Business Law (Virginia Tech, Malone) Spring 2019 - Exam 1

Common law

is the collection of cases and decisions made by other judges in other cases as precedent, apply the law to the facts.

Stare Decisis

judges are obligated to follow precedents within their jurisdiction

Common Law Doctrine

no duty to rescue 'penalties are found not in the laws of men but in the laws of god'

Federal Courts

flow from lowest to highest: Federal District court > Federal Appeals court > US Supreme Court

injunction

An order which legally prevents something

Decided by judge, not jury

State Courts

flow from lowest to highest: State Trial Court > State Appeals Court > State supreme Court > US Supreme court.

US and State Supreme Courts

Highest courts of appeal.

Has the option to hear cases, If it refuses to hear a case, then the appellate decision is final, Final word regarding the law unless it is a State Supreme Court decision, Writ of Certiorari.

Federal and State Appellate Courts

Intermediate Courts of Appeal.

Reviews Trial Court's record for any errors of law.

Correctly applied the law to the facts.

Ex. Opinion or Hearsay Evidence

3 Types of Opinions

Unanimous (All agree)

Concurring (Agree, but not for presented reasons.)

Dissenting (Disagreement with majority)

Appellant/Petitioner

Appellant (One who appeals)

Petitioner (One originally presenting)

Reversed

Petitioned to, and approved to go back on

Affirmed

Petitioned to, but not approved for reversal

Federal and State Trial Courts

Finders of fact, Limited Jurisdiction:

Small claims, juvenile, probate, Bankruptcy (Federal)

Jurisdiction

is the power of the court to hear a particular case.

Courts must have both subject matter jurisdiction and personal jurisdiction.

Subject matter jurisdiction

The court has the ability to hear the particular TYPE of case.

I.e a juvenile and domestic relations court can't hear a case for a speeding ticket.

Personal Jurisdiction

A person or a business must have minimum contacts with the state in order to satisfy personal jurisdiction.

Ethics

govern how people should act, assess whether the actions taken in the pursuit of those values are acceptable.

Values

those things a person considers important

Normative Ethics

enable a person to determine whether an action is right or wrong.

Normative ethical theories present different ways a decision-maker can assess the ethical impact of a proposed course of action.

Utilitarianism

determines the rightness of a decision from its ultimate affect.

Kantian Ethics

is concerned about the reason for a decision and not the consequences of the decision.

Religion Defined Ethics

a decision is considered right if it is in line with the decision-maker's religious beliefs.

Virtue Ethics

views a decision is ethical if it is made to pursue a virtuous trait.

Behavioral Ethics

involves recognizing certain human traits that interfere with ethical decision-making.

Instinctive decision without reflection.

Bias

Peer pressure

Immediate consequences versus long-term results

Labeling an issue

Slippery slope

Organizational pressure

Business Ethics

involves the application of values to business decisions.

Businesses apply these ethical principles via their decision-making process and can determine whether an action is ethical by applying the normative theories discussed previously.

Any well-reasoned business decision must take into account ethical considerations.

Model Decision Making Process and Ethical Reasoning Steps

1) Objectively consider only accurate Facts.

2) Identify all Stakeholders who could be impacted by a decision.

3) Consider all possible Courses of Action and their potential impact on the identified stakeholders.

4) Make a well-reasoned Final Decision.

Ethical Managers

Companies are NOT Inherently unethical.

It is the agents within companies that can make decisions that generate negative outcomes.

Corporate Social Responsibility (CSR)

Employees Ethical Responsibilities

It is illegal to fire an employee who refuses to break the law.

An employee is individually liable where they break the law even though they were told to by a supervisor.

Where an employee is instructed to do something that is legal, but unethical then follow internal company code of conduct or seek guidance from other superiors in company.

Conflict of Interest

For corporations, an attorney employed or retained by an organization represents the organization via its duly authorized agents.

The attorney does not automatically represent each person in the organization (though they can).

Attorneys can be barred from representing you or your business if there are conflicts of interest.

Civil Litigation

Pre-suit

Pre-trial Proceedings = Determination of what, if any, factual issues are to be decided by trial.

Trial Proceedings = Determination of factual Issues.

Post-Trial

Tort

Wrong, Based on an obligation imposed by law, court will provide a remedy to the injured party

Tort Law

based on an obligation imposed by the law with no agreement needed between parties

injured party files a civil action and receives compensation

Criminal Law

behavior classified as dangerous to society

prosecuted by the government, whether victim wants to prosecute or not

Contract Law

based on breach of an agreement between the two parties

injured party files a civil action and receives compensation

Elements of Contract

Agreement

Consideration

Legality

Capacity

Intentional Tort

Harm caused by a deliberate action

Harm to Persons

Defamation

False Imprisonment

Intentional Infliction of Emotional Distress (IIED)

Battery

Assault

Privacy

Harm to Property

Trespass to Land

Nuisance

Conversion

Trespass to Persona Property

Harm to Economic Interests in Business

Tortuous Interference with an Existing Business Contract

Tortuous Interference with a Prospective Business Advantage

Fraudulent Misrepresentation

Disparagement

Negligence

(harm caused by accident)

Defamation

Cause of action invoked when the facts indicate that injury occurred because of some harm to a person or business's reputation.

NOT an opinion

Libel v. Slander

Elements of Defamation

A Defamatory Statement

Concerns the plaintiff

False

Published to a third party

Causes damage to the plaintiff's reputation

Public Figures

Those in the public eye must prove that the defendant acted with Malice.

Publicly traded corporations are public figures

Malice exists where there is evidence that the defendant acted with the knowledge that the statements were false or with reckless disregard for the actual truth.

If malice then damages are presumed

If use negligent theory (reasonable person would have ascertained the correct facts) must prove actual damages

False Imprisonment

Can be a civil action applied to unlawful detention of individuals by law enforcement and to matters involving business and individuals

Threat prevention policies directly involve an explanation of false imprisonment

Elements of false imprisonment are

Intent to confine another

Within fixed boundaries

the person confined is aware or harmed by it.

IIED (Intentional Infliction of Emotional Distress)

the defendant acted intentionally or recklessly through extreme and outrageous conduct which caused severe emotional distress to another

Evidence is typically shown through the medical testimony of a plaintiff's treating physician

Challenging to prove

Battery

Intent to make offensive contact with another or place them in fear/knowledge of imminent contact and an offensive contact results

No intent to cause the harm, just intent to make contact

Transferred Intent

A reasonable person standard is used to determine whether the touching was offensive

Ex. Shaking hands, pulling chair out from a professor, throwing a rock at a moving car, putting poison in one's tea

Assault

Intentional act to place another in fear/knowledge of imminent offensive contact or fear/knowledge of imminent offensive contact occurs because of an attempted battery

Ex. Throwing a rock at someone who was not looking, but intending to hit

Plaintiff must feel "reasonable apprehension" so no assault, but it is attempted battery

Ex. Bank robber points a gun at patrons of a bank?

Assault vs Battery

Assault: A manager threatens to slap an employee the next time he fails to keep track of refilling the napkin dispensers.

Battery: A manager throws a corrugated cardboard box full of napkins directly at an employee while yelling "I'm tired of telling you to refill the napkin dispensers!"

The box strikes the employee.

Invasion of Privacy

Describes the act of infringing upon one's freedom to choose what about them is private and what is public

Invasion of someone's expectation of privacy can occur in multiple ways.

Intrusion

Public Disclosure of Private Facts

Appropriation of Identity

Statutory Privacy Laws

Communication privacy laws (TCPA)

Financial privacy laws (FCRA)

Health privacy laws (HIPPA)

Online privacy laws (COPPA)

Intrusion upon one's Right to Privacy

Involves intruding upon someone where that person has a reasonable expectation of privacy

In one's home, hotels, bathrooms, dressing rooms

Claimant must have a reasonable expectation of privacy in the area allegedly intruded upon. (Not in public)

Intrusion Examples

Surveillance in one's home

Wiretapping

Photographing from window

Hacking CPU

Trespass to Land

Without the consent of the owner,

Intentionally entering the land of another

Remaining on the land of another

Causes anything to enter the property

Causes something to remain on the property

Without permission of the owner

Trespass to Personal Property

A defendant intentionally dispossess or interferes with the personal property of another.

Borrowing employee's car without permission

data mining a web service i.e. eBay contrary to user agreement (unauthorized use of any server space

Private Nuisance

Enables a land owner to sue a neighbor where the neighbor's use of their land interferes with the landowner plaintiff

An object or activity which substantially and unreasonably interferes with a plaintiff's use and enjoyment of their own land

Unreasonable interference examples: smoke, vibrations, noise, smell...

Public Nuisance

Unreasonable and substantial interference with public health, safety, and peace.

Government typically brings the action as a plaintiff, but individuals who have suffered specific harm distinct from the public also have standing

Same as a private nuisance except the nuisance affects the public's interest versus its effect on a single or limited number of property owners.

Conversion

Can be likened to the criminal offense of theft -- where a defendant intentionally exerts control over the personal property of another

Conversion vs Trespass

The difference between trespass to personal property and conversion is the degree of interference. The greater the interference, the more likely the action is conversion

Tortious Interference with a Contract

Defendant improperly induced a third party to breach a contract with the plaintiff

Elements:

There was a K between plaintiff and 3rd party

Defendant knew of the contract

Defendant improperly induced 3rd party to breach the K or made performance of the K impossible

Plaintiff was injured

Examples: Trade with indigenous peoples

Tortious Interference with a Prospective Advantage

Plaintiff who has a definite and reasonable expectation of obtaining an economic advantage may sue a corporation that maliciously interferes and prevents the relationship from developing.

(It helps if defendant's conduct is unlawful)

Ex. A is about to sign a deal with B, but B backs out because C threatened to publish false reports about their business.

Fraudulent Misrepresentation

Intentionally misleading plaintiff by misrepresenting a material fact plaintiff relied OR did not disclose a fact the defendant had a duty to disclose based upon a special relationship

Shareholder can sue an accountant who gave a false opinion about a company's financial statement

Disparagement of Property

False statements made about another's products or property

Elements:

Defendant made false statements about Plaintiff's goods or services knowing such was false OR with reckless disregard as to whether such was true

Actual harm was caused

Slander of Quality/Trade Libel

Slander of Title

Ex. Dealer sells stolen cars

Compensatory

Money intended to restore a plaintiff to the position he was in before the injury.

Single recovery principle requires awarding a lump sum for past and future expenses.

Punitive

Damages intended to punish the defendant for conduct that is extreme and outrageous.

Lanham Act

Protects against false statements intended to hurt another business.

Elements:

Defendant made false or misleading statements about the Plaintiff's business.

Made in commercial advertising or promotion and likely to influence the viewers purchasing decision.

Plaintiff has been or is likely to be injured as a result.

Negligence

Duty of Care to the plaintiff.

Defendant Breached their Duty of Care.

Defendant's conduct Caused plaintiff's injury.

It was Foreseeable that conduct like the Defendant's might cause this type of injury.

Plaintiff was injured.

Contributory

If the plaintiff is found to also be negligent, then the plaintiff gets nothing.

Comparative Negligence

Plaintiff can still recover damages, even if he/she is also negligent.

Assumption of Risk

A person who voluntarily enters a situation that has an obvious danger cannot complain if they are injured.

Plaintiff voluntarily assumes a risk of harm.

Strict Liability

Liability is automatically attached as long as the Defendant is the factual cause of an injury.

Doesn't look at foreseeability.

Works to accomplish policy goals (acts as a deterrent of dangerous or heinous acts).

Acts are typically defined (often statutory).

2 main Types (Ultrahazardous Activity & Product Liability)

Strict Product Liability

Prohibits defective products whether the defendant acted reasonably or not.

Negligent Product Liability

Concerns unreasonable conduct by the defendant.

Warranty Claim

Assurance provided in a sales contract (to be discussed later).

If the US Supreme Court rules that a statue conflicts with the First amendment of the US constitution

than the statute is void.

Criminal Lawsuit

court action brought by the state for committing a crime against public welfare (punishment is imprisonment and/or a fine)

Substantive Law vs. Procedural Law

Substantive Law: Defines legal relationship of people with other people or between them and the state.

Procedural Law: The method and means by which substantive law is made and administered.

Precedent

How similar cases have been decided in the past.

Criminal Court

a court that has jurisdiction to try and punish offenders against criminal law.

Legal vs Equitable Remedies

An equitable remedy will only be awarded if the

available legal remedies are inadequate.

Legal remedies may be inadequate for many

reasons, including situations in which the dollar damages are too small or too

speculative; continuing or multiple suits are possible; a threatened injury may be

irreparable; or real property (which is always unique) or a unique chattel is involved.

Statutory Law

The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).

How agreements become laws

must be ratified by the US senate

Natural Law

A doctrine that society should be governed by certain ethical principles that are part of nature and, as such, can be understood by reason.

Theory of Jurisprudence

Common Law

(civil law) a law established by following earlier judicial decisions

"The constitution ensures that the states retain

all power not given to the national government"

"court injunction "

...court order to do or refrain from a specific act

affirmed decision

the appellate court determines that the lower court reached the correct decision

England's law provided roots

for US law.

Administrative Law

The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.

Common Law refers to

law made when judge decide cases and then follow those decisions in later cases.

Injunction can only be issued

by a judge exercising equitable powers.

3 branches of government:

executive, legislative and judicial

Stare Decisis:

makes the law more predictable

Public Law

law dealing with the relationship between government and individuals

because when a defendant loses a trial and files an appeal some courts (but not all)

reverse the names of parties.

Statute

a written law passed by a legislative body

The Iroquois Native Americans: played a role

in the creation of the US government by solving the problem of federalism

Administrative law

The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.

Federal Judicial Branch of US gov:

interprets laws