CASE 1
This case concerns disputes that arose over a large-scale broadband infrastructure
construction project (the Project) throughout California’s Central Valley. The goal of the Project
is to create an approximately 1,371-mile broadband fiber network through 18 Central Valley
counties.
Because of various ongoing disputes that arose during the construction of the Project,
plaintiff MP Nexlevel (MP) brought this suit against defendant CVIN LLC (CVIN), d/b/a Vast
Networks, and defendant Corporation for Education Network Initiatives in California (CENIC), a
nonprofit corporation. MP brings 47 claims against CVIN based on disputes concerning the
construction of the Project. MP asserts its claims against the Member Defendants on the ground
it is CVIN’s partner under California Corporations Code § 16308(a) (“§ 16308(a)”).
MP asserts that CVIN and CENIC were in a legal partnership such that CENIC should be liable
for CVIN’s alleged conduct as CVIN’s partner. As proof of their purported partnership, MP points
to, among other things, the joint application by CVIN and CENIC for the grant funding and various
representations they made. CVIN, along with its partner CENIC, submitted an application for the
grant funding (the grant application). On the grant application, CENIC was named as a proposed
subrecipient of the grant by CVIN and represented that CVIN and CENIC were in a “public-private
partnership.” In the grant application, CVIN and CENIC represented that CVIN/CENIC would build
the project and that in a public-private partnership, CVIN and CENIC would build, operate, and
maintain the project.
MP alleges that CVIN and CENIC made representations in the grant application, websites,
and elsewhere that demonstrate they were in a legal partnership. It is alleged that CVIN
represented to various institutions that CVIN and CENIC had submitted an application for the
grant funding. CENIC announced on its website that the CVIN/CENIC Central Valley Broadband
Project received the grant funding. The announcement also stated that “the Project ‘was designed
and developed by the public-private partnership of CVIN and CENIC a non-profit corporation.’”
CVIN’s website also stated that “CENIC together with its private sector partner CVIN have put
together a project plan designed to improve the availability of broadband networking
infrastructure for 18 counties within the California Central Valley area.”
The complaint stated that both CVIN and CENIC, by words on grant applications, in websites,
and elsewhere, and by their conduct in jointly applying for grants, held themselves out as partners
or in a partnership. Plaintiff further alleged that neither CENIC nor CVIN disclaimed their
representations of being in a partnership, nor did CVIN or CENIC take any steps to publicly deny
the many statements of their partnership or clarify the true nature of their relationship. MP
therefore claims that because CENIC and CVIN presented themselves to the outside world as a
partnership, CENIC has liability even if CENIC is not an actual partner to CVIN in the Project. MP
alleges that CENIC and CVIN’s representations and course of conduct indicating that they were
partners, along with MP’s reasonable reliance on the same, adequately supports liability of CENIC.
CENIC and Member Defendants have moved to dismiss the complaint under Fed. R. Civ. P.
12(b)(6)
O’Neill, Judge
To succeed on its claims, MP bears the burden of proving by a preponderance of the
evidence that a partnership exists between CVIN and CENIC. A “purported partner is liable to the
person to whom the representation is made if that person, relying on the representation, enters
into a transaction with the alleged partnership.” In re Lona, 393 B.R. 1, 16–17 (Bankr. N.D. Cal.
2008) (citing § 16308(a)). However, “the conduct of the ostensible partner must be sufficient to
induce a reasonable and prudent person to believe that a partnership exists and for that person
to enter into a transaction in reliance on that belief.” Id. (citing Armato v. Baden, 71 Cal. App. 4th
885, 898 (1999)). In the context of a motion to dismiss, the complaint must plead sufficient facts
that would support a finding that a purported partnership exists.
MP argues a partnership by estoppel exists between CVIN and CENIC for three primary
reasons: (1) CVIN and CENIC publicly represented in the grant application and on their websites
that they were in a “partnership”; (2) CVIN and CENIC jointly applied for the grant funding; and
(3) CVIN and CENIC represented that they would jointly build, operate, maintain, and manage
the Project. And because of this conduct, MP relied, in part, on the representations of both CVIN
and CENIC that they were in a partnership and would jointly build and operate the Project.
MP alleges that CVIN and CENIC represented in the grant application and on their websites
that they were “partners” or were in a “partnership.” As other courts have noted, the term
“partnership” has a colloquial meaning that describes a relationship unlike “a legal partnership of
the sort that gives rise to fiduciary duties.” Love v. The Mail on Sunday, 489 F. Supp. 2d 1100,
1108 (C.D. Cal. 2007), aff’d, 611 F.3d 601 (9th Cir. 2010); see also T.G. Plastics Trading Co., Inc. v.
Toray Plastics (America), Inc., 958 F. Supp. 2d 315, 327 (D.R.I. 2013) (“Use of the word ‘partner’ in
the colloquial sense does not establish a legal partnership.”).
MP does not provide and the Court cannot find any authority holding that two parties
publicly describing themselves as “partners” or describing their relationship as a “partnership” is
sufficient, without more, to establish a legal partnership, as MP suggests. Moreover, the
allegations in the complaint seem to indicate that CVIN and CENIC used the words “partner” and
“partnership” in the colloquial sense of the word.
Likewise, MP does not provide and the Court cannot find any authority holding that two
parties jointly applying for and receiving federal grant funding, in and of itself, evinces a legal
relationship, as MP suggests. Similarly, MP does not provide and the Court cannot find any
authority holding that a collaboration between two parties to jointly build a project, in and of
itself, evinces a legal partnership, as MP suggests. Thus, the Court finds that the complaint does
not allege sufficient facts to demonstrate that MP reasonably believed a partnership existed
between CVIN and CENIC.
In addition to alleging sufficient facts to demonstrate that MP reasonably believed a
partnership existed between CVIN and CENIC, which MP does not do, MP must allege sufficient
facts showing that it reasonably relied on that belief when entering into the contracts. The Court
finds that the complaint fails to do so. Accordingly, MP’s claims against CENIC fail for the
additional reason that MP’s alleged reliance on the conduct and representations of CVIN and
CENIC was unreasonable.
Notably, MP provides no authority in its opposition for its position that it reasonably believed
a partnership existed between CVIN and CENIC or that it reasonably relied on that belief when
entering into the contracts. MP’s alleged reliance appears particularly unreasonable given that
MP alleges the following: MP entered into 14 contracts with CVIN only under which MP was
CVIN’s direct contractor; CVIN awarded the contracts and CVIN assured MP orally and in writing
that CVIN alone would pay what was due under the contracts; and CVIN, not CENIC, allegedly
“wrongfully refuses to comply with the payment terms of the Contracts.” Further, MP does not
allege that it had any direct interactions with CENIC when negotiating or entering the contracts
with CVIN or that CVIN made any representations to MP as to CENIC’s involvement with the
contracts.
To find that a plaintiff reasonably relied on its belief that a purported partnership exists,
courts generally require more than what MP has alleged here. The Court therefore holds, as a
matter of law, MP’s alleged reliance on its belief that CVIN and CENIC were legal partners when
it entered into the contracts was unreasonable.
Accordingly, MP fails to allege sufficient facts to establish that it reasonably believed that
CVIN and CENIC were partners or that it reasonably relied on that belief when it entered into the
contracts. MP thus fails to allege facts that show CVIN and CENIC were purported partners under
§ 16308(a). Thus, all of MP’s causes of action against CENIC fail because they are contingent on
a finding that CVIN and CENIC are partners under § 16308(a).
The Court thus grants the defendant’s motion to dismiss because the complaint appears
futile.
CASE 2
Robbie McMillian and his cousin Bruce McMillian were partners in a bulk-mail services
business, Corporate Mail Management. Bruce funded the partnership’s operations, pledging his
personal residence as collateral to secure a business loan and to purchase equipment for the
partnership. Robbie marketed its services and managed its business operations, holding himself
out as the president of Corporate Mail. Despite their efforts, the partnership never made much
money.
Over time, Robbie met other people who had an interest in entering the bulk-mail services
business. In August 2002, Robbie met with two of these people and formed a new company with
them. The new company offered the same kinds of services as Corporate Mail and, in fact, directly
competed with it. At some point in 2002, Robbie told Bruce that he planned to withdraw from
their partnership, ostensibly because he was tired of the bulk-mail services business and wanted
to do something else altogether. Robbie never told Bruce about his new company or that it
competed with Corporate Mail.
The new company, Mail Source, was formed in January 2003. Between January and April
2003, Robbie still was managing Corporate Mail and at the same time working for Mail Source,
diverting to Mail Source the business opportunities that were presented to Corporate Mail. In
April 2003, Robbie shut down Corporate Mail, taking all its assets and business opportunities with
him to Mail Source. In its first year alone, Mail Source earned more than $245,000 from customers
that previously had been customers or prospective customers of Corporate Mail.
Left with nothing but the debts of Corporate Mail, Bruce sued Robbie and Mail Source. Bruce
argued that Robbie breached his fiduciary duties to Bruce and their partnership and that Mail
Source wrongfully induced Robbie to breach his fiduciary duties. Bruce asked the trial court to
award him monetary damages for his loss of the opportunity to profit from the prospective
business opportunities that Corporate Mail lost to Mail Source.
To build his case for damages, Bruce sought to discover information from Mail Source about
its finances, specifically, its revenue and profits between 2003 and the present. When Mail Source
produced some financial information—a list of its sales-by-customer between 2003 and 2005—
but refused to produce all the financial information Bruce had requested, Bruce asked the trial
court to compel Mail Source to provide the information. The court concluded that the financial
records of Mail Source were not relevant to the measure of damages and denied the motion to
compel. The court said that damages for the loss of a prospective business opportunity must be
based on the value that a reasonable person would have assigned to the prospective business
opportunity at the time of its loss. The court concluded that the amount Mail Source earned from
the business opportunities that it and Robbie misappropriated from Corporate Mail was irrelevant.
Bruce appealed the decision to the Georgia Court of Appeals.
Blackwell, Judge
Bruce argues that his damages properly can be based on the revenues, or at least the profits,
that Mail Source earned from any business opportunities misappropriated from Corporate Mail.
If a disgorgement remedy were appropriate, it would resolve the question with which we are
presented today, inasmuch as the revenues and profits of Mail Source absolutely would be
relevant to damages because they would be the very measure of damages. We do not need to
decide today whether the disgorgement remedy would be appropriate because, even if damages
more properly are measured by reference to what Bruce lost, not what Mail Source gained, the
revenues and profits of Mail Source still might be probative of damages.
When a partner wrongfully appropriates a prospective business opportunity of his
partnership to his own use or that of another, the remaining partners, who are deprived of an
opportunity to profit from the misappropriated business opportunity, may recover their share of
the profits that the partnership would have earned from the business opportunity. Like any lost
profits, a partner’s share of the profits that his partnership would have earned from a lost business
opportunity must be shown with reasonable certainty, and profits which are remote, or
speculative, contingent or uncertain are not recoverable. That said, the rule that lost profits
cannot be speculative or uncertain relates more especially to the uncertainty as to cause, rather
than uncertainty as to the measure or extent of the damages. That difficulty in calculating
precisely the damages sustained will not preclude their recovery is especially true when it is the
conduct of the wrongdoer that prevents a more precise calculation.
If this measure of damages, rather than a disgorgement, is the more appropriate measure
of damages—that is, if the measure is what Bruce lost and not what Mail Source gained— the
revenues and profits earned by Mail Source from business opportunities that Corporate Mail lost
to it would not be dispositive of the amount of damages Bruce might be entitled to recover. But
that does not mean that the revenues and profits of Mail Source are irrelevant to the proper
measure of damages. Indeed, some reasonable person might say the revenues and profits Mail
Source earned from the same business opportunities could be a fair approximation of the
revenues that Corporate Mail would have earned from them and are, therefore, probative of the
lost revenue and profit of Corporate Mail, at least if there is some evidence that Mail Source and
Corporate Mail have similar pricing structures and costs. Robbie and Mail Source would be
entitled to respond, of course, that Corporate Mail could not have charged its customers the
same price as Mail Source, or could not have done the same volume of work as Mail Source, or
would not have earned the same profit as Mail Source, but those are all matters for a jury. At the
least, the revenues earned by Mail Source might be probative of the volume of work performed
by Mail Source to the extent that more revenue is earned for doing more work, something the
parties do not dispute. There may be reasons in this case why such evidence ultimately might not
be admitted at trial, but we are reviewing the denial of a motion to compel, not a judgment for
money damages or a ruling admitting certain proof of damages at trial. It is enough to decide
that the revenues and profits of Mail Source might very well have some relevance to the proper
measure of damages in this case.
Judgment reversed in favor of Bruce McMillian. Remanded to the trial court.
CASE 3
Ward and Olivo established defendant Ward & Olivo, L.L.P. (W&O), a law firm engaged in
the practice of intellectual property law. Ward and Olivo formed W&O as a limited liability
partnership (LLP) pursuant to the UPA, and W&O obtained and maintained a claims-made
professional liability insurance policy.
On July 29, 2009, Mortgage Grader, Inc. (MG) retained W&O to sue various persons or
entities for patent infringement. Olivo entered into a contingency fee agreement with MG and
filed a lawsuit (the “underlying lawsuit”) against several defendants. MG settled the underlying
lawsuit (“the settlements”) by giving those defendants licenses in exchange for payment of a
“one-time settlement amount.”
On June 30, 2011, Ward and Olivo stopped actively practicing law as W&O. Thereafter, W&O
began winding up its law practice by collecting outstanding legal fees. W&O’s professional
liability insurance policy expired on August 8, 2011, and W&O did not purchase a tail insurance
policy.
In October 2012, MG filed a legal malpractice complaint against W&O, Olivo, and Ward
alleging that Olivo’s legal advice harmed MG’s patent rights because Olivo, among other things,
failed to require that royalty rates or licensing fees be part of the settlement. In the complaint,
MG further alleged that W&O and Ward were vicariously liable for Olivo’s acts or omissions. By
the time MG filed its complaint, W&O’s claims-made policy had expired, and W&O was uninsured.
Ward had no involvement in the underlying lawsuit, the settlements, or Olivo’s legal
representation of MG.
Ward contends that he is shielded from liability as a partner in an LLP and is, therefore, not
vicariously liable for the alleged legal malpractice of his former partner, Olivo. He thus argues
that MG’s complaint against him should be dismissed.
Fasciale, Judge
In addressing whether Ward is shielded from Olivo’s alleged malpractice, this Court looks to
the statutory language to determine the Legislature’s intent. When interpreting a statute, words
are to be given their ordinary meaning and significance. The plain language of N.J.S.A. 42:1A18(c) clearly expresses the Legislative intent that the partners of an LLP are shielded from liability
for a fellow partner’s acts as it states, “An obligation of a partnership incurred while the
partnership is [an LLP], whether arising in contract, tort, or otherwise, is solely the obligation of
the partnership. A partner is not personally liable, directly or indirectly, by way of contribution or
otherwise, for such an obligation solely by reason of being or so acting as a partner.” Without
LLP status, “all partners are liable jointly and severally for all obligations of the partnership. . . .”
Under the UPA, the status of an LLP remains effective until the LLP itself cancels its status, or
the LLP’s status is revoked by the Department of the Treasury in the event the LLP “fails to file an
annual report when due or pay the required filling fee.” Since the status of W&O remains an LLP,
the court is dismissing the legal malpractice claim asserted by MG against Ward because he is
not vicariously liable for the alleged malpractice of his former partner Olivo.
Judgment of the trial court is reversed; judgment affirming this decision by the Supreme
Court of New Jersey.
QUESTION:
37-10
10. Steve Holmes and his son Mike were partners in a construction business. Steve also
owned a ranch, which he contributed to the partnership, even though Steve was still listed as the
owner of record. Steve learned of a low-interest loan available for the purchase of property from
a parent. Solely to obtain the benefits of the low-interest loan, Steve deeded the ranch to Mike.
No money exchanged hands, however, and Mike never paid Steve or the partnership for the
ranch. The transfer was not treated as a sale on Steve’s or Mike’s books, Mike did not claim ranch
income as his own, and there were no changes in ranch operation. When Steve and Mike had
disagreements, Steve asked a court to dissolve the partnership and to distribute its assets. Was
the ranch an asset of the partnership or Mike?
37-11
11. Demas Yan and Dong Fu made an agreement to build condominiums on Yan’s land in
the Chinatown section of San Francisco. Their agreement provided that Yan would own 75
percent and Fu 25 percent of the property. Yan was responsible for the initial $300,000
construction cost, and Fu the remainder. They agreed to share the proceeds of the sale or rental
of the condominiums according to the ownership percentage. Fu, however, had sole power to
decide whether to sell or to rent the property. Afterward, Fu assigned his interest under the
agreement to Wei Suen. Thereafter, the condominiums were sold for a combined price of
$2.3million. Was Suen entitled to a share of the condominium sale proceeds?
38-4
4. Dennis Ranzau and William Brosseau formed a partnership to purchase the Casa T, a house
in Acapulco. Their intent was to use the Casa T as a vacation home for a few weeks each year, to
lease it for the remainder of each year, and to share the rental income after expenses. Ranzau
soon became concerned that Brosseau was not accounting for the expenses and income of the
Casa T. Brosseau refused Ranzau’s requests to provide receipts for expenses Brosseau claimed
to have incurred on the house. Brosseau also let his friend have “total run of the house” over
Ranzau’s objection. On another occasion, Ranzau’s wife and her friends were locked out of the
house by an agent of Brosseau and had to make other accommodation arrangements. Has
Brosseau breached his fiduciary duty to Ranzau?
38-6
6. Spector(S),Rosenberg (R),Patron (P), andKonover(K) agree to build a shopping plaza in
Seymour, Connecticut. There is no written partnership agreement. The four orally form Tri Town
Realty Co., a partnership in which each partner receives a 25 percent interest. S and R contribute
a lease, while P and K are responsible for building, operating, and managing the shopping plaza.
Initially K and P manage the shopping plaza themselves, charging the partnership for any outof-pocket expenses they incur. Over time, K and P form K and P Management Company, which
eventually is replaced by K Management Corporation, which manages Tri Town. K’s duties in
managing Tri Town include preparation and distribution of monthly reports to each of the
partners. S believes that K’s reports are not adequately explaining the finances of the partnership.
S asks for an explanation of various expenses that appear on the monthly report. When S does
not receive a response from K, S again reaches out to K and demands that the partnership be
terminated. K never responds and stops making profit distributions to S. S hires a CPA, whose
investigation reveals that K did not maintain any account dedicated solely to the Tri Town
partnership. It is discovered that the Tri Town partnership funds were commingled with funds
from several other K entities, and all the funds were commingled in one account called the K and
R Associates Trust Fund (K and R). Not only were the funds commingled in one account, but the
Tri Town funds were used by other properties owned by K. Even though Tri Town funds
supposedly were kept in the K and R checking account, the balance of the entire K and R checking
account was actually far less than the amount purported to be in the Tri Town partnership
account. Additionally, the interest earned on Tri Town funds was not credited to Tri Town’s
account. K admits to diverting funds between his various entities. K said that by sharing the funds
in the K and R account, K could use one property’s funds to cover expenses incurred by another
property. S sues K seeking damages stemming from K’s alleged breaches of his fiduciary duties
in managing the Tri Town partnership. Will the court find that K breached his fiduciary duties?
PROBLEM SOLUTIONS AND ESSAY ANSWERS
Langvardt et al., BUSINESS LAW (17th ed. 2018)
by
Robert S. Wiener
Problem solutions and examination essay answers are similar. Both call upon
you to apply legal principles to practical business situations. Your answers must set
forth reasons for conclusions stated. Organize and write them clearly using standardEnglish syntax and spelling. Include the area of law, parties, and legal issues. Include,
explain, and apply legal terms.
PROBLEM SOLUTIONS
Problem solving prepares you to write examination essays. Read the chapter and
assigned case opinions and write your case briefs. Then read the first assigned problem
a couple of times. Return to the text and analytically read the part of the chapter that
discusses the legal issue(s) raised in the problem. Keep an eye out for legal terms in
the problem. They are a key to the legal issue(s) and may appear in bold type in the
text. Read the problem again. You may want to make notes for your solution now — at
least, organize it in your mind. Do this without looking back at the text.
You are ready to write your problem solution. The advice given in “Cases and
Briefs” will help. For problems containing multiple questions, repeat the brief format writing your solution as an essay using separate paragraphs for separate sections. You do
not need to use headings. Leave space at the margins and between the sections of
your solution to revise it, for example, during/after classroom review.
The format for a problem solution and essay answer is a modification of your
brief format. It will generally look like this:
January 28, 211/28/21
1
PROBLEM SOLUTIONS AND ESSAY ANSWERS
Langvardt et al., BUSINESS LAW (17th ed. 2018)
I
JUDGMENT
II
A
B
LEGAL PRINCIPLE
ISSUE
(Question of Law)
HOLDING (Answer of Law)
A
B
REASONING
GENERAL ANALYSIS
APPLIED ANALYSIS
III
IV
JUDGMENT
I. JUDGMENT
In the first section, present your judgment. Omit the facts section. Copying facts
takes time with no benefit; however, you will refer to specific facts in your applied analysis section. Unlike briefs where you are asked to show your understanding of the
judge’s judgment, here you give your judgment (legal decision) based upon legal principles. Usually, in your problem solution you are called upon to judge a case, that is, to
decide who wins and explain why. If you are not yet clear on your judgment, leave this
section blank and return to it after you have written your reasoning sections.
II. LEGAL PRINCIPLE
Now your real work begins. In this section write the key legal principle guiding
your judgment, that is, your issue and holding. Merely writing the judgment is not
enough, even if it is correct. More importantly, you must explain your judgment. How
did you arrive at your conclusion?
!
1/28/21
2
PROBLEM SOLUTIONS AND ESSAY ANSWERS
Langvardt et al., BUSINESS LAW (17th ed. 2018)
I. REASONING
A. GENERAL ANALYSIS
This is General Analysis is the first part of your legal reasoning, your, including
the area of law. Elaborate on the issue and holding and discuss secondary legal issues.
This section should be fully developed, step-by-step, particularly for examination essays. You will base this on legal principles learned from reading the textbook, reading
and briefing cases, and class lecture and discussion.
B. APPLIED ANALYSIS
In Applied Analysis apply the general analysis to the problem’s relevant facts.
IV. JUDGMENT
Repeat your judgment to confirm that this is the legal decision to which your analysis leads. Has your judgment changed? If so, correct the judgment in your first section
so that both judgments match.
Problems and essay questions are often tricky. You may be unsure of the judgment. That is OK. There may be no clear answer. The correct answer usually earns only
10 points on an examination. And you may earn full credit for either of two different answers. Your objective is to convey that you have thought through the case from a business law perspective; therefore, the most important parts of your problem solutions and
essay answers are your legal principle and reasoning section.
How much time should this take? In order to be prepared to write well-organized
and thorough exam essays, for homework problem solutions, first read the relevant part
of the of textbook, then spend at least 20 minutes answering each problem.
January 28, 211/28/21
3
PROBLEM SOLUTIONS AND ESSAY ANSWERS
Langvardt et al., BUSINESS LAW (17th ed. 2018)
ESSAY ANSWERS
Essay answers are different from problem solutions in a few ways. Exams are
closed book and timed. You may have aout 40 minutes to answer an exam essay compared to 15-20 minutes on a CPA exam. First, read the question at the end of the essay. Next, use your case reading techniques to read the question’s facts several times.
Plan your answer before you begin writing. Crossing out and rewriting essay answers
wastes time. Exam questions are likely to be lengthier and more complicated than problems, with more facts and raising several legal issues rather than just one.
Grading of Essay Answers
Your grades on exam essay answers largely reflect your preparation. If you have
written your assignments (both case briefs and problem solutions), participated in class,
taken effective notes, and studied your assignments and notes well, reviewing them
soon after class, you should understand the legal principles and be able you to apply
them to new situations.
To earn more essay points, spot legal issues in essay questions. Then answer
those questions using legal terms to explain and apply relevant legal principles learned
in class. Basic terms, especially those written on the board, may earn credit if used appropriately and explained. A minimum of 120 points will be available for each exam; correct judgments earn 10 points. Sometimes, legal labeling of parties, for example, assignor and assignee in an assignment of rights contract case, will earn credit.
The better you prepare for exam essays by writing class assignments (and even
writing extra practice problem solution essays), the better you will perform on the exam
essays.
1/28/21
4
PACE UNIVERSITY
CASE BRIEF
ZHIYANG LIU
North Atlantic Instruments case (Ch. 35-10)
I.
Judgment
The ruling was that the district court did not exceed its permitted discretion when issuing a
preliminary injunction. The summary of the case is that the North Atlantic Company filed an
injunction stating that Haber and Apex (defendant) had engaged in unfair competition and
misappropriated trade secret information to apply for the North Atlantic Company’s customer
base. The court ruled that the North Atlantic consumer list was a trade secret. Trade secrets are
considered confidential business data. The judge agreed with North Atlantic (plaintiff) and
provided a preliminary injunction, stating that Haber (defendant) has no right to use the trade
secret.
II.
Legal Principle
ISSUE
Whether the court surpasses its permissible discretion in giving a preliminary injunction?
HOLDING
No.
III.
Reasoning
General analysis
The law involves employment agreements and Wisconsin’s application of the Uniform Trade
Secrets Act. After Harper (defendant) and North Atlantic (plaintiff) reached an agreement, they
agreed to the rule that no information should be disclosed even during the term of North Atlantic
(plaintiff). This is a clause in the employment agreement. Once the contract was signed, Haber
(defendant) had all the information about the North Atlantic (plaintiff) customer base, as well as
PACE UNIVERSITY
CASE BRIEF
ZHIYANG LIU
all other ideas including technology. After the contract expired, he signed another agreement
with another company called Apex. Since he had all the data about the North Atlantic customers
(plaintiffs), he started calling them and used some of the matching methods that the North
Atlantic was using. North Atlantics (plaintiff) applied for a temporary restraining order and
preliminary injunction on November 6, 1997. They tried to prohibit Apex and Haber
(defendants) from disclosing or misappropriating any confidential and proprietary data related to
North Atlantics (plaintiffs) trade and soliciting any company’s customers. The district court
issued a temporary restraining order and referred the question to the magistrate. After a series of
hearings in December 1997, the judge recommended that a preliminary injunction be issued in
most respects. On March 27, 1998, the judge provided a report and recommendations for this
purpose. The two parties protested the report and recommendations, and Apex and Haber
(defendants) moved to dismiss the complaint. DC implemented the report and recommendations
in all important aspects and rejected the motion to dismiss with a wide range of written but
unpublished comments.
Applied Analysis
The brief argued that the district court did not exceed its acceptable discretion in deciding to do
so. Trade secrets refer to “any formula, equipment, model, or data compilation used in industry
and provide an opportunity for [owner] to gain an advantage over competitors who do not use or
know it. When determining whether the information is eligible to be a trade secret, the New York
courts considered the following elements:
(1) The visibility of the material outside the industry; (2) The level of recognition by workers and
other industry practitioners; (3) The level of information confidentiality measures adopted by the
industry; (4) The value of the data to the company and its competitors; (5) The money or effort
PACE UNIVERSITY
CASE BRIEF
ZHIYANG LIU
the company spends to create the information; (6) How easy it is for others to properly obtain or
copy the data. The brief stated that the district court was not obviously wrong in accepting the
magistrate’s broad and comprehensive factual decision that the identity of North Atlantics
(plaintiff) customer data is a protected trade secret.
Next, this brief considers whether the perpetrator’s use of trade secrets-a clear list of customers
contacts-violated his duties. The New York Rules enforce the obligation not to use trade secrets
to compete with previous employers. In addition, the employment agreement clearly reinforces
this obligation, requiring Haber (defendant) to keep all trade secrets and customer lists strictly
confidential. Therefore, this briefing affirms this point on this point, thereby confirming the
district court’s ruling that North Atlantic (plaintiff) has revealed the full possibility of Habor
(defendant)’s alleged misappropriation of trade secrets. Haber’s (defendant) employment
agreement requires him to “keep confidential all confidential materials related to [North
Atlantics] and keep them within the strictest guarantees, including but not limited to pricing
policies, trade secrets, customer lists and other confidential company affairs of the company and
any Colleague.” According to the facts in the record, Haber (defendant) violated New York’s
laws and obligations under employment agreements. Therefore, the employment agreement
emphasizes Haber’s (defendant) obligations under the New York rules not to use the trade secrets
of his former employers with the company. Therefore, the employment agreement reinforces
Haber’s obligation under New York law not to use the trade secrets of its former employers
against employers. In the end, this brief came to the conclusion that the North Atlantic has
proved that Habor (the defendant) has a sufficient probability of success in the case of the
misappropriation of trade secrets. At the same time, the North Atlantic has shown that if there is
no ban, it will suffer irreparable harm.
PACE UNIVERSITY
IV.
CASE BRIEF
ZHIYANG LIU
Judgment
Since North Atlantics (plaintiff) has shown the possibility of winning the case, and if there is no
injunction, it will suffer irreparable damage, and Habor (defendant) has also violated the New
York State employment agreement by leaking North Atlantics (plaintiff)’s business Confidential,
so the brief concluded that the district court did not exceed its permitted discretion in providing a
preliminary injunction.
PACE UNIVERSITY
CASE BRIEF
ZHIYANG LIU
4. Has Jarvin breached a fiduciary duty owed to Merrill Lynch?
Yes. Jarvin has breached a fiduciary duty owed to Merrill Lynch. Once someone holds a
fiduciary duty to someone else, the individual with the obligation must act in a manner that will
profit someone else, commonly financially. Such people are obligated to act within the best
interest of the principal, i.e., the party or client whose properties they are managing. In this case
Jarvin has breached a fiduciary duty owed to Merrill Lynch. This is because Jarvin has failed to
disclose the five wealthiest of his clients to Merrill Lynch to benefit his client. He kept such
clients to himself and advised them on his own, keeping for himself the entire fees he charged for
services offered to them. Therefore, he did not act in the best of his client. Secondly, he used his
employer’s resources for his own interests. He used two members of his Merrill Lynch wealth
management group who frequently met with his five personal customers to generate investments
plans for them. This only benefited Jarvin alone the expense of his employer. Therefore, Jarvin
has breached a fiduciary duty owed to Merrill Lynch.
10. Was a contract formed when Mrs. Trepanier accepted the $20,000 offer on her
husband’s behalf?
No. No contract was created after Mrs. Trepanier accepted the $20,000 offer on the behalf of her
husband. As per the Law of Agency, One Party appoints another party for conducting his
business activities with the third party on his behalf. The first party who appoints the second
party is known as Principle and the Second Party who appointed to conduct the business
PACE UNIVERSITY
CASE BRIEF
ZHIYANG LIU
operation of principle is known as his Agent. An agent is bound to the act which is certified by
his principle and which is necessary for the expansion of the corporate of the principle. In this
case, Mrs. Trepanier acted as an agent to her husband hence No contract was created after Mrs.
Trepanier accepted the $20,000 offer on the behalf of her husband.
Purchase answer to see full
attachment
This case concerns disputes that arose over a large-scale broadband infrastructure
construction project (the Project) throughout California’s Central Valley. The goal of the Project
is to create an approximately 1,371-mile broadband fiber network through 18 Central Valley
counties.
Because of various ongoing disputes that arose during the construction of the Project,
plaintiff MP Nexlevel (MP) brought this suit against defendant CVIN LLC (CVIN), d/b/a Vast
Networks, and defendant Corporation for Education Network Initiatives in California (CENIC), a
nonprofit corporation. MP brings 47 claims against CVIN based on disputes concerning the
construction of the Project. MP asserts its claims against the Member Defendants on the ground
it is CVIN’s partner under California Corporations Code § 16308(a) (“§ 16308(a)”).
MP asserts that CVIN and CENIC were in a legal partnership such that CENIC should be liable
for CVIN’s alleged conduct as CVIN’s partner. As proof of their purported partnership, MP points
to, among other things, the joint application by CVIN and CENIC for the grant funding and various
representations they made. CVIN, along with its partner CENIC, submitted an application for the
grant funding (the grant application). On the grant application, CENIC was named as a proposed
subrecipient of the grant by CVIN and represented that CVIN and CENIC were in a “public-private
partnership.” In the grant application, CVIN and CENIC represented that CVIN/CENIC would build
the project and that in a public-private partnership, CVIN and CENIC would build, operate, and
maintain the project.
MP alleges that CVIN and CENIC made representations in the grant application, websites,
and elsewhere that demonstrate they were in a legal partnership. It is alleged that CVIN
represented to various institutions that CVIN and CENIC had submitted an application for the
grant funding. CENIC announced on its website that the CVIN/CENIC Central Valley Broadband
Project received the grant funding. The announcement also stated that “the Project ‘was designed
and developed by the public-private partnership of CVIN and CENIC a non-profit corporation.’”
CVIN’s website also stated that “CENIC together with its private sector partner CVIN have put
together a project plan designed to improve the availability of broadband networking
infrastructure for 18 counties within the California Central Valley area.”
The complaint stated that both CVIN and CENIC, by words on grant applications, in websites,
and elsewhere, and by their conduct in jointly applying for grants, held themselves out as partners
or in a partnership. Plaintiff further alleged that neither CENIC nor CVIN disclaimed their
representations of being in a partnership, nor did CVIN or CENIC take any steps to publicly deny
the many statements of their partnership or clarify the true nature of their relationship. MP
therefore claims that because CENIC and CVIN presented themselves to the outside world as a
partnership, CENIC has liability even if CENIC is not an actual partner to CVIN in the Project. MP
alleges that CENIC and CVIN’s representations and course of conduct indicating that they were
partners, along with MP’s reasonable reliance on the same, adequately supports liability of CENIC.
CENIC and Member Defendants have moved to dismiss the complaint under Fed. R. Civ. P.
12(b)(6)
O’Neill, Judge
To succeed on its claims, MP bears the burden of proving by a preponderance of the
evidence that a partnership exists between CVIN and CENIC. A “purported partner is liable to the
person to whom the representation is made if that person, relying on the representation, enters
into a transaction with the alleged partnership.” In re Lona, 393 B.R. 1, 16–17 (Bankr. N.D. Cal.
2008) (citing § 16308(a)). However, “the conduct of the ostensible partner must be sufficient to
induce a reasonable and prudent person to believe that a partnership exists and for that person
to enter into a transaction in reliance on that belief.” Id. (citing Armato v. Baden, 71 Cal. App. 4th
885, 898 (1999)). In the context of a motion to dismiss, the complaint must plead sufficient facts
that would support a finding that a purported partnership exists.
MP argues a partnership by estoppel exists between CVIN and CENIC for three primary
reasons: (1) CVIN and CENIC publicly represented in the grant application and on their websites
that they were in a “partnership”; (2) CVIN and CENIC jointly applied for the grant funding; and
(3) CVIN and CENIC represented that they would jointly build, operate, maintain, and manage
the Project. And because of this conduct, MP relied, in part, on the representations of both CVIN
and CENIC that they were in a partnership and would jointly build and operate the Project.
MP alleges that CVIN and CENIC represented in the grant application and on their websites
that they were “partners” or were in a “partnership.” As other courts have noted, the term
“partnership” has a colloquial meaning that describes a relationship unlike “a legal partnership of
the sort that gives rise to fiduciary duties.” Love v. The Mail on Sunday, 489 F. Supp. 2d 1100,
1108 (C.D. Cal. 2007), aff’d, 611 F.3d 601 (9th Cir. 2010); see also T.G. Plastics Trading Co., Inc. v.
Toray Plastics (America), Inc., 958 F. Supp. 2d 315, 327 (D.R.I. 2013) (“Use of the word ‘partner’ in
the colloquial sense does not establish a legal partnership.”).
MP does not provide and the Court cannot find any authority holding that two parties
publicly describing themselves as “partners” or describing their relationship as a “partnership” is
sufficient, without more, to establish a legal partnership, as MP suggests. Moreover, the
allegations in the complaint seem to indicate that CVIN and CENIC used the words “partner” and
“partnership” in the colloquial sense of the word.
Likewise, MP does not provide and the Court cannot find any authority holding that two
parties jointly applying for and receiving federal grant funding, in and of itself, evinces a legal
relationship, as MP suggests. Similarly, MP does not provide and the Court cannot find any
authority holding that a collaboration between two parties to jointly build a project, in and of
itself, evinces a legal partnership, as MP suggests. Thus, the Court finds that the complaint does
not allege sufficient facts to demonstrate that MP reasonably believed a partnership existed
between CVIN and CENIC.
In addition to alleging sufficient facts to demonstrate that MP reasonably believed a
partnership existed between CVIN and CENIC, which MP does not do, MP must allege sufficient
facts showing that it reasonably relied on that belief when entering into the contracts. The Court
finds that the complaint fails to do so. Accordingly, MP’s claims against CENIC fail for the
additional reason that MP’s alleged reliance on the conduct and representations of CVIN and
CENIC was unreasonable.
Notably, MP provides no authority in its opposition for its position that it reasonably believed
a partnership existed between CVIN and CENIC or that it reasonably relied on that belief when
entering into the contracts. MP’s alleged reliance appears particularly unreasonable given that
MP alleges the following: MP entered into 14 contracts with CVIN only under which MP was
CVIN’s direct contractor; CVIN awarded the contracts and CVIN assured MP orally and in writing
that CVIN alone would pay what was due under the contracts; and CVIN, not CENIC, allegedly
“wrongfully refuses to comply with the payment terms of the Contracts.” Further, MP does not
allege that it had any direct interactions with CENIC when negotiating or entering the contracts
with CVIN or that CVIN made any representations to MP as to CENIC’s involvement with the
contracts.
To find that a plaintiff reasonably relied on its belief that a purported partnership exists,
courts generally require more than what MP has alleged here. The Court therefore holds, as a
matter of law, MP’s alleged reliance on its belief that CVIN and CENIC were legal partners when
it entered into the contracts was unreasonable.
Accordingly, MP fails to allege sufficient facts to establish that it reasonably believed that
CVIN and CENIC were partners or that it reasonably relied on that belief when it entered into the
contracts. MP thus fails to allege facts that show CVIN and CENIC were purported partners under
§ 16308(a). Thus, all of MP’s causes of action against CENIC fail because they are contingent on
a finding that CVIN and CENIC are partners under § 16308(a).
The Court thus grants the defendant’s motion to dismiss because the complaint appears
futile.
CASE 2
Robbie McMillian and his cousin Bruce McMillian were partners in a bulk-mail services
business, Corporate Mail Management. Bruce funded the partnership’s operations, pledging his
personal residence as collateral to secure a business loan and to purchase equipment for the
partnership. Robbie marketed its services and managed its business operations, holding himself
out as the president of Corporate Mail. Despite their efforts, the partnership never made much
money.
Over time, Robbie met other people who had an interest in entering the bulk-mail services
business. In August 2002, Robbie met with two of these people and formed a new company with
them. The new company offered the same kinds of services as Corporate Mail and, in fact, directly
competed with it. At some point in 2002, Robbie told Bruce that he planned to withdraw from
their partnership, ostensibly because he was tired of the bulk-mail services business and wanted
to do something else altogether. Robbie never told Bruce about his new company or that it
competed with Corporate Mail.
The new company, Mail Source, was formed in January 2003. Between January and April
2003, Robbie still was managing Corporate Mail and at the same time working for Mail Source,
diverting to Mail Source the business opportunities that were presented to Corporate Mail. In
April 2003, Robbie shut down Corporate Mail, taking all its assets and business opportunities with
him to Mail Source. In its first year alone, Mail Source earned more than $245,000 from customers
that previously had been customers or prospective customers of Corporate Mail.
Left with nothing but the debts of Corporate Mail, Bruce sued Robbie and Mail Source. Bruce
argued that Robbie breached his fiduciary duties to Bruce and their partnership and that Mail
Source wrongfully induced Robbie to breach his fiduciary duties. Bruce asked the trial court to
award him monetary damages for his loss of the opportunity to profit from the prospective
business opportunities that Corporate Mail lost to Mail Source.
To build his case for damages, Bruce sought to discover information from Mail Source about
its finances, specifically, its revenue and profits between 2003 and the present. When Mail Source
produced some financial information—a list of its sales-by-customer between 2003 and 2005—
but refused to produce all the financial information Bruce had requested, Bruce asked the trial
court to compel Mail Source to provide the information. The court concluded that the financial
records of Mail Source were not relevant to the measure of damages and denied the motion to
compel. The court said that damages for the loss of a prospective business opportunity must be
based on the value that a reasonable person would have assigned to the prospective business
opportunity at the time of its loss. The court concluded that the amount Mail Source earned from
the business opportunities that it and Robbie misappropriated from Corporate Mail was irrelevant.
Bruce appealed the decision to the Georgia Court of Appeals.
Blackwell, Judge
Bruce argues that his damages properly can be based on the revenues, or at least the profits,
that Mail Source earned from any business opportunities misappropriated from Corporate Mail.
If a disgorgement remedy were appropriate, it would resolve the question with which we are
presented today, inasmuch as the revenues and profits of Mail Source absolutely would be
relevant to damages because they would be the very measure of damages. We do not need to
decide today whether the disgorgement remedy would be appropriate because, even if damages
more properly are measured by reference to what Bruce lost, not what Mail Source gained, the
revenues and profits of Mail Source still might be probative of damages.
When a partner wrongfully appropriates a prospective business opportunity of his
partnership to his own use or that of another, the remaining partners, who are deprived of an
opportunity to profit from the misappropriated business opportunity, may recover their share of
the profits that the partnership would have earned from the business opportunity. Like any lost
profits, a partner’s share of the profits that his partnership would have earned from a lost business
opportunity must be shown with reasonable certainty, and profits which are remote, or
speculative, contingent or uncertain are not recoverable. That said, the rule that lost profits
cannot be speculative or uncertain relates more especially to the uncertainty as to cause, rather
than uncertainty as to the measure or extent of the damages. That difficulty in calculating
precisely the damages sustained will not preclude their recovery is especially true when it is the
conduct of the wrongdoer that prevents a more precise calculation.
If this measure of damages, rather than a disgorgement, is the more appropriate measure
of damages—that is, if the measure is what Bruce lost and not what Mail Source gained— the
revenues and profits earned by Mail Source from business opportunities that Corporate Mail lost
to it would not be dispositive of the amount of damages Bruce might be entitled to recover. But
that does not mean that the revenues and profits of Mail Source are irrelevant to the proper
measure of damages. Indeed, some reasonable person might say the revenues and profits Mail
Source earned from the same business opportunities could be a fair approximation of the
revenues that Corporate Mail would have earned from them and are, therefore, probative of the
lost revenue and profit of Corporate Mail, at least if there is some evidence that Mail Source and
Corporate Mail have similar pricing structures and costs. Robbie and Mail Source would be
entitled to respond, of course, that Corporate Mail could not have charged its customers the
same price as Mail Source, or could not have done the same volume of work as Mail Source, or
would not have earned the same profit as Mail Source, but those are all matters for a jury. At the
least, the revenues earned by Mail Source might be probative of the volume of work performed
by Mail Source to the extent that more revenue is earned for doing more work, something the
parties do not dispute. There may be reasons in this case why such evidence ultimately might not
be admitted at trial, but we are reviewing the denial of a motion to compel, not a judgment for
money damages or a ruling admitting certain proof of damages at trial. It is enough to decide
that the revenues and profits of Mail Source might very well have some relevance to the proper
measure of damages in this case.
Judgment reversed in favor of Bruce McMillian. Remanded to the trial court.
CASE 3
Ward and Olivo established defendant Ward & Olivo, L.L.P. (W&O), a law firm engaged in
the practice of intellectual property law. Ward and Olivo formed W&O as a limited liability
partnership (LLP) pursuant to the UPA, and W&O obtained and maintained a claims-made
professional liability insurance policy.
On July 29, 2009, Mortgage Grader, Inc. (MG) retained W&O to sue various persons or
entities for patent infringement. Olivo entered into a contingency fee agreement with MG and
filed a lawsuit (the “underlying lawsuit”) against several defendants. MG settled the underlying
lawsuit (“the settlements”) by giving those defendants licenses in exchange for payment of a
“one-time settlement amount.”
On June 30, 2011, Ward and Olivo stopped actively practicing law as W&O. Thereafter, W&O
began winding up its law practice by collecting outstanding legal fees. W&O’s professional
liability insurance policy expired on August 8, 2011, and W&O did not purchase a tail insurance
policy.
In October 2012, MG filed a legal malpractice complaint against W&O, Olivo, and Ward
alleging that Olivo’s legal advice harmed MG’s patent rights because Olivo, among other things,
failed to require that royalty rates or licensing fees be part of the settlement. In the complaint,
MG further alleged that W&O and Ward were vicariously liable for Olivo’s acts or omissions. By
the time MG filed its complaint, W&O’s claims-made policy had expired, and W&O was uninsured.
Ward had no involvement in the underlying lawsuit, the settlements, or Olivo’s legal
representation of MG.
Ward contends that he is shielded from liability as a partner in an LLP and is, therefore, not
vicariously liable for the alleged legal malpractice of his former partner, Olivo. He thus argues
that MG’s complaint against him should be dismissed.
Fasciale, Judge
In addressing whether Ward is shielded from Olivo’s alleged malpractice, this Court looks to
the statutory language to determine the Legislature’s intent. When interpreting a statute, words
are to be given their ordinary meaning and significance. The plain language of N.J.S.A. 42:1A18(c) clearly expresses the Legislative intent that the partners of an LLP are shielded from liability
for a fellow partner’s acts as it states, “An obligation of a partnership incurred while the
partnership is [an LLP], whether arising in contract, tort, or otherwise, is solely the obligation of
the partnership. A partner is not personally liable, directly or indirectly, by way of contribution or
otherwise, for such an obligation solely by reason of being or so acting as a partner.” Without
LLP status, “all partners are liable jointly and severally for all obligations of the partnership. . . .”
Under the UPA, the status of an LLP remains effective until the LLP itself cancels its status, or
the LLP’s status is revoked by the Department of the Treasury in the event the LLP “fails to file an
annual report when due or pay the required filling fee.” Since the status of W&O remains an LLP,
the court is dismissing the legal malpractice claim asserted by MG against Ward because he is
not vicariously liable for the alleged malpractice of his former partner Olivo.
Judgment of the trial court is reversed; judgment affirming this decision by the Supreme
Court of New Jersey.
QUESTION:
37-10
10. Steve Holmes and his son Mike were partners in a construction business. Steve also
owned a ranch, which he contributed to the partnership, even though Steve was still listed as the
owner of record. Steve learned of a low-interest loan available for the purchase of property from
a parent. Solely to obtain the benefits of the low-interest loan, Steve deeded the ranch to Mike.
No money exchanged hands, however, and Mike never paid Steve or the partnership for the
ranch. The transfer was not treated as a sale on Steve’s or Mike’s books, Mike did not claim ranch
income as his own, and there were no changes in ranch operation. When Steve and Mike had
disagreements, Steve asked a court to dissolve the partnership and to distribute its assets. Was
the ranch an asset of the partnership or Mike?
37-11
11. Demas Yan and Dong Fu made an agreement to build condominiums on Yan’s land in
the Chinatown section of San Francisco. Their agreement provided that Yan would own 75
percent and Fu 25 percent of the property. Yan was responsible for the initial $300,000
construction cost, and Fu the remainder. They agreed to share the proceeds of the sale or rental
of the condominiums according to the ownership percentage. Fu, however, had sole power to
decide whether to sell or to rent the property. Afterward, Fu assigned his interest under the
agreement to Wei Suen. Thereafter, the condominiums were sold for a combined price of
$2.3million. Was Suen entitled to a share of the condominium sale proceeds?
38-4
4. Dennis Ranzau and William Brosseau formed a partnership to purchase the Casa T, a house
in Acapulco. Their intent was to use the Casa T as a vacation home for a few weeks each year, to
lease it for the remainder of each year, and to share the rental income after expenses. Ranzau
soon became concerned that Brosseau was not accounting for the expenses and income of the
Casa T. Brosseau refused Ranzau’s requests to provide receipts for expenses Brosseau claimed
to have incurred on the house. Brosseau also let his friend have “total run of the house” over
Ranzau’s objection. On another occasion, Ranzau’s wife and her friends were locked out of the
house by an agent of Brosseau and had to make other accommodation arrangements. Has
Brosseau breached his fiduciary duty to Ranzau?
38-6
6. Spector(S),Rosenberg (R),Patron (P), andKonover(K) agree to build a shopping plaza in
Seymour, Connecticut. There is no written partnership agreement. The four orally form Tri Town
Realty Co., a partnership in which each partner receives a 25 percent interest. S and R contribute
a lease, while P and K are responsible for building, operating, and managing the shopping plaza.
Initially K and P manage the shopping plaza themselves, charging the partnership for any outof-pocket expenses they incur. Over time, K and P form K and P Management Company, which
eventually is replaced by K Management Corporation, which manages Tri Town. K’s duties in
managing Tri Town include preparation and distribution of monthly reports to each of the
partners. S believes that K’s reports are not adequately explaining the finances of the partnership.
S asks for an explanation of various expenses that appear on the monthly report. When S does
not receive a response from K, S again reaches out to K and demands that the partnership be
terminated. K never responds and stops making profit distributions to S. S hires a CPA, whose
investigation reveals that K did not maintain any account dedicated solely to the Tri Town
partnership. It is discovered that the Tri Town partnership funds were commingled with funds
from several other K entities, and all the funds were commingled in one account called the K and
R Associates Trust Fund (K and R). Not only were the funds commingled in one account, but the
Tri Town funds were used by other properties owned by K. Even though Tri Town funds
supposedly were kept in the K and R checking account, the balance of the entire K and R checking
account was actually far less than the amount purported to be in the Tri Town partnership
account. Additionally, the interest earned on Tri Town funds was not credited to Tri Town’s
account. K admits to diverting funds between his various entities. K said that by sharing the funds
in the K and R account, K could use one property’s funds to cover expenses incurred by another
property. S sues K seeking damages stemming from K’s alleged breaches of his fiduciary duties
in managing the Tri Town partnership. Will the court find that K breached his fiduciary duties?
PROBLEM SOLUTIONS AND ESSAY ANSWERS
Langvardt et al., BUSINESS LAW (17th ed. 2018)
by
Robert S. Wiener
Problem solutions and examination essay answers are similar. Both call upon
you to apply legal principles to practical business situations. Your answers must set
forth reasons for conclusions stated. Organize and write them clearly using standardEnglish syntax and spelling. Include the area of law, parties, and legal issues. Include,
explain, and apply legal terms.
PROBLEM SOLUTIONS
Problem solving prepares you to write examination essays. Read the chapter and
assigned case opinions and write your case briefs. Then read the first assigned problem
a couple of times. Return to the text and analytically read the part of the chapter that
discusses the legal issue(s) raised in the problem. Keep an eye out for legal terms in
the problem. They are a key to the legal issue(s) and may appear in bold type in the
text. Read the problem again. You may want to make notes for your solution now — at
least, organize it in your mind. Do this without looking back at the text.
You are ready to write your problem solution. The advice given in “Cases and
Briefs” will help. For problems containing multiple questions, repeat the brief format writing your solution as an essay using separate paragraphs for separate sections. You do
not need to use headings. Leave space at the margins and between the sections of
your solution to revise it, for example, during/after classroom review.
The format for a problem solution and essay answer is a modification of your
brief format. It will generally look like this:
January 28, 211/28/21
1
PROBLEM SOLUTIONS AND ESSAY ANSWERS
Langvardt et al., BUSINESS LAW (17th ed. 2018)
I
JUDGMENT
II
A
B
LEGAL PRINCIPLE
ISSUE
(Question of Law)
HOLDING (Answer of Law)
A
B
REASONING
GENERAL ANALYSIS
APPLIED ANALYSIS
III
IV
JUDGMENT
I. JUDGMENT
In the first section, present your judgment. Omit the facts section. Copying facts
takes time with no benefit; however, you will refer to specific facts in your applied analysis section. Unlike briefs where you are asked to show your understanding of the
judge’s judgment, here you give your judgment (legal decision) based upon legal principles. Usually, in your problem solution you are called upon to judge a case, that is, to
decide who wins and explain why. If you are not yet clear on your judgment, leave this
section blank and return to it after you have written your reasoning sections.
II. LEGAL PRINCIPLE
Now your real work begins. In this section write the key legal principle guiding
your judgment, that is, your issue and holding. Merely writing the judgment is not
enough, even if it is correct. More importantly, you must explain your judgment. How
did you arrive at your conclusion?
!
1/28/21
2
PROBLEM SOLUTIONS AND ESSAY ANSWERS
Langvardt et al., BUSINESS LAW (17th ed. 2018)
I. REASONING
A. GENERAL ANALYSIS
This is General Analysis is the first part of your legal reasoning, your, including
the area of law. Elaborate on the issue and holding and discuss secondary legal issues.
This section should be fully developed, step-by-step, particularly for examination essays. You will base this on legal principles learned from reading the textbook, reading
and briefing cases, and class lecture and discussion.
B. APPLIED ANALYSIS
In Applied Analysis apply the general analysis to the problem’s relevant facts.
IV. JUDGMENT
Repeat your judgment to confirm that this is the legal decision to which your analysis leads. Has your judgment changed? If so, correct the judgment in your first section
so that both judgments match.
Problems and essay questions are often tricky. You may be unsure of the judgment. That is OK. There may be no clear answer. The correct answer usually earns only
10 points on an examination. And you may earn full credit for either of two different answers. Your objective is to convey that you have thought through the case from a business law perspective; therefore, the most important parts of your problem solutions and
essay answers are your legal principle and reasoning section.
How much time should this take? In order to be prepared to write well-organized
and thorough exam essays, for homework problem solutions, first read the relevant part
of the of textbook, then spend at least 20 minutes answering each problem.
January 28, 211/28/21
3
PROBLEM SOLUTIONS AND ESSAY ANSWERS
Langvardt et al., BUSINESS LAW (17th ed. 2018)
ESSAY ANSWERS
Essay answers are different from problem solutions in a few ways. Exams are
closed book and timed. You may have aout 40 minutes to answer an exam essay compared to 15-20 minutes on a CPA exam. First, read the question at the end of the essay. Next, use your case reading techniques to read the question’s facts several times.
Plan your answer before you begin writing. Crossing out and rewriting essay answers
wastes time. Exam questions are likely to be lengthier and more complicated than problems, with more facts and raising several legal issues rather than just one.
Grading of Essay Answers
Your grades on exam essay answers largely reflect your preparation. If you have
written your assignments (both case briefs and problem solutions), participated in class,
taken effective notes, and studied your assignments and notes well, reviewing them
soon after class, you should understand the legal principles and be able you to apply
them to new situations.
To earn more essay points, spot legal issues in essay questions. Then answer
those questions using legal terms to explain and apply relevant legal principles learned
in class. Basic terms, especially those written on the board, may earn credit if used appropriately and explained. A minimum of 120 points will be available for each exam; correct judgments earn 10 points. Sometimes, legal labeling of parties, for example, assignor and assignee in an assignment of rights contract case, will earn credit.
The better you prepare for exam essays by writing class assignments (and even
writing extra practice problem solution essays), the better you will perform on the exam
essays.
1/28/21
4
PACE UNIVERSITY
CASE BRIEF
ZHIYANG LIU
North Atlantic Instruments case (Ch. 35-10)
I.
Judgment
The ruling was that the district court did not exceed its permitted discretion when issuing a
preliminary injunction. The summary of the case is that the North Atlantic Company filed an
injunction stating that Haber and Apex (defendant) had engaged in unfair competition and
misappropriated trade secret information to apply for the North Atlantic Company’s customer
base. The court ruled that the North Atlantic consumer list was a trade secret. Trade secrets are
considered confidential business data. The judge agreed with North Atlantic (plaintiff) and
provided a preliminary injunction, stating that Haber (defendant) has no right to use the trade
secret.
II.
Legal Principle
ISSUE
Whether the court surpasses its permissible discretion in giving a preliminary injunction?
HOLDING
No.
III.
Reasoning
General analysis
The law involves employment agreements and Wisconsin’s application of the Uniform Trade
Secrets Act. After Harper (defendant) and North Atlantic (plaintiff) reached an agreement, they
agreed to the rule that no information should be disclosed even during the term of North Atlantic
(plaintiff). This is a clause in the employment agreement. Once the contract was signed, Haber
(defendant) had all the information about the North Atlantic (plaintiff) customer base, as well as
PACE UNIVERSITY
CASE BRIEF
ZHIYANG LIU
all other ideas including technology. After the contract expired, he signed another agreement
with another company called Apex. Since he had all the data about the North Atlantic customers
(plaintiffs), he started calling them and used some of the matching methods that the North
Atlantic was using. North Atlantics (plaintiff) applied for a temporary restraining order and
preliminary injunction on November 6, 1997. They tried to prohibit Apex and Haber
(defendants) from disclosing or misappropriating any confidential and proprietary data related to
North Atlantics (plaintiffs) trade and soliciting any company’s customers. The district court
issued a temporary restraining order and referred the question to the magistrate. After a series of
hearings in December 1997, the judge recommended that a preliminary injunction be issued in
most respects. On March 27, 1998, the judge provided a report and recommendations for this
purpose. The two parties protested the report and recommendations, and Apex and Haber
(defendants) moved to dismiss the complaint. DC implemented the report and recommendations
in all important aspects and rejected the motion to dismiss with a wide range of written but
unpublished comments.
Applied Analysis
The brief argued that the district court did not exceed its acceptable discretion in deciding to do
so. Trade secrets refer to “any formula, equipment, model, or data compilation used in industry
and provide an opportunity for [owner] to gain an advantage over competitors who do not use or
know it. When determining whether the information is eligible to be a trade secret, the New York
courts considered the following elements:
(1) The visibility of the material outside the industry; (2) The level of recognition by workers and
other industry practitioners; (3) The level of information confidentiality measures adopted by the
industry; (4) The value of the data to the company and its competitors; (5) The money or effort
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the company spends to create the information; (6) How easy it is for others to properly obtain or
copy the data. The brief stated that the district court was not obviously wrong in accepting the
magistrate’s broad and comprehensive factual decision that the identity of North Atlantics
(plaintiff) customer data is a protected trade secret.
Next, this brief considers whether the perpetrator’s use of trade secrets-a clear list of customers
contacts-violated his duties. The New York Rules enforce the obligation not to use trade secrets
to compete with previous employers. In addition, the employment agreement clearly reinforces
this obligation, requiring Haber (defendant) to keep all trade secrets and customer lists strictly
confidential. Therefore, this briefing affirms this point on this point, thereby confirming the
district court’s ruling that North Atlantic (plaintiff) has revealed the full possibility of Habor
(defendant)’s alleged misappropriation of trade secrets. Haber’s (defendant) employment
agreement requires him to “keep confidential all confidential materials related to [North
Atlantics] and keep them within the strictest guarantees, including but not limited to pricing
policies, trade secrets, customer lists and other confidential company affairs of the company and
any Colleague.” According to the facts in the record, Haber (defendant) violated New York’s
laws and obligations under employment agreements. Therefore, the employment agreement
emphasizes Haber’s (defendant) obligations under the New York rules not to use the trade secrets
of his former employers with the company. Therefore, the employment agreement reinforces
Haber’s obligation under New York law not to use the trade secrets of its former employers
against employers. In the end, this brief came to the conclusion that the North Atlantic has
proved that Habor (the defendant) has a sufficient probability of success in the case of the
misappropriation of trade secrets. At the same time, the North Atlantic has shown that if there is
no ban, it will suffer irreparable harm.
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Judgment
Since North Atlantics (plaintiff) has shown the possibility of winning the case, and if there is no
injunction, it will suffer irreparable damage, and Habor (defendant) has also violated the New
York State employment agreement by leaking North Atlantics (plaintiff)’s business Confidential,
so the brief concluded that the district court did not exceed its permitted discretion in providing a
preliminary injunction.
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4. Has Jarvin breached a fiduciary duty owed to Merrill Lynch?
Yes. Jarvin has breached a fiduciary duty owed to Merrill Lynch. Once someone holds a
fiduciary duty to someone else, the individual with the obligation must act in a manner that will
profit someone else, commonly financially. Such people are obligated to act within the best
interest of the principal, i.e., the party or client whose properties they are managing. In this case
Jarvin has breached a fiduciary duty owed to Merrill Lynch. This is because Jarvin has failed to
disclose the five wealthiest of his clients to Merrill Lynch to benefit his client. He kept such
clients to himself and advised them on his own, keeping for himself the entire fees he charged for
services offered to them. Therefore, he did not act in the best of his client. Secondly, he used his
employer’s resources for his own interests. He used two members of his Merrill Lynch wealth
management group who frequently met with his five personal customers to generate investments
plans for them. This only benefited Jarvin alone the expense of his employer. Therefore, Jarvin
has breached a fiduciary duty owed to Merrill Lynch.
10. Was a contract formed when Mrs. Trepanier accepted the $20,000 offer on her
husband’s behalf?
No. No contract was created after Mrs. Trepanier accepted the $20,000 offer on the behalf of her
husband. As per the Law of Agency, One Party appoints another party for conducting his
business activities with the third party on his behalf. The first party who appoints the second
party is known as Principle and the Second Party who appointed to conduct the business
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operation of principle is known as his Agent. An agent is bound to the act which is certified by
his principle and which is necessary for the expansion of the corporate of the principle. In this
case, Mrs. Trepanier acted as an agent to her husband hence No contract was created after Mrs.
Trepanier accepted the $20,000 offer on the behalf of her husband.
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