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72 Cards in this Set

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For injunctive relief, when are you required to ask for permanent relief, and when are you required to ask for temporary relief?
Permanent: issued after Trial on full merits. Temp: Issued pending trial on the merits
What is the two part test for Temporary injunctions?
(1) There is an irreparable injury (time frame, balancing of hardships) (2) P's likelihood of success (bond req., probability of success). Goal is to show that injury will occur before trial on merits.
How is a TRO procedurally different from a regular temporary injunction?
A TRO is issued pending a hearing on an injunction. They can be issued ex parte, ie, notice and an adversarial proceeding are not required, although a good faith effort to do them must be done.
How long does a TRO usually last? How are difficult are they to get?
10 days. Very difficult, especially with mandatory TRO.
What is the 5 part test for Permanent Injunctions? (I put five bucks down)
1. Inadequate Legal Remedy 2. Property right/protectable interest 3. Feasibility of Enforcement 4. Balancing of hardships 5. Defenses
What are the three legal remedy alternatives?
1. Replevin (get your stuff back) 2. ejectment (kick guy off) 3. Money damages (people can use money in exchange for goods and services)
What is the common law, and what is the modern trend for the Property right/protectable interest test part?
CL: only property right. Modern Trend: Protectable interest. Both are very liberally construed. Mention both in essay.
Feasibility: What are the two types of injunctions, and which is more feasible?
Negative Inj: "stop doing X"=no enforcement problem. Mandatory Inj: "do X". May be enforcement problem b/c of (i) difficulty of supervision, and (ii) concern with effectively ensuring compliance.
What are the effects on feasibility of an injunction that includes great taste/skill? series of acts over period of time? out-of-state act?
great taste: denied, b/c how do you ensure it was used? acts over period of time: denied, unless P's case is great, b/c of aversion to "judicial babysitting". out of state: resident D: inj. granted. non-resident D: inj. denied.
What is the standard for balancing hardships?
D must show "gross disparity" between detriment to D and benefit to P. Even then, if D's conduct willful, no balancing. Also, when P loses, look to give him money damages. Also, hardship to public is also taken into account. balancing very important for nuisance and trespass to land cases.
When is the "unclean hands" defense available?
When the P's alleged improper conduct is related to the lawsuit.
How does laches relate to the statute of limitations?
It isn't concerned with the passage of time, but rather the effect of the passage of time. Also, laches period will never be longer that SOL.
When does clock begin to run on laches? when does delay cut off relief?
When the P knows of injury. When it has been BOTH unreasonable and prejudicial to D.
What do you consider when laches applies?
Giving money damages to P.
When is the impossibility defense available to D?
When it would be impossible carry out the injunction.
When is free speech defense available?
If tort is defamation or privacy publication, best answer is to deny injunction based on free speech
Can equity enjoin crimes?
NO. but, try to characterize as a tort.
Who is bound by an injunction?
Parties, employees and agents acting with notice, third parties acting with notice.
Do you have to obey an erroneous injunction?
Yes. What you should do is have it modified or dissolved.
What do you do when someone disobeys an injunction?
Hit'em with contempt.
What is point of civil contempt, and how is it utilized?
The point is to coerce. This can be done with fines (which may go to P, in cts discretion) and imprisonment (which will last until D complies with court order)
What is the point of criminal contempt, and how is it utilized?
The point is to punish, and this can be done through fines, or imprisonment for a set period of time (although constitutional issues kick in here.)
Is there contempt for non-compliance with money damages awards?
No, unless alimony or child support
will the court hesitate to enjoin trade libel b/c of free speech like it does with defamation?
When does interference with business relationship apply?
To both existing and prospective relationships, unless a privilege exists between D and 3rd party. It is harder to find privilege with existing than with prospective
What facts are to be looked at when trying to determine existence of privilege?
D's "perusuasion" tactics (physical aggression v. mere oral suggestion) AND relationship between parties (P v D: are they competitors?; D & 3rd party: are they close relatives or paid advisor?)
What is the two part test to determine trade secret misappropriation may be enjoined?
(1) Determine whether what P has is a trade secret. (2) Determine if it was taken by improper conduct.
What is a trade secret?
A protectable property interest: "It is something not generally available to the public which gives its possessor a competitive advantage" Conviser says: when in doubt, go trade secret
What is improper conduct?
What it says, and it is easier to find when taker stood in fiduciary relationship with owner.
Who may be enjoined under trade secret misappropriation?
Both the taker and the 3rd party seeking to use it.
What is the two part Trademark/trade name infringement test?
(1) Determine whether there is a protectable trademark (historically, always has been), and (2) Determine that there has been an infringement
What is the special issue dealing with the protectability of a mark/name?
Whether it's w/in the scope, e.g. the farther geographically you get from owner, the less likely it's w/in the scope. COnviser says: if in doubt, go with w/in scope.
What is the test for determining whether infrigement occurred?
Test: the "likelihood of confusion" as to source of goods or services. Must discuss similarities of goods/services.
What is the right to imitate problem?
Generally, one has a right to freely imitate another's unpatented product, unless there 's (1) deception to public (intentional or not)(will probably have to discuss trademark infringement) and (2) Imitation is accomplished by improper means (which will probably warrant a trade secret discussion)
What is the six part test for specific performance (Cha-Cha is my favorite dance)?
1. Contract validity, 2. Contract Condition satisfied 3. Inadequate legal remedy. 4. Mutuality of remedy. 5. Feasibility of enforcement 6. defenses.
What is difference between showing a valid K for specific performance, as opposed to money damages?
Specific performance requires that K terms be shown w/ more certainty and definiteness than for money damages.
Land Sale K: Determining if K conditions satisfied for specific performance with Seller as Plaintiff; what can they get away with?
If defect is minor, can enforce K; if it's major, can't. Also, seller can cure defect before or at closing. Ct. WILL lower K price, ie "abatement" (need to include this)
Land Sale K: Determining if K conditions satisfied for specific performance with Buyer as Plaintiff; what can they get away with?
Can enforce K if defect major (5% missing) but not if very major (50% missing). Ct. WILL lower K price, ie, abatement, (need to include this).
Time of Essence Clause fact pattern: Will be land sale K, K will contain express time of essence clause, clause will contain forfeiture provision, will have been part. performance by buyer, buyer will make late payment, buyer will bring lawsuit for spec. performance. What will court do?
Ct will try to uphold "Equity abhors forfeiture" maxim. Will look to 4 factors to avoid forfeiture: loss to seller being small, tardiness is minimal, seller has accepted/waived late payments in past, and buyer will suffer undue hardship.
When will time of essence clause be strictly enforced?
When buyer hasn't performed at all yet.
Specific Performance: why would money damages be inadequate?
Damages are speculative, defendant is insolvent, multiple suits would be necessary, the thing bargained for is unique.
Specific performance: When is property judged to be unique?
Even if money awarded, P couldn't go out and buy it. Land is ALWAYS unique. Personal property generally not unique.
Can seller's get specific performance on land Ks?
Yes, this is special "seller's" rule.
When is personal property considered unique?
When it is: 1. one of kind or very rare, 2. personal significance to buyer, 3. Circumstances make chattel unique (tested at time of litigation. Ex: OPEC cuts oil production, oil becomes unique)
Spec Perf: Does a liquidated damages clause make money damages inadequate?
No, except where the clause provides that liquidated damages are "sole" remedy.
Spec Perf: What is a lack of mutuality?
When one party says "P shouldn't be able to enforce K against me b/c i couldn't enforce it against him."
Spec Perf: what is the rule for mutuality of enforcement?
"Court will reject mutuality argument if it feels secure that the P can and will perform b/c the D expected that P would perform when K formed" Also, make sure to have decree provide for SIMULTANEOUS performance.
Why are personal services K's not generally specifically performable?
B/c there'd be an enforcement problem (ie, judicial babysitting) and the constitution frowns on involuntary servitude.
What are the equitable defenses to specific performance?
unclean hands, laches, unconscionability (must be more than mere "bad deal". tested at time of K formation, not litigation)
What are the K defenses to specific performance?
Mistake, misrepresentations, and statute of Frauds.
Conviser note: What do you do when an essary involves the sale of land/testamentary disposition of land, and the K is oral?
Rule: if one has rendered 1. valuable part performance 2. in reliance on the K, case is out of Statute of Frauds.
Spec Perf: how do you determine valuable part performance re: Statute of Frauds and land K?
CL: find 2 of 3: payment (whole or part), possession, valuable improvements. Modern trend also looks to valuable services.
What is equitable conversion?
If the land sale K is specifically enforceable, the real property interest of seller (land) and personal property interest of the buyer (money) are exchanged at the moment of execution (ie, signing of K), even though they may not actually exchanged until the closing.
What happens if a party to a real estate K dies post-execution but pre-closing (ie, executory period)?
Their estate get the interest due to the deceased at moment of death.
Who bears the risk of loss during the executory period? (assuming equitable conversion)
The Majority rule is that the risk of damage to property is on the buyer, except when loss caused by seller's negligence. BUT, the modern trend states that the risk is on the seller, unless the buyer has possession or legal title.
What is the two part test to determine the validity of a covenant not to compete?
(1) The covenant must protect a legitimate interest of the person in whose favor it runs; for this to be case, service must be unique. (can take significant % of business w/ him) (2) The covenant must be reasonable in both its geographical and durational scope.
What are the two steps to analysis of a rescission problem? (good dog)
Step One: Determine if there are any grounds for rescission. Step Two: Determine if there any valid defenses
What are the valid grounds for rescissionn?
mutual mistake (if material), unilateral mistake (only if non-mistaken party knew/should have known of mistake), misrepresentation (P must show actual reliance on misrepresentation).
What are the valid defenses to rescission?
Unlean hands, laches NOTE: Negligence of P is NOT a good defense!
How does restitution interact with rescission?
If P who is entitled to rescission has previously rendered performance on the K, he can get compensated for it or get the property back via restitution.
What is reformation?
Changes the written agreement to conform with the parties original understanding.
What is the 3 part test for reformation? (Very good dog)
1. Valid K, 2. Grounds for Reformation, 3. Defenses
Reformation: how do you determine if the K is valid?
Here, the P wants to show that the written instrument doesn't accurately represent the reached understanding.
Reformation: What are the valid grounds for reformation?
Mutual Mistake, unilateral mistake (if the non-mistaken party KNEW, [not should have] about the mistake), and misrepresentation (both innocent and intentional)
What are the valid defenses to Reformation?
Unclean Hands, laches, when it would adversely affect rights of BFP. NON-defenses: negligence of P, statute of frauds, parol evidence.
When is a constructive trust imposed?
It is imposed on improperly acquired property to which D now has title. D serves as "trustee" and must return the property to P.
When is an equitable lien imposed?
It is imposed on improperly acquired property to which D now has title. The property is subject to an immediate court-directed sale, w/ proceeds going to the P. If proceeds less than FMV of property when it was taken, a deficiency judgment will be issued.
Under what circumstances will a constructive trust/equitable lien be imposed?
When there's an inadequate legal alternative; will usually be b/c D is insolvent, or in case of constructive trusts, property is unique.
Is tracing allowed with constructive trusts and equitable liens?
yes, yes it is.
Will a P with a constructive trust/equitable lien prevail over a BFP? an unsecured creditor?
No. yes.
When would you want to go for an equitable lien over a constructive trust? vice versa? what about when D's property cannot be traced solely to P's property?
Go for equitable lien when property value goes down subsequent to taking. Go for constructive trust when property value goes up subsequent to taking. When tracing doesn't work, go for equitable lien.
When issuing an injunction, what should the court avoid that would make the temporary or permanent injunction invalid?
The injunction should not be overbroad, ie, injoin activity that was not part of the "irreparable injury" or harm seeking to be prevented.