Substantive & Procedural Issues Regarding Injunctions - the Next Few Weeks

1. Substantive & Procedural Issues Regarding Injunctions - the Next Few Weeks • The requirement that plaintiff show irreparable injury before an injunction can issue • Other factors that courts consider when deciding whether to grant or deny an injunction • How do the substantive and procedural requirements for permanent and provisional (temporary/preliminary) relief differ?

2. The “Irreparable Injury” Requirement and Injunctive Relief (as noted in Pardee) • Common Law: A court will not grant equitable relief if P has an adequate remedy at law (i.e., unless P’s injury is irreparable). • An inadequateremedy at law is one where the threatened or damaged property cannotbe substantially replaced with the damages that are its value. • Uniqueness is a common measure of inadequacy.

3. When is property “unique”? • Land • Animals • Personal Property? • Wedding ring – family history v. mass produced? • Other mass produced goods? • What if it’s my daughter’s favorite toy?

4. Purpose of the irreparable injury rule: • Why do we require P to go to all this trouble to get an injunction? • Historical answer (Maitland excerpt): • Equity courts arose as a response to the failings of legal courts, which • were allowed to hear only very narrow causes of action. It made sense • at the time to require that a complainant exhaust legal remedies prior to resort to a court of equity • Modern Answers? • Injunctions are too burdensome on the court • Injunctions are too intrusive on D’s liberty • Because damages come after the harm they don’t involve speculative predictions • Injunctions deny defendant a right to a jury trial

5. Continental Airlines and irreparable injury • D (Intra) acquired and sold to travel agents for resale Continental’s discount coupons for flights (despite a non-transferability clause). At some point, despite past practice, Continental told D to stop but D continued selling to travel agents. • Continental wants an injunction to stop D/Intra’s practice – does Continental have irreparable injury?

6. After Pardee & Continental – how can P show irreparable injury? • Uniqueness of the property threatened or damaged • Difficulty in estimating damages resulting from tortious conduct • Loss of control over property that is rightfully yours

7. Some things to keep in mind about irreparable injury: • In the context of a permanent injunction, the rule is reasonably weak -- can often find a way to argue that damages won’t substantially replace the thing destroyed or damaged. • But Ps must plead/offer proof of irreparable injury as it is formally still a requirement. Frame your arguments of harm in terms of irreparable injury. • The irreparable injury requirement is far more important with preliminary injunctions/TROs. • Irreparable injury is a threshold requirement – P must meet the requirement in order to get an injunction. BUT meeting it does not automatically mean that P will get an injunction.

8. The Writ of Replevin Defined: Legal action to recover personal property in the hands of another. Process: P traditionally sought a prejudgment writfrom the court requiring that D turn over immediate possession of the property to P. P was usually required to post a bond in case it later turned out D was entitled to the property. Sheriff was responsible for executing the writ if issued. • Writ is a form of specific relief (although legal in nature) • Originally the writ was provisional in nature • This is a mandatory order (not prohibitory) - doesn’t protect against threatened dispossession • No irreparable injury requirement • Turnover effected by sheriff (no contempt power can enforce the order) • Replevin is currently usually governed by statute.