Tort Coercive Relief

Question 1

Temporary Restraining Order - TRO

Answer 1

General Rule: (1) Grounds are emergent in nature AND (2) Delay will cause irreparable harm. May be granted ex parte without hearing, that is, without providing defendant with notice and opportunity to be heard. However, there must be a good faith attempt to notify the person subject to the TRO in advance of imposing it.
Timing → EMERGENCY. Limited duration of 5 to 15 days (usually 10). Appropriate form of relief at OUTSET of litigation.

Question 2

Preliminary Injunction → Can be Mandatory or Prohibitory

Answer 2

“pretty little bitch gets slapped”

General Rule: Factors not elements are:
Potentially irreparable harm to applicant for injunction unless injunction is issued;
Likelihood of success on the merits must favor applicant;
Balance of hardships must weigh heavily in favor of applicant;
The interest of the general public must be considered AND
The status quo should be maintained.
Procedure:
Must provide notice to opposing party (generally, the defendant) and court must hold adversarial hearing.
Timing → Appropriate form of relief during pendency of litigation. Can extend TRO if proper hearing is held.
Applicant must post security bond to cover costs and damages that may be incurred by a wrongfully enjoined party. Usually caps recovery

Question 3

Permanent Injunction → Can be Mandatory or Prohibitory

Answer 3

The party requesting injunction must show proof of the underlying harm.

Elements: I PUT FIVE BUCKS DOWN

1. Inadequacy of legal remedy (money or certain forms of restitution);
2. Property interest involved;
3. Feasibility of court’s oversight of decree;
4. Balancing of hardships – burden to plaintiff if injunction does not issue vs. burden to defendant if injunction does issue;
5. Defenses.
   a) Laches (unreasonable delay)
   b) In pari delicto or unclean hands
   c) Freedom of speech prohibits prior restraint of defamatory speech
   d) Criminal conduct will not be enjoined except in limited cases where criminal punishment is insufficient or defendant threatens to commit tort that can also be considered a crime (battery, other forms of physical abuse)
   e) The injunction may not exceed the scope of the harm.

Question 4

Timing of a Permanent Injunction

Answer 4

The final judgment in the litigation may include a permanent injunction based on the court’s resolution of all the issues presented by the parties.
The plaintiff requests the scope and duration of the injunction,

Question 5

IP Cases and Injunctions

Answer 5

Use test for preliminary injunction (Ebay v. MercExchange):

A plaintiff must demonstrate: (1) irreparable injury; (2) inadequate legal remedy; (3) balance of hardships (4) that the public interest would not be disserved by a permanent injunction

Question 6

Structural Injunction

Answer 6

A structural injunction corrects the organizational structure, rather than the behavioral aspects, of an illegal institution. A structural injunction is an injunction aimed at transforming the nature of an institution itself. Can never be permanent because if the institution changes its conduct, then the injunction will be lifted
EX: school desegregation: the school organization itself is ordered to alter its dual racial structure and adopt a unitary racial system rather than simply stopping its discriminatory behavior.
Can also be available for monopolies, not just gov. Institutions

Question 7

Reparative Injunction

Answer 7

When something has gone wrong and needs to be redone.
Ex: election. School assembly.
Timing → : Post-judgment, or sometimes its an administrative decision.

Question 8

Modification of Injunction

Answer 8

Since an injunction has a limited shelf life of 5-10 years, they can be renewed or modified during the period of the injunction if the party who is being served has corrected the situation.

Timing → Post-judgment.

Ex: injunction declares that prisoners can no longer be double bunked. 2 years later, construction completed to accommodate the injunction, then that requirement can be lifted w/o modification of the original injunction. a party seeking modification brings it to court’s attention.

Question 9

Consent Decrees

Answer 9

A consent decree is a judicial decree expressing a voluntary agreement between parties to a suit, especially an agreement by a defendant to cease activities alleged by the government to be illegal in return for an end to the charges. Once entered, a consent decree is binding on the consenting parties and cannot be reviewed except on a showing of a significant change in legal or factual circumstances, a showing that the consent was obtained by fraud, or a showing that the decree was based on mutual error or a failure of consent.
Timing → Can be interlocutory or final. The former is given on some plea or issue arising in the cause which does not decide the main question; the latter settles the matter in dispute, and a final decree has the same effect as a judgment at law.