LEAB cheat sheet

Sources of law hierarchy in a common-law system: constitution > statute > regulation > case law; agency regulations bind only within the authority delegated by the enabling statute.

Federal preemption applies where Congress expresses intent to occupy a field, where compliance with both regimes is impossible, or where state law obstructs a federal objective.

Administrative rulemaking under the APA: informal (notice-and-comment) rulemaking requires publication of a proposed rule, an opportunity to comment, and a reasoned final rule with response to significant comments.

Standing requires injury in fact (concrete and particularized), causation traceable to the defendant, and redressability by a favorable ruling; each element must be proven by the plaintiff.

Statute of limitations runs from accrual, generally when the injury is discovered or should have been discovered; equitable tolling suspends the period where the defendant concealed the wrong.

Stare decisis binds lower courts within the same jurisdiction to precedent; a court may depart only where precedent is distinguishable, superseded by statute, or unworkable.

Personal jurisdiction over an out-of-state business requires minimum contacts plus fair play and substantial justice; purposeful availment plus foreseeability of suit is the core test.

Regulatory compliance defenses: good-faith reliance on an agency interpretation is a defense only where the interpretation was reasonable and the party disclosed all relevant facts.

UCC Article 2 applies to transactions in goods; common law governs services and real estate; where a contract mixes both, courts apply the predominant-purpose test.

UCC firm offer rule: a signed writing by a merchant assuring the offer will be held open is irrevocable for the stated period, or a reasonable time, capped at three months.

Battle of the forms under UCC 2-207: a definite expression of acceptance operates as acceptance even with additional terms; between merchants, additional terms enter the contract unless they materially alter it or are objected to.

Perfect tender rule (UCC 2-601) allows a buyer to reject goods failing in any respect, subject to cure rights and the seller's right to cure within the contract time.

Parol evidence rule bars prior or contemporaneous agreements that contradict a fully integrated writing; consistent additional terms may be admitted only if the writing is partially integrated.

Statute of frauds categories: marriage, year (performance cannot be completed within one year), land, executor, surety, and sale of goods over $500 under UCC 2-201.

Expectation damages place the non-breaching party in the position performance would have produced; consequential damages require foreseeability at contract formation (Hadley v. Baxendale).

Liquidated damages are enforceable only if the amount is a reasonable forecast of anticipated harm at formation and not a penalty; unconscionability examines procedural and substantive unfairness.

Corporate formalities: articles of incorporation filed with the state, bylaws adopted by the board, and an initial organizational meeting electing directors and officers.

Limited liability shield can be pierced on grounds of alter ego (commingling, undercapitalization, failure to observe formalities) or fraud; courts apply it narrowly.

Business judgment rule presumes directors acted on an informed basis, in good faith, and in the honest belief the action served the corporation; the plaintiff bears the initial burden.

Entire fairness review applies to conflicted transactions; the burden shifts to the plaintiff if the transaction is approved by a fully informed majority of disinterested shareholders or an independent committee.

Derivative suits require demand on the board or a showing of futility; the demand-futility test examines whether a majority of directors are disinterested and independent.

Partnership default rules: absent an agreement, profits and losses are shared equally, unanimity is required for ordinary decisions, and a partnership dissolves upon a partner's dissociation.

LLC members may contract around fiduciary duties only to the extent the statute permits; implied covenant of good faith and fair dealing cannot be eliminated entirely.

Securities reporting: Exchange Act Section 13(a) requires periodic reports (10-K, 10-Q, 8-K); Section 16 requires insiders to report holdings and short-swing profits are recoverable.

At-will employment permits termination for any reason or no reason, except for a prohibited reason such as race, sex, religion, national origin, age, disability, or retaliation.

Title VII applies to employers with 15 or more employees; the ADA and ADEA apply at 15 and 20 employees respectively; the FLSA covers enterprises with at least $500,000 in annual gross volume.

Disparate treatment uses the McDonnell Douglas burden-shifting framework; disparate impact requires a facially neutral policy with a statistically significant adverse effect and no business necessity.

Hostile work environment requires unwelcome conduct based on a protected characteristic, severe or pervasive enough to alter the terms of employment, and employer liability under agency principles.

NLRA Section 7 protects concerted activity for mutual aid or protection; Section 8(a)(1) prohibits interference, restraint, or coercion of employees exercising those rights.

WARN Act requires 60 days' advance notice of a mass layoff (50+ employees at one site) or plant closing (50+ employees or 33% of the workforce at a site) for covered employers.

FLSA overtime: non-exempt employees receive 1.5 times the regular rate for hours over 40 in a workweek; the salary-basis and duties tests define exempt white-collar status.

Workers' compensation is generally the exclusive remedy for workplace injuries; the exclusivity bar yields to intentional torts and, in some states, gross negligence.

Copyright protection attaches on fixation in a tangible medium; registration is a prerequisite to filing suit for US works and enables statutory damages and fee recovery.

Fair use factors: purpose and character of the use (including commerciality and transformativeness), nature of the work, amount used, and effect on the potential market.

Trademark rights arise from use in commerce; the Lanham Act protects against likelihood of confusion, dilution of famous marks, and cybersquatting under the ACPA.

Patent categories: utility (process, machine, manufacture, composition), design, and plant; utility patents require novelty, non-obviousness, utility, and adequate written description.

Trade secret protection requires reasonable measures to maintain secrecy and independent economic value; the Defend Trade Secrets Act provides a federal civil cause of action.

DMCA Section 512 safe harbor shields online service providers that adopt and reasonably implement a repeat-infringer policy and respond expeditiously to takedown notices.

Work made for hire: works created by employees within scope of employment, or commissioned works in nine statutory categories with a signed written agreement, vest in the employer.

Software licensing: perpetual, term, seat-based, and subscription models; open-source licenses (GPL, MIT, Apache) impose varying copyleft and attribution obligations on derivative works.

Confidentiality under Model Rule 1.6 permits disclosure only with informed consent, to prevent reasonably certain death or substantial bodily harm, or as required by law or court order.

Conflict of interest (Rule 1.7): a concurrent conflict exists where representation of one client will be directly adverse to another, or where there is a significant risk of material limitation.

Informed consent requires the lawyer to communicate adequate information about the material risks of and reasonably available alternatives to the proposed course of conduct.

Fee agreements: contingent fees are prohibited in criminal cases and in domestic relations matters where the fee is contingent on securing a divorce or amount of support.

Sarbanes-Oxley Section 806 prohibits retaliation against whistleblowers; Dodd-Frank Section 922 provides bounty awards of 10-30% of sanctions over $1 million.

FCPA prohibits bribery of foreign officials and requires accurate books and records; the facilitating-payments exception is narrow and does not cover obtaining or retaining business.

Compliance program elements: tone at the top, written policies, training, monitoring and auditing, reporting mechanisms, discipline, and periodic risk assessment.

Upjohn warning: counsel representing the corporation must advise employees that the lawyer represents the entity, that communications may be disclosed to the entity, and that the employee may retain personal counsel.

Risk treatment options: avoid, reduce, transfer (insurance, indemnity), and accept; residual risk is the exposure remaining after controls are applied.

Indemnification clauses shift liability for specified claims; enforceability often turns on whether the clause covers the indemnitee's own negligence and whether it is conspicuously stated.

Arbitration enforceability rests on the FAA; the FAA preempts state laws singling out arbitration, and courts decide gateway questions unless the parties clearly delegate arbitrability.

Mediation is non-binding facilitation; settlement communications are generally inadmissible under FRE 408 and state equivalents to encourage candor.

Choice-of-law clauses are enforced absent a contrary fundamental public policy of the forum or no reasonable basis for the chosen law.

Forum selection clauses are presumptively valid and enforceable unless the resisting party shows enforcement would be unreasonable or the clause was obtained by fraud.

Insurance concepts: deductible is the insured's retained loss per claim; coinsurance is the insured's share of covered loss; subrogation lets the insurer pursue third parties after paying a claim.

Litigation hold obligations arise when litigation is reasonably anticipated; spoliation of ESI can yield adverse inference instructions, sanctions, or default judgment.