Additional Stuff Flashcards
Consequential Damages
Damages arising out of the breach that were reasonably foreseeable to the breaching party at the time of the breach.
Non compete Provisions
Although restrictions on a person’s ability to be employed are generally disfavored.
The court will closely scrutinize non-compete agreements and will enforce only if (1) the non-compete protects A LEGITIMATE BUSINESS INTEREST, (2) it is NO MORE RESTRICTIVE than is necessary, and (3) it is sufficiently limited in SCOPE AND DURATION.
Presumption that less than 6 months is enforceable, more than 3 years is unenforceable.
Defamatory Statement
Statement of fact that either (1) on its face NEGATIVELY REFLECTS ON PLAINTIFF or (2) where the statement would lead REASONABLE PERSON to infer negative defamatory fact about the P.
Opinions are not actionable as defamatory statements.
Defamation Damages
Damages need not be shown for a prima facie case of libel.
Damages must be proved for slander, unless slander per se (IBI, CH, LD, CMT)
Economic damages, non-economic damages are generally not available for defamation.
Defamation of Public Figure
(1) Falisity and (2) knowledge that the statement was false or reckless indifference to the truth.
Open and Obvious Doctrine of Tort Liability
A promise owner will not be liable to a plaintiff for injury caused by a condition that was so open and obvious to the plaintiff that the plaintiff should have taken due care to avoid.
Premise Liability with Independent Contractors
A promise owner has a duty to provide for the reasonable safety of their visitors, and this duty cannot be contracted out or delegated to a third party.
Slavin Doctrine
Subcontractor is only liable to the contractor for a latent defect–i.e., one that would not be found through ordinary investigation by the property owner.
General Statement Regarding RPC
Florida lawyers are bound by the Rules of Professional Conduct. Lawyers are expected to adhere to these rules in their personal and professional lives. Violation of these rules could result in discipline from The Florida Bar including public admonishment, suspension from the bar, and expulsion from the bar.
Government action resulting in a permanent deprivation of reasonable expected use property.
Inordinate burden
RPC - loaning funds
May not load money to clients
Exception - paying fees so client can get access to courts
RPC - influence over judge
An attorney may not imply that they have the ability to exercise any kind of undue influence over a judge in a matter.
Judges must remain entirely impartial in the cases they handle.
Standing requirements for bringing cause under a statute
(1) in jury in fact, (2) causation and (3) repressibility
Analyze a K question
- Valid contract
- Defenses to formation
- Breach of K
FL Business Trust Merger
Can merge into corporation subsidiary - corp survives
FL Voting Trust
- Trustees are vested with legal title to the shares for the duration of the trust, including full authority to vote the shares in accordance with the agreement
- Shareholders get voting tust certificates evidencing their interest and a list is furnished to the corp
Merger Approval
Absolute majority
Short merger approval
80% owned; no approval but appraisal rights for sub SHs
de facto merger doctrine
Entitles shareholders purchasing the assets of another to voting and appraisal rights
To find a de facto merger there must be: (a) continuity of the selling corporation evidenced by the same management, personnel, assets and physical location; (b) a continuity of the stockholders, accomplished by paying for the acquired corporation with shares of stock; (c) a dissolution of the selling corporation; and (d) an assumption of the liabilities.
Change in form, but not substance.
Liability for debts of a business trust
The trustees primarily, and the trust corpus derivatively
Florida’s Control Share Acquisition Statute Applies when
Any issuing public company having (1) more than 100 SHs, (2) PPOB in FL, (3) 1000+ or 10%+ of SHs residing in FL
Florida Control Share Acquisition Covers
Disenfranchises shares acquired by any control share acquisition, which is defined as an acquisition of shares that would but for the Act give the purchaser voting power of more than 20%, 30% or 50%.
The purchaser’s voting rights may be rested only with the approval of the target corporation’s disinterested shareholders.
Florida Affiliate Transaction Law
Regulates the exercise of corporate control by requiring the approval of “affiliate transactions” by either a majority of disinterested directors of the corporation or by 2/3 vote of the SHs, excluding interested
Executive committee can do anything the board can do except
Fill vacancies on the board or any committee, amend bylaws, or issue stock.
SH inspection rights
Absolute right, during regular business hours at PPOB, with written demand at least 5 business days in advance to:
- AOI/Bylaws
- Board resolutions creating class of shares
- Minutes of SH meetings
- Names/address of D&Os
- Most recent annual report
Non-delegable Ks
Personal skill and judgment
Neutral law of general applicability impacts religious practice
Rational basis review
Regulation of commercial speech
4-step process for validity: (1) whether the commercial speech concerns a lawful activity that is not misleading or fraudulent, (2) the regulation must serve a substantial government interest, (3) it must directly advance that interest, and (4) it must be narrowly tailored to serve the substantial interest.
The 4th part requires that it be a reasonable fit between the government interest and the means chosen.
Trade Fixtures
The trade fixtures exception allows tenants who are tradesman to remove items used in their trade that would be fixtures, unless removal would cause substantial damage.
Ripeness
Avoids advisory opinions.
Countermand
Revocation
Revocable Inter Vivos Trusts that control disposition of trust property on settlor’s death
are ineffective unless the trust instrument and any amendments are executed in accordance with the Statute of Wills
Termination Trust after Settlor Death
By consent of all beneficiaries unless the termination would interfere with a material purpose of the settlor.
Where there is a clear and unambiguous provision in a trust instrument as to the duration of the trust, the trust may not be terminated before that time
Termination Upon Petition of Trustee or QB
if (1) termination is not inconsistent with the settlor’s purpose, (2) termination is not otherwise in the best interests of the beneficiarys, or (3) continuation of the trust would be uneconomical
Court removal of trustee
Upon petition of settlor, co-trustee or QB upon one of the big 5 reasons.
Trust created during lifetime
Revocable Inter Vivos - note this!
Trust after the elements
Reference the SOF
Slayer’s Statute - Conclusive Evidence
A final judgment of conviction of murder in any degree is conclusive evidence
Denied Right to Sue
Access to Courts Clause
The courts must be open to every person for redress of injury. If the court abolishes a cause of action, a reasonable alternative must be provided unless (1) the legislature can demonstrate a compelling public necessity for the abolition and (2) no alternative method of meeting such public necessity can be established.
Shareholder Agreement Requirement
Legally and specifically enforceable in Florida. In writing and signed by the shareholders in question.
Shareholder liability for director actions
Agency theory
Proxies are good for…
11 months
Shareholders entitled to vote
List must be compiled list entitled to vote and if not shareholders can demand meeting adjourned.
Dissolution Vote
Board resolutions plus majority of shares entitled to vote unless governing documents require greater percentage.
Closed Corporation
Less than 100 SHs
Sale of shares by controlling shareholder of close corporation
Must take reasonable measures to investigate buyer’s character and reputation.
