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ElEvEnth Edition

Marianne Moody Jennings Arizona State University

Australia • Brazil • Mexico • Singapore • United Kingdom • United States

its lEgal, Ethical, and global EnvironmEnt

Business

03572_fm_ptg01_i-xxviii.indd 1 9/13/16 4:51 PM

ALL RIGHTS RESERVED. No part of this work covered by the copyright herein may be reproduced or distributed in any form or by any means, except as permitted by U.S. copyright law, without the prior written permission of the copyright owner.

Library of Congress Control Number: 2016948642

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Business: Its Legal, Ethical, and Global Environment , 11e Marianne Moody Jennings

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03572_fm_ptg01_i-xxviii.indd 2 9/13/16 4:51 PM

Part 1 1 Business: Its Legal, Ethical, and Judicial Environment 1

1 Introduction to Law 2

2 Business Ethics and Social Responsibility 24

3 The Judicial System 72

4 Managing Disputes: Alternative Dispute Resolution and Litigation Strategies 102

Part 2 139 Business: Its Regulatory Environment 139

5 Business and the Constitution 140

6 Administrative Law 178

7 International Law 218

8 Business Crime 248

9 Business Torts 294

10 Environmental Regulation and Sustainability 328

Part 3 363 Business Sales, Contracts, and Competition 363

11 Contracts and Sales: Introduction and Formation 366

12 Contracts and Sales: Performance, Remedies, and Collection 410

13 Product Advertising and Liability 448

14 Business Competition: Antitrust 486

15 Business and Intellectual Property Law 520

Part 4 553 Business Management and Governance 553

16 Management of Employee Conduct: Agency 554

17 Governance and Structure: Forms of Doing Business 592

18 Governance and Regulation: Securities Law 634

19 Management of Employee Welfare 680

20 Management: Employment Discrimination 728

Appendices A-1 A The United States Constitution A-1 B The Foreign Corrupt Practices Act (Excerpts) A-12 C The Uniform Commercial Code (Excerpts)* A-15 D Dodd-Frank (Wall Street Reform and Consumer

Financial Protection Act) Key Provisions A-20 E The Securities Act of 1933 and the Securities Exchange

Act of 1934 (Excerpts) A-23 F Sarbanes-Oxley Key Provisions (Excerpts) A-28 G The Copyright Act (as Amended) (Excerpts) A-31 H Title VII and the Civil Rights Act (Employment

Provisions) (Excerpts) A-34 I The Americans with Disabilities Act (Excerpts) A-37

Glossary G-1 Table of Cases T-1 Table of Products, People, and Companies T-11 Index I-1

Brief Contents

iii

03572_fm_ptg01_i-xxviii.indd 3 9/13/16 4:51 PM

Contents

Preface xv About the Author xxvi Acknowledgments xxviii

1 Introduction to Law 2

1-1 Definition of Law 3

1-2 Classifications of Law 3 1-2a Public versus Private Law 3 1-2b Criminal versus Civil Law 4 1-2c Substantive versus Procedural Law 4 1-2d Common versus Statutory Law 4 1-2e Law versus Equity 5

1-3 Purposes of Law 6 1-3a Keeping Order 6 1-3b Influencing Conduct 6 1-3c Honoring Expectations 6 1-3d Promoting Equality 6 1-3e Law as the Great Compromiser 7

1-4 Characteristics of Law 7 1-4a Flexibility 7 1-4b Consistency 7 1-4c Pervasiveness 7

1-5 The Theory of Law: Jurisprudence 12 1-5a The Theory of Law: Positive Law 12 1-5b The Theory of Law: Natural Law 12 1-5c The Theory of Law: The Protection of

Individuals and Relationships 12 1-5d The Theory of Law: The Social Contract 12

1-6 Sources of Law 13 1-6a Constitutional Law 13

1-6b Statutory Law at the Federal Level 14 1-6c Statutory Law at the State Level 15 1-6d Local Laws of Cities, Counties, and

Townships 16 1-6e Private Laws 16 1-6f Court Decisions 16

1-7 Introduction to International Law 17 1-7a Custom 17 1-7b Treaties 18 1-7c Private Law in International

Transactions 18 1-7d International Organizations 18 1-7e The Doctrines of International Law 18 1-7f Trade Law and Policies 18 1-7g Uniform International Laws 19 1-7h The European Union 19

Summary 20

Questions and Problems 21

2 Business Ethics and Social Responsibility 24

2-1 What Is Ethics? 26 2-1a “It’s Just Not Right!” 26 2-1b Normative Standards: How We Behave to

Keep Order 26 2-1c Line-Cutting and Ethics 27

Part 1 Business: Its Legal, Ethical, and Judicial Environment 1

03572_fm_ptg01_i-xxviii.indd 4 9/13/16 4:51 PM

Contents v

2-2 What Is Business Ethics? 28 2-2a Ethical Standards: Positive Law and Ethics 29 2-2b Ethical Standards: Natural Law and Ethics 31 2-2c Ethical Standards: Moral Relativism and Ethics 31 2-2d Ethical Standards: Religion and Ethics 31

2-3 What Are the Categories of Ethical Dilemmas? 31 2-3a Taking Things That Don’t Belong to You 31 2-3b Saying Things You Know Are Not True 32 2-3c Giving or Allowing False Impressions 32 2-3d Buying Influence or Engaging in Conflict of

Interest 33 2-3e Hiding or Divulging Information 34 2-3f Taking Unfair Advantage 34 2-3g Committing Acts of Personal Decadence 35 2-3h Perpetrating Interpersonal Abuse 35 2-3i Permitting Organizational Abuse 35 2-3j Violating Rules 36 2-3k Condoning Unethical Actions 36 2-3l Balancing Ethical Dilemmas 36

2-4 Resolution of Business Ethical Dilemmas 37 2-4a Blanchard and Peale 37 2-4b The Front-Page-of-the-Newspaper Test 38 2-4c Laura Nash and Perspective 38 2-4d The Wall Street Journal Model 39 2-4e Other Models 39

2-5 Why We Fail to Reach Good Decisions in Ethical Dilemmas 39 2-5a “Everybody Else Does It” 39 2-5b “If We Don’t Do It, Someone Else Will” 39 2-5c “That’s the Way It Has Always Been Done” 40 2-5d “We’ll Wait until the Lawyers Tell Us It’s

Wrong” 40 2-5e “It Doesn’t Really Hurt Anyone” 41 2-5f “The System Is Unfair” 41 2-5g “I Was Just Following Orders” 41 2-5h “You Think This Is Bad, You Should

Have Seen . . .” 42 2-5i “It’s a Gray Area” 42

2-6 Social Responsibility: Another Layer of Business Ethics 43 2-6a Ethical Postures for Social Responsibility 43

2-7 Why Business Ethics? 45 2-7a Personal Accountability and Comfort: Business

Ethics for Personal Reasons 45

2-8 Importance of Ethics in Business Success and the Costs of Unethical Conduct 51 2-8a Ethics as a Strategy 53 2-8b The Value of a Good Reputation 55 2-8c Leadership’s Role in Ethical Choices 56

2-9 Creation of an Ethical Culture in Business 58 2-9a The Tone at the Top and an Ethical Culture 58 2-9b Dodd-Frank, Sarbanes-Oxley, Sentencing, and

an Ethical Culture 58 2-9c Reporting Lines: An Anonymous Ethics Line

for an Ethical Culture 59 2-9d Developing an Ethics Stance 59 2-9e Being Careful about Pressure and Signals 61

2-10 Ethical Issues in International Business 61

Summary 68

Questions and Problems 69

3 The Judicial System 72

3-1 Types of Courts 73 3-1a Trial Courts 73 3-1b Appellate Courts 73

3-2 How Courts Make Decisions 73 3-2a The Process of Judicial Review 73 3-2b The Doctrine of Stare Decisis 75

3-3 Parties in the Judicial System (Civil Cases) 77 3-3a Plaintiffs 77 3-3b Defendants 77 3-3c Lawyers 77 3-3d Judges 79 3-3e Name Changes on Appeal 79

3-4 The Concept of Jurisdiction 79

3-5 Subject Matter Jurisdiction of Courts: The Authority over Content 80 3-5a The Federal Court System 80 3-5b The State Court Systems 86 3-5c Judicial Opinions 88 3-5d Venue 88

3-6 In Personam Jurisdiction of Courts: The Authority over Persons 90 3-6a Ownership of Property within the State 90 3-6b Volunteer Jurisdiction 90 3-6c Presence in the State 90 3-6d Internet Companies and Long-Arm

Jurisdiction 94

3-7 The International Courts 95 3-7a Jurisdictional Issues in International Law 96 3-7b Conflicts of Law in International Disputes 96

Summary 98

Questions and Problems 99

03572_fm_ptg01_i-xxviii.indd 5 9/13/16 4:51 PM

vi Contents

4 Managing Disputes: Alternative Dispute Resolution and Litigation Strategies 102

4-1 What Is Alternative Dispute Resolution? 103

4-2 Types of Alternative Dispute Resolution 103 4-2a Arbitration 103 4-2b Arbitration Procedures 106 4-2c Mediation 108 4-2d Medarb 108 4-2e The Minitrial 108 4-2f Rent-a-Judge 109 4-2g Summary Jury Trials 109 4-2h Early Neutral Evaluation 109 4-2i Peer Review 110

4-3 Resolution of International Disputes 110

4-4 Litigation versus ADR: The Issues and Costs 111 4-4a Speed and Cost 111 4-4b Protection of Privacy 111 4-4c Creative Remedies 111 4-4d Judge and Jury Unknowns 112 4-4e Absence of Technicalities 113

4-5 When You Are in Litigation 113 4-5a How Does a Lawsuit Start? 113 4-5b The Complaint (Petition) 115 4-5c The Summons 117 4-5d The Answer 119 4-5e Seeking Timely Resolution of the Case 119 4-5f How a Lawsuit Progresses: Discovery 121 4-5g Resolution of a Lawsuit: The Trial 125

4-6 Issues in International Litigation 131

Summary 134

Questions and Problems 134

5 Business and the Constitution 140

5-1 The U.S. Constitution 141 5-1a An Overview of the U.S. Constitution 141 5-1b Articles I, II, and III—the Framework for

Separation of Powers 141 5-1c Other Articles 142 5-1d The Bill of Rights 143

5-2 The Role of Judicial Review and the Constitution 143

5-3 Constitutional Limitations of Economic Regulations 143 5-3a The Commerce Clause 143 5-3b Constitutional Standards for Taxation of

Business 149

5-4 State versus Federal Regulation of Business— Constitutional Conflicts: Preemption and the Supremacy Clause 152

5-5 Application of the Bill of Rights to Business 156 5-5a Commercial Speech and the First Amendment 156 5-5b First Amendment Protection for Advertising 156 5-5c First Amendment Rights and Profits from

Sensationalism 158 5-5d First Amendment Rights and Corporate Political

Speech 159 5-5e Eminent Domain: The Takings Clause 164 5-5f Procedural Due Process 169 5-5g Substantive Due Process 170 5-5h Equal Protection Rights for Business 171

5-6 The Role of Constitutions in International Law 171

Summary 173

Questions and Problems 173

Part 2 Business: Its Regulatory Environment 139

03572_fm_ptg01_i-xxviii.indd 6 9/13/16 4:51 PM

Contents vii

6 Administrative Law 178

6-1 What Are Administrative Agencies? 179

6-2 Roles of Administrative Agencies 180 6-2a Specialization 180 6-2b Protection for Small Business 182 6-2c Faster Relief 182 6-2d Due Process 182 6-2e Social Goals 183

6-3 Laws Governing Administrative Agencies 183 6-3a Administrative Procedures Act 183 6-3b Freedom of Information Act 183 6-3c Federal Privacy Act 184 6-3d Government in the Sunshine Act 185 6-3e Federal Register Act 186

6-4 The Functions of Administrative Agencies and Business Interaction 186 6-4a Providing Input When Agencies Are

Promulgating Regulations 186 6-4b Formal Rulemaking 186 6-4c Proactive Business Strategies in Regulation 204 6-4d Informal Rulemaking 204

6-5 Business Rights in Agency Enforcement Action 205 6-5a Licensing and Inspections 205 6-5b Prosecution of Businesses 207 6-5c Beginning Enforcement Steps 207 6-5d Consent Decrees 207 6-5e Hearings 207 6-5f Administrative Law of Appeals 209

6-6 The Role of Administrative Agencies in the International Market 210

Summary 212

Questions and Problems 213

7 International Law 218

7-1 Sources of International Law 219 7-1a International Law Systems 219 7-1b Nonstatutory Sources of International Law 220 7-1c Statutory Sources of International Law 221 7-1d Treaties, Trade Organizations, and Controls

on International Trade 222

7-2 Trust, Corruption, Trade, and Economics 227 7-2a Foreign Corrupt Practices Act (FCPA) 227

7-3 Resolution of International Disputes 232

7-4 Principles of International Law 232 7-4a Act of State Doctrine 232 7-4b Sovereign Immunity 232 7-4c Protections for U.S. Property and Investment

Abroad 235 7-4d Repatriation 237 7-4e Forum Non Conveniens, or “You Have the Wrong

Court” 237 7-4f Conflicts of Law 237

7-5 Protections in International Competition 238 7-5a The International Marketplace and Monetary

Issues: The Disclosure Role of Banks 238 7-5b Antitrust Laws in the International

Marketplace 240 7-5c Protections for Intellectual Property 242 7-5d Criminal Law Protections 242

Summary 244

Questions and Problems 244

8 Business Crime 248

8-1 What Is Business Crime? The Crimes within a Corporation 249 8-1a Financial Fraud: Employees Manipulating

Earnings Numbers 249 8-1b Marketing Missteps: Sales Zeal and

Crimes 250 8-1c Friendly Fire: Employee Theft 250

8-2 What Is Business Crime? The Crimes against a Corporation 252

8-3 Who Is Liable for Business Crime? 253

8-4 Federal Laws Targeting Officers and Directors for Criminal Accountability 254 8-4a White-Collar Crime’s Origins and History 254 8-4b Sarbanes–Oxley (SOX) 255 8-4c Honest Services Fraud 256 8-4d Financial Services Crimes and Reforms 256 8-4e Other Business Crimes and White-Collar

Liability 257

8-5 The Penalties for Business Crime 257 8-5a New Penalties and New Processes 257 8-5b Corporate Integrity Agreements (CIAs) 257

03572_fm_ptg01_i-xxviii.indd 7 9/26/16 5:37 PM

viii Contents

8-5c Criminal Indictments of Corporations on Common Law Crimes 259

8-5d Shame Punishment 259 8-5e New and Higher Penalties for Corporate

Crime 262 8-5f Corporate Sentencing Guidelines: An Ounce of

Prevention Means a Reduced Sentence 262 8-5g Corporate Board Criminal Responsibility 263

8-6 Elements of Business Crime 265 8-6a Mens Rea, Scienter, or Criminal Intent 265 8-6b Mens Rea, Conscious Avoidance, and Corporate

Officers 267 8-6c Actus Reus 268

8-7 Examples of Business Crimes 268 8-7a Theft and Embezzlement 268 8-7b Obstruction of Justice 268 8-7c Computer Crime 269 8-7d Internet Crime 271 8-7e Criminal Fraud 274 8-7f Commercial Bribery 274 8-7g Racketeer Influenced and Corrupt

Organizations (RICO) Act 275 8-7h Business Crime and the USA Patriot Act 277 8-7i Additional Federal Crimes 279 8-7j State Crimes 279

8-8 Procedural Rights for Business Criminals 279 8-8a Fourth Amendment Rights for Businesses 279 8-8b Exceptions to the Warrant Requirement 281 8-8c Fifth Amendment Rights for Businesses 283

8-9 Business Crime and International Business 287

Summary 289

Questions and Problems 290

9 Business Torts 294

9-1 What Is a Tort? Roots of Law and Commerce 295 9-1a Tort Versus Crime 295 9-1b Types of Torts 295

9-2 The Intentional Torts 296 9-2a Defamation 296 9-2b Contract Interference 304 9-2c False Imprisonment 304 9-2d Intentional Infliction of Emotional Distress 305 9-2e Invasion of Privacy 305

9-3 Negligence 308 9-3a Element One: The Duty 308 9-3b Element Two: Breach of Duty 311 9-3c Element Three: Causation 314 9-3d Element Four: Proximate Cause 315 9-3e Element Five: Damages 319 9-3f Defenses to Negligence 319

9-4 New Verdicts on Tort Reform 321 9-4a Strict Liability 322

Summary 323

Questions and Problems 324

10 Environmental Regulation and Sustainability 328

10-1 Common Law Remedies and the Environment 329 10-1a Nuisances 329 10-1b NIMBYs and Nuisances 329

10-2 Statutory Environmental Laws: Air Pollution Regulation 332 10-2a Early Legislation 333 10-2b 1970 Amendments to the Clean Air Act:

New Standards 333 10-2c 1977 and 1990 Amendments 333 10-2d New Forms of Control: EPA Expansion

Through Administrative Procedures 333 10-2e New Forms of Control: EPA and Climate

Change, Nee Global Warming 334 10-2f New Forms of Control: EPA and Small

Businesses 335 10-2g New Forms of Control: EPA and Economic

Forces 336

10-3 Statutory Environmental Law: Water Pollution Regulation 336 10-3a Early Legislation 336 10-3b Present Legislation 336 10-3c Other Water Legislation 337

10-4 Statutory Environmental Law: Solid Waste Disposal Regulation 338 10-4a Early Regulation 338 10-4b CERCLA and the Superfund 339 10-4c New Developments Under CERCLA 343 10-4d CERCLA and Brownfields 344

03572_fm_ptg01_i-xxviii.indd 8 9/13/16 4:51 PM

Contents ix

10-5 Statutory Law: Environmental Quality Regulation 345

10-6 Statutory Law: Other Federal Environmental Regulations 347 10-6a Surface Mining 347 10-6b The Fracking Issue 347 10-6c Noise Control 347 10-6d Pesticide Control 347 10-6e OSHA 347 10-6f Asbestos 347 10-6g Endangered Species 348 10-6h State Environmental Laws 351

10-7 Enforcement of Environmental Laws 352 10-7a Parties Responsible for Enforcement 352 10-7b Criminal Sanctions and Penalties for

Violations 352 10-7c Group Suits: The Effect of Environmentalists 356

10-8 International Environmental Issues 356 10-8a The EU and Environmentalism 356 10-8b ISO 14000 356 10-8c LEED Certification 357

Summary 359

Questions and Problems 359

11 Contracts and Sales: Introduction and Formation 366

11-1 What Is a Contract? 367

11-2 Sources of Contract Law 367 11-2a Common Law 368 11-2b The Uniform Commercial Code 368

11-3 Types of Contracts 372 11-3a Bilateral Versus Unilateral Contracts 372 11-3b Express Versus Implied Contracts

(Quasi Contracts) 372 11-3c Void and Voidable Contracts 374 11-3d Unenforceable Contracts 374 11-3e Executed Versus Executory Contracts 374

11-4 Consumer Credit Contracts 375 11-4a Discrimination in Credit Contracts 375 11-4b Subprime or Predatory Lending 376 11-4c Credit Disclosures 377 11-4d Controlling Credit Card Contracts 377

11-5 Formation of Contracts 378 11-5a Offer 378 11-5b Acceptance: The Offeree’s Response 390 11-5c E-Commerce and Contract Formation 391

11-5d Consideration 394 11-5e Contract Form: When a Record Is Required 395 11-5f Writing and E-Commerce: The Uniform

Electronic Transactions Act 398

11-6 Issues in Formation of International Contracts 402 11-6a CISG—UCC for the World 402 11-6b The Payment Issues in International

Contracts 403 11-6c Risk in International Contract Performance:

Force Majeure 405

Summary 406

Questions and Problems 407

12 Contracts and Sales: Performance, Remedies, and Collection 410

12-1 Defenses in Contract Formation 411 12-1a Capacity 411 12-1b Misrepresentation 414 12-1c Fraud or Fraudulent Misrepresentation 415 12-1d Consumer Credit Contracts and Rescission

Rights 417

Part 3 Business Sales, Contracts, and Competition 363

03572_fm_ptg01_i-xxviii.indd 9 9/13/16 4:51 PM

x Contents

12-1e Subprime Lending Representations and Disclosures 419

12-1f Duress 419 12-1g Undue Influence 419 12-1h Illegality and Public Policy 420

12-2 Contract Performance 426 12-2a When Performance Is Due 426 12-2b Standards for Performance 428 12-2c E-Commerce: Payment Performance Has

Changed 429 12-2d When Performance Is Excused 429 12-2e Finding a Way to End Obligations Under the

Contract 433

12-3 Nonperformance and Nonpayment—The Collection Remedies 433 12-3a Making Sure the Billing Is Accurate 433 12-3b Collection—Fair Standards for Obtaining

Payment 434 12-3c Suits for Enforcement of Debts 437 12-3d The End of the Line on Enforcement of Debts:

Bankruptcy 437 12-3e Is There a Cost to Breaching a Contract:

Creditor Reports on Nonpaying Debtors 438

12-4 Contract Remedies for Nonperformance 441

12-5 Third-Party Rights in Contracts 442

12-6 International Issues in Contract Performance 443 12-6a Assuring Payment 443 12-6b Assuring Performance: International

Peculiarities 443

Summary 444

Questions and Problems 445

13 Product Advertising and Liability 448

13-1 Development of Product Liability 449

13-2 Advertising as a Contract Basis for Product Liability 449 13-2a Express Warranties 449 13-2b Federal Regulation of Warranties and

Advertising 453

13-2c Content Control and Accuracy 453 13-2d FTC Control of Performance Claims 454 13-2e FTC Control of Celebrity

Endorsements 456 13-2f FTC Control of Bait and Switch 458 13-2g FTC Control of Product Comparisons 458 13-2h FTC Remedies 460 13-2i Ad Regulation by the FDA and Other Federal

Agencies 460 13-2j Professional Ads 460

13-3 Contract Product Liability Theories: Implied Warranties 460 13-3a The Implied Warranty of

Merchantability 461 13-3b The Implied Warranty of Fitness for a

Particular Purpose 464 13-3c Eliminating Warranty Liability by

Disclaimers 464 13-3d Privity Standards for UCC Recovery 466

13-4 Strict Tort Liability: Product Liability Under Section 402A 466 13-4a The Requirement of Unreasonably Dangerous

Defective Condition 467 13-4b Reaching the Buyer in the Same

Condition 471 13-4c The Requirement of a Seller Engaged in a

Business 473 13-4d Negligence: A Second Tort for Product

Liability 473 13-4e Privity Issues in Tort Theories of Product

Liability 473

13-5 Defenses to Product Liability Torts 474 13-5a Misuse or Abnormal Use of a

Product 474 13-5b Contributory Negligence 475 13-5c Assumption of Risk 475

13-6 Product Liability Reform 478

13-7 Federal Standards for Product Liability 478 13-7a Consumer Product Safety

Commission 478

13-8 International Issues in Product Liability 479

Summary 481

Questions and Problems 481

03572_fm_ptg01_i-xxviii.indd 10 9/13/16 4:51 PM

Contents xi

14 Business Competition: Antitrust 486

14-1 What Interferes with Competition? Covenants Not to Compete 487

14-2 What Interferes with Competition? An Overview of the Federal Statutory Scheme on Restraint of Trade 491 14-2a What Types of Activities Do the Federal Laws

Regulate? 492

14-3 Horizontal Restraints of Trade 493 14-3a Monopolization 493 14-3b Price-Fixing 496 14-3c Divvying Up the Markets 501 14-3d Group Boycotts and Refusals to Deal 502 14-3e Free Speech and Anticompetitive Behavior 502 14-3f Subtle Anticompetitive Behavior: Interlocking

Directorates 503 14-3g Merging Competitors and the Effect on

Competition 503

14-4 Vertical Trade Restraints 503 14-4a Resale Price Maintenance 504 14-4b Monopsony 508 14-4c Sole Outlets and Exclusive Distributorships 508 14-4d Customer and Territorial Restrictions 509 14-4e Tying Arrangements 509 14-4f Price Discrimination 511 14-4g Vertical Mergers 513

14-5 What Are the Penalties and Remedies for Anticompetitive Behavior? 513 14-5a Criminal Penalties 513 14-5b Equitable Remedies 514 14-5c Private Actions for Damages 514

14-6 Antitrust Issues in International Competition 514

Summary 516

Questions and Problems 516

15 Business and Intellectual Property Law 520

15-1 What Can a Business Own? Intangible Property Rights 521

15-2 Patents 521 15-2a The Types and Length of Patents 522 15-2b What You Can Patent: Patentability 522 15-2c The Patent Process 523 15-2d What a Patent Does 523 15-2e The Remedies for Patent Infringement 524

15-3 Copyrights 525 15-3a What Is a Copyright and What Does It

Protect? 525 15-3b The Rights of Copyright Holders Against

Third-Party Infringers 526 15-3c How Long Does a Copyright Run? 528 15-3d Rights of a Copyright Holder 529

15-4 Trademarks 533 15-4a What Are Trademarks? 533 15-4b What Are the Legal Protections for

Trademarks? 534 15-4c Enforcing Trademarks and the Risk of

Going Generic 534 15-4d Trade Names 535 15-4e What Are the Rights When a Trademark or

Trade Name Is Misused? 535 15-4f Trade Dress 538 15-4g Cyber Infringement 538

15-5 Trade Secrets 540 15-5a What are Trade Secrets? 540 15-5b How are Trade Secrets Protected? 541 15-5c Criminal Penalties for Theft of Trade

Secrets 541

15-6 International Intellectual Property Issues 542 15-6a Patent Protection 542 15-6b Trademark Protection 542 15-6c Copyrights in International

Business 543 15-6d Differing International Standards 543

15-7 Enforcing Business Property Rights 544 15-7a Product Disparagement 544 15-7b Palming Off 545 15-7c Misappropriation 545

Summary 548

Questions and Problems 548

03572_fm_ptg01_i-xxviii.indd 11 9/13/16 4:51 PM

xii Contents

16 Management of Employee Conduct: Agency 554

16-1 Names and Roles: Agency Terminology 555 16-1a Agency 555 16-1b Principals 555 16-1c Agents 556 16-1d Employers and Employees: Master–Servant

Relationships 556 161e Independent Contractors 556 16-1f Agency Law 556

16-2 Creation of the Agency Relationship 557 16-2a Express Authority 557 16-2b The Record 557 16-2c Capacity 557 16-2d Implied Authority 558 16-2e Apparent Authority 559 16-2f Ratification 561

16-3 The Principal–Agent Relationship 562 16-3a The Agent’s Rights and Responsibilities 562 16-3b The Principal’s Rights and

Responsibilities 569

16-4 Liability of Principals for Agents’ Conduct: The Relationship with Third Parties 570

16-4a Contract Liability 570 16-4b Liability of Principals for Agents’ Torts 572

16-5 Termination of the Agency Relationship 577

16-6 Termination of Agents under Employment at Will 577

16-6a The Implied Contract 578 16-6b The Public Policy Exception 580 16-6c Handling Employee Termination

Disputes 584

16-7 Agency Relationships in International Law 585

Summary 588

Questions and Problems 588

17 Governance and Structure: Forms of Doing Business 592

17-1 Sole Proprietorships 593 17-1a Formation 593 17-1b Sources of Funding 593 17-1c Liability 593 17-1d Tax Consequences 594 17-1e Management and Control 594 17-1f Transferability of Interest 594

17-2 Partnerships 594 17-2a Formation 594 17-2b Sources of Funding 599 17-2c Partner Liability 600 17-2d Tax Consequences in Partnerships 601 17-2e Management and Control 601 17-2f Transferability of Interests 603 17-2g Dissolution and Termination of the

Partnership 603

17-3 Limited Partnerships 604 17-3a Formation 604 17-3b Sources of Funding 605 17-3c Liability 605 17-3d Tax Consequences 606 17-3e Management and Control 606 17-3f Transferability of Interests 606 17-3g Dissolution and Termination of a Limited

Partnership 607

17-4 Corporations 607 17-4a Types of Corporations 607 17-4b The Law of Corporations 608 17-4c Formation 608 17-4d Capital and Sources of Corporate Funds 610 17-4e Liability Issues 611 17-4f Corporate Tax Consequences 613 17-4g Corporate Management and Control:

Directors and Officers 614

Part 4 Business Management and Governance 553

03572_fm_ptg01_i-xxviii.indd 12 9/13/16 4:51 PM

Contents xiii

17-4h Corporate Management and Control: Shareholders 621

17-4i The Dissolution of a Corporation 624

17-5 Limited Liability Companies 625 17-5a Formation 625 17-5b Sources of Funding 625 17-5c Liability 625 17-5d Tax Consequences 627 17-5e Management and Control 627 17-5f Transferability of Interest 627 17-5g Dissolution and Termination 628

17-6 Limited Liability Partnerships 628 17-6a Formation 629 17-6b Sources of Funding 629 17-6c Liability 629 17-6d Tax Consequences 629 17-6e Management and Control 629 17-6f Transferability 629 17-6g Dissolution and Termination 629

17-7 International Issues in Business Structure 629

Summary 630

Questions and Problems 631

18 Governance and Regulation: Securities Law 634

18-1 History of Securities Law 635

18-2 Primary Offering Regulation: The 1933 Securities Act 635 18-2a What Is a Security? 635 18-2b Regulating Primary Offerings:

Registration 636 18-2c Regulating Primary Offerings:

Exemptions 637 18-2d What Must Be Filed: Documents and

Information for Registration 642 18-2e Violations of the 1933 Act 643

18-3 The Securities Exchange Act of 1934 654 18-3a Securities Registration 654 18-3b Emerging Growth Companies (EGCs) and

1934 Act Exemption 654 18-3c Periodic Filing Under the 1934 Act:

Those Alphabet Reports 654 18-3d The 1934 Act Antifraud Provision: 10(b) 655 18-3e Insider Trading and Short-Swing Profits 665 18-3f Regulating Voting Information 666

18-3g Shareholder Rights in Takeovers, Mergers, and Consolidations 668

18-4 State Securities Laws 671

18-5 International Issues in Securities Laws 673

Summary 675

Questions and Problems 676

19 Management of Employee Welfare 680

19-1 Wage and Hours Protection 681 19-1a The Fair Labor Standards Act 681 19-1b The Equal Pay Act of 1963 688

19-2 Workplace Safety 688 19-2a The Occupational Safety and Health Act 688 19-2b OSHA Responsibilities 688 19-2c Employee Impairment and Testing Issues 690

19-3 Employee Pensions, Retirement, and Social Security 690 19-3a Social Security 690 19-3b Private Retirement Plans 692 19-3c Unemployment Compensation 693

19-4 Workers’ Compensation Laws 695 19-4a Employee Injuries 695 19-4b Causation and Worker’s Compensation 696 19-4c Fault Is Immaterial 696 19-4d Employees versus Independent

Contractors 696 19-4e Benefits 696 19-4f Forfeiture of the Right of Suit 697 19-4g Third-Party Suits 697 19-4h Administrative Agency 697 19-4i Insurance 697 19-4j Problems in Workers’ Compensation

Systems 699

19-5 Statutory Protections of Employees Through Labor Unions 700 19-5a The Norris–LaGuardia Act of 1932 700 19-5b The Wagner Act 700 19-5c The Taft–Hartley Act: The Labor-Management

Relations Act of 1947 700 19-5d The Landrum–Griffin Act: The Labor-

Management Reporting and Disclosure Act of 1959 700

19-5e Union Organizing Efforts and Social Media 701

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xiv Contents

19-5f Employers Are Accountable for Employee Electronic Content 701

19-5g Employer Monitoring: What is Legal? 701 19-5h Employers’ Right of Access to

Employee E-Mails 704 19-5I E-Mail and NLRA Issues 705 19-5j The Unionization Process 706 19-5k Union Contract Negotiations 710 19-5l Protected Concerted Activities 711 19-5m Unfair Employee Practices 711 19-5n Employer Rights 712 19-5o Right-to-Work Laws 712 19-5p Economic Weapons of Employers 713

19-6 International Issues in Labor 715 19-6a Immigration Laws 715 19-6b Working Conditions and International Labor

Law 718 19-6c Sample International Standards 718 19-6d The Risks of International Suppliers 719 19-6e New Trends in Managing International Wage

and Safety Standards 720

Summary 722

Questions and Problems 724

20 Management: Employment Discrimination 728

20-1 History of Employment Discrimination Law 729

20-2 Employment Discrimination: Title VII of the Civil Rights Act 731 20-2a Application of Title VII 731 20-2b Employment Procedures Covered 731

20-3 Theories of Discrimination Under Title VII 731 20-3a Disparate Treatment 731 20-3b Disparate Impact 734 20-3c Pattern or Practice of Discrimination 737

20-4 Specific Applications of Title VII 738 20-4a Sex Discrimination 738 20-4b Religious Discrimination 746 20-4c Racial Discrimination 749

20-5 Antidiscrimination Laws and Affirmative Action 749 20-5a What Is Affirmative Action? 750 20-5b Who Is Required to Have Affirmative Action

Programs? 750 20-5c Affirmative Action Backlash: The Theory of

Reverse Discrimination 750

20-6 The Defenses to a Title VII Charge 751 20-6a Bona Fide Occupational Qualification 751 20-6b Seniority or Merit Systems 752 20-6c Aptitude and Other Tests 752 20-6d Misconduct 752

20-7 Enforcement of Title VII 755 20-7a Steps in an EEOC Case 755 20-7b Remedies Available Under Title VII 756

20-8 Other Antidiscrimination Laws 756 20-8a Age Discrimination in Employment Act

of 1967 756 20-8b Equal Pay Act of 1963 758 20-8c Communicable Diseases in the

Workplace 758 20-8d Rehabilitation Act of 1973 759 20-8e Americans with Disabilities Act 759 20-8f The Family and Medical Leave Act 760

20-9 The Global Workforce 761

Summary 764

Questions and Problems 764

Appendices A-1

A The United States Constitution A-1

B The Foreign Corrupt Practices Act (Excerpts) A-12

C The Uniform Commercial Code (Excerpts)* A-15

D Dodd-Frank (Wall Street Reform and Consumer Financial Protection Act) Key Provisions A-20

E The Securities Act of 1933 and the Securities Exchange Act of 1934 (Excerpts) A-23

F Sarbanes-Oxley Key Provisions (Excerpts) A-28

G The Copyright Act (as Amended) (Excerpts) A-31

H Title VII and the Civil Rights Act (Employment Provisions) (Excerpts) A-34

I The Americans with Disabilities Act (Excerpts) A-37

Glossary G-1 Table of Cases T-1 Table of Products, People, and Companies T-11 Index I-1

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Preface

A Different World, but the Same Issues The seventh edition of this book was published amidst the fallout from the legal, ethical, and, too often, financial collapses of Enron, WorldCom, Adelphia, Health- South, Parmalat, Arthur Andersen, Kmart, and others. With Sarbanes–Oxley on the books and new regulatory demands on corporations, we thought perhaps we had turned the corner. But the eighth edition was published as Wall Street and the economy were reeling from the fallout of a subprime mortgage market operating under regulatory radar without a great deal of disclosure on portfolio risk. When the ninth edition was published, the SEC had just settled a civil suit it brought against Goldman Sachs for allegedly selling securities to clients it was betting against as a short-seller in a scheme that saw its profits reach double-digit billions. Goldman paid a fine of $550 million. In late 2009, Goldman’s CEO, Lloyd Blank- fein, uttered the same words that Jeffrey Skilling did in 2000: “We are doing God’s work.” At press time of the tenth edition, there were questions about the fairness of the scrutiny of taxpayers by an administrative agency, the Internal Revenue Service, and the Justice Department’s tapping of phones of news corporations. Book publishers signed antitrust consent decrees for agreeing to fix prices in order to compete with Amazon. A factory in Bangladesh, that produced clothing for U.S. retailers, collapsed, killing over 600 employees, a collapse that was caused by noncompliance with safety and code standards. Now, as this 11th edition is pub- lished the EPA has tightened regulations so much that two major coal companies have gone out of business. The Veterans Administration is trying to recover from a program that was designed to reduce queue times for patients but resulted in patients dying. A pharmaceutical company raised its prices on one prescription drug by 5,000%, and Apple has a monitor because it was found guilty of being the master mind behind publishers fixing prices on their electronic books. The raisin farmers had a major victory in the U.S. Supreme Court that will change forever government price and supplies controls on raisin. And insider trading remains in the news, for both convictions and the reversals of those convictions as courts sort through the question, “When exactly does insider trading occur?”

The patterns of business behavior that push the envelope of law and ethics continue. Two of the leaders in the New York legislature were convicted on cor- ruption charges, companies from Embrauer to GlaxoSmithKline, and even FIFA faced charges and investigations under the Foreign Corrupt Practices Act. Charges against FedEx for alleged shipping of controlled substances were dismissed because there was no proof that anyone knew what was in the packages. Blue Bell ice cream was shut down for four months because of the presence of listeria in its plants. The FCC was deluged with comments on a proposed rule that would have allowed cell phone use on airplanes. In response to the outcry from flight atten- dants, passengers, and pilots, the FCC did not promulgate the rule. The issues of law and ethics are still at the forefront of business, sports, and government. It has become a tall order just to keep up with all the events!

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These companies and organizations and their employees and executives certainly could have benefited from understanding and keeping at the fore- front of their decision processes the basics of law and ethics! The legal and eth- ical environments of business are center stage. Several editions ago, Congress made massive regulatory reform a reality with the passage of the Sarbanes– Oxley legislation on corporate governance, accounting regulation, and crim- inal penalties. But the SEC missed some large market schemes, so Congress passed Dodd-Frank with new directives to the SEC on financial reports, dis- closures, and primary offerings. The continuing reliance on new credit mecha- nisms resulted in a central agency, the Consumer Protection Bureau, handling all forms of consumer credit. Business is even more international, and changes, such as Brexit (Great Britain’s decision to withdraw from the EU), mean more changes in trade, regulation, and tariffs. FCPA cases have expanded and there is increasing cooperation among countries to address money-laundering schemes and the problems of world leaders hiding funds in accounts around the world.

The world and business continue to change and grow, but law and ethics have retained their role and importance. In fact, now more than ever, we need to understand the legal and ethical issues that affect our businesses and our lives. The knowledge base and even the questions in law and ethics remain the same, but the underlying facts have changed. For example, we still debate the social responsibility role of business. Now we raise that issue in the context of whether companies should use inversions, or reverse acquisitions, by foreign companies to reduce their effective tax rates. We continue to delve into the pros and cons of sending production to other countries. We still have the question of when a contract is formed, but now we face that question with “point and click” technology rather than faxes and letters. We continue to be concerned about our privacy as consumers, but now we wonder who really has access to our Facebook page. We still wonder about the extent of copyright law. The file-sharing programs have never quite gone away and the film industry now litigates the downloading of copyrighted films. The world is different, but law and ethics form the constant framework into which we fit the issues of the day. In the materials that follow, you have the chance to understand the marvelous stability of this framework and the ease with which you can apply it to this very different world. Be sure to look for descriptions of the new structure as well as the continuing features in the book, such as the “Consider” tutorials, the ethics issues, and the Business Strategy application exercises.

Building the Bridge: Applying Legal and Ethical Reasoning to Business Analysis I gave my students a midterm exam—a review of Netflix and its various business issues, including the cost of rights, issues in film production, and problems with obtaining subscriptions. These students are in the second year of their master’s degree studies. They have been trained in economics, marketing, management, and finance. But as they completed their analysis of this fast-growing darling of the stock market, they had an epiphany. A company can get the finance issues right, have the right brand appeal and great offerings, and even yield terrific subscription sales. However, it can all fall apart over the legal issues. What if the estimates on subscriptions released with earnings reports are overly optimistic?

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What if something goes wrong in shooting one of their original production films? Does insurance cover them? Who pays the costs of a late finish on those promised films? What about international copyrights? What happens when copyright hold- ers do not want their films licensed internationally? They are very capable busi- ness students. However, they did not realize until this midterm exam how much of business turns on anticipating the legal issues and getting them resolved cor- rectly. And they also realized that all of our discussions of ethics and social respon- sibility had a role in doing business. TANSTAAFL—“there ain’t no such thing as a free lunch” when it comes to international business. There are costs associated with tapping into a seemingly boundless market of subscribers. And those costs come from legal issues, which, if handled poorly, can affect a company’s value and tarnish its brand name.

Why couldn’t these students see the interconnection and critical roles of law and ethics in business until this case for their midterm? It was not for lack of expo- sure to the law. I taught my course “by the book,” so to speak. Students could recite the components of a valid contract, rattle off the requirements for bankruptcy, and recall from memory the antitrust statutes. Yet, I was coming to realize, this rote knowledge was not enough. One of my best former students, who had gone on to medical school, came to me perplexed about her office lease. She said that the complex in which she wanted to open her practice had a “no advertising” policy. In fact, she said that when she toured the premises with a leasing agent, the leasing agent turned to her and said, “You’re not one of those doctors who advertises, are you? Because if you are, we can’t lease to you. We have a policy against it.” One of my best students, who knew the antitrust statutes well, could not apply them to her everyday business. Worse, perhaps, she could not recognize when to apply these statutes: She did not see the antitrust implications of the agent’s statements nor the problems with the physicians in the complex taking such an approach to screening tenants.

I have reached the conclusion that there have always been shortcomings in the standard approach to teaching business students law and ethics. Students were not ignorant of the law; rather, they simply lacked the necessary skills to recognize legal and ethical issues and to apply their knowledge of law and ethics to business decision making. As instructors, we were not integrating legal and ethical reason- ing with business analysis. My conclusion led me to develop my own materials for classroom use and eventually led to the publication of the first edition of this book. Now in its eleventh edition, Business: Its Legal, Ethical, and Global Environment brings to the classroom the most integrated approach to learning law and ethics available in the market today. Throughout every chapter and in every feature, stu- dents and instructors are continually reminded of how various legal and ethical principles apply in business contexts. For all areas of law and ethics, this book answers the question: How does this concept affect a business? This book builds a bridge for the student between knowledge of law and ethics and application of both in business. My 39 years of teaching law and ethics finally brought this realization: Business ethics is not easily grasped nor practiced in business because we depersonalize ethical issues. If we just allow the company or organization to make the decision, our ethics are not in question; the companies’ are. The ethical issues in the book require students to bring ethical issues into their lives, their cir- cumstances, their world. This feature also forces them to answer this question in a wide variety of contexts: “If it were you, and you were faced with the dilemma and required to make a decision, what would you do?”

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Strengthening the Bridge: New Content, Business Applications, and Learning Aids For the eleventh edition, Business: Its Legal, Ethical, and Global Environment has undergone further refinement. New content has been added, outdated content has been removed, new business applications have been integrated into every chapter, and the learning aids have been modified and refocused to help students under- stand and apply legal and ethical concepts.

New Content

The eleventh edition of Business: Its Legal, Ethical, and Global Environment continues to meet its goal of helping students with their understanding of how law and ethics apply to the business world. The organizational structure, based on feedback from those who use the text, has been changed. The four parts remain, but there is a new mix of topics and chapters in those four parts. Part 1 offers the student an overview of the legal, ethical, and judicial environments of business. Part 2 covers the regu- latory environments of business, including environmental regulation and sustain- ability. Part 3 covers all aspects of sales, contracts, and competition. Part 4 covers business management and corporate governance, and this newly restructured sec- tion covers all issues related to employees, boards, agents, and how to keep all of these groups coordinated while taking legal and ethical actions. Cyber law is now integrated into every chapter so that it can be covered in contracts (formation), employment (right of employee privacy in e-mails), and criminal law (everything from industrial espionage to spamming).

Ethics

Business Ethics and Social Responsibility (Chapter 2) offers new examples and insights on the application of ethics to business decision making. Chapter 2 is chock full of the examples the last two years have netted—including GM’s engine switch guilty plea and VW’s use of emissions defeating software. A new biogra- phy focuses on Captain Sullenberger who landed an airplane safely in a river and offers his perspectives on how we know the right thing to do in moments of pres- sure. Ethics coverage is also integrated throughout all chapters.

Business Applications Biography

Each chapter contains a biography. Biographies provide students with business history through the study of individuals and companies involved with the area of law and ethics covered in the chapter. For example, Chapter 1 has a biography on Uber, the company that shook up the world of cab transportation. Chapter 4 has a new biography on a legal battle between a small business and its production of parts for another company’s tabletop game including the tools used in that litigation, and the pro bono work of lawyers in helping a small business in Games Workshop v. Chapterhouse. Chapter 19 provides the story of the death of an orca whale trainer at Sea World and the resulting investigations and backlash that Sea World experienced. Chapter 15 gives a biography of Mattel and its Bratz dolls and its long intellectual property battle over who had the idea for the dolls.

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For the Manager’s Desk

Each chapter also contains at least one “For the Manager’s Desk” feature. These readings provide students the opportunity to see how business interrelates with ethics and law. The readings feature topics tackled by publications such as Wall Street Journal, Harvard Business Review, Corporate Finance Review, and the American Business Law Journal. This feature offers the latest best practices as well as data from academic studies and insights from that research. For example, the Chapter 8 “For the Manager’s Desk” discusses who ends up going to prison for business crimes and how long their sentences last. Chapter 19’s feature deals with the recent series of cases brought by interns for lack of pay and excessive hours as well as the Department of Labor’s proposed responses. Chapter 13 discusses how to manage celebrity tweets when they are your spokesperson, i.e., what can Kim Kardashian tweet about an anti-nausea drug she was using during her pregnancy that will not run afoul of FDA restrictions? Chapter 15’s Manager’s Desk discusses the prob- lems with a trademark or trade name that is offensive.

Learning Aids . . . and the Law

Each chapter contains a popular feature to further integrate law and ethics with the other “silos” of business. The “. . . and the Law” feature puts law and ethics in the context of economics, human resources, public policy, strategy, finance, and other areas to illustrate the ways knowledge of the where and how for the fit of law and eth- ics can help make better managers and better decisions. For example, Chapter 20’s “HR and the Law” discusses the dangers and conflicts office romances produce and how managers can deal with those issues. Chapter 1 includes a discussion of the FIFA corruption scandal how the issues were investigated and the problems involved in an NGO. Chapter 8’s “Strategy and the Law” takes a look at what corporations charged with a crime should do and the options for pleas available with the Justice Department. Chapter 14’s “Social Responsibility and the Law” discusses the possible anticompetitive effects of organizations such as Common Code for the Coffee Community and the Bioplastic Feedstock Alliance. These features apply the principles from business disciplines to understand more fully the depth and breadth of management issues.

Case Headlines

Every court case has a case headline that summarizes what issues are involved in the case. Chapter 7 has a new case on the actions of the Russian tax authorities involving Yukos, an international oil company, and the resulting impact in the mar- ket and has this title, “When Putin Affects the Value of Oil Stock.” In Chapter 8, a new case on criminal intent, whether the owner of a salvage yard was aware of his contamination of water, has this intriguing case title, “Mordechay’s Sump Pump and Mens Rea. In Chapter 6, the case Hornbeck Offshore Services, L.L.C. et al. v Salazar deals with an issue of whether agency action was arbitrary and capricious in issu- ing a moratorium on offshore drilling, and the case title is “Drilling Down to the Facts Supporting a Rule.” The vivid one-line description and colorful facts of the case, a common thread throughout the case choices in the text, help students inter- nalize the rules and lessons about not destroying evidence for a potential lawsuit.

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Chapter Openings and the “Consider. . . “ Feature

Chapters begin with an opening problem, titled “Consider. . .”, which presents a legal dilemma relevant to the chapter’s discussion and similar to those business managers need to handle. These are revisited and answered in the body of the chapter. For example, Chapter 6 has a new chapter opening “Consider. . . “on a proposed regulation on the use of cell phones on airplanes and then walks that issue through the full regulatory process. In addition to this Consider problem opening, each chapter also has quotes, data, humor, or insights to pique reader interest about the chapter topics.

Chapter Summary

Each chapter concludes with a summary that reinforces the major concepts of the chapter. Each summary is constructed around the key questions introduced at the start of the chapter and key terms presented throughout the chapter.

Business Strategy Applications

Each chapter has a business strategy connection designed to help students understand where law and ethics fit in developing effective business strat- egies. For example, in Chapter 13 there is a new business strategy on the problems with highway guard rails and the litigation brought about by a competitor who reported changes in the guard rail design that had not been cleared with the federal government. Chapter 5 has a strategy feature that dis- cusses who gives money in politics, how much, and why. Chapter 8’s strategy feature discusses the components of an effective compliance program. The Chapter 12 strategy deals with how restaurants are coping with no-shows in their reservations and their contract rights when someone makes a reserva- tion but never shows up.

Organization and Features: A Structure to Guide Students to Reasoning and Analysis The classic features have been updated and strengthened. The organization has been retained to continue to meet student needs in the classroom.

Organization

The four parts in the book serve to organize the materials around four basic areas: (1) understanding the legal environment, (2) understanding the regulatory envi- ronment, (3) dealing with sales, contracts and competition, and (4) management and governance. Every chapter integrates international and ethical topics.

Part 1 In four chapters, Part 1 offers an introduction to law, an introduction to business ethics and the judicial system, and a discussion of litigation and alternative dispute resolution. Part 1 provides students with a foundation in law and ethics as well as legal and ethical reasoning, necessary for the areas of law in the chapters that follow. By being brief (four chapters), Part 1 offers instructors an early and logical break for exams.

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Part 2 In six chapters, Part 2 covers the regulatory environment of business, including the following topics: constitutional law, administrative and international law, busi- ness crimes and business torts, and environmental regulation. At the completion of Parts 1 and 2, students have a grasp of the legal system, ethical boundaries, and the laws that affect business operational decisions.

Part 3 The five chapters in Part 3 present students with the legal and ethical issues sur- rounding contracts, sales, and competition. Part 3 includes the following topics: contract formation and performance (including coverage of consumer issues); product liability; intellectual property; trade restraints; and business competition and antitrust. From the negotiation of price to the collection of accounts, this seg- ment of the book covers all aspects of selling business products and services. This section is structured so that the contracts discussion precedes the complexities of property and competition.

Part 4 The five chapters in Part 4 discuss business management and governance. Topics include the management of employees, from agency law to employment regulation to employee rights to issues in discrimination. Part 4 also includes the governance issues of business structure and management, including financing and securities law issues. This section covers the issues of running, managing, and financing a business.

Woven throughout all the chapters are cyber law issues, as marked by margin icons, and featuring discussions of everything from e-mail privacy to the problems of hacking.

Features

Court Cases Edited court language cases provide in-depth points of law, and many cases include dissenting and concurring opinions. Case questions follow to help students under- stand the points of law in the case and think critically about the decision. The courts have been active since the last edition, and many 2015–2016 case decisions are pre- sented throughout the book. Students will be able to study Donald Trump’s claim for defamation when a writer misstated his net worth. Can a company avoid Foreign Cor- rupt Practices Act violations when it has its agent appointed a government official in another country? What happens when a young man saves his Pepsi points to claim a Harrier Jet that he sees in a Pepsi spoof ad for “Pepsi stuff”? Does he get his jet?

Consider . . . “Consider . . .” problems, along with “Ethical Issues” and “Business Planning Tips,” have been a part of every chapter since the first edition. The “Consider . . .” features, often based on real court cases, ask students to evaluate and analyze the legal and ethical issues discussed in the preceding text. Because these issues are integrated into the text, students must address and think critically about these issues as they encounter them. Through interactive problems, students learn to judge case facts and determine the consequences. Moreover, answers to all of these opening “Consider. . .” features are referenced in the text and clearly marked. There are more “Consider. . . “ features throughout each chapter. Chapter 3 has a new “Consider . . . “

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on whether Katy Perry could be sued in Missouri for her alleged infringement of a Missouri songwriter’s song. Chapter 12 has a new consider on whether a mistake on the total square footage in a property is grounds for setting aside a contract for purchase of that property.

“Consider . . . ” brings the most current topics into the book and the classroom.

Thinking, Applying, and Answering: “Consider . . . ” Tutorials—A Guide for Reasoning One “Consider . . . ” per chapter is solved for the students in a methodical walk- through that helps them understand how to apply the legal principles or case prec- edent that they have just studied. The facts of the case or hypothetical are presented and the students are asked to recall what they have just learned. Next, students are walked through applying those principles to the current facts. Finally, they are given the answer and the reason that answer is consistent with their thinking and applying.

Ethical Issues The “Ethical Issues” feature appears in every chapter and presents real-world ethical problems for students to grapple with. “Ethical Issues” help integrate coverage of ethics into every chapter. The ethical issues also include personal and real-life exam- ples that help students relate to the pervasive nature of ethical dilemmas that they do and will continue to face. Chapter 6 includes the U.S. Supreme Court case revers- ing the bribery conviction of former Virginia governor Bob McDonnell and his wife, followed by an ethics issue that asks students to review whether their taking of vaca- tions, a Rolex, clothing, and help with a wedding from a donor crossed ethical lines. Chapter 12 includes an ethical issue that asks students to evaluate students who accept an employment offer and then renege because a better one came along.

Business Planning Tips Students are given sound business and legal advice through “Business Planning Tips.” With these tips, students not only know the law but also know how to antic- ipate issues and ensure compliance. How to make your property safer, how to conduct an interview without violating the Americans with Disabilities Act, and how to train employees to preserve documents and potential evidence if custom- ers make claims.

Cyberlaw Cyberlaw has been integrated throughout the book. Most chapters also include a segment on cyberlaw. These chapter-by-chapter materials, marked by an icon, give students the chance to see how new technology fits into the existing legal framework.

Exhibits Exhibits include charts, figures, and business and legal documents that help highlight or summarize legal and ethical issues from the chapter. With the credit and financial market reforms, securities law reforms on stock offerings, and the changes in criminal penalties, many of the charts are either new or updated.

End-of-Chapter Problems Many end-of-chapter problems have been updated and now focus more on actual cases. There are new chapter problems throughout the book of varied lengths for different instructor needs.

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The Informed Manager: Who Should Use This Book? With its comprehensive treatment of the law, integrated business applications, and full-color design, Business: Its Legal, Ethical, and Global Environment is well suited for both undergraduate and MBA students. The book is used extensively in under- graduate education programs around the country. In addition, this edition has been class-tested with MBA students, and it is appropriate for MBA and executive education programs.

A Note on AACSB Standards

The strong presence of ethics, social responsibility, international law and issues, and the integration of other business disciplines make the book an ideal fit for meeting AACSB standards and curriculum requirements. The AACSB standards emphasize the need for students to have an understanding of ethical and global issues. The eleventh edition continues with its separate chapter on ethics as well as ethical issues and dilemmas for student discussion and resolution in every chapter. The separate chapter on international law continues its expanded cover- age from the last edition, and each chapter has a segment devoted to international law issues. The eleventh edition includes readings on expanded international law enforcement cooperation, the challenges of ethics and law in international busi- ness, the role of lawyers in other countries, and attitudes outside the United States on insider trading and antitrust laws.

This edition presents students with the legal foundation necessary for busi- ness operations and sales but also affords the students the opportunities to analyze critically the social and political environments in which the laws are made and in which businesses must operate. An examination of the lists of companies and individuals covered in the biographies, and of the publications from which the “For the Manager’s Desk” readings are based on, demonstrates the depth of back- ground the eleventh edition offers in those areas noted as critical by the AACSB. The materials provide a balanced look at regulation, free enterprise, and the new global economy.

Supplements Business: Its Legal, Ethical, and Global Environment offers a comprehensive and well- crafted supplements package for both students and instructors.

MindTap

MindTap™ is a fully online, highly personalized learning experience combining readings, multimedia, activities, and assessments into a singular Learning Path. Instructors can personalize the Learning Path by customizing Cengage Learning resources and adding their own content via apps that integrate into the MindTap framework seamlessly with Learning Management Systems.

We have heard that business law instructors want to help students Prepare for class, Engage with the course concepts to reinforce learning, Apply these concepts in real-world scenarios, and use legal reasoning and critical thinking to Analyze business law content. Accordingly, our MindTap product provides a four-step

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Learning Path designed to meet these critical needs while also allowing instructors to measure skills and outcomes with ease.

• Prepare: Business Law Ebook and Worksheets – help students prepare for class with interactive guided reading & chapter review questions that can be completed prior to class so that class time can be spent applying the concepts.

• Engage: Video Activities – engage students using real-world scenarios that bring business law to life and help students make connections with real work situations. Includes comprehension questions for practice and assignable gradeable homework.

• Apply: Brief Hypothetical Scenarios – These short fictional scenarios, help students spot the issue and apply the law and concepts that they’ve learned. These are great questions for exam preparation.

• Analyze: Legal Reasoning – Promote deeper critical thinking and legal reasoning by using these case problem questions to help improve critical thinking skills.

Every item in the Learning Path is assignable and gradable. This gives instructors the knowledge of class standings and concepts that students may be finding difficult. Additionally, students gain knowledge about where they stand— both individually and compared to the highest performers in class.

To view a demo video and learn more about MindTap, please visit www.cengage.com/mindtap.

Case Collection

Now, within MindTap, instructors can search Case Collection—a library of cases from previous editions of different Cengage textbooks—by relevant criteria and then incorporate those cases in the learning path for students.

This exciting repository allows instructors to personalize their course and truly engage students, helping them to reach higher levels of critical thinking.

• Easily search by topic, and then refine the search by subtopic, to find case examples of a specific legal concept.

• Search by court or state to bring a local flavor or interest to the classroom. • Enjoy over 1500 cases at your fingertips. All new edition omitted cases will be

added every year, allowing the archive to continually grow.

Mix and match cases from all textbooks, whether you are currently using it in class or not. This allows you to provide longer cases with more information from other resources, which is especially helpful if your text didn’t show the court’s decision.

Weekly Ethics and Law Updates. Available at mariannejennings.com, the weekly updates contributed by the author offer at least 12 current events per month for discussion and analysis. The update features new decisions, new statutes, new reg- ulations, new ethical dilemmas, and a host of examples and cites to current period- icals. The eleventh edition includes references to these updates in the text.

Instructor’s Manual. The Instructor’s Manual, written by the author, provides the following for each chapter: a detailed outline; answers to “Considers . . . ”,

xxiv Preface

03572_fm_ptg01_i-xxviii.indd 24 9/13/16 4:51 PM

“Ethical Issues,” case problems, and the end-of-chapter Questions and Problems; briefs of all cases; summaries of key features; supplemental readings; and interac- tive/cooperative learning exercises.

PowerPoint® Lecture Review Slides. Developed by the author, these PowerPoint slides consist of lecture outlines and select tables and figures used in the book. The slides are available for use by students as an aid to note taking, and by instructors for enhancing their lectures.

Test Bank. The Test Bank for instructors includes more than 2,000 questions in true/false, multiple-choice, and essay format. The questions vary in levels of diffi- culty, and meet a full range of tagging requirements, including AACSB standards.

Cognero. Cengage Learning Testing Powered by Cognero is a flexible, online system that allows you to:

• author, edit, and manage Test Bank content from multiple Cengage Learning solutions

• create multiple test versions in an instant • deliver tests from your LMS, your classroom or wherever you want

Start right away! Cengage Learning Testing Powered by Cognero works on any operating system or browser.

• No special installs or downloads needed • Create tests from school, home, the coffee shop—anywhere with Internet

access

What will you find?

• Simplicity at every step. A desktop-inspired interface features drop-down menus and familiar, intuitive tools that take you through content creation and management with ease.

• Full-featured test generator. Create ideal assessments with your choice of 15 question types (including true/false, multiple choice, opinion scale/ likert, and essay). Multi-language support, an equation editor, and unlim- ited metadata help ensure your tests are complete and compliant.

• Cross-compatible capability. Import and export content into other systems.

KnowNOW Blog. Included inside MindTap, this is a professor ’s dream—a daily blog on eye-catching legal issues that allow students the opportunity to engage in discussion and really master concepts because of the nature of the subject matter. Insider trading is something that may not grab their attention until you share with them the story of the famous Notre Dame football player, Rudy, who settled pump-and-dump charges by the SEC. And a breached sale of fabric contract sounds like a dull session unless you are able to use the Lululemon problem—the company made thousands of yoga pants with the fab- ric only to discover through customer complaints that the fabric was see-through and those customers wanted their money back. Even antitrust law comes to life when you use the merger of Corona with Bud Light to cover market share and monopoly power.

Preface xxv

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xxvi

About the Author

Professor Marianne Jennings is an emeritus professor of legal and ethical studies in business from the W.P. Carey School of Business at Arizona State University. She was named professor of the year in the College of Business in 1981, 1987, 2000, and 2010 and was the recipient of a Burlington Northern teaching excellence award in 1985. She served as director of the Joan and David Lincoln Center for Applied Eth- ics at ASU from 1995–1999. From 2006–2007, she served as the faculty director for the MBA Executive Program. She continues to teach graduate courses in business ethics and ethical culture at ASU and other colleges around the country.

Professor Jennings has authored hundreds of articles in academic, professional and trade journals. She was given best article awards by the institute of Internal Auditors and the Association of Government Accountants in 2001 and 2004. In 2006, her article, “Ethics and Investment Management: True Reform,” was selected by the United Kingdom’s Emerald Management Review from 15,000 articles in 400 journals as one of the top 50 articles in 2005. She was named one of the Top 100 Thought Leaders by Trust Across America in 2010. In 2012 she was named one of the 100 Most Influential People in Business Ethics by Ethisphere magazine. She served on the board of directors for Arizona Public Service (now Pinnacle West Capital Corporation), the owner of the Palo Verde Nuclear Station, from 1987 through 2000. She served on the boards of Zealous Capital Corporation from 1996- 1998 and the Center for Children with Chronic Illness and Disability at the Uni- versity of Minnesota. She served as chair of the Bonneville International Advisory Board for KHTC/KIDR from 1994-199. She was appointed to the board of advi- sors for the Institute of Nuclear Power Operators in 2004. In 2015 she was named an affiliated scholar with the Center for the Study of Economic Liberty at Arizona State University.

Currently she has six textbooks and monographs in circulation. The ninth edi- tion of her textbook, Case Studies in Business Ethics, and the eleventh edition of her textbook, Business: lts Legal, Ethical and Global Environment will be published in January 2017. Her first textbook, Real Estate Law, had its 11th edition published in January 2016. Her text, Anderson’s Business and the Legal Environment had its 23rd edition published in January 2016.

Her book, Business Strategy for the Political Arena, was selected in 1985 by Library Journal as one of its recommended books in business/government rela- tions. A Business Tale: A Story of Ethics, Choices, Success, and a Very Large Rabbit, a fable about business ethics, was chosen by Library Journal in 2004 as its business book of the year. A Business Tale was also a finalist for two other literary awards for 2004. In 2000, her book on corporate governance was published by the New York Times MBA Pocket Series. Professor Jennings’ book on long-term success, Building a Business Through Good Times and Bad: Lessons from Fifteen Companies, Each With a Century of Dividends, was published in October 2002 and has been used by Booz, Allen, Hamilton for its work on business longevity. Her book, The Seven Signs of Ethical Collapse is used by auditors in advance detection of fraud and is a primer on corpo- rate culture, including analysis of board efficacy. Her books have been translated into five languages.

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She is a contributing editor for the Real Estate Law Journal and New Perspectives. She served on the Board of Editors for the Financial Analysts Journal from 2007– 2012. She served as editor-in-chief of the Journal of Legal Studies Education during 2003–2004. During 1984-85, she served as then-Governor Bruce Babbitt’s appoin- tee to the Arizona Corporation Commission. In 1999 she was appointed by then- Governor Jane Dee Hull to the Arizona Commission on Character.

Her columns have been syndicated around the country, and her work has appeared in the Wall Street Journal, the Chicago Tribune, the New York Times, Washington Post, and the Reader’s Digest. A collection of her essays, Nobody Fixes Real Carrot Sticks Anymore, first published in 1994 is still being published. She was given an Arizona Press Club award in 1994 for her work as a feature columnist. She has been a commentator on business issues on All Things Considered for National Public Radio. She served as chair of the Bonneville International Advisory Board for KHTC/KIDR from 1994–1997 and was a weekly commentator on KGLE during 1998. She has appeared on CNBC, CBS This Morning, the Today Show, and CBS Evening News.

Professor Jennings earned her undergraduate degree in finance and her J. D. from Brigham Young University. She has done consulting work for law firms, government agencies, businesses and professional groups including AES, AICPA, Allstate, Amgen, AstraZeneca, Bell Helicopter, Blue Cross Blue Shield, Boeing, Bristol-Myers Squibb, Certified Financial Analysts Institute, CoBank, Coca-Cola, Department of Energy, Department of Interior, Dial Corporation, DuPont, Hy-Vee Foods, IBM, Institute of Internal Auditors, Mattel, Motorola, Southern California Edison, Pfizer, Raytheon, Tenet, Toyota, U.S. Navy, Veterans Administration, and VIAD.

Personal: Married since 1976 to Terry H. Jennings, Maricopa County Attorney’s Office Deputy County Attorney; five children: Sarah, Sam, and John, and the late Claire and Hannah Jennings.

About the Author xxvii

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xxviii

Acknowledgments

By its eleventh edition, a book has evolved to a point of trademark characteristics. This book is known for its hands-on examples and readings for business manag- ers. That trademark evolves because of the efforts of many. They are the reviewers and adopters of the text who provide ideas, cases, and suggestions for improve- ment and inclusion, and I thank them all.

Any edition of a book bears the mark of the editors who work to design, refine, market, and produce it. Seven editions ago, Rob Dewey saw potential for the book and applied his enthusiasm and market insights to mold a somewhat ugly duck- ling into a four-color swan. The book also carries the imprimatur of Steve Silver- stein, who confronted me with a profound question, “Why can’t those in business see these ethical dilemmas when they are in the midst of them?” His question forced me back to the drawing board and resulted in the more personal ethical dilemmas. Vicky True, now in Rob’s role, understands the needs of instructors because of her intense road schedule, holds a keen sense of market direction, and offers the insights of both to help to shape this new edition. Kristen Meere, new as the editor for this edition, came into the work with little lead time and picked up the baton and ran with me as we worked through a tight schedule. Kris Tabor has been with me since the first edition, helping with word processing, IMs, study guides, test banks, and venting. We mark 30 years of a terrific partnership with this edition.

This book also carries the unmistakable liveliness of an author who shares her life with helpful and delightful children and one tolerant husband. Since the first edition of this book, I have added four children to our first, witnessed two grad- uate from college, one from law school, grieved over the loss of two, and seen the others grow up all too quickly in a household in which these words, “Mom, the UPS guy is here with page proofs,” made up their first sentences. They now sim- ply witness me hovering over my computer from dawn’s light until I fall asleep on the keyboard. My children and my husband, collectively my family, are the most charming people I know. They have brought me stories, pop culture, and good sense with their, “Uh-oh, here we go!” when their mother finds outrage in yet another ethical lapse in business. Even from their now–globally dispersed posi- tions, they call and ask, “How’s the writing going?” Their vibrancy is found in the color and charm of these pages. I am grateful for their unanimous and unwavering support for my work. Finally, I am grateful to my parents who taught me through their words and examples of the importance and rewards of ethics and hard work.

Marianne Moody Jennings

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Part

1 Business: Its Legal, Ethical, and Judicial Environment

Simply stated, you cannot run a successful business without knowing the law. What is legal? Where can I find the laws I need to know? How do I make decisions about legal conduct that is ethically troublesome

to me? What if I have a disagreement with a customer, employee, or

shareholder? How and where can I resolve our differences?

This portion of the book explains what law is, where it can be found,

how it is applied, and how legal disputes are resolved. But beyond

the legal environment of a business, there are the ethical issues. Just

because what you are doing is legal does not mean it is ethical. And

why should a manager make ethical choices and behave honorably in

business? Law and ethics are inextricably intertwined. A commitment to

both is part of a sustainable business model.

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Chapter

Introduction to Law1 Most people understand the law through personal experiences. Some are exposed to law through traffic tickets. Others encounter the law when a problem arises with a landlord or lease. Many wonder about their rights when search engines and other Internet companies gather information about them without their realizing such efforts were ongoing. Facing income reductions in tough economic times, many wonder what their rights are when collectors call or file suit. Their understanding of the law may be limited by the anger they feel about an annoying collection agent, their e-mail being scanned or a traffic tick- et. However, without traffic laws, the roads would be a study in survival of the fittest. The law is your source of assurance that you have rights when it comes to collection agency actions. Each day businesses find and face legal and ethical issues in everything from privacy rights on Facebook to proper documentation of employees’ citizenship.

The types of laws and the penalties for violating them vary from state to state and from city to city, but, however much they vary, laws exist everywhere and at every level of government. Indeed, law is a universal, necessary foundation of an orderly society. Law helps maintain order, imposing on us certain minimum standards of conduct. When we fall short of those standards, we risk penalties. Law is made up of rules that control people’s conduct and their interrelationships. Traffic laws control not only our conduct when we are driving but also our rela- tionships with other drivers using the roads. In some instances, traffic laws give other drivers a right-of-way, and we are liable to them for any injuries we cause by not following those laws.

This chapter offers an introduction to law. How is law defined? What types of laws are there? What are the purposes and characteristics of law? Where are laws found, and who enacts them?

Update For up-to-date legal news, go to mariannejennings.com

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1-1 Definition of Law Philosophers and scholars throughout history have offered definitions of law. Aristotle, the early Greek philosopher, wrote that “the law is reason unaffected by desire” and “law is a form of order, and good law must necessarily mean good order.” Oliver Wendell Holmes Jr., a U.S. Supreme Court justice of the early twen- tieth century, said, “[L]aw embodies the story of a nation’s development through many centuries.” Sir William Blackstone, the English philosopher and legal scholar, observed that law was “that rule of action which is prescribed by some superior and which the inferior is bound to obey.” Black’s Law Dictionary defines law as “a body of rules of action or conduct prescribed by the controlling authority, and having legal binding force.”1 Law has been defined at least once by every phi- losopher, statesman, and police officer.

Law is simply the body of rules governing individuals and their relationships. Most of these rules become law through a recognized governmental authority. Laws give us basic freedoms, rights, and protections. Law also offers a model of conduct for members of society in their business and personal lives and gives them certainty of expectation. Plans, businesses, contracts, and property ownership are based on the expectation that the law will provide consistent protection of rights. Without such constancy in legal boundaries, society would be a mass of chaos and confusion.

1-2 Classifications of Law 1-2a public versus private Law

Public law includes those laws enacted by some authorized governmental body. State and federal constitutions and statutes are all examples of public laws, as are the state incorporation and partnership procedures, county taxation statutes, and local zoning laws.

This country’s planted thick with laws from coast to coast . . . and if you cut them down . . . d’you really think you could stand upright in the winds that would blow then? A MAn for All SeASonS, Act I

Consider . . . 1.1 John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of Mexico. To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect fish into the sea. Yates was charged with, and convicted of, violating 18 U.S.C. § 1519,

“Whoever knowingly alters, destroys, mutilates, con- ceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation . . . or

any case filed . . . or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”

Mr. Yates says that the statute applies to financial records and not fish. The statute was passed after Enron collapsed and its financial records and audit papers had been shredded to deter such actions by businesses. Who decides whether the law applies to hurling fish overboard? What should the court decide?

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4 part 1 Business: Its Legal, Ethical, and Judicial Environment

Private law, on the other hand, is developed between two individuals. For exam- ple, landlords usually have regulations for their tenants, and these regulations are private laws. Homeowners’ associations have developed an important body of pri- vate law that regulates everything from the type of landscaping for homes in a sub- division to whether homeowners can erect basketball hoops in their driveways. The terms of a contract are a form of private law for the contracting parties. Although the requirements for forming and the means for enforcing that contract may be a matter of public law, the terms for performance are the private law the parties agree to as the rules for governing their relationships. Employer rules in a corporation are also examples of private law; as long as those rules do not infringe any public rights or violate any statutory or constitutional protections, those rules define a private law relationship between employer and employee. For example, most companies now have Twitter and Facebook policies that limit the type of information and comments employees can post about their employers in social media outlets. Interestingly, both state legislatures and the U.S. Congress have proposed legislation that would con- trol employer restrictions on employees’ posts. Public law is being changed to reflect technological areas that are not yet addressed in employment law.

1-2b Criminal versus Civil Law

A violation of a criminal law is a wrong against society. A violation of a civil law is a wrong against another person or persons. Criminal violations have penalties such as fines and imprisonment. When you run a red light, you have committed a criminal violation and owe society a penalty, such as a fine or imprisonment. Vio- lations of civil laws, on the other hand, require restitution: someone who violates a civil law must compensate the harmed party. If you do run a red light and strike and injure a pedestrian, your criminal case is society’s remedy. The civil wrong in the same action requires you to pay damages to that pedestrian.

If you drive while intoxicated, you are breaking a criminal law and are subject to a fine, jail term, or license suspension. If you have an accident while driving intoxicated, you commit a civil wrong against anyone you injure. People who are injured as a result of your driving while intoxicated can file a civil suit against you to recover for injuries to their persons and property (cars).

Other differences also distinguish civil laws from criminal laws and their enforcement. For example, different rights and procedures are used in the trials of criminal cases (see Chapter 8 for more details).

1-2c Substantive versus procedural Law

Substantive laws are those that give rights and responsibilities. Procedural laws provide the means for enforcing substantive rights. For example, if Zeta Corpo- ration has breached its contract to buy 3,000 microchips from Yerba Corporation, Yerba has the substantive right to expect performance and may be able to collect damages for breach of contract by bringing suit. The laws governing how Yerba’s suit is brought and the trial process are procedural laws. Procedural laws are also used in criminal cases, such as grand jury proceedings or arraignments and pleas (see Chapter 8 for more information).

1-2d Common versus Statutory Law

The term common law has been in existence since 1066, when the Normans con- quered England and William the Conqueror sought one common set of laws for

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Chapter 1 Introduction to Law 5

governing a then-divided England. The various customs of each locality were con- glomerated so that all fiefdoms could operate under a “common” system of law. The common law came about as judges in different areas settled disputes in similar ways by consulting their fellow judges on their previous decisions before making decisions. This principle of following other decisions is referred to as stare decisis, meaning “let the decision stand.” This process of legal reasoning is still followed today. The courts use the judicial decisions of the past in making their judgments in order to provide the consistency and constancy of the law.

As much of an improvement as it was, the common law was still just uncod- ified law. Because of increased trade, population, and complexities, the common law needed to be supplemented. As a result, statutory law, which is passed by some governmental body and written in some form, was created.

Today, in the United States, we have common law and statutory law. Some of our common law still consists of principles from the original English common law. For example, how we own and pass title to real property are areas largely devel- oped from English common law. The body of common law continues to grow, however: the judicial system’s decisions constitute a form of common law that is used in the process of stare decisis. Courts throughout the country look to other courts’ decisions when confronted with similar cases.

Statutory law exists at all levels of government—federal, state, county, city, borough, and town. Our statutory law varies throughout our nation because of the cultural heritages of various regions. For example, the southwestern states have marital property rights statutes—often referred to as community property laws—that were influenced by the Spanish legal system implemented in Mexico. The northeastern states have different marital property laws that were influenced by English laws on property ownership. Louisiana’s contract laws are based on French principles because of the early French settlements there.

1-2e Law versus equity

Equity is a body of law that attempts to do justice when the law does not provide a remedy, when the remedy is inadequate, or when the application of the law is terribly unfair. Equity, which originated in England, came into being because the technicalities of the common law often resulted in unresolved disputes or unfair resolutions. The monarchy allowed its chancellor to hear those cases that could not be resolved in the common law courts; eventually, a separate set of equity courts developed that were not bound by rigid common law rules. These courts could get more easily to the heart of a dispute. Over time, they developed remedies not available under common law. Common law, for example, usually permitted only the recovery of monetary damages. Courts of equity, on the other hand, could issue orders, known as injunctions, prohibiting certain conduct or ordering certain acts. The equitable remedies available in the courts of chancery were gradually com- bined with the legal remedies of the common law courts so that now parties can have their legal and equitable remedies determined by the same court.

Today’s courts award equitable remedies when the legal remedy of money damages would be inadequate. For example, the copyright infringement cases brought by the recording and motion picture industries sought injunctions against the individuals and companies that provided the technological means for making unauthorized individual copies of movies and songs. The record companies, the movie producers, and the artists could never be adequately compensated with

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6 part 1 Business: Its Legal, Ethical, and Judicial Environment

money for these forms of infringement because the continued activity caused the loss of their exclusive copyrights. The remedy that they sought and were given were injunctions that, within certain parameters, ordered a halt to the sites and programs that facilitated the unauthorized downloading of copy- righted materials.

1-3 Purposes of Law 1-3a Keeping Order

Laws carry some form of penalty for their violation. Violations of securities laws carry a fine or imprisonment or both. Violations of civil laws also carry sanctions. If an employer discriminates against you by refusing to give you a raise or promo- tion because of your age, gender, or race, you can seek money damages. A driver who injures another while driving intoxicated can be prosecuted but must also pay for the damages and the costs of the injuries the other person experiences. These civil and criminal penalties for violations of laws prevent feuds and the use of primitive methods for settling disputes, such as force.

During the summer of 2016, a number of U.S. cities experienced protests and riots because of concerns about particular police officers’ conduct. These cities imposed curfews in order to bring quiet to the city streets as well as preventing damages to and looting of businesses. A simple curfew law helped to bring order to those cities.

1-3b Influencing Conduct

Laws also influence conduct in a society. For example, securities laws require com- panies to make certain disclosures about those securities before they can be sold to the public. The antitrust laws passed in the early twentieth century prohibited some methods of competition, such as price fixing, and limited others, such as mergers (see Chapter 14). These types of laws continue to change the way busi- nesses operate. For example, Google recently agreed to stop restricting its advertis- ers from working with other search engines.

1-3c Honoring expectations

Businesses commit resources, people, and time to ventures, expansion, and product development with the expectation that the contracts for those commitments will be honored and enforced according to existing law. Investors buy stock with the knowledge that they will enjoy some protection of that investment through the laws that regulate both the securities themselves and the companies in which they have invested. Laws allow prior planning based on the protections inherent in the law.

1-3d promoting equality

Laws have been used to achieve equality in those aspects of life in which equality is not a reality. For example, the equal-right-to-employment acts (see Chapter 20) were passed to bring greater equality to the job market. The social welfare pro- grams of state and federal governments were created to further the cause of eco- nomic justice. The antitrust laws attempt to level the playing field for the free enterprise system to operate efficiently.

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Chapter 1 Introduction to Law 7

1-3e Law as the Great Compromiser

A final and important purpose of law is to act as the great compromiser. Few people, groups, or businesses agree philosophically on how society, business, or government should be run. Law serves to mesh different views into one united view so that all parties are at least partially satisfied. When disputes occur, the courts apply the law to the parties’ situation in an attempt to strike a compromise between two opposing views. The U.S. Supreme Court has provided compromises for the rights of businesses to be involved in the political process and make dona- tions to candidates (see Chapter 5). In the relationship between freedom of speech and advertising regulation, the law serves as the mediator.

1-4 Characteristics of Law 1-4a Flexibility

As society changes, the law must change with it. When the United States was an agricultural nation, the issues of antitrust, employment discrimination, and secu- rities fraud rarely arose. However, as the United States became an industrialized nation, those areas of law expanded, and they continue to expand today. As the United States further evolves into a technological and information-based society, still more areas of law will be created and developed. Computer fraud and iden- tity theft, for example, were unknown issues 35 years ago; today, both state and federal laws address these issues through criminal statutes (see Chapter 8). The introduction of document attachments and electronic signature programs required the courts to re-examine how offers and acceptances of contracts are made, with electronic signatures now legislatively sanctioned as having the same force and effect as signatures on paper (see Chapter 11).

Circumstances change through technology, sociology, and even biology. The law must address those changes. What are the rights of copyright holders when an Internet company creates a system that allows users to post videos that are copy- righted? With billions of users and millions of videos, how do we protect copy- righted materials?

1-4b Consistency

Although the law must be flexible, it still must be predictable. Law cannot change so suddenly that parties cannot rely on its existence or protection. Being able to predict the outcome of a course of conduct allows a party to rely on a contract or dissuades a party from the commission of a crime. For a contract, a judicial remedy can be ordered for breach or non-performance; for a crime, a prescribed punish- ment is the result.

1-4c pervasiveness

The law must be pervasive and cover all necessary areas, but at the same time, it cannot infringe on individual freedoms or become so complex that it is difficult to enforce. For example, laws cover the formation, operation, and dissolution of corporations. Laws govern corporate management decisions on expanding, devel- oping, and changing the nature of the corporation. Laws also ensure that share- holders’ rights are protected. The corporation has great flexibility in management, as long as it stays within these legal boundaries.

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8 part 1 Business: Its Legal, Ethical, and Judicial Environment

In the following case, the U.S. Supreme Court was a deeply divided court on a statutory interpretation question, a question that touched on many of the pur- poses of law. The majority and dissenting opinions show the struggle courts face as they try to honor the law’s dual purposes of keeping order while preserving rights. Case 1.1 is briefed in Exhibit 1.1. A brief is a tool used by lawyers, law stu- dents, and judges to help them summarize a case and focus on its facts and the key points of the decision by the court. The Yates case answers the questions posed in the “Consider . . .” problem at the beginning of the chapter.

Yates v. U.S. 135 S.Ct. 1074 (2015)

Hurling Fish Overboard the Miss Katie: Obstruction of Justice?

Case 1.1

FaCtS

On August 23, 2007, the Miss Katie, a commercial fish- ing boat, was six days into an expedition in the Gulf of Mexico. Her crew numbered three, including Yates, the captain. Engaged in a routine offshore patrol to inspect both recreational and commercial vessels, Officer John Jones of the Florida Fish and Wildlife Conservation Commission decided to board the Miss Katie to check on the vessel’s compliance with fishing rules. Because he had been deputized as a federal agent by the Nation- al Marine Fisheries Service, Officer Jones had authority to enforce federal, as well as state, fishing laws.

Upon boarding the Miss Katie, Officer Jones noticed three red grouper that appeared to be under- sized hanging from a hook on the deck. At the time, federal conservation regulations required immediate release of red grouper less than 20 inches long. Offi- cer Jones instructed Yates to keep the undersized fish segregated from the rest of the catch until the ship returned to port. After Jones departed, Yates instead told a crew member to throw the undersized fish overboard. For this offense, Yates was charged with destroying, concealing, and covering up undersized fish to impede a federal investigation, in violation of 18 U.S.C. § 1519:

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investi- gation or proper administration of any matter with- in the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter

or case, shall be fined under this title, imprisoned not more than 20 years, or both.”

Yates was convicted but moved to dismiss the charges, arguing that §1519’s reference to “tangible object” means objects used to store information, such as computer hard drives, not fish. The District Court denied Yates’s motion, and a jury found him guilty. The Eleventh Circuit affirmed the conviction, concluding that §1519 applies to the destruction or concealment of fish because, as objects having phys- ical form, fish fall within the dictionary definition of “tangible object.” Yates, who was sentenced to 30 days in jail and three years of supervised proba- tion as well as carrying a felony conviction for life, appealed.

JUdICIaL OpINION

GINSBURG, Justice Although dictionary definitions of the words “tangi- ble” and “object” bear consideration in determining the meaning of “tangible object” in §1519, they are not dispositive. Whether a statutory term is unambiguous “is determined [not only] by reference to the language itself, [but also by] the specific context in which that language is used, and the broader context of the statute as a whole.”

Section 1519’s position within Title 18, Chapter 73, further signals that §1519 was not intended to serve as a cross-the-board ban on the destruction of physical evidence. Congress placed §1519 at the end of Chapter 73 following immediately after pre-existing specialized provisions expressly aimed at corporate fraud and financial audits.

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Chapter 1 Introduction to Law 9

The contemporaneous passage of §1512(c)(1), which prohibits a person from “alter[ing], destroy[ing], mutilat[ing], or conceal[ing] a record, document, or other object . . . with the intent to impair the object’s integrity or availability for use in an official proceed- ing,” is also instructive.

Use of traditional tools of statutory interpretation to examine markers of congressional intent within the Sarbanes–Oxley Act and §1519 itself thus call for rejec- tion of an aggressive interpretation of “tangible object.”

Having used traditional tools of statutory inter- pretation to examine markers of congressional intent within the Sarbanes–Oxley Act and §1519 itself, we are persuaded that an aggressive interpretation of “tan- gible object” must be rejected. It is highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting fraud in financial record-keeping.

Reversed.

ALITO, Justice, Concurring [T]hough the question is close, traditional tools of statutory construction confirm that John Yates has the better of the argument. Three features of 18 U.S.C. § 1519 stand out to me: the statute’s list of nouns, its list of verbs, and its title. Although perhaps none of these features by itself would tip the case in favor of Yates, the three combined do so. Start with the nouns. Sec- tion 1519 refers to “any record, document, or tangible object.”

[T]he term “tangible object” should refer to some- thing similar to records or documents. A fish does not spring to mind—nor does an antelope, a colonial farm- house, a hydrofoil, or an oil derrick. All are “objects” that are “tangible.” But who wouldn’t raise an eyebrow if a neighbor, when asked to identify something similar to a “record” or “document,” said “crocodile”?

[My] analysis is influenced by §1519’s title: “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” (Emphasis added.) This too points toward filekeeping, not fish. Titles can be useful devices to resolve “‘doubt about the meaning of a statute.’” The title is especially valu- able here because it reinforces what the text’s nouns and verbs independently suggest—that no matter how other statutes might be read, this particular one does not cover every noun in the universe with tangible form.

KAGAN, Justice Dissenting with Justices SCALIA, KENNEDY, AND THOMAS

If none of the traditional tools of statutory interpre- tation can produce today’s result, then what accounts

for it? The plurality offers a clue when it emphasizes the disproportionate penalties §1519 imposes if the law is read broadly. Section 1519, the plurality objects, would then “expose[ ] individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investiga- tion into any offense.” That brings to the surface the real issue: overcriminalization and excessive punish- ment in the U.S. Code.

Now as to this statute, I think the plurality some- what—though only somewhat—exaggerates the mat- ter. The plurality omits from its description of §1519 the requirement that a person act “knowingly” and with “the intent to impede, obstruct, or influence” federal law enforcement. And in highlighting §1519’s maxi- mum penalty, the plurality glosses over the absence of any prescribed minimum. (Let’s not forget that Yates’s sentence was not 20 years, but 30 days.) Congress presumably enacts laws with high maximums and no minimums when it thinks the prohibited conduct may run the gamut from major to minor. That is assuredly true of acts obstructing justice. Most district judges, as Congress knows, will recognize differences between such cases and prosecutions like this one, and will try to make the punishment fit the crime. Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law—too broad and undifferentiated, with too-high maximum penalties, which give pros- ecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.

But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” If judges dis- agree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.

I respectfully dissent.

CaSe QUeStIONS

1. Explain what Mr. Yates did and why.

2. Describe the terms used in the statute at issue and the history of the statute.

3. Why does the dissent think the majority made the decision it did?

03572_ch01_ptg01_001-023.indd 9 8/26/16 3:19 PM

10 part 1 Business: Its Legal, Ethical, and Judicial Environment

Exhibit 1.1 Sample Case Brief

Name of case: Yates v. U.S. Court: U.S. Supreme Court Citation: 135 S.Ct. 1074 (2015) Parties and their roles: United States (respondent/prosecutor); John L. Yates (petitioner/defendant) Facts: John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of

Mexico. To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect fish into the sea. Yates was charged with obstruction of justice through destruction of the small red-grouper fish.

Issues: Is the release of fish back into the sea obstruction of justice? Lower court decision: Yates was convicted and appealed. His conviction was upheld. He appealed to the U.S. Supreme Court. Decision: A split court held that the fish were not “tangible objects” for purposes of the obstruction of justice

statute. The court held that the statute was passed to cover files and electronic records and not tangible objects such as fish. The conviction was reversed.

Reasoning: The court held that the statute was passed in the wake of financial and ethical collapses in companies and was not intended to have generic application. It was directed at electronic files and documentation, not tangible objects such as fish.

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Ethical Issues

Evaluate the ethics of Mr. Yates in hurling the fish back after the federal agent told him to retain them.

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Consider . . . 1.2 Andrew B. Katakis received a letter from his bank informing him that federal inves- tigators had subpoenaed his bank records. On September 3, 2010, Katakis purchased, downloaded, and installed a program called DriveScrubber on his home computer, a Dell. DriveScrubber places deleted infor- mation into free space on the computer. DriveScrubber actively overwrites all data in the free space of a hard drive. Once a file is

overwritten by DriveScrubber, it is impossi- ble to retrieve it.

Katakis’s business partner, Steve Swanger, kept two computers at their office. Katakis told Swanger that he wanted to install a “scrubber program” on their computers and that there was “nothing wrong with us cleaning our computers.” The Swanger Dell had 4,000 e-mails on it, and Katakis began deleting them. After seeing that it would

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