Short Answer (2 points each)
1. In the case of Global-Tech Appliances, Inc., et al. v. SEB, SA, 131 S.Ct. 2060 (2011), which involved inducement of direct patent infringement, the Court applied a mens rea (state of mind) that is traditionally found in criminal law to the “knowing” state of mind now required for inducement of patent infringement. What is that state of mind?
2. With respect to the Foreign Corrupt Practices Act (FCPA), what is the state of mind required for the elements of making the prohibited payment directly or indirectly to a foreign official?
3. In an internal investigation in connection with the possible violations of the Foreign Corrupt Practices Act (FCPA) an attorney conducting the investigation must advise company personnel and witnesses who she interviews that, with respect to her role, she is the attorney for——.
4. In the case of Kiobel v. Royal Dutch Petroleum, 132 S.Ct. 1659 (2013), the Court held that the Alien Tort Statute could apply to conduct that occurred outside of the United States only when the evidence shows what?
5. There are two types of personal jurisdiction. What are they?
6. With regard to personal jurisdiction, what are the words that the courts use to describe the test that must be satisfied in order for the requirement of Due Process to be met?
7. As contrasted between mediation and arbitration, in order to enforce arbitration, the courts must find that there was a——between the parties in which the arbitration agreement is contained.
8. As contrasted between mediation and arbitration, a mediator does not make findings of fact or conclusions of —-, but an arbitrator does. What is that difference?
9. If a party does not abide by an arbitrator’s decision, the winning party may file what type of action to enforce the arbitrator’s decision?
10. The DOJ frequently uses a————when investigating a corporation for a potential criminal offense to encourage the corporation to cooperate. What is it that the DOJ frequently uses?
11. When designing a compliance and ethics program, you must keep in mind that the Organizational Sentencing Guidelines will result in a court evaluating that program to make sure that it is an———program. What is the term used in the Sentencing Guidelines?
12. If a Board of Directors does not establish a compliance and ethics program in a corporation, what fiduciary duty has the Board breached?
13. A compliance and ethics program should contain, as part of the compliance dimension, a focus on understanding the legal rules that apply to the particular business, the risks involved, and what it takes to comply with the law. In contrast, the ethics portion of any compliance and ethics program should be —–based.
14. In addition to having a compliance and ethics program and continuous training on the program, a compliance and ethics program must have ———–.
15. The Dodd-Frank Act required the Securities and Exchange Commission to set up what type of program for whistleblowers?
True/False (2 points each)
1. American Antitrust law does not apply extraterritorially even if such antitrust conduct has a direct, substantial, and reasonably foreseeable effect on U.S. commerce or on the business of a person engaged in exporting goods from the U.S. to foreign nations. True/False?
2. Title VII (employment law provisions regarding discrimination in employment), does not apply extraterritorially to employees of U.S. companies abroad. True/False?
3. American patent law (excluding inducement of patent infringement) does not apply extraterritorially. True/False?
4. The Foreign Corrupt Practices Act applies only to U.S. persons and corporations and not to non-U.S. persons. True/False?
5. The Sarbanes-Oxley Act has been held by the courts to apply extraterritorially. True/False?
6. If an employee proves a prima facie case of employment discrimination under Title VII, the burden of production shifts to the employer to prove a bona fide occupational qualification (BFOQ) which will be a defense under Title VII unless the employee plaintiff proves that the alleged BFOQ is a pretext i.e. is an unjustified and unsupported excuse advanced by the employer. True/False?
Shorter Essay (2 points)
1. Other than court-ordered mediation, both mediation and arbitration should be considered to be voluntary. Explain.
Bonus Question (10 points)
Trust is, or at least should be, an organizing principle in business relationships. Assuming that is true, does the “fairness doctrine,” which is part of the Fiduciary Duty of Loyalty, as applied in American courts, support the concept of trust as between a board of directors and a director who had an undisclosed conflict of interest?