Term
| What type of recovery is quantum meruit? |
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Definition
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Term
| What are two other names for quantum meriut? |
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Definition
-Unjust enrichment
-Implied in law contract |
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Term
| When can't you plead quantum meriut? |
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Definition
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Term
| What are the damages for quantum meriut? |
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Definition
-Reasonable value of services
-Only monetary relief |
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Term
| Can you recover attorney's fees for quantum meriut? |
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Definition
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Term
| What are the defenses for quantum meriut? |
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Definition
- Limitations
-Express K
-Unclean hands |
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Term
| What are the elements of quantum meriut? |
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Definition
-P provided valuable services or materials
-The D accepted
-The D had reasonable notice that the P expected compensation |
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Term
| Is a sworn account a procedural mechanism or a substantive cause of action? |
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Definition
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Term
| When does the P's petition have evidentiary effect? |
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Definition
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Term
| What happens if the D does not verify his answer? |
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Definition
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Term
| What are the elements of a sworn account? |
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Definition
-P sold goods to D
-Prices charged were just and true
-Petition contains a systematic record of the transaction
-All lawful offsets, payments, and credits have been applied
-Account remains unpaid
-Damages are liquidated
-Petition is filed under oath |
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Term
| What are the damages for a sworn account? |
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Definition
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Term
| Can you recover attorney's fees on a sworn account? |
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Definition
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Term
| What must a D do after receiving a sworn account petition that meets the requirements? |
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Definition
| -File a sworn specific denial |
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Term
| What can the D allege in response to a sworn account petition? |
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Definition
-It didn't receive the goods
-Account is not just and true
-Account is not due
-Offsets, payments, or credits haven't been applied |
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Term
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Definition
| -Makes a promise enforceable even without consideration |
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Term
| Can you recover on promissory estoppel when there is a K? |
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Definition
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Term
| Elements of Promissory Estoppel? |
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Definition
-D made a clear and definite promise to P
-P reasonably relied on the promise and such reliance was forseeable
-Injury sustained |
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Term
| What are the damages for Promissory Estoppel? |
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Definition
| -The amount of money required to restore it to its pre-reliance position |
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Term
| Can you recover attorney's fees on promissory estoppel claim? |
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Definition
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Term
| What are the defenses to promissory estoppel? |
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Definition
-Limitations
-Express K
-Unclean hands |
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Term
| Is it possible that D's actions can be both a breach of K and a tort? |
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Definition
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Term
| What creates a tort duty in a K? |
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Definition
| -Every K contains a common law duty to preform the K with care, skill, reasonable experience, and faitfulness |
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Term
| What type of K may give rise to duties enforceable as torts? |
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Definition
| -Ks involving special relationships |
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Term
| What are the two types of tortious interference? |
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Definition
-Tortious interference with K
-Tortious interference with prospective business relations |
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Term
| Tortious Interference with K |
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Definition
| -D disrupts an existing K P has with a 3rd party, either by causing 3rd party to breach or by hampering the ability to perform |
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Term
| Tortious Interference with Prospective Business Relations |
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Definition
| -Occurs when D disrupts a non-contracutal relationship between P and a 3rd party |
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Term
| What are the elements of tortious interference with K? |
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Definition
-P had a valid K
-D willfully and intentionally interfered with K
-D lacked justification or privilege
-Damages |
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Term
| How can a D interfere with a K in a tortious interference claim? |
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Definition
-Inducing 3rd party to breach
-Making performance impossible or more burdensome, difficult, or expensive |
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Term
| What are the elements of tortious interference with a prospective relation? |
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Definition
-Reasonable probability that P would have entered into a business relationship with 3rd party
-D intentionally interferes with the relationship
-D's conduct was independently tortious or unlawful
-Damages |
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Term
| What are the damages for tortious interference with a prospective relation? |
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Definition
-Damages for lost benefits of K
-Personal injury (mental anguish, injury to reputation)
-Punitive damages |
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Term
| Are attorney's fees recoverable for tortious interference? |
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Definition
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Term
| What does business disparagement protect? |
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Definition
| -A business's economic interest |
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Term
| What are two other names for business disparagement? |
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Definition
-Injurious falsehood
-Trade libel |
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Term
| What are the elements of business disparagement? |
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Definition
-D published disparaging words about the P's economic interest
-The words were false
-D acted with malice
-D lacked privilege
-The publication caused special damages |
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Term
| Can republishing an injurious falsehood make you liable? |
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Definition
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Term
| What constitutes "disparaging words" within business disparagement? |
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Definition
-Words that cast doubt on the existence, quality, or ownership of P's land, chattels, or intangible things; AND
-D either intended the words to cast doubt OR should have known that they could |
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Term
| In a business disparagement claim is it necessary that P's economic interest be specifically identified? |
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Definition
| -No, but one must reasonably understand that the statement refers to the P |
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Term
| Who bears the burden of proof in a business disparagement claim? |
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Definition
| -Plaintiff must prove the statement is false |
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Term
| Courts will protect opinions in business disparagement claims. What is an opinion? |
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Definition
Courts consider:
-precision of language
-verifiability
-context
-type of writing
BUT false statements of objective fact cannot be "rephrased" as opinion |
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Term
| In a business disparagement claim, when does the D act with malice? |
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Definition
-Knows the statement is false
-Acts with reckless disregard at to the truth or falsity of the statement
-Acts with ill will; or
-Intends to interfere with P's economic interest |
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Term
| What are the two types of privilege in a business disparagement claim? |
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Definition
-Absolute: D's motive don't matter
Types: executive, legislative, judicial
-Qualified: D's motive does matter
Types: true, fair, and impartial news media of official, legislative, and judicial proceedings/ broadcast media exercised with "due care" |
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Term
| What are the damages for business disparagement claims? |
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Definition
-Special damages: pecuniary losses that have been realized or liquidated
-Punitive damages |
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Term
| Can you recover attorney's fees in a business disparagement claim? |
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Definition
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Term
| What are the two types of fraud? |
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Definition
-Simple (misrepresentation and inducement)
-Nondisclosure |
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Term
| What are the elements of simple fraud? |
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Definition
-D made a false representation
-Representation was material
-Knew the statement was false, OR acted recklessly as to its truth
-Intended that the P act
-P did act on statement
-Damages |
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Term
| In a fraud claim, are false statements of opinion actionable? |
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Definition
| -Yes, if the D knows the statement is false, if its is buttressed by false statements of fact, or if it is bolstered by special knowledge |
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Term
| What are the elements of nondisclosure? |
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Definition
-D concealed or failed to disclose certain facts to P
-D had a duty to disclose
-D knew the P was ignorant, and had no opportunity to discover
-D intended to induce P to act
-Reliance and Damages |
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Term
| In a nondisclosure claim, when is there a duty to disclose? |
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Definition
-A fiduciary or other special relationship
-D discovered new info that made an earlier representation misleading or untrue; or
-D created a false impression by making a partial disclosure |
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Term
| What are the damages for nondisclosure? |
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Definition
-Economic injury
-Personal property repair costs; and
-Personal injury
-Punitive damages
-Equitable remedies |
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Term
| Can you recover attorney's fees for a nondisclosure claim? |
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Definition
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Term
| What are the defenses to nondisclosure? |
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Definition
-Limitations
-P's fault of knowledge of the falsity
-Statute of frauds
-Ratification |
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Term
| What are the elements of a trade secret claim? |
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Definition
-P owned a trade secret
-D used OR disclosed the trade secret
+in violation of confidential or contractual relationship with P;
+after acquiring it by improper means; or
+after acquiring it with notice that the disclosure was improper
-Damages |
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Term
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Definition
-Any formula, device, pattern, or compilation of information
-Must have a modicum of originality to separate it from everyday knowledge
-Need not be novel in the sense required by patent laws |
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Term
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Definition
-Abstract ideas
-Generally known methodologies
-General skills
-Accumulations of information in the public domain |
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Term
What factors are used to determine
"secrecy" in a trade secrets claim? |
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Definition
-Information known outside business
-Employees' knowledge of information
-Measures taken to ensure secrecy
-Value of information
-Cost to develop information
-Level of difficulty to duplicate |
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Term
| What do "use" and "disclosure" mean in the context of a trade secrets claim? |
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Definition
-"Use" means commercial use-use by which a party seeks to profit
-"Disclosure" means making something known or public |
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Term
| What are the damages in a trade secret claim? |
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Definition
-Value lost by P
-Value gained by D
-Punitive damages
-Injunctive relief |
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Term
| What are the defenses to a trade secret claim? |
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Definition
-Limitations
-Privilege
-Preemption by Copyright Act
-Independent discovery or reverse engineering
-Unclean hands |
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Term
| What are the three federal antitrust laws? |
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Definition
-Sherman Act
-Clayton Act
-Federal Trade Commission Act |
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Term
| What are the two relevant sections of the Sherman Act? |
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Definition
-Section 1: outlaws all contracts, combinations, and conspiracies that unreasonably restrain interstate trade
-Section 2: makes it a crime to monopolize or attempt to monopolize any part of interstate commerce |
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Term
| What are the two types of conduct under Section 1 of the Sherman Act? |
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Definition
-Highly likely to affect commerce (per se illegal)
-Might affect commerce (subject to the "rule of reason") |
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Term
| What are the elements of monopolization? |
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Definition
-D must possess monopoly power in relevant market
-D obtained or maintained that power through conduct deemed unlawfully exclusionary, BUT conduct that has valid business justifications is not unlawfully exclusionary |
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Term
| How does one attempt to monopolize? |
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Definition
-Specific intent to control prices or eliminate competition
-Predatory or anticompetitive conduct direct at accomplishing this unlawful purpose; and
-A dangerous probability of success |
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Term
| What are the penalties under the Sherman Act? |
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Definition
-Allows for both criminal and civil enforcement
-Individuals can be fine up to $350,000 and sentenced up to three years
-Corporations can be fined up to $10 million |
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Term
| What are the relevant sections of the Clayton Act? |
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Definition
Limits conduct that substantially affects competition
-Price discrimination
-Exclusive dealing and tying
-Mergers and acquisitions
-Serving as a director of competing corporations |
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Term
| What does the FTC Act say? |
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Definition
FTC may:
-prevent unfair methods of competition and unfair deceptive acts
-seek monetary redress and other relief for conduct injurious to consumers
-prescribe trade regulation rules
-conduct investigations relating to commerce
-make reports and legislative recommendations |
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Term
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Definition
-Texas Free Enterprise and Antitrust Act: analogous to Sherman
-Texas Deceptive Trade Practices Act: analogous to the FTC Act |
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Term
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Definition
Rule 26(b)(1)
-Can discover any nonprivileged matter that is relevant to any party's claim or defense
-For good cause, the court may order discovery of any matter relevant to the subject matter involved
-Test is not whether the information sought will be admissible, but whether the discovery will lead to additional evidence, some of which may be admissible |
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Term
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Definition
Rule 26(b)(2)
-Can't be unreasonably cumulative or duplicative, or be obtained from a more convenient, less burdensome, or less expensive source
-Can't wait too long
-The burden or expense of production can't outweigh its likely benefit |
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Term
| Rules on Initial Discovery |
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Definition
Parties must disclose without the other party asking:
-Names, addresses, and telephone numbers of any people likely to have information that you may use to support your claims or defenses
-Documents and tangible things in you possession that you may use to support claims and defenses
-Computation of damages
-Insurance policies |
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Term
| When must you provide initial disclosures? |
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Definition
-14 days after the Rule 26(f) conference
-26(f) requires the parties to meet and confer at least 21 days prior to the court's first scheduling conference |
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Term
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Definition
-Limited to 25 (but can get leave to serve more)
-Responding party must object or answer within 30 days
-Same effect as testimony |
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Term
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Definition
-Can be served on parties and non-parties
-Unlimited in number
-Must describe with reasonable particularity the item or category of items sought
-30 days to object and respond |
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Term
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Definition
-Unlimited in number
-30 days to object and respond
-Admission can be withdrawn or amended upon motion |
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Term
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Definition
-Can direct a deposition notice to an entity and identify areas for examination. They must then designate witnesses to testify
-Can request that documents be brought to deposition |
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Term
| Number and Length of Depositions |
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Definition
-Can't take more than 10
-Can't take a single witness's deposition more than once
-Can't last longer than one day of 7 hours |
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Term
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Definition
-Extent to which request is specifically tailored
-Availability from other sources
-Cost of production v. amount in dispute
-Cost of production v. parties' resources
-Ability of parties to control costs
-Importance of issues in case
-Benefits to parties in obtaining the info |
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Term
| What happens when a party inadvertently produces privileged or trial preparation material? |
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Definition
-Upon notice, the receiving party must return, sequester, or destroy the material
-The receiving party must take reasonable steps to retrieve information already disclosed to third parties
-Rule doesn't address whether the privilege has been waived or forfeited |
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Term
| How do you minimize the risk of waiver of privilege? |
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Definition
Two types of agreements:
- Clawback: production without intent to waive privilege does not waive
-Quick peek: produce materials for initial examination; receiving party designates what it actually wants produced and producing party then screens for privilege |
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Term
| What happens if a party does not comply with judge's discovery order? |
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Definition
Court may issue further orders, including:
-Deeming as established matters covered by the discovery
-Prohibiting the party from making arguments
-Striking pleadings/entering default judgment
-Staying or dismissing the proceedings; and
-Monetary sanctions |
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Term
| What does the court look at when determining whether an arbitration clause is unconscionable? |
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Definition
-Atmosphere in which contract was made
-Alternatives available to the parties at the time
-Parties' bargaining power; and
-Ultimate fairness of the contract |
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Term
| What are the two questions when looking at unconscionability?- |
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Definition
-Procedure: How did the parties arrive at the terms in controversy?
-Substance: were there legitimate commercial reasons justifying the terms of arbitration? |
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Term
| Procedural Unconscionability |
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Definition
-Focus is on assent and the facts surrounding the bargaining process
-Party must have a reasonable opportunity to discover clause's existence |
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Term
| Substantive Unconscionability |
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Definition
-Focuses on the fairness of the resulting agreement
Factors
-Provides for neutral arbitrators
-Provides fro more than minimal discovery
-Requires a written award
-Provides for all the types of relief that would otherwise be available in court; and
-Division of costs |
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