Remedies

Fall 2015
Fordham Law School
Chapter II Equity & Equitable Remedies
George W. Conk
Adjunct Professor of Law & Senior Fellow, Stein Center for Law & Ethics
Room 8-122
gconk@law.fordham.edu
212-636-7446
Torts Today: http://tortstoday.blogspot.com
Otherwise Commentaries on Law, Language & Politics
Blackstonetoday.blogspot.com

Ch. 2 Equity and equitable

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EQUITY

Ch. 2 Equity and equitable

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Categorizing remedies

Equitable
injunction
accounting
trusteeship
receivership
specific
performance
partition
divorce/equitable
distribution

Legal
damages
(compensatory or
punitive)
fines
Hybrid
restitution
declaratory

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Remedies - At Law and in Equity

Substitutionary
Compensatory
damages
Counsel fees
Costs and expenses
Punitive damages
Treble damages

Specific Remedies
Replevin
Specific performance
e.g. Transfer title
Perform as a singer
Back pay
Promote a worker
Abate a nuisance
Retract a libel

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Remedies - At Law and in Equity

Four major remedial categories

a) damages

- compensatory
- non-compensatory (punitive, treble)

b) coercive remedies

- injunctions (mandatory/prohibitve)
- specific enforcement
- restitution
- structural injunctions
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Remedies - At Law and in Equity

c) declaratory remedies

- declaratory judgment interpreting written

instrument, statute, etc.

d) Restitution
Prevent unjust enrichment by restoration of
unjustly acquired asset
- disgorgement of gains
- restoration in specie
- constructive trust/ equitable lien
- subrogation

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Remedies - At Law and in Equity

III. Legal vs. Equitable Remedies

Rights and Discretion

Law Courts and Chancery Courts

Legal in rem - enforceable by

execution against property

Equitable - in personam/enforceable
by contempt

Trial by jury - available in suits at

common law - not in Chancery

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IV. Injunctions: Provisional vs.

Final Remedies

Temporary Restraining Order (TRO)

Preliminary Injunction
Inadequacy of remedy at law
Irreparable harm
Balancing equities
Probability of success on merits
Security in event of error
Permanent Injunction
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Alternative Dispute Resolution

Arbitration historically
contractual/consensual
Often practically mandatory
(statutory (PIP), FINRA, adhesion
contracts, shrink wrap contracts)
Enforcement of collective
bargaining agreements
Private arbitration
Arbitration option (counsel fees)
Mediation
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Considerations re grants of
equitable relief

Law and Justice

Primacy of law
Conscience
In personam
Inadequacy of legal
remedy/irreparable harm
Balancing - Equitable discretion
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Equitable Defenses

Laches unreasonable delay

Estoppel holding you to your word

Unclean hands disqualifying

conduct

Unconscionability terms so onesided as to be unenforceable as a

matter of policy
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Equitable Defenses

Laches neglect to do for an

unreasonable and unexplained length of
time what in law should be done and
with resulting prejudice

Estoppel "One who misleads is

stopped from asserting positions at
variance with the appearances he has
created."
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Equitable Defenses

Unclean hands
The Highwaymens Case: arbitrating a
dispute re the spoils of a robbery Everet
v. Williams (1725)
ex dolo malo non oritur actio
"no court will lend its aid to a man who
founds his cause of action upon an
immoral or an illegal act
in plain English, illegal contracts are
unenforceable.
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Law or equity
Injunction or damages?

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Campbell v. Seaman (NY 1876)

Sic utere tuo ut non laedas

What does the maxim mean?
How does it differ from negligence
What remedies at law are available?
What considerations support the
grant (or denial) of an injunction?
Why doesnt it matter that brickmaking preceded the house?
What were possible choices in
framing injunction?
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Pardee v. Camden Lumber Co.

(WVA 1911) p. 19

Our rule permits a mere

trespasser to utterly destroy the
forest of a neighbor, provided he
is solvent and has the ability to
respond in damages
Reversed:
A clear case of trespass by
cutting standing timber should
always be enjoined
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Specific performance
-denied for fungible chattels
- granted for real estate

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Irreparable Harm
58 C.J., Specific Performance, 247(c)

specific performance of a
contract for the sale of personal
property will not ordinarily be
granted, because there is an
adequate remedy at law, as in an
action for damages for breach of
contract.

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Fortner v. Wilson (OK 1950) p. 20

K for sale of new car # 44 $1,709

P paid $100 down
D demanded Ps used car as trade
in
P refused
Judgment for specific performance
of the sale denied
Why?
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NY CLS UCC
2-716. Buyer's Right to Specific Performance or
Replevin

(1) Specific performance may be

decreed where the goods are
unique or in other proper
circumstances.
(2) The decree for specific
performance may include such
terms and conditions as to payment
of the price, damages, or other
relief as the court may deem just.
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NY CLS UCC
2-716. Buyer's Right to Specific Performance or
Replevin

(3) The buyer has a right of

replevin for goods identified to the
contract if after reasonable effort
he is unable to effect cover for such
goods
In the case of goods bought for
personal, family or household
purposes, the buyer's right of
replevin vests upon acquisition of a
special property, even if the seller
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Copylease Corp. of America v. Mem

orex Corp. (S.D.N.Y. 1976)

"Specific performance is no longer

limited to goods which are already
specific or ascertained at the time of
contracting. The test of uniqueness
under this section must be made in
terms of the total situation which
characterizes the contract. Output
and requirements contracts involving a
particular or peculiarly available source
or market present today the typical
commercial specific performance
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Copylease Corp. of America v. Mem

orex Corp. (S.D.N.Y. 1976)

Uniqueness is not the sole basis of the

remedy under this section for the relief
may also be granted 'in other proper
circumstances' and inability to cover is
strong evidence of 'other proper
circumstances." Cal.U.C.C. 2716,
Comment 2

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Schiller v. Miller

Schiller took possession of

engagement ring and other jewelry
and put it in safe deposit box
They also bought a house together
(in which he lives)
Miller seeks order that it stay in safe
deposit box
Why does the court grant that relief?
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Schiller v. Miller

(p. 25, N. 9)

The "jewelry", is (a) One handmade platinum ladies

engagement diamond ring with a center pear shaped
diamond of 5.81 cts., G-H in color, S12 in clarity with
matching tapered baguettes with 1.40 cts. total
weight.
(b) One florentine tennis bracelet containing
34 genuine brilliant round cut diamonds, eye
clean, near colorless weighing approximately
8.04ct. hand set in a 14K gold mounting.
(c) One ladiesaquamarine and diamond ring.
(d) One ladies tourmaline necklace.)
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Unique goods

A few months after the purchase of each of

the aforementioned pieces of jewelry, same
were appraised for considerably more than
their original purchase price.
The engagement ring which was purchased
for $38,000.00 and that a few thousand
dollars more was spent on baguettes for
same appraised for
$ 60,000.00.
The market value of the aforementioned
four pieces of jewelry is difficult to ascertain
as they are all unique one of a kind creations
and that inasmuch as neither of the parties
hereto could ascribe a value to same, this
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Court cannot place
a value on the 26jewelry.
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Merrill Lynch v. Callahan (D VT 2003) p. 20

Callahan has taken from Merrill

names, addresses and phone
numbers of their former clients
For Preliminary injunction P must
show:
1) irreparable harm in absence of
injunction
2) likelihood of success on merits or
3) balance of hardships decidedly in
Ps favor
Why does Merrill lose? What
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Merrill Lynch v. Callahan, p. 20

Non compete agreement
1 year, 100 miles
Confidentiality agreement
Action under VT Trade Secret
Act.

Why does court refuse to enforce

this apparently reasonable
agreement?
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Preliminary Injunctive Relief

Moving party must show

(a) that it will suffer irreparable harm

in the absence of an injunction and
(b) either
(i) a likelihood of success on the
merits or (ii) sufficiently serious
questions going to the merits to
make them a fair ground for litigation
and a balance of hardships tipping
decidedly in its favor.
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Equitable relief is
discretionary
Balancing, not bright lines

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Discretionary Relief
Georg v. Animal Defense League, p. 26

Animal Defense League

proposes to build a kennel
Jury finds it to be a nuisance
Judge overturns verdict NOV
and refuses to grant injunction

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Discretionary Relief
Georg v. Animal Defense League

Could any injunction be crafted?

How is monetary relief adequate?

And for what wrong?

Why not let the jury craft

injunctions?

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Discretionary Relief
Georg v. Animal Defense League

In view of the public interest, it is

the general rule that a group of
private individuals are not entitled
to an injunction restraining the
operation of an establishment
contributing to the common good,
but such parties are relegated to
their remedy at law in the form of
an action for damages.
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Discretionary Relief
Georg v. Animal Defense League

A suit for injunction will lie only in

the unusual case where there is a
disproportion of equities, such as
where an offensive although
necessary undertaking is carried on
in an unsuitable place when it could
be as easily and economically
carried on in some location where it
would give no offense.
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Discretionary Relief -Georg v. Animal Defense

League
"The evidence showed that there was a
need for the rendering plant to conserve
what would otherwise be wasted; and to
afford an efficient and economical means
of disposing of garbage, dead animals
and residue from the packing and
slaughter houses in Smith County, Texas.
This was the only rendering plant in the
county and served the needs of some
75,000 people to promote better sanitary
conditions for all of Smith County."
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Equitable relief is discretionary

Grossman v. Wegmans Food Markets

p. 28

The loss of an anchor tenant

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Equitable relief is discretionary

Grossman v. Wegmans Food Markets

Courts have recognized the

uniqueness of a percentage lease
and have generally implied
therefrom an obligation on the part
of the lessee to occupy the property
and to use reasonable diligence in
operating the business in a
productive manner.
1 American Law of Property, 3.66,
p. 321 (1952).
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Equitable relief is discretionary

Grossman v. Wegmans Food Markets

Action to compel specific performance

of a lease to operate a supermarket
dismissed
"Contracts which require the
performance of varied and
continuous acts * * * will not, as a
general rule, be enforced by courts
of equity, because the execution of
the decree would require such
constant superintendence as to
make judicial control a matter of
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Equitable relief is discretionary

Grossman v. Wegmans Food Markets

The gravamen of the complaint here is

not only the possible loss of additional
income by way of a percentage of
defendant's increased gross sales, but
the difficulty in measuring the harm that
would come from the withdrawal of one
of the members of a semi-cooperative
enterprise like a shopping center.

Plaintiff's damages cannot therefore be

accurately ascertained, and remedy by
way of damages at law would be
impractical and unsatisfactory.

Dover Shopping Center, Inc. v. Cushman's Sons, Inc.,

Ch. 2393-394
Equity and equitable
63 N.J. Super. 384,
(App.Div. 1960)
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Equitable relief is discretionary

Grossman v. Wegmans Food Markets

We have considered Dover

Shopping Center v. Cushman's
Sons (63 N. J. Super. 384) where
specific performance was decreed
in somewhat similar
circumstances, but have not been
persuaded thereby that specific
performance should be decreed in
the case at bar.
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Equitable Defenses

Unclean Hands
In pari delicto
Unconscionability
Laches
Estoppel

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Salomon Smith Barney v. Vockel

(2000) p. 30

Vockel provides to his new employer

Paine Webber confidential
information re clients
Paine signs up Smith Barney clients
Injunction denied
we look solely at the conduct of the
one who seeks the aid of the
chancellor
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Unclean hands Sheridan v. Sheridan, p. 34

A court of equity, as a court of

conscience, can never permit
itself to become party to the
division of tainted assets nor can
it grant the request of an
admitted wrongdoer to arbitrate
such a distribution.

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Unclean hands Sheridan v. Sheridan

Is this fair to the wife?

When should a judge report

misconduct to proper authority?

What about in Sea Girt?

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Unclean Hands
Seagirt Realty v. Chazanof (1963) p. 38

1934 - Seagirt Realty (Jacob) to Alfred (to

defraud creditors)

Alfred holds for benefit of Jacob

1945 -Jacob goes bankrupt, denying any

interest in real property

1950 - Alfred to Chazanof [Jacobs son-in-law]

contemporaneously: Chazanof to Seagirt
(Deed not recorded)

Deed is lost. Seagirt (Jacob) seeks an order

compelling Chazanof to execute a new deed.
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Seagirt Realty an alternative?

Could the court have imposed a

constructive trust in favor of the
defrauded creditors in bankruptcy?

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Unclean Hands
Seagirt Realty v. Chazanof

Who has the better of it majority or

C.J. Desmond, dissenting?

What is the sense of perpetuating an

erroneous land record in order to
penalize A for past misdeeds by causing
him inconvenience? Better regard his
dirty hands as washed during the lapse
of twenty years rather than mess up
the recording system."

- Prof. Zechariah Chafee, Some

Problems of Equity, 21-22 [1950].
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Unclean Hands
Seagirt Realty v. Chazanof

Majority:
What ought to count is the strong
social policy in favor of making the
land records furnish an accurate
map of the ownership of all land in
the community.
Whatever A's old misdeeds, he is
the lawful owner of this lot and
the records ought to show this
fact.
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Unclean Hands defense rejected

wrong extraneous to right asserted
Seagirt Realty v. Chazanof

wrongs done by Jacob Landau to

creditors in respect of the property
at some time prior to the
acquisition of the title now in issue
may not now be raised by this
defendant to defeat otherwise
available relief.

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Unclean Hands
Seagirt Realty v. Chazanof

Chief Judge Desmond (dissenting).

I vote to affirm the judgment

below because no right of action
can spring from an illegal contract
and that courts do not sit to give
protection to cheaters or to act
"as [paymasters] of the wages of
crime
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Unclean Hands
Seagirt Realty v. Chazanof

Majority:
The property has been conveyed
to plaintiff [Seagirt], who now
holds title, both legal and
equitable. Defendant [Chazanof]
has no interest whatever in the
property.

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Unclean Hands defense rejected

wrong extraneous to right asserted
Seagirt Realty v. Chazanof

equitable relief is sought, not to

enforce an executory obligation
arising out of an illegal
transaction,
but to protect a status of legal
ownership

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Unclean Hands
Seagirt Realty v. Chazanof

The existing record falsely makes R

owner. It may mislead scores of
honest citizens
people who have strong reasons
for wishing to buy the lot, such as
creditors of A, creditors of R, or
lawyers drawing deeds of
adjoining lots who are anxious to
insert an accurate description.
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Unclean hands
- the pot calling the kettle black
American University v. Wood (1920) p. 42

Complaint to enjoin commercial libel:

The bill charged the defendants with
circulating letters and advertising matter
among the students and prospective
students of complainant containing
statements and charges of a character
derogatory to complainant and its
business, and prayed they be enjoined
from further sending out such circulars
and letters.
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Unclean hands
- the pot calling the kettle black
American University v. Wood (1920)

Dr. Wood, whose picture was on some of

the Chicago University publications, and,
following his name, LL.B., D.M.T., Opt.
D., D.O., M.D., D.C., was as much
responsible for the character of
complainant [American's] advertising
and the method of conducting its
business while he was its president as
anyone else and has carried similar
methods into the conduct of defendants'
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Unclean hands
- the pot calling the kettle black
American University v. Wood (1920)

The maxim that he who comes into a

court of equity must come with clean
hands was never intended to bar
everyone guilty of wrongful conduct
from relief in a court of equity
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Unclean hands
- the pot calling the kettle black
American University v. Wood (1920)

As a general rule:
the wrongdoing or fraud of the
complainant, must be
- connected with the subject of the
litigation and
- related to the rights of the parties
arising out of the transaction
That rule is not applicable to the facts in
this record
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Unclean hands
- the pot calling the kettle black
American University v. Wood (1920)

[B]ut on the ground of the public interest and

policy we do not think complainant's
grievance is of a character to be redressed in
a court of equity.

The misrepresentations of complainant in the

conduct of its business affected the public,
and it would seem a strange thing if a court of
conscience should be required to protect a
suitor in the commission of a fraud upon the
public.
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Backpay and illegal

aliens
p. 41 Note 6

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Sure-Tan v. NLRB (1984)

NLRB ordered reinstatement

with back pay for retaliation
against illegal alien workers who
had voted pro-union in
unionization election - after
which workers were reported by
employer and deported.

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What are the arguments pro &

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Rewarding illegal conduct?

Q. Should illegal aliens be able

to recover workers comp
payments for lost time?

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Rewarding illegal conduct?

Q. Should injured aliens who

used false SS # and were hurt at
work due to unsafe conditions be
able to seek damages for future
wage loss under state tort law?
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