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318 Business Law > Exam #4 > Flashcards

Exam #4 Flashcards

1
Q

Public Accountability (4)

A

1) Freedom of Information Act(FOIA)
- Exceptions: national security, confidential info., comm./financial info, criminal investigation
2) Government Sunshine Act
- Except: Rulemaking
3/4) Reg. Flexibility Act + Small Business Regulation Enforcement Fairness Act

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2
Q

Blurring of Boundaries between Government and Industry

A

1) Enabling Legislation
- Delaware Corp. Code: General incorp., Ultra Vires, Intercorp stock ownership
2) Fuel/Recipe
- Lobbying = 1st amendment
- Revolving Door = working @gov then corp over and over

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3
Q

Kefauer - Harris Amendments

A
  • Enabling Legislation
  • Preg. women drugs, born w/ no limbs = Created clinical trials
    • Clinical bias + Publication bias
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4
Q

FDA Modernization Act

A
  • Enabling Legislation
  • Direct-to-Consumer Drug Ads
    • U.S. only country
    • Off Label detailing, Guidelines
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5
Q

Non Prosecution Agreements(NPA) / Deferred Prosecution Agreement(DPA)

A
  • Enabling Legislation
  • Merck’s Vioxx agreement
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6
Q

Revolving Door Examples

A
  • Scott Gottlies = FDA = Pfizer
  • Steve Hahn = FDA = Moderna
  • Robert Califf = FDA = Google Health = FDA
  • Alex Azar = HHS = Eli Lily
  • Julie Gerberding = CPC = Merck
  • Curtis Wright = FDA = Purdue
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7
Q

Title VII of Civil Rights Act

A

1) Protected Classes
- Race + Gender + Religious age + Elderly + Disability + Sexual Orientation + Transgender
2) Procedure
- EEOC

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8
Q

Equal Employment Opportunity Commission (EEOC)

A

1) File EEOC Claim
2) EEOC Action/ EEOC No Action
3) File Lawsuit
4) Remedies
- Reinstatement, Lost Wages, Compensatory Damages, Punitive Damages

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9
Q

Intentional Discrimination

A

1) PI Makes “Prima Facie” Case
- Protected Class, Qualified, Rejected, Non-Protected Class hired
2) Employer offers valid reason
3) PI Prove “Pretext”

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10
Q

Unintentional Discrimination/Disparate Impact

A

Firemen Test, women couldn’t pick up a 200 lbs person and carry it so they had to change it

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11
Q

Religious Discrimination

A

1) Sincerely held religious beliefs
2) Reasonable Accommodation
- Sabbath, Dress code, Prayer schedule, food/dietary

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12
Q

Sexual Harassment

A

1) Quid Pro Quo
- “This for that”
2) Hostile Work environment
- Multiple instances + Unwanted sexual advances/instances
- Roberts v. Mike’s Towing

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13
Q

Roberts v. Mike’s Towing

A
  • Sexual Harassment: Hostile Work Environment
  • Sextratary + Kiss + Hug
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14
Q

Title VII Retaliation

A
  • Moralez-Cruz v. University of Puerto Rico
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15
Q

Moralez-Cruz v. University of Puerto Rico

A
  • Got her year extra year of tenure research published revoked because she didn’t report her colleague smashing a student and said it was unprofessional
  • She sued saying it was sexual harassment
  • Still lost because wasn’t right
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16
Q

Title VII Defenses

A

1) Business Necessity
2) Bonafied Occupational Qualification
3) Seniority Systems
4) After acquired evidence of misconduct
5) Lack of Discriminatory Motive
- Dees v. United Rentals

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17
Q

Dees v. United Rentals

A
  • Title VII defenses: Lack of discrimintory motive, he was just shit at his job and never changed the batteries so he was fired after many warnings
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18
Q

Americans with Disabilities Act

A

1) Reasonable Accommodation unless undue hardship
- Physical/Mental impairment + Substantially limits 1 or more major life activities
- Ex: Obesity + Alcoholism + HIV Status

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19
Q

Affirmative Action

A

1) Federal Law Permits, but does not require
- CA + TX + FL + WA = Illegal

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20
Q

Labor Law: What events sparked the laws?

A

1) Haymarket
- Chicago 1800’s
2) Homestead
- Bad Steelwork condition + Strike + Killed all the strikers
3) Pullman
- Strike
4) Great Depression

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21
Q

Labor Law: National Labor Relations Act

A
  • No Unfair Labor Practices
    A) Cannot stop unionization
    B) Cannot discriminate against members
    C) Cannot retaliate against members
    D) Engage in good-faith bargaining
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22
Q

Labor Law: Impose

A

1) Strike
2) Company can replace
3) If not replaced, must hire you back

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23
Q

Labor Management Reporting & Disclosure Act

A
  • Service Employees International Union v. National Union of Healthcare Workers
  • Put into place because the mob ran most the unions and people we’re afraid to speak against the mob, so gave an avenue to speak to the government instead
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24
Q

Sherman Antitrust Act: Section 1

A

1) Agreements in Restraint of trades
- Pack of dogs
2) Horizontal Restraints
A) Price fixing = Per Se
B) Group boycott = Per Se
C) Market Allocation = Per Se
D) Trade Association = ROR
3) Vertical Restraints
A) Territorial Distribution Agreements = ROR –> Quality Control
B) Resale Price Maintenance Agreement = ROR –> Product Reputation

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25
Q

Rule of Reason (ROR)

A

1) Purpose
2) Market-ability to implement
3) Effect on competition
4) Availability of less restrictive means

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26
Q

Sherman Antitrust Act: Section 2

A

No Monopoly/Attempt Monopoly
1) Monopoly Power
- Dominate Share + Relevant Market + Anti Competition Coduct
2) Attempted Monopoly
- Anti Competitive Conduct + Intent to exclude + Dangerous possibility of success
Ex: Weyerhauser v. Ross-Simmons
3) International Monopoly
- Dominate market share + Transact in + outside U.S. + Substantial effect on U.S. market

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27
Q

Clayton Act: Section 2

A

A) Price Discrimination…Except
- Bulk, Price Discount, Market Fluctuation

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28
Q

Clayton Act: Section 3

A

A) Exclusionary Practices
- Exclusive Dealings
- Tying Arrangement = Batson v. Live Nation Entertainment

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29
Q

Clayton Act: Section 7

A

A) Mergers
- Block + Divesture + Dissolution of companies

30
Q

Clayton Act: Section 8

A

A) Interlocking Directions
- Cannot sit on competing companies boards

31
Q

Principal-Agent Relationship

A

1) Agent (Employee) binds and obligates the principal (employer) with regard to 3rd party transactions and injuries
- Agents act on behalf of __ instead of employer

32
Q

Employment Agency: Forming the Principal-Agent Relationship

A

1) Agreement (Written, Oral, or Contractual)
- Express Agreements: Principal Delegates authority to agent in definite terms
- Implied Agreements
- Principal also delegates authority to act via implication with regard to tasks commonly related to job (Dropping off check @ bank)
- Equal Dignity Rule: Written contracts require written authority (Buying a new property)
2) Ratification
- Subsequent affirmation of agency
3) Estoppel/Apparent Authority
- Created impression of authority (Employee signs hospital admission slip)
4) Operation of Law
- Emergency Authorizations

33
Q

Employment Agency: Principal-Agent Duties (Principal)

A

A) Principal (Employer’s) Duties
1) Compensation: Timely
2) Reimbursement: Authorized expenses
3) Indemnification: Authorized losses
4) Cooperation: Cannot frustrate performance

34
Q

Employment Agency: Principal-Agent Duties (Agent)

A

A) Agent (Employee’s) Duties
1) Performance of Duties: Reasonable diligence + Ordinary care
2) Notification: Work-related issues
3) Loyalty: Stealing opportunities or information
4) Obedience: Lawful and Clearly communicated orders

35
Q

Independent Contractors

A

1) No Employer Liability
2) The person paying the contractor cannot dictate & control specific details of your work
A) Dean & Painter of COB
3) Independent Contractor Test
A) Control Details + Close Supervision + Similar Tasks + Supply Tools + Special Skills + Duration of Task + Regulatory of Payment

36
Q

Contract Liability: When is the agent personally liable for contract work

A

A) Disclosed Principal
- Easy case: Agent never personally responsible for work-related contract
B) Undisclosed/Partially Disclosed Principal
- Agent and Principal both personally responsible for the work-related contract
- Stonhard Inc v. Blue Ridge Farms LLC

37
Q

Stonhard Inc v. Blue Ridge Farms LLC

A
  • Agent and Principal both personally liable
  • Sussman entered into flooring contract w/ Stanhard on behalf of Blue Ridge
  • Sussman never disclosed he was an agent of Blue Ridge
  • Sonhard completed flooring and Blue Ridge couldn’t pay
38
Q

Tort Liability: When is the principal liable for agents tort

A

A) Respondent Superior (Vicarious liability)
- Principal liable for all of the agents torts committed in the “Scope of Employment”(Skiing chef)

39
Q

Scope of Employment Test

A
  • Principal Authority Act
  • Time, Place, and Purpose of Act
  • Routine (Common) Act
  • Principal could reasonably anticipate act
  • Act advanced principal interests
  • Not agent private interest
  • Principal supplied tools
  • Skiing chef example
40
Q

Criminal Liability: Principal-Agent

A
  • Principal never has to answer for agents’ crime unless…
    • Principal participated in or authorized the crime
41
Q

Administrative Law (General Background)

A

A) Controversial “4th Branch” of Govt.
- Anti-Democratic?
- Unelected bureaucrats make U.S. law
- Administrative State (18:1 Admin-Congress laws)
B) Crucial Field of law for Business
- Securities, Antitrust, Employment, Labor, Food and Drug regulation, All aspects of daily life

42
Q

The Rise of the Administrative State

A

A) Industrialization and Technology
- Factory Injuries, Mass produced food scandals (The Jungle 1906), Radio broadcasts, internet, stockmarkets, automobiles, airplanes, chemical production (Cuyahoga River x13)

43
Q

Rationale for Administrative State

A

A) Time and Capacity
- Congress cannot address all legal issues
- Politicians are just “too busy” (lazy)
B) Specialization & Expertise
- Congress not qualified to address all legal & regulatory issues
- Not generally medical, labor, security, space, or agricultural experts

44
Q

Steps of Administrative Law (4)

A

1) Delegation
- Judicial and Legislative review
2) Rulemaking
- Notice and Comment
3) Enforce
- Wide enforcement authority
4) Adjudication
- Judicial Deference

45
Q

Loving v. IRS

A
  • Judicial Review of Delegated Rules: Arbitrary & Capricious Standard
  • Tax professionals = cert exam + annual fee + 15 hours of continuing education
  • Goes beyond delegated powers
    • Would allow the IRS to regulate hundreds of thousands of individuals in a multi-billion dollar industry
46
Q

FCC v. Fox Television Stations

A
  • Judicial Review of Delegated Rules: Fair Notice Rule
  • Sneaky Rules
  • 2001 = 1 Fuck –> 2004 = 0 Fuck
  • FCC never told networks it changed the rule, so cannot punish them for violating it
47
Q

INS v. Chadha

A
  • Legislative Review of Delegated Rules
  • Indian citizen, Kenyan-born, U.S. student visa
  • Deported - Admin power to override deportation
  • Congress seeks to repeal admin power via unicameral veto
  • Delegation = Bicameralism + Presentment
  • Repeal of delegated power = Bicameralism + Presentment
48
Q

Delegation

A

A) Enabling Legislation
- Congress creates Administrative agency
- Congress delegates legislative power to that agency
B) Ex: Federal Trade Commission(FTC)
- Create rules and regulations for the purpose of carrying out the act (113)
- Conduct investigations of business practices (113)
- Hold trail-like hearings to resolve certain kinds of trade disputes that involve FTC regulations or federal antitrust laws (113)

49
Q

Judicial Review of Delegated Rules: Arbitrary & Capricious Standard

A

1) Administrative Procedure Act (APA)
2) Arbitrary & Capricious Standard
- No rational explanation for decision
- Changed previous rule without justification
- Considered legally inappropriate factors OR failed to consider legal factors
- Loving v. IRS

50
Q

Judicial Review of Delegated Rules: Fair Notice Rule

A

1) Administrative Agency must provide fair notice of a rule change
- No sneaky rules
- FCC v. Fox Television Stations

51
Q

Legislative Review of Delegated Rules

A

1) Congress can repeal delegated rulemaking authority, except…
- INS v. Chadha
2) Difficult and time consuming to repeal delegated administrative power

52
Q

Rulemaking Process (4)

A

1) Impetus for new rules/rule changes
- Congress + Admin. Agency + “Private Parties”(industry)
2) Notice
- Must publish the new rule
- Federal register
3) Comment Period
- Allow for “reasonable period” for public commentary
- Really has no impact on final decision
4) Issue Final Rule
- Publish in code of federal regulations

53
Q

Wages & Hours Protections

A

A) Fair Labor Standards Act (FLSA)
1) Federal Minimum Wage= U.S. = $7.25
2) Overtime –> Hourly Workers + Exceed 40 hours/week = 150% of wage (excludes salaried workers)
3) Child Labor = Under 14 (family business + off jobs + entertainers) + 14-15 years old (hourly limitations) + 16 or older (free to work)

54
Q

Family & Medical Leave Act (FMLA)

A

A) Maternity and Sick Leave
1) 12 weeks unpaid leave
- U.S. stands alone, other rich countries have 40 weeks minimum of paid leave
2) Ballard v. Chicago Park District

55
Q

Ballard v. Chicago Park District

A
  • Took leave to care for sick mother + went on trip + fired
  • FMLA does not say where leave must take place
  • Remedies = Reinstatement + Wages + Promotion if applicable
56
Q

Income Security

A

1) Social Securities Act
A) Retirement security (65+ years old)
B) 7.65% career-long tax deduction
2) Federal Unemployment Tax Act (FUTA)
A) Applies only if employee is laid off (Not fired + not resigned)
B) VA = $378/week for 26 weeks and MA = $795/week for 30 weeks
3) State Law Workers Compensation
A) Employee (not independent contractor) + accidential injury + Scope of employment
B) Widely Exploited (lifetime benefit)

57
Q

Health Insurance

A

1) Social Security Act (SSA)
A) Medicare (65+ years old)
2) Medicaid
A) 138% below federal poverty line
B) Family of 4 = $25,000/year
3) Affordable Care Act (ACA)

58
Q

Affordable Care Act (ACA)

A

1) Employers with 50+ employees must provide healthcare (via salary deduction)
2) Work for a company with fewer than 50 employees + self employed = must purchase private healthcare
3) U.S. ONLY developed nation without free or universal healthcare

59
Q

Securities Howey Test

A

1) Person invests
2) Enterprise
3) Expecting Profit
4) Managerial Efforts of another

60
Q

Securities Act of 1933 (33 Act): Primary Market

A

1) Underwriters
- Investment Bankers
2) Sophisticated Actors

61
Q

Securities Act of 1933 (33 Act): Register Securities`

A

1) Registration Statement (S-1) (Think of Uber Example)
A) Describe Securities
B) Auited F.S.
C) Management Teams
D) Use of Proceeds
E) Risk Factors
2) Prospectives (Road Show)

62
Q

33 Act Investor Fraud

A

1) Knowing + Material + Misstatement/Omission
- All 3 must be present
2) 10k Fine, 5 years in jail, Refund of private profits

63
Q

Registration Exemptions of 33 Act

A

1) Reg. D
- Small Offerings (<10M)
2) Private Placement
- Small # of expert investors

64
Q

Securities Exchange Act of 1934 (34 Act)

A

1) Secondary Markets = NYSE

65
Q

34 Act: Periodic Disclosures

A

1) Annual Report (10-K)
2) Quarterly Report (10-Q)
3) Material Developments (8-K)

66
Q

34 Act: Investor Fraud

A

1) Knowing + Material + Misstatement/Omission
- All 3 must be present
2) 5M fine, 20-year jail sentence
3) City of Livonia Retirement System v. Boeing

67
Q

City of Livonia Retirement System v. Boeing

A

1) Sued for Investor fraud under the 34 Act but ended up losing case because there was a pattern of CEO hyping up first flights in the past
2) Executives not required to predict future; they hoped the place would be ready for first flight

68
Q

34 Act: Insider Trading

A

1) Rule 10B-S = Insider Trading = Material Nonpublic Information

69
Q

34 Act: Insider Trading Types

A

1) Classic Insider Trading
- SEC v. Texas Golf Sulphur = Big gold deposit
2) Tipper/Tippee IT
- Abstain or Disclose = Eddie Murry investing
3) Misappropriation IT
- Friend dad read his daughter’s merger documents

70
Q

Sarbanes-Oxley Act 2002

A

1) 302 = CEO/CFO Review 10-Q
2) 402 = Prohibits Personal loans to officers (bribes)
3) 404(a) = Routine assessment of internal controls
4) 806 = Whistleblower Protection
5) 906 = CEO/CFO certify financial statements (ineffective)

318 Business Law (2 decks)

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