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317 Cards in this Set

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Classifying Remedies:

i. Damages. Designed to compensate the plaintiff for the harm they have suffered
compensatory remedies
classifying remedies:

i. Designed to prevent harm before it happens, so the issue of compensation never arises
ii. Coercive – injunction – orders the litigants to do something or to refrain from acting
iii. Declaratory – authoritatively resolve disputes about the parties rights, by they do not end in a direct order to D
preventative remedies
classifying remedies:

i. Designed to restore to P all that defendant gained at P’s expense
ii. Use of quasi K, constructive trust, equitable lien, accounting for profits, rescission, and subrogation
restitutionary remedies
classifyng remedies:

giving back to the plaintiff exactly what the plianitff lost.
restitution in kind
classifying remedies:

i. Designed to punish wrongdoers
ii. Criminal prosecution or punitive damages
punitive remedies
classifying remedies:

i. Designed in aid of other remedies – such as attorney’s fees
ancillary remedies
classifying remedies:

i. Orders a person before the court to do something or stop doing something. Injunctions are enforceable using contempt. Temporary Injunction – last a short time. Preliminary Injunction – last up until a full trial takes place. Permanenet Injunction – this will force the defendant to comply on a continueing basis.
coercive remedies
comensatory damages:

i. Damages are measured at the time of the loss and are meant to restor a person to the position he would have been before the bad act. AKA restoring plaitniff to his rightful position.
restoring P to his rightful position
compensatory damages:

a. Lost or completely destroyed – measured by market value of what replacement would cost. Equivalent to that which was destroyed.
damages for property damage and destruction of property
compensatory damages:

a. Lesser of the 2; market value that was lost due to damage or the cost of repair If a car is damaged and to fix is more than value then pay market value.
damaged but not destroyed
compensatory damages:

– if the part is an essential component even if the market damages are less the award is the amount of repair.
exception is for the compenent
compensatory damages:

a. Price quote from active market, Expert testimony, Testimony of the owner
b. Exceptions from market value
i. When it is to hard to determine such as special purpose property such as road and sewers, Trinity church case, Sentimental value is not to be included – except when home movies are destroyed and the like.
proving market value - what evidence
compensatory damages:

a. The date of the harm is the general rule
b. Exceptions
i. Things that fluctuate rapidly in value – crops at harvest value, Generally stable rules – and spike before trial the ct has discretion to consider it, Ex. market value of homes if covered by insurance after Katrina
when do we set market value
compensatory damages:

For a reasonable time to get the property replaced
loss of use element of damage
compensatory damages:

a. Buyer can cover if buyer covers and buyer recovers the difference between the cost of cover and the K price plus buyer recovers incidental damages less any expenses saved.
b. Buyer damages are the difference between the value of the goods accepted to the value of the goods warranted plus incidental damages and consequential damages Chatlos case
sellers breach under UCC for non delivery
compensatory damages:

a. General rule is the Diff k price and the market value plus consequential damages Lease for 10k for 5yrs – at 2yrs the value double – T terminates lease – L is at advantage and gets more than under lease and thus no damages but consequential damages are available
Non UCC breach
reliance and expectancy measures of the rightful position:

Expectancy is the same as profit here.
measure damage at the time of the breach
reliance and expectancy measures of the righful position:

supposed to put seller in as good as position as performance would have Difference between market value at time and place of tender and unpaid K price plus incidental damages less any expenses saved, but UCC tells us that if that damage is not adequate to put in rightful position damages are loss of profit plus incidental damages
buyers breaach
reliance and expectancy measures of the rightful position:

For torts we compensate for the amount he lost. For breach of K we give the profit he would have expected to make, his expectancy
tort
reliance and expectancy measures of the rightful position:

compensating plaintiff to the position he would have occupied if he had never made the K – what was spent to prep for the K.
reliance
reliance and expectancy measures of the rightful position:

compensating plaintiff to the position he would have occupied if the K had been peformed – profit.
expectancy
reliance and expectancy measures of the rightful position:

vi. Rule – expected loss must be subtracted from any reliance recovery. Neri
vii. Rule: measure of damages for fraud is that plaintiff restored to the place he would have been but for the fraud before the tort took place, not where he expected to be (different then breach of K COA). There are no expectanty dmages in tort but plaitniff may get punitive dmages. Smith
case law
consequential damages:

i. Everything that happens to P as a consequence of the initial loss - consequential damages are a loss that results from buyers requirements that the seller knew about at the time of K. Knew or had reason to know that could not reasonably be prevented in addition this also means personal injury to person or property that proximately results from breach of warranty - Consequential damages are almost never awarded in eminent domain actions
ii. No consequential damages are available for breach of promise to pay money
consequential damages
consequential damages:

1. Consequential damages are available – emotional and punitive are not available except the tort of bad faith breach of insurance K
breach of promise to loan money
consequential damages:

iv. D leased land to P for a cattle pasture for 5yrs with the provision that should D sell the land then P would be reimbursed for all loses occasioned by the sale. Rule = to recoup special damages P must specifically state them and must be proved they were proximately caused by D. Buck
consequential damaages case law
consequential damages:

Those that proximately resulted but do not always immediately result from the violation complained of - Special and consequential damages refer to the same thing – special damages are those that we can reduce to specific amount before trial such as lost wages or med expenses
special damages
consequential damages:

UCC definition on pg 61 incidental damages are expenses incurred to inspect and activities on related good and money spend to cover and delay for breach of expenses
incidental damages
consequential damages:

under statue and often mean the same as special damages
special damages:

actual damages
consequential damages:

Those that necessarily result from the violation complained of or as damage that the law implies or presumes.
General damages
consequential damages:

general damages incur right at the time the harm’s taken place (like pain and suffering). Whereas consequential damages are incurred in the future and a little less predictability.
difference between general, special and consequential damages
consequential damages:

vii. P was running other companies in Europe that needed funds and D was aware of this. D obligation was pay money to P. P wanted money owed plus consequential damages for loss of other businesses. Rule = for breach of K the only remedy for late payment is the payment plus interest at the prevailing legal rate. Meinrath
viii. D sued P for tortuous interference with D’s K with Getty. Under the K with Getty D would have received 1 billion barrels of oil. D sued for the price it would have received had the K been completed and the cost to obtain oil on the open market. Trial ct held for D and P appealed. Rule = tortuous interference with K P can receive pecuniary loss of the benefits and consequential losses, which the D caused. Texaco
consequential damages case law
Limits of Remedy:

i. It is possible to limit the consequential damages
limits of remedy
limits of remedy:

a. Requirement – no representation can be made
seller can sell without a warranty at all
limits of remedy:

i. If the essential remedies are not meet the buyer will have other remedies
buyer and seller can agree to restrict warranty:

limit the remedy to repair or replace
limits of remedy:

i. This will not be enforced if it is unconscionable 2-719
buyer and seller can agree to restrict warranty:

Disallow consequential damages in a the K
Limits of remedy:

i. Invalid if it is unreasonable at the time the K was made
ii. Valid if; Very hard to calculate in advance and the amount they agree to is reasonable at time of K
iii. If the K has diff obligations of diff importance and one liquidated damages clause for all things then it will be held to be a penalty and unenforceable
buyer and seller can agree to restrict warranty:

Liquidated damages clause: agree in adance what hte damages amount will be limited to
limits of remedy:

d. Under UCC it is per se unconscionable to exclude liability for personal injury when sell personal goods 2-719(3)
buyer and seller can agree to restrict warranty
limits of remedy:

ii. D K to purchase the MM-180 from P and part of the K provided that the seller would not be liable for consequential damages and the only remedy available is the repair or replacement of the defective part or product. D claimed the product was defective. Rule = Repair and replace is ineffective when it fails to meet its essential purpose or the seller is unable or unwilling to repair or replace in a reasonable time. Kearney
limits of remedy case law
limits of remedy:

iii. D is appealing the low court judgment that he breached his employee K with P and required to pay P liquidated damages. D’s employee K had a liquidated damages clause for material breaches that increased as his responsibility increased with the firm. Rule = liquidated damages will be upheld when party suffers substantial damages and the amount is increased proportionately with responsibility. Ashcraft
limits of remedy case law
limits of remedy:

iv. P K to buy 56 million barrels of naphtha from D over ten yrs. The K gave the non-breaching party the choice of actual or liquidated damages. Rule = When the parties agree to liquidated damages those are the sole remedy. Breaching party is not entitled to relief for any damages that have been paid by another source. Northern Illinois
limits of remedy case law
Avoidable consequences:

i. P K with D to provide ready mix concrete and to be delivered at specific times. D failed to meet the delivery times.Rule = Mitigating damages only requires a reasonable decision not the best and any uncertainty is resolved against the wrongdoer. SJ Groves and Sons
avoidable consequences case law
avoidable consequences:

1. Breaching party is saying you could have avoided incurring some of the damages in some way other than cover.
avoidable consequences
avoidable consequences:

these are only those damages that buyer could not have prevented by cover. Test to see at time and place did buyer act in reasonable manner and in good faith. Not looked at in hindsight. Does not matter if it is the cheapest – burden is on D. Cover requires buyer to buy from another – no duty to mitigate if impossible to do or could not afford to do so
avoidable consequences under the UCC
avoidable consequences:

a. P sues and establishes damages – the entire amount of the damages
b. D is entitled to credit for damages that were avoided or minimized
c. D is entitled to credit for damages P could have avoided by reasonable effort or expense
d. P is entitled to recover reasonable costs for avoiding or minimizing whether or not the consequences were actually avoided or minimized.
e. If “3” then P is entitled to costs that would have been incurred
5 general rules of avoidable consequences
avoidable consequences:

a. Not only did I not hurt you, I made you better
b. It’s the costs that a Π was able to avoid/that may have gone down as a result of the breach
c. Like the Π not having to pay employees or overhead
d. Interest runs from the date of breach and continues to after judgment
i. Interest is allowed on breach of K from the date of breach to the date of judgment and interest is allowed from the date of judgment on the amount of the judgment
offsetting benefits
avoidable consequences:

a. Δ is NOT entitled to a reduction because Π has received compensation from another sourceUsed in torts, not breach of K. If an injured party receives compensation from a source wholly independent of the tortfeasor, Δ doesn’t get credit for this CA code section 333.1 gets rid of the collateral source rule – for medical malpractice claims.
collateral source rule (exception to offsetting benefits rule)
avoidable consequences:

b. P was injured in a bus auto collision and awarded damages in the amount of 16K. D wanted to put on evidence that P’s insurance paid 80% of the medical bills. Rule = collateral source rule applies to tort claims. Collateral source occurs before hand and offsetting takes places after the harm as occurred. Heflend
collateral source rule case law
avoidable consequences:

a negligent plaintiff who suffers no physical impact to his person or peropty cannot recover for other losses, so called economic harm. No physical impact no economic recovery.
scope of liability

economic harm rule
avoidable consequences:

b. P suing for lost profits from D’s negligent pouring of effluent into the Chesapeake Bay. Rule = Party that can show direct loss due to negligence can recover but those that were too attenuated would not have a legally cognizable claim Ct did not apply the traditional rule that a plaintiff cannot recover for indirect economic harm. Pruitt
scope of liability case law
avoidable consequences:

c. P had a K with another Co to deliver scrap metal. To do so P K with a ship the Pandora. D lost the telex to make payment to the Pandora on time and the Pandora cancelled the K. P is suing for lost profits and consequential damages. Rule = from Hadley that the cost of a negative event in the course of dealings should be borne by the party who was able to avert the negative event at the least cost and failed to do so. Consequential damages will not be awarded unless D is placed on notice of the importance of the K. This is a K concept in a negligence case for damages. Evra Corp.
scope of liability case law
avoidable consequences:

d. D K for phone service from P for &1.75 a month. P’s system failed to allow D to get 2 attempted phone calls to the fire dept. to alert them D’s home was on fire. D is suing for damages caused by the fire. Trial awarded $1500 to D. Rule = under Hadley it must be reasonable to believe that the party at the time of the K tacitly consented to be bound to more than ordinary damages. Looking at the 1.75 a month it cant be said P assumed it would be responsible for the fire damage. Was not foreseeable. Southwestern.
scope of liability case law
avoidable consequenes:

a. P the owner of a movie theater claimed D violated the Sherman anti trust act by conspiring to keep P from obtaining first run movies. Rule = Wrongdoer bears the burden of uncertainty, which his own wrong created. Even though the evidence of lost profits was speculative the court upheld it to punish D and return P to his rightful position. How did P present its damages? Earnings at another theater and earnings at its own theater and the other way was before the scheme started and after violation. Ct standard is that jury may make a just and reasonable estimate of damage based on relevant data. Bigelow
ther certaintity requirement case law
avoidable consequencecs:
a. When the market for bowling sharply declined P started taking over defaulting clients and running them. D claimed by violated anti-trust laws and asserts lost profits. D’s entire proof of damages stems from the profits they lost from P keeping the businesses open. Trial ct held for D awarding them 2.3 million and attorney’s fees. App ct reversed and remanded. Rule = merely keeping a business open does not violate anti-trust laws as they would have been hurt by any other competitor – law is to foster competition not stop it. Brunswick.
substitute policy goals case law
avoidable consequences:

b. Sure Tan case – employ illegal aliens and they make union. ST reports them to INS and they deported. Ct held this unfair labor practice. Ct said reinstatement is not correct as it foster illegal immigration so based on compliance with laws. Sure Tan points out that if there is a policy behind a law it will not be enforced if there is a stronger policy against it.
substitue policy goals case law
damaes where value cannot be measured in dollars:

For intentional torts/negligence there does not have to physical injury. Without a physical injury there’s no emotion. Exception: with intentional torts, you can collect emotional damages w/o physical injury.
personal injury and death:

need a physical injury
damages where value cannot be measured in dollars:

2. P was injured in D’s store when an overloaded pallet toppled on to her. D appeals that P was able to assert a per diem figure to compute damages. Rule = counsel may suggest terms be used for computing the damages such as per diem as long as the Judge instructed the jury it was not evidence. Special damages can be reduced to absolute dollars such as lost wages. General are the intangibles such as pain and suffering. How does a jury decide what the general damages are? P presented the per diem argument to prove general damages. Claiming certain amount of damages per day and not making a lump sum. Lump sum is an arbitrary figure where per diem sets specific amounts for certain things. CA allows per diem. Debus
personal injury and death case law
damaages where value cannot be measured in dollars:

1. Usually compensation for lost companionship and funeral expenses.
wrongful death
damages where value cannot be measured in dollars:

a. Have an expert testify/economist and their current employer. Expert will forecast the future income the individual would have made. Ends up being the battle of the experts
wrongful death: How to prove lost financial support loss
damaages whree value cannot be measured in dollars:

a. Loss to society (comfort, love, company) and child to parent that is killed and measure the parents contribution to the child’s education
wrongful death:

what other things do they allow to recover
damages where value cannot be measured in dollars:

a. Market value. Value of the positive from the deceased v. the grief the surviving person feels. Some juris allow this society but only for the positive things that would have occurred and nothing for the loss of the person
wrongful death:

how to measure household chores
damages whre value cannot be measured in dollars:

the value the decedent lost for not being alive. There is a specific list and CA does not allow for hedonic damages. If a person dies as a result of personal injury there is wrongful death but there is no general damages/pain and suffering for the dead person. Just to compensate the survivor. Survivor cannot get punitive damages except for one occasion – murder. If convicted of murder then punitive damages are allowable.
wrongful death:

Hedonic Damages
damages where value cannot be measured in dollars:

Ex. loss of parents that when this person died a natural death the surviving children would have received an inheritance. This is fairly speculative. Sometimes wrongful death verdict will be zero if the relationship between the survivor is bad
wrongful death:

loss of inheritance
damages where value cannot be measured in dollars:

courts will use standard mortality tables. Look at BAJI
wrongful death:

to establish life expectancy
damages where value cannot be measured in dollars:

8. P rep’s the estate of Wilson whom claim D negligently caused W’s injuries during her surgery. Jury found D responsible and awarded P 2.7Million in damages. Trial ct reduced the verdict to 750K under VA statute. Rule = remittitur or statutory limitation for awards of certain claims are constitutional. Statute limits the entire recovery for med mal cases. Legislature set the statute because of crisis in health care for insurance expenses. Etheridge
wrongful death case law
damages where value cannot be measured in dollars:

9. P is appealing claiming the cap on the award for non-economic damages/pain and suffering is unconst. This is only a cap on general damages. Rule = if the legislature has not provided for an alternative method nor is there any showing of public necessity limit will be unconstitutional. CA section 3333.2 has a cap for med mal cases. Smith
wrongful death case law
damages where value cannot be measured in dollars:

1. Levka v. City of ChicagoP was subjected to a strip search after being arrested for a misdemeanor. Jury awarded P $50K. D appealed the award amount. Rule = the award would be reduced only if it is monstrously excessive or shocks the conscious of the court. It requires a detailed examination of the evidence – here the court compared this award to awards in other similar cases.P was not awarded any special damages, just the general damages from what happened. Judge cannot do addittur (add money to an award he believes is low).
dignitary and constitutional harm case law
damages where value cannot be measured in dollars:

2. Rule: With a dignatory harm use the tort concepts to calculate damages. Emotionals are the same as they would in a PI case.
3. Rule; with a constitutioanla violations, if there’s no harm the court will award nominal damages (usually 1 dollar). If ther eis an injury it will use tort concepts to measure the injury/damages.
dignitary and constitutional harms case law
damages where value cannot be measured in dollars:

1. Carey v. Piphus: P suspected D of smoking marijuana at school. P suspended D for 20 days without any proof or giving D a chance to refute the allegations. Are damages available for violation of due process as const right? Rule = only nominal damages should be allowed to flow from a violation of due process and to receive damages D would need to offer evidence of actual damages, which he did not do here.
emotional distress case law
damages where value cannot be measured in dollars:
; with defmation cases presumed damaes and punitive damages are unconstitutional except with respect to defendants who publish defamatory material with knowledge of its falsity or reckless disregard for the truth (then puni’s can be awarded). The doctrine of presumed damages in a defamation per se action, allows for recovery of purportedly compensatory without evidence of actual loss.
emotional distress:

defamation
damages where value cannot be measured in dollars:

1. Norfolk & Western Railway v. Liepelt: D is suing P for a wrongful death suit. P claimed federal income taxes should be accounted for in determining the award to D. Trial ct did not allow the admission of income tax and the jury awarded D $775K. App ct affirmed. Rule = determining wrongful death suit awards net income after taxes should be the amount awarded.
taxes time and the value of money case law
damages where value cannot be measured in dollars:

this means physical injury or physical sickness. Punitive damages and pain and suffering are taxable.
taxes, time and the value of money:

personal injury award is tax free
damages whre value cannot be measured in dollars:

3. City of Milwaukee v. Cement Division, National GypsumD owns a ship that was damaged during a storm when it broke free from P’s dock and crashed into the wharf and sank. The trial ct refused to award prejudgment interest going against the general rule. App ct reversed.Rule = general rule is to award prejudgment interest in maritime collision cases. Prejudgment interest is based on the award. A peculiar exception that would deny prejudgment interest is delays by D.
taxes, time and the value of money case law
damages whree value cannot be measued in dollars:

4. Common law rule was that only damages that are special damages can have prejudgment interest. So wrongful death or personal injury could not.
taxes, time and the value of money
damages where value cannot be measured in dollars:

cases if a formal offer is sent to settle and it is rejected or no response then P gets interest at 10% from the date of the offer. This is simple interest.
taxes, tiem and the value of money:

CA civil code 998 in personal injury
damages whre the value cannot be measured in dollars:

6. Jones & Laughlin Steel Corp. v. Pfeifer: D was injured while working on D’s coal barge. P was found to be negligent as well. D claimed damages and the dist ct awarded D $275K by taking income from the years remaining that D would work, adding $50K for pain and suffering then subtracting the amount D could have made by working at minimum wage for that time and the amount D had received in compensation. App ct affirmed. Rule = the court must consider a discount for the estimated stream of future earnings based on the facts before it and not on some formula. It also must take into account inflation on both the lost stream of earnings and selection of a discount rate.
taxes, time and the value of money case law
damages where the injury cannot be measured by dollars:

7. Real interest rate approaches – the difference between the full amounts they expect to earn in interest minus the inflation rate. Reduce the present value by using a figure between 1 to 3 percent
8. Rule: If your only recover is emotional, that’s taxable. If it’s all one lump sum then it’s not taxable.
9. Rule: punitive damages are taxable.
10. Rule: Breach of K damages are taxable.
taxes, time and the value of money
preventing harm:

Need a threat of irreparable harm (no adequate remedy at law and no money will make the person whole) or a ripe controversy in order to get an injunction. Harm must be imminent/immediate = ripe.
preventative injunctions
prevnting harm:

ii. Humble Oil & Refining v. Harang: P wants an injunction to keep D from destroying the evidentiary documents. P offered an affidavit from P’s own lawyer that he believes D will destroy documents. Rule = must establish that an irreparable injury will occur or real danger the act sought enjoined will occur.
preventative injunctions case law
preventing harm:

termporary restraining order:
preliminary injunction:
permanent injunction
3 steps to injunctions
preventing harm:

TRO temp restraining order sought by the moving party, which lasts for 10 days or so and then it dissolves.
a. Restraining order – Affidavit – it is a sworn statement by the affiant
b. TRO can be granted without any notice to the other side only if there are some clear and specific facts of an immediate and irreparable injury. Need a certification that attempted to find the other party. Fed ct only last 10 days. Must post bond or give up security to get injunction.
temporary restraining order
preventing harm:

this lasts until the date of trial
a. FR 65 – cannot get prelim injunction without notice to the other party
preliminary injunction
preventing harm:

granted after trial and no further proceeding about it.
permanent injunction
preventing harm:

court will balance the hardships of each party of the injunction is granted.
before an injunction is granted
preventing harm:

v. Marshall: Reed was fired in age discrimination and sought an injunction to stop further violations. D appeals the scope of the injunction. Rule = the scope of the injunction should only be large enough to encompass the violation. For nationwide injunction there would have to be multiple violations and/or a practice by the company as a whole.
preventative injunction case law
preventing harm:

vi. US v. WT GrantP sought to enforce section 8 of the Clayton act against D. P sought to enjoin D against future violations. D then resigned from the directorship of the 3 boards he resided on. D filed motions to have the case dismissed, as it is now moot. Trial ct granted D’s motion to dismiss as summary judgment.Rule = when D voluntarily complies it could be dismissed if there is no reasonable expectation that the wrong will be repeated.
preventative injunction case law
Prevenating harm:

1. the bona fides of the expressed intent to comply – the truthfulness of the matter
2. the effectiveness of the discontinuance – how likely to do it again
3. the character of past violations – how bad has it been
preventative injunctions: court considers 3 factors
preventing harm:

viii. Nicholson v. Connecticut Half-way House: D sought to build a half way house for parolees and P a group of homeowners want to enjoin it. Rule = in order for the court to grant an injunction for nuisance D’s use of the property must be unreasonable. D’s intended use was lawful and the 2 reasons P asserted that of depreciated property value and fear of increased criminal activity are not sufficient to grant an.
preventative injunctions case law
preventing harm:

: Ct requires a reasonable degree that it is certain – some require actual nuisance or strong possibility – if operated nuisance before easy to get injunction. Look at the level of the continuing danger of letting continue
preventative injuctions;

amoutn of certainty required to grant injunctions
preventing harm:

x. Prohibition – order by a ct to another ct or inferior ct or admin agency to prevent it from acceding its authority.
xi. Mandamus – order to public or corporate official that directs official to perform a ministerial duty
xii. Habeas corpus – deliver the body – order to person holding another in custody to produce the person
prevenative injunctions:

terms
preventing harm:

used when defendant has already violated the law and plaintiff has already been hurt. Ripeness is less of an issue in reparative injunctions.
reparative injunctions
preventing harm:

ii. Bell: P and D ran for the Justice of the Peace office in Georgia. Black P lost, white D won. Blacks were not allowed to vote when they attempted to by intimidation. Rule = Ct set aside election granting a reparative injunction that is done to repair a harm that has already been done and will impose something else in its place. Actions that the wrongly elected person did in office are legit while he was in office and will not be undone
reparative injunctions case law
preventing harm:

iii. Foster: D fraudulently induced P into purchasing lakefront property from D. P sought compensatory damages and an injunction. At the trial ct P was granted the permit that D defrauded them on and was awarded compensatory damages. D claims this was double recovery.Rule = Award of damages and injunction is double recovery and not available in a single case. P must choose to take the compensatory damages or the boat dock permit.
reparative injunctions case law
preventing harm:

iv. Prophylactic injunctions are same as preventative - Reparative injunctions are to repair harm that has already been done - Structural injunctions – the restructure a system
reparative injunctions
preventing harm:
v. Winston Research: D developed a new tape recorder. P hired D’s employees and developed one of their own and D sued claiming violation of trade secrets and requesting an injunction from sales of the recorder. Trial ct awarded D the injunction for a 2 yr period but denied any damages. Both sides appealed. Winston Rule = Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.
reparative injunctions case law
preventing harm:

vi. Bailey v. Proctor: Trust had self-dealing and fraud being committed by the control group. P came in after a receiver had been appointed and infused a large amount of capital allowing the trust to become solvent once again. The trial ct ordered the trust liquidated. Rule = ct has the power to liquidate a trust to cure the harm. Receiver – takes over the assets and debts of a business and runs it on behalf of the investors and has all the legal authority as the owner under the auspices of the court.
reparative injunctions case law
preventing harm:

Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.
reparative injunctions:

winston rule
preventing harm:

to restructure a system.
structural injunctions
preventing harm:

ii. Hutto v. Finney: P is contesting the trial courts decision that the maximum amount of time a prisoner can stay in isolation is 30 days. This came to trial on the unconst treatment prisoners were receiving at Ark prisons. The trial ct allowed the prison system to work it out on their own many times and finally had to place limits and guidelines on how the prisons were to be corrected. Rule = When there is no or lack of compliance the ct will step in and gave them strict guidelines to follow and the ct has the power to do so
structural injunctions case law
preventing harm:

iii. Lewis v. Casey: This is a class action by prisoners in the AZ prison system claiming a lack of law libraries interfered with their access to courts. The trial ct granted a system wide injunction requiring all prisons to have adequate legal assistance to prisoners.Rule = injunctions scope should be limited to resolve the problems at hand, where there is only a small injury there should only be a small injunction
structural injunctions caw law
preventing harm:

iv. US v. VA: VMI offers a military education for men only and some women were denied entry based on gender alone. Suit followed and D sought to remedy the situation by providing VWIL that was to be an all women military educational school. This was significantly inferior and based on cooperation. App ct affirmed the remedy.Rule = the remedy must closely fit the const violation and place the person unconst denied in an opportunity they would have been without the discrimination.
structural injunctions case law
preventing harm:

v. Ct can order the legislature to raise taxes with qualifications, cant order taxes at a higher rate but can order the govt. to levy taxes sufficient to pay for the plan
structural injunctions
preventing harm:

1. Change of Factual Conditions: that make compliance with the decree substantially more onereous.
2. Decree proves to be unworkable due to unforeseen obstancles or
3. When enforcement of the decree would be detrimental to the public interest.
modifying injunctions:

modification of a consent decree may be warranted when
preventing harm:

Modification to a consent decree only if the party’s established that a significant change in facts or law warrants revision and that the proposed modification is suitably tailored to the changed circumstances. Where a party relies upon facts that actually anticipated when the decree went into effect the modifications should not be granted.
modifying injunctions:

Modificatoin rule
preventing harm:

Innocent 3rd party can be subject to minor or ancillary orders. Innocent parties can be affected substantially but not to the point of being restructured by orders to defendants who violated the law
modifying injunctions

the rights of third parties
preventing harm:

2. Hills v. Gautreaux: It was determined that HUD and CHA had been involved in racial segregation in public housing. The App ct ordered a metropolitan plan. HUD asserted that the metro plan would violate the law by the federal ct imposing the operation of local govt. 2 issues are that the remedial order would violate the const and regulating HUD conduct in the suburbs would be consolidating independent govt. units. Rule = when the entity operates over a large area necessary to take remedial measures which are not limited to city boundaries. Also, the order would merely affect local govt. as a discretionary decision and allow respondents to create alternatives to the racial segregation.
modifying injunctions caes law
preventing harm:

3. Jang v. Brown –Police refused to enforce injunction from civil suit – trial ct grant writ of mandamus to get police to enforce the injunction – police claim to be innocent 3rd party – app ct said that trial ct had the authority to enforce the injunction and police could be compelled to do so.
modifying injunctions:
the rights of third parties case law
preventing harm:

4. General Building Contractors v. Pennsylvania: A local construction union hall responsible for hiring out skilled workers used racial discriminatory practices in its hiring and training programs. No evidence was found by the trial ct that P intended to discriminate, but yes by the union hall. The ct enjoined the union and those that hired employees from the union to correct the issue. P represents one of the employers that hired employees from the union. P asserts the remedial measure should not be directed at them, as there was no evidence of liability on their behalf. Trial ct upheld the remedy, App ct affirmed. Rule = courts powers could only be exercised on the basis of the violation of the law and could extend no further that required by the nature and the extent of that violation. They can order ancillary or minor relief – such as quarterly reports.
modifying injunctions:

the rights of third parties case law
choosing remedies:

Whether damages are appropriate or specific performance (substitutionary or specific relief).
choosing remedies
choosing remedies:

Equitiy will act for specific performance to sell land because damages are considered inadequate.
irreplaceable losses
choosing remedies:

the remedy at law to recover personal property is replevin. It’s a legal remedy and you don’t have to show that damages will do the same thing. It doesn’t require a showing of irreparable harm.
irreplaceable lossess
choosing remedies:

3. Pardee P had an injunction to stop D from trespassing and cutting and removing P’s timber. Rule = timber is a part of real property and a forest is irreplaceable even if the timber may be. Thus the injunction was reinstated and the cause remanded. Will not give injunction to stop trespass, will to stop trespass and cutting of timber as it violates right to keep property as you desire
irreplaceable losses case law
choosing remedies:

4. Brook v. James Cullimore & Co.The trial ct ordered P to return D’s personal property as D requested and P sought to force D to take a money damage instead claiming the value was sufficient. Replevin requires the person to turn over the personal property. Rule = if the property sought by replevin is possible to return then it must be. Replevin is legal remedy.
irreplaceable losses case law
choosing remedies:

a. Replevin – requires a person to turn over personal property to another
b. Injunction: Enforcement differs as injunction allows for contempt of court – there is also a thing such as criminal contempt – remedy for replevin the sheriff goes out and seizes the property and turns it over to P but modernly P can only get damages if the property has been sold
irreplaceable losses:

difference between replevin and injunction
choosing remedies:

6. Continental Airlines v. Intra Brokers, Inc.: P gave D several coupons for tickets. D began selling them even though P had a policy denying the sales of these coupons. P told D the policy would not be enforced. P later changed the policy and seeks an injunction to stop D from selling any more. Trial ct awarded P the injunction. Rule = when damages would be to hard to calculate thus damages would not be adequate and threat of injury that defies calculation then damages will not be an adequate remedy at law.
irreplaceable losses case law
choosing remedies:

7. Campbell Soup v. Wentz D was to supply P with a specific carrot. D repudiated the K as the price of the carrot more than tripled. P sought to enforce specific performance. Rule = Uniqueness can be established because the items are scarce and difficult to obtain by cover, as the goods were scarce on the open market.
irreplaceable losses case law
choosing remedies:

a. may be decreed where the goods are unique or in other proper circ.
b. may include such terms and condition as to payment of the price, damages or other relief as the ct may deem just.
c. Buyer has right of replevin for goods identified to the K if after reasonable effort he is unable to effect cover for such goods or the circ. reasonably indicates that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them had been made or tendered. In the case of goods bought for personal family or household purposes the buyer right of repievin vests on acquisition of a special property even if the seller had not then repudiated or failed to deliver
irreplaceable losses:

2-716 buyer right to specific performance (equitable remedy)
choosing remedies:

a. Equitable remedy which means no money damages
b. Before you get it you have to show there’s no equitable remedy at law.
c. Goods are subject to specific performance when they’ve been specifically identified to the K.
irreplaceable losses:

specific performance
choosing remedies:

1. Ariola v. Nigro: P’s rain gutters extends over D’s property by 6 inches, D sought to have them removed as D was improving his property. P denied and D removed them. D’s new foundation butted up to P’s. Rule = when the encroachment was intentional, in that Δ proceeded despite notice or warning, or where he failed to make proper precautions as to ascertain the boundary, the courts will refuse to balance the equities, and have issued the mandatory injunction w/o regard to the relative convenience or hardship involved.
substitutionary or specific releif:

Burdens on Defenandant or the court case law
choosing remedy:

If harm to defendant is great and there’s a public interest involved the court will not order the injunction. Look for Undue Hardship and Balance the Equities:
a. Defendant’s Culpability – Did he intentionally encroach?
b. The relationship between the parties
c. Plaintiff Diligence or Acuiescence – Has he lulled defendant, say, into a false sense of security.
d. Whether denying relief would be public or private benefits.
substitutionary or specific relief:

undue hardship and balance of equities
choosing remedies:

3. Co-operative Insurance Society v. Argyll Stores: D ran a Safeway grocery store and leased the location from P. D had a 35 yr lease for the premises. D shut down the store due to economic loses. P sent a letter to D and drew attention to covenant to keep the store open. D did not respond. D removed everything from the store. P sought for specific performance to require D to keep the business open for the remainder of the lease. Trial ct awarded P money damages. App ct reversed claiming D willfully breached and should be required to perform. Rule = the ct will not force a business to stay open and here the K was not specific enough to grant SP as it did not say how to keep the store open.
substitutionary or specific relief:

burdens on defendant or the court case law
choosing remedies:

1. Willing v. Mazzocone: P carried a sandwich board that claimed D stole her money and sold her out to the insurance companies. This would be libelous and they would be entitled to damages. D sought to enjoin P from further protest and the trial ct granted the injunction and the superior ct affirmed. Rule = where the public interest is minimal or non-existent then a publication that is also defamatory and unprivileged should be enjoined.
substitutionary or specific relief:

reasons of substantive or precedural policy case law
choosing remedies:

2. Mazzocone v. Willing: Superior ct on remand granted the injunction, as the remedy at law would be unavailable as D is indigent and it would be difficult to measure P’s damages to reputation. The const argument is the most important and free speech is const protected when it is in the public interest and is not defamatory. This is not within the public interest as it is false and does harm to P, also D will continue unless she is required to stop and it is clearly harmful to P’s reputation, which is difficult to measure.
substitutionary or specific relief:

reasons of substantive or procedural policy case law
choosing remedies:

3. ABC v. Wolf: D a sportscaster for P had a K with a clause giving P the right of first refusal. D left the P a month prior to the end of his K. P sued wanting specific performance and an injunction against D working for CBS. Rule = ct will not force a person to perform services but can prevent them from performing them for someone else.
substitutionary or specific relief:

reasons of substantive or procedural policy case law
choosing remedies:

even if the court determines defendants wrong it still won’t grant injunction if there’s undue hardship to defendant. Hardship won’t be a defense against a defendant who intentionally encroaches.
substitutionary or specific relief:

reasons of substantive or procedural policy:

hardship
choosing remedies:

a. The injunction carefully drafted.
b. And the speech has been previously adjudicated being unprotected.
c. Look for whether there’s an overriding public interest in the utterance. If so, then let it be said. If it’s minimal than an unpriviledged publication should be enjoined
substitutionary or specific releif: reasons of substnaitve or procedural policy:

Speech can be enjoined when
choosing remedies:

You may not defend a contempt cahrege with the defense that the injunctions wrongfully been granted.
subsstitutionary or specific relief:

reasons of substantive or procedural policy:

Collateral bar rule
Choosing Remedies:

i. Los Angeles Memorial Coliseum v. NFL: D sought to deny the move of the Raiders to LA and P filed for a preliminary injunction. The trial ct awarded P the preliminary injunction claiming that the hardships tipped in P’s favor. D appealed to the 9th circ. claiming this was an abuse of discretion. Rule = irreparable injury is not a loss of revenue and monetary injury is not considered irreparable. In balancing the harms the ct will consider the burden to the parties involved. Preliminary relief is granted to preserve the status quo – the state of affairs before the issue arrived.
preliminary or permanent relief
choosing remedies:

1. Strong likelihood of success on the merits – this is the most important
2. Possibility of irreparable harm to P without the preliminary relief
3. Balance of the hardships
4. Advancement of public interest
preliminary or permanent relief:

4 criteria to grant or deny preliminary injunction relief
choosing remedies:

1. Strong likelihood of success on the merits – this is the most important
2. Possibility of irreparable harm to P without the preliminary relief
a. Irreparable harm is not great harm but difficult to measure or difficult to show harm or damage,
3. Balance of the hardships – hardship to P if the prelim is not granted against the harm that D would incur if the prelim were granted erroneously
a. Fundamental principle is that preserve the status quo – always up for debate and is fact specific – the last legal state of fact but if there is grave danger in status quo the ct may alter the status quo pending trial – the black bear case
4. Advancement of public interest – sort of a catch all for public or const rights
preliminary or permanent relief:

4 criteria to grant or deny preliminary injunction relief
choosing remedies:

i. Lakeshore Hills v. Adcox: D owns a black bear that he keeps as a pet. A covenant in the K to purchase the land by D limited it to household pets, which is not defined. P amended the definition to include bears and filed for a preliminary injunction requiring the bear be removed. Trial ct granted the motion. Rule = injunction will be granted when the threat of harm outweighs the inconvenience to D. Ct will order the status quo changed when the threat to public safety by keeping the bear on the premises – status quo will be preserved unless the threat of harm is very serious
preventing the status quo case law
choosing remedies:

ii. Coyne-Delany Co: P a subcontractor installing toilet valves and the valves malfunctioned twice and on the next bid D required that P’s main competitor be used. Trial ct granted P’s request for a TRO and only required $5000 bond. The bond is cover damages in case the TRO is wrongfully granted. Rule = when a bond is issued the damage for a wrongly granted injunction is limited to the bond. Party can appeal the amount of the bond.
preventing the status quo case law
choosing remedies:

1. Most cases say – that the defendant is entitled to delay damages – except if there is a good reason such as a failure to mitigate or changes in the law
2. The ct can order a nominal amount City of Atlanta v. RTA – ct waived the bond as it was city wide interest – ct can waive enforcement of the bond - if a bond is ordered it must enforce the bond unless there is some good reason for not requiring the P to pay
preventing the status quo case law:

rule 65(C) - no TRO shall issue except upon the order of a bond
choosing remedies:

a. Potential loss to D, is the P going to be able to get a bond, financial hardship to P, and the public importance of the right being enforced – is this an important const question which would only require a small bond and ct looks at likelihood of success
preventing the status quo: rule 65(c) - no TRO shall issue except upon the order of a bond:

Factors court looks at to waive bond from note 2c from pg. 455
choosing remedies:

states that a TRO may be granted without written or oral notice to the adverse party only if (1) it clearly appears…that immediate or irreparable injury…will result to the applicant before the adverse party can be heard in opposition, and (2) the applicant certifies..in writing…the efforts…which have been made to give notice…and reasons supporting…the notice should not be required.
preventing status quo:

rle 65(b)
choosing remedies:

requires that no preliminary injunction shall be issued without notice to the adverse party.
preventing status quo:

rule 65(a)(1)
choosing remedies:

relief that ct grants to fix something in the future – Ex. injunction to fix prisons
prospective relief
choosing remedies:

compensating for past harms - Fed ct may not grant retrospective relief or the equivalent if the state invokes its immunity
retrospective relief
choosing remedies:

confirms the sovereign status of the states that shields them from suit from individuals absent their consent – to ensure the fed law can be enforced the 11th allows suits for prospective injunctive relief against state officials acting in violation of fed law – waiver of sovereign immunity must be express and will not be implied by participation in federal program
prospective or retrospective releif:

11th amendment
choosign remedies:
4. Ex. Parte Young pg. 478: you can sue state officials in the official capacity but only for (1) violation of federal law or (2) only for prospective injunctive relief.
prosecptive or retrospective relief: suits against officers in their offical capacity case law
choosing remedies:

1. Edelman: A federal court’s remedial power, consistent with the 11th amendment is limited to prospective injunctive relief and may not include a retroactive award which requires the payment of funds from the state treasury. Facts: D a recipient of benefits from the SSA. SSA requirement of 45 days to get a candidate their funds. Illinois was taking up to 4 months violating the act. D sued claiming P violated the equal protection clause and sought back benefits for the delay.
prospective or retrospective relief:

suits against officers in their offical capacity case law
choosing remedies:

1. Harlow v. Fitzgerald: D is suing 2 ex presidential aids of Nixon for the loss of his job. D testified before a congressional committee regarding the cost overruns of the C-5. Trial ct held P were not entitled to absolute immunity. Rule = to determine whether qualified immunity was present it is needed to determine whether the official knew or should have known that the action he took would violate const rights. If he did then the immunity defense should fail. For qualified immunity only allow substantial lawsuits
prospective or retrospective relief:

suits against officers in their personal capcities
choosing remedies:

is allowed for judges in official status, fed or state legislature while legislating, prosecutors and President unless state or fed statute grants immunity
prospective or retrospective releif: suits against officersi n their personal capacities:

Absolute Immunity
choosing remedies;
did this particular D do this with malicious intent = subjective, objective = knew or should have known his actions violated P’s rights
suits against officers in their personal capacities:

how to succeed in claiming qualified
preventing harm without coercion:

i. P does not have to show irreparable harm but must show case or controversy (ripeness) What does the order say – states a principle but does not order anyone to do anything If D ignores the order – not contempt, still possible to get injunction
declatory judgment
preventing harm without coercion:

ii. Nashville, Chattanooga RR: D is trying to uphold a TN statute that would require P to pay taxes to keep its gas at the facility. P wants a declaratory judgment to determine the state statute is unconst. Rule = for a declaratory action there must be a valid case or controversy and here payment of back taxes and penalties creates a controversy.
declaratory jugdments case law
preventing harm without coercion:

iii. Cardinal Chemical: D is suing P for infringement of 2 of their patents. P countered claiming the patents were invalid. In the meantime D had 2 other suits over the alleged infringement of the same patents determined holding the patent to be invalid. Trial ct held for P claiming no infringement and granted the declaratory judgment. Rule = in patent suits even if infringement is not found in prior cases it may be found here – must respond to the issue at hand. Patent infringement case – is it a valid patent if not no infringement possible.
declaratory judgments case law
preventing harm without coercion:
If a state prosecution is pending the D has to present his fed D in state court – once a state proceeding commenced D cannot bring his fed defense in fed ct – raise an unconst of the law under fed const as a defense in the state - If there is not a state prosecution going on potential state D can sue in fed ct to have the law declared unconst and seek preliminary injunction preventing enforcement until the dec relief action is decided - This bars any form of fed relief that would directly or indirectly interfere with a pending state judicial proceeding – the doctrine has been extended to most civil proceedings and to enforcement of state judgments
declaratory judgments:

Younger Rule
preventing harm without coercion:

Person in the position as to whether to violate a potentially unconstitutional law or risk doing what he wants to do
declaratory judgments:

younger dilemma
preventing harm without coercion:
vi. Steffel v. Thompson: P and his partner were passing out leaflets about the Vietnam war and they were told they would be prosecuted for criminal trespass if they continued. P’s partner continued and was prosecuted. P and his partner requested injunctions and a declaratory judgment not to enforce the law and violation of 1st amend rights. The only question here is P’s request for declaratory relief. Lower cts denied all relief. Rule = fed declaratory relief is not precluded when no state prosecution is pending and the P demonstrates a genuine threat of enforcement of the disputed criminal statute.
declaratory judgments case law
preventing harm without coercion:

vii. Hicks case – ct held that the fed proceeding must be dismissed if a prosecution is commenced before any proceedings of substance on the merits – in fed ct wrongdoer is P in state ct wrongdoer is D – case filed in fed ct but before much occurs state starts to prosecute P – bright line is fed ct must have taken substantial proceedings on the merits or it will be dismissed if the proceedings begin
declaratory judgments case law
preventing harm without coercion:

viii. Doran v. Salem Inn: D represents 3 topless dancing clubs that are contesting a city ordinance banning topless dancing. D’s filed in fed ct seeking injunctive relief and declaratory judgment. One of the D’s began to violate the code and was prosecuted. Trial ct granted relief for all 3 parties. App ct affirmed due to efficiency reasons. Rule = Younger rule when no state case is pending the fed ct can grant declaratory relief.
declaratory jugments case law
preventing harm without coercion:

ix. What if TRO is granted and P does violate the ordinance while the injunction was in affect or are they immune from prosecution – Note 8 pg 545 says they cannot be prosecuted – provided the p had some reasonable ground to contest the challenged law
declaratory judgments rule
preventing harm without coercion:

1. Ejectment, Trespass – your on my property
quiet title:

legal remedies to real estate
preventing harm without coercion:

1. Replevin
2. Trover
3. Detinue
4. Return the personal property to me
quiet title:

personal proeprty
preventing harm without coercion:

1. Bill to remove a cloud on title - raises the validity of the document not the general question of who owns it. Is this a forged deed?
quiet title:

equity for real estate
preventing harm without coercion:

1. Cancellation, Rescission, Re-execution
2. If neither side performs the remedy is cancellation, but if one side has performed – then seek to rescind and receive restitution – deeds are cancelled
quiet title:

equitable remeies for both real and personal property
preventing harm without coercion:

1. Bill to quiet title, Trespass to try title, Declaratory judgment, Bill to determine adverse claims
quiet title:

statutory remedies
preventing harm without coercion:

vi. Newman Machine v. Newman: D owned a large portion of P’s stock. Now D is claiming he was defrauded by the sale to P. P brought suit to quiet title the stock as D has been threatening to sue for 2 yrs. Rule = when property is adversely affected or person asserts adverse claim to property ct has the right of equitable assistance to quiet title.
quiet title case law
preventing harm without coercion:

An equitable remedy closely related to the bill to remove a cloud on title.
quiet title:

cancellation
preventing harm without coercion:

i. This is an equitable doctrine – where the reformation of a K results in a K with specific terms. Rescission results in no K. The standard explanation of reformation is that the parties had an actual agreement, and that the writing does not reflect that agreement. Reformation only for written K’s, not oral K’s.
reformation
preventing harm without coercion:

ii. Hand v. Dayton-Hudson: P was a lawyer for D and was fired during a restructuring of the company. P was offered 38K to release D of all his claims. P made a copy of the release making a minor alteration and having both parties sign with D thinking it signed the original release. P brought his claims of age discrimination and breach of employment K. D countered with the release. Trial Ct granted D’s MSJ and reformed the K to the original terms of the release even though there was never a meeting of the minds. Rule = exception to the general rule reformation is only applicable when there is mutual mistake and that is when one side is mistaken and the other committed fraud.
reformation case law
preventing harm without coercion:

1. If never agree to K and no fraud then no reformation
2. If they did agree and the writing does not reflect the terms then there can be reformation
reformation:

what type of mistake will allow reformation
preventing harm without coercion:

- to show that you have won and prevailing party can get attorney’s fees and when actual damages are too speculative
declatory relief at law:

Nominal Damages
preventing harm without coercion:

This writ to determine the person is properly holding public office – this was brought in bush v. gore – the judgment is called ouster – if the person is determined to be wrongly holding the office they get ousted and is immediate in its effect
declatory relief at law:

Quo Warranto
REstitution:

give it back and all your profits. Alternative measures of monetary recovery. Recovery is not measured by the plaintiff’s harm but by the defendants benefits
restitution
restituion:

i. 1. There is no other cause of action – none other available
ii. 2. If D’s gain exceeds the P’s loss - Measured by the gain to D not the loss to P and sometimes the gain is more than the loss
iii. If P would rather reverse the transaction than let it stand and go for damages – defrauded into buying defective home
iv. Cases were D is insolvent – P no want to be just another creditor, wants to be an owner
restitution attractive/appropriate in 4 occasions
restitution:

Used where the parties thought they had an enforceable K but it wasn’t. Plaintiff’s able to recover for the reasonable value of plaintiffs services performed under a K breached by defendant. Plaintiffs being paid in restitution for the value of his services, not the value of the benefit conferred. Sidebar – this is a great cause of action, if servies were performed in an emergency situation, like the defendant unconscious and is treated by Dr. plaintiff.
restitution:

quantum meruit
restitution:

i. Disgogement of profits refers to disgorging defendants profits, and is independent of any action by plaintiff. In contrast, in a breach of K suit, we measure plaintiffs loss to include plaintiffs expected profits. Taking D’s profits from his unjust enrichment – if D unjust enriched the P is entitle to restitution of that amount
disgorging profits
resitution:

ii. Olwell: P sold an eggplant to D and was to retain full ownership of an egg washing machine. Due to lack of labor D pulled the washer out of storage and began to use it without P’s approval. P then sued asserting assumpsit instead of tort of conversion. Trial ct held for P granting $10 a day of use over the 3 years for a total of $1500 this was the benefit to D. Rental of the washer would have been $360 or could have bought for $600. Rule = P can choose his claim and damages are measured by the benefit to D.
disgorging profits case law
restiution:

iii. Maier Brewing v. Fleischmann Distilling: D has the trademark of black and white bottles of scotch. P started selling cheap beer with an infringing label. Trial ct found P to be a willful infringer and ordered an accounting and awarded D all of P’s profits. Rule = there does not need to be direct competition for infringement and an accounting (D’s profit from sale of infringing goods) is proper remedy
disgorging profits case law
restiution:

iv. Snepp v. US: P a CIA employee published a book without agency clearance. Trial ct held for D granting a constructive trust to D for the profits P made due to the willful irreparable harm. Rule = where damages are too speculative ct may fashion a constructive trust to remedy the unjust enrichment but usually for K not tort.
disgorging profits case law
restiution:

1. Sheldon: P wrote a play based on an English case. D used the play to produce a movie without P’s permission. P sued claiming the profits. Issue should profits be apportioned. Rule = the patent laws provide for apportionment, and here the profits were due to the performance of the movie stars in the motion picture not the play and the award does not have to be with mathematical certainty. Ct saying the P should only recover the amount D gained from the infringement. Purpose is not to penalize the infringer just recover the unjust enrichment
disgorging profits:

measuring profits case law
restiution:

2. Hamil America v. GFI: P created a fabric design that D infringed. D tried to include overhead costs in expenses. Rule = overhead may be included in expenses as long as the expenses relate directly to the use in the manuf of the infringing product. Where the trial ct finds a willful infringer the ct may take a closer look at the items it is claiming to be overhead and the ct has the discretion to include them or not. Overhead – cost associated with running a business
disgorging profits:

measuring the profits case law
restiuttion:

a. (1) Determine what overhead categories are actually implicated by the production of the infringing product once the category as a whole is sufficient nexus to the manuf of the infringing product then those within the category shall be included – (2) arrive at a fair practical method of allocating the implicated overhead to the infringement, infringer has the burden of offering a fair formula for allocating a given portion to the particular infringing items
disgorging profits:

measuring the profits 2 step process on pg. 613
restitution:

i. Available when buyers don’t want what they bought maybe because its not worth what they paid. Just make sure you give the property back.
restiuttion and contract (aka rescission)
restiuttion:

ii. Mutual Benefit Life v. JMR Electronics: D took out a life insurance policy on their CEO, on the application the CEO claimed he was not a smoker when in fact he was. The CEO died and D is claiming the proceeds. P sought to void the K as the smoking misrepresentation was a material term. Trial ct granted P’s MSJ. Rule = when an insurance policy is rescinded the insurer returns the premiums plus interest and does not have to pay out the proceeds of the policy.
rescission case law
restiution:

iii. Bush v. Canfield – buyer to pay $7 a barrel of flour and seller deliver – price dropped – buyer could get cheaper – seller breached – if buyer sues for damages there would be no damages buyer would have negative expectancy – but rescission would allow them to get down payment back and by flour elsewhere cheaper - seller claims P should lose 3k from deposit for loss of damages – buyer sues to rescind K and restitution the entire deposit is returned and no more consideration for a K
rescission case law
restitution:

iv. Under UCC if it goes to the whole K then cancellation is allowed 2-711
rescission
restitution:

v. Philip Carey case – non UCC case for sale of medicine cabinets – no deliver the entire portion under the K – buyer wants to rescind the remaining portion it has not already accepted and keep the ones they had paid for – they were allowed to do as the K was considered to be severable – it could be divided in divisible parts
rescission case law
restitution:

vi. Farash: P entered into an oral K with D to lease offices to D, which D was to make improvements to meet his own specifications. P also made improvements based on the oral K for D. D never entered the property or took possession. Rule = even though a party does not receive any benefit from the others performance the performing party can recover the reasonable value of his performance whether or not D benefited from the performance in quasi K.
rescission case law
restitution:

If a K’s been formed under a mistake of fact, it can be rescinded UNLESS there’s been detrimental reliance by the other party.
rescission
restitution:

you must return what you took/bought, and if you don’t have it anymore b/c you changed it, for example, you not be entitled to rescission. So choose damages and they will be the difference between what you paid for the item and what it was worth.
rescission
restitution:

referred to as election of remedies – Ollwell case – P was allowed to choose damages for loss of value of eggwasher or suing for unjust enrichment and get D’s profits for use of – waiving the tort and suing in assumpsit
Restiuttion remedies: concept of election of remedies used in 3 context:

choosing between sueing in tort or unjust enrichment
restitution:

S sold shares of mining stock that were worthless – restore P to position the P was in before the tort – so if sue for tort get what he paid but if sue for breach of K the ct can award expectancy damages and B could have received the worth the stock was represented to have
restitution remedies - concept of election of remedies - used in 3 ocntext:

choose sueing for breach of K or for tort
restitution:

Cherry case suing for termite infested house – P would get his payment back and seller would get the
restitution remedies - concept of election of remedies - used in 3 context:

choose to use for breach of K ask for remedy of damages or rescission and restitution
restiution:

i. How we get money from the BKd wrongdoer.
tracing defendant's benefit: restitution and insolvency
restitution:

mortgage lender has some security for the loan and has right to foreclose or repossess
a. Secured creditors have preference in bankruptcy – they can foreclose on property
b. Better to be an owner in the possession of the bankrupt person
tracing defandent's benefit: restitution or insolvency:

Secured Creditor
restitution:

extend credit without security and any promissory note without mortgage is unsecured creditor
tracing defendants benefit: restitution and insolvency:

unsecured creditor
restitution:

insolvent debtor – gives away or sells for less than reasonable value property there must be actual intent to hinder creditors – creditor can undue the transfer as fraud of creditor
tracing defendants benefits; restitution and insolvency:

unjust enrichment by fraudulent transfers
restitution:

requirements for this D has to have possession of the property, it has to have been bought (not improved) with the misappropriated funds, if the property wanting the constructive trust is for less than the amount owed due to the misappropriation P may not sue for the remaining amount owed – P is limited to the object misappropriated – if the property is worth more than the amount owed P gets the appreciated value if there are no other creditors – use if the property appreciates – is the remedy available if the property is transferred to a BFP yes it is not available – use tracing
restitution and insolvency:

constructive trust
restitution:

requirements only get the amount that was misappropriated – if the property goes down in value use this – BFP cuts off liability and remedy is lost – use tracing
restitution and insolvency:

equitable lien
restitution:

vi. Hicks v. Clayton: D swindled P out of real property known as Costebelle in exchange for worthless stock. P requested the remedy of rescission and to hold the property in constructive trust for P. Rule = P has the right to elect the right of damages or rescission and restitution For constructive trust you need a transfer by fraud and second there must be identifiable property
tracing defendants benefits: restitution and insolvency case law
restitution:

vii. In Re North American Coin: D put new customers money for precious metals in trust hoping for an infusion of capital to keep the company going and perform the orders. P some new customers did not receive their orders are requesting the funds in trust be held in constructive trust for them claiming that they were defrauded by D. Rule = to create constructive trust there must be both fraud (willful intent to deceive by accepting money with intent not to carry out a transaction) and identifiable property. AZ law to show fraud P would have to show that D intended at the time they were becoming insolvent not to meet the obligations they received.
tracing defendants benefit: restitution and insolvency case law
restitution:

viii. In Re Erie Trust Co.: P represents the estate of Gingrich whom D held in trust and later became insolvent and in doing so they took 25K from the trust and used to purchase bonds. P is claiming the right to reclaim the amount of the trust D stole for its own use by being given seniority in the bankruptcy proceedings. P wanted constructive trust finding fraud in breach of fiduciary duty. Question is can you identify the property. Ct denied P’s request. Rule = we can show unauthorized appropriation of trust assets and identify the trust res through tracing. Can look at all assets and trace to identifiable property
tracing defendants benefit:
restitution and insolvency case law
restitution:

wrongdoer mixes P’s money with his own assets – generally this takes place when it is cash – first must find him a wrongdoer and try to identify
tracing defendants benefit: restitution and insolvency

Commingled Funds
restitution:
If D spends money he first spends his own money from commingled account until there is no D’s money then it is P’s money that he is spending
tracing defendants benefit: restitution and insolvency:

commingled funds - spending presumption
restitution:

if D invests money from commingled we presume investing P’s money until the balance is zero and only then do we say that D is spending his own money
tracing defendants benefit: restitution and insolvency:

commingled funds - investing presumption
restitution:

if d spends money or invests so that P’s balance is reduced and then D deposits more of D’s money it does not reimburse P’s money – P’s money does not go up unless that was D’s intent – P is only entitled to the highest amount he had in the account
tracing defendants benefit: restitution and insolvency:

commingled funds - lowest intermediate balance
restitution:

When tracing through commingled accounts: defendant spends his own money first and invests plaintiff money first.
tracing defendants benefit: restitution and insolvency case law:

Tracing
restitution:

i. Rogers v. Rogers: P is the first wife and children of the deceased and D is the second wife and her child, both are claiming the proceeds to the deceased’s life insurance policy. When P and the deceased separated the deceased promised in the agreement to maintain a life insurance policy for the benefit of P. Rule = constructive trust requires tracing here there are less requirements on the tracing to soften the harsh consequences of legal formalism – why give the right to P to constructive trust as it would be unjust enrichment and the remedy for that is restitution. Agreement made no comment if the H no longer had a right to the insurance benefits – D was not a wrongdoer but H was
restitution from 3rd parties
restitution:

i. Robinson v. Robinson: P is the ex-wife that helped her ex built a home on his parents (D’s) property for P to live in. P got divorced and claims an interest in the improvements to the land. Rule = restitution may be granted to restore the enricher to their rightful position by requiring the enriched to return or pay money damages, the ct may place a lien on the property or require the enriched to pay the portion they were enriched.
fraudulent transfer
restitution:

1. cost of the improvements, 2. enhanced value of the premises on objective basis, 3. personal value to the D landowner for his particular purposes but this is rarely used
fraudulent transfer - 3 methods to measure
restitution:

a money judgement and attached to that money judgement is a right to have certain property sold to satisfy the judgment.
fraudulent transfer: equitable lien
restitution:

If plaintiff can trace into property worth more than he lost, he will elect the constructive trust (b/c you get ownership of the asset at whatever value it is). If the traceable property is worth less than he lost, he will seek a money judgment for the full amount of the loss and an equitable lien on the traceable property to secure the judgment.
fraudulent transer: when to use an equitable lien and use a constructive trust:

Use Constructive Trust
restitution:

When plaintiff improves defendants property or the defendant allows the improvement without stopping platiniff, so the landowner may be compelled either to pay for the improvement or sell the land to the improver. When the value of the property defendant converted goes down he choosed equitable lien.
fraudulent transfer: when to use an equitable lien and use a constructive trust:

use equitable lien
restitution:

i. Welch v. Kosasky: P had some silver castors stolen from their home and D later purchased 11 of the 12 stolen items for about $2750 for items that should of cost over 40K. Rule = the rightful owner has the power to elect to receive damages for the item or the return of the item itself upon electing return of the items P may receive the damages for the value at the time they are returned
replevin, ejectment, and the like case law
restitution:

gets the value of the property at the time of conversion plus loss of use plus interest but property does not get returned use this if the property depreciated – P got to use conversion after receiving the property as D damaged the items and P got damages for his alteration of the items
replevin, ejectment, and the like:

Conversion
restitution:

money taken - remedies available for this are conversion must show the specific money that was taken and punitive damages are available as this intentional tort or quasi K or money had and received – if the money is taken to pay off a debt and 3rd party who gives value for the money the BFP cuts of P’s rights to trace the money – what equitable remedies for money – constructive trust and use tracing to recover property bought with the money – or equitable lien if the money is not used to buy something but used to improve something
replevin, ejectment, and the like:

specific property
restitution:

destroy chattel – conversion market value at time of destruction plus interest less the salvage value if returned to P – replacement value of the market value is hard to determine – if it has been destroyed modern cases say loss of use even if it is destroyed – may be replacement value or value to P if only sentimental valuer
replevin, ejectment, and the like:

injury to personal property
restitution:

diminution in value or cost of repairs whichever is less – loss of use
replevin, ejectment, and the like:

damage to chattel
restitution:

legal remedy is replevin, which is order to return the property plus loss of use or if what was stolen was for sale then market value at time of sale but diminution in value that took place during period they were gone – P can choose to get damages or property returned – damages value at time of conversion and interest and loss of use – conversion value at date of conversion plus interest plus punitive damages
replevin, ejectment, and the like:

chattel is taken and retained by wrongdoer
restitution:

recover the benefit conferred on D and used it to make a profit – Ollwell case – taken and retained it remedy of constructive trust is not available as thief does not have good title
replevin, ejecment, and the like:

waive the tort and sue in assumpsit
restitution:

i. Trademark infringement – deliberate can get an accounting of D’s profits – P would get D’s profits and black and white beer chase – P does not have to prove any lost sales or damages
replevin, ejectment, and the like:

Business torts
restitution:

i. American National Bank v. Weyerhaeuser: P is the agent of the Illinois State Board of Investment and held 40K of D’s stock. D sought to purchase back its own stock to a certain amount. P purchased the portion D would have bought but for the box being checked on the form and sold the stock at a loss. P now sues D to recover the loss. Rule = subrogation allows a party to step into the shoes and claim the rights of the original party.
subrogation, contribution, and indemnity case law
restitution:

Arises out of an insurance K. Done by expression or implied agreement. Ex: D has injured plaintiff and Kaiser helps pay the medical bills. Plaintiff has a suit against defendant; Kaiser, by way of K stands on plaintiffs shoes and can recover those medical expenses from defendant.
subrogation:

2 kinds of subrogation: Conventional Subrogation
restitution:

Rare that it occurs. An equitable righ, arising under the law as opposed to under K.
2 kinds of subrogation:

legal subrogation
restitution:

a. An equitable right, which arises by an operation of law and not by contract. Where property of one person is used in discharging an obligation owed by another under such circumstances that the other would be unjustly enriched by the retention of the benefit then conferred, the former is entitled to be subrogated to the position of the oblige
b. One person has discharged the debt of another - Subrogee more than a mere volunteer
c. In order to find this the subrogee that wants the recovery must not have acted as volunteer – volunteer is not someone compelled to pay to protect their own interest or some potential liability or disruption of normal relations
2 kinds of subrogation:

legal subrogation
puniive damages:

i. Generally available when there is fraud oppression or malice includes intention to injure or conscious disregard that conduct will result in injury to others – need awareness or probable dangerousness to others and failure to avoid
punitive damages common law statute
punitve damages:

ii. Grimshaw v. Ford Motor Co.Remittitur is appealable. What malice express or implied means: P must establish - a conscious disregard of the probability that the actors conduct will result in injuries to others.; Defendant aware of potential consequences and Defendant willfully and deliberately failed to avoid
punitive damages case law
punitive remedies:

Agent authorized, Reckless employment, Agent acting in scope of employment – in management, Principle ratified or approved of the act
punitive damages:

punitive damages can be awarded against principle for acts of agent
punitive damages:

- Reckless disregard to health or safety of others, Financially vulnerable targets, Repeated incidents or isolated incident
1. Was the harm the result of one of this things - Intentional malice – willfulness or ignoring reason, Trickery, Deceit, Mere accident
punitive damages:

Reprehensible conduct
punitive damages:

1. Compare the disparity between the actual and the potential harm compared with the actual damage award at trial – there is no bright line – ct has suggested that they will be unlikely to disturb 4 to 1 but there can be justification for a higher ratio if injury is hard to detect or money value of non economic harm – behavior is highly reprehensible but the economic damages are low – also consider the wealth of D and not meant to bankrupt D
2. Compare punitive damages awarded with civil and criminal penalties are available for this misconduct – what could be imposed – D has to have been on notice of what the penalties of what they were doing – check as to see what D would have reasonable understood the penalty to reasonably be
punitive damages:

disparity between actual harm suffereed and the payout
restitution:

i. Trademark infringement – deliberate can get an accounting of D’s profits – P would get D’s profits and black and white beer chase – P does not have to prove any lost sales or damages
replevin, ejectment, and the like:

Business torts
restitution:

i. American National Bank v. Weyerhaeuser: P is the agent of the Illinois State Board of Investment and held 40K of D’s stock. D sought to purchase back its own stock to a certain amount. P purchased the portion D would have bought but for the box being checked on the form and sold the stock at a loss. P now sues D to recover the loss. Rule = subrogation allows a party to step into the shoes and claim the rights of the original party.
subrogation, contribution, and indemnity case law
restitution:

Arises out of an insurance K. Done by expression or implied agreement. Ex: D has injured plaintiff and Kaiser helps pay the medical bills. Plaintiff has a suit against defendant; Kaiser, by way of K stands on plaintiffs shoes and can recover those medical expenses from defendant.
subrogation:

2 kinds of subrogation: Conventional Subrogation
restitution:

Rare that it occurs. An equitable righ, arising under the law as opposed to under K.
2 kinds of subrogation:

legal subrogation
restitution:

a. An equitable right, which arises by an operation of law and not by contract. Where property of one person is used in discharging an obligation owed by another under such circumstances that the other would be unjustly enriched by the retention of the benefit then conferred, the former is entitled to be subrogated to the position of the oblige
b. One person has discharged the debt of another - Subrogee more than a mere volunteer
c. In order to find this the subrogee that wants the recovery must not have acted as volunteer – volunteer is not someone compelled to pay to protect their own interest or some potential liability or disruption of normal relations
2 kinds of subrogation:

legal subrogation
puniive damages:

i. Generally available when there is fraud oppression or malice includes intention to injure or conscious disregard that conduct will result in injury to others – need awareness or probable dangerousness to others and failure to avoid
punitive damages common law statute
punitve damages:

ii. Grimshaw v. Ford Motor Co.Remittitur is appealable. What malice express or implied means: P must establish - a conscious disregard of the probability that the actors conduct will result in injuries to others.; Defendant aware of potential consequences and Defendant willfully and deliberately failed to avoid
punitive damages case law
punitive remedies:

Agent authorized, Reckless employment, Agent acting in scope of employment – in management, Principle ratified or approved of the act
punitive damages:

punitive damages can be awarded against principle for acts of agent
punitive damages:

- Reckless disregard to health or safety of others, Financially vulnerable targets, Repeated incidents or isolated incident
1. Was the harm the result of one of this things - Intentional malice – willfulness or ignoring reason, Trickery, Deceit, Mere accident
punitive damages:

Reprehensible conduct
punitive damages:

1. Compare the disparity between the actual and the potential harm compared with the actual damage award at trial – there is no bright line – ct has suggested that they will be unlikely to disturb 4 to 1 but there can be justification for a higher ratio if injury is hard to detect or money value of non economic harm – behavior is highly reprehensible but the economic damages are low – also consider the wealth of D and not meant to bankrupt D
2. Compare punitive damages awarded with civil and criminal penalties are available for this misconduct – what could be imposed – D has to have been on notice of what the penalties of what they were doing – check as to see what D would have reasonable understood the penalty to reasonably be
punitive damages:

disparity between actual harm suffereed and the payout
restitution:

i. Trademark infringement – deliberate can get an accounting of D’s profits – P would get D’s profits and black and white beer chase – P does not have to prove any lost sales or damages
replevin, ejectment, and the like:

Business torts
restitution:

i. American National Bank v. Weyerhaeuser: P is the agent of the Illinois State Board of Investment and held 40K of D’s stock. D sought to purchase back its own stock to a certain amount. P purchased the portion D would have bought but for the box being checked on the form and sold the stock at a loss. P now sues D to recover the loss. Rule = subrogation allows a party to step into the shoes and claim the rights of the original party.
subrogation, contribution, and indemnity case law
restitution:

Arises out of an insurance K. Done by expression or implied agreement. Ex: D has injured plaintiff and Kaiser helps pay the medical bills. Plaintiff has a suit against defendant; Kaiser, by way of K stands on plaintiffs shoes and can recover those medical expenses from defendant.
subrogation:

2 kinds of subrogation: Conventional Subrogation
restitution:

Rare that it occurs. An equitable righ, arising under the law as opposed to under K.
2 kinds of subrogation:

legal subrogation
restitution:

a. An equitable right, which arises by an operation of law and not by contract. Where property of one person is used in discharging an obligation owed by another under such circumstances that the other would be unjustly enriched by the retention of the benefit then conferred, the former is entitled to be subrogated to the position of the oblige
b. One person has discharged the debt of another - Subrogee more than a mere volunteer
c. In order to find this the subrogee that wants the recovery must not have acted as volunteer – volunteer is not someone compelled to pay to protect their own interest or some potential liability or disruption of normal relations
2 kinds of subrogation:

legal subrogation
puniive damages:

i. Generally available when there is fraud oppression or malice includes intention to injure or conscious disregard that conduct will result in injury to others – need awareness or probable dangerousness to others and failure to avoid
punitive damages common law statute
punitve damages:

ii. Grimshaw v. Ford Motor Co.Remittitur is appealable. What malice express or implied means: P must establish - a conscious disregard of the probability that the actors conduct will result in injuries to others.; Defendant aware of potential consequences and Defendant willfully and deliberately failed to avoid
punitive damages case law
punitive remedies:

Agent authorized, Reckless employment, Agent acting in scope of employment – in management, Principle ratified or approved of the act
punitive damages:

punitive damages can be awarded against principle for acts of agent
punitive damages:

- Reckless disregard to health or safety of others, Financially vulnerable targets, Repeated incidents or isolated incident
1. Was the harm the result of one of this things - Intentional malice – willfulness or ignoring reason, Trickery, Deceit, Mere accident
punitive damages:

Reprehensible conduct
punitive damages:

1. Compare the disparity between the actual and the potential harm compared with the actual damage award at trial – there is no bright line – ct has suggested that they will be unlikely to disturb 4 to 1 but there can be justification for a higher ratio if injury is hard to detect or money value of non economic harm – behavior is highly reprehensible but the economic damages are low – also consider the wealth of D and not meant to bankrupt D
2. Compare punitive damages awarded with civil and criminal penalties are available for this misconduct – what could be imposed – D has to have been on notice of what the penalties of what they were doing – check as to see what D would have reasonable understood the penalty to reasonably be
punitive damages:

disparity between actual harm suffereed and the payout
Punitive Damages:

i. General rule that cannot get punitive damages for breach of K. But there are loop holes to this rule (if an independent tort claim is committed in a contractual setting, punitive damages can be awarded for the tort.
punitive damages in K
punitive damages:

ii. Formosa Plastics v. Presidio Engineers: P solicited bids for an expansion project, offering subcontractors the ability to make their own delivery schedules and begin in July and to last for 90 days. D relying on the bid information submitted the lowest bid. P changed the terms. Rule = when a COA for fraud is raised both K damages and punitive damages are available. The ct has to find a separate tort as another duty arose – here fraudulent inducement
punitive damages in K
punitive damages:

material misrepresentation known to be false when made or asserted without knowledge of the truth intended to be acted upon which was relied on which causeing injury.
punitive damages in K:

Fraudulent Inducement
Ancillary Remedies:

i. If the contempt is committed outside of the presence of the court, that’s called indirect contempt and requires a full hearing.
ii. If the contempt’s committed in the judges presence, that’s called direct contempt and does not require a full hearing.
Ancillary remedies:

Enforcing coercive orders: the contempt power
Ancillary Remedies:

must provide criminal protections such as jury trial except for petty offenses, right to counsel, and proof beyond reasonable doubt – without these contempt order is overturned on appeal – all paid to the govt.
a. Requires criminal intent to be convicted for criminal contempt – not criminal b/c it was intentional it is criminal b/c of the sanction imposed
b. Purely punitive – it is imposed for some act that has already been done, imprisonment for fixed term or fine that is flat fine and unconditional, fine may be measured by the number of violations and still criminal, definite amount based on the number of violations informed in advance and imposed after violation
2. Coercive civil – punishment is indeterminate – could be fine per day until c
There are 3 kinds of contempt:

Criminal
Ancillary Remeidies:

punishment is indeterminate - could be fine per day until comply or imprisonment until compliance - person has keys to jail all must do is comply. 3 kinds of penalties - confine or imprison the contemnor until compliance, 2 typs of fines so much per diem or amount per period other is fined psecific amount that could be purged if you comply - are paid to the govt. not to P - D cannot be imprisoned for failing to do somethign that is impossible and cannot be imprisoned or fined if they are incurably recalcitrant.
there are 3 kinds of contempt:

coercive civil
ancillary remedies:

money paid the other party in amount of other parties damages it compesnates the other, side for its damages no incarcceration:
a. motion asking the ct to impose contempt sanctions with CC P can abandon the request up to a pt and can a settle up to a pt.
b. Violations of order must be proved by C&C evidence and there is no collateral bar rule – if the injunction is wrongly granted a violation is not contempt and P can not get anything for the contempt
c. CA does not allow this – instead they allow a separate lawsuit for damages and P can sue for non-compliance note 3a Pg 786 – must match the amount of P’s actual losses and no right to jury trial
there are 3 kinds of contempt:

compesensatory civil
ancillary remedies:

1. Who is it paid to – if the opponent then compensatory
2. If imprisonment or fine – is it fixed or indeterminate
3. IF required to do something or not and fined until stop then
4. IF criminal then must have not intentionally complied
5. Direct contempt – contempt happens within the presence of the judge – its own category – does not need the due process protections – the ct has power over acts within its own ct room and summary proceedings are ok – if it occurs during trial and contempt done after trial then due process requirements and protections are required – same for serious criminal penalties – if the penalty not serious flat unconditional fines can be imposed
6. Indirect contempt – contempt happens outside the ct
how to determine what type of contempt is awarded
ancillary remedies:

Fine, Imprisonment, Compensatory fine payable to the opponent
penalties
ancillary remedies:

Fixed sum, Imprisonment for fixed term, May be indeterminate term or amount that accrues daily and continuing, Imprisonment until order is complied with, If the sanction is determinate or fixed or paid to the govt. then it is criminal contempt
sanctions
ancillary remedies:

vii. International Union v. Bagwell: P is a labor union involved in a labor dispute with many of the employers. Many of the companies brought suit to enjoin P from conducting unlawful strike activities. Trial awarded the injunction. About a month later the trial ct held contempt hearing for 72 violations of the injunction and fined P $64K for non-compliance. Rule = when contempt sanctions are criminal the party must be afforded the due process requirements of a criminal trial. The fines were determinate and set for past actions and paid to the govt. indicates criminal – cannot claim injunction invalid
ancillary case law
ancillary remedies:

viii. Yonkers case – City refused to comply with ct order to build public housing in white neighborhoods – ct ordered them to vote the ordinance in and they city counsel refused – ct told that if they did not comply that they would have to pay 100 bucks for the first day and doubling every day there after – this was coercive civil contempt – differs from Bagwell b/c this is an affirmative act that they have to do so they could stop the fine by complying
ancillary case law
ancillary remedies:

1. Ct issues the injunction
2. Ct adjudicate the first violation and threaten specific fines for future violations or until compliance
3. Ct adjudicates further violations and collects the fines
coercive civil contempt 3 step process
ancillary remedies:

x. Anyanwu v. Anyanwu: P is the wife and D is the husband. P and D are a couple from Nigeria and where married in the states. P obtained a final restraining order against D for abuse. D was later incarcerated for failing to return the children as the ct ordered him to do. D later claimed that continued incarceration would not accomplish its purpose and should be released. Rule = incarcerated party has the burden of showing that continued confinement carries no coercive effect and is punitive. If it is impossible to comply then they will be released and imprisoned party moves more release – standard is there a substantial likelihood that continued incarceration will cause the person to comply – refusal to comply is not enough – if fed ct the most you can be in jail is 18 months
ancilary case law
ancillary remedies:

xi. Griffin v. County School Board: During this period D paid tuition for white children to afford private schools. Ct told D to open public schools and to no longer pay private schools until it had done so. The ct did not impose and injunction so D after opening public schools to blacks set out to pay the tuition for whites at the private schools. Rule = Ct can hold public official in contempt without an injunction if they interfere with pending litigation -contemptable is a value judgment that something is bad, but contemptuous is a legal violation and may be punished
ancillary case law
ancillary remedies:

i. Criminal offense is complete when D defies the ct and it does not matter whether the ct was right or wrong and the offense is not undone if the injunction is later reversed – this is the collateral bar rule – this is for the respect of the ct - CA does not have the collateral bar rule – so during criminal contempt proceeding the injunction may be challenged for const
collateral bar rule
ancillary remedies:

the actual remedy to a person is not to violate but to challenge the injunction until it can be shown that challenging is futile – rule 65 lists who can be held in contempt – this not an exclusive list found 3rd party contempt in Hall case that 3rd party may be bound if 3rd party action disturb the adjudication of rights between the parties if they have knowledge and would disturb the adjudication – found in structural injunctions –to be in contempt person must receive actual notice of the order by personal service or otherwise – does not matter the source – split in what we mean by notice an some require to be in contempt party must have notice of specific terms of the injunction and others hold that it is enough that D knew than an order had been issued and they are required to find out the terms – requires them to inquire what the terms of the order were
collateral bar rule:

Exception invalidity can be raised as a defense if it is transparently invalid or only had frivolous pretense of validity
ancillary remedies:

ii. Walker v. City of Birmingham: D sought an injunction to bar P from marching and parading in the streets in compliance with one of D’s ordinances for the general welfare of the city. State circuit ct issued the TRO and it was served upon 5 P’s. 2 days later P marched. Rule = violated the terms of the injunction, which exposes them to criminal contempt and validity of the injunction is not in question in the contempt proceeding
iii. US v. Shipp: Death sentence stay was issued by the Sup Ct and sheriff Shipp assisted in the mob lynching and D was sited for contempt and violating the stay of execution. Rule = 3rd party can be bound by an injunction but just to help to provide a remedy
collateral bar rule case law
ancillary remedies:

1. Parties to the action:
a. However – A 3rd party not named in the injunction can be bound if the actions of that 3rd party would disturb the adjudication of the rights and oblgatations between the plaitnfif and the defendant.
b. Successors to person in public office are bound too
2. Their officers
3. Agents
4. Servants
5. Employees
6. Attorneys, and
7. Those persons in active concert or participation with them who receive actual notice of that order by personal service or otherwise.
rights of third parties:

FRCP 65(d) - states an injunction's binding only upon
ancillary remedies:

ii. US v. Hall: In the Mim’s case the ct ordered a structural injunction for the schools to be desegregated. The school dist complained that many individuals were making it difficult to proceed and named D as one of the resisters. Ct issued an injunction prohibiting access to schools, D was served with the notice, entered the campus anyway. Rule = 3rd party conduct interferes with the cts ability to levy a final binding judgment between the original parties can be held in contempt.
iii. Alemite case on Pg 830: Injunction and person violated that was not a party and not a structural injunction so when brother violated the injunction was not in contempt as it was only against the one person
rights of third parties case law
ancillary remedies:

D had notice and did not challenge it in any way – people to whom the injunction is addressed – under rule 65 the listed people are bound – 65 it is necessary to have actual knowledge and personal service is not necessary – there is a split some say that person must have notice of the specific terms of the injunction some say as in note 2 Pg 242 person that knows of the order is responsible for finding out the terms of the order
rights of third parties:

Court is not restricted to the people of rule 65
ancillary remedies:

you can be held in contempt only if you got specific notice of the specific terms of the injunction. While others hold its enough that the defendant knew that an ordered was issued and he’s responsible for finding out what the order was.
rights of thrid parties:

there's a split in the jurisdiction
remedial defenses:

“he who comes into equity must come with clean hands”. If plaintiffs hads were not clean – if he were guilty of inequitable conduct, whether or not that conduct were illegal or tortuous – he cannot get relief in equity. Plaintiffs not going to prevail if his activity was at least as responsible for the harm as defendant’s activity.
the unclean hands defense
remedial defense:

ii. Pinter v. Dahl: P agreed to locate and drill wells on behalf of D. D was the chief investor and got several other investors to invest. The wells turned out to be worthless. Rule = in pari delicto requires the 2 prong test from Bateman Eichler where 1) P bears at least equal responsibility for the underlying illegality and 2) P’s recovery would be barred only if preclusion of suit would frustrate the purpose of the statute and here the purpose of the Securities Act is to protect investors. In pari delicto requires direct result of own actions P had a least substantially equal responsibility for the injury and any less than equal you cannot use the defense and P must be active participant in the unlawful activity that is the subject of the suit –Illegal gambling K is illegal unless D cheated and then recoverable
the unclean hands defense case law
remedial defenses:

i. Armendariz v. Foundation Health Psychare Services: P’s are 2 female supervisors at D and were fired because of their sexual orientation. P brought suit and D sought to enforce the arbitration clause of the employment K. P also claimed the employment K was unconscionable because it required employees to arbitrate but did not require the employer to do so. Rule = First this must be an adhesion K – drafted by party of superior bargaining strength on standard form and no negotiation –Second – look to see if works to disadvantage of the weaker party and if it is unduly oppressive or unconscionable - minority view that one-way provision is unconscionable
unconscionability and the equitable contract defense
remedial defenses:

requires reliance. General rule if person by statement or conduct leads another to do something that the party would not have done but for the statement and conduct the person will not be allowed to deny his words or act – where one party reasonably detrimentally relies on the others statement or conduct
estoppel
remedial defenses:

arises when a litigant takes a position in court inconsistent with a previous position in the same or related matter, it is usually said that the litigant is not estopped unless he prevailed on the earlier inconsistent position.
judicial estoppel
remedial defenses:

iii. Geddes v. Mill Creek Country Club: P is seeking an injunction to stop golfing on the 5th hole and move the hole. D asserted the defense of equitable estoppel, because P entered into an agreement with D as to the design of the course and D made changes to the design based on the agreement. Rule = estoppel requires that P made a statement or kept silent and reasonably expected D to rely, D relied on that statement and took action to its detriment - when P later complains of D actions P is estopped from asserting a claim.
estoppel case law
Remedial defenses:

defendant, the person claiming estoppel, brings equitable estoppel as a defense.
Estoppel
estoppel:

a. plaitniff misrepresented or concealed material facts
b. plaitniff knew at that time he made the representations that they weren’t true (can irgnore this rule).
c. defendant did not know that the representation were untrue when they were made and when they were acted upon;
d. plaitnfif intended or reasonably expected that defendant would act upon the representation;
e. defendant reasonably relied upon the representations in good faith to his detriment; and
f. defendant would be prejudiced by his reliance on the representation if plaitniff were permitted to deny the truth thereof.
estoppel:

the defendant must prove that plaintiff, by statment or conduct that
remedial defenses:

a person by statements or conduct leads a party to do something where one party reasonably determentaly relies on the other’s statement or conduct.
Estoppel:

Synthesized rule
Remedial defenses:

is single person relinquishing a known right – requires no reliance – can be express or implied - needs no independent consideration and there does not have to be any reliance or change of position just a unilateral move by the person doing the waiver
waiver
remedial defenses:

ii. US Fidelity v. Bimco Iron & Metal: D’s warehouse was broken into and the electrical system was stolen. D was supposed to submit the proof of loss in a certain period and failed to do so. P then stated that it would cover the damage to the facility but not the theft. Rule = waiver which is an intentional relinquishment of known rights or intentional conduct inconsistent with claiming it. Offer to pay claim after deadline passed is a waiver of time expired to file.
waiver case law
remedial defenses:

1. Intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right, Needs no independent consideration, Can occur before or after the time for performance of the condition, person who relies on the waiver does not have to show change in position
elements of waiver
remedial defenses:

in the theory behind denying relief to one who is exercises unreasonable delay or negligence in pursing a right or claim – almost always equitable.
laches = defendant argument
remedial defenses:

2. NAACP v. NAACP Legal Defense: P is suing D for trademark infringement of the initials NAACP. P threatened to sue in 66 but did not sue. In 82 P patented the name and sued D for trademark infringement.
laches case law
remedial defenses:

1) substantial delay by P prior to filing suit – this will depend on the circ. (volatile price will be short time) 2) P was aware of the trademark was being infringed [P aware of D’s wrong and still not sue] 3) D relied [some reliance by D on P’s delay]. To negate invocation of laches the ct looks at in good faith ongoing negotiations and conscious fraud or bad faith.
laches bars releif to those (requires 3 elements)
remedial defenses:

Look for it where you find a continuing wrong nuisance or infringement cases or some dispute that must be settled by certain date such as ballot litigation – must be brought in enough time to make it affective
laches:

look for laches
remedial defenses:

the question we ask is when does the the clock start to run.
statutes of limitations
remedial defenses:

this means the statute stops running – against minor would be tolled until they reach the age of majority – can be tolled if D is out of state – may occur during the middle of the period or any other time – this extends the time to file
statute of limitations: tolling
remedial defenses:

a person by statements or conduct leads a party to do something where one party reasonably determentaly relies on the other’s statement or conduct.
Estoppel:

Synthesized rule
Remedial defenses:

is single person relinquishing a known right – requires no reliance – can be express or implied - needs no independent consideration and there does not have to be any reliance or change of position just a unilateral move by the person doing the waiver
waiver
remedial defenses:

ii. US Fidelity v. Bimco Iron & Metal: D’s warehouse was broken into and the electrical system was stolen. D was supposed to submit the proof of loss in a certain period and failed to do so. P then stated that it would cover the damage to the facility but not the theft. Rule = waiver which is an intentional relinquishment of known rights or intentional conduct inconsistent with claiming it. Offer to pay claim after deadline passed is a waiver of time expired to file.
waiver case law
remedial defenses:

1. Intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right, Needs no independent consideration, Can occur before or after the time for performance of the condition, person who relies on the waiver does not have to show change in position
elements of waiver
remedial defenses:

in the theory behind denying relief to one who is exercises unreasonable delay or negligence in pursing a right or claim – almost always equitable.
laches = defendant argument
remedial defenses:

2. NAACP v. NAACP Legal Defense: P is suing D for trademark infringement of the initials NAACP. P threatened to sue in 66 but did not sue. In 82 P patented the name and sued D for trademark infringement.
laches case law
remedial defenses:

1) substantial delay by P prior to filing suit – this will depend on the circ. (volatile price will be short time) 2) P was aware of the trademark was being infringed [P aware of D’s wrong and still not sue] 3) D relied [some reliance by D on P’s delay]. To negate invocation of laches the ct looks at in good faith ongoing negotiations and conscious fraud or bad faith.
laches bars releif to those (requires 3 elements)
remedial defenses:

Look for it where you find a continuing wrong nuisance or infringement cases or some dispute that must be settled by certain date such as ballot litigation – must be brought in enough time to make it affective
laches:

look for laches
remedial defenses:

the question we ask is when does the the clock start to run.
statutes of limitations
remedial defenses:

this means the statute stops running – against minor would be tolled until they reach the age of majority – can be tolled if D is out of state – may occur during the middle of the period or any other time – this extends the time to file
statute of limitations: tolling
remedial defenses:

a person by statements or conduct leads a party to do something where one party reasonably determentaly relies on the other’s statement or conduct.
Estoppel:

Synthesized rule
Remedial defenses:

is single person relinquishing a known right – requires no reliance – can be express or implied - needs no independent consideration and there does not have to be any reliance or change of position just a unilateral move by the person doing the waiver
waiver
remedial defenses:

ii. US Fidelity v. Bimco Iron & Metal: D’s warehouse was broken into and the electrical system was stolen. D was supposed to submit the proof of loss in a certain period and failed to do so. P then stated that it would cover the damage to the facility but not the theft. Rule = waiver which is an intentional relinquishment of known rights or intentional conduct inconsistent with claiming it. Offer to pay claim after deadline passed is a waiver of time expired to file.
waiver case law
remedial defenses:

1. Intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right, Needs no independent consideration, Can occur before or after the time for performance of the condition, person who relies on the waiver does not have to show change in position
elements of waiver
remedial defenses:

in the theory behind denying relief to one who is exercises unreasonable delay or negligence in pursing a right or claim – almost always equitable.
laches = defendant argument
remedial defenses:

2. NAACP v. NAACP Legal Defense: P is suing D for trademark infringement of the initials NAACP. P threatened to sue in 66 but did not sue. In 82 P patented the name and sued D for trademark infringement.
laches case law
remedial defenses:

1) substantial delay by P prior to filing suit – this will depend on the circ. (volatile price will be short time) 2) P was aware of the trademark was being infringed [P aware of D’s wrong and still not sue] 3) D relied [some reliance by D on P’s delay]. To negate invocation of laches the ct looks at in good faith ongoing negotiations and conscious fraud or bad faith.
laches bars releif to those (requires 3 elements)
remedial defenses:

Look for it where you find a continuing wrong nuisance or infringement cases or some dispute that must be settled by certain date such as ballot litigation – must be brought in enough time to make it affective
laches:

look for laches
remedial defenses:

the question we ask is when does the the clock start to run.
statutes of limitations
remedial defenses:

this means the statute stops running – against minor would be tolled until they reach the age of majority – can be tolled if D is out of state – may occur during the middle of the period or any other time – this extends the time to file
statute of limitations: tolling
remedial defenses:

– if there is both legal and equitable remedy for the same underlying wrong then the SOL applies to both remedies
statute of limitations:

Concurrency doctrine
remedial defenses:

4. Klehr v. AO Smith: P purchased one of D’s grain silo’s in 1974 relying on D’s assertions that the silo would limit the oxygen thus keeping the grain from molding longer and providing healthy feed to the cattle. P asserted that D covered up its fraud by continued misrepresentations. Third circuit applied the last predicate rule allowing P to recover for all the harm D caused if D committed a new act within the SOL. Rule = SOL begins when the injury occurs but can be extended by a continuing injury if it occurred within the past 4 yrs. Can only recover for harm within the SOL period.
statute of limitations case law
remedial defenses:

5. O’Brien v. Eli Lilly: P in 1971 underwent surgery to remove a tumor commonly associated with maternal stilbestrol.. P’s mother denied taking the DES and P was not told of the cancer. In 1976 P read an article that discussed her situation and confronted her mother who denied taking DES. P read another article in 1979 and confronted her mother this time making mom call her doctor who confirmed mom ingested DES. Rule =
statute of limitations case law
remedial defenses:

knowledge of the injury here cancer, knowledge of the cause of the injury here her mother taking DES should have known in 76 duty to inquire, knowledge of the causative relationship that DES causes cancer – whenever these things occurred the statute started to run and she had 2 years from then
statute of limitations:

discovery rule
remedial defenses:

7. Knaysi v. AH Robins: P’s purchased a Dalkon Shield intrauterine device to stop pregnancy. WP got pregnant and suffered a spontaneous septic abortion during the first trimester. P claims that D knew the product was not as effective as it stated and that D continued conceal this information and issue false advertising to the public thus barring D’s ability to assert SOL. Trial ct granted D’s MSJ Rule =
statute of limiations case law
remedial defenses:

requires need 2 factors a party has superior knowledge and failed to disclose – such as statements which have induced a party to postpone bringing suit or fraudulent concealment of an action, which is unknown to a party.
statute of limitaitons

equitable estoppel
remedial defenses:

a. The violation/injury must continue
b. The resulting harm must continue
c. The continueing injury must cause the resulting harm.
statute of limitations:

continueing violation theory doctrine
remedial defenses:

when ther’s a potential continuing violation, every single violation starts the clock running against whether or not the plaitniff knows. Plaitniff can only recover for harm occurring within the Statute of Limitations.
statute of limitatoins:

continueing violation
remedial defenses:

a. Defendant induces plaintiff not to sue on a known Cause of Action or
b. Defendant convnied plaitniff not to sue and
c. It was reasonable for the plaintiff to rely on that.
statute of limitations:

defendant will be estopped from asserting SOL as a defense if
remedial defense:

With a minor the SOL doesn’t begin to run until she turns 18.
statutte of limiations:

minors
remedial defenses:

A limitation period does not begin to run until the platiniff discovers (or reasonably should have discovered) the injury giving rise to the claim. It usually applies to injuries that are inherently difficult to detect, such as those resulting from medical malpractice.
statute of limiations:

discovery rule
remedial defense;

a. Knowledge of the injury
b. The cause/conduct that caused said injury
c. Knowledge of the causative relationship.
statute of limitiations:

3 elements required to start the SOL running
remedial defense:

15. Plaintiff also got to prove that he neither knew nor should have known of his claim before the statue started running.
16. Plaintiff not required to show that defendant covered anything up, he just says, “Hey! Quit breaking my balls! This is when I discovered it!”.
statute of limitations
remedial defense:

a. That the defendant had control and superior or even exclusive knowledge of facts necessary for plaitnfif to show a cause of action AND,
b. Defendant, by affirmative misstatements, did fraudulently conceal these essential facts from plaitniff,
c. Plaitniff neither knew nor should have known of his claim before the statue began to run.
statute of limitations:

fraudulent concealment: 3 factors required in order to toll from fraudulent concealment
remedies and seperation of powers:

i. Linda RS v. Richard D: P had an illegitimate child with D and D is not paying child support. P requested the DA to prosecute D under Penal Code 602 that requires a parent to support a child or go to jail for up to 2 years, but the DA refused. P wants an injunction to force the DA to prosecute. Trial ct dismissed for lack of standing. Rule = because a private citizen lacks a judicially cognizable interest in the prosecution of another.
ii. FCC: D brought suit against P for not listing AIPAC as a political committee. If AIPAC were deemed a political committee it would have to register information as to who and how much money they are donating to politicians. The statute allows for citizen complaints when they see a violation. D sued and P claimed D lacked standing. Trial ct and App ct dismissed the action Rule = statute can provide for citizen suits to force prosecutions
initiating criminal and administrative remedies