Remedies Essay #2 Examples
First Example: Essay 2 :( (i realized at the very end that I got the acronym wrong for SANP - oops
H v. SNAP: Stopping the Rally Harry (H) wants to stop future meetings of SNAP by use of injunctive relief. Three rallys have occured already and the next one is about a little less than a month away. Considering that H has more than just a few days, he most likely will be able to get a preliminary injunction before the next meeting. TRO: A TRO would be appropriate if the action was pending immediately and H wanted to stop them, however there is some question on the amount of time a TRO can last for - such as 10 days if it is ex parte, but not sure if the TRO is given with notice. FRCP 65(b) states that a TRO must include notice to the adverse side, with an opportunity to be present for an adversarial hearing, and can only last 10 days if it is ex parte - which only can happen if you can't find them to serve, invovles physical safety, or the def. will destroy evidence (none of which are appropriate here). Considering there is about 30 days before the next rally - H is in a better position to get a preliminary injunction instead of a TRO which hopefully would last enough time until the rally in August. Preliminary Injunction: H is seeking a preventative injunction to stop SNAP from having their rallies. For a preventative injunction there must be a showing of real or actual threat or harm - H can use the past rallys as an example of what goes on to constitute harm. Ripeness most likely will not be a question because the group is 1. Planning another ralley and 2. It is imminent - inside of a month's time. SNAP might argue the harm is not the meetings, but rather the dumping of the oill which has not shown to have an affect on H's land, therefore not ripe bc the harm to his land is not imminent. Most likely the court would not be swayed because of the seriousness of contamination to water sources. There are four main components balance in a courts determination of if a preliminary injunction (PI) should issue. 1). Substantial likelihood that H will succeed on the merits; 2.) Irreparable Harm (IH); 3) Balancing of hardships; and 4) Public Policy. As to 1 as long as H can show that pollution of the stream is harmful to him as the facts assume, he can show he is likely to succeed on the merits of the case. Next, IH assumes that there is no adequate legal remedy. Two examples of IH are harm to things unique or repeat offenders. Here, H's property and the apple trees on the proptery, not to mention the pollution of the water used to feed this property are unique. Property is often considered unique and the dumping by SNAP harms that. Next, SNAP continues the same rituals at their events, that of being loud/obnioxous - which could lend itself to a nuisance action and more importantly distructive of H's property. However, the problem H faces is that he only THINKS the apples will be harmed, he does not have any proof of that speculation. However, the court will most likely see the environmental pollution enough IH to satisfy this factor. H can point to past actions to indentify this harm and likelihood of repitition. Importantly, IH must be shown as immediate - that is will happen before a trial on the merits can occur. Here the next meeting is less than a month away and it is highly unlikely a
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trial on the merits will happen that quickly. Next, number 3 is the balancing of the hardships. Here SNAP will argue that barring their rallies is a bar on their first amendment rights to speak, and political speach as engaged in here is protected. H will argue that it is the things that SNAP does that make them a problem. H could argue that he does not like their speech, but that is truly a weak arugement. SNAP might aruge that pouring of the oil is part of their free speech right, but balanced against teh harm to the environment - speicfically the water used by H it will not be a winner. Finally, 4 the pubic policy disfavors prior restraints of free speech H might argue it is not a prior restraint bc you already know what they are going to say - but like the case with the woman and the sandwich board where the court said even though she is repeating the same thing it would still be a prior restraint on her free speech rights. However, there is a strong public policy against pollution - i.e. Environmental Protection Agency, so the pollution is not a good thing. In assessing these factors the court most likely will grant a preliminary injunction, but limited in scope to fix the harm asserted. Injunctions cannot be issued to be overly broad, rather they must match the harm challenged. If H can prove he is likely to succeed on the merits that the noise is a nuiscance the court might enjoin SNAP from been too loud or give certain hours in which the noise may take place. More likely, the court will enjoin SNAP from its ceremonial pouring of the oil into the river. Permanent Injunciton H will probably pursue a permanent injuncition from these meetings. The main difference her e is the showing of IH must be continued based on teh decision on the merits. THat without a permanent injunction this IH will reoccur and is not reparable by money damages. Looking at the effect of continued contanimation of a water source and pollution of land as a result, the court will most likely find this to be a continuing IH - this is an equitable remedy so the court has discretion in its interpretation. MOst likely, the court will just enjoin the spilling of the oil. This will leave H in his rightful position of not having pollution in his yard. The noise will be a question of nuisance and will need to be substantively determined as well. AS a result - the entire meeting cannot be stopped becuase of first amendmetn concerns, but certain actions w/in those meeting that are harmful can be enjoined. Part B: H v. SNAP: Damages H wants to recover for the damage that SNAP did to his orchard in their tort of something or other. Damages are used to put the pl. back in his rightful position. H's rightful position would be the 1000 bushels of apples his orchard produced prior to the intentionally dumping of the oil which reduced his crop to 500 bushels. H will argue that he should be compensated for his loss. The measure for the loss of farm crops is fair market value at the time of harvest. Here, the time of harvest is $50 per bushel. So there is a loss of 500 bushels times the FMV at time of harvest of 50 = $25,000 that SNAP would owe H to put him in his rightful position. H will argue that he should get the price he sold the apples for at $100 per bushel. But according to the soybean case - it was his choice to speculate and that H will receive the FMV at time of harvest. SNAP will first try to argue reasonable certainty - that how could it be their three days of dumping was
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solely responsible for the decline in apples - that is not reasonably certain there was not frost, etc. Provided H can show that conditions were the same and his previous years haul this will not be a way to limit the damages. Next, SNAP will try to limit the damages by requesting an offset. An offset is the cost saved or benefits derived by H bc of SNAP's wrongful act. SNAP will say H had to do less bc of a lessened haul so they should have the award reduced by teh amount of effort/costs saved by H. This might work, but will probably be pretty small if SNAP can prove it. This is an economic tort - so no pain and suffering. Kate (K) v. INgrid adn SNAP (I): Provided that I is liable for the death fo K's dog, what will K be compensated for the dog? The value of an animal can be established as done in the Hataley case. For a loss of a property (which is what a dog is regardless of how much you love it) the measure is replacement value at the time of the loss. Here, to replace the dog it would cost K $5000. Even though K might think it worth more, most likely the court will use this measure becasue is is reasonably certain. Subjective values do not enter into the valuation- such as the 9k she turned down. K may be able to recover emotional distress damages if it can be proven with reasonable certainty from the years of love and support, etc. - however this is a stretch - (unless you are in TN where they have a specific statute allowing such things). Bottom line: the measure of K's loss is the replacement value and maybe emotional distress. Greg (G) v. SANP Greg has a breah of K claim against SANP, which entitles him to expectation damages. Here G's expectation was 42K for the lease of a year. SANP will argue that they are not required to give him those damages becuase he was able to cover and therefore they deserve an offset in the amount of what he covered. The new K does not have a length of time associated - just 1500 a month. Whatever, the difference is bw the amount owed and the amount covered would be the expectation damages owed to G. SANP was late in two of its payments totally 6k. When payments are wrongfully withheld they must be paid in the amount owed which is 6k, plus interest until repayment. So G is owed 6k plus interest from SANP on the late payments.
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Second Example: Question 2 Part A Injunctive relief to stop SANP's future meetings Here at first blush it appears that a TRO may be avialble to stop the later rally set for August 10th. However courts are very reluctant to carry out a proceeding that is abbreviated and/or at times ex parte where there appears to be sufficient amount of time to conduct a nomral preliminary injunction hearing. Here since the last rally was on July 13 and the next one isn't scheduled for almost another month, I believe a court would more likely hold preliminary injunction proceedings. Here in the even they did use a TRO Harry woud likely have to make reaonble efforst to contact and give notice to SANP and further show that there was a major irreprable harm. Teh standard for a preliminary injunctionis that there has to be a showing by P that they will likley prevail on the mierts, that there is a possiblilty/probability of irreperable harm (one that is not adeqtualy compensated by damages- a remedy at law) , that the balance of the hardships tips in P's favors and that issuance of the injunction woudl be in the public interest (furthers public policy). Further b/c we're dealing with first amendment issues, arguably the court may have to make sure that teh injunction in narrowly drawn adn doesn't restrict mroe speach than is necessary to accopmlish the injuncions purpose (Schneck). here argualbly the irrperable harm is that the oil spilling into the irrigation system is harming Harry's trees (indeterminate adn difficutl to measure long term damages and also the hard to ascertain/quanitfy dmags of lound and obnoxious annoyances nuisances created by theses rallies, further with the dangerous activity of firign bullets into the air which may pose a risk of harm to proeprty and lives of Harry adn/or his family). Here Harry will likley be able to show that this is a legal nuisance and that the dumpin of the oil into the irragation pipes is a violation of his legal rights and therefore willikley succedd on the merits. Further the blance of the hardships here (SANP having to change their rallying behavior etc) is small in relation to teh potential harm that P could suffer with respect to his crops (his livelihood). Further taking such action against irresponsbile/destructive behavior woudl likley be in the public interest. Defenses of SANP Mootnes - here SANP coudl promise not to participate in this type of allegedly damaging behavior and thus the court may consider this poitn to be moot. However in order to establish this they woud lhave to show that there is no likelihood of recurrent violations/injuries. They would have to show that there is no cognizabble danger of recurrent violations. The court would likley examine the bona fideness of any expressed intent to comply with teh proposed injunction, they woudl have to show the effectiveness of their discontinuance, adn the court woudl have to examine the charcter and nature of the past violations. Here the court may, but likely woudl not take at face value a promise by one member fo SANP and would likely not make a finding of mootness. Sufficiency of money damages- Here they could argue that money damages are quantifiablel for the noise disturbance damgs for the 3 nights of rallies and further could argue that the damage done by the spilled oil is quantifiable in some ascertainable and certain way and therefore money damages are more appriopriate (i.e. there's no irrperable injury and there's an adequate remedy at
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law). First amendment prior restraints upon speeech- here they could say that issuance of this injunction would be a prior restratint on speech. HOwever if the court carefully and narrowly crafted the injunction in order to achieve its purpose while restriting no more speech than necessary, then the defense would likley fail. The court would likley take the methodical and cautious approach used in Scheck by issuing provisions such as time restraints, limitations on decipal levels for certain times of days, preclusion of activity that would pollute adjacent land in any substnatil and real way etc. this would alow the court to achieve its purpose, while restraining no more speech than neccessary.
Likely reslut of action for relief The court will likley issue a preliminary injuntion that is narrowly drawn so as to restrict no more speech than necessary in accord with Schneck (abortion protest case).
Part B assuming not entitled to injuntive relief. i. what compensatory damges will harry be entied to revoer agaisnt SANP Here it appears that Harry will be able to recover all economic damages that were caused by teh spiilling of the oil in addition to the pain and suffering or emotional distress caused by the noise at the 3 rallies 3 ralies and pain and suffeering/E.D. Here Harry coudl recover if he brings forthe speciific proof of loss regarding pain and suffering due to teh 3 nights of ralies and the noise associated with it. the shock of the oil in the river, the inability to sleep, the emotional unnerving nature of the 3 rallies etc. may prove fertile grounds for noneconomic damages. But harry will have to bring forth specific and convincing proof.
the damage done by the oild spillage to the apple crop. Here we have to restore harry to his R.P. and therefore we have to strive to give him what he would have had but for the illegal conduct of the D (spilling the oil) and do so as accurately as possible using specific prooof of loss. Here in the facts its shown that Harry's crop has shrunk by 50% this year as compared to the last 2 years and that he was only able to fetch 25k, half of what he sould have been able to get if he had had the same level of crop (1000 bushels) as the last preceeding years. Teh genearl rule for crops is the FMV of the crop at the time of harvest. Here the price woudl be teh 50bucks a bushel. IN light of the facts presented (assumign the 2 preceeding years in the facts are not unusually good harvest years etc.) and assuming D isn't able to bring opposing evicdence as to cause fo the decline in production (bad weather, other pollution, pests etc) it pappears that the Harry will be entitled to the drop in level of production (500 bushesl) multipilied by the FMV at the tiem of harvest (50bucks a bushel) which would come out to 25k.
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Defenses of SANP Here D's may bring a claim taht Harry didn't take appropriate action to cover (consulting a checmical waste cleanup expert or taking other such action) However, Harry can guard against such an attack by showing that such actions would not have been reasonable, weren't feasible etc. Here Harry may also try to claim that if he had the same number of apples he could have taken them all, stored them adnd sold them at an inflated profit as indicated in the facts. Assuming this isn't a common practice for Harry and/or the farming industry and that hasn't been factually established, its unlikley that the court will allow such speculative damages to be assesed and will not saddle the D with burden of providing the benefits as to a calcluated risk P took. Further the court may argue that P could have simply bought the additional 500 bushels (maybe via a loan if P was strapped for cash) and thus could have coverd for that investment profit himself.
ii. compensatory damges Kate can recover against Ingrid (assumigb ingrigd and/or SANP are liable for Jock's injuries) the general rule for animals from U.S. v. Hahely is the FMV and avaialbility of like animals in the immmediate vicinity (taking into consdieration any traiining that P will have to give to the animal for them to return to their R.P.). Hre although she was offered 9k for teh dog, the facts explicitly state that the FMV of the dog at the time was 5k. However, the facts also state that he is a fantastic hunting dog (implictly indicating some level of training and expertise). Therefore the court may award 5k for the fmv of the dog in question and another sum which approximates the value of said training and/or the time needed to be spent in giving such training to this dog). Here this amount COULD go as high as 4k, since that is what a person bargaining for teh dog was willing to pay above and beyond the dog's FMV. Further, if she want's Pain and suffiering she will have to bring forth individiualized specific proof of loss as was insisted upon in U.S. v. Hathely. Since she was so attached to this dog, this may prove to be a valid and substanil claim (since they were insepearble in wake of her husband's death etc.).
iii. what Compensatory damges Greg will be able to get form SANP for breach of k Expectations damages - these damages, put simply are the benefit of the bargain between the Party injured and the breaching party (what P woudl have recieved if the breaching party had performed instead of breaching the K). HEre there was a guarnateeed contract for 42k for 14 rallies to be held on P's property during the course of the year. P recieved, although be it late, 9 k for the intial 3 rallies but didnt' recieve the remaining 33k still due under the contract. This 33k would be consdiered the benefit of the bargain and expectation damages. HOwever the amount that was covered by P in leasing out the property to a new tenant must also be consdiered in assesing these damages (offsetting). Effect of cover - here b/c Greg found an alternative tenant to take teh place of the older tenant, there will likley not be a valid claim for lack of effective covery or violation to do so further.
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The amount of 1500 per month for however number of months remaining in the year long contract shoudl be used to counter or offset P's damages in this sistuation. so it'd be 33k (1500/mo multiplied by the number of months remaning in teh year long contract) woudl equal the expectation damages of P. Incidental damages- these are a form of speical damages sna dtherefure must be shown to be forseeable by the parites at teh tiem the contract was formed. Here where the costs are so incidiental/commonly associated with covering in the event of a breach (PUTTING OUT ADS FOR NEW TENANTS), a court would likley presume that it was forseeable at the time the contract was formed. However, the amount spent may be excessive and D could use this as an effective counter attack on the amount of incidental damages to be awarded. Consequential damages- here P may claim that D shoudl be liable for teh loos of his 50k biz and 75k home b/c of their breach. However this woudl require that such damages resulting from a breach were forseeable by both parites at the time they formed the contract. Here his claim taht teh failure to kep the cash payments coming in woudl forseeably (by both parites at the time of k formation)lead to the loss of P's business and home is very attenuated and would likely not be accepted by a court of law ( we covered a similar case in class where a court ruled this way). Here P may also be able to estalish a claim for interst on the 3 3k payments taht were made late in violation of the terms of the contract. He can show that he had an exepctancy in having the 3k on hand and that therefore he was damaged in beign deprived of the present value of having those 3k installments on hand. However, considerign these payments were to be made on 3 consecutive nights, this claim woudl be for a negligible amount and may not be worth bringing.
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Third Example: 10) Injunctive Relief harry would want to pursue a temporary preventve injunction (preliminary) aganst the holding of another rally onn the adjoining farm. For a preliminary injunction, H must show that his action is ripe, not moot, and the injunctive relief sought must fit the scope of the acts giving rise to the injunction. In this case, H's injunctive relief is not yet ripe. Remedial ripeness requires a showing that SANP's next rally is planned (clearly) and imminent (which it is not.) Imminence means a matter of a few days, not nearly a month. Thus, H's claim is not ripe until August 7th, 8th, 9th-- around there. At this poiont, he should bring an action for injunctive relief. At this point, his action is not moot, either, because it is clear that SANP intends to repeat the conduct on a specific date. THe scope of injunctive relief should not prohibit the demonstration (1st amendment issues), but rather should prohibit the loud music, the firing of guns, and the oil in the stream. More must stll be shown for an nijunction: H must shoow that SANP's acts will cause him irreparable harm, for which damages would be inadequate to compensate. Other forms of irreparable harm can be found where a defendant will repeat the acts, as in a case such as this, which would require H to pursue multiple causes of actions multiple times per year. Although damages could compensate H for the loss of his crops, it is the repetitive nature of the acts that will likely weigh in H's favor as to irreparable harm. Damages will probably NOT prevent SANP from holding their rallies, being loud, etc, wrongs for which damages would not compensate. Furthermore, H must show that the balance of the hardships is in his favor. This means that the hardship on SANP over the life of the injunction must not outweigh the hardhsip that H must endure by the nuisance, loss of sleep and crops. This will not be difficult to show, especially if the scope of the injunction is limited to forbidding specific acts (oiil in stream, music) at a certain locale (eg, on the border of the property). H must also show that he is likely to prevail on the merits at trial. In a case such as this, where a group is polluting another's land, there is an affirmative trespass in the form of a physical invasion of H's property. H will probably prevail at trial on this claim, and it will also be relatively easy to show that the firing of guns and loud music / chantng late into the night for three consecutve nights constitutes a nuisance. Thus, the court is likely to grant a preliminary injunction. (A TRO is unwise before the beginning of August, as a TRO only lasts a short period before bringing a preliminary njunction claim, and the standards for a TRO are more stringent.) H would then want to pursue a permanent injunction. The requirements are the same as above, except now H must show that his case possesses substantive merit, which means effectively that he has prevailed at trial. This is because a permanent injunction is the remedy for the wrong-- it constitutes final judgment and forbids the action for the full term of the injunction. H will have to show more definitely that a nuisance has occurred and will occur again. H must also show that the oil in the stream has damaged his crops. Some courts take a 'continuum' approach to grantng injunctions. By this, a court means that the higher the likelihood of success at trial, the less irreparable harm the plaintiff need show. Furthermore, a lower level of irreparable harm will require a showing of high likelhoood of succes on the merits and that the balance ofo the hardships tips SHARPLY in P's favor. In a continuum jurisdiction, the high likelhood of H's success at trial will mean the irreparable harm
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bar is lowered. SANP would defend against the injunction by saying that it violates their first amendment associational and free speech rights. However, SANP would still have to abide by the injunction because the collateral bar rule precludes defending against an injunction by violating it. If an injunction issues, SANP must abide by it and take the issue to federal court to have the injunction overturned. SANP might also defend that Compensatory Damages against SANP H can seek compensatory damages for the loss of his crop. Crops lost are measured from the time of harvest. If the crops are destroyed befoore harvest, the fair rental value of the land is to be used as the appropraite measure. Here, H harvested his apples. Thus, because his yield is 1/2 what it normally would have been, H can recover for profits lost on the 500 applies he was noto able to sell. This would be $25,000. H will attempt to obtain this amoount, but probably cannot, because he eventually sold the apples for the full value of a normal harvest (50,000). A defendant is only liable for those losses which a plaintiff could not reasonably have avoided. In this situation, SANP will argue that H experienced NO loss whatsoever, as his gross profit was exactly what it would have been had the oil never damaged the crop. Harry can counter that he wasted two months, and cite as precedent a case refusing to put the risk of playing the market on the defendant and value the crops AT THE TIME OF HARVEST, not after the plaintiff has stored them for any amount of time. Thus, H has rightfully made reasoonable attemptps to avoid certain pecuniary losses, but given the valuation procedures for crops, these avoided losses do not serve to reduce SANP's liability for the damage to the crops. SANP will likely have to give H $25K. Compensatory Damages against Ingrid / SANP for Jock This case is loosely analogous to US v. Hatahley, where trained burros were wrongfully sent to the glue factory. In that case, the court's analysis properly should have considered the fair market value of replacement animals, the cost of training such animals, and applicable pain and suffering losses because the burros were the plaintiff's 'friends.' Here, pain and suffering losses would compensatre K for her emotional anguish over losing Jock. In some cases, such as consumer property, the plaintiff will be awarded the subjective value of the articles lost rather than their fair market value. Although it is definitely probative of the 'worth' of Jock to Kate that she would noto sell him for 9K, this is likely not a factor that the court will consider. Rather, in reliance on Hatahley, a court would probably require SANP and ingrid to pay kate $5000, the value of a similar dog with similar training. If a court decided that a subjective approach was warranted based on Kate's closeness to Jock and characterized Jock as consumer property, then J's subjective value to K, not less than 9k, would be awarded to kate. SANP and Ingrid will defend that there is no causation between their acts and Jock's death. Although clearly the firing of a gun is but-for causation, K will have trouble proving that the firing of the gun proximately caused Jock's death, in that it was a reasonably foreseeable consequence of firing a gun in the air. An expert will probably be brought to trial to show that bullets, when fired in the air, seldom come down soon, nor do they often come down in the
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immediate vicinity of where they were fired; indeed, the bullet may be a mile away or more. This may serve to cut the causal connection between the negligent act and the injury suffered. Furthermore, K has the burden oof proving with reasonable certainty that the injury suffered is traceable to a wrong by SANP and Ingrid's and the extent oof damages (see above for damages). K will have difficult proving with reasonable certainty that SANP caused Jock's death. That ingrid caused Jock's death is a bit more clear. However, a gun-nut such as Ingrid is no doubt aware that bullets fired into the air come down far from where they were shot, and would never have expected the bullet to harm someone on the property. Still, Ingrid need not have intended to harm Jock to be found liable for negligently killing him. The reasonable certainty defense will probably fail. Compensatory Damages Greg v. SANP Greg may sue SANP for compensatory damages arising from SANP's breach of a land lease contract. The contract term was for 1 year at 3K per rally night, 14 of which were to take place. SANP appears not to have paid Greg even once, thus the payments they have not made for the three rallies that have already occurred are owed to Greg - 9000. When a party breaches a contract, consequential damages can be available for damages that flow from the breach, as long as such damages are within the contemplation oof the parties upon conotract FORMATION. Here, upon contract formation, SANP does not appear to have any clue that Greg will lose his home and business if they breach eventually. Thus, Greg probably cannot obtain consequential losses due to the breach - namely, the loss of his business and his home. However, if by some stroke of fortune the court allows consequentials in this case, they would amount to the total value of Greg's business, $50,000, and the difference between the 75K obtained by Greg at foreclosure and the FMV of his home at the time of foreclosure. Greg may seek the benefit of the bargain, which characterizes Greg's rightful position as his expectancy interest - ie, what greg would be entitled to receive had the contract been performed. This would mean that Greg was entitled to receive the full $42K promised him under the contract, less any necessary foreseeable costs he expected to incur in performance. Avoidable Losses: SANP will not be liable for any damages arising out of losses which Greg could have avoided. However, costs Greg expended while avoiding losses are to be borne by SANP. This means that SANP must reimburse Greg for the $1000 incidental costs to Greg of attempting to find otoher ways to rent his land, including advertising costs. Greg did in fact obtain rental of his land at $1500 / month, but SANP wouold still be liable for the extra $1500 per month that Greg has lost due to SANP's breach. This would mean that the total damages to Greg under the benefit of the bargain would be $9K for the first three rallies in July, then $1500 for the remaining 11 months of performance, equaling $16,500 + 9,000 = $25,500. SANP might attempt to defend that greg is barred by laches, waiver, or estoppel. The three defenses are similar. Laches will apply where an unreasonable amount of time has passed before assertion of P's rights (not here), estoppel will apply where SANP has relied to their detriment, and waiver will apply where Greg has affirmatively waived his right to sue (not here). Under estoppel, SANP will claim that they have relied upon the fact that Greg has pursued against them for the value of the first three nights' rally. They will have to show for equitable estoppel that G knew of their reliance upon his failure to bring suit for the first 3 nights. G probably was not aware of
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