What are the requirements to assert a permanent injunction?

A plaintiff must show the defendant is likely to engage in the conduct the plaintiff seeks to enjoin

An injunction should issue only where legal damages are inadequate and, absent an injunction, the plaintiff will suffer irreparable injury.  

         unique, no reasonabel certainty damages, defendant is bankrupt or             will continually repeat conduct

Requirements to assert a Preliminary Injunction/Temporary Restraining Order?

A plaintiff seeking a TRO/PI must establish…(Winter/Alliance)

        (a) that he is likely to succeed(serious question) on the merits

        (b) that he is likely to suffer irreparable harm in the absence of            the requested relief;

         (c) that the balance of hardships tips(tips sharply) in his favor; and

         (d) that an injunction is in the public interest.

Is required for TRO/PI

Is not required for permanent injunction

An ex-parte TRO may be granted if (1) the failure to issue it will result in immediate loss, harm, or damage; and (2) application sufficiently demonstrates a reason that notice “should not be required” 

              Putting party on notice will cause the            damage and trigger additional harm OR unreasonably difficult to locate opposing counsel.  

Cannot last more than 28 days. 

(1)the movant gives security or posts an injunction bond (2)in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.

government entities, indigents in matters of public interest, or if movant clearly has enough assets to pay for any damages and no risk defendant will suffer damage from injunction.

Laches(SOL), Unclean Hands(Comparative Fault), Equitable Estoppel

The doctrine of laches is an equitable defense that may be asserted if…

         the plaintiff unreasonably delayed in pursuing the claim; and 

         the delay results in prejudice to the other party

The doctrine of unclean hands bars relief to a party who has…

            violated conscience, good faith or other equitable              principles in his prior conduct; and,

            that prior conduct relates directly to the transaction or subject                     matter concerning which the complaint is made.

A party is equitably estopped from making a representation that is inconsistent with a prior misrepresentation when…

             there is a misstatement or action by plaintiff

            reliance by the defendant; and

            injury to the defendant

Factors: likelihood of success on appeal, irreparable injury, balance of hardships and the public interest

Mandatory injunction—forcing a party to act, are more likely to be stayed

Prohibitory injunction—prohibiting a party from acting, less likely to be stayed

A court should modify or terminate an injunction if changed circumstances render continued enforcement of the injunction inequitable.

1. Changed factual conditions make it substantially more onerous to comply

2. When enforcement without modification would be contrary to public interest

3. Parties made initial agreement on misunderstanding of law

Civil Coercive Contempt, Civil Compensatory Contempt, Criminal Contempt(indirect/direct)

Power of the court to impose fines(paid to the state) in order to coerce defendant’s compliance.

A civil contempt for disobedience of a court order is established on a showing that:

        (a) there was an order that was clear and definite in        its terms;

         (b) the contemnor had knowledge of the order; and,

       (c) there is proof of non-compliance by clear and convincing evidence.

Power of the court to award damages(paid to the plaintiff) for D’s failure to comply order.

A civil contempt for disobedience of a court order is established on a showing that:

       (a) there was an order that was clear and definite in          its terms;

       (b) the contemnor had knowledge of the order; and,

    (c) there is proof of non-compliance by clear and              convincing evidence.

Power of the court to punish a defendant’s willful failure to comply with order.  May be an order of imprisonment or imposition of a criminal fine.

Direct contempt—when someone disrupts judicial proceedings in the presence of the judge.  Summary proceedings without much due process are allowed.

 Indirect contempt—where a person subject to a court order violates the terms of that order.  Court must prove (1)beyond a reasonable doubt that the defendant (2)willfully violated the court’s order. 

 These proceedings require: the right to counsel, proof beyond a reasonable doubt of violation, and a right to jury if fines are “serious.”

Civil contempt: it is a complete defense to a civil contempt sanction that the underlying injunction is unlawful or was improperly granted(so you must attack the three requirements for issuing civil contempt order)

Criminal contempt:(collateral Bar Rule)can be challenged on the ground that it has only a frivolous pretense to validity(can’t attack whether underlying order was improperly granted like civil contempt, must not only be wrong but also be frivolous).