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Remedies > Final > Flashcards

Final Flashcards

1
Q

Types of Remedies

A

1) Compensatory
2) Coercive
3) Declaratory
4) Restitutionary
5) Punitive
6) Ancillary

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2
Q

Legal Remedies

A
  • All kinds of damages
  • Quiet title
  • Quasi K
  • Replevin
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3
Q

Equitable Remedies

A
  • Injunctions
  • Specific Performance
  • Accounting for Profits
  • Equitable Lien
  • Constructive Trust
  • Rescission
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4
Q

Statutory Remedies

A

Declaratory Judgment

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5
Q

Goals of Remedies

A

1) Put π in rightful position

2) Deter wrongful conduct

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6
Q

Rightful Position

A

Where π would have been but for the wrong

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7
Q

Value Rule

A

Value is the lowest of:

  • market value
  • replacement value
  • capitalized income stream
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8
Q

Lesser of 2 Rule

A

π whose property has been injured may recover the lesser of the diminution in the prop’s value or its replacement cost

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9
Q

Special Purpose Property

A

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

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10
Q

K Damages

A

Expectancy -> position π would be in if ∆ had upheld the K

Can be awarded even where it exceeds K price

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11
Q

Tort Damages

A

Reliance -> position π was in before ∆ committed the wrong

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12
Q

Consequential Damages

A

Those that flow from the injury, but are not the injury itself

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13
Q

Limitations on Consequential Damages

A
  • 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
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14
Q

Economic Loss Rule

A

Negligence π cannot sue for mere econ harm, but must show some physical impact to his person or property

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15
Q

Liquidated Damages

A

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

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16
Q

Avoidable Consequences

A

Where π has taken reas, even if not ideal, measures to mitigate, full damages will be awarded

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17
Q

Collateral Source Rule

A

A personal injury award may NOT be reduced or offset by any payment from an independent party not involved in the case

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18
Q

Review of Jury Awards on Appeal

A

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

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19
Q

Constitutional Harms

A

Still have to prove up damages, even when a constitutional right has been violated

You only automatically get nominal damages

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20
Q

Prejudgment Interest

A

Must be taken into account, regardless of good faith dispute or π’s partial liability

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21
Q

Net Present Value

A

Trial cts must consider the net present value of all awards of future damages

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22
Q

Punitive Damages

A
  • Offset cost-benefit analysis where compensatory damages are insufficient to deter behavior
  • Require MALICE = willful & conscious disregard for the rights & safety of others
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23
Q

Corporate Liability for Punitives

A

Find actor high enough up that corp can be bound:

  • principle
  • reckless employment of unfit agent
  • P or mgr ratified or approved behavior
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24
Q

TC Calculation of Punitives

A
  • 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
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25
Q

AC review of Punitives

A

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

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26
Q

Injunction Elements

A

1) Irreparable injury
2) Ripeness
3) Lack of mootness
4) w/in wise discretion of ct

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27
Q

Types of Irreparable Injury

A
  • 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
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28
Q

Ripeness

A

Have to show real, imminent danger - not remote or speculative

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29
Q

Voluntary Cessation

A

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
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30
Q

Basic Types of Injunctions

A

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

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31
Q

Modifying Injunctions

A

Requires significant, unforeseen change in law or facts that renders enforcement detrimental to the public interest

32
Q

Injunctions - 3rd Party

A

Injunction cannot put a substantial burden on innocent 3rd parties -> only minor or ancillary relief

33
Q

Choosing Remedies - Encroachments

A

Intentional -> injunction

Innocent -> balance the equities & issue injunction only if cost to ∆ does NOT substantially outweigh benefit to π

34
Q

Injunction Discretion Factors

A
  • Unjust enrichment
  • Waste
  • Precision (difficulty in crafting)
  • Ct supervision (difficulty in monitoring)
35
Q

Permanent Injunction Test

A

1) Irreparable injury
2) No adequate legal remedy
3) No substantial undue hardship on ∆
4) Public interest would not be disserved by issuance

36
Q

Preliminary Injunction/TRO Test

A

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

37
Q

TRO Bond Amount

A
  • Potential loss to ∆ of preliminary injunction
  • Financial hardship to π
  • Public importance of right being enforced
38
Q

Ex Parte Young

A

When suing a state for $, sovereign immunity allows for prospective injunctive relief only

39
Q

Absolute Gov’t Immunity

A

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

40
Q

Qualified Gov’t Immunity

A

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

41
Q

Tort Claims Act

A

Waiver of sovereign immunity where gov’t, if a private person, would be liable to the claimant

42
Q

Public Duty Doctrine

A

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

43
Q

Declaratory Judgment

A

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

44
Q

Case or Controversy

A

Adverse parties seeking the determination of legal rights w/ more than insignificant value that are threatened & can be protected by legal determination

45
Q

Quiet Title

A

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

46
Q

Reformation

A

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

47
Q

Restitution

A

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

48
Q

Accounting for Profits

A

Figure out how much of theirs you have, give them $ damages in that amount

49
Q

IP Infringment Profits

A

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

50
Q

Equitable Lien

A
  • 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**
51
Q

Constructive Trust

A

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

52
Q

Tracing Presumptions

A
  • 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
53
Q

Equitable Subrogation

A

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

54
Q

Quasi K

A

Form of restitution that writes a K for parties who never had one & imposes it on them, requiring the return of unjust benefits

55
Q

Rescission

A

Undoes K -> puts parties back in position as if there was never a K

56
Q

Ways to Get Rescission

A

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

57
Q

Types of Contempt

A

1) Criminal - punishes contemnor
2) Civil Coercive - get contemnor to do something
3) Civil Remedial - make whole party injured by contempt

58
Q

Ending Civil Coercive Contempt

A

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

59
Q

Contempt Procedural Requirements

A

Crim -> prosecuted by gov’t; full due process

Civil -> prosecuted by injured party; notice & opp to be heard

60
Q

Characteristics of Crim Contempt

A
  • 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
61
Q

Characteristics of Civil Contempt

A
  • 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
62
Q

Collateral Bar Rule

A

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
63
Q

3rd Parties Injunction Can Bind

A

1) agents, officers, etc
2) People working in concert w/ ∆
3) Successors in interest/office
4) If ct has in rem jx, whole world

64
Q

Unconscionability Rule

A

K will not be enforced when enforcement would offend the ct’s conscience

Need substantive & procedural

65
Q

Unconscionability Factors

A
  • Subject matter of K
  • Parties’ relative bargaining positions
  • Degree of econ compulsion motivating the adhering party
  • Public interest effected by the K
66
Q

In Pari Delicto

A

π’s recovery may be barred where, by his own wrongful conduct, he bears substantially equal responsibility for the wrongs he seeks to redress

67
Q

Estoppel

A

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
68
Q

Waiver

A

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

69
Q

Laches

A
  • 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”
70
Q

Kinds of Prejudice From Delay

A

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

71
Q

S.O.L. Continuing Violations

A

Commission of a new, separable predicate act w/in the limitations period permits π to recover for add’l damages caused by the act

72
Q

S.O.L. Discovery Rule

A

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

73
Q

S.O.L. Fraudulent Concealment

A

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

74
Q

List of Remedies

A
  • 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
75
Q

List of Defenses

A
  • Unconscioinability
  • In pari delicto/unclean hands
  • Estoppel
  • Waiver
  • Laches
  • SOL

Remedies (1 decks)

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