Test 3 Flashcards
1
Q
What are the 2 kinds of damages?
A
Punitive and compensatory
2
Q
What kind of damages are available in a contract case?
A
Only compensatory are available
3
Q
What are the 2 kinds of compensatory damages?
A
Direct Damages and Consequential Damages
4
Q
What are direct damages?
A
damages related to the main purpose of the contract. It’s the difference between what you were supposed to get and what you did get.
5
Q
What are consequential damages?
A
Holds the defense to the foreseeable harm standard. If the defense should have foreseen the harm, the they are liable for consequential damages?
6
Q
What is the main idea and takeaway from the Hawkins V McGee case?
A
Hawkins has a messed up hand, and was promised a 100% perfect hand. Ends up with a hairy hand b/c of skin grafting. The difference is direct damages
7
Q
What is the main idea and takeaway from the Prutch V Ford case?
A
Prutch expects a tractor for the harvest and plants a larger than normal amount of crop. The tractor arrives broken and the crop goes bad. Ford is found liable for the direct damages of the repair parts for the tractor and the consequential damages of the unharvested crop
8
Q
In general, can you get a subcontractor?
A
Yes, if the lease does not specifically exempt it.
9
Q
Who is liable for any issues if you bring in a subcontractor?
A
the original party and the subcontractor are liable.
10
Q
What is one way to release yourself from liability by substituting yourself for the subcontractor?
A
You can get a novation
11
Q
Can third parties sue to enforce a contract?
A
Depends if they are donee beneficiaries or incidental beneficiaries.
12
Q
What is a donee beneficiary?
A
an outsider who was intended to benefit from a contract. CAN sue to enforce a contract as a third party
13
Q
What is an Incidental beneficiary?
A
an outsider who was not intended to benefit from the contract. CANNOT sue to enforce a third party contract
14
Q
What are the 3 kinds of bankruptcy and which is the most drastic
A
Chapter 7, Chapter 11 and Chapter 13. Chapter 7 is the most drastic
15
Q
What happens in a Chapter 7 bankruptcy?
A
stuff liquidated to pay off debt and most of the remaining debt is forgiven. Available to people and companies.
16
Q
What kind of debt is not surrenderable in chapter 7 bankruptcy?
A
Intentional tort, tax debt, student loan debt, child support, alimony, govt fines, luxury crecdit card debt racked up immediately before, and debts arising from fraud and “actual fraud” including shuffling assets around
17
Q
What are the rules on if you get to keep your house in a chapter 7 bankruptcy?
A
You have to have the house paid off to keep it no matter what. If you’ve lived there <40mo. the federal law caps will only let you keep the house if it is worth <146K. If you’ve lived there >40mo. the state law applies and you can keep your house of any value
18
Q
What is special about chapters 11 and 13 bankruptcies
A
considered less bad on credit reports. They both involve submitting a repayment plan that will legally replace the existing plan (if approved)
19
Q
Describe Chapter 11 bankruptcy.
A
Debtor submits repayment plan to creditors. creditors vote if the plan is acceptable. Plan is accepted if 2/3 of the total debt outstanding votes in favor of the plan
20
Q
Describe Chapter 13 bankruptcy.
A
a judge looks at a submitted plan for repayment and approves good faith attempts to repay. People usually opt for this option. Ch.13 not available to companies
21
Q
What did Husky V Ritz conclude?
A
Ritz tried to save some $ by shuffling assets out of a debt ridden company before bankruptcy. The debt wouldnt be forfeitable in bankruptcy if they arose out of malicious tort (ACTUAL FRAUD). This case established that ‘fraudulent conveyance’ is actual fraud and the debt would not be forfeitable in bankruptcy, and that the debtor and the recipient of the conveyance are responsible. Doesnt have to be false representation to be fraud
22
Q
When do intestacy laws kick in?
A
They kick in when someone dies without a will
23
Q
Who makes intestacy laws?
A
the states
24
Q
What are the 2 systems of intestacy laws?
A
Per Stirpes System. Per Capita System.
25
What is a per stirpes system?
concerned with families lines getting equal cuts. All of the money goes to the oldest living member of a given line. Not everyone on the grandkid level will get the same payout, but children will
26
What is the per capita system?
Makes sure that all of the members of the same level will get an euqal cut. First, do a per stirpes system layout, then clump all of the money for each level and divide evenly
27
What are the rules with what a surviving spouse gets to keep in intestacy laws?
Gets to keep all of the community property and 1/3 of the separate property. the remaining 2/3 of the separate property goes to the rest of the family
28
What is community property?
it belongs to both of the spouses. Doesnt matter who provided the $ for purchase
29
What is separate property?
Includes anything you owned before you got married, anything you received by gift or inheritance or income that you received from separate property
30
How many people pay estate taxes?
<1%
31
What are the 3 Exemptions to estate tax?
1) All gifts to a spouse are exempt
2) All gifts going to a nonprofit are exempt
3) The next $5.49M is exempt
32
What is the current estate tax rate after the exemptions?
40%
33
What is the gift tax?
After the $14K per person limit, the amount over $14K is deducted from your $5.49M exemption. Medical and edu expenses are exempt if you pay directly to the institution. If you use up all of the $5.49M, you pay the 40% rate
34
What is an executor?
the person in charge of the estate, can sign to transfer assets. Usally a firent or relative and not a lawyer, so they can make mistakes.
35
What are the 3 main exemptions executors should know to avoid paying final debts?
1) Homestead exemption
2) Personal Property Deduction
3) Family Support Exemption
36
What is the homestead exemption?
if the house is owned fully, you can protect, 1 home, up to 200 acres of land attached to the home, and a horse or a car. None of this has to be sold to pay final debts
37
What is the personal property exemption?
up to 30K of non realestate property is protected from having to pay final debts
38
What is the family support exemption?
if you die with dependents, a judge can allow an executor to set aside one years worth of normal family expenses
39
What is the rule about paying someone else's debt that you didnt cosign for?
You dont have to (even if relative) unless you are married to them or you sign the contract with them
40
What are the 3 kinds of gifts?
1) fee simple gift
2) life-estate gift
3) fee simple determinable gift
41
What is a fee simple gift?
its 100% yours
42
What is a life-estate gift?
you can use whatever you inherit for your lifetime, but upon your death, another person owns it
43
What is a fee-simple determinable gift?
a gift with a rule attached to it. If you break the rule, it goes to someone else
44
What are the 3 basic principles of IP law?
1) IP law protects ideas by giving certain rights to the creator
2) IP law uses patents to strategically limit competition
3) IP law can sometimes go too far and limit competition too much and harm customers
45
The ___ & ____ created an international minimum standard of IP protection called _____
WTO, GATT, TRIPS
46
What is a trade secret?
something not known and not legally available that gives competitive advantage
47
You can either seek patent protection (requires going public) or you can seek trade secret protection, BUT you cant claim both
believe it
48
What are the 5 suggested parts of a trade secret misappropriation case? (but trade secrets can still exist without all of these parts)
1) extent the info is known outside the company
2) how difficult would it be to learn or acquire the info properly
3) How valuable is the info to the company
4) how much time & $ did it take to create the info
5) how closely has the company maintained secrecy
49
Can a trade secret be a combination of previously known elements
Yes
50
What determines a reasonable amount of security required to maintain a trade secret?
depends of the value of the info, cost of security, burden of security on ops, effectiveness of security
51
What is CNDA
Confidentiality non disclosure agreement. a good security measure to put on employees
52
What are some giveaways that misappropriation of trade secrets has occurred?
if the means themselves are illegal, if there is an express or implied level of confidentiality violated, employees switching jobs are often guilty of this
53
What are the 2 legal ways to acquire trade secrets?
1) independent development
| 2) reverse engineering- assuming you have lawfully obtained the product (patent protection still applies)
54
What are the 4 basic ways you can protect your IP?
Trademarks, Trade Secrets, Patents, Copyrights
55
What can trademarks apply to? How do you get one? How long are they good for?
Trademarks only apply to words, phrases, symbols and designs (product/company names and logos). You have to apply for a trademark with the US Patent and Trademark Office. You'll get it unless its a duplicate or generic. good for 10 years and renewable
56
What is the threshold for trademark infringement?
An average customer can buy a product from a competitior when they think they are buying one from yoou
57
Explain the Coke V Koke case
Koke infringed on Coke when it copied the bottle design
58
Explain the Bantan V Doubleday case
Bantan made Cliff notes and Doubleday made movie satires and Double day did not infinge on the trademark when it used the cliff notes design b/c an average customer would not have been confused
59
What is the commonality of Patents and Trade Secrets?
both are broad ans can protect inventions, processes, data, etc
60
What are the Pros and Cons of a trade secret over a patent
Pros: You dont have to ask the government for it. No expiration date
Cons: your still screwed if someone figures it out via reverse engineering or independent discovery, can only get a TS if it is "closely held" (ie limited even within the co). You're only covered if someone steals the TS from you directly
61
What are the Pros and Cons of Patents
Pros: stronger than TS, you're protected against independent discovery and reverse engineering,
cons: nonrenewable after 20 years of protection
62
Your patent can get taken away by the company you work for if you develop an idea on the clock and it is similar to the work you are paid to do.
true
63
What can you get a copyright on and how do you get one?
A copyright is automatically given ("self copyright") to any creative work that is permanently stored. It is smart to register your copyright with the library of congress if you think you might need to sue someone for a large amount of $
64
What is an agent?
a worker or someone working on your behalf. The actions of an agent can place legal obligations on you
65
What is the thought process for determining if the employer is responsible if an agent commits a tort?
Remember order is key
1) Was the worker engaged in "ultra hazardous" activity (if Y then responsible, if N then cont)
2) Is the worker an employee of an independent contractor? (if Emp then cont, if IC then not responsible)
3) Was the tort committed on the job or off?
(if on, then responsible, if off then not responsible)
66
What is the legal difference between an employee and an independent contractor?
employee= has a schedule, a boss, and a set wage
| IC=frequently moves companies with no set schedule
67
The physical location doesn't matter when determining if an employee is on the job or off for the purpose of tort liability
true
68
Is a business bound by contracts signed by agents?
Yes, as long as the signer has one of the 3 kinds of legal authority
69
What are the 3 kinds of legal authority?
1) Express Authority (directly told to do something)
2) Implied Authority (you have implied authority to do anything reasonably necessary to execute direct orders)
3) Apparent Authority (the company tells customers that an employee has the power to do something)
70
What is the employment at will doctrine
a company can fire a person at any time for any reason. This is the baseline theory that is subject to a number of exceptions
71
What are the 2 categories of exceptions to the employment at will doctrine?
Anti-Discrimination Law (inc Civil Rights Act, Age Discrimination and Employment Act, Americans with Disabilities Act, and Genetic Info Nondiscrimination Act)
The 14th Amendment (equal protection clause, you usually can't sue a private employer with a constitutional argument b/c only protects from govt tyranny)
72
What are the 4 things covered by the Civil Rights Act?
Race, Religion, Gender, National Origin
73
What is the EEOC and why is it important?
Equal Employment Opportunity Commission. If you want to sue someone for violating the CRA, you have to go through an EEOC complaint (filed within 180 days) and mediation. Then you can sue.
74
What is Workers Compensation?
a predetermined amount paid to a worker based on an injury regardless of employer negligence. Doesnt apply to independent contractors. Must arise out of & in the course of employment.
75
What is OSHA?
Occupational Safety and Health Act. provides a detailed set of rules to prevent injury and disease but can only regulate "significant risks". Congress passed a "general duty" clause on employers that requires them to provide a safe workplace. OSHA can easily get warrants to search businesses
76
Fair Labor Standards Act
regulates wages and hours for all non-professionals including OT & min wage & underage labor restrictions
77
What are the 2 kinds of firings?
1) straight up firing
| 2) constructive discharge=you make the job so miserable that you force a person to quit
78
What are the 3 main things that protect you from getting fired?
your contract, collective bargaining agreement via union, civil service laws (only if you work for the govt)
79
Employment at will
covers most of the workforce (nonunion and nongovt)
| either party can terminate at any time unless it is covered by an exception
80
What is teh minimum number of employees a company must have for the Civil Rights Act to apply?
15
81
What is disparate treatment?
Deliberate discrimination based on CRA protected categories. can be on the hook for compensatory and punitive damages. CAn be proven by statements by managers. does not have to be the entire reason, just a "substantial part"
82
What is disparate impact?
not deliberate discrimination on a CRA category but there is a pattern of discrimination. Only on the hook for compensatory awards
83
What is the Griggs V Dute Power case about?
a black guy was denied a job at a power company b/c of a test that was 1) unrelated to the job AND 2) impacts different protected groups differently. Because the test had both of these parts, Griggs won the case
84
What is THE ONLY defense for a disparate treatment case under CRA?
the Bona Fide Occupational Quality defense. Hiring only a certain class of people must be the "essence of the business". if the comapny cannot accomplish its mission without discriminating, the company is excused
85
What are the 2 defenses for disparate impact cases under CRA?
1) 80% defense- you're good if the unfavored group passes a test at a rate of at least 80% the favored groups rate, you're good. Should only consider tests given at this company and not the entire industry
2) the business necessity defense- you're good if the nature of the work requires discrimination
86
What are the 2 kinds of sexual harassment cases under CRA?
quid pro quo and hostile work environment cases
87
What is a quid pro quo case and what is the defense?
Someone in power is requiring a subordinate to do sexual contact for a job benefit. The only defense is that it didnt happen. Moral to the story is dont date your boss or your employee
88
What is a hostile work environment case under CRA?
there is a sexually charges atmosphere that makes working there uncomfortable for a REASONABLE PERSON.
89
What is the defense for a hostile work environment case for CRA?
Need all 3. 1) the firm has a legitimate sexual harassment policy with a reporting procedure 2) The company legitimately investigates complaints 3) the plantiff did not file any complaint with the company
90
What are some solid work place dating guidelines that will keep you from getting sued on CRA?
follow all rules in the handbook or the contract (these trump all). Never date a boss or employee. Never ask someone out more than twice
91
What are the 2 levels of protection provided by the CRA for religion?
1) Religious Status-can't discriminate at all unless you have the bonafide occupational quality defense or the beliefs are not legitimate
2) Religious Practice- things you do to practice your faith are protected by reasonable accommodations (if you have a specific business reason to say no, you can say no)
92
What does the NLRA deal with?
Unions and collective bargaining rights
93
When are workers allowed to strike and when are they guaranteed their jobs back?
can strike by majority vote only and they only are guaranteed job if the strike is over unfair labor practices, strikes on wage only basis do not guarantee jobs back, but the firm cannot discriminate in who they allow back
94
What is the most important section of the Civil Rights Act?
Title VII
95
What is the scope of protection given by the CRA Title VII
not illegal to require citizenship in the private sector, sex protection includes harassment, pregnancy, and gay, reasonable accommodation for religious faith
96
What are the 2 categories of discrimination?
either disparate impact or disparate treatment
97
What is a Prima Facie case?
meets certain baseline requirements to move forward. in a hiring issue, you have to show that you're in a protected group, you were qualified, a non minority got the job, and the job was available to begin with.
98
What is the flow of burden of proof in discrimination cases?
After the plantiff established a Prima Facie case, defense has to prove a legitimate reason for the action. This legitimate reason is called the employers rebuttal. if the rebuttal is insufficient, the plantiff wins, if the rebuttal is sufficient, the plantiff must prove that the reason is "pretext" or just a cover up in order to win
99
Is harassment a case of disparate treatment or disparate impact?
disparate treatment
100
What are the 2 main things that dont count as disabilities under the ADA?
short term problems
| eye sight correctable with glasses or contacts
101
What is the standard of protection under the ADA?
reasonable accomodation ($15K per worker or 1 hour per day)
102
What are the rules about drug tests and getting fired?
you can fire an employee for failing/refusing to take a drug test or if they are caught with drugs at work. If the employee comes forward with a legal or illegal addiction, they can claim disability and should expect reasonable accommodation
103
What is the minimum number of employees for the CRA to apply?
15
104
What is the minimum number of employees for the ADA to apply?
15 employees
105
What is the threshhold for being old under the Age Discrimination Employment Act?
40 and over. if fired b/c of age, you can sue
106
What is the minimum number of employees for the ADEA to apply?
20
107
What are the 2 broad defenses to an ADEA suit?
1) "any good business reason" for firing
2) "Same actor" defense- the manager that hired the person who was already older than 40 and the same actor fires them later. doesnt apply if you turned 40 during term of employement
108
What is the Genetic Information Nondiscrimination Act?
Cant use the results of genetic testing to make hiring or insurance decisions. 0 employee limit
109
What are some exceptions to the employment at will doctrine?
FMLA, COBRA, ERISA and the non-discrimination ones
110
What does the FMLA do? What is the minimum employee limit?
50 emp min. Allows full time employees that have been with the firm over a year to take up to 12 weeks of unpaid leave per rolling 12 months for any "serious illness" of self or immediate family if the leave is medically necessary
111
When do workers have to reasonably accommodate their companies with the FMLA?
When you have an scheduleable surgery, you can't bail in busy season
112
What qualifies as a serious illness under FMLA?
if you or you immediate family has anything requiring hospitalization, >1 doc visit, or a prescription non-OTC drug
113
What is COBRA?
designed to keep health insurance in tact when switching jobs. You can force the company you're working for to keep you on their benefits for 18 months while you look for work, but they dont have to keep paying their portion of the $.
114
What is the minor turned adult exception to COBRA
If you are losing your dependent status, you can go to your parents employer and fill out a COBRA to extend your dependent status for 36 months
115
What does ERISA do?
Employee Retirement Income Security Act deals with retirement benefits and vesting. You are always vested in your own contributions. You are typically vested in firm contributions in 5-7 years but you can forfeit all of it if you leave early
116
What is your liability for charges made on a lost or stolen credit card?
$50 if you report promptly. Can be liable for >$50 if you dont report promptly or if you gave your card to someone else
117
What is the postal reorganization act?
if people send you stuff in the mail that you didnt ask for, the mail is treated as a gift
118
How do you get rid of collection agencies harassing you?
if you contract a lawyer and you tell the collection agencies about it, the collection agencies have to quit calling you and only talk to the lawyer
119
What are the 2 things that protect your privacy?
1) the constitution but it only applies to govt wrongs
| 2) Statutes
120
What is the privacy law that applies to drug tests?
Congress protects companies rights to drug test
121
Can you fire someone for failing a drug test?
yes, but you have to do it consistently
122
Are polygraphs admissable in court? How accurate are they?
no. 95% so mainly used to narrow the list of suspects
123
What is the EPPA and what does it guarantee?
Says that if an employer wants to polygraph you, they have to 1) give advance written notice 2) be allowed to bring a lawyer 3) can only be used to look at things that have already happened (unless you're a bank) 4) a company can not fire a worker if the only evidence against them is a polygraph
124
What is the Smyth V Pillsbury case?
Smyth was fired because of an offensive email caught by an email filter. judge sided entirely with Pillsbury. On one should expect privacy on a company server
125
What is CISG?
Convention on International Sale of Goods. Rookies shoudl want to go by this set of laws because it is simple.
126
What rule by default governs intl commerce?
CISG, but you can sub it our for any other set of laws if the contract says so. It's recommended that rookies stick with the CISG rules
127
What is a letter of credit?
a promise from a bank to pay an amount of $ if a bill of lading is paried with it. You should get your bank to confirm LOCs for max security
128
What is a bill of lading?
a form that the shipping company gives you when you ship goods. You pair the Bill of Lading with the LOC and you can collect the $
129
What are the pros and cons of a partnership?
Pros: its by default, avoid double taxation
Cons: personal assets on the hook
130
What are the 3 main downsides of a partnership?
1) Agency law screws you because every partner is automatically an agent of every other partner (liable for torts you didnt commit)
2) "Joint +Several" Liability...the plantiff can sue the group or one person individually. Blame is not equally shared
3) Partnerships are legally the default setting
131
When are you screwed on torts no matter what kind of business you are operating?
if you commit the tort yourself
132
What are the 2 main characteristics of an LLP?
1) If there is a tort suit against one of your partners that you had nothing to do with, you're in the clear
2) If you lose $ in ways not related to torts, you are still liable. Business losses can eat into personal assets
133
What are the 2 kinds of partners in an LP?
Limited Partners-can work at an participate in the business but cannot vote on managerial matters, personally protected from all risks (tort and bus losses)
General Partners- can make managerial decisions but are liable for all kinds of risks (tort and bus losses)
134
What is the rule about an LP?
You must have at least one limited partner and at least one general partner
135
Why is an LLC usually the way to go?
everyone gets protection from all risks (bus and tort), everyone can manage the business
136
What are the 2 main downsides to LLCs?
Banks hate to make loans to them. Lots of states charge a small tax on LLC profits
137
What are the pros and cons of a corporation
Corp profits are taxed and dividends are taxed again. Double taxation
Pros: limited liability (tort and bus loss)
138
What is the difference in a guilty plea and a no contest plea?
Guilty= I admit to doing it
| No Contest= I dont admit to it, but I wont contest it
139
When does it make sense to plea no contest rather than guilty?
IF there is a victim and you have a chance of getting a civil case against you, you should go no contest, because guilty pleas in criminal cases are admissable evidence. No contest pleas are not admissable at all
