Basic Principles of Equitable Remedies

Question 1

Preliminary Injunctions – 11th circuit

Answer 1

Elements test:

1) likelihood of success on the merits
2) irreparable harm will result if not enjoined
3) Balance of hardships favors P
4) public interest is not disserved

Question 2

Morgan Stanley

Answer 2

1) no likelihood of success as non-solicit agreement was not rx
2) no irreparable harm because injury is compensable with damages
3) balance favors D because they would lose their jobs
4) public interest disserved because people can’t access services

Question 3

Prelim Injunctions - 8th circuit

Answer 3

Same as 11th but factors

Question 4

CDI

Answer 4

Workers in ND take all the clients of CDI when they start their own firm. CDI sought preliminary injunctions, but

1) no likelihood of success, CDI contends they stole trade secrets but don’t meet burden of proof (not dispositive)
2) injury already occurred so no irreparable harm, plus could get money damages
3) Balance favors P, as they would lose their jobs
4) Public interest disserved because people should be able to do business with whomever

Question 5

Non-solicit and non-competes, and trade secrets

Answer 5

Non-solicitation
- must be reaosnable georgaphically and temprally

Non-competes
1) ok as long as it’s limited geographically/temporally
Exception: In CA, noncompetes are unenforceable unless someone is selling a business, you can preclude seller from competing. Noncompetes with employees are enforceable but duty of loyalty applies

Duty of loyalty
shouldn’t work for others working against your employer

Trade secret misappropriation

1) information that has value and value is maintained through secrecy
2) most likely not a trade secret if readily identifiable to the public (in CDI, anyone could find out who the oil clients were)

Question 6

2nd circuit sliding scale

Answer 6

a) irreparable harm will occue, and then either
1) likelihood of success on the merits, or
2) serious question
b) balance of hardships in favor of P

Question 7

Citigroup v. VCG

Answer 7

Didn’t show likelihood of success on merits but there was serous question about arbitrability of VCG’s claims

Question 8

TRO’s

Answer 8

on notice: same as prelim injunction

Without notice requires:

1) specific facts in affidavit or verified complaint that immediate and irreparable injury will occur
2) writing from moving party’s attorney demonstrating efforts to notify and reasons why notification would be adverse

Question 9

Injunction bonds

Answer 9

P must pay a bond in case D is wrongfully enjoined
Bond caps liability amount
Courts can waive bond or set at $0

U.S., agents, officers, don’t have to pay bond

Question 10

Sprint v. Cat Communications

Answer 10

Sprint enjoined Cat and paid $250,000 bond, but complying with injunction racked up millions in costs for Cat. Injunction dissolved, rather than bond amount changing

Question 11

Consolidation

Answer 11

Can consolidate preliminary injunction hearing with trial on the merits but must give notice

Question 12

Recovery of Damages/Nintendo

Answer 12

Bond is executed when it’s found that D was wrongfully enjoined

Question 13

Permanent Injunctions

Answer 13

Ebay test - 4 factors

1) must establish irreparable harm
2) remedies at law are not available
- -use same facts for factors 1 and 2–
3) balance of hardships between P/D
4) public interest not disserved

also consider court supervision
requires trial on merits
courts more likely to grant permanent injunction if there is real threat of future/ongoing bad conduct

Question 14

Defenses to requests for injunctions – unclean hands

Answer 14

Misconduct must have immediate/necessary relation to the injunction sought

exception when P is serving public interest

Question 15

Salomon v. Vockel

Answer 15

V left S and took clients. S tried to get injunction but S had V do the same thing to Merrill Lynch previously. So no injunction granted

Question 16

Defenses – Laches

Answer 16

must show D suffered prejudice due to P’s unreasonable delay. Elements:

1) Unreasonable delay – length, rx excuse?
2) Prejudice
- -either D relied on delay, or delay caused loss of witnesses/evidence

SoL starts at time P should have known

Question 17

Jarrow Formulas

Answer 17

J sought injunction claiming Nutrition Now had misleading and false claims about its products. Contests advertisements but only brings claim after 7 years.

Public interest served? No evidence public was actually harmed by NN’s claims so no

Question 18

Violations of Equitable Decrees – Contempt

Answer 18

Direct – in front of judge

Indirect – outside of courtroom

Question 19

Indirect Contempt

Answer 19

a) Civil – requires C+C evidence D was not Rx diligent in complying. Right to jury trial not entitled

Question 20

Civil Compensatory

Answer 20

make P whole for D’s noncompliance
Can get attorney’s fees

Cancer Research

Question 21

Civil Coercive

Answer 21

Wronke

Question 22

Criminal contempt

Answer 22

BRD standard

Requires jury trial if >6 months jail time or “serious fine”

Question 23

Persons Bound by Injunctions

Answer 23

1) the parties
2) parties’ current officers, agents, attorneys, employees, and
3) others in active concert with any of these

Need actual notice! Successor companies can be bound by injunctions, but must have notice

Question 24

Roe v. Operation Rescue

Answer 24

Action for injunctive relief to stop blockades of abortion clinics.
Injunction was against Operation Rescue National.
Trial court says Operation Rescue can’t be held in contempt as the campaign was put on by National.
Problem is that OR was very involved with ORN with respect to this campaign. Terry (OR founder) authored a letter encouraging people to support ORN’s campaign, on ORN’s letterhead, but signed it on behalf of OR (didn’t maintain distinction). Letters were jointly sent by both organizations celebrating the success of the campaign. Seem to be essentially interchangeable.
Terry was not physically present at the blockade, but was an instigator of the conduct.
Will still be bound by injunction for instigating others to do prohibited conduct

Question 25

Active concert

Answer 25

to work or assist on behalf of the enjoined party, which requires some type of affiliation with enjoined party

Question 26

People v. Conrad

Answer 26

Similar missions/values not enough, must be actually affiliated. Knowledge required but not dispositive