Mgmt 520 Lgl, Poli, Ethcl Dimns Of Busn Week 8 Final Term Answer Set 3

5409 words - 22 pages

1. List any bases Robins & Robins could sue Casings, Inc., under contract theory ONLY for the damages caused by the explosives in their drugs, over and above the cost of the capsule shells. (short answer question)

Ans:
It is very likely that the contract provision in section 14B.2a would be upheld In this case provided that the contract was not the product of unconscionabiity, misrepresentation, or fraud. Robins & Robins could bring contract actions for breach of warranty depending on the other terms of the contract. Also, Robins might also recover based on a theory of equity based on the extraordinary nature of the damages
caused. A contract is a legally enforceable agreement between ...view middle of the document...

2. TCO B. The FDA discovers that, during the public comment process, Robins & Robins bribed one of the members of the administrative panel that decided to pull the rule from consideration. The member of the panel was removed and is being charged criminally. As a result, the FDA immediately implements an emergency order that puts into effect the “tracking bar” requirement and makes the rule retroactive, but only to Robins & Robins. Provide two arguments Robins & Robins can make to have the rule determined to be invalid under the Administrative Procedures Act. Explain your answer. (Points : 30)

Ans:

Robins & Robins could argue that FDA's action violates the consumers right to privacy under the Fifth and Fourteenth Amendment. However, they can't file a lawsuit for these claims because they lack standing based on the discovery that during the public comment process, Robins & Robins bribed one of the members of the administrative panel that decided to pull the rule from consideration. . However, they could file a lawsuit on the grounds that it burdens interstate commerce. They could argue they would lose sales all over the country and Canada because the consumers would not want tracking on their medications. The validity of any rule may be determined upon petition for a declaratory judgment addressed to the Court when it is alleged that the rule, or its threatened application, interferes with or impairs or immediately threatens to interfere with or impair, the legal rights or privileges of the petitioner. The FDA shall be made a party to the proceeding; provided, that the court shall not have jurisdiction to hear any such petition for declaratory judgment, and no declaratory judgment may be rendered, unless the petitioner has first requested in writing that the sponsoring department pass upon the validity of the rule in question. Upon its receipt of any such petition the sponsoring department may elect to take no action other than to immediately refer the matter to the appropriate administrative appellate body with jurisdiction over the matter in question and request that such administrative appellate body respond to the petition on the department's behalf. In such a case, the administrative appellate body shall first determine whether it has jurisdiction over the referred matter and if so finding the administrative appellate body shall then pass upon the validity of the rule in question.

(Ref:http://www.codepublishing.com/WA/puyalluptribe/html/PuyallupTribe02/PuyallupTribe0208.html)

Robins can also argue that based on the additional research, it can be concluded that there were flaws in the original research and results.

1) The first ground on which to challenge an agency rule is that it is arbitrary, capricious, and abuse of discretion, or in violation of some other laws. This standard is generally applied to informal rulemaking and simply requires the agency to show evidence to support the proposed rule. Without such...

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