Test 2 Flashcards
1
Q
Intentional Torts
A
Private Parties sue for money
2
Q
Legal Elements of Intentional Torts
A
Intent to act ( doesnt mean hurt) + damages/actual harm
3
Q
General Intentional Torts
A
Assault
Battery
False Imprisonment
Intentional Infliction of Emotional Distress
Defamation
4
Q
Assault
A
Threat of intent, immediate harmful contact ( flinching)
5
Q
Battery
A
Intentional Harmful Contact ( punching, cigarete smoke) also applies to attached belongings
6
Q
False Imprisonment
A
Intentional Restraint or confiement without justification.
Has to be- Physical Barrier, Physical Restraint, Threat of Immediate force/harm( not future harm/force)
7
Q
Shoplifters Rule/Exception
A
Reasonable Duration + manner ( why stores dont really stop you for stealing anymore)
8
Q
Intentional Infliction of Emotional Distress
A
Hard to Prove
9
Q
Defamation
A
Intentional Lie about harming reputations
Intentional Statement of fact ( true or false) + publish ( communicate to third party) + damaged reputation ( lose money/reputation)
Examples ; Libel and Slander
10
Q
Public Figure Exception
A
Intentional Fact + publish + damaged reputation + malice ( has to know it was a lie)
Mcklee vs Laurion
11
Q
Mcklee vs Laurion
A
Doctor very rude to patients and then the patient wrote bad reviews causing the doctor to sue ( the patient won since truth always wins)
12
Q
Intentional Business Torts
A
Fraud
Wrongful Interference with a contract
Wrongful interference with a business opportunity
13
Q
Fraud
A
Intentional use of deceit for gain
Material Representation ( omission) + justified reliance+ damages + causal connection
Example
Buying a used car, asked if in accident and the seller lied
14
Q
Wrongful Interference Contract
A
Valid Contract + knew a valid contract existed + interference induced a breach of contract
Example- normally a merger
15
Q
Wrongful Business Opportunity
A
Taking a client lists from a previous work company
16
Q
Negligence
A
Failure to use reasonable care to prevent
reasonable care
17
Q
Elements of Negligence
A
Duty of care ( can get specific)
Breach of care
Cause in fact
Proximate Cause
Damages
18
Q
Duty of Care
A
Weirum v RKO
Special Duties
Heightened Duties
Lessend Duties
19
Q
Weirum V RKO
A
Radio Host made a special where you get money from following a van ( teenagers run a grandma off the road killing her)
20
Q
Special Duties
A
Business Owners Duty to discover/remove damages
21
Q
Heightened Duties
A
Duties for Certain Jobs
Doctors+ Lawyers+ Accountants + Engineering + Architects
22
Q
Lessend Duties
A
Assumption of Risk
Taylor v BB Club of Seattle
23
Q
Taylor v BB CLub of Seattle
A
At a mariners game someone got hit by the ball in the front row since they were not paying attention
24
Q
Proximate Cause
A
Close to Location
25
Cyr v Alabama
Serial Rapists kills someone at hotel bar; family sues the hotel but lost since you cannot foresee that
26
Defenses to Intentional Torts
Discipline ( parents)+ Necessity ( need to do) + duress ( gun to head) + Consent ( informed consent, agree in advance + full knowledge of risk)
27
Lugenbuhl v Dowling ( informed consent)
Hernia mesh was not put into place by doctor even though it was agreed on before hand
28
Defenses to Negligence
Failure to meet " burden of proof" ( 50.1%)
Comparative Negligence
Contributory Negligence
29
Comparative Negligence
Comparing to who is at fault by more negligence ( most states)
30
Contributory Negligence
Protects against Frivlous Lawsuits ; if in accident cannot sue
31
Damages
Compensatory Damages ( make me whole)
Punitive Damages ( punish so gross)
32
Ford v Stubblefield (1984)
Ford Design problem that is very easy to fix but didnt do ( causing cars to explode killing lots)
33
Special Tort Doctrines
Res Ipsa Loquitar ( speaks for themselves)
Good Samaritan Laws
Social Host / Dram Shop Laws
Strict Liability
34
Res Ipsa Loquitar
Flips Burden Of Proof
Normally procsecutor proves innocent but now defender has to prove there were innocent
35
Good Samaritan Laws
Trying to be helpful can not be sued
36
Social Host/ Dram Shops
Bar is available for liability if over served ( getting someone drunk and then letting them drive)
37
Strict Liability
Intrinsically Dangerous Behaviors ( you will always be liable)
Nuclear Power Plant, Testing Weapons , Quarry Blasting
38
Criminal Law Burden of Proof
Guilt beyond reasonable doubt 99.5%
39
Elements of Crime
Actus Reus ( bad act)+ Mens Rea ( criminal mindset)
40
3 sets of crime with no Mens Rea
Criminal Recklessness ( DUI, Aggravated Manslaughter)
Criminal Negligence ( involuntary manslaughter)
Strict Liability ( statutory rape : doenst matter always at fault )
41
Felony v Misdeamnor
If more than 1 year its a felony
42
Categories of Crime
Violent Crime
Property Crime
Public Order Crime
White Collar Crime
Corporate Crime
43
Violent Crime
Murder, Rape, sexual assault, robbery ( taking with violence), Assault & Battery
44
Property Crimes
Arson, Burglary, Forgery ( changing outcomes) , Larceny ( taking in daytime), Theft by Fraud ( using deceit for profit)
45
Wisconsin v Steffes ( theft by fraud)
Drug Dealer in jaul wants to continue dealing uses fake phone numbers stealing $30000
46
Public Order Crime ( Relative)
Public Drunkness + Prostitution+ Gambling + Narcotics
47
White Collar Crime
Mail & Wire Fraud, Bribery ( to public), Kickback ( private to private), Money Laundering ( Dirty Money), Embezzlement ( takes money from company)
48
People v Sisophon
Stole Money from a car salesman; realized his mistake tried turning it in the next day and was arrested
49
Corporate Crime
Government Seeks Fines + Deferred prosecution agreement (if good throws case out) or Non prosecution Agreement ( unenforceable)
50
Racketeer Influenced & Corrupt Organizational Acts ( RICO)
Killed the mafia
1) Any person
2) Participates in a criminal enterprise
3) Commiting 2 or more offenses
4) Inside a 10 year period
All these equal to 20 years + lose profits
51
Criminal Defenses
1) Failure to Meet Burden of Proof
2) Self Defense
3) Insanity
4) Necessity
5) Duress
6) Statue of Limitations
7) Mistake of Fact
8) Entrapement
52
Self Defense
Duty to retreat ( have to run if can)
Castle Doctrine ( home+yard+workplace)
Stand your ground ( anyplace)
53
Insanity
Mental Illness or Cognitive Repairment
a) M'Nagnen Rule ( did not know it was wrong)
b)Irresistable Impulse Test ( refrain from acting)
c) Substantial Capacity Test ( virginia + fed) combines the previous 2
54
Entrapment
Gov't Suggests + inducement ( would not happen if this didnt happen)
55
Procedural Safeguard
1) 5th + 6th = right to remain silent, jury stuff
2) 8th= no excessive bail, no cruel/punishment
3) Miranda Rights
4) 4th ( 1-3 stronger than this one)
56
Miranda Rights
Custodial Interrogation ( if you feel free to leave you can)
57
Miranda v Arizona
Rape Victim uneducated did not get informed about the rights he had
58
4th Amendment
General Warrant ( not specific )
Reasonable Expectation of Privacy , needs Probable Cause + Warrant + specificity
59
Exclusions to the Safe Guard
Consent
Hot Pursuit ( running gives away)
Search Incident to a lawful arrest
Plain View
Automobile Exception
Stop& Frisk
Domestic Terrorism
60
U.S v Ross
Automobile exception
Ross drug dealer had bullet casing out allowing the cop to search his car for drugs
61
Terry v Ohio
Racial Profiling
Undercover cops stops 3 random people "casing" a store and finds guns ( reasonable suspicion)
62
Domestic Terrorism
USA Patriot Act
Making the government to do everything
63
Trademark
" mark of trade"
A distinctive word, symbol, sound or design that identifies the source of goods
64
Brand Confusion
" Old person test"
Coca Kola vs Koke of America ( 1920)
65
Distinctiveness
1) Fanciful ( xeorox) ( always)
2) Arbitrary ( apple + google) (always) ( putting random things together)
3) Suggestive (always) ( Microsoft) ( small software)
4)Descriptive ( sometimes ) ( not distinct unless secondary meaning)
5) Generic ( to generic wherever everyone called it by the name losing it) (never)
66
Creating a trademark
Use + duration of use , stronger brands do not need to register under USPTO
67
Trademark Infringement
Lanham Act
Unauthorized use + likelihood of customer confusion
68
Brothers Records v Jardine
Beach Boys member who left still sold ticekts as the beach boys
69
Remedies for Infringement
Injunction ( court order)+ Damages( how much beach boys lost) + Profits ( how much jardine got) + Destruction ( burn the clothes)
70
Trademark Dilution
TM Dilution Revision Act
- New TM dilutes distinctiveness
- Mark creates false association
-Harms famous TM reputaion
71
Starbucks v Lundberg
Sambucks Coffee, name dilutes around the 'bucks'
72
Counterfeiting
Unauthorized use of trademark for making confusion
- 2 million fine, 10 years prison, profits, and destruction
73
TM Sub categories
Service Mark ( super cuts)
Certification Mark ( quality of goods)
Trade Dress ( packaging, store layouts, product shape)
74
Patents
Inventor's exclusive rights to use+ sell+ market invention for 20 years
75
Requirements
Patentable ( use, novel, non obvious)
76
Non Obvious
Barnes & Nobel v Amazon ( barne and nobel using the one click purchasing)
77
Remedies of Patents
Injunction, Damages, Destruction, Attorny Fees, WIllful Infringement ( if proven triple damages)
78
Copyright
" the right to copy"
Author of artistic creation sole right: copy+ distribute+ display + derive
79
Duration of Copyright
Life of author + 70 years
Corporations -95 years
80
Copyright Infringment
Inhale Inc v Starbuzz Tobacco ( deals with hookah that was created and court ruled against)
MGM v Grokster ( preceptor to napster) allowed for the host to be charged with the crime
81
Remedies for Copyright
Injunction+ actual damages+ statutory damages ( 150k)
Willful Infringement ( privacy) 250k + 5 years
82
Fair Use Doctrine
1) Criticism
2) Teaching
3) News
4) Scholarships
5) Satire ( condemn society)
6) Parody ( funny laugh)
83
Tests for Copyrights
Just need one good one
1) Purpose & Character Use
2) Nature of Work
3)Amount Copied
4)Market Effect
84
International IP Protections
TRIPS agreement (50/50)
Madrid Protocal (very succesful)
Anti Counterfeit Trade Agreement ( bad)
Burn Convention- copyright ( like madrid so good)
85
Golan v Holder
Guitar player song is inside a movie first and then it gets protected
86
Sole Propiertorship
Never Use because unlimited liability
87
Quality Trucks & Car leasing inc v Sark
Sark sole business borrowed money and then had to sell house to pay it off
88
Franchise
" time sharer"
IP owner + intergrated business system( meaning supply chain , marketing campaign
89
Franchise Contract
Fee + Supplier Rules + Marketing % + Overhead % + Quality Control Upgrades + Territories
90
Goodfaith Case
Holiday Inn v Hotel Assocaties ( local hotel turns into holiday inn and puts upgrades for future contract but holiday leaves him)
91
Partnerships
Agreement for 2 or more people; sharing profits, loss, pass through taxation, joint owners/managers, power to disassociate+ joint & several liability
92
Safety Practices of Partnerships
Articles of Partnerships + Fiduciary Duties ( duty of loyalty, duty of care)
93
Different Partnerships
Limited Partnership ( general partner: limited partner silent)
Limited Liability Partnership ( LLP)
94
Limited Liability Company
Limited Liability, Forms by Articles of Organizational ( state filling), operating agreement
95
Mekonen v Zewdu
Zewdu is in a taxi llc and wanted to leave but did not give the decal and have to give back
96
Types of Corporation
S-Corp
C- Corp
97
Formation of Corps
Needs incorporator, filed articles of incorporation, pays incorporation fee, and franchise tax
98
Governance of Corps
Meetings+ Minutes + Vote (to approve) + Quorum
99
Management
Shareholders
Board of Directors
Officers
100
Pros and Cons
Pros - Limited Liabilities, Ease of funds, Corporate Personhood
Cons- C Corp Double taxation, hard formalities
101
Veil Piercing
Ignored Corporate Formalities then got sued,
Alter Ego Doctrine
102
Alter Ego Doctrine
If you do not properly put on the suit of a corporate entity than you are done for
Dog House Investment v Teal Properties Inc
103
Dog House Investment v Teal Properties Inc
Dog Kennel places sues teal properties but the corporation is a sham for many reasons but the main one is the no seperation of bank accounts
104
How to Sue Corporations
If breaches duty of care or loyalty
105
Duty of Care
Informed & Deliberate
Smith v Van Gorken
106
Smith v Van Gorken
Trans Road Merger was not informed or deliberate from the CEO so he got sued and than had to pay out of his own pocket book
107
Duty of Loyalty
Cannot take corporate money and give to self ( self dealing)
Bayer v Beran
108
Bayer v Beran
CEO hired his wife to sing but she was legit ( suing failed)
109
Agreement of Indeminty
CEO has insurance in case of a lawsuit
