Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
36 Cards in this Set
- Front
- Back
- 3rd side (hint)
|
Six Equitable Remedies
|
1. injunctive relief
2. specific perf 3. rescission 4. reformation 5. constructive trusts 6. equitable liens |
|
|
|
Injuction can apply to these 8 torts:
|
1. Nuisance (only private, gen; public if there are special dmgs, like abortion clinic)
2. Trespass to land 3. Waste 4. Conversion or trespass to chattels 5. Defamation 6. Invasion of right to privacy 7. Abuse of judicial process 8. Unfair competition |
|
|
|
Temporary injunction
2 part test |
1) irreparable injury (discuss timeframe, show P needs relief NOW)
2) liklihood of success (P must est this probability) TIP: Bond req - if temp inj is sought, mention that ct should impose a bond req on P to reimburse D if the injunction injures him/her and P fails |
|
|
|
Model Temporary (preliminary, interlocutory) injunction answer
|
At issue is whether P can obtain temporary inj relief. To do so, must meet a 2 part test: 1) irreparable injury (discuss facts in timeframe context), and 2) likelihood of success (discuss probability, impose bond req)
|
|
|
|
TRO
2 part test |
Identical to temp inj:
1. irreparable injury 2. likelihood of success - issued pending a hearing to det if temp inj should issue - 10 day limit - can be issued ex parte, but good faith effort must be made to give notice to D |
|
|
|
Permanent Injunction - 5 part checklist
|
"I Put Five Bucks Down!"
1. Inadequate legal remedy 2. Property/protectable interest 3. Feasibility of enforcement 4. Balance of hardships 5. Defenses? |
I put five bucks down
|
|
|
Why is a legal remedy inadequate?
|
- speculate
- tort is only threatened, not yet committed - D is insolvent - irreparable injury - avoiding a multiplicity of actions (TIP: history of actions between same parties) |
|
|
|
Protectable/property interest rule
|
"Equity will trad only grant relief where a protectable prop right is involved, however, under the modern rule, a protectable interest will suffice."
|
|
|
|
negative v. mandatory injunction
|
negative - stop doing something (easy to enforce)
mandatory - do something affirmatively (harder to enforce) "On these facts, P wants D to ___, which is ___ injuctive relief. There is/is not an enforcement problem." |
|
|
|
Balance of hardships - 4 big things to remember
|
1. gross disparity bet detriment and benefit
2. no balancing if D's conduct willful 3. if you balance, consider awarding P $ dmgs 4. hardship to public also taken into account TIP: Balance of h'ships defense is almost always a primary discussion w/ nuisance or trespass to land |
|
|
|
4 defenses against permanent injunction
|
1. unclean hands - avail only if P's alleged improper conduct is relevant/related to the lawsuit
2. laches - running of time defense 3. impossibility - D can't do terms of injunction 4. free speech - defamation or a privacy tort (false light, pvt fact), your best answer is inj DENIED b/c of free speech |
|
|
|
3 laches rules/guidelines
|
1. clock starts when P knows of injury
2. delay cuts off rt to relief when it has been both unreas and prejudicial to the D 3. when laches applies, consider awarding P dmgs 50% of time |
|
|
|
Who is bound by the injunction?
|
parties, employees/agents acting with notice, 3rd persons acting with notice
|
|
|
|
Must an "erroneous" injunction still be obeyed?
|
YES.
|
|
|
|
special case of crimes & equity
|
equity will not enjoin crimes. TIP: check to see if conduct could be char as a tort. If so, tell IBX that it could be, then say if equity will apply
|
|
|
|
4 unfair competition torts, and one "problem"
|
1. trade libel
2. trademark infringement 3. misappropriation of trade secrets 4. interference with business relationships PROB: rt to imitate - everyone has rt to imitate another's unpatented product |
|
|
|
trade secret misappropriate test
|
a) Det that P has a trade secret - something not gen avail to the public which gives possessor a compet advtg. TIP: if in doubt - go trade secret!
b) Determine if taken by improper conduct. TIP: if the taker stood in a fid rel with owner (employee), easier to find improper conduct **Bar note: Det who the Ds are (usu 2), then who may be enjoined (taker and any 3rd party seeking to use it) |
|
|
|
trademark/trade name infringement
|
1) det if protectable mark
2) det if infringment (consumer confusion, 8 polaroid factors, discuss similarities) |
|
|
|
right to imitate problem, and exceptions
|
one has a rt to fully imitate another's unpatented product. Exceptions:
a) any deception of the product (need not be intentional) TIP: discuss rtt to imitate, then TM inf b) Improper taking - imitation by improper means. TIP: prob also have to discuss trade secret misapprop |
|
|
|
Specific Performance (6 pt checklist)
|
"Chacha is my favorite dance!"
1. Contract valid 2. Cond'ns of P satisfied 3. Inadequate legal remedy 4. Mutuality of remedy 5. Feas of enforcemt 6. Defenses |
CCIMFD
|
|
|
Rules re: deficiencies and enforcement
|
1. Seller - can enforce K if defect is minor, not major, unless seller can cure the defect before or at closing
2. Buyer - can enforce K even with major defect, but not very major NOTE!!!! - if award spec perf even though defect remains, must note that the ct will lower the purch price to take into acct this defect |
|
|
|
liquidated dmgs clause
|
gives party an immediate right to keep a certain amt of $ if breach. liq dmgs clause does not make money dmgs adequate. Spec perf is still avail.
Exception: where clause says this is the "sole" remedy. |
|
|
|
Mutuality of remedy - 3 step analysis
|
1. det that this is a mutuality fact pattern
2. set out the rule 3. grant spec perf "P should not be able to enforce this K against D b/c D could not enforce it against him. Still, ct will reject the mutuality arg if it feels that the P can and will perform. (prov for simult perf) |
|
|
|
Defenses to specific performance (6 of them, 3 equity, 3 K)
|
1. unclean hands
2. laches 3. unconscionability 4. mistake 5. misrepresentation 6. statute of frauds |
|
|
|
K not to compete - enforceability? 2 pt test
|
validity test: a) Covenant must protect a legit interest of the person in whose favor it runs. Service must be UNIQUE
b) Covenant must be reasonable in scope - geo and durational |
|
|
|
rescission - reqs
|
"Good Dog!"
1. grounds for rescission 2. defenses |
|
|
|
grounds for rescission (7)
|
- mistake - materal fact = granted
- misrepresentation = granted - coercion - undue influence - lack of capacity - failure of consideration - illegality |
|
|
|
defenses to rescission
|
- unclean hands
- laches - NOTE - negligence WILL NOT WORK |
|
|
|
availability of restitution rule
|
if P who is entitled to rescission has previously rendered perf on the K, he/she can get compensated for it or get the property back via restitution
|
|
|
|
reformation - reqs
|
"Very Good Dog!"
1. valid K 2. grounds for reformation 3. defenses |
|
|
|
grounds for reformation (2)
|
1. mistake - mutual = granted, unilateral = denied (unless nonmistaken party knows of mistake)
2. misrepresentation = granted |
|
|
|
defenses to reformation
|
1. unclean hands
2. laches 3. NOTE - negligence of P, Statute of Frauds, Parol Evid Rule WILL NOT WORK |
|
|
|
Constructive trust
|
imposed on improperly acquired property to which D now has title. D serves as "trustee" and must return the property to the P.
|
|
|
|
Equitable lien
|
imposed on improperly acquired property to which D has title. Property will be subj to an immediate ct-directed sale. $ rec'd go to the P. If the proceeds of the sale are less than the FMV of the property when it was taken, a deficiency judgment will issue for the difference and can be used against D's other assets.
|
|
|
|
Rules/guidelines for cons trusts & equit liens
|
i. must have inadeq legal remedy. Basic alternative = $ dmgs. For constructive trust, if the property is unique
ii. Tracing is allowed - P can trace the $ to a bank and go after the $ iii. BFPs prevail over P iv. P is going to prevail over unsecured creditors (but still behind BFP) |
|
|
|
How decide between trust or lien?
|
i. f property value subs to taking goes UP - go CONSTRUCTIVE TRUST
ii. If property value goes DOWN - go with EQUITABLE LIEN iii. If D's property canNOT be traced solely to P's property, only an equitable lien is avail. |
|
