Equities and Remedies

  1. How long can you get loss of use damages?
    Only to the point a reasonable person would have replaced the item.
  2. What is the standard calculation for conversion?
    Fair market value at the time of the conversion, plus loss of use damages, plus interest (loss of use of sale price)
  3. What position are damages supposed to restore?
    The rightful position, the position he would have been in but for the wrong.
  4. Explain pro tanto and pro rata
    Pro tanto: when you settle iwith an individual, that party's percentage of fault is satisfied. 

    Pro rata: that person's settlement is dollar-for-dollar reduced from the total owed.
  5. What are the 2 exceptions for conversion damages?
    When it has no market value, cost of replacement

    when it has no market value and can't be replaced, value to owner.
  6. What's the lesser of two rule?
    You recover the lesser of diminuiation of value or cost to replace
  7. What's the rule for special purpose property?
    If the value of the property can't be determined because of a special use, the lesser of two rule doesn't apply. we instead use cost to repair, cost to replace, or sentimental value.
  8. What's the rule for when property has been totally destroyed on loss of use?
    Circuit split.  some say you can't get any loss of use because the cost of what you are deprived of is included in the market price you otherwise receive, while others allow it as a seperate damage issue.
  9. What are the common methods to determine value of property?
    • 1. cost to replace less depreciation
    • 2. market value as determined from sales of other similar property
    • 3. income approach, relying on income generated from property.
  10. What is the argument for sentimental value?
    Other side's conduct deplorable, and the normal measure of damages woefully insufficient.
  11. what's a medical monitoring action and what are it's elements?
    an action to recover quantifiable costs of future medical examinaitons to detect onset of physical harm.  Elements: exposure to hazardous substance through wrongful act, 2. proof that exposure increases the risk to contract serious disease, 3. increased risk makes need for medical monitoriong reasonable. 4. monitoring woudl learn to early detection and might allow for earlier intervention and better prognosis.
  12. what's the ucc damages for buyer or seller breach?
    Price - cost = net expectation damages. allows for incidential losses associated with breach as well.  reliance damages (expenditures made in reliacne on contract) only avaliable in cases with losing contracts or where expectancy can't be proven.
  13. When are special/consequential damages allowed in contract?
    when they were in the contemplation of the parties at the time of contracting, the breach was the proximate cause of the damages, and they can be calculated with certainty
  14. What are the lessor's remedies?
    1. demand rent without effort to relet, 2. treat the the contract as terminaited upon breech with no additional obligation from teh lessee for rent, 3. hold the lessee in breach, sue, relet, and give lessee credit for other rents received.
  15. What's the remedy for money owed?
    Money owed plus interest.  doesn't matter if it caused other damages, even if they meet all teh special damage criteria.
  16. what is bad faith?
    A tort claim against insurers regarding a bad faith refuasal to pay insurance claim.  doesn't fall under money owed rule.
  17. What is the court's stance regarding failure to mitigate?
    Court will not be hypercritical, will not substitutei it's judgemetn in hindsight.  if a reasonable business decision, will generally allow it.  mostly take them at their word. don't need to prove that you had perfect decision making.
  18. What's the rule for duty to mitigate?
    Have to act as a reasoanble person in your situation would act, an objective test.
  19. What's the collateral source rule?
    Defendant is precluded from offesetting his liablityt by virtue of benefits provided to plaintiff from collateral sources.  Often will allow insurers to subrogate the claims of insured.
  20. What's the rule in disaster cases?
    Can only recover if you suffered harm to perosn or property.  can't recover purely economic loss. generally a hardline rule, unless you create a constructive property interest.
  21. what are the rules for comparative and contributory negligence
    Contributory: recovery is barred

    comparitive:  pure: percentage of rulling you weren't at fault for.  Not greater than rule:  can't have a greater amount of fault than the defendant.  less than rule: must have less fault than any defendant.
  22. What are hedonic damages?
    Damages for loss of life's pleasure, such as loss of smell, sight, other disabilty that prevents you from living a normal life.  many jurisdictions recognize it today.
  23. What is wrongful death?
    a derivative claim from wrong to the deceased.  death had to arise from a wrong.  statute authorizes who can recover and for what( typically loss of compainionship, economic benefit, funeral expenses, loss of services)
  24. What is a survival action?
    A claim brought on a dead person's behalf by their estate, compensates for pre-death conscious pain and suffering.
  25. what are some common tort reform proposals?
    limit on noneconomic damages, limit on collateral source rule, limit on punitive damages, judgements paid over lifetime, limit joint and several liablityt, let defendants recover attorney fees against unsuccessful claimiants, shorten statute of limitations, limit rates charged in contingenecy fees
  26. explain lost earnings and lost earning capacity:
    lost earnings is the income that was lost as a result of the deprivation of the choice to work, independent of what exercising that choice owuld have yielded.

    lost earining capacity: future harm to earnings capacity of injured perosn, measured by difference between value of plaintiffs service before the injury and in the future as result of the harm.
  27. What is the rule for bystander recovery?
    1. must involve a close relative. 2. claimiantn had to be aware of the traumatic event, present at the time that lead to the injury., some type of impact associatged with the event (easiest to show physical injury)
  28. how much presumtive value is there in constutional rights violations?
    none, must prove damages.
  29. When can you get presumed damages?
    In cases of defamation, in libel economic loss is presumed.  in slander, must prove economic loss.
  30. what is bifurcation?
    Splits trial into two phases for purposes of punitive damages.  1st is liablity, 2nd, is punitive. evidence of wealth allowed (rationale is that jury must know something about defendant's finances to inflict an appropriately painful liablitty)
  31. what are the bmw guideposts and what is their context?
    In punitive damage awards, we must look at 3 factors.  Ratio to compensatory/nominal damages.  Reprehensibitlity of conduct.  fines/fees legislatures set in criminal matters for this kind of conduct.
  32. what is the phillip morris rule?
    While you can consider harm to other parties no in the lawsuit, you cannot punish the defendants for that harm.
  33. When are punitive damages recoverable in contract?
    Only if there is evidence of fraud or coercion in the making of the contract.
  34. What are the remedies for fraud?
    expectation damages, out of pocket costs, cost to make good in promise
  35. What is nuisance? remedies?
    An unreasonable interference with the use and enjoyment of the land. Remedies vary.  if permenant, diminished value of land.  if temporary, diminished rental value, or cost to abate or repair
  36. What are the four responses to a remedy request in a nuisance case?
    • 1. injunction abating nuisance
    • 2. Hybrid: injunction but plainitff hs to pay defendant to abate (cost of moving, etc)

    3. Damages

    4. nothing
  37. what are remedies for patent violations?
    injunction, royalty for use plus interest, damages (lost profits for patented item and unpatented items that would be sold along with it), restitution
  38. What is a trade secret?
    A secret not known to the general public, can only be protected via a non-compete/non-disclose clause, is protected as long as it remains in the owner's exclusive domain.
  39. What is the irreperable harm rule
    the plaintiff must have suffered an irreperable injury, and there must be no adequate remedy at law.  required for injunctions
  40. What are some arguments to satisfy the IHR rule?
    Defendant is judgement proof/immune, damages difficult to estimate, repeated trips to court will be required, money can't replace what was taken, simply can't allow the defendant ot get away with it.
  41. explain specific performance
    injunctive relief, requires the performance of the contract rather than money damages.  usually for unique property or land, but in special situations, can happen with more ordinary goods (shortages, etc.)
  42. what is the ultimate issue in specific performance?
    not the inherent physical uniqueness of property but the uncertainty of valuing it.
  43. What will and will not a court enforce with employment contracts?
    will rarely force a contract to work together into effect, but will enforce a non-compete if reasonable in scope and time.
  44. what are the remedies in breach of employemnt contract for the employer.
    difference between contract price for employee's services and the reasonable cost of obtaining substitute services.  consequential damages if proof shows amount with resonable certainty and they were in contemplation of the parties at time of contracting.
  45. What are the employees remedy for breach of employemtn contract?
    injunction, money owed plus interest, consequential damages.
  46. what are the considerations for burden on defendant in injunctions?
    • courts should deny if hardship is substantially disproopritionate to the plaintiff only receiving damages.
    • look at the importance of the interest of plaintiff being protected, look at relative fault, balance with the goals of society in mind
  47. what are the four considerations for a permenant injunction?
    irreperable harm, balance of hardships, societal goals, how much court involvement (how frequently will they have to intervenee and how easily can violations be deterimined)
  48. What are the two types of pre-trial injunctions
    preliminary injunction: requies notice to defendant, short hearing with little due process, stays in effect until dissolved or permenant relief given.  Generally denied unless clear irreperable harm. 

    temporary restraining order: issued ex parte, usually expire after 10 days, issued only for clear irreperable harm.
  49. what are the four balancing considerations for preliminary injunctions?
    irreperable ham, likelihood of success on merits, who equities favor, and society's interest
  50. what are the considerations for who equities favor?
    burden on parties, social stigma, liberty restraignts against fundemental fairness, nature of underlying right infringed
  51. formula for preliminary injunctions
    Percentage chance of winning x  value of harm to plaintiff vs. remaining percentage chance of winning x  value of harm to defendant.
  52. what are the equity factors for preliminary injunctions?
    threat of IH, how close award of damages would come to placing plaintiff in rightful posotion, how much harm between preliminary and permannt stages, libertyrestraints/ social stigma/restriction on abilty to manage business, unreasonable hardships relative to p, irreperableharm to defendant.
  53. what is the rule for bonds in injunctions? what's the 4 points of discrestion
    generally, to get a preliminary injunction, you must pay a bond to make up for risk that the injunction was improvidnetly granted and damages defendant.  4 discrestion points are: may refuse to require a bond, might set so low it will not proteft D's interest, might discharge bond at later sage, may refuse to find damage.
  54. when do you not have a right to a jury?
    in cases of equitable relef.  Relief sought must be historically equitable or the substantive right must originate in equity.
  55. what are the remedial and substantive tests for jury trials?
    • remedial: if relief sought is both equitable and legal, jury finds facts for legal issue, these are binding on judge making equitable call.
    • substantive: asks where the cause of action originated regardless of the remedy that is sought.  (traditionaly trusts, fiducary, bankrputcy, divorce, mortgages are equity)
  56. what is a declaratory judgement?
    a judgement obtained to prevent or decrease possibilty of further litigation and threatened enforcement of laws, even when no other relief requested.  courts issue a declaration on the relative rights or obligations of parties.  must be before the wrong occcurs.  generally not conditioned upon adequacy of remedial alternatives. issue is ripeness, is the court convinced that there will be a fight if they don't intervene.
  57. what are the 3 parameters for declaratory judgements?
    are the parties legitimate potential adversarys? would the declaration dispose of the dispute? would there be any value in making a declaration/would harm be averted?
  58. what is restitution?
    the court forcing a defendant to return unjust gain
  59. what are the three catergories of restitution?
    • where performance provides a benefit that defendant desired but plainitff perfers non-contractual remedy, e.g. quantum meriut
    • benefit providfed but not expressly requested (mistake)

    Wrongful conduct leaves defendant with undeserved benefit (conversion/theft/fraud/property right infringement)
  60. why restitution?
    could be more lucrative where damages are difficult to measure or small, substantive law may afford no remedy(no valid contract), defendant has no liquid assets but has property in her possession that plianitff can seek specific retrevial of because you can show equitable entitlement.
  61. what's the rule for mistaken improvements?
    under common law, no obligation to pay.  modern law allws recovery of increased value where there is no pretense of contract, but where there is, may recover value of services
  62. what's the rule for copyright and trademark infringement remedies?
    law allows for recovery of actual damages or profits from infinrger. can require the defendant to disgorge profits even when plaintiff suffered no lost.
  63. what's the rule of MGM for copyright cases?
    you should apportion wrongful profits based on the percentage that is actually due to the infringement
  64. what is the rule for expense deductions in copyright cases?
    overhead which does not assist i nthe production of the infrngement should not be credited to the infringer.  can be deducted from profits.
  65. what's the rule for profits in contract breach?
    general rule is that plainitff is not entitled to gains made by defendant through breach.  two exceptions: fiduciary breach, trust breach.
  66. how do constructive trusts work?
    court gives formal legal title to plaintiff, giving plaintiff proirty over all others who have an interest in the trusted property.
  67. what's the rule for recission?
    where allowed, avoids the transaction, but both sides must make restitution.  contract is unmade, so benefits from both sides must be restored
  68. when is recission avaliable?
    only for major, material, or substantial breaches.
  69. what is an equitable lien?
    a charge against property that makes the property stand as security for the debt owed.  LIen creditor has priority over general creditor.
  70. what is the rule for subrogation in trusts?
    if wrongfully used to pay off a lien, a trust may subrogate the right of the lien holder, take a lien on the property
  71. What is the general rule with attorney fees?
    losing party is not liable for winner's fee, may only be charged with costs (filing fees, etc.)
  72. how do courts intepret the prevailing party in fee shifting?
    generally, will take it to mean one way fee shifting, only defendant must pay
  73. what are the two fee shifting arrangements?
    • 1. indemnity: prevailing plaintiff or defendant allowed to recover any attorney costs.
    • 2. fees as costs, one way fee shifting.  Prevailing plaintiff is allowed to recover reasonable costs otherwise not placed in rightful postion.
  74. what is the lodestar number?
    number of hours mulitplied by hourly rate.  largely influced by reasonabness, both numbers must be reasonable.
  75. who is a prevailing party?
    a party who succeeds on a significant issue in the litigaiton, not a technical, insignifincat, or de minimis issue.  must be mateiral alteration of legal relationship of party.
  76. what is civil contempt?
    coercive contempt where a prosective sanction is imposed should an order be disobeyed.  Judge presides over proceedings, no right to jury trial, money paid to court
  77. what are direct and indirect criminal contempt?
    • direct: occurs in front of the judge, can hold a hearing and issue penalty right there.
    • indirect; occurs out of the presence of the court, more procedural safeguards, right to jury trial if substantial fine or 6 months imprisonment.  proof beyond reasonable doubt, right to counsel if prison imposed
  78. what is the collateral bar rule>
    in a criminal contempt proceeding, you cannot attack the propriety of the underlying injunction.
  79. what is the defense of unclean hands?
    when p seeks equitable relief, they should be denied if their condct has dirtied their hands, largely arbitrary standard.  if they're possibly responsible, can make the argument
  80. what is equitable estoppel?
    prevenging a party from claiming somethiing in a lawsuit inconsistent with parties previous conduct.  can't get an advantage with misleading conduct
  81. what are the 3 requirements for equitable estoppel?
    actor (with full knowledge of facts) communicates something to another in a misleading way, reasonable reliance on that communcication by the other party, material harm or prejudice would occur to the othe rif the actor is premitted to assert a claim inconsistent with earlier conduct. sword and shield.
  82. what is waiver?
    when a party relinqushes a right by not assertng it at the appropriate time.  no reliance required.
  83. what is laches?
    an unreasoable delay by plaintiff in prosecuting a claim or protecting a right of which plainiff knew or should have known resulitng in prejudice to defendant.  bar to equity
  84. what is the discovery rule for SOL
    SOL doesn't begin to run until plaintiffdiscovers injury or would have with reasonable dilligence
Card Set
Equities and Remedies
Equities Dotson