Specific performance of personal services contracts – another policy reason to deny an injunction

1. Specific performance of personal services contracts – another policy reason to deny an injunction • What is a personal services contract? • A legal agreement between two parties based on the individual efforts of one party – i.e., special or unique talents of a particular party • Courts are reluctant to specifically perform contracts for personal services: • Impractical • Involuntary servitude • Courts will sometimes negatively enforce such contracts • If the contract period is still running – court will not allow the breaching party to work for anyone else (i.e., negative enforcement) • If the contract period is no longer running – courts are unwilling to negatively enforce unless there are exigent circumstances or if there is an express covenant not to compete after the K period

2. Conventional wisdom: • Equity won’t enjoin a crime. This is generally true – court’s won’t enjoin the commission of a crime because it (1) short circuits the defendant’s rights to criminal procedure safeguards at a criminal trial, (2) interferes with the prosecutor’s discretion to prosecute (or not) a particular violation, and (3) doesn’t clearly provide advantages over a criminal trial. But there are a few exceptions: (1) National emergencies (2) Public nuisance (3) Criminal statute provides for injunctive relief Injunctions and the criminal law

3. A general framework re what to think about when determining whether a court should grant a permanent injunction:

4. Preliminary Relief • Preliminary relief is relief designed to provide a temporary injunction pending a full trial on the merits. • Can be in the form of a “preliminary injunction” (usually after a mini, trial-lite hearing) or a temporary restraining order (usually after an emergency, barely-like-a-hearing-at-all hearing) • What standards apply to granting such injunctions? • How does the irreparable injury/adequate legal remedy rule play out here?

5. Likelihood of success on the merits • Irreparable injury to P in the absence of preliminary relief • Balance of the hardships/equities • Public interest • How do courts apply these factors when considering whether to grant a preliminary injunction? Four factors that courts consider when determining whether to grant preliminary injunctions

6. P must meet all 4 factors to get preliminary injunction; P must show: • A likelihood of success on the merits at trial • That P likely will suffer irreparable injury without preliminary injunction • That the balance of equities tips in P’s favor • That the public interest tips in P’s favor • This is a very strict version of the test for preliminary injunctive relief. Why? Courts Can Use Different Approaches to the Four-Factor Test Before Winter – Approach # 1

7. Four factors are applied as a sliding scale: • Courts should balance the interests of all parties and weigh the damage to each, mindful of the moving party’s burden to show the possibility of irreparable injury to itself and the probability of success on the merits. • If you deal better w/ math, can conceptualize the balancing (roughly) as: • Is P X Hp > (1-P)Hd? • Why use a sliding scale version instead of strict version? Court’s Different Approaches to the Four-Factor Test Before Winter – Approach # 2

8. What order does P seek in Winter? Is it likely to prevail on the merits of the legal issue? • If so, why does the SCT say the lower court erred? • Which version of the four-part test for preliminary injunctions does SCT use? • Lower courts after Winter: Winter v. NRDC

9. What is the nature of P’s alleged harm if the injunction doesn’t issue? • What is the nature of D’s alleged harm the injunction issues? • Toward whom does the balance of equities tip? • Where does the public’s interest lie? Would it really matter in Winter which version of the test was used?

10. Note that all versions of the test require P to have irreparable harm for the preliminary injunction to issue. Does irreparable harm mean something different here from the permanent injunction context? • Timing of Harm: • Nature of Harm: The nature of “irreparable” harm at the preliminary injunction stage:

11. Preliminary injunctions & the “status quo” Conventional Wisdom: Preliminary injunctions are only granted to preserve the status quo (aka last peaceable contested status quo). Why?

12. In Winter? In El Centro? What does the “status quo” concept add to courts’ use of the four factor balancing test – i.e., when is it most likely to make a difference? What is the “status quo” – just how manipulable is this concept?