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Remedies > Equitable Remedies > Flashcards

Equitable Remedies Flashcards

1
Q

What power enforces injunctions?

A

Contempt

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2
Q

What are the two types of injunctions?

A

Mandatory

Prohibitory

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3
Q

TRO time period

A

14 plus 14 day extension

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4
Q

Purpose of TRO

A

To maintain status quo until a more thorough preliminary injunction

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5
Q

Preliminary injunction

Type of hearing

A
  • Not ex-parte.
  • Adversarial hearing.
  • Injunction can stay in effect for the duration of the case.
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6
Q

What is a bond?

A

Money paid to the court in case the D was wrongfully enjoined

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7
Q

4-Part injunction test (overview)

A
  1. Substantial likelihood of success on the merits
  2. “Irreparable harm” AND/OR “An inadequate remedy at law”
  3. Balance of hardships
  4. Public Interest
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8
Q

Can get ex-parte TRO if D’s actions

A
  1. Threaten life, limb, health, safety
  2. Moot the case
  3. Property:
    • -Imminent destruction of property
    • -Property moved outside jx
    • -Innocent sale of value to 3rd party
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9
Q

Test for obtaining TRO for Property:

A
  • Evidence must be particularized to the D

TRO cannot be too vague

  • Reasonable lay-person must be able to read and understand it
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10
Q

Is the TRO a due process violation?

What is the test?

A

For example, a TRO keeping a DV offender from ex-wife, but also bars from seeing children

Test is Matthews v Eldridge

  1. Importance of interest
    • seeing children, high
  2. Risk of erroneous deprivation
    • cuts & bruises, low risk of being wrong
  3. Government’s interest
    • stopping DV, high
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11
Q

Matthews v Eldridge

TRO due process violation test

A
  1. Importance of interest
  2. Risk of erroneous deprivation
  3. Government’s interest
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12
Q

TRO Mitigating factor

A

it’s short! If D opposes, will only last 14 + 14 days

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13
Q

Dissolution of Restraining Order

A

Court order might say 14 days, BUT

  • Court may dissolve sooner if they believe the P is dragging their feet.
    • Ex. Not filing papers toward Prelim injunction hearing
  • D may challenge TRO w/in 48hrs
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14
Q

Preliminary Injunction

Test

A
  • Likelihood of success?
    • Must reach “serious questions”
  • Irreparable harm
    • Must be a “likelihood” of irreparable harm, say 50%
    • Often found in environmental cases (can’t unscramble eggs)
  • Balance of hardships
  • Public interest
    • rarely matters, unless sewage system is getting turned off due to patent infringement
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15
Q

Preliminary Injunctions:

Likelihood of success

A

Must reach “serious questions”

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16
Q

Preliminary Injunction:

Irreparable harm

A
  • Must be a “likelihood” of irreparable harm, say 50%
  • Often found in environmental cases
    • can’t unscramble eggs
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17
Q

Why are bonds required?

A
  • To make sure that P truly wants the injunction
  • P might be wrong. Gives D recourse
  • Pushes against strategic use of injunction
  • So injunction is not merely used to drive up costs
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18
Q

Times where you don’t have to post a bond:

A
  • Court says your bond is $0, or nominal amount; or
  • Bond is waived
  • When?
    • Public interest litigation
    • Indigent client
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19
Q

The court does not have a duty to issue a bond. The D must ask for the bond. If the issue is raised:

A
  • Must be a hearing to select amount (and provide explanation for the amount)

Methodology: general principles of compensatory damages

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20
Q

If D’s costs exceed the bond amount

A
  • D can immediately go back to court and ask to raise the bond.
  • Court dissolves the bond and reissues.
  • But D must stay in front of the costs with requests to raise the bond
  • If requests are too slow, can’t recover the lagged amounts
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21
Q

If bond keeps getting increased

A

Court may decide that the balance of hardships does not weigh in P’s favor and dismiss the case

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22
Q

Bond Payout Cap

A

The absolute most you can get from a P is the bond amount. Hard cap.

If bond is $0, then only $0 can be recovered.

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23
Q

Bonds: Wrongfully enjoined

A

Wrongfully enjoined and payment of bond only means that the D won. There is no bad faith requirement for payment of the bond.

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24
Q

To decrease bond payout:

A

Burden is on the P to prove that D was harmed less than the bond amount

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25
Q

Permanent Injunctions

Presumption?

A

There is no presumption of injunction.

Must always walk through entire test.

There is no category of cases where you automatically get an injunction if you win. Not even with real property, still going to consider whole test.

26
Q

Permanent Injunction Test

Elements

A

Elements

  1. Success on the merits (that’s yes if they won)
    2a. Irreparable harm (this is more for pre-trial); AND
    2b. Inadequate remedy at law (lesser showing for permanent injunction)
  2. Balance of hardships
  3. Public Interest
27
Q

Permanent Injunctions

In contract cases

A
  • Rarely is there no adequate remedy at law.
    • Damages are usually easy to calculate using K price, market price.
  • BUT can get an injunction when there is UNIQUE property
    • real property is presumed unique
      • The injunction is then important because it forces parties to negotiate for an outcome.
  • Caveat: courts will not enjoin and order specific performance of UNIQUE SERVICES. See slavery.
28
Q

Permanent Injunctions

In Tort cases

A
  • In tort cases, usually harm has already happened, so no injunction.
    • No injunction for past harm… can get legal $ damages though
  • Hypo: smith is allergic to smoke, wants injunction to stop smoking at work. BUT no harm yet. No medical bills. But can get the injunction to stop the smoking.
29
Q

Defense to Equity (Injunction)

Unclean Hands Elements

A

Not just for crimes or illegal actions

    1. P’s conduct must have direct and immediate connection to litigation
    1. Must look in isolation at what P did
      * Do NOT look at D’s conduct… the actions are not weighed in relation to each other
    1. Consider the Public’s interest
      * If 3rd parties will be negatively affected, no unclean hands defense
30
Q

When is the Unclean Hands defense applicable?

Traditional vs. California

A

Traditional- applies only to equitable remedies. Can still get legal / damages.

California- successful unclean hands defense ends the lawsuit. Bars all remedies.

31
Q

Laches Defense

Elements

A
  1. Unreasonable delay in filing a lawsuit; AND
  2. Defendant was “prejudiced” by delay
32
Q

Laches Defense

When does the delay “start?”

A

When P knew or should have known of the cause of action

33
Q

Laches Defense

Was the delay unreasonable?

A
  • Is there a legitimate excuse?
  • Was the delay longer or shorter than the statute of limitations?
    • Shorter than SOL: presumptively reasonable
    • Longer than SOL: presumptively Unreasonable
34
Q

Laches Defense

Was the D prejudiced by the delay?

A
  • D made investments in reliance on not getting sued
  • D loses witnesses or evidence because of P’s knowledge
  • Key employee retires
  • Suit filed after scheduled document shredding
  • P waits for evidence/damages/leverage to rack up
35
Q

When is D elegible for Laches Defense?

A

D is ONLY eligible for laches if D has clean hands

HOWEVER, court may not apply laches because of some public interest

36
Q

Laches Defense

A
37
Q

Can you appeal a TRO?

A

No!

Except:

Sometimes things that are labeled TRO are actually not TRO’s. They are preliminary or permanent RO. Must read the text of the document to determine.

38
Q

Can you appeal a TRO?

duration

A

No!

Except:

If TRO extends beyond the duration of §65

14 + 14 = not appealable

14 + 15 = Appealable as Preliminary TRO!

14 + 14 + x = appealable! (if extended 3rd time w/out consent)

39
Q

Can you appeal a TRO?

3

A

No!

Except if it’s really:

  • Preliminary: if there is no expiration date on TRO
  • Permanent: if TRO is dispositive or moots the case.
    • Gives P the result (victory)
  • Or if denying injunction scrambles the egg it is treated as a permanent injunction
40
Q

Pre-Appeal injunctive relief: steps

A
  • First ask district court to stay/grant injunction
    • But this is really asking the district court to change their mind on what they just ruled. ??
  • Next ask appellate court to grant/stay injunctive relief pending appeal
    • Only need 1 judge of the 3 to say yes
41
Q

Pre-Appeal Injunctive Relief

The test:

A

Preliminary injunction test with 1 change

  1. Likelihood of REVERSAL (rather than success on the merits)
    1. 4….
42
Q

For a Prior Restraint appeal, both sides…

A

…must present.

  • Cannot be issued ex-parte

Prior Restraint is an injunction against speech (1st amendment implications)

  • Strongly presumed unconstitutional
  • Must be as narrow as possible
43
Q

Appealing an Injunction:

Prior Restraint

What must the court do?

A

Upon receipt, the court must either

  1. Immediately review injunction on appeal; OR
  2. Injunction must be stayed
44
Q

Modifying Injunctions

How permanent is a permanent injunction?

A

Test: if injunction is no longer equitable, court may modify it.

Perhaps because…

  • The law has changed
  • Factually things have changed
45
Q

Criminal Contempt Sanctions

generally

A

Criminal:

  • Punishes past disobedience or noncompliance
  • Fixed jail term or lump sum fine
  • The hearing is a criminal trial with constitutional protections
46
Q

Civil Contempt Sanctions

generally

A

Civil:

  • Coerces future obedience
  • Not a fixed jail term
  • Go to jail until you comply
  • A fine that increases with passage of time
47
Q

Criminal Contempt Sanctions

summary vs non-summary

A
  • Summary: issue needs to be dealt with immediately
    • D jumps over desk and tries to stab judge with a pencil
  • Non-Summary
    • Notice plus hearing at a later time
    • If no jury, the punishment has to be
      • less than 6 months
      • less than $10,000 fine
48
Q

Criminal Contempt Sanctions

Special Prosecutors

A
  • Can be appointed for contempt proceedings
  • However counsel for the benefitting party cannot be appointed
    • Louis vuitton’s lawyers can’t be special prosecutors against fake handbag makers
    • It’s a conflict of interest
  • Appointment happens when prosecutors will not take a contempt case (not high enough priority)
49
Q

Who is bound by

Civil Contempt Sanctions?

A

People who are bound by an injunction. The parties… plus agents, attorneys, anyone in active concert with parties.

50
Q

Civil Contempt Sanctions

Coercive

Jail Terms

A
  • Can be indefinite if the court believes you can be coerced
    • 6th amendment doesn’t apply here
  • BUT, they can be limited by statute.
    • Federal statute: max 18 months for failure to testify @ grand jury
51
Q

Civil contempt sanctions

coercive

(not jail)

A
  • The sanction is not always jail-time or money
  • hospitals, jails, schools
    • officials don’t care if fines are accruing. But they do care about their time.
      • Eg. committing commissioner to spend time in state hospital as coercion for compliance
  • Can take history of willfulness when deciding coercive consequences
52
Q

Civil Contempt Sanctions

Is there a trial?

A

There is a hearing, not a trial.

53
Q

Elements of civil contempt in civil cases

A
  1. Clear and unambiguous order
  2. Violation of the order
  • Burden: clear and convincing evidence
  • Intent: lack of reasonable diligence (negligence)
54
Q

Collateral Bar Rule

A
  • Cannot ignore a seemingly unconstitutional court order. Have to challenge it in court before violating it.
  • It is the court’s job to decide if an injunction is unlawful, not the party.
55
Q

Collateral Bar Rule

Before violating suspected unconstitutional TRO

A

Before violating it:

  • Challenge it by dissolution, appeal, (apply for permit), etc
  • Otherwise, at criminal contempt hearing, may not challenge the validity of the order. The defense is not available.
56
Q

Collateral Bar Rule

Exceptions

A

EXCEPTIONS:

  • Does not apply to CIVIL contempt
  • Can always challenge jx
  • Some states do not apply the collateral bar rule (California, Texas).
    • (But FED and most states do).
57
Q

Collateral Bar Rule

Exception in Criminal contempt proceedings

A

Exception:

  • Case involves “pure speech” that is transparently unconstitutional; and
  • No time to file for emergency relief between TRO issuance and violation
58
Q

The collateral bar rule applies unless:

A
  1. The injunction is utterly meritless
  2. The contemnor shows a procedural reason why the injunction could not have been challenged separately
  3. the original court lacked jx
59
Q

Collateral Bar Rule

Explained

A

The collateral bar rule prevents any challenges to a court order if the party disobeys the order before first challenging it in court. When a law is unconstitutional, punishments for those who violate that law can be challenged. Prior restraints are often court ordered however, so a person who speaks in violation of one without first challenging it in court may not then challenge it later, regardless of the constitutionality of their speech.

60
Q

Does the collateral bar rule apply to criminal or civil cases?

A

Criminal only

61
Q

What if a civil contemnor is incoercible?

A

Civil sanctions then become criminal. Then there is a fixed jail term or fine.

Burden is on contemnor to prove incoercible

62
Q

Criminal contempt… Is there a trial?

A

Criminal trial with constitutional protections

Remedies (3 decks)

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