ASU - Koretz - LES 305 - Exam 2

No branch of government can exercise the authority of another branch. Also, each branch has some power to limit the actions of the other two branches; this scheme creates a system of checks and balances.

TRUE.

You play football for the Tempe Moons, last year's winners of the Super Bowl. The Tempe Moons are a member of the National Football League (NFL), a private organization. One requirement is that all NFL players, coaches, and other members of the team stand and act in a dignified manner while the national anthem is played before the game begins. You decide not to stand due to your religion. Other players are members of your religion and they stand. The NFL suspends you from further play due to your failure to stand. You want your job back.

No constitutional rights have been violated since the NFL is a private organization.*

Under the Commerce Clause, the federal government has the right to regulate any area of business

that affects interstate commerce.*

The United States Supreme Court determined that the Violence Against Women's Act exceeded Congressional authority to regulate commerce under the Commerce Clause in U.S. v. Morrison because violence is not an economic activity.

TRUE

Ollie's Barbeque is a family-owned restaurant in Birmingham, Alabama with a seating capacity of 220 customers. It is located on a state highway which is 11 blocks from an interstate highway. A sign in the restaurant provides that take-out service only is available for African Americans. Congress passed the Civil Rights Act in 1964, which prohibited this type of discrimination. Ollie's purchases about $150,000 annually from a local restaurant supplier and 46% that amount is from out-of-state distributors. Will the Commerce Clause permit the application of the Civil Rights Act to Ollie's?

Yes. Ollie's purchases a significant quantity of goods that originate out of state, so the discriminatory conduct impacts interstate commerce.

What authority would the state of Arizona claim for passing a mandatory seat belt law requiring anyone traveling in Arizona to put on his or her seat belt?

Police Power

In January 2015, the Super Bowl was held at the University of Phoenix Stadium in Glendale, Arizona. The state of Arizona could tax patrons who reside in states other than Arizona who are visiting Arizona hotels at a rate that is higher than the tax rate assessed against patrons who are from Arizona.

False.

The requirements to impose a valid state tax that is levied upon goods originating out of state include

a. The tax cannot discriminate against interstate commerce.

b. The tax cannot be an undue burden on interstate commerce.

c. There must be a "sufficient nexus" between the state and the business being taxed [Examples: Does business there, holds property titles there, manufactures there, inventory stored there]

d. The tax must be apportioned fairly.

e. All of the above are correct.

All of the above are correct.

Pen Corporation is a Delaware corporation with offices and warehouses in Arizona and California. Pen owns no property in North Carolina and has no employees in North Carolina. Pen sells office supplies via catalog. North Carolina imposed a retail use tax on Pen on sales to North Carolina residents. Is this tax valid?

Yes. Pen purposefully directed its activities at North Carolina and could be required to pay taxes

LL Bean has warehouse facilities in Maine, Nevada, Washington, Idaho, Utah, and North Dakota.

Any state in which LL Bean has warehouses can tax LL Bean on the inventory in that particular state

One of the issues that courts review to determine whether a federal law preempts a state law is whether the federal government expresses a desire to be the exclusive regulator in this arena.

TRUE.

The state of Wyoming has just passed a law requiring all cars entering the state to be equipped with side air bags. The federal government has expressed its desire to preempt any state laws relating to automobile safety equipment. Therefore, the Wyoming requirement:

is preempted by the federal requirement

The federal government passed several laws prohibiting the production, sale and consumption of alcohol for non-medicinal purposes. The legislation specifically allowed and encouraged states to pass laws prohibiting the consumption of alcoholic beverages. If a state did pass laws prohibiting the sale of alcohol on Sundays, then

The federal law and the state laws will both be valid

The Arizona Employer Sanctions Law requires Arizona businesses to verify a prospective worker's legal status using the E-Verify system before hiring the worker. The federal Immigration Reform and Control Act requires employers to collect identification information and submit a completed I-9 form to the government for new hires. What is the likely reason that the federal and state law are both enforceable? This is because

The federal government did not express a desire to be the sole regulator of worker employment verification so the state government may also regulate

In January 2010, the Arizona Senate approved a bill to strengthen immigration enforcement laws by making it a crime to be in Arizona illegally or to transport or conceal an undocumented immigrant. It also seeks to curb day-labor employment by making it a crime for an undocumented immigrant to solicit work in a public place or for anyone to hire someone from a vehicle. There are a number of federal laws that also prohibit hiring undocumented workers. What arguments are legally valid in favor of the federal law preempting state law?

The issue is more easily regulated by one central government body

An Arizona law that requires beer that is produced in California to undergo numerous tests for health and safety purposes will be upheld if beer produced in Arizona does not need to undergo the same tests.

FALSE.

Where in the U.S. Constitution are the provisions governing a student's right to a hearing prior to suspension from a public school?

Due Process Clause

The First Amendment prohibits state regulation of false advertising

FALSE

If you work for a large corporation that has a policy prohibiting employees from making negative comments on social media about the company's business practices, then this is a Constitutional violation.

FALSE

Advertising is given:

less protection than political speech.*

The Nike v. Kasky case illustrates that commercial speech may include interviews, press releases, and comments in the editorial pages in the newspaper.

TRUE

You are the CEO for a company that sells electronic cigarettes. Numerous citizens have complained that your company's products are unsafe. You are considering using social media to get out the message that e-cigarettes are safe and your intent is to claim that the e-cigarettes have not caused injuries. If you do make these claims using social media, these statements

may be considered commercial speech, so they may not be protected from government regulation.*

Corporations have the right to exercise political speech.

TRUE

Which of the following actions by a corporation would enjoy full First Amendment protection (i.e., could not be regulated)?

a. advertising by an attorney that is misleading with respect to the fees charged for

services

b. a media campaign for soap that inaccurately labels the soap “hypoallergenic”

c. a media campaign by a tobacco company against a cigarette tax increase

d. a mailing that contains offers for the sale of fraudulent securities

a media campaign by a tobacco company against a cigarette tax increase

An Arizona law referred to as "SB 1070" allows police to require birth certificates or other documents proving citizenship for anyone they suspect is undocumented. If the law is enforced by police officers in a manner in which people are racially or ethnically profiled, whereby people such as Latinos, for example, would be stopped and asked for citizenship papers in disproportionally high numbers compared with other ethnic groups, then this would violate

EQUAL PROTECTION

The Fifth Amendment allows the government to take private property for government purposes.

TRUE

Which group is not directly liable for business crime?

SHAREHOLDERS

The court in U.S. v. Park decided that there is no criminal liability for a corporate officer who had notice of a violation of the law if he could prove that he delegated the responsibility to someone else.

FALSE

Corporate sentencing guidelines use a culpability multiplier.

TRUE

Corporate boards could be held liable for their failure to create and monitor adequate internal controls to prevent fraud.

TRUE

A corporation's failure to follow crime prevention programs can result in harsher sentences under the U.S. corporate sentencing guidelines.

TRUE

Voluntary reporting of criminal violations reduces a company's penalties under the federal sentencing guidelines.

TRUE

Which of the following would mitigate an officer's or corporation's sentence under the corporate sentencing guidelines?

A. subordinates were demoted for questioning decisions

B. officer had no direct knowledge; he was only the supervising manager

C. the company had an ethics training program

D. subordinates failed to follow orders

the company had an ethics training program

The White-Collar Criminal Penalty Enhancement Act of 2002 or Sarbanes-Oxley Act provides for

a. increased criminal penalties

b. new crimes for certification of false financial statements

c. increased penalties for obstruction, mail, and wire fraud

d. all of the above are correct.

all of the above are correct.

Under the Corporate Sentencing Guidelines developed by the U.S. Sentencing Commission, sentences for officers increase if the following crime prevention methods are not in place

a. a written crime prevention program.

b. officer-level employees who are assigned responsibility for enforcement.

c. ethics programs.

d. crime prevention and detection processes.

e. all of the above are correct.

all of the above are correct.

The corporate sentencing guidelines may increase sentences if the following are not in place

a. a code of conduct

b. ombudsmen - below senior level exec, line man will feel more comfortable than going to higher up.

c. a reporting hot line

d. mandatory ethics training

e. all of the above are correct.

all of the above are correct.

The elements of theft and embezzlement include

an intent to take property and no authorization to take the property.

Miranda rights are required to be given when individual is in "custodial interrogation" meaning he or she is unable to leave and he or she is being questioned.

TRUE

The failure to give the Miranda warnings

is a problem only if the defendant is in custody.*

When Dzhokhar Tsarnaev, the defendant in the Boston marathon bombing case, was arrested, law enforcement officials questioned him for 16 hours in his hospital room. Once the officials read him the Miranda warnings, Tsarnaev stopped speaking. What is the result?

All statements made before the Miranda warnings were read will not be allowed into evidence.*

Probable cause is required for a search warrant

TRUE

You manage a construction company. Inspectors from OSHA (the Occupational Safety and Health Administration) appeared on one of the company's job sites, but you sent the inspectors away. Some of the inspectors went to a coffee shop across the way to take a coffee break. They were able to spot a violation from where they stood so they issue a citation to your company.

Anything that the inspectors saw is admissible into evidence concerning the violation.*

The FBI has developed new technology that enables it to listen to conversations in homes from vans parked in the street outside the homes. While listening to conversations in one neighborhood, the FBI uncovers a meth lab. Agents move in and arrest those in the home without a warrant.

The FBI is required to have a warrant in order to listen to the conversations.

Your employer warns its employees that users of its computer equipment will have no right to privacy when using employer-provided equipment, and the company uses anti-fraud software that scans employee e-mails for indicators of money troubles. Do these companies violate the privacy rights of employees when using this software?

No, because there is no reasonable expectation of privacy in this case.*

You are the plant manager for a manufacturing company and you decide to pump some standing water that collected on the property from a recent monsoon into a stream on the property. You were not aware that toxic chemicals on the property had mixed with the rainwater, and that those toxic chemicals found their way into the stream. Can you be held criminally liable for violating the Clean Water Act?

No, there is no mens rea.*

You can be arrested and charged with a crime if you look at a new Porsche and think to yourself, "Gee, I'd love to steal that car".

FALSE

Can the courts prove mens rea of corporate officers by showing a pattern of behavior indicating that they consciously tried to avoid knowledge about the activities of others in the company?

Yes, under the doctrine of conscious avoidance.*

Obstruction of justice is a felony under the Sarbanes-Oxley Act

TRUE

To prove obstruction of justice, the prosecutor must prove

the defendant intended to impede, obstruct, or influence investigation or the administration of justice

the defendant interfered with an investigation or prosecution of a criminal offense

Obtaining money, goods, services, or property through false statements and misleading the other party with intent to defraud is a crime.

TRUE

"Taking the Fifth" means:

refusing to testify to prevent self-incrimination.*

You subscribe to the online version of a reputable and widely distributed newspaper. You should assume that most articles by reputable sources like this one are valued over $1000. You see an article that relates to your company's marketing strategy. If you copy the article paste it into an e-mail to send to your non-subscriber co-workers, then

you have violated the No Electronic Theft Act.*

The Economic Espionage Act provides that it is a criminal offense to steal trade secrets using downloading, unauthorized access, etc.

TRUE

Which of the following is not a computer crime?

a. using computers to steal data

b. unauthorized use of computer equipment

c. alteration or destruction of computer files

d. entering fraudulent data

e. all of the above are computer crimes.

all of the above are computer crimes.

Which of the following would be the crime of obstruction of justice?

a. making a false accounting entry to thwart investigators

b. certification of financial statements

c. destroying e-mails

d. both a and c

both a and c

Commercial bribery is only criminal for the recipient

FALSE

What is not correct about the Racketeer Influenced and Corrupt Organization Act?

a. Parties must prove a pattern of racketeering activity to recover (2 violations within a 10 year period) of at least RICO crimes which include bribery, mail fraud, wire fraud, and fraud in the sale of securities.

b. Injured parties may obtain treble damages (three times the amount of damages) plus attorneys' fees and costs.

c. It can only be used to prosecute organized criminal enterprises.

d. It has criminal and civil applications.

It can only be used to prosecute organized criminal enterprises.

Martha Stewart was

not convicted of insider trading because she did not use insider information.

The Securities and Exchange Commission "SEC" reported that an unidentified whistleblower will collect a record whistleblower award of more than $30 million under the 2010 Dodd-Frank Act, which is more than twice as much as the highest previous award. A SEC spokesman stated that the award, "...could have been even bigger if the tipster had acted faster..." The fraud would have been difficult to detect without the whistleblower's report.

If the employee continues to work at the company, the company should do what to protect itself from additional punishment under the federal sentencing guidelines?

protect the whistleblower from retaliation.*

The Securities and Exchange Commission "SEC" reported that an unidentified whistleblower will collect a record whistleblower award of more than $30 million under the 2010 Dodd-Frank Act, which is more than twice as much as the highest previous award. A SEC spokesman stated that the award, "...could have been even bigger if the tipster had acted faster..." The fraud would have been difficult to detect without the whistleblower's report.

Are you required to speak to SEC investigators if you are one of the perpetrators of the fraud?

No, under the fifth amendment privilege against self-incrimination.*

The Securities and Exchange Commission "SEC" reported that an unidentified whistleblower will collect a record whistleblower award of more than $30 million under the 2010 Dodd-Frank Act, which is more than twice as much as the highest previous award. A SEC spokesman stated that the award, "...could have been even bigger if the tipster had acted faster..." The fraud would have been difficult to detect without the whistleblower's report.

Assuming that the company has notified employees that anything that they do using company computers will be monitored, will the employees who perpetrated the fraud be able to prevent the company from reviewing the computer files that the perpetrators created?

No, because there is no reasonable expectation of privacy.*

The Securities and Exchange Commission "SEC" reported that an unidentified whistleblower will collect a record whistleblower award of more than $30 million under the 2010 Dodd-Frank Act, which is more than twice as much as the highest previous award. A SEC spokesman stated that the award, "...could have been even bigger if the tipster had acted faster..." The fraud would have been difficult to detect without the whistleblower's report.

If the perpetrators of the fraud instructed coworkers to give false testimony to investigators relating to the fraud once they knew about the investigation, then the perpetrators would also responsible for

obstruction of justice.

The article about Oprah below, if untrue, constitutes defamation as long as it is published with malice or with reckless disregard for the truth.

TRUE

Truth is a complete defense to defamation.

TRUE

Opinion commentary is not defamation.

TRUE

1. A baseball fan sued ESPN, the network's announcers, Major League Baseball and the Yankees for $10 million for defamation after he was filmed sleeping in April 2014 during the fourth inning of Yankees game against the Boston Red Sox. The ESPN broadcasters described him using derogatory words, such as "stupor" and "stupid". What was a valid reason for the court to dismiss the case?

The fan was sleeping and the other statements were opinions.*

In the AMC TV drama, Better Call Saul, a client tells Attorney Saul Goodman while they are speaking alone, "I thought all lawyers were idiots." Goodman replied, "Only half of us are idiots. The other half are crooks!" Since I am a lawyer, I can sue him for defamation.

FALSE

I have committed defamation if I accuse my neighbor of setting my house on fire when we are speaking alone.

FALSE

The elements of defamation are

a. A statement about a business' or person's reputation or honesty that is untrue

b. A statement about a discernable business

c. Publication to a third party

d. All of the above.

All of the above.

In Burnett v. National Enquirer, Inc., the story in the Enquirer depicting Ms. Burnett as drunk was libel, even though a retraction was printed. The standard of malice was applied, and the evidence clearly established that the article was published with knowledge that part or all of it was not true.

TRUE

John Smith is in the sales department in a large high tech company. In a meeting for all of the sales executives in the company, his manager accused him of inflating his sales figures. What does John need to prove in order to recover?

a. That the statements were published.

b. Malice or reckless disregard for the truthfulness of the statements.

c. That John suffered damages.

d. Both a and c.*******

e. A, b, and c above.

Both a and c.

"Car dealers are crooked" is an example of actionable defamation.

FALSE

Which of the following constitutes a defamatory statement (assuming the statements are untrue)?

"He was dismissed for embezzlement from his last job."*

Letters of reference are usually exempt from liability for defamation as long as the employer verifies the truth of the statements in the reference

TRUE

False imprisonment occurs when a person is detained for any period of time against his or her will.

TRUE

Physical damages are not required for liability for false imprisonment

TRUE

The defense of shopkeeper's privilege

States that shopkeepers may detain individuals for a reasonable time.*

Best practices when invoking the shopkeeper's privilege include

a. Stopping shoplifters discreetly.

b. Yelling, "stop thief" when a suspected thief leaves the store.

c. Not using physical force unless it is in response to the shoplifter's physical force

d. a and c only.

e. None of the above.

a and c only.

Jane Mitchell, age 16, was shopping at her neighborhood Osco Drug Store. She had been looking at magazines as she waited for a friend. She decided to purchase a Tiger Beat magazine and then wait for her friend outside the store. She paid for the magazine, but as she headed for the door, the store manager used the store's loudspeaker system to announce, "You, with the green hair and the maroon Doc Marten's on. Yes, you, by the front of the store. I saw you take that magazine. Stop right there. I have a gun pointed at you." The manager's actions:

constitute defamation.*

Invasion of privacy includes

a. Intrusion into plaintiff's private affairs

b. Public disclosure of private facts

c. Appropriation of another's name for commercial advantage

d. All of the above.

All of the above.

Intentional infliction of emotional distress imposes liability for conduct that exceeds all bounds of decency.

TRUE

Asking a buyer to break its existing contracts with another supplier is contract interference.

TRUE

The tort of contract interference occurs when

a. there is a valid contract

b. the third party knew of contract

c. the plaintiff is injured

d. the third party induces one of the parties to breach the original contract.

e. all of the above.

all of the above.

A local liquor store posts the checks of customers that are returned from the bank. The store manager says the public display of the checks is a good way to deter other bad-check writers. The display of the checks is:

AN INVASION OF PRIVACY

To avoid liability for negligence, all persons are expected to behave as ordinary and reasonably prudent people under the same or similar circumstances.

TRUE

Negligence requires which of these elements:

A. breach (failure) of duty of care

B. injury

C. causation

D. all of the above

all of the above

The plaintiff must prove that both "but for" causation and "proximate cause" exists in a negligence case in order to recover.

TRUE

The "But for" test:

is a test for causation.*

In order to prove negligence

a. "but for" causation must be proven.

b. Proximate cause must be proven.

c. Both a and b.

d. None of the above.

Both a and b

If a plaintiff is found to be 15% responsible for her injuries in a comparative negligence jurisdiction, the defendant will have to pay 85% of the damages to the plaintiff

TRUE

Businesses are never liable for criminal activity on their premises

FALSE

To establish assumption of risk, the defendant must show that the plaintiff was aware of the risk and accepted it voluntarily.

TRUE

Comparative negligence reduces the plaintiff's recovery.

TRUE

Bill entered a car race knowing that there was a risk of injury or death from a crash. Bill was seriously injured in a crash. Bill sued the owner of the track alleging negligence. The track owner's best defense is:\

A. assumption of the risk

B. contributory negligence

C. intervening forces

D. all of the above

Assumption of the risk

Which of the following defenses to negligence serves as a complete bar to recovery?

CONTRIBUTORY NEGLIGENCE

Comparative negligence means

If any portion of the damages suffered by the plaintiff were caused by the plaintiff, the plaintiff's damages will be reduced by the amount of damages he caused.*

Punitive damage awards against corporations and individuals can not be limited

FALSE

Tort reform is designed to help people that are injured by increasing the amount of compensation they receive from the person that committed the tort.

FALSE

Preemption

federal usually wins over state and goes over state law.

Interstate commerce

more than 1 state involved, federal government regulates, morrison case, economic activities involved.