Final

Question 1

Punitive Damages

Answer 1

Punish the wrongdoers and deter future wrongdoings.

Question 2

Punitive Damages (extent of liability)

Answer 2

Majority: Companies and employers may be liable for their employee’s punitive damages if they exercised some managerial discretion;

Minority: Simply where the employee was acting in the course and scope of their employment

Question 3

Procedural due process challenges to punitive damages

Answer 3

Focus on whether defendants are being punished for injury to absent plaintiffs without process to challenge their individual harms.

Question 4

Substantive due process challenges to punitive damages focus on

Answer 4

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.

Question 5

Constitutional review of punitive damages awards

Answer 5

Reviewed de novo; at common law it is for abuse of discretion, the standard of view for a new trial or refusal to grant a new trial.

Question 6

Rules of Unconscionability

Answer 6

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.

Question 7

In pari delicto (equal fault)

Answer 7

Available only where:
(1) as a 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 the securities laws and protection of the investing public.

Use the specific rule enunciated in Pinter for in pari delicto if you see a specific wrongdoing that violates a particular statutory or regulatory scheme public law.

Question 8

Unclean hands

Answer 8

An equitable defense that comes from the equitable maxim and is broadly “any wrongful conduct that relates to the underlying transaction.”

Use unclean hands every where you see a more general wrongdoing by a plaintiff private law as long as the wrongdoing relates generally to the plaintiff’s underlying claim.

Question 9

Equitable estoppel Requires (4)

Answer 9

(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

Question 10

Laches

Answer 10

Applies where there is:
(1) unreasonable delay; and
(2) prejudice.

• To determine whether the delay is unreasonable, courts consider justification for the delay, the extent of plaintiff’s advanced warning for the basis of its challenge, and 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.

Question 11

Waiver

Answer 11

(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.

Question 12

Injunctions

Answer 12

Court orders for an act be done or not be done. When an injunction prohibits a change in the status quo it’s called prohibitory; when it mandates a change it’s called mandatory.

Injunctions will not issue unless the legal remedy (usually money damages) is inadequate.

Question 13

Three types and times injunctions may be issued:

Answer 13

(1) Temporary Restraining Orders (almost always in connection with ex parte relief).
(2) Preliminary Injunctions
(3) Permanent Injunctions

Question 14

Party seeking an injunction must show:

Answer 14

(1) More than threatened injury is remote or speculative;
(2) Must be likely and established.
(3) Must show more than irreparable injury
(4) Must show there is real danger the acts to be enjoined will occur (i.e., “a substantial or realistic threat”).

Question 15

Contempt (4)

Answer 15

Violations of injunctions are contempt of court:

(1) Criminal, where the court refers a willing violation to the prosecutor.
(2) Compensatory civil, where the court awards money damages after the plaintiff prosecutes the contempt proceeding.
(3) Coercive civil, where the court threatens specific conditional penalties to coerce a defendant into obedience.
(4) Imprisonment until compliance, imprisonment as punishment, compensation for past offenses, and various issue or litigation sanctions.

Question 16

Nationwide Injunctions

Answer 16

Nationwide injunctions against unlawful conduct must be:
(1) based on a policy; or
(2) practice which extends beyond the specific plaintiff or location at issue.

Question 17

Nationwide injunctions (NI) are controversial and subject to constitutional attack.

Answer 17

Pro NI - Article III does not define the “the judicial Power.” That is, it merely gives the metes and bounds of the disputes in which that power may be exercised. Thus the Constitution does not limit the remedial powers of the federal courts. Subject to regulations and exceptions made by Congress, the federal courts may develop and refine their remedial powers over time. The national injunction is simply an evolution of the judicial power, and as such it should be judged on grounds of coherence and fit.

Con NI - Article III offers a concept of the judicial power that is defined by the dispute — a judicial resolution of a case or controversy brought by parties. This is why we have standing doctrines, do not allow advisory opinions, and distinguish between opinions and judgments (only the latter of which bind the parties).

Question 18

Enjoining a Statute

Answer 18

Three part rule (Ayotte v. PP) relied on:
(1) limit solution to the problem and do not nullify more of a statute than is necessary; but
(2) salvage but do not rewrite statutes—if its meaning is uncertain, however, the court may need to enjoin the entire amount; and
(3) look to legislative intent as to whether to sever an unconstitutional part of the statute. If the legislature thinks it is not severable then courts should defer to that intent.

Question 19

Every order granting an injunction and every restraining order must:

Answer 19

(1) State the reasons why it issued
(2) State its terms specifically; and
(3) Describe in reasonable detail—and not by referring to the complaint or other
document—the act or acts retrained or required.

Question 20

Whether Ps met their burden of irreparable harm?

Answer 20

Plaintiffs must show more than threatened injury is remote or speculative. It must be likely and established. The party seeking an injunction must show more than irreparable injury, they must show there is real danger the acts to be enjoined will occur (i.e., “a substantial or realistic threat”). (Almurbati)

Question 21

Violations of injunctions are contempt of court. Contempt can be (4):

Answer 21

(1) Criminal, where the court refers a willing violation to the prosecutor.
(2) Compensatory civil, where the court awards money damages after the plaintiff prosecutes the contempt proceeding.
(3) Coercive civil, where the court threatens specific conditional penalties to coerce a defendant into obedience.
(4) Imprisonment until compliance, imprisonment as punishment, compensation for past offenses, and various issue or litigation sanctions.

Question 22

Nationwide Injunctions

Answer 22

Nationwide injunctions against unlawful conduct must be based on a policy or practice which extends beyond the specific plaintiff or location at issue. (Goodyear)

Question 23

Every order granting an injunction and every restraining order must (3):

Answer 23

(1) State the reasons why it issued
(2) State its terms specifically; and
(3) Describe in reasonable detail—and not by referring to the complaint or other
document—the act or acts retrained or required.

Question 24

Is an injunction request moot if the defendant only stopped the illegal activity in response to a lawsuit?

Answer 24

Injunction rendered moot if “there is no reasonable expectation that the wrong will be repeated.” The burden is on the defendant to show that will be the case. A mere possibility will not result in injunction. Some cognizable injury will.

Question 25

Can a court enjoin lawful acts that might lead to criminal activity?

Answer 25

No court of equity should ever grant an injunction merely because of the fears or apprehensions of the party applying or it. Depreciation of land value due to the fear and apprehension cannot sustain an injunction on the basis of nuisance.

Question 26

Whether an injunction is appropriate to bar employment and use of trade secrets where there is an inevitable use but no actual misappropriation.

Answer 26

The doctrine of inevitable disclosure may protect from use misappropriated trade secrets if the court determines a likelihood of success on the merits.

Question 27

Double Recovery

Answer 27

If an injunction would replicate the measure of damages it is a double recovery. Not allowed.

Question 28

Injunction re: Trade Secrets

Answer 28

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.

Question 29

The Court exercising its equitable powers

Answer 29

Review of a court exercising its equitable powers are limited to abuse of discretion, and a court’s exercise of its discretion should be guided by sound legal principles and application of consistent purposes.

Question 30

Preliminary Injunction Rule (4)

Answer 30

Plaintiff must show:
(1) The likelihood of success on the merits.
- Need to show you will win on what you seek to prove.
(2) That the P will suffer irreparable harm in the absence of an injunction
- Not only injury but a lack of measurable damages requiring equitable relief.
(3) That the balance of equities tips in P’s favor;
- Balancing test of whether the P will suffer more than the D in the absence of an injunction.
and
(4) That an injunction is in the public interest.*

Question 31

Prison Litigation Reform Act of 1995 (PLRA)

Answer 31

Remedial orders by district courts to reduce prison population were subject to review and oversight; before that can be done, however, a district court must have attempted “less intrusive relief” that failed to remedy the violations and must give the defendant “reasonable time to comply with its prior orders.”

Then a 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. The relief must be narrowly drawn, extending no further than necessary, and is the
least intrusive means of correcting the violation. The court must give
substantial weight to adverse impact on public safety.

Question 32

Injunctions and Constitutional Violations

Answer 32

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.

Question 33

What constitutes irreparable harm?

Answer 33

If it interferes with ownership or enjoyment of real property it is probably subject to equity because invasions or injuries to real property constitute irreparable harm.

Question 34

In an action at law can money damages be elected by a defendant in wrongful possession of property?

Answer 34

At common law, replevin could only get the property back not equivalent damages. But the Oklahoma statute allowed for money damages in the alternative. If the property can be returned it must be and any election is only for the prevailing plaintiff not defendant.

Question 35

Irreparable Harm can be established:

Answer 35

Irreparable harm can be established not only where damages are completely inadequate but also where they are extremely difficult or impossible to measure.

Question 36

Rule for Irreparable Injury

Answer 36

A legal remedy is adequate if it is as complete, practical, and efficient as the equitable remedy.

• Irreparable harm does not mean catastrophic; it only means harm which cannot be compensated at law.
• Efficient does not mean economically efficient as in law-and-economics; it means without unnecessary burden or expense.

Question 37

An injunction requires balancing equities

Answer 37

Normally forcing a D to remove a structure would favor a D - as it would be here - but if a D does so deliberately that balancing may not occur and a D may be ordered to remove an encroachment even at great cost.

Question 38

If it touches dirt, then

Answer 38

it is likely an irreparable harm case, which requires specific performance

Question 39

Whether the district court properly exercised its discretion to deny an injunction where its burden to maintain and supervise the injunction would be immense?

Answer 39

Trial courts may take into account feasibility and relative burdens on the court and parties.

Question 40

Multiplicity

Answer 40

Continuing small damages are irreparable because by themselves P cannot practically be made whole unless they file repeated actions, which are so inefficient no P would ever file them.

Question 41

Prior Restraints

Answer 41

Assume that prior restraints on speech are unconstitutional unless the speech itself is not protected. (i.e. fighting words, incitement to violence, defamation)

Question 42

Replevin

Answer 42

Only allowed when you know D has the property