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University of Florida School of Law
Hutchinson, Darren Lenard

Remedies Outline

Professor Hutchinson

Spring 2016

Introduction to Remedies

What is a remedy?

A is anything a court can do for a litigant that has been wronged or is about to be wronged

The wrong can be something that has already occurred or something that is about to occur

Two most common remedies: damages & injunctions

The court decides whether the litigant has been wronged under the substantive law that governs primary rights and duties; it conducts its inquiry in accordance with the procedural law

Remedies are substantive but are distinct from the rest of the substantive law, and sometimes their details blur into procedure

Remedies are a means by which legal obligations are given effect

Remedies Law vs. Substantive Law

Substantive law creates rights, obligations, & duties (i.e. duty of care & K obligations)
Remedies law helps shape cases where remedies do not seem relevant

Classifying Remedies

Compensatory Remedies

Designed to compensate the Ps for harm they have suffered (i.e. damages)

Preventative Remedies

Designed to prevent harm before it happens so that the issue of compensation never arises
Preventative Remedies come in two forms: Coercive & Declaratory

Restitutionary Remedies

Designed to restore to P all that D gained at P’s expense
In their most ambitious applications, restitutionary remedies award to P the profits D earned by conscious wrongdoing, even if those profits exceed P’s damages
You can get much more in restitution than you can get in damages
You have to know what to ask for; the facts will tell you whether you need to seek damages or restitution
Extraordinarily helpful to plaintiffs

Punitive Remedies

Designed to punish wrongdoers (i.e. punitive damages)
Limited to situations where the wrongdoing was intentional or malicious; higher showing of culpability than simple negligence

Ancillary Remedies

Designed to effectuate the standard remedy or primary remedy in the case
Costs and attorneys’ fees are one important set of ancillary remedies
Another is the means of enforcing the primary remedy against a recalcitrant D, or securing the possibility of later enforcement when recalcitrance is anticipated – ( means resisting authority or control)

Substitutionary vs. Specific

Specific Remedies: aspire to prevent harm, or undo it, rather than let it happen and compensate for it
Substitutionary Remedies: P suffers harm and receives a sum of money
Example illustrating the difference on pg. 5

Legal vs. Equitable Remedies

We have doctrine separating law and equity that still exists today

Remedies are still classified as legal or equitable, and the rule that P cannot have an equitable remedy if a legal remedy would be adequate is still on the books everywhere but it no longer has much bite

Right to a jury trial is only available with legal remedies
Damages are the most important legal remedy

In general, compensatory and punitive remedies are legal
Some of the specialized coercive remedies, such as mandamus, prohibition, and habeas corpus, are legal

Injunctions and specific performance decrees are the most important equitable remedies

Most of the older, more specialized declaratory remedies are equitable
Receiverships are equitable

Declaratory judgments were created by statute after the merger, so they are not classified either way
Restitution was developed independently in both sets of courts; some restitutionary remedies are legal, some equitable, and some both.
Most legal remedies are substitutionary and most equitable remedies are specific, but there are important exceptions in both directions

The Rightful Position

Fundamental Principal of Remedies

To restore the P OR to keep the P at his/her rightful position that P would occupy in the absence of D’s wrongdoing

With damages, the harm has already occurred so you restore the P to his rightful position
With injunctions, the harm has yet to occur so you try to keep P in his rightful position

The traditional argument for restoring P to his rightful position is based on “corrective justice” – P should not be made to suffer b/c of wrongdoing, and if we restore the P to her rightful position, she will not suffer.To do less would leave part of the harm unremedied; to do more would confer a windfall gain

Rightful Position Rule

A should be “tailored” to get P back to the “rightful positon”

(a) Rightful Position: the position P would occupy in absence of D’s actual/imminent wrongdoing
(b) Tailoring: remedies must be tailored to the loss

Rightful position concept developed in Hatahley

US v. Hatahley (10th Cir. 1958) – pg. 11

Gov’t agents rounded up Ps’ (Indians) horses and burros and sold them to horse-meat and glue factories without notice to the Ps as required by Federal Law.

The Dist. Ct., in calculating damages, placed a fixed number on each animal without differentiating condition, age, and sex of the animals.Court also found a total amount and divided it amongst Ps for pain & suffering.The court took aggregate amount of damages divided in ½ and said that is the amount the gov’t is responsible for.
Ps argued that based on the theory that the animals were unique with special training, market value was incalculable

The 10th Cir. found the remedy did not reflect the loss itself b/c it did not refer to market value of the horses

Can’t just say these are special Native American horses; need something that reflects the market value
One value per animal type without taking into consideration each animal of that type’s age/sex/etc. is insufficient
Pain & suffering is also individualized; nothing in the record showed everyone had the same emotional loss and precedent established that it must be reasonable which it is not

One-Satisfaction Rule

A corollary of the rightful position standard
P cannot recover the same item of damage more than once

Ex: Tony Motors v. Chapa, where P recovered for fraud, breach of K, and violation of the state’s Deceptive Trade Practices Act, all for failure to deliver the model of SUV that was promised, the court held that P could recover under only one theory

If P collects a judgment from one D, he cannot collect it again from any other



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

Purpose: (i) to prevent harm from occurring; (ii) to repair harm that has already occurred; (iii) to reconstruct public institutions to bring them in compliance with statutory and institutional norms

It is a preventative remedy b/c it seeks to prevent harm rather than let it happen and compensate for it
It is a coercive remedy b/c it seeks to accomplish its preventative goals by coercing the D’s behavior

Rule 65(d)(1)

Provides an independent ground for objecting to injunctions that forbid all violations

This rule generally precludes injunct

murbati was a preliminary injunction, to be issued before trial on a basis of a limited hearing
The requirement that P show D’s propensity to violate the law applies with substantially similar effect to both permanent injunctions and preliminary injunctions

D has the burden of showing mootness
D must show that subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to reoccur

Voluntary cessation of allegedly illegal conduct does NOT deprive the courts the power to hear and determine cases; it does not make the case moot (WT Grant)

A claim for OR is NEVER moot

US v. WT Grant, Co. (SCOTUS, 1953) – pg. 276

Hancock was on the board of 6 different companies in competition with each other (3 vs. 3), creating an interlock. On eve of litigation, he stepped down from 3 of the boards to cancel the interlock &

Trial court ruled for the Ds saying there was no threat D would violate the Clayton Act in the future

Question becomes whether there is a need for an injunction

The Court ultimately said no b/c Hancock stepped down, listing a series of facts that the ct. of appeals supported in concluding the injunction was not necessary
No multiple violations, took the gov’t 5 years to get to this point; to even reach the point of enforcement against him

The Court found that although the actions were not moot, no abuse of discretion has been demonstrated in the trial court’s refusal to award injunctive relief

Argued that the only reason Hancock quit was b/c there was a prosecution about to happen; pending lawsuit
Since Hancock did the conduct in violation of the Clayton Act as a matter of course (Lehman Bros. insisted on being on the board every time it took over a company), the dissent argued that future violations could occur


“voluntary cessation” is one common source of claims that the case is moot, or more plausibly, that no injunction is needed

D says the normal inference from past conduct is not true in his case, and relief aimed at preventing future repetitions is now premature

Ps win more voluntary cessation cases than they do ripeness cases, b/c the past conduct hurts D’s credibility and it arguably justifies inconveniencing D to make sure P is protected

Abuse of Discretion Standard

Any remedy is in the discretion of the trial court, so when the Appellate court reviews a decision by the trial court it is subject to an abuse of discretion standard
The Appellate Court has to find that the Dist. Ct. used an improper legal standard or that the conclusion was unreasonable given the facts and record

Very flexible standard; hard to reverse under an abuse of discretion standard

When the Appellate Court discusses facts of a case, it defers to the lower court for findings of fact