Remedies outline (done) PDF

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Outline compiled of class notes for entire semester to study for exam...

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REMEDIES OUTLINE (Prof. Smith) INTRODUCTION: 1/10 BASIC REMEDIAL TOOLS/ REMEDIES AT LAW & IN EQUITY  What are the doctrinal rules/Substantive rights involved?  What remedies are available? Focusing on common law remedies for this class.  When multiple remedies are available, which remedy/combo of remedies is the best? (what’ s most difficult/costly to prove?)  Once we have a sense for the doctrinal rules, what defenses/counterarguments might be raised? 2 overarching principles (they work in tandem): 1- 3 types of remedies a. First, Damages b. Restitution c. Finally, injunctive relief i. Temporary, permanent 2- Consider first legal remedies, & then go to equitable remedies a. legal- damages, restitution b. equitable- restitution, injunction, specific performance i. 3 types of injunction: TRO (or restraining order), preliminary injunction, permanent injunction Generally:  The Broad Principles of remedial law: o (1) compensate for rights, but avoid under- or over-compensation o (2) avoid economic waste o (3) maintain a degree of efficiency in administering remedies D: What remedy will I receive if I win? P: What remedy must I provide if I win? Types of Remedies: (p. 3-6) “ Preventive”AKA Injunctions: prevents harm before it happens  Policy: dont wanna restrain B but also dont wanna make A suffer damages (benefit cost econ. test)  TN Rule Civ. Pro 65.01: Injunctive relief may be obtained by (1) restraining order, (2) temporary injunction, or (3) permanent injunction in a final judgment. A restraining order shall only restrict the doing of an act. An injunction may restrict or mandatorily direct the doing of an act. o So obvi restraining order is only negative but others can be either  TN Rule Civ. Pro 65.02: o (1) Every restraining order or injunction shall be specific in terms and shall describe in reasonable detail, and not by reference to the complaint or other document, the act restrained or enjoined.  Notice is important here o (2) Every restraining order or injunction shall be binding upon the parties to the action, their officers, agents and attorneys; and upon other persons in active concert or participation with them who receive actual notice of the restraining order or injunction by personal service or otherwise.  Basically everyone who gets notice of this is bound- not just the parties but also their agents must follow this order  Why do they need notice? Due process & fundamental fairness  Fed Rule Civ Pro 65: TRO, preliminary injunction, permanent injunction.  Types of injunctions o Negative v. affirmative  Negative: don’ tdo X (don’ tsell painting, knock down building) (restraining order is only negative)  Cts like better b/c easier to enforce than affirmative  Affirmative: do X (rehire P against whom u discriminated, tear down building) Interlocutory (“ TRO, prelim., permanent injunction (“ Extraordinary relief”b/c not based on full trial on the merits)  Interlocutory relief is expedited relief for a short term that a court may give before final adjudication of a case on the merits  ABUSE OF DISCRETION STANDARD  TRO: preserves status quo to prevent irreparable harm o Smith: ask for TRO when bulldozer is warming up and heading towards building o Negative: preserving- saying DON’ Tdo anything o Short term until the time of hearing (normally 2 weeks) o concerned about someone taking action that can’ t be undone so wanna freeze things o Example: selling the painting o Sometimes issued without hearing (“ ex parte”TRO) (domestic violence, etc.) or without someone on both sides being heard

Must show it’ s gonna happen RIGHT now and that there’ s no time to notify other party, if you haven’ t (must make some effort) o Can be granted ex parte in extraordinary circumstances- but moving party must show she put party on notice & what not to have opportunity to be @ hearing  Preliminary injunction upon a compelling showing & o Smith: ask for prelim. When someone says they plan to demolish next week o Not complete trial but a fuller hearing but not a full-fledged trial on the merits  Enough to allow trial to reach full conclusion on the test  Both parties should be there o Also freezes things o Can be affirmative or negative (cts more comfortable w/ affirm tho) o Can last longer than TRO (maybe up to year--- til whenever full trial on merits is) o If federal, Fed. R. 65  Then go to case law o Tennessee- Tenn. Civ. Pro 65 o Purpose is a little different than TRO though-: ct must consider the following factors: o Long Island Is Pretty (this is case law developed)  Ride the Ducks case o

 TRADITIONAL TEST- need to show all 4 of these things & if u fail on any 1 of them, motion fails  Moving party has burden  (1) the likelihood that moving party will succeed on the merits  many courts have qualifier here like substantial, etc. o why do some courts do this? b/c its before a full trial and it can be costly, harmful to parties, etc… so make it harder to get  substantial is not a # - determined case-by-case  (2) the extent to which moving party will suffer irreparable harm without injunctive relief  (3) extent to which nonmoving party will suffer irreparable harm if injunction issued; &  2 & 3 are balanced (balance of hardship tips in moving party’ s favor if granted)  what constitutes harm and what makes it irreparable? o Loss of market share/profits/investment (Ducks)  Difficult to put $ value on what potential loss of market share is o Loss of sales/ good will/brand (Power Rangers) o Loss of repute (Cassim) o What makes these irreparable?  Hard to quantify. Speculative. Occur in future.  Ducks P. 233 CB- “ presently existing actual threat”  Tom Doherty P. 240 CB- “ an injury that is not remote or speculative, but actual and imminent and for which a monetary award cannot be adequate compensation”  May the harm be speculative? Remote possibility? o Must be somewhat significant (Winter)  Squishy standard says Smith  (4) the public interest  Smith: might mean 1 of 3 things o Granting injunction won’ t be inconsistent w/ public interest o Cassim- public interest seems to take place of harm to the moving party o Ride the Ducks: upholding property interest & enforcing contracts o Power Rangers: enforcing K rights, freely formed economic arrangements o Cassim: protecting the health (lives, injury) of individuals by preventing unnecessary surgery, preventing $ waste o Winter: national security, making sure navy is trained in modern warfare techniques o Caribbean Marine Services: protect women rights—statutory schemes to protect environment & sex discrimination (sex 1 was stronger)  enforcing rights, broader  also 5- ease of ct’ s ability to oversee/enforce judicial resources o Why would granting of prelim sometimes effectively end the case? Since judge has said they’ re likely to succeed, probably gonna settle o Ex: Ride the Ducks (got TRO coupled with a hearing setting a preliminary injunction)  The Alternative Test: Sliding Scale test

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P must show either:  (1) there R serious Qs on the merits & the balance of hardships tips decidedly in P’ s favor  Serious question? Some? Squishy test  or (2) there is probability of success on the merits & that there is more than a possibility of irreparable harm without the order public interest is still a factor in the alternative test, even though not expressed. Public interest is ALWAYS a factor. Does a sliding scale test here make sense?

 Permanent injunction o Smith: ask for this when they say “ I’ m gonna do X but its gonna take 2 years for me to get the permits to do it.” o Can be affirmative or negative (cts more comfortable w/ affirm tho) o Full trial had and judgment issued on merits o Can dissolve a previous injunction if the standard is not met here o Parties can go through all 3 or jump in @ prelim or permanent Three types of injunctions in addition to preventive ones: (preliminary/mandatory) restorative injunctions: undoes effects of past wrongs prophylactic injunctions: seeks to safeguard P’ s rights by directing D’ s behavior so as to minimize the chance that wrongs might recur in the future structural injunction: (ex: school desegregation order) involves cts in institutional practices/policies of the defendant entities  Ride the Ducks of Philadelphia, LLC, including Notes o Appealing a preliminary injunction- prelim injunction affirmed o Super ducks were going to use the ramp for their duck boats, though super ducks did not have a licensing agreement to use it o Filed for TRO & prelim: trespass, conversion, & tortious interference w/ provision of licensing K o Ct granted TRO pending a hearing on the preliminary injunction o ANALYSIS:  (1) strong tortious interference & trespass claims (233)  (2) sharing property vital to business w/ their competitor would diminish their share of market  (3) Super Duck’ s“ harm”in spending money on arts that it would be unable to compete in the market without use of this ramp was brought on itself  (4) public interest strong in seeing that K & property rights are respected o HOLDING: Weighing these factors, the court found that the district ct did not abuse its discretion in granting the preliminary injunction. Damages  Compensatory Damages: compensates for Plaintiff’ s harm o General Damages: compensates directly for the harm/loss o Consequential damages: compensates for harm as a result of what happened  Punitive is exception: punishes wrongdoers  Restitutionary: restores to position held before the wrongdoing occurred o Restitution:  May or may not be money  Goal is not compensation--- is about D’ s gains instead of P’ s losses o Subject to limitations/defenses  Declaratory relief: serve to obtain a declaration of the rights/legal relations b/w parties o Often used to determine constitutionality of action  Nominal damages: serve to declare the relative rights of the parties o Awarded when a P establishes a substantive claim but cant establish damages  Jury trials & atty fees: o 7th amendment right to jury trial in legal cases BUT not equitable o Typically u bear your own expenses Scope of Legal and Equitable Remedies: Limitations on Remedies (p.15-16)  To recover a remedy, u need proof of loss/injury  LIMITATIONS ON REMEDIES: o Section coverage:  3 sources of remedial rights: federal constitution, state constitution, common law

P must establish that the particular remedy is permissible and the source may place some limitations on the remedy o Model case:  State statute prohibits retailers from posting customer checks that have been returned as uncollectible from the bank. Says that State atty may seek injunction against any retailer in willful violation of that act & provides a civil action for the individual ($500 per violation & atty fees)  Baxter’ s check was wrongfully denied. Consequences of Remedy Characterizations (p. 39-40)  Right to jury (legal, not equitable), appealability, arbitraribility, availability of preliminary relief, insurance coverage, & method of judicial enforcement  Model case: Neighbor’ s suit for trespass Problem: Modified Mobile Home Problem (TWEN) Baker (Mobile home Company) wants to cross Able’ s land and he refuses to let him  A. Able is worried that Baker may cut across the property (potential trespass) despite explicit orders not to do so. Able would like to ensure that this does not happen. What can Able do? o 1- Remedy for something which may never occur—injunction: get a TRO/prelim injunction o 2- How can we accomplish what Able wants w/out unduly restraining Baker?  Injunction –TRO (short-term 10 days) or prelim injunction worded like “ don’ t trespass”  Could make argument a/b economic efficiency but will probably fail b/c of sanctity of property.  B1. Able obtain s a court order against Baker, Inc. and its employees crossing Able’ s property. Despite this order, Baker crosses the property. Able reports this & seeks further redress. What can be done in response? o restorative injunction o court can punish violation of an order given by holding person in contempt  B2. Able finds damage to his property caused by Baker & would like to be compensated for the harm that has been done to the property. In addition, Able would like for Baker to be punished for this behavior and would also like to ensure that this does not happen again. What can Able do? o What monetary damages available, assuming liability/causation of injuries? o He can seek compensatory (diminishing value & cost of repair) & punitive damages o Note: to prove DIV, need appraisals. For COR, need some type of estimate or need actual cost.  Which would be preferred (COR or DIV)? What if DIV is 10k and COR is 3k? U gun want 10k.  Punitive absolutely OK for intentional, malicious tort  C. Baker has huge financial profit b/c of this even with these damages. Does Able have any remedy? o Restitutionary- is not based of her harm (DIV, COR) but rather will be tied to the benefit received by Baker (unjust enrichment) o NOT gonna get double recovery though  D. Able got judgment but Baker has not payed. Will court enforce judgments like this? o The court will not enforce this- this takes us into execution of damages, garnishing of wages, etc. Interlocutory Injunctions (p.229-35)  Interlocutory injunctions: Expedited relief for a short term that a court may give before final adjudication of a case on the merits. Types: TRO & preliminary injunction. o Difference: TRO- lasts short term. Prelim comes later, lasts until the full trial, & is appealibility. o Ex parte TRO under state law- at least when 1A con law rights are at stake  Substantive Requirements o Must convince court that necessary to preserve status quo or irreparable harm will result & must show strength of claim (rules differ on what probability of success must be shown) o Must consider the balance of hardships & public interest o There is a sliding scale test that can be used (stronger the substantive claim, prelim OK for a weaker irreparable harm) (weaker the substantive claim, prelim OK only if stronger showing) 

PAGE 238-48  Note #2 (pp. 238-239): SJ is different than prelim injunction b/c it is a substantive determination of the case, whereas a prelim. Injunction an interim determination of the relative merits of the claims of the parties producing, in conjunction with other factors, a decision whether to prevent further harm to the P pending a full trial on the merits  Tom Doherty Associates, including Notes o Conclusion: affirmed the preliminary injunction o Facts:  Tom Doherty Associates, doing business as TOR Books (TOR) (plaintiff), entered into a contract with Saban Entertainment, a creator, producer, & distributor of childrens TV  K provided that TOR would immediately publish 6 childrens books w/ Power tanger characters from Saban’ s tv show & further created a long-term relationship giving TOR certain exclusive rights to publish children books w/ Saban characters

For Saban, the K would be a means of promoting/ selling children books feat. These characters For TOR, which was only a minor publisher of children’ sbook s ,t hecont r actwasanoppor t uni t yt o ex pandTOR’ sr ol eandes t abl i s hi t sel fi nt hi sspec i al i z edmar k et .  After the execution of the contract, Saban introduced the television show Power Rangers, which became wildly successful.  After the success of Power Rangers, Saban no longer needed TOR to promote its content by publishing children’ sbook s .  Saban accordingly gave licenses to other publishing houses to publish Power Rangers books.  TOR brought action against Saban for breach of contract. TOR then moved for a preliminary injunction, arguing that TOR would suffer irreparable harm in the form of the loss of a unique opportunity if Saban did not license publishing rights to TOR for Power Rangers books.  District court granted  Appealed Rule: Loss of prospective goodwill, if imminent and unquantifiable, may constitute irreparable harm justifying injunctive relief. Irreparable harm exists only where there is a threatened imminent loss that will be very difficult to quantify at trial. Case law provides that there is generally no irreparable harm if an alleged loss of goodwill is extremely doubtful, or if lost profits could be compensated with monetary damages. In contrast, irreparable harm has been found where the viability of a P’ s business has been threatened, or where a plaintiff may suffer substantial losses of sales beyond those of the terminated product.  

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 Problem: The Frustrated Book Publisher: o Should the court grant the preliminary injunction? No, no irreparable harm o We represent the publisher:  Can’ t prove any loss b/c there were other leaks other than Solo  Can’ t prove that we will sell less books  Enforcing a contract-- Traditional test: o Under this one, it would be kind of hard. o Irreparable harm: loss of media coverage  Other side: harm to reputation, disruption of their normal business practices could prove to be fatal o Likely to succeed o Public interest: enforcing the contract—while they have already breached the k, continuing to let them to breach it would be irreparable harm. o We would probably lose on this one.  Smith waited in line for star wars tix  9th circuit approach--Sliding Scale/Alternative test: o P must show either:  (1) there R serious Qs on the merits & the balance of hardships tips decidedly in P’ s favor-------Squishy test  breach of K claim is serious Q on merits b/c breach of K is an actual dispute that would go to trial & it does tip in our favor (ruining our chance of distributing our story at the release time versus them having no real harm here (they didn’ thave rights to this story and didn’ texpect to sell it))  or (2) there is probability of success on the merits & that there is more than a possibility of irreparable harm without the order  strong likelihood of success on the merits (because of the 100% breach of K) so irreparable harm doesn’ thave to be so strong (loss of media coverage, not imminent) (loss of book sales even tho we conceded this one) o other side: needs to be more than a possibility/probability of harm. o Tough when its a1-time thing (do u take them on their word or no) o Smith doesn’ tknow what the answer is  Argue both on exam  (stronger the substantive claim, prelim OK for a weaker irreparable harm)  public interest is also a factor: enforcing contractual rights, discouraging other bookstores from leaking stories  Cassim v. Bowen, including Notes (p. 245) o Facts: HHS suspended Cassim’ s license before a full hearing for performing unnecessary surgery on elderly patients, endangering their health o He was taken off medicare and wanted to be put back on (affirmative)

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He did not want them to publish notice of his suspension in newspaper (negative) RULE: An injured plaintiff may not receive injunctive relief if the balance of hardships resulting from the injunction tips against the plaintiff, even if seriously injured. ANALYSIS: Here, while Cassim faces serious harms, including possible irreparable damage to his reputation even if he is eventually vindicated, the harms that his patients might suffer are even greater. Unnecessary surgery is a serious threat to a patient’ s health. Why was the injury here not speculative?  He had lost some money already from being removed from the role and would continue to do so. With respect to reputation, they were going to publish & the government has this procedure of publishing, since they have this established procedure, this was an imminent threat!

 Problem: The Threatened Landmark (p. 247): passed ordinance to make landmark historical once they got word they were gonna bulldoze it o Traditional test:  Likelihood of success on merits (this is the hurdle here- not as clear as a breach of K)  Movant: More than a mere possibility of success (5%)  Non-movant: that’ s really low  Irreparable harm  Movant: this building is integral part of town’ s identity/cannot be quantified (could cause economic problems), won’ t be able to rebuild it o Why not $ damages? Can’ t predict the losses- speculative & unquantifiable  Non-movant: their harm is minimal at best, they have options to offset thi...