Final Flashcards
Types of Remedies
1) Compensatory
2) Coercive
3) Declaratory
4) Restitutionary
5) Punitive
6) Ancillary
Legal Remedies
- All kinds of damages
- Quiet title
- Quasi K
- Replevin
Equitable Remedies
- Injunctions
- Specific Performance
- Accounting for Profits
- Equitable Lien
- Constructive Trust
- Rescission
Statutory Remedies
Declaratory Judgment
Goals of Remedies
1) Put π in rightful position
2) Deter wrongful conduct
Rightful Position
Where π would have been but for the wrong
Value Rule
Value is the lowest of:
- market value
- replacement value
- capitalized income stream
Lesser of 2 Rule
π whose property has been injured may recover the lesser of the diminution in the prop’s value or its replacement cost
Special Purpose Property
Prop will be valued outside the marketplace if:
-improvement is unique & specifically built for the specific purpose for which it was designed
-being used for that specific use
-there is no appropriate market for the sale of the type of prop for that use
AND
-improvement must be appropriate at time of taking & use must be economically feasible & reasonably expected to be replaced
K Damages
Expectancy -> position π would be in if ∆ had upheld the K
Can be awarded even where it exceeds K price
Tort Damages
Reliance -> position π was in before ∆ committed the wrong
Consequential Damages
Those that flow from the injury, but are not the injury itself
Limitations on Consequential Damages
- Only those naturally & proximately caused by the harm
- Not available merely for non-payment of $ unless loan K where lender breaches or insurance K w/ bad faith delay or refusal to pay
- Not awarded unless ∆ was put on notice of special circs giving rise to them
Economic Loss Rule
Negligence π cannot sue for mere econ harm, but must show some physical impact to his person or property
Liquidated Damages
Can’t be “so way off base” that it’s unfair:
- was amount reas in light of anticipated damages?
- is amount reas in light of actual damages?
- are there difficulties in proof of amount of loss?
- is the amount unreasonably large so as to amount to a penalty?
Cannot K away ALL remedies
Avoidable Consequences
Where π has taken reas, even if not ideal, measures to mitigate, full damages will be awarded
Collateral Source Rule
A personal injury award may NOT be reduced or offset by any payment from an independent party not involved in the case
Review of Jury Awards on Appeal
Defer to the judgment of the jury unless the award is “monstrously excessive” or “so large as to shock the conscience of the ct”
One factor = whether the award is out of line compared to other awards in similar cts
Constitutional Harms
Still have to prove up damages, even when a constitutional right has been violated
You only automatically get nominal damages
Prejudgment Interest
Must be taken into account, regardless of good faith dispute or π’s partial liability
Net Present Value
Trial cts must consider the net present value of all awards of future damages
Punitive Damages
- Offset cost-benefit analysis where compensatory damages are insufficient to deter behavior
- Require MALICE = willful & conscious disregard for the rights & safety of others
Corporate Liability for Punitives
Find actor high enough up that corp can be bound:
- principle
- reckless employment of unfit agent
- P or mgr ratified or approved behavior
TC Calculation of Punitives
- degree of reprehensibility
- wealth of ∆
- amount of compensatory damages
- amount needed to deter (profitability of wrong)
- $ penalties under gov’t regulations
- potential punitives in RELATED cases
AC review of Punitives
1) Degree of reprehensibility
- -physical v. econ harm
- -amount of indifference/reckless disregard
- -intentional malice??
2) Ratio between harm suffered (as reflected by compensatories) and punitive award
3) Comparison of punitives w/ civil or crim penatlies for comparable misconduct
Injunction Elements
1) Irreparable injury
2) Ripeness
3) Lack of mootness
4) w/in wise discretion of ct
Types of Irreparable Injury
- Loss cannot be replaced (unique prop/intangible rights)
- Damages would be difficult to ascertain
- Similar goods are difficult/impossible to find on market
- Risk of multiple litigation
- Insolvent or immune ∆
- Harm from interim uncertainty
- Loss of legit tactical advantage
Ripeness
Have to show real, imminent danger - not remote or speculative
Voluntary Cessation
Does NOT render case moot UNLESS ∆ can demonstrate that there is no reas expectation that the wrong will be repeated
- -effectiveness of discontinuance
- -bona fides of expressed intent to comply
- -Character of past violations
Basic Types of Injunctions
1) Preventative - don’t let this bad thing happen
2) Reparative - fix the bad thing
3) Structural - create a good thing, even if it’s new
- -prophylactic: enjoin conduct lawful in itself to prevent, deter, or reduce wrongful consequences in future
Modifying Injunctions
Requires significant, unforeseen change in law or facts that renders enforcement detrimental to the public interest
Injunctions - 3rd Party
Injunction cannot put a substantial burden on innocent 3rd parties -> only minor or ancillary relief
Choosing Remedies - Encroachments
Intentional -> injunction
Innocent -> balance the equities & issue injunction only if cost to ∆ does NOT substantially outweigh benefit to π
Injunction Discretion Factors
- Unjust enrichment
- Waste
- Precision (difficulty in crafting)
- Ct supervision (difficulty in monitoring)
Permanent Injunction Test
1) Irreparable injury
2) No adequate legal remedy
3) No substantial undue hardship on ∆
4) Public interest would not be disserved by issuance
Preliminary Injunction/TRO Test
1) Movant is likely to succeed on the merits
2) Movant is likely to suffer irreparable harm in the absence of preliminary relief
3) Balance of equities tips in movant’s favor
4) Public interest is not harmed by issuance
TRO Bond Amount
- Potential loss to ∆ of preliminary injunction
- Financial hardship to π
- Public importance of right being enforced
Ex Parte Young
When suing a state for $, sovereign immunity allows for prospective injunctive relief only
Absolute Gov’t Immunity
Protects top-level decision makers, prosecutors, and judges
Exception to Prosecutorial Immunity: doesn’t apply to admin function when pros is not acting as an officer of the ct
Qualified Gov’t Immunity
A gov’t official performing a DISCRETIONARY FUNCTION is not subject to liability for civil damages if his conduct does not violate clearly established statutory or constitutional rights of which a reas person would have known
Tort Claims Act
Waiver of sovereign immunity where gov’t, if a private person, would be liable to the claimant
Public Duty Doctrine
The state is not specifically obligated to provide protection to any specific person unless there is (1) a special relationship or (2) a special duty arising from a promise of protection & injury suffered is a result of that protection not coming
Declaratory Judgment
DO NOT NEED IRREPARABLE INJURY
Requires valid case or controversy
Can’t file if you know you’re going to be a ∆, seeking determination that π’s claims are invalid
Fed cts should refrain from enjoining ongoing state criminal prosecutions
Case or Controversy
Adverse parties seeking the determination of legal rights w/ more than insignificant value that are threatened & can be protected by legal determination
Quiet Title
Determine’s ownership of prop by deciding which of competing claims are valid or invalid
Important tool to resolve disputes when person is making claims but refusing to actually sue
Reformation
Rewriting K to match agreement but for fraud/mistake
Requires either (1) mutual mistake of fact or (2) unilateral mistake & fraud or inequitable conduct by non-mistaken party
Restitution
NOT damages - focus on benefit to ∆, not harm to π
$ award measured by unjust enrichment OR restoration of the thing itself
CoA itself or remedy for another CoA
Accounting for Profits
Figure out how much of theirs you have, give them $ damages in that amount
IP Infringment Profits
Where ∆ has been unjustly enriched by infringing π’s IP, ∆ only has to disgorge the portion of its profits attributable to what he took IF he can disentangled and apportion them
Equitable Lien
- Charge created by ct on prop to secure a debt
- ∆ must have title to the benefitted prop
- π must be able to trace the enrichment to his prop
- *π prefers this when prop has DECREASED in value since the taking**
Constructive Trust
Fictional trust implied when a party has been unjustly enirched by acquisition to legal title to specifically identifiable $/prop at the expense of the claimant or in violation of his rights
-Arises at time of wrong, not final judgment
π prefers this when prop has INCREASED in value since the taking
Tracing Presumptions
- Fraudster spends/wastes own $ first
- Fraudster invests π’s $ first
- Stops @ BFP unless $ or negotiable securities
- Lowest intermediate balance: max claim for constructive trust is lowest balance in traced acct between time of fraud & recovery
Equitable Subrogation
If you INVOLUNTARILY pay off someone else’s debt IN FULL, you can step into the shoes of the person you paid & use his claim against the original debtor, so long as INJUSTICE is not done to junior lienholders
Quasi K
Form of restitution that writes a K for parties who never had one & imposes it on them, requiring the return of unjust benefits
Rescission
Undoes K -> puts parties back in position as if there was never a K
Ways to Get Rescission
1) Fraud or material mispresentation
2) Substantial breach (goes to whole K)
3) Mutual mistake of fact
4) Unilateral mistake of fact known by other side
5) Duress
Types of Contempt
1) Criminal - punishes contemnor
2) Civil Coercive - get contemnor to do something
3) Civil Remedial - make whole party injured by contempt
Ending Civil Coercive Contempt
1) do the fucking thing
OR
2) contemnor must prove:
–impossible/not within his power to comply OR
–he won’t do the thing, despite the ct order
Contempt Procedural Requirements
Crim -> prosecuted by gov’t; full due process
Civil -> prosecuted by injured party; notice & opp to be heard
Characteristics of Crim Contempt
- Punitive in nature
- Wrong occurs outside ct’s view
- Deals w/ matters outside needs of case
- Fixed fine/jail time
- Retrospective
- Crim intent
- Public party involved
Characteristics of Civil Contempt
- Remedial in nature
- Wrong occurs w/in ct’s view
- Deal w/ ct’s ability to supervise the litigation
- Variable fine/jail time
- Prospective
- No crim intent
- Dispute solely between private parties
Collateral Bar Rule
If the ct had jx to issue injunction, ∆ is precluded from collaterally attacking it’s constitutionality in order to avoid crim contempt for violating it
Exceptions:
- injunction is transparently invalid/only frivolous pretense of validity
- Petitioners tried to challenge, but were met w/ delay or frustration
3rd Parties Injunction Can Bind
1) agents, officers, etc
2) People working in concert w/ ∆
3) Successors in interest/office
4) If ct has in rem jx, whole world
Unconscionability Rule
K will not be enforced when enforcement would offend the ct’s conscience
Need substantive & procedural
Unconscionability Factors
- Subject matter of K
- Parties’ relative bargaining positions
- Degree of econ compulsion motivating the adhering party
- Public interest effected by the K
In Pari Delicto
π’s recovery may be barred where, by his own wrongful conduct, he bears substantially equal responsibility for the wrongs he seeks to redress
Estoppel
π is barred from asserting rights where ∆ can prove:
- π had knowledge, notice, or suspicion of facts misled
- π misled ∆ through words, conduct, or silence
- ∆ reasonably relied on π’s words, conduct, or silence
- ∆ would be injured unless he could assert estoppel
- π could reasonably foresee ∆ would rely
Waiver
Where a party to a K is AWARE of conduct on the part of the other party that constitutes a breach, & fails to protest the breach while continuing to perform, that party may be held to have waived his right to rely on the breach
Laches
- Suit is barred if the party seeking relief unreasonably delayed in filing suit in a way that was prejudicial to the other party
- “Equity aid the vigilant & not those who slumber on their rights”
Kinds of Prejudice From Delay
1) Evidentiary - loss of Ws/evidence
2) Econ - reliance on failure to act
3) Speculative - π waits to see if he will be benefitted before deciding whether to sue/which remedy to pursue
S.O.L. Continuing Violations
Commission of a new, separable predicate act w/in the limitations period permits π to recover for add’l damages caused by the act
S.O.L. Discovery Rule
S.O.L. is tolled π knew, or through the exercise of reasonable diligence could have known, of an injury that was caused by another’s conduct
S.O.L. Fraudulent Concealment
Where π did not discover the wrong b/c ∆ fraudulently concealed it, the SOL is tolled until π reasonably should have discovered the fraud or wrong
List of Remedies
- Expectancy Damages
- Reliance Damages
- Consequential Damages
- Liquidated Damages
- Punitive Damages
- TRO
- Preliminary Injunction
- Permanent Injunction
- Declaratory Judgment
- Quiet Title
- Reformation
- Rescission
- Cancellation
- Restitution
- Accounting for Profits
- Quasi K
- Constructive Trust
- Replevin
- Crim Contempt
- Civil Coercive Contempt
- Civil Remedial Contempt
List of Defenses
- Unconscioinability
- In pari delicto/unclean hands
- Estoppel
- Waiver
- Laches
- SOL
