7. (TCOs G and I) In the 1930s, after immigrating to the U.S. from Ireland at the onset of World War II, Shamus and Mary McCream opened a bakery in Boston. They specialized in snack cakes. McCream Cup Cakes became so popular in the area that the family stopped being actual bakers and became manufacturers/ food processors of the snack cakes on a regional basis. After returning from the war, their son Steve completed college and began working in television advertising in the early 1950s. Steve approached his parents and his older brother Tom, who was now running the business, about the possibilities of advertising and “going national.” The family liked the idea and began advertising and expanding. In addition, to fuel the expansion, they offered retailers price discounts and other incentives if they prominently positioned the store displays set-up by McCream rack jobbers. By the 1960s, they were a national brand, controlling over 80 percent of the snack food industry. In the 1970s, with the advent of the hippie counter-culture and the back-to-Earth movement, a new competitor made an impact on the McCream business. The company, Healthy Snacks, began advertising that their products only used natural ingredients. They even began running a commercial in which a mother and child compared their Healthy Snacks with a lampooned product named “Cup Cake McCrumbs,” stating that it tasted like poison and dog food! Tiny-Big- Brian, a counter-culture pop star with a late night UHF and cable show, joined in on the controversy created by the commercial and stated that he did not understand how people, “could buy such poisonous dog food and serve it to their children as snacks!” Market studies showed that McCream Cup Cakes sales suffered. As a result, McCream began a more aggressive shelf space and display marketing campaign to combat Healthy Snacks’s television advertising. McCream’s marketing efforts were successful. By also offering volume discount incentives, they had prevailed upon retailers in their traditional East Coast and Midwest markets to prominently display their products. To counter this strategy, Healthy Snacks offered a deep discount to WaySafeMart, a Southwest and West Coast discount chain, in exchange for an agreement to exclusively sell only their snack foods. In reality, McCream Cup Cakes used only FDA approved ingredients and preservatives and were made in American plants that always passed inspections. In contrast, although Healthy Snacks’s pilot plant was in Florida, it had subcontracted the bulk of its production to a plant in the Dominican Republic. As a result, to maintain a level of quality, Healthy Snacks used the maximum amount of preservatives allowed under the law of the Dominican Republic for the imported product. The level was so high, reactions to the food were often reported. The levels were higher than those allowed by FDA regulations, but allowed per an agricultural import/export treaty between the United States and the Domi.

1. 7. (TCOs G and I) In the 1930s, after immigrating to the U.S.
from Ireland at the onset of World War II, Shamus and Mary
McCream opened a bakery in Boston. They specialized in snack
cakes. McCream Cup Cakes became so popular in the area that
the family stopped being actual bakers and became
manufacturers/ food processors of the snack cakes on a regional
basis. After returning from the war, their son Steve completed
college and began working in television advertising in the early
1950s. Steve approached his parents and his older brother Tom,
who was now running the business, about the possibilities of
advertising and “going national.” The family liked the idea and
began advertising and expanding. In addition, to fuel the
expansion, they offered retailers price discounts and other
incentives if they prominently positioned the store displays set-
up by McCream rack jobbers. By the 1960s, they were a
national brand, controlling over 80 percent of the snack food
industry.
In the 1970s, with the advent of the hippie counter-culture and
the back-to-Earth movement, a new competitor made an impact
on the McCream business. The company, Healthy Snacks, began
advertising that their products only used natural ingredients.
They even began running a commercial in which a mother and
child compared their Healthy Snacks with a lampooned product
named “Cup Cake McCrumbs,” stating that it tasted like poison
and dog food! Tiny-Big- Brian, a counter-culture pop star with a
late night UHF and cable show, joined in on the controversy
created by the commercial and stated that he did not understand
how people, “could buy such poisonous dog food and serve it to
their children as snacks!” Market studies showed that McCream
Cup Cakes sales suffered. As a result, McCream began a more
aggressive shelf space and display marketing campaign to
combat Healthy Snacks’s television advertising. McCream’s
marketing efforts were successful. By also offering volume
discount incentives, they had prevailed upon retailers in their

2. traditional East Coast and Midwest markets to prominently
display their products. To counter this strategy, Healthy Snacks
offered a deep discount to WaySafeMart, a Southwest and West
Coast discount chain, in exchange for an agreement to
exclusively sell only their snack foods.
In reality, McCream Cup Cakes used only FDA approved
ingredients and preservatives and were made in American plants
that always passed inspections. In contrast, although Healthy
Snacks’s pilot plant was in Florida, it had subcontracted the
bulk of its production to a plant in the Dominican Republic. As
a result, to maintain a level of quality, Healthy Snacks used the
maximum amount of preservatives allowed under the law of the
Dominican Republic for the imported product. The level was so
high, reactions to the food were often reported. The levels were
higher than those allowed by FDA regulations, but allowed per
an agricultural import/export treaty between the United States
and the Dominican Republic. Several people who ate these
Healthy Snacks required emergency room visits. A child in
Georgia, with food allergy problems, even died. Her parents
served her the snack, relying on the advertising, not knowing
that some of the natural ingredients used in the Dominican
Republic-made product were dangerous to her.
The McCream family seeks your advice and opinion regarding:
(1) Healthy Snacks’s advertising campaign.
(2) The marketing and distribution campaigns both companies
have engaged in.
(3) The liability issues Healthy Snacks faces regarding their use
of food manufactured outside of the United States.
8.
TCO E The city of BigTime, Texas, was suddenly needing to
expand their Fire Department to add four new stations, which
would require 92 new department employees. The city
announced through various media the need for a total of 92 new
Fire Department Employees with fairly attractive wages, and
very attractive benefits such as health insurance, vacation time,

3. pension funds, etc. Applicants were told they must apply within
the next 15 days, and be willing to complete a series of
qualification tests. A total of 280 people applied for these Fire
Department Positions, 155 men and 125 women. All of these
potential employees were first required to complete a
background and reading/math test; 119 of the women (95%) and
136 of the men (88%) made satisfactory scores on this initial
test, and advanced to the second and final requirement of a
physical test. The physical test had a number of requirements
including:
· Climbing a ladder up to a 3rd floor window, picking up a 100
pound bag of sand, and then climbing back to the ground;
· Dragging a 100 foot long piece of a 4 inch hose full of water
200 yards in under 2 minutes; and
· Running a mile in under 8 minutes.
Only 11 of the women (9%) and 120 of the men (88%) made
passing scores on this physical test, and qualified for further
consideration for the 92 new Fire Department jobs. Is this
hiring policy acceptable under Title VII of the 1964 Civil
Rights Act, and this Federal Statute’s further development over
the last 50 years? Does this hiring process involve Disparate
Impact? Disparate Treatment? Should the BigTime City Fire
Department be required to modify their hiring procedure?
1. Benjamin is a long time key salesman for Morton and
Dunderfield, a business supply company in Eastern
Pennsylvania. The company decides to change its formal
employer/employee relationship with all of their sales people,
including Benjamin. Instead of compensating them with salary
and a bonus based on quarterly sales, they change the
relationship to that of an independent contractor who earn a
sizeable percentage commission each month. With the change in
this relationship, Morton and Dunderfield require all of their
sales people to sign employment contracts which contain a

4. clause that states upon leaving Morton and Dunderfield’s
employ, they will not contact any former customers for a period
of two (2) years. Benjamin, fearing he will lose his job, signs
the agreement. After the first month, he realizes he will earn
much less that he formerly did.
He seeks your advice on his options. (Points : 20)
4. (TCOs A, D, E) Judy Collinsworth, a then-unknown folk
singer, signed a three album recording contract with Mercury
Apollo Music, Inc. Mercury Apollo Music was a boutique label
specializing in folk artists. Collinsworth’s first album for
Mercury Apollo was moderately successful. The second album,
unfortunately, was panned by the critics and did not sell.
Mercury Apollo Music was acquired by NastiCondiMedia, Inc.
NastiCondiMedia, in an effort to re-vitalize Collinsworth’s
career, encouraged her to leave the folk style she was
committed to and do more commercially viable pop material.
Collinsworth rejected this request. Furious with
NastiCondiMedia, Collinsworth wanted to end the contract. On
her own, with what remaining personal funds she had left, she
immediately went to an independent recording studio and did
sessions toward a third album without approval or consent by
NastiCondiMedia. Using her concert band, she recorded tracks
for over 30 songs. Due to the financial failure of Collinsworth’s
second album and her recent unsuccessful concert tour,
NastiCondiMedia did not do the final production work on
Collinsworth’s third album.
Collinsworth then entered into a contract with EasyListening
Communications, Inc. She began recording a new folk album
with EasyListening in conjunction with a concert tour that they
financed and produced. At her concerts, Collinsworth would
regularly introduce the new material that would be on her new
album.
Shortly after the concert tour began, NastiCondiMedia brings
suit against Judy Collinsworth and EasyListening
Communications, Inc.

5. (a) What causes of action might NastiCondiMedia bring against
Collinsworth and EasyListening?
(b) What causes of action might Collinsworth and EasyListening
bring against NastiCondiMedia?
(c) What types of relief might either party seek? Points 30
6. (TCOs A, D, E) Woody worked at the local country club pool
as a lifeguard, not a swim teacher, for the summer of 2013.
Woody was a public school physical education teacher. The
country club did not do a background check or confirm any
references when they hired him. They relied on the “say-so” of
Woody’s brother, a member of the country club board of
directors. The country club only did a cursory internet search of
the state’s Department of Education website to verify that he
had a valid teaching certificate. When one of the swim
instructors unexpectedly quit one day, he took over the class.
Initially, the class went well. Eventually, Woody also took over
coaching the club’s competitive swim team. When he became
the swimming coach, Woody effectively stopped “teaching” the
swim classes. Instead, he had all the swimmers in the classes do
races and train for competitive meets during the 30 minute
lessons. Woody had done this many times during the summer.
His boss, the country club director, knew this and, as the swim
team was winning, ignored complaints from parents and
students. Woody raced with the swimmers and pushed the
winners out of the way when they tried to touch the side of the
pool so that Woody’s team would win each time. This was not
the first time that Woody had injured swimmers. Last year, he
was arrested for physically abusing a child he coached at his
school. Although the criminal charges were dropped, Woody is
on administrative leave from his public school job until an
administrative hearing with the state Department of Education
can be held in the fall. The incident was reported in several
local papers, and his administrative suspension is listed on the
state’s database.

6. Several of the children, ages 6-8, reported to their parents that
they had been physically assaulted by Woody while in swim
class for not “working hard enough!” The children had bruises
on their shoulders. In addition, Woody began “kidding” an 18
year old black college student who worked as a lifeguard and
assisted Woody with the coaching. Over time, Woody’s “jokes”
toward the young man became very aggressive. Woody
continued even though the young man asked him to stop. In
fact, after the young man told Woody to stop as he felt
harassed, Woody hired another lifeguard to assist him with the
coaching. The country club director was aware of this situation,
but as the swim team was winning, he took the position that it
was an interpersonal issue that the two should workout among
themselves.
Several parents brought suit against the local country club,
Woody, and the country club director. The young lifeguard has
also brought suit. The local country club pool alleges that they
are not liable. Discuss the ethical, liability, and agency issues
presented by this matter, and all defenses available to the local
country club pool. (Points : 30)
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