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Bar Prep General > Hail Mary > Flashcards

Hail Mary Flashcards

1
Q

Rule 10b-5

A

The fraudulent purchase or sale of any stock or other security can give rise to a Rule 10b-5 action.

1) P purchased/sold security
2) tx involved use of interstate commerce
3) D engaged in fraudulent/deceptive conduct
4) conduct related to Material information
5) P relied
6) P suffered harm

Pay It Forward, My Rustic Hamlet

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2
Q

Section 16(b)

A

A corporate insider can be forced to return short-swing profits to the corporation through a 16(b) action. An insider’s reasons for trading are immaterial. Even an insider who does not possess nonpublic material information must return short-swing profits.

1) C publicly traded and has securities traded on national stock exchange OR have assets of more than $10M and 500 shareholders of any class
2) Only C, D, S who hold more than 10% of any class are subject
3) 6-Mo insider who buys/sells is liable for profits
4) Insider required to report change in stock ownership to SEC

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3
Q

Contract Mutual Mistake

A

1) Existed when K formed
2) Relates to basic assumption
3) Material impact on tx
4) No assumption of risk

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4
Q

Contract Misrepresentation

A

1) Fraudulent/Negligent (knowing/reckless/meant to mislead)
2) Misrep Induced assent
3) Justifiable Reliance

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5
Q

Contract Duress

A

Improper threat that deprives a party of meaningful choice

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6
Q

Contract UI

A

Unfair persuasion of a party to assent to a K

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7
Q

Injunction

A

I Put Five Bucks Down

1) Irreparable Harm
2) Probability of success
3) Feasibility of Enforcement
4) Balance of Equities
5) Defenses

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8
Q

Specific Performance

A

1) Valid K
2) Terms clear/certain
3) Fairness
4) Feasibility of Enforcement
5) Balance of Equities
6) Defenses

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9
Q

Constructive Eviction

A

1) Substantial Interference
2) Notice and Reasonable time to repair, but no repair
3) Tenant Vacates

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10
Q

Types of Easements

A 
Express
Implication
Necessity
Prescription
Estoppel
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11
Q

Easement Termination

A 
Release
Merger
Severance
Abandonment (Acts and Clear intent)
Destruction/Condemnation
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12
Q

Transfer by Deed

A

Present Intent and Acceptance (presumed)

Property, Parties, Signature, Words of Transfer

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13
Q

Deed Covenants

A

Seisin
Right to Convey
Against Encumbrances

Quiet Enjoyment
Warranty
Further Assurances

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14
Q

Lateral Support Rights

A

Strict if would have collapsed alone

Negligence if structures contributed

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15
Q

Subjacent Support

A

Strict for failure to support buildings that were there when rights were conveyed

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16
Q

Physician Informed Consent

A

Malpractice Unless

i) Risk commonly known
ii) Patent unconscious
iii) Patient waives
iv) Disclosure harmful

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17
Q

Attractive Nuisance

A

a) You know it’s dangerous
b) You know kids will be there
c) The kids don’t know
d) Risk/Utility
e) Didn’t protect

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18
Q

Res Ipsa Loquitur

A

1) Doesn’t occur in absence of negligence
2) Instrumentality within control
3) Not caused by P

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19
Q

NIED

A

Zone of Danger and ED

Bystanders

a) Closely Related
b) Present
c) Personally Observed

Specific Relationship

a) Mishandling a corpse
b) Misreporting Death

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20
Q

Abnormally Dangerous Activity

A

Creates foreseeable rick of harm even when reasonable care is exercised, and the activity is not commonly engaged in

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21
Q

Failure to Warn

A

a) Foreseeable risks of harm
b) Not obvious to ordinary users
c) Risks reduced or avoided with reasonable warnings

(Learned Intermediary Rule)

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22
Q

Defamation

A

1) Defamatory (respect, esteem, goodwill)
2) Of or Concerning
3) Publication
4) Damages
5) Falsity

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23
Q

Slander Per Se

A

1) Professional reputation
2) Disease
3) Crimes of moral turpitude
4) Unchaste behavior

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24
Q

Misappropriation

A

Unauthorized use of P’s name, likeness, or identity for D’s advantage

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25
Q

Intrusion Upon Seclusion

A

Intrusion into private affairs that would be objectionable to a reasonable person

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26
Q

False Light

A

Published facts place false light and highly offensive to a reasonable person

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27
Q

Negligent Misrepresneation

A

1) False Info Provided
2) Result of Negligence
3) Course of D’s business
4) P justifiably relies

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28
Q

Intentional Interference with Contract

A

1) Valid K (Not for Prospective Economic Advantage)
2) D Knew
3) Intentional Interference
4) Damages

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29
Q

Larceny By Trick

A

1) Aquire Possession to
2) Property of Another
3) Through Fraud/Deceit
4) With Intent to Convert

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30
Q

False Pretenses

A

1) Aquire Title to
2) Property of Another
3) Through Reliance on a false representation of material fact
4) With intent to defraud

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31
Q

Embezzlement

A

1) Fraudulent
2) Conversion
3) Of property of another
4) By Someone in lawful possession

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32
Q

Forgery

A

1) Fraudulent
2) Making
3) Of a false Writing
4) With Apparent legal significance
5) With Intent to Defraud

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33
Q

Criminal Battery

A

Unlawful application of force to another that causes harmful or offensive touching

34
Q

Tort Battery

A

Harmful or offensive contact with the person of another, with intent to cause contact or apprehension

35
Q

Tort Assault

A

Reasonable apprehension of imminent harmful contact or offensive bodily contact

36
Q

Criminal Assault

A

a) Attempted battery; or

b) Intentionally placing another in apprehension of imminent bodily harm

37
Q

Criminal False Imprisonment

A

Unlawful; confinement of a person; without consent

38
Q

Tort False Imprisonment

A

1) D acts intending to confine or restrain
2) Fixed boundaries set by D
3) Causes confinement
4) P aware or harmed

39
Q

Rape

A

a) Unlawful
b) Sexual Intercourse
c) With a female
d) Against her will by force or threat of immediate force

40
Q

Solicitation

A

a) Enticing, Encouraging, Commanding another person
b) To commit a crime
c) With the intent they commit the crime

41
Q

Open Areas - No REP

A

a) Proximity
b) Enclosure
c) Use
d) Protection

42
Q

Ineffective Assistance of Counsel

A

a) Fell below objective standard of reasonableness

b) Prejudiced D

43
Q

State Taxation of Commerce

A

a) Substantial nexus - activity and state

b) Fair Apportionment

44
Q

Amount of Process Due

A

1) Interest Affected
2) Value of Additional Safeguards
3) Costs of Additional Process

45
Q

Proving Discrimination

A

Need Discriminatory Intent to Trigger SS or IS

a) On Face
b) Application
c) Motive

46
Q

Lemon Test

A

a) Secular Purpose
b) Primary effect neither advance/inhibit
c) Avoid Excessive Entanglement

47
Q

Expressive Conduct

A

I-IU Great

1) Important Interest
2) Unrelated to the suppression of expression
3) burden no Greater than necessary

48
Q

Prior Restraints

A

1) Particular Harm
2) Procedural Safeguards
a) Narrowly definite standards
b) Prompt injunction
c) Prompt decision on validity

49
Q

Time, Place, Manner

A

CANS

1) Content-Neutral
2) Ample Alternative Channels
3) Narrowly Tailored/Sig. Interest

50
Q

Commercial Speech

A

Twist It, Slap It, Do it Now

1) Truthful, Informational
2) Substantial Interest
3) Directly advances Interest
4) Narrowly tailored

51
Q

Service of Process

A

90 days within filing complaint

21 days after service to 60 days

52
Q

Proposition 8

A

Proposition 8 provides that relevant evidence shall not be excluded in any criminal proceeding. This rule is subject to a number of exceptions, including privileges authorized by the CEC and hearsay exceptions.

53
Q

Logical Relevance

A

Tends to make a [disputed] fact more or less probable than without the evidence and the fact is of consequence.

54
Q

Legal Relevance

A

Probative value is not substantially outweighed by a danger of unfair prejudice.

55
Q

Non-Hearsay Uses

A

Impeachment
Effect On Listener
Verbal Acts
State of Mind

56
Q

Hearsay Exclusions

A

Prior Inconsistent Statement
Prior Consistent Statement
Prior ID

Party Admissions

a) Adoptive (heard, knew, would have responded)
b) Vicarious
c) Coconspirator

57
Q

Spillover Confessions

A

a) Redact unless overly suggestive
b) Try separately
c) Forgo evidence
d) Convince D to testify

58
Q

Hearsay Availability Immaterial

A

1) PSI
2) EI
3) MEP Condition
4) Medical Purposes
5) Past Recollection Recorded
6) Business Records
7) Public Records

59
Q

Present Sense Impression

A

Statement describing event or condition while perceiving event or immediately thereafter

60
Q

Excited Utterance

A

Statement made pertaining a startling event or condition made while under the stress.

61
Q

Statements for Medical Purposes

A

a) Made for Medical Purposes

b) Reasonably Pertinent to Diagnosis or treatment

62
Q

Past Recollection Recorded

A

a) Testifying
b) Once had knowledge
c) Insufficient to testify
d) Made or adopted while fresh in memory
e) Record accurately reflects knowledge

63
Q

Business Records Exception

A

a) Record
b) Made at or near time
c) By person with knowledge
d) Made in ordinary course of business
e) Regular practice
f) Foundation laid by custodian

64
Q

Public Records Exception

A

Records of a public office setting forth

i) Activities of the office
ii) Observations while under a legal duty to report
iii) Factual findings from a legit investigation

65
Q

Declarant Unavailable

A
  1. Former Testimony
  2. Dying Declarations
  3. Declarations Against Interest
  4. Personal and Family History
  5. Forfeiture by Wrongdoing
66
Q

Former Testimony Exception

A

a) Unavailable
b) Prior Proceeding
c) Subject to Cross at Time

67
Q

Dying Declaration

A

a) Unavailable
b) Civil or Crim Homicide
c) Believes death imminent
d) Concerns cause of death

68
Q

Declarations Against Interest

A

a) Unavailable
b) Contrary to Pecuniary, Proprietary, Penal Interests
c) Reasonable person wouldn’t have made statement unless true

69
Q

807 Catchall

A

1) Trustworthy
2) On Point
3) Necessary
4) Interest of Justice
5) Notice

70
Q

Expert Witness

A
  1. Possesses knowledge, skill, expertise, training, education
  2. Testimony based on sufficient facts/data
  3. Testimony product of reliable principles and methods
  4. Expert applied principles to facts
71
Q

Defective Incorporation

A

De Facto

a) Good faith effort
b) Didn’t Know Requirements were not met

By Estoppel

72
Q

Proxy Voting

A

In writing;
Delivered to secretary;
Valid for 11 months

73
Q

Shareholder Direct Action

A

a. Breach of fiduciary duty by director or officer

b. Tort grounds unrelated to shareholder status

74
Q

Shareholder Derivative Suit

A
  1. Standing
  2. Written demand on board unless futile
  3. Litigation expenses
75
Q

Business Judgment Rule

A

Courts will not second guess BOD decision if it was

i) Informed
ii) Reasonable
iii) In good faith
iv) In the best interest of the corporation

76
Q

Partnership

A

Formed when two or more persons (or entities) intend to carry on a for-profit business as co-owners

77
Q

Goodwill of CP Business

A

Market Sales Valuation

Capitalization of Past Excess Earnings

78
Q

Pereira

A

SP = value at marriage + (value at marriage x fair rate of return x years of marriage)

CP = FMV at divorce - SP

79
Q

Van Camp

A

CP = reasonable value of services during marriage - salary already paid

SP = FMV at divorce - CP

80
Q

Reverse Pereira

A

CP = Value at separation + (value at separation x FRR x years of separation)

SP = Value at divorce - CP

81
Q

Van Camp

A

SP = reasonable value of services during separation - salary already paid

CP = FMV at divorce - SP

82
Q

Wills UI

A

SMOC or CAP

Confidential Relationship
Active Participation
Profits from Will

Bar Prep General (5 decks)

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