b-law test 2

intentional tort

mental state; the time the person committed the act; may not intend harm but intended the act

unintentional tort (negligence)

accidents; ex: car accidents, medical malpractice

assault

threats; causing imminent fear that something bad is about to happen (whether or not its real; the moment it happens)

battery

unwanted touch from another individual; contact to your body

false imprisonment

where someone is deprived of their freedom; disallowed from leaving a location

kidnapping

shopkeepers’ privilege

if you suspect someone is stealing from your store, then you can stop them and inquire whether they stole or not (for retail stores)

defamation

protecting the interests of someone else’s reputation; you can’t lie about people and cause them harm

has to be untrue/false statement of fact (not opinion)

published/conveyed to a third partyk

actual malice

knowing the statement you made is false

disparagement

businesses

false statements about a competitor’s product, services, property, or businesses reputation

intentional misrepresentation (fraud)

similar to criminal fraud

when one person consciously decides to include another person to reply and act on

intentional infliction of emotional distress

tort of outrage; a person whose actions were so extreme and outrageous conduct intentionally or recklessly causes severe emotion distress to another person

misappropriation of the right to publicity

we have the right to control our own image and make money of it

an attempt by a person to appropriate another persons name or identity for commercial purposes

invasion of privacy

obtaining information in a way tat disrespects someone’s right to private space

in your home, work, computer, etc,

necessary elements to assert a negligence claim

duty of care to plaintiff

breached duty of care

causation; actual and legal

foreseeable

economic damages (compensatory)

medical, property damages, lost wages

non-economic damages

pain and suffering, loss of consortium (lost time with the person)

professional malpractice

professionals have a duty of ordinary care in providing services, based on a “reasonable professional standard“

negligence per se

if the defendant violated a statute, the plaintiff foes not have to prove duty of breach; plaintiff must still prove the statute was violated and causation and damages

violates a law

res ipsa loquitur

“the thing speaks for itself” presumption of negligence shifts to the defendant when defendant had exclusive control g

gross negligence

willful misconduct or reckless behavior; defendant knew what they were doing was wrong

attractive nuisance doctrine

if you have something on your property that would attract a child to play with it you have a duty to protect that child

Good Samaritan law

protect those who stop and render emergency aid to someone in need

cannot act grossly neglect or engage in intentionally reckless conduct

superseding

occurs after an original party’s act. cause is a complete defense to liability of the original actor

assumption of the risk

plaintiff knew the risk and assumed that risk

sports related

comparative negligence

when the jury finds how much the plaintiff was at fault

damages calculation- % of plaintiff faults=awarded amount

strict liability

imposes liability without fault

if you are participating in an activity that is highly dangerous and an accident occurs you are automatically liable

administrative law

created by the executive branch

appealable

ordered from the ALJ

first appeal- administrative agency (panel/commission)

second appeal- trial court (federal or state)

administrative agencies

agencies that the legislative and executive branches of federal and state government establish

can perform all three branches of government

authority to police and implement their own laws

cabinet-level departments

appointed by the president

reports directly to the president

president will nominate a secretary and they are voted on by the senate

which levels of government have authority to create Administrative agencies

federal, state, and local governments

administrative procedures act

can control all three branches of government

agencies must follow regulations set by the APA

if agency fails to follow and lawsuit is able to be made

administrative law judge

official who presides over formal hearings and resolves disputes between agencies and individuals ; decides issues of facts and law; issues administrative orders

delegation doctrine

agencies granted executive powers

agencies have the right to investigate an individual who they suspect might do harm to the public or to employees

4th amendment

protection from unreasonable searches and seizures; investigations and searches must be “reasonable”

consent, warrant, emeergency, special industry, hazardous industry

procedural due process

requires government officials to follow fair, established procedures before depriving any person of life, liberty, or property

adjudicatory

describes something relating to the legal process of judging a dispute, making a official decision, or having the power to settle a case

judicial authority

serves a complaint to the defendant

must give a timely notice of the allegations

freedom of information act

law the requires transparency by our government

all states have their own law regarding it

appealable

government in the sunshine act

meetings, such as court hearings, should be open to the public

somethings are allowed to stay private but they have to have good reasons

equal access to justice act

a federal statute that protects persons from harassment by federal administrative agencies and provides monetary penalties

privacy act

if a government organization is maintaining private information about an American citizen they must have a good reason to be doing so

must keep it safe

must be correct

individual must have access to the information

antitrust law

laws enacted to limit anticompetitive behavior in almost all behavior

promotes competition

federal, state, competitors, and injured parties may file actions (lawsuit)

remedies available in antitrust lawsuits

sherman antitrust act section 1

prohibits collusion by two or more firms restraining trade

restricting competition or hindering trade

price fixing

restraint of trade that occurs when competitors in the same line of business agree to set the price of goods or services they sell so that they are not in competition with each other but still competing with other businesses

horizontal

division of markets

competitors can’t agree on division of costumers and geographical markets

horizontal

group boycotts

restraint on trade which two or more competitors at one level of distribution agree not to deal with others at another level of distribution

requires collusion

horizontal

resale price maintenance

suppliers set the price where retailers or distributors must sell their products

vertical

horizontal selling/restraints

big companies (retailers)

target, Walmart, etc.

vertical selling/restraint

suppliers

relevant markert

overlap of the two merging companies

product/service and geographical

look at it narrowly

monopoly power

70% or more of a market is controlled by one company

willful act of monopolizing

looking for some sort of act that would prohibit competition from being able to work withwh

plaintiff must prove what in order to win a monopolization lawsuit

relevant market , monopoly power, willful act of monopolization

defenses to monopolization lawsuit

monopoly power is legal when the power was obtained innocently

elects a plaintiff must prove to stop a proposed merger

line of commerce (product/service)- functional interchangeability test (are products/services substitutes)

section of the country

probability of substantial lessening of competition or likelihood or creating a monopoly

horizontal merger

between 2 or more companies that compete in the same business and geographical area

vertical merger

between business that integrates the operations of a supplier and a customer

market extension

conglomerate

serction 7 lawsuits

intellectual property

patents, copyrights, trademarks, and trade secrets. federal and state laws protect intellectual property rights from misappropriation and infringement

trade secret

a product formula, pattern, design, compilation of data, customer list, or other business secret

patents

inventions; design patterns (the way a product looks)

grants legal monopoly, holders may sue for infringers

copyrights

legal right that gives the author of qualifying subject matter, and who meets other requirements established by copyright law, the exclusive right to publish, produce, sell, license, and distribute work

trademarks

any name, symbol, work, logo, design, or device used to identify and distinguish goods of a manufacture or seller of a provider

can’t be copyrighted

remedies in a trade secret lawsuit

wrongful profits, damages to plaintiff, injunction (court order to stop) prohibiting defendant from using trade secret

misappropriation

theft

reverse engineering

taking apart and examining a rival’s product or re-creating a secret recipe

dupes

requirements for obtaining patent

novel, useful, non-obvious

patent application process

provisional application, patent application, third parties may challenge patent, grant or denial of patent, may appeal decision to patent trial and appeal board, may appeal decision to US court of appeals, may appeal to US supreme court

utility patent period

20 years

design patent period

15 years

individual copyright duration

life +70 years

business copyright duration

120 years from the date of creation or 95 years from initial publication

copyright examples

song, book, choreography, visual art, movies

how can you sue someone for copyright violation

must be registered with US copyright office to have the right to sue

remedies available: monetary damages, destruction of infringing items, injunctions

fair use doctrine

purpose and character of use- education or for profit?

nature of the copyrighted work- factual or fictional works?

amounts of the portion used- small or all of the work

effect of the use on the market- are sales affected?

examples of trademarks

words, phrases, logos, designs, non-traditional elements like colors or sounds

trademark infringment

unauthorized use of another’s mark

you want to avoid CONFUSION IN THE MARKET and avoid DILUTION of your product

duration of a trademark

10 years initially

can be lost if mark is not used or if it becomes generic

qualifying for federal trademark protection

distinctive

secondary meaning

arbitrary

actual words that have no association with the underlying good or service

fanciful

a word or symbol invented or created for use as a trademark

ex: nike swoosh

secondary meaning

ordinary words or symbols that have taken on a secondary meaning

ex: McDonalds, Michael jordan

feral trademarks dilution act

forbids use of a very famous mark in a different category

prevents diluting, blurring, tarnishing, eroding value of very famous mark

plaintiff must prove Mark is famous, Use by the other party is commercial, Other party causes likelihood of dilution