Business Law 3

2 required elements in a Crime

1. Criminal Intent

2. Criminal Act

Criminal Intent

Intentional and knowing, willful act

Felonies vs. Misdemeanors

Felonies are crimes punished by more than a year; Misdemeanor is punished by less than a year

Felony and Misdemeanor Procedure

Guilty vs. Not Guilty vs. No Contest

Guilty: Admitting you did and all charges come, not defending self

Not Guilty: defending self

No Contest: Not defending self, but not admitting it; usually for defending self later in civil court

4th Amendment

Need Probable Cause for a warrant and a search

Exceptions where police do not need a warrant

1. Consent to a search

2. Evidence likely to be destroyed

3. No actual reasonable expectation of privacy

4. Car w/ Probable Cause

5. Person following arrest

Two protections under the 5th amendment

1. Self Incrimination; don’t have to answer polices questions

2. Double Jeopardy; cannot be tried for the same crime twice

6th Amendment’s 6 protections

1. right to a speedy and public trial

2. right to a trial by jury'

3. right to be informed of the charges against you

4. right to confront your accuser

5. right to subpoena witnesses in your favor'

6. right to counsel

Business related crimes

• Fraud

• Obstruction of Justice

• Insider trading

• Foreign Corrupt Practices Act (FCPA)

• Racketeer Influenced and Corrupt Organizations Act (RICO)

• Endangering Workers

3 requirements for fraud

1. A false statement

2. Made regarding a material fact; important

3. With intent to defraud

non-employees cannot trade if?

1. they learn the information from someone with a duty to keep it confidential, AND

2. They provide a benefit for exchange of the information

Foreign Corrupt Practices Act (FCPA)

It is illegal to offer or give anything of value to foreign officials to influence official government action

Racketeer Influence and Corrupt Organizations Act (RICO)

Allow government to seize property belonging to an organization in a pattern of racketeering

• Pattern: two or more predicate acts in a 10 year period

Associated Crimes

• Conspiracy

• Aiding and Abetting/Accessory

4 requirements of a conspiracy

1. plan or agreement

2. the defendant willfully joined the conspiracy

3. one of the co-conspirators knowingly committed an overt act

4. the overt act was committed in order to accomplish an objective of the conspiracy

Intentional Torts

• Assault

• Battery

• Intention Infliction of Emotional Distress (IIED)

• Invasion of Privacy

• False Imprisonment

• Fraud

• Defamation

• Injurious Falsehood

• Intentional Interference with Contractual Relations

eggshell skull rule

If there is an intent to an action but an unintended outcome that results from that action, they are responsible for that outcome

Assault

Placing another in immediate apprehension for his/her physical safety

Battery

Touching another without justification or consent

Intentional Infliction of Emotional Distress (IIED)

Outrageous, intentional conduct carrying a strong likelihood of causing mental distress

3 types of Invasions of Privacy

1. Misappropriation of a persons name or likeness

2. Intrusion upon a persons physical solitude

3. Public disclosure of highly objectionable, private information

False Imprisonment

Intentional, unjustified confinement of a nonconsenting person

Fraud

Intentional misrepresentation of a material fact that is justifiably relied on by someone, causing an injury

Defamation

Publication of untrue statements about another, leading to damage the persons character or reputation

2 defenses for Defamation

1. Truth

2. Public Figure/Public Official

Injurious Falsehood

Untrue statements disparaging the quality or safety of a competing businesses products or services

Intentional Interference with Contractual Relations

Wrongfully inducing someone to break a valid contract with a 3rd party

Negligence requirements

• Duty of Care: have a responsibility to something; Business customer or employee, doctor, landowner, driver

• Breach of Duty: failed to use reasonable care

• Causation in Fact: injury was because of the negligence

• Proximate Causation: Reasonable Forseeablility

• Injury: some harm has to happen

Defenses for Negligence

• Contributory/Comparative Negligence

• Assumption of Risk

Strict Products Liability

the seller, manufacturer, or supplier is automatically legally responsible for any injury caused by a defective product

Types of Defects

• Production Defect

• Design Defect

• Marketing Defect, Failure to warm

Defenses for Strict Products Liability

• Assumption of Risk

• Misuse

  • Contributory Negligence

3 Requirements for Abnormally Dangerous Activities

1. Activity involves high degree of risk of serious harm

2. the risk cannot be completely guarded against through the exercise of reasonable care

3. the activity is not one commonly performed in that area

2 ways one can Assume Risk

1. Implied by the circumstance

2. By agreement

Contributory vs Comparative Negligence

Contributory: The plaintiff is also to blame for acting negligent

Comparative: What % of the blame falls on the victim and what % falls on the defendant; each side is responsible for their share of the blame

Types of Tort Damages

• Compensatory

• Punitive

Compensatory vs. Punitive Damages

Compensatory: Compensate the plaintiff monetarily for the injuries they received

Punitive Damages: Punish the defendant to deter future wrongdoing of similar nature

• Typically applies to intentional torts or willful and wanton negligence

5 Factors to consider for Business Organizations

1. Ease of Creation

2. Managerial Control

3. Continuity

4. Liability

5. Taxation

What to file when asserting managerial control in a partnership

Partnership Agreement

What to file and where to create a corp

Articles of incorporation; state government

3 levels of descending management for a corp

• Shareholders

• Board of Directors

• Officers

Fiduciary Duty 2 requirements

Duty of Care; Duty of Loyalty

Requirements for defense of violation of Fiduciary Duty

• Decision was made in good faith

• Reasonable care

• With the corporations best interest in mind

Requirements for “piercing the corp veil”

• Some sort of unity of interest; using corp assets as own

• Some type of fraud

2 difference between limited and traditional partnership

1. register with the gov

2. has to have two types of partners

   • General: manage business

   • Limited: provide capital