I. INTRODUCTION A. P has the right to be made whole, but D has the right to make him whole IN THE CHEAPEST WAY POSSIBLE. II. DAMAGES (substitutionary) A. Rightful Position: We try to put P in his rightful position. 1. Value as basic measure: Rule: Need to look at Market Value. Need as much precision as possible. Need to prove to reasonable certainty. Can’t guess. (Hatahley—District court guessed at value of horses. Appelate court said no, can’t guess. Also: For pain and suffering, have to measure on an INDIVIDUAL BASIS.) Exception: If FMV not available, then we look at value to P. Or if FMV is really undercompensating P. Ex: You get FMV for your car, but that’s so low that you can’t really get a new one. Rule: Can calculate diminution in FMV. (exception: special purpose property… Trinity Church—damage caused by building next to a church. Since it’s ―special purpose property,‖ can calculate based on % damage caused). Rule: For crops it’s value at time of harvest, NOT SPECULATION. Rule: OFFSET for COSTS AVOIDED (ex. Decatur, he didn’t get to offset because he still worked the field, since he didn’t know it wouldn’t yield.) Rule: Generally, there’s a duty to mitigate. Rule: For stocks, jurisdiction split: i. Value of loss at TIME OF WRONG. ii. If it goes up, then we’ll value it at highest price, because that’s when they COULD have sold it (it goes from 7108, we give them 10). iii. Same thing, but you have to cut it off at some point (7 10 5, at some point they would have sold, so maybe not 10). 2. Reliance And Expectancy Expectancy—we give P where she would have EXPECTED to be. Example: Chatlos Systems: Guy bought a computer that wasn’t as good as it should have been. Got expectancy value. Reliance—we give P what she lost in RELIANCE of a promise.
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Majority rule—no difference between contract and tort… can bring expectancy in either. Federal rule—Contract=Expectancy, Tort=Reliance only. Rule: When stock inflated wrongfully: i.. purchase price - actual value at time of purchase ii. purchase price – value at date of discovery of fraud. iii. If you sold: purchase price – sales price. 3. Consequential and Incidental Damages Rule: Consequentials= special damages for breach of contract are not recoverable unless they can fairly and reasonably be considered as arising NATURALLY from the breach or as being WITHIN THE CONTEMPLATION OF THE PARTIES, AT THE TIME THE CONTRACT WAS MADE, AS THE PROBABLE RESULT OF THE BREACH. In contract=what’s foreseeable or should have been foreseeable at time of K. Tort=The big stuff… direct from tort (I can’t work, wages I lost, etc.) Ex. Meinrath—A creditor only gets money owed and interest, NEVER consequential damages (couldn’t fund other businesses). Ex. Texaco—In Tortious interference, liable for damages for a) pecuniary loss of the benefits of the contract and b) consequential losses for which interference is a legal cause. Incidentals= Cost of cover. B. LIMITATIONS 1. party-specified Rule: Liquidated damages provisions in contracts are ok and binding IF DAMAGES ARE DIFFICULT OR IMPOSSIBLE to ascertain. Also: HAVE TO bear a REASONABLE RELATIONSHIP TO THE ANTICIPATED LOSS. Then: Actual damages don’t need to be proved. But: If liquidated damage clause allows party to choose either actual or liquidated amount, then it’s unenforceable. ―Underliquidated damages‖=Amount is less than the damages caused to P. Exclusive remedy? Split: -- Yes, if parties expressly specify. -- Maybe, even if they don’t.
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2. Avoidable Consequences Three rules: a. A P who fails to avoid losses that he could have reasonably avoided can’t complain about those losses. b. A P who makes reasonable efforts to avoid losses but can’t avoid them can recover. c. Those costs incurred in finding a substitute performance are recoverable. Offsetting Benefit Rule: Reduce damages by an offsetting benefit—if D’s breach destroyed Joe’s crops, Joe doesn’t have to spend money on the crops anymore. Exception: Collateral Source Rule—A P who recovers from an independent source (like insurance) is still entitled to recover damages from D for the same injuries. 3. Scope of Liability a. Proximate cause= if you’re too far away from the harm, you can’t recover. b. Economic Harm Principle= P cannot recover for economic harm unless he shows actual injury to person or property (so not economic harm alone). c. Certainty= P must prove with ―reasonable certainty‖ that D caused the harm, and the amount of the damages. d. Substantive Policy Goals= Remedies implement substantive policies and any remedial principle may need to be adapted or limited when applied to a particular substantive violation. C. WHEN MONEY CAN’T MEASURE VALUE 1.Personal Injuries Arguments to jury about valuation: a. ―per diem‖ Argument=‖per day.‖ Argue for daily value of per day harm (suffering, pain, etc.) multiply by how many days she will live. (Ex. Debus Pallet fell on her, she was 20% permanently disabled, this is the argument she made). CA and slight majority allow. b. ―Lump Sum‖ Argument= Just assign a lump sum to the injury. Majority of courts allow
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c. ―Golden Rule‖ Argument= Do unto others… if you were 20% disabled, how much would you want. Not allowed. d. ―Market Value‖ Argument= ―How much would it take for me to cut off your left hand?‖ Not allowed anywhere. 2. Wrongful Death Note: At C/L, when you died, your Torts died too. a. Survival Statutes: Can sue in the name of the decedent. b. Death Statutes: Loss of consortium, etc. Lost wages and economic losses to the FAMILY. 3. Tort Reform a. Try to limit frivolous lawsuits. But the problem is whether you are capping the remedy or reforming the cause of action? Damage caps more popular than capping the substantive law. 4. Dignitary and Constitutional Harms a. Are ―absolute‖ and actionable. b. COMPENSATORY= Not presumed (Carey v. Piphus… kid suspended b/c principal thought he was smoking weed but had no proof.). Need to prove actual damages if you want to collect c. NOMINAL= what you probably get. Note: Statute might prescribe remedy. d. Emotional Distress Usually can’t collect if it’s breach of contract, but you can get if you suffer physical injury. Also: Often a bystander can recover (I witness my kid getting run over). D. TIME VALUE OF MONEY 1. Taxes a. NOT TAXABLE= personal injury damages or wrongful death. b. TAXABLE= Economic Torts, Contract damages c. Future wages that WOULD have been taxed: i. Majority ―Gross earnings‖ approach= Does not reduce damages for future earnings by any tax amount. ii. Minority/federal= ―Net Earnings Approach‖=Give lump sum, then deduct out the taxes from the lump sum. 2. Interest a. Pre-judgment interest: Interest from date of injury to reward. i. C/L—allows for pre-judge interest in CONTRACT, not TORT. ii. CA—allows in both. b. Post-judgment interest: From date of judgment to when paid. i. CA=10% per annum on simple interest basis (NOT COMPOUND… so if lump sum is $100, then it’s $10 per year in yr 1 and yr 2 and yr 3…) 3. Present Value
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Don’t want to overcompensate P, so we need to PV if it’s future wages we’re giving him. a. Real interest rate=interest rate that I’m getting (return on investment) – inflation b. What we use: Discount Rate= Investment- Wage increases c. Inflation=cost of living increases+productivity increases/wage increases d. Figure out how long you’ll work for. e. P arguments: i. More periods worked ii. Higher annual wage increase, high inflation, high productivity gain, etc. iii. Lower interest earned (safer investment) Note: What we want is a LOWER DISCOUNT RATE (leads to higher PV). The arguments are how we get there… Note: Alternative is ―TOTAL OFFSET METHOD‖=Assumes inflation and investment are the same, so no PV. Note: For NEGATIVE Discount Rate=Compound interest Important: The parts that you argue are: What the wage increases will be (consider age… older not gonna become more efficient), Investment return (safer investment), Time period (how much longer gonna work). THEN plug into PV formula. III. INJUNCTIONS Definition: Court order enforceable by contempt. A. PREVENTIVE/ PROPHYLACTIC 1. Ripeness= An injunction will only issue against real threats of injury or wrong. FEAR IS NOT ENOUGH (Humble Oil—they feared D would destroy some documents because there’s an incentive for them to. That’s not enough). 2. MUST SHOW PROPENSITY for that type of behavior. Important: Might want to bring this even if you’re going to lose because it puts the judge and other guy on notice, so either he won’t do the behavior or you can sanction his ass if he does. Important: Consider what you’d need to win the injunction (affidavit from secretary, the fact he rented a bunch of shredders—not ninja turtles, etc.) 3. Must show CERTAINTY OF HARM, not just speculation (Nicholson v. Conn. Halfway House-- drop in property value because of halfway house too speculative) 4. NO INJUNCTIONS THAT SAY ―OBEY THE LAW‖ B. SCOPE 1. Generally, scope of past violation determines scope of remedy against future violations (Marshall—dude discriminated against. Injunction against company not to do it again. This was nationwide, court said it was too broad, should be only against the place that did it).
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Note: Important who P is. Case in notes about police who choke a guy. Guy asks for injunction. Not granted because police won’t arrest and choke him again, so not needed. C. MOOTNESS 1. If harm is removed, court cannot enjoin it. (Grant—wanted injunction for him to step down from board, but he wasn’t on board anymore. So Supreme Court said it was REMEDIALLY MOOT, even though CONSTITUTIONALLY RIPE). D. COERCIVE RELIEF AT LAW Court acting in LAW, not EQUITY for the same effect as injunction. 1. Mandamus—order to a public official to perform a ministerial duty. This is against the position, not individual (Joe as Secretary) and not if other remedies available. 2. Prohibition—Freely available. Order from higher court to lower court to prevent it from exceeding its jurisdiction. 3. Habeas Corpus—Mostly criminal. Right to be heard. Order to a person holding someone in custody to bring them to court to justify it. E. REPARATIVE INJUNCTIONS 1. Rule: Court has the power to fix past wrongs. 2. Includes undoing elections (Bell—Racial discrimination in election. But even if all black votes counted, black nominee still loses. But can undo because don’t know how it would have come out). 3. AVOID double recovery (don’t give injunction if damages were enough, so you can seek both, but not get both, P picks). 4. An injunction should get P back to her rightful position. (3M— Employees steal trade secrets and form their own company. The competing product comes out BEFORE it normally would have. So there’s a block of time that 3M would have had monopoly that they now didn’t. So injunction=amount of time they would be alone… couldn’t get damages also, because that would be duplicative). 5. Courts can ―DO EQUITY‖ 6. Three formulations of saying reparative injunctions aimed at right pos: a. The injunction should restore P as closely as possible to RP. b. The injunction should restore P as closely as possible to RP, SUBJECT TO the constraint that the injunction should never make P better off than the rightful position. c. The injunction should restore P as closely as possible to RP, SUBJECT TO the constraint that the injunction should never leave P worse off than the rightful position. Note: Segregation: De Facto is NOT UNLAWFUL (blacks in Ghetto), De Jure IS unlawful (segregation, zoning that says blacks in Ghetto). 7. Injunction should fit the violation. Don’t fix future wrongs.
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Other: Sometimes Rightful Position is NOT the standard… if D did something bad, courts have more leeway to resolve doubts AGAINST THE WRONGDOER. Also: Can go back and fix injunction: 1. Where facts have changed (unless foreseeable change). 2. Decree becomes unworkable because of something. 3. Enforcement would be detrimental to public interest. F. INJUNCTION ELEMENTS 1. Usual Rule=Injunction only available if DAMAGES AREN’T SUFFICIENT. 2. Elements: a. Substantive merit b. Irreparable harm i. Means ―the law court can’t help me‖/it’s more than economic damages ii. Unique items iii. Fungible goods in a time of shortage (Campbell soup— the right carrots were rare). iv. A propensity to breach like the guy keeps coming on your land (Pardee—dude comes on land and cuts down trees. Can’t compensate the guy for the trees you cut down.) v. D is insolvent (so you can’t get cash from them) vi. CONTROL (Cont Airlines—wanted control of their coupons, this is irreparable harm). c. Balancing of the equities (Burden on D, P, and court). i. Equitable Doctrine: Intentional (can mean reckless too) wrongdoing overrides burden concerns Not hard and fast rule though. (Ariola—D new they were encroaching when they built wall, so even though it’s big burden for them to movie it, they still have to.) Note: This is LITIGATION doctrine, not PLANNING… can’t plan ahead of time what will happen in court. ii. Includes burden on court (CIS v. Argyll—can’t order business to stay open because court can’t enforce, also there’s super-high burden on D since they’re not profitable). iii. Summation: P’s need for injunction v. D and court’s needs in avoiding injunction. c. Interest of the public and 3rd parties. i. No injunction on work contracts. We will enforce noncompete clauses, but not indentured servitude. (Exception if it’s ―bob’s maidservice‖ because it’s not an individual). Important: Injunctions are all about the ―feel‖ and irreparable injury kinda merges with balancing.
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3. Limitations: a. Practicability b. Affirmative defenses c. Other special limits: 1A problems, etc. G. REPLEVIN (and Trover) 1. Giving back property. 2. It’s LEGAL remedy, not equity. 3. If there’s an election to be made, it’s P, not D. 4. Trover=money back. Important: Doesn’t have to be unique or irreparable harm because not an injunction. H. PRELIMINARY INJUNCTIONS (still weigh stuff, not strict ―elements‖…so strong on one cancels out weak on another) 1. Same as normal elements PLUS Likelihood of success. 2. For irreparable harm, we’re looking at time frame BETWEEN THE PI AND WHEN WE GET FINAL JUDGMENT. Asking if there’s irreparable injury IN THAT TIME FRAME. (or can you look back and give damages for something that happens there). 3. Alternative Test for PI (aside from four elements): Possible irreparable harm and either a. A likelihood of success on the merits or b. That serious questions going to the merits were raised and the balance of hardships tips sharply in their favor. 4. Important: Generally want to maintain the STATUS QUO. Possner Formula: Grant PI if and only if P (prob.) x Hp > (1-P) x Hd I. INJUNCTION BONDS 1. P have to post a bond when they get an injunction just in case it turns out to be erroneous. 2. Majority-- The bond is the max on liability. Minority—can get more than the bond. 3. If posted, liability is mandatory. 4. It’s court’s discretion whether bonds are posted. 5. 2 kinds of possible error: a. Erroneous DENIAL of injunction at PI stage. P gets damages. b. ― GRANT of PI. That’s what bond is for. Note: D’s responsibility to ask for bond. J. TROs 1. Must give notice for a hearing to the person for TRO to be effective against them. 2. If it’s ―ex-parte‖ (no notice or hearing) must be serious irreparable injury and can’t give notice. This only lasts max 10 days. Can get another afterwards.
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3. Once notice served, D gets some time to object and prepare defense Note: No notice necessary, even if possible, if domestic violence case or scared for some reason. 4. This is something you need NOW. 5. Not appealable. Can ask for stay if it’s against u until hearing. IV. DECLARATORY RELIEF 1. Statutory Creations… so it’s legal. 2. Must show ripeness (actual case or controversy) and the decision must have the effect of terminating the controversy. 3. Quiet Title—a form of Declaratory relief. 4. Reformation—make the contract like it should have been (like parties originally meant) instead of rescinding it. Usually only in cases of mistake, but can be in cases where there is mistake on one side and fraud on the other (Hand— he changed contract and then signed it… reformation appropriate because he KNEW what other side was thinking). V. RESTITUTION—another type of suit (contract, tort, restitution) Always keep in mind goals of restitution: 1) Put D where he would have been if he hadn’t done the wrongful thing, 2) Deter him from future wrongful thing, 3) Balance against giving P too big a windfall A. Applicable in four categories: a. When there’s no other cause of action. b. When D’s gain exceeds P’s loss c. When P wants to reverse the transaction rather than let it stand and measure either his loss or D’s gain d. When D is insolvent and P can get a preference by seeking restitution of specific property that used to belong to P. B. Key is UNJUST ENRICHMENT (mistakes, judgments, emergencies, joint obligations, wrongful acts). C. Disgorging Profits: 3 fictions: a. Quasi-Contract—pretending there was a contract and giving rental value (Olwell—people used his eggwashing machine without his permission. We could give him fair rental value.) b. Accounting for profits—EQUITABLE… so have to show IRREPERABLE HARM and there’s no jury trial. Give back the profits you made (Maier Brewing—trademark infringement, all profits of the beer disgorged). i. APPORTIONMENT OF PROFITS: We separate the profits that D made (MGM—they stole the play and made a movie, but they made most of it profitable. So only 20% of NET profits were attributed to storyline). Rule: Only apportion if it’s merely a piece of a larger whole. c. Constructive Trust—EQUITABLE… again, need irreparable harm. Different from Acct. for profits because this allows you to ―trace‖ assets
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and gives preference in bankruptcy with regards to a specific piece of property. Also, creates a fiduciary duty. Note: In doing restitution, we consider how ―bad‖ D was acting… If it’s innocent mistake, we don’t restitutionalize. So if you ―diss‖ someone, then you’ll be restitutionalized (Snepp—Gov’t had right to read book). d. Measuring Profits/Apportionment: i. We deduct VARIABLE costs from overall. ii. Deduct SOME fixed costs: If it has sufficient NEXUS to the infringed product (ie. they only make the infringing product at 1 of their 3 plants, then the other 2 plants have no relationship, so only get to deduct some FC from that plant… maybe some headquarters too) % of FC attributable to the profit. (If you’re infringer, you argue for MORE allocated to the product). -- ways of measuring: 1) % of production. 2) % of profits -- P has burden to show GROSS, D has to lessen (err in favor of P like in MGM) D. RESCISSION (restitution and contract)—seeking to undo transaction, measure by either P’s loss or D’s gain. 1. Not a fiction. This is actually saying you never agreed. 2. Important: It’s P’s choice. Either sue for damages or elect rescission and restitution (Mutual Life) 3. When do we allow Rescission and Restitution? a. Fraud b. Substantial Breach of K. c. Mutual Mistake of fact. d. Unilateral mistake, not relied on. e. Duress 4. Interesting case: Farash—P and D had an agreement, BUT NO K. D was to lease building. P did some modifications in reliance on that. Sued off the K, and got RESTITUTION, can’t give reliance since no contract, but it’s essentially what court did. E. CONSTRUCTIVE TRUSTS (remedy imposed by court to avoid unjust enrichment where unjust enriched party becomes trustee)AND PREFERENCES 1. We say that since you got property wrongly, you’re holding it in trust (Hicks—lawyer swindles ―Costabelle‖ property. Treated like he held it for their benefit.) 2. Important: In bankruptcy, you get preference since it’s YOUR SHIT, not part of the bankruptcy estate. 3. Two Elements: a. Identifiable Property (i.e. ―Costabelle‖) AND
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b. Wrongdoing (N. Am. Coin—no wrongdoing because they weren’t sure they were going bankrupt) 4. TRACING RULES (mostly fictions, usually it’s in category 4 or 2… when D is insolvent to get preference; when D’s gain exceeds P’s loss): a. Constructive Trust b. Commingling i. D spends own $$ first. ii. D invests P’s $$ first. c. Lowest Intermediate Balance rule: i. Deposits are treated factually, not fictionally… so if he steals $25 and it drops to $10, I can only get that, even if he deposits more. BUT: if he steals another $5, that’s treated differently. d. P can use tracing rules to her benefit. e. P can only get what she lost if D is insolvent. Tracing problems on p. 682 good… p. 51 of notes. Approach to tracing problems: Lay out table, and the 2 names. Just write it out and follow the rules. With Stock + commingled=Fraction stuff. Remember: if S stole and commingled 3 from M and spent down to 1, the LIB and Const Trust is only on 1. BUT she still has claim on other 2, it’s just in same category as creditors, no const trust and no preference. 5. When may P trace assets into the hands of 3rd parties? BONA FIDE PURCHASERS TRUMP P. 6. EQUITABLE LIENS—remedy imposed by court to avoid unjust enrichment in which innocent party obtains a LIEN over unjustly enriched party’s property, which can then be sold at a foreclosure sale. Difference between this and const trust: a. Can ask for Equit lien PLUS restitutionary damages. b. Recovery limited to amount of the lien. Note: also cut off by a BFP. c. P has choice of either const trust or equit lien. Use equit lien when land or property has decreased in value because you can then ask for money also. VI. PUNITIVE REMEDIES 1. Like restitution, we’re giving P more than she lost. 2. Not allowed in Contract… only Tort or tort-like (product defect) cases. 3. Common Law Factors: a. Reprehensibility. (Ford—we thought it was very reprehensible that they put out a car that would explode which could be easily fixed)/ b. D’s wealth, because one of the points of punitives is deterrence. c. Amount of compensatory damages d. Amount which would serve as a deterrent effect on like conduct. 4. Constitutional Limits/ Guideposts (laid out in State Farm) a. Reprehensibility b. Ratio (compensatory: punitives)
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c. Civil/Criminal penalties 5. Contracts—General rule: not allowed for breach of K. a. BUT: If you make promises that you never intended to keep, then it means you’re lying, then it’s a tort, so fuck you! We’ll allow separation of tort from K and you can get punitives. Rule: If there’s an independent tort, you can get punitives for that. b. How do you figure out if it’s independent? ―Look at source of duty, nature of remedy, source of loss.‖ Basically, whenever there’s a breach of K, try to find a tort as well… conversion, fraud, interference of K, inappropriate breaking of wind, etc. VII. ANCILLARY REMEDIES—those that go to support other remedies. A. ENFORCING THE JUDGMENT 1. Contempt… three kinds. a. Criminal— i. Standard: Beyond Reasonable Doubt ii. Need jury if not petty iii. Prosecutors iv. Need willful violation of injunction v. Purpose=punishment vi. Punishment=Fixed term or fixed fine viii. Collateral Bar Rule applies (must comply even if judge wrong or unconstitutional b. Compensatory civil—. i. Standard: Clear and convincing evidence ii. No jury, no jailtime. iii. Purpose:Compensate P for loss caused by violation of injunction iv. Punishment=Measured by P’s loss or D’s gain v. Not in CA. vi. No Collateral Bar Rule. c. Coercive Civil— i. Purpose: To coerce future compliance by D. ii. Punishment: Either jailtime or money. iii. Can turn into criminal iv. Enforced by P’s lawyer v. Important: D holds the key (ex. $1000 a day for every day you don’t do something). 2. Collection a. Mechanics: Get a judgmentwrit of execution sheriff, b. Levy on property= i. Majority: As much actual possession as possible. ii. Minority: Can just say ―I execute on this shit!‖ (Moninger—Sheriff put hand on truck and said ―I execute on the truck.‖ That was enough).
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c. Proceeds of Sheriff sale paid off in this order: i. Pay the sheriff. ii. Liens on the property, w/ security interest paid off first. d. Exempt property… can’t levy on exempt property. What’s exempt? Depends on jurisdiction. e. Garnishment= Have to get the right account if you garnish. i. Bank liable for being wrong. (Chase—they asked bank about the guys accounts. Bank missed his big account, only gave small account. They’re liable for the money they missed.) f. Attachment= Getting the money before the judgment. Downside is that the person hasn’t been judged as a wrongdoer, and you’re already freezing his assets. i. P must show: D is likely to get rid of money/dispose of assets WITH THE INTENT OF DEFRAUDING (avoid payment after judgment). Gonna have to show propensity. g. Freeze orders—do what you want, but don’t sell land. h. Receivership—important, especially for securities. Allows you to kick out senior management and put in your own guy while litigation is ongoing. B. LITIGATION EXPENSES 1. ―Lodestar‖= (Number hours reasonably expended) x (reasonable hourly rate) (Rivera—civil rights case. It’s likely in civil rights case because otherwise no one would take those cases). 2. ―American Rule‖—each party pays their own lawyers EXCEPT: a. Statutory b. Bad-faith litigation c. Contract d. Family law cases VIII. REMEDIAL DEFENSES A. IN PARI DELICTO (―in equal fault‖) 1. LEGAL companion to unclean hands (Unclean hands doctrine= ―he who comes to equity must do so with clean hands‖). 2. The other guy did something wrong too. 3. Way around: Yes, I did wrong too, but not equally. 4. 2 prong test (Pinter): a. P is at least equally at fault for the underlying illegality AND b. Preclusion of suit does not offend underlying statutory policies B. UNCONSCIONABILITY 1. Balance between Procedural and Substantive… the more you have of one, the less you need of the other. 2. Procedural= ―unfair surprise‖ 3. Substantive= one sided results/ ―unfair results‖ Important: In K it’s a bar to specific performance. Important: If it’s LEGAL remedy, you whittle down damages.
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C. ESTOPPEL 1. An act (by P) 2. Reliance 3. Injury 4. Sometimes: knowledge of the injury (Mill Creek Country Club—club asked neighbors for permission/advice where to put fairway. Neighbor told them, complained later). Important: Reliance can be in good faith… if you say something and D relies on it, you’re estopped. D. WAIVER 1. Intentional relinquishment of a known right. 2. Don’t need reliance. 3. Important: The more reliance you have, the more it looks like estoppel. The less reliance, but more INTENTIONAL THE CONDUCT, the more it’s waiver. 4. Rule: The more central it is to the action, the more intentionally you have to give it up. Note: Waiver and estoppel are both legal and equitable. E. LACHES (equitable) 1. Substantial, unreasonable delay by P in bringing action. 2. Some jurisdictions: P’s awareness that she’s sitting on her rights. 3. Determination of unreasonable=Gut feel mixed with reliance and prejudice to D. (The less hurt D is, the less unreasonable the delay) F. Relationship between Laches/Estoppel/waiver 1. Laches=concerned with length of time and is that too long. 2. Estoppel= How much has D relied on something P did. 3. Waiver=How much did P say intentionally, firmly, and was there reliance by D. Note: Raise all 3 defenses!!!!!!!! Then say 1 fits better. 4. ―Concurrency doctrine‖—applies in K cases and other cases where it can be law or equity… If there’s statute on point, then whether it’s law is governed by SOL and Laches is equitable and doesn’t apply. If I bring for specific performance, it’s equity, but legislature has said there’s a SOL. Maybe Laches will bar me from bringing suit BEFORE SOL since it’s equity so it can apply. G. STATUTE OF LIMITATIONS: 1. Legal OR equitable. 2. ―discovery rule‖—SOL starts to run when she knew or should have known you can sue. 3. Does not run on minors. 4. Fraudulent Concealment= prove all the elements of discovery rule AND show that D concealed the claim.
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5. ―Equitable tolling‖—we toll SOL because I didn’t know, and there was no way for me to know, I could sue. Note: Discovery rule, fraudulent concealment, Equit tolling all ways to get around SOL. 6. Continuing violation v. continuing harm—pay discrimination=every new paycheck that comes in is continuing violation, SOL doesn’t run. I run over you=permanently in pain, continuing harm, SOL arises from the SINGLE INJURY of running your ass over. Note: also say ―there may be some other defenses available that we didn’t talk about like undue burden or frustration‖ IX. EQUITY V. LAW. A. Two fold test: 1. Look to nature of Action AND 2. Look to nature of Remedy. B. Fed Rule: Default is jury unless we can figure out a reason otherwise. One of the parties has to ask for jury trial, but it can be either. C. Jury trial allowed in LEGAL but not EQUITY. D. We weigh remedy more (Chauffers—nature of action=breach of fiduciary duty, equitable. Nature of remedy=backpay, legal. They went legal). E. State courts are more reluctant to send everything to jury. F. Agency Actions don’t have right to jury.
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