Remedies
Reading Assignments
For 10/12, we will begin discussing issues regarding the nature and scope of reparative
injunctions. Read pages 232-44 in the textbook. Keep in mind the following questions:
Forster v. Boss
1. Contrast the injunction in Forster with injunctions in Al Murbati, Marshall, and all of
the cases we’ve read so far. The big difference between reparative and preventive
injunctions is simply a matter of timing.
2. With reparative injunctions the big issue often relates to whether they conflict with
damages.
a. Why does the Court say that some of the damages are inappropriate in light of
the injunction here? Can you think of damages that are not inconsistent with
the injunction?
b. Why do plaintiffs get to keep the punitive damages regardless of whether they
take the injunction or fraud damages as their primary remedy? Should equity
courts be in the business of punishing defendants? Does a reparative
injunction punish them enough? Could it in some circumstances?
3. The other big issue with reparative injunctions involves whether the Court can issue
one without running into serious practical problems.
a. Consider for example, a famous case, Bell v. Southwell, where the appellate
court determined that a local election for justice of the peace was tainted by
serious race discrimination. Can or should a court order the election to be
rerun after 2 years?
b. What if the relevant statute only allows for a new justice of the peace to be
appointed in case of an invalid election? Is there still reason for an election to
be rerun rather than just appointing a new JofP?
c. What about the acts of the local justice of the peace that has since been in
office as a result of the tainted election? Are his/her acts illegitimate now?
Can (should) the court order all official acts done during their tenure undone?
Winston Research Corp.
1. As with preventive injunctions – tailoring issues arise with reparative injunctions.
2. What was the scope of the injunction sought by Mincom (the plaintiff)? What
was the scope of the injunction suggested by 3M (the defendant)? Is either of
them appropriately tailored to the plaintiffs’ harm?
3. What standard did the courts in this case use to determine how long the injunction
should last? How do we implement that standard? Should we say that the
appropriate injunction is the length of time it took plaintiff to develop the
recorders or is it more appropriate to use the length of time defendant took to
develop the recorders?
4. Why did the court refuse to award damages in addition to the injunction here?
Bailey v. Proctor – Reparative Injunctions
1. Pay careful attention to the capital structure of the Aldred Investment Trust and
how risk is distributed among stock- and bond-holders. Also pay attention to the
terms of the ICA of 1940.
a. What position would the current bond-holders have been in had the Trust
never had any fraud or insolvency problems?
b. What action by the court comes closest to putting the bond-holders back in
that position?
c. What did the court (1st Circuit) do here? What was its reasoning? Does
its remedy represent the “rightful position” rule in any way that we have
thought about it?
2. Is there any reason for Bailey tailor its injunction so very differently from
Winston? Could you describe Bailey as a prophylactic injunction?
If we have time at the end of the hour, I will start talking about structural injunctions.