Ripeness & Mootness
Ripeness – requirement that P show a “substantial and realistic”
threat of harm personal to P before a court will enjoin future
conduct.
 When can a D make an otherwise ripe threat of harm unripe (or
moot)?
Can D make a preventive injunction non-viable by changing
the course of his/her behavior and claiming “it won’t happen
again”?
Jurisdictional vs. Equitable Mootness –
as distinguished in WT Grant
 Jurisdictional: Mootness/Lack of ripeness is an Article III issue.
Court must dismiss for lack of jurisdiction as required by U.S.
Constitution.
 Unripe/Moot:
No reasonable expectation that the wrong will be
repeated
 Equitable:
Mootness/Lack of ripeness is simply an equitable
issue. Court can dismiss as a matter of judicial discretion

Unripe/moot: No cognizable danger or no more than a mere
possibility that the harm will re-occur
Mootness in W.T. Grant – 3 factors re
whether injunction should issue
1.
Bona Fides of D’s Expressed Intent to Comply
2.
Effectiveness of D’s Discontinuance of Bad Acts
 Effort devoted to ending violation
 Difficulty in starting up again
3.
Character of D’s Past Violations
 Intentional v. Negligent
 Pattern v. Isolated Incident
 Temptation Inherent in the Job
Prevent Injunctions, Ripeness
Consequences – In the context
&
of
Uncertain
Nicholson
 Court will only grant an injunction if the threatened
harm is ripe – i.e. there is a real and substantial threat
of harm personal to P
 What do P’s in Nicholson seek to enjoin?
 Does D show a propensity to do this?
 Then why is the injunction not ripe?
 How is this situation different from Al Murbati?
Enjoining Lawful Conduct due to Potential
Unlawful Consequences
 Court doesn’t per se preclude the notion of issuing this
injunction. But ripeness will always be a problem and
evidentiary support an issue with such injunctions.
 What kind of evidence would Nicholson Ps need to strengthen
their argument that the feared harm is ripe?
 Can you make a comparison to Brainard or Jack v.Torrant?
Enjoining Lawful Conduct Due to Possible
Unlawful Consequences – Nuisance Cases
Comes up most often in “anticipatory nuisance” cases
Anticipatory nuisance = use of property is not per se unlawful
but under these circumstances and at this location the use of
the property is unreasonable and a nuisance.
What are the standards for Nicholson-type injunctions?
Many different formulations:
“Nuisance is to a reasonable degree certain”
“Nuisance will necessarily occur”
“There is a strong probability of a nuisance”
Another Twist on Enjoining Lawful Conduct
– Pepsico, Inc. v. Redmond
 What is the threatened harm if Redmond moves to
Quaker?
 Is there any doubt in the court’s mind as to whether
this harm is ripe? Why?
 What specific order does Pepsico seek – does it only
seek to prevent the feared harm?
 Why does the order go beyond the preventing the feared
harm?
Prophylactic Injunctions & the “Rightful
Position” Rule
Pepsico takes us into the realm of the “prophylactic” injunction.


Defined: Injunctions that aim to restore P to rightful position but
the terms of which impose conditions that go beyond P’s rightful
position.

Such injunctions may (as in Pepsico) aim at actions that are not illegal
or they may bar/require D to do things in addition to the direct order
needed to prevent harm to P (Wilson Metal Casket).

These injunctions largely involve tailoring issues stemming from a ripe
harm – i.e., what sort of injunction is needed to prevent the harm.
When are prophylactic injunctions warranted and when do they
become unwarranted intrusion or overly broad?
Prophylactic Injunctions - Wilson Metal
Casket (n.5 p. 229)


Wilson (owner of company) followed several women to isolated areas of the
company and sexually fondled & propositioned them, causing at least two of
them to quit due to the advances and another’s husband to think that his wife was
having an affair with Wilson until she told him the true situation.
 Lower court found a hostile environment under Title VII and issued order
barring him from “asking any female employee to accompany him off the
premises of the Company unless accompanied by at least one other employee,
and kissing or placing his hands on any female employee in the work place.”

Is the injunction reasonable even though it prohibits legal behavior?
Why?

What could court do if this injunction doesn’t work? Prohibit Wilson
from entering premises? Force corporation (of which he is primary
shareholder) to fire him?
Why isn’t the original nationwide injunction in Goodyear v. Marshall
simply a prophylactic injunction?
When are courts most likely to use/uphold
prophylactic injunctions?
 Culpable defendants (Pepsico, Wilson Metal Casket)
 Repeated violations (abortion protest cases)
 Difficult to enforce a simpler or narrower order – broader order
deemed necessary to ensure P’s rights met (Pepsico)
 Note re the injunction – prophylactic provisions should be related
closely to ameliorating P’s original (legally relevant) harm

Example – abortion protest cases (Madsen, Schenck)
 Prophylactic provisions re buffer zones designed to protect ingress/egress
for patients, doctors and to keep protestors away from the building after
they had committed a series of damaging acts to property
 Original orders – don’t trespass, damage property, harass – didn’t work