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Topic: Equitable remedy

Ads by Google      Injunction Encyclopedia - ipedia.com An injunction is an equitable remedy in the form of a court order that prohibits a party from continuing a particular activity. equitable relief to compel a person to do a specific act or acts or follow a course of conduct; though in some jurisdictions courts will not issue mandatory orders that require judicial oversight to insure compliance with the judge's order. An injunction is an equitable remedy in the form of a court order that prohibits ("enjoins" or "restrains") a party from continuing a particular activity. http://www.ipedia.com/injunction.html      Remedies Tutorial; Equitable Remedies Remedies are of two types, legal and equitable. Equitable relief is not available except when plaintiff's legal remedies are inadequate. Today, in the American legal system the distinctions between law and equity have been largely abolished and a court of general jurisdiction will usually have the power to grant both legal and equitable relief. http://www.west.net/~smith/equity.htm      SmartPedia.com - Free Online Encyclopedia - Encyclopedia Books. Equitable remedies can only be dispensed by a judge as it is a matter of law and not subjectto the intervention of the jury as trier of fact.The distinction between"legal" and "equitable" relief is an important aspect of the American legal system. Some other states have separatedivisions for legal and equitable matters in a single court. In the U.S. today, the federal courts and most state courts have combined both law andequity in the same courts, so a plaintiff can get legal and equitable relief in one proceeding. http://www.smartpedia.com/smart/browse/Equitable_remedy      John T. Blanchard, P.C. -- Rescission However, rescission is still conventionally thought to be one of the "classic" equitable remedies (along with Specific Performance and Injunction); further, nothing appears to preclude an action for Declaratory Relief (seeking a judicial declaration that a party has no "rights or obligations" under a contract because it was timely rescinded). While "rescinded" may accurately describe a contract's status (that is, extinguished and, thus, unenforceable) most authorities agree that no equitable cause of action to obtain a judicial declaration of a contract's status has existed in California since 1961 (instead, only a legal action for "restitution" remained after the statutory amendments). One generally-respected text states, "[r]escission is available as a remedy for failure to form a contract because of lack of mutual assent and for breach of a validly formed and existing contract." This comment is, however, misleading for a number of reasons. http://www.jtblaw.com/rescission.asp      Law - Equity - Contract To obtain an equitable remedy, the requesting party must prove the legal remedy is inadequate. In that situation, the equitable remedy is specific performance; the contract must be performed. When the petitioning party has no contract-law remedy because (a) no contract exists, or (b) the petitioning party has breached the related contract. http://users.ipfw.edu/vetterw/law-equity-contract.htm      What ERISA Means by "Equitable" Most damage awards in equity were and are issued to remedy equitable as opposed to legal causes of action. In refusing to remedy consequential injury under section 502(a)(2) and the linked section 409(a), the Court in Russell disapproved relief under language nearly identical to that in section 502(a)(3), the more suitable remedy provision that was not before the Court in the case. The other dimension of Great-West's case that matched up with Justice Scalia's category of "typically equitable" is that the case was brought in restitution, to remedy the unjust enrichment consequent to Knudson's behavior in dishonoring her subrogation obligation. http://www.harp.org/langbein.htm      Callery Amicus Brief Howe, 516 U.S. Although "equitable relief" is not defined in ERISA, the Supreme Court has held that, to determine whether relief is equitable, courts should look to standard texts on remedies and trusts in order to determine how the relief was characterized when the bench was divided between equity courts and law courts. Such relief is equitable not simply because a common law court of equity would have granted it, but because any relief, monetary or otherwise, in favor of a beneficiary against a fiduciary to remedy that fiduciary's own breach is and always has been equitable relief. Scott, The Law of Trusts, §199, at 203-04 and 206 (listing money payment designed to redress fiduciary breach as one of the "equitable remedies" available to a beneficiary). http://www.dol.gov/sol/media/briefs/callery-08-20-2003.htm      WeirFoulds LLP - Publications It was an equitable remedy, and courts exercising an equitable jurisdiction had the authority to grant equitable remedies to sustain and protect equitable principles. First, the defendant must have been under an equitable obligation, that is, one typically enforced by a court exercising equitable jurisdiction. An ownership interest may be more valuable to the plaintiff than compensation in money, the remedy known as "damages," especially where the property may have gone up in value or where the defendant does not have enough money to satisfy the plaintiff's claim for damages. http://www.weirfoulds.com/publications/articles/hamlet.html      Equity Transformed: Part III Courts refrain from awarding equitable remedies when "adequate" legal remedies exist because they perceive the equitable remedies as potentially more burdensome to the issuing court. This hierarchy of remedies is outdated and unhelpful; neither historical nor modern rationales for the "no adequate remedy at law" requirement justify the courts' general unwillingness to award equitable remedies in the face of "adequate" legal ones. Even if the claimant might have preferred an equitable remedy, the Chancellor would stay his hand if the common-law court's grant of money damages would protect the claimant's interests adequately. http://www.law.pitt.edu/wasserman/law5d.htm      Great-West Life & Annuity Insurance Co. v. Knudson Restitution is a legal remedy when ordered in a case at law and an equitable remedy when ordered in an equity case, and whether it is legal or equitable depends on the basis for the plaintiff’s claim and the nature of the underlying remedies sought. Thus, as courts and commentators have noted, “all the [Supreme] Court meant [in Mertens and other cases] was that restitution, in contrast to damages, is a remedy commonly ordered in equity cases and therefore an equitable remedy in a sense in which damages, though occasionally awarded in equity cases, are not.” Reich v. Thus, “restitution is a legal remedy when ordered in a case at law and an equitable remedy … when ordered in an equity case,” and whether it is legal or equitable depends on “the basis for [the plaintiff’s] claim” and the nature of the underlying remedies sought. http://www.lawmemo.com/emp/docs/us/knudson.htm      USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION IV -- EQUITABLE TOLLING OF FILING ... Equitable estoppel "presupposes that the plaintiff has discovered, or, as required by the discovery rule, should have discovered, that the defendant injured him, and denotes efforts by the defendant -- beyond the wrongdoing upon which the claim is grounded -- to prevent the plaintiff from filing a timely complaint." Cada v. The party relying on equitable tolling through fraudulent concealment has the burden of demonstrating its applicability; such an equitable remedy is narrowly applied because statutes of limitation are vital to society's welfare and are favored in the law. The Secretary noted that "[i]gnorance of the law is not sufficient to warrant equitable tolling of the limitations period", but that "equitable tolling is justified when an employer's complaint handling process causes confusion that deters a complainant from timely filing a complaint." Slip op. http://www.oalj.dol.gov/public/wblower/refrnc/edig4.htm      Jack Murray Reference, Equitable and "Conventional" Subrogation in Illinois (An Update) Equitable subrogation is a creature of chancery (a court of equity) that is utilized to prevent unjust enrichment. The appellate court also noted that Lopez was not entitled to an equitable or "vendee's" lien because he had an adequate remedy at law, i.e., an action for breach of contract (which included a request for specific performance). In the instant case, legal remedies and equity suggest that the loss should fall on the title company rather than the innocent judgment creditor." The court summarized its discussion of the equitable subrogation doctrine by saying: "Although the doctrine of equitable subrogation may be applied, this case is controlled by Coy v. http://www.firstam.com/faf/html/cust/jm-conventional.html      Equity Renewed: Abstract and Introduction Although courts typically have refrained from issuing preliminary equitable relief in actions in which the plaintiff's final remedy is at law, the reasons for this hesitancy do not obtain in this context. This Article takes issue with the law's general preference for attachment over a preliminary injunction to secure a future damages remedy, and challenges the underlying principle that preliminary equitable relief should be available only to secure a permanent equitable remedy of the same type. Thus, courts invoke the adage that equity will not intervene where the plaintiff has an "adequate remedy at law" and deny plaintiffs in such cases any kind of preliminary equitable relief. http://www.law.pitt.edu/wasserman/law4a.htm      [No title] Equitable remedies are granted in personam: In personam judgments either order a defendant to do, or refrain from doing, some act. EQUITABLE LIEN Equitable Lien Defined An equitable lien is based on the doctrine of unjust enrichment, and is the right to have a fund or specific property applied in full or in part to the payment of a particular debt. The study of judicial civil remedies is about what can actually be done for someone who has been or is about to be wronged. http://www.geocities.com/harkless25/Remediesoutlinefiretag.doc      Policy Statement on Monetary Equitable Remedies in Competition Cases Thus, although a particular illegal practice may give rise both to monetary equitable remedies and to damages under the antitrust laws, when an injured person obtains damages sufficient to erase an injury, we do not believe that equity warrants restitution to that person. The Commission will consider monetary remedies when it anticipates that other remedies are likely to fail to accomplish fully the purposes of the antitrust laws or when such a monetary remedy may provide important additional benefits. The Commission will not seek a monetary equitable remedy when there is no reasonable basis for calculating the amount of the disgorgement or restitution to be ordered. http://www.ftc.gov/os/2003/07/disgorgementfrn.htm      Pleading for Relief The court may decline equitable relief if other causes of action arguably suggest an adequate legal remedy. After informing the court of the general and specific rules that authorize equitable relief as well as other remedies, for the alleged unfair practice, misappropriation, or infringement, the memorandum must discuss the relevant substantive law as it applies to the particular business. Because statutory law specifically authorizes injunctive relief, the general rules for equitable relief are mandatory: plaintiffs must show 1) the inadequacy of the legal remedy; 2) irreparable harm; and 3) the likelihood of prevailing on the merits. http://www.judgewaddington-adr.com/articles/pleading_for_relief.htm      [No title] Increase in damages and fines – The amount of damages and fines which may be awarded in an administrative proceeding before the Fair Employment and Housing Commission has been increased from $50,000 to $150,000 per aggrieved person per respondent. Training as a remedy – The FEHA now includes the training of personnel as an equitable remedy. http://www.professionalchef.com/BackofHouse/LegalHotline/LegalHotline_1.htm      [No title] Subdivision 3a, for example, specifically grants authority for plaintiffs to "receive other equitable relief as determined by the court." In view of this authority, defendants are in essence requesting that this Court amend the relevant statutes, ignore equitable principles, and foreclose remedial options for fear that the Court might abuse its discretion after trial. Nevertheless, the Supreme Court concluded that it was "readily apparent" that once a trial court's equitable jurisdiction was invoked, "a decree compelling one to disgorge profits, rents or property acquired in violation" of the statute was proper. Indeed, once a court sits in equity jurisdiction, the full range of equitable relief is available. http://stic.neu.edu/mn/1615.doc      [No title] Can’t get equitable remedy unless legal remedy in inadequate. Whether remedy sought is legal or equitable in nature. Courts in Equity Concerned with fraud in consideration (inducement), you get an equitable remedy. http://www.sjulaw.com/outlines/remedies1.doc      EQUITABLE REMEDIES Courts have found state law equitable lien rights based on state mechanic’s lien laws or based on state statutes for criminal liability for failure to pay subcontractors. It may not be a coincidence, however, that most of these cases are in federal court, in which a federal judge is required to review state law to find the equitable lien right. Many of these private project equitable lien cases indicate that the equitable lien must be based on the state law involved. http://www.fullertonlaw.com/EqutiableLienWebReady.htm      No. 01-1067: United States v. White Mountain Apache Tribe - Petition Referencing a secondary source that summarized sections 188, 189 and 195 of the Restatement (First) of Property (1936), the court observed that "[t]he law on 'permissive waste' provides that the appropriate remedy for permissive waste is generally an injunction," an equitable remedy that the Court of Federal Claims lacks jurisdiction to award. The court also rejected the Tribe's argument that, even if the government had no fiduciary obligation to maintain the property for the benefit of the Tribe, the government was liable for its failure to prevent deterioration of the property under a "permissive waste" theory, by analogy to property law. For example, in Mitchell II, the Court relied upon the Restatement (Second) of Trusts and secondary authorities to inform its discussion of the remedies available to beneficiaries for a trustee's breach of its obligations. http://www.usdoj.gov/osg/briefs/2001/2pet/7pet/2001-1067.pet.aa.html      87005 -- Liggatt v. Employers Mut. Casualty Co. -- Davis -- Kansas Supreme Court Contract reformation is an equitable remedy available to correct mutual mistakes of fact or fraud. Its function is to enforce the contract as made. A reformation occurs when a court determines an instrument does not reflect the terms intended by the parties to it and then revises the terms written in the instrument to reflect the intent of the parties. http://www.kscourts.org/kscases/supct/2002/20020531/87005.htm      Plan's Case Against Participant's COBRA Fraud Not Preempted by ERISA After a district court trial, the court ruled that ERISA section 502(a)(3) provided only equitable relief and such relief was not available in this case because Biondi did not directly receive any of the payments made on his ex-wife's behalf. But plan fiduciaries have no equitable remedy against the participant under ERISA. The trustees sought to recover from Biondi the more than $100,000 in claims paid for Hazel, attorneys' fees, costs, and $50,000 in punitive damages. http://www.benefitslink.com/articles/washbull021021.shtml      Corporate Law that as the petitioner and the company had business dealings for a long time, if some amount remained unpaid or outstanding, an effective remedy was available under Order 37 of the Code of Civil Procedure, 1908 for which court fee was to be paid. From the fact of the filing of the winding up petition, it was seen that it was an attempt on the part of the petitioner to recover the outstanding amount from the company at the threat of winding up thereof, without paying the court fees; which could not be permitted. On a petition by the petitioner to wind up the company upon its inability to pay debts: http://www.citcindia.org/corpolaw.htm      Quia - Legal Terminology: Civil Procedure, Limitations, Remedies Quia - Legal Terminology: Civil Procedure, Limitations, Remedies Review of Pertinent Terms from Chapters 4, 6, and 7 of Schubert's Introduction to Law and the Legal System See a list of terms used in these activities. http://www.quia.com/jg/71220.html      IN THE MATTER OF DES MARKET SHARE LITIGATION - Legal Case Documents Because causation and damages would be tried to a jury in the main action, the court CourtCode: AP, CourtName: NEW YORK COURT OF APPEALS, State: NEW YORK, UniqueCaseRef: NE>AP>079_0299, Market, Des, Hymowitz, Drug, Manufacturer, York, Matter, Ny2d, Common-law Doctrines, Relief, Consolidating, Constitution, Common Law, Pregnancy, Erie County, Equitable Remedy, Wachtler, Causation, Money Damages, Heretofore, Fda, Injuries, Guaranteeing, Language, Products Liability, Causation Requirement, ContentID: 120248876 Under the circumstances, this is an equitable way to provide plaintiffs with the relief they http://www.legalcasedocs.com/120/248/876.html      CATHOLIC ENCYCLOPEDIA: Portugal Denis, though so generally favourable to the Church, employed a more equitable remedy by prohibiting, in 1286, the purchase of real estate by clerics, but this and a stricter law of 1291 were found too severe and had to be modified. The bishops too often abused their immunities, they admitted men to orders who were only anxious to evade military service, and sometimes to avoid answering to the secular courts for their crimes. The pope remedied these evils, but the Government failed to repress those which were charged against it. http://www.newadvent.org/cathen/12297a.htm      Divorce Attorneys Garcia & Gonzales Denver, Colorado Lawyers This required statement is called an "Affidavit of Financial Affairs." Property of the marriage is to be divided "equitably." In most, but not all cases, this means equally. The court requires each spouse to complete a sworn statement of financial conditions before it will approve a financial agreement or determine appropriate orders in each case. Parental responsibility and parenting time arrangements for children are to be established in their "best interests." Child support is almost always determined by using Colorado's Child Support Guidelines based upon the combined incomes of the parents and certain expenses such as health insurance and work and education related day care. http://www.ggattorneys.com/divorce.htm      ONRC Proposes Equitable Alternative to proposed Klamath Land-for-Water Deal "An equitable remedy to this injustice requires an open public process, not closed meetings and back-room deals," said Jim McCarthy, Policy Analyst for ONRC. Conservationists presented their plan as an alternative to a back-room effort spearheaded by the Bush administration which would transfer a Rhode Island-sized swath of Winema and Fremont National Forest to the Tribes in return for an agreement that the tribes will not pursue their claim on certain water rights. For maps, press, and other documents see ONRC's http://www.onrc.org/press/076.landtransfer.html      GENENCOR INTERNATIONAL v NOVO NORDISK - Legal Case Documents IN THE COURT OF CHANCERY OF THE STATE OF D ill ?I! $ j$j IN AND FOR NEW CASTLE COUNTY GENENCOR INTERNATIONAL, INC., a Delaware corporation, Plaintiff, V. No. 17054-NC NOVO NORDISK A/S, FILED UNDER SEAL Defendant. GENENCORS OPENING BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT NOVO GENENCOR UNPUBLISHED PATENT WARRANTY AGREEMENT COURT SETTLEMENT BREACH LICENSE REPRESENTATION DISCLOSE FACTS PROTEASE OMITTED PATENT DEFENDANTS ASSERTING PLAINTIFFS PLA SUMMARY JUDGMENT PATENT FAMILIES SELECTION MECHANISM UNITED STATES INADVERTENT OMISSION EQUITABLE REMEDY CONFIDENTIALITY AMENDED COMPLAINT AMP CONFIDENTIALITY PROVISION CARDIOVASCULAR DIAQNOSTICS http://www.legalcasedocs.com/120/240/886.html

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