Hail Mary Flashcards
Rule 10b-5
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
Section 16(b)
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
Contract Mutual Mistake
1) Existed when K formed
2) Relates to basic assumption
3) Material impact on tx
4) No assumption of risk
Contract Misrepresentation
1) Fraudulent/Negligent (knowing/reckless/meant to mislead)
2) Misrep Induced assent
3) Justifiable Reliance
Contract Duress
Improper threat that deprives a party of meaningful choice
Contract UI
Unfair persuasion of a party to assent to a K
Injunction
I Put Five Bucks Down
1) Irreparable Harm
2) Probability of success
3) Feasibility of Enforcement
4) Balance of Equities
5) Defenses
Specific Performance
1) Valid K
2) Terms clear/certain
3) Fairness
4) Feasibility of Enforcement
5) Balance of Equities
6) Defenses
Constructive Eviction
1) Substantial Interference
2) Notice and Reasonable time to repair, but no repair
3) Tenant Vacates
Types of Easements
Express Implication Necessity Prescription Estoppel
Easement Termination
Release Merger Severance Abandonment (Acts and Clear intent) Destruction/Condemnation
Transfer by Deed
Present Intent and Acceptance (presumed)
Property, Parties, Signature, Words of Transfer
Deed Covenants
Seisin
Right to Convey
Against Encumbrances
Quiet Enjoyment
Warranty
Further Assurances
Lateral Support Rights
Strict if would have collapsed alone
Negligence if structures contributed
Subjacent Support
Strict for failure to support buildings that were there when rights were conveyed
Physician Informed Consent
Malpractice Unless
i) Risk commonly known
ii) Patent unconscious
iii) Patient waives
iv) Disclosure harmful
Attractive Nuisance
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
Res Ipsa Loquitur
1) Doesn’t occur in absence of negligence
2) Instrumentality within control
3) Not caused by P
NIED
Zone of Danger and ED
Bystanders
a) Closely Related
b) Present
c) Personally Observed
Specific Relationship
a) Mishandling a corpse
b) Misreporting Death
Abnormally Dangerous Activity
Creates foreseeable rick of harm even when reasonable care is exercised, and the activity is not commonly engaged in
Failure to Warn
a) Foreseeable risks of harm
b) Not obvious to ordinary users
c) Risks reduced or avoided with reasonable warnings
(Learned Intermediary Rule)
Defamation
1) Defamatory (respect, esteem, goodwill)
2) Of or Concerning
3) Publication
4) Damages
5) Falsity
Slander Per Se
1) Professional reputation
2) Disease
3) Crimes of moral turpitude
4) Unchaste behavior
Misappropriation
Unauthorized use of P’s name, likeness, or identity for D’s advantage
Intrusion Upon Seclusion
Intrusion into private affairs that would be objectionable to a reasonable person
False Light
Published facts place false light and highly offensive to a reasonable person
Negligent Misrepresneation
1) False Info Provided
2) Result of Negligence
3) Course of D’s business
4) P justifiably relies
Intentional Interference with Contract
1) Valid K (Not for Prospective Economic Advantage)
2) D Knew
3) Intentional Interference
4) Damages
Larceny By Trick
1) Aquire Possession to
2) Property of Another
3) Through Fraud/Deceit
4) With Intent to Convert
False Pretenses
1) Aquire Title to
2) Property of Another
3) Through Reliance on a false representation of material fact
4) With intent to defraud
Embezzlement
1) Fraudulent
2) Conversion
3) Of property of another
4) By Someone in lawful possession
Forgery
1) Fraudulent
2) Making
3) Of a false Writing
4) With Apparent legal significance
5) With Intent to Defraud
Criminal Battery
Unlawful application of force to another that causes harmful or offensive touching
Tort Battery
Harmful or offensive contact with the person of another, with intent to cause contact or apprehension
Tort Assault
Reasonable apprehension of imminent harmful contact or offensive bodily contact
Criminal Assault
a) Attempted battery; or
b) Intentionally placing another in apprehension of imminent bodily harm
Criminal False Imprisonment
Unlawful; confinement of a person; without consent
Tort False Imprisonment
1) D acts intending to confine or restrain
2) Fixed boundaries set by D
3) Causes confinement
4) P aware or harmed
Rape
a) Unlawful
b) Sexual Intercourse
c) With a female
d) Against her will by force or threat of immediate force
Solicitation
a) Enticing, Encouraging, Commanding another person
b) To commit a crime
c) With the intent they commit the crime
Open Areas - No REP
a) Proximity
b) Enclosure
c) Use
d) Protection
Ineffective Assistance of Counsel
a) Fell below objective standard of reasonableness
b) Prejudiced D
State Taxation of Commerce
a) Substantial nexus - activity and state
b) Fair Apportionment
Amount of Process Due
1) Interest Affected
2) Value of Additional Safeguards
3) Costs of Additional Process
Proving Discrimination
Need Discriminatory Intent to Trigger SS or IS
a) On Face
b) Application
c) Motive
Lemon Test
a) Secular Purpose
b) Primary effect neither advance/inhibit
c) Avoid Excessive Entanglement
Expressive Conduct
I-IU Great
1) Important Interest
2) Unrelated to the suppression of expression
3) burden no Greater than necessary
Prior Restraints
1) Particular Harm
2) Procedural Safeguards
a) Narrowly definite standards
b) Prompt injunction
c) Prompt decision on validity
Time, Place, Manner
CANS
1) Content-Neutral
2) Ample Alternative Channels
3) Narrowly Tailored/Sig. Interest
Commercial Speech
Twist It, Slap It, Do it Now
1) Truthful, Informational
2) Substantial Interest
3) Directly advances Interest
4) Narrowly tailored
Service of Process
90 days within filing complaint
21 days after service to 60 days
Proposition 8
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.
Logical Relevance
Tends to make a [disputed] fact more or less probable than without the evidence and the fact is of consequence.
Legal Relevance
Probative value is not substantially outweighed by a danger of unfair prejudice.
Non-Hearsay Uses
Impeachment
Effect On Listener
Verbal Acts
State of Mind
Hearsay Exclusions
Prior Inconsistent Statement
Prior Consistent Statement
Prior ID
Party Admissions
a) Adoptive (heard, knew, would have responded)
b) Vicarious
c) Coconspirator
Spillover Confessions
a) Redact unless overly suggestive
b) Try separately
c) Forgo evidence
d) Convince D to testify
Hearsay Availability Immaterial
1) PSI
2) EI
3) MEP Condition
4) Medical Purposes
5) Past Recollection Recorded
6) Business Records
7) Public Records
Present Sense Impression
Statement describing event or condition while perceiving event or immediately thereafter
Excited Utterance
Statement made pertaining a startling event or condition made while under the stress.
Statements for Medical Purposes
a) Made for Medical Purposes
b) Reasonably Pertinent to Diagnosis or treatment
Past Recollection Recorded
a) Testifying
b) Once had knowledge
c) Insufficient to testify
d) Made or adopted while fresh in memory
e) Record accurately reflects knowledge
Business Records Exception
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
Public Records Exception
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
Declarant Unavailable
- Former Testimony
- Dying Declarations
- Declarations Against Interest
- Personal and Family History
- Forfeiture by Wrongdoing
Former Testimony Exception
a) Unavailable
b) Prior Proceeding
c) Subject to Cross at Time
Dying Declaration
a) Unavailable
b) Civil or Crim Homicide
c) Believes death imminent
d) Concerns cause of death
Declarations Against Interest
a) Unavailable
b) Contrary to Pecuniary, Proprietary, Penal Interests
c) Reasonable person wouldn’t have made statement unless true
807 Catchall
1) Trustworthy
2) On Point
3) Necessary
4) Interest of Justice
5) Notice
Expert Witness
- Possesses knowledge, skill, expertise, training, education
- Testimony based on sufficient facts/data
- Testimony product of reliable principles and methods
- Expert applied principles to facts
Defective Incorporation
De Facto
a) Good faith effort
b) Didn’t Know Requirements were not met
By Estoppel
Proxy Voting
In writing;
Delivered to secretary;
Valid for 11 months
Shareholder Direct Action
a. Breach of fiduciary duty by director or officer
b. Tort grounds unrelated to shareholder status
Shareholder Derivative Suit
- Standing
- Written demand on board unless futile
- Litigation expenses
Business Judgment Rule
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
Partnership
Formed when two or more persons (or entities) intend to carry on a for-profit business as co-owners
Goodwill of CP Business
Market Sales Valuation
Capitalization of Past Excess Earnings
Pereira
SP = value at marriage + (value at marriage x fair rate of return x years of marriage)
CP = FMV at divorce - SP
Van Camp
CP = reasonable value of services during marriage - salary already paid
SP = FMV at divorce - CP
Reverse Pereira
CP = Value at separation + (value at separation x FRR x years of separation)
SP = Value at divorce - CP
Van Camp
SP = reasonable value of services during separation - salary already paid
CP = FMV at divorce - SP
Wills UI
SMOC or CAP
Confidential Relationship
Active Participation
Profits from Will
