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Business Law > Test 2 > Flashcards

Test 2 Flashcards

1
Q

Intentional Torts

A

Private Parties sue for money

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2
Q

Legal Elements of Intentional Torts

A

Intent to act ( doesnt mean hurt) + damages/actual harm

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3
Q

General Intentional Torts

A

Assault
Battery
False Imprisonment
Intentional Infliction of Emotional Distress
Defamation

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4
Q

Assault

A

Threat of intent, immediate harmful contact ( flinching)

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5
Q

Battery

A

Intentional Harmful Contact ( punching, cigarete smoke) also applies to attached belongings

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6
Q

False Imprisonment

A

Intentional Restraint or confiement without justification.
Has to be- Physical Barrier, Physical Restraint, Threat of Immediate force/harm( not future harm/force)

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7
Q

Shoplifters Rule/Exception

A

Reasonable Duration + manner ( why stores dont really stop you for stealing anymore)

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8
Q

Intentional Infliction of Emotional Distress

A

Hard to Prove

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9
Q

Defamation

A

Intentional Lie about harming reputations
Intentional Statement of fact ( true or false) + publish ( communicate to third party) + damaged reputation ( lose money/reputation)
Examples ; Libel and Slander

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10
Q

Public Figure Exception

A

Intentional Fact + publish + damaged reputation + malice ( has to know it was a lie)
Mcklee vs Laurion

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11
Q

Mcklee vs Laurion

A

Doctor very rude to patients and then the patient wrote bad reviews causing the doctor to sue ( the patient won since truth always wins)

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12
Q

Intentional Business Torts

A

Fraud
Wrongful Interference with a contract
Wrongful interference with a business opportunity

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13
Q

Fraud

A

Intentional use of deceit for gain
Material Representation ( omission) + justified reliance+ damages + causal connection

Example
Buying a used car, asked if in accident and the seller lied

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14
Q

Wrongful Interference Contract

A

Valid Contract + knew a valid contract existed + interference induced a breach of contract
Example- normally a merger

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15
Q

Wrongful Business Opportunity

A

Taking a client lists from a previous work company

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16
Q

Negligence

A

Failure to use reasonable care to prevent
reasonable care

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17
Q

Elements of Negligence

A

Duty of care ( can get specific)
Breach of care
Cause in fact
Proximate Cause
Damages

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18
Q

Duty of Care

A

Weirum v RKO
Special Duties
Heightened Duties
Lessend Duties

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19
Q

Weirum V RKO

A

Radio Host made a special where you get money from following a van ( teenagers run a grandma off the road killing her)

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20
Q

Special Duties

A

Business Owners Duty to discover/remove damages

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21
Q

Heightened Duties

A

Duties for Certain Jobs
Doctors+ Lawyers+ Accountants + Engineering + Architects

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22
Q

Lessend Duties

A

Assumption of Risk
Taylor v BB Club of Seattle

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23
Q

Taylor v BB CLub of Seattle

A

At a mariners game someone got hit by the ball in the front row since they were not paying attention

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24
Q

Proximate Cause

A

Close to Location

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25
Q

Cyr v Alabama

A

Serial Rapists kills someone at hotel bar; family sues the hotel but lost since you cannot foresee that

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26
Q

Defenses to Intentional Torts

A

Discipline ( parents)+ Necessity ( need to do) + duress ( gun to head) + Consent ( informed consent, agree in advance + full knowledge of risk)

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27
Q

Lugenbuhl v Dowling ( informed consent)

A

Hernia mesh was not put into place by doctor even though it was agreed on before hand

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28
Q

Defenses to Negligence

A

Failure to meet “ burden of proof” ( 50.1%)
Comparative Negligence
Contributory Negligence

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29
Q

Comparative Negligence

A

Comparing to who is at fault by more negligence ( most states)

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30
Q

Contributory Negligence

A

Protects against Frivlous Lawsuits ; if in accident cannot sue

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31
Q

Damages

A

Compensatory Damages ( make me whole)
Punitive Damages ( punish so gross)

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32
Q

Ford v Stubblefield (1984)

A

Ford Design problem that is very easy to fix but didnt do ( causing cars to explode killing lots)

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33
Q

Special Tort Doctrines

A

Res Ipsa Loquitar ( speaks for themselves)
Good Samaritan Laws
Social Host / Dram Shop Laws
Strict Liability

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34
Q

Res Ipsa Loquitar

A

Flips Burden Of Proof
Normally procsecutor proves innocent but now defender has to prove there were innocent

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35
Q

Good Samaritan Laws

A

Trying to be helpful can not be sued

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36
Q

Social Host/ Dram Shops

A

Bar is available for liability if over served ( getting someone drunk and then letting them drive)

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37
Q

Strict Liability

A

Intrinsically Dangerous Behaviors ( you will always be liable)
Nuclear Power Plant, Testing Weapons , Quarry Blasting

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38
Q

Criminal Law Burden of Proof

A

Guilt beyond reasonable doubt 99.5%

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39
Q

Elements of Crime

A

Actus Reus ( bad act)+ Mens Rea ( criminal mindset)

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40
Q

3 sets of crime with no Mens Rea

A

Criminal Recklessness ( DUI, Aggravated Manslaughter)
Criminal Negligence ( involuntary manslaughter)
Strict Liability ( statutory rape : doenst matter always at fault )

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41
Q

Felony v Misdeamnor

A

If more than 1 year its a felony

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42
Q

Categories of Crime

A

Violent Crime
Property Crime
Public Order Crime
White Collar Crime
Corporate Crime

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43
Q

Violent Crime

A

Murder, Rape, sexual assault, robbery ( taking with violence), Assault & Battery

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44
Q

Property Crimes

A

Arson, Burglary, Forgery ( changing outcomes) , Larceny ( taking in daytime), Theft by Fraud ( using deceit for profit)

45
Q

Wisconsin v Steffes ( theft by fraud)

A

Drug Dealer in jaul wants to continue dealing uses fake phone numbers stealing $30000

46
Q

Public Order Crime ( Relative)

A

Public Drunkness + Prostitution+ Gambling + Narcotics

47
Q

White Collar Crime

A

Mail & Wire Fraud, Bribery ( to public), Kickback ( private to private), Money Laundering ( Dirty Money), Embezzlement ( takes money from company)

48
Q

People v Sisophon

A

Stole Money from a car salesman; realized his mistake tried turning it in the next day and was arrested

49
Q

Corporate Crime

A

Government Seeks Fines + Deferred prosecution agreement (if good throws case out) or Non prosecution Agreement ( unenforceable)

50
Q

Racketeer Influenced & Corrupt Organizational Acts ( RICO)

A

Killed the mafia
1) Any person
2) Participates in a criminal enterprise
3) Commiting 2 or more offenses
4) Inside a 10 year period
All these equal to 20 years + lose profits

51
Q

Criminal Defenses

A

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) Entrapement

52
Q

Self Defense

A

Duty to retreat ( have to run if can)
Castle Doctrine ( home+yard+workplace)
Stand your ground ( anyplace)

53
Q

Insanity

A

Mental Illness or Cognitive Repairment
a) M’Nagnen Rule ( did not know it was wrong)
b)Irresistable Impulse Test ( refrain from acting)
c) Substantial Capacity Test ( virginia + fed) combines the previous 2

54
Q

Entrapment

A

Gov’t Suggests + inducement ( would not happen if this didnt happen)

55
Q

Procedural Safeguard

A

1) 5th + 6th = right to remain silent, jury stuff
2) 8th= no excessive bail, no cruel/punishment
3) Miranda Rights
4) 4th ( 1-3 stronger than this one)

56
Q

Miranda Rights

A

Custodial Interrogation ( if you feel free to leave you can)

57
Q

Miranda v Arizona

A

Rape Victim uneducated did not get informed about the rights he had

58
Q

4th Amendment

A

General Warrant ( not specific )
Reasonable Expectation of Privacy , needs Probable Cause + Warrant + specificity

59
Q

Exclusions to the Safe Guard

A

Consent
Hot Pursuit ( running gives away)
Search Incident to a lawful arrest
Plain View
Automobile Exception
Stop& Frisk
Domestic Terrorism

60
Q

U.S v Ross

A

Automobile exception
Ross drug dealer had bullet casing out allowing the cop to search his car for drugs

61
Q

Terry v Ohio

A

Racial Profiling
Undercover cops stops 3 random people “casing” a store and finds guns ( reasonable suspicion)

62
Q

Domestic Terrorism

A

USA Patriot Act
Making the government to do everything

63
Q

Trademark

A

” mark of trade”
A distinctive word, symbol, sound or design that identifies the source of goods

64
Q

Brand Confusion

A

” Old person test”
Coca Kola vs Koke of America ( 1920)

65
Q

Distinctiveness

A

1) Fanciful ( xeorox) ( always)
2) Arbitrary ( apple + google) (always) ( putting random things together)
3) Suggestive (always) ( Microsoft) ( small software)
4)Descriptive ( sometimes ) ( not distinct unless secondary meaning)
5) Generic ( to generic wherever everyone called it by the name losing it) (never)

66
Q

Creating a trademark

A

Use + duration of use , stronger brands do not need to register under USPTO

67
Q

Trademark Infringement

A

Lanham Act
Unauthorized use + likelihood of customer confusion

68
Q

Brothers Records v Jardine

A

Beach Boys member who left still sold ticekts as the beach boys

69
Q

Remedies for Infringement

A

Injunction ( court order)+ Damages( how much beach boys lost) + Profits ( how much jardine got) + Destruction ( burn the clothes)

70
Q

Trademark Dilution

A

TM Dilution Revision Act
- New TM dilutes distinctiveness
- Mark creates false association
-Harms famous TM reputaion

71
Q

Starbucks v Lundberg

A

Sambucks Coffee, name dilutes around the ‘bucks’

72
Q

Counterfeiting

A

Unauthorized use of trademark for making confusion
- 2 million fine, 10 years prison, profits, and destruction

73
Q

TM Sub categories

A

Service Mark ( super cuts)
Certification Mark ( quality of goods)
Trade Dress ( packaging, store layouts, product shape)

74
Q

Patents

A

Inventor’s exclusive rights to use+ sell+ market invention for 20 years

75
Q

Requirements

A

Patentable ( use, novel, non obvious)

76
Q

Non Obvious

A

Barnes & Nobel v Amazon ( barne and nobel using the one click purchasing)

77
Q

Remedies of Patents

A

Injunction, Damages, Destruction, Attorny Fees, WIllful Infringement ( if proven triple damages)

78
Q

Copyright

A

” the right to copy”
Author of artistic creation sole right: copy+ distribute+ display + derive

79
Q

Duration of Copyright

A

Life of author + 70 years
Corporations -95 years

80
Q

Copyright Infringment

A

Inhale Inc v Starbuzz Tobacco ( deals with hookah that was created and court ruled against)
MGM v Grokster ( preceptor to napster) allowed for the host to be charged with the crime

81
Q

Remedies for Copyright

A

Injunction+ actual damages+ statutory damages ( 150k)
Willful Infringement ( privacy) 250k + 5 years

82
Q

Fair Use Doctrine

A

1) Criticism
2) Teaching
3) News
4) Scholarships
5) Satire ( condemn society)
6) Parody ( funny laugh)

83
Q

Tests for Copyrights

A

Just need one good one
1) Purpose & Character Use
2) Nature of Work
3)Amount Copied
4)Market Effect

84
Q

International IP Protections

A

TRIPS agreement (50/50)
Madrid Protocal (very succesful)
Anti Counterfeit Trade Agreement ( bad)
Burn Convention- copyright ( like madrid so good)

85
Q

Golan v Holder

A

Guitar player song is inside a movie first and then it gets protected

86
Q

Sole Propiertorship

A

Never Use because unlimited liability

87
Q

Quality Trucks & Car leasing inc v Sark

A

Sark sole business borrowed money and then had to sell house to pay it off

88
Q

Franchise

A

” time sharer”
IP owner + intergrated business system( meaning supply chain , marketing campaign

89
Q

Franchise Contract

A

Fee + Supplier Rules + Marketing % + Overhead % + Quality Control Upgrades + Territories

90
Q

Goodfaith Case

A

Holiday Inn v Hotel Assocaties ( local hotel turns into holiday inn and puts upgrades for future contract but holiday leaves him)

91
Q

Partnerships

A

Agreement for 2 or more people; sharing profits, loss, pass through taxation, joint owners/managers, power to disassociate+ joint & several liability

92
Q

Safety Practices of Partnerships

A

Articles of Partnerships + Fiduciary Duties ( duty of loyalty, duty of care)

93
Q

Different Partnerships

A

Limited Partnership ( general partner: limited partner silent)
Limited Liability Partnership ( LLP)

94
Q

Limited Liability Company

A

Limited Liability, Forms by Articles of Organizational ( state filling), operating agreement

95
Q

Mekonen v Zewdu

A

Zewdu is in a taxi llc and wanted to leave but did not give the decal and have to give back

96
Q

Types of Corporation

A

S-Corp
C- Corp

97
Q

Formation of Corps

A

Needs incorporator, filed articles of incorporation, pays incorporation fee, and franchise tax

98
Q

Governance of Corps

A

Meetings+ Minutes + Vote (to approve) + Quorum

99
Q

Management

A

Shareholders
Board of Directors
Officers

100
Q

Pros and Cons

A

Pros - Limited Liabilities, Ease of funds, Corporate Personhood
Cons- C Corp Double taxation, hard formalities

101
Q

Veil Piercing

A

Ignored Corporate Formalities then got sued,
Alter Ego Doctrine

102
Q

Alter Ego Doctrine

A

If you do not properly put on the suit of a corporate entity than you are done for
Dog House Investment v Teal Properties Inc

103
Q

Dog House Investment v Teal Properties Inc

A

Dog Kennel places sues teal properties but the corporation is a sham for many reasons but the main one is the no seperation of bank accounts

104
Q

How to Sue Corporations

A

If breaches duty of care or loyalty

105
Q

Duty of Care

A

Informed & Deliberate
Smith v Van Gorken

106
Q

Smith v Van Gorken

A

Trans Road Merger was not informed or deliberate from the CEO so he got sued and than had to pay out of his own pocket book

107
Q

Duty of Loyalty

A

Cannot take corporate money and give to self ( self dealing)
Bayer v Beran

108
Q

Bayer v Beran

A

CEO hired his wife to sing but she was legit ( suing failed)

109
Q

Agreement of Indeminty

A

CEO has insurance in case of a lawsuit

Business Law (3 decks)

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