Remedies

Front 1

Preliminary injunction - 2 requirements:

Back 1

1) risk of irreparable injury (timeframe - before trial)
2) likelihoof of success (bond requirement)

Front 2

Temporary restraining order (TRO) - requirements:

Back 2

same as preliminary injunction

1) notice NOT required
2) adversarial proceeding NOT required
3) proceeding can be ex parte
4) limited to 10 days

Front 3

Permanent injunction - 5 requirements ("I Put Five Bucks Down"):

Back 3

1) inadequate legal remedies
2) property right/protectable interest
3) feasibility of enforcement
4) balancing of hardships
5) defenses

Front 4

Inadequate remedy - why money damages may not be adequate?

Back 4

1) amount speculative
2) D is insolvent
3) irreparable injury
4) avoiding multiplicity of actions

Front 5

Protectable right - Traditional view:

Back 5

Any legitimate property interest will suffice.

Front 6

Protectable right - Modern trend:

Back 6

Property right is not even needed - a protectable interest will suffice.

Front 7

Feasibility of enforcement - 2 types:

Back 7

1) negetive injunction - stop doing it (no enforcement problem)
2) mandatory injunction - do something (enforcement problem: (a) difficulty in supervision, and (b) concern with effectively ensuring compliance

Front 8

Mandatory injunction - application of great taste, skill, or judgment:

Back 8

Injunction denied - difficult to enforce.

Front 9

Mandatory injunction - series of acts over a period of time:

Back 9

Injunction denied, unless P's case is otherwise great.

Front 10

Mandatory injunction - "out of state" act required:

Back 10

Resident D - injunction GRANTED

Non-resident D - DENIED

Front 11

Permanent injunction - balancing of hardships - 4 steps:

Back 11

1) gross disparity between detriment and benefit
2) NO balancing is D's conduct was willful
3) hardship to public
4) consider awarding money damages

Front 12

Permanent injunction - defenses:

Back 12

1) unclean hands
2) laches
3) impossibility
4) free speech

Front 13

Permanent injunction - defenses - unclean hands:

Back 13

The party seeking injunction has acted improperly.

NOTE: available ONLY if P's alleged improper conduct is related to the suit

Front 14

Permanent injunction - defenses - laches:

Back 14

Plaintiff has unreasonably delayed bringing the action AND delay is prejudicial to D.

Front 15

Permanent injunction - defenses - impossibility:

Back 15

It is impossible for D to carry out the terms of the injunction.

Front 16

Permanent injunction - defenses - free speech:

Back 16

If the tort is defamation or privacy publication tort (false light, private facts) - injuntion DENIED based on free speech.

Front 17

Permanent injunction memorizer - "I Put Five Bucks Down"

Back 17

I - inadequate legal remedy
P - property right/protectable interest
F - feasibility
B - balancing
D - defenses

Front 18

Erroneous injunction - compliance?

Back 18

Must be obeyed until modified or dissolved - otherwise, contempt.

Front 19

Interference with business relationship - application:

Back 19

applies to both existing AND potential relationship (but easier for existing)

Front 20

Trade secret misappropriation - 2-part test:

Back 20

1) Does P have a trade secret?
2) Was secret taken by improper conduct?

NOTE: both the taker and a 3rd party may be enjoined

Front 21

Trademark infringement - 2-part test:

Back 21

1) Is there a protectable trademark? - Watch for scope of protection!
2) Has there been an infringement? (likelihood as to the source of the goods or services)

Front 22

Right to imitate:

Back 22

Rule: One has a right to freely imitate another's unpatented product.

Front 23

Right to imitate - exceptions:

Back 23

1) deception
2) improper taking

Front 24

Specific performance - 6-part checklist ("Cha Cha Is My Favorite Dance"):

Back 24

1) contract is valid
2) conditions are satisfied
3) inadequate legal remedy alternative
4) mutuality of remedy
5) feasibility of enforcement
6) defenses

Front 25

Specific performance - conditions satisfied - defect in land:

Back 25

1) P is the seller - can enforce if defect is minor, but NOT when it is major
2) P is buyer - can enforce even if defect is major, BUT court will lower purchase price to account for defect (abatement)

Front 26

Specific performance - conditions satisfied - time of the essence:

Back 26

1) if K is whole executory (buyer has done nothing yet) - time of the essense will be strictly enforced
2) if buyer partially performed - award specific performance

Front 27

Specific performance - time of the essence - factors to avoid harsh result of forfeiture:

Back 27

1) loss to seller is small
2) tardiness is de minimus
3) waiver (seller has accepted late payments in the past)
4) buyer will suffer undue hardship

Front 28

Specific performance - inadequate legal remedies:

Back 28

1) damages are speculative
2) D is insolvent
3) multiple suits are necessary
4) item bargained for is unique (land always unique, even if parcels are identical)

Front 29

Personal property - unique?

Back 29

Personal property is NOT unique and damages are appropriate.

Front 30

Personal property - exceptions (when unique?):

Back 30

1) one of a kind or rare
2) personal significance
3) circumstances make unique - shortage

Front 31

Specific performance - inadequate legal remedies - liquidated damages clause:

Back 31

A liquidated damages clause does not make money damages adequate. Specific performance is still available.

Exception: when clause provides that it is the ONLY remedy.

Front 32

Specific performance - mutuality of remedies:

Back 32

1) mutuality fact pattern - P should not be able to enforce because D could not enforce
2) court will reject mutuality if it feels secure that P can & will perform
3) grant specific performance - provide for simultaneous performance in decree

Front 33

Specific performance - feasibility - personal services Ks:

Back 33

NOT specifically enforceable:
1) enforcement problem
2) involuntary servitude

Front 34

Specific performance - defenses:

Back 34

1) equitable defenses:
a. unclean hands
b. laches
c. unconscionability
2) contract defenses:
a. mistake
b. misrepresentation
c. SF

Front 35

Specific performance memorizer - "Cha Cha Is My Favorite Dance":

Back 35

C - contract must be valid
C - conditions satisfied
I - inadequate legal remedy
M - mutuality of remedy
F - feasibility
D - defenses

Front 36

Rescission - definition:

Back 36

the original contract is considered void and rescinded

Front 37

Rescission - grounds:

Back 37

1) mistake
2) misrepresentation
3) coercion
4) undue influence
5) lack of capacity
6) failure of consideration
7) illegality

Front 38

Rescission - grounds - mutual mistake:

Back 38

must be about material fact - otherwise, NO rescission

Front 39

Rescission - grounds - unilateral mistake:

Back 39

Not a ground for rescission, unless non-mistaken party knew or should have known of the mistake.

Front 40

Reformation - definition:

Back 40

Changes written agreement to conform with the parties' original understandings.

Front 41

Reformation - 3-step analysis:

Back 41

1) valid contract
2) grounds for reformation
3) defenses

Front 42

Rescission memorizer - "Good Dog"

Back 42

G - grounds
D - defenses

Front 43

Reformation memorizer - "Very Good Dog"

Back 43

V - valid contract
G - grounds
D - defenses

Front 44

Rescission - unilaterla mistake

Back 44

Unilateral mistake can be a ground for rescission when the non-mistaken party knew or should have known of the mistake, OR when the mistaken party will suffer great hardship (later is the modern trend).

Front 45

Trade secret - definition:

Back 45

A trade secret is information not readily available that gives its possessor a competitive advantage.

Front 46

Covenant not to compete - when enforceable:

Back 46

1) services are unique
2) reasonably necessary to protect employer's interests
3) reasonable as to geographic scope and duration
4) enforcement will not result in harm to the public