MGMT 311 Hailey Exam 3

Nuisance

a person can be liable if a person uses their property in a way that is unreasonably interferes with others property

private nuisance

if plaintiff can find a harm seperate from others

public nuisance

if the harm is public and at large

negligence and strict liability

toxic tort- against those who pollute the environment with toxic substances (liability with fault) (negligence with damages)

EPA

1970, coordinates all environmental stuff and makes laws

environmental impact statements

all federal agencies must be willing and ready to take environmental factors into consideration and must issue statement regarding environmental impact

mobile sources of air pollution

cars, trucks etc

stationary sources of air pollution

plants and factories

clean air act

created EPA,

civil violations up to 25,000 a day,

5,000 a day for things like failure to maintain proper record,

criminal penalties including fines and jail,

private citizens can sue and try to enforce and get up to 10,000 dollars

clean water act

limits discharge of pollution into water used for recreation navigation or swimming

similar fines and penalties to clean air act

safe drinking water act

empowers EPA to set max level for pollutants in public water levels

suppliers of drinking water must send statement to every house with

level of contaminent

possible health concerns

source of water

ocean dumping act

transporting and dumping of pollution into the ocean

oil pollution act

creates liabilities for damages to natural resources private property or local companies caused by the discharge of oil into navigatable waters or adjoining shores

superfund

regulates cleanup of disposable waste liability

superfund liability

1. generator of waste

2. transports waste

3. owner or operator at time of disposal

4. current owner or operator of site

monopoly

a market when there is a single seller or a firm that, although not the sole seller in the market, can nonetheless substantially ignore rival firms in setting a selling price for its products or can in some way limit rivals from competing in the market

monopoly power

the power to control prices or exclude competition in a relevant market

market power

the ability to raise prices above those that would be charged in a competitive market

restraint of trade

any agreement between firms that has the effect of reducing competition in a marketplace

is amazon a monopoly

yes, they control prices and hurt competition using exclusionary conduct

purpose of anti-trust laws

1. regulate business conduct to promote forms of competition that benefits society

2. rein in the unrestrained exercise of marketing power

major provisions of the sherman act

1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal [and is a felony punishable by fine and/or imprisonment].

2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony [and is similarly punishable].

difference between 1 and 2 in sherman act

1. One requires 2 or more people while 2 can be done solo, 1 is a coming together

2. 1 is concerned with finding agreement that leads to restrained trade

3. 2 can be by more than one person

4. 2 deals with a structure of monopoly in the marketplace

per se violations of sherman act

obvious violations of the law and court doesnt consider redeeming qualities EX: price fixing

Rule of Reason Violations

balances reason with potential anticompetitive effects

factors

A. purpose of agreement

B. parties power to implement the agreement to achieve purpose

C. the effect or potential effect of the agreement on competition

D. whether the parties could have relied on a less restrictive means to achieve their purpose

Horizontal Restraint

restricts competition between rival firms competing in same market

1. price fixing

2. group boycotts

3. horizontal market divisions

4. trade associations

5. joint ventures

price fixing

restricting output by eliminating price competition in which companies seek to sell more by charging less than their rivals (drive them out of market) ( good reason not a defense)

group boycotts

an agreement between 2 or more sellers to refuse to deal with another person or company ( per se violation)

horizontal market divisions

agreement to divide up market between rival companies, dividing by territory or type of customer (generally per se)

trade associations

businesses in the same general industry or profession organizing to pursue common interests like ad campaigns, lobbying congress etc (judged by rule of reason)

joint ventures

2 or more individuals in business entities join together in a particular commercial enterprise (judged by rule of reason)

vertical restraint

any agreement between firms at different levels in the manufacturing and distribution process

1. territorial or customer restrictions

2.resale price maintencance agreement

territorial or customer restrictions

manufacturers instituting territorial restrictions or attempting to prohibit wholesalers or retailers from reselling the products to certain classes of buyers such as competing retailers (rule of reason)

resale price maintenance agreements

an agreement between manufacturers and a distributor or retailer in which the manufacturer specifies what the retail price of its products must be

part 2 of sherman act

individuals or companies attempt at monopoly

type of behavior violating second law of sherman act

conduct pursued by a firm that is already a monopolist is condemned as monopolization if the conduct interferes with free trade and is intended to preserve the monopoly

type of behavior violating second law of sherman act

conduct intends to capture the monopolies power is condemned as an attempt to monopolize

predatory pricing

selling a product at price below normal cost of production and then raising to above competitive levels to recoup losses

price fix

2 or more businesses, falling prices, keep firms from getting in

predatory pricing

1 business monopoly, falling prices, get competitors out

monopolization

The possession of monopoly power in the relevant market and the willful acquisition or maintenance of that power, as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.

violate 2nd part of sherman act

plaintiff must prove monopoly power and an intent to monopolize

plaintiff win on monopoly power

plaintiff must show the firm has dominant share of the relevant market and there are significant barriers for new companies entering the market

relevant market

all products with identical attributes (stevia sugar sweet n low)

geographic area in which company sells product

intent requirement for monopoly power

powerful act to acquire or maintain monopoly power through anticompetitive means

requirements for an attempt to monopolize

1. anticompetitive behavior

2. specific intent to exclude competition and garner monopoly power

3. dangerous probability of success in achieving monopoly power

clayton act (1914)

4 activities made illegal, specifies the sherman act

1. price discrimination

2. exclusionary practices

3. corporate merger

4. interlocking directorates

price discrimination

seller offers different price to competing buyers

Exclusionary Practices

corporate mergers

interlocking directories

Department of justice and FTC

enforce federal antitrust laws

DOJ

can persecute violations of the sherman act as criminal or civil

DOJ/FTC

can enforce clayton act as civil case

civil penalties for antitrust

dissolution of company and divestiture of assets

private parties injured due to violations of sherman/clayton acts

sue for treble damages attorney fees and in some cases injunctive relief

exemptions from antitrust

labor- permits unions to bargain

insurance companies

exporters

business person and other joint efforts to help industry

contracts

create expectations as to how parties to agreement will conduct themselves in the future

definition of contract

an agreement that can be enforced by law between two or more parties who promise to perform or refrain from performing some act now or in the future

objective factors of contracts

words, actions, circumstances

4 requirements for a valid contract

agreement, consideration, capacity, legality

agreement

the mutual assent and agreement of the parties must be evidenced by an offer and an acceptance

consideration

legally sufficient and bargained for consideration must be exchanged for contractual promises

contractual capacity

each party to a contract must be recognized as being legally competent to enter into contracts

legality

the purpose and subject matter of the contract must not be contrary to law or public policy

Defenses to the Enforceability of a Contract

voluntary consent and form

voluntary consent

consent must be voluntary and in law, not based on mistake fraud undue influence or duress

form

some contracts must be in writing and signed by the party being sued

offeror

the party making an offer

offeree

the person who, if interested in the offer, may accept the contract

bilateral contract

reciprocal promises are exchanged by the parties so that the promise of one party is exchanged for the promise of another (promise for promise)

Unilateral Contract

one party makes a promise in exchange for the other party performing some act or refraining from performing some act

expressed contract

the terms of the agreement are fully and explicitely stated in oral or written words

implied contract

the terms of the agreement are inferred from the conduct of the parties

three steps to establish an implied contract

1. plaintiff furnished service or good

2. plaintiff expected to be paid and defendant should have known that

3. defendant had a chance to reject good or service and didnt

executed contract

both sides have performed act or performance

executory contract

neither has performed the contract or one side has

valid contract

all elements necessary to form contract are present

a. can be enforceable or unenforceable

b. why is a valid contract unenforceable

voidable contract

valid contract but one or more side has the option of avoiding his or her obligation

the party with the option can elect to void the contract or ratify it

void contract

agreement that has no legal effect and is not really a contract, no legal obligation

requirements for an offer

serious intent, reasonably certain and definite terms, communication

intention of offer

offeror must manifest his or her objective, serious intent to be bound by the terms of the offer

lucy vs zehmer

lucy and zehmer friends and when they were drinking they jokingly made deal for zehmers family farm and lucy accepted. they wrote it on napkin and it was sold. zehmer sued saying no serious intent and intoxication but jury says he had serious intent and knew too much of testimony to be intoxicated for contract. he lost farm to lucy

situations where intent may be lacking

1. expressions of opinion

2. statement of future intention

3. preliminary negotiations

4. invitations to bid

5. ads, catalouges, circulars, price lists

6. live and online auctions

definiteness of terms

identification or parties

identification of subject matter

identification of consideration

time of payment, delivery, performance

courts in definite terms

willing to supply missing reasonable terms if intent is there, but wont supply if used term and meaning is vague

communication

offeror must have intentions of making terms known to offeree and they should be received

offeree has knowledge of terms

an offer may be made to a specific offeree to whom it is communicated

offers can certainly be public

termination of offer

termination by action, termination by operations of law

termination by action

revocation, rejection, counteroffer

revocation

A. offeror takes offer away any time before acceptance

B. acts inconsistent with the existence of offer and made known to offeree

C. revocation effective when received

options contract

irrevocable offer, seperate contract that exists when offeror holds offer open for the offeree to consider, its irrevocable for time stated or reasonable time

rejection of offer

offeree says no to offer

rejection effective when received

inquiry made by offeree is distinguish from rejection and doesnt terminate

counteroffer

rejection of offer and simultaneous making of new offer, terminates old offer, mirror image rule

mirror image rule

offerees acceptance must exactly match the offerors offer

termination by operation of law

-lapse of time

-destruction of the specific subject matter of the offer

-death or incompetence of the offeror or the offeree

-supervening illegality of the proposed contract

lapse of time

too much time between offer and acceptance, if stated its after expiration if not reasonable time

destruction of subject matter of offer

ex: car being sold is totalled, watch being sold breaks

Death or Incompetence of the Offeror or Offeree

if not irrevocable the offer dies when the person dies

supervening illegality of the proposed contract as a result of legislature or judicial decision

contract becomes illegal because of courts

acceptance

the offeree accepts the offer when the offeree unequivocally manifests his or her willingness and intention to assent to the terms of the deal