Business Law
Once completing college, William Smith, a resident of Boston, Massachusetts, wanted to establish a manufacturing company that develops racquets to improve the future of squash playing. With his experience in squash playing and a finance degree he figured he could develop a great corporation.
In order to establish his corporation, he needed to find wealthy investors to fund and put trust into his future establishment. Mr. Smith receives legal advice throughout his expenditure. After making negotiates and signing contracts he soon was informed that his design plans for the product have been denied. He was told to simultaneously stop all productions. Unable to control his disappointment, Mr. Smith acted in a violent manner and unthinkably made poor decisions that will later affect his life.
Advice for Mr. Smith
Mr. Smith should have filed a patent application with the U.S. Patent and Trademark Office. That allows an inventor such as himself, to receive a grant from the government that gives him exclusive rights to an invention. That would also give him the right to use and sell the invention during the time of the patents term.
A copyright is an intangible property right granted to authors and originators of literacy work or artistic production that falls within specified categories (pg141). This obviously wouldn’t be of any use to Mr. Smith since he is not creating a literacy work.
Facts
The legal advice given to Mr. Smith advised that he should utilize the legal entity of a corporation. The advantage of this would be a limited liability of shareholders; the disadvantage is the double taxation of corporate income (pg806). This advice given to him wouldn’t be the best of all choices.
Most entrepreneurs and investors, popular choice of business would involve tax advantages of the partnership form of business. This type of organization would be known as a limited liability company. Mr. Smith filed the articles of organizations with the secretary of state’s office. This was the best move for him, because in order to become a limited liability company he would have to file the article of organization.
Smith v. Martha Stewart and Enron, LLC “Fred Lawless”
Facts
Martha Stewart and Enron were hired by Mr. Smith to advise him on legal advice with starting his company and to solicit outside investors to fund the growth of his organization. This firm advised him that he should utilize the legal entity of a corporation.
Offense
This firm gave Mr. Smith the wrong advice. Advising him to utilize a corporation which substitutes itself for its shareholders in conducting corporate business and incurring liability. This states that the shareholders of this corporation can be held liable for any wrongdoings that this corporation can incur. If this were to occur it would not be a positive consequence for Mr. Smith. The suit filed against this firm is legal malpractice with negligence. The firm is being held responsible for the attorney who failed to exercise reasonable care and professional judgment toward Mr. Smith.
Conclusion
The advice that should have been given to Mr. Smith was for him to start a limited liability company. There would only be a limited liability, which would be great for the members. Also any suit filed would go against the LLC not its shareholders who mean a great deal to Mr. Smith.
Facts
Martha Stewart and Enron, LLC should be a limited liability partnership. An LLP is designed more for professionals who normally do business as partners in a partnership (pg811). If this firm was an LLP Fred Lawless whom Mr. Smith sued could have avoided personal liability.
Advice for Mr. Smith
Mr. Smith’s business offering prospectus should include in the contract, “That within three years from the date of production this corporation will guarantee a profitable return.”
Advice
All of the checks forwarded to Mr. Smith should be held in a specific account, called an escrow account. There is an agent that holds the investor’s money in the escrow account. This money should be kept safely here in order to benefit Mr. Smith, but also so the investors can feel at ease knowing their money is being held safely. The investment money will remain in this account until all of the conditions of sale have been met and the closing takes place, at which time the money is transferred to Mr. Smith (pg952).
Facts
Mr. Smith made his own decisions on his real estate purchase for a development site to manufacture his products. He should have consulted with a real estate broker to get legal advice on what type of site would be proper for his manufacturing facility. Mr. Smith also sent an agreement, which was discussed over the phone with James Worthless. James Lawless is the registered owner of the fifty thousand square feet of quasi-manufacturing use.
Advice for Mr. Smith
The agreement that Mr. Smith discussed over the phone was then emailed to James Worthless. This agreement should be turned into an e-contract, because it is entered electronically. A contract cannot be enforced unless it is signed by the party against whom enforcement is sought (pg338). Mr. Smith should include an e-signature so that this contract can be enforced. The e-signatures become digital signatures that are submitted back to Mr. Smith electronically. Once the contract is signed it becomes valid.
When James Worthless accepts the contract there should be a contract of sale written up. Mr. Worthless can’t just phone Mr. Smith agreeing with the contract. When selling land it is not enforceable under oral agreement. In the agreement there should be the names of the two individuals and their addresses involved, a description of the property, the type of closing, and the price.
Facts
The agreement that Mr. Smith sent to James Worthless is a contract. This agreement if he tries to make it a contract will be void able. Part of the contract has a false statement. Mr. Smith states that, “I, William Smith, in conjunction with my company Squash and Play, LLC, agree to procure the land and building of James Worthless located in Boston, Massachusetts.” The land and building is located in New York, State of New York not in the state of Massachusetts. This is a void able contract, because the parties decided to go along with the contract either way.
Advice for Mr. Smith
The document sent out by Gillpain Inc is a void able document. There is an incorrect statement in this document. The statement is that the residency address of Mr. Smith is incorrect. I would like to advice Mr. Smith to negotiate the document. He could offer to pay just 20% upon execution of the agreement. The contractor could initially decide to take off after sometime.
Mr. Smith should prohibit certain assignments with this construction company and have it put in writing. He should state in a contract that another construction company couldn’t be assigned this offer that has been made to Gillpain. Mr. Smith needs to put into effect an antiassignment clause. In writing there needs to be the demands of this contract prohibiting a certain assignment. The antiassignment clause is the best way to get his demand a cross. Once the valid assignment of rights has been made, the assignee should notify the obligor of the assignment (pg291).
Smith v. Gillpain, Inc
Facts
After execution of the agreement, Snows and Jones the owners of Gillpain Inc transferred the aforementioned contract to Construction Inc. If Mr. Smith took my advice this would break the antiassignment clause that Mr. Smith set. Mr. Smith specifically mentioned that he didn’t want any other construction companies to work on this project.
Offense
Considering that Mr. Smith took my advice they are in violation of the contract. Selling the project to Construction Inc for one hundred thousand dollars violates the agreement completely. Smith can then sue the Gillpain Inc for breach of the contract.
Conclusion
I believe that Gillpain Inc will definitely lose the case they are obviously violating the contract that they agreed on. Mr. Smith has every right to sue them. He wanted his facility to be constructed by the best in the business. Paying this excessive fee of seven hundred thousand dollars meant he would get the best. Reselling the contract to a construction company that is completely new to the field of construction isn’t a bright decision at all. Mr. Smith has his company and investors money at hand. He wanted the best to be done and promised that the money received by investors would be put to the best use of its potential to make this a successful company.
Facts
We are now considering that Mr. Smith never had an anitassignment contract with Gillpain Inc. This allows them to resell the contract aforementioned contract to Construction Inc. Gillpain sells the contract to a newly developed construction firm for one hundred thousand dollars. The acceptance of this contract by Construction Inc makes them third party beneficiaries. The third party now has legal rights and can sue the promisor directly for breach of contract. While all of this is occurring Mr. Smith is unaware of these actions caused by Gillpain Inc.
Gillpain Inc is the assignee and has to explain all of the rules wanted by Mr. Smith to Construction Inc. It is Gillpains responsibility to make Construction Inc knowledgeable about the construction steps. These two parties are now both promisors, because they both make promises that can be enforced.
Walmet, Inc v. Smith
Facts
Mr. Smith decides to begin marketing his product. He advertises in a page in Squash Magazine claiming that his product will change the game of squash forever. After hearing about this amazing product Walmet Inc contacted Mr. Smith. They would eventually agree into a contract in buying thousands of squash racquets once the product became available.
Offense
Mr. Smith misrepresented Walmet to believe in a condition that is different from the condition that actually exists. Walmet will sue Mr. Smith for fraudulent misrepresentation. Mr. Smith is committing fraud by stating a fact about his product that he doesn’t know if it’s true. His product hasn’t even been created yet and he is already claiming that it will revolutionize the game of squash.
Defense
Sometimes, however, reliance on statement of opinion may involve the tort of fraudulent misrepresentation if the individual making the statement of opinion has superior knowledge of the subject matter (pg107). Mr. Smith may claim that his product is a fact. He can show images and express his thoughts and experiments with this product to convince the court that he is right.
Conclusion
Mr. Smith should have waited for when his product was designed to show them a physical feature of it. There are many different reasons Mr. Smith could have waited another was that he wasn’t even approved yet by the department of patent.
Facts
Tim Clueless the representative hired by Walmet sent a contract to Squash and Play, LLC stating information about Walmet and how they have agreed to purchase ten thousand squash racquets from Squash and Play. It doesn’t seem like it is a contract. It needs to be put in writing and require signatures of both parties. When this does become a contract it’s not favored to help Mr. Smith. There are at least two statements created by Walmet that I don’t feel comfortable about towards the company of Squash and Play. The first problem is number three in the contract the F.O.B. is definitely a risk towards Mr. Smith. Then statement number five mentions transferable warranties.
Advice for Mr. Smith
Walmet is stating a part of the contract as F.O.B. Free on board that indicates that the selling price of goods includes transportation costs to the specific free on board place named in the contract (pg387). This contract will make Squash and Play carry the risk of loss and pay the expenses. Mr. Smith should have this changed. I believe Mr. Smith should have a C.I.F. contract. Requires among other things, that the seller put the goods in possession of the carrier before risk passes to the buyer (pg387). This would make it possible for the seller to contract with the carrier as principal. This is almost similar as the f.o.b. contract, but also to include the freight and insurance in the price, which is really the distinguishing feature of the c.i.f. contract. Delivery remains to the carrier, which continues to be regarded as the buyer’s warehouse.
Mr. Smith should also look into delivery without movement of the goods. The UCC addresses situations in which the seller is required neither to ship nor deliver the goods (pg388). The buyer would be required to pick up the products or good from the seller. In Mr. Smith’s situation he is not a merchant, so the risk of loss to goods held by the seller passes to the buyer on tender of delivery.
Transfer warranties are also not a good idea. The transfer warranty would bring liability back to the wrongdoer or to the person who dealt with them. This would put Mr. Smith again at fault if something would occur and he could be sued.
Facts
Mr. Smith wanted to choose a production line to start up production on his products. He chose to hire Bankcroft Corporation for the first production line. The president of this company agreed to do the first run of squash racquets. Jimmy Kid the president of this corporation received the deal at a discounted price. The reason for this was that he wanted to use his manufacturing equipment during slow times. The problem here is that there doesn’t seem to be any type of contract involved except maybe an oral contract just by word of mouth agreement. The situation is that some oral contracts may not completely be carried out.
Advice for Mr. Smith
Mr. Smith should get this contract put in writing. If Jimmy Kid decides to stop manufacturing these products or might not have the right equipment, then Mr. Smith would be aware of it and has proof to fall back on. Bankcroft Corporation would be required to manufacture the squash racquets according to the design that was presented to them by Mr. Smith. Mr. Smith could have Jim Kelly promise him that the production will be consistent and followed, as Mr. Smith has advised. A promise would be a contract that falls under the statute of frauds. It would become a collateral promise and have the contract be enforceable.
Investor v. Smith
Facts
Mr. Smith had sent out a request to the Department of Patent registration in Washing D.C. This patent was so he could get his product patented. He then received a certified notification from the patent office in Washington that the design plans he has submitted for approval had been rejected for it had already been awarded to another investor six months ago. He was immediately advised to stop all production that he started. Afraid of losing his contract with Walmet, Mr. Smith proceeded on sending them a prototype of the squash racquets. These racquets were also defective but Mr. Smith was never aware of that because Jimmy Kidd never mentioned it.
Offense
Mr. Smith developed the same exact design plans for his squash racquets that was already previously patented by another investor. He continued to show his product in order to get sales underway. Mr. Smith has caused a patent infringement. Patent infringement is if a firm makes, uses, or sells another’s patented design, product, or process without the patent owner’s knowledge, the tort of patent infringement occurs. A Patent infringement may also occur even though not all features or parts of an invention are copied (pg149). This can also happen even if the inventor hasn’t put his product out on the market for sale.
Mr. Smith broke this law in a few ways. He made the same design that the previous investor did. He also began to sell and continued to try and sell the racquets after he was told not too.
Defense
Mr. Smith defense could be that he wasn’t aware that someone else had the same design. He did state that this product would revolutionize the game of squash forever. Why would someone say it would revolutionize squash if he already knew that this magnificent product was out there? He hasn’t yet sold anything to anyone he was just showing his product to a potential company and it was the prototype.
Conclusion
I would have advised Mr. Smith to stop all productions immediately like the department of patent requested. He could have looked at the product that was previously invented by the original producer. He could try to create a brand new product with a completely different design to differ from the previous one that was created.
Mr. Smith could also have asked the inventor if he could buy a license from him to sell the product. Often, litigation for patent infringement is so costly that the patent holder will instead offer to sell the infringer a license to use the patented design, product or process. The costs of detection, prosecution, and monitoring are so high that patents are valueless to their owners because the owners cannot afford to protect them (pg149).
Walmet Inc v. Smith
Facts
Mr. Smith was now in danger of losing his contract with Walmet Inc. He wanted to push the process and have them forward six hundred and fifty thousand dollars to his corporation account. This money was then going to be sent to Bankcroft Corportation. Bankcroft Corportation would then the ten thousand defective products that they have made to Walment Inc. Tim Clueless president of Walmet requested to inspect the product line before he made any other steps in this deal. Mr. Smith sent him a prototype of the racquets. Tim Clueless liked what he saw and went on with the process. He wasn’t aware though that the ten thousand racquets that he will be receiving are all defected. As a matter of fact Mr. Smith also doesn’t know that the racquets are affected. Once Walmet receives these products they will become extremely disappointed and will request their money back.
Offense
When the seller delivers nonconforming goods, the buyer has several remedies available under the UCC. If either the goods or tender of the goods by the seller fails to conform to the contract in any respect, the buyer can reject the goods. If the buyer rejects the goods, he or she may then obtain cover or cancel the contract (pg418). Tim Clueless will sue Mr. Smith for money damages.
Defense
Mr. Smith wasn’t aware that his products being sent out to Walmet were defective. He can claim that he is going to cease manufacturing the goods and resell them for scrap. Mr. Smith can also claim that he wasn’t aware of this situation and go forth and sue Bankcroft for not specifically telling him, that the products are all defective.
Conclusion
Walmet will have a breach of contract and demand their money back. He will notify Mr. Smith of all the defects. Tim Clueless will probably send all the defected products back to Bankcroft who is supposedly getting paid for all they have done. Tim Clueless is suing for money damages, because it will compensate him for harm suffered as a result of another’s wrongful act.
Smith v. Bankcroft Corporation
Facts
When Mr. Smith made a deal with Walmet to buy his products he wanted to start production right away. Mr. Smith wanted to start the first production line and met with Jimmy Kid. Jimmy Kid is the president of Bankcroft and they had agreed to do the first run of the squash racquets for a discounted price, so that Kidd could facilitate the use of his manufacturing equipment in slow times.
Jimmy Kidd did not advise Mr. Smith that he did not have the appropriate equipment to manufacture the squash racquets consistent with the new design that was forwarded to him by Mr. Smith. First of all he lied to Mr. Smith but not making him aware of this situation. Also he caused Mr. Smith to lose a contract with a big corporation and to get sued on top of it for selling them damaged goods.
Offense
Jimmy Kidd was supposed to accept the offer the way Mr. Smith gave it to him. He was to create this product the way Squash and Play wanted them to be designed. This was a specific performance. Mr. Smith can sue him for money damages. He suffered from Bankcroft Corporations wrongful doing. He was then sued himself, because of there negative performance.
Defense
Jimmy Kidd can state that the contract between the two parties was an oral contract. He can claim that there wasn’t a third party involved or witness.
Conclusion
Mr. Smith is just trying to get his money back. He will need to be repaid, because of all the suits he is going to be involved in. He was definitely lied to right from the beginning of this contract. Smith was never aware of Bancroft’s lack of performance.
Facts
Mr. Smith will now find himself in a difficult situation. The investors are calling and asking for an update, the auditors at his desk and the owner of the approved patent is also threatening to file suit.
Advice for Mr. Smith
I would advise Mr. Smith to take some time off and answer all his phone calls back. What he doesn’t need is more people looking for him and filing suit against him. He should start by phoning his investors and explaining the situation here. If he doesn’t, he is going to dig himself into a deeper hole than he already has. Once that patent inventor finds out that he went on with the products to sell them to Walmet he will file suit against Mr. Smith.
Shareholders v. Smith
Facts
Shareholders possess numerous rights. They have the right to vote their shares. In addition to voting rights, a shareholder has the rights, based on ownership of stock, to receive stock certificates, to purchase newly issued stocks, and many other different rights. These shareholders also have the rights to file suit on behalf of the corporation (pg761).
Facts
Thirty investors had executed the offering agreement set up by Mr. Smith. They forwarded him checks in which he immediately deposited all of these funds from the offering to his personal checking account. These shareholders did him a favor by offering him their money in order to start up this business and help him succeed. Mr. Smith never replied to them when they tried to get a hold of him. He should have returned their phone calls and let them know how their money and place in the company was going.
Offense
The shareholders weren’t aware of their part in the company. They have no idea where their money was being spent. They filed a shareholder’s derivative suit. The right of shareholders to bring a derivative action is especially important when the wrong suffered by the corporation results from the actions of corporate directors (pg763-764). The director of this corporation obviously is Mr. Smith. Any of the damages recovering during this suit doesn’t go to the shareholders themselves it goes into the corporation’s treasury.
Defense
Mr. Smith doesn’t have much to defend upon. He can claim that he has been caught up on all these suits that he was trying to get back to them as soon as possible.
Conclusion
Mr. Smith really doesn’t have much to defend at all. First off he didn’t put the checks he received by the investors into an escrow account. He also didn’t keep them updated on his action and the corporation’s stability.
Advice for Mr. Smith
Mr. Smith did the right thing by filing chapter 7 bankruptcies. Chapter 7 provides the liquidation proceedings which is the selling of all nonexempt assets and the distribution of the proceeds to the debtor’s creditors (pg582). All of these exempt assets should be distributed among the shareholders of the corporation. He should try to repay all the shareholders the money in which they once gave him. The paying back to all these creditors would take a lot of stress of his back.
Facts on Previous Subscription Agreement
Mr. Smith and the shareholders had a subscription agreement on the stocks. Why would anyone go from a preferred stock to a common stock? It doesn’t make any sense at all. He is also requiring each investor to purchase 10 units of the offering for one hundred thousand dollars. It doesn’t explain at all what the offering is and what type of units of stock they are purchasing. Mr. Smith should have the signatures and all of the agreements of the shareholders.
There should be a clear subscription agreement with valid signatures. They are written contracts to buy capital stock of a corporation, existing prior to incorporation. These agreements are treated as continuing offers. After the shareholders accept this subscription agreement, a binding contract is formed. Any refusal to pay constitutes a breach resulting in the personal liability of the shareholder.
Facts
Mr. Smith wanted to get the construction of his facility under way. He then proceeded to hire a construction company to do the job. Mr. Smith hired Gillpain, Inc for a sum of seven hundred thousand dollars. They had agreed to design and manage the construction facility. He was to offer them 40% of the payment upfront and the remaining once the facility was constructed.
When Mr. Smith arrived at the site of construction site nothing had been done at all. He had already sent them two hundred and fifty thousand dollars to start up the facility construction. He demanded his money back and didn’t get an agreement from the representative from Construction Inc.
Smith v. Gillpain Inc
Facts
Mr. Smith is irate because the construction of his facility hasn’t gone underway yet. He is upset because Gillpain Inc hired another company without his permission to take off the construction. He had paid Gillpain Inc seven hundred thousand dollars. The reason he chose them is because he wants the best that are out there.
The problem is here is that Gillpain Inc went on sold the contract to Construction Inc for a lesser value and collected profit. They sold a new contract to Construction Inc for one hundred thousand dollars. Gillpain Inc didn’t have to lift a figure and got six hundred thousand dollars. Mr. Smith had sent them the 40% of the initial cost to start up on the project. When he arrived at the construction site nothing had been done at all.
Offense
Since the construction of the facility hasn’t even started yet and he paid the money this would be a breach of contract. This would be considered substantial performance. Good faith is required, which means that the failure to fully perform must not be willful. Willfully failing to comply with the terms is a breach of contract
Substantial performance is not perfect; the other party is entitled to damages to compensate for the failure to comply with the contract. The measure of the damages is the cost to bring the object of the contract into compliance with its terms (pg302).
Defense
Gillpain Inc’s defense is that they sold the contract to Construction Inc. Gillpain can also claim that Mr. Smith never once mentioned on the contract that Gillpain Inc couldn’t hire another construction company to do the job. Mr. Smith never filed for an anti-assignment clause.
Conclusion
Mr. Smith could initially win this case. He did pay the two hundred and fifty thousand dollars for them to start construction on the site. He quickly realized that no work has been started at all. He can definitely get his money back and sue them for more. It was Gillpain’s responsibility to make sure Construction Inc followed with the specific design and management that the contract suggested from its original deal with Mr. Smith.
Advice to Mr. Smith
Mr. Smith should breach the contract completely with Gillpain Inc. The measure of damages in a building or construction contract varies depending on which party breaches and when the breach occurs. The owner can breach at different parts of the construction (pg316). Smith would breach right now, because he the performance on the facility hasn’t even begun yet. If the owner breaches before performance has begun, the contractor can recover only the profits that would have been made on the contract.
Gillpain Inc v. Construction Inc
Facts
In a bilateral contract, the two parties have corresponding rights and duties. One party has the right to require the other to perform some task, and the other has the duty to perform it. The transfer of contractual rights to a third party is known as assignment. The transfer of contractual duties to a third party is known as delegation. An assignment or a delegation occurs after the original contract was made (pg287). A subcontract was also involved when Gillpain Inc sold a new contract to Construction Inc.
Gillpain Inc gave Construction Inc a subcontract. First off Gillpain gave Construction Inc an assignment. This is when the rights under a contract are assigned unconditionally; the rights of the assignor are extinguished. The third party has a right to demand performance from the other original party to the contract (pg287).
Gillpain Inc also delegated duties to Construction Inc. Just as they transferred rights under an assignment they can also do this through duties. Duties are not assigned they are delegated. Normally a delegation of duties does not relieve the party making the delegation of the obligation to perform in the event that the party to whom the duty has been delegated fails to perform.
Offense
It was Construction Inc’s responsibility to follow along with this new contract. They agreed to the assignment and delegation. They should have performed and constructed the facility under the contract. Construction Inc also was paid to do their job on this construction site. Since they didn’t do this all the blame gets put on Gillpain Inc, because they were the first official original one hired to do the job.
Defense
Construction Inc doesn’t have an offense against Gillpain Inc. They definitely aren’t responsible when it comes to dealing with Mr. Smith. They should have accepted the performance from the delegate.
Conclusion
Gillpain will initially get sued by Mr. Smith. They were held responsible for the contact and the construction of the site. Construction Inc is definitely in trouble when it comes to dealing with Gillpain, because they broke the contract they had and were paid for a job they never started to work on.
James Simpler v. William Smith
Facts
Mr. Smith went to the construction site to view how the development of the facility was coming along. When he arrived he was astonished to see that the construction of the facility hasn’t even been started. He became so angry that he demanded the on site Representative James Simpler to return his two hundred and fifty thousand dollars back. James Simpler didn’t want to return the money and that made Mr. Smith extremely upset. Mr. Smith exploded and struck the representative of Construction Inc, James Simpler with a two by four. James Simpler became seriously injured.
Offense
Mr. Smith will be charged with assault and battery. Any unintentional, unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive contact is an assault. The completion of the act that caused the apprehension, if it results in harm to the plaintiff, is a battery (pg103). Any type of offensive contact, which is harmful or not is considered battery.
Defense
Mr. Smith can claim that the reason he acted this way was because of emotional distress. This is an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. He was obviously very upset that James owed him two hundred and fifty thousand dollars which caused him to over react and strike him with a two by four.
Conclusion
Mr. Smith probably won’t win this case. He struck an individual which could be considered a deadly weapon. He could cause him permanent injuries and excessive amounts of money in medical bills.
Investors v. Smith
Facts
Once Mr. Smith struck the representative from Construction Inc. with a two by four he realized he would be in extreme trouble. He decided to withdraw four hundred thousand dollars from his bank account. This money was possibly the money received from the investors to start up his initial corporation. He also never replied to any of their phone calls.
Offense
When a person entrusted with another person’s property or funds fraudulently appropriates that property or those funds, embezzlement occurs (pg171). Since Mr. Smith is the head of his corporation, he pocketed all the checks sent to him by the investors that were given to put into his corporate account he is embezzling. Mr. Smith never reported to the investors where their money went or how he was spending it. They were supposed to receive different stock options which were never clear.
Defense
Mr. Smith can state that the funds were stolen from him from his previous deals. He had deals with Gillpain Inc for the construction of his company which never occurred. He can explain how they sold the contract to someone else and haven’t received any money in return.
Facts
Two federal officers arrested Mr. Smith with federal statue title 19. He hasn’t been proven guilty of anything yet. These officers should not be allowed to arrest him or state that he should be in prison no less than five years. Mr. Smith is still innocent until proven guilty.
Smith v. State
Facts
Mr. Smith upon being arrested his apartment was searched with anyone having a search warrant. They could have searched a business premises without a warrant but not someone’s property.
Offense
The fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects.” Before searching or seizing private property, law enforcement officers must obtain a search warrant an order from a judge or other public official authorizing the search or seizure. To obtain a search warrant, law enforcement officers must convince a judge that they have reasonable grounds, or probable cause, to believe a search will reveal a specific illegality (pg 89).
Mr. Smith’s house was searched without a warrant. That violates his 4th Amendment. Even though he has been arrested he still has his rights just like everyone else. The only way they could have gone in there without a warrant was if they believed that the evidence was going to be removed. The evidence can’t be removed, because Mr. Smith has been held in a federal detention center in Boston, MA.
Defense
Mr. Smith’s defense is that they violated his right of the 4th amendment. The officers searched his house without a search warrant immediately violating his rights. He has the right to file suit against them for violating the 4th amendment.
Conclusion
Mr. Smith really has no help now. He has been arrested for embezzlement. Once his house gets searched they are going to find illegal contraband that will go against him. This still doesn’t mean that they can violate his rights under the amendment.
Facts
There was illegal contraband found in Mr. Smith’s apartment. They don’t state what the illegal contraband was. It is difficult to state what it could have been, because most of his actions would be embezzlement against the investors and violating the patent law. Maybe they found evidence of the money and which account it was put into instead of a corporate account. There also could have been evidence of a prototype of his product of Squash and Play.
Advice for Mr. Smith
Mr. Smith was told that he doesn’t have the right funds with which to use the phone service at the facility. I would advise Mr. Smith first off that he has the right to a phone call no matter what. Once he gets that phone call he should call up an attorney to represent him. I would recommend that he call James Tempest the attorney he used to file immediate petition in the federal bankruptcy court. James should be able to give him advice on how to select a lawyer. Mr. Smith can’t afford a lawyer one will be given to him. Even though they state that he doesn’t have the funds to cover certain instances in the facility.
Mr. Smith has been waiting for his pre-trial for three months. He should have been warned that it would take seven months. A guard shouldn’t have advised him that it was going to take seven months. A judge or lawyer should have been present to him and explain all of the issues that were to come forth in the future.
Conclusion
Mr. Smith went bad right from the start. For someone who graduated from business school he didn’t make many intelligent decisions. His contracts were either not valid or voidable. He had many poor decisions on money making. Every choice he made should have been consulted with someone who is an expert in that specific field.
All of his trials are going to take a while. He has to explain all the situations he was put into with other people going against him. Smith has a lot of explanations dealing with contract deals and embezzlement. He is going to have to face many types of people and not only the government. Many individuals are going to be upset over money and their losses of money. No one will ever be able to trust him again with their money or advice. Many people will be losing business because of this and being very cautious with decision making in the future.
This paper taught me that it’s definitely not simple to start up a business.
Starting a business requires a lot of train and thought. Hiring the best individuals for advice is your best bet. Also always having an attorney that you can turn to for advice on contracts and legal situations is your best bet. Rereading and going over contracts many times with different individuals will never hurt. Mr. Smith should have made sure that everyone understood him clearly and that he understood them. Most importantly you have to have patients. He should have let things go one step at a time instead of skipping around and jumping forward from one contract to another and starting production of a product without government approval.