DeLong Remedies 2010

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1.

"Cover" Formula

Represented by the formula: [amounts toward the purchase price paid to seller] + [cover price - contract price] + [incidental and consequential damages] - [expenses saved]. Standard that instructs us to choose the remedy that puts the plaintiff (or keeps the plaintiff) in the position that she would have been in but-for the defendant's wrong. In the absence of a provision in a contract or as provided by statute, each side to a lawsuit bears its own attorney's fees. In denying the injunction, a court can consider not only how burdensome an injunction might be on the courts, but also on how important the social policy is that the injunction seeks to further. This is the power of the court to impose fines payable to the state or jail time to coerce the defendant's compliance with the court's order; the contemnor has "the keys to the jailhouse door in his pocket." This is the power of the court to award damages to the plaintiff for the defendant's failure to comply with the court's order. Insurance and certain government benefit payments that are wholly independent of the tortfeasor do not get deducted from the plaintiff's award of damages. To make satisfactory payment or reparation to; recompense or reimburse; oriented toward plaintiffs' losses (unlike restitution, which is oriented towards defendants' gains), and they require a payment that is "satisfactory" to repair the loss suffered by the plaintiff. Court orders crafted by the parties that, like regular injunctions, are backed up by the power of contempt. Any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise. "Losses suffered by the victim of a breach going beyond the mere loss in value of the promised performance (direct damages), and resulting from the impact of the breach on the other transactions or endeavors dependent on the contract."

12.

Constructive Trust

2.

"Rightful Position" Standard American Rule for Attys Fees Burden on the Court

3.

An equitable restitutionary remedy that in some circumstances (1) gives plaintiff seeking restitution a preference in bankruptcy; (2) allows plaintiffs to "trace" defendant's gains from plaintiff's misappropriated item into an item purchased by defendant that has appreciated in value; or (3) allows plaintiffs to "trace" plaintiff's item from defendant to a third person; because it is expressed in a percentage of traced assets, it is a good choice for assets appreciating in value. The buyer makes a good faith purchase of substitute goods without reasonable delays; she is entitled to the difference between the price of replacement goods and the contract price, together with incidental and consequential damages, less expenses saved as a consequence of seller's breach. This is the power of the court to punish a defendant's willful failure to comply with the court's order. "Money claimed by, or ordered to be paid to, a person as compensation for loss or injury." An amount of money awarded to a wronged party from the party that committed the wrong to compensate for that wrong "Losses incurred by the victim of a breach in acquiring the equivalent of the performance promised under the contract, so as to substitute for the performance that should have been rendered by the breacher." A plaintiff cannot recover for lost wages or other financial kinds of injury caused by a defendant's tortious conduct in the absence of physical impact resulting in personal injury or property damage. The theory that a party should break a contract if it makes the breaching party better off even after compensating the non-breaching party with expectancy damages. When it comes to tort damages, a plaintiff can recover all of his damages, even if the extent of his harm was unforeseeable. A form of specific restitution for real property, paralleling replevin's remedy for personal property.

13.

Cover

4.

5.

Civil Coercive Contempt

14.

Criminal Contempt Damages Damages

15.

6.

Civil Compensatory Contempt Collateral Source Rule

16.

7.

17.

Direct Damages

8.

Compensatory Damages

18.

Economic Loss Rule

9.

Consent Decree Consequential Damages

19.

Efficient Breach

10.

20.

Egg-shell Plaintiff Rule Ejectment

21.

11.

Consequential Damages

22.

Equitable Liens

A charge against property that makes the property stand as security for a debt owed; entitles the creditor, at a proper time, to have the property sold and the proceeds used for payment of the debt; because it is expressed in dollar amounts, it is a good choice for declining assets. Having sheriffs seize some of the defendant's personal property and then sell it to satisfy the judgment. Damages awarded in contract actions; the difference between what was promised and what was received; goal is to put you in the same position as if breaching party had performed. Type of direct damages that place the party in the position as if the breached contract had been performed. Gives the non-breaching party the benefit of the bargain. No Restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. The court may deny an injunction if it would be an unconstitutional restraint on this.

31.

Incidental Damages

Costs and expenses incurred by the victim of a breach in attempting to deal with it and in taking action to seek a substitute transaction or to curtail losses. The action of compensating for loss or damage sustained Requires the plaintiff to pay the defendant for damages that accrue during the period between the granting of the preliminary injunction and final judgment if the court determines at final judgment that injunctive relief is not warranted; Likely to discourage plaintiffs from seeking preliminary injunctions, especially in cases where the plaintiff's case appears to be weak or where the defendant's damages between the request for a preliminary injunction and final judgment are expected to be large. A court order to a defendant to do or not to do something in relation to the plaintiff. Sometimes this category is referred to as "equity" because the class of remedy was issued by courts of equity (as opposed to courts of law). A "legal" remedy, such as damages, is not as good a remedy for plaintiff as an injunction. An amount contractually stipulated as a reasonable estimation of actual damages to be recovered by one party if the other party breaches. Claims compensate the surviving family member for the emotional distress that results from the death or injury of a loved one. This measure puts the seller in the rightful position - had the sale gone thru, the seller would have realized a profit, and with the breach, the damages give the seller this "lost" profit, after paying incurred costs; not every seller qualifies, according to one test, a nonbreaching party claiming to be a this kind of seller must establish three factors: (1) that it possessed the capacity to make an additional sale, (2) that it would have been profitable for it to make an additional sale, and (3) that it probably would have made an additional sale absent the buyer's breach.

32.

Indemnification Injunction Bonds

23.

Execution

33.

24.

Expectancy Damages

25.

Expectant Damages

26.

FRCP 65(d)

34.

Injunctions

35.

27.

Freedom of Speech Guaranteed by the First Amendment Garnishment Grounds for Modifying an Injunction

Irreparable Injury Liquidated Damages

36.

28.

An independent action against a third party who owes money to the judgment debtor. (a) When changed factual conditions have made compliance with the decree substantially more onerous; (b) When a decree proves to be unworkable because of unforeseen obstacles; (c) When enforcement of the decree without modification would be detrimental to the public interest; (d) When the statutory or decisional law has changed to make legal what the decree was designed to prevent; (e) If the parties had based their agreement on a misunderstanding of the governing law Expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expenses incident to the delay or other breach.

37.

29.

Loss of Consortium Claims Lost Volume Seller

38.

30.

Incidental Damages

39.

Lowest Intermediate Balance Mandatory Injunction Market Damage Formula

In constructive trust law tracing, this rule states that the plaintiff can never trace more than that which originated from the lowest immediate balance in the bank account. An order of court compelling the performance of a specifies act. Represented by the formula: [amounts toward the purchase price paid to seller] + [market price at the place of tender - contract price] + [incidental and consequential damages] [expenses saved]. The buyer can recover the difference between the market price at the time when the buyer learned of the breach and the contract price, together with incidental and consequential damages less expenses saved. Plaintiffs must take reasonable steps to avoid further loss post-breach; this helps defendants minimize the amount of damages they must pay, and when it is misunderstood or misapplied by plaintiffs, it can lead to damage awards that leave plaintiffs in a position below the rightful position. When a defendant has engaged in certain injurious conduct in the past but have since ceased and stated that she won't engage in the conduct anymore. In cases such as trespass, where there is no actual damage, a plaintiff might sue to obtain this kind of damages--a trivial sum of damages (such as $1) awarded by a court in lieu of actual damages. Damages plaintiffs may claim for items with no functioning economic market, such as pain, suffering, and emotional distress. Expenses saved on account of the breach. In constructive trust law tracing, this lets the plaintiff engage in whatever fictions yield the best result for her. These cannot be specifically enforced because " to do so runs afoul with the Thirteenth Amendment's prohibition on involuntary servitude." A court calculates the expected loss each side would face if the court erred, by multiplying the likelihood of each party's success by the extent of loss the party would face if the court guessed wrong at the preliminary injunction stage. Interest on the judgment measured from time of judgment until the time the debtor pays.

52.

Prejudgment Interest Preliminary Injunction Considerations

Interest on the judgment measured from time of wrong until the time of judgment. The court is going to be most concerned about the plaintiff's likelihood of success on the merits (propensity, irreparable injury, other policy considerations), the risk of error, and the public interest. Some court order before final judgment that can aid the plaintiff. Order preventing future harm. An order of court barring a specific action. The defendant is likely to engage in the conduct that plaintiff seeks to enjoin. Protect the plaintiff's rightful position. Functions like a limitation on damages; holds certain acts as too remote or not a substantial factor in causing plaintiff's harm as to act as a rule that limits damages and one that does so on policy grounds. "Damages awarded, not to compensate the plaintiff for established loss, but to punish the defendant and to make an example of him." To preserve the relative positions of the parties until a trial on the merits can be held. """As much as deserved"" - the term used to denote the market value of services." """As much as they are worth"" - the term used to denote the market value of goods." A judicial rewriting of the parties' contract. Those costs and expenses incurred in reliance on the contract or promise and wasted once the contract or promise is breached. "Any right, privilege, or power that a party has because an obligor breached a duty owed to that party or to avoid the legal effect of a transaction on other equitable grounds." Gives the plaintiff the option of either taking the lower amount chosen by the judge or having a new trial on the issue of damages. Order preventing the future bad effects of past harm.

53.

40.

41.

54.

Preliminary Relief Preventative Injunction Prohibitive Injunction Propensity Prophylactic injunctions Proximate Cause

55.

42.

Market Damages

56.

57.

43.

Mitigation

58.

59.

44.

Mootness Problem

60.

Punitive Damages

45.

Nominal Damages

61.

Purpose of a Preliminary Injunction Quantum Meruit Quantum Valebant Reformation Reliance Damages

62.

46.

Noneconomic Damages Offsetting Benefits Perfect Hindsight Personal Service Contracts Posner's Hardship Balancing Formula

63.

47.

64. 65.

48.

49.

66.

Remedy

50.

67.

Remittitur

68.

51.

Postjudgment Interest

Reparative Injunction

69.

Replevin

Specific restitution for the return of plaintiff's personal property; requires defendant to return to the plaintiff the very thing that was lost and pay any additional damages for loss of use during the time that plaintiff was deprived of possession. Propensity & Irreparable Injury The cancellation of a contract. A remedy giving a plaintiff the right to cancel a contract, and it is often followed by a restitution whereby each side returns the consideration it has received under the contract. Money awarded to a wronged party from the party that committed the wrong measured by the gain to the party that committed the wrong, and not by the loss to the wronged party. Damages awarded to a party for the value of property that has been unjustly taken or unjustly retained. A court may deny an injunction if the claim for specific performance interferes with this right of a defendant to a trial. There is insufficient evidence that defendant will engage in the prohibited conduct to justify issuing an injunction. To give the plaintiff back the very thing that was taken, or prevent threatened harm to the plaintiff from occurring. An order by an appellate court suspending the implementation of a lower court order or judgment. The series of injunctions necessary to restructure government institutions (in civil rights litigation). "The substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor. Think GAIN FOR PAIN CORP" A remedy that prevents a defendant from being unjustly enriched when the plaintiff pays a sum to a third party to settle a liability or debt owed to that third party by the defendant. Money substitutes for the thing that has been lost or damaged.

83.

Survival Action

Claim decedent has at moment of tort and then passes to her heirs. It is the decedent's claim for lost wages, injury, etc. until her moment of death, then it is passed on to her estate. This claim does not cover future earnings of the decedent. Typically not appealabe, these orders may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts show by affidavit or by the verified complaint that immediate or irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Divides the world of contract damages into those that are "natural," for which the plaintiff may recover, and those that are "consequential," for which plaintiff may recover only if the damages are sufficiently "foreseeable." One who disobeys an injunctive order that is later reversed on appeal for error may be held in criminal contempt for the disobedience in spite of the reversal; the appropriate course of action suggested by the rule is a direct appeal of the order granting the injunction. An equitable defense in which the defendant claims that plaintiff's bad conduct should bar plaintiff from obtaining equitable relief such as an injunction. Denying an injunction because imposition of an equitable remedy must not itself work an inequity; the specific performance would result in this. Made by dependents of decedent for support/inheritance that would have occurred but for death of decedent. Calculate earnings less consumption expenses; residue goes to dependents. This action does cover future earnings of decedent by way of support.

70.

Requirements for Injunctions Rescission Rescission

84.

71. 72.

Temporary Restraining Orders

73.

Restitution

85.

74.

Restitutionary Damages Right to a Jury Trial Ripeness Problem Specific Relief

The "Hadley" Rule (Shaft!)

75.

86.

76.

The Collateral Bar Rule

77.

87.

Unclean Hands

78.

Stay

88.

79.

Structural Injunctions Subrogation

Undue Hardship to the Defendant Wrongful Death Statute Action

80.

89.

81.

Subrogation

82.

Substitutionary Relief