The “Irreparable Injury” Requirement and Injunctive Relief

1. The “Irreparable Injury” Requirement and Injunctive Relief • 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 inadequate remedy at law is one where the threatened or damaged property cannot be substantially replaced with the damages that are its value. • Uniqueness is a common measure of inadequacy of legal remedy.

2. 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? • Does Continental have any proven monetary injury? Does that mean there is no harm? • What harm is there to Continental’s interest?

3. After Pardee & Continental – how can P show irreparable injury? • Uniqueness of the property/right threatened or damaged • Personal Integrity – trying to avoid/discontinuing bodily harm considered particularly “unique” • Constitutional rights – showing of violation is pretty much automatically considered irreparable injury • Difficulty in estimating damages resulting from tortious conduct • Loss of control over property that is rightfully yours

4. Some things to keep in mind about irreparable injury: • In the context of a permanent injunction, the req’mt is reasonably weak -- can often find a way to argue that damages won’t substantially replace the thing threatened 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.

5. The Action (Writ) of Replevin – Brook v. James Cullimore 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. • Action/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 to enforce) • Now more common for statutes to allow contempt to be used • Replevin is currently usually governed by statute.

6. Specific Performance – Campbell Soup Co. v. Wentz • Specific Performance = specialized form of injunction where P asks court to order D to perform her obligations under a contract. • Irreparable injury/adequacy of legal remedy is threshold issue here too • P (Campbell) wants specific performance of a contract for delivery of carrots. What’s so unique about carrots – i.e., why is the legal remedy inadequate? • When is an item not “substantially replaceable” in the context of a request for specific performance?

7. Red Core Chantenay Carrots & Campbell’s injury

8. Specific Performance vs. Damages • Damages & specific performance are generally interchangeable in terms of providing P his/her expectancy • Damages: Gives P the difference between the market ($90/ton) price & the contract ($30/ton) price. • Specific Performance: Forces D to give P carrots valued by the market at $90/ton for the contract price of $30/ton. • So why were the Wentz brothers so opposed to specific performance in Campbell Soup?

9. Why can’t Palways get specific performance when contracts are breached? • If damages and specific performance are usually equivalent, why don’t courts allow SP and damages interchangeably (i.e., why have an irreparable injury requirement)? • Are there reasons why courts might be reluctant to order specific performance short of impossibility or “extremely-difficult-to” cover situations?

10. Van Wagner – Difficulty in Valuing Damages & Specific Performance • Was the land subject to the rental contract in Van Wagner unique? • http://vimeo.com/3002147 • Why did the court refuse to grant specific performance? • Is Van Wagner’s reasoning consistent with the courts’ treatment of irreparable injury in Campbell Soup orPardee? • Assume your parents’ commissioned Picasso portrait of you?

11. Difficulty in Valuation & Irreparable Injury • One important factor re whether P has shown irreparable injury is that damages are hard to value. • This factor is a corollary to uniqueness – “That which is hard to replace is usually difficult to value.” • Just because difficulty of valuation is a consideration re irreparable injury, however, DOESN’T mean it is the only way to show irreparable injury. • What else might have caused the court to deny the injunction?