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Legal 2700 > Exam 3 > Flashcards

Exam 3 Flashcards

1
Q

criminal overview

A

protecting whom, sources of law, who brings the case, standard of proof

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2
Q

protecting whom

A

wrongs against society

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3
Q

sources of law

A

authority in federal and state codes (criminal sections or sometimes referred to as penal codes)

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4
Q

who brings the case?

A

government is the party prosecuting

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5
Q

standard of proof

A

beyond a reasonable doubt

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6
Q

white-collar crime

A

any illegal offense that occurs in a business or professional setting - committed to harm the business, personal gains, or even business gain

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7
Q

civil law: focused on types of penalties

A

damages or equitable relief

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8
Q

criminal: focused on types of penalties

A

fines, prison sentences, probation, community service, etc.

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9
Q

felonies

A

indictment: grand jury, fine or imprisonment >= 1 year

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10
Q

misdemeanor

A

information: government charge, fine or jail <= 1 year

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11
Q

intent: willful or knowingly

A

ignorantia juris non excusal: ignorance of the law is no excuse, a lot of laws to know about

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12
Q

pleas in criminal cases

A

guilty, not guilt, solo contendere (“no contest)

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13
Q

nolo contendere (“no content)

A

not defending and not admitting guilt, only on certain types of crimes, criminal conviction may be basis for civil damages suit

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14
Q

trends in white collar crime I

A

increase in prosecution of white collar criminals and legislative efforts to protect the public from fraud, sarbanes-oxley act

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15
Q

trends in white collar crime II

A

investigation of illegal activities by top management, plea bargaining with mid-level employees in exchange for testimony against top-level employees

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16
Q

trends in white collar crime III

A

prosecutors capitalize on high-profile prosecutions

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17
Q

4th amendment

A

protects individuals and corporations from unreasonable searches and seizures by the government, usually (but not always) require the police to obtain a search warrant

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18
Q

expectation of privacy

A

warrantless inspection of: commercial premises is reasonable in certain circumstances and higher likelihood a search of a private residence is unconstitutional

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19
Q

grand jury: fifth amendment to the US Constitution

A

before a trial for a capital, or otherwise infamous crime, there must be presentment of an indictment by a grand jury

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20
Q

grand jury: comprised of 16 to 23 citizens: unanimity is not required

A

determine whether probable cause (reasonable basis) a crime has occurred - still have presumption of innocence: presuming that an indicted person is innocent until found guilty by a petit (trial jury), serve as an investigative body, functioning depends upon the secrecy of the proceedings

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21
Q

5th amendment protects the accused from being compelled to testify against self; does not protect

A

against being required to produce physical evidence, a person who is required to produce business records, companies: sole proprietorship business who are protected as impossible to distinguish between individual and the business

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22
Q

individuals cannot be tried twice by the same governmental entity for the same crime

A

double jeopardy, does not prevent two prosecutions - federal and state, on civil side you can think of doctrine of res judicator: prohibits subsequent civil actions involving the same parties, claims and causes of action

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23
Q

6th Amendment provides multiple protections that offer the right to

A

speedy and public trial, trial by jury, be informed of the charge against oneself, confront the accuser, subpoena witnesses in one’s favor, have the assistance of an attorney

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24
Q

8th amendment

A

prohibits government from imposing excessive bail, excessive fines, and cruel and unusual punishment

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25
Q

examples of white collar crimes: larceny

A

robbery, burglary, embezzlement

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26
Q

fraud

A

creates criminal liability, fines and/or imprisonment are exerted on individuals who knowingly and willfully defraud another, many specific types of fraud for which there are federal and state criminal codes

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27
Q

scheme to defraud

A

plan designed to take from a person the tangible right of honest services

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28
Q

theft by deception

A

taking another’s property under false pretenses (words or conduct that create a false impression

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29
Q

conspiracy

A

agreement or a partnership for criminal purposes (two or more people) - each member becomes the agent or partner of every other member - and an offense occurs when one makes a conspiracy agreement and commits an overt act

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30
Q

overt act

A

any event knowingly committed by a conspirator to accomplish some object of conspiracy

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31
Q

embezzlement

A

stealing in the workplace

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32
Q

cyber crime

A

person who intentionally accesses a computer without authorization or exceeds authorized access to obtain classified, restricted, or protected data, is subject to criminal prosecution: identity theft, phishing, denial of service, ransomware

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33
Q

electronic theft

A

hackers steal money, trade secrets, personnel records, and customer lists

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34
Q

aggressive goals without goalposts

A

tied to job incentives although perhaps not always directly financially rewarding in short term

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35
Q

poorly designed overall job incentives

A

bonuses, stock grants/options, etc. - short term behaviors generally rewarded

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36
Q

moral hazard

A

risk taking and different behavior knowing others bear the downside

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37
Q

management nonchalance towards ethics

A

business decisions that are unethical unto themselves or turn a blind eye to others in organization or those that work for the company

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38
Q

unethical behavior perceived as harmless

A

belief that white collar crime is “victimless” because of its non-violent nature

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39
Q

disregard for the law and belief everyone misbehaves

A

people disagree with the law or everyone is doing it mentality

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40
Q

hubris due to success

A

feeling of invincibility

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41
Q

motivated blindness

A

not stopping bad behavior because not in self-interest to do so

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42
Q

pilfering public or private entities

A

a lot of money that is tempting

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43
Q

group behavior

A

less personal responsibility

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44
Q

roles of scarcity

A

need for resources outstrips supply of those resources

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45
Q

state controlled/communism

A

government controls all resources and directs how they are divided up between citizens

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46
Q

property- based/capitalism (private/free markets)

A

enact laws that enable citizens to acquire, possess, use, and transfer scarce resources

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47
Q

states generally have a mix

A

not purely one or the other

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48
Q

private property establishes necessary conditions for capital formation

A

loan for a business and can convert rights in one resource (house) into rights in different resource (cash) for purpose of starting a business

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49
Q

loan for a business

A

put up house as collarteral

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50
Q

real property

A

land, interests in land, buildings (surface, air, subsurface, fixtures)

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51
Q

personal property

A

movable resources (tangible and intangible)

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52
Q

acquiring property

A

exchange, possession, confusion, accession, and gift

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53
Q

exchange

A

most common - buying things, providing services - contracts

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54
Q

un-ownded

A

includes abandoned, rule of first possession

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55
Q

lost

A

own it except the rightful owner can come back for it (may need to provide to police, take reasonable measures to locate owner, etc.)

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56
Q

mislaid

A

owner of premises and owner can come back for it (state dependent as well)

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57
Q

neglected land

A

adverse possession

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58
Q

open & notorious

A

not secretive

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59
Q

continous

A

uninterrupted for a fixed period of time

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60
Q

exclusive

A

sole occupant of land

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61
Q

actual

A

physical presence on land

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62
Q

non-permisive

A

without owner’s permission

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63
Q

confusion

A

fungible goods mixed together

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64
Q

accession

A

adding something new

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65
Q

if accidentally acquired

A

then acquirer gets it but must compensate original owner

66
Q

if stolen

A

the original owner gets modified property

67
Q

gift

A

intent and transfer means you can’t take it back

68
Q

escheatment

A

must turn over the funds to the state

69
Q

types of ownership for real property

A

fee simple, life estate, leasehold estate, concurrent ownership

70
Q

“To Michelle forever”

A

fee simple absolute to Michelle

71
Q

“To Michelle so long as the land is used for…”

A

fee simple defeasible to Michelle

72
Q

“To Michael for life”

A

present interest (life estate to Michelle), Future Interest (reversion interest to Kathy)

73
Q

“To Michelle for life, then to Jim”

A

Present Interest (life estate) to Michelle, Future Interest (remainder interest) to Jim

74
Q

lost property example

A

crooks accidentally put it in there or somehow dropped it in there!

75
Q

mislaid property

A

crooks intentionally set it there, and we now own the “property upon which it was found”

76
Q

once abandoned,

A

property goes back to nature like wild animals

77
Q

fee simple absolute

A

own it outright without restrictions

78
Q

fee simple defeasible

A

own it with condiitons

79
Q

life estate

A

present and future interests

80
Q

To Michelle, as tenant for 12 months

A

leasehold estate to Michelle

81
Q

To Jason and Julie

A

tenancy in common

82
Q

To Jason and Julie as joint tenants with right of survivorship

A

joint tenancy

83
Q

easement

A

the right to use the land of another in a certain way

84
Q

easement by prescription

A

ownership vs right to use, similar to adverse possession, openly, wrongfully, period of time (frequently 15-20 years)

85
Q

natural easement

A

one of necessity, configuration of land makes it “necessary” to give right to use

86
Q

bailment

A

arises when you entrust someone with property to be returned in the future, owner (bailor) entrusts their property to someone else (bailee)

87
Q

reasonable care

A

for the mutual benefit of both parties

88
Q

slight duty of care

A

for the sole benefit of the bailor

89
Q

high standard of care

A

for the sole benefit of the bailee

90
Q

Types of Intellectual Property

A

trademark, copyright, patent, trade secret

91
Q

trade secrets

A

knowledge or info - kept secret (reasonable measures taken), economic value

92
Q

conduct a trade secret audit

A

to identify confidential knowledge-based resources, records and data classification reviews are quite common

93
Q

preserve secrecy examples

A

lock up written material, secure computer-stored knowledge with firewalls and encryption, regulate visitors, properly mark documents, NDA and non-compete

94
Q

trade secretes - how long does the protection last

A

economic value and reasonable measure to keep secret

95
Q

misappropriation

A

occurs when one improperly acquires, discloses, or trade secret

96
Q

what if accidental (defenses)

A

independent creation and reverse engineering

97
Q

civil enforcement of trade secrets

A

trade secret owners can get an injunction and owners can obtain damages from people who misappropriate trade secrets

98
Q

criminal enforcement of trade secrets state laws

A

Economic Espionage Act (EEA), considers stealing trade secrets a crime and punishment

99
Q

injunction

A

order by a judge either to do something or to refrain from doing something

100
Q

individuals

A

fines and up to 10 years’ imprisonment

101
Q

organizations

A

up to $5 million in fines

102
Q

provisions

A

makes one liable for standard trade secret misappropriation and addresses misappropriation to benefit a foreign government

103
Q

patent law

A

new invention, legal monopoly

104
Q

utility patent

A

new non-obvious, useful processes, machines compositions of matter or improvements thereof, term: 20 years from filing date

105
Q

design patent

A

new, original and ornamental design for an article of manufacture; term 16 years from issue date

106
Q

plant patent

A

new variety of plant that can be reproduced asexually, term: 20 years from filing date

107
Q

obtaining a patent

A
  1. File application 2. Filing fee 3. Explain invention 4. Show difference from prior art 5. Describe patentable aspects 6. Evaluation by the patent examinier
108
Q

patent

A

exclusive right to invention

109
Q

patentable subject matter

A

validity of a patent often tested by scrutinizing its subject matter as well as whether it meets the other requirement and certain categories of subject matter cannot be patented

110
Q

cannot be patented

A

mere ideas, laws of nature, natural phenomena, mathematical formulas, general business concepts versus “methods” or processes” is tricky

111
Q

characteristics of patents

A

novelty, nonobviousness, utility

112
Q

novelty

A

something new and different from the prior art and cannot have been published, sold, or put in public use by inventor >1 year before

113
Q

nonobviousness

A

ability of an invention to producing surprising or unexpected results

114
Q

utility

A

must to do something useful, things that don’t work don’t count

115
Q

patent rights

A

exploiting a patent; may want to license your invention to others (or may need to get licenses from others)

116
Q

“exploiting” a patent

A

right is to exclude other from making, using, selling, importing and depending on circumstances may be able to make it yourself

117
Q

trade symbols

A

marks on what is produced to represent the origin of goods and services, recognizability or distinctiveness, protection against confusion

118
Q

Marks Protected by the Lanham Act of 1946

A

trademark, service mark, certification mark, collective mark, and trade dress

119
Q

fanciful marks

A

made up words (Exxon)

120
Q

arbitrary marks

A

normal words but used in a different way (Apple for computers)

121
Q

suggestive marks

A

hints at what it is (Netflix, Airbus)

122
Q

descriptive marks

A

describes the good or service (Cold and Creamy) - can develop “secondary meaning”

123
Q

generic terms

A

common name of a product or service (Clock)

124
Q

trademark registration

A

use of the mark conveys some rights, extra rights (ex: national protection, extra damages) requires registration with PTO - must be used in interstate commerce, TM or SM prior to registration after, granted the right to use R, registered on the principal register if the mark is acceptable, must be renewed every 10 years

125
Q

trademark infringement

A

remedies include civil damages and injunctions and orders to destroy infringing products; and manufacturing and trafficking counterfeit trademarked products is a criminal violation

126
Q

1st Defenses

A

Mark is not distinctive; rather, it is descriptive or generic (may have become “generalized” and lost its protection)

127
Q

2nd Defense

A

fair use

128
Q

Fair Use

A

discussion, criticism, parody, comparison advertising (need to show study info), allowed to use Advil’s mark because it has similar ingredients, comparison), little chance of confusion

129
Q

Federal Trademark Dilution Act 1995

A

prohibits the usage of a mark same as or similar to another famous trademark to dilute its significance, reputation, and goodwill

130
Q

blurring: type of trademark dilution

A

when usage of a mark blurs distinctiveness of a famous mark

131
Q

tarnishment

A

when usage of a mark creates negative impression about the famous company

132
Q

dilution claim, tarnishment

A

Ben and Jerry’s sues porn company for using one of their ice cream names for the name of a film

133
Q

copyrights

A

like other forms of IP, we are not interested in protecting ideas

134
Q

requirements of copyrights

A

original works of authorship, fixed in tangible medium, creative expression requirement; protection attached as soon as the three elements are met

135
Q

registration is not required; however it is required to sue for infringement

A

can and should immediately mark with words and/or C

136
Q

who owns in a corporate setting

A

employees have to turn over what they did in employment; “work made for hire” language in outsourced deals, put this in contract

137
Q

copyrights - the owner has to establish that defendant violated his or her exclusive rights of

A

reproduction, creation of derivative works, distribution, performance, display

138
Q

how long does protection last - copyright

A

authors lifetime plus 70 years, 95 years from publication or 120 years from creation for a “work made for hire” or by a company

139
Q

after expiration - copyright

A

the material goes into the “Public Domain”

140
Q

First Sale Doctrine

A

copyright holder loses all rights over a particular physical (or digital) copy once sold

141
Q

blurring hurts

A

distinctiveness

142
Q

garnishment hurts

A

reputation

143
Q

copyright act

A

specifies that fair use of copyrighted materials is not an infringement of the owner’s property

144
Q

fair use includes

A

criticism, comment, parody, news reporting, teaching, scholarship, or research

145
Q

factors considered by courts

A

purpose and character of the use, nature of work, amount and substantiality of the portion used, effect of the use upon the potential market

146
Q

managerial control of decisions

A

how do we decide what to do if owners disagree

147
Q

owner liability

A

who is liable for the firm’s debts

148
Q

taxation

A

how is the income earned by the business taxed

149
Q

your entity type may (and very likely will) change over time as your company matures

A

regularly evaluate your entity type with advisors

150
Q

basic forms of business organizations

A

sole proprietorships, partnerships (general partnership), corporations (C-Corporation)

151
Q

hybrid forms of business organizations

A

limited partnerships, S-corporations, limited liability companies, limited liability partnerships

152
Q

double taxation

A

profits taxed at corporate level and then dividends taxed at individual level

153
Q

Fiduciary Duty

A

obedience, loyalty

154
Q

Lack of a fiduciary duty

A

doesn’t mean you can do whatever you want… remember fraud can be done by people with a fiduciary duty are not

155
Q

components of fiduciary duty

A

act in good faith and in as a prudent person would, act in the best interest of the corporation

156
Q

business judgement rule

A

directors and officers are expected to exercise due to care and use their best judgement

157
Q

duty to make informed decisions

A

must be informed on corporate matters and conduct reasonable investigations, this requires meetings attendance, seek information, and date review

158
Q

piercing the corporate veil

A

marginalization of the corporate entity by courts when finding out that the corporation is being misused

159
Q

alter-ego theory

A

used to impose personal liability upon corporate officers, directors, and stockholders

160
Q

components of alter-ego theory

A

blending of assets, not following formalities of the corporation (by laws, meetings, etc.), control concentrated in one person, fraudulent behavior

161
Q

derivative suits

A

a minority shareholder brings an action against an officer or director on behalf of the company

Legal 2700 (1 decks)

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