. Finally, the dissent points out that the district court made an error by assuming that the competition should be genteel, lawyer-designed, and fair under sporting riles and that antitrust law is offended by gloves-off competition.

CASE BRIEF 15.1 1. Why is this type of patent different from the traditional product patents? This patent is different from other patents because the company wanted to create an innovative process which can be used for conducting online business. Normally, patents are created for innovative products which are formed of a new idea. However, in this it is not the case. Additionally, the court felt the process is not much of economic value nor is it of much importance to the society and the public.

2. What are the risks in granting a permanent injunction in cases such as these? The risks involved by offering a permanent injunction in issues such as this are:  A wrong decision will result in damage to the sufferer.  There is a risk of harming the public interest  There is a risk of offering more compensation  A permanent injunction is wrong if remedies are available 3. Why are the concurring judges raising the issue of undue leverage? The judges felt that companies are trying to gain undue advantage by filing for infringement cases based on the following reasons:  The plaintiffs will be rewarded heavily in case they are able to prove there is an infringement.  The patents which are of little value to the public will gain greater publicity because of the infringement cases. Thus, companies are trying to gain undue advantage of these infringements. CASE BRIEF 15.4...