MEE Freq Missed Statements

Defamation

The elements required to prove a PFC for defamation are (1) a false defamatory statement (a statement that tends to harm the reputation of another),(2) of and concerning the plaintiff made by the defendant,(3) publication by the defendant to a third party, (4) damages and (5) heightened standard if about public figure, priv figure speaking on matter ofpublic concern, or private figure

Standard to prove Defamation for Public Official

P must also prove actual malice - that D spoke with recklessness OR knowledge of falsity. (NO NEGLIGENCE - THAT IS INSUFFICIENT)

Defamation standard if private figure speaking about a matter of public concern

Private citizens are allowed more protection from defamatory statements than individuals in the public eye. If the P is a private figure speaking about a matter of public concern, the plaintiff must also prove that the speaker was negligent.

Trespass Issues & First Amendment

The First Amendment does not provide the press with any special right to trespass, even if the trespass was done in order to investigate a story about a public figure or a matter of public concern

Disclosure of Private Facts

1am (as applied to state/local governments through the 14th Am) protects the press from liability when publishing: (1) truthful private facts; (2) on a matter of public concern; (3) where such info is legally obtained; AND (4) no knowledge that any information was obtained illegally (if illegally obtained information was published). TRUTH IS NOT A DEFENSE, and A photo taken in a public place is likely NOT a private fact.

Generally Applicable Laws

1am DOES NOT protect the press from liability for violating generally applicable laws (not aimed at suppression of free speech), even if such laws indirectly affect the ability to gather and report news on a matter of public concern.

Business Judgment Rule

a presumption that a director’s decision may not be challenged if director (1) acted in good faith, (2) w/ care a person would exercise in a sim position, and (3) in a manner director reasonably believed to be in the best interest of corp

What is an example of something directors CAN rely on in BJR?

Directors can rely on the opinions of experts and corporate insiders generally - but a reasonable person would not rely on the opinion of a person with a personal interest in the transaction

 duty of loyalty forbids Directors in a corp from

duty of loyalty forbids Directors from: (a) entering

into conflicting interest transactions; (b) usurping

a corporate opportunity; (c) competing with the

corporation; OR (d) trading on inside information.

Setting aside transaction due to director’s personal interest in corp

A transaction cannot be set aside merely because a director had a personal interest in the transaction if (i) the director disclosed the material facts of the transaction to disinterested members of the board (or the shareholders), who approved the transaction, or (ii) the transaction was fair to the corporation. Fairness exists when: (1) the terms/price were comparable to what corp would receive in an arm’s length transaction (fair price); (2) transaction as a whole was beneficial to the corp AND (3) fair in terms of director’s dealings with the corporation (fair dealing).

Restricting/Eliminating Fiduciary Duties in a Corporation

Articles of Inc may eliminate or limit the personal liability of a director but Liability cannot be eliminated to the extent that the director (i) received a benefit to which he was not entitled, (ii) intentionally inflicted harm on the corporation or its shareholders, (iii) approved unlawful distributions, or (iv) intentionally committed a crime

Types of Agency Relationships

Universal agent → broad authority to act on behalf of the principal + authorized to perform ALL acts principal allowed to perform.

general agent → normally has auth to conduct series of transactions over a pd of time for a partic purpose, business, or operation (i.e. mgr of a restaurant).

special agent → ltd auth. to conduct: (a) specific act/transaction; OR (b) certain actions over specified period of time

Express Actual Authority

actual authority to enter into K where there is express consent (the principal's acts or conduct demonstrate explicitly their consent)

Implied Actual Authority

agent believes he is entitled bc (a) action necessary to carry out express auth duties; (b) agent has acted similarly in prior dealings between the principal & agent; OR (c) customary for agents in that position to act.

Fiduciary Duties Owed to Principal

(1) Duty of Care – reasonable care when performing the agent’s duties;

(2) Duty of Loyalty – to act solely and loyally for principal’s benefit; AND

(3) Duty of Obedience – obey all reasonable directions given by the principal and to act in accordance with the express or implied terms of the relationship.

Vicarious Liability for Acts of Independent Contractors

principal NOT vic liable for the torts of an independent contractor EXCEPT if: (a) the indep contractor engaged in an inherently hazardous activity; (b) non-delegable duty owed by principal (i.e. the duty of care owed to an invitee); OR (c) through the doctrine of estoppel when (1) P creates appearance that an employer-employee relationship exists, and (2) 3p relies on that relationship

Apparent authority

Apparent authority is authority that a third party reasonably believes the agent has based on the principal’s holding out the agent as having such authority. Assertion alone by agent insufficient to bind P; P must have acted or failed to act in a manner that caused 3p belief.

App auth NOT APPLICABLE if the 3p has actual knowledge that agent did not have auth + duty to make further inquiry when its unreasonable for agent to have the auth

When does a principal hold out an agent

(a) gives agent a position or title indicating certain auth; (b) has previously held agent out as having auth + has not published revocation of said authority; OR (c) has cloaked agent w/ the appearance of such auth

determining whether an individual is an employee or independent contractor

The primary factor in determining whether an individual is an employee or independent contractor is whether the principal has a right to control the method and manner of the individual’s work

principal to be liable in contract to 3p?

agent must have had authority to enter into the disputed contract or the principal must ratify the contract

General Partnership

2+ ppl as co owners carrying on a business for profit - no written agreement or intent needed.

Profits that do not create general partnership

profits were received in payment: (a) of a debt; (b) for wages as an employee or independent contractor; (c) of rent; (d) of an annuity or other retirement benefit; (e) of interest/loan charges; OR (f) for the sale of the goodwill of a business

Formation of LP

MUST have at least one general partner -  formed upon the filing Cert of Ltd Partnership w SOS that includes: (1) name of the partnership; (2) address of the partnership’s principal office; (3) name/ address of partnership’s registered agent – must be within the state; (4) name and address of each GP; (5) whether partnership is a LLLP (Limited Liability Limited Partnership); AND (6) it must be signed by all general partners.

Ltd Liability Partnership (LLP)

all partners have ltf personal liability. Any partnership can be LLP upon: (1) approval by same vote necessary to amend partnership agrmt; AND (2) filing a Statement of Qualifi. w/ SOS. Unless otherwise agreed, unanimous vote req to amend a partnership agrmt.

• Stmt of Qualification must include: (i) name/address of the partnership; (ii) sttmt that the partnership elects to become an LLP; AND (iii) a deferred effective date, if any.

• The filing of a Statement of Qual. DOES NOT create new partnership. LLP continues to be same partnership entity that existed prior to the filing (so LLP remains liable for any unfulfilled obligations of the partnership entity before it became LLP)

Auth to Bind Partnership - Actual

Each partner is an agent of partnership + can bind partnership. express actual authority to bind: receives auth from partners.

• Maj Vote of Partners Req: Differences among partners as to acts w/in ordinary course of partnership business need (like hiring decisions)

• Unanimous Vote of Partners Req: Acts outside the ordinary course of business

If partnership agreement silent on the scope of the partner’s auth, partner has auth to bind partnership to usual and customary matters, UNLESS partner knows that: (a) other partners might disagree; OR (b) for some other reason consultation with fellow partners is appropriate.

Auth to Bind Partnership - Implied

Implied actual authority (aka incidental authority) to take actions reasonably incidental or necessary 

Respondeat Superior

employer vic liable for an employee’s neg acts if employee acting within the scope of employment (when (a) performing work assigned by the employer; OR (b) engaging in a course of conduct subject to the employer’s control (generally doesn’t apply to independet contractor actions, but see exceptions)