Basic equity principles/ tort equities

Question 1

Elvis Is Really Fucking Dead (basic principles of equity)

Answer 1

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)

Question 2

3 tort remedies

Answer 2

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

Question 3

permanent injunction memorizer

Answer 3

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

Question 4

different types of injunction relief

Answer 4

1) mandatory= injunction orders D to do something

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

Question 5

timing preliminary injunction

Answer 5

BEFORE a full trial on the merits

Question 6

timing for permanent injunction

Answer 6

AFTER a full trial on the merits

Question 7

preliminary injunction relief test

Answer 7

1) P must establish that injury is irreparable

2) P must establish that they are likely to succeed on the merits

Question 8

perliminary injunction relief test for irreparable injury

Answer 8

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

Question 9

what does a preliminary injunction really do

Answer 9

just preserve the status quo

Question 10

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

Answer 10

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

Question 11

TRO temorary restraining order

Answer 11

• 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

Question 12

IL time frame for TRO

Answer 12

10 days

Question 13

Fed time frame for TRO

Answer 13

14 days

Question 14

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

Answer 14

5 part test

• P first 3
• D last 2

Question 15

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

Answer 15

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

Question 16

Inadequate remedy at law for permanent injunctions test

Answer 16

P must establish that money damages are inadequate

Question 17

4 common grounds for inadequacy remedy at law for permanent injunction

Answer 17

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)

Question 18

part 2 of permanent injunction test (Protectible Interest)

Answer 18

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

Question 19

part 3 of permanent injunction test (Feasibility of Enforcement)

Answer 19

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

Question 20

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

Answer 20

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)

Question 21

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

Answer 21

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

Question 22

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

Answer 22

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.

Question 23

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

Answer 23

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

Question 24

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

Answer 24

do not issue injunction, just award money damages

Question 25

part 5 of permanent injunction (defenses)

Answer 25

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.

Question 26

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

Answer 26

YES

Question 27

defense of latches

Answer 27

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

Question 28

time frame for defense of latches

Answer 28

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.

Question 29

what is the presumption of SOL expired for defense of latches

Answer 29

if SOL has expired, then prejudice is generally assumed

Question 30

availability of injunction relief (usually available)

Answer 30

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

Question 31

availability of injunction relief (sometimes available)

Answer 31

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

Question 32

where injunctions usually not available

Answer 32

free speech shit

1) defamation
2) trade liable
3) invasion of privacy

Question 33

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

Answer 33

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

Question 34

what does equitable lien really do

Answer 34

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

Question 35

2 factual predicates necessary for either constructive trust and equitable liens

Answer 35

1) Improperly acquired property to which

2) D has title

Question 36

what does constructive trust do

Answer 36

D is forced to RETURN the property

Question 37

what does equitable lien do

Answer 37

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

Question 38

proceeds of equitable lien

Answer 38

. 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

Question 39

availability of constructive trusts and equitable liens

Answer 39

available when the alternative legal remedy is INADEQUATE.

• biggest reason in insolvency
• for CONSTRUCTIVE TRUSTS: another reason is uniqueness of the property

Question 40

is tracing allowed for constructive trusts and equitable liens

Answer 40

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

Question 41

x/c for when tracing not allowed for equitable liens

Answer 41

BFP

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

Question 42

when to choose a constructive trust

Answer 42

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.

Question 43

when to choose an equitable lien

Answer 43

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.

Question 44

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

Answer 44

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.

Question 45

what is the proper recourse for challenging an unconstitutional injunction

Answer 45

to seek an expedited appeal.

Question 46

what is party violates a clearly constitutional injunction

Answer 46

the court can hold the party in court of contempt of court.

Punishment may be a fine or imprisonment or both

Question 47

who are the only people bound by an injunction

Answer 47

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

Question 48

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

Answer 48

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

Question 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

Answer 49

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.

Question 50

what are the 2 ways to enforce injunction by contempt

Answer 50

1) criminal: seeks to punish

2) civil: coerce compliance

Question 51

what if a contempt charge is criminal what must happen

Answer 51

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.

Question 52

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

Answer 52

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

Question 53

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

Answer 53

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.