Torts-Equitable Remedies

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Torts-Equitable Remedies
2011-06-05 15:29:54
torts equitable remedies tort litigation

Torts-Equitable Remedies
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  1. Permanent Injunctions
    4-part showing:

    • 1. “No adequate remedy at law.” (term of art; use it).
    • --At law=money. Money will not remedy the tort.
    • --Common
    • --D is insolvent;
    • --Harm impossible to measure in monetary terms (kennel killing dog);
    • --Conduct is ongoing/repetitive.

    • 2. Tort in question impinges on a property interest or protectable right.
    • --Largely a formality. Modern courts, underlying tort right usually=protectable right.

    • 3. Injunction is enforceable.
    • --Negative injunctions easy to enforce via contempt.
    • --Mandatory injunctions make courts cautious about questions of compliance. Look at:
    • ---Complexity of the conduct ordered (tear down
    • fence on neighbor’s land vs. installation of
    • noise abatement walls).
    • ---Time task will take (Court have to monitor
    • ongoing compliance?)
    • ---Outside jurisdiction?

    • 4. Balance of hardships favors the P.
    • --P must demonstrate that benefit to him outweighs harm to D.
  2. Preliminary Injunctions
    • Over and above showing for permanent injunction,
    • 2-part showing:

    • 1. Likely success on the merits.
    • 2. P will suffer an irreparable injury in absence of PI.
  3. Defenses to Permanent Injunctions
    • Unclean Hands
    • Laches
    • First Amendment
  4. Defenses to Permanent Injunctions
    Unclean Hands
    • D can show that P himself is guilty of some form of misconduct.
    • (injunction sought against use of trade secrets, D shows that P stole the secrets to begin with)
  5. Defenses to Permanent Injunctions
    • Prejudicial delay. D shows that
    • --because P waited to commence suit,
    • --D assumed there was no issue, and
    • --D thus detrimentally changed its position.

    (Living next to factory for 3 years before bringing suit; factory defends that it expanded because it assumed you were ok with it).
  6. Defenses to Permanent Injunctions
    First Amendment
    Prior restraints are deeply disfavored.