Ramirez EM634 Midterm Exam
Question 1: The arbitration clause contained in the case brought in this question is broad. In other
words, it did not contain limits as to which type of dispute would be resolved through arbitration, nor
did it contain any exceptions. The Federal Arbitration Act favors the use of arbitration when possible
(Clarkson, Miller, Cross 43)1. After the contractor alleged that the contract was fraudulent and
unenforceable, the corporation filed a motion to compel arbitration. The motion submitted by the
contractor to declare that arbitration was not required would have been dismissed by the court. That is,
because arbitration clauses are severable from contracts, as decided in the Buckeye Check Cashing Inc v.
Cardegna case2. So, even if the contract terms could have been declared invalid, the arbitration clause
would have not.
The court will refuse to enforce an arbitration clause sometimes. The refusal would happen when one of
the parties is clearly favored by the arbitration process or rules. It would also be refused if the issue
being disputed was clearly excluded from arbitration in the arbitration clause. An arbitrated case can be
appealed if it can be proven that the arbitrator had a conflict of interest, thus rendering his or her
decision invalid. The book speaks of setting aside the award conceded by the arbitrator when his
decision “substantially prejudiced the rights of one of the parties, if the award violates an established
public policy, or if the arbitrator exceeded his powers” (Clarkson, Miller, Cross 42)
Consumer contracts such as the ones used by banks and cell phone companies contain arbitration
clauses that have been challenged as being unconscionable. That means contracts that are unjust and
clearly favor one of the sides if a dispute were to arise. In the Muhammad v. County Bank of Rehoboth
Beach, Delaware3, the court decided that a clause that forbade class action or class arbitration was
unconscionable. But even with this decision, the remaining parts of the arbitration clause prevailed.
This means that it is practically impossible to overturn an arbitration clause in its entirety, even if it a
consumer contract, which is characterized by its adhesion. As described in the book, adhesion contracts
are “take-it-or-leave-it” (Clarkson, Miller, Cross 284). In these contracts, consumers meet the provider’s
terms or simply do not receive the service.
Question 2: The release of the product can be recommended only if the misdirection that the sales force
made is corrected by informing the debugging status of the product and taking the appropriate
measures to protect the data being recorded. If the school is implementing a new system, a previously
existing one is in place. When a new system is being implemented, there is a period in which both can
run in parallel. That would take into consideration the learning period of the people using the new
system. Also, if any mistakes are made as a result of the learning period, a backup must have been in
place. The technical leader classified the bugs as minor. As with any product, improvements are made
during the life of the product. Debugging is part of a product’s lifecycle.
1
Clarkson, Kenneth W., Roger LeRoy Miller, and Frank B. Cross. "The Legal Environment of Business." Business law:
text and cases : legal, ethical, global, and corporate environment. 12th ed. Mason, OH: South-Western Cengage
Learning, 2012. 41-46. Print.
2
BUCKEYE CHECK CASHING, INC. v. CARDEGNA, 56 U.S. 440, 126 S. Ct. 1204, 163 L.Ed.2d 1038 (2006).
3
Muhammad v. County Bank of Rehoboth Beach, Delaware. 379 N.J. Super. 222, 877 A.2d 340 (App. Div. 2005).
Ramirez EM634 Midterm Exam
The competitor might be in the exact same status, debugging their product, so as long as appropriate
measures are taken to honestly inform the developmental state of the product, it can be released. Let us
consider that the decision in favor of our product was not necessarily taken because it was first to
market. There might have been other factors that led the directors to decide in favor of the product.
Being properly informed of the product’s status would make sure that that was the case.
The stakeholders involved in this problem are the students, teachers, employees and shareholders. In
the scenario in which bugs resulted to be minor and no data was lost, all parties would result benefited.
The school would have implemented the system they paid for and the company would have profited
from it.
For the scenario in which bugs resulted in catastrophic data loss, but a backup system was in place,
teachers and students would be most affected. After the bug was corrected, teachers would have to
restore all student information into the system by using the backup that was in place. Students would
also be affected by having longer lead times (e.g. into receiving their grades or being taken care of their
special needs). The company’s image would also be affected, but not to the extent it would have if no
backup was in place.
In the worst case scenario, in which bugs resulted in catastrophic data loss and no backup system was in
place, all parties would be adversely affected, because teachers would have lost all student records and
the company would be liable for the loss of information.
As owner of the company I would have a greater obligation towards the employees. Following Kantian
reasoning, the end of producing profit, would not justify the means, by misleading a group of people
into thinking that there was no probability of failure in the product. Nor would it justify the sales force
leading them to believe that it was in a different developmental state. Aligned with benefiting my
employees, I would have approached the problem a bit differently. I would not hide potential problems,
but present them as product lifecycle characteristics. Establishing a redundant system during the
debugging period (product + manual notes) would be mandatory in this case. The method would be
presented as a process the school will benefit from, by receiving a higher quality product in the end.
Question 3: We are going to assume that in each of the cases the companies employ fifteen or more
employees for Title VII to apply (Clarkson, Miller, Cross 681)4. Title VII clearly states that “it shall be an
unlawful employment practice for an employer…to limit, segregate or classify his employees in any way
that would…adversely affect status because of race, color, religion, sex or national origin.”5
If a co-worker occasionally teases a Muslim employee about her hijab, and she is clearly offended by it
and asks for the conduct to stop, this employee is being harassed due to a practice related to her
religion. Under the Ellerth/Faragher Affirmative Defense, the employer would be liable for the harassing
co-worker’s conduct. The reason for the liability is that the company did not have a harassment
4
Clarkson, Kenneth W., Roger LeRoy Miller, and Frank B. Cross. "AGENCY AND EMPLOYMENT." Business law: text
and cases : legal, ethical, global, and corporate environment. 12th ed. Mason, OH: South-Western Cengage
Learning, 2012. 681-700. Print.
5
42 U.S.C. SEC. 2000e-2
Ramirez EM634 Midterm Exam
reporting process in place. The employee could bring suit against the employer and would prevail in the
court of law. Though the employer might have not been aware of the harassment, he did not meet one
of the two elements required for the defense, which is to have a proper harassment policy implemented
(Clarkson, Miller, Cross 686).
For the second case, if a manager begins to constantly criticize a subordinate for wearing the hijab and
moves her to a lower-paying back office position, that action could be considered as a constructive
discharge. That is, because as stated in the book, the manager would have created “working conditions
that could be considered intolerable, so that the employee would feel compelled to quit” (Clarkson,
Miller, Cross 684). The demotion would have also been classified as a tangible employment action from
the manager, which is defined as “significant change in employment status or benefits, such as when an
employee is…., demoted.” (Clarkson, Miller, Cross 685). But if the manager also physically assaults her,
removing a piece of clothing, tearing it apart and knocking her to the ground, that is not only
harassment, there is physical aggression. In such case, the company would be liable for the
discriminatory conduct of the manager and the manager would be criminally liable for assaulting
another employee. Title 2C of the New Jersey Criminal Code of Criminal Justice classifies the conducts
that a person would need to incur to be guilty of Simple Assault6. In this case the manager incurs in
assault by, as stated in the code, “Attempting to cause or purposely, knowingly or recklessly causing
bodily injury to another”. I am sure immediate termination of the manager can be called upon such
action.
In the third case, a Jewish man is being discriminated for his physical appearance. His physical
appearance is directly linked to his religion, being of a particular denomination of Jewish that do not
shave their beards in commitment to the Torah. The employer’s reasons for requiring grooming seem to
be only for appearance, and not for any particular safety reason. The option provided to the employee
can be considered as a demotion because it forced him to a lower paying position with no contact with
the public. In this sense, it can be said that the employee received a less favorable treatment for being
Jewish and the employer was indirectly forcing the employee to act against his religious belief.7
(Clarkson, Miller, Cross 683)
Under the disparate-treatment discrimination, the Jewish employee could prove that 1.) he is a member
of a protected class (based on his religion). 2.) He was qualified for the job (driving is not affected in any
way by having long beards) 3.) he was clearly rejected by the employer to perform functions as a driver
4.) the employer continued to seek applicants for the position or filled the position with a person not in
a protected class. (the last one (4) is not clearly specified in the problem in order to fully meet the prima
facie case.) Under the disparate-impact discrimination, any Jewish that did not shave would have been
discriminated for that position, so that protected class is being discriminated. The employer would be
liable under Title VII.
6
N.J.S.A § 2C:12-1 (1)
Clarkson, Kenneth W., Roger LeRoy Miller, and Frank B. Cross. "AGENCY AND EMPLOYMENT." Business law: text
and cases : legal, ethical, global, and corporate environment. 12th ed. Mason, OH: South-Western Cengage
Learning, 2012. 681-700. Print.
7
Ramirez EM634 Midterm Exam
In the next example, a company may allow prayer groups requested by employees. The company’s
management may even establish the prayer groups. What the company cannot do is to require
employees that want to be excused from participating to participate. I would also think that if a group of
people from a specific religion requests that reasonable accommodation be given to them to perform
their prayers as a group, it would be the same as if it were allowed to an individual. As long as the prayer
group is not given favorable treatment when compared to other groups that request the same type of
accommodation. Under Title VII of the Civil Rights act of 1964 that type of favoritism is not allowed. The
Equal Employment Opportunity Commission (EEOC) publishes a Compliance Manual under which
information related to Religious Discrimination can be found. Section 12-IV contains information
focused on Reasonable Accommodation.
On one hand reasonable accommodation is established to allow the employee comply with his or her
religious beliefs. On the other hand, if the expressions resulting from the accommodation interfere or
disrupt the work of other employees, then, the expressions could be causing undue hardship and even
be considered as harassment8.
Section 12-IV C-6 of the EEOC Compliance Manual provides examples related to “Permitting Prayer,
Proselytizing, and Other Forms of Religious Expression77”9. In the last example, when an employee post
posters, bible quotes or other religious slogans, the employer can allow the expressions as long as they
do not constitute religious harassment towards other co-workers. The determination to allow or ban the
expressions should be made on a case-by-case basis, based on the effects that such expressions have on
the co-workers and the extent to which they interfere with normal business operations.
Question 4: There are several issues implied in the presented problem. One of the most important
would be, if the patent submitted by Boneman and for which rights were transferred to WRT is legal. It
is said that sometime between 2003 and March 2005 both, Boneman and Mr. Richard L. Roberts drew
on a napkin the initial design of the modification. The invention was implemented for the first time in
March 2005, after a power outage. The time at which the napkin drawing was made is unknown and for
that reason we consider that the implementation date is the “first-use” date. During November of that
same year, WRT was formed with the purpose to seek patent protection for Boneman’s inventions. On
February of 2006, the patent for the modification was filed, one month short of the possibility to
forfeiting patent rights due to missing the one year period allowable to file a patent after it is first used10
(Clarkson, Miller, Cross 158). The follow up question would be, was Mr. Richard L. Roberts included as
one of the authors of the patent? I would assume not, because it is posed that only Boneman assigned
patent rights to WRT. As Mr. Roberts and Boneman were the ones that drew the napkin, they would
both be the authors of the invention, not only Boneman. As part of the filing process Boneman declared
that he was the only inventor, thus lying in the process by not recognizing Mr. Roberts as one of the
inventors too. A possible suit would be a claim from Mr. Roberts demanding the patent to be
8
EEOC Compliance Manual http://www.eeoc.gov/policy/docs/religion.html#_Toc203359512
EEOC Compliance Manual http://www.eeoc.gov/policy/docs/religion.html#_Toc203359539
10
Clarkson, Kenneth W., Roger LeRoy Miller, and Frank B. Cross. "Torts and Crimes" Business law: text and cases :
legal, ethical, global, and corporate environment. 12th ed. Mason, OH: South-Western Cengage Learning, 2012.
151-173. Print.
9
Ramirez EM634 Midterm Exam
invalidated because he was not included as one of the authors of the patent. In that case the difficulty
for Mr. Robert’s case would be to present a napkin as evidence in the court.
Another issue that is posed would be that, if by assuming all costs associated with the installation and
testing of the press modifications, Colorpress would be entitled to be assigned the patent. Colorpress
also paid for materials and working drawings created for the modifications. It is not specified if those
same drawings were the ones used in the patent filing process nor if Boneman had signed any contract
agreement yielding patent rights to Colorpress. In the scenario that no contract to the aforementioned
existed, Colorpress would not be entitled to being assigned the patent because Boneman was an
independent contractor and not employed directly by them.
The final issue is that WRT is demanding Colorpress for patent infringement. The suit is triggered
because Colorpress did not concede the contract to installing the patented modification. Colorpress
could counteract explaining that due bidding process was followed and that WRT’s action is in
retaliation for not having been awarded the contract. Colorpress would also have in its hands the
previously mentioned arguments that would undermine the validity of the patent because not all
authors were recognized.
Question 5: In this situation an administrative agency has emitted an opinion that has resulted in the
termination of benefits for Evans. Administrative agencies are sources of expertise that otherwise would
be required at courts. For that reason the decision taken by an administrative agency cannot be easily
questioned. Evans is challenging the decision to terminate her benefits, alleging that she is also disabled
for another reason, a car accident. She hires highly recognized doctors that recognize her as being
disabled, but doctors used by the administrative agency no longer recognize her disability due to
rheumatoid arthritis nor her new pledge of being disabled due to a car accident. This problem presents
conflicting medical opinions. On one hand, Evans could argue that her prestigious doctors would not
emit an opinion that they know could easily be questioned. She could also say that the administrative
agency doctors are biased towards the agency. The administrative agency could say the same about
Evans’ doctors and that the agency doctors have the expertise required because they see those cases on
a regular basis. In light of the previous debate, the issue posed is of conflicting medical opinions. Would
this conflict be a good enough reason for the appellate court to enter into a merits discussion of the
case? Given that specialized doctors of the agency see these kinds of cases on a regular basis I would
argue they are not. I the Richardson v. Perales case it is said that when there is conflicting medical
opinion, “The Trier of fact has the duty to resolve the conflict.”11 In other words, the Trier, being the
administrative agency, had the duty to resolve the conflict and so they did.
11
Richardson v. Perales 402 U.S. 389 (1971)
Ramirez EM634 Midterm Exam
In 2008 amendments to the ADA reversed decisions that allowed employers to consider medications in
determining if an individual is disabled.12 (Clarkson, Miller, Cross 692) We might ask if in light of these
amendments Evans would be enabled to request her disability benefits to be reinstated.
Question 6: If Evans can perform essential job functions, the employer would have to reasonably
accommodate her request to flexible working hours (Clarkson, Miller, Cross 693). If the employer does
not want to provide the reasonable accommodation he would have to prove that accommodations
would result in undue hardship (Clarkson, Miller, Cross 694), that is, a request that is too hard or
expensive for the employer to meet. Evans’ request does not seem to fall into the undue hardship
category. She has requested flexible working hours that would allow her to work only ¾ of the full time
(30 hours), but has also requested her salary to be ¾ of the full salary. If for example, she requested to
maintain her full salary by working after 5pm until 7pm to complete the ¼ of the time owed, and nobody
else stayed in the office after 5pm, there might be an undue hardship. That is because the employer
might argue that the costs of maintaining the building open for 1 person might not justify the
accommodation.
Question 7: Trademark dilution happens when marks are created to disguise them as other, more
recognized marks. The lesser known mark is created to deceive customers into thinking that the mark is
the recognized one13 (Clarkson, Miller, Cross 153). The prestige and recognition that the know marks
bears is diluted by the lesser known mark when customers realize that they have been deceived into
thinking they bought something else.
In this case, a product is being marketed as the “true Pycnogenol” by a company other than Pine
Research Ltd. The product is not related to nor is it made from the bark of a French pine tree, it is
derived from grapefruits. Customers clearly think the product is the Pycnogenol registered by Pine
Research Ltd in 1993, which came from Professor Masquelier’s antioxidant research. For that same
reason, after having purchased the product and possibly noting differences, some customers called Pine
Research Ltd. to confirm if the product was theirs. Others also called Pine prior to buying the product.
Because of those calls Pine Research Ltd. became aware that Larry Garcia slightly changed the
Pycnogenol mark by adding the text “the true” in front of Pycnogenol and even used the Masquelier
name in “Masquelier’s Original OPC”, in order to deceive customers into thinking that they were buying
Pycnogenol, the antioxidant that came from the bark of the French pine tree. Customers clearly thought
Masquelier’s Original OPC was Pycnogenol. When they realized that it was not, that fact would have
brought skepticism into their minds about any product marketed as Pycnogenol. The dilution of the
mark would have been confirmed by their reaction.
12
Clarkson, Kenneth W., Roger LeRoy Miller, and Frank B. Cross. "AGENCY AND EMPLOYMENT." Business law: text
and cases : legal, ethical, global, and corporate environment. 12th ed. Mason, OH: South-Western Cengage
Learning, 2012. 681-700. Print.
13
Clarkson, Kenneth W., Roger LeRoy Miller, and Frank B. Cross. "Torts and Crimes" Business law: text and cases :
legal, ethical, global, and corporate environment. 12th ed. Mason, OH: South-Western Cengage Learning, 2012.
151-173. Print.
Ramirez EM634 Midterm Exam
Moreover, dilution of the mark would be proved in court of law for the use of “the true Pycnogenol”
rather than by the use of “Masquelier’s Original OPC.” But the combination of both names into
marketing the product could certainly be used in favor o proving the point that Larry Garcia was diluting
the registered trademark Pycnogenol.
In terms of the use of Meta tags, trademarks are not allowed to be used without the owner’s
permission14 (Clarkson, Miller, Cross 157). Larry Garcia would be liable for trademark infringement for
the use of Pycnogenol in the Meta tags that directed traffic into his website. The book expresses that
“trademark dilution occurs when the trademark is used, without authorization, in a way that diminishes
the distinctive quality of the mark.” (Clarkson, Miller, Cross 153) Applying that to this problem, the use of
Pycnogenol as meta tag was not authorized by the owner, Pine Research Ltd. and was diminishing the
distinctive quality Pycnogenol.
Question 8: To be sure that Healthy Harvest Company is not hiring an undocumented worker, they must
request the employee to complete the I-9 form which is the Employment Eligibility Verification. The
employees would need to provide U.S. passport, permanent resident card or Alien Registration Receipt
(I-551). This information must be provided within three days of being employed15 (Clarkson, Miller, Cross
672).
Healthy Harvest Company can hire a non-citizen for its temporary work, by hiring a non-immigrant
worker and completing an I-29 form16. The I-29 form is called the Petition for a Non Immigrant Worker.
This form is requested when a prospective employer needs to hire workers that would not be coming to
reside in the U.S., only to work through the special season. Once that period is over, the worker would
have to return to his or her country. The visas that the employer would need to request, depends on
the kind of work needed. If the seasonal work Healthy Harvest Company requires is agricultural, then
they would need to complete the H-2A17 Temporary Visa for Agricultural Worker. On the other hand if
the work was not agricultural, they would need to complete the H-2B Temporary Visa for NonAgricultural Worker, both of which do not have minimum education restrictions.
Healthy Harvest Company can also hire a skilled worker with specialized skills using an H-1B Visa. The
employee would need to qualify under a “specialty occupation”.(Clarkson, Miller, Cross 673). Prior to
filing for the H-1B Visa, the employer would need to obtain a Labor Certification application. As stated
in the book: “it must file a Labor Certification application on a form known as ETA 9035. The employer must agree
to provide a wage level at least equal to the wages offered to other individuals with similar experience and
qualifications, and must attest that the hiring will not adversely affect other workers similarly employed”
14
Clarkson, Kenneth W., Roger LeRoy Miller, and Frank B. Cross. "Torts and Crimes" Business law: text and cases :
legal, ethical, global, and corporate environment. 12th ed. Mason, OH: South-Western Cengage Learning, 2012.
151-173. Print.
15
Clarkson, Kenneth W., Roger LeRoy Miller, and Frank B. Cross. "AGENCY AND EMPLOYMENT." Business law: text
and cases : legal, ethical, global, and corporate environment. 12th ed. Mason, OH: South-Western Cengage
Learning, 2012. 681-700. Print.
16
8 U.S.C § 1101
17
8 U.S.C §1184 and 1188
Ramirez EM634 Midterm Exam
Question 9: In determining if copyright infringement has happened, each situation can be analyzed
under the “fair-use” doctrine, which is stated in the Section 107 of the Copyright Act. (Clarkson, Miller,
Cross 163).
1. If Maruta photocopies ten pages from a scholarly journal relating to a topic on which she is
writing a term paper, that would not be classified as infringement, because the copy was for
nonprofit educational purposes. The copy was of a portion of the journal and the effect that
such copy would have on the market or value of the copyrighted work would not be
detrimental.
2. The advertisement of handbags as “Vutton handbags”, hopping that customers might
mistakenly assume that they were made by “Vuitton” is a Trademark infringement, rather than
a copyright infringement. I would classify Maruta’s action as Trademark Dilution. Works
protected by copyright are “books, records, films, artworks, architectural plans, menus, music
videos, product packaging and computer software”. Unless a handbag can be classified as an
artwork, it is not a copyright infringement.
3. Maruta is profiting from pirated DVDs by renting and selling the copies she made from the
original ones. By renting and selling pirated DVDs, the licensed distributors are losing profit, thus
the market value of the copyrighted work is being adversely affected. Maruta is infringing
copyright with her practice.
4. Maruta’s use of the videos is for educational purposes and the “effect of the use upon the
potential market for or value of the copyrighted work”18is not detrimental on the market for or
the value of the work. The copy would and subsequent reproduction in the classroom of the
videos would fall under the “fair use” exception.
5. BONUS: In this situation, Childs has participated in a contest with a design which Maruta claims
to be hers. The textbook states that for Copyright Infringement to happen, “the expression does
not have to be exactly the same as the original…If a substantial part of the original is
reproduced, the copyright has been infringed”19 (Clarkson, Miller, Cross 163). “Maruta 99” is
described as having “two straight, parallel, roughly triangular sides, connected by two twisting
facades, resulting in a tower whose top is in the shape of a parallelogram.” Child’s design
contained “two straight, parallel, roughly triangular facades on opposite sides, with two twisting
facades joining them.” We can observe that textual descriptions of the designs are similar.
Maruta also claims that the structural grid is identical to the one presented in the Olympic
Tower. Maruta can clearly establish that Childs had seen her design because he even
complimented her on it. By presenting both designs side by side and establishing Childs’
exposure to her design prior to submitting his, Maruta can potentially prove Copyright
Infringement.
On the other hand, Childs could argue that the elements contained in Maruta’s design could be
found in other buildings. After having established the first point, he could also argue that with
18
Section 107 Copyright Act
Clarkson, Kenneth W., Roger LeRoy Miller, and Frank B. Cross. "Torts and Crimes" Business law: text and cases :
legal, ethical, global, and corporate environment. 12th ed. Mason, OH: South-Western Cengage Learning, 2012.
151-173. Print.
19
Ramirez EM634 Midterm Exam
that to support such structure with current technology, a structural grid such as the one
presented in the design would be the obvious choice.
Unless Childs can prove that he had conceived a design such as the one he presented for the
competition prior to having seen Maruta’s, it is my opinion that Maruta would prevail in the
court of law.