Midterm* Flashcards
1
Q
TYPES OF REMEDIES
A
(1) Compensatory - damages (legal)
(2) Preventative - Injunctions or Declaratory Relief (Equitable)
(3) Restitution - Damages measured by Improper Gain (Equitable)
(4) Punitive - Damages Increased to Punish
(5) Ancillary - Fess, Costs, Writs, Execution, Attachments, Receivers, etc.
(6) Nominal - No actual injury. The claimant was right, but they suffered no real harm.
2
Q
PREVENTATIVE REMEDIES
A
Designed to stop the action before the injury occurs
3
Q
RESTITUTION REMEDIES
A
Restitution focuses on unjust enrichment and awards to P all that D gained at P’s expense.
4
Q
POLICY CONSIDERATION (i.e. ANTITRUST RULE)
A
P must prove:
(1) their injury is the type that the law was designed to prevent; and
(2) which flow from what makes the defendant’s acts unlawful.
There must be a connection between the law that was violated P’s claimed damage/injury
5
Q
SPECIAL CIRCUMSTANCES
A
Additional damages that can be awarded if put on notice
6
Q
RIGHTFUL POSITION
A
The fundamental principle of damages is to put injured parties in the place they would have been but for the wrong of the other party either through:
(1) Substitutionary; or (2) Specific.
7
Q
(1) SUBSTITUTIONARY RELIEF
A
Substitute for what plaintiff lost, typically with dollars. Hard to measure and often inadequate.
8
Q
(2) SPECIFIC RELIEF
A
Restore the specific thing the Plaintiff lost. Some injunctions, specific performance, replevin, tracing.
9
Q
COMPENSATORY DAMAGES
A
Purpose of remedy is to restore the person as nearly as possible to the position they would have been in had the damage not occurred (Hathaley) Sum of money designed to make Plaintiff as well off as s/he would have been if s/he never had been wronged. The damages cannot be speculative, and the Plaintiff must mitigate the damages.
10
Q
TORT BURDEN OF PROVING DAMAGES
A
Tort Plantiff can only recover injuries that flow from natural consequences and are foreseeable.
The plaintiff has the burden of proving their damages with reasonable certainty. Furthermore, in torts proximate cause and cause-in-fact apply. Proximate cause is a policy matter that looks to see if the harm is too remote for liability and cause-in-fact is a but-for approach stating that but for this action, the harm would not have occurred.
11
Q
CONTRACT BURDEN OF PROVING DAMAGES
A
In contract, must have been reasonably foreseeable at the time of K and must be unavoidable. P has duty to mitigate.
12
Q
LESSER OF TWO RULE (MAJORITY)
A
A plaintiff whose PROPERTY has been injured may recover the lesser of diminution in value or replacement cost. It applies even if the property is completely destroyed. It applies in ALL commercial settings. Its only EXCEPTION
may be for specialty properties where replacement cost is considered even if more because the FMV does not fairly compensate.
13
Q
PAST INVASIONS (TORT re: LAND)
A
(1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for
(a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred,
(b) the loss of use of the land, and
(c) discomfort and annoyance to him as an occupant.
(2) If a thing attached to the land but severable from it is damaged, he may at his election recover the loss in value to the thing instead of the damage to the land as a whole.
14
Q
FUTURE INVASION (TORT re: LAND)
A
(1) If one causes continuing or recurrent tortious invasions on the land of another by the maintenance of a structure or acts or operations not on the land of the other and it appears that the invasions will continue indefinitely, the other may at his election recover damages for the future invasions in the same action as that for the past invasions.
(2) If the future invasions would not be enjoined because the defendant’s enterprise is affected with a public interest, the court in its discretion may rule that the plaintiff must recover for both past and future invasions in the single action.
(3) The damages for past and prospective invasions of land include compensation for
(a) the harm caused by invasions prior to the time when the injurious situation became complete and comparatively enduring, and
(b) either the decrease in the value of the land caused by the prospect of the continuance of the invasion measured at the time when the injurious situation became complete and comparatively enduring, or the reasonable cost to the plaintiff of avoiding future invasions.
15
Q
VALUE OF GROWING CROPS
A
Valued as of the time of harvest, even if a litigant can show with some reliability that Plaintiff would have held the harvest for sale at a later time and at a different price.
16
Q
VALUE OF TREES
A
Usually valued at market value. Courts have also awarded the cost of replacement, if not unreasonably excessive.
17
Q
VALUE OF PETS
A
Owner of a pet that is killed can recover only the market value of the pet as property.
If the pet is injured, owner can recover the costs of medical care.
Intentionally killed or injured pet - can recover emotional distress in intentional tort.
18
Q
VALUE OF ANIMALS
A
Plaintiffs are entitled to the market value or replacement cost of the animals at the time of taking plus the use value between the time of the taking and when they should prudently have replaced them. (Hatahley) Generally, loss of use for a damaged property is awarded, but loss of use of a destroyed property is not.
19
Q
FAIR MARKET VALUE (FMV)
A
The value of a thing that is lost or destroyed, measured by the price someone would pay for it in an arm’s length open transaction in the market. This should incorporate loss of rents, loss of use, etc.
*A recent sale is best evidence of FMV, but not conclusive, there is a rebuttable presumption that FMV was purchase price.
20
Q
TIMING FOR MEASURING FMV FOR CONTRACT
A
Because the market value fluctuates, courts measure FMV for contract cases at the time of the breach.
21
Q
TIMING FOR MEASURING FMV FOR TORTS
A
Because the market value fluctuates, courts measure FMV for Tort cases at the time of the wrong
22
Q
SPECIALTY PROPERTY EXCEPTION
A
Test for special property is not whether there are, or were, special unique aspects to the property, but rather whether the use to which the property is put at the time of the tort is a unique use, suitable only to the owner, and without a FMV
Ex: churches, hospitals, clubhouses and spaces held by nonprofit organizations for use as community centers
For special property that has less FMV than its value to Plaintiff, court will allow diversion from FMV (general rule) by using replacement or restoration costs. But those need to be :
(1) Reasonable costs; and
(2) Reasonably Necessary.
23
Q
LOSS OF USE (IRL)
A
Loss of use damages are a form of special tort damages that are measured by either the cost of:
(1) Interest on market value of the property from time of loss to time a prudent plaintiff would have mitigated;
(2) Renting a replacement; or
(3) Lost profits.
Pain and suffering are awarded only allowed in extreme cases and should be individual not common.
NOTE: Loss of use for a damaged property is awarded, but loss of use of a destroyed property is not.
24
Q
MEASURE OF CONTRACT DAMAGES
A
Two basic measure for putting a Plaintiff in the rightful position after a breach of contract:
(1) Expectancy Interest (majority approach);
(2) Reliance Interest (minority approach)
25
EXPECTANCY INTEREST (MAJORITY)
In contract or warranty P gets the "benefit of the bargain". This is the majority approach. It provides the monetary value of the promised performance.
26
RELIANCE INTEREST (MINORITY)
Designed to put the Plaintiff in the position s/he would have been in prior to entering the contract. It is basically out of pocket losses incurred in reliance on a promise.
27
BREACH OF CONTRACT: FAILURE TO PAY MONEY
Where a breach of contract is only for failure to pay money, only the principal plus interest is the proper measure of damages. (Meinrath)
28
LOST VOLUME SELLER
Can recover lost profit on a sale even if they sell the exact item to a second buyer. But for the breach, the seller would have sold twice.
If seller has only ONE type of good to sell and the buyer breaches, seller may recover contract price minus fair market value plus incidental damages. (Neri)
29
WARRANTY ITEMS - CHATLOS RULE
Plaintiffs can recover the difference between the value of the goods as delivered and the value of the goods if they had been as warranted, plus incidental or consequential damages. Even if the contract price was favorable to the customer.
30
CONSEQUENTIAL DAMAGES
Also known as Special Damages are those that
(1) do not flow directly from the breach or wrong but result naturally from the act;
(2) pleaded and proved with reasonable certainty, which means they cannot be speculative;
(3) proximately caused by the wrong in tort or for contract, foreseeable; and
(4) at time of contracting, it was unavoidable; and
(5) subject to mitigation by the injured party.
31
CONSEQUENTIAL DAMAGES EXCLUSIONS
Consequential damages exclusions are available to contracting parties based on:
(1) Freedom of contract; but
(2) Such limitations allow for at least minimum adequate remedies.
Exclusions of consequential damages are not necessarily invalidated when limited contractual remedies fail to satisfy their essential purpose. (Majority)
32
THIRD PARTY INTERFERENCE CONSEQUENTIAL DAMAGES
One who is liable for interference with contract is liable for pecuniary loss of the benefits of the contract plus consequential losses for which interference is a legal cause. (Texaco)
33
MEASURE OF TORT DAMAGES (SMITH RULE)
An action in tort allows recovery only what is lost - proximately caused by the Defendant's wrongful conduct, not the expectancy of what MIGHT have been gained. It can include any legitimate outlay attributable to the fraudulent conduct.
P gets the delta between the promised value and the actual FMV value.
34
INCIDENTAL DAMAGES
Reasonable expenses related to breach including:
(1) Commercially reasonable charges;
(2) Expenses related to cover;
(3) Return, resale, and expenses related to reasonable rejection or stopping delivery of goods.
35
SPECIAL DAMAGES
Economic losses caused by consequences specific to the contract in question. They include BOTH consequential and incidental damages
36
ECONOMIC LOSS DOCTRINE
Bars recovery in tort for strictly economic losses arising from a contract.
37
INTENTIONAL INTERFERENCE
One who is liable for interference with contract is liable for pecuniary loss of the benefits of the contract plus consequential losses for which interference is a legal cause.
38
Avoidable Consequences
Avoidable consequences is a limitation on damages that says P may not recover for those losses she could have avoided by reasonable efforts to mitigate the losses. P has a duty to mitigate damages. Reasonableness is assessed objectively.
39
EMPLOYMENT MITIGATION
Employment plaintiffs have a duty to use reasonable diligence in finding other suitable employment.
40
MEDICAL TREATMENT MITIGATION
Personal injury Plaintiffs cannot refuse reasonable medical treatment that might have mitigated their damages.
41
FINANCIAL INABILITY
Plaintiffs without financial means to mitigate may not be held responsible.
42
INVESTING MITIGATION
Plaintiffs can choose a more secure low-risk investment (the standard is reasonable not next-best)
43
SEAT BELT RULE
Failure to wear a seatbelt is only admissible in a minority of jurisdictions.
44
OFF-SETTING BENEFITS
Claims for lost wages are (reduced) offset by wages in a new position as long as it only accrued as a result of the injury. This ensures that the injured party does not receive double compensation for the same loss.
45
COLLATERAL SOURCE RULE
The general common law rule was that compensation a Plaintiff receives from other sources is not admissible in evidence and does not reduce damages owed by Defendants. (Oden)
But most states (such as NY) have modified this rule by statute to be more limited by:
(1) If a court finds that any such cost or expense will, with reasonable certainty, be replaced or indemnified from any collateral source, it shall reduce the amount of the award by such finding.
(2) There must be a direct link between the item of loss and the collateral source before an offset is made. (Oden)
46
INDIRECT ECONOMIC HARM
Plaintiffs cannot recover for indirect economic harm. (Pruitt)
47
LIMITING THE SCOPE OF LIABILITY
(1) Negligent defendants are only liable for harms that result from the risks that made the actor’s conduct tortious;
(2) An actor is not liable for harm when the tortious aspect of the actor’s conduct was of a type that does not generally increase the risk of that harm
48
PER DIEM ARGUMENTS
Tool of persuasion used by counsel to suggest to the jury how to quantify damages .
The majority allow lump sum arguments based on per diem calculations. However, the Golden Rule argument “put yourself in P’s shoes” is not allowed – too prejudicial.
49
WRONGFUL DEATH
P can always get funeral expenses and compensation for decedent’s loss of income, most jurisdictions also allow “services” such as housekeeping and child rearing. A majority also allows loss of “society” such as love, affection, companionship. A minority also allow for grief and emotional distress. A very few allow loss of life to the decedent themselves
50
EMOTIONAL DAMAGES
ED damages are only available for intentional torts, not recoverable in contract, unless there is an additional showing such a physical injury or where a loved one is witnessed being injured; specific types of negligence are exceptions (false news of death, mishandling of a deceased person, and leaving disgusting foreign matter in a food product).
Emotional distress (ED) damages must not be outside the scope of similar situations and require supporting evidence. However, courts should not consider other verdicts in reviewing a jury’s award in a specific case. Minority rule allows consideration of prior verdicts.
51
SECTION 1983 CLAIM
In order to prevail on a 1983 claim against the D, P must prove:
(1) Defendant acted under color of state law; and
(2) Defendant's actions or lack thereof was prejudicial towards Plaintiff.
But, P does not recover damages merely for violation of a Constitutional right. P must show proof of actual compensable injuries and get a jury to measure those damages. (Carey)
If there is no compensable injury, at most, P will receive nominal damages, which is around $1.
52
REMITTITUR
The appellate court gives the prevailing party the choice of a reduction in the amount of the judgment or a new trial (distinguished from the remittitur in CA court of Appeal)
53
ADDITTUR (MINORITY)
The appellate court gives the option to defendant of a new trial or an increase in damages.
54
PUNITIVE DAMAGES
Punitive Damages are retribution for past misdeeds, deterrence against future wrongdoing, and compensation for intangible injuries.
Punitive damages are intended to punish D and deter both the D and others. Punitive damages are generally unavailable in breach of contract actions, however they become available if the breach of contract is accompanied by a related tort, like fraud. The standard of culpability for punitive damages varies, but courts use terms like willful, wanton, reckless disregard for safety of others, and despicable (CA). The burden of proof is often more than preponderance and in California it is clear and convincing evidence.
55
Appellate Review re: Punitive Damages
Upon Appellate Review, sparingly used, tested at time of execution, balanced between substantive and procedural:
(1) Substantive factors: Focus on whether the award is “grossly excessive,” the guideposts for which are: (1) degree of reprehensibility, (2) ratio of compensatory to punitives, and (3) sanctions for comparable misconduct.
(2) Procedural factors: Focus on whether Defendants are being punished for injury to absent Plaintiffs without process to challenge their individual harms.
56
TORT or CONTRACT CLAIM?
Good lawyers → convert contract breach to a tort to obtain both non-economic damages and punitive damages for an independent tort committed in contractual setting.
57
RATIO RULE
A few awards exceeding a single digit ratio will satisfy due process. Practically speaking this has been interpreted as a 1:10 ratio upper limit.
In federal court (maritime law, bankruptcy) the reasonable limit of punitive to compensatory is 1:1. (Exxon)
58
CA PUNITIVE DAMAGES
There must be “willful and conscious disregard of the rights and safety of others.”
59
APPELLATE REVIEW
Constitutional review of punitive damages awards are reviewed de novo (again); at common law it is for abuse of discretion, the standard of view for a new trial or refusal to grant a new trial.
60
CA VICARIOUS LIABILITY STANDARD
P must show the employee exercised substantial discretionary authority over significant aspects of a corporation’s business.
- (Majority) Require managerial employees to have been implicated in the outrageous conduct
- (Minority) Regular respondeat superior (“course and scope of employment”)
NOTE: CA requires plaintiff to show defendant’s net worth.
61
Dignitary Torts
A dignitary tort is a type of intentional tort in which an action causes another person’s reputation or “honor” harm. They include assault, false imprisonment, malicious prosecution, IIED, defamation, invasion of privacy, and offensive (but not physically harmful) battery. These types of torts present valuation problems comparable to those of pain and suffering. For these types of torts, there is no set amount of damages.
62
PROCEDURAL DUE PROCESS CHALLENGES TO PUNITIVE DAMAGES
Procedural due process prohibits evidence of injury to non-parties as grounds for measuring increases to punitive damages, but it is admissible to show degree of reprehensibility. (Williams)
63
SUBSTANTIVE DUE PROCESS CHALLENGES TO PUNITIVE DAMAGES
Focus on whether the award is grossly excessive, and wields the three-part guideposts (BMW)
64
BMW v. GORE TEST
(1) Degree of reprehensibility;
- Did D have indifference or reckless disregard for the health/safety of others? Was conduct repeated or an isolated event?
(2) Ratio of compensatory to punitive; and
- Ratio should not exceed 1:10; federal matter - 1:1
(3) Sanctions for comparable misconduct
- Is there a related criminal or civil penalty?
65
RULES OF UNCONSCIONABILITY
A Court may deny equitable relief on grounds of conscience or debt relief when a bargain is unconscionable.
(1) Substantive factors include cost-price disparity; denial of basic rights or remedies; penalty clauses; inconspicuous disadvantageous clauses (difficult to notice or understand); confusing phrasing for disadvantageous clauses; overall imbalance in the rights of the parties.
(2) Procedural factors include inequality of bargaining power, exploitation of underprivileged or uneducated; contracts of adhesion (one party has significantly more bargaining power than the other); circumstances of its execution.
66
LIQUIDATED DAMAGES CLAUSE (MAJORITY)
Freedom of contract in absence of unconscionability, parties may specify in the contract itself the amount of damages to be paid in the event of a breach.
Liquidated damages clauses are only enforceable if:
(1) the fixed amount is a reasonable forecast of just compensation for harm caused by breach; and
(2) the harm is incapable or very difficult to accurately estimate. (Test at time of contract)
Exclusions of liquidated damages or use of repair/return warranties are not necessarily invalidated when limited contractual remedies fail to satisfy their essential purpose.
67
PRESENT VALUE
Intended to acknowledge that the use of your money in today's dollars has value itself. Getting money sooner presumably allows greater flexibility, the ability to invest, and a measure of certainty.
68
MEASURE OF LOST PROFITS BY JURY
(1) A jury may make a just and reasonable estimate of damages based on available relevant data as long as it is not speculative;
(2) Juries can act on probabilities and inference as well as direct and probable proof.
The wrongdoer should bear the burden of the uncertainty his own wrong has created. Courts should try to find a way to award damages if a wrong has been done
69
TORT REFORM
Ways of limiting the amount of tort judgments:
(1) Limit recovery for non economic damages or total damages
(2) Limit or abolish the collateral source rule
(3) Limit or abolish punitive damages
(4) Provide that judgments be paid out over time
(5) Limit or abolish joint and several liability
(6) Fee shifting (liability for frivolous lawsuits)
(7) Limit rates for contingency fee agreements
(8) Shorten statutes of limitation or accelerate when they would run
70
Ways of invalidating these Tort “reform” statutes:
(1) right to jury trial;
(2) open courts/right to remedy;
(3) due process;
(4) equal protection;
(5) separation of powers.
71
TORT DAMAGES
(1) In torts, putting P in their rightful position means making the P whole. In other words, putting the P back to the position they were in before the harm.
(2) Special damages are out of pocket losses and general damages are pain and suffering. (3) The P has the burden of proving their damages w/ reasonable certainty.
(4) In tort consequential damages apply proximate cause and cause in fact.
- Proximate cause is a policy matter that looks to see if the harm is too remote for liability; and
- Cause-in-fact is a but-for approach stating that but for this action, the harm would not have occurred.
72
INJUNCTIONS
Injunctions are court orders to do or not do something. They can be:
(1) temporary,
(2) preliminary, or
(3) permanent.
Plaintiffs must show that the threatened injury is likely and imminent (ripe); e.g., real danger the acts to be enjoined will occur (i.e., “a substantial or realistic threat”).
*Must be more than an injury that is remote or speculative.
73
NATIONWIDE INJUNCTIONS
Nationwide injunctions against unlawful conduct must be based on a policy or practice which extends beyond the specific plaintiff or location at issue. Nationwide injunctions are controversial and subject to constitutional attack.
74
Sex Discrimination Injunctions
Injunctions must closely fit the constitutional violation; shaped to put persons in the position they would have been in in the absence of discrimination. Such injunctions should try to eliminate the discriminatory effects of the past while also barring like discrimination in the future.
75
PROPHYLACTIC INJUNCTION
Uniquely restricts legal conduct that is affiliated with, but distinct from, the illegal wrong
76
ORDER GRANTING INJUNCTIONS MUST
(1) State the reasons why it issued
(2) State its terms specifically; and
(3) Describe in reasonable detail—not by referring to the complaint or other document—the act or acts restrained or required.
77
(3) KINDS OF CONTEMPT
(1) Criminal Contempt;
(2) Civil Coercive;
(3) Civil Compensatory
78
CRIMINAL CONTEMPT
Criminal contempt is a crime. Criminal punishment for a past offense. In CA, punishable by up to 6-months in county jail, 3 years of informal probation and a fine of $1000. (fines payable to the gov't)
- It requires a jury trial and conviction beyond a reasonable doubt; clear and convincing evidence in CA.
79
CIVIL COERCIVE
- Civil Coercive contempt are penalties designed to compel future compliance with a court order. These are conditional penalties. Accruing per diem fines are coercive civil.
- They can be imposed with notice and an opportunity to be heard; do not require jury trial but may require proof beyond a reasonable doubt.
-Fines payable to the party require proof of damages.
80
CIVIL COMPENSATORY
When an injunction is violated damages may still be inadequate but they are better than nothing. (Note that California does not permit civil compensatory contempt).
-They can be imposed with notice and an opportunity to be heard; do not require jury trial or proof beyond a reasonable doubt (but may have heightened burden such as clear and convincing).
- Is designed to compensate an aggrieved party for injury resulting from a violation of a court order.
81
PRELIMINARY INJUNCTIONS
The basic rule for a preliminary injunction requires that a plaintiff show:
(1) The likelihood of success on the merits.
(2) That the P will suffer irreparable harm in the absence of an injunction
(3) That the balance of equities tips in P’s favor; and
(4) That an injunction is in the public interest.* (Not applicable in CA)
82
TEMPORARY RESTRAINING ORDERS
(1) The likelihood of success on the merits.
(2) That the P will suffer irreparable harm in the absence of an injunction
(3) That the balance of equities tips in P’s favor; and
(4) That an injunction is in the public interest.* (not applicable in CA)
However, TROs under Rule 65(b)(1) The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
(1) Specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(2) Movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
83
PERMANENT INJUNCTION RULES
Federal Court Permanent Injunction Rule:
Plaintiff must show that:
(1) S/he has suffered an irreparable injury;
(2) There is no adequate legal remedy;
(3) The equities favor the moving party; and
(4) The public interest is better served by a permanent injunction.
California Permanent Injunction Rule: the plaintiff must prove:
(1) the elements of a cause of action involving the wrongful act sought to be enjoined and (2) the grounds for equitable relief.
Prove means at trial/summary judgment. Equitable relief means satisfying our standard:
* To get equitable relief the injury cannot be compensated by a legal remedy, usually money.
* Compensation may be inadequate not only if it is impossible but also where it is impractical or immeasurable.
* A legal remedy is adequate if it is as complete, practical, and efficient as the equitable remedy.
In NEW YORK: to get a permanent injunction a plaintiff must show:
(1) that there was a violation of a right presently occurring, or threatened and imminent;
(2) that he or she has no adequate remedy at law;
(3) that serious and irreparable harm will result absent the injunction; and
(4) that the equities are balanced in his or her favor”). - just need to know it's different in NY.
84
IRREPARABLE INJURY
Irreparable harm does not mean catastrophic; it only means harm which cannot be compensated at law. It can be established not only where damages are completely inadequate, but also where they are extremely difficult or impossible to measure.
85
MODIFYING INJUNCTIONS
A permanent injunction is a final judgment on the merits and may only be modified under Federal law where applying it prospectively is no longer equitable. See FRCP 60(b)(5).
86
CONSENT DECREES
A consent decree is an injunction entered into by consent of the parties, arising out of a settlement. Its meaning must derive from the decree itself and not parol evidence. The power for the decree comes from the underlying law not from the parties’ acquiescence.
87
MODIFYING CONSENT DECREES
A party seeking modification of a consent decree must establish:
(1) Significant change in facts or law warrants revision of the decree; and
(2) Proposed modification is suitably tailored to the changed circumstance.
Such changes had to be unforeseen but not unforeseeable. A significant change is where the precedents on which the prior consent decree relied are seriously undermined or eroded, but only the Supreme Court can make those determinations for its own decisions.
88
DOUBLE RECOVERY
If an injunction would replicate the measure of damages, it is a double recovery. Not allowed.
89
MOOTNESS AND RIPENESS RULES
A case is moot if no reasonable expectation that the wrong will be repeated.
A case is ripe if there is imminent danger.
The initial burden of showing the need for an injunction is plaintiff’s. The burden to show the injunction is no longer needed (because it is moot) is defendant’s and it is a “heavy” burden.
Mootness and Ripeness are doctrines of justiciability, which means that a Court may decline to exercise jurisdiction even where it might otherwise have subject matter jurisdiction because as a prudential matter the case does not satisfy the “cases” and “controversies” requirements.
Mootness and ripeness as they pertain to an injunction is different in that they concern where the relief sought was rendered moot or not yet ripe, not whether the court should act on the case.
90
REPLEVIN
Enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses.
91
SPECIFIC PERFORMANCE
To determine whether legal damages are adequate, ask whether damages would be:
(1) reasonably complete (fully compensating);
(2) practical (payable); and
(3) efficient (low transaction cost).
This test is applicable to all equitable remedies and must fail before you can award specific performance, an injunction, or another equitable remedy.
92
SPECIFIC PERFORMANCE OF A CONTRACT FOR THE DELIVERY OF GOODS
Specific performance is available where:
(1) ongoing supervision is unnecessary,
(2) the specific goods are unavailable,
(3) plaintiff contracted for the goods ahead of time, and
(4) plaintiff’s reputation is at issue.
93
SPECIFIC PERFORMANCE RE SALE OF ORDINARY GOODS
Specific performance may be available for the sale of ordinary goods if:
(1) scarcity,
(2) time constraints, or
(3) sheer size of the contract make it difficult or impossible to cover.
Examples:
* Grapes are a unique perishable product with no market substitute
* Gravel supplies may be required
* Jet fuel where cover would cause chaos and irreparable damage
* Tomatoes, where the canning facility was only able to operate for six weeks
94
GOVERNMENTAL IMMUNITY
The government is immune from suit unless it waives immunity. When it waives immunity, it does so by statute and can limit or expand its immunity accordingly. This immunity concerns damages—in the right equitable circumstances the government can be enjoined.
95
THE PUBLIC DUTY DOCTRINE
Bars state negligence actions against government entities absent a special relationship or special duty.
Use this as a defense only in state sovereign immunity situations.
96
FEDERAL TORT CLAIMS ACT (FTCA)
Makes the government liable for non-intentional torts committed by government actors within the scope of their employment, which are non-discretionary. The public duty doctrine does not apply to the FTCA.
97
ABSOLUTE IMMUNITY
Protects from damage actions against prosecutors, judges, legislators and the President, as well as those individuals supervised by each of those categories unless they act ultra vires.
98
QUALIFIED IMMUNITY
Protects government actors from liability for damages unless they (1) knowingly violated a clearly established constitutional right.
99
BIVENS ACTIONS
Individuals can bring Bivens actions for damages against the government for violation of 4th Amendment rights (protects people from unreasonable searches and seizures by the government), 8th amendment (cruel and unusual punishment, Equal Protection.
However, Bivens does not overcome AI or QI; so any analysis of a government employee violating a constitutional right still requires an AI or QI analysis.
100
DECLARATORY JUDGMENT
A binding judgment from a court defining the legal relationship between parties and their rights, providing an immediate means to resolve uncertainty as to the legal obligations or rights between two parties.
- Must resolve an actual controversy, not speculative (ripeness) (WALLACE).
- IIR does not apply to DJ (WALLACE).
101
REFORMATION
Reformation is available when there is a mutual mistake, but also by some fraud, trick, or artifice, and the writing does not reflect the party’s mutual agreement. The Court may change the terms of the written contract to match what it should have been.
102
RESCISSION
If there was no meeting of the minds and no mutual asset and mutual mistake, the Court may rescind the contract and restore the parties to the place they would have been without ever entering into the contract.
103
INTELLECTUAL PROPERTY REMEDIES
(1) Trademark
(2) Copyright
(3) Patent
(4) Trade secrets
104
TRADEMARK
Infringers are liable for all their profits but the court may award more or less; a counterfeit mark may result in high amounts of statutory damages.
105
COPYRIGHT
Infringers are liable for damages plus profits not already accounted for in damages; Ps can waive actual damages and seek statutory damages.
106
PATENT
Infringers liable only for damages but no less than a reasonable royalty.
107
TRADE SECRETS
Infringer liable for actual loss caused by misappropriation plus unjust enrichment not covered.
NOTE: An injunction against misuse of trade secrets should last only until a trade secret is no longer secret, and a reasonable time thereafter to eliminate unfair commercial advantage.
108
UNJUST ENRICHMENT (LAND)
Unjust enrichment is appropriate when a mistaken party’s improvement increases the value to the landowner.
109
THE BUY-SELL REMEDY
The Court sets the value on the land and the improvements and offers the option to the landowner to decide whether to sell or whether to pay.
110
CONSTRUCTIVE TRUST
If P can trace property D wrongfully took through direct exchanges, P can get a constructive trust over the property, which allow a party to regain property that was wrongfully taken by another person who was not justly entitled to it.
This equitable remedy is unavailable if there is an adequate legal remedy.
111
Accounting of Profit
Requires Defendant to account for all the profits s/he made from the unjust enrichment.
112
Quasi-Contract
Quasi-contracts are unwritten obligations imposed by law.
113
EQUITABLE LIEN
Provides Plaintiff priority over other creditors and protects them against losses in value of the property
(depreciation) because once the property is sold, P will be first in line.
Equitable Lien = Amount of debt owed to Plaintiff from the unjust enrichment gained by Defendant
114
RESTITUTION
A person who is UNJUSTLY ENRICHED at the expense of another is subject to liability in RESTITUTION. A person is not permitted to profit by his own wrong.
115
AFFIRMATIVE DEFENSES AGAINST RESTITUTION
The affirmative defenses of contributory negligence or comparative fault alleged in a conclusory manner do not constitute a defense because lack of care does not diminish the right of restitution.
116
UNJUST ENRICHMENT AND DAMAGES
The majority rule is that plaintiffs can theoretically get both unjust enrichment and damages as long as they are not for the same conduct.
117
INNOCENT RECIPIENTS
Innocent recipients have to return the benefit received, but nothing more.
* The mistaken payor (Sauer)
* The mistaken improver (Somerville)
* The unmarried cohabitant (Bonina)
* The emergency beneficiary
118
(4) measures of restitution that may apply for innocent recipients:
(1) Cost to the plaintiff in providing the benefit
(2) (value in) Advancing the purposes of the defendant” (typically the increase in the value of D’s property due to the benefit)
(3) Market value of the benefit conferred
(4) Price the defendant agreed to pay if there was a deal
Which we choose depends on the facts of the individual case—and the judge has a great deal of discretion. Two issues that you will see come up in those cases are:
(1) Availability and ease of proof
(2) Relative culpability of the parties
119
INTENTIONAL WRONGDOERS
Wrongdoers are those who commit intentional torts, or some misconduct, including but not limited to fraud, duress, infringement*, intentional interference, etc. Conscious wrongdoing means knowledge of the underlying wrong. But some strict liability "intentional torts" may be innocent (except copyright infringement*).
120
Measures of restitution for Intentional Wrongdoers:
Where damages would be non-existent or far less than the amount by which a defendant is unjustly enriched, P can receive the greater of the benefit:
(1) How much the defendant profited; or
(2) Value of the fair market rental or purchase of the property.
121
INTERMEDIATE WRONGDOERS
There is another category for not merely negligent but also not satisfying an intentional tort. These intermediate wrongdoers are substantially responsible for their own enrichment because their negligence or breach was a significant cause of their enrichment. Between negligence and intent, awareness and knowledge of the mistake is the key.
122
EQUITABLE DEFENSES
(1) PARI DELICTO (Equal at fault);
(2) UNCLEAN HANDS;
(3) EQUITABLE ESTOPPEL;
(4) LACHES;
(5) WAIVER;
(6) UNCONSCIONABILITY
(7) CHANGE IN POSITION
123
PARI DELICTO (Equal at fault)
Only available where as a :
(1) Direct result of P's actions, P bears at least substantially equal responsibility for the violations he seeks to redress; and
(2) Preclusion of suit would not significantly interfere with the effective enforcement of a particular statutory or regulatory scheme *public law*.
Use the specific rule Pari Delicto if you see a specific wrongdoing that violates a particular statutory or regulatory scheme *public law*.
124
UNCLEAN HANDS
Any wrongful conduct that relates to the underlying transaction.
An equitable defense that comes from equitable maxim and is broadly.
125
EQUITABLE ESTOPPEL
(1) An act or a statement;
(2) inconsistent with a later-asserted right that is;
(3) reasonably relied upon;
(4) to the detriment of the other party.
126
LACHES
(1) Unreasonable delay and (2) prejudice.
* To determine whether the delay is unreasonable, courts consider:
(1) justification for the delay;
(2) the extent of plaintiff’s advanced warning for the basis of its challenge; and
(3) whether plaintiff exercised diligence in pursuing its claim(s).
* To determine prejudice to defendant, courts consider prejudice from the delay in bringing the suit not from the suit itself.
127
WAIVER
(1) Knowledge of an unchallenged breach renders the non-breaching party unable to later claim damages for that breach. (In that regard, it is more broadly);
(2) the intentional relinquishment of a known right.
128
UNCONSCIONABILITY
Sparingly used, tested at time of execution, balanced between sub + proc.
Substantive factors:
(1) cost-price disparity;
(2) denial of basic rights or remedies; [fundamental unfairness]
(3) penalty clauses;
(4) inconspicuous disadvantageous clauses; (5) confusing phrasing for disadvantageous clauses;
(6) overall imbalance in the rights of the parties [unfair provisions].
Procedural factors:
(1) inequality of bargaining power;
(2) exploitation of underprivileged or uneducated;
(3) contracts of adhesion;
(4) circumstances of its execution.
129
CHANGE IN POSITION
A defense to a claim in unjust enrichment which asserts that the defendant is no longer enriched by the benefit transferred to it by the plaintiff because the funds have been expended in a way that cannot be easily reversed without causing detriment to the defendant.
130
COLLECTION AND SATISFYING JUDGMENTS
(1) Real property judgments - obtained through court orders like injunctions or declaratory judgments, recorded and used for conveyance enforcement.
(2) Money judgments - satisfied via payment or execution methods including seizure and sale of property or creditor proves entitlement to direct payment from wages or bank accounts.
- Debtors can halt the process through payment, bankruptcy, or appeal with a bond. Bankruptcy rules may not override state exemptions.
- Winning a trial doesn't conclude the case; settlement remains a viable option, altering leverage dynamics.
131
ATTORNEY’S FEES AUTHORIZED
Attorneys’ fees awards are collateral and not merged into the final judgment, so it requires a separate notice of appeal.
Section 1717 allows recovery of attorney fees to the prevailing party.
Prevailing party - Party seeking a net monetary recovery. i.e. an injunction.
132
LODESTAR METHOD
The number of hours reasonably expended multiplied by a reasonable hourly rate. (Reasonable hours times the reasonable rate)
133
CALCULATING ATTORNEY’S FEES AND COSTS
For the rate, look at a the hourly rate for lawyers with comparable skills and experience.
For the hours, trial courts have vast leeway and approach it differently. The casebook criticizes gross adjustments even though that’s by far the most common way it’s handled in complex cases owing to the massive degree of work involved in reviewing years worth of attorney billing records.
Contingency based representations - Must show evidence to show their entitlement to fees; so it's important to keep track and document your hours and work.
Most federal and state cases allow the recovery of costs, the fee petition is followed by defendant’s “motion to tax costs,” which is their objection to the fee petition/motion. Costs include filing fees, printing costs, interpreters, costs for a record on appeal or other transcripts, regular witness fees or mileage (all generally minor) but also deposition costs, expert witness costs, Electronically Stored Documents costs (sometimes quite significant).
134
CASE VALUATION
Most defendants are unlikely to settle unless the cost of the predicted judgment, discounted by its probability, plus the transaction costs of further litigation, are greater than the cost of the settlement package
Maximum Recovery (M) x
Percentage chance of prevailing (P) -
(cost of litigation + cost of countersuit likewise discounted) (C) x
Time value of money overestimate time to collect PVT =
Actual Case Value (X)
M(P) - C(PVT) = X
135
INDEMNITY CLAUSE
One party commits to compensate another party for any prospective loss or damage.
136
Fees Act Section 1988
The right of legal practitioners to sue for their fees and their liabilities to be sued in respect of negligence in the discharge of their professional duties
137
Attorney Fee Waivers
(1) A lawyer must inform the client of a fee-waiver settlement offer and consummate the settlement in accordance with the client’s wishes even if it reduces the likelihood of recovering some or all of his or her fees.
(2) A lawyer does not violate any ethical obligation by recommending or conveying a fee-waiver settlement offer in a given case or in cases generally.
138
QUIET TITLE
Requires a showing that the Plaintiff:
(1) has no adequate remedy at all;
(2) was in rightful possession of the property in question; and
(3) defendant’s adverse claim injured P's title.
139
Prison Litigation Reform Act of 1995 (PLRA)
To issue remedial orders by district court to reduce prison populations. A three-judge court must find:
(1) District court must have attempted “less intrusive relief” that failed to remedy the violations and must give the D “reasonable time to comply with its prior orders.”
(2) Three-judge panel must find by clear and convincing evidence that “crowding” is the primary cause of the violation of a federal right, and no other relief will remedy the violations
(3) Relief must be narrowly drawn, extending no further than necessary and is the least intrusive means of correcting the violation.
(4) The Court must give “substantial weight to any adverse impact on public safety”.
(1) Reasonable time to comply and District Court attempted less intrusive relief;
(2) Clear and convincing evidence;
(3) Least Intrusive means;
(4) Public Safety
140
INJUNCTION ON BOND (SURETY)
Should be adequate to compensate an enjoined party for its costs, damages, and reasonable attorneys’ fees in the event it is found to have been wrongfully enjoined or restrained. DeVos.
141
Quasi-Contract
Type of restitution - Fictional theory that implies a contract at law as a basis for awarding monetary relief.
142
Quantum Meruit
Type of restitution - Recovery for the value of Plaintiff's services unjustly conferred upon the Defendant.
