2007

In re Tamara Shea (February 2007 MPT-1) Applicants’ law firm represents Tamara Shea, a real estate broker who believes that she has been cheated out of a commission rightfully owed her in regard to a sale of a 20-acre real estate parcel. Shea and the seller, Ann Remick, entered into a 60-day listing agreement under which Remick retained Shea to serve as her broker. Under the agreement, Shea was to be paid a commission of 10 percent of the purchase price if the property was sold with her assistance during the listing period. Shortly after the listing agreement lapsed, Shea was contacted by Dan Anderson, a potential buyer. Shea then contacted Remick, who confirmed, in a telephone message, her intention to extend the listing agreement. However, Remick neglected to confirm the listing extension in writing. When Anderson, with Shea’s assistance, made an offer of $185,000 for the property, Remick rejected it, claiming it was too low. Shea subsequently discovered that shortly after the listing agreement expired, Remick sold the property directly to Anderson for $180,000. Remick is now refusing to pay Shea any commission, stating that Anderson informed her she need not compensate Shea because she sold the property directly to him. Applicants’ task is to draft an objective memo to the supervising attorney analyzing whether Shea can maintain claims against Remick for breach of contract and against Anderson for interference with contractual relations and/or interference with prospective economic advantage. The File consists of the instructional memorandum from the partner, a transcript of an interview with Shea, the listing agreement, a letter from Shea confirming extending the listing agreement, the MLS listing for the property, and Anderson’s initial offer to purchase the property. The Library contains the Franklin statute of frauds and two cases.

Glickman v. Phoenix Cycles, Inc. (February 2007, MPT-2) The client, George Glickman, was demoted from his vice president position at Phoenix Cycles, Inc. shortly after returning to work after taking nine weeks’ leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., to recover from a stroke and to care for his newly adopted baby. Glickman seeks legal advice regarding whether his employer’s actions violate the rights accorded under the FMLA, specifically, the right to be restored to a pre-leave employment or an equivalent position. The supervising partner has already spoken to Phoenix’s in-house counsel in an attempt to resolve Glickman’s claims without resorting to litigation. Applicants’ task is to draft a follow-up letter persuasively setting forth the basis for Glickman’s claims under the FMLA, discussing the specific FMLA provisions that Phoenix has violated, explaining why the exceptions in the Act for key employees do not apply, and setting forth the forms of relief to which Glickman would be entitled should the matter proceed to litigation. The File consists of the instructional memorandum, a transcript of an interview with Glickman, a Phoenix Cycles’ press release, a letter to Glickman from the company regarding his FMLA leave, and a management consulting firm’s report on Phoenix Cycles. The Library contains excerpts from the FMLA and two federal cases.

Acme Resources, Inc. v. Robert Black Hawk et al. (July 2007, MPT-1)Applicants’ law firm represents Robert Black Hawk and other members of the Black Eagle Tribe who have sued Acme Resources, Inc., a mining company, in tribal court seeking to recover for damage caused by Acme’s mining coal bed methane from under reservation land, in addition to an injunction ordering Acme to cease its mining activities.  The Tribe members claim that their water wells are running dry, leaving them without water for livestock and crops, because Acme’s mining activities are depleting the water table. Acme’s answer to the tribal court complaint denies liability for the alleged harm and also denies that the tribal court has jurisdiction in this matter. Subsequently, Acme filed suit in federal court requesting a declaratory judgment that the tribal court lacks jurisdiction over Acme and seeking an injunction against the tribe members’ prosecution of the tribal court action. Applicants are asked to draft the argument section of a brief in support of a motion for summary judgment in the federal action or, in the alternative, to dismiss or stay the action on the grounds that the tribal court has jurisdiction and that Acme has failed to exhaust its tribal court remedies before pursuing its complaint in federal court. The File contains an instructional memorandum, a transcript of a client interview, a copy of Acme’s complaint filed in U.S. District Court, a draft motion for summary judgment or, in the alternative, to dismiss or stay, and affidavits from a tribe member and a geologist. The Library contains excerpts from the tribe’s constitution and tribal code and one case.

In re Mistover Acres LLC (July 2007, MPT-2) Applicants’ law firm represents Petra Flynn in her individual capacity as one of the three members of Mistover Acres LLC, a Franklin limited liability company. Mistover Acres LLC (the LLC) grows and sells apples, salad greens and other produce. Recently, the LLC received a demand letter from counsel for a neighboring trout farm. The demand letter asserts that a substantial amount of its trout stock has died and claims that aerial pesticide spraying by the LLC is the cause. According to the demand letter, it will cost upwards of $1 million to clean and restock the trout ponds; the trout farm will sue the LLC if a settlement cannot be reached. The LLC has its own legal counsel. Petra, however, is seeking legal advice in her individual capacity because she is concerned that the LLC business structure may not protect her from being held personally liable for the alleged harm to the trout fishery. Unlike the other two members of the LLC, Petra has significant assets of her own; she fears that she could be an attractive “deep pocket” defendant from the trout farm’s perspective. Applicants’ task is to write an objective memorandum discussing: 1) whether the LLC’s pesticide spraying constitutes an ultrahazardous activity under tort law, and 2) whether Petra, through her activities as a member of the LLC, is at risk of being personally liable for the trout farm’s claim. The File contains an instructional memorandum, notes from the client interview, the LLC operating agreement, an excerpt from the pesticide user’s guide, and a copy of the public notice of pesticide application on Mistover Acres’ fields. The Library contains excerpts from the Franklin LLC statute and two cases.