Business Law part 2

Finals

Employment at Will Concept

A legal doctrine allowing employers to terminate employees for any reason, or no reason, without warning, as long as the reason is not illegal. And vice versa for employees.

Who enforces Fair Labor Standards Act

Department of Labor

National Labor Relations Board

A US government agency that enforces US labor law by monitoring unfair labor practices and union representation.

Family and Medical Leave Act

A federal law that provides eligible employees with 12 unpaid, job-protected leave for specified family and medical reasons, ensuring their ability to return to work afterwards.

Occupational Health and Safety Act

A federal law aimed at ensuring workplace safety and health standards, requiring employers to maintain safe working conditions.

Workplace Compensation Act

Protects workers from financial problems if employment related injury.

Compensation and Benefits Regulations

Social Security(employers must contribute FICA). Medicare, Unemployment Compensation, 18 months of continued healthcare after leaving job, ERISA minimum standards of benefits.

Title VII of Civil Rights Act

Prevents Discrimination in employment based on race, color, religion, gender, or national origin

Age Discrimination Act

Prohibits employment discrimination because of age against persons 40 years of age or older

Applies to employers who have twenty or more persons working for them.

Americans with Disabilities Act

ADA prohibits employers who have more than fifteen employees from discriminating against disabled persons.

Requires employers to make reasonable accommodations.

Defenses against equal rights in workspace

Business Necessity

Bona Fide Occupational Qualification

Seniority Systems

Employee Misconduct

Collusion

Agreement between two or more parties to prevent or limit cooperation by deceiving, misleading or defrauding others of their legal rights

Sherman Act

No monopolization attempt

Federal Trade Commission Act

Bans unfair competition and deception practices and established the FTC.

Clayton Act

Addresses mergers by banning mergers that create monopolies.

Fiduciary Obligations in Agency

Duty of Care and Duty of Loyalty

Respondent Superior

“Let the master answer”. The employer is liable for what the employees do to a certain extent. That is why companies get sued for employees mistakes.

What are the 3 deeds?

Quitclaim deed: Seller passes whatever ownership interest they have in the land

Warranty deed: Seller promises they are conveying good, clear title of the land free of any and all encumbrances

Special Warranty deed: Seller conveys title, promising it was clear during the seller’s ownership

4 types of property ownership

Fee Simple: Exclusive ownership

Tenancy in Common (TIC): Ownership of property is divided, not necessarily in equal parts, but remains attached to the owner, even at death

Joint Tenancies: Ownership in undivided property is shared equally, with a right of survivorship

Life Estate: A person has a life to tenancy for life

Easements

Are a legal right to make use of another’s property both positively and negatively, like right to access or restrict usage.

Covenants

Legally binding obligations or restrictions in the land.

Adverse Possession requirements

1. Actual use or possession

2. Open and visible to provide notice to the true owner

3. Hostile, meaning that it is without the true owner’s permission

4. Exclusive and not shared with anyone else

5. Continuous for the time required under the state (generally 5-20 years)

Defenses for Discrimination

Defenses

 Business Necessity

 Bona Fide Occupational Qualification

 Seniority Systems

 Employee Misconduct

Divestiture

The process where the defendant of antitrust lawsuit has to sell a division off to correct monopolization.

Predatory Pricing

Driving out competition by making things way cheaper for a time.

Constructive Eviction

constructive eviction occurs when a landlord’s actions—or failure to act—interfere so significantly with a tenant’s use and enjoyment of the property that the premises become uninhabitable

Fee Simple

Complete ownership of land

Trust

Where trustee has Legal title but required to manage property specifically for beneficiary benefit.

Public vs Private Nuisance

Public affect community health, safety, etc. while private is individuals unreasonable interference with their enjoyment of a property.

Actus Reus

Criminal Acts Committed

Mens Rea

Criminal State of Mind

Transfered Intent

Transferred intent is a doctrine that allows the defendant to be held liable for an intentional tort he intended to commit against A but, instead, accidentally committed against B.

Strict Liability

Plaintiff needs to prove tort occurred and defendant is Liable.

Knowledge/Willfullness Criminal Law

When someone thinks they might be doing something wrong and hopes they were wrong is still an offense.

First Degree Murder

1. Specific intent to kill + Premeditation+Deliberation(state of mind)

2. Felony Murder Rule

3. Special means(bomb,poison, etc.)

Second degree is everything else

Larceny

Attempt to deprive someone of tangible property

False pretenses

Tries to gain title to property by “scamming” basically

Robbery

Larceny+Force of Fear

Specific vs General Intent

Actual intent and state of mind to know if they were intending.

Embezzlement

Person had possession of property and tried fraudulently converting it into their own

Structure Crimes

Arson and Burglary(breaking and entering structure in attempt to commit a felony).

Solicitation

Trying to get someone to commit a crime

Conspiracy

Agreement with two people to commit crime

Factual vs Legal Impossibility

A person intends to carry out crime but can’t for some reason(it’s not a valid defense). A person thinks something is a crime and carries out their action but the action isn’t actually a crime(valid defense).

Accomplice Liability

Someone who helps with the crime who helps before and after the crime but does not commit crime, they can still be liable.

4th, 5th and 6th amendments

4th, Prohibits unreasonable searches and seizures and requires warrants to be issued by a judge upon "probable cause",

5th, Provides protections including the right to a grand jury for capital crimes, protection against "double jeopardy" (being tried twice for the same crime), the right against self-incrimination, and the guarantee of due process of law.

6th, Guarantees a speedy and public trial by an impartial jury, the right to know accusations, the right to confront witnesses, and the right to counsel (a lawyer)

Habeus Corpus

“that you have a body”, legal right and order that forces the government to bring a detained person to court and provide a valid, legal reason for their imprisonment.

Miranda Components

Custody

Interrogation

Valid Warning

Valid Waiver

Scrupulously Observed

Exceptions to Search Warrant

 Stop & Frisk

 Search Incident to Arrest

 Automobile Exception

 Administrative

 Emergency

Arraignment phase

A criminal defendant must plead guilty, not guilty, or no contest in a criminal proceeding

Statute of Limitation

The maximum time period to initiate legal proceedings for civil law

Punative vs Nominal Damages

Punative is large money awards to compensate for malicousness while nominal is more symbolic when right was violated but no significant loss.

Special vs General Damages

Dollar loss vs emotional distress or something

Assault vs Battery

Assault is when someone intentianally tries to harm someone and Battery is when someone is offensively touched.

False Imprisonment

The intentional physical or psychological confinement of another, within fixed boundaries, for any period of time, without consent or privilege.

Trespass to Chattels

Minor intentional interference with the personal property of another without consent or privilege.

Conversion

Major intentional interference with the personal property of another without consent or privilege.

Slander

Oral Defamation and if its per se as well its related to business, serious crime, disease, or chastity.

Libel

written defamatio

Scienter

knowledge of falsity or reckless disregard for the truth

Res Ipsa Loquator

The thing speaks for itself regarding breach.

Proximate Cause

Looks to see if there is any reason defendant should be relieved of liability (i.e., is it fair to hold defendant liable for the consequences of his/her/their actions?)

Dependent vs Independent Intervening Act

dependent is Normal response createdby defendant’s negligent act, Effect: won’t cut off defendant liability unless it is abnormal.

Independent is Abnormal response created by defendant’s negligent act; may have occurred regardless of defendant’s negligence. Effect: if result is foreseeable, defendant still liable; if result is unforeseeable (“superseding act/cause”), can cut off defendant’s liability

Basic Defenses in Torts

Denial Defense, Statute of Limitations, Failure to mitigate damages.

Contributory Negligence

Plaintiff’s conduct was a contributing factor in his/her/their own injury; complete bar to recovery, even if 1% at fault

Comparative Negligence

Compares the negligence of plaintiff and defendant and apportions damages accordingly:

Pure Comparative Negligence: Plaintiff’s recovery is reduced by his/her/their amount of fault; can recover 30% even if 70% at fault

Modified (Majority): Plaintiff can only recover if his/her/their negligence was equal to or less than defendant’s negligence; more than 50% at fault, can’t recover

Assumption of Risk

If plaintiff assumed risk of injury, they can’t recover if implied or contractual.

Secured credit

creditor gets collateral if debtor fails to pay.

Suretyship

A third party promises to pay on behalf of the debtor if they fail to pay.

Guaranty

A third party provides a guarantee of payment on behalf of the debtor if they fail to pay.

Liens

Security obtained though operation of law,

Gives the creditor the legal right to repossess goods held

by the debtor if the debtor defaults.

Truth in Lending Act (TILA)

Requires creditors to make certain written disclosures

concerning financial responsibilities (APRs,

transaction fees, origination charges, etc.).

Fair Debt Collection Practices Act

Provides for fair and transparent notice in the

collection of debts.

 Allows for a debtor to dispute the validity of a debt

within 30 days.

 Grants consumers a cause of action against a

collector who violates the act and causes actual

damage.

Chapter 7

Most Chapter 7 filings are “Voluntary”

 Filed by individual or business debtors requesting

discharge of debts due to inability to repay.

 Certain assets may be liquidated and debts owed to

creditors repaid from this pot in proportional shares,

though an administrator.

 Creditors usually receive little to none of the debt

owed.

Chapter 13

 All Chapter 13 bankruptcies are “Voluntary”

 Only available for individual debtors (& sole

proprietorships but not other businesses).

 Provides for a court-protected repayment plan

over the course of several years.

Chapter 11

 Available to businesses who wish to remain in

operation rather than have their debts discharged.

 Idea is that businesses who remain in operation are

more likely to be able to repay their debts.

 Typically the debtor business will negotiate a plan

with all creditors and submit it to the Court for

approval.

 Goal is to ”restructure” rather than force “discharge.”

Related Protections

Service Mark: A trademark used to distinguish services

 Certification or Collective Mark

 Trade Dress: Image & overall appearance of a product

 Trade Names: Business name, may be the same as the

business’ trademark

 Goodwill

World IPO

 World Intellectual Property Organization provides

for international protection

 TM holder can file an existing TM for registration

that covers most countries through the Madrid

System rather than registering individually in each

country.

Trademark Dilution

Occurs when a TM is used w/o

authorization; does not require proof that consumers

are likely to confused by a non-existant connection

between products

Public domain rules

protected for author’s life plus 70 years

For corporate authorship, protected for 95 years from

publication OR 120 years from creation (whichever is

longer)

Fair Use

A copyrighter may avoid liability if they can show use

fits into the category of “fair use” by evaluating the

following factors:

 Purpose & character of the use, including

whether it is of a commercial nature or is for

nonprofit educational purposes

 Nature of the copyrighted work

 Amount & substantiality of portion used in

relation to the copyrighted work, and

 Effect of the use upon the potential market for or

the value of the copyrighted work

Trade secrets

Are information of commercial value and protected by torts law and can include penalties up to $5 million and imprisonment of up to 10 years.

Statutes of Frauds

certain contracts have to be in writing signed. A sufficient memo is all that is required specifying parties signed.

K formation

Valid offer, acceptance and considerations

Products liability

refers to a manufacturer or seller being held liable for placing a defective product into the hands of a consumer.

Express vs Implied Warranty

explicit promises made by a seller (orally, in writing, etc.) regarding a product's quality or performance. Implied is unwritten, automatic guarantees created by law that goods are fit for ordinary use (merchantability) or a specific purpose.

Neglagence Approach

Eg Saying that manufacture shouldn’t have unsafe products when you can’ prove in writing about a contract.

Strict Product Liability Approach

Make it strict Liability by proving manufacturing, marketing, or design defect.

Bilateral vs Unilateral

Bilateral is where both parties exchange mutual promises.Unilateral is when "one-sided" agreements where only one party (the offeror) makes a legally enforceable promise

Ambiguity

 Terms of offer open to multiple interpretations

 If both parties had reason to know of ambiguity,

NO K unless both gave the ambiguous term same

meaning

 If neither party had reason to know of ambiguity,

NO K unless both parties have ambiguous term

same meaning

 If one party knew of ambiguity, law will favor

interpretation to the uniformed innocent party

Promissory Estoppel

Court can enforce promise even if not in writing to prevent people from getting screwed over.

Parole evidence rule

Prevents outside info that contradicts the contract to get in the way. The contract is the main agreement.

Unconscionability

Is a doctrine used by courts to refuse the enforcement of a contract or specific terms that are so extremely one-sided, oppressive, or unfair that they "shock the conscience". It serves as a defense to contract enforcement

Incapacity

If minor or mentally impaired when signing contract can be voided.

Assignment(3party contract)

assignment is the transfer of contractual rights from one original party to a third party.

Impossibility vs Impracticability

Must be objective impossibility  the thing can’t be done

by anyone like death or something, while impracticability is Not technically impossible but extremely burdensome(risky.

Expectation(when suing for contract failure)

give the injured party the benefit of their

bargain  $$ in the amount as if the K had been

fully performed

Specific Performance

 Equitable remedy

 Court orders the other party to perform the K as

intended (no money damages as substitution)

 Usually disfavored  Must show $$ damages are

inadequate

 Rare circumstances where the subject of the K is

unique and irreplaceable