07-23-2013.txt

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07-23-2013.txt
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2013-07-23 04:00:25
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ca bar misc notes
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ca bar misc notes 7-23-2013
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  1. What is a collateral matter?
    • 1) immaterial to the issues in the case
    • 2) says nothing about the credibilty of the witness, except to just contradict him
  2. when is foundation requirement (admit/deny) required?
    • impeachment with
    • 1) prior inconsistent statement
    • 2) bias/motive
  3. non-hearsay exemption
    • 1) prior inconsistent statement
    • 2) admission by party opponent
    • 3) prior consistent statement offered to rebut a charge of recent fabrication or improper influence
    • 4) prior identification of a person made after perceiving the person
  4. common scheme or development
    • implied reciprocal negative covenant
    • can only be for a NEGATIVE covenant (refrain from doing something).
    • cannot imply an obligation to affirmatively do something.
  5. equitable servitude
    • an equitable servitude is a covenant that, regardless of whether it runs with the land, equity will enforce against successors
    • WITN
  6. what is marketable title?
    marketable title is title that is reasonably free from doubt, that a reasonably prudent buy would be willing to accept.
  7. can land acquired by adverse possession provide marketable title?
    no
  8. fixture definition?
    chattel that has beeen so affixed to land that it has become part of the realty
  9. when tenant installs chattel onto the land, what factors tell whether it's a fixture?
    • 1) nature of the article
    • 2) manner in which it is attached to the land
    • 3) amount of damage that would be caused by its removal
    • 4) adaptation of the item to the use of the realty
  10. procedural due process is violated when?
    when the govt acts to deprive an individual of life, liberty, or property without due process.
  11. What is a deprivation of liberty?
    when a person is denied a freedom provided by the Constitution
  12. if there is a deprivation of life, liberty, or property, then what kind of process does due process require?
    • the process required depends on
    • 1) importance of the individual interest
    • 2) value of specific procedural safeguards to that interest
    • 3) govt interest in fiscal and administrative efficiency.
  13. contracts clause - when can a state interfere with an existing private contract?
    • must meet intermediate scrutiny
    • 1) law must be necessary for an IGI
    • 2) impairment of the contract is justified by the public purpose at issue
  14. content-based prior restraint, what level of review?
    SS: necessary to acheive a CGI
  15. what procedural safeguards needed for a system of prior restraint?
    • 1) standards are narrowly drawn, reasonable, and definite
    • 2) restraining body must seek an injunction
    • 3) must be a prompt and final determination of the validity of the restraint
  16. DCC
    • 1) if discriminates against out of staters AND unduly burdens IC, then unconstitutional unless
    • ---a) market participant
    • ---b) necessary for a IGI
    • ---c) favors govt performing govt functions
    • 2) if doesn't discriminate
    • ---a) benefits outweigh the burdens on IC
  17. P&I Article IV
    • 1) govt cannot discriminate against out-of-state citizens in favor of in-state citizens for a fundamental right
    • 2) level of review: necessary for a IGI
    • only applies to citizens, not corporations!
    • only applies to out-of-state discrimination
  18. P&I 14th Am
    • 1) only applies to citizens being discriminated in their own state
    • 2) only applies to right to travel (residency requirements)
  19. what is inadequate legal remedy?
    • SUMI
    • 1) speculative damages
    • 2) insolvent defendant
    • 3) multiple suits necessary
    • 4) unique property
  20. what requirements for specific performance?
    • 1) inadequate legal remedy
    • 2) feasibility
    • 3) defenses (latches, unclean hands, unconscionability)
  21. compensatory damages checklist
    • 1) caused by breach
    • 2) foreseeable
    • 3) definite and certain
    • 4) unavoidability
  22. what are foreseeable and unforseeable damages?
    • 1) damages from the injury are foreseeable
    • 2) economic damages are not foreseeable from the wrong, and must be specially pleaded
  23. damages judgement, how is it paid?
    • 1) single lump sum
    • 2) discounted to present value
    • 3) no inflation
  24. punitive damages, what requirements?
    • 1) P was first awarded non-punitive damages
    • 2) D's fault greater than mere negligence
    • 3) must be roughly proportionate to actual damages (< 10x)
  25. constructive trust vs. equitable lien, value of property goes down, which should you pick?
    • equitable lien. forced sale + deficiency judgment
    • constructive trust just conveys to you the property or profits, but no deficiency.
  26. TRO & preliminary injunction standard?
    • 1) irreparable injury
    • 2) likelihood of success on the merits
  27. permanent injunction standard?
    • 1) inadequate legal remedy
    • 2) feasibility
    • 3) hardship balances in P's favor
    • 4) defenses
  28. replevin/equitable lien/constructive trust - BFP?
    • equitable rights are cut off by transfer of legal title to a bona fide purchaser
    • Note: title must be held by the defendant to impose constructive trust
    • Note: must be a transfer of *legal* title
  29. personal jurisdiction - broad standard?
    • 1) sufficient contacts
    • 2) offend traditional notions of fair play and substantial justice
  30. traditional basis for PJ?
    • 1) residence
    • 2) service in person
    • 3) consent
  31. detailed constitutional test for personal jurisdiction?
    • 1) Minimum contacts: a) personal availment; b) foreseeability
    • 2) Relatedness: a) specific jurisdiction; b) general jurisdiction
    • 3) Fairness: a) Convenience; b) forum state's interests
  32. specific jurisdiction
    claim arises from activity in the state
  33. general jurisdiction
    • "essentially at home" in the state
    • systematic and continuous contact
  34. venue
    • venue is proper in
    • 1) district in which any defendant resides, if all defendants are residents of the forum state
    • 2) district where substantial part of the T/O arose
    • 3) any defendant is subject to personal jurisdiction
  35. where is a corporation deemed to reside for purposes of venue?
    • 1) any district where it is subject to PJ
    • 2) [if multiple districts] any district where the corporation's contacts would be sufficient to subject the corporation to PJ if the district were a state
  36. res judicata applies when?
    • plaintiff is barred by res judicata when:
    • 1) a final judgment on the merits has been rendered on a particular cause of action
  37. mandatory bringing all claims?
    Fed: required to assert all claims arising out of the same transaction or occurrance
  38. what is federal question jurisdiction?
    • plaintiff's claim arises under federal law
    • plaintiff is trying to enforce a federal right
  39. supplemental jurisdiction
    • SUBJECT TO DISCRETION, there is supplemental jurisdiction if the supplemental claim arises from the same nucleus of operative facts (same transaction/occurrance)
    • exception:
    • 1) the claim is asserted by P
    • 2) in a diversity case (no FQ), and
    • 3) the claim would violate complete diversity
  40. when does the court exercise its discretion NOT to hear a supplemental Jx claim?
    • 1) federal question is dismissed early in the proceedings
    • 2) state law claim is complex
    • 3) state law issues would predominate
  41. counterclaims
    • 1) must be filed with D's answer
    • 2) must have proper subject matter jurisdiction for them
  42. compulory counterclaim?
    • 1) D's claim arises from the same transaction/occurrance as P's claim
    • 2) always proper subject matter jurisdiction under supplemental jurisdiction
    • must be filed, or it's waived in future cases
  43. permissive counterclaim?
    • does not arise from same T/O
    • can sue in a separate action
    • must check for subject matter jurisdiction (independent of supplemental jurisdiction!)
  44. crossclaim
    • claims between co-parties (e.g., D1 sues D2)
    • 1) must be from same T/o
    • 2) must have subject matter jurisdiction (typically, supplemental jurisdiction will work)
    • 3) not compulsory
  45. removal
    • 1) P can never remove
    • 2) for diversity cases, no removal if one of the defendants is an in-state resident
    • 3) if case later becomes removable, you get 30 days to remove
    • 4) all defendants must agree on removal
    • 5) diversity case cannot be removed more than 1 year after it was filed (unless bad faith by P)
  46. relation back - adding a claim?
    • as long as it's the same T/o as original pleading, relates back
    • treat the amended claim as though it was filed when the original pleading was filed
  47. relation back - changing a defendant?
    • relates back if
    • 1) same T/O
    • 2) new party knew of this case within 120 days of its filing
    • 3) new party knew that, but for a mistake, he would have been named originally
  48. scope of discovery?
    any nonprivileged matter that is reasonably calculated to lead to admissible evidence (basically, relevance!)
  49. permissive joinder of co-def or co-plaintiffs?
    • 1) arise from the same T/O
    • 2) raise at least 1 common question (fact or law)
    • think T/O test!
    • -> check PJ and SMJ
  50. for a non-party, who is a necessary party?
    • 1) complete relief cannot be accorded without T
    • 2) T's interest may be harmed if he is not joined
    • 3) failure to join T could subject another party to multiple or inconsistent obligations
    • -> joint tortfeasors are never necessary
    • If a party is necessary, see if his joinder is feasible
  51. When is joinder of a non-party feasible?
    • 1) there is PJ over him
    • 2) joining him will not destroy diversity
  52. What if joinder of a non-party is not feasible?
    • 1) proceed without him
    • 2) dismiss the entire case
  53. how does a court decide how to proceed without a non-party?
    • 1) alternative forums available?
    • 2) likelihood of harm to T?
    • 3) can the court shape relief to avoid harming T?
  54. 3rd party impleader
    • 1) must be same T/O
    • 2) PJ over 3rd party
    • 3) SMJ
  55. intervention of right
    • 1) must be a necessary party (interests will be harmed if not joined)
    • 2) must be timely
    • 3) must be SMJ (most courts will not allow supplemental if intervenor is not diverse from the party on the other side)
  56. permissive intervention
    • 1) T's claim or defense and the pending case have at least 1 common question
    • 2) discretionary with court
    • 3) must be SMJ (most courts will not allow supplemental if intervenor is not diverse from the party on the other side)
  57. class action must satisfy what initial requirements?
    • class action - CANT
    • 1) numerosity - class is so numerous that joinder is impracticable
    • 2) commonality - questions of law or fact in common to the class
    • 3) typicality - class rep's claims or defenses are typical to the class
    • 4) adequate representation - rep will fairly and adequately represent the class
  58. what are the 3 types of class actions?
    • 1) Prejudice: class action is necessary to avoid harm either to class members or to adverse party of class (claimants to a fund)
    • 2) injunction/declaratory judgment: sought because the class was treated alike by the adverse party
    • 3) common question predominates: plus damages, and class action is the superior method to handle the case
  59. how does the court certify a class to allow it to proceed as a class action?
    • 1) define the class
    • 2) define class claims, issues, or defenses
    • 3) appoint class counsel (fair/adequate representation)
    • 4) Type 3, only: individual notice to class members (opt-out, binding)
  60. who is bound by a class action?
    all class members, except if they opted out of type 3. no opt-out for type 1/2.
  61. class action, dismiss or settle, do you need the court's approval?
    yes
  62. class action, what requirements for diversity jx?
    • 1) look at the rep for diversity and AIC
    • 2) CAFA: grants SMJ if any class member is diverse from any defendant, and aggregate claims of the class > $5MM
  63. res judicata
    • if a final judgment on the merits has been rendered,
    • 1) plaintiff (and privies) is barred by res judicata from trying the same cause of action in a later suit
    • FRE: cause of action = T/O
    • CA: primary rights doctrine, COA may be split into multiple law suits as long as that COA does not give rise to an invasion of a single primary right
    • primary right = right to be free from a particular harm
  64. collateral estoppel
    • judgment is conclusive in a subsequent action on a different cause of action between a party (and their privies) if
    • 1) issue was actually litigated (evidence presented at trial, decision rendered)
    • 2) issue was essential to the judgment
    • 3) final judgment on the merits
    • 4) asserted against someone who was a party in case 1
  65. who can assert collateral estoppel?
    • 1) traditional rule requires mutuality: party asserting collateral estoppel must have been a party to case 1
    • 2) nonmutual DEFENSIVE issue preclusion: permissible to bar P's claim if P had a full chance to litigate case 1
    • 3) nonmutual OFFENSIVE issue preclusion: permissible to bar D's defense if not "unfair"
  66. fairness factors, for nonmutual offensive issue preclusion?
    • 1) full and fair opportunity to litigate case 1
    • 2) foreseeability of multiple suits
    • 3) P could not easily have joined case 1
    • 4) no inconsistent judgments on record
  67. forum non conveniens
    • 1) A court may transfer a case to another district where it might have been brought, or to dismiss it if transfer is not possible, if there is another forum that is better suited to hear the case.
    • 2) the court must consider public and private factors.
    • 3) public: availability of the alternate forum, plaintiff's choice of forum, forum state's interest in providing a forum for its residents
    • 4) private: convenience of parties, location of evidence, and where the T/O arose
  68. when can a party compel an independent physical or mental examination of a party? how to do it?
    • when that party's physical or mental condition is in controversy.
    • if not in controversy, cannot compel (i.e., physical injuries cannot compel a mental examination)
    • procedure:
    • 1) motion to the court to have a physician perform an exam
    • 2) show good cause (relevant and necessary to the action)
  69. what is an agency relationship?
    • 1) principal manifests intent
    • 2) that the agent shall act on the principal's behalf
  70. what requirements to form an agency relationship?
    • 1) consent
    • 2) capacity
    • -> no formalities required
  71. distinction: independent contractor vs. employee?
    whether P has the right to control the manner and method in which A does his job
  72. types of authority?
    • 1) actual authority (agent reasonably believes, based on prior conduct with P)
    • 2) apparent authority (3rd party reasonably believes, based on P's manifestations)
    • 3) ratification (accepting the transaction after it has occurred)
  73. what are the 2 types of actual authroity?
    • 1) express authority: specified in communications between P and A
    • 2) implied authority: implied from P's conduct (acquiescence)
  74. agent enters into K with an undisclosed principal, who is liable to K party?
    both A and P
  75. agent's duties to the principal?
    • 1) duty of obedience (follow reasonable instructions)
    • 2) duty of loyalty
    • 3) duty of care
  76. principal's duties to the agent?
    • 1) duty to compensate or reimburse
    • 2) duty under contract
    • 3) duty to cooperate
  77. what happens if the principal dies?
    • all authority (actual, apparent, etc) is terminated upon P's death
    • (because of incapacity!)
  78. partner's actual authority?
    • 1) express authority - maybe
    • 2) implied authority to enter into contracts that are within the scope of the partnership business (because all partners have equal rights in management of the partner business)
  79. partner's apparent authority?
    • 1) partnership holds out a partner as possessing certain authority, inducing others to reasonably rely to their detriment to believe authority exists
    • 2) RUPA - act of any partner for apparently carrying on in the ordinary course of the partnership business unless
    • ---a) partner had no authority for the particular matter
    • ---b) 3rd party had notice that the partner lacked authority
  80. if agent enters into K for P, but has no authority, is A liable to T?
    A is liable to T for the breach of the implied warranty that the A acted with authority
  81. creation of a partnership checklist
    • 1) seed money - is it a loan?
    • 2) management power?
    • 3) under UPA, sharing profits is prima facie evidence of a partnership
  82. something that's owned/used/created by the partner, is it partnership property?
    • Generally, personal property vs. partnership property is determined by the intent of the parties
    • Court looks a number of factors:
    • 1) use of partnership funds or resources
    • 2) use of the property by the partnership
    • 3) entry of the property in the partnership books as a partnership asset
    • 4) close relationship between the property and hte business operations of hte partnership
    • 5) improvement of the property with partnership funds
    • 6) maintenance of hte property with partnership funds
  83. pre-incorporation: a promoter acts on behalf of corporation not yet formed. what does corporation have to do to become liable?
    • 1) express board resolution
    • 2) implied ratification through a) knowledge and b) acceptance of benefits
  84. is a promoter liable for pre-incorporation contracts?
    yes, unless there is a novation releasing him from liability
  85. does promoter owe fiduciary duties to corporation?
    yes
  86. What if a director/officer does an ultra vires act?
    • 1) ultra vires act can be enjoined
    • 2) corporation can recover losses from the D/O
  87. what is a de facto corporation?
    • 1) corporation is not validly formed
    • 2) organizers made a good faith, colorable attempt to comply with corporate formalities
    • 3) no knowledge of the lack of corporate status
  88. what is piercing the corporate veil?
    • when shareholders are personally liable for corporate debts
    • results in joint and several liability!
  89. when is the corporate veil pierced?
    • 1) alter ego: shareholders treat the assets of the corporation as their own, fail to observe sufficient corporate formalities
    • 2) fraud: avoiding personal liability through corporate formation operates as a fraud on creditors
    • 3) undercapitalization: failure to maintain sufficient funds to cover foreseeable liabilities
    • *must be some basic injustice that equity requires that the individual shareholders be held responsible for the damage they caused
  90. what are requirements for effective board action?
    • 1) board meeting [quorum, majority vote of those present], or
    • 2) unanimous written consents
  91. director's duties?
    • 1) duty of care
    • 2) duty of loyalty
    • 3) duty not to waste corporate assets
    • 4) duty to disclose (material corporate information to other members of the board)
  92. duty of care
    • directors must act in:
    • 1) good faith
    • 2) best interest of the corporation
    • 3) due care of an ordinarily prudent person
    • *BJR!
  93. What is the BJR?
    presumption that directors manage the corporation in good faith and in the best interests of the corporation and its shareholders
  94. duty of loyalty
    • director may not receive an unfair benefit to the detriment of the corporation or shareholders unless there has been:
    • 1) material disclosure
    • 2) independent ratification
  95. self-dealing/interested director transaction?
    • director who receives an unfair benefit to herself (or relative, or another business of hers) in a transaction with her own corporation
    • 1) ok if fair, or if independent ratification after full disclosure
    • 2) remedy is recission
  96. corporate opporutnity doctrine
    • director receives an unfair benefit by usurping an opportunity which the corporation would have pursued
    • 1) remedies are damages, constructive trust, or corporation gets the opportunity at cost
  97. what is independent ratification?
    • 1) majority vote of independent directors
    • 2) majority vote of a committee of at least 2 independent directors
    • 3) majority vote of independent shareholders
  98. requirements for shareholder derivative suit?
    • 1) contemporaneous stock ownership - when claim arose, and throughout the litigation
    • 2) demand must be made (and rejected), or excused because futile
  99. director indemnification - when?
    • 1) mandatory indemnification if director is successful in defending the suit
    • if director loses the suit, then indemnification depends on the nature of the suit
    • 2) if director loses a derivative suit for wrongdoing, indemnification generally not allowed
    • 3) suit is settled, some states allow indemnification
  100. shareholder pooling agreements
    • written agreement to vote shares as required in the agmt
    • 1) binding and enforceable
    • 2) no time limit
  101. voting trust
    • formal written agreement delgating voting power to a trustee
    • 1) on file
    • 2) expires in 10 years
  102. stock transfer restriction agreements - what requirements?
    must be reasonable
  103. what is valid consideration for stock?
    • 1) stock must be suppored by consideration
    • 2) exchange of property for stock, the board must assess the adequacy of the consideration (duty of care & loyalty)
    • 3) future services are not consideration
    • 4) promissory notes at CL were not consideration; modernly are sufficient consideration
  104. controlling shareholder's duties
    • owe fiduciary duties (care/loyalty) to minority shareholders.
    • Must:
    • 1) refrain from obtaining a special advantage
    • 2) refrain from causing corporation to prejudice minority shreholders
    • 3) must refrain from selling corporation to a looter, unless reasonable measures were taken to investigate
  105. mergers - what is required?
    • 1) directors and shareholders entitled to vote of BOTH corporations must approve
    • 2) appraisal rights of dissenting shareholder: 1) written objection before mtg, 2) vote against merger, 3) file written claim
  106. sale of assets - what is required?
    • if outside the ordinary course of business,
    • 1) majority of directors and shareholders entitled to vote must approve
    • 2) sale of assets may be a de facto merger, may trigger possible recission or appraisal rights
    • 3) purchasing corporation may be liable for debts and liabilities
  107. dissolution and liquidation - what is required to enter into?
    majority of directors and shareholders entitled to vote must approve
  108. one person sells stock to another. what remedies?
    • 1) tort of fraud or misrepresentation
    • 2) Rule 10b5 federal securities action
  109. short-swing profit rule (Rule 16b)
    • 1) large corporation [national exchange, or 500+ sh & $10MM assets)
    • 2) Officer, director, or 10% shareholder
    • 3) purchase and sale of stock within 6 month period
    • *strict liability!
  110. 10b5 private plaintiff action [against corporation, against another shareholder]
    • private plaintiff must show:
    • 1) interstate commerce
    • 2) fraudulent conduct (scienter - intent to deceive; materiality; misrepresentation or failure to disclose that breaches fiduciary duty)
    • 3) reliance
    • 4) in connection with purchase or sale
    • 5) damages
  111. What is an "insider" for purposes of 10b-5?
    someone who owes a fiduciary duty not to disclose material, nonpublic information
  112. insider trading
    • an insider breaches 10b5 if by trading he breaches a duty of trust and confidence owed to:
    • 1) issuer
    • 2) shareholders of the issuer
    • 3) another person who is the source of the material nonpublic information (misappropriation)
    • Elements:
    • 1) insider
    • 2) bought or sold stock via interstate commerce
    • 3) based on nonpublic information
  113. Tipper liability
    • insider gives a tip of material inside information to someone else who trades on the basis of the inside information, tipper can be held liable under 10b-5 if:
    • 1) insider
    • 2) improper purpose
    • 3) personal gain (reputation or monetary)
  114. Tippee liability
    • 10b-5 violation
    • 1) tipper breached
    • 2) tippee knew that tipper was breaching
    • 3) tippee bought or sold stock via interstate commerce
  115. misappropriation theory for stock trades?
    • brought by government against any trader who:
    • 1) misappropriated information from any source
    • 2) breach of duty of trust and confidence owed to the source of information
    • *if you find tippee is not liable bc tipper not liable, then raise misappropriation theory!

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