2003

In re Suarez (February 2003, MPT-1) In this performance test item, applicants’ law firm represents Carmen Suarez, who operates a restaurant in a building owned by Elizabeth Murphy. During Suarez’s tenancy, the city ordered that existing commercial buildings, including the building housing Suarez’s restaurant, undergo mandatory seismic retrofitting as part of the city’s earthquake hazard reduction program. Murphy undertook and paid for the retrofitting and is now is demanding, via a letter from her attorney, that Suarez reimburse her for the $32,000 she paid to have the retrofitting done. Murphy claims that Suarez, as the tenant, is liable for the costs associated with the city-mandated retrofitting. Applicants are asked to draft a letter to Murphy’s attorney explaining why Suarez is not liable for the cost of the retrofitting and will not reimburse Murphy. The File contains the parties’ lease—a commercial lease form entitled “Net Lease” to which the parties made extensive revisions, so that it differs substantially from its original form. The File also includes the city’s seismic retrofitting order, a lease renewal letter, Murphy’s attorney’s demand letter, and a newspaper article on the city’s earthquake hazard reduction initiative. The Library contains two Franklin cases on the subject.

In re Cora Ames (February 2003, MPT-2) In this item, applicants represent Cora Ames, a potential plaintiff under the Federal False Claims Act (FCA). The FCA authorizes individuals to bring suit against persons or entities who present false claims to the government. Ames, a quality control inspector employed by Beta Industries, has discovered that Beta has been committing fraud against the U.S Department of Defense (DOD) by ordering unapproved parts from unapproved suppliers on its DOD contracts. Ames contacted DOD ‘s fraud prevention hotline, but received only a brief response and no other follow up, prompting her to tell a reporter friend about Beta’s practices. Her friend wrote and published a newspaper article about Beta’s product substitution, thus publicly disclosing that information. Because of this public disclosure, Ames can only maintain a suit under the FCA if she qualifies as an “original source” of the information. Applicants’ task is to draft an objective memorandum to the supervising attorney analyzing whether under the FCA, Ames can prove that she is an “original source,” and therefore, that a court would have subject matter jurisdiction over her case. The File consists of notes from the supervising partner’s interview with Ames, a letter of commendation from the U.S. Air Force regarding Ames’s exceptional work performance on the DOD contracts, Ames’s log documenting the fraud she uncovered, a letter from the DOD fraud hotline, and the newspaper article. The Library contains FCA excerpts and three federal appellate court cases.

Arden Industries, Inc. v. Freight Forwarders, Inc. (February 2003, MPT-3) In this performance test item, applicants’ law firm represents Arden Industries, Inc. (Arden) in an action for declaratory and injunctive relief against Freight Forwarders, Inc. (FFI). Arden, a printing press manufacturer, owes FFI approximately $120,000 on past due invoices for shipping services FFI has rendered on behalf of Arden. FFI has in its possession one of Arden’s printing presses worth $200,000 and asserts that it has a security interest and a carrier’s lien in the press under the Franklin Commercial Code. FFI has notified Arden that it intends to sell the printing press and apply the proceeds to satisfy Arden’s arrearages on the earlier unpaid shipping invoices. Applicants’ law firm, on behalf of Arden, has obtained an injunction to prevent the sale of the press and the parties have entered into a Stipulated Statement of Facts in anticipation of filing cross motions for summary judgment. Applicants’ task is to draft a brief in support of Arden’s summary judgment motion. The File consists of the office memo instructing applicants on the basics of brief writing, the Stipulated Statements of Facts, and the letter demanding payment from FFI’s attorneys. The Library consists of excerpts of the Franklin Commercial Code and three cases.

Vargas v. Monte (July 2003, MPT-1) Applicants' law firm represents landowner Les Vargas in a timber trespass action against his neighboring landowner, Carla Monte. Vargas seeks damages against Monte for wrongfully cutting down and removing trees from his property. The parties have presented their evidence at trial, and now must submit briefs on the issues of liability and damages. Specifically, the judge has asked the parties to address whether, based on the evidence adduced at trial, defendant Monte is liable to Vargas for timber trespass and, if so, whether single, double, or treble damages should be imposed. Applicants' task is to write a brief persuading the court that it should find Monte liable for timber trespass and that it should award treble damages to Vargas. The File consists of the instructing memo from the partner; an Office Memorandum re: Persuasive Briefs; a Statement of Stipulated Facts; and a partial trial transcript of testimony excerpts; Defendant's Exhibit A, a letter from Vargas' grandfather to Monte's grandfather regarding the boundary between the properties; and a letter from the Department of Interior regarding a resurvey of the boundary between the parties' properties. The Library consists of sections of the Franklin Civil Code and three cases.

In re Franklin Forum (July 2003, MPT-2) In this performance test, applicants' law firm represents the Franklin Forum , a newspaper that is about to publish an exposé on questionable sales practices used by several local laser eye surgery companies. Some of the information for the exposé was obtained by three Forum reporters who took jobs with the laser eye surgery companies as ?patient counselors? without revealing that they were reporters for the Forum . The Forum's publisher has decided to publish the exposé but has asked applicants' law firm for an opinion on the legal protections and legal risks associated with publishing the exposé. Applicants' task is to draft a two-part objective memorandum to the supervising partner analyzing (1) whether the First Amendment protects the Forum from liability for fraud, breach of duty of loyalty, and trespass as a result of the reporters' actions; and (2) whether the First Amendment protects the Forum from liability to the laser eye surgery companies for damages to their reputations, i.e., publication damages. The File contains the supervising partner's instructing memo; excerpts of the partner's interview with the Forum's publisher; and the reporters' memo to the Forum's news editor describing their investigation. The Library consists of two cases that bear on the subject.

Meerstein v. Easy GO Airlines (July 2003, MPT-3) Emily Meerstein has asked applicants' law firm to research and investigate the possibility of bringing a class action against Easy GO Airlines (EG) under the Franklin Unfair Deceptive Trade Practices Act (UDTPA) for EG's ?bait and switch? practices. Meerstein was a passenger on EG flight #100, which was advertised as a non-stop flight from Franklin City to Tel Aviv. Meerstein's flight, however, made an unscheduled refueling stop in Paris because of ?flight conditions,? causing it to arrive in Tel Aviv well over two hours late. Meerstein has since learned that EG routinely makes such unscheduled stops on its flights advertised as non-stop, and that cheap fuel prices in Paris may be motivating these unscheduled/unadvertised refueling stops. Applicants' task is write an objective memorandum to the supervising partner identifying the largest possible class of plaintiffs a court would be likely to certify, and analyze why a court would be likely to certify such a class but not a larger class. The File consists of the instructing memo from the partner; notes from the partner's interview with Meerstein; a letter from EG's president to Meerstein; a Ripka Investigative Service Report; EG's General Rules and Tariff; and a memo from an aviation consultant. The Library contains portions of the Franklin Rules of Civil Procedure, the UDTPA, and two cases.