You are on page 1of 12

Fact Summary:

1. Orignal owner leases to P to use building for billboard

2. Orginal owner sells property to D
3. P seeks injunction (specific performance from D)

1. Trial court abused there discretion in awarding specific performance. In NY, as a
matter of course, specific peformance is awarded in the sale of real property. In this
situation, we have a totally different type of transaction, since this is a lease. And
specific performance is not awarded as a matter of course here.

2. This property is only unique when it comes to its physical aspects. However, it is not
in an economic sense, since this property can easily be interchangable with money.
3. What matters in assessing if specific damages are appropriate is does not lay on the
physical uniquness of the property, but if there is uncertanity on valueing the property.
This is a downtown manhattan billboard space, this is not a rare piece of art, it can be
valued correctly without a high risk of undercompensation for the other party.
4. Specific peromance of a K to lease unique billaboard space is propertly denid when
damages are an adquate remedy to compesate the tenate and equitable releif would
impose a disposortionate burden on the defaulting landlord
1. The burden would be stifling
2. Specific performance should not be an undue hardschip on the other party, S&M's
projections on the development of the property shows this.
1. As a matter of law, in determining weather or no injunctive releif is
appropriate, a balancing test is used. If the injunctive releif would place a
disproportionate hardship on the D, its not deemed approiate, and the P is
entitled to their damages at law. However, if the encroachement is
deliberate the court can ignore the hardship weight, and apply injunctive
--------->Here, there clearly is an undue hardship on the D. It would cost
aproximatley 1.5 million dollars to remove the obstruction, and there is no
clear benefit to the plaintiff. (these are UNDERGROUND footings) So if we
run this situation through this balancing test, the Defendant would win.
--->ask court to respect lower court's decision that there is no geninue
issue of material fact that it wasnt intentional.
2. Doctrine of “laches” will bar relief where, as a result of the plaintiff's
unreasonable delay in asserting his right, the defendant has been misled or
------->Court has discretion on weather or not to apply laches. The court
will look to all the surrounding facts and circumsatnces, one of the most
important being to see if the D contributed to the delay they are asserting.
----> the deicision to apply laches in sole discretion of the court, and the
higher court here should respect the lower courts discretion in deciding not
to apply laches.
3. Applying the prinicipals set forth in Vag Wagner, regular damages would be
adequate. Money damages for the cost of removing the footings and
bringing the property back to its orignial condition. The court already
identified how much it would cost to remove the footings. (court already
quanitified the loss)
permanent Injunction Test
1. Irrparable harm?
2. Balancing of hardship favof the P?
3. NO undermining of societal goals by enjoining Defendant
4. Cout involvement considerable? When condisering this aspect, look towards
the contempt proceedings and contempalte how frequently the court may
have to intervena nd the ease by which the court will be able to determine
violations of its order.

Remedial Test vs. substantive test for right to jury trial

-Remedial Test is the majority test

DECLARATORY JUDGMENT (essentially, its the court giving advice)

-may be obtaiined to prevent or decrease the possibility of further litigation
especially with respect toK's and threated enforcement of laws by gov entities.
-The fact that the controversy may be one of fact rather than law does not
prevent the court from having the power to issue a decalration on the relative
rights or obligations of the litigants. The issue preclusive aspet of Djs is the
primary benefit in obtaining one.
-UNLIKE INJUNCTIONS – DJ's generally are not conidtioned upon inadeaucy of
remedial alternatives. In fact FRCP57 expressly states that another adequate
remedy does no preculde a judgmenet for decalaratory purposes.
-These are opinions that have no bit to them whatsoever.
-By themsevles, the DJ action lacks teeth so they are often combined with a
remedy (injunctions, damages, ect) Abrogate the right toa jury tiral.....not os
much a concern. Forum shopping is a possillity though.
-Last point: Delecate balance between ripeness and completelness. Court should
not get involved (DJ wise) unless there is a real thrate of D's illegac acts
infringing ona protected right of the P but should deny issuing a declaration, when
the wront and harm are complete.

Nashville Case
-Djs without injunctive releif are only implicity coercive. Attractive still for several
reasons (1) Litigations savings (2) ripeness (3) sets stage for injuncion (4) punis
(5) Bad faith


I. Two catagories
1. Where perfomance provides a benefit that D desired (contract) but P
prefers non K remedy (free market value of pereformance)
2. Benfit provided by not expressly requested.

Blue Cross v Sauer

-Restitution/Unust enrichment takes on both a substantive and remedial aspect.
Where law provides no substantive basis for recovery, its a wonderful gap filler
provdied the D has been unjustly enriched. The remedy always required the
dfefendt to realinques or restore a part or all of the benefit
-Notes 2: There were possible tort claims I Sauer (fraud converstion) but unjust
enrichment in this case is a lot cleaner though it might limit recovery.
-Unjust enrichment is enrichment that does not occur on a legal basis.

Sommerville v. Jacobs
-Eminent domain laws rquire the gov to pay FMC for land taken
-Lets brak the law of the case down, the court holds:
-Improvemvent of land owned by another, whom by a reasonable mistake
of fact of fact and in good faith erects land on another land with reasonable belief
it was the land of the improver. = Value of the improvments (d has been
unjustly enriched) or a lein on the property to satsify the judgement.OR force D
to sell to P since D has been unjustly enriched if allowed to keep land and

-State v. ANW

-If a party ….question remains what was the value of the proeprty to the state.
Thinks real hard on this. Really really hard.
Maier Brewing v. Fleischmann

-Copyright (exclusive right to make and dispose of copies of a literary, musical or

artisitic work) infringers.
-Accounting of Profits: Method used to assist in determining lost profits and/or
what D has to disgorge. It starts the remedial process, several possbilities as to
what eventually will happen.
-Court has to be convincned the way they arrived at the lost profits figure was
-If the enrichment reflects damages, you cant get the same amount. You can
not get damages that reflect increase sales by the defendant. Hypo:D came to
court saying they lost 50K in damages in sales. And then we also have evidence
that the F had gross sales of 100K. If the 100K relfects diversion of sales from D
to P – then those are called damages. And they also reflect on mairs bottom
law, the court wont say to the other party that you can get both your losses by
way of damages and also all the gain that was recognized by the other
party...that would be double recovery.
-Copyright infringers are liablie for all damages and lost profits that ARE NOT
-How much of the profit is associated with the illegal conduct, and then we work
from there.

Sheldon v. MGM

-Sheldon was likely the 1st reported case that directed D to pay “apportioned”
profits in a copyright case; remedy had previously been limited to patent cases.
-17 USCA 504 allows the P to recover the actual damages suffered by her as a
resulf of the infringement, plus any of the infringer's profits that are attributable
to the infringement and are not taken into account in computing tha actual
-Different purposes are served by awards of damages and profits
-Damages are awarded to compensate the copyright owner for losses from the
infringement, and profits are awarded to prevent the infringer from unfairly
benefiting from a wrongful act.
-Where the D porifts are nothing more than a measure of the damages suffered
by the copyright owner, it would be inappropriate to award damages and profits.
However, in cases where the copyright owner has suffered damages not reflect in
the infringers profits, or where there have been profits attributable to the
copyrighted work but not used as a measure of damages, the statute authorizeds
the award of both.
-Expense Dudecitions: Sheldon tell sus that legit biz expenses must be ID'd,
caluclated and deudcted from gross revenues where porved. Overhead whidch
does not assist in the porductction of the inrignement should not be credited to
the infringer, that which does should be, it is a question of fact.
-If you think that resittion should be widely avabile but that recoveries are often
excessive, liberalizing apportionament might help you sleep better. But if you
view restitittion with an eye tword deterring/punshing, liberalizind aporitonment
may take the bite out. No hard and fast brightline process.

Hamil v. America Inc.

-When an infingers enterpsrise is more diverse that simply producing the
infringing product, potetially decutable costs are diveded into 2 catergories: 1)
Those that contributed to the sale of the infringeming porduct 2) those that didnt
-Sales staff, overhead, whatever may be ddeutible costs if the court is convinced
that ehy failiatted the illegal acts and are reasoanbel in their alucaition. Makes it
imperative that P's conusel be familiar with the workings of D's business,
otherwise D allegataions fo what costs should be deducted are left largley
-As a genral rule, puntive damages should be described as punitive damages, not
guised as a judgmenet reflected restitution.
-As a genreal rule we should be trying to determine what extend the D has gained
as restitutiton – not punshiment.
-The more culpable the conduct, the more suspiciosu we are of the courts
-Make sure when you talk about damages= harm to plaintiff. Restitution =
Mecahnisim of which to arrive at a judgement.

CIA Case: (snepp)

-Not only is there an injunction involved to create a trust, there is a req that the
D relieve title of that property to the P.
-When it comes to these equitable trusts – the judge is now in the position to
decide to what the trust is going to be comprised of in addition to whether or not
the conduct warrented the imposition of a trust.

May case:
-Discouragement is a general remedy for consious wrongdoing. Tendancy to
assume that is genreally unavialbe in K.
-Part of that stems from belief that breaches in K dong commit the wrong
necessarily. Which is consistent why we dont consistantly apply puntiive
damages. Not wrongful enough to justify giving up profits or punishing (firm

Mobil Oil Exloration & Producing Southeast, Inc v. US

-where allowed, resission avoids the transaction but must be accompanies by

restitution on both sides, the K is being unmade, so restoration of benefits
received must follow
-Note 2: Rescesion only availbe here because the Gov first repudiated (materially
reached_ the K.

Note 3: The D who substantially breaches the K before performance is complete

has opened the door to restition as a remedy. Courts focus is now on quantifying
the benefit of perfmance and can be distracted from what the K calls for. Court
can now test the market for value or dtermine value from a look at the K.

-Methods of Rescission:
-Mutual Agreement
-Note 2: Unilateral rescission. Fraud often forms the basis for a unilateral

I. Accounting for Profits: Simple requests by P to have D account for profits

-I have info you may have profited by your illegal conduct...acount for it
(not gross revenues, PROFITS!)
-Partially depends on how aggregious the conduct was
I. How do courts utlizie accounting for profits?
Meijer Suggests:
1. Use to ID in a circumtsance when parties in copmetetion with one
another, the damages caused to the other by the illegal activity (diverted
profits to use, to your illegal activity)
2. Or to measure the gain by the D. Distinct from a loss argument. You
have gained!
– There is no resistance to recovering DAMAGES in this instances,
the question is, what if we dont want damages, what if we prefer
– Law says its within the discretion of the court to allow
recovery of gain AND damages as long as they are not
duplicitive. (you cant get gain that represents your losses
and damages as well, no matter how wrongful the conduct)
– Example: D has gained by 100K in profit. 50K is the
damage amount. Law says, you can allow recovery of either
one, so we know we can get damages, we know we can get
proifts, we know that the court can say you get the lesser of
the 2 if it wants to do so. The court can also say there is
100k in gain you are entitlted to gain if the court wants to do
so. The court can also say, you get the 50K damages and
you will also get some gain as long as the gain is not
reflected already in your damages.
– So if that 100K number reflects losses that have been
diverted from the plaintiff to the gain of the D, and is also
reflected already in the damages, you cant get all of that
gain, you can get some of it, but not all of it. You cant get
the gain that is already reflected in the damages amount.
– Only when perfmances are incomplete you can come off the contract
– price and go after market prices.


I. Format of the Exam

-10 MPC, 2pts each
-3 True/False (5 pts each)
-10 pt (talk to me question) – tell me what you think about the colleteral source
rule, punative damags, whatever that might be.
-30 pt, 20 pt (tracing question), 45 pt (broken down into 3 seperate question),
20pt essay

I. Remedies that originate in court of law vs. court of equity

1. Placing D in righful position (that position varys with each remedy)
II. Case that orignates uner FTCA, what would remedy be during a conversion?
And maybe the metal anguish associated with it. (halle case)
1. Always turn to the market to estimate the total damage award when
there has been a total taking of the property (FMV at time of
2. emotional distress damages would have to be proven in order to recover
3. IIE, neg incfliction of emtiona distress and the courts reluctance of
courts to award these damages
4. Replacement costs = might be appropriate (better discussion under a
different case)
5. Possible recovery of loss of use damages in CONVERSION case. As well
as the consideration of intrest on the fvalue of the prop taken from us.
III. 9/11 Case
1. Leseer of 2 rules:
1. P is allowed to recover in regards to harmed property
1. Dimmuntion of value or the cost of repair/replacement (whichever
is less)
2. this rule assumes tehre is a market, if there is none, we have to
create a market for the court. There are some occasiosn though were
there are special use circumstances where no market is here...and
the court will award the cost of replacment
2. This is used in partial damage to property or total distruction of proprety.
3. Courts allow recovery of consquetiontal damages also in circumstances
where the property is totally destroyed.
IV. Contract Damages
1. Generally speaking, P seeks recovery through expectation loss.
1. Whether that P be the buyer or seller
2. This remedy protects the promise offered by the D, the performance
of that promise
3. Expectation is a remedy that that they are automatically entiteld to
with certain expsnese, without having to cover. Cover does come into
play when they are also trying to get special damages.
2. Breach of lease agreement
1. In these circusmtances, at a minumu – P will have to show link of
causeation between the wrong and the harm. P will have to prove
that the amount of the harm can be determiend by REASONABLE
certaintiy. And then show that this harm was in contimplation of the
parties at the time of the K.
2. Some courts are reluctant to allow recovery of consquetial damages
in these situations.
3. When there has been breach in lease agreement, courts use different
1. To protect the expecation when the lessee (tenant) is the T = T
gets the benefit of exepcation If P went out and covered, entiteld
to difference of rent they are paying and what the berach is
2. Or if LL is P = difference in rent, ect if covering
1. LL should attempt to cover and relet the proprety. In
order to recover the expecation ( the rent expected to be
payed over the course of the term). Have to prove to
court that LL reasoanbly attempted to cover
V. Breach from not paying money*****
1. Money owed +intrest (NO CONSEQUENTIALS!!!)
VI.Liquidated Damages Clause
1. Perphaps parties would agreein advanced what will happen with a breach
2. You can not PENALIZE in contract, so Liquidated damages clause that are
deemed a penalty, are unenforceable, if deemed unenforceable, parties
will have to go to court to see what the remedy will be
3. Those LQ damage cluase, even if its disproportionate – if both
contractors are on a level playing field, most courts will ok it
VII. Collateral Source Rule
1. In K, the D gets the benefit of the offset (discussedin duty to mitigate)
2. Duty to mitigate your harm in K, so that consequenttial damages are
made avaiable to you. Question is if you acted reasonabley after notified
other party acted wrongfully.
3. P in tort claim ahs a duty to mitigate her damages, act reasoanbly after
shes been injured.
4. CSR further addressed that evidence of collateral source benefits cant be
introducedto offset liability (insurance, ect)
VIII. Economic loss doctrine in tort
1. When it comes to damages that are more subjective in nature, more
personal in nature, lawyers resort to very creative ways to value the
1. Per diem
1. Pier diem arguments are ok as long as its said that this is simply
argument, not evidence offered by the lawyers
2. Future medical losses
1. Must be reduced to present day value, and economist testifies
what the appropriate discount is , if any.
3. Wrongful Death + Survival Actions (modes or recovery)
1. Survive = Benefits go to the estate, estate plann distributes.
2. Wrogful death = goes directly
X. Diginitary Claims
1. What do we do in circumstances that the amount is claimed to be
exessive? Talked in context of punative and compensatory
2. D can ask for remittur if thinks its too high.
1. Cant go over double digit percentage
3. Con law vioation
1. Cour will not PRESUME harm, if theres harm asa result as con
violation, p has to come forward of credible evidence of the harm and
relation to the violations
2. Creative ways to value in circumstances normally we would not be
value, certain types of harm
1. Harm with not being abel to go to school, residual effects of being
denied a con law right.
XI.Punitive Damages