Notes

TM has to be used in commerce

Copyright attaches as soon as you create something and it can be reproduced
- But if you want to sue, you need to register it
Copyrights and patents- federal
Trademarks- Commerce clause:
Trade secrets- state law re: business torts
Right of publicity -> state law re: privacy,

Trade secret
- Look for definition and what constitutes appropriation
Basic reqs:
- Info generally not known or readily ascertainable
- Provides economic value
- Reasonable steps to maintain secrecy
Doesn’t expire unless disclosed
No protection from independent creation or reverse engineering
Trade secreat governing laws
- State law: UTSA, adopted by almost all states
- Federal: defend trade secrets act
o Whistleblower immunity

8/29
Use UTSA for trade secret definitions for this class:
Trade Secret means information including a formula, pattern, compilation, etc. that:
i. derives independent economic value, actual or potential, that isn’t generally known or
readily ascertainable to other who can economically benefit from its disclosure or use, and
ii. is subject of efforts that are reasonable under the circumstances to maintain its secrecy
Metallurgical
- Trade secret can be a combination of things that are known as long as the combination itself is
unknown
- NDA’s are not dispositive because course of dealing may give rise to duty of confidentiality
- More than one company can have identical trade secrets so long as no misappropriation
o But if one publishes then there’s no recourse
Rockwell
- Did Rockwell take reasonable security measures?
- Rockwell had policies in place for confidentiality: sing in/out, copies had to be destroyed
- Problem is that policies were never enforced, but enforcing them would be costly
o Jury needs to decide if cost of enforcement outweighed trade secret
How to lose TS by disclosure:
- Publication by owner
- Sale of product: lost if apparent from the product (i.e. self disclosing)
- Disclosure by 3rd party
- Inadvertent disclosure. How long was it posted before taken down? How obscure was the place
of postage?
- Gov req’d disclosure
Bkr prob 4.1 texas exemptions only

Denton
Fed rule: not more than 25% of disposable income
IL: lesser 15% of gross earnings or 50x min wage

Congress passes Sherman act to protect competition

- Scouts backed off from literal interpretation of word “every”

Ancillary restraints subject to the rule of reason

i.e ancillary to a legitimate goal
- are there less restrictive alternatives to achieving the goal? Legal if no less restrictive alternatives
Who can sue under antitrust?
- The right to sue doesn’t come from section 1. No private remedy, there’s only a violation
Clayton act sec 4 allows any person to sue
1. Direct purchaser req
2. Business or prop limitation
3. Antitrust injury
4. Standing

PS Tax
Podell
- Elements of a jv are:
o A contract showing the intent of the parties that a venture be established;
o An agreement to joint control;
o Contribution of money, property, or services
o Sharing of profits, but not necessarily losses

9/3
15 usc 1674- protects garnishment employees from being fired. Loophole is that protection is for any
ONE indebtedness
Fraudulent transfer: if debtor made transfer 1. With actual intent to hinder, delay, defraud a creditor OR
2. Without receiving a reasonably equivalent value in exchange for the transfer or obligation and the
debtor is or about to become insolvent
There are property exemptions which can be waived, but the FTC provides that its unfair practice to take
nonpossessory/pmsi interest in certain household goods
Problem 4.1
- H and L is a family
- For 60k exemption, it has to fall into the categories
- They owe at least 5k. What will be exempt?
 - Household furniture, appliances, clothing are exempt
- Moped can be exempt if primary mode of transport
- Cash value of lowest insurance: a saving product that’s protected often but the texas statute
saysy something about this
- Wedding ring can be exempt up to 25% of aggregate limitations
- Computer could be a home furnishing or a personal business item
60-73 3.1

9/5
68-72, 96-102 4.1
Why bkr?
- Salvage asset values
- End the collection race
- Fresh start
109 a,b,c,d,e,g who may be adebtor
Ch13 reqs wage income and a cap on outstanding debt
Orrliminary procedures
- Schedules and supporting materials
- Debt counseling
- Lawyer certification
- 341 ,meeting within 40 days of filing
Trustee appointed by us trustee office in consumer cases
- Duty to unsecured creditors because they're most vulnerable
Property of the estate 541
3 issues
- Is there an interest at time of filing
- Is it an interest in property
- Is there an enforceable restriction on transfer
Prochnow
- Test for whether post pet income is property of the estate depends on whether income accures
from pre or post petition services

PS TAX 9/5
Have to be an entity for tax purposes. State level is irrelevant
Page 26- problem 1 A. not an entity bc there aren’t any profits and no venture
B. Seems like a partnership under podell
c. Profit motive/sharing? Sharing of expenses? Not an entity
d. Agreement for joint control? Podell or Allison? Probably a PS.
E. Sharing of profits?
f. Financing. Not entity. No joint agreement to do business
read rev ruling 99-5

9/9
Considerations before you file suit
- Jurisdiction
- Venue
- Understabnd clients overall goals
- Has client tried to resolve this already?
 - May want to jump in and start informal discussions
o Tolling agreement- limitation isn’t running/party wont enforce limitations
- Determine if contract has predicates to suit. i.e. notice, arbitration, etc.--- this would be for a
contract claim
o Notice and dispute resolution provisions
- Maybe send a demand letter
- Might need to file a temp restraining order
- PJ, SMJ, and Venue
Forums
- Court
- Arbitration
- Administrative proceeding
Judge vs jury
- Comm’l disputes are more of a coin toss
- PI claims will prob have jury sympathy
Review 4,5,12,41
1441-1446
141-48, 355-60, 375-77

9/12
PS Tax
P41 Problem
a.
a. Partner a- realized from contributions. Outside basis of 30k
b. Realized but not recognized 50k. 50% holding period
c. Realized but not recognized 50k. holding period tack for 70% f the assets contributed
d. Nothing happens
b. Basis carries over
c. To prevent abuse
P47 problem
a. Basis and cap accounts go up 5k for each partner
b. Cap account doesn’t change
c. S
P50 problem
a. 225k for each partner
b. A get’s the 900k basis bc hes the only one at risk
c. No change bc lp’s are still not at risk
P55 problem
a. C basis drops to 10 bc he contributes loan. But then goes up 10 bc ps assumes the loan
b. Basis goes to zero and gets an income of 10

9/16
Corp entity is the one that lost profit, should be the P for the memo
Review ruoles 7,12,18,19 and local 7
148-53
335-45
Prepare rule 12b motion to dismiss for M1

9/23
Always ask if case is removable. Deadline to file is 30 days from receipt of complaint either by service or
otherwise. Ask client how he got the complaint
Primary removal causes are fed question or diversity. Preemption is also a factor
Removal on diveraity- all d’s must consent. By when do they have to consent?
motion vs answer- the merits. Motion attacks a technical defect in pleading which may or may not be
merits based. Motion attacks pleading- saying that something is wrong. Asks the court to do something.
Will get set for hearing when filed. Answers are not set for hearing
rule 12b
- If you don’t assert them, you waive them
If no allegation of gross negligence, cant present GN evidence
Read Fed rules 8,13,14,24
153-79
Prepare and answer, counterclaim, or crossclaim

9/26/19
PS Tax
Loss must clear all 3 hoops before it is deductible
- Basis limits
- 465 at risk limitations
- 469 passive loss limitations
- 183 hobby loss might apply
704(d) Basis limitation
- A partner's distributive share of partnership loss (including capital loss) shall be allowed only to
the extent of the adjusted basis of such partner's interest in the partnership at the end of the
partnership year in which such loss occurred. Any excess of such loss over such basis shall be
allowed as a deduction at the end of the partnership year in which such excess is repaid to the
partnership.
§465 At risk limitations
- General rule, partner is at risk for:–Cash contributed to the partnership–Adjusted basis of
property contributed–Amounts borrowed for which partner is personally liable
o Often means that basis that includes nonrecourse liabilities are not “at risk”
o Can have qualified nonrecourse financing related to real estate
§469 Passive loss limitations
- Investment losses should not “shelter” business income
- Passive activity losses can offset passive activity gains
- Conduct of any trade or business in which the taxpayer does not “materially participate.”
o A taxpayer is treated as materially participating if the taxpayer’s activities are: (1) regular,
(2) continuous, and (3) substantial.
Page 78
a. Want to choose 1/31 for as much deferral as possible but 706b1Bi prevents that bc maj interest
year must be adopted
b. Majority interest year end must be adopted. 80% of partners are majority
 c. Befor sale 80% were cal year
a. After sale 60% is held by corp partner
b. New YE is same as corp partner, 7/31
c. 706b4 gives test for year end on first day of the year
d. Majority test fails
a. 40% calendar
b. 40% 9/30
c. 20% 7/31
d. Use principal partner test. Partners w/5%+ interest
e. Likely to be denied
a. Tax info is not a business purpose under rev rul 87-57
b. Still must use calendar year
f. Ps may change to a 1/31 fiscal YE under 706b1C exception
a. Ps satisfies rev proc 2006-46 25% test and can show natural business year
b. No election under 444 is necessary for thischange
P82
a. Ss items IMPORTANT
a. Int exp 6k
b. 2131 gain 2k
c. Div 7k
d. Char cont 800
e. *****
b. 1231 gain
a. Siv
b. Stcg
c. Net ltcg 2k
d. 1231 gain
e. Each have 29850 increase
c. Cash distribution reduces basis before taking into account share of 702a7 loss
a. A is 79850, b is 49850
d. No bc character is determined at ps level

P 95
A. Ps loses 20k which will divide evenly. C is only allowed to deduct 5k under 704d. carriesforward
5k. D allowed full 10k loss. C basis is 0, D basis is 5k
B. Obth partner get 10k. C gets to use 5k loss carryforward. D basis is now 15k
C. Cash or property contribution. Maybe addl loans
D. C has 7500 ord loss and 2500 ltcl. Carryover is also allocated****
E. Loss doesn’t carry over to new partner

P99-100
1. Bc there isn’t net income, there is no basis limitation on the losses or pas act limitation
a. . creates at risk limitation only since lp is lim partner
b. As lp, lp is *****
P107
1. F
a. Producer is allocated 120k loss on her 40% gen ps 704a. reduces besis from 350k to 230
w no 704d limitation (705a2a). producer is also allocated 60k loss on 20% limited ps int
and would reduce aggregate outside basis from 230 to 170, again w no 704 limitation.
Producer is at risk for all losses to extent of contributions
b. B
c. Meets 5 of 10 year test
d. Div income and net gain from sec sale are portfolio income which isn’t treated as passive
income. Separately stated.****
e. Skip g and h
EXAM: Starting ps. Operations. Calendar year. Choice of entity. Suspension of losses

Chapter 4
704a partners dis share determined by ps agreement
761c ps agreement can be modified by due date of return
704b partners dist shar is same as interest if 1. Ps agreement doesn’t indicate so or 2. Allocation doesn’t
have substantial economic effect
- 704b prevents tax abuse by reqing allocation bear a relationship ***
Oiisch
- Agreement to allocate depex to orrisches
- When bulding sold

10/14/19 CIV LIT

Initial meeting- both parties meet and discuss timelines
Important dates
- trial date
- pretrial conference
- dispositive motions
- dalber motions: motion to strike expert. Can be dispositive
- Pretrial order replaces all the pleadings
- discovery deadlines. Once it hits, that’s it
- deadline to amend pleadings
Read rule 26
Relevant- if it proves or diproves anything related to defense
- When in relevant matter discoverable?
Purpose of discovery is trial by ambush
Privilidged matters are not discoverable- i.e lawyer’s work; doctor patient; attorney client

Read rules 33-36; 193-202 219-32 240-48 311-321

Prep discovery req for m1 for the P’s

10/21/19 CIV LIT

Disclosure
- Identify member or rep of disclosing party. You can just say you’re the rep
P tactic- try to depose CEO or a top guy just to aggravate them. Usually the person at the top doesn’t
know much about the issue
Is there a witness you’ll absolutely need to make a case?
Discovery allows you to see what the other side has
- It makes sure you wont have any surprises at trai- no trial by ambush. If you get surprised at trial
either other party didn’t play fair or you didn’t do your job
Methods of written discovery
- Request for admission or deanials
- Interrogatory answers
- Request for production of docs
Contention interrogatory- tells you intention but some courts don’t allow them because they are too
broad
Interrogatory gives you sworn answer which is similar to depo and can be read at trial
When to serve interrogatories? At any time, with some exceptions in fed court
Limits of reqs for docs: none
Docs are contemporaneous recordings of what happened before suit. More honest
When to serve doc req: after scheduling conference according to conference deadlines
Party has 30 days to respond to ir.
Should send ir req w/ req 4 docs
Respond to handout. Prep discovery response.
Read rule 26 37 232-04 248-54 321-32

10/28/19
Trick for last assignment:
- Pleading: identify exactly what your disc req is. What type? Usually interrogatory and req for doc
production. Can use them together
- Definitions are useful
- Instructions will usually be ignored. Rules will tell you what to do in response
o May want to req original format for metadata. Don’t need to put in instructions but in
pleading where itll be seen
- Have to think what info you want if you're actually defending m1. i.e docs to prove losses
- Balancing act of making d reqs overly broad or too narrow. Too broad is better
- Pun damages claims are different from compensatory damages. Different types of damages may
affect how you word discovery req
- Doc request tend to be broader. Inter tends to be more specific
- Doc req and inter cant req creation of a document. i.e give me a list of x
- Req for admissions- worth using down the road toards trial. Not helpful in the discovery phase

Today’s class- responding to disc req

- First step: send to client and prep draft responses for client to review and fill in. client has to
confirm the info. Tell client to give me everything bc you don’t want client to decide what's
relevant
- 2 things for responses: objections and acual response
o Objections: almost all reqs are objectionable. Why make objections? Bc if you don’t you
waive it.
o Types of objections: 5 common ones
 Privileged material
 Overbroad and unduly burdensome. UB- too much time or expense to comply
 Irrelevant or wont lead to discovery of admissible evidence
  Vague/ambiguous. Ambiguous- can mean many things. Vague- not specific
enough
 Legal conclusion
o Generally youll object to a/c priv or work product priv
Document spoliation- relevant docs are destroyed
- Other pary has duty to not destroy relevant docs upon suit or when they know they’ll be sued
Read rules 27-31 323-33
2 notices of deposition
- M1 video tap depo
- M1 deposing p’s in nonvideo depo

11/18/19
Don’t outline the book. Most of the exam is from class notes
Depositions
- Role of defending attorney: clients think you're there to prevent them from answering
questions. They shouldn’t expect you to sit there and objecting and basically obstructing the
depo. You want to pay attention to what's being asked and you understand exactly what's being
asked. You can only object to the type of question (i.e vague, irrelevant, etc). you're not there to
testify. You can take a chance and advise client not to answer a Q; but this usually only applies to
privileged info
- Any lawyer present can object to improper question. Just bc you aren’t defending the witness,
doesn’t mean you cant object
Experts
- What is an expert? Somebody w/ specialized knowledge who will help trier of fact determine a
contested issue
- How is expert different from fact witness? Fact wit testifies from personal knowledge. You
sometimes have hybrid witness
- Step 1: Notify other side of expert witness
o Expert will have to submit an expert report
- 2 types of experts
o Testifier
o Consultant
o Difference is that one will testify. A consulting expert cant be deposed and you wont
need to identify him. Consulting experts can provide insight and you can find out which
way they’ll go; you can assess how they’ll do on the stand
- Want to ask if there is a fact issue which can only be solved by expert testimony
o This can vary by jurisdiction
- Joint retention agreement: can mitigate risk
o Want to make sure you have the right to call that expert if other party settles
o Have to make sure codefendants and expert are willing to do that
o In most jurisdictions you cant use another party’s expert
o Lots of P lawyers will settle with target def and condition the settlement on the target
defs witness not testifying for any other party
o You need to be preared to try your case irrespective of what other parties are doing
- Are they the right expert wholl give the right opinion? Make sure they have expertise
- Look at how expert will present herself. Has to convey opinions in a pleasing manner to the jury
- Make sure to give expert all info: good and bad. Especially the bad, so that they can address it
 - Dowbear motions: motions filed by both sides to refute other parties expert
o Court has to be convinced that experts testimony is relevant and reliable
 Relevant for purposes of ex test: itll actually assist the trier of fact see ev rule
702.
 Reliability: is testimony sound science?
Expert report
- Rule 26a tells you what needs to be in the report
- Intent of the rule is to save the parties some money by having a report so comprehensive that it
will answer any questions a lawyer might ask
- Because these reports are supposed to be sufficient to not require depo, if you do decide to
depo then you’ll have to pay for the expert’s extra fees
- No report or identification of expert means they don’t get to testify
Depositions with experts
- Want to understand the experts opinion and ID any problems with it. Go over opinion with
expert in great detail
- Expert should be sure to stay in her lane of expertise
- Make sure they know their role. Don’t even speculate about other areas. Other lawyers may
present hypos outside of experts competence as a trick
P394-427
Draft a settlement agreement for m1 to settle for 100k

11/25/19
Cases settle mostly because of risk
Want to ascertain what your client wants out of the case
Want to get authority to settle and get to the lower range
2 ways to settle
- Lawyer to lawyer
Verbal settlements are risky
First discuss with client- just because its makes sens, doesn’t mean you have right to accept it
Either side can make the first offer
Settlement
- Start with consideration
- Name whos giving the release
- Identify our client
- Defense side want to word disclaimer bradly
- Indemnify should also include attorney fees
- Release provision and defense and indemnity
- Notary is self authenticating

Rule 56 362-75

12/2/19
Summary judgement: law says certain judgment should be obtained on undisputed facts
- No disputed issue of material fact
- Doesn’t matter what judge thinks of the facts
- Form is the same as any other motion. Say that there's no fact issue in dispute. Present affidavit,
testimony
 - Make it short as possible
- D can move for one element missing from p’s claim, burden then switches
Affidavit- reqs competency and that knowledge is personal
Final trial prep
- Must act as if you're going to trial bc if you end up going to trial you might get screwed
o If not prepped, other side will see they have a chance in trial
- Check if pleadings are in order
- Is discovery complete?
- Are docs prepped?
o Client docs and the ones you get in discovery
o Which docs are important? Should evaluate on constant basis?
o Can those docs be authenticated?
o Who are witnesses that id want to call? Get subpoenas in order 30 days before trial. If
you need a continuance judge will be more sympathetic to continuance
 Schedule a time to meet with the witnesses
 Consider outlines for witnesses. You can also make notes on the outline for later
questions
o Review discovery to make sure everything is in there
o Check scheduling order

Exam
- 9 questions with subparts
- Q1: what you think about the case? Would you take it? Why or why not? Who are the parties?
- Q2: client has been sued and wants advice from you
- Q3 depositions: rec on how dep should be handled
- Q4: video vs nonvideo
- Usual stipulations
- Interrogatories and how to respond to them
- Witnesses: expert and fact witnesses
- Release settlement agreement. Make suggestions and comments
- What to do to prep ahead of trial