Commercial Litigation

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Commercial Litigation
2013-05-06 10:30:45
Commercial law business commercial torts FRCP

Commercial Lit flashcards
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  1. QM, generally
    • Quasi-K (implied in law K; used when no K exists; plead in the alternative)
    • Claim in equity
  2. QM: Flow of benefits (EPIC)
    • Benefits don't only flow exclusively to one party
    • E.g., inmates get health benefits, but county got benefit of having EPIC do their health care for them (as was statutorily mandated)
  3. QM: Elements
    • 1. D benefitted
    • 2. D appreciated benefit
    • 3. Unjust for D to keep (unjust enrichment; most important element!)
  4. QM: Texas Elements
    • 1. P provided valuable services/materials to D
    • 2. D accepted materials or services
    • 3. D had notice P expected compensation
  5. QM: Damages
    • Reasonable value of care/services/materials ("As much as one deserves")
    • No Injunctive relief
    • No benefit of the bargain
  6. QM: Unjust enrichment
    • Misrep or misleading required (if not, no unjust enrichment)
    • E.g., Limback (US Airways case): City got benefit that they appreciated and it would have been unjust for them to keep it
  7. QM: Atty fees?
  8. SoSA
    Suit on Sworn Acct
  9. SoSA: TRCP 185
    In certain kinds of cases (SoSA cases), the P's pet is verified (has an affidavit) and has evidentiary effect
  10. SoSA, use
    P has an ongonig relationship w/ D and has sold a number of goods or performed a series of services for D over time; "put it on my tab"
  11. SoSA pet, evidentiary value
    Pet. taken as prima facie ev of P's claim; can survive MSJ on its own
  12. SoSA failure of D to verify answer
    P wins
  13. SoSA: Transaction subject to a K
    Pet. must allege the charges are according to terms of K
  14. SoSa: Transaction not subj. to K
    Pet must allege that charges are usual, customary, and reasonable
  15. SoSA: "Elements"
    • 1. P sold goods/services to D
    • 2. Prices charged were just and true/pursuant to K
    • 3. Pet contains systematic record of the transaxn (not required by some courts)
    • 4. All lawful payments, credits, and offsets applied
    • 5. Acct remains unpaid
    • 6. Dmgs are liquidated; and
    • 7. Pet is filed under oath
  16. SoSA: Systematic Rec. of Acct
    Name, date, and charge for each item; details on how total amt owed was figured
  17. SoSA: Damages
    • Liquidated damages (sum certain)
    • Atty fees (CoA underlying is breach of K)
  18. SoSA: D's answer
    If P meets 185, D must file sworn specific denial
  19. SoSA: Defenses
    • 1. P's pet. does not meet TRCP 185 elements
    • 2. No receipt of good or services
    • 3. Acct is not just and true
    • 4. Acct. is not due
    • 5. Offsets, payments, or credits haven't been applied
  20. SoSA: Alternative pleadings by D
    • Denial of P's sworn acct and then providing "in the alternatives" is okay; does not make oath equivocal
    • E.g., Denied owing, but then brought aff def
  21. SoSA: Atty fees?
  22. PE, generally
    • Promise enforceable w/o consideration
    • Not a breach of K––indep. theory of recovery: Quasi-L
    • Equitable theory of recovery
    • Often used to sue 3d party not in privity with
  23. PE: Elements
    • 1. D made clear and definite promise
    • 2. P reasonably relied upon promise
    • 3. Reliance was foreseeable
    • 3. Injury sustained was borne out of reliance
  24. PE: Damages
    • Required; only amy needed to restore to whole (no benefit of the bargain)
    • Tex: Atty fees available
  25. PE: Defenses
    • 1. SoL (4 years)
    • 2. Express L
    • 3. Unclean hands
  26. PE: SoL
    4 years (Texas)
  27. PE: SoF problems?
    Maybe; however, SoF is an equitable theory and you must do equity to receive equity
  28. PE: Plead in the alternative?
    Yep. Often accompanies breach of K axn
  29. PE: 3d party usage
    E.g., Fretz Constr: No privity between bank and Fretz, so PE allows Fretz to sue bank
  30. PE: Atty fees?
  31. Contort, generallt
    • CoA that is both a breach of K and a tort
    • Allows atty fees and exemplary damages
  32. Common law duty to perform the K w/ care, speed, etc.
    Failure to do this could = beach of K AND tort (contort)
  33. Contort: Examples
    • E.g., repairing a water heater creates duty to act w/ reasonable skill and diligence in making repairs:
    • 1. In failing to repair water heather: K breach
    • 2. In burning down house: Tort duty breach

    E.g, Aunt Jane: Obit in paper says, "*unt Jane" instead of her name. This could be a contort.
  34. Contort: Atty fees?
    Yep (WITH exemplary)
  35. Tortious Interference: Types
    • 1. TI w/ K
    • 2. TI w/ Prospective Relations
  36. TIK: Elements
    • 1. Valid K b/w P and 3d party
    • 2. D knows
    • 3. Intentional inducement by 3d party
    • 4. No justification
    • 5. Damages
  37. TIK: Texas Elements
    • 1. P had valid K
    • 2. D willfully and intentionally interfered w/ K
    • 3. Lack of justification or privilege
    • 4. Damages
  38. TIK: Competitor's privilege
    Free market allows competition
  39. TIK: Competitor's privilege blaancing test
    K rights (public rights) v. Rights of the interfering party (private rights, e.g., fiduciary interest, legal interests, etc.)
  40. TIK: Defenses
    D's lack of knowledge: D must know of K and Ps interest in K, or have knowledge of facts and circumstances that would lead a reasonable person to believe there was such a K (e.g., form K that D entered into and knew P entered into)
  41. TIPR: Tex. Elements
    • 1. Reasonable probability P would have entered into biz relation w/ 3d party
    • 2. D intetnionally interfered
    • 3. D's conduct was indep. tortious or unlawful
    •         - Subsumes priv. or justification elements (prevents ridiculous burden shifting)
    • 4. Damages
  42. TIPR: Interference
    • D must know of PR w/ 3d party
    • NB: Incidental result of conduct that D was engaging in for a purpose, then no intent to interfere
  43. TIPR: Indep. tortious or unlawful
    • Anyone can go after another's business; BUT
    • 1. Can't induce breach of L
    • 2. Can't use unlawful or tortious means
    • E.g., False ads, anti-trust violation, misapp of trade secret, fraud, biz disp., assault, illegal boycott
  44. TI: Damages
    • Lost benefit of K or prospective K/relation
    • Persona injury: Mental anguish, inj. to rep.
    • This isn't estoppel! Tort, not quasi-K
  45. TI: Atty fees?
    Nope. Tort.
  46. BD, generally
    Similar to defamation (but protects P's economic interst, rather than indiv's rep)––heightened std.
  47. BD: Texas name for DB
    Trade libel
  48. BD: Elements
    • 1. D published disparaging words about P's economic interests
    • 2. Words were false
    • 3. D acted w/ malice (not actual malice)
    • 4. D lacked priv.
    • 5. Publication caused special damages
  49. BD: Disparaging words
    D is usu. publisher; BUT republishing is grounds, too
  50. BD: Publication
    ≥1 other person has heard or seent it
  51. BD: Disparaging: Elements
    • 1. Cast doubt on P's ownership, existence, quality of chattels, land, or intangible things; and
    • 2. D intended––or should have known––words would cast doubt
  52. BD: P identification
    Specific ID not necessary; one must only reasonably understand that statement refers to P
  53. BD: False words
    Truth is absolute defense; P has BoP of falsity
  54. BD: Opinion, examined
    • Precision: less precise, more likely opinion
    • Verifiability: verifiable, not likely opinion
    • Contex, including cautionary language
    • Type of writing or speech (e.g., joke book)
    • NB: False statemetns of objective fact can't be "rephrased" as opinion
  55. BD: False "message" (vs. words)
    False "message" not grounds for DV; to hold otherwise would open floodgates
  56. BD: D privileges
    • Two types:
    • 1. Absolute
    • 2. Qualified
  57. BD: Absolute privilege
    Similar to immunity; D's motives are irrelevant (e.g., exec., legis., judicial)
  58. BD: Qualified privilege
    • D's motives DO matter
    • 1. True, fair, and impartial news reports of official, legis., or judicial proceedings
    • 2. Broadcast reporters exercised "due care" to prevent publication or utterance of statement in broadcast
  59. BD: Damages
    • Special Damages: pecuniary losses that have been realized or liquidated
    • Hard Damages: E.g., loss of sale, biz, or credit

    • NO PI
    • NO equitable relief
    • CAN get punitives
    • NO atty fees
  60. BD: Atty fees?
  61. Fraud types
    • 1. Simple (misrep and inducement)
    • 2. Nondisclosure
  62. Simple Fraud: Elements
    • 1. D make false rep to P
    • 2. Rep was material
    • 3. D knew statement was falst OR acted recklessly as to its truth
    • 4. D intended that P act on the statement
    • 5. P did act on the statement; and
    • 6. Damages
  63. Simple Fraud: Materiality
    Only material if important factor in P's decision-making; if a reasonable person would place importance on it, it's material
  64. Simple Fraud: Falsity
    Unlike BD, false statements not limited to statements of objective fact
  65. Simple Fraud: False statements of opinion
    • False statements of opinion are actionable if:
    • 1. D knows statements are false;
    • 2. If it's based on or buttressed by false statements of fact; or
    • 3. Bolstered by special knowledge
  66. Simple Fraud: Reliance
    P's reliance must be actual (subj.) and justifiable (obj.)
  67. Nondisclosure Fraud: Elements
    • 1. D concealed or failed to disclose certain facts to P
    • 2. D had duty to disclose
    • 3. D knew:
    •        - P was ignorant
    •        - P had no opportunity to discover
    • 4. D intended to induce P into taking/refraining from action
    • 5. Reliance; and
    • 6. Damages
  68. Nondisclosure Fraud: Duty to Disclose
    • Exists when:
    • 1. Fiduciary or some other special relation exists
    • 2. D discovered new info that made earlier rep misleading or untrue; or
    • 3. D created false impression by making partial disclosure
  69. Fraud: Relief
    • 1. Economic damages (out of pocket OR benefit of bargain)
    • 2. Punitives
    • 3. Equitable remedies (recission/reformation)
    • 4. Personal Injury (MA)
    • 5. Personal Property (Repair costs)
    • 6. No atty fees
  70. Fraud: Atty fees?
  71. Fraud: Defenses
    • 1. Limitations (Texas: 4 years)
    • 2. P's fault or knowledge of falsity
    • 3. SoF
    • 4. Ratification
  72. Fraud: SoL
    4 years (Tex)
  73. TS: Elements
    • 1. P had TS
    • 2. D used or disclosed the TS: In violation of NDA; after acquiring by improper means; or after acquiring w/ notice that disclosure was improper (Metallurgical)
  74. TS: Types
    • 1. Formula, device, pattern, or info
    • 2. Modicum o originality to separate from every day knowledge (biz method, recipes, pricing data, customer list, etc.)
  75. TS: Not TS
    • 1. Abstract ideas (e.g., zinc recovery alone)
    • 2. Generally known methodologies
    • 3. General skills
    • 4. Accumulations of pub. domain info
  76. TS: Trade
    Info must be useable in trade or biz
  77. TS: Factors
    • 1. Info known outside biz
    • 2. Employee knowledge of info
    • 3. Measures to keep secret
    • 4. Value of info
    • 5. Cost of development
    • 6. Difficulty of development
  78. TS: Use
    Use by which party seeks to make money
  79. TS: Disclosure
    Making something known or public
  80. TS: Confidential relationship
    No K needed
  81. TS: Acquiring by improper means
    Below general stds of commercial morality and reasonably conduct
  82. TS: Damages
    • 1. Val lost by P
    • 2. Vale gained by D (disgorgement; royalty for loss or market value for secret)
    • 3. Punitiveness
    • 4. Inj. relief
    • 5. Aty fees (when in violation of NDA)
  83. TS: Atty fees?
    Yep, when NDA violated.
  84. TS: Defenses
    • 1. SoL (Tex. 3 years)
    • 2. Priv
    • 3. Preemption by ©
    • 4. Indep. discovery or reverse engineering
    • 5. Unclean hands (in cases of inj. relief)
  85. TS: SoL
    3 years
  86. AT: Purpose
    Protects competition (price becomes artificially high and distorts the allocation of society's resources)
  87. AT: Antitrust
    • From Std. Oil making trust agreement to skirt law
    • Opposite: Pro-competition
  88. AT: Fed. AT laws
    • Sherman Act
    • Clayton Act (amended by Robinson-Patman Act)
    • FTC Act
  89. AT: Sherman § 1
    Outlaws all Ks, combinations, and conspiracies that unreasonably restrain interstate trade
  90. AT: Sherman § 2: Elements
    • 1. Possession of power in relevant market; and
    • 2. Willful accession of that power as distinguished from growth or development from superior products, acumen, etc.
  91. AT: Sherman § 1: Types
    • 1. Conduct highly likely to affect commerce (per se illegal) (e.g., horizontal price-fixing; territorial division agreement)
    • 2. Conduct that may, but is not highly likely, to affect commerce ("rule of reason" test (AT only against unreasonable restraints); case by case exhaustive analysis of conduct)
  92. AT: Sherman § 1: Elements
    • 1. Appreciable economic power in typing market
    • 2. Affects substantial volume of commerce in the tied market
  93. AT: Sherman § 2
    Criminal to monopolize or attempt to monopolize any party of interstate commerce
  94. AT: Sherman § 2: Innocent Monopoly
    • No problems w/ innocent monopolies
    • Any co that gets all biz because no one could do it as well doesn't violate the act
    • ONLY conduct to artificially preserve or extend monopoly or anticompetitive conduct to obtain one, are illegal
  95. AT: Monopoly: Elements
    • 1. D's must possess monopoly power in the relevant market (as little as 2/3 could be monopoly power)
    • 2. D obtained or maintained power thru conduct deemed unlawfully exclusionary (i.e., NOT conduct w/ valid biz justifications)
  96. AT: Attempts to Monopolize Elements
    • 1. Specific intent to control prices or eliminate competition in some market
    • 2. Predatory or anticompetitive conduct directed at accomplishing unlawful purpose; and
    • 3. Dangerous probability of success
  97. AT: Sherman Act: Penalties
    • Criminal and civil enforcement
    • $350,000 fines and up to 3 years in fed pen
    • Corps.: $10M for each offense
  98. AT: Clayton Act
    • Prevents:
    • 1. Price disc
    • 2. Exclusive dealing and typing
    • 3. M&A's
    • 4. Serving as a director of competing corps
  99. AT: FTC Act
    • 1. Prevents unfair methods of competition and unfair or deceptive acts
    • 2. Seek monetary redress and other relief for conduct injurious to consumers
    • 3. Prescribes trade reg rules
    • 4. Conduct investigations relating to commerce
    • 5. Make reports and legis. recommendatiosn to Cong.
  100. AT: Tex. Law
    • Free Enterprize and AT Act of 1983: Similar to Sherman and construed in accordance w/ fed. law
    • DTPA: Analogous to FTC act
    • Both allow for civil suits and enforcement by Tex. Att. Gen.
  101. AT: Markets
    • Equipment
    • Parts
    • Service
  102. AT: Tying arrangements
    • Only sell buyer one product if they promise to buy other product exclusively (e.g., service, etc.)
    • NB: Seller must have appreciable economic power
  103. AT: Defining market
    Most important step; e.g., Kodak certainly had power in its own market, but may not for greater market (e.g., copiers)
  104. AT: Economic power
    Demand for the tying market
  105. Disc., generally
    • Allows parties to share info to build claims/defenses; make judgments about whether to proceed
    • BROAD rules (but pleading must be specific a lá Twombly and Iqbal)
  106. Disc: Scope
    • Rule 26(b)(1):
    • Disc. any nonpriv. matter relevant to any party's claim or defense;
    • Disc. a matter relevant to subj. matter involved if: good cause and ct. order
  107. Disc: Scope: Test
    • NB: Not admissibility!
    • "Reasonably calculated to lead to disc. of admissible ev."
    • Primary exception: Privilege, not reasonably calc'd
  108. Disc. Limits
    • Rule 26(b)(2)(C)
    • No unreasonably cumulative or duplicatvie, or can be obtained from a more convenient, less burdensome, or less expensive source
  109. Disc.: Methods
    • Initial disclosure
    • Interrogatories
    • Requests for Production
    • Requests for Admissions
  110. Disc. Initial disclosure, generally
    • (Fed) Parties must disclose, w/o being asked:
    • - Names, addresses, and number of potential witnesses
    • - Docs and tangible things that may be used to support claims (exhibits)
    • - Computation of damages (π)
    • - Ins policies (∆)
  111. Disc.: Initial disclosure, timing
    W/in 14 days after 26(f) conference
  112. Disc.: 26(f) Conference
    • Parties meet and confer at least 21 days before cts final scheduling conference
    • Discuss:
    • - Settlement
    • - Preservation of disc.
    • - Disc. plan (26(f)(3))
    • - Rule 26(a) disclosures
  113. Answer must be file w/in ____ days of service of suit
  114. Ct sends attys notice of scheduling conference w/in ____ days after D answer
  115. Attys meet and confer at least _____ days before scheduling conference to discuss 26(f) matters and agree on disc. ctrl plan
  116. Attys exchange initial disclosures ____ days after meet and confer
  117. Attys submit disc. ctrl plan to ct ____ after meet and confer
    ≤14 days
  118. Scheduling conference held w/in ____ days of answer
  119. Disc.: Interrogatories
    • Rule 33:
    • Q's served on another party
    • Answered in written form and signed by atty and party
    • Same effect as testimony
    • Can produce biz recs as responses
  120. Disc. Interrogatories: Objections
    W/in 30 days
  121. Disc.: Interrogatories: Number allowed
  122. Disc: Interrogatories: Objections: Types
    • 1. Overbroad nor reasonably calc'd
    • 2. Unintelligible due to vague and ambiguous terms
    • 3. Unduly burdensome
    • 4. Duplicative
    • 5. Private/financial info w/o need
    • 6. Legal opinion
    • 7. Seeks protected info
    • 8. Fishing expedition
  123. Disc: Request for Production, generally
    • "Documents and tangible things"
    • Rule 34:
    • Production or inspection of docs, ESI, tangible things
  124. Disc.: Request for Production: Number
  125. Disc.: Request for Production: Parties to be served
    Parties and nonparties (w/ subpoena)
  126. Disc.: Request for Production: Description requirement
    Reasonable particularity
  127. Disc.: Request for Production: Bates Label
    DV001, DV002 . . . DV107
  128. Disc.: Request for Admissions, generally
    • Rule 36
    • Used to expedite litigation and to dispose of uncontested issues
  129. Disc.: Request for Admissions: Number
    Unlimited (but subj. to rule 26 (burdensome or duplicative)
  130. Disc.: Request for Admissions: Response time
    30 days to object or answer (if not, deemed admitted)
  131. Disc.: Request for Admissions: W/drawal of answers
    Can be w/drawn or amended upon motion
  132. Disc.: Request for Admissions: Answer types
    Admit, denied, "not enough info" (viewed as denial)
  133. OD, generally
    • Rule 30:
    • Follows written disc.; expensive!
    • Examine and c-x witnesses like at trial (although more informal; primary purpose is to get info)
  134. OD: "Notice"
    • To schedule a depo of any nonparty witness
    • NB: Non-parties needn't show up unless subpoenaed
  135. OD: Who can be noticed
    • 1. Parties (generally scheduled between parties, but can be unilaterally scheduled, so long as notice is reasonable (if not, QUASH it))
    • 2. Can directly notice biz entity
  136. OD: Biz entity depo
    • Entity must designate one or more persons to answer questions
    • Rule 30(b)(6): Corp. rep. depo
  137. OD: Methods of recording
    Video, court reporter transcribing (if using at trial, be sure to video record!)
  138. OD: Number
    Each side gets 10; more require party consent or ct. permission
  139. OD: Use at trial
    Any purpose
  140. OD: Length
    7 hours for one day
  141. OD: Two depos to same witness
    Can't do it unless ct. gives permission
  142. OD: Methods
    • In person
    • Telephone
    • Remotely
  143. OD: Objections
    • "Objection form" is main objection (can clarify if asked; done this way to prevent witness coaching)
    • NB: Objections made but repo proceeds subject to it
    • NB: If you don't object during depo, waive objection to form not substance (e.g., hearsay)
  144. OD: When deponent can't answer
    ONLY violation of priv
  145. eD: ESI
    Voicemail, email, etc.
  146. eD: Rule 26(a)
    • Meet and confer
    • Must produce all ESI that will be used to support claims (or description of where it's contained)
  147. eD: Tiered s/s. for ESI production
    • 1. No production if not reasonably accessible because of undue burden or cost
    • 2. BUT, party must ID and has burden of proving undue burden or cost (ct. can impose fee shifting)
  148. eD: Proportionality test
    Rule 26(b)(2)(iii): Burden or expense of the proposed disc. outweighs the likely benefit
  149. eD: Proportionality test: Factors
    • 1. Amt in controversy
    • 2. Party resources
    • 3. Importance of issues at stake
    • 4. Importance of proposed discovery in resolution of issues
  150. eD: Rowe test
  151. eD: Zubulake cost-shifting test
    • Descending order of importance:
    • 1. Specificness of request
    • 2. Availability from other sources
    • 3. Cost of production v. amy in dispute
    • 4. Cost of production v. parties' resources
    • 5. Ability of parties to control costs
    • 6. Importance of issues in case
    • 7. Benefits to parties in obtaining info
  152. eD: 3 steps in Zubulake test
    • 1. Determine data type (accessible = normal rules; inaccessible = proceed to step 2)
    • 2. Do a sample
    • 3. Zubulake cost-shifting test
  153. eD: Inadvertent Disclosure
    Producing party can notify receiving party and rec. party must return, sequester, return material, or present to court under seal.
  154. eD: Inadvertent Disclosure: Waiver of privilege
    Rule 26 does not address whether inadvertent disclosure waives priv.
  155. eD: Agreements to Minimize Risk of Waiver
    26(f) conference must address how to treat privilege/trial prep materials.

    • Two common types:
    • Clawback: Production w/o intent to waive does not waive.
    • Quick Peek: Produce materials for initial examination; request what you want, and producing party then screens for priv.
  156. eD: Rule 33: ESI as response to Interrogatory
    Allowed; may need to provide technical support/software to help rec. party access
  157. eD: Rule 34: ESI
    ESI is subject to production
  158. eD: Rule 34: ESI production forms
    • Can request form to produce ESI in:
    • Native format (default)
    • Searchable
    • Non-searchable
    • Paper

    Producing party can object to requested form
  159. eD: Production of ESI native format problems
    • Inability to redact
    • Inability to Bates label
    • Rec. party may create new docs unfamiliar to witneses
    • Can by accused of "doc dump"
    • Metadata
  160. eD: Metadata
    Data about data
  161. eD: Metadata Types
    • System (when file created, accessed, modified, titles)
    • Application (secret things inside doc (past versions, changes, etc.)
  162. eD: Rule 37(e)
    "Safe Harbor" provision
  163. eD: "Safe Harbor" provision
    Party can't be sanctioned, absent exceptional circumstances, for losing ESI as a result of routine, good-faith operations
  164. eD: "Safe Harbor" Good Faith, Defined
    Good faith may require party to suspend features of routine operations to prevent loss of 'litigation hold' material
  165. Disc. Enforcement: Motion to Compel
    Rule 37(a)
  166. Disc. Enforcement: Motion to Compel, Certification?
    Must certify that you consulted with other party with your motion to compel.
  167. Disc. Enforcement: Motion to Compel, effect of winning motion
    • Ct. must require compelled party (and atty) to pay reasonable expenses incurred in filing motion;
    • BUT, must not order if:
    • - Motion to Compel was filed before conferring;
    • - The other party's nondisclosure, response, or objection was substantially justified; or
    • - Other circumstances make award unjust
  168. Disc. Enforcement: Motion to Compel, effect of losing motion
    • Court must require movant (or atty) to pay expenses incurred in defending
    • BUT, Ct. must not so order if:
    • - Motion was substantially justified; or
    • - Award of expenses would be unjust
  169. Disc. Enforcement: Motion to Compel, failure to comply
    Court may:

    • - Deem established matters covered by disc.;
    • - Prohibit party from making arguments;
    • - Staying or dismissing the proceedings; and
    • - Monetary sanctions
  170. Arbitration: Unconsionability
    • Arb. agreements interpreted under K rules, so revocable when unconscionable
    • (Prevents oppression and unfair surprise)
  171. Arbitration: Unconsionability: Factors
    • - Atmosphere in which K was made
    • - Alternatives available to parties at the time
    • - Bargaining power; and
    • - Ultimate K fairness

  172. Arbitration: Unconsionability: Procedural
    How did parties arrive at the terms in controversy?
  173. Arbitration: Unconsionability: Substance
    Were there legitimate commercial reasons justifying the terms of arbitration?
  174. Arbitration: Unconsionability: Procedural, focus
    • Focus on assent and facts surrounding bargaining process
    • NB: Party must have reasonable opportunity to discover clause's existence
  175. Arbitration: Unconsionability: Substantive, focus
    Focuses on fairness of resulting agreement
  176. Arbitration: Unconsionability: Substantive, factors
    • - Neutral arbitrators
    • - More than minimal discovery
    • - Requires written award
    • - Provides for same relief available in ct; and
    • - Division of costs

  177. eD: Gross Neg. Failings
    • 1. Failure to issue written lit. hold when duty arises.
    • 2. Failure to ID key players and ensure their electronic/paper records are preserved
    • 3. Failure to cease deletion of email
    • 4. Failure to preserve recs of former employees
    • 5. Failure to preserve backup tapes when sole source of relevant info
    • 6. Failure to sufficiently supervise employees' document collection.
  178. eD: Ordinary Neg.
    Less sweeping failures than gross neg. failures
  179. TIK: Effect of Invalid K
    • Can't have TIK if there was no valid K! (Note: A K being voidable is not defense; only a void K)
  180. AT: Per Se anticompetitive
    Horizontal Pricing Agreements; territorial division agreements
  181. TIK: Interference, examined
    D can interfere by inducing 3d party to breach OR preventing 3d party from executing the K
  182. BD: Malice
    Not actual malice

    • Defendant:
    • 1. Knows the statement is false;
    • 2. Acts w/ reckless disregard for truth;
    • 3. Acts w/ ill will; or
    • 4. Intends to interfere w/ economic interest

  183. TS: "Secret"
    Not generally known by or available to the public.
  184. Rule 26:
    Scope of Discovery
  185. Rule 26(a):
    Initial Disclosures
  186. Rule 26(f):
  187. Rule 30:
    Oral Depos
  188. Rule 33:
  189. Rule 34:
    Requests for Production
  190. Rule 36:
    Requests for Admissions
  191. Rule 37(a):
    Mot. to Compel
  192. Rule 37(e):
    ESI Safe Harbor