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Remedies
University of Florida School of Law
Hutchinson, Darren Lenard

REMEDIES HUTCHINSON 2012
 
I.      WHAT IS A REMEDY? – INTRO
 
A.   Definition – anything a court can do for a litigant who has been wronged or is about 2B wronged
1.      the wrong can be something that has already occurred or something that is about to occur.
B.   2 Most Common Remedies
a)      Damages = judgments that P’s are entitled to sums of money from D’s
b)      Injuntion = orders to D’s to refrain from wrongful conduct or to undo its consequences
C.   How do we distinguish remedies from substantive law?
a)      Substantive law = tells you what rights you have
b)      Remedies add to the substantive law (tells you what rights you have), as they correct for deviations – so remedies give meaning to substantive rights
D.   How do we classify remedies?
1.      First Classification: Nature
a)      Compensatory–compensate P for value of thing P lost at time of loss – losses from D’s actions
i.         Usually $$ – compensatory damages to make P as well off as if he was never wronged
ii.        These include substitutionary remedies – where money substitutes for the thing that was lost.
b)      Restitutionary Remedies
c)      Punitive
d)     Ancillary Remedies
e)      Coercive Remedies
 
2.      Second Classification – Substitutionary v. Specific:
f)       Substitutionary Remedies –substitution for what P loss (if don’t give P what actually lost)
i.          P suffers harm, and receive cash payment – usually damages – as substitute for what lost
ii.        Includes compensatory damages, attorney’s fees, restitution of $$ value of D’s gain (based on fact finder’s valuation of loss) and punitive damages
iii.      Thus P who recovers damages, gets neither what he started with nor what he was promised, instead gets defective goods and money to compensate for defects
g)      Specific Remedies – get the specific thing you owned, aspire to prevent harm, or undo it, rather than letting it happen and compensating for it
i.         Includes specific performance of K’s, injunctions, restitution of specific property, and restitution of specific sum of $$
 
3.      Third Classification: Legal or Equitable:
 
Distinction is important because you only get a jury trial with legal remedies.  VIP 2 determine which is which
 
a)      Legal
i.         Damages are the quintessential legal remedy – generally compensatory and punitive remedies are legal
(i)     These allow the Π to sieze property
ii.        Some of specialized coercive remedies, such as mandamus and habeas corpus are legal
iii.      Most legal remedies are substitutionary with important exceptions
b)      Equitable –
i.         Only available if no adequate relief in law  must show damages available by law are inadequate
ii.        P will be irreparably harmed w/o equitable remedy
iii.      Injunctions and specific performance are the most important equitable remedies
(i)     These allow Π to coerce Δ’s behavior.
(ii)    ex/ –  the irreparable injury rule – that there is no adequate relief at law
1.      Preliminary injunctions – unless courts intervene, injury will occur
2.      No adequate relief in law – thus specific relief in equity will be ordered to prevent harm from occurring – assuming it can be foreseen
3.      Unique – what lost – not adequate $ to compensate  need specific performance
iv.      Equity being courts of last resort – there are high standards for getting things like injunctions as they are extraordinary remedies
v.       Although once you get in there is more flexibility
E.   The Rightful Position
 
1.      The Basic Principle: Restoring P to His Rightful Position – Tailoring Principle
 
a)      Tailoring  – remedies must be tailored to loss  this gets you to “rightful position”
i.         Comes w/theory of “corrective justice” – prevents windfall to D (if do less) to P if do more
b)      Rightful Position – position P would occupy in absence of D’s actual/imminent wrongdoing
 
United States v. Hatahley (10thCir.1958) (11) – Govt. agents rounded up P’s horses and burros and sold them to a glue factory. 
 
·         District Court In calculating damages, court place a fixed number on each animal without differentiating condition, age, and sex of animals – In addition, court found a total amount and divided it amongst P’s for Pain and suffering.  Crt took aggregate amt of damages divided in ½  said that’s amount government responsible for
·         P argued based on his theory that animals were unique with special training, so market value was incalculable. 
·         SC
o   Damages held that the lower court’s calculations for the amount of damages and pain and suffering failed to consider evidence of the availability of other animals were incorrect.  Need to compare w/similar animals at market, age, condition of each animal to find worth,
o   Pain & Suffering –  need to evaluate each person for pain & suffering/can’t assume all suffered equally – rejects group/culture harmed same cuz look at loss same way.
o   No showing Native Americans tried to mitigate loss
o   No showing why gov responsible for 50%
 
RULE – A damage award should be individualized “tailored” to get P back to the “rightful position”: to restore injured party as nearly as possible to the position they would have been in had the wrong not occurred.
·         Right to sue for damages is limited to the time in which a prudent person would replace this destroyed horses and burros – thus you have to mitigate damages when possible
 
Applied Here – P’s were entitled:
to the market value, or replacement cost of horses and burros at the time of the taking –
Must consider availability of like animals in the immediate vicinity and their value
Must factor in a premium for training costs
P’s must show proximate cause – show some facts as to why D’s were responsible for harm
plus use value of animals during the period of time between the taking and the time they could have replace the animals
to pain and suffering
award for pain and suffering must result from wrongful taking of P’s animals by US agents
and it must be treated on an individual manner, as it is unique to each person
 
2.      LAW & ECONOMICS – different approach to this: Profit Maximizing
 
If D can profit from doing wrong — if still have profit left over after remedy given to P
PROBLEMS w/THIS
·         Encourages wrongdoing, makes Ks more unpredictable  – since may get more if breach – may underestimate damages will be when breach
·         Externalities – D’s not always motivated by $
·         More dimensions to law – fails to consider – P’s losses may not be monetary
II.   INJUNCTIONS
 
A.   Definition
 
A court order that directs a party to engage in a particular course of conduct or to refrain from engaging in a particular course of conduct. Issues: The main concerns with injunctions are whether they are established to repair or prevent harm and to restructure public institutions to bring them in compliance with statutory and institutional norms. Then, there are issues with the scope, mootness and ripeness to plead them successfully.
 
B.   Background
1.      Fed Rule for Injunctions – Rule 65(a)  must be complete documents:
a)      State reason/issue in clear detail why issued
b)      State its terms specifically, and
c)      Described in reasonable detail within document itself – can’t refer you to other documents to get rest of info
d)     Must be reasonably clear who parties bound by injunction – so they have sufficient notice
2.      Tailoring Principle – tailor the remedy to the injury
a)      Applied to both quantitative damages, and injunctions as well
3.      Types:
a)      Preliminary
b)      TRO
c)      Specific injunction
4.      Non-compliance can lead to sanctions/contempt
5.      P has to show that there is a harm that has occurred or is going to occur
6.      Functions of injunctions (academic terms, don’t need to classify in ct)
a)      Prevent harm
b)      Repair harm that has already occurred
c)      Restructure public institutions to bring them in compliance with statutory and institutional norms
7.      Injunctions are treated as unusual or extraordinary relief
a)      Can’t just order parties to obey law – need to be more specific 2 facts of case since injunctions are a higher level of relief than law – since injunction are last resort relief , injunctions are special because they carry ancillary remedy of contempt, so there is support 2 primary remedy
b)      Could damage the reputation of D (see Humble Oil)
c)      Issuing too many injunctions would dilute their force.
 
 
C.   Preventing Harm – The Measure of Injunctive Relief
 
1.      Preventative Injunctions
 
a)      First step: we have to show ripeness – P must show threat/injury ripe
 
i.         Almurbati v. Bush – pp 263 (year 2005, DC circuit)
(i)     Facts: Plaintiffs, six Bahraini nationals classified as “enemy combatants,” filed a petition for habeas corpus. Relying on news reports and statements of the petitioners, they allege that they will face irreparable harm (from torture to possible death) if transferred to certain foreign nations. The Department of Defense  — Senior Exec officials testify/ counters prisoners aren’t transferred if there are any concerns about mistreatment of prisoner in his home country (or prospective destination country) cannot be resolved.
(ii)   Issue: Whether injunctive relief forbidding the government to transfer any plaintiff out of Guantanamo without 30 days' notice to the court and counsel is appropriate
(iii) Rule: To obtain injunctive relief, the petitioners must show w/reasonable certainty that alleged controversy likely to occur – not just threatened injury is “remote and speculative.” – “irreparable injury” – reasonably likely to occur
(iv) Holding: No. Because gove directly refused prisoners' allegations of their potential torture, mistreatment and indefinite detention to which the US will in some way be complicit, this Court cannot conclude that the petitioners would suffer irreparable harm if they are transferred from the Guantanamo facility.
·         NOTES: Prisoners sought prophylactic relief – party gets more/above rightful position 2 ensure P doesn’t fall below rightful position
a.      30 days notice – so give time to react/prevent possible harm of torture
·         Problems with Issuing Injunctions Right off the bat:
a.       Injunctions are unusual or drastic remedies
b.      FRCiv Pro – note #8, pg. 274
c.       Courts have discretion (only unreasonable or decisions contrary to law will be overturned – abuse of discretion standard)
 
b)      Second Step: determine scope of relief – injunction relief tailored to harm
 
Marshall v. Goodyear Tire & Rubber Co – pp 269. (5th Cir.1977)-
 
Secretary of Labor sued appellant Goodyear alleging violation of Age Discrimination in Employment Act of 1967, for discharge of 1 employee -William Reed.  District court issued a nationwide injunction against further violations. 
 
i.         ISSUE: Goodyear argued that scope of injunction was too broad.  5th Cir. Agrees.
ii.        RULE – Injunctions should be narrowly tailored to remedy the specific problem/issue/harm
iii.      5th Cir –
(i)     In terms of ripeness, no evidence that age discrimination is occurring on a nationwide scale – no findings of a discriminatory company policy or practice
(ii)   Lower court only dealt with isolated wrongdoing.  Equal Pay Act, Fair Labor Standards Act, and Age Discrimination in Employment Act cases establish that a nationwide or companywide injunction is appropriate only when the facts indicate a company policy of practice in violation of the statute. In Hodgson, a broad injunction against the employer's future discrimination hiring was on age was appropriate, inasmuch as the proof showed a company policy of hiring discrimination extending beyond the category of tellers' positions.
(i)     Holding: The district court may no finding of discriminatory company policy or practices and relied only on the isolated fact of Reed's discriminatory discharge in enjoining appellant nationwide.  Relief should be limited to the particular store.
ii.        Notes
(i)     #3 pg 272 -Std argument against Crt granting company-wide relief – just cuz D committed act in violation of statute doesn’t justify broad injunction 2 obey statute  — which subjects D to contempt for a new violation of act unrelated to act originally charged
(ii)   #4 pg 272- bigger company, more violations can get away with – since # high, but overall %age low, Extended-A-Care Employee Assn. v. NLRB
(iii) #5 pg 273 – E.J. Gallo Winery v. Gallo Cattle Co.  Gallo winery sued Joseph Gallo for trademark infringement for selling cheese under his own name “Gallo.” Initial injunction forbid J. Gallo from selling cheese or other product under his own name. Court of appeals narrowed to only forbidding Gallo to use his own name in selling cheese since cheese & wine commonly paired together therefore potential to confuse customers
(iv) Class injunctions – courts can certify a class of Ps therefore inj

k for direct competitor for certain period of time
e)      NOTES: pg. 289 – abortion protests –prophylactic injunction to have abortion protestors stay certain distance away from clinic.
i.         Gangs – CA put preliminary injunction for nuisance for gang members in 4 block radius but since no gang member showed up in court – couldn’t enforce, since no notice
 
E.   Reparative Injunctions (Repairing Harm)
 
Courts can issue injunctions ordering D to do something in order to correct harm that has already taken place, 2 prevent u from living w/harm already occurred.
 
Distinction between preventative and reparative (The theoretical categories may seem clear. However the lines blur in practice. pp 297.)
 
·         (since all injunctions are preventative in a sense) is between preventing the wrongful act (racial intimidation on election day, failing to deliver dock permit at closing), and preventing some or all of the harmful consequences of that act (four years under an illegally elected justice of the peace, living without a dock)
·         thus reparative doesn’t literally undo past violations, rather it prevents some of the harm from that past violation
·         Reparative injunction is thus appropriate when P will suffer additional harm in the future, and when it is possible to prevent that additional harm from happening
 
 
1.   Background of the Issues
 
a)      Bell v. Southwell pp 260 – GA election for Justice of the Peace.  Bell was a black candidate.  Southwell, white candidate, won due to various acts of racial intimidation and discrimination.  Bell asks court to set aside election and order a new one, and enjoin Southwell from taking office.  Lower court while finding a clear constitutional violation holds that it cannot issue an injunction to rectify a past wrong – especially when there is no evidence to suggest that outcome will be different, as they have to be forward looking.  Ct. of Appeals reversed and remanded for an appropriate order setting aside the election results and calling for a new election.
i.         RULE – A court can issue an injunction to rectify a past action, even if it’s not certain that the outcome will change – that if affirmative relief is essential, court has the power and should employ it – this was exceptional remedy [Note] Very extreme relief, however courts would do this when the situation seems fit.
ii.        Injunctions can be both forward and backward looking
 
b)      Forster v. Boss pp- 295 – The Bosses, in selling their property to the Forsters, defrauded them. The Bosses said that the Forsters could obtain a permit for a boat dock knowing that they themselves owned a permit, which would prevent the Forsters from obtaining one. Also, the Bosses said they would remove their swim dock, which they did not do. The district court awarded $10,000 in punitive damages, $12,500 in compensatory damages for the boat dock, $2,500 in compensatory damages for the swim dock, and injunctions ordering the Bosses to remove the swim dock and for the boat dock permit.
i.         RULE – A P can be awarded damages and an injunction so long as there is not a double recovery – cannot have both compensatory damages +  injunctive relief
ii.        Applied Here:
(i)     Court allows P to choose remedy – probably didn’t like D for fraud
(ii)   P can either get removal of boat dock + permit or compensatory damages
(iii) P’s get to keep punitive damages – as damages for delay are not a double recovery
iii.      NOTES:
(i)     They have both the money and the property, and are in a better position than they would have been in had there been no fraud or breach of contract in the first place
(ii)   Just as there can be no double recovery in damages, there can be no double recovery in injunctions or a in a combination of damages and injunctions.
(iii) The court does note that damages for the delay -for three years without a permit- would not have been double recovery. This category of damages is defined as loss of use – This is classically valued with rental value on open market of the piece of property in question.
 
 
2.      How much Harm Should Injunctions Prevent? How much harm should the injunction undo?
c)      Winston Research Corp. v. Minnesota Mining & Manufacturing Co. (pp – 300) Rightful Position – restores 2 position would’ve had but 4 harm
i.         Mincom developed an improved precision tape recorder and reproducer. Somewhat later, Winston developed a similar machine by using confidential information supplied by former employees of Mincom. Mincom sues Winston arguing Winston machine made by former Mincom employees from trade secrets known by employees.  Dist. Ct. finds that technology was a trade secret, and granted injunction for 2 years (time protected after public disclosure), but no damages, both sides appealed – Mincom wanted a permanent injunction.
ii.        RULES –
(i)     Courts will not issue damages where P has not been damaged and D has not been unjustly enriched
(ii)   Appropriate Injunction period is for a reasonable period of time in order to eliminate commercial disadvantage that otherwise would’ve derived from misappropriation –
1.      Reasonable time competitors would require after public disclosure to develop a competitive machine