Case Review

Problem 12-1

- Driving under the influence of prescription drugs, doctor advised her not to do so

Plaintiff Standpoint:

Could the plaintiff prove that the drive breached the duty of acting as a reasonable person would,

causing harm to the plaintiff and it was reasonably foreseeable.

Defense Standpoint:

- Affirmative Defense: Contributory negligence affirmative defense, if the other person was at all

at fault, there would be no negligence. (Assumption of risk, not good argument for victory)

o Contributory has switched to comparative negligence of fault approach, where by a

plaintiff might also be negligent but they cans still when however there damages award

are less.

Problem 12-2

o A bakery has chosen to business with a supplier, until it decides that it would be better to do business with another company.

o Breach of Contract The competitor could sue the bakery and recover damages by the breach. Here, under tort law, there is the possibility for the competitor to sue the firm that

was engaged in this market activity. o You should go after the competitor who was aggressively marketing to your former

customer. This is for the reason that if you sue the former customer, you may never get their business back.

o Wrongful Intentional Interference with Contracts When competing with customers, we cannot go as far as acting in an intentional way

to induce a party to breach their current contract. When intentional attempts, such as a kickback are included to entice breaching of a

contract, it would fall under this law.

Problem 13-1

Product Liability: Woman buys a TV but is going on vacation so she takes it to her mother’s house. Her

mother is using the set and it explodes, causing the mother harm. Which theories could Chen’s mother

recover damages under? This would be a case of strict product liability. In these cases, it affects all those

who come in contact with that product. In this case, the product was defective and caused physical

harm to a user. It does not have to be the purchaser of the TV either. This case meets all the

requirements of strict product liability. (Page 296)

Problem 13-5

Baxter sold a hair dryer that they knew was defective but argues that because the user did not purchase

the product, they are not liable. This is not how product liability law works though. This law applies to

most all that come into contact with the hair dryer. This again meets all the requirements of strict

product liability.

Problem 13-6

This suit has to do with a woman who switched the type of cigarette she smoked to one that had higher

tar levels and a worse filter. After getting cancer, the husband then sues stating that this product was

defective. A jury found that the Pall Mall cigarettes were in a defective condition due to faulty design;

the faulty design resulted in excessively high levels of carcinogens being introduced into Mrs. Boerners

lungs; the defective condition yielded the Paul Mall cigarettes unreasonably dangerous; and the

defective condition proximately caused Mrs. Boerners illness and death. Henry was awarded $4,025,000

in compensatory damages and $15 million in punitive damages. Brown & Williamson appealed these

findings and this award to the U.S. Court of Appeals for the Eighth Circuit, which affirmed the lower

court’s decision on the design defect claim. The appellate court pointed out that to succeed on this

claim, a plaintiff must establish that the product was in a defective condition, that the defective

condition rendered the product unreasonably dangerous, and that the defect proximately caused the

complained-of injury. A product is unreasonably dangerous when it is dangerous to an extent beyond

that which would be contemplated by the ordinary and reasonable buyer, consumer, or user. The court

noted that generally cigarettes contain carcinogens; carcinogens are the causal link between smoking

and cancer. In this case, the court emphasized the levels of tar in Pall Malls, the evidence related to

filters, and the doctors conclusion with regard to Mary Janes illness and death.

Problem 25-1

The EPA should not totally eliminate all emissions of cancer causing chemicals. The EPA does not have

the power to do this under the statute. They are not able to interpret and make laws but instead must

just carry them out. The only thing this statute says is to follow a margin of safety. Nothing is said about

total elimination of these chemicals. The statute would have to say that exact line for the EPA to enforce

it.

The agency goes about developing the specific legal rules for implementing the general legal standard

that the government has assigned. The agency then hold forums to hear peoples views.

Set the rules at zero risk for letting people get cancer, one molecule could have a person get cancer.

Setting the legal level to that point could shut down an entire industries. Needs to be a balance on both

sides.

- Given this problem should the agency set the legal rules to regulate these substances to protect

humans to the maximum extent (zero risk) or set the rules that they provide protection only to

the point where the economic costs are deemed reasonable

o Generally speaking in environmental regulation when you can get a whole lot of

improvement for a certain amount of money but to get the additional 20% it requires a

substantial amount more

All this debate is irrelevant the agency can only do what it is authorized to do.

Hazardous Wastes

If you are going to produce, transport, or use it you have to have a permit. The theory begin this creates

the paper trail for later determining who has financial responsibility if needed.

“Superfund”

- Fees taken from the business, increase the prices of the substances so that the price will take

into account the full price for society and lessen demand.

- The fees are used to fund government efforts to remediate hazardous waste sites

- If a private party does the remediation then they are allowed to sue other parties to recover a

share from the cost for the clean-up of a particular site. In contrast if there is not private party

they go in and use the superfund and the government goes after the people responsible to

recoup the fund

This a strict liability law, what does that mean?

- We are dealing with hazardous materials that damaged property. What does this also tell us

about when are you going to be held liable.

o No intent, no negligence, nonetheless you can be held liable

Next, no proof of individual causation against any of the potential parties, no

causation between the parties.

If its stuff you made, used, etc and it was at the site then you are one of

the liable parties on a strict liability basis. Your stuff could have been

there but never caused any contamination and you are still liable.

- Once you know the successor to just some of the assets that may not have contaminated it, no

causation and they can be liable for the entire amount

o Defenses:

Act of God

Act of War

Act of Third Party, if

No contractual relationship and Due Diligence

Problem 25-3

- The defendant had to set in motion something tangible that in-feeds on the land

- If someone is there first, does that protect them? And the answer is no. You could have

commercial development that has gone on for decades and the area near its usage changes and

then the commercial development could be intruding on the property owners user of the

property, i.e. Private nuisance

The common law theory Moonbay would file would be nuisance, more specifically, private nuisance.

This is not an actual physical intrusion by the company and therefore would be classified as nuisance. It

does not seem as if the company has broken any federal laws for the fact that they are not producing

anything toxic or that may hurt the environment. Unless it is proven they have done so, this is only a

nuisance case.

Problem 25-5

In this case, B.F. Goodrich would be found guilty. That is because under CERCLA, the following are can be

found responsible: the person who generated the wastes disposed, those who transported the wastes,

the person who owned or operated the site at the time of disposal, or the current owner or operator.

Any person following within one of these categories is referred to as a potentially responsible party.

Therefore, B.F. Good rich still had liability and could be forced to pay for some of the remediation.

Ecuador Case

Procedural Law

Plaintiffs in the class action, represented by US attorneys and lawsuits financed tried to sue Texaco in

the U.S, eventually that gets thrown out, non-comedies principle. Refilled in Ecuador in small court,

Chevron as a successor to Texaco later pulled in.

Plaintiffs proof of what the real dollar value was and there is all kinds of concerns about the trial itself

and whether the evidence was fabricated. Ecuador holds jurisdiction over them and says you are liable

for $9 billion dollars if you apologies and $18 billion dollars if you don’t. Chevron didn’t apologies and it

doubled to $18 B with interest between 9&12%. Chevron has no assets in Ecuador.

U.S said it will likely not enforce the suit, but Ecuador can go elsewhere.

- Ecuador Jurisdiction

- Ecuador’s Laws apply

- Prior Texaco settlement contract with the government

Anybody notice chevrons more recent marketing campaign, BSR strong partners in the communities

they do business.

- On the one hand they are marketing consumer/community friendliness on the other being

criticized by environmental groups around the world

Problem 14-3

. E-Product’s use of the meta tag does constitute trademark infringement. The term “sync” is definitely a

trademark. E-Product uses “another’s trademark in a meta tag without the owner’s permission”. E-

product’s use of the tag is not reasonably necessary and may suggest that the owner authorized or

sponsored the use. Courts have also deemed that if you are trying to be deceptive you are guilty, as in

this case, they try to put the meta tag to blend in with the background.

Problem 14-4

This case should be ruled in favor of the ranchers, as their patent is for something that is novel, not

simply normal, useful to someone, and not an obvious design. Walmart lost in the end.

Problem 14-5

A trade secret is information that makes a company unique and has value to its competitor. The

federal district court in which this suit was brought asked the Wyoming Supreme Court (the

defendants were based in Wyoming) for the elements of that state’s common law cause of action for

trade secret appropriation. The state supreme court explained that on the one hand, “[t]rade

secrets are protected to encourage the development of new inventions, processes, and business

techniques, to protect against breaches of faith and the use of improper methods to obtain

information, and to maintain standards of loyalty and trust in the business community.” On the

other hand, “there is a strong policy favoring free competition, thus entitling an employee to use the

skill and knowledge of his trade or profession which he has learned in the course of his

employment, for the benefit of himself and the public, if he does not violate a contractual or

fiduciary obligation in doing so.” Under the Restatement of Torts, Section 757, a party who discloses

or uses another’s trade secret, without authorization, is liable if “(a) he discovered the secret by

improper means, or (b) his disclosure or use constitutes a breach of” a duty owed to the other

party. In this case, Briefing.com’s contact information and other confidential business data would

qualify as trade secrets, which the defendants used legitimately during their employment. Their use

of this information to form a competitor, however, would breach “a contractual or fiduciary

obligation” owed to their former employer. In that situation, they could be subject to an injunction

or liable for damages in the amount of the loss to Breifing.com or the gain to StreetAccount

resulting from the appropriation.

Problem 14-9

Making copies and selling copyrighted material. Courts took into consideration how much material is being used, the quantity of the

work used, the importance of the part used, and likely impact on the economic value of the work in question.

FAIR USE IS NOT AN ABSOLUTE This guy is guilty.

Bilski Case

This case had to deal with a program that was trying to be patented that dealt with hedging risk for

commodities. Though Bilski was still denied their patent on a process, it was deemed that the “machine

or transformation test” is only one tool for determining whether some claimed inventions are processes.

The argument against Bilski is that their method was more of an abstract idea. This opened the ability of

software companies to gain patents.

A hedging process for a risk associated in business

- Court is reigning in to general cases, sets up tougher criteria for managerial business process

patients

Why is this a problem?

- The more property rights you grant in law to an owner it is inherently anti-competitive

- If we get to general in granting patient, that’s going to work to the determinant and the prices

will be to high on too many products

Grape Solar (Centron Solar)

Centron Solar Case Must decide on a company name.

Chose the name Centron Solar as trade name which they would then use as a trademark for their products.

Receive a letter from Centro Solar, a subsidiary of a German company, that they must cease and desist using the name Centron Solar.

Management chooses to change the name to Grape Solar. Proof Element

Could they prove that there is a reasonable probability of mistaking the two companies for one another.

Decision Must take into consideration multiple aspects, both managerial and

legal. Management failed to see the similarity between companies when

they were being formed. Made the decision to cease and desist.

Chose the name "Grape Solar" Reasoning process was the marks based upon fruits

have worked for other companies. Centron Solar

- The Company sells solar panels, it is financed and owned by Chinese

- Chinese solar panel companies taking up larger and larger percent of the market

- They have to decide upon a legal form to establish their company

o Pick Centron solar as their trade name and wanted to use it as there trademark name

o Get a letter from Cetron Solar, that they must stop using Centron as a trademarked

name,

Should they stop using the name? What is your answer?

Could they prove a reasonable probability that a person would confuse

the two companies

They chose Grape Solar, one of their marketing consultants said their

reasoning was symbols based on fruits worked for other companies,

why not try it.

Chapter 27

1. Term for firm that holds such market power that it can limit rivals from competing in the

market?

a. Monopoly

2. The requirement to not compete for 20 years would be considered a restraint of trade.

However, it may be argued as reasonable as it gives both parties the maximum value from the

sale. It is a means to an achievable end.

3. The legal term applicable to the requirement that each buyer purchase a poem along with a pie

is tying arrangement or tie-in sales. The legality of such agreements depends on many factors,

especially on consideration of the purpose of the arrangement and its likely effect on

competition in the relevant markets (consider that there are two markets, because the

agreement involves both the tying and tied in products). In this case I think the requirement is

legal because you do not have to buy the pie if you don’t want to. The pie is not really a

necessity and you are not hurting anyone in the poem market.

4. To succeed in an action for predatory pricing against Momma Roxie’s, Crusty Joe must

demonstrate that Momma Roxie’s tried to drive out its competitors from the market with the

lower prices. They must prove the relevant market, which they are in, and that there was intent

to drive them out of business.