E&R EXAM 220 pts: X-Choice; 4 Essays: 10 questions; answer coq; no time for other stuff; - don’t dump - - 35 X-choice 2pts each use CALI for X-choice; look for reading errors; Answer the coq; skip punis, € law- Exam: ojo- do not end essay with ‘I think this case should settle..’ Don’t Decide: just present 2 sides

Professor Nora J. Pasman-Green; May 2011 [OJO= Note]Text: Dobbs, Law of Remedies, 2d ed 1999; Fischer, Understanding Remedies, (1999)

E&R LOOKS LIKE THISD Legal Equitable RestitutionBreadth: measures Depth: limits Adjustments: offsets

COURSE OBJECTIVES- Knowledge of Standards of Entitlement, Prerequisites, Tests & Measures for Specific Remedies- Analytic & Strategic Skill to Evaluate & Present Evidence to Achieve Specific Remedies- Professional Judgment to choose the best remedial outcome.

TODAY’S GOALS- Basic organization & classification of remedial system

o Remedial v Substantive parts of a case- Try to separate substantive from remedial when reading cases- Identifying injuries & finding a measure

o Functional Approach: compensatory, coercive, declaratory, preventive, disgorgemento Substitutionary v Specific Relief : e.g., damages v injunctiono Legal v Equitable : e.g., jury v judge Triedo Substantive Purpose: Does the Remedy “fit” the wrong?

US v Hatahley (CA10, 1958) good model for case study- Ct gives value of n9:41- Case is tried in Court of Claims [Civ Pro] b/c the US govt has agreed to be sued as a party- How would it be different as a jury case?

o There would have been some evd of damages etco A reviewing ct might have accepted the damage award b/c there is no requirement for jury to show

findings of fact and conclusions of law.o Atty might ask for special/interrogatory jury form- to get some reviewable numbers

- Consequential D: result of this particular set of facts: Ct accepted barter evd; horses were worth x# of sheep- Sometime evd of barter is the most probative evd- Why does market value not apply? There is no market for the Native Am horses- Note: sheep are commodity, and should be measured as such- Chicago mercantile exchange, or govt - What were the losses suffered? How were they measured? Horses/burros on public land were destroyed.

DAMAGES-PROVING INJURYBREADTH OF INJURY ---------------------------------------------------------------

Horses, burros, herds, water, ceremonies, well-being DEPTH OF INJURY ---------------------------------------------------------------

What does it mean to this specific Claimant?

DAMAGES SUBSTITUTIONARY/COMPENSATORY:- A substitutionary monetary remedy designed to compensate plaintiff for injury.

o To restore plaintiff to the rightful position.o Where would plaintiff be “but for” the defendant’s breach/injury?

- Corrective Justice v Economic Incentives to Rightful Conduct

MEASURE OF VALUE- Ojo: goal is to get to pay cost of repair- Market Value at time & place of injury: the most common form of valuation- MV DEF: what a well informed willing buyer would pay a willing seller, free form any coercion;

o a way to eliminate personal pressure value- Why is market value used?

o It requires a functioning market- sufficient supply and demand to meet ito Cost value tends to be more than market price;

Why is the value at time of injury a good measure?

o The requirement of a functioning market: there was no market for these horses & burros- Market Value Equivalents

o “Rule of Thumb” cost measures: element of measure; o If I smash a laptop, or damage it, look to large market for a standard costo value is based on loss; intent is not relevant to Injury;O THE MEASURE OF HIS RECOVERY IS THE DIMINUTION IN VALUE OF HIS PROPERTY

Value before damage v value after damage Value of property – cost of damage repair = diminution in value Unless rebutted, cost measures are considered to be rule-of-thumb…..

Especially where _____________________ Equivalent to lost market value

o In an ideal world market value = replacement cost; but it generally doesn’t work out I might want extras, new stuff, etc., that is personal to me Market value takes that out of the picture

what about …o Note: damage to s/t that loses value just b/c it was damaged, even if repairedo Sometimes cost of repair is not probative evd

Capitalized Value: value estimated by converting Income Stream into a lump sum amount.- Ex: damages for lost herd should be based on lost income, not cost to buy: primary value is its income- 9/11 : bldng owner wanted rental costs damages- b/c it was an income producer

o Reasonableness cap to replacement cost: replacement cost will generally exceed original cost and will not apply unless you can show it is unique and special

o Here primary value is income productiono b/c its main purpose is profit ct looks at market stream & loss

- UNIQUE & SPECIAL PURPOSE PROPERTY

o Here ct does not use cost to rebuild, o WHY? b/c Special Property exception does not apply

b/c it is not so unique or special that it can’t be easily replacedo ex: damaged vehicle loses value bc of accident; damaged baseball card

in 9/11 ct found that market value already included in capitalized value; the value includes what might be earned from rents

- 911 Unique and Special TEST: p 20: a basis for special purpose property 4 FACTORSo Under NY law, the test for valuing specialty properties without market value requires:

(1) the improvement must be unique and must be specially built for the specific purpose for which it was designed;

(2) there must be a specific use for which improvement is designed and improvement must be so specially used;

(3) there must be no market for type of property and no sales of property for such use; and (4) improvement must be an appropriate improvement at the time of the taking and its use must be

economically feasible and reasonably expected to be replaced.o apply it to Hatahley to see if it works – herd is not replaceableo You must be able to show that there is no Market Value; hard to do in the EBAY age

- Alternatives to market valueo Replacement (Repair) Costo Which is correct: market value >, < or = replacement cost?o Lesser of Two You get the lesser amount: replace v repair

- If there is market value and it differs from cost value- the lesser of 2 Rule applieso Peavy House: Strip mining- diminution was much greater than cost to repair

Cost value was disproportionate to diminution in value; promise broken wasn’t Primary essential part of the benefit of the bargain;

Replacement cost will be greater than market value of property- Highest & Best Use: what could it be used for; what value might it have

o often see it in eminent domain cases; what it might be lawfully zoned foro just compensation is what it might be worth

WEEK 2 Injury Measuring injury VALUE OF INJURY

Market Value: reliable- non- functioning market may affect it- Equivelant: rule of thumb- ;capitalized

R/R Cost Measure- s/t not the equivelant of value; there is a basis if it is a fairer price: ex 911 leases not fairly pricedTRINITY CHURCH V JOHN HANCOCK Mass 1987, subjacent injury Corrective Justice: wrong to build JHUNIQUE PROPERTY: John hancock construction destroys sub-jacent support of nearby historic church

- is this a special purpose property- y, church only - is there still a use - the use is ltd, t/f value is restricted National Statutes restrict use or change of architecture- is there any market – no true Dim in Value measure- is the improvement economically feasible - replacement would be more costly than repair;

What is the plaintiff’s “takedown theory of damage assessment?” Enhanced depreciation is not entirely JH’s fault- here s want ‘enhanced’ depreciation dim in value; injunction to prevent this ‘wrongful construction’

O A as long as TC is used as a place of worship: A has a Fee Simple Determinative- TC has a fee simple conditional-‘Possibility of Reversion’ b/c they can get church if it is used as anything else

o They can’t use alleged damages to get consequentials, b/c there must be proofo TC can only sell to s/o who agrees to use it as such; t/f the market is ltdo Historic land designation is another restriction [fed law restricts use, type of improvement,

This makes it difficult to measure any diminution in value Dissent: No repairs will be made; This building is still usable; there is no real DIV; future ’s will get our offset

o Failure of Dissent to look at General & Special/Consequential- they must actually be incurred GD: TC needs evd of measure of value of injury SD: Must bring in bill/proof of this damage

USED GOODS

- Valuation at what time? Time of Original D’s? Time of replacement? Adjustments for Depreciation?o Straight line or not: f we give only depreciation value, may not be made whole

- Depreciation v windfall: EX: 50 yrs case notecase: landfill partially full has less value than an empty landfill So the difference in useful life would make straight-line less reliable.

- OFFSET: may be necessary REPLACEMENT COST FOR UNIQUE PROPERTY Irreplaceable: Replacement Cost trumps Market Value

Test for Special Use Property1) it must be INDIVIDUALLY UNIQUE to [can’t find a replacement/can’t be restored]2) Evidence of value- care and maintenance of the item

- Example: jeweler lost game ring; unique b/c of its personal value; and unavailability of replacemento The market wouldn’t actually compensate personal valueo my lock of baby hair is valuable to me, and if it is lost it isn’t really replaceable;

my loss is 1) personal 2) value b/c mom saved it for meo wedding album: photography cost; irreplaceable memorieso Pets: if it came from a ‘free’ box, it probably has no value EX: Haytahlay’s horses were unique

But if you worked and trained with him, there might be loss of consortium. Studies say that pets offer great health service;

THE PROBLEM OF FLUXUATING VALUE: After time and place of loss- 100 X- 50 X- 0 X

Time- Breach Highest Market Time of Discovery

Presumption: replacement value is the time and place of breach b/c of depreciation: But it can be latero For contractual interest, property interest, personal interesto But it might Appreciate: increase in value - so might have option of conversion in an actions for D’s

1) Sue & recover dgs at time of conversion + interest + loss of use OR 2) time of trial +loss of use Injury disrupts some progress/improvement taking place Ex: the Hatahley corn crop that couldn’t get water: But for the breach the crop would go to

harvest; So the time of breach would be later, ie harvest- not at time of injury- EX: usurpation of a Corporate Opp/Trustee self-deals: many cts know future value has been harmed/ not helped- CT may look at ‘HIGHEST INTERMEDIARY VALUE’- loss b/t time of taking and time of discovery

o FLUXUATING VALUE based on how much fiduciary breach harmed me, at time of discoveryOJO: be sure to look over missing section 65-85 if there are any questions abt these topics/ damages

GENERAL DAMAGE: presumption of dim in val; only has to show harm: PI/ P&S/Lowered Earning Capacity, perm D- law presumes property is injured and damage has occurred; no need to prove $ figure

If someone is permanently injured, a lower earning capacity & Lost wages are presumed.CONSEQUENTIAL DAMAGES: reasonably foreseeable, proximately caused AND arise directly out of circumstances;

- Must be 1) reasonably foreseeable 2) actually incurred- proof of lost income AND 3) specifically pled [use/profits]- The Problem: Transaction Costs

o EX: smoke alarm- transaction costs are relevant even to foreseeable D’s: my car costs more than yours

SPECIAL (CONSEQUENTIAL) DAMAGES- flow naturally but not necessarily; great judicial resistance to CD’s.- D’s claimed and/ awarded which were out-of-pocket costs directly as the result of BoK, N, or other wrongful act - Must actually be incurred: Atty must be able to prove they are compensable in any given case.

loss of use; cost to cover; Medical expenses (personal injury); Lost wages or income (v. lost earning capacity)o They are costly on an individual AND societal basis: so I must ‘bring the bill’

- can include medical bills, repairs and replacement of property, loss of wages, and other damages which are not speculative or subjective. distinguished from general damages: here specific dollar figure is required

Buck v Morrow - GD: PRESUMED LOSS: value of remaining K: Total K – remaining Value of K

o Cost of payment for replacement pastures by virtue of being kicked off premises- CD: Result from breach: did LL know what use of land would be? Ie was it ‘reasonably foreseeable?

o We don’t have to go there b/c LL has already agreed to be responsible. He is held to language of lease.- Limitations on Consequentials: gr- upheld unless they are un€al or …..

Meinrath v Singer hires good bizman. They fail to pay bonus. Knew He needed it: Direct D’s: Loss of expected Bonus; - ADDITIONAL HARM – part of Expectation Interest less costs saved by not having to perform

o he seeks consequentials b/c the loss was foreseeable: they knew that if they didn’t pay he wouldn’t be able to keep up his payments

- R: PreJJment interst is the make-whole remedy in the failure to pay money o Exceptions: breach of a loan commitment; loan for home mortgage; [failure to give me my stu loan]

Texaco- Tortuous Interference with K: do we use replacement cost or lost capitalization cost; Largest award in its day- GD= value of stock based on K price – Market Value of Stock- Future CD= not yet incurred- here foreseeable loss of controlling interest in oil reserves

o Ct looks at lost market value- no comparable valueo Ct looks at lost capitalized value- it would take too long to sell all this fluctuating valued assetso Ct looks at Replacement Value: must drill new holes, pay more taxes; too speculative

- Remittiter/Additur: ct reduction/increase in award, amt a reasonable jury would award; bad counsel- no evd of BOmitted material is about contracts & ltd remedies, liquidated Remedies: read it if you need help

MITIGATION: AVOIDABLE CONSEQUENCES DOCTRINE: Non-breacher has a duty to mitigate loss to recover D,- can only collect for D’s that could not have been avoided by the exercise of reasonable care- Duty to keep D’s as low as reasonably possible- No windfall for lazy ; failure to mitigate can disrupt causation

o Duty to show failure to mitigate is on ; can only collect up to his ability to mitigate- INCIDENTAL DAMAGES: can get compensated for the reasonable costs of mitigation

SJ Groves: The “reasonable” choice between doing nothing and mitigation. If both can, who should? ’s choiceo Regardless of whether or not it is successful- he gets compensated

- It is not feasible to cancel his K, it might lead to further litigation; to put up new plant; leads to more delays-o his problem now; he needs s/t that will reduce his delay damages

- DEMAND FOR ASSURANCES issue: Accept assurances: leads again to more problemso Other supplier wasn’t always licensed- Tf continuing with and doing nothing was appropriate

- Prof compares to Luten Bridge- must cease if K has been repudiated; o Except if it might lead to more damages- there might be some salvage value

- Employment K: Parker v Fox: Shirley McClain didn’t have to accept a humiliating or less important jobo Loss of emp- recovery of lost wages generally requires seeking alternative emp

Including commute, relocation, - Exceptions- lost wages: compensation is generally enough, but not always

o More conservative now: we don’t like lazy litigants; it may limit my right to collecto It is not reasonable to expect me to accept a lesser job that will hurt my chances of future employment;

- Medical Relief- may not be required in the face of moral obligationso Untreated med conditions that result from breach where treatment would have reduced costs; o Agee , jehova W family lost wrongful death ls b/c did not mitigate by getting a blood transfusiono What about dr who botches surgery and I end up pregnant?

Even if I recover labor/birth cost; Mitigation: I could get an abortion- another moral issueo Obesity: failure to lose weight often reduces recovery; b/c the loss is avoidable. [not easy for older pple]o SS: cts consider whether there is any residual working capacity; has s/o taken advantage of all

opportunities to get better; must not ‘fail to mitigate’- N4: remarriage may be a benefit that reduces wrongful death bens; CT can’t force remarriage; but if I choose to

What if the plaintiff could mitigate but won’t as a matter of principle? P90; c4

- I may not be able to borrow in order to mitigate. I may be entitled to the interest. - Burden of proof going forward is on the breacher- if he fails to mitigate it isn’t fair to make pay for it- What about ‘CREDIT FOR BENEFIT’???

Measure D; Doctrine- foreseeable, Prox Cause; failure to pay Interest Due; measure lost market&value/replacement - Ways to measure: evd of CD; accurate measure- receipt; Avoidable Cons Doc: could mitigate- trad/societal

WEEK 3 Damages – Limitations & Adjustments do wk 4 CALI: CREDIT FOR BENEFIT- Credits for Savings: expenditures that ‘but for’ the breach the plaintiff would have incurred- Credits for Benefits Directly Caused: direct beneficial consequences of breach that enjoyed that would not

have occurred ‘but for’ the breach?

Offsetting Benefits:- By virtue of the breach, some benefits may be bestowed on the ; I could end up better off than I would have

been ‘BUT FOR’ the breach; it may not completely absorb loss: only partial o What kind of savings

Ex: disabled atty income is offset by pay bar fees; travel costs, office expenses Ex: disabled LEO is offset by union dues, uniforms, vacations, Damage to property may lead to improvements, ie increase in value p93 Note 4 p 94 spouse remarries: it often eliminates damages, she has new financial support

- EX: crop spray kills crop not just bugs; Farmer has loss estimated at time of harvest, not at time of sprayo But he should mitigate by planting a replacement crop; that value may be OFFSET;

- COLLATERAL SOURCE RULE: LIMITS WINDFALL BY PREVENTING FROM GETTING PAID 2X

o Prof: Heflin No offset for benefit provided from collateral source unrelated to to reduce damages benefit is usually for the benefit of w/o regard for the -tortfeasor Benefit of the Bargain- My insurance is for my benefit – not for the benefit of the tortfeasor

o contractually obligated v gratuitously provided benefits: should not be able to benefit from thato It may be under-compensatory [see p 162 state court tor awards – not req reading]

Many cases settle under a rule of 3; losses x3= settlement offer; Atty gets 1/3; leaves double losses for [jury can be advised of collateral source, but not of atty1/3, so he loses]

- Double Dip: Some states have abolished CSR where is reimbursed for expenses, so that can’t double dipo Odin v Chamung :if must return $ for ins subrogation, has not double dipped; disability paid only costs

$ must be offset against the very element of D that CSR is affecting b/c CSR has been abolished, Choice of Law has led to forum shopping

- Look at 6th Circuit: train travels thru 5 states, causes fire, sues both TFer, and train [CSR in some states only]o JJ Cooley applied CSR to prevent double dipping; leg later o Wisconsin still gets CS$, so s/o in WI could get 2x more $

- OJO: this should always be NET of TAXES: should always pay any taxes due; no sticking it to - Issues:

o What about government employer & unemployment benefits or entitlements If is govt empee, benes come from a different source, ie SS and income; can govt take some

portion of that income; will argue that this is in some way connected; should economic bene be offset by ss/ Medicaid etc. Legislative issue Haven’t I paid into this? this is a return on my investment, not Actual Benefit

o Gratuitously provided benes: should CSR protect/allow to offset cost? The difference is contractual v gratuitous [what is the value of gratuitous services] The deterrent effect tort law is harmed when gets benefit of offset

o Note 4 P99- New statutes might make all this relevant post-jjment; Premiums paid should be protected

Scope of Liability:- Economic Harm Rule: mere increased risk of harm is not a basis for a negligence liability. Forbes v. Wells Fargo

o (Causation, Foreseeability & Remoteness) Proximate harm can only extend just so faro Doctrinal Rule: cannot recover from Pure Economic Harm in the absence of Physical injury/Property D

- Conservative restrictive view: cannot recover for purely financial harm; need to cap economic harm too remoteo Neiberg : product L case, cow milking machine hurts cows; pure economic harm- a herd is a commodity

- Pruitt v Allied Chemical (E.D. Va. 1981): The economic harm rule: doctrine avoids redundancy; like conversiono Fish poison destroys long chain of business- no one has suffered physical damageo livelihood damaged; The right to livelihood is a ‘property interest’: biz fisherman, sport fisherman in areao BUT: once pays the first harmed party, any further damage reward would be redundant; How many

times can we force to pay for the harm? Defendant didn’t know how foreseeable the damages were.o OJO: once we hold liable, others down the line don’t have legal access to product at issue

- Bball player killed in plane crash; team sues- ct say this is pure economic harm NO $

o Note 5 p 110- RR had to close temporarily; ct allowed recovery; minority position, cause of economic harm is actually known to

- Why is the difference between general & specific foreseeability important?

GENERAL/SPECIFIC FORESEEABILITY- Evra v Swiss Bank (CA 7, 1982): Posner’s analysis of case looks to General and Specific Foreseeability

- Last minute bank transfer gets lost in the ‘wire’ mail. Hyman loses his boat, b/c of lost pymto His issue, was pymt cause loss, previous acceptance constituted acceptance and relianceo Swiss bank just couldn’t know how fragile this K is; must have some knowledge of needo In keeping with the animating principal of [K’s case] Hadley v Baxendale, no foreseeability=no $

could sue on underlying K # 2 as a3dP beneficiary- who had foreseeable D’s: Sorry, no.- Defenses

o Put in a category of especially damaged s. o AVOIDABLE CONSEQUENCE: Mitigating Post Breach: they could have avoided this just by paying earlier

Strictly speaking: inappropriate application- mitigate damages from breach Failure to wear a seat-belt is pre-breach NOT post-breach

o DOCTRINE OF LAST CLEAR CHANCE In tort claim it might be more like- LAST CLEAR CHANCE: by making pymt early he could avoid this

Note that they did nothing to cause this griefo EX: Kor doing work in airport, causes loss to other business closed too long, these harms were actually

foreseeable; was put on notice when owner complained

Brunswick v Pueblo Bowl-O-Mat: WRONG MUST FIT THE REMEDY; nature of substantive interest may defeat remedy- Secured Transactions ex: here Sec C sells equip and owns it until Debtor pays it off

o Repo is Not good here b/c there is no market for bowling equip in the 60’s; too depreciated- What is the substantive goal of the cause of action?

o The interest protected here is competition– not monopoly- right to be free from undue competition o greater monopoly is not a right protected under the statute: no monopoly here b/c no profit motiveo We have a right to be free from anti-competitive conduct: but the substantive interest trumps

- Other substantive/remedial conflicts:- Employment disputes: right to work; right to safe conditions; whistle blower retaliation- labor v immigration laws

o Illegal aliens may bring these kinds of claims; BUT: their right to work in US is proscribed. T/F They are not entitled to reinstatement note 3/4…..

LOST PROFITSo Did the breach cause the loss? Would the business have lost profits anyway?o Can lost profits be proven? What’s the best evidence? What other measures are available?o What about a new business? Will Future Physical Injuries result?o Should their apprehension be compensable?

MEASURING LOST PROFITS RKO Case- Price Fixing Scheme: lost patron income; but for ’s conduct would have made a profit; RKO Theaters deal keeps films out of the outlying areas

- Hard to make money if they hold films back; Causation and Proof of lost profits in outlying areas- Circumstantial Evd Did price-fixing scheme have proof- circumstantial evd may be enough/ direct evd is better

o Hard to prove lost goodwill, expense to patrons; o They would need lost patrons to testify “I would have gone, but it wasn’t there”o Circumstantial evid is allowed in; a reasonable estimation may be acceptableo IF had a record of profitability, but not anymore, it may be sufficient circum. Evd; record keeping

[profitability evidence]: Probative of before/after evd; proof of profito compromised by causation and record keeping

- What was the injury worth? More probably than not, Up until the time of jjment caused to lose profits - Where shows D caused injury, uncertainty created b/c of nature of breach, can’t complain about uncertainty

MEDICAL COSTS- CD’s; - Exposure to possible future injuries, tf costs;

o Ex: stewardesses who were exposed to second hand smoke but didn’t know until later that they would likely get cancer; aids; black lung

- Don’t forget we are looking only once for ‘past present future’ injuries, by virtue of this breach

o Ojo: this is why leos take photos of e/o injured in case injuries are not so visible latero We must rely on experts, who might be able to testify ‘more likely than not’o s often have apprehension, or must be monitored- may or may not be compensable

- s often try to avoid pymt of these kinds of costs; they want to limit compensable D’s

WK3- limitations of different approaches: CD’s must be foreseeable; duty to Mitigate; chance to find offset- rise & fall of CSR –no windfall/double recovery][substantive rights>D’s][prove D/$ w certainty]WEEK 4-Injury Measure of Injury Limitations ADJUSTMENT TO DAMAGE AWARDS: INJUNCTIVE RELIEFProof Problems: future lost income; lost earning capacity; kids learning capacity-

- Non-pecuniary harm: Finding a measure: Accurate, but non-prejudicial; Pain cannot have a $ amt; How does jury decide a reasonable amt?

o Look for a BENCHMARK: a comparable loss that matches what my would earno Debus v Grand Union Stores ; 621 A2d 1288 Vt 1983:

PER DIEM : excruciating pain every hour of the day, every day for the rest of ’s life Many states allow per diem arguments- How much is reasonable to pay my client?

She is suffering 20 hrs a day, 365 days for the next 30+ years. Even if we give her only a fraction of what she would have earned.

OJO: try to construct a jury instruction that would withstand atty challenge; cali lessono The Golden Rule- how would I feel if I were injured this way? Rejected b/c it ‘asks jury to consider facts

that are not in evd’ ie their own feelings have not been entered into evd. P139 Where there is no PD argument allowed- atty can only say to jury ‘my client will have p&s for

the rest of her life. I ask you to consider what a reasonable award for such pain should be, and then award that amt.’

o Westbrook PD Case upheld-, p 137, 15 yr Upheld PerDiem- upheld probably on basis that there was a cautionary instruction

o Cts look at pre-injury, post-injury Always look at foundational basis [ex: I am more likely than not to graduate] Cts look future earning capacity-

Kids: expert evd of average earning capacity of child w at least a high school ed Parents education- more educated parents generally have better educated children;

note that children often far exceed the education level of their parents; in MI average earning capacity [used to be a road construction worker- 28/hour]

o must compensate for so much that may never work [9:22 hear examples] while my may have agreed to go thru childbirth or risk sports injury; she did not consent to X. It is unfair to say that she is suffering less than b/4, tf it is not necessary to pay her for that p&s

- Compare P&S and hedonic loss- those things enjoyable in life that can no longer do p 137n2, 140 n11; 142o Sometimes we are so injured that there is no longer enjoyment of life

Hedonic might be available where is unable to testify as to such losso Many cts will not allow both P&S and Hedonic: Lives w/o value

Doctrinal Approach- Prerequisite injury & Manifestation- Statutory Damage Caps: is justice really served by a legislative cap? Maximum awards for certain losses

- Recall the gr that no P&S is allowed in absence of pers/prop damageo BUT- if conduct is unconscionable- shocking and outrageous- that anyone would suffer P&So Levka - no physical injury due to strip-search; she seeks award for impeachable mental distress claim

agoraphobic goes shopping?- is there really injury; should go into some treatment etc, so that there is some manifestation Compare to Hatahley no one size fits all? In the absence of any particular damage, ct found

these ds excessive, and asks for remittiter. - Note that there are a lot of ways to manifest pain- blood pressure rises with pain increase- Emotional distress D’s are generally unavailable in a Contracts action. Not individual/specific enough to allow D’s

o If Expectation Interest includes some level of ‘care’ and they fail to do so- ED might get awardedo o/w in the absence of some underlying tort, D’s are unavailable in K law

- Cary v Piphus . Dignitary: Non-pecuniary Harmed reputation- suspension may lead to presumed damageso Is entitled to D’s for infringement of €al right to Due Process?? NO Gen/Pec D’s, only Consequential

He lost his right to education- ds = tutor/ different school cost; market value- how much does the school system pay per student

- cases to look up: stu denied entrance into NHS for pregnancy: does she have a capitalized value loss. Holt stu attends prom in Irish regalia including a knife; He must show that law was unreasonably applied to him.

- SC has denied Compensatory GD’s of €al Substantive/Procedural loss- must have actual consequential damage Adjustment to Damages: Taxes

- Norfolk & W. Ry. Co. v. Liepelt , 444 U.S. 490 (1980); minority federal case: o Fed Ct Jury can hear that Personal inj award is not subject to tax; not prejudicial [not a state rule]

SO: settlement may be reduced by tax amount [only non-pecuniary portion is taxed]o Taxes are not included as a general rule;o Dissent: jury should be entitled to consider the impact of taxes on this award

Adjustments to Damage Awards: PJI Inflation means that will ask for all $ up front in a lump sum award- Milwaukee v. Cement Di v., National Gypsum Co . , 515 U.S. 189 (1995) NO INTEREST ON PAST DAMAGES

o If does not have to pay immediately, he benefits from breach, b/c he has the use of $ that is losing, (by time of verdict we have a liquidated amt; but during pre-jjment amt owed is hard to figure;

o charging interest encourages to go to trial or settle quicklyo This case is congruent to cl, so we look to cl to determine pre-jjment interest

- The rule of 72 : 72 / int = 12 years is how long it takes $ to double value on interesto If the average LS takes 6 years; average rate is %6; award 100k-P&S

half of 12 years is 100k; so she is owed 300k; My fee might be paid completely out of this amt MUST PLEAD THIS: failure to plead this is malpractice.

- PREJUDGMENT INTEREST: Damage that represents Loss of use of $ - Note; prejjment interest attempts to capture $ has lost during litigation, until time of jjment

o For Sum Certain or Liquidated v Unliqidated Claims – PJI will attach, but it is ltd to theseo This is the interest lost while had her money; what could have earned on $ during pretrial period

Like lending $, so interest is due; It removes incentive for delayo If breaches- physical d can quickly be assessed, but lost profits are more difficult to measure;o JJ may be tied to market interest rate: 199; encourage to pay; to take b/4 $ is goneo $ should be in an interest bearing account, in order to replace lost income to o SC has not been consistent on PJI; it may/may not be awarded

- discounted to present cash value important that lump sum pymt should be discounted to present cash value o It is presumed that would have invested this $ and would have a gain on ito Almost e/t is affected by inflation GR: price inflation outstrips wage inflation

- elements of damage discounted to present cash valueo Compensation for future injurieso Future lost wages- lost stream of incomeo Health care

- What is the relationship between inflation and discount rates? [discounted to present cash value]o D’s are meant to replace the predictable stream of income or expenses incurredo Not e/t is subject to discount, some things are not predictable: t/f not allowed into trialo EX: child who suffers lost limb- suffers lost income, occasionally replaced prosthetic, P&S, etco Kid won’t need this $ until he turns 18- then it should be used up in his lifetime

Inflation will rise, tf raising his costs, income: this award will be his only compensation Taking inflation into account where jdxns permit it is essential to the case Evd: predictable rate of inflation; Very few costs will not be affected by inflation; he should be able to invest that $ and at 18 know that he will be getting $= lost earnings goal is that when he dies there was enough to support him, but have nothing left over.

o What is the real rate of interest?- Jones v Laughlin , Ct not bound by state ct ruling; fed ct must determine inflationary factors based on corresp int

o to compensate at an appropriate rate of inflation: appropriate rate of discount: market rate of inflation should be offset by a similar rate of investment-market rate of return

o Generally, future damages are awarded in a lump sum, discounted to present value (PV). PV is the amount today necessary to have X dollars at some time N periods from now. In some cases, Installment payments may be awarded thereby avoiding the necessity of discounting to PV.

o To be bound by state court ruling is reversible error; case is remanded to be determined under Federal law, not state law; lower ct must take into account some discretionary factors of their choosing to determine what present day value will be.

- 208-211; Should we use compound interest:o Procedure: Juror may have to determine present cash value- o Post jjment interest will also begin to accrue

- P214: create a Structured Settlement: assures $ is there when needs it- You can even sell it and get $ up front

Week 4: cash value/ present value/ why pecuniary harm is hard- difficulty proving value- Brook

- Replevin- traditionally a legal remedy; specific legal action to get my goods backo Specific relief is available w/o any showing that the D remedy is inadequateo Continental - Harm to its power, not its purse

Substantive- remedial; CHOICE: super damages to wait it out; or sue for past damages & future conducto Damages v getting some remedy- kick him off, keep him off, stop conduct

WEEK 5 Substitutionary ReliefInjunctive Functions

- History: Discretionary Relief- Chancellor to act on equity & good conscience to determine fundamental notions of fairness & justice; practice and history of courts led to standard practice today

o Equity is jj tried b/c rules of stare Decisis apply; based on history & traditiono Judicial discretion- not arbitrary, based on the same history; fundamental R/W notions abt preventing

harms that may occur; no one should have to endure this just to get compensatedo Super Damages v LS for past damages and inj for future conduct

- Purpose- prevent future harmful conduct; keeps at bayo Must be able to move in an emergency: TRO/Prelim

- EX: Adverse Possession CHONEs; Quiet Title- Writ of Ejectment: ouster of adverse possessor; no Legal COAo COA Trespass: D’s for dim in value, nominal d if no harm, value of a/t taken-

at time of taking or at time of harvest; mineral rights- fluxuating commodity at HIV[highest intermediate value];

prejjment interest; future harvest gets discounted to Present cash valueo PLUS we might want some injunctive action- remedial- get him off

- Preventive Injunctive Relief o Always some sense of urgency; trying to keep at bayo (RIPENESS) CERTAINTY substantial or realistic threat that future harm is certain to occur: not speculative

PROPENSITY OR INTENT/ ONGOING VIOLATION: prove certainty that future harm will result: prior violation or an continuing threat are evidence; no threat=no equity

o Why not always enjoin wrongful or unlawful conduct?o Substantive equity; ct can be convinced that,,,,,,9:15

EX: quiet title: No legal right is being protected; coa=Adverse possession; I need to get writ of ejectment to get rid of him; he has to try to get quiet title

EX: s/o cuts down my cherry tree- trespass, I seek damages for the diminution in value ot my land, nominal Ds if none; value of tree- at time of removal or at time of harvest

EX: s/o taps into my gas line, steals my gas; it is a fluctuating value; so I want to be compensated at the highest best value, and I want Highest Intermediate value;

I might need to adjust for inflation and discount to cash value AND I may want to be sure he doesn’t repeat: seek remedial option for injunctive relief If he has chopped down all my cherry trees; inj relief won’t help Legal Remedy will

- Almurbati v Bush : Gitmo detainees frightened of deportation to hostile territorieso Mere apprehension/propensity isn’t enough: ct requires some act on ’s part that shows intent o Here s have only opp counsel assurance to court that it will not occur [cts often accept their word] o [here there was no evd of intent: no prior acts; no extrajudicial evd of intent to deport] [atty may have

counseled : ‘you must/will cease and desist any such conduct, so I can honestly say is at no risk’]- JDXN

o Transaction costs: If it is too high- Posner says just pay damages Where it is low- usual remedy is injunction Bilateral monopoly exists where parties have no choice but to deal w/ each other

SCOPE OF INJUNCTION: How broad should the injunction be?- National: What evidence would support a nationwide decree?

o Marshall v Goodyear - if had been required to follow national policy, probably would have won was controlling only the local office, not the nation- so the scope picked was too wide Must show nationwide policy, centralized conduct; conduct=scope

o How much?? N4 272 Extendacare: 100 violations at 133 facilities =/= nationwide; still not enough They should have tried to get the conduct stopped at local facility Did have ability and propensity to harm e/w? probably not

o Abortion Injunctions: reasonable restrictions on TPM; right to privacy etc

- Note 8 p 274- FRCP: 65(d)(1)- inj requirements [ojo: generally controls inj details][appeal judicial scrutiny]o State reasons for issueo State terms specificallyo Describe in reasonable detail; not just by referring to the complaint

MOOTNESS: a case is still arguable- NEED PROPENSITY AND INTENT THAT THERE IS RISK OF FUTURE HARM- Factors to be considered to determine if a promise to cease & desist renders injunction moot?

o Can do this again; Has voluntarily desisted; Is it likely to happen to again: Lyons wasn’t likely to be chokeholded again; did sue for D.

- Look for propensity / intent/ continuing conduct v single act/- Why not always enjoin wrongful or unlawful conduct? It may overload cts; creates a stigma on the

o It is a waste of judicial resources; Excessive burden on the ct- No cognizant danger of a recurrence

o If it’s a credible renunciation of the bad conduct, if it is voluntaryo will say: it is only speculative; it will never happen again-

ceased and desisted; this is now moot and no remedial action is needed- Ex:

o Lead Injunctiono Patent/copyright

If a has violated statute in the past, why not issue a broad injunction to obey law in future?- If equity acts “in personam,” why are class actions generally unnecessary?

o Only need personal jdxn to control 1 ; we can compel/control conduct wherever it arises; add ’so We can order to to control conduct no matter where it arises; v legal, where jjment must have property

control in order to seek relief This largely controls need for class action

o rightful position- where would be but for this wrong- US v Grant : Anti-competition Clause: positions on too many Store Bds; SOR: abuse of discretion- not found here

o fear that he will fix prices; ct believes he resigned only b/c he was afraid of lawsuito Injunction requested; he resigns in the meantime;

- If a has violated a statute in the past, why not issue a broad injunction to obey the law in the future?o It interferes with ’s civil rightso €AL MOOTNESS- no probability that harm will occur again: ie no case or controversyo REMEDIAL MOOTNESS- can demonstrate that there is no Cognizable expectation of recurring harmO REMEDIAL MOOTNES TEST

Bonafides of Expressed Intent to Comply Effectiveness of discontinuance character of past violations

RIPENESS No likely risk of cognizable recurrence- must establish that there is, more probably than not, a ripe issue, will commit an act in the future that will

endanger ’s rightful position, and will in fact, be injurious to rightful position- must also prove [ripe/ not moot] that the act itself will be wrongful, injurious to

o Nicholson v Conn Halfway House , 1966 [context matters; this was a social experiment] Difficult to get an injunction against a properly zoned use; is building a permitted facility; there

is no failure rate for basis of LS; ct refuses to enjoin a social experiment that is condoned by system; (looking at certainty that act will be wrongful);

ct cites: Brainard v West Hartford Funeral Home- anticipated unreasonable use of property; fear of exposure to dead bodies is more understandable than exposure to criminals!! Lol!

Certainty that act will be wrongful- not that the wrongful act will occuro Pepsico v Redmond

Pepsi enjoins ex-empee from joining Quaker b/c of risk of trade secret exposure Compare to PR conflict of interest; not realistic to expect him not to act against P; here there is

just the likelihood is that it will happen; Conflict of interest: Wrongful Effect- there is no evd of wrongful conduct, just a likelihood that he might

Injunctive Functions: Preventive - Reparative – Prophylactic- All injunctions must have a preventive purpose!; all injunctions must prevent some harm

o Prophylactic function: Preventing lawful acts to prevent future harm [no violative conduct took place]o Reparative functions: Correcting past wrongs to prevent future harm: reinstatement order after firingo Provisional: o Permanent

- Prophylactic function: Preventing lawful acts to prevent future harmo How does it do that? Purely prohibitive/compulsive; deals only with future conducto Not inequitable b/c it often prevents non-violative conduct in order to protect unharmed

May include preventative step, designed to guarantee that future injury won’t happeno P 292 N11- Injunction should Keep close to rightful position

subject to constraint that won’t be better OR worse off Marshall v Goodyear : not firing seniors is not enough; must also ?? Ex: ct order to stop beating spouse; must also attend anger mgmt classes; added protection

o Waffle House decree- racial discrimination practices- decree included: make pub service ads Inj relief- no more disc conduct Prophylactic: s had to put on and pay for pub service commercials: value racial equality!!

Ct went beyond what went on in establishments, in order to really correct the wrong.o Bell v Southwell - voter intimidation: had to hold reelection, provide safe polling place;

keeping old official would mean the harm would continue; new vote ordered- Reparative functions: Correcting past wrongs to prevent future harm; by fixing harm done

Ex: pollution of groundwater; ct can order to stop; ct orders to repair; to prevent future harm, may order him to fix it

EX: don’t fire any more old people; AND rehire old empee [maybe give backpay]o Forster v Boss : only 1 permit allowed; how we can get a full remedy- both remedial and substantive

To sue for Ds- cost to remove dock; loss of use of dock wants new permit and new dock- this looks like double reparative relief Laycock: …. Rights- right to use of prop, watch out for redundant cure

o Rightful Position: must establish that there is, more probably than not, a ripe issue that can be resolved- Winston - patent infringement- can’t be worse/better off- just restored: when should it start/ how long last

o Case tells us that a temporal restriction [even permanent] can be sufficient; legislatively mandated If competitions product comes to market earlier- how long should inj last? If in starts in pre-trial period, jump on market period is the limit of inj: no right to exclusivity

o Toughest point- proving infringement; here former empees took knowledge to new empr and got product to market thru

o Q: when and how much? Min Con wants permanent inj; Ct holds that once secrets are out- ie put on the market they are discoverable and t/f no longer protected; we are all free to figure it out; no permanent inj b/c public knowledge isn’t protected

o A right to exclusivity is significant but limited Their rightful position is to be free from unlawful (not all) competition; t/f they are protected

against empee conduct but not the general pub wants no injunction at all, b/c the secret is already out of the bag

Ct looks at timeframe- mincon time 4 yrs [lost time$] marketWinston earlier market

o wants lost profits- new product - no way to show lost profits but for empees taking secrets; Liquidation Trust Order:sell everything and return everyone’s pro rata investment

- Bailey v Proctor - Ct can create equitable situation where it deems it necessaryo Cng shall have no law that infringes on the right of Kontracts; so courts do it- b/4 inv loses even more

possibility of misconduct was so great that the ct felt action was necessaryo I take 7050 to vegas, 7k client, 50 of my own; I would use client $; or I could use 100$ + 4% of every C

and I keep any profit; I pay you back 104 and I win 700k; bad behavioro SEC made alternate investment trust illegal; petition to appoint receiver & liquidate trust- e/o gets their

pro rata share plus their profit share; But says cheaters are gone, so if risk is gone, why liquidate a solvent and profitable trust?

o OJO: this kind of trust is now illegal; owner/trustee protected, investors risk Ex post facto; cng can’t make law grandfathering trusts into illegal acts But ct is not bound by this law; so ct can create equitable situation for Ps

WEEK 6 Exercising DiscretionHarms, Supervision, Practicality & PolicyAdequacy of Legal Remedy

- Always explore the facts to be certain to discuss how legal remedy is unavailable- Adequacy of Legal Remedy: Complete - Practical – Efficient

o € authorizes equity jdxn for federal courts Can be a great intrusion on ’s liberties: I can’t play my radio at all!! Adequate Remedy: Must be no adequate legal remedy choice of final jjment remedy Irreparable Remedy: Equity acts only to prevent injury that is irreparable P Inj; TRO

- N3 P390: The Irreparable Injury Rule:adequacy of Legal Remedy: LR is Adequate only if it is as complete practical and efficient as the equitable remedy; ’s burden to overcome

o Is the threatened interest ‘unique’? Can the plaintiff purchase substitute?

- Pardee v Camden : Black letter law: must show s/t more than just economic D’s in order to get Injunction: o Unique items – long term contracts; what makes an interest so unique that it merits an injunction

Cutting down my special trees, how do we know the future value of trees? Normative societal values change- today we see trees as being quickly replaceable

o Propensity for defendant to continue the violation o Measurement difficulties o Insolvent defendant

- Is the threatened interest ‘unique’?o Can the plaintiff purchase substitute?

Campbell’s Soup – even carrots can be unique Limits of market share- ct is willing to protect lost market share; award of inj relief is

established clearly, but- they get remedy at law?? See examples 394-395

- Maitland : article on prudential concerns- - 382 N4: Where avoids voluntary transaction, market keeps transaction costs low, could have entered into K,

but didn’t, should payo But what if voluntary transaction is impractical- U threaten to burn my wedding album if I don’t buy it at yr

cost; only the ct can ascertain the value, pretrial o EVD: settlement negotiations are not admissible to show Liability

OJO: pretrial conduct is often relevant in determining whether to grant an inj.- Brook v James A. Cullimore & Co REPLEVIN/TROVER

o No way to tell if goods are irreplaceable; when goods are taken replevin is availableo Sometimes we need equitable replevin: goods may be vulnerable, capable of being secreted away- they

are fungible or perishable; Order by ct to bring goods to court- v writ of replevin, where sheriff does the work. must prove goods are unique/endangered if they remain with for any time at all Most often used for prelim injunction- goods are in ct during pretrial periods N3 p…:

- Certainty or Extent of Threat?o Can the plaintiff establish the extent of loss?o Continental v Intra Brokers

Extent of harm is too hard for to prove- Effectiveness?

o Is multiple or repeated litigation likely?- Deterrence?

o Defendant’s intent? Insolvency?o Is wrongful conduct more profitable than damage liability?

o Factors intent: may be able to show that won’t be harmed might be committed to the course of conduct D’s may be too small

o Liquidation D’s are sometimes hard to determine: less chance of pymt; D may be owed, or it may be found invalid; ADR looks for LD- parties would never agree if there was no chance of specific performance.

- Wrongful Leverage?o Market controls & economic powero Ct might see as getting too much compensation

Equitable Discretion- Balancing Harm

o Not benefits! What is the effect of Intentional Misconduct?

o Economics of Undue Hardship: Allowing the efficient breach of contract Striking a deal in a Bilateral Monopoly

Who determines the damages?- Absolute and Relative Harm

o Whitlock : can show that economic harm may befall if he complies Real property and nuisance cases is often required to tear down completed construction that encroaches. is trying to get balancing of relative hardship P414- economics of undue hardship:

Generally considered a defense; for good faith conduct Bilateral monopoly: relations deteriorate so that neither cooperate; result is a

deadlock that leads to some illegal act- Practicalities: is enforcement practical???

o Enforcement & effectiveness; undue hardship on ct and parties- Co-op Ins v Argyll : Undue hardship rule has two components: hardship on D, and hardship on court

o Ct may deny injunction where it is too onerous on ct and parties;o Store can’t make $, bad location; if forced to stay open, store is in trouble.o Ct doesn’t want to supervise s/t that can’t really be accomplished

- Policyo MI Rule: affirmative requirement that justice requires injunctiono 4 factors A plaintiff must demonstrate:

(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate

for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in

equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

o Ebay v MercExchange

o Willing v Mazzacone - sandwich board bitch: $25; it would be best to just pay client; A/C relationship has clearly broken down.

No prior restraints on speech What would happen if this went to jury? Defamation- how many have had issues with lawyers?

Jury pool is probably empty; defense would be – truth, opinion, these are unqualified statements of opinion- this is not winnable in front of jury

o Public interest: specific policies General unwillingness to impose restraint on prior speech

LAST WEEKEquity Ct exercises discretion by weighing factors to decide whether to grant injunctive reliefWhat constitutes that an injury has caused perm irreparable harm that have no legal remedy

- Losses that are beyond replace/repair- Ofther factors cts consider- How cts weigh balance relative hardship

o Balance: denied granted- How cts consider Public Interest Willing v Mazzecone

o General unwillingness to impose prior restraint on speech: cts look at TPM; scopeWEEK 7 Remedies - Class Seven Pretrial Injunctive Relief Declaratory ReliefSubstantive Limitations on Equity\ always look for adeq rem at law first [do calis]

- Equity will not generally enjoin speech: reasonable TPM restrictions- protest cases w/ setback rules• Ct might raise standard of proof to CC&E• Might have to prove such tremendous harm that it will overcome policy concerns

- Equity will not generally enforce personal service contracts NCC• Non-competition clause- might allow prior empee to work in same/similar field

– Ct mght look at geographic, time restrictions – Reinstatement might be statutorily required. Or ct might demand it– Might require empee to complete emp k- if ct can adequately supervise, OR empee can sub-K.

- Equity will not enjoin litigation• Repeated bad faith ls-> malicious prosecution might allow D’s; look for bad faith/harassment immunity

- Equity will not enjoin crimes: BUT• Ojo: mi even has anti-stalking laws; Kevorkian had 5 acquittals, obviously irreparable harm, and

prosecution was not a deterrent; here ct issued an inj against the crime – Ex: Public Nuisance may be prosecuted

• Crim Conduct In Rem: house used for illegal – an inj might be issued against prop owner to prevent them from ‘allowing’ the drug dealing.

• Dwarf tossing: no assault b/c it was voluntary participation; but PA enjoined it anyway- bc of risk• exceptions

– If you can enjoin a crime you can try to get ltd …– Public nuisance- GR is that there is more than 1 perp– Ultimate fighting champs: org didn’t want to get a permit, so they just didn’t use gloves; PA says

fine for failing to get permit is minimal compared to profit margin and risk involved; - Equity will not enjoin elections: right to vote is a €al fund right; equity will rarely intervene; Bush v Gore

• Not stopped, re-held, or have recount of votes: it is a fundamental right, so cts rarely intervene• Election commissions are an internal check;

Bell v Southwell - despite policy concerns, ct issued ct order to rehold election: reparative injunction- Equity will not disturb private organizations.

• Equity will not intervene in religion, private rights- look to internal mechanisms; private, no state action• Bar denial- agency denies app, ct refuses to hear case, w/o some compelling reason• Devil’s butte : govt enjoined public mountain climbing during Am Ind religious ceremony

– ct faced €al right to religion v right to income, enjoyment of pub park etcPRELIMINARY OR PERMANENT RELIEF 440

- URGENCY- must be a compelling need to protect STATUS QUO pretrial relief- We need pretrial relief s/t: when my neighbor chops my trees, ct must protect status quo-

• if not I will lose whether I win the case or not, by then my trees are gone.TRO is brought before a Pre Inj is generally brought first

- On the record proceeding; formal service is given; case is set for hearing; interlocutory appeal is available- Many TRO/Prelim considerations are the same

Preliminary Injunctive Relief: goal-preserve status quo from being injured during pre-trial period, until Decision on merits- Status Quo: return to last uncontested moment; no changes please- PI Order is issued on interlocutory appeal and taken up- Extraordinary circumstance- visitation issues, bank acct protection- We need to read the entire case and have all in hand at hearing- The ‘traditional’ test:

• Inadequacy of Legal Remedy: • SLOSM Substantial likelihood of success on the merits: liability AND remedial

– Winter v NRDC: Mere speculation is not sufficient [ proved to a certainty]; is it harmless

– Cts may allow PREL INJ to form the basis of the case: it’s a mini-trial• Irreparable harm during pretrial period that cannot be remedied by D award

– cannot be repaired if not enjoined during pretrial period– Where can show disproportionate harm, ct may go on to consider balance of relative policy

concerns, and ct can continue w/o substantial Lof SOM• Balance of the Equities: Harm to plaintiff if denied outweighs harm to the defendant if granted• Public interest:

– Winter : They must have temporary relief to which they will ultimately be entitled PI: Well trained military requires PI support

- LA Coliseum Oakland Raiders 447- anti-trust case; first impression- first case of its kind: D’s sustained during pre-trial period = adequate remedy at law. GOOD EXAMPLE: football lockout has all the issues; good reading

- Look for Speilberg Amistad Case- writer looking for pre inj; ct sees no pretrial issue- she would get - THE ‘ALTERNATE TEST’: a serious question and disproportionate irreparable harm; 9th Circuit:

– When is it appropriate? Probably only in cases of first impression: you can’t use stare Decisis, b/c it would be too hard to show; ct may hold status quo until SD is determined.

There might be an analogous case cited– EX: title 9- boats went to count whales [are they endangered etc] women were locked out, sued;

defense- no separate facilities, too much disturbance: Cts gave temp injThe Goal of Provisional Relief

- DEFINING THE STATUS QUO – wants to preserve the last uncontested point? wants it to stay like it is- The continuation of conduct is being challenged: preliminary injunction alters -v- preserves the status quo

• Does maintaining conduct alter or preserve the status quo?- Adcox Pet Bear: bear not hh pet; homeowners assoc amends K to eliminate bear; Q: is bound by amendment

• Yogi was not doing anything wrong when he move in, • but ct sees an overriding danger- he is only ordered moved- not destroyed.

- Ferret case - SC ordered him put down to determine rabies hazard; status quo was altered here;• there was a more compelling interest, safety, preserving public safety

- EX: is not entitled to bene, protests; does govt or ins agency have to maintain bene during pretrial period? Would the ultimate issue still be viable??

PRETRIAL BOND REQUIREMENT: Required in most jdxns; might be able to say is too poor to post bond- Bond is generally issued at Prel inj hearing: be ready to pay when you go; how costly will this be fore ;

• u may request it when you go to court• cost: non-returnable Surety bond %: not a recoverable cost; some debate over fairness of surety cost

- Purpose: to pay D’s accrued during pretrial pd, it is whether has ability to indemnify pretrial period costs• Good/Bad Faith is not the issue

- Coyne Delaney - had to post a 5k bond, where wanted a 50k bond• Intervening SC case establishes right to exclude certain Kers if Quality of their work is challenged• wins, and defeats challenge• Absent bad faith, the bond amt is the cap/limit on D’s award

– They did not look into what they should have done procedurally– They failed to appeal or protest, go back to ct when lit cost exceeded 5k

- damages covered under the bond:• Atty fees are litigation costs, not inj compliance costs, so many cts exclude them

TRO- off the record, exparte meeting that results in a temporary order decided w/o formal notice or service of process; - Order issued on verified complaint by following in-chambers, ex parte informal proceeding, t/f not appealable

• As opposed to formal process w/right to be heard- Short shelf life- generally 10 days- Same requirements as a Prelim

• Proof of irreparable harm during pretrial period, before hearing: s/t not adequately remedied by Ds award• Irreparable: harm to will be greater if granted than to D if it is not granted• Public Interest

– Princess Anne - even though it is not required, notice to is a common practice, should be tried Failure to make an effort to get a valid order may make it unenforceable; Atty duty

• FRCP 65: atty certifies notice; there are times where it might not fly- – Notice should be dispensed with for example, if …

- Sampson v Murray : unemployment during pretrial period means no irreparable harm; record may matter• Pre-employment misconduct requires pre-hearing: past is often based on hearsay evd• Misconduct on the job does not: proven by direct evd• She wants pre-termination hearing and prelim inj

– Ct grants TRO, in ct room, not off the record: Is it reviewable? TRO is dissolved- bc she has an adequate remedy at law She has unempt which means that there is no [GR tro is not reviewable]

What is the effect of violating a “TRO” which has elapsed?- Granny Goose p 465 n2: failure to renew TRO meant could go back to unruly conduct- Jurco V Stuart : What happens if backlog means TRO isn’t even filed in time- - BOND: jj may set bond for TRO; so be prepared for it, just in case- Have $ and be prepared to argue

Omitted: Declaratory Jjment Act: might want to look this up- Forum shopping; justiciable case & controversy; no advisory opinions

• We don’t want this to preempt an actual hearing that should take place• Stempel : if u like

Declaratory Relief: - Newman: No DR once you retire: Retiree feels left out after he goes; he sells his kids stock; why not sue for

rescission- he might owe $, probably wouldn’t have won b/c he was the buyer and seller- • Compare Boynton; seller should know more about item than buyer- she should know it was a diamond,

not a topaz; here Newman should know whether deal was fair. • What were the remedies at law?

– They sue for slander of title: no an adequate remedy at law b/c D’s might not be sufficient – Who owns the stock; quiet title action is extended to personal property here

- Declaratory judgment Act Elements: P 604/605a) Genuine controversy exists Yes propertyb) Action includes all necessary parties NO: Kids are not herec) Action involves primarily fact controversy Y Intent: fraud is a factual issued) Intent is to be now so as to avoid becoming later eliminate impending actions related to LS

- They go to quiet title Equitable: TEST- has possession of property; action includes all necessary parties– Still have slander of title, so they extend the law to end slander issue

Other Common Declaratory Remedies- legal Statutory; Equitable: Quiet Title, Reformation, Rescision [legal/equitable]

• important b/c: there may not be D’s yet; there maynot be an affirmative claim for D’s- just wants status quo thru rescission; may just want nominal D’s statement

- Hand v Dayton- Hudson : Ref v Resc: protection against subsequent error v leaving further litigation option open • Reformation: based on mutual mistake in written expression of doc so Parol Evidence is enforced

– Wrongfully induced Unilateral mistake- empee intentionally inserts sneaky right-to-sue clause– mutual mistake (PER is enforced) b/c they didn’t read it- signed 2nd draft w/o rereading;

• Rescission: cancel K and restore parties to original position– Equitable relief is specific relief; possible to tender back the benefit, then sue for $

I buy a diamond and get a topaz; if he refuses to take it back I can sue for $ Simple action at law for restitution

– Partially formed K• Ct removes bad clause NO mutual mistake here, so parol evidence allows the true nature of the doc in

– Ct assumed that a lawyer would know better than to try such a scam. – rescission gets you- 38k but still liable for age discrimination– Reformation will protect from loss faced by original doc.

- Rescission as Legal Relief: return of purchase money for an unfair K• BUT equity is specific; Most ls’s require very specific relief

– Ex: Newman would have been restored to his position with firm, new docs would have to be issued, stock transfers would be in question;

- Equitable Restitution gives Specific reliefCancellation v Rescission:

• Cancellation- Executory K that has not yet been performed– Promissory note: unilateral obligation

• Rescission- historically described as a 16escission of a partially performed K- Nominal Damages: is correct but has suffered no Damages; may help later

• Jury declares ’s right, but no $is due; if has not damages prop, would it be fair to make him pay? Nominal d where has spent a lot and expected a lot is hard to take.

• It is nonetheless a meaningful declaration of rights.– If Atty can get costs, it supports value of nominal D case;

Remedies - Class 8 Restitution Follow the Money 6/22/11Restitution Vocabulary [what did get? What did lose? When is it available, preferable? Measure? Specific v Subst]Cause of Action = Unjust Enrichment Remedy=Restitution [can be monetary, restores unjustly obtained benefit by ]

- DEF: Action where COA is based o a claim of UE that might arise out of K/Tort action; Restitution remedy sought – Restitution restores to a benefit unjustly obtained by .

- ELEMENTS: Plaintiff must prove that: Defendant obtained or derived a tangible benefit – At Plaintiff’s cost or loss under circumstances – Unjust for defendant to keep benefit

o Based on Quasi-Contract Theory; Indebitus Assumpsit [action on express debt] Court imposes obligation on to pay for benefit that he unjustly obtained or return the benefit

that he has unjustly obtained, as if he had contracted to do so- Common Counts b/f Restitution was recognized- E.g.,

o Money Had & Received= goods sold and delivered- as if I had sold it to him for that price In MI it is called Goods Claimed and Delivered

o might sue fraudulent bike seller for: 1k for bike, chk bounces, failure of consideration; might sue for D’s action on the price, replevin for bike[ specific restitutionary remedy] failure of cons= unjust to keep it.

$ paid on behalf of another: rent, housesitting services Action for QM- value of labor and services- owed Restitution has expanded beyond Common Count- look up term for some easy cases

- Measure - QUANTUM MERUIT V QUANTUM VALEBANT

o SUBSTITUTIONARY: Cost to acquire or value derived Ex: Ker cheats homeowner- substitutionary collection; what would it cost to get concrete poured

o What if it improves the value- what defendant owed by virtue of benefit bestowed We might owe diminution in value, loss of market value cost to purchase is generally lower than the increase to market value derived from that benefit-

o Will damages really restore ’s loss or should we demand full disgorgement derived. Cost to Derive Benefit: What P lost is owed by D- Restoration cost to replicate benefit Value Derived from the benefit: Disgorgement- D might have to pay back all the $ he made by

virtue of his wrongful use of P P can get legal remedy: replevin; or D’s: dim in value or time lost; whichever is greater

Ex: D borrows P’s car and makes $ instead of just driving- P loses use of car, damage to car; D gains $ w/o paying insurance gas;

Disadvantages of Restitutiono Less gain for wronged GR: General+Consequential+Punitive D > than Restitution

Restitution is the Poor stepsister of Remedies: generally less than damages; why get cost of car rental when I can get value of cab business

o No Benefit Derived K cancelled b/4 performance: homeowner fires Ker on first day of the job- all he gets is D’s If I hit u, there is no financial benefit for me so no Restitution for u

Advantages of Restitution- Restitution > Damages: s/t full value derived is greater than benefit lost; and can get it- Restitution may be available where there are NO D’s: steal a $- get a $- win a million on lotto ticket - get million- Quasi-contractual benefits SOL may be longer b/c Restitution is based on a Quasi K theory

o Burden of Proof & Culpability: intentional culpable conduct may increase what can get- Survival of claim: Claim may survive death of ; OJO: Some jdxns cap tort d at same amt as Kal limitation

Measure: Value (Profits or Savings) > Cost

When Restitution is Available- Blue Cross Health Services, Inc. v. Sauer 619- computer error pays Sauer- restitution is owed; at some point

knew he was getting s/o else’s money; equitable v legal- here it is legal, no proof did anything else w/ $o How does ct decide if it is L/E?: whether it is unjust for to keep benefits should be decided according

to equitable principles: doesn’t mean $/no $; rather the duty to return should be based in principleo It must be unjust for to get benefit: here didn’t really ask for the benefit

- Common count of $ had/received: acknowledgment of services; change of position-Moses v McFarlan 623N10o Restitution at Law: may be based on Change of Position:

-- Mistaken or Emergency Performance

o Consensual may rise to level of K: if I didn’t ask for the bene, you can’t sue me for it But can I sue for it? There may be an implied- QuasiK that can be enforceable

o Reasonable: NAre these circumstances where an ordinary person would want to get paido Good Samaritan is protected- idea being to encourage help; but he can’t usually get paid; he might get

restitution b/c the emergency might create a quasi-Ko Battery: Dr saves life, property; if I slip and fall, & doc fails to ask- no restitution for doc

What about ‘do not resuscitate’ order- dr gets paid in face of directive does survivor owe $ Argument can be made for refusing to pay; patient clearly did not want this service

- Somerville v. Jacobs 627- mistaken improvement on land b/c of boundary line- Can’t foist improvement on meo ct gives choice of monetary or equitable relief- force to give prop or value of prop;o improvements can’t be foisted on me; did know? Relief might require some sort of title transfer

“Free-form” Unjust Enrichment: e.g., the ‘disqualified’ TPB- s/o else pays Kor to do some work on owner’s homeo who is intended beneficiary? what if owner has to pay GK, owner received ben of sub’s work w/o paying;

he owes even though he didn’t hire him [sub may sue under QM for services; sub’s only valid claim] “WAIVER OF TORT & SUIT IN ASSUMPSIT”: is waiving D’s claim in favor of suing for restitution of benefit derived from tort

o Waiver of damage claim in favor of restitution claim: conversion of property generally results in $ gainContract Avoidance Grounds: fraud, duress, undue influence, mutual/unilateral mistake, Illegality

o May come after partial performance- Rescission Remedy- Unenforceable Contract; avoidable K

o If I get a termite infested house, I might want $ and I might want D’s for difference in value- Breach Remedy- Breached vic gets his choice: D v Rest – value received v value of performance conferred

o Meaningless if value is not greater than loss- cap is at K price b/c that is an admission of value K price is an admission of full performance is the K price, so can’t get more

Restitution Remedy- value of benefit conferred: based on what got rather than what lost- Valuation of Benefits Received Cost v Value (How much Restitution)

o Innocent v Intentional Wrongdoers: what I owe depends on my culpabilityo State v. A.N.W. Seed Corp : Innocent L is ltd to cost of benefit- simple restitutionary remedy

634- sold prop at sheriff sale: vacated jjment changed measure of relief: restitution only Value of prop lost should = value lost at sale; b/c this was an innocent

o Anderson v. Schwegel 638 - Mutual Mistake remedy; must pay reasonable cost of services as if K mutual mistake as to car value: gets back a restored vehicle = value of restored upholstery

o Farash v. Sykes Datatronics , 643 Defenses: waits for to sign lease; no deal, where is the benefit? improving your own bldng shouldn’t benefit you; wnts to be compensated for work he did in reliance of the K; action for promissory estoppel results; but not in NY- Alleghany College- no Consideration for K

Measure of Restitution based on culpability- If consciously avoids a Voluntary Transaction- he may wind up giving full disgorgement

o decide to act w/o asking may lead to liability- o NO: bilateral monopoly: market with one supplier and one buyer; unwilling negotiator; misconduct by o Burden of Proof:

Apportionment All ’s are entitled to show that they have a right to some portion of total profits b/c it is not unjust; he has to disgorge only what is attributable to efforts of .

Ex: Car loan abuser- if show that his labor produced profits- he can get an offset What did Mair get for offset? Contribution to Profit; Sales due to quality of their product,

not the lable; Net operating expenses Defenses (Change of Position)

o Olwell v. Nye & Nissen Co . 649 Defenses- sour biz PS: egg washing case Used for so many hours over a 4 yr period; 10 yrs old at the time- ie fully appreciated. So where are the damages: virtually none so why the remedy?? Waiver of damages in exchange for Assumpsit Innocent D would have paid only value of use; cost once a week implied promise culpable D pays full savings he derived by virtue of use- disgorged profits

o Maier Brewing v Fleischmann Distilling 658 full disgorgement may be measure of D’s for intentional wrong would not have sold label; conscious wrongdoer must disgorge some if not all profits; - he

can’t limit scope of restitution; nature of irreparable harm- loss to profits, loss to reputation GR: K law is not purely punitive; benefits derived might not be based on breach;

COA: Accounting for Profits: conscious wrongdoer engaged in a continuous stream of profits is an equitable COA

- Form of action to acquire restitution from conscious wrongdoer who has used goods for profito Historical justification: pleading & proof challenges [4-6 equ r to protect restitution] o Current application: ongoing profiteering v single transaction;

- I can: sue for Conversion 1ok for ring; waive right to tort & sue for $ had and received (common count)o P must show his proofs; get order to show cause and order to account for his profits: Equitable

Problem: there is a failure to state a claim b/c I don’t know how much to demand; so amend- Dairy Queen Case- ultimate goal is $, so a jury trial is available; accounting helps me get proofs of amount

Remedies - Class 9 Restitution - Measuring Benefits - Forms & Applications Proving ProfitsApportionment- limit of restitution based on contribution by

- Sheldon v. Metro-Goldwyn Pictures . 665- must show that some profits are attributable to his efforts; o book was a very small portion of profit making; here restitution is meant to have a deterrent effect;

here offered 30k, but negotiations broke down and lost outo Mair Brewing Apportionment defense: they designed label, increased sales,

- GR ; In computing apportionment, profits attributable to copyright infringer should go to himo has to pay b/c otherwise there is a disincentive to act unfairly BUT: he can limit D’so Songs n4 p 669: Royalty owed may be shown on ‘a song’ compared to the whole cd/album o Ex: MGM grand stole show- profits derived were owed to e/o else around;

Operating Expenses: Pro Rata v Incidental Increase- Pro Rata: If I just adjust my operations, I might get only a Pro Rata share- 20% of my costs are

o Hamil America, Inc. v. GFI- floral pattern ; Incremental cost: had to build a new factory, establish a new system to use pattern

- Attributable to : must use my own $ to get oil; Ex: neighbor has a drill set up; it hits my oil field: she owes me for my oil; but she has no operating expense offset b/c she didn’t do any additional work.

o If I use stuff I already have, and just tap neighbor’s vein, there might be no additional costs.- GR: patent infringement on only one product means that general overhead apportionment is not available to ;

only the operating exp related directly to prod can be offset; o Here tries to get entertainment expenses: ct says 2 STEP ANALYSIS IS:

show the nexus and reasonable basis for showing how cost is reasonably related

Election of lost profits AND profits gained: by D for the same sale; this would be double recovery- I gain or U lose- can only recover lost profits if you can show that you lost b/c of other products etc.- RKO Bigelow : s/t profits can be evid of losses; so we can seek gains, and avoid restitution issues- If HIGHEST INTERMEDIARY VALUE can change, D’s can be recovered here, but it doesn’t work for Lost profits

o So restitution might be a better deal- value of stock at time of sale, not its highest value- OJO: if gained in biz A, and I lost in biz B, there is no double recovery, I can go after both.

o EX: porno Disney t-shirt seller o/s Disney world: No profit to ; but loss to b/c of X-rated image; could get profits, even though they weren’t in direct competition- but no profits go after for fine/injunction

- Note 4 p 677: Off Set tax: if D gets to make contribution net of taxes- they get out of paying taxes, P has to pay taxes on profits disgorged AND on the award- not fair

o Some Cts say willful gets no tax break but innocent D gets tax break- prof says this is unfair, it shouldn’t matter what he asks for

Ex: oil thief whose drill accidentally gets P’s oil would likely not pay these taxes.Notes on Disgorging the Profits from Breach

- Alternative Measures: Royalty Rate: may wind up paying a % of profits, not a specific number Restitution & Rescission & Enforcement via688

- Restitution: Cost restoration; a method of getting disgorgement even in a K situation; not generally available in K - Rescission: full disgorgement; ex: royalty dues; exceed license; D’s not proximately caused by b; can’t meet K- u/l there was some tortuous conduct; ojo: k law is not generally punitive; only loss is paid

o Snepp v. United States 678- govt agent who violates Kal fiduciary obligation by publishing un-reviewed material will have a constructive trust imposed. He must disgorge profits. A constructive Trust remedy;

o What is calculable loss?: US is losing national defense; instead gets restitution for book profitso Somerville encroachment case: no evd of intent; equity tries to divide things up b/t innocent partieso May : breach- seller deliberately sells fill b/4 closing; B sues for S’s profits, not damages

cannot use diminution in market value as a proper Ds remedy in intentional Breach of K that results in a windfall; Proper Measure = Benefit to

o Mobil v US : extend of availability of rescs/rest where Reliance would have been subject to D’so King party is entitled to restitution if other party ‘Substantially’ breached K OR communicated intent to.

Election of Remedies 691—may not be able to plead both ways, and rescission may be impossible- Today we can plead in the alternative; waive tort and sue in assumpsit

o Some courts will make this choice binding; Only D’s may be available???o When do we elect- some cts say any time up to decision; some say at close of’s proofs or at close of

discovery- ie it is governed by local jdxn- Not available where has waited to see what will happen 692

Notes on Other Grounds for R&R 694- when would restitution be available; transfer under R&R is available for← grounds for R&R:FLOC MUD- fraud , lack of capacity, mistake, undue influence, duress, - Look at Traceability: Ex: we seek restitution for lost down pymt on lost house sale; rest is generally related to

profits; it is not generally considered to be deterrent in nature: If I find a better deal and decide to make up what I would have owed, that’s probably ok, b/c my extra income is NOT RELATED to P’s losses

CONSTRUCTIVE TRUST- based on QK theory Quasi Trust- Equitable Remedy; P must show that $ will be inadequate, and will be irreparably harmed unless P is granted

injunctive relief; based on Kal theory, tf it is a quasi-Kal theoryo Plaintiff’s ‘equitable’ interest is protected by order of transfer; pretrial protection; o All U can get is $ had and received; to the extent of involuntary contribution: get partition/apportionmento Example:Defendant embezzles $10K from Plaintiff and buys Blackacre for $10K. Plaintiff gets10k

D embezzles $10K from Plaintiff and using $10K of his own, buys Blackacre for $20K. P gets 10ko Ct orders transfer of title/possession under an injunctiono In Snepp govt seeks to maintain CT as if Snepp was holding the advance for the govt

- Advantages: this is a powerful remedy- maybe the most powerful so far discussedo Even if property ↑ in value- gets . b/c it has been taken by, undue influence, duress, fraud, willful

breach of K, Breach of fiduciary, confidential relationship [breach of some kind of fiduciary trust]o Absolute Priority: P has an absolute priority in Prop held by D – he gets in line before BK court

Favorable Presumptions: Fraud Vic CT first… next> unsecured creditor last is a secured creditor- he moves to front when BK ct looks into any fraud at start of hearing Cts don’t always require proof of irr harm/inad LR: when there is truly conscious wrongdoing it is

easy for to show his right to the particular property- - Obstacles

o property in ’s possession may decrease in value; who wants interest in nothing- unless it’s all there iso No original title: the next BPV will get the prop if it is soldo Harm involves no profit; but note that later profits related to harm may be the subject of a CT

Note that if I make $ from my crime, may get it thru a CTo No Ownership rights: if D put improvements on her own prop; I couldn’t get to it o insolvency is not generally considered justification for equitable remedy; an insolvent D may lose his

prop to BKR ct unless P has gotten a CT- R&R Rights in Specific Property: If is not insolvent, has assets: Ct may start looking for a legal remedy: Sauer

o Paoloni v. Goldstein 695- CT Beneficiary obtains $ by tracing Trace by showing 1) lost profits 2) traceable to lost property that is subject of claim CT is created: enjoin from endangering trust by wasting, spending, encumbering, selling

Get an Order: a tree has a duty to expand the value of a trust for the beneficiary- bailee these duties are not imposed unless specifically requested

D is also required to make an accounting: all income derived from use of property o Ruffin v. Ruffin 700- Funds must be traceable to plaintiff’s tortuous conduct in order to be placed in CT

X-wife tries to get at deadbeat dad’s lotto winnings to get child support pymts. She tries to get CT against funds, b/c there is no nexus b/t $ used to buy tickets & money owed to her

She has no interest in proceeds b/c he got it after divorce- Laches: what happens when intentionally delays action, maybe b/c he is speculating on risks.

Ex: D steals trademark; P waits to see what will happen Speculation of Defenses N4 p 692

o No irreparable harm/inadequate remedyo Multiple victims, BFP’s, other innocent 3rd partieso Fraud (or similar) requiremento Middleman may buy it for 10 k and sell if for 20 k and profit the difference

Equitable Restitutionary Tools:- tracing funds apply with equal force to CT and EL; it becomes - alterna- THE EQUITABLE LIEN: judicially created security interest in a specific piece of property;

o can force foreclose and force sale; bring an action for the deficiency- he becomes jjment creditor o Decree can be recorded; so give notice to potential 3dps; it applies on date decree is granted;

Defeats D’s encumbrance during pending period; good if had no ownership interest in propertyo Advantages: When property ↓ in value – deficiency judgment is still available

car ex: if I put an EL on a car that my money buys; I have security interest and can still sue

o OJO; no deficiency is available under a CT: so EI might be a better choice if prop won’t satisfy debtIn re Leitner 703- Prejjment attachment is enough to impose CT if it would have been available in state court- preBKR

- CT arises at the time events occur that give rise to the duty to re-convey the property- Is there any right to funds before perfection of claim occurs; prejjment attachment is not available. It would have

to have been available at the time jjment accruedIn re Erie Trust Co . 711- Fictional presumption that the money withdrawn from a commingled fund in tree’s acct should nto be applied to defeat the cestui que trust rights where the balance left is insufficient to meet a trust obligation

- Ct may say daily closing balance is good enough ; but technology changes that; electronic transfers make it easy- Rules: Purpose is to give who is the victim of ‘breach of confidential relationship’ trust [fraud/undue

influence/duress] a way to be restored to his rightful position LOOK FOR SOME OTHER RULESWEEK 10 Restitution - Measuring Benefits - Forms & ApplicationsTracing the Benefit-Comingling Rules

- FIRST IN/FIRST OUT: first rule of Secured Transactions: good for multiple victims; Cap is ’s loss- Example : Time #1 - Defendant embezzles $10K from Plaintiff & deposits it into an account with Zero Balance

o Time #2 - Defendant deposits $10K fee into accounto Time #3 - Defendant withdraws $10K and buys drugs.o Whose $ is left? has 10k; has 0k [other creditors will like this idea]

- Example: Time #1 - Defendant deposits $10K into accounto Time #2 - Defendant embezzles $10K from plaintiff & deposits into accounto Time #3 - Defendant withdraws $10K and buys Blackacre which increases in value to $100Ko Whose $ is left? Who gets Blackacre? has 10k in bank; may try for CT; cap at what you lost

- Exceptions to First in/First Outo PRESUMPTION OF HONEST INTENTION Even if Defendant’s money is last in, it’s first out!

(Knatchbull v Hallett,) [it is not really fair to allow a dishonest/wasteful to keep $] Presumption is that a is acting honestly; t/f any $ spent wrongly is ’ $

In re Erie : it is not necessary to id each and every bill to be able to get it Example: follow $ out of account to preserve rights

Time #1 - embezzles $10K from & deposits it into an account with Zero Balance Time #2 - Defendant deposits $10K fee into account 10k Time #3 - Defendant withdraws $10K and buys drugs. 20k whose $ is left? has 10k; acted with an intent to preserve C’s $, has no $

o Presumption of Beneficial Investment- here can take advantage of FIFO if it’s in her best interest In re Oatway - notes: There is an implied promise that will make productive use of a Client’s $

Used where enriched property is worth more & used his own $ first to invest Example:

Time #1 - Defendant deposits $10K into account Time #2 - Defendant embezzles $10K from plaintiff & deposits into account Time #3 – D withdraws $10K and buys Blackacre which increases in value to $100K Whose $ is left? Who gets Blackacre? If can show right to benefit, she gets CT

o Restatement III- as against wrongdoers, the rules are meant to maximize right to collect 722n3:If restitution exceeds ’s losses; can get an interest up to his investment; remainder is then used to satisfy other Creditors; [very new/unsure; better to cite Hallet/Oatway]

is subordinate to these C’s- in some jdxns can get more once they are paid off- Lowest Intermediary Balance: the lowest balance after ’s deposit is the max return can get

o Ex: t1- steals CA’s $; t2 takes out 5k to buy Blackacre: has CT over Blackacre + 5k in bank T3: steals 10k from CB T4: steals 7500 from the 15k balance: CA has 5k in bank, CB has 7500 left

o In Re JD Services : 7,250 deposited; credit is 72,500; how much can bank take back No CT b/c there isn’t sufficient $; LIB is only 300k, can’t restore the balance; protects other C’s

- Differentiate Restitution in crim/civil: it is restorative measure ltd to ’s losso In Crim: Restitution is a restorative measure- order is for the amt losto In Civil: Prop in other’s possession went thru these processes

- P724 N6: Rogers v Rogers: equitable interest in divorce gives W1 a superior right to proceedso Wife1 has no adequate remedy at law; life insurance proceeds don’t run thru estate- no $ there; o Wife2 gets ins; New wife is only a donee; it is easier to defeat a claim as a BFP than if you are a donee

Equitable Restitutionary Tools: Subrogation- “legal” subrogation v. conventional subrogation [insurance co.]

o may be entitled to lien, get an action for the deficiency; but becomes another jj C; she no longer enjoys the advantage of ownership

o Here the becomes a collateral source provider b/c helps pay off a debto In Re Mesa : how do we value equitable lien? sometimes can show that the claim is investment- and

they are entitled to more than their actual loss; s/t cts see it as a loan; o N3 Robinson: couple built home on dad’s property; she is entitled to her sweat equity

- legal subrogation claim Elements: o legal claim for “money paid” v subrogation (as if an equitable assignment) by victim to payor

Collateral Breach Source Victim Provider Breacher

- EQUITABLE SUBROGATION - Restoring Benefits to Victims An EL might get his $ from date of actiono Victim v Breacher – as if creditor had assigned the debt (and breacher/obligor had consented)o Mort: Equitable Lein or Subrogation: can step into shoes of discharged Secured Creditor:

What are the benefits of subrogation? is first in line, b/c he now has the same rights as the original lender whose date goes back to time interest accrued- ie date of sale

Secured Victim Creditor Breacher

- Subrogation ELEMENTS:(1) Subrogee made pymt to protect his own interest(2) Subrogee was not a volunteer(3) Subrogee was not primarily liable for the debt(4) Subrogee paid off the entire balance(5) Subrogation would not be an injustice to the junior lien holder [if there is no discharge]

- These elements are also used by a Collateral Source Provider; CSP might not have $ available, will use SubOther Substantive Actions: [tort; mistake benefit capturable by jj: CT/EL/Subrogation/Indemnity/Contribution]

- Indemnity – no liability: Equitable action to be to be restored if some fault occurso an action brought by a party with indirect liability who pays an obligee o Like who? Deep pocket might owe based on vicarious liability; often by Ko What’s the implied promise? I will not sue you if s/t happens

Direct breacher is not pursued, so deep pocket might sue as if there WERE an ind agreement- Contribution – statutory: tort liability paid by s/o equally liable;

o an action brought by a party with joint liability who pays more than a fair share To recover as if there had been an agreement to pay equally

o implied promise that would have paid; so he should now- Defenses to Restitution:

o No benefit conferred: substantive- no claim b/c no benefit conferred; Ex: atty cannot sue for BofK if fired; only for Quantum Meruit- for services provided

Ex- contingency atty is entitled to a fair portion of what is earned: A1 might sue A2 EX: garage builder hires subs- lots of reliance damages if they are ordered off premises- they

has no restitution claim b/c they conferred no benefito Apportionment: substantive: some benefit has been earned by ’s efforts

Note that you must plead this as an affirmative defense to get ito Volunteer- Substantive My only obligation is to say thank you

emergency cases- No duty owed for gratuitous efforts Officious intermeddler- either I should have asked or stopped when you said ‘No!’

I can’t foist improvements like new culverts on a homeowner Atty who protects an heir, t/f a whole class of heirs develops- can’t try to sue later to get

new heirs to pay for serviceso Bona Fide Purchaser: BFP: When seeks to impose CT over property bought by a BFP

Subsequent property converters are J&S liable OJO: as against true owner- property may be gotten back except by a BFP who

o Takes in good faith and gives value Doctrine of Succession: Value has so changed that it is no longer identifiable as original prop

Lumbermill factory furniture maker art van[$ had] consumer [goods sold] Replevin won’t work b/c there is no more raw wood Some converter will be sued- maybe as L 3d P

CT might be available until a BFP cuts off a CT But these guys might be J&S L for damages for what they took (factory); conversion for

$ had & received (art van maybe)

Newton v Porter : - Change of Position- if loss wouldn’t have occurred BUT FOR the receipt of the benefit

o Must be able to show that accepted ben in good faith w/o reason to doubt bona fides of the benefit or right to receive it changed directly and proximately b/c of $;

not just old bills, rather a new purchase based on the receipt of this benefit- it would be unjust to take it back from this claimant:

life insurance cases- long dead claimant turns up alive; ins co wants to recover; changes position: build a mausoleum, send kids to college-

o BCBS v Sauer: pymts to wrong Sauer: couldn’t show change of position in reliance of ben- Discharge for value- rejected in MI- has used $ to pay off pre-existing debt owed- may be affirmative def.

WEEK 11 Remedies - Class 11 Enforcing Decrees Enforcing an Injunction- Atty Fees: when discussing scope- don’t forget to discuss scope of rep & associated fees

o Work is not done jst b/c you get a decree- now C may need some help enforcing it.- NOTE: an inj may be violated or ignored until threat appears- how can we get this for C

o Ex: Client loses LS, but can’t just shut doors according to injunction, b/c he will go broke- What will his exposure be? Bagwell- a proceeding may become so punitive that we need additional protection

Types of Contempt- Direct: contumacious conduct disrespectful to the ct that will happen in the courtroom

o It isn’t relevant o/s ct room; summarily conductedo s/o who is granted immunity; then refuses to testify- jj doesn’t need an injunction hereo Atty may be found in contempt if they act up; refuse to divulge client confidences

- Indirect: conduct outside the courtroom; violation of some ordero We go into ct and ask for Contempt Ordero Designed to coerce or compel; not summarily conducted

- Summary in court disobedience Inherent power to punish bad faith

o Civil – GR Standard of Review- CCE Elements: valid order, substantial violation, has ability to comply If Ct order is invalidated, contempt will fall away with it Jj who issues inj will also hear an appeal and will hold parties in contempt Brought in name of original case, original case #, original jj; ie jj retains control coercive purpose; you are in violation of inj decree and will be held until you comply

Holds key to jailhouse door - generally for $, kids whereabouts who refuses to pay child support may be held until he agrees to pay

Compensatory – brought by , paid to ; need proof of damages Can be direct/indirect- once they comply they can purge contempt

GR: leg 18 mos; Susan McDougal spent 18 mos for refusing to testify against Bill Co Criminal - a punitive purpose: To punish contumacious conduct that has taken place

Brought by govt; paid to govt; order stands w/o underlying conduct Elements:Specific Direct Order, intent to violate, substantial violation Different case #; PA swears out order; crim protections apply in crim contempt setting Confront accuser, rt to demand jury verdict, Guilty Beyond a RD Gr 1 yr- but it is up to the courts It is punitive; exists to vindicate integrity / of the the ct; for violation

It results in a determinate sentence- fixed term/fixed fine Intent- mens rhea- specific order violated; [often applies in domestic situations]

It is a Conviction- underlying complaint cannot relieve contempt finding; exc: where original ct has no jdxn;

o Collateral bar rule applies- see Walker v Birminghamo Look for vague orders: Ex: wife ordered to rear in Cath faith; she sends her son to Lutheran summer

camp; ct finds the order too vague

How can you tell crim from Civil- Bagwell : ct orders cease of wildcat strike; same case #, same jj; daily fine, continued activity fine- fine hits 64 mill

o What is the effect of settlement on Settlement Issue: why settle if it won’t get rid of contempt fines? Continuation of fine discourages settlement Status quo maintenance- it lets bad guy get away with it, encourages him to continue; ct needs a

way to enforce inj, ie contempt- teeth are losto CT: this has become punitive, t/f criminal, DP proceedings are missing and the order is invalid.

- WE need to be careful of the record we leave behind; o Is it punitive?: in Bagwell-

Yes: ct said flat fee per offense basis is a per violation order= punitive; No: try per diem, not per violation- every day I don’t grade bluebooks I stay in jail- my key

- I can order you too Desist; not do it again, pay a fineo Note that fines are not necessarily effective;

when fine reaches a point where it will harm party beyond having a coercive purpose; be sure that the amt of $ doesn’t get punitive- that might discourage party Be sure to demand a jury trial in this case; get it on the record; get ct to impose parameters

o They are generally mutually exclusive; but Laycock suggests crim can flow from civil violation- Note p 769: 3 step Process: Ct issues inj jj adjudicates order and threatens fine-> enforcement

o Make the motion for ; jj issues contempt order; Your honor, let the record show that the purpose of this order is to guide

- CASESo Anyanwu - childhood custody case- child dies; Dad spends several yrs in jail;

ct concludes it has lost coercive power and contemnor is released; o Catena : refused to testify against mob; he was old; ct saw no coercive effect; med costs risingo Griffin : school bd issues Priv S. voucher and closes public school rather than desegregate

What happens when we try to defy ct BEFORE it has time to issue an injunction? While Ct hadn’t issued inj; there was sufficient notice based on proceedings that the defendants

should have known; bad faith An anticipatory action might render inj moot- party obstructs adjudicatory process; note that opp

counsel should have gotten a TRO etc in place to cover himself Dissent: what exactly did violate? Not sufficient notice to justify anticipatory contempt

Punishing Anticipatory contemnor- note 7 p 789:

DEFENSES:- Is it possible to comply with the injunction; ct scrutinizes this very carefully

o Unable to pay/ don’t have information wantedo Look at 852-857 child support

6b 855: the voluntarily poor may not be protected; ct might look at your payability rather than your employment status

- Equity right to demand $- ie child supporto Lien on Tax return; o deadbeats are often published- embarrassment/ humiliation may may them complyo I may not want my empr to know

- Good Faith effort to complyo There is no willful violation: nuisance attempt to abate/ pollution/ specific performance

- Inj Decree is so impermissibly vague that it cannot be followedo We must be cautious – we might get overruled for excessive vagueness:

Example: how do you enforce “ raise the kid a catholic”- Collateral bar rule: does not stand in the way of civil contempt

o It is not poss to coll attack inj, except on appeal of the injunction itself; must ask for a stay during the inj- do not violate with impunity;

o Watch Out:: it might go both ways- u might get off, and you might get enforcement- Civil Contempt: CBR is not involved; but usually you have case and inj on appeal in the same appeal

o u can end up under contempt- w/o a chance to defend y/selfo Garibaldi- it is not sufficient to just find them in contempt: notice is and absolute requiremento Can’t try to get the violation accomplished thru another party- bad faith

- A group carrying out some actiono At some point handing off the ‘mantle’ will reach an innocent party- o Successors in interest may also be liable: hard to enforce a negative covenant; a new property owner

w/o notice might open a prohibited business: they might have constructive knowledge b/c there are no other businesses; but have they been notified;

Ojo: there is a presumption that a/o who is held I ncontempt…..- IN REM:

o Equity doesn’t generally enjoin crimes: illegal activites might be going on; whrere notice is posted and recorded it ishard to claim innocence. E/o is considered in contempt

- 3d Parties may may/not be held in contempt

WEEK 12Collecting Money

- Garnishment and attachment are the 2 most common ways to get ’s assets- Post injuction retainer agreement may be allowed; collection is a new issue

o But note that they often expect assistance with collection; let them know up-fronto But it in the agreement; my services may be ltd

We need to find out what the owns- Post-jjment interest may ecourage pyment

What does it mean to levy?- Issuing the jjment lien puts a rt to levy any property owns in the jdxn

o Client a vendee may take subject to some jjment lieno Property can be sold; proceeds used to pay debt; can seek deficiency for debts still owed; but gets

any profito s/t don’t own the property; it might be hard to discover assets

- Credit Bureau v Moninger (Neb 1979): What are the mechanics of execution?o It’s unlikely that the sheriff will search for you; ct can order me to appear and testify as to what I own, so

that can execute his lien; should be sure that this is a collectible debt- maybe should do this Note that Full Faith and Credit might let me go to another state and attach prop

o Here CU tries to get sheriff to seize truck; a handshake does not create perfection; failure to file=late perfection- last in line loses

o Here prop should have been levied and attached; but sheriff just levied- ct said ok; so maybe he didn’t really attach;

ie failed to have physical custody: ie dominion and control If levy fails to attach, THEN CU might have control

- You can’t always take physical control: crops in the fieldo Posting signs, public notice might constitute notice that eliminates any innocent BFPo Necessary b/c…

- There are exempt assets:o GR: they track other rules- they protect the innocent or vulnerable debtoro Texas Exemptions: include up to 30k for a single adult including all the usual TX stuff- my guno OJO: attaching exempt property may be tortuous- could cost an atty a lot in the long runo A smart atty would not go after all this; too many risks; but

- Dixie Nat’l Bank v Chase (Fla. App. 1986):o Here bank makes mistake re amt of $ they had; they become liable for this amto How does a garnishment work?

Independent proceeding – separate action- simple form pleading- purpose is to make a/o who owes $ subject to a garnishment proceeding-

bank, ins co, brokerage acct, empr [humiliation in front of empr]o What is the liability of the garnishee?

many .. garnishee may be liable for the entire amt, not just the amt he owes ; u can’t garnish the entire paycheck, gr only 20% of chec; need a separate garnishment for each and every pymt note that it is an abuse of process to try to attach exempt property

- BKR: many Debtors declare bkr to avoid pymt; some C’s will force bkr so that they can get at assets

Class 13: Pretrial Protection of Judgments; Remedial DefensesPreserving Assets

- What if makes himself jjment proof during the course of the trial?o Cts are hesitant to tie up assets during trial period: it might be wrongfulo SC: It requires a pre-attachment hearingo What can atty do? No blood from a stone:

look for capture of future income if no assets are left- PREJJMENT ATTACHMENT: ct orders assets seized or frozen for a specific period of time

o I might be able to post bond to avoid attachment- TO GET PREJJMENT ATTACHMENT I need

o Substantial likelihood of success on the merits ANDo There is intent to get assets out of reach of the court:

hide, destroy, secrete the assets in such a way as make them unavailable to satisfy a jjment to the degree that they undermine court authority to enter a meaningful jjment against

- City of N.Y. v Citisource (SDNY 1988):Preliminary Execution & Garnishment The mere attempt to withdraw $ is not sufficient; they do have to live Burden Shifts: The bears the burden of showing that they are not hiding $ The ct here only withheld funds for a month

- Compare to EQUITABLE REPLEVIN: asks ct to order to produce property that claimso PJA: asks jj order bring stuff to ct – b/c ’s jjment will be found in this property

- Erickson v Congress-Kenilworth (Ill.App.1983): wanted a Prejjment Receivershipo RS: ct apts s/o who will run the co while proceeding continues, either till end of trial, or till it closes;

extraordinary remedy, unusual, sparingly used;o PRETRIAL RECEIVERSHIP standard for appointment of receiver:

Substantial likelihood of s on the merits is trying to frustrate ct’s ability to award a future jjment.

- FREEZE ORDER: 867n1: Inj ordering not to transfer any assets described in the motion.o must show substantial likelihood of success on the meritso Intent on part of to frustrate Ct ability to enforce future jjment:

eliminates or hides proceeds or profitsFraudulent Conveyance Act: prevents from transferring assets in anticipation of a jjment

- can go to ct and ask transfer to be deemed unenforceable; - has burden to show right to collect fc; often a BKR issue- What about the guy smart enough to hide his assets from the beginning?- May be able to go back only 3 years; this assumes that has no equitable interest in prop

o Ex: got divorced, wife got house; ct still attached house to collect debts

CH 11: REMEDIAL DEFENSES might be good to reach whole ch to recall old stuffLegal v Equitable Defenses

- Legal Defenses: Non-discretionary denial of substantive claim. WILL result in non-suito in pari dilecto, statutes of limitation,

- Equitable Defenses: Discretionary denial of equitable relief; MAY result in dismissalo Unclean hands, estoppel, lacheso Jj finds waited too long to file or waited until 2 days b/4 deadline; o Won’t necessarily as a matter of law allow dismissal: review de novoo MI/Cali may look at laches as a factor

In Pari Delecto: : equal fault in causing the harm complained of; UNCONSCIONABLE CONDUCT

- Test for IN PARI DELECTO

o Prongs Would preclusion deter violation or undermine regulation? Will preclusion of private sector LS will undermine Enforcement Scheme

o Similar to contributory neg: but broader as it can extend to K’s as wello Govt Action: Exclusive Fed enforcement may not be feasible; let private sector

Admin Law looks at whether LS is enforceable; cng may see private ind as more able to sue any party private sector will learn of it, and is more likely to take action b/4 govt.

o Should it be limited to the wrong complained of, or expanded to wrongful conduct- Pinter v Dahl : IPD is available if intends to confer a benefit on h/s or 3dP to be a Seller

o These securities were not properly registered- to show/reduce level of risko Ct finds IPD threshold has not been met.

Unclean Hands: OJO: equity should not aid the undeserving unclean hands Test: Wrongful conduct related to transaction, but does not directly cause Breach

- Not Limited to conduct directed at defendant- No case in text: equity should not protect the undeserving

o Ie s/o who has engaged in wrongdoing; directly trying to avid lawo Equitable counterpart of In Pari Delicto, but Broader o St not admissible to determine guilt may be admissible to determine payability

- Limited to cases where plaintiff seeks to secure or protect ill-gotten gains?o 940 n7: may transfer assets to hide them, then they sue to get a constructive trust etc., to try to get

it back: ct may say no way: you acted wrongfully- no property back- How far does it have to be from transaction to be irrelevant

o N9: improper conduct must relate in some significant way to the claim presented Not nece directly related, but not so far that no one could ever get a remedy

- What if defendant’s culpability > plaintiff’s?o May apply where is more culpable, but ’s conduct is SO culpable that it is unfair

Like the death of a ls; so cts are loathe to grant it- Public Interest is very important to a decision:

o Ex: Purina v Alpo public had a right to know parties were making up hip dysplasia issue; so ct let ls go forward.

ESTOPPEL – party may be prevented from exercising some right it waivedo Promissory- extension of equitable- loss b/c I relied on your promiseo Estoppel by jjment- res judicata- o Judicial estoppel- litigant takes a position in ct inconsistent with earlier winning pos.

- The elements of equitable estoppel: notion that s/o can be prohibited - inducing reasonable reliance causing injury if act or statement is denied and right is allowed to be asserted:

by deed, property; tolling SOL ; K waiver of condition- act or statement inconsistent with the right later asserted 6 Elements: p943 n1

o Misrep/conceal material factso Party knew to be untrue at the time they were madeo Other party did not know they were untrue [when heard/when acted upon]o First party intended other party to rely on themo Other party would be prejudiced by if first party is allowed to deny truth- avoid LS

- Geddes v Mill Creek : agrees to site; then sues later; acceptance induces reliance, no rtso Ct can take all kinds of judicial notice- inc bad golf shots

- Estoppel against the govt p947n2- when govt tries to enforce Ko Is it proprietary- is govt acting as a business-

Commercial deals to acquire new land are proprietaryo Is it govt role? Gr govt can always get $ the people are owed under back taxes

LACHES & THE STATUTE OF LIMITATIONS

- The failure to act for a long time may work an estoppel, b/c it causes to believe that no action is forthcoming; they act on that assumption

- Lawsuit preclusion is the deathknell of a claim; case must be very strongo Mere communication may not be enough; but go forward at your peril

- LACHES TEST: o has waited unreasonably [not the mere passage of time]

Reasonable: Negotiations; lengthy discovery phase o Delay must cause prejudice: By virtue of delay it will now be harder to defend at trial

Evd may be lost; w’s are gone; o What TYPES OF PREJUDICE must result from unreasonable delay?

Defense Prejudice: by virtue of delay it will be harder to defend at trial Lost evd or witness; dimmed memories

Economic Prejudice: continues to build up business based on failure to act; so it would be unfair to

make stop Cost to comply w inj relief would be more exp b/c of delay:

o BofK means must spend more later to comply with K speculating at ’s expense: N6 p962: may seek infringement claim or rescission to avoid

K; can’t wait to see what might happen b/c deciding to take action then if it benefits him he will seek restitution, accounting or inj, here, speculating will deny right to go forward if delay was unreasonable

o PROF: the clear unambiguous complaint should be enough to shift risk to - Pro-football v Harjo -

o If gets notice that there is an objection to conduct, they continue at their own risk; So is on notice and should be ok

o BUT: some cts say the mere communication may not be enough; failure to follow up may lead to believe that has abandoned this claim

- What is the relationship between laches & the statute of limitations?o Early on there was no equitable SOL; had until he could get to ct; laches was the doctrine; could

wait as long as he wanted as long as no prejudice resultedo 3 things happened

Many claims have governing sol written in: so it would preclude laches P’s delay has gone beyond an analogous SOL

No SoL:: claim is a lot like X. We follow it. Or Ct may add analogous SOL to factors to be considered

Where has violated an analogous SOL, ct may shift BOP to : gr must show prejudice and delay- but if has waited too long compared to some analogous delay, must overcome presumption that delay prejudiced

- CONTINUING VIOLATION/ LAST PREDICATE ACT RULE

o The concurrency doctrine: claim can only go back to date this SOL began to runo If the statute of limitations isn’t the cap, then what?

- When does the statute of limitations begin to run?o ‘last predicate act’ v continuing violation: no recovery for activity o/s limitations pd.

Continuing violation: wrong continues to occur so we use a new start for SOL A predicate act causes the damage- if I wait too long I can only sue back the the violation

that fits into my SOL; the stuff that is outside the limitations period, so I can’t get what isn’t part of accrual period. No old money

might have failed to mitigate [clean-up, dim in value] so ct will limit recovery Effect on Damages v Injunctive Relief

Inj SOL may be able to move; but D’s must accrue during SOL periodo EX: 972 notes:

Borrowing analogous sols: we have a general standard 970 n5:

o Claire v AO Smith- RICO had no SOL; cts chose Antitrust rules

OJO: there is more here than we look at look beyond 984 & beyondBut if it is not covered- not on examCH 10: PR good for MPRE practice

- Atty fees: - Fee shifting statutes: about 100 between feds and state

o Note that we can make our own deals- Lodestar : what constitutes reasonable atty fees: - American Rule: we all pay our own costs

- Accounting for Profits ANANLYSISo Always open w/ legal remedy moot ripe

o What did U lose? What did gain?o Was it consensual- doesn’t rise to level of K; tortuous transaction; Kal transaction

What did get? It might be worth going after what D got rather than what P lost Ct is more willing to award restitution if D is culpable- Conscious Wrongdoer gets different rule

o you Can get specific reliefo Non-equitable character: Jury trial; Modern discovery should give P this info

CONTEMPT CHART Criminal Contempt Civil ContemptDirect Contempt (Contumacious Conduct in Court) X (Refusal to testify w/ immunity)Indirect Contempt X (Violation of Injunction) X (Violation of Injunction)

Purpose To Punish/Vindicate Tribunal Integrity

To Coerce/Compensate

Parties State v Contemnor Original PartiesWho can be held incontempt

Parties, agents, etc., and persons in active concert or participation with actual notice

Parties, agents, etc., and persons in active concert or participation with actual notice.

Elements SIS; VOSA Specific Order, Intent, Substantial Violation

Valid Order, Substantial Violation, Ability to obey

Burden of Proof Beyond a Reasonable Doubt Clear & Convincing Evidence(Preponderance)

Procedures Direct: Summary. Indirect: Jury Trial, Right to Counsel, Cross-Examination

Direct: Summary. Indirect: Civil Rules

Appealability Final Order -- Directly Appealable Not final -- Appeal w/ Injunction

Effect of Reversal of Injunction

No Effect Contempt Citation falls, too.

Collateral Attack of Injunction

Not available. N/A

Consequences Fixed Fines; Jail Sentences Damages; Variable Fines & Jail Sentences(Possible to Purge)

DefensesScope of ReviewBar of Waiver Collateral Bar rule applies ???