Term
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Definition
Fourth Branch Government
Federal and State legislative or executive branches delegate authority to an agency to regulate and administer a statute or topic or law.
No authority beyond the scope of what has been delegated. |
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Term
| What do Administrative Agencies? |
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Definition
Legislative, executive, ve measures
and judicial powers
- Enact regulations
- Investigate to identify violations
- Prosecute and adjudicate violations-admin. hearings
- Assess fines and other penalties, issue cease and desist orders, order corrective measures
- Informs the public
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Term
| FDA-Food and Drug Administartion |
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Definition
Food-sets action levels, creates labeling requirtments, conducts inspections, enforces regulations
Drugs and Medical Devices- prevents from inflicting death or physical injury unless risks are offset by the possibility of therapeutic benefit
Cosmetics
Animal Drugs and Feed
Racetract drugs-Hyaluronic Acid
Radiation Emitting Devices
Cell phones, microwaves, lasers |
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Term
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Definition
| Consumer Product Saftey Commission |
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Term
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Definition
- products that present an imminent and unreasonable risk of death, serious illness, or severe personal injury
- Forces recalls, repairs or other corrective action
- Criminal penalties for intentional violations
- Ex- Toys- require age recommendations, recall for small parts that cause choking and dangerous conditions such as lead paint
- Children's clothing- recall hooded sweatshirts with drawstrings due to strangulation hazard and clothing made of flammable materials
- ATV-operation rules and warnings-special requirements for operation by person under age 16
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Term
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Definition
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Term
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Definition
lConsumer protection against business scams and anti-competitive practices (Antitrust)
lFalse Advertising regulations
lEx. Campbell’s soup--using props or animation to create a false perception of product is false advertising
lEx. Beer/Ice Cream--substitutions for practical purposes that do not misrepresent the product are okay
lEx. Volvo--fined $150,000 for each commercial it ran showing structurally reinforced Volvos without disclosing-compare with Toyota’s “dramatization” ads
lEx. Kraft Singles--unsubstantiated calcium claim |
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Term
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Definition
| Occupational Safety and Health Admin. |
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Term
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Definition
lEnacts workplace safety regulations and inspects/enforces violations
lEx. Recordkeeping and reporting of injuries and sickness, emergency exit plans, storage of flammable liquids, ventilation, noise exposure, height of railing on staircases, use of ladders/scaffolding etc. |
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Definition
lEnvironmental Impact Statement (EIS)
lEPA and IEPA--administrative agencies
lStates must enforce or will not receive federal funding/assistance programs
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Term
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Definition
lNAAQS levels for carbon monoxide, sulfur, methane,etc.
lNon-attainment areas--above NAAQS or PM2.5 levels
lSulfur Dioxide and Nitrogen Oxide Market based system
lAsbestos and Mercury Handling
lIndoor Air Pollution--Radon |
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Term
| Resource Conservation and Recovery Act |
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Definition
lTracks transport and disposal of hazardous waste
lRegulations on treatment, containment, and recording procedures
lUnderground Storage Tanks for petroleum products
lDouble-walled, registered and subject to inspection
lJoint and Several Strict Liability for leaks
lPhase 1 and 2 inspections for potential contamination
lLUST Fund and Superfund |
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Term
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Definition
lFertilizer/industrial byproduct regulation
lPermits required to release byproducts into water--best technology, monitoring systems, and record keeping required by EPA
lRelease of heated water prohibited
lStandards for drinking water/water for recreational use
lWetland regulation
lNo filling, dredging, or otherwise disturbing or interrupting wetlands unless permit issued by Army Corp of Engineers
lMust replace up to 10 times the area that is disturbed |
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Term
| Trademark-Inherently Distinctive |
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Definition
–Fanciful--made up words
–Arbitrary--real words that have nothing to do with the product
–Suggestive--suggests idea but doesn’t describe product |
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Term
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Definition
–only protected if create secondary meaning in marketplace that identifies with certain company |
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Term
| Trademark-Automatic protection |
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Definition
–Under common law, first to use the mark in interstate commerce becomes owner
–The more it is used and attributed to the business the more likely courts will find infringement because it is closely identified with one business |
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Term
| Trademark-Benefits to registerin with PTO |
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Definition
–Evidence of ownership
–Presumption others are aware-no good faith def.
–Prevent importation of articles with trademark
–Lasts for 10 years but renewed indefinitely |
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Term
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Definition
–Prove another’s mark is confusingly similar in the markeplace
–Dillusion
•Harms reputation--Tarnishing
•Lessens distinctiveness--Blurring |
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Term
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Definition
–Must register in all foreign countries but CTM covers all 25 EU countries |
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Term
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Definition
–Tangible medium of expression
–Original
–Minimal Level of Creativity |
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Term
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Definition
–Automatic
•Life of creator plus 70 years
•Made for hire--First of 95 years from publication or 120 years from creation
–Notice prevents innocent infringement defense
–Registration required to pursue infringement but can register after the fact |
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Term
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Definition
–Purpose/Character of Use
–Nature of Copyrighted Work
–Amount and substantiality of portion used
–Effect of the use upon potential market or value of the work
•Transformative--adds new information, insights, and understandings to the copyrighted work the more likely it will qualify as fair use |
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Term
| Copyright-Proving Infringment |
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Definition
–Access plus substantially similar
–Direct, Vicarious, and Contributory
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•International--rights but enforcement issue |
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Term
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Definition
Utility--useful
–20 years from date app. filed
•Design--ornamental
–14 years from date patent issued
•Application process
–Detailed description so those in field could make and use it
–PTO publishes 18 mo. After filing so anyone can use info. after period elapses
–“Prosecution” looks for prior art and modifies unsubstantiated claims--takes at least 1 yr.
–$25,000 total cost |
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Term
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Definition
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Term
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Definition
First to File
Must register there
approx $5,000 each |
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Term
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Definition
any use of patented idea
damages=all profits and attorneys fees plus treble damages if interntional |
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Term
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Definition
How to Determine?
–Value of Information--Competitve Advantage?
–Effort to Protect It
•Misappropriation of Trade Secrets
–Intentional Tort for unauthorized use regardless if non-disclosure agreement present
•Inevitable Disclosure Doctrine
–EX. PepsiCo marketing manager
Economic Espionage Act--federal crime |
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Term
| Employment Discrimination |
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Definition
Disparate Treatment
–Individual from a protected class
–Receives adverse employment action
–Because of his protected class status
•Disparate Impact
–Facially neutral employment practice
–Impacts a protected class
–In such a way as to effectively discriminate against the class
•Other discriminatory practices include:
–Retaliation for filing or assisting EEOC charge
–Association with a protected class
–Harassment on the basis of a protected class |
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Term
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Definition
Discrimination on the basis of race prohibited
–Not racial discrimination if based on merit or seniority (BFOQ does not apply)
–Exception: Affirmative Action
•Employers are required to take appropriate steps to prevent and correct racial harassment that results in a hostile work environment
–Reasonable person/negligence standard
–Thus, if employer is taking reasonable steps to prevent and correct harassment, then will not be liable (only harasser liable) |
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Term
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Definition
Discrimination against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group prohibited
–Not if based on merit, seniority, or Bona Fide Occupational Qualification (BFOQ)
–Blanket policy for verification of legal authorization to work in the U.S. okay
•Prevent/Correct Harassment
•Accent Discrimination prohibited unless materially interferes with job performance
•English Only Rules only if necessary to promote the safe or efficient operation of the business/ non-discriminatory purpose |
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Term
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Definition
Employers may not treat employees or applicants less or more favorably because of their religious beliefs or practices
•Merit and Seniority Defenses
•Employees cannot be forced to participate, or not participate, in a religious activity as a condition of employment
•Employers must reasonably accommodate employee’s sincerely held religious beliefs or practices unless doing so would impose an undue hardship on the legitimate business interests of the employer (like BFOQ)
•Prevent/Correct harassment |
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Term
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Definition
Discrimination against any employee or applicant because of his or her sex prohibited
–Not gender discrimination if based on merit, seniority, or BFOQ
•Prevent/Correct Harassment
•Pregnancy based discrimination--pregnancy must be treated in the same way as other temporary illnesses or conditions (Added protection under FMLA)
•Equal Pay Act--Prohibits discrimination on the basis of sex in the payment of wages or benefits where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions |
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Term
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Definition
•Prohibits age discrimination
–Narrow exception: if age has been conclusively proven to be a bona fide occupational qualification
–Merit and Seniority Defenses
•Also prohibits statements or specifications in job notices or advertisements of age preferences and limitations |
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Term
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Definition
•Individuals with Disabilities include:
–Physical or mental impairment that substantially limits a major life activity
•Does not include common or temporary conditions or those impairments that can be cured by corrective measures
–Record of impairment relied on by employer that showed a substantial limitation of a major life activity
–Regarded as having an impairment that would substantially limit a major life activity
•If the individual with a disability is qualified and can perform the essential functions of the job with or without a reasonable accommodation then an employer cannot consider the disability. (Reasonable=no undue hardship)
•Employer cannot inquire or test applicants for disabilities
•Places of public accommodation accessibility |
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Term
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Definition
•Principal/Agent relationship
–Consent, Control, Fiduciary Relationship
–Agent Duties:
•Loyalty, confidentiality, non-compete, care
–Principal Duties:
•Reimburse, Cooperate
–Ex. *Employer/employee, Power of Attorney
•*Consider whether agency relationship created for contract liability and whether worker is an independent contractor or an employee for tort liability |
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Term
| Agency-Contract Liability Creation? |
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Definition
one of the following must be present for an agency relationship to exist for contract liablity
–Express Agency
–Implied Agency
–Apparent Authority
–Ratification |
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Term
| Agency-Contract Liability |
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Definition
•Principals are liable for their agent’s contracts if one of the above ways to create an agency relationship is present.
•If the agency relationship is fully disclosed (existence and identity), then only the principle is liable for the contract.
•If the agency relationship is not fully disclosed (existence but not identity), then agents are jointly and severally liable with the principal.
•If an agency relationship has not been created or if the agent is acting beyond the scope of the agency relationship, then only the agent is liable. |
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Term
| Agency-Tort Liability Employee |
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Definition
Lower paid, unskilled workers supervised by the employer in performing tasks central to the business
•Employer controls details of work, provides supplies, and pays employee based on time/full-time/salary.
•Must pay Medicare and SS taxes, workers’ compensation insurance, unemployment compensation and possibly job benefits |
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Term
| Agency-Tort Liability Independent Contractor |
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Definition
Retain control and autonomy in performing specialized and sporadic tasks for a business
•Maintains own business, provides own materials, is paid by the job, has other clients.
•Typically have an independent contractor agreement
•Do not have to pay tax or workers’ comp., unemployment or benefits |
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Term
Agency-Tory Liability
•Negligence and Strict Liability |
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Definition
–Respondiat Superior--”let the superior answer”
–Vicarious liability--irrelevant whether or not the employer was negligent
–Was the tort committed within the scope of employment?
–Frolic vs. Detour
•Frolic=Employer not liable--a marked and unusual deviation from employment duties
•Detour=Employer and employee liable--a slight deviation from employment duties
–Dual purpose missions considered a detour |
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Term
Agency-Tort Liability
Intentional Torts |
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Definition
Was the tort committed within the scope of employment?
–Tests:
•Motive--majority of states including IL--if promoting business motive, employer liable
•Work-related--minority test--if tort occurred on employer’s premises or during work hours, employer liable--much broader liability for employer
–If employer is negligent in preventing or correcting intentional torts from occurring, then company can be liable for negligence. Ex. Racial/Sexual Harassment |
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Term
| Sole Proprietorship- Ownership |
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Definition
| one person-sole proprietor |
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Term
| Sole Proprietorship-Formation |
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Definition
–Automatic when one person invests in or operates a business on his own and no other entity has been formed/filed
–If doing business under a name that does not identify the sole proprietor, then file assumed business name with the County Clerk for nominal fee and put notice in paper
–Purchase business equipment or take out personal loan and hire employees to help run the business |
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Term
| Sole Proprietorship-Tort and Contract Liability |
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Definition
–Sole unlimited liability
–Personal assets, even if unrelated, at risk
–Even if terminate business, still personally liable
–Also liable for the torts and contracts of agents/employees |
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Term
| Sole Proprietorship-Management |
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Definition
–Sole proprietor makes all decisions and takes all profits and losses (bears the sole risk of loss)
Reports on personal tax return |
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Term
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Definition
–Lazy man’s business organization--automatic formation
–Cheap formation--no filing fees or documents to prepare (Exception: nominal fee if Assumed Business Name) |
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Term
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Definition
–Access to funds limited to personal money and loans
–Unlimited Personal Liability--personal assets on the line
•Need to evaluate the risk and have a good insurance policy if use this form of business organization but typically not recommended |
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Term
| General Partnership-Ownership |
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Definition
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Term
| Gerneral Partnership-Formation |
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Definition
–Automatic when two or more persons are carrying on a business as co-owners (sharing profits and/or management duties)
–File assumed business name with County Clerk and publish notice in newspaper if not using one or more of partner’s names
–Oldest form of business organization for co-owners |
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Term
| General Partnership-Tort and Contract Liability |
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Definition
–Partner=Unlimited personal liability--personal assets at risk
–Joint and Several--can sue one or all of partners for whole amount of damages for torts and contracts
•Each partner can bind others to contracts even if others are unaware of it if within the course of business
•Each partner is held liable for the torts of the others partners and employees committed within the course of business |
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Term
| General Partnership-Management |
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Definition
–Partners collectively decide how to run partnership
–Unanimous consent of all partners to transfer interest
–Partnership agreement suggested--written agreement on duties, profit/loss sharing, employee policies, etc.
–Uniform Partnership Act--default agreement if none established or if gaps in agreement--assumes 50/50 split |
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Term
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Definition
–Easy to form--Automatic
–Cheap formation--file name and draft agreement
–Predictable--oldest form of organization
More people than sole proprietorship to contribute funds |
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Term
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Definition
–Unlimited Personal Liability for Partners including the acts of other partners
–Unanimous consent to transfer
–No continuity of life--if partner dies or withdraws, then no partnership exists and must start over if want to continue |
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Term
| Limited Partnership-Ownership |
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Definition
–One or more general partner(s) and one or more limited partner(s)
–General partners=active investors
–Limited partners=passive investors
–Either type of partner can be a corporation, partnership (general or limited), an LLC, or an individual |
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Term
| Limited Partnership-Formation |
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Definition
–Formal--must file, w/ fee, Certificate of Limited Partnership with the Sec. of State and record with county
–Must identify names of at least one GP and one LP
–Name must include L.P.
–Must maintain registered office and agent
–Need certificate to transact business in foreign states |
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Term
| Limited Partnership-Tort and Contract Liability |
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Definition
–General Partners=joint and several--same responsibility as in General Partnership
–Limited Partners=no personal liability, only amount invested at stake unless:
•Defective formation thus general partnership exists
•Limited partner participates in management
•Limited partner makes personal guarantee |
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Term
| Limited Partnership-Management |
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Definition
–General Partners manage--only ones who can bind LP
–Limited Partnership agreement suggested but the Revised Uniform Limited Partnership Act(RULPA) creates default agreement and fills gaps
–If death/dissolution or withdrawal of partner, LP doesn’t end unless there are no longer any general partners |
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Term
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Definition
–May want to use when one entity wants to run business or has expertise and the other wants to invest money but remain uninvolved/have limited liability (but can get the same goals accomplished using an LLC or a corporation)
–Some investors have limited liability--not all personally liable like with SP or GP
–Does not end when death or withdrawal unlike a GP |
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Term
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Definition
–General Partners still personally liable
•Unless the general partner(s) is a LLC or Corp.
–Risk of limited partner liability
–More formalities than SP or GP (not automatic) |
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Term
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Definition
–One or more shareholders
•C corp. shareholders--can be other corporations, LLC’s, GP’s, LP’s etc. and can be as numerous as desired/necessary
•S corp. shareholders--only up to 75 individuals
•Closely Held corp.--can make shareholder restrictions or approval process up front--restraints on transferability |
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Term
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Definition
–Formal--File, with fee, articles of incorporation with Sec. of State and record in county; registered office/agent; cert. to transact business in foreign states.
–Name must contain Inc., Corp., Corporation or Company
–Adopt by-laws--statutory defaults fill gaps
–Conduct shareholder/director/officer meetings with minutes |
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Term
| Corporation-Tort and Contract Liability |
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Definition
–No personal liability
–Limited Liability--only amount invested at risk
–Exception: Piercing the Corporate Veil:
•Undercapitalization, shareholders mixing corporate funds with personal funds, Not following corporation procedure as prescribed by statute |
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Term
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Definition
–Centralized management--shareholders (investors) elect directors (policy makers), who appoint officers (President, Vice President, Secretary, Treasurer, CEO, CFO etc.) to manage the day to day activities of the corporation |
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Term
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Definition
–No personal liability--everyone has limited liability (Narrow exception: piercing corp. veil)
–Easy to transfer (If want restrictions, then can form closely held corporation)
–Continuity of life
–Predictable--many default rules (pro or con?)
–Centralized Management (pro or con?) |
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Term
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Definition
–Double Taxation--corporations taxed at the corporate level and then on personal level as income tax for shareholders (can avoid corp. tax if S corp.)
–Less flexible than LLC due to statutory guidelines |
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Term
| Limited Liability Company-Ownership |
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Definition
–One or more members (investors)
–Can be individuals or other business entities |
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Term
| Limited Liability Company-Formation |
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Definition
–Formal--File, with fee, articles of organization with the Sec. of State and record in county; registered office/agent; certification to transact business in foreign states
–Draft Operating Agreement--no statutory default like other business organizations
•Pro--very flexible because no rules on procedure--freedom of contract idea (Ex. Profit distribution)
•Con--Not many statutory gap fillers if do not draft well |
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Term
| Limited Liability Company-Tort and Contract Liability |
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Definition
–No personal liability
–Limited liability=Only amount invested at risk
–Piercing the LLC veil very difficult
•Few statutory requirements--Do not have to comply with as many formalities as a corporation, thus it is even more difficult to pierce the LLC veil than it is a Corp. veil |
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Term
| Limited Liabilty Company-Management |
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Definition
–Member managed presumed but can centralize management with manager managed
•Can run like a partnership (member) or like a corporation or limited partnership (manager)
•Unlimited possibilities for defining management in operating agreement since LLC rules are so flexible |
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Term
| Limited Liablitily Company-Pros |
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Definition
–No personal liability--everyone has limited liability (very narrow exception: pierce veil)
–Flexible for management, profit/loss sharing, transfer
–No double taxation like corporation
–Can have many investors, including LLC, GP, Corp., LP, etc. or can have only one member |
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Term
| Limited Liabilty Company-Cons |
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Definition
–Up-front cost and organization
–Predictability--no default rules plus new to IL in 1994
–Transferability--depending on operating agreement |
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Term
| International Law-General Principles |
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Definition
–Sovereignty
–Act of State
–Sovereign Immunity
–National Court system
•Private commercial dispute resolution
–Forum Selection clause--go to country selected
–No forum selection clause--jurisdiction problem |
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Term
| International Law-Treaties |
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Definition
(Federal Power--President with 2/3 vote of Senate)
–Extradition
–Trade agreements
•EX. NAFTA |
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Term
| International Law-Conventiona/International Organizations |
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Definition
World Trade Organization (WTO)
•Multilateral treaty for trade--agreements to reduce trade barriers among the 153 member nations
•Provides judicial system to resolve disputes concerning GATT treaty--enforce with trade sanctions
–Many Other Trade Organizations (EU, OPEC, ASEAN)
–United Nations (UN)
•Peacekeeping/social justice treaties--over 190 members
•General Assembly, Security Council, Secretariat (headed by the Secretary General), International Court of Justice
•Enforce with persuasion (political/military), trade sanctions, or ejection from the U.N. (Ex. Oil for Food Sanction)
–North Atlantic Treaty Organization (NATO)
–Interpol--International Police Organization |
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