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Remedies
University of Minnesota Law School
Younger, Judith T.

J. Younger, umn
Remedies – Fall 2016
Chapter 1 – Remedy Categorization
Substitutionary v. Specific Remedies
Substitutionary – give P money in exchange for a non-compensable loss.
Specific – Give P the specific item sought.
Damage Remedies
Nominal – legal declaration of rights and provide P with nominal compensation. 
Compensatory – repay for losses to make P whole.
Liquidated – efforts by parties to a K to specify either an amount or a formula that a court should use in calculating damages.
Statutory – Legislative enactments that specify an amount or a formula for damage recoveries. 
Coercive Remedies
Involve in personam (against specific person | personal liability) orders that are enforceable through the remedy of contempt of court (jail sentence or fine). 
Injunctions, specific performance, prerogative writs (official orders directing governmental bodies). 
Restitutionary Remedies
Preventing unjust enrichment not resulting from P’s loss (damages)
Declaratory Remedies
No money, no orders, just a declaration of one party’s rights.
Legal v. Equity
Equitable Remedies – In personam, enforced through contempt.
Legal Remedies – Monetary judgments for one party. Enforced via attachment (court transfers to creditor) or execution (sheriff takes).     
Preliminary v. Permanent Remedies
Preliminary or Provisional Remedies – interlocutory (during the suit), lasting only until the end the end of the suit.
Permanent – Issued at the end of a suit and last forever absent modification/dissolution. 
 
Chapter 2: Equity & Equitable Remedies
Law seen as general and evenhanded; justice as particular and subjective.  Equity courts would act only when P’s legal remedy was inadequate.  Developed Maxims to guide equable relief.  Field Code united into one action, a civil action. Majority of courts today have both powers of law and equity.
Rule 2 Fed. R. Civ. Pro. – “there shall be one form of action known as the ‘civil action.’”
 
Standards for the Availability of Equitable Relief
Conscience and Equity
Equitable remedies available only when equity and conscience demand them.  Various rules of conscience, e.g., unduly delay or unclean hands 
Equitable Remedies are granted in personam
Court orders a personal judgment to do, or refrain from doing, some act.  Contempt of court to if refuse.
Judgments from law courts not automatically enforcing.  P must pursue additional proceedings to attach or place liens on property. 
Irreparable Harm
Equitable relief is not available except when P’s legal remedy is inadequate.  General rule: Harm is irreparable when the legal remedy of damages is inadequate to provide relief.
Other irreparables: Unique; damages difficult/impossible to calculate; P required to bring multiple proceedings; damages would be substitutionary and ineffective (e.g. civil rights).   
Campbell v. Seaman – Gas from burning bricks destroy ornamental plants.  Homeowner got injunction to stop.  Affm’d.  Injunction suitable where there is a need to prevent irreparable injury, interminable litigation, and a multiplicity of suits.  No adequate remedy at law: damage to plants was substantial and irreparable since they were irreplaceable.  Also an injunction stops the damage in a single action.  
Monetary damage not normally considered irreparable
Money damage inadequate to prevent unmanifested harm
Fortner v. Wilson — K for new Chevrolet.  Buyer sued for specific performance after seller refused to deliver arguing getting another would be inconvenient and impose additional costs.  Held: Had an adequate remedy at law because new Chevrolet’s were available on the open market; therefore no specific performance to deliver even though additional expense.  Exceptions for sales involving personal property: something unique or something else that would prevent money damages from giving full relief.
UCC § 2-716: Specific performance when goods are unique or other proper circumstances.  Or, when not unique, very scarce or cannot be replaced by alternative sources.   
Merrill Lynch v. Pierce – Ex-employees took client list.  Employers sought temporary restraining order & preliminary injunctive relief to stop them from soliciting/disclosing info thereon.  Argued difficult to calculate future revenues.  Held: No to both actions because failed to show that damages were immeasurable.  Damage had already been done and a reasonable estimate of the damages could be made of client departures resulting from solicitation and lack of confidence. 
Van Wagner Advertising Corp. v. S & M Enterprises: Lessor told existing lessee to stop using billboard.  Lessee sought specific performance and damages.  Held: no specific performance because property was not unique. Uniqueness is the inability to obtain, at a reasonable cost, enough information about substitutes to permit calculation of money damages without imposing a high risk of undercompensating the injured promisee.  E.g., Restatement 2nd § 360(a) difficulty of proving damages with reasonable certainty.  Here, value of property could be reasonably fixed without an unacceptably high risk of undercompensating.              
Remedy for BOC for sale of real property is typically specific performance, but not a matter of course for leases. 
Uniqueness is not physical difference 
Court erred for not allowing damages for entire lease – would have to bring multiple suits, thus multiplicity. 
Projecting damages won’t make damages inadequate
Contingencies in one’s control and that one benefits from won’t shorten time frame for damages because of inadequacy. 
Relief is inequitable if the harm to D is disproportionate to the assistance to P.  An equitable remedy cannot work an inequity.  Specific performance should not be an undue hardship.   
Discretionary
Equitable relief is discretionary.  May deny even if legal remedy is inadequate. 
Georg v. Animal Defense Fund: Homeowners seeking injunction to halt construction of animal shelter.  Held: Affm’d ruling to deny because although there’s a nuisance, the selected site was not wholly inappropriate for its purpose and builders couldn’t fi

arising out of it.  Not every wrongdoer is generally barred.  But if public is affected by the actions of P, the doctrine is inapplicable and he will not be given relief. 
Fraud by the Univ. did not affect the private rights of the teachers.  
All conduct and wrongdoing sufficient related to P’s claim
Unfair, Unethical, illegal
Sua sponte, without prompting by the party.
The misconduct must also be serious enough to withhold relief. 
5 Unconscionability — Deny relief on grounds of conscience. 
Oppressive bargain is unconscionable and won’t be enforced.  UCC 2-203 alternative. 
Substantial and Procedural unconscionability – nature of claim bars from challenging is unconscionable.  
Campbell Soup Co. v. Wentz – Seller stopped selling carrots to buyer after favorable changes in the market.  Buyer sought to enjoin seller from selling to new buyer and specific performance of sale to him per K.  Clause in K prohibited farmer from selling the carrots to others even if they were rejected by Campbell.  Held: This provision of K unconscionable and equity doesn’t enforce unconscionable bargains; no specific performance (deliver carrots).  Here, not permitted to sale elsewhere unless buyer agrees.  Unique because no substitute on open market, not illegal, and seller did breach.  Entitled to money damages.  K too one side, won’t enforce.  But it can have its legal remedy
UCC 2-302 & Unconscionability: enforce without unconscionable provision, limit its application, or refuse to enforce whole K.
Prevention of oppression and unfair surprise.
Muhammad v. County Bank: Student borrowed two loans which barred class action claims in arbitration.  Student filed class action claim against high interest rates on the loan and argued the class action waiver was unconscionable because it limited discovery and barred class-wide arbitration.  Held: unconscionable but arb clause enforceable without class waiver.  Rudbart Factors to determine whether to enforce adhesion/take-it-or-leave-it Ks:
1) subject matter of the K
2) Bargaining positions
3) economic compulsion motivating the adhering party
4) public interests    
Consumer K; 2) gross disparity; 4) public interest in not closing door to litigation: no realistic challenge will occur without class action in this circumstance.  Therefore wavier acts as exculpatory clause barring litigants from pursing statutory rights of consumer protection. 
Too small of damages awarded