BUSN85 - Business Law

Final Exam

defamation

intentional publication/communication to 3rd party of false statement that is harmful to plaintiff reputation

disparagement

intentionally defaming business product/service

fraudulent misrepresentation

using intentional deceit to facilitate personal gain
ex: pest control salesperson

communication decency act

defamation defense— no provider/user treated as publisher of information provided by another information provider

consumer review fairness act

illegal for companies to include gag clause restricting consumers from reviewing product

professional malpractice

based on theories of negligence, fraud, breach of contract— when professional services injures client

accounting malpractice (based on negligence)

ultramares doctrine— liable only to those in contract relationship with accountant

restatement second of torts— liable to limited class of intended users

reasonable foreseeability rule— liable for third parties affected

agency law

legal relationship between principal and agent, agent acts on behalf of the principle

(ex: sales representative)

three prong test

prove the following to classify as independent contractor:

(1) worker free from control and direction of company

(2) worker performs work outside of usual course of business

(3) worker engages in independent trade, occupation, business in same field

expressed agency

agency relationships through oral/written agreement

apparant agency

principal leads third party to believe that someone else is an agent

agency by ratification

person misrepresents themselves to third person as an agent & principal accepts

vicariously liable

one party liable for another party

respondent superior

employer-employee relationship & act within scope of employment, employer responsible

real property

land & everything permanently attached

personal property

property not real property (tangible/intangible)

tangible property

goods (ex: cars, livestock, furniture, computer)

intangible property

not tangible (ex: stocks, bonds, intell prop)

fixture

originally personal property before attached to real property

trade fixtures

presumed to remain the property of the tenant

easement

irrevocable right to use part of another land for specific purpose without taking anything from it

intellectual property

categorized as: trademarks, patents, trade secrets, copyrights

trademark

distinctive mark, word, design, picture, arrangement to (1) identify source & (2) distinguish from others

patent

grants holder exclusive right to produce, sell, and use

criteria: novel, useful, nonobvious

assignment

contract transferring ownership

licensed

permits right to use technology

royalties

sum of money paid for patent

trade secrets

unknown information to public, gives competitive advantage

copyright

exclusive right to reproduce, publish, sell fixed form of original creative idea

sole proprietorship

individual ownership

general partnership

ownership with more than one individual, share profit & loss

limited liability partnership

partners receive limited liability up to amount they invested

corporation

owners not liable for losses

c corporation

double taxation (earning & shareholders)

s corporation

pass through taxation, can’t go public with limited 100 shareholders

limited liability company

blends partnership & corporate structures, limited to financial investments

franchising

gain right to operate as franchise

franchisor

owns name, mark, other IP

franchisee

sells good & services using name, trademark, other IP

franchise agreement

contract between franchisor & franchisee grant right to operate as franchise

publicly held corporation

stock available to public, freely trade

closely held corporation

not available to public, fam mem & fwend shareholders

pierce the corporate veil

applies to closely held corporations, holds members personally liable

(ex situations: adequate funding when formed, doesn’t follow statues, personal & company interest intermingle, fraud)

business judgement rule

directors not liable for honest busn mistakes when exersizing duties

insider trading

fraud— trading stock based on confidential info affecting future value

safe harbor

allows companies to make forward looking forecast statements with protection

sarbanes oxley act of 2002

requires financial report verification, establish oversight board, avoid conflict of interest, protect whistleblower

fair labor standards act

sets national min wage

family & medical leave act

guarantees time off

workers compensation

provides financial compensation when injured on the job

collective bargaining

negotiation btw union & employer (wages, hours, terms + conditions)

strike

temporary withdrawl of labor

boycotts

refusal to deal/purchase/work for busn

picketing

stationing individuals to inform public of labor disputes

disparate treatment

employer intentionally treats one employee less favorable because of color, race, religion, sex, nat origin

disparate impact

employer policy/ practice has discrim effect on employee in protected class

sexual harassment

unwelcome sexual advances made term/condition

quid pro quo

sexual demands as term of employment

hostile work environment

creates environment perceived as hostile/ abusive

bona fide occupational qualification

defense— allows discrimination in hiring based on sex, religion, nat origin when necessary to perform job

secured transaction

payment of debt guaranteed by collateral

lien

automatic claim to property

mechanic lien

claim on real property

artisan lien

claim on personal property— can keep property until payment complete

garnishments

court order for creditors to seize wage/ bank acc of debtor

suretyship

contract btw creditor & third party (primarily liable)

guaranty

contract btw creditor & third party (secondary liable)

rule of reason

does not unreasonably restrain trade

(factors: nature & purpose, scope, effect on busn + comp, intent)

horizontal restraints

agreement among sellers restraining competition

price fixing

established set price for good/service (per se violation)

horizontal market division

exclusive right to operate in particular geographic area (per se violation)

vertical restraint

agreement btw diff level of firms (manu + distri)

predatory pricing

drive competitors by selling at price substantially below cost production

bait and switch

lure customer but offer something else

puffing (puffery)

exaggerated recommendations made during sales to promote product— no violation

trademark dilution

involves parties that are not competitors

blurring- reducing features

tarnishment- inferior products

trademark infringement

used by competitor

tipper/tippe theory

insider’s fiduciary duty breached, for personal benefit

file title VI claim

file in federal/cali agency, investigated, negotiation, file court suit

protected class

race, color, religion, sex (identity & orientation), national origin, age, disability

sherman act

antitrust act prohibiting restrained trade& monopolization

securities exchange act of 1934

10b restricts manipulative & deceptive practices

10b-5 restricts securities fraud

attachment

court order permitting local officer to seize debtors property (pre judgement remedy)

writ of execution

court order permitting local officer to seize & sell debtors property (post judgement)

merger

two types: horizontal (same level) & vertical (different level- more likely approved)

occupational health & safety act

makes workplace environment free from hazards

national relations board

enforces labor laws

malpractice

based on theories of negligence, fraud, breach of contract

contractual liability

principal liable for contracts entered by agents within scope of agent authority