Basic equity principles/ tort equities Flashcards Preview

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Flashcards in Basic equity principles/ tort equities Deck (53):
1

Elvis Is Really Fucking Dead (basic principles of equity)

1) Extraordinary: usually just money damages
2) Inadquacy: remedy at law (money) damages not adequate
3) Remedial: remedies to P
4) Feaseable: court has to be able to enforce it
5) Discretionary: judges complete discretion to issue or not (no right or wrong answer usually)

2

3 tort remedies

1) injunctive relief
2) constructive trusts
3) equitable liens

3

permanent injunction memorizer

I Put Five Bucks Down
1) I-inadequate remedy at law
2) P-protectable interest
3) F-feasibility of enforcement
4) B-Balancing of hardship
5) D-Defenses

4

different types of injunction relief

1) mandatory= injunction orders D to do something
2) prohibitive- injunction orders a D not to do something

5

timing preliminary injunction

BEFORE a full trial on the merits

6

timing for permanent injunction

AFTER a full trial on the merits

7

preliminary injunction relief test

1) P must establish that injury is irreparable
2) P must establish that they are likely to succeed on the merits

8

perliminary injunction relief test for irreparable injury

must show that they will incur irreparable injury WHILE WAITING FOR A FULL TRIAL ON THE MERITS- and that is why he or she needs relief NOW

9

what does a preliminary injunction really do

just preserve the status quo

10

what must the court do when a preliminary injunction is granted but may later be held invalid

court should impose AN INJUNCTION BOND to assure that D can be compensated for any losses in the event that the P is ultimately unsuccessful on the merits

11

TRO temorary restraining order

-like preliminary injunction, x/c that it is issued BEFORE a hearing to determine w/e preliminary injunction should issue

1) IRREPARABLE INJURY must likely to occur BEFORE a preliminary injunction could be scheduled

2) the hearing for a TRO may be held EX PARTE (meaning that notice to the D's is not always required, if can show that just the notice of hearing would cause harm)

IL TRO: only 10 days
Fed TRO: only 14 days

12

IL time frame for TRO

10 days

13

Fed time frame for TRO

14 days

14

how many parts are in test for permanent injunction and who has to prove which parts

5 part test
- P first 3
- D last 2

15

5 part test for Permanent Injunction (I Put Five Bucks Down, I Play First Base Dummy)

1) Inadequate remedy at law
2) Protectible Interest
3) Feasibility of Enforcement
4) Balancing of Hardships
5) Defenses

16

Inadequate remedy at law for permanent injunctions test

P must establish that money damages are inadequate

17

4 common grounds for inadequacy remedy at law for permanent injunction

1) IRREPARABLE HARM (harm cannot be fixed by $)
- fact that strongly leans in favor in direction of irreparability is uniqueness

2) SPECULATIVE HARM (damages are not certain)
- Ex: IP violation

3) CONTINUING/ ON GOING HARM (an injunction is necessary to prevent a multiplicity of actions)

4) INSOLVENCY: (d is insolvent)

18

part 2 of permanent injunction test (Protectible Interest)

P must articulate A VALID INTEREST that would be protected by injunction
- will always be applied
- historically used to only be property interest but not so much any more

19

part 3 of permanent injunction test (Feasibility of Enforcement)

P must establish that it is feasible to enforce the injunction

2 Dimensions of feasibility
1) POWER OF FEASIBILITY: equity acts either "on the person" or in Rem, and equity decrees are usually enforced through contempt. Therefore, for an equitable remedy to be feasible there generally must be present in forum EITHER

(a) defendant or
(b) subject of injunction (in rem)

2) ADMINISTRATE FEASIBILITY: compliance with an equitable decree MUST BE MONITORED by the
judge. This may be hard when equity remedies involve

(a) a COMPLEX act involving SKILL or TASTE
(b) A series of acts over a period of time

20

part 3 test of permanent injunction (feasability of enforcement- (a) power of feasibility

1) POWER OF FEASIBILITY: equity acts either "on the person" or in Rem, and equity decrees are usually enforced through contempt. Therefore, for an equitable remedy to be feasible there generally must be present in forum EITHER

(a) defendant or
(b) subject of injunction (in rem)

21

part 3 test of permanent injunction (feasability of enforcement- (b) administrative feasibility

2) ADMINISTRATE FEASIBILITY: compliance with an equitable decree MUST BE MONITORED by the
judge. This may be hard when equity remedies involve

(a) a COMPLEX act involving SKILL or TASTE
(b) A series of acts over a period of time

22

part 4 test for permanent injunction ( Balancing of hardships -burden) on d

GR: equity will decline to enter an injunction if the BURDEN to the D substantially outweighs the BENEFIT to the plaintiff

Nuance 1: balancing of hardships affects the REMEDY, but it does not mean wrong has not occurred. Therefore, if balance is against the D just award P money damages.

Nuance 2: court will occasional consider the burden to the public.

23

x/c to part 4 test for permanent injunction (balancing of hardships)

a court will not balance hardships if the D's conduct was WILLFUL

24

what if the the balance of hardship is great on the D and the benefits slight to P

do not issue injunction, just award money damages

25

part 5 of permanent injunction (defenses)

1) unclean hands
GR: court will refrain from granting equitable relief if the P has engaged in bad conduct

- in order to bar equitable relief, the improper conduct must be RELATED to the lawsuit

2) latches:
court will refrain from granting equitable relief if sought after an UNREASONABLE DELAY by the P

3) free speech:
- if tort is defamation or a privacy tort, should be denied based on constitutional free speech.

26

for defense of unclean hands does the bad conduct have to relate to the lawsuit

YES

27

defense of latches

court will refrain from granting equitable relief if sought after an UNREASONABLE DELAY by the P

- clock starts to run when the P KNOWS of the injury. After that point, the delay is too long if it is both
(a) UNREASONABLE and
(b) PREJUDICIAL
- if SOL has expired, then prejudice is generally assumed

28

time frame for defense of latches

1) clock starts to run when the P KNOWS of the injury . after that point, the delay is too long if it is BOTH
(2) UNREASONABLE and
(3) PREJUDICIAL.

29

what is the presumption of SOL expired for defense of latches

if SOL has expired, then prejudice is generally assumed

30

availability of injunction relief (usually available)

1) continuous trespass to land

2) conversion of unique chattel

3) prevent the continuation of a wrongfully instituted suit
(a) if the forum state, if MALICIOUS AND UNFOUNDED
(b) in another state, if based on WRONGFULLY OBTAINED JURISDICTION

- injunction runs against parties NOT COURTS. So there may be a feasibility problem here that would prevent the issuance of injunction

31

availability of injunction relief (sometimes available)

1) to eliminate a PRIVATE nuisance but a public nuisance is a legislative matter

2) to prevent destructive or permissive waste
x/c will generally not enjoin ALMELATIVE waste (when benefits land)

3) to prevent enforcement of a judgment obtained by EXTRINISIC fraud (bribing judge)

4) to prevent INDUCEMENT of BREACH OF K and/or refusal to deal, unless the D is privileged
- allow healthy competitive behavior

5) to prevent actual or threatened misappropriation of a trade secrete, trade name or trade mark
- injunction can be against either wrongful use or the wrongful taker

32

where injunctions usually not available

free speech shit
1) defamation
2) trade liable
3) invasion of privacy

33

once again the general memorizer for permanent injunction I PUT FIVE BUCKS DOWN

I PUT FIVE BUCKS DOWN
1) I: inadequate remedy at law
2) P: Protectible interest
3) F: Feasibility of enforcement
4) B: Balancing of hardships
5) D: Defenses

34

what does equitable lien really do

do not have to wait in lien to enforce lien, b/c the property is not of the D's but is the P's so P becomes first in line of that property. Good for lot of creditors and when D is insolvent

35

2 factual predicates necessary for either constructive trust and equitable liens

1) Improperly acquired property to which
2) D has title

36

what does constructive trust do

D is forced to RETURN the property

37

what does equitable lien do

D is forced to SELL the property. P receives the proceeds of sale, up to the fair market value of property when it was taken. If the proceeds are less than value, P also receives a deficiency judgment for the balance

38

proceeds of equitable lien

. P receives the proceeds of sale, up to the fair market value of property when it was taken. If the proceeds are less than value, P also receives a deficiency judgment for the balance

39

availability of constructive trusts and equitable liens

available when the alternative legal remedy is INADEQUATE.
- biggest reason in insolvency
- for CONSTRUCTIVE TRUSTS: another reason is uniqueness of the property

40

is tracing allowed for constructive trusts and equitable liens

YES. remedy may be directed at property that is different than from the property acquired.

41

x/c for when tracing not allowed for equitable liens

BFP
1) for value.
2) W/O notice/ knowledge will prevail over the P

42

when to choose a constructive trust

if the value subsequent to taking goes UP
- D forced to return
- No adequate remedy at law at most courts
- where the wrongdoer gives the procceeds of wrongfully obtained property as a gift.

43

when to choose an equitable lien

if the value of the subsequent taking goes DOWN
- can get a deficiency judgment and at least get something
- No adequate remedy at law by most courts

- particularly appropriate where the P's property was used to improve property already owned by the D.

44

if an injunction is clearly constitutional must it still be complied with

YES. An enjoyed party must obey the injunction until it has been vacated, modified, or overturned. This is true even if violation of first amendment.

45

what is the proper recourse for challenging an unconstitutional injunction

to seek an expedited appeal.

46

what is party violates a clearly constitutional injunction

the court can hold the party in court of contempt of court.
Punishment may be a fine or imprisonment or both

47

who are the only people bound by an injunction

Only those parties named or otherwise identified in an injunction are bound by the injunction.

48

may a person be held in contempt for violating an injunction if they had no knowledge or notice of injunction

NO. a person may not be held in contempt for violating an injunction unless he acted with some form of notice that the injunction was issued

49

can agents and employees of the named parties and third parties acting in concert or collusion with parties named in an injunction be held in contempt of injunction

Yes, BUT ONLY IF those persons receive actual notice of the injunction by service or otherwise.
- A person may not be held in contempt for violating an injunction unless he acted with some form of notice that the injunction was issued.

50

what are the 2 ways to enforce injunction by contempt

1) criminal: seeks to punish
2) civil: coerce compliance

51

what if a contempt charge is criminal what must happen

the alleged contemnor is entitled to all protections afforded other criminal D's including
1) the right to proof of guilt beyond a reasonable doubt and
2) a jury trial IF appropriate.

52

when is a defendant have a right to jury trial in criminal case

IL: D is entitled to a jury trial if the penalty exceeds 6 months incarceration or $500.

53

when is person being held in contempt argue that contempt citations do not give them adequate criminal procedures at the contempt proceedings

when it is criminal contempt: court seeks to punish
1) alleged contemnor is entitled to
(a) all of the protections afforded other criminal defendants,
(b) including the right to proof of guilt beyond a reasonable doubt and
(c) a jury trial IF appropriate.