legal final

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legal final
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2011-03-10 14:44:56
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legal final
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  1. sexual harrassment
    • can be same sex, by quid pro quo or hostile environment
    • quid pro quo is a sexual favor for a favor, hostile environment is unwelcome advances, sex favor requess, other verbal, physical or communcation of sexual nature; must have taken tangible employment action
    • empoloyer responsible if no published policies to prevent or doesn't follow through with published policies that are in effect
    • not responsible if employee doesn't follow the published policies to report or followed through with employment action if notified of harrassment
  2. Menashe v secret catalogue
    a suggestive mark case; victoria secret had catalogue line when menashe and quock filed intent to use, when victoria secret went to register trademark found out about intent to use and notified menashe and quock that it was infringement on menashe and quock part, menashe and quock filed suit asking for non infringement lost case because victoria secret had already started using mark and it was a suggestive mark and victoria secret had priority
  3. flood v mercantile adjustment bureau
    • 3rd party notification of debt
    • flood bought a vechile that was damaged, tried to return but dealer refused but did a trade, car was found later to have problems as well, flood was laid off then fell behind in payments, mercantile received past due debt from bank and sent flood a notice through mailbox, automated mailing center, flood sued because of this claiming 3rd party notification of her debt, which is against privacy laws, lost case because it is an automated mailing center and even if not entirely does not cause her to pay due to others knowing of debt like family or job would
  4. differences between employee and independent contractor
    • employee paid on schedule contractor paid at end of job
    • employee supervised and managed in day to day responsibilities contractor does day to day by self not supervised
    • employee is supplied tools, contractor has own tools
  5. actions of e agents
    can make legally binding contract for principal; but if no way for 3rd party to prevent errors then 3rd party can avoid contract if error in program causes wrong amount or items ordered
  6. emolian case vs desert hosipital
    emolian found out pregant at er of desert hosipital, directed to clinic that is supposed to not be part of hosipital, clinic uses hosipital to schedule appoints, has hospital staff working in clinic and the like, baby was born with brain abnormalities and emolian sued hosiptal for neglience in not notifiying her that there would be issues with baby and allowing her to choose, 1st court ruled in hosipital's favor stating no neglience and clinic not under hospital authority, emolian appealed, 2nd court ruled that while it was implied authority of hospital and hospital could be liable there was still no neglience
  7. implied vs apparent authority
    • implied authority is based on agent of principle doing duty of principal and takes action on behalf of principal to do job even if can't notify principal of action needed, by custom or inferred by position
    • apparaent authority is based on principles actions infront of 3rd party, 3rd party assumes that agent or person that principle acts as if agent has the authority to act on principles behalf, pattern of conduct over time
  8. termination of agency
    • by act of parties - lapse of time; purpose accomplished; occurence of event; mutual decission of both parties; one party decides to terminate, notification of terminationy
    • by operation of law - death or insanity; bankruptcy; war; change of circumstance; impossibility
  9. new issues on online privacy
    • employer can check work computer of employee to prevent harrassment and hostile environment but cannot check home computer or private computer of employee
    • question of whether employer can take action of blogs of employee or prospective employee to make decisions of hiring, firing or other action of employer
  10. cash distributing co v neely
    age discrimination case - after neely was hired he was promoted to management. New owners came in and changed and enforced rules, he did not file new forms that were requested and reports on employee, there were other managers that didn't either, he was fired for not filing the forms and other things but his department had no issues and they replaced him with a younger person, he filed age discrimination and they found for him, upon appeal cash distributing co claimed that he was fired for other reason, which he never disputed that they may have been a small part, court found in neely's favor as he didn't have to prove that those weren't valid reasons only that it was age was primary reason due to not uniformlly followed through and much younger person replaced neely
  11. Burlington North and Santa Fe Railway Co v. White
    case of retaliation against white with bad boss. After the first supervisor was fired due to harrassment she was moved from her forklift job to a more manual harder work job requiring less skill and less prestige, the second supervisor managed to get her suspended without pay when it was proved that she did nothing wrong she was paid back pay and reinstated. She filed retaliation against company on both counts, the court found that the suspention was not retalaition but she did prove retaliation from the change of position since the men were jealous of her having this high prestege job.
  12. What Title VII of Civil Rights Act of 1964 covers
    • people that have been discriminated based on the national origin, race, age, religion and gender in hiring, firing, promotion, job training, compenation, demotion and any other term of employment like benefits
    • generally employers that have 15+ employees but can be less than 15.
  13. Title VII of Civil Rights Act of 1964 what it is
    the act that prohibits discrimination against people based on age, gender, race, national origin and religion
  14. detour vs frolic
    • when you detour you are doing a personal errand during your delivery duties, like mailing a letter on your way to the next delivery
    • frolic is taking the business property, like a car or truck, and going about your personal business while not on the job or instead of doing the job usually going out of the way of the job for personal reasons.
  15. ADA issues
    • Discrimination based on handicap; can be by association of a handicap person
    • have to prove that part of the group, qualified to the job and have been discrimated based on the handicap
    • A handicap in this case is anything that cannot be corrected (near sighted or bipolar) by glasses or meds, can be recovering drug addict or alcholic but not a klepotmanic, that prevents a person from being able to go about major life activity; repetive stress injury does not qualify
    • employer must provide reasonable accomidations (unless can prove undue hardship), and must provide access to health insurance
  16. ADEA issues
    • discrimination based on age of person
    • must prove part of group, qualified to do the job, discriminated based on age; have to prove that age was the primary reason even if there are other reasons
    • the more the difference in age the more discrimination is shown; state employees are not covered under this
  17. Senate Bill 5
    To limit the amount of collective bargaining that state employees can do putting limits on amounts, making merit more important than seniority in a job and merit to increase pay not just give pay raise because person is still there; makes it easier to get rid of those that are not doing their jobs. More closely resembles how private employers pay and hire and fire employees. only prevents strikes in cases of safety issues
  18. collective bargaining
    • the act of unions to make a deal for all employees, whether they are union or not, for compasation, safe work envirnoment, job benefits and the like
    • the common issue is what they can bargain for; manidtory items are terms and conditions of employment but can not featherbed (make employer hire more workers than needed), prevent closing or moving plant; privacy issues can be bargained for but not entirely
  19. Difference between LLC, Partnership and Limited Partnership
    • management is the main issue
    • LLC have limited liability and can chose to manage or not based on the agreement of all partners in the LLC, partnerships have management rights but are liable for debts and lawsuits, Limited Partnership has to have one general partner that is responsible, limited partners are not allowed to manage to have the limited liability from debts and lawsuits (unless personally responsible) and if 3rd party discovers them managing then they are liable just like general partner
    • duration - llc's can continue even with one partner leaving, partnerships continue even with one partner leaving, LP can only continue as long as there is still 1 general manager and 1 limited partner
  20. define partnership
    2 or more people decide to start a business to earn a profit
  21. types of franchises
    • distributorships - like car dealers
    • chain style business operations - like fast food
    • manufacturing/processing arrangements - like coke
  22. define sole proprietorship
    a person who starts a business to make a profit without creating a seperate business organization
  23. how corporations are taxed
    • Have to file there own taxes, nothing is passed thru to the shareholders, on all profits and assets of the business
    • Then when they make dividends the shareholder is taxed on the distrubtion not allowed to deduct dividends from their profits and assets
    • double taxed
  24. Dutites of principal to agent
    • compensation
    • reimbursement and indeminfication - paying back for liabilities that the agent pays out on principals behalf
    • coorporation
    • safe work invironment
  25. Warnick & Warnick
    buyout price on dissocation
    • The son decides to dissocate from the family business
    • the mom and dad continue on in the business without selling anything
    • son sues for buyout price courts award 1/3 of FMV of assets
    • mom and dad appeal stating that they didn't take out cost of liquidating from the FMV and lost because they didn't liquidate and continued in business he gets 1/3 of FMV of the assets of the business
  26. Kuhn v Tumminelli
    • apparent/implied authority case
    • kuhn supplied the money and customers; Tumminelli ran the day to day operations of the business then he embazzeled when he cashed in the checks by using the money for personal use and not to pay the bills
    • kuhn sued Tumminelli, quick loans and bank for the embazzelment stating that tumminelli didn't have authority to cash the check won tumminelli but not quick loans and bank, appealed for the quick loans and bank and was informed that as tumminelli ran the day to day he had authority to pay the bills therefore the authority to cash the checks and quick loans and bank were not responsible for him cashing the checks
  27. Define Franchise
    a franchise is a trademark, tradename or copyright that is sold by the franchisor to a franchisee to use the makr, name or copyright to make a profit
  28. In re Aqua Case
    • The owners of Aqua (Harvey and Barbara Jackobson) took and ran the business but didn't keep the personal and business money seperate in that the removed profits from Aqua to pay personal debt, they filed bankruptcy and then 3 weeks later opened new business under new name with all property of Aqua
    • Kenneth Welt trustee of Aqua filed suit against Discount water and owners due to same business and he was handed an empty shell to pay the debts from, won and discount water has to pay all of Aqua's debts
  29. Disadvantages of LLC
    The states do not have a uniform statue for LLC so they are different from one state to another
  30. How an LLC is taxed
    • It is passed thru to the owners to their personal income taxes
    • exception for publicly traded, formed under state incorp statute and certain foreign owned companies
  31. Employement Discrimination defenes
    • 1st is that they didn't prove there case
    • business necessity; bona fide occupational qualification; seniority systems (due to rules that state that longer employee has to be promoted first or laid off last); after aquired evidence of employee misconduct (can limit liability but not shield entirely)
  32. Disadvantages of sole proprietroship
    • solely responsible for liabilities
    • have to use own funds or get loans
    • no continuiance of business on death of owner
  33. What is an S corporation
    • A corporation that is domestic, not foriegn,
    • has 100 shareholders or less that are individuals, estates, certain trusts or certain corps
    • one type of stock
    • not part of a group of affliated corps
    • has no nonresident aliens as shareholers
  34. Advantages of LLC
    • key is limited liabilty of members
    • flexable in tax and management
    • enduring business entity beyond illness or death of members
    • can include foreign investors
  35. UPA
    • Uniform partnership Act
    • governs operation of partnership in absence of express agreement and reduced controveries in law related to partnerships
  36. Respondent superior doctrine
    • makes principle responsible for actions of agent against 3rd party when agent causes damage; principle has vicarious liabilty (indirect liability)
    • has to do with social responsiblity of principle on actions of their agents on 3rd parties; duty to be responsible for damages
  37. Advantages of sole proprietorship
    • owns entire buiness and receives all profits
    • easy of startup and less costly; easy legal requirements
    • more flexibility
    • free to make business decisions and sell or transfer to another at any time
    • pays only personal income taxes on profits
    • can establish certain tax exempt retirement accounts
  38. vicarious liabilty
    indirect liablilty of principle to 3rd party on tort of agent causing damage to the 3rd party without principle being personal at fault
  39. close corporation verse public corporation
    • close corporation has few shareholders ususally family members that have to keep the shares within the family
    • public corporations has many shareholders selling on securities market, must have bylaws and board of directors
  40. How is an agency relationship formed
    • by agreement -express or written
    • by ratification - principle approve or affirms act of another on their behalf
    • by enstoppel - action of principle in front of 3rd party to imply
    • by operation of law - agent acts on behalf of principle with principles benfits in mind to prevent loss when agent can't contact principle or social duty of agent
  41. duties of agent to principle
    • obendence
    • loyality
    • preformance
    • notification
    • accounting of duty
  42. rights of shareholders
    • accounting; dividends; inspection of records
    • vote shares; bring derivative suite; stock warrents
    • to demand certificates be issued
    • preemptive rights to new stock (if reserved)
    • receive share after debts have been paid on dissolution
  43. advantages of an S corporation
    • can be taxed at shareholder level instead of corp level if shareholder level is lower rate
    • losses of corp can be used by shareholders to offset other taxable income
  44. How an LLC is formed
    • file articles of organization with state (name of business (must include LLC), address, name & address of registered agent, owners names, management info)
    • few states require notice in newspaper article of notice of intent to form LLC
    • some states require at least 2 members most only 1
  45. Disassociation of LLC
    • same as partnership disassociation
    • events - voluntary, withdrawal, expulsion by other members or court order, bankruptcy, incompetence & death
    • they lose right to participate & act as agent, loyalty is terminated, duty of care for events before disassociation & generally has right to be bought out in 120 days
  46. difference between de jure and defacto corp
    • a de jure corp has been started correctly and legally no one can dispute, no errors in start up
    • defacto corp has an error in the start up usually due to no organizational meeting after start up; must have started acting as corp; must have good faith attempt to comply; state statue that allows to be valid inc; can be disputed by state
  47. liabilities of directors and shareholders
    loss of investment; watered stock (must pay difference to corp); majority shareholder own control of corp that owes fiduciary duty to corp
  48. shareholder access rules
    • minority shareholders have right for shareholder proposal to be included in the proxy to amend bylaws to require corp to publish names of shareholders but needs majority of shareholder to adopt
    • makes it easier for dissident shareholders to use proxy process to elect their candidate to board of directors
  49. role of directors
    • ultimate authority usually serving 1 year but can be longer
    • make policy making decisions for management of corp affairs
    • hire officers and other managerial employees and decide their salary
    • determine capital structure
    • declare dividends
    • authorize major corp policy decisions (contracts, sale or lease assets, pursue new lines)
    • make financial decisions
  50. disassociation of partnership events
    • voluntary withdrawal (others can dissolve or continue)
    • occurrence of event to in agreement
    • unanimous vote of other partners in event of partner selling large portion or inability to do business due to unlawful ability
    • order of court or arbitrator in event of partners illegal or wrongful act
    • partner's bankruptcy, death or incapacity
  51. disassociation in a partnership
    • when a partner leaves the partnership; other partners can continue business
    • their rights, duties of loyalty ends; other partners can buy interest
    • duties of care and fiduciary continue as to events that occurred before disassociation for 2 years for 3rd party duties; buyout price is FMV of assets in proportion to their ownership
  52. rights of partners
    • to help manage the business
    • to receive fair portion of profits and losses either as agreed or equal if not and losses in same proportion of profits
    • compensated only if agreed
    • inspect the books; accounting of assets or profits at any time
    • does not have right to partnership property for personal use
  53. partnership termination
    process of winding up is actual process of collecting, liquidating and distributing partnership assets
  54. role of officers
    • hired by board of directors
    • carry out duties stated in bylaws
    • act as agents of corp
    • otherwise duties of directors
  55. different kinds of corporation
    domestic; foreign; alien; closed; public; publicly held; private; s corp; non profit; professional
  56. duties of directors and officers
    make informed and reasonable decisions; dissent when not agreeing or not at meeting; duty of care to shareholders; do what is in best interest of corp; exercise reasonable supervision; duty of loyalty to corp by acting in best interest, not competing with corp, not usurping corps opportunities, no conflict of interest, no insider trading, not authorize transactions that is bad for minority shareholders or sell control of corp
  57. role of shareholders
    to act in best interest of corp, invest in corp, vote for board of directors and approve fundamental changes in corporation; exercise ownership control through voting
  58. steps to form corporation
    • 1. chose state of incorporation
    • 2. chose unique name for corporation that has corp or inc in name
    • 3. create articles of incorporation
    • 4. file articles of incorporation with state official (usually secretary of state) along with fee to pay to incorporate
    • after receiving articles or certificate of incorp back hold a organization meeting
    • articles of incorporation includes name and address of business, legal agent name and address, bylaws, type of business, names and addresses of incorporators, # of shares authorized to issue
  59. Dissolution of LLC
    • wind up business; pay of debts (including member debt)then return investment of members then any leftover money is split between them either equally or according to operating agreement
    • any wrongful disassociation member cannot participate in winding up the business

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