Scott Matton

BUSN 85
Professor Marshall Mort
3/18/2022

Business Law Final Exam

Note: All numbers in the Creative Writing cases are put right after where the issue is in the story
to show you what I am trying to do.

Creative Writing #1:

Situation:

Nina Needle (NN) owns an embroidery business called Equal Embroideries (EE). She receives
an order from Aaron Aardvark (AA) who wants 50 shirts stitched with a picture of a tree on the
front left of the chest (1). NN begins the order and halfway through one of her hands gets stuck
in the machine and she is rushed to the hospital. In NN and AA’s agreement the contract stated
that NN would be doing all the stitching as AA liked her style the best out of all the embroiderers
at EE. However, as she is rushing out the door to the hospital, NN tells Sandra Stitcher (SS) to
finish the order. SS finishes the order but her trees look a little different than NN’s. NN continues
to be on injured leave for 2 months as her hand injury was fairly serious (2).

While NN is on leave, she reads a book about gun violence and the problems it causes in
society. She also reads that gun violence is tied to crimes committed earlier in life and that these
small crimes turn into violent offenses later on. Because of this, she creates a policy that no one
who has committed any crime, including misdemeanors can work at EE. Miraculously, no one
who has ever worked at EE has ever committed a misdemeanor. Walter Wampag (WW) wants
to work at EE but 10 years ago he got a ticket for jaywalking and can no longer be considered at
EE. He wants to attack this employment policy for employment discrimination under the
disparate impact theory because he is an American Indian and they get targeted more by cops
because of their background (4).

Assume that at the end of all this the US government notices that Zoroastrians have a much
higher unemployment rate than any other group in the country. To try and help fix this, Law US-1
is created that states:

No one that is not of the Zoroastrian faith can work a trade job (5).

Also assume that to help Zoroastrians get educated, Law US-2 is created that states:

Zoroastrians must complete a college degree and will get aid from the government to pay for
their education. (3)

Explanation and Solution:

In this case, the initial contract between EE and AA is debatable between a common and UCC
contract. However, because it is a service and not a good that is being delivered, this is a UCC
contract and the contract must be completed by NN. However, because NN got injured while
completing the order and was on leave for a while, she entrusted the order to SS. In modern
and old rules this would void the contract. However since this is in California we can look
outside the contract at the context. Any reasonable embroiderer or business-person would have
given this contract to another individual to make sure it got done without delay. It was given to a
competent embroiderer with a different style but the work was still sufficiently close to what AA
wanted so it is ok and AA has to deal with the result.

WW wants to work at EE but has a jaywalking ticket so cannot work due to EE’s new policy.
While this is a facially neutral policy as EE has never employed anyone with a misdemeanor
and it serves a business purpose of trying to reduce violence in the workplace and in general, it
should be able to stand. However, on the last step WW can win because he has a study that
shows American Indians get targeted more for misdemeanors than any other group which
means this has a disparate impact on a group of which he is a part of.

Law US-1 in this instance is discriminatory based on religious belief and therefore should not
stand. It in this case is facially neutral as the US government has a legitimate reason and is
trying to help the Zorastrian people, but it is still discriminatory based on religion so it cannot
stand.

Law US-2 in this instance violates the 10th amendment because the states, not the federal
government regulate education, so they cannot make this decree but the incentive within this
law of aid is still valid as it is only an incentive.

Creative Writing #2:

Billy Bridger’s (BB) dad Andy Anderson (AA) passes along a plot of land when he dies in 1950.
In 1990 BB went to examine the plot for the site of a waterpark that he has been working to get
a permit for since 1970. When he gets there, he finds there is a man with a large farm on the
property (1). While he was trying to get the permits, BB worked for the IRS in HR. While at this
job, BB fired an individual named Jonny James (JJ) under the advice of JJ’s supervisor, Zed
Zebulon (ZZ). ZZ hated JJ and stated he wanted him fired because he was lazy, however ZZ
really wanted JJ fired because JJ was a vegan and wouldn't shut up about it (2). After his stint at
the IRS, his permits for the waterpark finally get approved and he starts an extremely successful
waterpark called Wacky Waves (WW). In 2000 at the peak of its popularity, WW creates a ride
with plastic from a company called Perfect Plastics (PP). This plastic collapses when exposed to
chlorine which is present in the water and causes 3 children to become injured as a result of the
slides collapse. The only reason that this plastic was used was because Donald Defkins (DD)
on the board of WW accepted a bribe for the plastic bid of the new slide (4)(5).

Prior to BB’s life, AA worked as a cop with the LAPD. During this time he arrested a man named
Gerald Grey (GG). GG was boisterous and caused a lot of chaos during his arrest by throwing
bricks at windows on both the cop cars and the business nearby. GG was arrested and it was
only realized at the station his Miranda rights had not been read to him (2).

Explanation and Solution:

In this case initially the rule against perpetuities is in question. Because BB was given this land
in 1950 when AA passed away, he had 21 years to do something with it. Although he went to
check in 1990 when his permits had gotten approved, he had been working on getting them
since 1970, which is within the 21 year limit which puts a blurry line on the rule against
perpetuities. I would say that since he was trying to work with the land before the 21 year mark,
the land should be his and not the farmers. While he was working at the IRS and he fired JJ, the
cat's paw scenario applies. BB should have taken more into account than just ZZ’s opinion and
should have looked more closely at the matter. The employer in this case would be found liable
because veganism has been found to be considered a religion and religion is a protected class.
Title 7 would apply but not equal protection since it is a matter of employment within the
company and JJ was an employee. Once BB gets the waterpark up and running on his plot of
land, WW works to create a new slide with the plastic from PP. Because this plastic was part of
a bribe deal between PP and DD, the business judgment rule will not protect director conduct
because there was a quid pro quo and deal with conflict of interest. This also exhibits the truck
and two fire scenarios because both PP and DD came together to cause harm that they both
needed to be there to commit, and the two fire scenario is exhibited because both parties are at
fault but neither is necessary because WW is at fault for buying the bad plastic since you cannot
sue individuals, only the board.

While AA worked as a cop he arrested GG. AA violated the Miranda warnings because GG was
not immediately read his rights upon arrest. Because these were not read immediately it would
make a conviction harder and GG should most likely be let go by the court.

Creative Writing #3:

Quincy Quantico (QQ) is starting a new company called Orange Technologies. This company is
going to sell computers and cell phones that are high tech and high price (1). With each phone
that is sold, a code for a copy of a modern retelling of Moby Dick comes with it. Because of the
wild popularity that Orange had when it started up, sales of the original Moby Dick fell 20% while
phone sales are through the roof (2).

Orange Technologies sees an opportunity to make money with their rapid success. They want to
sell shares of the land that their main factories are on with a promise that they will buy it back at
any market price (3). This is a move to have short term cash for operations and expansion but is
only open to C level executives. Daniel Davies (DD) who decides to invest in this land decides
he will sell shares of his land to his friends. However, in the initial offer by Orange, they
specifically stated that each unit of land sold was not meant to be diluted through splitting it up
(5). Orange also wants to split up marketing rights for their products in a competition that they
announce on national television via a commercial (4).
Explanation and Solution:
In this case, the name Orange technologies is allowed under the first amendment but is not
allowed under fair use. This is because the name is clearly a riff off of Apple’s name and they
are entering the same industry, so it is not similar to the Chewy Vuitton case where there is a
distinction between goods being sold. In addition, the fair use modern retelling of Moby Dick in
itself is not a problem for Orange Technologies, the problem comes in with the fact that the
sales of the original Moby Dick fell 20% after this paired offer from Orange. Because it directly
infringes on the sales of the original work, it fails the fair use standard in this case. The selling of
the factory land in this story is exempt under 4(a)(2) because it is only selling to people who are
sophisticated and have access to information that is not available to the general public. This
offer was high profile due to Orange's status so when DD decided to buy and split his share
among his friends he was creating an issue similar to the hunter scenario. Because both parties
were aware of the deal (DD and his friends) and the deal could not have gone through without
both of them, they are both liable with proximate cause for violating 4(a)(2) because now this
looks more like a public offering with DD’s friends involved. Finally, by selling the rights to
advertising, the company is selling something that is not a security and is allowable under Rule
10b5-1 even though it is not an express contract since it came via a commercial.

Creative Writing #4:

Bailey Bennet (BB) openly carries her gun indoors. One day, she is checking out in a Starbucks
line when she hands her gun to her 2 year old daughter, Cindy Child (CC). CC fires the gun and
hits a woman named Kaley Kandy (KK) who files a tort claim. When in trouble, BB points to the
fact that police officers carry their guns indoors and do not get in trouble most of the time if
something like this occurs due to the nature of their occupation (1). BB is also a Conservative
and goes to gun rallies for Trump supporters who have guns. At these rallies, she unloads her
gun just to be safe after the incident with KK. She is carrying her gun as a political statement
and would say so herself and call liberals who were uncomfortable with gun ownership
“snowflakes” (2).

Later, BB was hired by Bandwidth, a telecom company based out of Raleigh, NC with an office
in San Francisco. She was hired as a marketing director but never signed any hiring paperwork
and somehow just started getting paid through direct deposit. Once she starts working, she
finds out that most of her work is related to finance and not marketing anyways (3). While on the
job, BB meets Vanessa Vegan (VV). VV is a vegan who says she gets mean notes calling her a
hippie and saying she needs to exercise her right to be at the top of the food chain. What VV’s
coworkers don’t know is that she is only vegan at the office and eats chicken regularly at home
(4).

Finally, Bandwidth becomes involved in a forward merger to purchase Republic Wireless, a

phone service provider. They end up going with the forward merger because it is easiest and
will give them some protection when buying the new company.
Explanation and Solution:
In this case, negligence per se would apply against BB against KK. While BB points to the
example of police officers carrying their guns indoors, they are enforcing laws and the anti-open
carry laws in California do not apply to them because they have training and are in a highly
dangerous line of work. When BB is going to these political rallies with her gun now unloaded,
this is a form of political speech because of how it is tied in with her values and the situation she
is in at the rally for Trump. It passes the first amendment and strict scrutiny because the main
use of the firearm is disabled at the time.

When BB is hired at Bandwidth, her employment is invalid under the statute of frauds and
voidable due to a mutual mistake of fact. Since BB did not sign any onboarding paperwork there
is no agreement and is void in the statute of frauds. It is also void because of a mistake of fact
since the work she is doing is not near what was described to her but she continues to do it
anyway without expertise in the area. Because Veganism is considered a non-standard religion
and is a protected class, VV should be protected in her harassment claim. However, she is not
able to be protected because of her actions that make her not a vegan, by eating chicken at
home as she clearly does not hold these values to be true.

Finally, there would be no breach of contract with the Bandwidth-Republic Wireless merger and
a veil would be created to protect Bandwidth because this is a forward merger and a subsidiary
would have been created just to purchase Republic Wireless.

Case Synthesis: (1312 words)

Conclusion:
BigGames’ guiding principles and hiring, promotion, and firing policies are in violation of Title
VII.

Rule:
Hiring, promoting, and firing policies are in violation of Title VII if:
1. They unnecessarily trammel non-minority employees
2. Are based solely on one trait of an employee
3. The created remedy for a violation does not fit the violation in question

Trammeling Non-Minority Employees Unnecessarily:

In the case of Hammon v. Barry, we get to see specific wording on how the courts judge how
hiring practices and affirmative action plans work in conjunction with the rules of Title VII. In
Hammon v. Barry, the court cites the case of Johnson in which the wording was exactly that an
affirmative action hiring plan must not “unnecessarily trammel the rights of male [or nonminority]
employees.” This means that the affirmative action plan may be able to help minority employees
gain a foot in the door to the workforce, but must not unjustly harm nonminority employees or
candidates. While this seems to be vague language, the case of Hammon also gives us a
framework that helps to make this language more clear. To guide whether or not these rights are
infringed upon, the court looks at the proportion of minorities that are in the hiring population for
the aforementioned companies. In Hammond, this was looking at the proportion of blacks in the
fire department workforce versus the proportion of blacks in the entirety of the District of
Columbia. If these proportions are statistically significantly far off from each other, then a
company's hiring practices are most likely infringing unnecessarily on the rights of nonminority
employees.

Based Solely on a Single Trait:

In the Case of Johnson v. Transportation Agency, we get to see the way that a hiring practice or
affirmative action plan must act in further detail. This specifically works with regard to the fact
that multiple things must be taken into consideration during the hiring practice, not just a single
trait of an individual like gender or race. In Johnson, it was found that the hiring manager
promoted an individual solely on the basis of sex to try and meet the affirmative action criteria
rather than fairly evaluating both candidates of similar skill. While working with an affirmative
action plan, hiring managers and teams must follow the affirmative action plan and not make
rash decisions with the breaking point between two equal candidates being the singular
determining factor. However, if the trait plays into the affirmative action plan that is already laid
out, then that trait can play into the hiring decision to an extent. This decision base is laid out
even further in the case of Gilligan v. Department of Labor, where the court cites Johnson and
uses this case in their argument. Because it was found that the court did not rely on the
affirmative action plan and enacted erroneous standards for hiring because of this, the case was
ruled in favor of Gilligan because he beared the burden of proof and was able to show that the
plan was strayed from and gender was directly used in the hiring process.

The Created Violation Doesn’t Fit the Violation in Question:

Going back to Hammon v. Barry, we get another lens into how affirmative action plans must
work in conjunction with Title VII. The court in this case determines that “the remedy must be
tailored to fit the violation.” This means that without a doubt, the hiring plan has to be carefully
crafted by looking at alternatives and fit the violation or inequality that is attempting to be solved.
If things that are pertinent to the problem are left out of the decision making process then the
remedy will not be properly tailored to fit the violation.

Analysis:
BigGames’ hiring, firing, and promotion practices are in violation of Title VII because they
clearly violate the rule stated above. Looking first at the portion of unnecessary trammeling of
nonminority employees, we can see that males are immediately being unnecessarily harmed.
Section (5) states that for each female employee that is laid off, two male employees must also
be laid off. While it could be argued that this would help to keep in proportion with society's
proportions from the hiring pool described in the document, it creates an undue burden on the
company and male employees who may be laid off just to keep this ratio in order without looking
at their prowess as employees at all.
Looking now to the case of Violations in question, we can clearly see that Section (1) of
the guiding principles is in violation of Title VII. This is because the remedy must be carefully
crafted to fit the violation or inequality. This first section of BG’s guiding principles sets different
bars for promotion based on performance scores within the company. This is supposedly
because BG is wary of the fact there may be bias from the mostly male supervisors within the
company to favor males having higher scores. While this may be the case, it does not appear
that BG did any research into the biases that may be in effect, and instead set arbitrary numbers
that can be best qualified as guesses to where the bars for both genders should be set.
Because the company did not take into consideration the actual biases that may be present and
essentially took an educated guess, they did not carefully craft their affirmative action plan and
thus it should be void in the eyes of fitting the violation in question.
Finally, looking to basing decisions solely on a single trait, we can see that section (3) of
BG’s guiding principles should not be allowed under Title VII. Recruiters from the company are
directly told to advance female employees over male employees and give them better chances
at being hired by BG. This is BG essentially saying that they are judging individuals on one trait
alone before taking any other things into consideration about the applicants. Because things
such as sex and race can only be a part of the affirmative action process and not the only thing
that a company looks at, this part of the guidelines fails Title VII and should be struck down as
part of BG’s hiring process for both recruitment and hiring/promotion.

Conclusion:
BG’s guiding principles are in direct violation of Title VII and should be thrown out because they
are not the best alternative for fixing inequality and violations. These hiring practices outlined in
BG’s guiding principles directly use the basis of sex and sex alone to advance candidates, and
unduly burden nonminority employees in the event of a layoff without looking into their
competence as workers whatsoever.

Suggestions:
I would amend guiding principle (1) by hiring an outside firm to research the bias that the people
giving the performance reviews actually have. Once this research has been conducted, a fair
valuation of these numbers has been done and different numbers can be set with fair research.
These numbers could still be different by sex, however it cannot just be an educated guess.

I would amend guiding principle (3) by making a framework that is not solely dependant on the
individuals sex as a deciding factor as that was found to be a violation of Title VII. This would
include a more direct framework for hiring and advancing candidates rather than just based on
the hiring manager's discretion. If a better framework was in place it would also help to eliminate
some of the bias of the hiring managers who may be male.

Lastly I would amend guiding principle (5) by stating that lower skilled males have to be laid off
before female employees. This adds a skill base to the firing process and makes it less based
on just gender and would improve the company and the ratio of female to male employees at
the same time.
Bonus Question:
This poem by Jean de la Fontaine seems most clearly to relate to the ways in which the
California and modern rules look outside of contracts if they want to, or are not expressly clear
in that order. In this tale, the little country rat is going outside of what is expected of his
existence and discovering new things. In doing so, he is beginning to use this new knowledge to
apply judgment to things that were already in his life. This is seen in things such as calling his
dad a coward and ignoramus for not traveling as he has looked outside the bounds of his life
and is now basing how he views people based on that, and not his initial country rat lifestyle.
This is similar to the California and Modern rules because in these cases, we are not restricted
to just the contracts. We can look outside of our little country rat lifestyles and apply other
knowledge to them, therefore judging them in a different way based on new knowledge that we
have found on our journeys away from just the text of the contracts.