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Business Law I > Quiz 2 > Flashcards

Quiz 2 Flashcards

1
Q

Alternative Dispute Resolution options

A
  • Negotiation
  • Mediation
  • Arbitration
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2
Q

Mediation

A
  • Parties must freely and voluntarily agree
  • Some courts require mediation. In the United States District Court for the Western District of New York, early mediation is compulsory
  • With most mediations, the parties agree that nothing exchanged at the mediation will be used against the adversary in the litigation if the mediation does not resolve the case
  • The parties may agree to resume mediation or the court may require it at some later date
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3
Q

Arbitration

A
  • The requirement to arbitrate (as opposed to litigation) is increasingly being utilized in business and commercial transactions
  • The Courts favor resort to arbitration
  • In general, the procedures are more streamlined than in a civil action
  • Businesses prefer arbitration, particularly if the forum is an industry-based tribunal
  • The parties pay the fees of the arbitrator
  • Rules of evidence not usually followed
  • No appeals
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4
Q

Criminal Law Criminal Procedure

A
  • The right to fair notice
  • Jurisdiction/ Duress
  • Entrapment
  • Conspiracy/ accomplice/ Felony Murder
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5
Q

Criminal Law Criminal Procedure The Fourth Amendment

A
  • As a general rule, the police must obtain a warrant before conducting a search
  • Probable cause required
  • Warrant must specify the place to be searched and the item to be seized
  • Informants must be objectively reliable
  • Under some circumstance, a search can be conducted without a warrant
  • Plain View
  • Stop and Frisk
  • Exigent Circumstances
  • Lawful arrest
  • Consent to search
  • Exclusionary Rule
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6
Q

The Exclusionary Rule

A
  • Must the criminal go free because the constable has blundered?
  • Is it an evidentiary rule designed to discourage illegal searches and seizures
  • Opponents of the rule argue that it results in the exclusion of otherwise probative and admissible evidence of the crime
  • Supporters contend that it is the only effective way of keeping police from attempting illegal searches
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7
Q

The Exclusionary Rule Exemptions:

A
  1. Inevitable discovery
  2. Independent Source
  3. Good Faith Exception
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8
Q

Criminal Law Criminal Procedures
The Fifth Amendment

A
  • Due Process
  • No Self-Incrimination
  • Miranda Warnings
  • Brady Material
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9
Q

Criminal Law Criminal Procedures The Sixth Amendment

A
  • The Right to Counsel
  • Gideon v. Wainwright
    372 U.S. 335 (1963)
    “In all criminal prosecutions, the accused shall enjoy the right… to have the assistance of counsel for his defense”
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10
Q

Criminal Law Substantive Law Crimes which affect Business

A
  • Larceny
  • Embezzlement
  • Fraud
  • Wire and mail fraud
  • Insurance fraud
  • Internet fraud
  • Identity theft
  • Extortion
  • Arson
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11
Q

Criminal Law Substantive Law Crimes committed by Businesses

A
  • Environmental crimes
  • Workplace crimes
  • Money Laundering
  • Human Trafficking
  • Making False statements
  • RICO (Racketeer Influenced and Corrupt Organizations Act)
  • Foreign Corrupt Practices Act
  • Securities Violations
  • Tax Fraud
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12
Q

Intentional Torts

A
  • Defamation
  • Assault & Battery
  • Trespass
  • Conversion
  • Fraud
  • Intentional Infliction of Emotional Harm
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13
Q

Defamation elements

A
  • False statement of fact
  • Of or concerning the Plaintiff
  • Disseminated to a third party
  • Injury or damages (with some exceptions)
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14
Q

Defamation

A
  • Privilege
  • Absolute Privilege
  • Qualified Privilege
  • Burden on the Plaintiff varies depending on the status of the Plaintiff and the subject matter of the defamatory statement.
  • Politicians & Elected Officials
  • Public Figures
  • Celebrities
  • Private Parties
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15
Q

Business Torts

A
  • Tortious interference with a contract
  • Tortious interference with a prospective advantage
  • False advertising
  • Breach of fiduciary duty
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16
Q

How is the obligation created for a contract?

A

The parties agree on a contract, which created duties for both

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17
Q

How is the obligation enforced for a contract?

A

Suit by plaintiff

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18
Q

Possible result of a contract

A

Money damages for plaintiff

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19
Q

Example of a contract

A

Paul contracts to sell John 5,000 pairs of sneakers at $50 per pair, but fails to deliver them. John buys the sneakers elsewhere for $60 per pair and receives $50,000, his extra expense

20
Q

How is the obligation created for a tort?

A

The civil law imposes duties of conduct on all persons

21
Q

How is the obligation enforced for a tort?

A

Suit by plaintiff

22
Q

Possible result of a tort

A

Money damages for plaintiff

23
Q

Example of a tort

A

A newspaper falsely accuses a private citizen of being an alcoholic. The Plaintiff sues and wins money damages to compensate for her injured reputation

24
Q

How is the obligation created for criminal law?

A

The criminal law prohibits certain conduct

25
Q

How is the obligation enforced for criminal law?

A

Prosecution by government

26
Q

Possible result of criminal law

A

Punishment for Defendant, including prison and or fine

27
Q

Example of criminal law

A

Leo steals Kelly’s car. The government prosecutes Leo for grand theft, and the Judge sentences him to two years in prison. Kelly gets nothing

28
Q

New York Times v. Sullivan 376 U.S. 254 (1964)

A
  • “We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.”
  • Malice needs to be proven when a public official sues for defamation, not just falsity
29
Q

Defamation Public Figures

A

Three years after New York Times v. Sullivan, the Supreme Court extended the constitutional privilege to defamatory criticism of public figures- in this case the Coach of the University of Georgia football team.
At the same time the Supreme Court decided Butts, it also decided
Associated Press v. Walker, 388 U.S. 130 (1967). In that case constitutional protection was extended to include matters of public or general interest. In that case, the allegedly defamatory statements involved federal efforts to enforce a court decree ordering the admission of black students at the University of Mississippi.
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)

30
Q

Defamation Elements: False Statement of Fact

A

“What is defamatory “depends, among other things, upon the temper of the times, the current of contemporary public opinion, with the result that words, harmless in one age, in one community nay be highly damaging to reputation at another time or in a different place.”
Mencher v. Chesley, 297 N.Y. 2d 94, 100 (1947).
* Must be plead with particularity
* “In an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their action to Plaintiff may be stated generally.” CPLR 3016(a).

31
Q

Defamation Of or concerning the Plaintiff

A

The Plaintiff must prove that the statement referred to him or her, that is, the Plaintiff must prove that the statement was communicated to third persons who reasonably would have understood the statement refer to the Plaintiff.

32
Q

Defamatory statements…

A

must be communicated to a third party

33
Q

Defamation Compensatory Damages

A

Slander per se. No necessity to plead special damages
* Imputation of serious sexual misconduct
* Criminal behavior
* Loathsome disease
* Misconduct or incompetence in one’s trade or profession
Otherwise- a Plaintiff suing for defamation must plead and prove
special damages.

34
Q

Fraud Elements:

A
  • A misrepresentation or a material omission of fact which renders the representation false, known by the Defendant
  • Made for the purpose of inducing the other party to rely on it
  • Justifiable reliance of the other party
  • Injury
35
Q

Fraud Remedies:

A

Recession or Damages

36
Q

Negligence and Products Liability

A
  • PJI 2:10. Common Law Standard of Care- Negligence Defined- Generally
    “Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances.”
37
Q

Negligence elements:

A
  • In order to prevail on a negligence claim, “a Plaintiff must demonstrate (1) a duty owed by the Defendant to the Plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.”
37
Q
A
38
Q

Negligence foreseeability

A

-“Negligence requires both a reasonability foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A person is only responsible for the results of his or her conduct if the risk of injury is reasonably foreseeable. The exact occurrence or exact injury does not have to be foreseeable; but injury as a result of negligent conduct must be not merely possible, but probable.”
-“There is negligence if a reasonably prudent person could foresee injury as a result of his or her conduct, and acted unreasonably in the light if what could be foreseen. On the other hand, there is no negligence if a reasonably prudent person could not have foreseen any injury as a result of his or her conduct or acted reasonably in the light of what could have been foreseen

39
Q

Negligence Comparative Fault

A

“if you find that the Defendant was negligent and that the Defendant’s negligence was a substantial factor in bringing about (the accident, injury) you must next consider whether the Plaintiff (decedent) was also negligent and whether the Plaintiff’s negligence was a substantial factor in bringing about (the accident, injury),… The burden is on the Defendant to prove that the Plaintiff (decedent) was negligent and that (his or her) negligence was a substantial factor In bringing about the (accident, injury)… If you find that the Plaintiff (decedent) was not negligent, or if negligent, that (his, her) negligence was not a substantial factor in bringing about the (accident, injury), you must find that the Plaintiff was
not at fault and you must go on to consider damages, if any, submitted by Plaintiff.”
- CPLR Sec. 1411. Damages recoverable when contributory negligence or assumption of risk is established.
- “ In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the Claimant or to the decedent, including contributory negligence or assumption or risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the Claimant or Decedent bears to the culpable conduct which caused the damages.”

40
Q

Negligence Burden of Proof

A
  • CPLR Sec. 1412. Burden of pleading; burden of proof.
  • ” Culpable conduct claimed in diminution of damages, in accordance with section fourteen hundred eleven, shall be affirmative defense to be pleases and proved by the party asserting the defense.”
  • HISTORY: Add, L 1975, ch 69, Sec. 1, Sept 1, 1975.
41
Q

Negligence Causation

A
  • PJI 2:70 Proximate Cause- In General
  • “An act or omission is regarded as a cause of an injury, accident, or occurrence if it was a substantial factor In brining about the injury, accident or occurrence, that is, if it had such an effect in producing the injury, accident or occurrence that reasonable people would regard it as a course of the injury, accident or occurrence. There may be more than one cause of an injury, accident or occurrence but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage of it.”
  • Note: “Substantial Factor”
42
Q

Products Liability

A
  • Design Defect
  • Manufacturing Defect
  • Failure to warn
43
Q

Products Liability Claim

A
  • Strict Products Liability
  • Negligence
  • Breach of warranty
  • Fraud/ Misrepresentation
44
Q
A

Business Law I (6 decks)

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