Reasons to Deny Permanent Injunctions

1. Reasons to Deny Permanent Injunctions • Once P has established irreparable injury as a result of D’s actions, a court may still deny P’s request for an injunction for many reasons (often described as part of a court’s “equitable discretion”) • Last week – discussed the affirmative defense of “balancing the equities,” which may lead to denial of an injunction if injunction would impose undue hardship on D • This week – “other reasons” to deny injunctions

2. Cooperative Insurance – Still More Reasons to Deny Injunctions • What remedy does P seek? • Why does the trial court refuse to grant P’s requested remedy?

3. Cooperative Insurance – Balancing the Equities • In whose favor do the equities balance? Who has the greater burden if the injunction is or is not granted? • P’s burden if not granted? • D’s burden if granted? Disproportionate to P’s? • Wasn’t D an intentional actor (i.e., breacher)?

4. Cooperative Insurance – Enforcing Clause 4(19) & Burden on the Court • Why is it so hard on the court for it to order D to “keep the premises open for retail trade?” • What is likely to happen if the parties can’t agree as to the meaning of the term or on how to interpret the court’s order? Why is that a problem?

5. Willing v. Mazzocone – still more reasons for denying injunctions • How is D’s insolvency relevant to the Pa. SCT’s decision in Willing? Is Willing consistent with other courts’ approaches? • Other situations where bankruptcy arises as a factor in the decision to issue an injunction? • What if P sought an injunction requiring D to plant replacement trees D took from P’s land. But D is bankrupt so that would require spending $ that D should be giving to other creditors? • How is that situation different from Willing?

6. Irreparable Injury & Multiplicity of Suits • What is the nature of D’s action in Willing? • How often are Ps going to have to go to court? • How big are the actual damages from each libel? • Are damages an adequate remedy?

7. Irreparable injury & multiplicity of suits -- two important points 1. Damages are inadequate precisely because they are small. 2. Kinds of cases where this issue most often arises:

8. Willing: More reasons to deny injunctions - equity policy & injunctions against libel Maxim: Equity will not enjoin a libel. Why?

9. Injunctions against libel/speech – 1st amendment policy reasons to deny injunctions • SCT has strong presumption against injunctions barring speech. • This is true even if the speech is subject to subsequent criminal punishment or civil lawsuits. • Rationales supporting presumption against injunctions restricting speech (aka prior restraints) • Injunctions chill more speech than subsequent punishment/civil lawsuits. • Injunctions prohibiting speech tend to be ex ante determinations of harm.

10. So how does court treat different kinds of injunctions against speech? • Injunctions barring speech from occurring (e.g., suppressing it) are disfavored prior restraints • Unless they involve certain low value speech – e.g., obscenity or commercial speech • Injunctions regulating only the time, place, and manner of speech and which don’t regulate its content are generally okay • E.g., prophylactic injunctions against abortion protestors in Chapter 4

11. eBay, Inc. v. Mercexchange, LLC, - The new “traditional” test for permanent injunctions? • Facts: Mercexchange alleged patent infringement re business method patent against eBay and won. District court refused to issue permanent injunction but Court of Appeals said injunction was warranted because of the “general rule that courts will issue permanent injunctions against patent infringement except in exceptional circumstances.” • SCT reversed CTA and announced the following rule: • To qualify for permanent injunctive relief, P must demonstrate: • P has suffered irreparable injury • Remedies at law are inadequate (including damages) • Considering balance of hardships between P and D an equitable remedy is warranted • Public interest is not disserved by the permanent injunction

12. Problems with the eBay approach: • Factors 1&2 are the same thing – huh? • Factor 3 has always been a DEFENSE to permanent injunctions – now SCT acts as if P has to prove balance favors P • Plus “balancing the equities” (aka undue burden on D) has traditionally meant many different things given the way culpability factors in to the court’s decision • Courts have always considered factor 4 (public interest) as it was relevant but it was never P’s burden to show that this factor favored P’s request for an injunction • It is unclear whether lower court’s approach to permanent injunctions will actually change as a result of eBay. • Most courts still take approach more like Hilander – require P to show irrep. injury; balancing equities is a defense & involves complicated balance of burdens on each party in light of their culpability; public interest could weigh on either party’s side & both sides can argue it