Tailoring the Scope of Preventive Injunctions – Company Defendants

1. Tailoring the Scope of Preventive Injunctions – Company Defendants • Possible options for injunction in Marshall v. Goodyear – which is most appropriate? • Order barring the “Auburndale branch of Goodyear from engaging in acts that discriminate based on age in violation of the ADEA, including hiring, promotions and firing of employees.” • Order barring the “Manager of the Auburndale branch of Goodyear from engaging in acts that discriminate based on age in violation of the ADEA, including hiring, promotions and firing of employees.” • Order barring the “Manager of the Auburndale branch of Goodyear from discharging employees in violation of ADEA, including hiring, promotions and firing of employees.” • When is a company-wide injunction appropriate? At what point do actions of employees show the “company’s” propensity to act?”

2. Marshall hypo (p. 271 n. 3) • Reed in Marshall was discharged due to a company policy that all assistant managers should be under the age of 30 – what is the appropriate injunction? • Nationwide injunction appropriate? • To enjoin what? • that particular policy? • All age discrimination in hiring and firing? • All violations of ADEA? • All age discrimination involving managerial positions?

3. Mootness as an Aspect of Ripeness • What happens when a ripe threat becomes “unripe” because of D’s actions? • Or put another way – when can a D make an otherwise ripe threat of harm unripe? • Can D make a preventive injunction non-viable by changing the course of their behavior and claiming “it won’t happen again”?

4. Jurisdictional v. Equitable Mootness – as distinguished in WT Grant Jurisdictional: Lack of ripeness is an Article III issue. Court must dismiss for lack of jurisdiction as required by U.S. Constitution Moot: No reasonable expectation that the wrong will be repeated Equitable: (Mootness) Lack of ripeness is simply an equitable issue. Court can dismiss as a matter of judicial discretion Unripe: No cognizable danger or no more than a mere possibility that the harm will re-occur

5. Losing ripeness in W.T. Grant – 3 factors to determine whether injunction should issue • Bona Fides of D’s Expressed Intent to Comply • Effectiveness of D’s Discontinuance of Bad Acts • Effort devoted to ending violation • Difficulty in starting up again • Character of D’s Past Violations • Intentional v. Negligent • Pattern v. Isolated Incident • Temptation Inherent in the Job

6. The Ripeness Requirement In the Context of Uncertain Consequences • What do P’s in Nicholson seek to enjoin? • Does D show a propensity to do this? • Then why is the injunction “unripe”? • How is this situation different from Al Murbati?

7. Enjoining Lawful Conduct due to Potential Unlawful Consequences • Court doesn’t per se preclude the notion of issuing this injunction. But ripeness and evidentiary support will always be an issue with such injunctions. • What kind of evidence would P need to strengthen the argument that the feared harms are ripe? • Can you make a comparison to Brainard (p. 281)?

8. Enjoining Lawful Conduct Due to Possible Unlawful Consequences – Nuisance Cases Comes up most often in “anticipatory nuisance” cases Anticipatory nuisance = use of property is not per se unlawful but under these circumstances and at this location the use of the property is unreasonable and a nuisance. What are the standards for injunctions like that in Nicholson? Many different formulations: “Nuisance is to a reasonable degree certain” “Nuisance will necessarily occur” “There is a strong probability of a nuisance”