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Business Law

Syllabus / Intoductory notes

08/27/2019

Course Materials (Text, calculator, etc.) Book: The Legal and Regulatory Environment of Business (with online McGraw Hill Connect), Seventeenth Addition, Pagnattaro, McGraw Hill Education. ISBN 978-1-25-962174-1 Note: online access to McGraw Hill Connect is required. Regarding the textbook, you may purchase a hard copy or use the e-book version that comes with online Connect access. Currently online registration is broken, fix tbd

1 HW per chapter, lowest HW is dropped. (Maybe up to 3?) all Chapter HW is due Thursday.

Extra credit: participate in a mini-skit

Exams are online, access for 48hrs.
revised copy of syllabus incoming, exam that was due on thanksgiving will be moved. => That exam is now opens the Thursday before thanksgiving (Nov 21)
Class day before tests open will be used for review.

Chapter 1 Law as a foundation for Business

PP online, linked here <-

Companies in the US must:

What is law

Rule of Law

Property (ownership)

Legal right that allows a person to exclude others from him/her resources. (from a water bottle to houses, intellectual property)
Types of ownership:

Jurisprudence

Philosophies that explain origin of law & it’s justification

Classification of Law

Common & Civil

08/29/2019

Substantive Law and Procedural Law

Substantive Law - realationship of people with other people or with the state, ex. Property law
Procedural Law - method and means by which Substantive law is made and administered. ex. Rules of Evidentiary Procedure, administrative law (machinery that enforces substative law)

Federal Law

Constitution - top law of US -
Legislation - 2nd -
administrative law or regulations - last in list of authority for laws.

State Law - ordered top to bottom, most authorative to least.

Judicial Decisions or Case law

Hierarchy of Sources of Law

  1. US Constitution and amendments
  2. Statues of Congress
  3. Federal administration regulation
  4. State Constitutions
  5. Statues Statues
  6. State administrative regulation
  7. Local ordinances
  8. case law

Sanctions for criminal conduct

Tortios Conduct

Sanctions for breach of contract

Corporations

Specific sense of Corporate governance

Chapter 2 Ethics

The Role of Ethics in Decision Making & Business PP Linked here

Contemporary Business Ethics

Ethics and Morality

Ethics and Law

Fear Punishments vs. Want to do what’s right

09/03/2019

Systems of Ethics:

Ethics influences legal system: Is there a relationship between law and ethics? Yes.

Sources of value for business ethics

Legal regulation - Ethical rules drawn from the law

Professional code of ethics

blockquote> sidebar 2.5

American Marketing Association Statement of Ethics

PREAMBLE

The American Marketing Association commits itself to promoting the highest standard of professional ethical norms and values for its members (practitioners, academics and students). Norms are established standards of conduct that are expected and maintained by society and/or professional organizations. Values represent the collective conception of what communities find desirable, important and morally proper. Values also serve as the criteria for evaluating our own personal actions and the actions of others….

ETHICAL VALUES

Honesty — to be forthright in dealings with customers and stakeholders. To this end, we will:

Strive to be truthful in all situations and at all times.

Offer products of value that do what we claim in our communications.

Stand behind our products if they fail to deliver their claimed benefits.

Honor our explicit and implicit commitments and promises.

Responsibility — to accept the consequences of our marketing decisions and strategies. To this end, we will:

Strive to serve the needs of customers.

Avoid using coercion with all stakeholders.

Acknowledge the social obligations to stakeholders that come with increased marketing and economic power.

Recognize our special commitments to vulnerable market segments such as children, seniors, the economically impoverished, market illiterates and others who may be substantially disadvantaged.

Consider environmental stewardship in our decision-making.

Fairness — to balance justly the needs of the buyer with the interests of the seller. To this end, we will:

Represent products in a clear way in selling, advertising and other forms of communication; this includes the avoidance of false, misleading and deceptive promotion.

Reject manipulations and sales tactics that harm customer trust.

Refuse to engage in price fixing, predatory pricing, price gouging or “bait-and-switch” tactics.

Avoid knowing participation in conflicts of interest.

Seek to protect the private information of customers, employees and partners.

Respect — to acknowledge the basic human dignity of all stakeholders. To this end, we will:

Value individual differences and avoid stereotyping customers or depicting demographic groups (e.g., gender, race, sexual orientation) in a negative or dehumanizing way.

Listen to the needs of customers and make all reasonable efforts to monitor and improve their satisfaction on an ongoing basis.

Make every effort to understand and respectfully treat buyers, suppliers, intermediaries and distributors from all cultures.

Acknowledge the contributions of others, such as consultants, employees and coworkers, to marketing endeavors.

Treat everyone, including our competitors, as we would wish to be treated.

Transparency — to create a spirit of openness in marketing operations. To this end, we will:

Strive to communicate clearly with all constituencies.

Accept constructive criticism from customers and other stakeholders.

Explain and take appropriate action regarding significant product or service risks, component substitutions or other foreseeable eventualities that could affect customers or their perception of the purchase decision.

Disclose list prices and terms of financing as well as available price deals and adjustments.

Citizenship— to fulfill the economic, legal, philanthropic and societal responsibilities that serve stakeholders. To this end, we will:

Strive to protect the ecological environment in the execution of marketing campaigns.

Give back to the community through volunteerism and charitable donations.

Contribute to the overall betterment of marketing and its reputation.

Urge supply chain members to ensure that trade is fair for all participants, including producers in developing countries.

sidebar 2.6

American Institute of Certified Public Accountants Code of Professional Conduct

The Principles call for an unswerving commitment to honorable behavior, even at the sacrifice of personal advantage.

In carrying out their responsibilities as professionals, members should exercise sensitive professional and moral judgments in all their activities.

As professionals, members perform an essential role in society. Consistent with that role, members … have responsibilities to all those who use their professional services. Members also have a continuing responsibility to cooperate with each other to improve the art of accounting, maintain the public’s confidence, and carry out the profession’s special responsibilities for self-governance. The collective efforts of all members are required to maintain and enhance the traditions of the profession.

Members should accept the obligation to act in a way that will serve the public interest, honor the public interest, and demonstrate commitment to professionalism. </blockquote>

Organizational code of ethics

Individual values: Self Examination:

Self Examination-Ethics Should I do it?

  • Is it right or wrong?
  • WIll I be proud if they found out
  • How would I feel if everyone did it?
  • Will it cause harm?
  • Is it legal?

Obstacles:

Promoting Business Ethics

Can an act be ethical but not legal? Yes This happens sometimes when American companies go overseas

Can a business have a conscience?

Chapter 3 - The Court System

Created: 09/03/2019
Updated: 02/05/2023

Key Terms:

Judges and Justices

Jurors

09/05/2019

Jurors contd…

Lawyers

Organization of the court system

  1. Supreme court
  2. Appellate courts.
  3. Trial courts.

Is the state supreme court always the highest court in that state. No. not always! Sometimes they have a different name or appeal system. Texas has seperate courts for criminal and civil courts.

Subject matter jurisdiction

Fig. 3.1 - State Court System
State Court Sys

Term to know: Centori: a writ or order by which a higher court reviews a decision of a lower court.

Federal courts review:

  1. if the US is involved as a party
  2. state vs. state
  3. Citizens of different states (ammount in controversy(ie. amounts greater than $75K), diversity of citizenship)
  4. Law: Federal Question

Fig. 3.2 - The Federal Court System
Federal_court_sys_img

Federal Courts have subject matter jurisdiction over federal question cases and diversity of citizenship cases.

Diversity of citizenship

Federal Question cases:

Small-Claims Courts

  • Entrepreneurs are well advised to be aware of the small-claims court as an effective place to resolve matters that do not involve large amounts of money.
  • The dollar limit jurisdiction of the courts varies by state from approximately $2,500 to $25,000. Small-claims courts have low court costs and simplified procedures. The informality of the proceedings speeds up the flow of cases. The services of a lawyer are not usually required, and some states do not allow lawyers to participate in these proceedings. Typical cases:
  • clients who fail to pay;
  • disputes with vendors;
  • landlord-tenant problems, including security deposits;
  • damage to clothing caused by cleaners or alterations;
  • relatively minor personal injuries (e.g., dog bites);
  • issues with contractors;
  • failure to repair a vehicle or appliance properly.
    The following claims cannot be brought in small claims courts: divorce, guardianship, name change, bankruptcy, or actions for emergency relief (injunctions).

District courts

Appellate courts

TODO: Get Geographical boundries for Appellate courts.

Fig 3.3 *The Federal Court of Appeals

Federal_Court_Of_Appeals

General role of an appelate court is to: Review questions of law.

Decisions by the US Supreme Court.

SCOTUS: Supreme court of the united states.

Sidebar 3.4 Circuit Scorcard (2015-1016)

| Circuit | Number of Cases | % Decided | % Aff’D | % Rev’D | |—|—|—|—|—| CA1 | 2| 3% 3| 50% | 50% | CA2 | 5 | 7% 5 | 40% | 60% | CA3 | 3 | 4% 3 | 33% | 67% | CA4 | 4 | 5% 4 | 50% | 50% | CA5 | 4 | 5% 4 | 50% | 50% | CA6 | 7 | 9% 7 | 57.1% | 42.9% | CA7 | 1 | 1 1 | — | 100% | CA8 | 4 | 5% 4 | 24% | 75% | CA9 | 14 | 19% 14 | 14.3% | 85.7% | CA10 | 2 | 4% 2 | 50% | 50% | CA11 | 7 | 9% 7 | 57.1% | 42.9% | CA DC | 3 | 4% 3 | 66.7% | 33.3% | CA Fed | 4 5% | 4 | 50% | 50% | State | 11 | 15% 11 | 18% | 82% | Dist. Ct | 3 | 4% 3 | 33.3% | 66.8% | Original | 0 | 0% - | - | - |

Source: SCOTUSblog Stat Pack, October Term 2018. https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_30_19.pdf

Power of judical review.

Judicial Restraint and Judicial Activism are not exclusive to a particular Judge. Many Judges may share aspects of both in their judicial philosophy.

Judical restraint:

Judicial activism

Sidebar 3.9 provides insight into the general alignment of the justices. It is important to understand, however, that this overall perspective does not translate into predictability. It is often fascinating to analyze each justice’s position as set forth in concurring and dissenting opinions.

Typical Alignment of Justices
|LEFT | SWING | RIGHT | |—|—|—| | Ginsburg | Roberts | Alito | | Breyer | | Thomas | | Sotomayor | | Gorsuch | | Kagan | | Kavanaugh |

Nature of the judical process

  1. Case to be decided.
    • use existing statutes and precedents
    • create a law where none exist.
    • Refusal to apply case law or find unconstitutional
      Will ruling provide justice and a sound precedent?

Look at case 3.1 in book: Sebelius case regarding affordable care act.
Case 3.1 was updated, see Iancu v Brunetti.

Review Questions and Problems

Personnel

  1. Judges and Justices What are the essential responsibilities of a trial judge?

  2. Jurors Why have several states eliminated the requirement of unanimity in jury trials?

  3. Lawyers Name the three critical roles a lawyer serves in society. Why have many lawyers and their business clients had such conflict in recent years?

Organization of the Court System

  1. Subject Matter Jurisdiction
    • Mark, a citizen of Georgia, was crossing a street in Atlanta when he was struck by a car driven by David, a citizen of New York visiting Atlanta. The car was owned by David’s employer, a Delaware corporation that has its principal place of business in Atlanta, Georgia. Mark sues both David and the corporation in federal district court in Atlanta alleging damages in the amount of $500,000. Does the court have subject matter jurisdiction? Why or why not?
  2. State Courts
    • What role do reviewing or appellate courts play in the judicial process? How do they differ from trial courts?
  3. Federal Courts
    • XYZ makes and markets a product that it believes will help control weight by blocking the human body’s digestion of starch. The Food and Drug Administration (FDA) has classified the product as a drug and orders it removed from the market until it can evaluate its use through testing. XYZ disputes the FDA’s action and seeks to bring suit in the federal courts. Will the federal courts have jurisdiction to hear the case? Why or why not?
  4. Decisions by the U.S
    • Supreme Court Susan files a petition for certiorari in the U.S. Supreme Court following an adverse decision in the Illinois Supreme Court on a claim arising under a breach of contract. What chance does Susan have of the Supreme Court granting the petition? What special circumstances would she need to show?

The Power of Judicial Review

  1. Judicial Restraint
    • Define the power of judicial review. How do advocates of judicial restraint exercise that power?
  2. Judicial Activism
    • Define judicial activism. Compare and contrast judicial restraint and judicial activism.
  3. A Sample U.S. Supreme Court Case
    • Why are concurring and dissenting opinions important?
  4. The Nature of the Judicial Process
    • What are the forces that Justice Cardozo says shape the judicial process? How is the law made? In light of the liberal versus conservative divisions in the courts, are Cardozo’s observations still relevant?

business discussions

  1. You have spent the past four weeks away from work serving as a juror in a case deciding whether a pharmaceutical company should be held liable for the heart attack of a woman who took its painkiller, Oxxy-1. The lengthy case has taken a toll on your professional career, and you have many unanswered questions as jury deliberations begin.

    • Where does your duty lie in serving on a jury?

    • Are you protected against adverse employment action by your firm for missing work to serve on a jury?

    • How do you reconcile the woman’s prior heart palpitations from years ago with her recent attack? Was her heart already compromised before she began taking the painkiller Oxxy-1?

    • Why didn’t the pharmaceutical company withdraw the painkiller from the market at the first sign of a problem?

  2. You are the president of a large corporation that is in the business of manufacturing, among other things, chemical products used to eradicate termites. You have just reviewed a confidential report, prepared by one of your top scientists, questioning the effectiveness of the product and the claims your business has been making to homeowners, pesticide treatment firms, and the general public. You have heard rumors that a lawsuit will be filed shortly against your corporation claiming that this product is ineffective.

    • Who should you turn to for advice?

    • Should you destroy the report?

    • In which court can a lawsuit be filed?

    • If you lose the lawsuit at trial, can you appeal?

TODO: Add Ch 6 Notes - link Power point - Ch 1-6 Test Opens 9/17 - homework is best source of review, lots of overlap in question bank Chapter 6 PowerPoint

Exam 1 Review:

lawyers first duty is administration of justice
commercial speech is protected under first amendment; govt can limit it; and it may not be as extensive as right of individual
under a minimum rationality approach a permissible state end is a legit goal of government.
10th amendment reinforces federalism
libel cases deal with printed defamatory falsehoods - tabloid magazines? or slander (spoken defaming word)
small claims courts do not require the services of a lawyer - think judge judy - not formal at all - limited by $$ amount asked for in claims
lawyer is often involved in personal decision of clients
judicial abstention; aka strict constructivism

09/19/2019

Chapter 4

Exam 1 Due Tonight 9/19 by 11:59pm

PowerPoint here

Litigation

Not the only way legal disputes are settled, there’s also ADR (alternative dispute resolution) -> Ch. 5

attornies that are really good in court room are called litigators or Trial attornies.

Litigation helps the business community resolve actual disputes. (lawsuits)
Lawsuits are a drain

Parties

Standing to sue

Do you really have a “dog” in this fight?

Case 4.1
Mayer v. Belichick 605 F.3d 223 (3rd Cir.) Issue:

  • Videotaping the new york jets coaches and players on the field.
  • Purpose: capturing and stealing the new yourk jets signals and visual coaching instructions
  • The New England Patriots.

Updated Case 4.1 - 2023

JULIANA v. UNITED STATES F.3d (9th Cir. 2020)
The panel reversed the district court’s interlocutory orders in this action which was brought by 21 individual plaintiffs (all young citizens) and environmental organizations against the federal government alleging climate-change related injuries caused by the federal government continuing to “permit, authorize, and subsidize” fossil fuel.JULIANA v. UNITED STATES F.3d (9th Cir. 2020)
The panel reversed the district court’s interlocutory orders in this action which was brought by 21 individual plaintiffs (all young citizens) and environmental organizations against the federal government alleging climate-change related injuries caused by the federal government continuing to “permit, authorize, and subsidize” fossil fuel.
COWEN, Circuit Judge
In the mid-1960s, a popular song warned that we were “on the eve of destruction.” (Barry McGuire, “Eve of Destruction,” on Eve of Destruction, Dunhill Records, 1965.) The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowledge that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.
The plaintiffs claim that the government has violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” The central issue before us is whether, even assuming such a broad constitutional claim exists, an Article III court can provide plaintiffs with the redress they seek–an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.
The district court denied the government’s motion to dismiss, concluding that the plaintiffs had standing to sue, raised justiciable questions, and stated a claim for infringement of a Fifth Amendment due process right to a “climate system capable of sustaining human life.” The court defined that right as one to be free from catastrophic climate change that “will cause human deaths, shorten lifespans, result in widespread damage to property, threaten food sources, and dramatically alter the planet’s ecosystem.” The court also concluded that the plaintiffs had stated a viable “danger-creation due process claim” arising from the government’s failure to regulate third-party emissions. Finally, the court held that the plaintiffs had stated a public trust claim grounded in the Fifth and Ninth Amendments. . . .
The government . . . argues that the plaintiffs lack Article III standing to pursue their constitutional claims. To have standing under Article III, a plaintiff must have (1) a concrete and particularized injury that (2) is caused by the challenged conduct and (3) is likely redressable by a favorable judicial decision. . . .
[After expressing skepticism that the first redressability prong is satisfied, the court stated] even assuming that it is, the plaintiffs do not surmount the remaining hurdle–establishing that the specific relief they seek is within the power of an Article III court. There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter and in general and a matter of national survival in particular. But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan. . . .
The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government had a role in causing it, and that our elected officials have a moral responsibility to seek solutions. We do not dispute that the broad judicial relief that plaintiffs seek could well goad the political branches to action. . . . We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, thee latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes. . . .

  • Note: On March 3, 2020, the plaintiffs filed a petition for rehearing, asking the Ninth Circuit to hear the matter en banc.

KEY POINTS to Case 4.1(2023)

### Personal Jurisdiction Court must have legal authority over an individual.
Court has to have authority over the parties in the case.

No case can proceed forward without the existence of both subject matter and personal jurisdiction.

  • in personum over the person
    • Personal jurisdiction over the defendant obainted by:
      • court summons
      • Service of Process
  • in rem?
  • Long arm statuetes: Provision for the service of process beyond the boundaries of the state. Typical requirements for a long-arm statute are:
    • Has committed a tort within the state.
    • Owns property within the state that is the subject matter of the lawsuit.
    • Has entered into a contract within the state or transacted the business that is the subject matter of the lawsuit within the state.

Class-Action Suits:

Many people affected by an incident (red bull didn’t give us all wings!)

Pretrial procedures

Pretrial_Procedures_Image

  1. Plaintiff files complaint
  2. Complaints and summons served on defendant
  3. Defendant files motion or answer with possible counterclaim and defenses
  4. Court rules on motions - case could be decided here and never make it to trial.
  5. Plaintiff files reply to answer.
  6. attornets conduct discovery procedures
  7. Parties may file motions for summary judgment or judgement on pleadings
  8. Court conducts pretrial confrence.

Pleadings

Discovery

Gather the Evidence

Discovery methods

Sidebar 4.7

Discovery Abuse: Alleged Failure to Produce Documents

The Financial Industry Regulatory Authority, Inc. (FINRA) ordered Morgan Stanley to pay $3.3 million to investors in a Puerto Rico bond case in which the firm allegedly did not turn over key documents in a hearing. Documents “related to the termination of a key employee” were not produced in connection with a FINRA arbitration matter. A three-person panel ordered Morgan Stanley to produce the documents to opposing counsel and found that Morgan Stanley’s failure to do so violated its arbitration rules related to acting in good faith to produce documents during discovery. The award was one of the largest awards ever made by a FINRA panel for discovery abuse.
Source: Mark Schoeff, Jr., “Finra arbitrators order Morgan Stanley to pay $3.3 million for concealing evidence,” InvestmentNews, July 18, 2019.

Discovery scope

in a survey of 1000 judges, abusive discovery was rated highest among the reasons for the hight costs of litigation.

Sidebar 4.9

Litigation Holds and E-Discovery

The Federal Rules of Civil Procedure were amended several years ago to address discovery of electronically stored information (ESI). An important aspect of the rules is that the information sought must be “relevant to any party’s claim or defense and proportional to the needs of the case” [Rule 26(b)(1)]. Litigants must “take reasonable steps to preserve” potentially relevant ESI [Rule 37(e)]. To be safe, when there is pending or imminent litigation, your company should issue a “litigation hold” to preserve all relevant data from being destroyed, altered, or mutilated. The litigation hold applies to all documents, including electronic ones.

What are the best ways to identify and produce all electronic documents that may be used to support claims and defenses? Here are best practices suggestions to streamline the process:

  • Select an individual to take the lead in preserving all documents.
  • Identify all custodians of information (including former employees) and both hard copies of documents and electronic material.
  • Notify all custodians about the pending litigation.
  • Create a chart or content map of all categories of documents and custodians.
  • Remind all custodians to suspend routine destruction policies and to preserve all documents.

Notes from: 09/24/2019, updated 02/09/2023

Motions

When a question of law is at issue, the parties can seek a pretrial determination of their rights by filing a motion with the court.

Business_law_Ch_4_Motions_image

**TODO: Add figure 4.3 from textbook - Trial Steps - 2 pictures from slides/book **

The Trial

If efforts to resolve a case through pretrial motions or negotiations have been unsuccessful, the case will proceed to trial. A trial normally involves the presentation of evidence to a jury to determine the actual facts in dispute. After the evidence is presented, the judge explains the applicable law to the jury. The jury is asked to deliberate and render a verdict and the trial court must then decide whether to enter a judgment based on the jury’s verdict.

Food for thought…

"I consider a trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution"

- Thomas Jefferson

Google, Facebook, and Twitter are adding a new dimension to jury selection and dynamics. Here are a few examples:

Jury Selection

Do remember that most civil cases are settled or resolved prior to trial.

  • Jury Summons
  • Voir Dire: Speaking the Truth (literally means Speak the Truth)
    • Selected jurors are called into jury box to conduct the examination
  • Peremptory Challenge: No cause or reason needs to be given to excuse a prospective juror
  • Strikes

On the basis of a series of U.S. Supreme Court decisions, beginning with Batson v. Kentucky, 476 U.S. 79 (1986), outlawing racial discrimination in jury selection, the jury has become increasingly more representative of the racial diversity in the United States. Batson represented a major development in Supreme Court jurisprudence allowing lawyer misconduct in a single case to establish discriminatory motive in making peremptory strikes. The Court banned gender discrimination in jury selection in the case of J.E.B. v. Alabama Ex Rel. T.B., 511 U.S. 127 (1994)

Case 4.2

564 U.S. _(2011)
Wal-Mart Stores v. Dukes

One of the most expensive class action lawsuits ever.
3 current or former walmar employees allege that the company discriminated against them on the basis,
of their sex by denying them equal pay or promotions.
violates Title VII of Civil Rights Act of 1964, 78 Stat. 253, as amended…
was not directed at corporate policy but local managers discretion over pay and promotion
that was excersised disproportionately towards men.
this was overturned as there weren’t enough people to justify class action law suit.
They took data from all walmart managers from accross all 50 states and had varying results.
some women did better and some were worse off.
Justice Ginsberg offerd this dissenting opinion:

She emphasized that the majority opinion “disqualifies the class at the starting gate”
because it puts too much burden on the plaintiffs to show how their individual
claims are sufficiently similar to form a class action.

She was joined by Justices Breyer, Sotomayor, and Kagan.

Supreme court outlawed racial discrimination in peremptory challenges

Opening statements

Burden of Proof

Deciding the case

Post trial issues

Appellant Procedures

Appellate Procedures

Appellate Review:

Appellate Review

Enforcement of judgments and decrees

Res Judicata

Chapter 5 - Alternative Dispute Resolution

09/24/2019
PowerPoint here

Conflicts leads to disputes when one party makes claim that the other denies. (usually from 2 differing points of view)

Negotiation

“When do we negotiate? Always!”

–Dialogue from the movie The Devil’s Advocate

negotiationStyles

Positional Negotiation

Principled Negotiation

I. Communication
II. Relationship
III. Interests
IV. Discuss all availabe options.
V. which options are actually legit.
VI. Consider the alternatives.
VII. Commitment to the alternatives.

Alternative dispute resolution systems (ADR Systems)

It is often the case that both parties to litigation are losers. The winning party in a lawsuit is a loser to the extent of the attorney’s fees—which are often substantial. The fact that the loser usually also has to pay court costs is an added incentive to settlement without litigation.

Fig. 5.1 Scale of dispute resolution systems.

Dispute Scale

Arbitration

Submission

Factors that influence the selection of Arbitrators

Case 5.1 Arbitrators Authority

Awards.

Federal Arbitration Act

Case 5.2

Statutorily Mandated Arbitration

Chapter 6 The Constitution

The US Constitution provides the legal framework of our federal government and the authority it has to regulate business activities. There are Seven articles in the original constitution, the first three set up the legislative, executive and judicial branches respectively.

There have been a total of 27 amendments made to the Constitution since 1791; of that only 17 were approved

The First 14 Amendments

  1. Freedom of Speech, press, religion and petition (1791)
  2. Right to Keep and bear arms. (1791)
  3. conditions for the quarters of soliders (1791)
  4. right of search and seizure (1791)
  5. provisions regarding prosecution (1791)
  6. right to a speedy trial, witnesses, ect… (1791)
  7. right to a trial by jury (1791)
  8. excessive bail and cruel and punishment (1791)
  9. rule of construction of the constitution (1791)
  10. rights of states (1791)
  11. state sovereign immunity (1791)
  12. electoral college (1804)
  13. abolishment of slavery and involuntary servitude. (1865)
  14. due process and equal protection (1868)

Basic Concepts of the Constitution

The Commerce Clause

Amendments and Basic Protections

  1. Basic constitutional rights are not absolute.
  2. The extent of any limitation on a basic constitutional guarantee depends upon the nature of the competing public policy.
    • cases involving the Bill of Rights almost always require courts to strike a balance either between some goal or policy of society adn the constitutional protection involved.
  3. Constitutional guarantees exist in order to remove certain issues from the political process and the ballot box. They exist to to protect the minority from the majority.
  4. Constitutional rights vary from time to time and may be narrowly interpreted during emergencies such as war or civil strife.
    • even during peace time, constitutional principles are constantly reapplied and reexamined.

First Amendment Protections

Chapter 7: Property Rights

Property: The legal right to exclude others from resources that are origionally possessed
or are acquired without force, theft or fraud.
Property is absolute but not infinite, it’s boundries can be ambiguous This definition makes property very central to the whole legal system.
Property becomes not just an exclusionary right but an entire system unto itself.
It is upon this property system of law that business depends. Property is central to the legal enviroment
and central to society’s acheivment of prosperity.

Problem of limited resources:

Property is essential to society acheiving prosperity

Divisions of property

Land ownership greather than just surface rights. (Old saying: if you own the land, you own everything from heaven to hell on that land)

Types of ownership

Easements

Bailments

School corporation was entrusted with 7 statues, 3 were destroyed and another badly damaged during construction;
the school provided no evidence as to the circuimstances of the origin of the damage.
If they had the plaintiff would then have to prove negligence on the bailee’s end.
Since the school showed no evidence and the plaintiff met the minimum requirements for burden of proof
plaintiff was awarded damages to cover the 4 statues; $26,100
Plaintiff Suk Semoon alleged that Wooster School Corporation, Suk loaned 7 satatues and upon asking for their return was told that 3 were missing and another was badly damaged.

Previous exams are now available for practice attempts, final exam will be cumulative.

Acquiring resources

Adverse Possession

Claiming abandond real estate

Acquiring resources through gift.

Title and Property Registration

Security interests in Land

Secured Transactions

Nuisance and Zoning

Duration limitations on property

Inclass bonus Notes:

some countries fighting over treasure? London, Hungary and Lebonon sliver items told they were coming from;

Provenance: the chronology of the ownership, custody or location of historical object.
Guy who knew where silver originated was killed silver items were taken to new york for auction meuseam in LA attempted to curate the silver (from ancient rome)

Time team special 34 - mystery of roman treasure

does the silver have legal provenance?

Legally exported from lebonon; there were a number of descrepeciens in export docs. docs were forged?! damn son no valid docs tracing ownership acusing americans of selling stolen goods

Chapter 8 Contract formation

basically making your own ‘mini law’ unless contract directly violates the law, it will be upheld in court.

Contracts

Are all promises are legal contracts?! Hell no!

Sources of contract law

table 8.1

Selected Differences between Common Law and UCC Contracts

Issue Common Law UCC
Agreement Acceptance must be the “mirror image” of the offer. Acceptance containing different terms will form a contract, with treatment of differing terms depending on whether both parties are merchants.
Implied terms Depends on the particular agreement. All contracts have the following as a default

  • Warranty of merchantability.

  • Warranty of fitness for a particular purpose.

  • Warranty of title and against infringement.
Undefined terms Essential terms must be included. Nonquantity open terms (such as price) can be determined in the future.
Consideration Necessary for agreement, modifications, and option contracts. Necessary for agreement, but not for modifications or a merchant’s firm offer.
Contract Form (Statute of Frauds) Writings required for certain types of agreements such as real property transfers, promises that cannot be performed within a year, and collateral promises. Writing required for sale of goods $500 or more, unless

  • Partial performance occurs.

  • Goods are specially manufactured.

  • Contract between merchants later confirmed.

  • Existence of contract admitted in court.

Classification of contracts

There are a number of terms used to classify different types of contracts:

case 8.1

LEYDEN v. AMERICAN ACCREDITATION HEALTHCARE COMMISSION 83 F.Supp.3d 241 (D.D.C. 2015)

Christine Leyden was a registered nurse who worked for the American Accreditation Healthcare Commission (referred to in the case as “URAC”), a non-profit that accredits health care plans and providers. She was ostensibly a non-contract, or “at-will,” employee. In addition to explicit statements that employees in Leyden’s position were at-will, URAC had contradictory company policies that claimed to protect employees from retaliation from serving as whistleblowers or for expressing grievances.

In 2012, URAC hired a new CEO. Leyden stated that she had acknowledged to human resources that the CEO and his deputy were fostering a workplace environment that was biased against women. Additionally, she raised concerns about the allegedly improper conduct of two UPAC board members. Leyden was terminated in 2013. At that point, she argued that the termination was in response to her complaints and violated the company policies against retaliation. She claimed that the termination was, therefore, a breach of an implied contract. URAC argued that Leyden’s at-will status precluded such a claim. The court was called upon to determine whether the promise of non-retaliation changed Leyden’s at-will status in the context at issue.

CHRISTOPHER R. COOPER, U.S. DIST. JUDGE: Leyden acknowledges that she did not have a written employment contract with URAC. Nevertheless, she argues in Counts 3 and 6 that URAC breached implied contracts arising under two of its personnel policies when it terminated her. She further alleges, in Count 5, that URAC breached a covenant of good faith and fair dealing implicit in these contracts and, in Count 4, that it is bound to fulfill the terms of one of the policies under a theory of promissory estoppel. URAC retorts that the policies are not applicable to Leyden’s alleged conduct and, in any event, did not create implied contracts because URAC’s employee handbook explicitly disclaims the creation of any contractual rights. URAC further contends that Leyden was not protected by the policies because she did not put her concerns in writing.

A plaintiff may rebut the D.C. law presumption of at-will employment by showing that “the parties intended that termination be subject to specific preconditions.” . . . One way to do so is to show that the terms of a personnel manual or employee handbook create contractual rights. An employer may disclaim that it is bound by the terms of those documents. But if the disclaimer is “rationally at odds” with other language in the document, a reasonable jury could conclude that the employer intended to be bound by the substantive terms. . . . Any implied contract would also contain an implied duty of good faith and fair dealing, which requires “that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” . . . . Finally, even in the absence of a contract, an organization may be liable under a theory of promissory estoppel if a plaintiff establishes “(1) a promise; (2) that the promise reasonably induced reliance on it; and (3) that the promisee relied on the promise to his or her detriment.” . . .

Leyden locates implied contracts in two URAC policies: a whistleblower policy and an employee grievance policy. URAC’s whistleblower policy invites employees “to report allegations of known or suspected Improper Activities.” . . . “Improper Activities” are defined to include a non-exclusive series of specific acts, such as questionable accounting and fraud, as well as a catch-all category including “malfeasance” and “gross misconduct.” And most importantly, the policy concludes with an anti-retaliation provision: “No URAC employee who in good faith reports any Improper Activities in accordance with this policy shall suffer, and shall be protected from threats of harassment, retaliation, discharge, or other types of discrimination.” . . .

Leyden’s alleged complaints about a board member’s requests for proprietary information—supplied to URAC by an accredited entity with the expectation that URAC would not share it with board members from competing managed care organizations—implicates URAC’s whistleblower protections. In other words, conduct by board members in violation of an organization policy specifically designed to prevent breaches of confidentiality plausibly falls within the scope of the non-exclusive “Improper Activities” the whistleblower policy invites employees to report. And Leyden may be protected by the whistleblower policy, despite raising her concerns verbally, because it merely “encourage[s]”—but does not require—employees to report improper activities in writing. . . . The Court further concludes that, to the extent the “at-will” disclaimer in the URAC employee handbook applies to the whistleblower policy (which is found in a different document), the handbook disclaimer is “rationally at odds” with the whistleblower policy and therefore does not serve to retract URAC’s commitment to protect employees from retaliation for reporting suspected improper activity. . . . Any other conclusion would render the whistleblower policy meaningless. Having made the promise, URAC cannot now argue it was not bound to honor it.

The same is true of URAC’s grievance policy. That policy encourages URAC employees to raise complaints or suggestions concerning their work conditions. Like the whistleblower policy, it contains a non-retaliation provision promising that “[n]o employee will be penalized, formally or informally, for voicing a complaint with URAC in a reasonable, professional manner.” . . . Leyden alleges that she was fired for doing just that: raising concerns about management’s treatment of women and about conduct she thought undermined the integrity of the accreditation programs she oversaw. Again, because the “at-will” disclaimer contradicts the grievance policy, it does not prohibit Leyden from seeking to enforce URAC’s promise not to penalize employees for lodging reasonable complaints.

Accordingly, Leyden has adequately pled that URAC entered into implied contracts, along with the implicit covenant of good faith and fair dealing included in those contracts. . . . She has also adequately pled, in the alternative, a valid claim for promissory estoppel based on the anti-retaliation provision of the whistleblower policy. The Court therefore will deny URAC’s motion to dismiss [the implied contract and promissory estoppel claims].

KEY POINTS</h4> </header>

  • Enforcing implied-in-fact agreements is an important means of ensuring that two parties’ intent to make binding promises is honored.

  • Implied-in-fact agreements must contain the same elements as express contracts, including acceptance and consideration.

  • Employers can weaken the presumption of an at-will employment relationship (covered in Chapter 21) by making statements about employee rights and expectation in policies and manuals.

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1. In general, parties should always strive for written agreement with terms as complete as possible. Relying on implied terms is risky. **End of Case 8.1** - Implied-in-law & quasi-contracts - Implied-in-law aka Quasi-contracts (court making contract after the fact) - Judicial *remedy* - Remedy available when no actual contract exists. - Goal: Prevent one party receiving *unjust enrichment* ### Contract words to know: : - enforceable vs. unenforceable - void vs voidable - valid - Executed - parties have perfomred their promises - done. - Executory - Parties have yet to performan - still in process ## Requirements for enforceable contract - **offer** to enter into a contract. - **acceptance** of the offer - **consideration** foreach promise - **capacity** of each party to enter into a binding agreement. - **legality** of subject matter ## Defenses to Enforcement - Improper form when a writing is required. - no true meeting of the minds due to fraud or mistake - if it has to be in writing it's determind by the **statue of frauds** (not a satue and nothing to do with fraud) ## Offer
I am going to make him an offer he can't refuse
The Godfather
- Contains - specific promise - specific demand - Intent - Offeror must intend to make the offer by making a commitment to the offeree - Contractual terms - definite and - specific ## Offer termination - Revocation (remove offer) - Rejection - Counter offer - Lapse of time - Subject matter destruction - Offeror Death or insanity - Subject matter ilegality ## Acceptance - Necessary to create a valid and enforceable contract - bilateral contract: accepted when offeree has made the rquired promise - Unilateral contract: Accepted by performing a requested act - Mirror image rule: to create a binding contract, accepteance must match the offer **exactly** - Section 2-207 of the UCC - Expression of accepance or - written confirmation - Silence - Does not imply accepance - **Mailbox rule**: Acceptance becomes legally binding when the offer deposits it with the postal service ## Consideration - Is: - Receipt of legal benefit or - suffering of a legal detrement - agreement to not sue - consideration to support a promise when reasonable grounds for a lawsuit exists - Accord and satisfaction: resolving a dispute over an amount owed by reaching a compromise - Preexisting obligation - Party to an agreement does not give consideration by promising to do something that he or she is already obligated to do. - Prior consideration - Performance made before the discussion of the agreement does not count. - Promise to make a gift - Option: agreement to not revoke an offer for a certain period, supported by the offeree's consideration. - Promissory estoppel: doctorine arises when promisee relies on promisor's promise to his or her economic injury ## Capacity of Parties - Minors - cannot be legally bound to contractual promises with exceptions for necessaries of life. - contract is voidable at the election of the minor - Intoxicated / Incompetent - contracts are voidable dependingon person's capability to understand the contract's nature and purpose. ## Lawful Purpose - Contracts are void if they: - Require commission of crime or tort - Violate accepted standards of behavior - Contracts that restrain trade are illegal and void ###### Covenanats not to competete: Protects employers from having the employees they train leave them and compete against them. ## Another legit excuse ## Other ways out - Waiver: occurs when a party intentionally relinquishees a right to enforce a contract. - happens after a contracting party fails to perform - Release: ## Breach of Contract - Arises whena a party does not accomplish the obligation of the contractual performance. - Remedies: - Damages award - Compensatory - Consequential - Liquidated - Equitable damages - specific performance - Injunction - Rescission - such a mess, lets cut up the contract: think scissors ## Remedies for Breach of Contract - TODO: Import image from book. ## So there's another way out of a contract? - Efficient Breach # Chapter 9 Torts **Tort: Any civil wrong other than breach of contract** - Note: this is a civil misdead, so it's between private parties, usually this is not a crime but it very well can be. `ie: assault and battery` also remember that the burden of proof is much much lower than in criminal cases. Torts law limits how people act and use their resources. ## Categories of Torts - Intentional: intentionally performing a wrong against some one (ie I point a deadly weapon at someone) - Intent: Desire to bring about certain results (does not have to be your planned results) - Results are substantially likely to result from an action. - Assault: placing another in immediate anxiety for his or her physical saftey. Note: no physical contact (could be pointing a gun at someone, threatening them) - Battery: illegal touching of another (ie. stabbing someone, though just threatening with a knife is assault, stabbing is battery) - Case 10.1 Assault & Battery *Harper vs. Winston County* - Sandra Wright fired her employee, sherry harper. Harper sued wright claiming that assault and batter had been commited. THe court granted Summary judgement in favor of Wright. Is Harpers appeal that assault and batter has been commited valid? - `892 So.2d 346 (Ala. Sup. Ct. 2004)` Alabama supreme court. - Infliction of Mental distress: battery to the emotions. - Arises from outrageous conduct that has a chance of causing mental distress in the victim - Invastion of privacy: Comprises invasions of personal interest. - using another person's name or likeness for personal gain. - case 10.2 INvasion of Privacy Ehling v. Monmouth-ocean hospital service corp. - `872 F.Supp. 2d 369 (D. N.J. 2012)` - Deborah Ehling worked at monmouth-ocean hospital. Ehling did not invite any of her coworkers to be her facebook friends. Ehling filed lawsuit for invasion of privacy claiming that supervisors at MONOC accessed her facebook wall without consent. Does MONOC's actions imply invasion of privacy. - False imprisonment: intentional unjustified confinement of a nonconcenting person. - Malicious prosecution: Causing someone to be arrested criminally without proper grounds - Tresspass: entering another's land without consent or to remain there after being asked to leave. - Negligent: Lack of caring (ie. slip and fall cases) - Strict liability: reserved for inheriently dangerous items/objects (ie. keeping a pet tiger, should he escape and hurt someone you are strictly liable as the tiger is inheriently dangerous) - Conversion: Wrongful exercise of dominion and control over a resource. (kinda linke stealing? but not really...) - persay someone rents a car; rental agreements explicitly states that the car can only be used withing the US. the Buff takes his rental car into mexico for a beer run. This is conversion as the contract specified that the car cannot leave the US. - Defamation: Publication of untrue statements about another that hold up that individuals reputation to ridicule. - Fraud: intentional misrepresentation of a material fact that is relied upon by someone to his or her injury. to have fraud, the wrong has to be intentional, ie you can't accidentally turn back your cars odometer. (That is a LIE! Sauromon has always been our friend AND ally) ## Interference with business relations - Injurious falsehood: publication of untrue statements that disparage teh business owner's product or it's quality. (talkin shit business to business, lies about the business not the individual) - intentional interference with contractual relations. (pro athletes experience this. ie opposing team bidding for player before contract is up) - Raiding another company for employees - Interfering with contract of merger of one company with another (companies may have bidding wars with another but if a contract is in place and signed, then no one can interfear) ## Negligence - Unreasonable behavior that causes injury. - Elements: - Duty of care (employee sees spill and does nothing to clean it up or mark the spill) - Breach of Duty (bear saw the spill and did nothing, there we have a breach) - Causation in fact (Bear decided to not clear up spill, is that why the buff slipped and fell?) - Proximate causation (how direct was this thing; bear didn't clean up spill, buff fell in it; fairly direct) - Acutal injury (Buff broke a leg!) ###### Consumer protection: flashcards reccommended; not interesting stuffs, more than likely to be on homework and tests cause there's tons of laws and neuances ## FTC Federal Trades Commission - Keeps competition free and fair, protects consumers. - Trade practice regulation, ensures fair competition - provides **advisory opinion** (Can ask if what are you about to do is ok, Hey IRS can I do this with my taxes?) - Issues industry guides. - specifies FTC's views of the legality of an industry's trade practices - Prosecutes business for committing unfair or deceptive trades. ## TODO: add fig. 18.1, Consumer Protection Laws the FTC administers ## FTC Penalties and Remedies - Civil fines at $16,000 per violations - assesssed in situations for violation of: - consent or cease and desist order - Trade regulation rule - Proir FTC orders against others. - Remedies - corrective advertising - recission of contracts - refund of money or return of property - payment of damages to consumers - public notification of trade practice violations ## FTC Today - Mission and enforcement of Section 5 varies according to the economic orientation of the president and congress. - allows the market to regulate advertising - determines what is deceptive or unfair, making new rules as needed. ## False Advertising - Determining Deception - Reasonable consumer and context - Express and implied claims - Misimpressions - Materiality ## Consumer privacy - Limitations on Government Intrusions - Bill of Rights protections. - Privacy act of 1974 - Places contraints on collection and usage of information by the federal government - Right to Financial Privacy act of 1978 - Requires government agencies seeking depositor records from financial institutions to notify the depositors ## Business Privacy - Common law privacy torts - Intrusion on seclusion - public disclosure of private facts - Example fo legislated privacy related to a specific consumer transaction - HIPPA, my health records are private (Health insurance portability and accountability act) - Video privacy protection act (VPPA) ## Election and online privacy protection - Electronic Communications Privacy Act - Prevents the interception of electronic or wire communications by unauthorized people - Stored Communications Act - Prohibits unauthorized access or disclosure of stored communications - Children's online privacy protection act - Prohibits the collection of information on children under the age of 13 without a parent's consent. - FTC - Scrutinize companies tha tmake affirmative promises about privacy. ## Case 18.1 - Electronic and Online Privacy - CDA Communications Decency Act; ## International Privacy Protection - Data Proctection Directive: - Mandates that companies can collect personal information only with consent. - Information can be kept only until necessary, and transferred to third parites only with permission. - Agreed to a safe harbor framework with the U.S. ###### review discrimination and it's varrying levels for final exam! ## Equal Credit Opportunity Act (ECOA) - Prevents discrimination in credit extension - Prohibits: - Discrimination based on sex, marital status, race, color, age, religion, national origin, or receipt of wellfare . - Discouraging a consumer from seeking credit based on the categories. - applies to **all business** that extend credit regularly. - Responsibilities of a credit extender. - Must consider alimony, child support and maintenance payments as income. - Information on accounts used by both spouses must be reported to third parties in their names. - must provide specific reasons for credit denial. - Remedies and Penalties: - Recovery of actual damages. - punitive damages up to $10,000 - attorney's fees and legal costs. ## Fair credit reporting act (FCRA) - Applies to anyone who prepares or uses a credit report in connection with: - Extending credit - Selling insurance - Hiring or firing an employee - Consumer rights: - To be given the name of the agency making the report - To require the agency to reveal the information given in the report. - ** investigative consumer reports** - minimum of three days of advance notice must be given to attain such a report. - Credit reporting agencies must observe reasonable procedures, or they will be liable to consumer. - Penalties and Remedies: - Violators are civilly liable to the injured consumer. - legal fees. ## Fair and accurate credit transactions (FACT) - Provides the right to dispute information on credit reports. - Allows consumers to place fraud alerts on the report to notify creditors of identy theft. - Permits consumer to get free credit report from national consumer reporting agencies. ## Truth-in-Lending Act: - Covers transactions with: - Lender is in the business of extending credit - Debtor is a natural person - Finance charge can be imposed. - Credit is obtained for personal, family, household and agricultural purposes. - Full disclosure can be accomoplished through: - Finance charge - Annual Percentage rate - Financial statement should include: - Default or delinquency charges due to late payment - Description of property used as security - Total amount to be financed - Penalties and Remedies: - Civil liability provisions make creditors liable to debtors for: - Actual damages and an amount equal to twice the finance charge - cost and attorny fees - Debtors have the right to rescind or cancel certain transactions for a period of three business days. - allows consumer-borrowers to rescind their mortgage agreements. - Trends - Truth-in-Lending Simplification act (1980) - Elimates statutory penalties based on technical violations of the act. - Requires the government to issue model disclosure forms - Studies show that many involved in credit extension fail to make required Truth-in-Lending disclosures in their advertising. ## Fair debt collection practices act: - The collector cannot: - Physically threaten the debtor - Use obscene language - Represent himself/herself as an attorney unless it is true. - Threaten debtor with arrest or garnishment unless the collector can legally take such action and intends to do so. - Fail to disclose his/her identity as a collector. - telephone before 8am or 9pm in most instances. - Telephone repeatedly with intent to annoy - Place collect calls to the debtor - Use any 'unfair or unconscionable means' to collect debt. ## Consumer financial protection act - Created teh consumer financial protection bureau - authority overlaps with that of the Federal Trade Commission - makes and enforces rules regulating unfair, deceptive or abusive acts toward consumers. - applies to: - Any covered person offering a ## Bankruptcy - Not subject to regulatory enforcement - Proceedings - Filing of a voluntary or involuntary petition - Individual property can be: - **Liquidated** under chapter 7, debts are discharged - **Adjusted** under chapter 13 - **Trustee:** person elected by creditors to represent the debtor's estate - powers - affirm or disaffirm contracts with the debtor which are yet to be performed - set aside fraudulent conveyances (hiding assests from creditors) - Void certain transfers of property by the debtor to creditors - Sue people who owe the debtor an obligation - set aside statutory liens against the debtor's property - Table 18.4 Priority of Bankruptcy creditors - Spouse, formor spouse, child or guardian with claims for domestic support. - Creditors with claims that arise from the costs of preserving and administering the debtor's estate - Creditors with claims that occur in the ordinary course of the debtor's business after a bankruptcy peition has been filed. - Employees who are owed wages earned within 180 days of the bankruptcy petition (limited to $12,475 per employee) - - Discharge - secures a debtor of further obligation to the creditor - Debtor may fail to receive discharge if he or she has: - concealed property of falsified books of record - refuesed to obey court orders - failed to explain any losses of assets - been discharged within the prior six years ## Additional statues for consumer portection - fair credit bililng act - electronic fund transfer act - consumer product saftey act - Magnuson-moss warranty act - federal, food drug and cosmetic act - labeling laws. - state consumer protection