Bluebell Bakery: This scenario took place in the "Before [CoVid] Times": Bluebell Bakery LLC is owned and managed by three individuals: Eliza, Alex and Aaron. They met while at the culinary program at SMCC. Business is going very well. Eliza, Alex & Aaron decide to expand the business and hire two new full time bakers, as well as a part-time delivery driver. They also decide to enter into a contract (which includes an indemnification provision in favor of Bluebell) with a local certified public accounting firm, Portland CPA, Inc., to provide a book-keeper to Bluebell, part-time. Portland CPA sends over Thomas to Bluebell's administrative offices for a couple of hours each week and bills Bluebell monthly. [Portland CPA, Inc. is Thomas's employer. Portland CPA is an independent contractor engaged by Bluebell.] Bluebell hires its new bakers Dan and Sasha straight out of SMCC's culinary program. Bluebell places an ad on Craig's List for a delivery driver and receives ten responses. They call in three potential drivers and interview each of them. They hit it off with Hercules and hire him to start driving his truck for Bluebell the next day. Hercules tells them that he already drives for a package delivery service and has a lot of experience. One day while Thomas is working in the Bluebell offices, down the hall from Alex's office, he arranges a meeting with a software vendor. The next week when Thomas is in the office, the vendor arrives and Thomas meets with him. Thomas and the vendor enter into a contract for the vendor to provide services to Bluebell Bakery LLC. The vendor is under the impression that Thomas is an employee of Bluebell Bakery and that he has the authority to sign a contract on behalf of Bluebell Bakery LLC. Thomas signs the contract as follows: Buyer: BLUEBELL BAKERY LLC and By: /s/ Thomas /s/Thomas Thomas Thomas [Thomas has signed (the "/s/" means that there is a signature on the original) both "as" an employee of Bluebell and as an individual.] This signature block should make you think about Mr. Dostie and how he signed the contract he executed with Mr. Ludington.] A week later Hercules is involved in an accident while making Bluebell Bakery deliveries for the day. The police come to the scene on Commercial Street and determine that Hercules rear-ended and totaled a vintage Ferrari valued at $7 million. Cell phone records will demonstrate that Hercules was texting at the time of the accident. During the discovery phase of the lawsuit brought against Hercules, the plaintiff finds out that Hercules was driving with a suspended license and has had two OUI convictions. Dan and Sasha work with Eliza and Aaron every morning from 3 a.m. until 11 a.m. One day Sasha takes Eliza aside and tells Eliza that Dan has been telling Sasha dirty jokes and leering at her. Today, he tried to grab her breast. Sasha says that she's tried to maintain a good sense of humor about it but she is having trouble sleeping, is often nauseated, and has talked to a therapist about Dan's behavior. Eliza is worried by Sasha's claims and the fact that Sasha has been leaving batches of bread in the oven too long. Eliza tells Sasha she will keep an eye on Dan. Eliza later mentions the problem to Aaron who tells Eliza, "Well, if Sasha can't stand the heat, she should get out of the kitchen." Neither Eliza nor Aaron speak to Dan.

A. A few days after Eliza and Aaron's conversation about Sasha, Aaron fires Sasha for repeatedly burning bread. 1. (7 points) What kind of employment discrimination claim may Sasha have against Bluebell? What are the elements she would have to prove? What facts support each of those elements? 2. (2 points) What particular piece of evidence do you think a jury would find most significant? 3. (3 points) Sasha has a claim against Bluebell, the company. Does Sasha also have a claim against the individual owners/members or are they adequately protected by the Business Judgement Rule? State your reasons. 4. (3 points) Is there anyone else that Sasha might have a claim against? Why? What would the claim be? B. The Ferrari owner sues Mr. Hercules for damaging his car. (10 points) What are the elements of negligence that Mr. Ferrari must prove? What facts support each element. (3 points) Was it foreseeable that Mr. Hercules might damage someone else's car while he was driving? What evidence supports that view? C. Mr. Ferrari also sues Bluebell because it, as a company, is more likely to have resources and insurance than Mr. Hercules. Bluebell makes a motion for summary judgment dismissing Mr. Ferrari's case against it by claiming Bluebell has no liability, as a matter of law, because Hercules was an independent contractor and, accordingly, Bluebell should not be held financially responsible in that situation. 1. (3 points) What exception to this independent contractor rule will Mr. Ferrari cite to avoid dismissal of his lawsuit and to defend his right to sue Bluebell? 2. (2 points) Who will win based upon the information you have? D. When the software vendor's bill for the software services arrives at Bluebell, Alex calls up the vendor and explains that Thomas is not an employee of Bluebell and he was not authorized to enter into an agreement on Bluebell's behalf. The vendor states that if Bluebell breaks the contract the vendor will sue Bluebell. Alex rashly says "bring it on" before he has talked the situation over with an attorney. The vendor sues and states that even if Thomas did not have express authority to enter into a contract as Bluebell's agent, Bluebell is still responsible. 1. (3 points) Based upon the facts given, will the vendor or Bluebell win this point? Why what legal theory and what evidence support your conclusion? 2. (3 points) Does Thomas have individual liability? Why or why not? 3. (4 points) Let us assume that Bluebell loses its case and is ordered to pay the vendor. Does Bluebell have any recourse against anyone else? Who? [Meaning, can Bluebell look to anyone else to reimburse it for the payment it makes to the vendor?] Why what created that obligation?