Remedies

Spring 2015
Chapter 4 Injunctions
Prof. George W. Conk
gconk@law.fordham.edu
Room 8-122
212-636-7446
Adjunct Professor of Law &
Senior Fellow
Stein Center for Law & Ethics
Ch. 4 Injunctions

Types of cases amenable to injunctive relief

Classic prohibitions/mandates
recurrent trespass
Nuisance abatement
Pulp infringing material in copyright
cases
Infringement in patent and copyright
cases
unfair competition
trademark infringemnt
Specific enforcement of contracts of
sale of real estate or sale of unique
goods
Ch. 4 Injunctions

Types of cases amenable to injunctive relief

Employment Law
labor disputes (illegal strikes,
unfair labor practices)
cease discriminatory practices
reinstate an employee wrongly
denied a promotion

Ch. 4 Injunctions

Types of cases amenable to injunctive relief

Civil liberties/fair trial

Permit or limit picketing/marches
enjoin enforcement of
unconstitutional statute
enjoin a bad faith prosecution or
civil proceeding
(Dombrowski, Younger, Pennzoil)
enjoin a trial in an unfair forum
(Garden State Bar Association)
Ch. 4 Injunctions

Types of cases amenable to injunctive relief

Structural Injunctions
Desegregate a school (Brown,
School busing)
Racial gerrymandering legislative
redistricting (Baker v. Carr)
Restructure the financing of a
school system (Abbott v. Burke,
Campaign for Fiscal Equity)

Ch. 4 Injunctions

Standards for injunctive

relief
Precedent, Rules, Statutes
Chancery vs. Law Courts
FRCP 65
CPLR Art. 63
Ch. 4 Injunctions

F.R.C.P. 65 - Injunctions

Plaintiffs must show:

(1) that unless the restraining order issues,
they will suffer irreparable harm;
(2) that the hardship they will suffer absent
the order outweighs any hardship the
defendants would suffer if the order were to
issue;
(3) that they are likely to succeed on the
merits of their claims;
(4) that the issuance of the order will cause no
substantial harm to the public; and
(5) that they have no adequate remedy at law.
Ch. 4 Injunctions

F.R.C.P. 65 - Injunctions

(a) Preliminary Injunction.

(1) Notice. The court may issue a

preliminary injunction only on
notice to the adverse party.

(2) Consolidating the Hearing with

the Trial on the Merits.

Ch. 4 Injunctions

F.R.C.P. 65 - Injunctions

Before or after beginning a

hearing on a motion for a
preliminary injunction, the court
may advance the trial on the
merits and consolidate it with the
hearing.
Evidence that is received on the
motion and that would be
admissible at trial becomes part of
the trial record and need not be
repeated at trial.
The court must preserve any
Ch. 4 Injunctions

F.R.C.P. 65 (b) Temporary Restraining Order.

(1) Issuing Without Notice. The court

may issue a temporary restraining order
without written or oral notice to the
adverse party or its attorney only if:
(A) specific facts in an affidavit or a
verified complaint clearly show that
immediate and irreparable injury, loss,
or damage will result to the movant
before the adverse party can be heard
in opposition; and
(B) the movant's attorney certifies in
writing any efforts made to give notice
and the reasons why it should not be
Ch. 4 Injunctions
10
required.

F.R.C.P. 65 - Injunctions

(2) Every TRO issued without notice

must - state the date and hour it was
issued
- describe the injury and state why it is
irreparable
- state why the order was issued
without notice
The order expires at the time after
entry--not to exceed 10 days--that the
court sets, unless before that time the
court, for good cause, extends it for a
like period or the adverse party
consents to a longer extension.
The reasons Ch.
for
an extension must
be
4 Injunctions
11

F.R.C.P. 65 Temporary Restraining Orders

(3) Expediting the PreliminaryInjunction Hearing.

If the order is issued without
notice, the motion for a
preliminary injunction must be set
for hearing at the earliest possible
time
At the hearing, the party who
obtained the order must proceed
with the motion; if the party does
not, the court must dissolve the
order.
Ch. 4 Injunctions

12

F.R.C.P. 65 - Injunctions

(4) Motion to Dissolve. On 2 days'

notice to the party who obtained
the order without notice--or on
shorter notice set by the court--the
adverse party may appear and
move to dissolve or modify the
order.
The court must then hear and
decide the motion as promptly as
justice requires.
Ch. 4 Injunctions

13

F.R.C.P. 65 - Injunctions

c) Security. The court may issue a

preliminary injunction or a
temporary restraining order only if
the movant gives security in an
amount that the court considers
proper to pay the costs and
damages sustained by any party
found to have been wrongfully
enjoined or restrained.
The United States, its officers, and
its agencies are not required to
give security.
Ch. 4 Injunctions

14

F.R.C.P. 65 - Injunctions

(d) Contents and Scope

(1) Contents. Every order granting
an injunction and every restraining
order must:
(A) state the reasons why it
issued;
(B) state its terms specifically; and
(C) describe in reasonable detail-and not by referring to the
complaint or other document--the
act or acts restrained or required.
Ch. 4 Injunctions

15

Hughes v. Cristofane, (D MD 1980) p. 174

Why does the court grant a TRO?
How does plaintiff meet the five FRCP
65 factors?
What is the purpose of the security
bond?
Why $500?
What will happen at the preliminary
injunction hearing?
Why not file suit in state court?
Why not grant Younger extension
Ch. 4 Injunctions

16

TRO Hughes v. Cristofane

(2) that effective immediately,

defendants Mayor and Councilmen of
the Town of Bladensburg and their
agents be, and the same hereby are
Restrained from enforcing Ordinance 380 of the Town of Bladensburg for a
period of ten days from the date of this
Order

Why ten days?

Ch. 4 Injunctions

17

Order Hughes v. Cristofane

(3) that plaintiffs give security by

filing forthwith a bond in the sum
of $ 500.00 for the payment of
such costs and damages as may be
incurred or suffered by defendants
if found to be wrongfully enjoined
or restrained;
(4) that this matter be heard on
plaintiffs' request for preliminary
injunction at 4:30 p.m. on Monday,
March 3, 1980
Ch. 4 Injunctions

18

Abstention

The initial question for a federal court

confronted with a challenge to the
constitutionality of a state or municipal
ordinance is whether considerations of
comity and federalism require the court
to abstain from deciding the matter
until an appropriate state court has had

an opportunity to resolve the dispute.

Younger v. Harris, 401 U.S. 37 (1971)
Ch. 4 Injunctions

19

Abstention

None of the three plaintiffs is presently

involved in a state court proceeding of
any kind.
The plaintiffs have satisfied the court
that the threat of their being
prosecuted under Ordinance 3-80 is
substantial and immediate.
Three of the dancers employed by the
plaintiffs have already been arrested
under the new law
Since the last arrest on February 14th,
the police have visited the plaintiffs'
restaurant at least once a day.
Ch. 4 Injunctions

20

Hughes v. Cristofane
486 F. Supp. 541, 543-544 (D. Md. 1980)

Application of the Five Factors

The plaintiffs have satisfied each of the Rule
65 prerequisites.
If a restraining order did not issue, the owners
of the Three Captains Restaurant would suffer
irreparable harm both to their financial
interests and to their interest in the free
exercise of constitutional rights.

The plaintiffs have also satisfied the court that

they have no adequate remedy at law. If the
status quo is not preserved, the passage of
time required to litigate the plaintiffs' claims
will work the irreparable injury the plaintiffs
have described.
Ch. 4 Injunctions
21

Hughes v. Cristofane
486 F. Supp. 541, 543-544 (D. Md. 1980)

Nothing in this opinion or in the

order should be deemed to affect
any state proceedings stemming
from enforcement of the ordinance
prior to today's date.

Ch. 4 Injunctions

22

Winter v. NRDC (US 2008) p. 180

FRCP 65 refers to likelihood of

success on the merits and
irreparable harm
The District Court said the
possibility or irreparable harm
suffices.
CJ Roberts rejects that. Why?
What harm does the Navy show to
counter that alleged by plaintiffs who
seek only a stay pending an
Ch. 4 Injunctions

23

Winter v. NRDC (2008) p. 180

Ps obtain restraints pending Navy

filing Environmental Impact
Statement
No sonar w/i 2,200 yard of marine
mammal
What must Ps show?
President Theodore Roosevelt
explained that the only way in which
a navy can ever be made efficient is
by practice at sea, under all the
conditions which would have to be
Ch. 4 Injunctions

24

Clinton v. Nagy, 411 F. Supp. 1396 (ND

OH 1974) p. 187

What is the irreparable harm

that Brenda Clinton would suffer
if an injunction is not granted
permitting her to try out for a
football team?

Is the order too narrow?

Ch. 4 Injunctions

25

Washington Capitols v. Barry (N.D. Cal.

1969) p.191

Franchise player Rick Barry seeks to

jump to Golden State Warriors
Is the 13th Amendments bar on
involuntary servitude implicated?

Ch. 4 Injunctions

26

Washington Capitols Basketball Club, Inc. v.

Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 191

Plaintiff seeks a preliminary

injunction to enjoin Barry from
playing professional basketball
with any team other than plaintiff
The grant or refusal of injunctive
relief is a matter of equitable
jurisdiction
The purpose of the preliminary
injunction maintain the status quo
between the litigants pending final
determination of the case is to.
Ch. 4 Injunctions

27

Washington Capitols Basketball Club, Inc. v.

Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 155

For plaintiff to succeed it must

show at least first, a reasonable
probability of success in the main
action and second, that irreparable
damage would result from a denial
of the motion

Ch. 4 Injunctions

28

Washington Capitols Basketball Club, Inc. v.

Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 155

A. The Status Quo

The status quo is the last, peaceable,
uncontested status between the parties
which preceded the present controversy.
***
The status quo of the parties to the
action was that peaceable state of
affairs existing when Barry was under
contract to Oaks and, prior to his injury,
playing professional basketball for that
Ch. 4 Injunctions
29
team during the
1968-69 season.

Washington Capitols Basketball Club, Inc. v.

Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 132

Irreparable harm

Irreparable injury is that which

cannot be compensated by the
award of money damages; it is
injury which is certain and great.
Such injury exists when an athletic
team is denied the services of an
irreplaceable athlete. Barry is just
such an irreplaceable athlete.
Ch. 4 Injunctions

30

Washington Capitols Basketball Club, Inc. v.

Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 191

Weighing the Equities

No matter which side prevails on
the merits in this controversy, it is
indisputable that the other side
may suffer substantial harm.
"In determining whether to grant a
preliminary injunction it is proper
for a court to 'weigh the equities'
and 'balance the hardships.'"
Ch. 4 Injunctions

31

Washington Capitols Basketball Club, Inc. v.

Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 191

Although the consequences of this

determination may result in the
departure of Barry from the San
Francisco Bay Area to his claimed
detriment, equitable considerations
constrain this Court to sign this day the
proposed findings of fact, conclusions of
law, and order granting to plaintiff a
preliminary injunction.
Any relief granted herein is without
prejudice to defendant Barry's right to
seek damages for any loss he may suffer
and prove legally
during the existence
of
Ch. 4 Injunctions
32

American Hospital Supply Corp. v. Hospital Products,

Ltd., 780 F.2d 589 (7th Cir. 1986) p. 196

A district judge must choose the

course of action that will minimize
the costs of being mistaken.
Because he is forced to act on an
incomplete record, the danger of a
mistake is substantial. And a
mistake can be costly.

Ch. 4 Injunctions

33

American Hospital Supply Corp. v. Hospital Products,

Ltd., 780 F.2d 589 (7th Cir. 1986)

If the harm to the plaintiff if the

injunction is denied, multiplied by
the probability that the plaintiff
will lose exceeds the harm to
defendant if the injunction is
granted the injunction should not
be granted.
Ch. 4 Injunctions

34

American Hospital Supply Corp. v. Hospital Products,

Ltd., 780 F.2d 589 (7th Cir. 1986)

These mistakes can be compared,

and the one likely to be less costly
can be selected, with the help of a
simple formula, grant the preliminary
injunction if but only if P x Hp > (1-P)
x Hd from the assumption that Hp =
Hd
Is he serious?

Ch. 4 Injunctions

35

American Hospital Supply Corp. v. Hospital Products,

Ltd., 780 F.2d 589 (7th Cir. 1986)

The left-hand side of the formula is

simply the probability of an
erroneous denial weighted by the
cost of denial to the plaintiff, and the
right-hand side simply the probability
of an erroneous grant weighted by
the cost of grant to the defendant.

Ch. 4 Injunctions

36

American Hospital Supply Corp. v. Hospital Products,

Ltd., 780 F.2d 589 (7th Cir. 1986)

The familiar four (sometimes five or six)

factor test that courts use in deciding
whether to grant a preliminary
injunction.
- whether the plaintiff will be irreparably
harmed if the preliminary injunction is
denied
- sometimes also whether the plaintiff
has an adequate remedy at law
- whether the harm to the plaintiff if
the preliminary injunction is denied will
Ch. 4 Injunctions

37

American Hospital Supply Corp. v. Hospital Products,

Ltd., 780 F.2d 589 (7th Cir. 1986)

- whether the plaintiff is reasonably

likely to prevail at trial, and
- whether the public interest will be
affected by granting or denying the
injunction (i.e.,
- whether third parties will be harmed -and these harms can then be added to
Hp or Hd as the case may be).

Ch. 4 Injunctions

38

Swygert, dissenting

Equity, as the majority concedes,

involves the assessment of
factors that cannot be
quantified.

A court must to some extent, the

majority concedes, rely on the
"feel" of the case.
Ch. 4 Injunctions

39

Swygert, dissenting

The majority never attempts to

assign a numerical value to the
variables of its own formula.
We are never told how to
measure P or Hp or Hd.
The majority appears to concede,
that a numerical value could
never be assigned to these
variables.
Ch. 4 Injunctions

40

Swygert, dissenting

Judges asked to issue a preliminary

injunction must, in large part, rely
on their own judgment, not on
mathematical quanta.

Ch. 4 Injunctions

41

The Hearing
Requirement
Extraordinary relief:
Mandamus
Ex Parte Temporary
Restraining Order (TRO)
Ch. 4 Injunctions

42

Temporary, Preliminary, and Permanent

relief

TRO Temporary restraining order

- ex parte (defendant cant be
trusted or reached)
- on notice
Preliminary Injunction
- bond or other security conditions
Permanent injunction
- may be combined with damages
and other remedies
Ch. 4 Injunctions

43

Ex parte relief

Immediate and irreparable

harm will occur before hearing

Preserve the status

quo/subject matter of the
courts jurisdiction

Notice is impractical

Notice would cause loss of

Ch. 4 Injunctions

44

Ex parte relief the TRO

In re Vuitton Et Fils S.A. p. 207
606 F.2d 1(2d Cir. 1979)

On petition for a writ of mandamus to

enter an ex parte TRO
Vuitton states:
Vuitton's experience, based upon the
84 actions it has brought and the
hundreds of other investigations it has
made . . . has led to the conclusion
that there exist various closely-knit
distribution networks for counterfeit
Vuitton products.
Ch. 4 Injunctions

45

Ex parte TRO

The ex parte temporary

restraining order is
indispensable to the
commencement of an action
when it is the sole method of
preserving a state of affairs in
which the court can provide
effective final relief.
Ch. 4 Injunctions

46

Ex parte TRO

Immediate action is vital if there is risk

of:
- imminent destruction of the disputed
property
-removal beyond the confines of the
state, or
- sale to an innocent third party
If giving the defendant notice of the
application for an injunction could
result in an inability to provide any
relief at all an order may be issued to
Ch. 4 Injunctions

47

Problem 1 Labor Strife p. 209

Strikers disrupting plant access,

ignore company demands to cease &
desist

Why is this in state court?

What would the employer have to
show to get an ex parte TRO?
Ch. 4 Injunctions

48

Injunction Act (Ill. Rev. Stat. 1975, ch. 69,

par. 3 -- 1).

"No [TRO] shall be granted without notice

to the adverse party unless it clearly
appears from specific facts shown by
affidavit or by the verified complaint that
immediate and irreparable injury, loss, or
damage will result to the applicant before
notice can be served and a hearing had
thereon.
Every temporary restraining order granted
without notice * * * shall define the injury
and state why it is irreparable and why the
order was granted without notice * * *."
Ch. 4 Injunctions

49

American Can v. Mansukhani, p. 210

The ex parte order enjoined

defendants from selling jet inks of
any type, including defendants' SK2914 and SK-2916 jet inks, to any of
plaintiff's customers, previously
serviced by Mansukhani when he was
employed by plaintiff
What was the defect in the courts
order?
What would have cured it?
Does Mansukhani have a remedy?
Ch. 4 Injunctions

50

American Can v. Mansukhani

Where there are no practical obstacles

to giving notice to the adverse party, an
ex parte order is justified only if there
is no less drastic means for protecting
the plaintiff's interests.

What would have been a better course

for the court below?
Ch. 4 Injunctions

51

American Can v. Mansukhani

Such an order could have instructed

defendants not to disturb their
inventory or to secrete documents
pending the hearing
Plaintiff must show, in effect, that the
defendants would have disregarded a
clear and direct order from the court to
preserve the inks and documents for a
few hours until a hearing could have
been held.
Ch. 4 Injunctions

52

Appeals

TROs not subject to immediate right

of appeal
Grants, continuing, modifying, or
refusing injunctions are subject to
right of immediate appeal 28 USC
1291
Why?
Ch. 4 Injunctions

53

Marquette v. Marquette, p. 215

Why should an ex parte order

barring visitation with ones
child be granted so readily?

Is this right likely to be abused

in practice?

Ch. 4 Injunctions

54

Persons bound, p. 217

Agents
Aiders and abettors
Acting in concert
Persons with knowledge of the
decree
Successors in interest
Those in contact with the `res
Class members
Ch. 4 Injunctions

55

Notice

ACTUAL Notice is required

FRCP 65 (d)
Mutuality of purpose is not
enough!

Ch. 4 Injunctions

56

Planned Parenthood v. Garibaldi,

p. 218

Operation Rescue organized and

coordinated regular protests at the
clinic.
- "several 'very large . . . blockades'
of more than 100 protestors [that]
resulted in the clinic's temporary
closure.
- 'rows of people blocked all the
doors' to the clinic.
Is actual notice, agency,
employment or acting in concert too
Ch. 4 Injunctions

57

Planned Parenthood v. Garibaldi

Personal jurisdiction and notice are not

enough

The Order must be directed against

that person as an individual or as
member of a class to which that
individual belongs
Ch. 4 Injunctions

58

SUNY v. Denton p. 223

Injunction aimed at students
barred disruption and
interference

45 Faculty entered Presidents

office and refused to leave

Isnt that acting in concert ?

Was the court too lenient in
dismissing the contempt
Ch. 4 Injunctions

59

Dalton v. Meister (WI 1978), p. 225

District Court had power in school

desegregation case to protect its
ability to render a binding judgment
between the original partiesby
issuing an interim ex parte order
against an undefinable class of
persons.
Willful violation by a person with
notice constitutes criminal
contempt.
Ch. 4 Injunctions

60

Dalton v. Meister (WI 1978)

A nonparty may be held in contempt

for violating an injunction if he is in
privity with a party or subject to his
control if he is acting in concert with
a party, or if he aids and abets a

party in violating an injunction.

Is that constitutionally sufficient
notice?
Ch. 4 Injunctions

61

Golden State Bottling v. NLRB, p. 231

Although All American was a bona

fide purchaser of the business,
unconnected with Golden State, the
Board found that, having acquired
the business with knowledge of the
outstanding Board order, All
American was a "successor" for
purposes of the National Labor
Relations Act and liable for the
reinstatement of Baker with backpay
If equity is in personam why isnt All
Ch. 4 Injunctions

62

Cape May & Schellengers Landing RR

Co. v. Johnson (Ch. 1882) p. 235

Notice to City Council by telegraph

sufficient to support contempt
conviction
Notice, to be sufficient, need
possess but two requisites--first, it
must proceed from a source entitled
to credit; and second, it must inform
the defendant clearly and plainly
from whatact he must abstain.
Can notice by email, tweet, text
Ch. 4 Injunctions

63

Midland Steel v. Intl Union, p. 238

appellants knowledge of the

two picket limit, as
demonstrated by their
compliance with that limit, raises
an inference that they (actually)
knew of the other limits in the
TRO.

Justice Douglas says presumption

Ch. 4 Injunctions

64

Vermont Womens Health Ctr. V.

Operation Rescue p. 241

Why are the protesters afforded

an opportunity to leave without
arrest?

Ch. 4 Injunctions

65

Vermont Womens Health Ctr. V.

Operation Rescue, p. 241

TRO, damages, attorneys fees,

prospective coercive fines

Elements for enforcement:

Act in concert

Order specific and unambiguous

Actual knowledge of mandate

Ch. 4 Injunctions

66

Vermont Womens Health Ctr. V.

Operation Rescue

Standard of review: is there

substantial credible evidence to
support the finding that each
defendant knew of the terms

What did police do to sufficiently

inform the protesters of the
Order?

Ch. 4 Injunctions

67

The Bond Requirement

FRCP 65(c)

Ch. 4 Injunctions

68

F.R.C.P. 65 - Injunctions

c) Security. The court may issue a

preliminary injunction or a
temporary restraining order only if
the movant gives security in an
amount that the court considers
proper to pay the costs and
damages sustained by any party
found to have been wrongfully
enjoined or restrained.
Does this unreasonably burden the
right to seek redress of grievances?
Ch. 4 Injunctions

69

Security, surety, insurance

Security: asset pledged to satisfy a

contingent obligation
Obligee: one owed money or service
Principal: one who owes money or
performance
Surety: one who stands in the shoes
of the obligor toward the obligee
Insurance: a contract obtained by a
contingent obligor to indemnify the
obligor for a specified type of liability
Ch. 4 Injunctions

70

Damages for wrongful injunction

a party injured by issuance of

an injunction later determined to
be erroneous has no action for
damages in the absence of a

bond
WR Grace & Co. v. Local 759 (U.S.
1983)
Ch. 4 Injunctions

71

Nintendo v. Galoob (9 Cir. 1994) p. 243

Nintendo gets Preliminary Injunction,

later loses
De novo review of decision to
execute a bond
Galoob was unlawfully enjoined
Damages presumed
Damages to be compensatory must
be reasonably certain
Ch. 4 Injunctions

72

Coyne-Delany Co. v. Capital Dev. Bd.,

717 F.2d 385, 393 (7th Cir. Ill. 1983) p. 247

The bond is the limit of the

damages the defendant can
obtain for a wrongful injunction,
even from the plaintiff, provided
the plaintiff was acting in good
faith.

Why recognize such a limit?

Ch. 4 Injunctions

73

Smith v. Coronado, p. 251

Arizona (1977)
Should we have a different rule on
damages if an order is reversed or
vacated if it was obtained ex parte?

Even though 10 days is the limit and

it can be dissolved on short notice?

How can courts set reasonable sums

for injunction bonds?
Ch. 4 Injunctions

74

Continuum Co. v. Incepts, Inc., 873 F.2d 80

1, 803 (5th Cir. Tex. 1989)
Bond requirement:
1) assures enjoined party it can
collect damages
2) notifies good faith plaintiff of
the maximum extent of its
potential liability
What interests are protected by
such a rule?
Ch. 4 Injunctions

75

Continuum obtained injunction against

Incepts, p. 253

Bond in favor of Incepts increased

after 11 day hearing from $200K to
$2M
Continuum $2.5M annual profit
$2M bond would impose great
hardship
Bond reqt reduced but Continuum
must file an undertaking that the
amount of the bond will not limit the
amount of damages for which it
might be liable.
Ch. 4 Injunctions

76

Permanent Injunctions
A discretionary power

Ch. 4 Injunctions

77

Framing the Injunction

FRCP Rule 65 (d) (1) Contents.

Every order granting an injunction
and every restraining order must:
(A) state the reasons why it
issued;
(B) state its terms specifically; and
(C) describe in reasonable detail-and not by referring to the
complaint or other document--the
act or acts restrained or required.
Ch. 4 Injunctions

78

Ebay v. MercExchange (U.S. 2006) p.

256

Court of Appeals for the Federal

Circuit states categorical rule:
injunction shall be issued in patent
cases after liability determined
Reversed
Patent Act says injunctions may
issue in accordance with the
principles of equity
Four factor test must be used
Ch. 4 Injunctions

79

Ebay v. MercExchange (U.S. 2006)

Kennedy, Stevens, Souter & Breyer

Concurring but would be skeptical of
injunction applications by patent
trolls
An industry has developed in which
firms use patents not to sell and
produce goods, but primarily for the
purpose of obtaining licensing fees.
Why should injunctions be viewed
skeptically in such cases?
Ch. 4 Injunctions

80

Walgreen v. Sara Creek (7 Cir. 1992) p. 261

Permanent injunction enforced lease

Damages are the norm but
Striking a balance of costs and
alternatives is for the trial judge
subject to deferential appellate
review
Proponents burden is to show that
damages are inadequate
Injunction compels parties to
negotiate
Ch. 4 Injunctions

81

Weinberger v. Romero (1982) p. 267

Clean Water Act 33 USC 1251 (3)

it is the national policy that the
discharge of toxic pollutants in toxic
amounts be prohibited.

Surely that includes detonation of high

explosives off the shore of Vieques a
resort island. Why does the court
allow judges to make exceptions
to what Congress has prohibited?
Ch. 4 Injunctions

82

Framing the injunction

FRCP 65
Set forth reasons for issuance
Specificity in terms
Describe in reasonable detail the
acts to be restrained
What are the policies behind
these requirements?
Ch. 4 Injunctions

83

Murray v. Lawson, 136 N.J. 32(N.J. 1994) p. 271

ORDERED that the defendants and all persons

and organizations associated with or acting in
concert or combination with them be ENJOINED
and RESTRAINED as follows:
1. From gathering, parading, patrolling for the
purpose of demonstrating or picketing within
the immediate vicinity of plaintiffs' residence *
* *.
2. Distributing flyers to plaintiffs' neighbors
which contain references to [Dr. Boffard] as
being a murderer or killer or his practice as
involving murder or killing or which contains
any other inflammatory language or which sets
forth the plaintiffs' home address.
Ch. 4 Injunctions
3. Carrying placards
which contain 84depictions

Murray v. Lawson (N.J. 1994)

Your husband is a murderer

Dr. Boffard lives on a one lane

dead-end street with only two
houses on it.
The injunction banned gathering
in the immediate vicinity.

Whats wrong with that?

Ch. 4 Injunctions

85

Murray v. Lawson (N.J. 1994)

The Chancery Division has great

flexibility in defining the scope of
the ban; the court could, for
example,

- preclude picketing on plaintiffs'

street
- prohibit that activity
- within a specific number of feet
from,
- within sight distance of or

Ch. 4 Injunctions

86

Reno Air Racing v. McCord (9 Cir.

2006) p. 275

confusingly similar

Ch. 4 Injunctions

87

Kilgrow v. Kilgrow (ALA 1958) p. 279

the judicial mind and conscience is

repelled by the thought of disruption
of the sacred marital relationship

There was an ante-nuptial

agreement. Why not just enforce it?

Ch. 4 Injunctions

88

Peggy Lawton Kitchens v. Hogan (1989) p. 282

Hogan enjoined from making,

baking, and selling chocolate chip
cookies that use or utilize Peggy
Lawtons[secret] formula
Hogan dropped nut meal and added
a small amount of vanilla extract.
The patent doctrine of `substantial
equivalence extends protection to
imitators who make minor changes.
Why not use that idea here to hold
Hogan in contempt?
Ch. 4 Injunctions

89

Mass. Gen. Laws, ch. 266, 120E(b)

No person shall knowingly enter or

remain on a public way or sidewalk
adjacent to a reproductive health care
facility within a radius of 35 feet of any
portion of an entrance, exit or driveway
or within the area within a rectangle
created by extending the outside
boundaries of any entrance, exit or
driveway of a reproductive health care
facility in straight lines to the point where
such lines intersect the sideline of the
street in front of such entrance, exit or
driveway.
Ch. 4 Injunctions

90

McCullen v. Coakley (U.S. 2014)

How does the Mass. statute differ

from the Madsen restraints?
Should a patient have more rights
than a worker crossing a union picket
line?
Is Posner right that there is an
unreasonable interference by
intermeddlers?
Or is Scalia right to emphasize the
peaceful nature of the plaintiffs
entreaties?
Ch. 4 Injunctions

91

Madsen v. Womens Health Center

(U.S. 1994) p. 285

There are three approaches:

Rehnquist (majority)

Stevens

Scalia

Which approach of the three do

you think is best?
Ch. 4 Injunctions

92

Madsen v. Womens Health Ctr., (U.S.

1994)

Majority

Whether by statute or ordinance

content neutral restrictions on

picketing, etc. must be narrowly
tailored to serve a significant
governmental interest.
Ch. 4 Injunctions

93

Madsen,

[W]hen evaluating a contentneutral injunction, we think that

our standard time, place, and
manner analysis is not
sufficiently rigorous. We must
ask instead whether the
challenged provisions of the
injunction burden no more
speech than necessary to serve a
significant government interest.
36-foot buffer zone meets that
Ch. 4 Injunctions

94

Statutes and Injunctions

Justice Stevens: review of an

injunction is more lenient than of
a statute.
A 36 foot exclusion zone via
statute would violate the
constitution but not an
injunction providing the same.
How are they different?
Should they be treated
differently?
Ch. 4 Injunctions

95

Justice Scalia : strict scrutiny

an injunction restricting speech

must be no more restrictive
thannecessary to serve a
compelling state interest and
narrowly drawn to achieve that
end.
This order is really contentbased
Scalia thinks an injunction is more
dangerous than a statute.
Ch. 4 Injunctions

96

Strict scrutiny of injunctions?

Justice Scalia :
The court could have ordered:
Stay out of the street
- limit number demonstrators on
clinic side
- forbidden walking on driveway
P. 252

Ch. 4 Injunctions

97

Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)

The amended injunction prohibits

petitioners from engaging in the
following acts:

(1) At all times on all days, from

entering the premises and property of
the Aware Woman Center for Choice
[the Melbourne clinic] . . . .
"(2) At all times on all days, from
blocking, impeding, inhibiting, or in
any other manner obstructing or
interfering with access to, ingress into
and egress from any building or
parking lot of
the Clinic.
Ch. 4 Injunctions
98

Madsen v. Women's Health Ctr., 512 U.S. 753 (1994

"(3) At all times on all days, from

congregating, picketing,
patrolling, demonstrating or
entering that portion of public
right-of-way or private property
within [36] feet of the property
line of the Clinic . . . . An
exception to the 36 foot buffer
zone is the area immediately
adjacent to the Clinic on the
east . . . . The [petitioners] . . .
must remain at least [5] feet
Ch. 4 Injunctions

99

Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)

(4) During the hours of 7:30 a.m.

through noon, on Mondays
through Saturdays, during
surgical procedures and recovery
periods, from singing, chanting,
whistling, shouting, yelling, use
of bullhorns, auto horns, sound
amplification equipment or other
sounds or images observable to
or within earshot of the patients
inside the Clinic.
Ch. 4 Injunctions

100

Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)

"(5) At all times on all days, in an

area within [300] feet of the
Clinic, from physically
approaching any person seeking
the services of the Clinic unless
such person indicates a desire to
communicate by approaching or
by inquiring of the [petitioners]. .
..
Isnt this a reasonable measure to
Ch. 4 Injunctions

101

Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)

(6) At all times on all days, from

approaching, congregating, picketing,
patrolling, demonstrating or using
bullhorns or other sound amplification
equipment within [300] feet of the
residence of any of the [respondents']
employees, staff, owners or agents, or
blocking or attempting to block,
barricade, or in any other manner,
temporarily or otherwise, obstruct the
entrances, exits or driveways of the
residences of any of the
[respondents'] employees, staff,
owners or agents.
Ch. 4 Injunctions protection for
102 the last
Isnt this reasonable

Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)

The [petitioners] and those

acting in concert with them are
prohibited from inhibiting or
impeding or attempting to
impede, temporarily or
otherwise, the free ingress or
egress of persons to any street
that provides the sole access to
the street on which those
residences are located.
Ch. 4 Injunctions

103

Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)

(7) At all times on all days, from

physically abusing, grabbing,
intimidating, harassing, touching,
pushing, shoving, crowding or
assaulting persons entering or
leaving, working at or using
services at the [respondents']
Clinic or trying to gain access to,
or leave, any of the homes of
owners, staff or patients of the
Clinic . . . .
Ch. 4 Injunctions

104

Madsen

(8) At all times on all days, from

harassing, intimidating or
physically abusing, assaulting or
threatening any present or former
doctor, health care professional, or
other staff member, employee or
volunteer who assists in providing
services at the [respondents']
Clinic.

Ch. 4 Injunctions

105

Madsen

(9) At all times on all days, from

encouraging, inciting, or securing
other persons to commit any of the
prohibited acts listed herein.

Ch. 4 Injunctions

106

Madsen

Justice Stevens writes:

As with [union labor] picketing, the

principal reason why handbills
containing the same message are
so much less effective than
"counseling" is that "the former
depend entirely on the persuasive
force of the idea."
Ch. 4 Injunctions

107

Madsen

Stevens, contd
Just as it protects [labor]
picketing, the First Amendment
protects the speaker's right to
offer "sidewalk counseling" to all
passers-by. That protection,
however, does not encompass
attempts to abuse an unreceptive
or captive audience, at least under
the circumstances of this case.
Ch. 4 Injunctions

108

Madsen

Stevens, contd
One may register a public protest
by placing a vulgar message on his
jacket and, in so doing, expose
unwilling viewers.
Nevertheless, that does not mean
that he has an unqualified
constitutional right to follow and
harass an unwilling listener,
especially one on her way to
receive medical services.
Ch. 4 Injunctions

109

Injunctions against state

prosecution
Federalism in two views
From Dombrowski to Younger

Ch. 4 Injunctions

110

Younger v. Harris (1971)

a proper respect for state functions,

a recognition of the fact that the
entire country is made up of a Union
of separate state governments, and a
continuance of the belief that the
National Government will fare best if
the States and their institutions are
left free to perform their separate
functions in their separate ways.
This, perhaps for lack of a better and
clearer way to describe it, is referred
to by many as Our Federalism
Ch. 4 Injunctions

111

Younger v. Harris (1971)

28 USC 2283. Stay of State

court proceedings
A court of the United States may not
grant an injunction to stay
proceedings in a State court except
as expressly authorized by Act of
Congress, or where necessary in aid
of its jurisdiction, or to protect or
effectuate its judgments.
Why didnt this statute bar the
Dombrowski injunction?
Ch. 4 Injunctions

112

Dombrowski v. Pfister (1965)

Equitable relief will be granted to
prevent a substantial loss or
impairment of freedoms of
expression resulting from prosecution
under an excessively broad statute
regulating expression.
Citing Baggett v. Bullitt

Ch. 4 Injunctions

113

Wash.Rev.Code 9.81.060
"'Subversive person' means any
person who commits, attempts to
commit, or aids in the commission, or
advocates, abets, advises or teaches
by any means any person to commit,
attempt to commit, or aid in the
commission of any act intended to
overthrow, destroy or alter, or to
assist in the overthrow, destruction
or alteration of, the constitutional
form of the government of the United
States, or of the state of
Ch. 4 Injunctions

114

The bad faith allegation

[Dombrowski, et al.] have attacked

the good faith of the [legislative
committee] in enforcing the statutes,
claiming that they have invoked, and
threaten to continue to invoke,
criminal process without any hope of
ultimate success, but only to
discourage appellants' civil rights
activities
Ch. 4 Injunctions

115

The allegations

The allegations in this complaint

depict a situation in which defense of
the State's criminal prosecution will
not assure adequate vindication of
constitutional rights if appellants
must await the state court's
disposition and ultimate review in
this Court of any adverse
determination. These allegations, if
true, clearly show irreparable injury.
What are the circumstances as
described by Judge Wisdoms
Ch. 4 Injunctions

116

Dombrowski v. Pfister (1965)

(a) Defense of a criminal prosecution

will not generally assure ample
vindication of First Amendment rights
(b) A chilling effect upon First
Amendment rights might result from
such prosecution regardless of its
prospects of success or failure

Ch. 4 Injunctions

117