Remedies – 3 major parts – Damages, Injunctions, Restitution I. Intro A. Categories of remedies 1. compensatory remedy 2. preventative remedies – like declaratory relief a. coercive remedy b. declaratory remedy 3. restitution remedy – defendant has wrongly gained something, take it from them and give it to the plaintiff 4. punitive remedy – to punish 5. ancillary remedies – attorney’s fees, costs B. Nature of remedies 1. Substitution v. specific 2. Legal v. Equitable II. Damages A. Rightful Position 1. Value Govt. wrongfully took horses and killed them. 1. Loss of animals themselves – FMV, the Navaho claims that they are unique animals (specially trained). The law says you need to consider like animals. Put on evidence of how much it costs to train them. 2. Loss of use of the animals – Animals were used to keep the herd of cattle. Court estimated how many cattle were lost as a result. Can’t estimate. Also look at the duty to mitigate. 3. Emotional Distress Restore the P to the point they would have been had the D not taken the animals.
U.S. v. 50 Acres Do you get FMV of land or cost of substitute? When ascertainable you get the FMV of the land. If the govt. only takes a portion of the land then you take the FMV before the taking, and subtract the FMV after the taking. 8/25/05 II. Damages A. Rightful position – we want to put the defendant back in the position he would be in if the wrongful act had not occurred. 1. Value 2. Reliance and Expectancy Notes after Fifty acres –
When we say value, we mean FMV. Sentimental value does not matter, one of kind things don’t matter, if we can find the FMV then that is it. Decatur County Defendant negligently sprays P’s crops and damages the crops. As a result there are 342 less bushels of beans than should have been. Typically he stores them and sells them out of season because the price tends to go up when he sells them out of season. The rule is that the damage for crops is calculated at the time of harvest. Be careful to look at offset as well. If farmer did not have to expend any cost to harvest then those costs that he saved should be offset. Note p. 35 With stocks, you could value the stock at the time of conversion itself (minority). Majority view is the highest value of stock between the time of conversion and some other date certain. The Federal court view and New York view is the highest value between time of loss and reasonable amount of time. No set time. Can also institute a replevin action. In stock fraud cases. Let’s say CEO of worldcom lies and cost of stock rises and you buy it. We can give you the purchase price minus the actual value of the stock. Or we can give you the purchase price minus the actual value at the date of the discovery of the fraud. Or if you sold the stock after it went down we can give you purchase price minus the price at the time you sold it. Trinity Church – Tort Case Church damaged. It is a national historic landmark and no one can buy or sell it so there is no FMV. When there is no fair market value we use replacement cost. In this case we don’t give them the whole replacement cost because it wasn’t fully damaged. So give them the cost of replacement minus depreciation. Overview on Value Damage measure based on value is common. FMV of the thing that is lost of destroyed; or Difference in value between what was delivered and what was paid; or Difference in value between before the damage and after the damage; or Difference in value between what was promised and what was delivered. Contract – We do FMV at the time of breach Tort – We do FMV at the date of wrongful act, with an exception for harvesting of crops. Expectation interest is like rightful position. Give the plaintiff the value of rightful performance. Put plaintiff in position he would have been had there been no breach. Reliance puts plaintiff in the position he would have been, had the contract never have been made. Usually a lesser recovery and usually a component of expectation damages.
Neri v. Retail Marine If there is someone that is a lost volume seller then they get the profit on the breach, even if they sell it to someone else. Because they would have sold 2 boats. Notes: When should we award expectancy? The normal measure is expectation damages. You can recover reliance as a piece of that but it usually comes up when you can’t prove your profits with enough certainty. Chatlos v. NCR Breach of warranty. Dissent says they should get the difference between contract price and price as delivered. Majority says they get the difference between value of what was warranted and value of what was delivered. 8/30/05 REVIEW: Damages in contract and tort Tort – compensatory damages Usually measured by diminution in value Contract – expectation damages Benefit of the bargain Sometimes use reliance or restitution In both cases the point is rightful position: to put the P where she would have been had the wrongful act not been committed. Federal rule is that expectation damages are not awarded in tort action (only get the harm). Majority of states allow for recovery of expectancy damages regardless if bought in tort or K theory.
I. II. A.
Intro Damages Rightful Position
1. 2. 3. B.
Value as basic measure Reliance & Expectancy Consequential Damages
Limitations
1. 2.
Party-specified Avoidable consequences
3. 4. C.
Scope of liability Other
When Money Can't Measure Value
1. 2. 3.
Personal Injuries and Death Tort Reform Dignitary and Constitutional Harms
D.
Time and the Value of Money
1. 2.
Taxes & Interest Present Value
Review: Damages in K and Tort
Tort: compensatory damages o Usually measure by diminution in value. FMV is usual rule, but keep in mind special purpose. K – expectation damages o Benefit of the bargain o Reliance and restitution (even in breaching party) In both cases, the point is rightful position: to put the P where she would have been had the wrongful act not been committed.
50 Acres: usual rule for compensation – FMV, not value to P, except if FMV is not available.
Trinity: GR is damages = diminution in market value except for special purpose property
Decatur: rule of crops is value at time of harvest. Note that for offsets can apply if needed to get to rightful position and not to over compensate. Also there is an obligation to mitigate/cover damages (avoidability).
Stocks: 3 approaches on page 35 and replevin.
Neri
3 interests: o Expectancy: $3253 – rightful position of P (where would they be had the P in this case not breached). Reliance: $674 + 2579 (profit) = total expectancy. They get the benfit of the baragin b/c expectation damages = profit plus consequential/incidental/reliance damages. o Restitution: $997 – unfair to let D be overcompensated, e/t P was the party that breached.
Chatlos compared to Bolles
Chatlos: expectation damages = difference b/n what they were promised and the actual value of what they got. K case o What about 2-714(2): D could say special circumstances apply warranting an award of a different amount. Bolles tort case o $6k purchase price which he thought would be worth $40k. According to Chatlos, he would be given $40k-0. 0 b/c what he was given was actually worth nothing. Court gives him $6k b/c in tort you are not given expectation damages, only given the harm this is a federal rule, but majority state rule allows for recovery of expectancy damages regardless if brought in a tort or K theory.
Consequential Damages:
Buck v. Morrow: K case so typically dealing with expectation damages. o General Damages (direct damages): Difference bw K price and Fair Rental Value of New Land (actual rental)
The value that P lost from the initial impact of D’s wrongdoing Include: K = difference b/n K price and market price (or K and sale, or K and cover) Tort = pain and suffering (b/c its uniformly Fx) o Hatahley = loss of the horses – also likely the emotional distress damages o Special (consequential) Damages (indirect damages): Other costs incurred as a result of ∆s breach Damages that occur as a consequence of P’s initial loss. Must be specifically pled in Federal Rules Can be monetized before trial. Include K = Fx issues Tort = medical expense and lost earnings o Hataley = loss of sheep and livestock caused by the loss of the horses Put Π back in rightful position before breach Ct allowed specials here because of the clause in the K and it would not be too difficult to value o Difference b/n consequential and incidental damages in the UCC: (61) Consequential: breach of K – any loss resulting from Fx consequence which cannot be covered. Recoverable if meet Fx requirement. UCC will call $674 from Neri incidental and will always be recoverable. Fx is irrelevant, only need to show injury. Incidentals are subset of consequential b/c always recoverable since Fx is assumed. Meinrath v. Singer: breach of K case o K says too remote and too speculative really just applied the main rule though. o GR: consequential damages given when loss is Fx. o Special rule for recovery of money Exception to GR: failure to pay money will only result in interest, not consequential damages. Hard fast rule. but is P really made whole by giving P money plus interest? Exception to Exception: bad faith insurance suits where company fails to pay claim ($) that they should pay…looks like a tort and can justify consequential damage recovery. Texaco v. Pennzoil o Action in tort or K – does it matter? Tort claim – tortuous interference with K. Tort: consequential damages (proximate causation) K: consequential only if Fx to the parties at the time of K’ing. o How calculate damages? Replacement cost model – difference b/n K price and replacement cost.
Note Hataley: like here, can you get more precision on evidence. Cases where get exact precision, then court goes that direction. But here, court knows there are huge damages, so this is as certain as possible.
9/1/05 Today we are going to talk about Limitations
II. B.
Damages Limitations
1. 2. 3. 4.
Party-specified Avoidable consequences Scope of liability Other
Review: Difference between expectancy v. reliance. Difference between general/direct and special/consequential damages Incidental damages are a sub-category of consequential damages that are uniformly foreseeable and you can always get them PARTY SPECIFIED LIMITATIONS ON REMEDY Party wants consequential damages, wants lost profits for the time that the machine was broken. Machine is broken so can’t make the metal to sell it. These are foreseeable. The contract says no consequential damages so it is easy, they don’t get them. The contract says all they get is repair or replace the machine every time it breaks. The court says that there needs to be an adequate remedy. PARTY SPECIFIED DAMAGES (Stipulated Damages) If court approves then called liquidated damages, if court does not approve then called a penalty and no go. How does a court determine if the stipulated damages are good or not? We use stipulated damages when the damages will be difficult to prove and it will be costly to litigate the damages. For it to be good it has to be reasonable in light of anticipated or actual loss. Look it at either place, at time of contract and/or after breach. Only has to be reasonable at either one of the points.
If there is no damage at all then the liquated damages clause is void. And if it becomes really easy to calculate actual damages after breach, then the liquidated damages provision may not hold up. What if the liquidated damages provision does not provide enough of a remedy? Just ask the same questions. But courts are more likely to strike down a liquidated damages clause as a penalty then they are apt to allow recovery of more then the liquidated damages amount because it is too low. AVOIDABLE CONSEQUENCES If there is a breach of contract then you have a duty to mitigate. You have to take reasonable alternative steps. You don’t have to do the best thing, but you have to do the reasonable thing. The companion to this is offsetting benefits. If he could not have had both benefits then must offset them. Like this, if a college professor is wrongfully fired then he has a duty to mitigate, that means if there is a comparable job that comes available he must take it. If there is none then he does not need to take any job. If he goes to work at the gas station at the same time he would have been teaching then you offset the salary he got from the gas station. If works at the gas station at night then probably don’t offset. Collateral Source Rule – You usually can collect from your insurance and the defendant. Scope of Liability – Proximate Cause, also no duty concept in tort. The Economic Harm Rule – Dealing with a plaintiff suing for negligence, if that person only suffers economic harm (no physical damage) then no recovery at all. If tort then scope of liability usually cut of with proximate cause, if contract then scope of liability cut off with foreseeable damage rule. Damage must be foreseeable at time of contracting (Hadley v. Baxendale). Certainty Plaintiff has to prove with reasonable certainty that the defendant proximately caused the harm and prove the amount of damages with reasonable certainty. 9/6/05 Tort Reform, Personal Injury and Death – What can money buy? Lost earnings, medical expenses, property lost, funeral expenses – Economic Losses What about loss of earning capacity. Today we are going to be dealing with non-economic losses. Loss of reputation, loss of consortium, loss of companionship, embarrassment, pain and suffering How do we put a number on pain or suffering? No golden rule, no market force argument The vast majority of states allow lump sum arguments, slight majority allow per diem arguments.
Remedies Horn Book: Two kinds of statutes: 1. Survival Statutes – Had I survived I could have sued you for these things A. You can bring a suit in place of the decedent, on their behalf but there must be a survival statute B. Economic losses include: Medical expenses, funeral and burial expenses, lost wages C. Non-Economic losses include: Conscious pain and suffering by decedent prior to death 2. Wrongful Death Statutes – Compensate family members A. Economic Losses: Loss of expected support and inheritance, companionship, funeral and burial expenses B. Non-Economic Losses: loss of society, companionship, consortium, small minority allow for recovery for emotional distress or grief Look at page 170 a-h 9/8/05 Levka v. City of Chicago Woman is strip searched. Some jurisdictions don’t allow any numbers to the jury, they jury comes up with their own decision out of the air and then the judge on appeal gets to see other verdicts and bring it in line. Violation of Due Process. Can only recover from the wrongful deprivation of life, liberty or happiness. If due process rights were violated have to look to see if the result would be the same. If the result would be the same (he would be suspended anyway) then he can only recover from the wrongful deprivation of the hearing. Can not recover from the actual suspension, or emotional distress from the actual suspension. Does get nominal damages $1 because of the substantive violation. You can get general damages like humiliation and you can get special damages like lost earnings but you have to prove all of it. You can not get emotional distress damages for breach of K. Try to cast as tort. In tort plaintiff can get emotional distress if you have physical harm also. Otherwise can only get emotional distress if it was intentionally inflicted. ½ states allow recovery for bystanders who see their loved ones get injured. ½ states allow recovery if in zone of danger. 9/13/05 COURSE OUTLINE
II. Damages C. When Money Can’t Measure Value Personal Injuries and Death Tort Reform Dignitary and Constitutional Harms D. Time and the Value of Money Taxes and Interest Present Value Taxes 1. Personal injury damages and wrongful death are not taxable under federal law and state law. This is limited to physical injury torts, not contract damages. What if salary would be $50,000 but only take home $40,000. Gross earnings approach, majority, is to not reduce the damages because it is already reduced by contingency fees, etc. Minority rule and federal rule is the net earnings approach, and future income is determined on a net basis (after tax). Interest Prejudgment and post-judgment. City of Milwaukee v. National Gypsum This case is about prejudgment interest. Time after injury but before judgment is the prejudgment period. As a general rule you can collect for prejudgment interest. We want to restore the plaintiff to their rightful position. Common law rule was that prejudgment interest only allowed when the damages are liquid or ascertainable. The modern trend and majority is that you always get it. Post-judgment interest is paid out in simple interest always. PRESENT VALUE Interest rate Real interest rate Inflation Cost of living Increase Productivity Increases To figure out the discount rate you take the investment returns and subtract the annual wage increases. Then take that discount rate and go to the tables in the back. For each period take the salary and multiply it by the table number for that period. 9/15/05 Injunctive Relief A. Preventative B. Reparative
Review of Time and the value of money No federal or state tax on awards of physical injury torts o Not true of economic torts or contract damages Award for lost future earnings: o Majority = Gross earnings o Minority (Federal) = Net earnings Pre-judgment interest is now generally allowed b/c gets P to rightful position (Miliwauke case) Post-J interest: recoverable on money damages judgments - simple interest. Keys to PV: Discount rate = ROI proceeds - annual wage increase o Investment proceeds = expected interest earned o Annual wage increase accounts for inflation Then take the discount rate and of to the OV table and use the appropriate number of periods. Multiply the starting salary by the # in each period and then cumulate the numbers for a final result. Note: If there is a negative discount rate, you must divide the starting salary by the number in each period on the table. Arguments Key is to get a bigger award for your client More periods worked (later retirement age) No discounting of first period Higher annual wage increases (and/or higher inflation and more productivity gains Lower interest earned Will want to use a safer investment
Other issues (total offset, periodic payments, etc)
General rule, you can not get equitable relief if legal relief is available. You must show irreparable injury or must show that there is no adequate remedy at law. Basically, if damages will suffice then you can’t get equitable relief. 3 uses of injunction: 1) Preventive 2) Repairative 3) Structural What is an injunction? An injunction is a court order. It operates specifically on a defendant and it directs them to do or not to do something. If they violate that court order there are penalties. The penalties are called contempt (1) Criminal, (2) Compensatory Civil, and (3) Coercive Civil.
An injunction will only issue against real threats of injury or wrong (“ripeness”) How can we tell which circumstances are appropriate? Show propensity to do the types of things in the past. Two kinds of ripeness. 1. Constitutional Ripeness – Court needs constitutional authority to decide on the case 2. Remedial Ripeness – That it is planned and imminent How broad should the injunction be? (Scope) The scope of the past violation determines the scope of the injunction. No injunctions to “obey the law” – The injunction must be tailored to the specific defendant and the specific actions. Must show it is the propensity of the entire company to do this thing, not just the propensity of the Auburndale manager. Can Goodyear tire get themselves out of the injunction by firing the manager? May be able to show that it is moot. Only if you make it absolutely clear that the alleged wrongful behavior is not going to occur. Constitutional v. Remedial mootness. You have burden of proving propensity at the beginning of the case. The Defendant has the burden of showing mootness. Can an injunction issue to prevent harm that has not yet started? Prophylactic injunctions How certain must we be that the harm will occur? If this injunction does not issue, what (if any) assurance does D have that P won’t bring this action again later No injunction because the consequences of the lawful behavior (half-way house) are uncertain. 9/20/05 Next reading assignment: 289-94, 307-21, 326-28, 363-74 Reparative injunctions: They tell you to specifically do something. Last week we talked about Nicholson v. Conn. Half Way House Can an injunction issue to prevent harm that has not yet started? o How certain must we be that the harm will occur? If this injunction does not issue, what (if any) assurance does D have that P won’t bring this action again later. The court basically said that the loss in home value does not amount to a nuisance. What about the potential harm from crime? The court says not yet ripe. The halfway house is not yet built so we don’t know if crime will go up from it.
Coercive Relief at Law A court may act at law (not in equity) to achieve some of the same results as an injunction o Mandamus – Ordering a public official to perform a ministerial duty. The duty has to be clear and non-discretionary o Prohibition – Order to an inferior court that says don’t exceed your authority o Habeas Corpus – Bring the prisoner to court and tell us why they are being held Why doesn’t Laycock like the phrase “reparative injunctions?” Because it is more about preventing future harm, does not really repair past harm. 9/22/05 Bell v. Southwell – A court has power to repair damage done though its injunctive power (mandatory, reparative). Even in election cases What is the scope of injunctions? Rightful position No less than rightful position No more than rightful position School bussing cases. De Jure – By law, the state mandates discrimination by law. This is unconstitutional. De Facto – By fact, just the way it happens, not by state mandate. Majority white school, or majority black school. This is constitutional. Structural Injunctions – Look back at the wrong in the past, and saying this should not happen again in the future so I will set up a structure that will not allow it to happen again. Rules in prison, bussing cases, etc. U.S. v. Virginia – If excluding women is the harm, then including women is the only remedy. Renquist says the violation is not the exclusion of women but a lack of comparable institution for women. If you can get the rightful position dead on then you should try and do so. 9/27/05 Structural Injunctions School busing cases Prison cases o Hutto v. Finney o Lewis v. Casey U.S. v. Virginia o Rightful position used to give more relief than dissent wants Injunction Components (for a preliminary injunction) Substantive Merit (in this class we usually assume substantive merit)
Irreparable Injury Balancing of hardships/burdens Policy concerns
Usual Rule Injunctive relief is only available if damages aren’t sufficient (meaning there is irreparable injury) o That is, injunctions are “exceptions” Pardee v. Camden Lumber Test as specific performance unless damages will be an equally good substitute o Is that the test? Inadequate remedy at law = irreparable injury Specific performance is an injunction. A remedy at law is inadequate if it is not as complete, full, and practical. The old rule was that with trees I can come on you land and cut them down and then sue me and I will give you money. Pardee changes that. They are my trees on my land, I shouldn’t have to wait for you to cut them down, I should be able to stop you in advance. But the item must be unique, how are the trees unique? They change the scenery on my land, they change my outlook on life, etc. Brook v. Cullimore There is a legal remedy called replevin. But, decisions at law are not enforced by contempt. You need an injunction for that. No need to talk about irreparable injury with replevin because it is a legal remedy, only look at it in equitable actions. Adequate remedy at law Continental Airlines No financial damage shown, so what’s the harm? Control? Another way is to say that damages are too hard to measure, so if damages are very hard to measure, that leans in favor of an injunction. If liquidated damages clause caps your damages and your cover would lead to much greater damages, you can argue that specific performance is proper because an action at law would provide you with an inadequate remedy. Van Wagner When it comes to real property, specific performance is the norm. In this billboard lease case the court says no specific performance. The new owners of the building want to tear the building down. To force the new owner to keep the building up would be an undue burden on the defendant. That is taken into account. 9/29/05 III. Injunctive Relief D. Injunctive Elements
Harm is irreparable if absent equitable relief, upon final resolution the parties can not be placed in their rightful position. Van Wagner is a bridge case between irreparable injury to P, and undue burden to D. Ariola v. Nigro Nigro builds improvements on Ariola’s land, just 2 inches over the line. The Ariola’s sue for injunction telling them to move the building off their land. That is a huge burden on the Nigro’s. The court found the Nigro’s wrongdoing to be intentional. Intentional wrongdoing overrides burden concerns. Intentional breach of contracts is not considered an intentional wrongdoing. In those cases still balance the burden with the equities. LACHES: Not just SOL, time running, but that there is an unRx delay and that delay has harmed the D. Boomer case: Concrete plant creating concreting particles that are damaging neighbors houses. They knew it was doing that but continued anyway. Court says damages are the right remedy there. Not sure why, maybe saying there has to be a concrete plant somewhere. Will a court order a business to stay open? Generally not. Balance the burdens. If the court does not grant the injunction there is a burden on the surrounding stores that get less foot traffic. If the court grants the injunction, there is a large burden on the Safeway, also a burden on the court of managing the injunction. Note 5 on 419. 10/4/05 ABC v. Wolf Indentured Servitude How can courts enforce employment contracts? Two clauses at issue: (1) negotiation in good faith; (2) right of first refusal. Most contracts in which the breaching party promised to perform personal services are not enforced with specific performance. (1) Because the services are not unique in most employment contracts, I can just get another plumber. (2) Where the services are unique you also don’t get specific performance because of 13 th amendment constitutional concerns, and because of practical concerns (no longer like employer), and because it is tough to enforce. Instead they limit it to a negative injunction (or a covenant not to compete) that must be narrow and is limited to the contract period. LA Coliseum v. NFL
LA Coliseum wants an injunction that says the NFL can’t enforce a rule that won’t allow the Raiders to move. They say if the Raiders aren’t allowed to move we will suffer damages that are hard to prove. Lost ticket sales, but how much? Posner makes an injunction equation. If the probability of harm to the plaintiff if the injunction is denied is greater than the probably of harm to the defendant if the injunction is granted, then you should grant the PI. 10/6/05 The ultimate thing the injunction is trying to achieve is the last uncontested status quo. Siegel v. LePore (2000 presidential election) Injunction bonds – Money to compensate the D in case the preliminary injunction was wrongly issued P moved for a TRO and gave a $5000 bond. The TRO is supposed to cover 1 week because after 1 week a PI will be issued or not. Does the court have to allow collection of the bond upon reversal of the PI? General rule is that recovery of the bond is mandatory and not discretionary, but only up to the amount of damages you can actually prove. Purpose of bond is to compensate them. Do you have to post a bond at all? The general rule is Federal Rule 65(c) says that it is mandatory that you issue a bond in such sum as the court deems proper, but only if the defendant asks for it. Some courts read this as discretionary because it is whatever sum the court deems proper. If the P is poor the amount may be very low or 0. In majority of states recovery is limited to the amount of the bond. A TRO can be granted Ex Parte only if immediate harm will occur before a hearing can take place, and you certified the efforts that you made to notify them or why you can’t; and it can not last longer than 10 days. Once party hears of TRO, then they have priority first on docket and get full-blown hearing with 2 days. TRO’s are not appealable. 10/11/05 Can not have a preliminary injunction without the other party. You can have an ex-parte TRO. An ex-parte TRO is not effective till you give notice to the other party. Sampson v. Murray Murray does not want to get fired so she asks for a TRO. Murray goes to courthouse and company sends attorney. Court wants to hear from Colonel Sanders but he is busy. Court grants a TRO. For a TRO without notice (ex-parte) the TRO can last 10 days. We don’t know how long a TRO with notice should last. Why don’t we just call this TRO a preliminary injunction.
Murray does not want it to be a prelim injunction because TRO is not appealable. Also the hearings are different. If a TRO lasts too long it converts to a PI. Granny Goose case says that if TRO lasts too long it expires. Stays – Please stay enforcement of the injunction, until I get an appeal. Must apply to the lower court first, if they deny the stay pending appeal then you can appeal that decision. End of Injunction section DECLARATORY JUDGMENTS Similar to preventive injunctions These are issued to prevent future harm, when things are uncertain Typically used for: Cons. Violations, patent infringement, insurance coverage. You think a taxing scheme is unconstitutional, what are your choices? 1. Apply for declaratory relief, 2. Just not pay the taxes (punishment is back taxes), 3. Get an injunction enjoining the govt. from collecting the tax. To get an injunction you need to show irreparable injury, etc. We also need ripeness, meaning the harm must be imminent. What do we need to show for a declaratory judgment? 1. Disagreement/Controversy (lower level of ripeness than for a prelim. Injunction Once you get the declaratory judgment, then you can get a PI. The DJ Act says that you don’t need to jump through the irreparable injury hoop if you have a DJ. In patent infringement litigation, if the validity of the patent is questioned as a counter-claim, then there is a case or controversy. 10/13/05 PI says D can’t go on land. D goes to district court and asks for stay of injunction until appeal. District court will probably not grant that because they just issued the injunction. Then you go to the court of appeals and ask them to issue a stay pending injunction. If they grant that then you can go on the land. Why would a district court ever grant a stay after issuing the injunction? It thinks the appellate precedent would mandate an injunction but you disagree.
RESTITUTION (Unjust Enrichment) Both a substantive theory and a remedial theory (we’ll mostly focus on the latter) It’s attractive in 4 kinds of cases When there is no other cause of action
When D’s gain exceeds P’s losses When P wants to reverse the transaction rather than let it stand and measure either his loss or D’s gain When D is insolvent and P can get a preference by seeking restitution of specific property that used to belong to P
10/18/05 Olwell v. Nye The egg washing machine. How do we measure damages? Fair rental value of machine? Gain by D of using the machine? Something else Quasi-Contract Taking away of consequential gains is called disgorgement, that is reserved for intentional wrongdoers. RESTITUTION: Accounting and Constructive Trust Black and White Whisky Co. makes good whisky. Beer company steals the B & W label and sells cheap beer. In this case we disgorge the profits. But we don’t disgorge all profits ever made, the infringer can prove that it would have made a certain amount of profits with a generic beer can, and can keep that. Constructive trust – Loser collects the money on behalf of the winner, and then turns it over to the winner. Accounting for profits ends in a money judgment, constructive trust ends in a preference in bankruptcy. Constructive trusts and accounting for profits, tend to always include consequential gains, while quasi-contract doesn’t. Comments – 2 situations where restitution is not available. (1) Money that is not spent on safety. Could make a cheap seat belt but you save money by not putting it on and drastic things happen on the back end. You can get the damages for the accident, but can not get all the money the company saved by not putting on the seatbelt. (2) Restitution is usually not available for breech of contract. But exception to that is with covenants not to compete, agreements to keep things confidential, and sale of land. 10/20/05 RESTITUTION A. B. C. Rescission and Restitution D. Constructive Trusts
Usually you can choose to keep the contract and get the contract damages, or you can rescind the contract and get restitution. When do we force the D to give the P more than he lost? Disgorgement Olwell (Quasi-Contract) Maier (Accounting for profits) Snepp (Constructive Trust) You want to have restitution when the defendant has had consequential gains. When is restitution not available? It is not available in products liability. It is also not available to disgorge profits from a breach of contract, except when there is an agreement to keep info confidential, when there is a covenant not to compete, or if there is a sale of land contract. Measuring profits in disgorgement: Sheldon v. MGM – Infringement occurs in the production of a movie. In determining damages we need to apportion. First go to net profits instead of gross profits. Then look to the factors of production, how much of the profit was because of the infringed part? How do you get from gross down to net? Plaintiff has the burden of showing gross profits. Then we are going to shift the burden to the defendant, he must produce records that will get us down to a net number, and they have to help the court apportion it out. Hamil America v. GFI Should overhead (fixed costs) be excluded from the disgorgement amount? Courts are divided on the issue of overhead. 9 th circuit says overhead is deductible except when there is intentional wrongdoing. When do you force disgorgement at all? When there is conscious wrongdoing, the more conscious the wrongdoing, the more favorable it will be towards the plaintiff. Restitution and Contract Dude wanted life insurance, he lied and said he was a non-smoker. He dies. If he was a smoker, he would have had to pay higher premiums. Estate wants to revise the contract and say we’ll just pay you what the premiums should have been and you give us the benefit. The insurance company wants to rescind the entire contract, but then they have to give back the premiums + interest. In this case the insurance company gets to choose. Either rescind the whole thing or none of it, can rescind half of it. Timing is also a factor. If you bring action for rescission closer to the time of finding the wrongdoing, there more likely to get rescission. We don’t know if rescission is equitable or legal. To get rescission you must have a contract with the wrongdoer.
10/25/05 How do we measure the profits: Two levels 1. How to get to net profit from gross profit Sheldon v. MGM Apportionment/Factors of production 2. How much (if any) overhead should be excluded from the profit Hamil America v. GFI Two steps: (1) Find a sufficient nexus for a category (2) Fairly allocate the overhead Rescission Mutual Benefit Life Ins Co. v. JMR 5 categories when rescission will be available 1. Fraud 2. Substantial breach of contract 3. Mutual mistake of fact 4. Unilateral mistake that was not relied on 5. Duress Hicks v. Clayton Hicks doesn’t want a money judgment because Clayton is insolvent and in bankruptcy. Clayton swindled Hicks’ house from him by trading him some worthless stock. Clayton says it was fraud so the contract should be rescinded and they should get the house back and give back the worthless stock. The party that is defrauded can either rescind the contract or keep the contract and sue for breach. It is an election on the part of the party defrauded. When we create a constructive trust and put the house in it we are basically saying that the Claytons are holding the house in trust for the Hicks. The Hicks are the owners and the bankruptcy estate can’t touch it. In re N. American Coin Potential purchasers of precious metals want their money back. They were the last people to pay for goods. Their money was put into a trust by the company. The company never used the money to buy them the goods. The purchasers say this is fraud, because they knew they may go bankrupt when they took the money. Two elements of constructive trust: (1) Identifiable property and (2) wrongdoing. If Claytons swindled the house and then sold it and used the money to buy a yacht, then you can directly trace it and put the yacht in a constructive trust. But if the house is sold and he buys a little speedboat and spends the rest on a trip around the world. The money spent around the world can not go in a constructive trust because it is not identifiable anymore. The speedboat is identifiable though. A rule is that bonafide purchasers trump beneficiaries of a constructive trust.
What about co-mingled funds. He took the money and put it in his bank account, then he used that bank account to buy stuff. When did he start spending my money? In re Erie Trust Money was put into Erie Trust Co. Typically the trust is supposed to be on its own and paid out per the instructions of the trust. Erie Trust co-mingles the funds with other fund accounts and then they go bust. How can the plaintiff’s trace the money so they can get it back? Use the Lowest Intermediate Balance rule (LIB). Assume the D is spending his own money first, then once that is all gone, then the D is spending the P’s money. As low as that goes is the LIB. If the money gets replenished then all the P can trace is the LIB. If the D is solvent then he is considered to be spending his own money first, unless something good comes from it. Then the P can say it was an investment on his behalf and the P gets the benefits. If the D is insolvent then P can only get up to the amount that was stolen from him, can not get other benefits at the expense of other creditors. Rogers case Husband promised to keep present life insurance policy in divorce proceeding. He does not do that he cancels the policy and gets a new one years later and names new wife as beneficiary. Can the first wife trace the new policy to the old policy? The problem is that there is a 4 year gap. The court gives the money to the first wife and says you can trace it. General creditors are not bonafide purchasers. 11/1/05 719-741 in book 70-105 in supplement 2 elements of constructive trust 1. Identifiable property 2. Wrongdoing Look at preference – Jumping in front of creditors at bankruptcy proceedings. Look at commingled funds. Generally BFP trumps plaintiff. Tracing rules (mostly fictions) D spends own $$ first D invests P’s $$ first Lowest intermediate balance (LIB) rule Deposits are treated factually, not fictionally P can use tracing rules to her benefit Tracing Problems p. 682
6-1 1. When he sells the Microsoft there is no co-mingling of funds. At this point she can sue for constructive trust and get $6,000 cash. 2. Next when he takes the cash and buys stock this is still direct tracing, she gets the apple stock. 3. If she claims constructive trust here then she still gets only the apple stock. Typically you can choose either damages or constructive trust, because he is bankrupt damage award is not worth much. 6-2 1. Commingling of funds here. Make three columns Total / Scum / Mom. Here total is 13K, Scum still owns 10K so she can get constructive trust on 3K. 2. Spends his money first, then spends mom’s, so she can get CT on 1K. 3. Here use the lowest intermediate balance rule and treat deposits factually, so she still gets a CT on 1K, he has 4K. 4. Now total is 10K, the investment is the mom’s money so she has 6K and he has 4K. 5. This 8K, 6K of it is the moms so she has 0 in cash and 750 shares of stock (3/4 of total). 6. The money is gone but she owns ¾ of the stock so that is like $9,000. But we cap her at $8250 because he is insolvent. This is because she only lost $8250 ($3K + $5K + $250) 6-3 Total 10K 16K Scum 10K 10K Mom 0K 6K
Typically if he buys Apple it is an investment, so let’s give it all to mom. 10K 10K 0K (all apple stock) 2K 2K 0K (all apple stock, worth 3K) Now Mom can use these rules to her benefit so we can run it through a different scenario. 16K 10K 6K Now lets say all the stock is scum’s, take the money from his account 10K 4K (all apple) 6K 2K 0K 2K Version 3 16K 10K 6K Now take 4K of moms giving her 2/3 apple stock 10K 8K (1/3 apple) 2K (2/3 apple) 2K 0K (1/3 apple) 2K (2/3 apple) Version 3 is the best scenario for mom. In total she lost $6,250 but at least got 4K of it back.
Robinson v. Robinson Case: You can’t force something on to someone and make them your debtor. In this case the parents had notice that the in-laws were building on their land, so they should not benefit. The parent’s property is now increased in value and they knew about it. This would be unjust enrichment. In this case the in-laws get an equitable lien on half the value of the building. An equitable lien does not declare her to be an owner of the property, it makes her a lien holder. A constructive trust would make her the owner, so we don’t do that. With that lien she has a choice, but here they gave the parents the choice, they can either buy her out of the amount owed, or sell the land and house and give the money owed out of that. The equitable lien functions as a constructive trust in that it attaches to a specific property and traces that property. If the value goes down then the value of the lien can go down. Mistaken improvers. Compare equitable liens with constructive trusts. If something goes up in value, you are going to declare a constructive trust. If something goes down in value, then you want an equitable lien and a money judgment for the deficiency. American Nat’l Bank v. Weyerhauser Subrogation = substation (of one party’s rights/claims for another’s) American Bank is a trustee. Money of the beneficiary is lost and they want to bring an action. Question is whether they can bring an action, they must be a party in interest. Here there is a subrogor/subrogee relationship. The Bank paid them the money that was lost so that they still have a good relationship but the money that was really lost was not the Bank’s money. Can the Bank pay them and bring their lawsuit. This happens a lot with insurance. Insurance pays the claimholder and then sues the other side. By receiving the money the claimholder then subrogates his claims to the insurance company. If there is joint/several liability, then indemnity or contribution apply If there is not J/S liability, then subrogation applies. 11/3/05 Review Constructive Trusts Tracing – direct or commingled Fictions BFPs – Can not trace to them, they will cut you off – For real property you can trace to it unless the person is bankrupt, then the trustee takes the place of a BFP. Relationship to equitable liens – If you can’t get the full amount with a constructive trust, you can get the full amount with an equitable lien and money judgment.
Subrogation – Easiest case is that insurance company is subrogated to the rights of the policyholder. American Nat’l Bank Compare contribution/indemnity If there is joint/several liability, then indemnity or contribution apply If there is not J/S liability, then subrogation applies. To get subrogation – Must be full application, can not be volunteer, rights must be full and coextensive. PUNITIVE DAMAGES Why compensate P more than she lost in compensatory damages? These get stacked on top of compensatory damages. You have to assume that he has already been compensated. The legal reason for punitive damages is to deter or punish. Why give it? Conscious disregard for probability of injury. D has been guilty of oppression, fraud, or malice, express, or implied. The possibility of additional punitive damage awards is considered when determining the award amount. We need to see how many people are likely to sue and win, and then divide the total amount that will deter the conduct by the number of people that are likely to win a suit. Grimshaw Factors for amount of Punitive Damages: 1. Reprehensibility 2. Wealth of the D 3. The amount of compensatory damages (ratio) 4. The amount needed to deter These are common law factors, it does vary by state law. Earlier Supreme Court said if a state has a mechanism for reviewing Punitive Damage award then we will let them handle it. Later, the Supreme Court said they can look at it under due process clause, but it is still a state law matter. Then we get BMW v. Gore. Must look at 3 factors (constitutional limits). 1. Reprehensibility; 2. Ratio to compensatory; 3. Civil and criminal penalties available. Awards should be a single digit ratio of compensatory. This is not a hard n fast rule, but probably is a constitutional limit. Not supposed to punish nationwide conduct, limit it state by state, because each state has different laws for what is legal (what is illegal in one state may be legal in the other, stick to activity in your own state).
11/8/05 General Rule: Punitive damages are not allowed for breach of contract. Fraud and breach of contract. One is a tort and one is a contract action. Damages from both should get you to the same place, to rightful position. CONTEMPT – p.785 3 kinds of contempt 1. Criminal, 2. Compensatory civil, Coercive civil For criminal contempt – you get a jury trial, standard is beyond a reasonable doubt, generally enforced by prosecutors, must be willful, any money is payable to the govt. Purpose it to punish the contemnor for past violation. Look to see if it is for a fixed fine or jail time, that is a signal to tell you it is criminal contempt, also the money will be payable to the govt. You also have to prove willfulness. If you willfully violate an injunction, then you are in criminal contempt, even if the injunction is wrongful. Compensatory civil contempt – purpose it to compensate plaintiff for losses, it is civil, the standard is clear and convincing evidence, no right to jury trial, a lot of states (CA) don’t have this kind of contempt. Coercive civil contempt – purpose is to compel future compliance by defendant, but it is enforced by plaintiff, sanctions are conditional (defendant holds the key to the jail or coffers), fines are payable to the state (not plaintiff), measured by the wealth of the contemnor, Plaintiff has some power to settle before going to court. When do coercive civil contempt penalties need the procedures of criminal contempt? 11/10/05 General Rule: Punitive damages not allowed for breach of contract But see Formosa Plastics Independent Tort Fraud or misrepresentation (esp. fraudulent inducement) Conversion Gross Negligence? Tortious interference with K If you are the plaintiff’s lawyer you are going to draft the injunction order. Moninger Case: Bank entered into an oral agreement but failed to secure the collateral because they never got a written agreement. On 6/27 writ of execution was issued On 7/7 the levy was executed (just announces that truck is levied)
In most states you must take possession for the levy to be proper. What if they guy won’t give the keys to the sheriff? Then tow the car. Also want to give notice to others, put a sign on it. Then on 7/10 the security agreement is executed 7/13 Sheriff goes back and seizes the truck The truck is sold and not enough money to pay both Moninger and the Bank. Appeals court says that levy was valid even though no physical custody was taken so the credit bureau gets it instead of the bank. When you get a judgment it says the defendant is liable, but it does not say that a defendant has to pay. Not enforceable with contempt. CA places strict limits on the amounts one can claim as an exemption. How do you enforce an exemption? What if your truck is seized and you want to claim it as exempt? File a motion to get your property back. Most state statutory schemes say you have to execute for a proper purpose. What do you do to protect against real property being transferred. You file an abstract of judgment, it becomes a lien on the property. Writs of garnishment. What do you do when you can’t find property in the debtor? Most common place is banks, because usually they are holding money in for the debtor. Dixie Bank v. Chase Dixie Bank makes a mistake, they only report one of the accounts. In the meantime the other account is being milked. The garnishee is responsible for all those dollars because they failed to properly report all the debtor’s accounts. 11/15/05 City of NY v. Citisource City of NY is seeking to attach some accounts. Why does the city of NY want to attach this stuff? Because the city is worried that the D will dissipate the assets as the case goes on. To get attachment of property you need to show, 1) intent to dispose of property with 2) with the intent to defraud. Also must show the substantive piece, in that plaintiff will substantively win the case. Most states require attachment bonds which are stricter than injunction bonds. And they will probably not be a cap on liability. And seeking attachment could be a tort by itself if done improperly. If you get an attachment you have priority for purposes of bankruptcy as of the date of attachment.
Ne Exiat is a pre-judgment order for a person not to leave the jurisdiction. City of Riverside v. Rivera City crashes a party without a warrant and arrest people. This is all wrongful. § 1983 says prevailing party gets attorney’s fees. What is prevailing party? What if you get $1 in nominal damages. If you bring injunction claim and win that then this point is mute. Question is whether an award of attorney’s fees is per se unreasonable if it exceeds the amount of damages in a § 1983 action. Measure by a reasonable amount of compensation. Reasonable number of hours and reasonable fee per hour. We measure by prevailing market rates. You also get to keep tacking on fees for litigating your fee petition. If your fees are challenged. American rule is that everyone generally pays their own way. Exceptions are statutory, contractual, CA makes one way fee shifting into two way (like if the contract says you pay my fees if you breach, CA will reciprocate this), also bad faith litigation is an exception. 11/17/05 Attachment is collection ahead of time, higher level of proof. p. 909, footnote 11, If they made a reasonable settlement offer in a timely manner then can get out of it. If the damages in the end are $33,000, and the govt. had offered to settle for 35K, then any fees accrued after the settlement offer are not recoverable. The fees are capped at that time.
EQUITABLE DEFENSES Unclean Hands Unconscionability Laches Undue Burden
LEGAL DEFENSES In Pari Delicto Unconscionability (UCC) Statute of Limitations ----------
For both you have Fraud, Waiver, and Estoppel Unclean Hands and In Pari Delicto Pinter case: In Pari Delicto means At Equal Fault If the P is more at fault then this is a good defense. Also have to weigh the public policy of allowing the defense. In this case it would allow these parties to stay in a contract that is violation of securities laws. We don’t want to do that. These defenses still apply sometimes, balance the fault of each side along with the public policy.
Unconscionability Armendariz Case Substantive and procedural aspects Employer is seeking specific performance of the K, in that they want to compel arbitration pursuant to a clause in the contract. Other party says this clause was unconscionable. Two Elements: Procedural and Substantive Adhesion contracts fall under the procedural element. These are procedurally wrong because there is unequal bargaining power. The problem with this adhesion clause was that it let the employer decide if they want to go to arbitration. The substantive element is that there must be unfair results. But, it seems like the majority rule is that one-sided arbitration clauses in a contract of adhesion is ok. For the defense balance both the procedural and substantive. Must be both unfair surprise and unfair results. Note after says something about either making the one way arbitration clause into a two way clause, or voiding the whole thing. Compare with Fraud: Here there must be intentional misrepresentation, reliance, and damages. Estoppel and Waiver The party claiming estoppel must show act, reliance, and injury (and sometimes knowledge of the same). The court says for the act there must be a misrepresentation of facts. Here the act was that the homeowner basically agreed that if they build the fairway there instead of houses, then he would not object. Now he is trying to say he does not want the fairway there because the ball keeps going in his house. Unless there is something negligent about the way the course is designed, then they are estopped from suing. The country club relied and built the course a certain way. D gets full expectation damages. Meaning they get to use the hole, no reliance damages. Waiver: Intentional relinquishment of a known legal right How intentional must it be? Must there be reliance? 11/22/05 Review Session: Wed, Dec. 14 in the Morning. Final Exam: Thrus., Dec. 15, 8:30 Classifying defenses: Equitable only: Unclean Hands, Undue Burden, Laches, Unconscionability? Legal only: In pari delicto
Both Legal and Equitable: Fraud, estoppel, waiver, SOL In pari delicto (2) Is P substantially equally at fault? (2) Does precluding the suit interfere with other public policy goals? Unconscionability Both procedural and substantive aspects; need both Estoppel and Waiver Related on a sliding scale; the more reliance, the more likely estoppel; the more intentional, the more likely waiver Geddes v. Mill Creek: Estoppel: act, reliance, injury (and sometimes knowledge of the same, meaning knowledge of the reliance in some jurisdictions) USF&G v. Minco: Waiver: Intentional relinquishment of known legal right; No reliance necessary Laches The more time that has passed the more likely to argue laches
NAACP v. NAACP LDF Delay in bring an action. Was it unreasonable? Must have waited too long, and there is prejudice to the defendant. The longer the delay the less prejudice you must show. In this situation they have spend time in developing goodwill building up the NAACP LDF and in this long period, the NAACP knew of the infringement of the name and chose not to sue. If NAACP did something more than silence they may have preserved their right to sue. If settlement talks are on going then more likely to look past the delay. 4 kinds of delay: Settlement talks Ignorant of the cause of action P sits on rights Law firm delay The most obvious form of prejudice is detrimental reliance. Other prejudice: As things get old, witnesses lose their memory and records get lost. Also, the thing itself can change in value. What if we are suing GM? We need to cut off claims at some point because they have accounting done and that is published and people rely on it. Laches is a creature of equity. If something has a legal remedy only then laches does not apply. Like a tort claim for damages. Laches does not apply, a SOL applies. Initially SOL did not apply to equitable claims. But now SOL apply to both legal and equitable remedies. So some things have SOL and laches as a defense, like breach of contract when you are suing for specific performance. In these cases, laches might cut of some cases before the
statute of limitation has run, but it only cuts off the specific performance claim, not the claim for damages. If it is a legal remedy only, like breach of fiduciary duty, then only laches applies. Relationship of laches/estoppel/waiver – These are three things that go together. Ariola v. Nigro If they waited to sue you could say they were estopped, could use laches, or could say they waived their legal right. Just use the particular facts. Election cases – If you know of a problem before an election and wait till after the election to bring the claim, could bring laches because it looks like you waited to see the results. SOL Why have such cut and dried rules? Compare continuing harm with a continuing violation. A claim accrues when you can first bring your claim. Commencement of the claim is either when it is filed or served. If I am supposed to paint your house on Saturday and I don’t, your claim accrues on Saturda y. Site was designed negligently and nuisance occurs because of it. The negligence claim runs after a point. But if the nuisance keeps going on then each time that is a new claim. The nuisance claim is considered a continuing violation. O’Brien v. Eli Lilly Discovery Rule – Exception to statute of limitations A claim accrues when you know of your claim or it becomes knowable. 1) knowledge of the injury 2) knowledge of the operative cause of the injury 3) knowledge of the relationship between the injury and the cause of the injury. When would a reasonable person know? Try to cast your client as not being unreasonable. If you come into knew knowledge before you bring your claim then you have a better argument in looking reasonable in waiting to bring your claim. The key is the facts at your disposal. 11/29/05 Thurs, Dec 1, 2 PM – 3PM, Room G Wed, Dec 14, 9 – 11:30, SR-1 Final Exam: Thurs, Dec.15, 8:30 AM
Review: Laches Laches – Unreasonable delay resulting in prejudice to D SOL Legislatively determined time frames Exceptions: Continuing violations – Can sue at any point, but can only collect damages for the SOL period Discovery Rule – The cause of action itself does not accrue until the plaintiff knows or should know that the actionable harm has been committed. 3 part test. Fraudulent concealment – don’t know that you can bring a claim because the D concealed it from you. Must show discovery rule + the factor of concealment. Must show that there was misrep, or concealment. The plaintiff relied on that misrep or concealment, and because of that reliance, that is the reason the plaintiff did not discover. P still had to exercise inquiry and try to find out what is going on. Can’t just sit idly by. Did the company do anything more than normal advertising. In the Robins case it does not look like a warranty. To start the statute of limitations running for everyone, they should put people on notice, but they don’t want to have people start suing them. 7th Amendment – Right to a jury trial In suits at Common Law, where the value in controversy shall exceed $20, the right of jury trial shall be preserved. Must look at 1791 and see what things were courts of law actions. General rule is that law courts award money and equity courts award injunctions. How do we apply the historical test? What about causes of action that didn’t exist in 1791. Chauffeurs v. Terry Jury or Judge? Brennan wants to just look at the remedy, but that itself does not always work. Two fold test: Go to 1791 and look at the nature of the action. And look at the remedy. Why does it matter? State courts; jury trial; available defenses and sometimes claims. Can’t do declaratory judgment action if you are doing it to avoid jury trial. The jury will hear the case. Can’t subvert a jury trial right by suing first on an equitable claim.
A substantive legal claim brought about through an equitable procedure (class action, shareholder derivative) will be heard by a jury. Even when there is a jury, the jury only finds issue of fact. Judge always finds legal issues. 12/1/05 Structural Injunctions, they are a mix of preventive and reparative injunctions. Not a lot of unique stuff. Larger scale. Court has to spend a lot of capital to decide to desegregate schools, so the burden analysis will be effected. De Facto segregation is not illegal, that is more a substantive point. VMI – What does it mean to do justice? Does it mean that we will put people in rightful position or do more than that? Also depends how you define the harm. P. 288 note 16. Different methods of measure profits and coming to fair allocation of overhead costs. 1st find the nexus with the category, then fairly allocate. P. 614 footnote 5. Production costs of the infringing product as a percentage of the total production costs The number of infringing products as a percentage of total products The dollar sales from the infringing product as a percentage of total dollar sales. Subrogation? Remember that if you step into P’s shoes you probably take their SOL. By Contract 3rd party steps in to P’s shoes. There needs to be some kind of special relationship to contract with the injured party. Can not just be a volunteer, must have a good reason to pay the debts. p. 710 notes. Note 1. Compare with contribution and indemnity. This is for joint and several liability. Present Value. You want to argue for least level of risk in investment, is going to make a low amount of interest. Want to say he was going to have a lot of annual wage increases. Table 2-1 20K current salary 3.5% annual wage increases 4.5% return on investment of judgment proceeds 15 years remaining work expectancy. Take the investment returns and subtract the wage increases. This gets you to 1%. So we must discount his salary by 1%. If you are the injured guy, you don’t want to discount the first year salary. Find the 1% on the chart and multiply the number for each period by the number in the chart.
Tracing Damages Injunction Declaratory Judgment Restitution Punitives