Blaw exam 2

Torts

Wrongful acts between private parties where the injured party seeks monetary compensation from the party that caused the injury

Intentional Torts

Intended to commit the act that caused the harm

Legal Requirements for Intentional Torts

Intent to act + Damages

Transferred Intent

Intentional act that sets off a “chain reaction” and causes an indirect harm, can also be an intentional tort

Assault

Intentional threat of immediate conduct that will be harmful or offensive (reasonable person standard)

Ex: point a gun, finger across neck, fake punch

Battery

Intentional contact with a person, or their attached belongings, that is harmful or offensive

Ex: shoot a rubber band in face, slap, kick umbrella someone’s holding, push finger into someone’s chest

False Imprisonment

Intentional confinement or restraint without justification

Restraints: physical barriers, physical restraint, threats of immediate physical force

Shoplifting Rule

privilege to detain shoplifter: reasonable manner + reasonable duration

IIED

Intentional extreme and outrageous conduct that causes emotional distress

Defamation

Intentionally making false statements of fact that harm a person’s reputation

Libel

written defamation (general damages)

Slander

spoken defamation (special damages)

Mckee v. Laurion

Defamation

Public Figure Exception

If target of defamatory statement is a “pubic figure” they must prove actual malice

Fraudulent Misrepresentation (Fraud)

Intentional use of deceit for personal gain

Wrongful Interference with a Contract

Intentional interference with a valid contract

Wrongful Interference with a Business Opportunity

Intentional predatory behavior to steal customers or clients

Negligence

__Accidental__ harm that results in damages, where the plaintiff seeks economic compensation from the defendant who caused the harm

Accident where these 5 elements are present

1. Duty
2. Breach
3. Cause in fact
4. Proximate Cause


1. __Cyr v. Adamar Assoc.__
5. Damages

Duty

We owe society a duty to behave with reasonable care

Reasonable Person Standard

__Weirum v. RKO__

Business Owner Duty of Care

Business owners have duty to discover and remove hidden dangers

Heightened Duty of Care

Certain professionals have to be more careful than others

Lessened Duty of Care: Assumption of Risk

__Taylor v. Baseball Club of Seattle__

Proximate Cause

Cyr v. Adamar Assoc

Defenses to Intentional Torts

Dicipline + Necessity + Duress + Consent

Consent Case (Defense to Intentional Torts)

Lugenbuhl v. Dowling

Defenses to Negligence

1. Failure to meet burden of proof
2. Comparative Negligence
3. Contributory Negligence

Type of Damages

Compensatory Damages

Punitive Damages

Ford v. Stubblefield

Punitive Damages

Special Tort Doctrines

1. Res Ipsa Loquitur (things speak for itself)
2. Good Samaritan Laws
3. Social host/Dram shop laws (sells alcohol)
4. Strict Liability (inherently dangerous)

Crime

Life, Liberty, Property

Burden of proof (guilty beyond reasonable doubt, 99%)

Elements of Crime

1. Actus Reus (bad act)
2. Mens Rea (guilty mind)

Ex: actus reus: killing, mens rea: the thought beforhand

Crimes that DO NOT require Criminal Intent

1. Criminal Recklessness: aggravated manslaughter


2. Criminal Negligence: involuntary manslaughter
3. Strict Liability: statutory offense/rape

Categories of Crime

1. Violent Crimes
2. Property Crimes
3. Public Order crimes (victimless crimes)
4. White-collar crimes
5. Corporate Crime

Felony

a crime that has potential punishment over a year

Misdemeanor

a crime that has a potential punishment of a year or fewer

Violent Crime

Crimes that involve violence or the threat of violence against another person

Ex: murder, rape, robbery, assault

Property Crime

Crimes that involve the unauthorized taking or use of property

ex: burglary, forgery, theft by fraud

Wisconsin v. Steffes

Theft by fraud (property crime)

Public Order Crime

Victimless crimes, or acts that violate public morals but harm nobody or only harm the person who committed the act

ex: public drunkenness, gambling, narcotics, prostitution

White-Collar Crime

Embezzlement: fraudulent or wrongful taking of an employers or clients money

Mail Fraud & Wire Fraud: using the mails or wire with the intent of profiting via decit or trickery

Wire: email, phone, internet

People v. Sisuphan

Embezzlement

Corporate Crime

Fictional persons inhabited by real/national persons

GM Ignition switches: too corporate

Deferred prosecution agreement

Racketeer Influenced & Corrupt Organizations Act (RICO)

RICO (Racketeer Influenced & Corrupt Organizations Act)

1. Any person
2. participates in a “criminal enterprise”
3. By committing 2 or more offenses
4. Over a 10 year period

Punishment: 20 years in jail, disgorge all profits

Criminal Defenses

1. Failure to meet Burden of Proof
2. Self-Defense
3. Insanity
4. Necessity
5. Duress
6. Statue of Limitations
7. Mistake of Fact
8. Entrapment

Miranda v. AZ

5th and 6th Amendment: Right to be told our constitutional rights

8th amendment

excessive bail + no cruel & unusual punishment

Search and Seizure Protections (4th Amendment)

Probable Cause + Warrant + Specificity

Exceptions to search and seizure protections (4th amend)

1. consent
2. hot pursuit
3. search incident to a lawful arrest
4. plain view
5. automobile exception
6. stop & frisk
7. comestic terrorism

US v. Ross

Automobile exception

Terry v. Ohio

Stop & Frisk

Exclusionary Rule/Tainted Fruit Doctrine

Gov can’t use illegally found evidence

Trademark

Distinctive word, symbol, sound, or design that identifies source of goods

Creation: valid upon use + valid forever (so long as you use it)

Policy: prevent consumer brand confusion

Trademark brand confusion

Coca-Cola v. Koke of America

Distinctiveness

1. Fanciful
2. Arbitrary
3. Suggestive
4. Descriptive
5. Generic

USPTO

“R” listed on national registry, 10 years

Brothers Records v. Jardine

Lanham Act: trademark infringement

Starbucks v. Lundberg

TM Dilution Revision Act

famous TM + dilutes distinctiveness + creates false association + harms famous marks reputation

Counterfeiting

Purposeful + unauthorized + intentional use ot create customer confusion

2 mil fine, 10 years, profits, destruction

TM Subcategories

1. Service Mark
2. Certification Marks
3. Trade Dress
4. __Product shape__

Patent

An inventors right to protect their invention from reverse engineering

Inventor: exclusive rights + use/market/sell = 20 years + public domain

USPO

Application of Patentability

patentability

useful + novel + non-obvious

Barnes and Noble v. Amazon

non-obvious (patentability)

Infringement

when somebody (without authorization) makes, uses, or sells something that is already patented

Accidental Infringement

injunction + damages + attorney’s fees + destruction

Willfull Infringement

injunction + treble damages attorney’s fees + destruction

Trade Secret

information that a business keeps confidential because it has commercial value

NDA + Compartmentalize

Copyright

author + artistic creation = copy + distribute + derive

Artistic Creation

Literature + musical compositions + sound recordings + architecture works/blueprints + films + choreography + tangible art + thoughtfully arranged fact compliations

Copyright Formation

forms upon creation

Duration

life of author + 70 years

Infringement cases

Inhale inc. v. Starbuzz Tobacco

MGM v. Grokster (copyright)

Copyright Infringement Remedies

injunction + actual damages + statutory damages (150k)

Willful Infringement (Piracy)

250k + 5 years in jail

Fair Use: Copyright Defenses (6)

1. criticism
2. teaching tool
3. news
4. scholarship
5. social satire
6. parody

International Intellectual Property

1. TRIPS Agreement (failure)
2. __Madrid Protocol__ = US TM Law
3. Anti-Counterfeiting Trade Agreement (failure)
4. Berne Convention (copyright)


1. __Golon v. Holder__

Golon v. Holder

Berne Convention

Sark v. Quality Truck/Car Leasing, Inc.

Sole Proprietorship case: Unlimited personal liability

Sole Proprietorship

Pros: total control + pass-through tax

Cons: raise capital + complete/unlimited personal liability

Franchise

Owner of intellectual property + “integrated business system” (IBS) owner

Integrated Business System

Supply chain + marketing + distribution + goodwill

Good faith Franchise contracts case

Holiday Inn v. Hotel Associations

Partnership

__No written documents required__

Characteristics: profit/loss sharing + pass-through taxation + joint owner/mgmt + __joint & several liability__

Best Practices: Articles of Partnership

Power, but not always the right to dissociate

Fiduciary Duties (2)

Duty of Loyalty

Duty of Care

Limited Partnership (LP)

General Partner

Limited partner (silent): share in profit/losses + no mgmt + no joint & several (J&S) liability

Limited Liability Partnership (LLP)

Each partner is on the hook, but not J&S liability

Limited Liability Company

complete limited liability

formation: articles of organizations

governance: operating agreement (member vs manager managed, pass through taxation, dissociation (power vs. right)

Dissociation (power vs. right) case

Mckonen v. Zewden

Closely Held Corporation

Limited number of shareholders + no publicly traded securities

Formation of Closely Held Corporations

Incorporator + Articles of Incorporation + Fee + Franchise Tax

Governance of Closely Held Corporations

Bylaws: Voting + Quorum + Meetings

Management of Closely Held Corporations

Shareholders (owns) + Board of Directors (policy) + Officers (day-to-day mgmt)

Pro’s/Con’s of Closely Held Corporations

Pros: Limited Liability + Corporate Personhood + Raise Capitol

Cons: Double Taxation + Formalities

Alter ego doctrine/ Veil Piercings case

Dog House Investments v. Teal Properties, Inc.

Public Corporation

Shareholders + Board of Directors + Officers

Shareholders (own)

Vote directors + vote mergers/asset sale + vote bylaws + examine records + attend/proposal annual meetings + sell shares

Board of Directors (policy)

10 days + appoint/compensate officers