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AGENCY, corporations, Partnership - Coggle Diagram
AGENCY
independent contractor v. employee factors
distinct occupation or business
work customarily done under principal's supervision
skill required in the agent's occupation
who supplies the tools and place of performance
length of time the agent is engaged
whether agent paid by job or by hour
intent of the parties
whether the principal is in business
Contract or Tort?
Contract
3rd party v. principal
agent acting within scope of
authority
may bind his principal in contract
types of authority
actual
apparent
ratification
3rd party v. agent
disclosed
undisclosed
breach of warranty of authority
agent v. principal (contractual duties owed to agents)
compensate - per the agency contract
indemnify - for reasonably incurred legal liabilities
reimburse - for reasonably incurred expenses
cooperate
principal v. agent
contract liability based on terms of their contract
highly unusual test area
Tort
3rd party v. principal
agent is employee
respondeat superior
agent is independent contractor
generally no liability
exceptions
inherently dangerous activity
nondelegable duty
loaned agent
negligent selection of contractor
3rd party v. agent
individuals always liable for own torts
agent v. principal
agents always liable for their own torts
principal v. agent
agents liable for breach of their duties to the principal (COLA)
duty of care
duty of obedience
duty of loyalty
no self-dealing
may not usurp business opportunity belonging to principal
duty not to compete
no dual agency
duty to account
Who is suing who?
is there an agency relationship?
corporations
fundamental corporate change
notice to directors to hold meeting
board resolution to hold special meeting of shareholders
notice to shareholders
approval by majority shares and majority of each group neg affected by change
possibility of dissenting shareholder's right of appraisal
file notice with the state
issuance of stock
shareholders preemptive rights
dividends
voting
judgment of board of directors conclusive as to consideration received for shares
must be issued by vote of shareholders or directors
formation
defective incorporation
de jure
de facto
corporation by estoppel
limited liability companies (LLC)
member managed
manager managed
member's withdrawal = disassociation
disassociation does not = dissolution
promoter liability
personally liable
until novation
corporation not liable for any pre-incorporation agreements
commencement
directors/officers/shareholders rights and responsibilites
shareholders
NO PERSONAL LIABILITY FOR DEBT OF CORP
EXCEPTIONS
PIERCING THE CORPORATE VEIL
alter ego
inadequate capitalization
failure to comply with corporate formalities
corporate veil more likely to be pierced for TORTS
voting agreements
voting trusts
shareholder derivative suit
majority shareholders owe fiduciary duty to refrain from exercising control to obtain a benefit not shared proportionately with minority shareholders
directors
manage corp
business judgment rule
fiduciaries of corp
duties
duty of care
duty of loyalty
conflict of interst
transaction voidable by corp unlesss
material facts of conflict were fully disclosed; or
transaction fair
rebuttable presumption of conflict of interst
indemnification
ultra vires
officers
same duties as directors
agents of corp
hired by directors
can be removed by directors
federal securities law
10b of securities exchange act of 1934
elements
misrepresentation of material fact
knowledge by D of misrepresentation or reckless disregard of truth
scienter (intent to deceive, manipulate or fraud)
reliance by P
damages
available causes of action
misrepresentation in connection with purchase of securities
traded in stock while under duty either to disclose or abstain from trading until the inside info is disclosed
16b action: recovery of short swing profits (only to publicly traded companies)
prevent unfair use of information and internal manipulation of price
profit recoverable
requires two transactions in stock
strict liability offense
damages
Partnership
disassociation/dissolution
death
withdrawal
bankruptcy
expulsion
decision whether or not to dissolve after disassociation by:
working life
partners powers
express authority
apparent authority
no authority: potential breach of parties agreement
rumuneration
liability
individually fully liable
entitled to indemnification
partners may seek contribution
retiring partners liable for obligations
incoming partner not liable for obligations before joining
winding up/termination
partnership property v.
originally brought in
subsequently acquired
bought with partnership funds
partner's individual property
intent evidenced not for partnership
contrary intention from applicable law
once type of property decided, assets sold in particular order
inside creditors
capital contributions
outside creditors
profits
cost of the sale
creation
general
intent of parties forms
types
for a specific undertaking
for a term
at will
limited
types
general partners
formation
file with sec of state
one gen partner + one limited partner