Injunctive Relief

Question 1

What is an injunction?

Answer 1

An injunction is a court order that compels the Deft to either do something or refrain from doing something. It is a type of equitable relief. Enforced by Court’s contempt power.

Question 2

What is the difference between a permanent injunction and a temporary injunction?

Answer 2

A permanent injunction is granted as a final judgment after a trial or dispositive motion, whereas a temporary injunction is awarded prior to a final judgment in order to maintain the status quo between two parties and avoid irreversible damage.

Question 3

What are the (4) types of permanent injunctions?

Answer 3

Preventative, Reparative, Prophylactic, Structural

Question 4

What is a preventative injunction?

Answer 4

A preventative injunction stops the harm altogether. (Example: Company must stop discrimination on the basis of sexual orientation)

Question 5

What is a reparative injunction?

Answer 5

A reparative injunction repairs or undoes the past harm by stopping the continued consequences of harm and correcting the present. (Example: Company that discriminated in a promotion decision must promote the employee to the position of sales manager.)

Question 6

What is a prophylactic injunction?

Answer 6

A prophylactic injunction imposes precautions/safeguards to minimize future harm, thereby going beyond just stopping the harm or repairing the harm. (Example: Company that discriminated against employee must adopt non-discriminatory policy and complete various trainings.)

Question 7

What is a structural injunction?

Answer 7

A structural injunction takes prophylactic injunctions and expands them to a broad, sweeping, systemic level. Structural injunctions are often criticized as judicial advocacy.

Question 8

What are the (2) types of non-permanent injunctive relief?

Answer 8

Preliminary injunctions and temporary restraining orders (TROs)

Question 9

What is a preliminary injunction?

Answer 9

A preliminary injunction is granted before the financial judgment, and aim to maintain the status quo during litigation. They more severely restrain the Deft than TRO’s because they often last longer, and as such, they tend to be a little harder to obtain (and require notice in all circumstances).

Question 10

What is a TRO?

Answer 10

A TRO is an emergency order that’s typically granted before a hearing can be held, only if there’s a threat of immediate and irreparable harm. TRO’s typically operate for a short time period (7-14 days) and require notice for most cases with a few exceptions (i.e. domestic violence).

Question 11

What is a security/bond?

Answer 11

Both PI’s and TRO’s require a security/bond from the party seeking the relief to protect Deft’s interests.

Question 12

How do you qualify for a permanent injunction?

Answer 12

There are (5) steps to qualifying for a permanent injunction:

1) Does Pl face a threat of real imminent harm?
2) Will there be irreparable injury?
3) Have we balanced the hardships?
4) Does it serve the public interest?
5) Is it practical?

Question 13

What is a threat of real imminent harm?

Answer 13

Real = based in fact 
Imminent = happening in immediate future 
Harm = violation of the law

Question 14

What is an irreparable injury?

Answer 14

An injury for which there is no adequate legal remedy (Example: Deft cannot pay, property is unique, rights are intangible, etc.)

Question 15

How do we balance hardships between Pl and Deft?

Answer 15

We have to balance Pl’s right to a remedy against the undue hardship is may post to Deft.

Question 16

What is the public interest?

Answer 16

The social consequences imposed by injunctive relief

Question 17

How do you qualify for a PI/TRO under the main test?

Answer 17

There are (5) steps to qualify for a PI/TRO under the main test:

1) Likelihood of success on the merits
2) Likely irreparable injury is relief is delayed
3) Balance of hardships
4) Public interest
5) Procedural req’s met

Question 18

How do you qualify for a PI/TRO under the alternative test?

Answer 18

Movant can obtain TRO/PI by showing either:

1) Likelihood of success on the merits and irreparable harm OR
2) A serious question on the merits and that the balance of hardships tips decidedly in its favor

Question 19

What is the rule for determining scope of an injunction?

Answer 19

As a general rule, the scope (breadth) of an injunction must match the scope of the harm.

Question 20

What is specific performance?

Answer 20

Specific performance is relevant with K’s only. It is an order to the Deft to perform as promised under a given K. Enforced by Court’s contempt power.

Question 21

How do you qualify for specific performance?

Answer 21

There are (4) requirements for qualifying for specific performance:

1) A clear, valid, K
2) Irreparable injury (different for sale of goods K’s, service K’s, and sale of land K’s)
3) Balance of the hardships
4) Public interest

Question 22

How do you modify an injunction?

Answer 22

Injunction can be modified in light of a “change of circumstances” which can be a change in fact or law.

Question 23

What constitutes a “change in fact” with regard to modifying an injunction?

Answer 23

A change in fact is when something occurs that makes the injunction no longer necessary – often when Deft takes steps to mitigate the risk the injunction sought to prevent.

Question 24

What constitutes a “change in law” with regard to modifying an injunction?

Answer 24

A change in law occurs when a legislature or administrative authority modifies the current law or passes new laws that warrant modifying the injunction.

Question 25

What are the (3) ways to terminate an injunction?

Answer 25

1) FRCP 60(b)(5) Relief from Judgement: Court will provide relief from an injunction where the judgment has been satisfied
2) Substantial compliance: Where Deft has complied in good faith with an injunction and eliminated the original harm as much as possible
3) Changed circumstances: When there’s a change in fact/law

Question 26

How are injunctions enforced?

Answer 26

With Court’s contempt power, an additional remedy. This contempt power gives injunctions their bite.

Question 27

How do you establish prima facie case of contempt?

Answer 27

There are (4) elements:

1) Clear, specific court order
2) Deft’s knowledge/notice of the court order
3) Noncompliance
4) Intent (willfulness for criminal contempt)

Question 28

What are the (3) types of contempt remedies?

Answer 28

Civil compensatory, civil coercive, and criminal

Question 29

What is civil compensatory contempt?

Answer 29

Power of the court to award damages to the Plaintiff for defendant’s failure to comply with the court’s order. Plaintiff may assert this charge. Not allowed in CA. Requires C&CE that Deft violated order. Deft is entitled to due process (notice and right to be heard).

Question 30

What is civil coercive contempt?

Answer 30

This is the power of the court to impose fines payable to the state, or jail time, to coerce the defendant’s compliance with the court’s order. Deft can purge the contempt charge and obtain his release by committing an affirmative act, such as obeying the order. Plaintiff may assert this charge. Requires C&CE that Deft violated order. Deft is entitled to due process (notice and right to be heard).

Question 31

What is criminal contempt?

Answer 31

This is the power of the court to punish a defendant’s willful failure to comply with the court’s order. Only the Court may assert this charge. Requires proof beyond a reasonable doubt that Deft violated order. Deft is entitled to all criminal protections. Deft unable to purge penalties, unlike civil coercive contempt.

Question 32

Ways a Deft can challenge contempt

Answer 32

Court order too vague, compliance was impossible, lacked notice, no personal jx, etc.

Question 33

Collateral Bar Rule

Answer 33

In general, Deft is prevented from attacking the validity of an injunction in the collateral matter of a defense to a criminal contempt prosecution. The appropriate course of action would be to directly appeal the injunctive order.

Question 34

Exceptions to the Collateral Bar Rule

Answer 34

Inability to Comply, Lack of Subject Matter or Personal Jx, Transparent Invalidity

Question 35

What is the ‘Inability to Comply’ exception for the Collateral Bar Rule?

Answer 35

The Collateral Bar Rule cannot justify subjecting a defendant to liability where it is faced with an injunction it is unable to obey or comply.

Question 36

What is the lack of subject matter/personal jx exception for the Collateral Bar Rule?

Answer 36

An “order entered by a court clearly without jurisdiction over the contemnors or the subject matter is not protected by the collateral bar rule.”

Question 37

What is ‘Transparent Invalidity’?

Answer 37

The “transparently invalid” exception to the Collateral Bar Rule allows a defendant to challenge the injunction in a contempt action by showing the court lacked the authority to enter the order because it imposed on the defendant’s First Amendment rights.