Business Torts - Syllabus evolving Spring 2012 updated April 4, 2012
Mondays 2:00 - 3:50 Room 215
Mondays 2:00 - 3:50 Room 215
Prof. George Conk
Adjunct Professor of Law & Senior Fellow
Stein Center for Law & Ethics
gconk@law.fordham.edu
Room 409 (by appointment)
Note that some material will be on pages (right hand side) and some will be in blog posts. As I refine and develop the syllabus or as there are new developments I will update the syllabus page or the topic page - or do a post on Torts Today. I suggest you select the RSS feed so that you get notice of new posts.
Generally I will post on TWEN edited cases (some of them selected and excerpted by Prof. Jay Feinman, Rutgers-Camden whose course design I am loosely tracking and from whose excellent editing we will benefit).
The assignments for the first two weeks are on TWEN. The edited versions of the introductory cases and the Bustamonte problem are by Prof. Feinman).
Weeks 3, 4 & 5 we will discuss the BP Gulf of Mexico oil spill. Those materials are on Torts Today.
Week 6 we will discuss the SEC enforcement action against Citigroup - the settlement of which Judge Rakoff refused to approve.
Weeks 7 & 8 we will look at third party claims against auditors for negligence and against lawyers and auditors for aiding and abetting fraud. That material is on Torts Today.
The bulk of the rest of the semester we will focus on unfair competition - particularly trademark infringement.
If we stay on track the final class will look at malpractice claims against lawyers.
- GWC
Week 1
Introduction
Bustamonte Problem (JF)
Channel Master v. Aluminum Limited Sales 4 NY 2d 403 (1958)
Imperial Ice Co. V. Rossier, 18 Cal. 2d 33 (1941)
Doliner v. Brown, 21 Mass. App. Ct. 692 (1986)
Ely-Norris Safe Co. V. Mosler Safe Co. 7 F. 2d 603 (2d Cir. 1925)
Mosler Safe Co. V. Ely Norris Safe Co., 273 U.S. 132 (1927)
Week II
The Economic Loss Rule
3rd Restatement - Liability for Economic Harm
Unintentional Infliction of Economic Loss - draft black letter, Council draft 1.1
3rd Restatement - Liability for Economic Harm
Unintentional Infliction of Economic Loss - draft black letter, Council draft 1.1
Alloway v. General Marine Industries, 149 N.J. 620 (1997)
People Express Airlines, Inc. V. Consolidated Rail Corp., 100 N.J. 246 (1985)
Air Products and Chemicals, Inc. V. Eaton metal Products Co., 256 F.Supp. 329 (E.D. Pa. 2003)
Southwestern Bell Tel. V. Delanney, 809 S.W. 2d 493 (TX 1991)
DCR, Inc. V. Peak Alarm 663 P. 2d 433 (UT 1983)
Week III & IV
Limits of recovery of economic loss in tort: the BP Deepwater Horizon Oil Spill
see BP Deepwater Oil Spill page on Torts Today.
Read:
Oil Pollution Act of 1990 - (OPA) key provisions
Memorandum by Prof. John Goldberg to Kenneth Feinberg (BP page)
The current moment: Jurist
GCCF - draft Final Rule - proposed methodology - November 10, 2010
Public comment by BP
Supplemental Comments by BP, July 7, 2011
GCCF - Modification to Final Claims Methodology August 16, 2011
GCCF - Second Modification to Final Claims Methodology - November 30, 2011
GCCF - Payment Options, Eligibility and Substantiation Criteria, and Final Payment Methodology February 18, 2012
Recommended:
Mississippi College of Law symposium: Beyond the Horizon: The Gulf Oil Spill Crisis The MCL symposium articles below can be found at the link above.
David W. Robertson, THE OIL POLLUTION ACT'S PROVISIONS ON DAMAGES FOR ECONOMIC LOSS, 30 Miss. C.L. Rev. 157 (2011)
OPA AND ECONOMIC LOSS: A REPLY TO PROFESSOR ROBERTSON, John C.P. Goldberg, 30 Miss. C. L.Rev. 203 (1911)
David W. Robertson, OPA AND ECONOMIC LOSS: A RESPONSE TO PROFESSOR GOLDBERG, 30 Miss. C.L. Rev. 217 (2011)
Week V
BP's liability , continued
Regulation, global settlement and judicial management
(see BP page)
Conk - Diving Into the Wreck (17 Roger Williams University L. Rev. 2012)
Sherman - BP Oil Spill and Evolving Supervision of Multidistrict litigation Judges, 35 Mississippi College Law Review 237 (2011)
Judge Carl Barbier - counsel fees holdback order December 28, 2011
from the GCCF website:
Regulation, global settlement and judicial management
(see BP page)
Conk - Diving Into the Wreck (17 Roger Williams University L. Rev. 2012)
Sherman - BP Oil Spill and Evolving Supervision of Multidistrict litigation Judges, 35 Mississippi College Law Review 237 (2011)
Judge Carl Barbier - counsel fees holdback order December 28, 2011
from the GCCF website:
Week VI
Fraudulent Interstate Transactions - Investment Bankers
SEC - Citigroup proposed settlement of enforcement action
Fraudulent Interstate Transactions (Sections 17(a)(2) and (3) Securities Act of 1933) 15 U.S.C. 77q
SEC v. Citigroup Global Markets complaint and memorandum in support of proposed settlement
Judge Rakoff's 10/27/11 Order and questions posed for hearing on SEC-Citigroup proposed settlement
Judge Rakoff's rejection of SEC settlement with Citigroup 1:11-cv-07387-JSR
SEC response to Rakoff rejection of settlement
Kevin LaCroix (D&O) Diary) - commentary on Rakoff's ruling10/28/2011SEC v. Brian H. Stoker complaint
SEC settlement announcement - and related documents
SEC statement and Notice of Appeal, 12/15/11
Rakoff Order denying request for a stay.
Prof. Peter Henning (Dealbook) commentary on SEC - Citigroup settlement rejection
for background information and further developments, see TortsToday SEC v. Citigroup page
SEC v. Citigroup Global Markets complaint and memorandum in support of proposed settlement
Judge Rakoff's 10/27/11 Order and questions posed for hearing on SEC-Citigroup proposed settlement
Judge Rakoff's rejection of SEC settlement with Citigroup 1:11-cv-07387-JSR
SEC response to Rakoff rejection of settlement
Kevin LaCroix (D&O) Diary) - commentary on Rakoff's ruling10/28/2011SEC v. Brian H. Stoker complaint
SEC settlement announcement - and related documents
SEC statement and Notice of Appeal, 12/15/11
Rakoff Order denying request for a stay.
Prof. Peter Henning (Dealbook) commentary on SEC - Citigroup settlement rejection
for background information and further developments, see TortsToday SEC v. Citigroup page
Week VII
Third Party Liability - Auditors
Restatement Torts, 2d Sec. 552 Information Negligently Supplied for the Guidance of Others
Restatement Torts, 2d, Sec. 874, Breach of fiduciary duty
Restatement, 3rd - Agency - excerpts
Restatement Torts, 2d Sec. 552 Information Negligently Supplied for the Guidance of Others
Restatement Torts, 2d, Sec. 874, Breach of fiduciary duty
Restatement, 3rd - Agency - excerpts
Restatement 3rd - Law Governing Lawyers § 51 duty to certain nonclients
Ultramares Corp. v. Touche, 255 NY 170, 182-3 (1931)
Credit Alliance v. Arthur Andersen & Co., 65 N.Y.2d 536 (1985)
Accountant Liability Act, N.J.S.A. 2A:53A-25
Cast-Art Industries v. KPMG NJ Supreme Court(read the opinion)
Third party liability: Aiding & Abetting/Imputation of Liability for Fraud
Restatement 2d, Torts § 875, 876
N.J.S.A. 49:3-71(a) - Action for Deceit in sale of securities
Cases:
Oster v. Kirschner, 905 N.Y.S.2d 69 (1st Dept. July 6, 2010) (or see Receiver's webpage)
Kirschner/Trustee of Refco Litigation Trust v. KPMG, LLC (15 N.Y.3d 446 2010) (See Receiver's webpage for background)
NCP Litigation Trust v. KPMG, 187 NJ 353 (2006) (TWEN)
In re Refco Securities, 503 F. Supp. 2d 611 (2007) (excerpt from opinion allowing action against Grant Thornton, LLP to proceed) (optional)
Slides/lecture: the 10(b)(5) Securites Fraud Action
March 26
Slides/lecture: the 10(b)(5) Securites Fraud Action
March 26
Legal Malpractice
New Jersey Model Civil Jury Charge 5.51A, 5.51B
NY Pattern Jury Instructions 2:152
Conklin v. Hannoch Weissman, 145 N.J. 395(1996)
Viner v. Sweet, 30 Cal. 4th 1232 (2003)
Restatement of the Law Governing Lawyers, - Lawyers' Civil Liability (excerpts)
Saffer v. Willoughby, 143 N.J. 256 (1996)
April 2
Trademark
Introduction to subject matter
Lanham Act - Statutory Excerpts (See Trademark page)
Restatement of Unfair Competition (ALI, 1995)
black letter rules - subject matter of trademark sections 9 - 17
black letter rules on acquisition and priority, infringement, defenses, remedies §§ 18 - 37Discussion problem: Weber (JF)
April 11
Trademark, cont’d
Acquisition, Registration Infringement
The Lanham Act (1946, as amended) 15 USC 1051, et seq.
Registrable marks
15 U.S.C. 1051
False designation of origin - Dilution
15 U.S.C. 1125
Remedies for infringement
15 U.S.C. 1114 - 1127
Remedies - Profits, damages and costs
15 U.S.C. 1117
9th Circuit Jury Charge Manual - Sections 15.0 - 15.27 - Trademark
(read the instructions - comments optional)
Likelihood of Confusion Factors (Sleekcraft test) 15.16
Strength (Distinctiveness of Mark) 15.17
Zazu Designs v. L'Oreal, USA, 979 F. 2d 499 (7th Cir. 1992)
Zazu Designs v. L'Oreal, USA, 979 F. 2d 499 (7th Cir. 1992)
The App Store Controversy - read blog post and Microsoft objection
April 16
Trademark, cont’d
Restatement: Defenses and Remedies
Problem: Alumet Supply v. Alumet Mfg. (Attorneys fees) (TWEN)
April 23
Misappropriation of Trade Values
International News Service v. Associated Press, 248 U.S. 215 (1918)
Restatement, 3rd, Unfair Competition §§ 38 - 45
Problem: MC (JF)
California Trade Secrets Act
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