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Questions: 1.How can a partnership arise by a course of conduct? 2.Outline the legal process with the business names and determine if this name is acceptable.Earl goes on to say that he worked for Golden Lights Pty Ltd until 11 December 2016 and he has been contacting their customers (from a stolen list) 3.Describe the problem with the use of the corporate lists? 4.Would the corporate veil of Spectacular Pty Ltd be pierced to make Earl liable to pay damages to Golden Lights Pty Ltd?Earl emails you a letter from ASIC who wishes to investigate Spectacular Pty Ltd? 5.What grounds could ASIC use? Answers: 1.Partnership under the course of conduct refers to an arrangement where people get into a partnership through implied means. In many cases the contract is negotiated and business decisions are made without having a formal written agreement. As a result, the parties proceed to execute their mandate in the contractual agreement without necessarily signing any agreement. Lee I (2012) states that the conduct of the partners should be reviewed to ascertain whether their actions implied that they intended to perform the responsibilities of a partner in a particular organization or business setup. Partnership under the course of conduct is based on the conduct of the parties or the circumstances surrounding the conduct of the parties. There is no formal written agreement for a contract under the course of conduct because the parties enter into a contract through implied means. There are two types of implied contracts. These are the contracts implied-in-fact and those implied in law. Tricker, B. Tricker, G., (2014) in the book Business Ethics, A Stakeholder, Governance and Risk Approach affirms that contract implied in fact arises when the conduct of the parties create an impression that they intend to have a contractual agreement without necessarily anchoring it in writing. For instance, if ones persons car fell into a ditch and a tow track retrieved it and later went on to demand the payment from the owner whose car was in a ditch, then such a person is deemed to have entered into a contract with the car owner impliedly. Similarly, such a contract is considered to have occurred as a course of conduct by the parties. One of the parties to a contract by a course of conduct may believe that they have an undue advantage over the other party by terminating the agreement at any time they deem appropriate to them. For instance, such a party can just say that there was no contract simply because there was no written agreement between them. In some cases such parties to a contract can scuttle the whole process with hope that it may not arise again. It is important to acknowledge the fact that the absence of a written contract does not guarantee non-enforceability of the contract (Head Mann, 2008). When such problems arise, the matter is referred to a court of law and the court examines the evidence to ascertain whether the contract existed in the first place. The history of engagement between the parties is examined to identify whether it amounted to a course of conduct regardless of the fact that the contract was signed or not (IMF, 2012). 2.Hanging a business name from spectacular Pty Ltd to Spekkie is both a costly and a disruptive process considering the former is an established business that has roots in many areas of companys operations. The IMF report on objectives and principles of securities regulation of 2012 states that the difficulty in this process arises where the companys accounts and marketing materials change. Under the Australian Securities and Investment commission the process is acceptable and legal to undertake provided that all the legal processes of changing the name of the company are fulfilled. For instance the new name should not be similar or close to the original name. In addition, it should be registered buy any other company and should not be similar to other public and governmental organizations. There is no established form of operating a business under other companys name unless you register a new company. If you want to trade under the new name, or a different name altogether as seen in the spectacular Pty Ltd being named as Spekke. The first option to undertake while registering a new business is to check for trademarks and patents and ascertain whether there is any infringement before you proceed with the process. Information Security and Ethics by Nemati H (2012) outlines the process of searching the company using the trademark search tool. Thus the name Spekke should be searched using the trademark search tool on the patent and Trademark office to see if there is a similar name or symbol relating to another company. In addition, one must check the domain names to make sure that you claim the identity of that particular name online. 3.Earl goes on to say that he worked for Golden Lights Pty Ltd until 11th December 2016 and that he has been contacting their customers from a stolen lists. Some of the employers requires of their employees to sign a valid a binding non-compete and non-solicit agreement. Such agreement often say I promise that for a certain time period I will not solicit the companys employees, or I will not work for a competitor. In some cases, the employers do not require that their employees sign these agreements. For those who do not sign them, then they are in a good position to exercise their freedom when dealing with customers without any fear (Shilling, 2016). However, for those who sign such agreements, they are bound by the elements of the document and are not legally permitted to take with them the customer lists or any other valuable information of their former employers to their new places of work. Taking the customer list of your former employer is like stealing because such a list is considered as a trade secret in law. Stealing the trade secrets of your former employer is a worse crime in legal sense than stealing of hardware such as computers. It is legally forbidden to take a customer list either in paper format or digital format regardless of whether you signed a non-solicit or non-compete agreement or not. Having worked at Golden Pty Ltd, Earl has no legal authority to contact his former employers customers because it is a breach of confidentiality of the employers sensitive information. It is a contravention of the confidentiality principles to use a stolen list of customers and acquire an undue advantage of the former customers. The use of stolen customer lists is actually an institutional fraud and is punishable under the law. If for instance, one ceases to be an employee of a certain organization, institutional morality requires him/her to erase all the information that is related to the customers (OECD, 2010). He should avoid using such information to employ non-competitive practice by comparing the pricing with the former employer. Going into the specifics of your former employers terms of trade and discussing it with the customers with the view of providing better offers is a clear indication of being in possession of your former employers confidential information for your benef it and is unfair to your former employer. 4.Yes, the corporate Veil of Spectacular Pty Ltd should be lifted by disregarding the general rule that a corporation is a legal entity distinct of its shareholders and hold Earl personally liable for the corporations actions. Being a major shareholder at Spectacular Pty Ltd, he defied the principles of confidentiality and used a stolen list of customers from his former employer Golden Lights Pty Ltd. Unlike a situation where Spectacular Pty Ltd would be held liable for the actions of Earl as the companys director, the limited liability doctrine can be lifted where the director or a shareholder who has defied the law in the exercise of his/her functions can be held personally liable for their actions (Nelson, 2006). In this particular case, Earl should be held liable to pay the damages to Golden Lights Pty Ltd and as he was the one who used unconventional means of doing business by violating the confidentiality doctrine of his former employer. 5.The ASIC may investigate the use of wrongful conduct under what is considered as a trade secret. There are allegations of physically taking or coping of the Golden Lights Pty Ltds confidential information about their customers by Earl who happened to be a former employee of the same company. There is a difference between stealing and soliciting customers. No one can take a legal action against an employee who solicits customers. However, Stealing of customers list of another company or a competitor is a gross violation of trade practices and is open to investigations by the Australian Securities and Investment Commission upon which liability is punishable in law. Bibliography Head, M. Mann, S., 2008. Law in Perspective: Ethics, Society and Critical Thinking. Kensington NSW: UNSW Press. IMF, 2012. Australia: IOSCO Objectives and Principles of Securities RegulationDetailed Assessment of Implementation. Washington DC: International Monetary Fund. Lee, I., 2012. Electronic Commerce Management for Business Activities and Global Enterprises: Competitive Advantages: Competitive Advantages. Hershey: IGI Global. Nelson, B. L., 2006. Law and Ethics in Global Business: How to Integrate Law and Ethics Into Corporate Governance Around the World. Abingdon: Taylor Francis. Nemati, H., 2007. Information Security and Ethics: Concepts, Methodologies, Tools, and Applications: Concepts, Methodologies, Tools, and Applications. Hershey PA: IGI Global. OECD, 2010. Consumer Policy Toolkit. Paris: OECD Publishing,. Shilling, 2016. Complete Guide to Human Resources and the Law. 2017 Edition ed. Washington DC: Wolters Kluwer Law Business. Tricker, B. Tricker, G., 2014. Business Ethics: A Stakeholder, Governance and Risk Approach. Abingdon: Routledge.