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46 Cards in this Set
- Front
- Back
Preliminary injunction - 2 requirements:
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1) risk of irreparable injury (timeframe - before trial)
2) likelihoof of success (bond requirement) |
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Temporary restraining order (TRO) - requirements:
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same as preliminary injunction
1) notice NOT required 2) adversarial proceeding NOT required 3) proceeding can be ex parte 4) limited to 10 days |
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Permanent injunction - 5 requirements ("I Put Five Bucks Down"):
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1) inadequate legal remedies
2) property right/protectable interest 3) feasibility of enforcement 4) balancing of hardships 5) defenses |
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Inadequate remedy - why money damages may not be adequate?
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1) amount speculative
2) D is insolvent 3) irreparable injury 4) avoiding multiplicity of actions |
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Protectable right - Traditional view:
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Any legitimate property interest will suffice.
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Protectable right - Modern trend:
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Property right is not even needed - a protectable interest will suffice.
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Feasibility of enforcement - 2 types:
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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 |
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Mandatory injunction - application of great taste, skill, or judgment:
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Injunction denied - difficult to enforce.
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Mandatory injunction - series of acts over a period of time:
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Injunction denied, unless P's case is otherwise great.
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Mandatory injunction - "out of state" act required:
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Resident D - injunction GRANTED
Non-resident D - DENIED |
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Permanent injunction - balancing of hardships - 4 steps:
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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 |
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Permanent injunction - defenses:
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1) unclean hands
2) laches 3) impossibility 4) free speech |
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Permanent injunction - defenses - unclean hands:
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The party seeking injunction has acted improperly.
NOTE: available ONLY if P's alleged improper conduct is related to the suit |
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Permanent injunction - defenses - laches:
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Plaintiff has unreasonably delayed bringing the action AND delay is prejudicial to D.
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Permanent injunction - defenses - impossibility:
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It is impossible for D to carry out the terms of the injunction.
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Permanent injunction - defenses - free speech:
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If the tort is defamation or privacy publication tort (false light, private facts) - injuntion DENIED based on free speech.
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Permanent injunction memorizer - "I Put Five Bucks Down"
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I - inadequate legal remedy
P - property right/protectable interest F - feasibility B - balancing D - defenses |
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Erroneous injunction - compliance?
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Must be obeyed until modified or dissolved - otherwise, contempt.
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Interference with business relationship - application:
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applies to both existing AND potential relationship (but easier for existing)
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Trade secret misappropriation - 2-part test:
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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 |
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Trademark infringement - 2-part test:
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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) |
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Right to imitate:
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Rule: One has a right to freely imitate another's unpatented product.
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Right to imitate - exceptions:
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1) deception
2) improper taking |
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Specific performance - 6-part checklist ("Cha Cha Is My Favorite Dance"):
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1) contract is valid
2) conditions are satisfied 3) inadequate legal remedy alternative 4) mutuality of remedy 5) feasibility of enforcement 6) defenses |
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Specific performance - conditions satisfied - defect in land:
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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) |
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Specific performance - conditions satisfied - time of the essence:
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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 |
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Specific performance - time of the essence - factors to avoid harsh result of forfeiture:
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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 |
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Specific performance - inadequate legal remedies:
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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) |
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Personal property - unique?
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Personal property is NOT unique and damages are appropriate.
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Personal property - exceptions (when unique?):
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1) one of a kind or rare
2) personal significance 3) circumstances make unique - shortage |
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Specific performance - inadequate legal remedies - liquidated damages clause:
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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. |
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Specific performance - mutuality of remedies:
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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 |
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Specific performance - feasibility - personal services Ks:
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NOT specifically enforceable:
1) enforcement problem 2) involuntary servitude |
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Specific performance - defenses:
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1) equitable defenses:
a. unclean hands b. laches c. unconscionability 2) contract defenses: a. mistake b. misrepresentation c. SF |
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Specific performance memorizer - "Cha Cha Is My Favorite Dance":
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C - contract must be valid
C - conditions satisfied I - inadequate legal remedy M - mutuality of remedy F - feasibility D - defenses |
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Rescission - definition:
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the original contract is considered void and rescinded
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Rescission - grounds:
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1) mistake
2) misrepresentation 3) coercion 4) undue influence 5) lack of capacity 6) failure of consideration 7) illegality |
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Rescission - grounds - mutual mistake:
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must be about material fact - otherwise, NO rescission
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Rescission - grounds - unilateral mistake:
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Not a ground for rescission, unless non-mistaken party knew or should have known of the mistake.
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Reformation - definition:
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Changes written agreement to conform with the parties' original understandings.
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Reformation - 3-step analysis:
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1) valid contract
2) grounds for reformation 3) defenses |
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Rescission memorizer - "Good Dog"
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G - grounds
D - defenses |
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Reformation memorizer - "Very Good Dog"
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V - valid contract
G - grounds D - defenses |
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Rescission - unilaterla mistake
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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).
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Trade secret - definition:
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A trade secret is information not readily available that gives its possessor a competitive advantage.
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Covenant not to compete - when enforceable:
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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 |