Common Law: A court will not grant equitable relief if P has an adequate remedy at law (i.e., unless P’s injury is irreparable).

• An inadequate remedy at law is one where the threatened or damaged property cannot be substantially replaced with the damages that are its value.

• Uniqueness is a common measure of inadequacy.

Continental Airlines Continental Airlines and irreparable and irreparable injuryinjury

D (Intra) acquired and sold to travel agents for resale Continental’s discount coupons for flights (despite a non-transferability clause). At some point, despite past practice, Continental told D to stop but D continued selling to travel agents.

• Continental wants an injunction to stop D/Intra’s practice – does Continental have irreparable injury?

After After PardeePardee & & ContinentalContinental – how can P – how can P show irreparable injury?show irreparable injury?

Uniqueness of the property/right threatened or damaged

Difficulty in estimating damages resulting from tortious conduct

Loss of control over property that is rightfully yours

Some things to keep in mind about Some things to keep in mind about irreparable injury:irreparable injury:

In the context of a permanent injunction, the rule is reasonably weak -- can often find a way to argue that damages won’t substantially replace the thing destroyed or damaged.◦ But Ps must plead/offer proof of irreparable injury as

it is formally still a requirement. Frame your arguments of harm in terms of irreparable injury.

The irreparable injury requirement is far more important with preliminary injunctions/TROs.

Irreparable injury is a threshold requirement – P must meet the requirement in order to get an injunction. BUT meeting it does not automatically mean that P will get an injunction.

The Writ of Replevin – The Writ of Replevin – Brook v. James Brook v. James CullimoreCullimore

Defined: Legal action to recover personal property in the hands of another.

Process: P traditionally sought a prejudgment writ from the court requiring that D turn over immediate possession of the property to P. P was usually required to post a bond in case it later turned out D was entitled to the property. Sheriff was responsible for executing the writ if issued.

◦ Writ is a form of specific relief (although legal in nature)

◦ Originally the writ was provisional in nature◦ This is a mandatory order (not prohibitory) - doesn’t

protect against threatened dispossession◦ No irreparable injury requirement◦ Turnover effected by sheriff (no contempt power can

enforce the order)

Replevin is currently usually governed by statute.

Specific Performance = specialized form of injunction where P asks court to order D to perform her obligations under a contract.• Irreparable injury/adequacy of legal remedy is threshold issue

here too

P (Campbell) wants specific performance of a contract for delivery of carrots. What’s so unique about carrots – i.e., why is the legal remedy inadequate?

When is an item not “substantially replaceable” in the context of a request for specific performance?

Damages & specific performance are generally interchangeable in terms of providing P his/her expectancy

◦ Damages: Gives P the difference between the market ($90/ton) price & the contract ($30/ton) price.

◦ Specific Performance: Forces D to give P carrots valued by the market at $90/ton for the contract price of $30/ton.

◦ So why were the Wentz brothers so opposed to specific performance in Campbell Soup?

If damages and specific performance are usually equivalent, why don’t courts allow SP and damages interchangeably (i.e., why have an irreparable injury requirement)?

◦ Are there reasons why courts might be reluctant to order specific performance short of impossibility or “extremely-difficult-to” cover situations?

Was the land subject to the rental contract in Van Wagner unique?◦ http://vimeo.com/3002147

Why did the court refuse to grant specific performance?

Is Van Wagner’s reasoning consistent with the courts’ treatment of irreparable injury in Campbell Soup or Pardee?◦ Assume your parents’ commissioned Picasso portrait of you?

One important factor re whether P has shown irreparable injury is that damages are hard to value.

◦ This factor is a corollary to uniqueness – “That which is hard to replace is usually difficult to value.”

Just because difficulty of valuation is a consideration re irreparable injury, however, DOESN’T mean it is the only way to show irreparable injury.

What else might have caused the court to deny the injunction?