J485 FINAL EXAM - TAKE HOME

DEADLINE: HIGH NOON. Wednesday, June 7. NO LATE EXAMS ACCEPTED.

PLEASE DELIVER EXAMS TO PROFESSOR GLEASON'S OFFICE (309A ALLEN) OR MAILBOX IN 201 ALLEN. The office closes for lunch at noon.

ANSWERS MUST BE TYPED or WORD-PROCESSED AND DOUBLE SPACED.

I expect answers to average a half to one page in length.

GRADING: Because this is a take home exam we will expect complete, concise, organized answers. You should be able to answer the questions using the book, packet, the J385 Home page, and lecture notes; however, you are welcomed to use other authorities should you think it worthwhile.

A premium will be placed on accuracy, precision and the application of the appropriate legal standards to the facts presented. In contrast to our grading of the in-class mid-term, answers that are "sort of" right will receive few points.

The questions are intended to be ambiguous. In some instances it may be quite possible to reach different conclusions concerning the outcome of a given fact situation. We are most interested in the reasoning you use to reach a conclusion. Put maximum effort into clearing explaining the law and logic you use to reach your conclusion.

The Rules:

(1) You are free to discuss the questions with other members of the class. Friends (especially law students), parents, lawyers and others shall not be consulted.

(2) Once you are ready to write your answers, please do it alone without any help from others.

(3) I will be available to discuss general questions about the class material. I will not answer any question directly related to a specific fact situation in the exam, except to clarify the facts. If you have questions, please ask, but I reserve the right to decline to answer.


180 POINTS

9 QUESTIONS, EACH WORTH 20 POINTS.


1. Best Body Cosmetics is marketing a new skin care product called, SMOOTH SKIN. Both print and television advertising for the product contains the following claims:

"Now, thanks to SMOOTH SKIN Research, no woman has to resign herself to unattractive ripples, bumpy texture, and slackness caused by cellulite."

"SMOOTH SKIN attacks your cellulite problems two ways: first, it increases skin circulation to help disperse toxins and excess water that contribute to cellulite pockets, and second, it builds sub-skin tissue strength and tone for smoother support."

"SMOOTH SKIN Shield blocks 99 percent of the sun's damaging rays from reaching your skin."

"8 out of 10 skin care consultants recommend SMOOTH SKIN to their clients."

The FTC charges that the SMOOTH SKIN ads are deceptive.

a. List the materials claims made in the ads.

b. What level of substantiation must Best Body Cosmetics demonstrate to support the each of the listed claims?


2. Leslie Litigate is a member of the Oregon Bar, a Certified Public Accountant (CPA), , and is authorized by the Certified Financial Planner Board of Standards (CFPBS), a private organization, to use the designation "Certified Financial Planner" (CFP). She referred to these credentials in her advertising and other communication with the public concerning her law practice, placing CPA and CFP next to her name in her yellow pages listing and on her business cards and law offices stationery.

In 1994, the Oregon Bar Association received an anonymous mailing containing a copy of Litigant's yellow pages ad and her business card. The Bar Association began disciplinary proceedings against Litigate for violating its ban on the use of terms such as "CPA" and "CFP" in advertising.

Litigant brought suit claiming that the Bar's advertising ban infringed her First Amendment right to advertise. She claims that the ban fails the Central Hudson test. Will Litigant's suit be successful? YES or NO? EXPLAIN YOUR ANSWER.


3. Karen Kop and Nathan Narc were undercover police officers. During their five years undercover the two lived a life worthy of a television mini-series. They used cocaine and heroin on a daily basis, took bribes, lied under oath in order to convict drug dealers, survived attacks from gun-toting bad guys and when it was all over ended up in jail convicted of violating the civil rights of several falsely arrested individuals.

While in jail Kop signed a book contract to do a novel based on her life undercover. When she got out of jail, Kop divorced Narc, moved to Portland and wrote the novel "FAST LIFE." It was a great success. Before it was published she signed a $1 million movie deal and a Book-of-the-Month contract for another $500,000.

Shortly after publication Narc filed suit against Kop claiming appropriation. While Narc is not named in the book, many people who know him recognize the character "Larry Louse" in the book as being based on Narc. In the book Louse is an undercover police officer who becomes a drug addict, is thrown off the police force for accepting bribes and is convicted of perjury.

The advertising for the book says: "FAST LIFE--A novel based on the true life story of two cops who went bad--It doesn't get any more real than this." In print ads published in newspapers and magazines, a picture of Kop and Narc taken while they were on the police force is used with the names of the fictional characters in the book. In media interviews Kop acknowledges that the Larry Louse character is based on Nathan Narc.

Does Narc have grounds for an Appropriation suit? YES OR NO? EXPLAIN YOUR ANSWER.


4. A "COP VIDEO" camera crew got a tip that a police narcotics squad planned to raid the home of Harry and Diane Deal. In the hopes of getting the raid on tape, a camera crew went to the Deal's house, broke the lock on their back gate and hid behind bushes in the back yard until the police arrived. As the police broke down the front door of the house the camera crew jumped out of the bushes and rushed into the house. The police ordered the camera crew to leave the property but the crew had the pictures they needed.

The "DONE DEAL" segment showing the raid and arrest at the Deal house aired on COP VIDEO three weeks later. The next day the Deals filed an intrusion suit against the television show and all members of the camera crew. At the same time the Deals filed appropriation and publication of private facts suits. Is it likely that any of the suits will be successful? YES or NO? EXPLAIN YOUR ANSWER.


5. The Eugene Gazette published a story about an investigation of activities at Emerald Empire, Inc. , a manufacturing firm in Junction City. The story included the following statements:

LOCAL FIRM TO BE CHARGED IN SCAM

Emerald Empire, Inc. , a manufacturing firm in Junction City, faces criminal fraud charges according to a source in the Attorney General's office. After several months of investigation, the state will charge Sam Sleeze, the company's vice president for sales, with bilking customers of over $100,000 in a sophisticated double billing scheme....

Using a company computer program, Sleeze sent customers two different bills for the same shipment of parts from Emerald Empire. The scam was discovered during a routine audit of one of Emerald Empire's customers in 1993, but sources say Sleeze has been running the scam since at least 1987....

"Everyone knew Sleeze was doing something illegal, but the company didn't care," Carrie Count, a former Emerald Empire employee, said....

Harry Builder, president of Emerald Empire, said the company was not responsible for the errors and promised full cooperation with the police....

[end of quotes from story]

Builder immediately sent the Gazette a retraction demand, which the paper rejected. Several weeks later, Builder and and Emerald Empire, Inc. filed libel suits against the Gazette.

As the litigation moved forward, the following facts were established:

1. Sam Sleeze was charged with criminal fraud.

2. No criminal charges were filed against Emerald Empire; however the federal Securities and Exchange Commission started an investigation into the company's management based on possible false statements in its annual filings with the SEC.

3. While Emerald Empire has been cleared on any direct involvement in Sleeze's double billing scheme, the company's unconventional billing practices and the lack of adequate supervision in the billing department created the opportunity for Sleeze to engage in illegal activities.

The Gazette moves for dismissal of both Builder's and Emerald Empire's suits claiming that the story was essentially true. Should either suit be dismissed? YES or NO? Explain your answer.


6. The U.S. Congress is considering a bill to ban all advertising for alcoholic beverages targeted at college students. According to the bill's sponsors, binge drinking is a major problem on college campuses and banning beer advertising targeted at college students will help solve the problem.

Under the proposed legislation, beer companies would no longer be able to advertise in college publications, no beer advertising would be allowed at sporting events, and all promotional advertising by beer companies at "college-oriented" events would be banned. KEEP OUR BEER ADS (KOBA), an advocacy group, claims that the proposal violates the First Amendment rights of advertisers

Is KOBA right? Is the proposal in conflict with the First Amendment? YES or NO? EXPLAIN YOUR ANSWER.


7. Some advocates of legislation to restrict sexually explicit material on the Internet argue that the Internet should be viewed as being more like the broadcast medium than the print medium. Why do advocates of content regulation on the Internet want to apply a broadcast rather than a print First Amendment framework to the Internet?


8. As a result of controversy over some of the Measure 16 television ads in the 1994 election, KUAK-TV's advertising department decided that it is going to review and edit all political advertising in the 1996 campaign season. If political advertisers refuse to allow the station to edit the ads, then the station will not run them.

When Vicky Votegetter, a candidate for U.S. Congress, learns of KUAK's new political advertising review policy she informs the station that it must accept her ads and run them as submitted.

Is Votegetter right? Is the station required to accept and run her ads without editing? YES OR NO? EXPLAIN YOUR ANSWER.


9. Larry Loudmouth, a loyal KWAK-AM listener, is very upset over the stations reporting about the Amazon Housing controversy. In a letter to the station he wrote:

"Over the last year and a half your coverage of this issue has lacked any sense of balance. I've kept a log and of the 142 minutes of news programming devoted to this very important controversy, over 100 minutes favored the University's position. You keep quoting University officials and ignoring the people on the other side of the issue. If you are going to quote the UO president then you have to quote the leader of the opposition.

I am a loyal listener, but I am going to file Fairness Doctrine and Equal Time Rule complaints with the FCC. The lack of balance in your coverage is an outrage!"

You are KWAK-AM's station manager. Briefly outline the points you would make in writing a response to the legal issues raised in Loudmouth's letter.


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