Legal 2700 Exam 3 - Jessica Tripp - UGA

The difference between crime law and civil law when it comes to punishing the wrongdoer

civil - sue for damages

crime - fines and/or send people to jail; individual against the gov't

mens rea

mental state; guilty mind; aware of misconduct; ignorance of the law is not excuse

actus reus

what is the physical act (guilty act); volunteer act, conscious act

example of not satisfying - sleep walking; stroke while driving

example of satisfying - drinking and driving

elements of a crime

mens rea

actus reus

general intent

intention to do the act that constitutes the crime

specific intent

intention to achieve the harmful result; willful, knowingly, voluntarily, purposefully with the intent to do something

reckless conduct

can still be held responsible for the crime

example - someone trying to buy a stolen phone

felony

commenced by grand jury indictment; fine or imprisonment 1 year or more e

misdemeanor

commenced when the gov't files a charge called an information; fine or imprisonment less than 1 year

what are the different types of pleas?

not guilty

guilty

nolo contendere

Nolo contendere

admitted to a crime, but don't want to receive the punishment (can only do this once in every 5 years)

- stand for no contest

- allows for sentencing as if there had been a guilty pea

- allows you to avoid the cost of trial

what is a white collar crime?

any illegal offense that occurs in a business or professional setting that is committed to harm the business or for personal gain

- most major corporations have ethical codes and extensive compliance programs to combat these types of crimes

Fraud

- defendant made a false statement

- defendant knew the statement was false or was recklessly indifferent regarding its truth

- defendant intended for the other party to rely on the false statement

- creates criminal liability

- actionable under state criminal codes

key difference between civil vs. criminal fraud

in criminal you don't care if there was reliance or if they were successful; want to prevent people from defrauding others

fines and/or imprisonment are exerted on individuals who knowingly and willfully ....

- falsify, conceal, or cover up any trick, scheme, or device a material fact

- make any materially false, fictitious, or fraudulent statement or representation

- make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry

scheme to defraud

plan designed to take from a person the tangible right of honest services

What is theft by deception?

- A person intentionally creates or reinforces an impression that is false

- A person fails to correct an impression that is false and that the person does not believe to be true if there is a confidential or fiduciary relationship between parties

- A person prevents another from acquiring information that is relevant to a transaction

- A person fails to disclose a known lien or legal impediment to property being transferred

Different types of federal fraud crimes

- mail and wire fraud

- securities fraud

- health care fraud

- counterfeiting

- bankruptcy fraud

Mail fraud

unlawful to use the US Postal service (or other any interstate carrier like FedEX or UPS) to defraud someone

wire fraud

unlawful to use any electronic means of interstate communication to defraud someone (ex. radio, tv, phone, call, text message, fax, internet, email)

securities fraud

rule 10b of the securities and exchange commission and the securities exchange act of 1934 make fraud in the purchase or sale of a security is a federal crime

Health care fraud

prosecution of false claims under the False Claims Act

- investigations are aided by information revealed by whistleblower suits

example - billing for services not actually performed

counterfeiting

- Use of counterfeit access devices including bank cards, plates, codes, account numbers, or other means to initiate a transfer of funds is outlawed

- The use of an unauthorized access device is prohibited

- lost , stolen, expired, revoked, cancelled, or fraudulently obtained bank card

- Must result in at least 1,000 dollars being fraudulently obtained within a 1 yr period - credit card fraud

Bankruptcy fraud

certain conduct by the debtors, creditors, and others that are said to be a federal crime as per the U.S. Code

Conspiracy

two or more individuals knowingly agree on a plan or scheme or method for carrying out an illegal act

- have to intend to accomplish the objective of the conspiracy

defendant willfully became a member (can join at any point in time)

obstruction of justice

commission of an act with the intent to obstruct or interfere with the legislative or judicial process

What are laws designed to protect the integrity of?

- legislative and judicial proceedings

- proceedings before federal departments or agencies

larceny

unlawful taking of personal property with the intent to deprive the rightful owner of it permanently

- commonly referred to as theft or stealing

robbery

larceny by violence or threat

ex. someone using a gun to try and steal money from you

burglary

actually breaking into a building or house with the intent to commit a felony

embezzlement

a person who entrusted with another person's money or property and they use that money or property for themselves

what does RICO stand for?

Racketeer Influenced and Corrupt Organizations Act

RICO

aimed at preventing organized crime

- you can take down the entire group at once

violation occurs when a person, in connection with an enterprise, engages in a pattern of racketeering activity

cyber crime

person who intentionally accesses (or attempts to access) a computer without authorization or exceeds authorized access to obtain classified, restricted, or protected data

electronic theft

hackers steal money, trade secrets, personal records, customer lists, and company plans

ex. issuing corporate stock to yourself

identity theft

using accessed information to commit fraud (using stolen information to create a new form of identity)

What Act is put in place to protect workers?

Occupational Safety and Health Act (OHSA) of 1970

OSHA imposes criminal sanctions for:

- Willfully violating an OSHA standard that causes the death of an employee

- Giving advanced notice of OHSA inspection

- Falsification of documents filed under OHSA

kickbacks

payments made to a person who facilitated a transaction

Fourth Amendment

protection against illegal search and seizure

What are the exceptions to the 4th amendment?

- Consent searches

- Motor vehicle searches

- Evidence in plain view

- Exigent circumstances

- Police making an arrest

What are examples of exigent circumstances?

you are an immediate threat; think you are about to dispose of evidence

Fifth Amendment

requires an indictment by a grand jury for felony charges;

protection against self incrimination

The right not to self incriminate does not protect ...

- Against being required to produce physical evidence

- A person who is required to produce business records

- Corporations

double jeopardy

Individuals cannot be tried twice by the same government entity for the same crime based on the same factual situation.

can have the same case for crime and civil law

sixth amendment

- Speedy and public trial

- Trial by jury

- Be informed of the charge against oneself

- Confront the accuser

- Subpoena witnesses in your favor

- Have the assistance of an attorney

exception to the sixth amendment

do not have the right to a jury in a juvenile proceeding

eighth amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

What does Article 1, Section 8 of the Constitution gives Congress the power to do?

"Promote the Progress of Sciences and useful Arts, by securing, for for a limited time, to Authors and Inventors, the exclusive right to their respective Writings and Discoveries."

Intellectual Property and Research

Is essential to maintain the growth of creative research and development (R&D)

Capturing Intellectual Property

Certain steps need to be undertaken to transform knowledge into valuable intangible assets.

- Strict deadlines are applicable for asserting rights of some intellectual property

- Failure to follow the rules can position the product in public domain.

trade secrets

Any form of knowledge or information that has an economic value from not being generally known to others or readily ascertainable by proper means. The owner has to make reasonable efforts to maintain secrecy.

How to win a trade secret case?

1. established that the trade secret exists

2. demonstrate misappropriation

What are examples of preserving secrecy of trade secrets?

- secure computer-stored knowledge with firewalls and encryption

- regulate visitors

- ask employees, customers, and business partners to sign non-disclosure agreements

- impose confidentially restrictions

Misappropriation

occurs when one improperly acquires or discloses secret information

ex. burglary, espionage, computer hacking, breach of duty (employment relationship/contract)

When is it not misappropriation?

when you are able to look at the product and recreate it on your own

Civil Enforcement of Trade Secrets

- an injunction (order to refrain the one who misappropriated from using the trade secret or from telling others about it)

- monetary damages

Criminal Enforcement of Trade Secrets

Economic Espionage Acts (Theft of Trade Secrets)

- individuals: fines and up to 10 years in prison

- organizations: up to $5 million in fines

patents

associated with an inventive act, and conveys a right to exclude others from making, using, selling or importing the covered invention.

Types of Patents

utility, design, plant

utility patent

machines, articles of manufacture, business processes, compositions of matter (pharmaceuticals)

- term - 20 yrs from the filing date

design patent

looking at the appearance or form of something, design for an article of manufacture

- term - 15 yrs from issue date

How to obtain a patent?

1. Pay filing fee

2. Explain invention

3. Show difference from prior art

4. Describe patentable aspects

5. File application

6. Evaluation by the patent examiner

(inventor has to be a living individual)

America Invents Act

- 2011, Former President Obama signed into law

- the first substantial revision to the U.S. Patent Law since 1999.

- switch from a first-to-invent-system to a first-to-file-system

Subject Matter that CAN be patented

- Process (can be controversial)

- Machine

- Article of manufacture

- Composition of Matter (or improvement thereto)

Subject Matter that Can't be patented

- Laws of nature

- Natural phenomena

- Abstract idea

- Mathematical algorithms or formulas

characteristics of patents

novelty, non-obviousness, utility

Patent Enforcement

Patent owner can sue infringer for injunction and/or damages(during the duration of the patent. After that time, anyone can freely use it).

Trademarks

- Marks on what is produced to represent the origin of goods and services

- Recognizability or distinctiveness is the function of trademarks

- Protects consumers against confusion

trademark

mark, word, picture, or design that attaches to goods to indicate their source.

service mark

a mark associated with a service

certification mark

a mark used by someone other than the owner to certify the quality of goods or service.

collective mark

mark represents membership in a certain organization or association.

trade dress

the look or design of a product or service. I.e. the color or shape of a product

trademark registration

1. Register with US patent and trademark office

2. PTO places the mark in the Offical Gazette

3. If existing owners raise objections, there is a hearing.

4. If mark is acceptable, PTO registers mark in Principial Register.

5. ***Note: Trademarks enjoy potentially unlimited protection but you must notify the PTO that trademark is still in use every 6 years and renew the trademark registration every 10 years

When can the PTO deny Registration?

- The mark is the same or similiar to another mark

- If it contains certain prohibited or reserved names or designs

- If it merely describes a product or service

- If it is generic and represents a product or service

When can you register descriptive terms or a person's name as a trademark?

If the descriptive term is listed on the PTO's Supplemental Register for 5 years AND acquires a secondary meaning

- Secondary refers to a public meaning that is different from its meaning as a person's name or as a descriptive term, a public meaning that makes the name or term distinctive.

trademark infringement

1. Plaintiff must prove that Defendant's use has created a "likelihood of confusion" with the plaintiff's trademark.

2. Courts use a multifactored test that considers elements such as:

- The Defendant's intent

- Proof of actual consumer confusion

federal trademark dilution act

Prohibits the usage of a mark that is the same as or similar to another's "famous" trademark to dilute its significance, reputation, and goodwill

types of dilution

blurring and tarnishment

blurring

when the usage of a mark blurs the distinctiveness of a famous mark

tarnishment

When the usage of a mark creates a negative impression about the famous company

copyrights

Property right in creative expression that protects creators.

Copyright Enforcement

Individual - lifetime plus 70 years; company - 95 years from publication; 102 - years from creation

copyright infringement

the author must:

1. register with the Copyright Office AND

2. establish that defendant violated one of his or her exclusive rights of:

- Reproduction

-Creation of derivate works

- distribution

- Performance

- Display

fair use defense example

copying for:

Criticism

Comment

New reporting

Teaching

Scholarship

Research

Forms of business organizations

sole proprietorship, partnership, corporation

types of partnerships

general, limited, limited liability

Types of Corporations

c-corp, s-corp, non-profit, benefit corporation

closely held owners

organizations owned by only a few persons

publicly held owners

business owned by hundreds or thousands of persons

factors to consider with business organizations

- cost of creation

- continuity or stability of the organization

- managerial control of decisions

- owner liability

taxation

Sole Proprietorship

The simplest form of business organization, created and controlled by one owner.

Pros:

Creation: least expensive business organization to create

Taxation: not taxed as an organization

Managerial Control: total control of the business's goals and operations

Cons:

Continuity: tied directly to the will of the owner

Liability: Owner has unlimited liability for the obligations of the business organization

Partnership

Agreement between 2 or more persons to share a common interest in a commercial endeavor and share in a commercial endeavor and share in profits and losses.

General Partnerships

Pros:

- Creation can be automatic but may be modified by agreement.

- The cost of formation is not significant.

- Taxed at the partner level only (entity isn't taxed).

- Equal voice in management unless there is a contrary agreement.

- Partnerships may operate in more than one state without obtaining a license.

- Partnerships are generally subject to less government regulation and less government supervision than corporations.

Cons:

- Only a limited number of people can be partners.

- Dissolved whenever a partner ceases to be a partner (withdrawal, death)

- Each partner has an equal voice, which can lead to deadlocks.

- Personal liability and joint and several liability for all debts and liabilities.

- Partners are taxed on their share of partnership profits, whether those profits are distributed or not (could pay taxes on income you don't see)

differences between general partnerships and limited partnerships

- Limited partners are not personally responsible for the debts/liabilities of the organization.

- Limited partners are not involved in the operations of the partnership.

- Limited partnership certificate must be filed in the county of its principal POB and additional copies in other counties/states where LPship conducts business.

What happens if this is not done/kept updated?

- If you do not filed or update, you get treated like a general partner

limited partners

Not responsible for the debts of the business organization

- Unless they participate in the management or control of the organization

Can assign interest without dissolving the partnership.

general partners

- Personally liable for the organization's debts

- Manage and control the company

limited liability partnerships

- All partners have some liability protection

- All partners are considered general partners

- All partners can participate in the operations of the business

- LLP partners are still liable for their individual negligence

- Taxed at the partner level

- Commonly used by professionals (attorneys, accountants, doctors)

Types of Corporations

domestic, foreign, alien