Business Law Questions, Coursework Example

Question 1 Page 209

Funds for Animals challenge of the November 2012 NPS rescheduling of the phase out of snowmobiles by one year , citing the postponement as arbitrary and capricious Evaluate the actions taken under the arbitrary and capricious standard , noting other procedural issues in the process.

The arbitrary and capricious test in the case Edwin A. Pell v. Board of Education of Union Free School District, relates basically as to whether a particular action should be taken or is justified and whether the administrative action is lacking foundation in fact, according to Court State New York (1989).

In the case Marsh v. Oregon 2490 US 360, 376 (1989) it was ruled that the arbitrary and capricious standard was appropriate for resolutions of fact finding disputes that implicates substantial agency experts, but that agency , according to Latino Issues Forum 558 F3d at 941 and Friends of Yosemite Valley 52F 3d at 1032 , must articulate a rational connection between the facts and the conclusions made (US Courts.Gov. (2012).

In the case under consideration, the cessation of the use of the snowmobiles at both the Yellowstone and Grand Teton National Parks, the National Park Services had time to study the issue of bison’s being killed to prevent the spread of brucellosis to livestock outside the parks, and to develop evidence to make a ruling while gathering approximately 4300 favorable public comments supporting the closure.

The agency was therefore wrong to cancel the phase out rule as it there was no way it could possible articulate a connection between the facts that were found and the conclusions it arrived at.

Funds for Animals was right in challenging the ruling under arbitrary and capricious standard, which base on precedence should bring about a ruling in its favor

Question 2 Page 240

Response to the argument that direct connection between the elimination of US firms and the increase in Chinese forms are evidence that the FCPA are putting US firms and US economies at distinct disadvantage to those countries that do not take enforcement actions against bribery.

The argument could not be more accurate, in that prior to this development, according to Vardi (2010), for years the FCPA hardly enforced it statutes which prohibits the bribery of foreign officials, but with the collapse of Enron in 2001and the passage of the Sarbanes-Oxley Act in 2002, things changed dramatically, as public companies were no being forced to pump out material disclosures such as potential payment of bribes to foreign officials in countries they are operating in.

According to Vardi (2010), these Justice Department prosecutors are fighting for justice and truth at home, but are also holding US companies to a different standard than the Chinese and other business corporations in other countries, and these acts are curtailing business success of US companies and the general economy.

One of the reasons for the FCPA statutes however, is cited by Business Interrupted (2010), states that when it is determined as illegal for Americans to use money to or other items of value to influence foreign officials regarding the allocation of their resources, it helps to ensure that as much as possible , the those resources are allocated by legal authorities that are advantageously positioned to influence their countries growth and development, rather than the American companies influencing those countries.

Mendelson, a former FCPA head from 2004 to 2008 defended the statutes of the FCPA in terms of the anti-bribery aspects, when he noted that corruption has corrosive effects on the rule of law around the world, in that it undermines economic development and potentially harms the interests of the US (Vardi, 2010).

It could therefore be argued that bribery statutes serve to protect the US economies as well as those of other countries, but there is a drawback when other countries do not adopt the statutes similar to the USA. Currently, although 38 of the biggest exporters had agree to make foreign bribery illegal, Transparency International, reports that only the USA, Germany, Norway, and Sweden are compliant, while India, China and Russia have consistently failed to charged their corporations for engaging in acts of briberies (Vardi, 2010).

In effect the FCPA are only ensuring US companies comply with its anti-bribery laws but other companies elsewhere are exploiting the world market and undermining the success and growth of the US economy.

Question 3 Page 281

The Boreland International Inc. AND Symantec Case

Under Section 33.02 subsection 4.c of the Computer Security Act, when benefits are obtained , a victim is defrauded or harmed, or property is altered or deleted in violation of this section , whether or not in a single incident, the conduct may be considered an offense, and the value of the benefits obtained and of the losses incurred, because of the fraud, harm or alteration, damage or deletion of property may be aggregated to determine the grade of the offense (Texas Legislative Statute, 2011).

In light of the above law, there is no doubt that Messrs Wang and Eubanks had committed a computer crime against Boreland International Incorporated.

Boreland would have been harmed had not Mr. Wang and Lyn Georganes been caught ,in that the information have been used to pursue marketing and other activities that would generate considerable amount of revenue as well as increase market share that may last for several months.

Mr. Wang and Miss Georganes were both unethical in their actions against their employee, in that they still owed the company a level of loyalty and trust, but they breached them while being employed, and could have inflicted considerable damage to its financial success.

Companies can always hire executive away from their competitors but in the legal manner where the theft of vital documents are not a part of the package. Mr. Wang may also have had information in his head, but on proceeding to photocopy documents without permission, he had openly committed a crime against a company he still owed some form of allegiance. Mr. Eubanks should have taken his chance with what Mr. Wang had in his head and work with that to develop a similar strategy.

The Symantec executive was also taking a chance in employing Mr. Wang, in that he could be treated in the same manner by a dishonest and greedy employee who may identify more rewarding opportunities elsewhere and pursue them to the detriment of his new employer.

Question 4 page 319

In Winters v. Santa Monica YMCA 2005 WL1713936, the facts of the case are as follows;

• Lisa Winters signed up to take Latino dance classes at Santa Monica YMCA building, but on the day in question she arrived at the facility and found that the expert teacher was not available and she proceed to work with the Jazz substitute.
• Miss Winters attempted a maneuver during the course of the lesson , fell to the ground and injured herself
• The floor was made of wood and she wore no protective footwear.

The Plaintiff actions

Miss Winters filed a suit against YMCA for the injuries sustained.

Possible arguments

In arguing the case the prosecution for the plaintiff could infer that the defendant knew that the floor was not suitable for dancing activities but made no efforts to remedy the situation and was therefore guilty of negligence.

The team could use the case Alphacell v. Woodward (1972) as a reference. In this case the defendant was company that caused polluted matter to enter in to a river due to faulty equipment that became clogged (Pearsoned Co.UK , 2009).

YMCA in this case knew that the floor was faulty and could cause harm to dancers like Miss Winters, but made no efforts to correct the problem

The House of Lords , according to Pearsoned Co.UK,(2009), argued that where statutes create an offence of causing something to happen, the courts should adopt a common sense approach- if reasonable people would say that the defendants caused something to happen, regardless of whether he or she knew he or she was doing so, then no mens rea is required.

It could be argued that Santa Monica YMCA caused the injury to happen to Miss Winters regardless of whether the entity knew it was doing so, and as such was culpable. The Defense Argument

The defense could cite assumption of risk by arguing that Miss Winters saw the floor condition as well as the lack of a proper instructor and still choose to dance . Base on Encyclopedia Britannica (2012) which defines assumption of risk as the risk of loss in entering a given venture and understanding the risk, could then be used to show that Miss Winters entered the building and saw and understood the risk she was taking, hence the company was not liable for any injuries she sustained

Additionally, the defense could infer that under assumption of risk the defendant is relieved of an obligation of due care towards the plaintiff, once she voluntarily exposes herself to the risk (Encyclopedia Britannica, 2012).

In the case Snoke v. Anderson No.3 03715 Civil Term (CP Cumb. Co. Feb.10 2012 Masaland. J) the defense could argue that the plaintiff was riding a bike down a grassy area when he claim his bike struck an unidentified object that caused him to suffer personal injuries (Tort Talk, 2012). The plaintiff returned to the scene two months later, found a pipe three inches in diameter, and concluded that it had caused him to suffer the injuries.

However, the defendant in the case testified that he had been riding his bike in the same area for 30 years and had not experience any problems. The jury in the case found the plaintiff assumed risk of injury and return a verdict of not guilty for the defense after thirty minutes of deliberations (Tort Talk, 2012).

In the same manner the defense could conclude that Miss Winters assumed risk on entering the Santa Monica YMCA, and the company is not liable.

Held

The defense argument of assumption of risk will not fly with the judge as the floor offered no protection for Miss Winters, and the defendant was aware and did nothing to prevent any injuries. YMCA therefore caused the accident knowingly or unknowingly, as in the case of Alphacell v. Woodward (1972).

Further, in the case Native v. Cedar Flair LP, (20110 according to Horvitz and Levy (2011), the Court of Appeal , SI Appellate District, held that the primary risk of assumption applies only to active sports, and the amusement park owner was found liable. The case is similar to Santa Monica YMCA and the ruling should be same. Judgment is handed on behalf the plaintiff, and the defendant is liable.

Question 5 page 332

In the case Jones v. GMRI (2001) , the facts are as follows;

• Miss Jones bit into a meatball at an Olive Garden restaurant owned by GMRI IN 1994 , and broke one of her tooth as a result of metal objects
• She later filed a suit against GMRI and Rich Products Corporation , the supplier of the meatballs, asserting claims of negligence, breach of implied warranty and loss of consortium
• GMNRI in defense against the implied warranty argued that it did not have reasonable opportunity to inspect the meat balls, base on the visual inspection quality control it had adopted.

GMRI is liable to Miss Jones, because in the process of selling her meatballs had implied that they were fit for the purpose intended base on its skills and knowledge of the product, and Miss Jones accepted their judgment in making the decision to accept the meal.

In the case Smedleys Ltd v. Breed (1974), four tins of peas out of three and a half million produced by the defendant were found with caterpillars, and the defendant was convicted of selling food not of the substance demanded by the purchaser and contrary to S2 (1)of the Food and Drug Act of 1955 (Law Teacher, 2012).

Hence GMRI should be found liable for selling meatballs with metals under the same Law ,which has since been replaced.

Question 6 page 354

Simeon v.DOE, 618 So 2^nd 848 (La 1993).

According to Justisa.com (2012), breach of implied warranty of merchantability becomes operable when a plaintiff lay claims that the consumer goods supplied did not have the quality that a buyer would reasonable expect.

However, the plaintiff must be able to prove that the goods was bought from the defendant, and the defendant at the time was in the business of selling the same goods to retailers , as well as the goods was not of the same quality as others or was not fit for the purpose or measure up to the promise stated on the label.

The facts of the case showed that Messrs Floyd and Edward Simeon went to Sweet Pepper Grill , who was in the business of selling raw oysters and order a half pound of the product, which was found on analysis by experts to contain vibrio vulnificus bacteria, which later caused the death of Floyd Simeon.

The death of Mr. Floyd Simeon was evidence that the oysters were different from the others being retailed and was not fit for the purpose intended. Base on these proven facts and the conditionality associated with the breach of implied warrant of merchantability, Mrs. Simeon can successfully sue Sweet Pepper Grill under the same clause.

Question 7 page 364

Inland Steel Co. v. EPA 574 F2d. 367 (7^th Circ. 1978)

In this case the restriction placed by the EPA was valid due to the Federal Water Pollution Act amendment of 1972, which calls for the establishment of inter-state water quality standards , as well as reviews and revisions of existing inter-state standards (EPA, 2012).

Inland Steel company therefore does not have a choice because the EPA is empowered under the Act to make any change or modification it sees as necessary to the quality of water in each state does not fall below the acceptable standard.

Question 8 page 403

One of the elements of a contract is an offer, which is a promise by its terms and conditions, conditional upon an act of forbearance, or the return promise being given in exchange for the or its performance, according to West’s Encyclopedia of American Law (2005). It is also a demonstration of a willingness to enter into a bargain, so that another party is justified in understanding that his or her assent is invited to bring about a conclusion (West’s Encyclopedia of American Law, 2005).

In the proposed transaction document between Bart Ripley and Yachts International, Ripley clearly stated that he was prepared to make an offer for the vessel Infinity for a price of $600,00 , subject to certain conditions , which he subsequently outlined for the Yachts International to understand and respond either accepting or making a counter offer. In essence therefore an offer was made.

Question 9 page 415

The contractual agreement between Alan Fulkin and Tretorn Plumbing owned by Jason Tretorn was facing a bribery challenge by the latter party, when he brought forward another contract in which an additional $600 was being demanded for each housing unit.

Mr. Fulkin should reject the dictates of the new contract, as it would invalidate the original contract, which Tretorn by law was obligated to fulfill.

Tretorn does not have the right to request an additional $600, as he has already completed phase I of the project and was paid accordingly. The cost increase that he was facing was no concern of Mr.Fulkin, and his behavior was quite unethical, even criminal, as he was forcing the other party to enter into new contract using duress.

The owner of Fulkin Corporation should be advised that under mutuality of obligation Tretorn Plumbing Company is required to complete the project, and should the company fail to do so, it should be sue to the tune of $600 per unit, in addition to loss of time, loss of services, and the amount of legal fees incurred.

Question 10 page 449

Pogas Welding Supply had a legally enforceable contract with Fingerlakes Aquaculture LLC to deliver the 13,000 gallon oxygen storage tank specifically by the end of the third week in June 1999 or pay a fine of $400 per day for liquidated damages.

Fingerlakes definitely had the right to sue Pogas Welding for unsatisfactory performance and impose the fine that was in the contract. It also had to recover cost, after purchasing a similar tank elsewhere.

Had Pogas Welding timely sought to have a discharge of contract and a new contract on the 13,000 gallon oxygen tank, on the basis that it could not fulfill the two contracts at the same time, it might have been spared the suit brought by Fingerlakes Aquaculture, but it sought bring argument that it was supplying the smaller tanks and its customer had not legal claim.

Question 11 page 479

Cushman v. Trans Union Corporation (1997).

The failure of Miss Cushman to file a fraud alert from the moment she discovered that her identity had been stolen, jeopardizes her chance of being successful with her lawsuit against TUC. Had she done so she would have caused TUC retrace their steps and take all the corrective actions that were need especially the confirmation of the handwriting which was crucial to the outcome of the investigation.

TUC did not violate the law as it could argue that it tried unsuccessfully to contact Citibank and since no fraud alert was filed, it seems likely that the Miss Cushman had authorized the application for the credit cards, and should bear the responsibility.

Question 12 page 497

In the case Proctor & Gamble Co. v., Nabisco Brands Inc 604 F Supplement 1485 DC Del. 1985, the defendants erred in their argument, because the plaintiff patent covered a method of manufacturing ready to serve cookies and not the baking of cookies in general. The process of Proctor& Gamble should therefore be protected, as according to the Patent and Trademark office, food recipe falls under the Patent Class 426, which defines it as food or edible material intended for consumption by humans or lower animals in whole or in part via oral activity (Inventorprise Inc., 2012).

The plaintiff patent is also protected by both the composition of the ready to serve cookies as well as the process by which it was manufactured according to Inventorprise Inc. 2012), so the defendants will lose in a court of law based on the position they had taken on the issue.

Question 13 page 538

The exclusive clause obtained by Starbucks did not violate any anti-trust laws as evidenced by the precedent seen in the cases Elida Inc. v. Harmor Realty Corporation, 177 Conn.218 413 A 2d 1226 (1997), and Genovese Drug Store, Inc. V. Connecticut Packaging Company Inc. 732 F2d 286 (1984), where the Supreme Court ruled in both cases in favor of the lessees, because they had restricted covenants under the leases they obtained (Kaminski, 2004).

Question 14 page 587

The case of Rodebush v. Oklahoma Nursing Homes Ltd 867 R2d 1241 OK (1993), showed that the defendant had the responsibility to conduct a background check on its prospective employees as well as provide them with the appropriate training once they are employed. However, Oklahoma Nursing Homes did not comply in this case and is liable before the law for the assaults suffered by Mr. Rodebush.

The case of the company will be made worse by the fact that the prosecution will be able to use the violations cited by the State Department of Human Services against it during the deliberations, and this will go a long way in ensuring Mrs. Rodebush recover cost for what was done to her husband.

Question 15 page 637

Under the FLSA Act , employers according to the Us Department of Labor (2012), are not required to give breaks and lunch, and if workers volunteer to work off the clock and erase time from the clock without invoking their legal rights , then the Wal-Mart supervisors are not guilty of any violations, even though they are exploiting the labor of the workers concerned.

Question 17 page 671

In the case of Taggart v. Time Inc. 924 F2d 43 2^nd Circuit (1991), there was no doubt that Mr. Taggart was discriminated against due to his advance age. The company ignored his almost 7 months on the job as a print production manager and his 30 years experience elsewhere, and chose the issues surrounding his performance at the interview to discredit him. It was also ironic that Mr. Taggart did not have those interview problems when he was being hired for the job seven months earlier.

Finally, the fact that Time Inc. employed younger and less experience persons for the same job should be undisputable evidence in a court of law that it had discriminated against Mr. Taggart, because with his 30 years of experience, he would have been able to contribute more to the overall productivity of the company than several of the younger employees combined.

Reference

Business Interrupted (2010). What is the reason for the FCPA? Retrieved from: http://www.businessinterrupted.com/?p=124, on 06/28/12

Court State of New York (1974). Case: Edwin A. Peel Jr. v. Board of Education of Union Free School District No.1 of Towns of Scarsdale & Mamaroneck, Westchester County http://www.courts.state.ny.us/reporter/archives/pell_bd_educ.htm

Encyclopedia Britannica (2012). Assumption of Risk Retrieved from: http://www.britannica.com/EBchecked/topic/39532/assumption-of-risk on 06/29/12

Environmental Protection Agency (2012). EPA Releases Guidelines for New Water Quality Standards Retrieved from: http://www.epa.gov/aboutepa/history/topics/fwpca/02.html on 06/29/12

Inventorprise Incorporated (2012). Can I patent a food recipe? Retrieved from: http://store.inventorprise.com/content_articles.php?id=1049 on 06/30/12

Justia.com (2012). 3210. Breach of Implied Warranty of Merchantability – Essential

Factual Elements California Civil Jury Instructions (CACI) Retrieved from: http://www.justia.com/trialslitigation/docs/caci/3200/3210.html, on 06/29/12

Horvitz and Levy (2011). Nalwa v. Cedar Fair, L.P. (Aug. 31, 2011, S195031) Primary assumption of risk doctrine at issue in new Supreme Court case Retrieved from: http://horvitzlevy.com/news/eBulletin.cfm?id=617 on 06/29/12

Kaminski, J. L., (2004). Restrictive Covenants in Shopping Center Lease OLS Research Report Retrieved from: http://www.cga.ct.gov/2004/rpt/2004-R-0516.htm on 06/30/12

Law Teacher (2012). Cases on Strict Liability: Smedley Ltd v. Breed (1974) AC839 Retrieved from; http://www.lawteacher.net/criminal-law/cases/strict-liability-cases.php on 06/29/12

Pearsoned Company UK. (2009). Alphacell v Woodward (1972) Retrieved from: http://catalogue.pearsoned.co.uk/assets/hip/gb/uploads/M02_ELLI0676_09_SE_C02.pdf on 06/29/12

Texas Legislative Statutes (US) (2011). Chapter 33 Title 7 – Compute Crimes (Offense against Property) Retrieved from: http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.33.htm on 06/28/12

Tort Talk (2012). Assumption of Risk Defense Remains Valid in Pennsylvania http://www.torttalk.com/2012/04/assumption-of-risk-defense-remains.html

US Courts.Gov (2012) Review of Agency Decisions-Arbitrary and Capricious Retrieved from: http://www.ca9.uscourts.gov/datastore/uploads/guides/stand_of_review/IV_Review_AD.html#_Toc199132037 on 06/28/12

United States Department of Labor (2012). Wage and Hour Division Retrieved from : http://www.dol.gov/whd/flsa/ on 06/3012

Vardi, N. (2010). The Bribery Racket Forbes Asia Magazine Retrieved from: http://www.forbes.com/global/2010/0607/companies-payoffs-washington-extortion-mendelsohn-bribery-racket_4.html, on 06/28/12

West’s Encyclopedia of American Law (2005) Contracts 2^nd edition Volume 3 Thompson- Gale Detroit MI pp.169