Thursday, March 1, 2012

Now That Was Fun, Wasn't It?

It sure was. 

For the first time ever, I was looking forward to the challenge of both the essays and the PTs.  And I always look forward to the MBEs, but this time I was eagerly anticipating them.  I really wanted it this time, and I think I did it right.  Finally. 

Of course, time will tell but, based on past experience, I think I got 2000 points on this one (okay, 1440.0001.)

But that's all I'm going to say about that for fear of calling down the wrath of the bar exam gods. 

On a positive note, all of my answer files have been successfully uploaded!  Yay!

63 comments:

Anonymous said...

congratulations!

Anonymous said...

also, did u see any cross overs? I only saw corps with agency principles and of course wills and trusts.

Anonymous said...

I thought corps was a cross with agency AND contracts (i.e., had to establish that there was a contract made first, then see if Ann had power to bind Testco via actual express, actual implied or apparant then ratification). Someone said remedies? I did not discuss that. I proceeded to piercing the corp veil after that.

Anonymous said...

Oh I am the dude who posted above. I forgot to say good luck to everyone and g-d bless. Rest up and enjoy the spring!

Anonymous said...

I know what you mean about there being a need to show a contract existed, but I didnt get into any contract law and analysis because I felt the crux of the question with respect to the contract was to show an authority analysis...and yes I did hear about remedies being presented but I do not see where that would come in..

Anonymous said...

yeah, i did not see where it would come in or how it could fit in within the a lot time period. lol.

Anonymous said...

specific performance main remedy Q1

Anonymous said...

ahhh! Specific performance makes sense. No adequate remedy at law because they were broke.

Anonymous said...

There was a also a remedy issue in that the plaintiff could go after the shareholders in equity for the improper dividends. Could also make a stretch and say equitable lien.

Philip said...

SP never allowed for a contract for services, as it is tantamount to involuntary servitude.

Anonymous said...

What was the contract even about? No definite or ascertain able subject matter, terms, etc...no SP!

Anonymous said...

it was a services K---Testco Inc. provided marketing/surveys. But Also, idk if the K had sufficient writing as it only said A signed but did not explicitly say if material terms were present in the writing.=SOF issue, which gives rise to quasi-K, promissory estoppel, etc.

Daniel J. Friedman said...
This comment has been removed by the author.
Anonymous said...

I think SP applied because it was not a K for personal services. it was a K for Co services. had you apply SP to individuals, yes, involuntary servitude. Also, K was for conducting surveys for a fix price, (half off standard) and for ten years. I also included Permanent Injunction but denied for mandatory Inj, series of acts crt supervision...

K defenses such as SF, lack of authority, etc... raised and rejected. second call, was PCV/undercap, cor formality, dividends causing insolvency. also rejecting Agency defenses by B. C could be held liable since this looked like a Closely held Corp. I might be all wrong since none really knows what exactly was going on in any of them. Best of luck to all

Anonymous said...

and call of question specifically asked what cause of action can be brought for "damages"=money damages-not equitable remedies. At first i thought it was a remedy question but then realized it was K question with issues of whether the corp was formed and could enter into K, and if A could bind corp to K. there was also issue of revocation and anticipatory repudiation.

anyways, good luck everyone. definitely was brutal. ended up spending 1 1/4 hours on this question especially since i at first thought they were asking remedies... Had to rush on the remaining two. PTB was a racehorse type question and I think i messed up by not using headnotes--bc i saw direction: "Write as giving the argument" who uses headnotes/indicates headnotes in a closing argument? I think this was a big mistake on my part though...

Anonymous said...

I dont recall seeing the phrase "causes of action."Essay 1 asked quote "what theories if any to recover damages against 1, and 2. If you pay attn it didnt even say what theories of "liability!" So, the call of the question kinda conceded Corp liability. Also, the line right before the call said "if the Co found liable, it doesnt have money to pay..." A Huge hint at specific performance.

On the positive note, the fact is we can fail two or even three essay Qs and still pass...

Anonymous said...

For performance test B what was the elements for possession with intent? I found the specific elements for possession, and conspiracy in the case law but did not find the element for possession with intent (the second charge against Dolan). I only found the statute and the case law. Did I miss something?

Anonymous said...

I agree with just about everything you wrote. Call of q for essay 4 said on what theory or theories can examco recover damages... Damages means money so discussing remedies doesn't make sense. Figure out how they can get money. Valid k? Defenses (Sof- k not to be performed w/in a year?) can a bind t to the k?
As for PT B I wrote it "exactly how I would say it"- headings didn't make sense to me.. Yes, I think they're better and would help the grader but I really wanted to follow directions.. I hope they understand why we didn't use them.

Anonymous said...

Yeah I was gonna say....for remedies questions, they would usually say what are the REMEDIES. At least that's what Barbri said...I think...one of those "it's tough to hide the ball on a remedies question because the examiners will blatantly tell you."

?!?!?!?!

You know it's funny....it's such a bad idea to discuss the exam afterwards because we're all freaking ourselves out yet we can't help ourselves. I'm glad I'm not alone.

Anonymous said...

Everybody is wrong about question one. 1. Injunctions are remedies for torts NOT contracts. Waste of time to talk about permanent injunction. 2. The question stated that the corporation had no money if it was found liable, so you needed to talk about Specific Performance 3. it was NOT an agency question. Ann was NOT an agent. The only issue was whether she had BINDING authority. Also a waste of time to talk about whether the Corporation was a valid one. The question stated Examco, INC. - Sorry to report the bad news...

Anonymous said...

PT-A sunk me. Spent too much time organizing the call and miscellaneous statutes (ex. cappers, runners, etc) on papers. Had to abandon that approach w/ 1:20 left. Furious typing of incomplete notes did not work out so well. Did anyone else run into a time crunch?

Anonymous said...

Same for me Anon. Tried the whole roadmapping thing on PT-A and totally ran out of time.

I feel like the rest of the exam went well, if I dont pass just because of that PT IM GONNA.....well. Im just going to take it again in July...haha.

Good luck all

Anonymous said...

More bad news about question one. "On what THEORIES can Testco recover damages?" 1. Breach of Contract. No money so needed to discuss Specific Performance. 2. Interference with Business Relations. 3. Intentional Misrepresentation (corporation had no money, could not realistically offer a 50 percent discount for 10 years) Yep, nearly everyone got it wrong, so don't worry if you missed it. I got Breach of Contract and Interference but I overlooked Intentional Misrepresentation

Anonymous said...

Good luck GP!

Anonymous said...

So to sum up Question One again. 1. Valid Contract, Binding Authority, Breach of Contract, No money damages so Specific Performance. 2. Piercing the Corporate Veil, fraud & undercapitalization. Individually liable. Ann for Negligent Misrepresentation (justifiable reliance). Other guy for Interference with Business Relations. No liability for the 3rd.

Anonymous said...

An earlier poster wrote: "Yep, nearly everyone got it wrong, so don't worry if you missed it."

If this was not written by a California Bar Examiner who has personally seen the grading sheet for this specific essay, my humble advice would be to disregard it entirely.

"[D]on't worry if you missed it." Yeah, sure.

Anonymous said...

Okay, the guy who keeps talking about specific performance is so off base, I just have to respond.

The call asked for theories upon which damages - DAMAGES - could be based.

So first, the causes of action: breach of contract (for the second call: tortious interference with a contract (aka interference with business relations)).

AUTHORITY of the president to sign...

And theories of damages (for K: expectation damages, reliance damages, consequential damages, incidental damages, and PUNITIVE damages to punish intentionally wrongful behavior. Quasi-contract and quantum meruit for bonus points).

[by the way, injunctions are remedies for both torts and contracts. just because barbri's stuff doesn't cover injunctions for contracts doesn't mean it doesn't exist]

yes, the call said that the corp would be insolvent ...which is why you pierce the corporate veil to get to the shareholders... not to go into equitable remedies!!!

The instructions to the test state that you should avoid discussing issues irrelevant to the problem!



All I can say is, you shoulda read the big cat outlines like I did...

Anonymous said...

Okay, I concede on the issue of Specific Performance BUT my main point was detailed Agency/Principal discussions and Corporate Formation were even more off base.
And reread my post. I said Interference with Business Relations was correct but you forgot Negligent Misrepresentation for Ann's behavior....

Anonymous said...

And what I meant to say is Injunctions don't make sense for a breach of Contract action seeking damages.

Anonymous said...

You had to discuss agency because the question stated that Ann made the contract while Ben was away on vacation and signed as President. If that was not an agency issue of the power to bind then I don't know what is.

Anonymous said...

Yes, you needed to discuss Power to Bind - Authority of the President to Bind. That's a quick discussion. To bind, you need a notice for a meeting, quorum and a majority vote or a signed agreement from all the directors. That's it. No detailed Agency/Principal discussions because Ann is NOT an agent.

Anonymous said...

Officers ARE AGENTS BECAUSE THEY HAVE THE AUTHORITY TO BIND THE CORPORATION!!!! Yeesh. Same duties - care loyalty and OBEDIENCE. That's what differentiates them from directors. Authority to bind or agency, same thing u had to talk about actual/ implied/ estoppel authority anyway.

Anonymous said...

Ummm . . . No. Anne was most definitely an agent of Testco. She was the corp's President. There are few situations that are more clearly agency relationships than that.

And, yes, a major issue (the main issue, as I saw it, but a major issue, no matter how you slice it) was whether Anne's entry into the written agreement with Examco was binding on Testco. Anne's authority to bind Testco required an AGENCY analysis. It wasn't a particularly difficult analysis, mind you - the President of a corporation pretty plainly has actual implied authority (and probably actual express authority, though we weren't given the facts to know for sure) to enter into contracts on behalf of the corporation - but that was the issue that needed to be analyzed.

You don't need a board meeting or vote to enter into a contract that's binding against the corporation. You just need a corporate agent who has the necessary authority. I mean, think about what you're saying. When you buy an iPad from the Apple store, do they need to convene a meeting of Apple's directors to make the exchange binding? Of course not. Because the employees at the Apple store are corporate agents with the authority to conduct such transactions. If those same employees tried to enter into a long-term supply contract with a Chinese vendor, though, that would not bind Apple because such agreements are beyond the scope of their agency relationship with the corporation.

Also, for those who have been saying there was a tortious interference claim, I don't think so. I tried to find something besides a straight-up breach of K, but it just wasn't there. Same thing for misrepresentation. Can somebody who saw either of these things explain how?

Finally, GP, I'm pulling for you, big time! Have never commented on here before, but wanted to let you know that I think it's incredibly brave and noble of you to bare your soul as you've done for these past several years. It's no doubt helped countless folks over the years, and you will be rewarded.

Anonymous said...

OMG!!! This is freaking me out!! What the hell was that question??? I just took it to be asking under what theories could Examco recover from Tesco? And then #2, A, B & C? I talked about A as a officer/president and her authority to bind, after quickly discussing De Jure and Closley held corps, and #2 was duties of care (and BJR) and Loyalty leading to the undercapitalized company and thus the right to PCV. It didn't say what remedies were available for Examco in the call, it just asked under what THEORIES could they try and recover DAMAGES from 1) Testco and 2) A,B,&C.....

Anonymous said...

This is pretty much the exact approach I took, and I'm still convinced it was the correct way to tackle the question.

1. Examco negotiates a K with Anne, and we're asked under what theories Examco can pursue damages from Testco. This required establishing (a) whether Testco be held liable as an entity; and (b) if so, how could actions by Anne give rise to that liability?

1a. Is Testco a corp? Briefly discussed de jure / de facto corp, probably closely held corp, if not a corp, then at least corp by estoppel.

1b. Regardless if corp or corp by estoppel, Testco can be held liable as an entity for its breaches of k. The issue is whether Anne, as the corp's agent, could bind it to this K.

2. But what if Examco wanted to pursue damages against the shareholders of Testco instead? Under what theories could it do so?

2a. Piercing the corporate veil is how a creditor can reach the shareholders of a limited liability corporation. Undercapitalized, alter ego, fraud. Undercap was the big one, I discussed alter ego, didn't see any fraud.

2b. In addition to PCV, Examco could pursue damages from Anne directly, because she is the one who signed the K. The question is whether an agent can be held personally liable on a contract entered into for it's principal. Maybe, if the principal was undisclosed. Here, she clearly signed for Testco, so no personal liability.

Anonymous said...

Okay, okay. I concede that negligent or intentional misrepresentation is a very sharp issue spot, because she knew or should have known that Testco was practically insolvent.

But it's not a major issue, because with a corporation composed of only 3 people, they are probably performing the market surveys themselves (no employees, which means low payroll/low overhead. They have no money for payroll, anyways, with $50 contributions, even though no par means no money necessary). This is a service business, which means they could probably give a 90% discount and still make money (not a lot). It's not like a product-based business where giving a 50% retail discount may be fraudulent (because of a necessary 15% profit margin, for example).

The fact that they had trouble paying creditors does not mean they could not perform on a contract with a 50% discount for a service business.

Misrep is not a major issue.

As for tortious interference with a contract, a contract was formed, then breached. the cause of the breach was B and A, so they are liable for the tort.

Again... I highly recommend the big cat outlines.

As for goat lady method, I only followed the PT approach, which was awesome. I followed the recommended PT schedule, and finished both PTs in time.

I didn't follow the study method for the essays, because I believe in studying the traditional way (the traditional rote memorization method ala big cat).

If you are a repeater, though (the goat lady was a repeater herself due to unforeseen circumstances not her fault), you don't need to do rote memorization anymore, and I recommend that you follow goat lady's method to a T. Again, for repeaters only (or for people who started memorizing way in advance, like 3-6 months in advance) the goat method is pretty awesome. (The goat method is like a 2 month study method).

Peace out.

P.S. If examinees who have accomodations still need to take the test, it might not be a good idea to share issue spots until after they finish the exam.

Anonymous said...

To the person who broke down his/her approach above:

I wrote the exact same essay as you.

Damnit.

February curve, matched to mbe, means lower scaled score = greater chance of NOT passing.

If we all wrote the same essay, fewer people pass.

Damnit. Damnit. I knew I should have waited for July.

Anonymous said...

I'm the guy who asked about interference and misrep earlier. Still think these were not at all present.

For one, I think this misstates / misunderstands interference. To the extent that B can be said to have induced the breach, it was only in his capacity as a party to the contract. The K was between Testco and Examco. If B was an O/D of some other corp., it would have been possible for him to tortuously interfere, but not as an O&D of one of the parties to the K.

And I think misrep is even further from the mark. As you point out, Testco's undercap probably had nothing to do with its ability to perform under the K, even at a deep discount and even over a 10-year period. But even if it did, there was no duty to disclose this information, so there can't be a misrepresentation by omission (and Anne made no affirmative representations about Testco's capitalization). I can sort of understand the temptation to call it a negligent misrepresentation (feels like a semi-culpable compromise), but that's a lazy (and incorrect) articulation of the law. If she misrepresented Testco's ability to perform the K, she did so knowingly. Point is, there was no misrepresentation.

Anonymous said...

man, fuck all this talk about the contracts/corps/ agency question. lol

what did folks say about the con law essay: is a bus station a public forum or non public form? i thought it was non-public because it is akin to a airport, etc. but i could be wrong.

Anonymous said...

I disagree: the interference tort is actually a big issue for the essay, because even though B & A are O&Ds, they interfered because the contract was between the two entities testco and examco, and B & A as individuals (remember we are piercing the veil here) are acting tortiously in an individual capacity in addition to an O&D capacity.

I'm glad you agree that misrep is off the mark. That gives me relief.

You know what's even further off the mark? Duty of Loyalty, which is a claim only the shareholders could bring, not Examco. I can understand Duty of Care as a cause of action, but not Duty of Loyalty.

*

As for Con Law, who cares about public/nonpublic. everbody got that issue.

The one issue that kills you is whether you got the three part test for commercial speech right.

Anonymous said...

Thanks. I feel a little, and I do mean a little better. As for DOC/BJR & DOL, I wrote about those because I thought that was the action by which a company could PCV to attach corporate directors personally. The call saying "on what theories could they recover for damages" did not lead me to believe they were asking what remedies could be recovered but how can Examco get to a place whereby they can recover for damages. Oh brother! I can't wait to get sleep and to stop thinking about this.
Also, with Con Law- I talked a lot about standing, content based/neutral (forums) and commercial speech.
With PTB I did use headings for guiding the reader, but I put them in italics hoping they will understand they are just road markers.
Finally I underlined quite a bit (& I type). I missed it by 2 points in July and I swear it is because the second grader didn't see my ouster of a co tenant discussion-it was within another paragraph.
No sure if I agree with the "harder" to pass in February comment. Most of the people I know passed in February on their second try. I am hoping that is fortuitous for me!

Anonymous said...

What were your individual scores? I don't think it's the essays that sink most people but the performance. You can fail 2-3 essays and still pass if you do well on the performance. But if you fail 1 or both performances, no way you can recover.

Anonymous said...

Um, that's only true for general applicants.

For attorney applicants, essays are 60% and PT are 40%.

Yes, 10% for each essay and 20% per PT.

This means that if I, an attorney applicant, got two or three 55s, I would be toast.

Anonymous said...

I still disagree on interference. Only a party with no interest under the K can interfere. Either A & B were acting on behalf of the corp, as a party to the K, or if they were acting in their individual capacities, they were seeking to avoid personal liability under the K. There's no scenario under which B would be trying to get A to rescind/breach for reasons that are independent from B's existing interests under the K (in his individual capacity or as a corporate agent).

Also, think about it: interference is a tort. Do you mean to tell me this was a corporations/agency/contracts/torts/remedies 5-subject crossover. No way. It was corps/agency. They gave you the breach of K (the cause of action) and told you that Examco was seeking damages (remedy). The question was what theories allowed them to do so against the various different parties. Theories of agency and corporate entity / shareholder liability.

Anonymous said...

Not true at all. If you received three 55's and three 70's on the essays, and scored a 65 on both Performances, you would still probably pass or come very close. I wouldn't stress so much even if you didn't do so well on Corps and Con law. As long as you did reasonably well on the other essays, which were far easier, you'll be okay.

Anonymous said...

Hi Bar takers!

I am not sure about you all ... but I'm not feeling too hot about my performance on this past bar exam... AND ....unfortunately it was not my first time taking it.
I know part of the reason for my poor performance was my motivation level. Even though I had more time to study than I did in the past, every time I sat down to study this time around, I had a really difficult time staying focused for more than a few hours at a time. I didn’t have the funds to hire a tutor, but I know that had I done so and had someone to answer to, I would have worked a lot harder....
I know I will not be able to afford a tutor next time around either, SO …..I've decided to put together a SMALL study/ support group of people that are in my same shoes.

If:

- You reside in Orange County, CA;

- You are unhappy with your performance on Feb 2012 bar;

- You plan to re-take in July 2012;

- You are willing to start studying now (within the next two weeks before you dump all the info) & work your butt off so that JULY 2012 is the LAST time you EVER sit for a bar...

E-mail me at:

leerivers_j@hotmail.com so that we can discuss/develop a plan of attack.

Best of luck to all :)

Anonymous said...
This comment has been removed by a blog administrator.
Randy chino said...

Can I comment, q-1 I formed the contract found a repudiation fond a breach then found recoverable damages. then found agency to bind the corp from A, Then found the corp invalid by under capitalization and alter-ego theory found shareholders liable to the extent of their investment and then found court will find the corp to be a partnership which bind all partners for the judgement and that will be able to get to personal assets for the claim.

Anonymous said...

good luck to GP.

and nobody needs to freak out from the people saying what the issues were.

I was on hear a few exams back and got all freaked and sincerely was convinced I failed. i passed. so just calm down and probably stop reading the comments.

zh4k said...

Hey, all thanks for the back and forth on the corporations essay it has been very entertaining to see what people thought because it really shows just how open it was.

I felt very comfortable with this essay because my specialization was in Corporations and Contracts so I touched on everything mentioned breach much except for remedies because like others have said I do not believe that's what it was asking for.

Because I have a good background in this area, in regards to the undercapitalization the examers literally ripped off a prior case from new york dealing with a taxi company that had undercapitalized its company with a dominate shareholder and the court found such undercap was perfectly fine and thus they didn't pierce the corporate veil. I actually specifically mentioned this case in my analysis because it was so relevant and mirrored the facts pretty well, but do not sweat if you didn't do so because it's all about arguing the facts and knowing the law.

Also, no one has mentioned this, but with regards to A, A was subject to liability because of how she signed the contract. When she signed she did not sign "Testco, INC." rather she signed "Testco" as president. Not including INC actually subjects her as an officer to liability for not clearly stating that such a entity is not limited in its liability. This is not something you learn from barbri though and was something i learned in a practical class I had taken.

zh4k said...

As to the CON LAW question I really think the main focus on that was speech, specifically what forum it was and doing content v. content neutral analysis. Also important was freedom of association using different analysis under this one since it could be seen as limiting membership based on their ad saying it was 10 bucks for membership. Also huge was the fact that it was a prior restraint of speech since the group wasn't allowed to even put it up.

Pammie said...

Hang in there!! I'm on your side and waiting for the win!
I know you can do - it's very very very difficult to do so when you're working!


Pam (P.E. Hudson)

Anonymous said...

I failed the CA bar 3(three) times!!! I failed it while being pregnant and sick to my very soul, I failed it 3 (three) days after having undergone a C-section, I failed it with a 7 month old baby to take care of. I finally passed on the 4th try, right after my baby turned out, and althroughout this I have followed you and your crazy adventures, PooBah! If I can do it, ANYONE can!!! I wonder sometimes if this blog is for real, because I know what I've been through, and I still passed...in the end. Please, please pass so I can have some hope that not everyone in this world is trying to mess with us.

With much respect,

DNL

Anonymous said...

Yikes I really didn't discuss contract issues like formation or repudation at all. I just discussed Closed Corps, agency priniciples, and piercing the veil....seems like people discussed contract formation and breach?

Anonymous said...

I discussed contract formation (because there was a counter-offer and then an acceptance) THEN I went in and discussed actual express, actual implied, apparant, ratification then for the second call piercing the corp veil, blah blah blah.

Anonymous said...

A little late in adding to what has already been posted, but a quick correction to one of the posts above regarding injunctions as a remedy. Injunctions are NOT limited to torts actions. Injunctions can also be sought (and often are) in contractual matters. FYI

Anonymous said...

Confession to the group - I don't feel like the big cat outlines were particularly strong on remedies. Did anyone try goat lady's outlines and, if so, do goats know remedies?

Anonymous said...

Can anyone recommend good study materials for CBX?

The Grand Poobah said...

If you're looking for no/low cost study materials, you could simply download all the released answers from the CalBar website. I would issue spot and outline the fact patterns then compare your outline to the issues found in the released answers. Once you've reconciled your outline with the released answers then go ahead and write out your answer based on your updated outline. Try to stay within the hour but make sure you finish. Then there's always the "Goat's Guide" for self studiers if you need a schedule to follow. If you want to go with a commercial program I would look at Jason Tolerico's bar prep course.

As far as MBEs go, I recommend Tolerico's MBE program. I used it for the last exam and I was impressed. I believe I improved my already adequate MBE score based on that alone (but time will tell [maybe!]) You'll have to check with him on the price, however, because it may have changed.

Anonymous said...

Thanks, I'll do as you suggest and use the CA bar's released answers... Specifically, I'm looking to improve my analysis skills. Would you recommend any other study materials? I'm confused about how to analyze. I'm looking at the CA Bar answers, and there's no common denominator in the answers (other than great recitation of black letter law). I need to learn how to do proper analysis, and the only thing I can think to do right now is to read the "best" (released) answers and try to learn from them.

I know you've used tutors in the past, would you recommend that route?

The Grand Poobah said...

Absolutely, if you're going to pay for a tutor there's one guy I can definitely recommend, and that's Jason Tolerico. If I passed the February exam (and, knocking on my wooden head, I believe I did pass), I owe it to what I learned in Jason's class.

Anonymous said...

can you post your thoughts on what you covered on the essays. i feel OK but not great about any particular essay. I was feeling really strong about con law and property/K essay but I guess I did not do as well as I failed to include commercial speech and prior restrain on con law. Also many people disagreed that the forum was limited public forum( i addressed almost all the forums just in case) and the property oneL i discussed the obvious IWH and quiet enjoyment but also frustration and Hindrance as a wa y to discharge performance under the K/Lease. Nobody got that so I guess I'm screwed.

Anonymous said...

I avoided reading this thread until after the bar results came out specifically because I didn't want the stress of reading through so many divergent takes on the Business Associations question (check the CA Bar site--they are listing it as just Business Associations). I now find it funny how supremely confident members of the Torts camp were here (and Remedies). I overheard people talking about Torts/Remedies when I took it and thought it was just a fluke. But after reading through these comments I'm guessing that question really threw a lot of people off course. I wonder if the Torts/Remedies people still think they were somehow right, or whether they have reevaluated and learned where teu went wrong.