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130 Cards in this Set
- Front
- Back
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Statutes |
Written law enacted by the legislative branch of the federal and state govt that establishes certain courses of conduct that covered parties must adhere to |
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Preference of corporate boards Management for incorporation in Delaware Chancery court |
Delaware Chancery court is a special court that hears and decides only business litigation. This is why many corporations either form in that area or have their headquarters there, so their cases will be heard in this court |
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Choice-of-language clause |
Not in book? I think he may have meant choice of law? ASK |
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Forum-selection Clause |
A clause in a contract that designates that a certain court has jurisdiction to hear and decide a case arising out of the contract. Also known as a "choice of forum clause" |
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Choice of Law Clause |
A contract provision that designates a certain state or country's law that will be applied in any dispute concerning non-performance of the contract |
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Discovery (basic definition and limits) |
Access to/ production of documents: limited to relevance to allegations |
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4 Major types of discovery
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Deposition Interrogatories Production of Documents Physical or Mental Examination |
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Deposition |
Oral testimony given by a party or witness prior to trial. The testimony is given under oath and transcribed. |
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Interrogatories |
Written questions submitted by one party to another party. The questions must be answered within a stipulated time. |
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Production of Documents |
A request by one party to another party to produce all documents relevant to the case prior to the trial |
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Physical or Mental Examination |
A court-ordered examination of a party to a lawsuit before trial to determine the extent of the alleged injuries |
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Mediation |
A form of alternative dispute resolution in which the parties use a mediator to propose a settlement of their dispute. The mediator DOES NOT RULE on the case (unlike arbitration), simply assists both parties in coming to an acceptable settlement |
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Arbitration |
A form of alternative dispute resolution in which the parties choose an impartial third party to hear and decide the dispute. |
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Negotiation |
A procedure whereby the parties to a dispute engage in discussions and bargaining to try to reach a voluntary settlement of their dispute |
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Federal Arbitration Act (purpose) |
Congress enacted the Federal Arbitration Act to promote the arbitration of disputes. |
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Delegation Doctrine |
The Delegation doctrine is a principle limiting Congress's ability to transfer its legislative power to the executive branch. This is based on the separation-of-powers concept. Delegation is permitted only if Congress prescribes clear and adequate standards to guide an executive agency in making the policy. The delegation doctrine allows the legislature to focus on the fundamentals of a law leaving to the agencies the task of filling in the gaps by promulgating rules to administer the law. |
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state laws that "unduly burden"/ "substantial burden" on interstate commerce ` |
Dormant Commerce Clause: If there is an area the federal govt has the right to regulate, but decides not to, the state can regulate it. BUT if the regulation the state puts in place causes undue burden, it is unconstitutional. |
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supremacy clause: federal statute; administrative agency decision/ rule takes precedence over conflicting state law |
A clause of the US constitution that establishes the US constitution and federal treaties, laws, and regulations as the supreme law of the land |
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states retain "police power" to regulate much business activity within the state : |
Power that permits states and local govts to enact laws to protect or promote the public health, safety, morals, and general welfare |
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Commercial Speech: three criteria required before government can restrict commercial speech: |
1. must seek to implement substantial government interest 2. directly advances that interest 3. goes no further than necessary to accomplish its objective |
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Content of commercial speech is protected but subject to government limitations based on 3 restrictions |
1. Time 2. Place 3. Manner |
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Requirements of the offer |
1. Must objectively intend to be bound by the offer 2. The terms of the offer must be definite or reasonable certain 3. The offer must be communicated to the offeree |
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Consideration |
Something of legally sufficient value. Refraining from doing something you have a legal right to do is also a form of consideration |
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Non Compete Covenant's are lawful if they fulfill 3 aspects: |
1. The line of business 2. The geographic area 3. Time Limit |
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Statute of Frauds Definition and Types |
Statute of Frauds: contracts that must be in writing to be enforceable
1. Sale of Real Estate 2. Collateral Guaranty 3. Service Agreement for longer than 1 year 4. Others |
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Real Property Definition |
The land itself, as well as buildings, trees, soil, minerals, timber, plants, crops, fixtures, and other things permanently affixed to the land or buildings |
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Statute of Frauds Collateral Guaranty |
Guaranty Contract: A promise in which one person agrees to answer for the debts or duties of another person. |
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Writing for purposes of statute of frauds |
????? |
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Something about contracts and ambiguity? |
Not in book, not in notes, will ask him |
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Parol Evidence Definition |
Any oral or written words outside the four corners of a written contract
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Parol Evidence Rule |
A rule stating that if a written contract is the complete and final statement on the agreement, any oral or written words outside the contract (before or after it is signed) are inadmissible in court. The contract itself is the only writing that counts. |
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Assignment of Rights |
The transfer of contractual rights by an obligee to another party. The party of a contract transfers their rights to another party. |
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Intended 3rd Party Beneficiary |
A person who is neither a promisor nor promisee in a contractual agreement, but stands to benefit from the contract’s performance. A third-party beneficiary may legally enforce that contract, but only after his or her rights have already been vested. |
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Covenants |
An unconditional promise to perform. |
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Conditional Promise (also known as a qualified promise) |
Not as definite as a covenant. Duty to perform (or not to perform) arises only if the condition does or does not occur |
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Condition Precedent |
A condition that requires the occurrence or nonoccurrence of an event BEFORE a party is obligated to perform a duty under the contract. (Company offers a college student a job BEFORE she graduates. She must graduate before the company is obligated to do anything) |
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Condition Subsequent |
A condition whose occurrence or nonoccurrence of an event automatically excuses the performance of an existing duty to perform. (Can be fired if you fail a drug test. If you fail, the company can fire you) |
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Condition Concurrent |
NOT IN BOOK NOT IN NOTES |
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Material Breach of Conduct |
Performance is neither complete nor substantial. |
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Mitigation of Damages |
A nonbreaching party's legal duty to avoid or reduce damages caused by a breach of contract. The use of reasonable care and diligence in an effort to minimize or avoid injury. (If you have a contract to build a house and the owner breaks contract, you can't just sit unemployed and then sue, you must try and work, recover the money, etc) |
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Compensatory/Actual Damages |
An award of money intended to compensate a non-breaching party for the loss of the bargain. (Company hires you for 3 years at $100,000 a year, you are let go after 1 year. The company would pay $200,000 so you then get the full "benefit of the bargain") |
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Liquidated Damages Clause |
Damages that parties to a contract agree in advance should be paid if the contract is breached |
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Specific Performance |
A remedy to orders the breaching party to perform the acts promised in the contract. This usually occurs when the subject matter is unique (land, heirlooms, paintings, etc). This is an ALTERNATIVE to awarding damages. |
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License |
A contract that transfers limited rights in intellectual property and information rights. Right to USE the item, but not own it. Use of a computer program, for example. Can't sell it, but can use it. |
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Assault |
1. The threat of immediate harm or offensive contact OR 2. Any action that arouses reasonable apprehension of imminent harm. Actual physical contact is not necessary |
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Battery |
Unauthorized and harmful or offensive direct or indirect physical contact with another person that causes injury |
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False Imprisonment |
The intentional confinement or restraint of another person without authority or justification and without the person's consent. |
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Merchant Protection Statute (Shopkeeper's Privilege) DEFINITION ONLY |
Statues that allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment |
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3 elements need for Merchant Protection Statute to apply: |
1. There are REASONABLE GROUNDS for the suspicion 2. Suspects are detained for only a REASONABLE TIME. 3. Investigations are conducted in a REASONABLE MANNER. |
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Intentional Infliction of Emotional Distress (Tort of Outrage) |
A person whose extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress. (Distress must be severe, some states require illness, physical discomfort, etc. Like getting a heart attack because Volpe yelled at you) |
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Tort of Appropriation (Misappropriation of the Right to Publicity) |
An attempt by another person to appropriate a living person's name or identity for commercial purposes. (Using an actor's name or likeness without permission in an ad, i.e. Michael Jordan's recent 8.9 million lawsuit) |
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Disparagement |
False statements about a competitor's products, services, property, or business reputation. |
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Defamation Definition AND 2 requirements |
A false statement made by one person about another.
Must prove: 1. The defendant made an UNTRUE STATEMENT OF FACT about the plaintiff 2. The statement was intentionally or unintentionally published to a third party. |
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Libel |
Defamation in writing |
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Slander |
Oral defamation |
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Elements of Fraud (Misrepresentation) |
MUST HAVE ALL 4 TO BE A TRUE FRAUD 1. The wrongdoer made a false representation of material fact. 2. The wrongdoer intended to deceive the innocent party 3. The innocent party justifiably relied on the misrepresentation. 4. The innocent party was monetarily or physically injured. They lied, intended to lie, were believed, and someone got hurt because of it. |
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Duty of Professionals |
Must abide by the same standard of care that applies to others in the same profession. |
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Contributory Negligence |
A doctrine that says that a plaintiff who is partially at fault for his or her own injury cannot recover against the negligent defendant. (Jaywalker gets hit by someone who is speeding) |
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Comparative Negligence |
Also known as comparative fault. A doctrine under which damages are apportioned according to fault. (Jaywalker gets hit by speeder, jury finds the jaywalker is 20% at fault, the jaywalker can claim 80% of damages) |
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Strict Liability |
A tort doctrine that makes manucfaturers, distributors, wholesalers, retailers, and others in the chain of distribution of a defective product liable for the damages cause by the defect, REGARDLESS OF FAULT |
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Abnormally Dangerous Activity |
See: walking while drunk near the Pour House.
A category of activity for which a judge may determine is abnormally dangerous and, thus, subject to strict liability. If the activity creates a risk of serious injury to the plaintiff or his property and this risk cannot be eliminated through the exercise of due care, and the particular activity is not generally performed in that particular physical area. |
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Parties who can recover for strict liability |
Not only purchaser, no need for privity of contract, family members, guests, bystanders, etc can recover for injuries |
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4 types of defects: |
1. Manufacturing 2. Design 3. Warning 4. Packaging |
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What factors a court may consider with regards to whether there is an ALTERNATIVE design |
??? |
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Defenses to Product Liability Claims |
1. Assumption of Risk 2. Product Misuse 3. Comparative Negligence 4. Commonly Known Dangers |
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Statute of Limitations |
A statute that establishes the period duringwhich the plaintiff must bring a lawsuit against the defendant, the periodbegins FROM THE DATE OF THE INJURY |
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Statute of Repose |
A statute that limit’s the seller’s liabilityto a certain number of years; the period begins FROM THE DATE WHEN THE PRODUCT WAS FIRST SOLD |
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Forgery |
Fraudulent creation or alteration of a written document affecting legalliability of another person |
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Embezzlement |
fraudulent conversion of property by a person to whom that property wasentrusted |
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Bribery |
anything of value (money, property, favors) given to a person orbusiness for a favor in return |
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Money Laundering |
The concealment of the origins of illegally obtained money, typically by means of transfers involving foreign banks or legitimate businesses. |
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Attorney Client Priviledge |
A rule that says that a client can tell his or her lawyer anything about the case without fear that the attorney will be called as a witness against the client |
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Accountant Privilege is.... |
NOT recognized by federal laws |
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Trade Secrets |
Protection for ideas or information that is not patented, trademarked, or copywrighted. Either because it cannot be or because a choice is made to opt out of those protections. |
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Misappropriation of Trade Secrets |
The owner of a trade secret can bring a civil lawsuit under state law against anyone who has misappropriated a trade secret through unlawful means. |
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Theft of Trade Secrets |
Not in book or notes, but seems pretty obvious to me? |
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Patent Infringment |
Unauthorized use of another's patent. A patent holder may recover damages and other remedies against a patent infringer. |
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Patent Protection: What can be protected? For how long? |
Machines, processes, compositions of matter, improvements to existing forms of the above, designs for an article of manufacture, asexually reproduced plants, living material invented by a person. Utility patents are valid for 20 years, design patent are valid for 14 years. |
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Copyright Infringement: What does it entail? What are the "fair use" exceptions? |
An infringement occurs when a party copies a substantial and material part of a plaintiff's copyrighted work without permission. A copyright holder may recover damages and other remedies. |
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Fair Use Exceptions |
1. Quotation of a copyrighted work for review or criticism in a scholarly or technical work 2. Use in a parody or satire 3. Brief quotation in a news report 4. Reproduction by a teacher or student of a small part of the work to illustrate the lesson 5. Incidental reproduction in a newsreel or broadcast 6. Reproduction in a legislative or judicial setting |
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Copyright Protection What can be protected? For how long? |
Registration is not necessary to get protection. Only tangible writings can be protected. Individual's are granted copyright protection for their lifetime plus 70 years Companies are protected for the shorter of either: 1. 120 years from creation or 2. 95 years from first publication |
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Trademark Infringement |
Unauthorized use of another's mark. The holder may receive damages and other remedies from the infringer. |
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Trademark Protection What can be protected? For how long? |
Any trade name, symbol, word, logo, design, or device used to identify and distinguish goods or services of a manufacturer, seller, etc. The registration is valid for 10 years and can be renewed for additional ten years periods as many times as needed. |
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Employee as Agent |
? |
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Independent Contractor |
Principals often employ outsiders (persons or businesses that are not employees) to perform tasks on their behalf. Independent contractors operate their own business or profession. |
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Difference between an employee and independent contractor
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If employer can exercise considerable control over the details of the work, this indicates employee status REGARDLESS OF WHAT THE EMPLOYER AND CONTRACTOR AGREE ON. Even if BOTH parties state that the person is not an employee, that doesn't make it true. |
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Agent's ability to bind principal to a contract |
?? Depends on the situation? See chart on page 407 |
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Agent's duties |
Duty of loyalty Duty of performance Duty of notification Duty of accounting |
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Duty of Loyalty |
Agent owes a fiduciary duty not to act adversely to the interests of the principal |
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Duty of Performance |
An agent's duty to the principal that includes 1. Performing the lawful duties expressed in the contract 2. Meeting the standards of reasonable care, skill, and diligence implicit in all contracts. |
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Duty of Notification |
An agent owes a duty to notify the principal of important information concerning the agency. Imputed knowledge: information that is learned by an agent that is attributed to the principal. (If you find out something, it is assumed your boss knows the same information, whether or not you told her) |
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Duty of Accounting |
A duty that an agent owes to maintain an accurate accounting of all transactions undertaken on the principal's behalf |
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Agent's actual (express or implied) authority |
Express agency: the most common form, an agency that occurs when a principal and an agent expressly agree to enter into an agency agreement with each other. Implied agency: The agency is implied from the conduct of the parties. |
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Respondeat Superior |
An employer is liable for the tortious conduct of its employees or agents while they are acting within the scope of the employer's authority ("Let the master answer") Agent is also liable for the tort |
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Equal Employment Opportunity Commission EEOC |
Must first file discrimination claim with EEOC |
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Disparate-treatment Intentional Discrimination |
Applied in hiring and employment. Occurs when an employer treats an INDIVIDUAL less favorably than others because of that person's race, religion, etc |
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Disparate impact |
A form of discrimiatnio when an employer discriminates against an ENTIRE PROTECTED CLASS. Can be proven using statistics alone. |
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What needs to be shown to prove disparate impact? |
The plaintiff must demonstrate a CAUSAL LINK between the challenged practice and the statistical imbalance. (All applications must be above 5'10, discriminates against women because men are more likely to meet that requirement) |
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Title 7: Bona fide occupational qualification defense |
Must be both JOB RELATED and A BUSINESS NECESSITY. (Allowing only women to be locker room attendants at a women's only gym) |
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Worker's Compensation Law When is an employee entitled to compensation? |
When workers are injured in connection with their jobs. |
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Family Medical Leave Act (FMLA) How many employees required? Extent of coverage Purposes and time |
Need 50 or more employees 12 weeks of unpaid leave 1. Birth of child 2. Placement of a child with an employee for adoption or foster care 3. Employee has serious health condition 4. Care for a spouse, child, or parent with serious health condition |
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Sole Proprietorship |
Unlimited personal liability of owner |
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Partnership Agreements |
Can be written or oral Express or implied |
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Partnership taxation |
No taxation at partnership entity level, partners pay tax on their individual tax returns
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Limited Partnerships |
Must have at least one general partner and one limited partner |
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Limited Liability Companies |
Members liable for debts up to the amount of their capital contribution Cannot go after their PERSONAL assets Taxed as a partnership unless elect otherwise |
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Franchising: Business organization of the franchisee |
Franchisor may specify particular requirements for quality control, training, and other requirements to be met by the franchisee |
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Joint Ventures Nature & Use |
An arrangement in which two or more business entities combine their resources to pursue a single project or transaction. Used to focus on a single project or transaction, not ongoing business. |
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Licensing |
Right to use specific intellectual property |
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Domestic Corporation |
Corporation is a domestic corporation in the state in which it is incorporated |
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Foreign Corporation |
All other states OTHER than the one in which is is incorporated |
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Alien Corporation |
Corporation that is incorporated in another country |
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Public Corporation |
A corporation that has many shareholders and whose securities are often traded on national stock exchange |
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Private Corporation |
Formed to conduct privately owned business; owned by private parties, not by the government |
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Close Corporation |
A corporation owned by one or a few shareholders (privately held corporation) |
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Publicly-held corporation |
? Same as public? See page 353 |
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S Corporations Qualifications for filing for S corporation status with the IRS |
1. Domestic corporation 2. Only one class of stock 3. No shareholder may be a nonresident alien 4. Must have 100 or fewer shareholders |
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Who elects directors? |
Shareholders |
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Director's duty of care |
A duty of corporate directors and officers to use care and diligence when acting on behalf of the corporation |
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Director's duty of loyalty |
A duty that directors and officers have not to act adversely to the interest of the corporation and to subordinate their personal interest to those of the corporation and its shareholders |
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Shareholder's powers: |
Must approve fundamental corporate changes like amending the articles of incorporation |
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Shareholder's rights: |
A privilege extended to select shareholders of a corporation that will give them the right to purchase additional shares in the company before the general public has the opportunity in the event there is a seasoned offering. |
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Corporation's first right of refusal to buy shares |
? |
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Shareholder's derivative suit |
? Pulled the answer from google: A shareholder derivative suit is a lawsuit brought by a shareholder on behalf of a corporation against a third party. Often, the third party is an insider of the corporation, such as an executive officer or director |
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Tender Offer |
An offer to purchase some or all of shareholders' shares in a corporation. The price offered is usually at a premium to the market price. |
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Do companies need to comply with federal or state filing requirements when offering securities? |
BOTH |
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Registration statement |
A document that an issuer of securities files with the SEC and that contains required information about the issuer, the securities to be issued, and other relevant information |
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Prospectus |
Must be provided to investors before the firm sells its securities to the public. It is a written disclosure document that must be submitted to the SEC along with the registration statement |
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Insider trading: Who is an insider? |
Any company employee or company advisor |
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Insider information |
Does not include information that is already available to the public before the purchase of the sale of the securities in the company. |
