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148 Cards in this Set
- Front
- Back
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Role of Remedies
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1) Remedies give meaning to obligations imposed by the substantive law. Remedies are deemed substantive, not procedural
2) Remedies spell out the consequences of harmful conduct 3) Remedies are what a Court can do for a successful plaintiff 4) Remedies are for future consequences. |
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Compensatory Remedies
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1) Plaintiff's Rightful Position
2) 1) Designed to compensate P for harm suffered. a. Most important form is compensatory damages, a sum of money designed to make P as well off as he would have been if he never had been wronged. |
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Preventive-Coercive Remedies
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1) Designed to prevent harm before it happens.
a. Usually an order to do or refrain from doing something. b. Specific performance decree is a specialized form of injunction ordering Ds to perform their K. A D violating a direct order from a court is guilty of contempt. The direct order and the potential for punishing disobedience distinguish coercive remedies from declaratory remedies. |
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Declaratory Remedies
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1) Authoritatively resolve disputes about the parties' rights but they do not end in direct order to D.
a. Declaratory remedies prevent harm to litigants by resolving uncertainty about their rights before either side has been harmed by erroneously relying on its own view of the matter |
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Restitutionary Remedies
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1) Designed to restore P with all of D’s gains which were obtained at P's expense. In some cases, restitution and compensation are identical. Usually measure P's recovery by D's gain.
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Punitive Remedies
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1) Designed to punish wrongdoers.
a. Many statutes authorize minimum recoveries in excess of actual damages, recovery of double or triple P's actual damages. |
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Legal and Equitable Remedies
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Legal- Compensatory, Punitive, Mandamus, Habeas Corpus, Prohibitions
Equitable- Injunctions and SP |
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Compensatory Damages
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1. PRP
A. Goal is to put P in the position he would have been but for the wrong B. Corrective Justice- Law wants to avoid suffering. P not to suffer - Want to discourage D's behavior. Do not want to reward him. - Efficiency. Need to encourage efficient activity and maximize profits. |
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U.S. v. Hatahley
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F- Govt seized navajo horses.
H- Determined that award should be for FMV of horses. Cultural issues do not matter. Arg against. Sentimental value. |
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Rightful Position
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Compensatory damages should restore PRP.
1) Focus on the wrong 2) Compensatory damages substitute money for what P lost |
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Rationales for Rightful Position
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1. Corrective Justice.
P should not be made to suffer b/c of D's wrongdoing. 2. Economic incentives Focuses on giving D right incentives to obtain an efficient number of violations. Damages should equal harm inflicted. |
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One Satisfaction Rule
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P May be entitled to judgment on multiple legal theories, but he may only receive one recovery
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Value as the measure of the rightful position
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Market value of prop where determinable is to be used as the measure of PRP
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Fair Market Value
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P is entitled to be made whole, but D is entitled to have P make whole in least expensive way.
Options: FMV, cost of repair, or replacement cost. Measure market value at time of loss Strong preference for objective value. Ignore subjective value |
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Net Present Value
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Damage awards for current damages should not be reduced to net present value
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Market Value Exceptions 1
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Unique Value to Owner
King Fisher Marine- H- Court upheld award of replacement cost because it had a special use |
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Market Value Exceptions 2
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Compensatory damages are based on repair or replacement for special purpose property for component parts. --
Component parts- If lost property can be characterized as an essential part of something bigger than cant be abandoned, then P can get replacement cost instead of just FMV |
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Market Value Exceptions 3
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Repair or replacement cost for special purpose property
Special purpose property- where no ascertainable market value such as for special use property. Reasonableness Test. |
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Trinity Church v. John Hancock
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F- Tower built beside Trinity. Caused cracks.
H- Church qualifies as special purpose property. Use a reasonably necessary test. Church can do whatever they want with money. |
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In Re Sept 11th
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F- WTC was destroyed. Sued Airlines. FMV was 2.8b. Rebuilding cost 16.2b
H- Rule Lesser of 2. P whose property has been injured may 1) recover the lesser of the diminution of property's market value or 2) Replacement Cost |
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Market Value Exception 4
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Fluctuating Values- General rule is that you value property at the time of loss. For crops, it is at time of harvest
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Decatur County v. Young
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H- Damages for partial destruction of growing crop is difference between crop's value immediately before and after the injury.
R- Value at harvest time. Cant recover for speculative profits. |
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Choosing the compensatory damage.
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Expectation- Benefit of the bargain. Puts P into position they would have been had D fully performed
Reliance- Out of pocket losses. Places P in position they would have been in before the bargaining Restitution. P gets everything D made because of breach. Only time we give restitution is if D's gains were unjust |
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Neri v. Retail Marine Corp
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F- Neri repudiated K from boat seller. Boat seller lost profit.
H- Lost volume merchants get 2 measures of profit form D if they are an inventory seller. 3 different damage approaches. |
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Preferred Compensatory damage...
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Expectation damages.
Exp. damages discourage breaches. D must be put in his position. |
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Rules for Damages
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General rule for contracts: expectancy damages
General rule for torts: reliance damages |
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Consequential damages
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Everything that happened to P as a consequence of his initial loss
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Buck v. Morrow
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F- Dispute over pasture land. P claimed all losses after land dispossession.
H- Consequential damages were allowed because everything that happened after the loss was provable. R- Consequential damages must be proven with certainty |
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Rules limiting consequential damages
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1. Avoidable consequences- Duty to mitigate.
2. Duty to mitigate damages. 3. Offsetting benefits rule. When P receives something on account of the wrong, they have to deduct that from compensation. 4. Collateral Source- P can be compensated 2x from the D and a 3rd party. 5. Prox cause. P cannot recover damages that are not foreseeable. |
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Consequential damages exception 1
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Failure to pay money.
R- where breach/contract consists of failure to pay money, remedy is limited to the principal owed plus interest |
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Meinrath v. Singer
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F- Singer had a K with P. Singer failed to honor P's claims and caused P economic harm.
H- Singer is responsible for payments on the K. R- consequentials will not be awarded because he did not pay the K on time. |
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Tx v. Pennzoil
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F- Tortious interference with Pennzoil's K.
R- Consequentials are recoverable only when D knew or should have known about them. The damages were foreseeable.! |
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Limits on PRP
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Avoidable Consequences
Offsetting Benefits Collateral Sources |
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Avoidable Consequences
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Test of UCC 2-712 is whether at time and place of breach buyer acted with 1) good faith and 2) in a reasonable manner.
R- D is not liable for the avoidable consequences of his wrongdoing, but D cant scrutinize P's actions at trial as long as they were reasonable. |
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S.J. Groves and Sons v. Warner
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F- Groves was subcontractor on bridge. Warner was supplier who failed regularly.
H- Groves decision to hire another supplier was reasonable. Test is whether buyer acted in good faith and in a reasonable manner. |
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Employment Cases
Ford Motor Co. v. EEOC Small v. Combustion Engineering |
H- Apply an objective/subj test. Ct. can consider what a reasonable person would do, plus what was reasonable for the individual in question
H- Ct. found the choice was reasonable for P. |
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Exceptions to the avoidable consequences rule
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1. Physically unable to mitigate due to mental or emotional disorder
2. Financial inability to mitigate |
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Valencia v. Shell Oil
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F- P was too broke to pay repairs. Led to a lien
H- Court said she was not required to surrender her claim against D |
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Offsetting Benefits Rule
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Any benefit P gets as a result of the injury is offset against damages
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Collateral Source Rule
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An exception to offsetting benefits.
D does not get to offset P's benefits received from collateral sources. Collateral sources are insurance benefits and free medical care. P argues that this incentivizes insurance and offsets atty fees D argues that it is double recovery |
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Synagogue Case
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F- D burned down synagogue. P raised 20 million. D requested they be deducted
H- Voluntary charitable donations by 3rd party shall not be a source of payment. They are offsetting benefits and are deducted |
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Args against Coll. Source
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1 Satisfaction Rule
Seems wrong to give 2 payments for 1 item of loss Insurance companies claim tort damages are bankrupting our loss liability system |
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Scope of liability defenses and limitations
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Prox cause - Ordinary consequences that are direct/prox result of injury are recoverable in tort or K.
Tort: If D has subjective notice of foreseeable consequences, you can recover. (hadley v. baxendale) Contract- you must give D notice at time of contract of eggshell skull. Not liable for consequential damages that are not foreseeable. |
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Pruitt v. Allied Chem Corp
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F- D polluted river. P claimesd loss of economic benefits
H- Liability ends at water's edge. Comm. and sport fishermen can recover. Arg against: Economically inefficient. Arg for: Outliers are hurt too dearly. Learned Hand- Principle purpose of tort law is to maximize social utility. At some point, consequences are too remote for D to foresee and take precautions so we shouldnt hold D liable. |
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Tort Economic Harm Rule
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No recovery for purely economic harm. No recovery without physical impact. Cuts off foreseeable losses
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Evra Corp v Swiss Bank
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F- Evra sued Swiss for failure to transfer funds. Swiss failed to pay in a timely manner and caused Evra to lose K.
H- Evra should have protected itself through insurance. Wasnt foreseeable. Had v Bax- No consequentials unless notice given Costs borne by party able to avert consequences at the elast cost. Evra should have had insurance |
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Certainty Requirement
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P must prove the amount of damages as accurately as reasonably possible given the circumstances
Uncertainty as to damage- P must prove by a preponderance that D caused the harm Uncertainty as to amount- P cant pick a number. There needs to be certainty. |
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Bigelow v RKO
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F- D refused to rent early releases to P's theaters at any price. P was awarded 120K
H- S. Ct. says jury had enough evid to conclude measure of damages R- What is required is as much certainty as is reasonable under circumstances. Jury may not use speculation or guesswork |
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Pain and suffering damages
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General damages.
Victims receive comp damages 1) to serve corrective justice 2) Statutes are capping non-econ damages 3) Independent determination if excessive |
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Difference between Admin Agency and Jury
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Admin agencies have half as much as CL juries.
Jury cant look at collateral sources Cant receive insurance evidence. Jury instruction- use your conscience Rawls-theory of justice- dont put yourself behind the veil of ignorance |
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Further differences between admin and jury
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1) Attys can say how much they want
B) Cant ask jury what they would want to give C) Tough to value a life or injury D) 3x out of pocket costs.. Rule |
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Const and dignitary torts
Levka v. City of Chicago |
F- Strip searched. Filed for emotional injuries
H- Defer to jury unless award is grossly excessive or so large as to shock the conscience of the court. |
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What to do when there is a remarkably high verdict
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1) Look at comparable verdicts.
2) Offer remittur. Accept a lower amount of go to trial again |
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Carey v. Piphus
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F- Suspended over having a joint
H- Only nominal damages if no proof of actual injury. Need to prove damages for a constitutional right. |
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Taxes
Norfolk& Western Railway v. Liepelt |
H- Calculate damages on after tax income. Not pretax earnings.
Corrective justice- After tax revenue is more closely related to a family's actual income |
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Pre and Post Judgment Interest
City of Milwaukee v. National Gypsum Cement |
F- Barge sunk in storm at a dock. Wants pre and post judgment interest because case took so long
H- Only prejudgment interest should be awarded in maritime cases. Only awarded where damages are ascertainable. Argue that pre-judgment interest is a part of PRP |
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Discounting payments for future losses to net present value
Jones & Laughlin Steel Corps v. Pfeiffer |
F- P injured on barge. Jury awarded 275k for future earnings but did not increase for inflation.
H- Rightful position in personal injury cases. Potential future earnings discounted to net present value at the real interest rate. |
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How to calculate earnings
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1) Calculate real interest rate
Real interest rate + inflation risk + default risk. Real interest rate is 1-3% 2) Calculate future earnings- after tax earnings 3) Reduce to present value using structured settlements |
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Punitive Damages
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Punishment for D's conduct
1) To damage 2) To deter 3) To overcompensate for things that are systematically undeterred |
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Generally punitive damages
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Punitives do not make P whole. They are to deter and punish.
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3 views of Punitive Damages
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1) Law and Economics - Defendant should do internal cost-benefit analysis.
2) Powers View- Defendant should do a broader cost-benefit analysis that counts all social costs, not just compensatories 3) Laycock view- minimizing injuries consistent with product availability |
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Exxon v. Baker Oil Spill
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F- 9th Circuit awarded 500 million in compensatories. 5 billion in punitive damages
H- 1:1 ratio maritime. Excessive verdict. Souter likes ratios. It creates predictabilkity and may not defendant's action |
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Does the Const limit punitives
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8th Am excessive fines clause.
PDP-- must be adequate process. Reasonable relationship to harm, degree of reprehensability, remove D's profit, D's financial position Substantive Due Process limits 1) Reprehensability of D's conduct 2) Ratio of punitive to potential compensatory that D might have caused 3) Statutory of administrative penalties for similar conduct |
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State Farm
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H- Juries can only consider some types of reprehensible conduct. Only conduct in state, not out of state.
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BMW v. Gore
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F- BMW did notify dealers or owners of damage to car.
H- 3 const guideposts. 1) Degree of reprehensability 2) Ration of compensatories to punitives- 3) Sanctions for comparable misconduct |
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Measure of Injunctive Relief
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Equity is not about money awards. It is about judicial power.
Rule- If there is an adequate remedy at law, you cannot have a remedy in equity |
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Guidelines and limits of judge remedies
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Scope of judicial power
Preventive orders- preventing future harm or wrongdoing Reparative order- Judge tells D to fix the wrong Structural relief. Orders an org to restructure so it will no longer harm P |
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Almurbati v Bush
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F- Prisoners wanted notice if there were to be transferred
H- Preliminary injunctive relief was not warranted b/c there was an insufficient likelihood of harm |
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Harm- Measure of Injunctive Relief
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Requirements. Ripeness
1) Imminent threat of unlawful conduct 2) P will be harmed 3) Not speculative or remote |
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L.A. v. Lyons
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F- Requested injunction against police for choking.
H- The threatened harm must be imminent or immediate. Must be a substantial certainty there will be harm. |
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Scope of preventive injunction
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Tailoring principle: The scope of the injunction may not exceed the harm.
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Marshall v. Goodyear
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F- Nationwide injunction against age discrimination.
H- Nationwide injunction only okay when there is a company policy in violation. R- P must violate law all across the country for there to be such a broad injunction. |
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Mootness
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When a judge no longer has the power to issue a remedy
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U.S. v. W.T. Grant
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F- D voluntarily resigned from board of directors.
H- Voluntary cessation is usually not enough to make a case moot. |
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Test to determine whether cessation removes need for injunction
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1) Does cessation demonstrate a good faith intent to comply with the law
2) Discontinuance has objective manifestations... makes future violations difficult or impossible 3) Character of the past violations. Is there a likelihood of repetition? |
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BOP for injunctions
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P has to show injunction in ripe.
At termination, D has the burden of showing the injunction is no longer needed. |
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Prophylactic Ripeness
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Preventing lawful acts that might have lawful consequences
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Nicholson v Conn. Half-way House
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H- Dont issue injunction unless D's behavior is so risky that he should be enjoined from doing it all
R- Test of nuisance is reasonableness of the use of the property in the particular locality under the circumstances. P's fears are not enough to pass reasonableness. Sadness is enough. |
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Pepsi Co case
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F- Snapple exec quit to go to Pepsi
H- Inevitable he would expose Snapple's strategies |
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Reparative Injunction
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Order to undo or repair the harm of a past violation of law. Prevents some or all of the harmful consequences.
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Where damages and injunctions overlap
Forster v. Boss |
F- Double recovery case. P buys home with promise of both dock. D lied.
H- You cant have both. You cant have the permit or the money damages. R- Cant have both |
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Scope of Reparative Injuries: Winston & Bailey
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F- Former 3M employees developed a machine using confidential info
H- Appropriate injunctive period is that which competitors would require after public disclosure to produce a competing machine legally. Arg against: Against economic interests. PRP philosophy. Should be the same. R- An injunction shall be terminated when the trade secret has ceased to exist. But court may extend it a reasonable period of time. |
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Bailey v. Proctor
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F- Trust problems
H- Ct. of Equity has a roving commission to do good. Test- 1) Intent to Comply 2) Effectiveness of the discontinuance 3) Past Harm |
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Prophylactic Injunctions
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Could be justified if known the injunction would help a D, it is ok to overshoot the wrongdoing to make them do right.
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Mootness
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When a judge no longer has the power to issue a remedy. Concept that if there is no remaining case or controversy, court must dismiss.
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Structural Injunctions. Equitable discretion approach
Swann v. Char-Meck Bd. of Educ. |
F- Gerrymandering school districts to encourage racial diversity.
H- Structural injunctions are ok in order to restructure institutions that are systematically violating the law |
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Rightful Position approach to remedy
Missouri v. Jenkins |
F- Make black schools magnet schools. Dist. ct orders tax increase
H- A local govt with taxing authority may be ordered to levy taxes in excess of limit set by state statute. when based on Constitution. |
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Structural or Public Injunctions Standards
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1) Tailoring Standard - Scope of injunction should match the wrongdoing
2) PRP. Injunction should no more and no less than fixing the wrongdoing |
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Hutto v. Finney
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F- Isolated prisoners received 800 calories a day.
H- Court may consider violations as a whole and fashion a remedy to fix const violations as a whole. Use W.T. Grant test. Character of past violations Good Faith Discontinuance of objective manifestations |
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Limits of Structural Injunctions
Lewis v. Casey |
F-Az prisoners bring a class action for one violation
H-Scattered violations do not support a systemic remedy. Relief is limited to past or immediately imminent harm. |
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Choosing Remedies
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What remedy is best: Specific damages or compensatory damages?
If you write injunction, you need to say irreparable injury. |
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Irreparable injury rule
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Equity will not act if there is an adequate remedy at law.
Adequate remedy means a remedy as complete, practical, and efficient as the equitable remedy. |
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Pardee v Camden Lumber Co.
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F- D trespassed on P's land and cut down trees.
H- Court could grant injunction or damage payment. But.. D is insolvent and cant readily replace trees. R- Where legal remedy is inadequate, equity will intervene. Damage remedy is adequate only if D can replace it with something substantially similar. |
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Econ view of irreparable injury rule
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When transaction costs are high, usual remedy should be damages. When transaction costs are low, remedy should be injunction.
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How inadequate must the legal remedy be?
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Inadequacy does not mean irreparable injury.
(1) Equity will not act if there is an adequate remedy at law (2) "Adequate remedy" means a remedy as complete, practical, and efficient as the equitable remedy. (3) Damages are adequate except where the very thing lost is irreplaceable (4) If land is unique, damages are inadequate (5) Pers. Property is considered non-fungible (6) Const. rights. Injunctive relief is freely available. Intangible personal rights (7) Inadequately repaired with money |
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Replevin at law erodes irreparable injury rule
Brook v. Cullimore |
Replevin or damages?
Replevin: Common law action to recover property Not subject to irreparable injury rule Not as effective as the court's contempt power. |
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Irreparable injury rule fails to apply even where damages are uncertain
Cont Airlines v Intra Brokers |
F- D obtained vouchers for cont flights. Cont took away their approval
H- Cont has the right to control their business. Injunction b/c it is a unique property |
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Damages or Specific Performance: Irreplaceability
Campbell Soup v. Wentz |
F- Campbell had K for carrots. Wentz said they couldnt deliver.
H- SP warranted because carrots were unique. Court refuses to enforce K b/c it was unconscionable. Unconscionability is an equitable defense. |
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Specific Performance
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A specialized form of injury. AN order to Defendant to actually perform the K.
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Equitable Remedies Defenses
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Unconscionability
Undue Hardship- Great hardship and burden to D Laches. Unreasonable Delay in filing lawsuit |
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Damages or Specific Relief
Van Wagner v M Enterprises |
F- P leased billboard. D bought building and cancelled K. P wanted S.P.
H- Legal remedy is adequate. Equitable remedy would pose undue hardship R- D may defeat SP claim by demonstrating undue hardship will result Counter arg- creates a breach and pay scenario Gives the D a private right to eminent domain H- |
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Exception to undue hardship rule
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Good faith.
Where D has deliberately violated P's rights, they are not eligible to violate the undue hardship rule. A knowing breach makes D unable to claim undue hardship |
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Boomer v. Atlantic Cement Co.
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F- P sued cement company for nuisance
H- Denied injunction because it would cause an undue hardship. plant acted in good faith. |
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Limit on D's undue hardship defense
Whitlock v. Highlander Foods |
F- D decided to expand and built onto Whitlock's property. Project cost 1.5 million
H- Must balance hardship to D. Bad faith and deliberate actions will counteract undue hardship. --- H0 |
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Undue Hardship arguments
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1. Where encroachment is intentional and knowing, ct will not balance equities. Wrongdoer does not get his remedy.
2) Mere delay in asserting an easement will not bar its use. Undue hardship is a defense. Harm must be greatly disproportionate. If the wrong is too expensive to correct, D can pay damages. |
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Laches
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Laches is an equitable substitute for statutes of limitation.
1) If there is an unreasonable delay with the assertion of their claim and 2) The party was prejudiced by the delay |
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Undue Hardship on Court
Coop Ins. v. Argyll |
F- Safeway store wanted to close but there was a long term lease. D Sued for SP.
H- Courts are willing to issue an injunction if 1) Const rights are involved 2) Legal remedy is equally complex or totally inadequate 3) SP/Inj is often simpler than damages. LL should have asked for prelim injunction. LL must mitigate damages |
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Reasons to deny Equitable relief
Prior Restraints Willing v. Mazzocone |
F- Lady stood on courthouse steps with sign. Claimed lawyers cheated her. P tried to have her enjoined
H- Ct. Concludes D may speak her mind and defame P. May express your opinion. Insolvency is never allowed as a reason for an injunction R- Injunctions cannot restrain speech. Ever person has a right to speech. |
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Ebay v Merc
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F- Merc claimed EBay violated their patent
Test- Injunction 1) is there irreparable injury? 2) Is there a remedy at law that is adequate to compensate for the injury? 3) Balance of hardship between D and P 4) Would it affect the public interest if there was an injunction H- Undue hardship. Injunction should be denied |
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Hypo for Sandra Fluke against Rush
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1) injunction. Use 4 factor test
2) Rush should use undue hardship rule 3) Injunction against free speech issues |
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Unclean hands equitable defense
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Whether either party committed a wrong act
P is not compared to D R- If at fault, could preclude damages against D. |
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Preliminary Injunction
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- To maintain the status quo.
Test- Risk of error balanced against real harm 4 part test for TRO and prelim injunctions 1) Probability of success- P must be likely successful 2) Irreparable injury at early stage. P must show irreparable injury before P get to trial. Must have a likelihood of success. 3) Balance of hardships. P must show balance of hardship favors her 4) P must show public interest is in her favor a) A combination of success on merits and possibility of irreparable injury b) Serious questions are raised and the balance of hardships tips sharply in movant's favor. R- Balance interests of all parties and weigh damage to each mindful of moving party's burdens of showing irreparable injury and probability of success on the merits |
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Posner standards
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Prelim injunction---Only if harm to P if injunction is denied multiplied by probability that denial would be an error exceeds the harm to D if injunction is granted multiplied by probability that granting injunction would be an error
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Winter v NDRC
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F- Navy used sonar. NDRC wanted an injunction
H- 4 factor test. Didnt show a strong likelihood of success |
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Altering the status quo
Lakeshore Hills v Adcox |
F- D kept pet bear on property. P got prelim injunction.
H- The magnitude of harm if bear was to attack was too high Args against status quo: No one agrees what the status quo is. Harmful distraction from the real issues. ... Here, the injury altered the status quo |
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Function of prelim inj.
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Preserving status quo!
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Bond Requirement
Coyne Delaney v Capital Development Board |
F- Coyne sues to enjoin bid process. Court screws up and sets bond at 5K rather than 56K.
H- Liability of P is limited to the amount of the bond. R- You dont have to post bond. Rule 65C. Courts may use their equitable discretion to waive the bond. |
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FRCP 65C
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No restraining order shall issue except upon the giving of security.
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Bond factors
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1) Potential loss to D
a) Amount of the bond is based on potential harm to D caused by Prelim Inj. 2) Financial hardship on P 3) Public importance of right being enforced D must request bond! |
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Procedural Law of Preliminary Relief and TRO
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1) Bonding requirement
2) Notice requirement (Generally not for TRO) 3) Appealability (Not for TRO) 4) Defiance |
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Temporary restraining order
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For emergency situations where irreparable injury will occur before you can even get a preliminary injunction hearing. If defied, face contempt.
Irreparable injury rule does not apply. |
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Carroll v. Princess Anne
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F- City officials from Princess Anne went to get TRO against white supremacists
H- No reason to not allow white suprem to be heard. R- FRCP 65 governs TRO 1) Notice. No prelim injunction shall issue without notice 2) TRO without notice expires after 10 days 3) Courts will issue TRO ex parte (w/o notice) in the rare instances where repeated past behavior proves that notice leads to irreparable injury. |
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TRO Notes
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Court disfavors ex parte TRO's b/c its too easy to abuse the process.
Rule 65a. Designed to prevent irreparable harm occurring even before a preliminary injunction hearing can be held. a. Not to exceed 10 days. Can be extended once, for a total of 20 days. b. On 2 days notice to the party who got TRO, party ruled against may get a hearing. |
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TRO 65b
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TRO may be granted without written notice or oral notice to the adverse party or his atty only if
1) clearly appears from specific facts shown by affidavit that immediate and irreparable injury, loss or damage will result 2) Expires in 10 days. May be extended. 3) After 2 days may get a hearing |
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TRO options for aggrieved party
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1) Let TRO expire. 10 days per FRCP 65. Unappealable
2) Motion the Court to dissolve TRO. 3) Treat it like it is a prelim inj and appeal to higher court 3) Violate the TRO (Granny) |
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Irreparable injury
Sampson v Murray |
F- Fed employee sought prelim inj from being fired
H- Needs to show 1) Irrep harm 2) Success on merits 3) Balancing test 4) Public interest H- Prelim inj is not proper in wrongful discharge suit. This is not an irreparable injury. What is the status quo? |
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Declaratory Judgment
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Gives P a remedy if they dont want to make an argument using irreplaceable harm
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Young Dilemma
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Declaratory judgment solves the Young dilemma –
1. Incurring irreparable injury by facing the choice of forfeiting alleged rights or risking penalties from future conduct. 2. Or, declaratory judgment resolves uncertainty prospectively by clarifying rights. Declaratory judgment suits must be brought by potential D, potential P must sue |
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What is a declaratory judgment
P's duties |
Declar. Judg= Preventive Injunction. Main difference is Declar Judg can be issued for P or D.
P must prove the same things as an injunction. 1. Uncertainty instead of irreparable injury. 2. Ripe controversy. Judgment must end the controversy. |
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What is a declaratory judgment
D's duties |
To D, declaratory judgment acts like an injunction
D is not really in contempt Res judicata on subsequent suits |
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Actual Case or Controversy Requirement
Nashville, Chattanooga, & St. Louis Railway v. Wallace |
F- D says declaratory judgment isnt a remedy. Looks like an advisory opinion which violates ripeness
H- Just b/c declaratory remedy gives something that isnt a traditional remedy, it is still ripe. But... still need irreparable harm. |
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Cardinal Chem v. Morton Intl
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F- Morton sues for patent infringement. Cardinal says patents were too broad.
H- Supreme Ct. says that a) it is unnecessary to isue a declar judgment ruling on an affirmative defense. B) it is necessary to issue a declaratory judgment ruling on a counterclaim b/c it is a separate case or controversy and satisfies the ripeness requirement |
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Restitution
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1) What is the basis for liability
A) Theory of unjust enrichment B) Whether Court should allow recovery at all? 2) Measure of relief? How Much? A) Common remedies 1) Emergency remedies 2) Quantum Meruit |
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Restitution
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Substantive and remedial in nature. Creates a cause of action and provides a different measure of recover.
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Restitution purpose
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Basic purpose is to achieve fairness and prevent the unjust enrichment of a party.
Purpose is disgorgement. Eliminate profit from the wrong as far as possible without imposing a penalty. |
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Blue Cross
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F- D took checks that werent theirs.
H- D Must return any benefit received in such circumstances that the possession will give offense to equity and good conscience if permitted to retain it |
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Disgorging Profits
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Quasi-K
Olwell F- Used washing machine. Didnt pay. H- Damage award for conscious wrongdoing. Disgorgement of profits |
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Somerville v. Jacobs
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F- P sued D for building on their land.
H- Equity will grant relief. P has to pay value of warehouse or D has to buy the land. |
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Unjust enrichment - Ill gotten gains
Maier Brewing v. Fleischmann Distilling |
F- D brewed cheap beer under P's label.
H- Must make infringement unprofitable in order to deter. Other options Injunction Offsetting benefits 1 Satisfaction rule issues? |
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Snepp v. U.S. Constructive Trust
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F- CIA agent publishes book without approval
H- Const trust is a natural remedy for breach of trust. |
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Hamill
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H- In order to justify an infringement, D has to 2 steps to deduct overhead.
1) Nexus between the two- Look at each overhead cost and the infringement 2) Practical way of allocating all the costs 3) We dont want D to be able to subsidize an unlawful product |
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Constructive Trust
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A device for separating legal ownership and control of property from beneficial enjoyment.
1) Const trust is a fiction used to move assets to persons fairly entitled to them 2) Can be used to trace proceeds of specific assets 3) Useful wehn some or all of D's are insolvent |
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Sheldon v. MGM
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F- D stole P's play and made a movie
H- Ct affirms award of profits allocable to the script. Only reasonable apportionment is necessary. |
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Equitable Restitutionary Remedies
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Constructive trust. (P should select if property value goes up in value subsequent to the taking)
Requirements 1) D has improperly acquired title to the property 2) D's retention of property would result in unjust enrichment 3) P has no adequate remedy at law |
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What categories of restitution
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1) Disgorgement: D's consequential gains.
2) Reversing transactions |
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When will restitution be attractive to P
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1) When there is no cause of action; restitution as underlying substantive claim
2) Where D's gain is greater than P's loss 3) When P is not interested in damages, but in reversing a transaction 4) Where d is insolvent. |
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Remedial Constructs
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1) Quasi-contract- implying promise to pay for a certain benefit
2) Accounting for profits: imposing duty on one party to account for benefit 3) Constructive trust: impose trust on some identifiable benefit |
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Consequences of D's wrongful acts
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1) D doesnt profit, so P can only sue for damages
2) P's loss equal to D's gain. Award for compensatory damages and restitution. Unjust enrichment would be the same 3) D's gain exceeds P's loss. P should recover D's profits; must decide why D should pay damages. |
