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 adequate remedy at law is one where the threatened or damaged property can be substantially replaced with the damages that are its value.

3. When are damages inadequate to “substantially replace” the thing that is threatened/damaged/stolen – or “when is property unique”? • Land? • Animals? • Personal Property? • Wedding ring – family history v. mass produced? • Other mass produced goods? • My daughter’s favorite toy

4. Purpose of the irreparable injury rule: • Historically: • 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: • Injunctions burden the court too much • Injunctions are too intrusive on D’s liberty • Damages, because they come after the harm, don’t involve speculative predictions – give more certainty in the remedy • 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 tells D to stop but D continues selling. • Continental wants an injunction to stop Intra’s practice – what is its 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 (i.e, after full trial on the • merits), 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 still must plead/offer proof of irreparable injury as it is formally still a requirement. Frame your arguments in terms of irreparable injury. 2) The irreparable injury requirement is far more important with preliminary injunctions/TROs. 3) 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. Replevin – yet another legal writ Defined: Legal action to recover personal property in the hands of another. Process: P traditionally sought a prejudgment writ from the court requiring that D turn over immediate possession of the property. 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. *A form of specific relief (although legal in nature) *Originally provisional *Mandatory Order *No irreparable injury requirement *Doesn’t protect against threatened dispossession *Turnover effected by sheriff (no contempt power) In most states, replevin is now governed by statute

9. Specific Performance Defined: Specialized form of an injunction where P asks the court to order D to perform her obligations under the contract. Adequacy of the legal remedy (i.e., irreparable injury) is a threshold issue in this context as well.

10. What makes the legal remedy inadequate in Campbell Soup? P (Campbell Soup) wants specific performance of a contract for delivery of carrots. What’s so unique about carrots? Campbell Soup is the specific performance equivalent of Pardee. Both cases allow P to get an injunction if P cannot substantially replace the item at issue with damages.

11. When is an item not “substantially replaceable” in the context of specific performance?

12. Specific Performance vs. Damages • Damages & specific performance are generally interchangeable – both give P her expectancy • Damages: Give plaintiff the difference between the market ($90/ton) price & the contract ($30/ton) price. • Specific Performance: Forces the defendant to give plaintiffs carrots valued by the market at $90/ton for the contract price of $30/ton. • Why were the Wentzes so opposed to specific performance in Campbell Soup?