Balancing the Equities (aka Undue Hardship to the Defendant)

1. Balancing the Equities (aka Undue Hardship to the Defendant) Even if P can show irreparable injury a court may still deny an injunction if hardship to D is too significant Court must ask whether: Thehardship on D of granting the injunction disproportionately outweighs hardship on P of not granting the injunction (aka benefit to plaintiff of granting the injunction)

2. Balancing of Equities/Undue Hardship, cont’d • This is a defense = must be raised by D or it’s waived. • How do we give content to this test? • What kinds of harm to P if injunction is not granted (or what benefit to P if it is granted) does court weigh in the balance? • What kinds of harm to D if injunction granted does court typically weigh in the balance?

3. Balancing the Equities in Whitlock • Does the burden on D (Hilander) if the injunction is granted disproportionately outweigh burden on P (Whitlock) if injunction is not granted (or benefit if granted)? • What is harm to D if granted? • What is harm to P if not granted? • Why doesn’t appellate court uphold lower court’s REFUSAL to grant injunction?

4. To what extent should D’s culpability factor into the court’s balancing of equities? • How should courts deal with D’s culpability during the balancing? • Should it matter that D acted intentionally if D’s harm from granting the injunction is disproportionate to P’s harm? • What outcome in Whitlock ifD didn’t know the addition was over the property boundary but also didn’t bother to check?

5. To what extent does P’s culpability weigh in the balancing? • If P does something to aggravate the situation, courts can weigh P’s actions in the balance as well. • Example – if P refused to allow surveyors on land to find out where lot lines between P & D’s land were • To what extent is D trying to argue that P (Whitlock) has acted in a manner so as to be undeserving of relief? • P’s claim is barred by laches • The Doctrine of Laches: Equity aids the vigilant, not those who sleep on their rights. • Courts deny relief if • P’s neglect to assert a right or claim • Together with the passage of time or other circumstances • Substantially prejudices D • Do P’s actions fit this definition?

6. Cooperative Insurance – Still More Reasons to Deny Injunctions • Once P has established irreparable injury as a result of D’s actions, a court may still deny P’s request for an injunction for many reasons OTHER than balancing of the equities (often described simply as part of a court’s “equitable discretion”) • What remedy does Co-op Ins. P seek? • Why does the trial court refuse to grant P’s requested remedy?

7. Cooperative Insurance – Balancing the Equities (a review) • In whose favor do the equities balance? Who has the greater burden if the injunction is or is not granted? • P’s burden if not granted? • D’s burden if granted? Disproportionate to P’s? • Wasn’t D an intentional actor (i.e., didn’t breach intentionally)? Why does that weigh differently than in Whitlock?

8. Cooperative Insurance – Enforcing Clause 4(19) & Burden on the Court • Why is it so burdensome for the court to order D to “keep the premises open for retail trade?” • What is likely to happen if the parties can’t agree as to the meaning of the term or on how to interpret the court’s order? Why is that a problem?