let's get started um so today we are going to be finishing up our material from last class on the summary judgment uh judgment as a matter of Law And A Renewed motion for Judgment of as a matter of law or also referred to as jnov or directed verdict so these are all methods of taking a case away from a jury so as I said we we started off this unit or section of the course talking about the value of the jury and then we look at all the different ways in which courts can take away the decision-making power from the jury and as we're doing so we're critiquing that and thinking about ways in which courts can add value versus ways in which juries add value and the limits on Court's power uh to do uh to use these vehicles throughout the throughout the litigation so um just a quick recap and then we'll look at the last hypos that we did so going back to our litigation timeline we know know that the case starts with a complaint we know that there's an opportunity after that complaint is filed for the defendant to seek to dismiss the case or get the case dismissed based on various rule 12b defenses including most relevant here the 12 B6 defense for failure to State a claim um and so that's a moment in which the case could end obviously without a jury being involved um and by the way that 12 B6 uh uh defense as uh the defendant stating that a claim the cause of action uh cannot survive could be something that the defendant raises throughout this procedure it would be quite typical for the defendant to raise it early if the complaint actually fails on its face to State a claim but it could come up later um then we have the answer then we have the discovery process where the parties gather information and then we have that moment where there's summary judgment opportunity once all of the uh evidence has been gathered on either the entire case or at least a claim in the case the defendant can move for a summary judgment under Federal rule civil procedure 56 um and as we've discussed it has to be that there is no material fact in dispute with that term material doing a lot of work there it's not that there's no facts and dispute there might even be relevant facts and dispute but it has to be that it doesn't go to the issue um at stake in summary judgment because the defendant could be granted judgment as a matter of law regardless of that factual dispute um and then of course if that doesn't get granted you go to trial and so that brings us to some of the hypos that we were looking at at the end of last class and so let's finish those up today um so why don't I get uh will to help us out here um so will in the hypotheticals that we were looking at at the uh end of last class we had I think we had not reached hypo 6 so uh in that hypo we assume that there's no uh dispute anymore about whether or not this verbal contract is enforcable between renter and landlord and the only question is did they have a contract and then there's you get some information about what was came out of Discovery and whether or not that contract uh there seems to be evidence that there was indeed a contract formed um and so based on that evidence described in those bullet points we see that there's landlord pretty clearly saying know there was no contract and having some evidence of that and then we see renter at her deposition repeatedly stating there was a contract but without a lot of evidence or detail about that so can and should landlord move for summary judgment and what would be the arguments what kind of arguments would landlord make at that point well she like to want to move for S judgment just because then case be over she she win um I don't know if she would be granted summary judgment just because the pointed issue is sort of M the material fact of the case right did this contract is this and we want both go stack by the mechanism a jury or a judge to terminate that was the case with this with now then so as will is saying there's there's now no question about this sort of underlying legal point that we had in the previous hypo which was well if it was just a verbal contract and those are not enforcable in the state of Virginia then it doesn't matter whether or not there was a verbal contract like they thought there was a verbal contract it doesn't matter what the evidence is as to whether they reached an agreement if nothing was reduced to writing and only written contracts are enforcable in Virginia then while there certainly would be disputes over what they agreed to those would not be material facts and landlord would be entitled to judgment as a matter of law so that's why this hypo is a little different right this hypo says uh verbal contracts are enforcable and then you look at some evidence about whether or not there was a verbal cont contract and will it sounds like you think that the judge should let this case go to the jury um and be decided because there's a dispute over this fact but we don't have a ton of evidence about this right we we've got some bullet points in the description of the discovery process so what arguments would landlord make if she's trying to get summary judgment at this stage what would she say yeah Maggie um I think you could say that there's not sufficient evidence for Speed feal fat because the renter stated she couldn't them mer on you say there's not sufficient evidence to prove either way whether or not there wasn't were so what is I think that's correct the problem here is that the evidence seems very slim as to whether or not there's a contract on renter side right landlord has well what does landlord have in terms of evidence um L has that she disc that her assistant submitted an affidavit um saying she did not believe reach final agreement in addition to ro War she kind of has two CS there yeah so she does remember versus rer just has a recollection of it yeah so landlord has got she's got her of course her own statement they didn't but she's also has her business diary which maybe has some evidence of being recorded at the time and saying that they discussed the possibility of renting the apartment but there's no agreement on that fact then we have her assistant um who says no they didn't have an agreement she was there so that's three pieces of evidence for landlord and then we have this very vague renter statement in her deposition say saying well you know I think we formed a contract but really nothing to back that up in terms of specific words or specific moments that she said oh yes that became a contract so then how would you frame this in terms of judgment as a matter of law what would be the legal question the court would be deciding on summary judgment and this does look like the celex case in the trilogy in in 1986 that really changed the way courts use summary judgment so what's changed there that that after 1986 that would lead a court to least consider a motion for summary judgment is there zero evidence of a contract Lance what do you think is there zero evidence of a contract there's not zero evidence there is pretty minimal evidence especially on faray winter for side I'm not sure this is right but I think um I I think during a summary judgment motion um land we saying no root schol JY could Pi side with rer on the issue um and potentially she would I guess L would be saying that winter couldn't need her production burden much less her persuasion burden because ex about how very little evidence she's uh for terrific great so as Lance just said it's a matter of what could a reasonable jury do that's the legal question for the court and it doesn't look like if you're like that doesn't look like a legal question I agree with you it looks like somewhat right a weighing of the evidence but basically what the court is saying if it chooses to Grant uh rent uh landlord's motion here is there is maybe you know a sort of circle that includes includes what the judge would say okay I think there was a contract and therefore the judge would rule in favor of the parties if it was a bench trial and maybe the judge would say but I think a reasonable jury could take even less evidence and decide there was a contract so I would let it go to the jury on some evidence maybe not much but you know something um but if there is a cintilla of evidence or just a little bit of evidence remember our our evidence scale right if there's zero evidence there's a contract obviously right we can't have this case go forward obviously we're missing an element if there was no evidence of an agreement that this cannot be a breach of contract case so zero evidence that's clearly a question of law because you failed to meet your production burden as to an element but if there's a little bit of evidence right uh you know a cintilla or maybe just a small amount that said the court says no reasonable jury could rule for the party in the situation then the court would say if it's out outside the bounds of what a reasonable jury could do because there's such little evidence then that's a legal question the judge should not be granting sumary judgment just because the judge thinks the evidence is insufficient that's looking like a jury but the judge could say I don't think any reasonable jury could rule for renter in this situation so will it sounds like maybe you think that should if you were the judge in this case what how would you rule what would you think me cool um well hopefully it happens in war wall school before no no no um you're you're perfectly prepared had civil procedure what more do you need yeah I would probably yeah F landord and say sorry like she didn't really need her burden of production yeah so yeah because you you would want more than a little bit yeah and by the way you said you wanted more law school which interesting is there's plenty of places where to be a judge you'd want more knowledge of the law I'm not sure this is one of them right I mean think about the Scott versus Harris video that we watched last class that's what the Supreme Court watched they watched 6 minutes of a car chase video and said we can't imagine a reasonable jury would find that this use of deadly force was unjustified because we think that the fleeing uh driver was causing a hazard to you know life of others that doesn't does that look like a legal judgment to you yeah maybe some maybe Common Sense school yeah yeah yeah so that's I mean that's a reaction to watching you know to to a sort of human reaction right and and that's something where you might say when the judge is doing this weighing of the evidence not to decide whether the judge agrees with the parties but to decide what a reasonable jury could do you know I'm not sure how much that's that's to do with the knowledge of the law um and maybe that's part of the critique here right that that courts are starting to act more like jurors that's of course what Stevens was in his descent in Scott versus Harris and I know he didn't didn't give you that case to read but we told I told you about the Descent he referred throughout the Descent to the majority as you know the members of the jury say this and you know these other jurors said that he's he's mocking them a little bit by saying like you're acting like the jury in this case and so that's one critique and the other hand maybe you shouldn't check your common sense of the door either right and the idea is what could a reasonable jury do so that hypo gets to that question all right so um let's and by the way definitely landlord should move for suby judgment no question right whether she should be granted it as a harder question all right so let's move on to hypo 7 and why don't I get Daniel McDonald to help us out here so um hypo 7 uh the case goes to trial renter testifies that she and landlord discussed the terms of the rental but then on the cross examination renter agrees that they never signed a contract or even had a meeting of the Mind renter finishes presenting her case and rests so what should landlord's lawyer do at this point so she should motion for a judgment as a matter of Law and basically argue that renter has conceded that there wasn't a contract because she's saying that she never signed anything and then argue that um basically by never having a meeting of the mins that that is also agreeing that there's no like oral contract or verbal contract yeah um and so basically she just be arguing that renter has conceded there's no contract great so the trial as the case book explains is sort of broken up into two parts and it's first plaintiff presents their case in Chief and then there's sort of this moment in the middle and then defendant presents uh the defense so here plaintiff would have presented plaintiff renter would have presented her evidence and whatever happened in the discovery phase it seems like her case fell apart um at the under this hypo at the moment that she's being asked to testify this Tri about this at trial because she says well there was no meaning of the mind so do you remember what rule we we turned to for this you at this point in the trial after plff has presented her case in Chief and basically conceded that there was never a meeting of the mindes absolutely the defendant land uh landlord should then see if this case can go away and how did you frame what she should ask for and so I think rule 50 judgment a matter of law great so rule 50 judgment is a matter of Law and what this is a moment in the trial where you're saying to the judge this should not go forward the jury's been in panel the jury's listened so far but or if it's a bench trial the judge has but at this point the case should end right and there's there's no need for me to present a defense or for us to wait this jury verdict because uh again what's the what's the question the judge is resolving because why why why in light of the very weak really non-existent evidence of a contract yeah I mean which the judgment is a matter of law in rule 50 it says that a reasonable jury would not have a legally sufficient evidentiary basis so it's it's what a reasonable jury would decide yeah great and that judgment is a matter of law language appears consistently throughout right we see it in the summary judgment we see it in the uh rule 50a we see in Rule 50b and the point of this is at every stage is the question of looking at the evidence we have at this stage could is there either a legal question that takes this case away from the jury or is the evidence so uh minimal or nonexistent that no reasonable jury could rule for the plaintiff so that's yet another moment and maybe she'd succeed here on these facts um so Daniel staying with you for a second um what about hypo 8 um uh which is uh renter introduces this evidence of a written contract between herself and landlord for the rental of the apartment but then landlord presents evidence showing that her signature on the contract has been forged so what should happen there here we have a case in Chief where PL if is producing a contract with a signature on it right that seems like well let me ask would you get judgment as a matter of law at that moment if you were landlord asking for the judge to to to to say this case should end if there if in plaintiff's case and chief the plaintiff had produced a signed contract with landlord having signed it I'm sorry so wait so where are we at in the the so let's say plaintiff in her case in Chief this time instead of hypo 7 where she had really no evidence in hypoa she's got evidence of a signed contract oh okay yeah I I think that yeah that landlord within be arguing that she hasn't been fully heard on this issue right because she's going to be presenting the evidence about the forgery of the signature yes and so you're certainly plaintiff would not succeed at this point if she moveed for for judgment a matter of law because we need landlord to have a defense uh her opportunity for defense but would landlord be able to maybe she could do it but would she win if I I don't think she would because at that point yeah I I mean it seems like renter is then meeting her burden so I don't think it's jilge great great right so there's been a signed contract introduced into evidence right it seems like no way would landlord win the motion for a judgment is a matter of law based on this now clear evidence of a contract that was presented in plaintiff's case in Chief but then you we've got the second the defense right now we've got defendant the landlord's opportunity to present the information the defense uh and and she says there's evidence and maybe you know demonstrate this that my contract my signature on that contract was forged right so then what should landlord do at the end of the presentation of that case in Chief so I think that she should still move for a judgment as a matter of law because the language talks about like a legally sufficient evidentiary basis and so I think she'd be arguing that because she's shown evidence that the signature was Ford there's forged there still isn't a legally sufficient evidentiary basis yeah great so the idea is you know she'd have no ground landlord for getting a judgment as a matter of law at the end of plaintiff's case in Chief the way she would have in the earlier hypothetical where there was really no evidence at all but once she shows that signature is forged right there's again no evidence of a contract and if the only evidence was a contract for which the signature was forged then really there's no contract and landlord should at least file this motion for judgment as a matter of Law and make the argument look the only evidence of a contract was this forged document all right so why don't I turn to um uh mallerie and get her to help us with the next hypo so what happens here the next hypo says the jury issues a verdict in renters favor and this is under the same facts that I was just talking about with Daniel where there's a a contract and then there's evidence that it's been forged um and nonetheless a jury issues a verdict in renters favor what should landlord do at that point so to put this on our litigation timeline we have a verdict right and the jury has spoken what happens next um so I think Le should assuming that she raised the direct crazy Judgment of not flaw request um prior to the jury verdict she should pring to B Ed um and asked for a judgment not withstanding the verdict J yeah so this has got many different names um it's uh Federal rule civil procedure 50b and the rul makers wanted to rename it to give us a sense that they're all connected right so this is a a motion for a judgment as a matter of law under 50a and then 50b is a motion for a new judgment right as a matter of Law and why is it let me ask if she had not if renter sorry if landlord had not moved for judgment as a matter of law during the trial could she move after the verdict for uh and why not because of the I think is it the seven am um it's the jury trial War it says that like no fact is Tried by jury should be reexamined or so it's kind of the book called it a fiction yeah the initial it's say initial will yeah because this is the the Seventh Amendment jury trial right it's supposed to be in violate you're supposed to have your jury issue your judgment and you're not supposed to be able to re-examine that but the court has come up with a workaround I mean this is now like a century old so we don't really question it but the court the casebook refers to it as a fiction and it really is that it's it's this idea that when the judge denies the motion for judgment as a matter of law before the jury's issued the verdict what the judge is really doing is is is waiting to decide the renewed motion so rather than maybe instead of denying it it said for now I'm not deciding it in your favor I'm going to let the jury decide and then once the jury issues the verdict against landlord in favor of plaintiff then of course landlord says no renewed motion for judgment is a matter of Law and you go back to the earlier motion and say well we're not really second guessing the jury were just granting that motion that was uh submitted earlier so you know affection but one the courts now have accepted for a long time and yet that's another opportunity right for the yet another opportunity for the court to take a a case away from the jury and we talked a little bit last class with the matv case uh mallerie about why a court might prefer to wait and get the jury verdict so just remind us why a court might prefer to do that um yeah I think the main reason seems to be for matters of appeal um if the appell court disagrees with the judge um then they essentially have two vers to choose between rather than if they just if the judge rules comes back and the court disagrees then they'll have to do a whole new trial which is like normous of resources and I think more to um my understanding is that a judgment from a jury is somewhat more powerful than a judgment from a judge so if the judge thinks that no reasonable jur would find in favor of the pl then allowing the jury to kind of make that decision for her would yeah it would be the best case for the judge who thinks no reasonable jury could rule for this plaintiff on this evidence but better to let the jury speak for the reasons we discussed right the legitimacy of the outcome the sense of a cross-section of the community weighing in the sense of sort of crowdsourcing um all of those benefits come from the jury verdict and of course the judge is thinking this evidence is so weak no reasonable jury could rule for the landlord well you know hopefully this jury is a reasonable jury and then there's also as mallerie mentioned the fact that it assists on appeal because if the appell court and there's almost sure to be an appeal if you get a jury verdict in your favor and then a judge uh reverses that on uh jnov or uh directed verdict or motion for a new judgment whatever you want to call that if if that happens you can bet there's going to be an appeal because a party just won a jury verdict and now a judge has stepped in so the judge is helping the appell at court by saying all right rather than terminating this early um I've let a jury speak and then we can put in place back in place the jury verdict if you disagree with me appell at court whereas if the the entire jury is impanel everybody hears all this evidence all this time is spent and yet the judge cuts it off before the jury verdict you have to go back and do the whole thing all over again I'll mention one other thing that was mentioned briefly in the case book and and actually came up in my practice which is quite often what judges do is they use this moment as a moment of Leverage so let's say there's a jury verdict in favor of renter and the evidence was a bit weak the judge thinks and really renter shouldn't have won maybe in the judge's view or at least the judge certainly wouldn't have rule for renter it's borderline case the judge might say well gather the parties right jury's been dismissed and the judge might say to renter landlord I'm seriously considering A Renewed motion for a judgment as a matter of law or jnov um I'm or or a new trial right would be another option under rule 59 I'm cons I'm seriously considering one of these vehicles um but I I think I wouldn't do it if we just reduce that jury award by half right it's called remor so pull that amount down and so I had a case where that was indeed what had happened it was an employment discrimination case and the plaintiff uh who I've been representing along with other a team had won and won a large award and the judge said well I'm really tempted to reverse this jury verdict but I guess I I might not do so if you can agree basically settle at this moment for about half of what the jury uh offered the pl so that puts you in a hard position as the lawyer right because at that moment you've got to make this decision am I going to risk everything and go up to appeal if the judge issues a um judgment not withstanding the verdict and and argue before an appell court that the verdict should get reinstated risk a new trial we have to we do it all over again at a lot of expense or just take the half a loaf right right here and walk away so judges can do that every so often they do aditor where they like add to the jury amount but that's really rare it's the remor it's pulling the jury amount down that is much more common so that's a hard question and that's a question for your client by the way so you as the lawyer should you know inform the client of the options and what you think will happen and what you're worried about but at the end of the day that the client would make that choice not the lawyers so all right so questions about any of that before we move on and talk about uh provisional remedies which is our topic for today yeah is that last one at JN yes so sorry they've got a lot of names so judgment uh not withstanding the verdict judgment okay non obano verdio if anyone knows Latin feel free to correct me on that pronunciation um and uh renewed motion for judgment as a matter of law are all the same thing so and you'll I would say use one term I would have only used one term with this class except judges use all these terms you know they're old right they they like remember the old terms and then people cite the new terms and it just becomes like the vocabulary they use so maybe at some point J andov will fall by the wayside but it's still something that courts use as a terms I want you to know it okay yeah Rachel about the um the for origin um according to um rule p6e I was just B confused as to like how like is that proper answer till has been pories or the question of the actual suching that they have wait sorry so what are you looking at um 56e let feeling toly support very justifi yeah although keep in mind if we're talking in the hypo with the forging it happened in trial and so actually that's I'm glad you asked that question because I wanted to clarify you know we like well why is Rule 56 something we talk about over here before we get to trial and and Rule 12 B6 over here and then we talk about rule 50 over here and it really is just technical it's a question of what stage of the evidence are you at so a 12 B6 motion which for failure to State dismissal for failure to State a claim upon which relief can be granted that could be raised actually at any time before the trial but it's only based on the pleadings right if you ever look at anything outside the complaint and the answer and the other pleadings then it's no longer 12 B6 a summary judgment motion is the same standard right is there is there a judgment as a matter of law for one of the parties but it's based on the evidence and a party has to be fully heard on the question before a summary judgment motion can be answered so that's why it comes after discovery or at least after discovery on the issue for which the summary judgment motion is focused and then it's during trial that rule 50 comes up so Rachel that's why you'd be talking about rule 50 here not rule 56 okay yeah so when the judge decides to reduce the amount of the award does it need to be agreed on by the two parties part of the JN separate from that as their L yeah so the the judge the so the that's a really good question so the judge could say I'm only going to enter this ver ICT in your favor based on the reduced award yeah just kind of thinking about our conversations around juries is there any sense that uh if you appealed a decision jnov that an appell at court would be more likely to reinstate the jury because of you know all of the conversations about legitimacy of juries and things like that you're you're certainly there's like two op right if you've lost at the jury phase and then you try to appeal on the ground there was some legal ER and the trial that is a weaker position to be in or at least you have fewer grounds for argument then if you win the jury's verdict and the judge says nonetheless I'm issuing a directed verdict right because then it's not a matter of just did the FactFinder get it right but did the was the judge correct to essentially overrule the FactFinder we don't in the fiction we don't refer it to that way but that's what the court will the pel court will think so it's you're in a stronger position if you are doing an appeal based on the judge having issued a judgment notwithstanding the verdict or a directed verdict because the Appel Court will review that decision to say well is it true that no reasonable jury could have ruled for the plaintiff based on this evidence whereas if you just lose in front of the FactFinder you're very unlikely to get the judge to say well we would have found the appell court to say we would have found the facts differently you'll have to find some other sort of legal error that occurred in the process like maybe evidence was excluded that shouldn't have been all right yeah um just to clarify the claims the point of independent in the tri section it's 50 oh sorry what so you're talking about which yeah yeah so when when let's look at our rule book so rule 50 and I hope everyone's got their rules out because it's important to look at the language of these so um rule 50a is where you get a judgment as a matter of law in the course of the trial right if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party that's why you look at Rule 50a and then post the verdict is renewing the motion after trial rule 50b so I'm happy to answer that question but I want you to know the answer is also in the rules right and I want us to stay focused on that language so 50b apologies for the terrible handwriting all right um let's move on unless there's other questions okay all right so now we're moving on to talk about remedies so again with our litigation timeline this comes up here you know with the question of the verdict the final outcome so what is the remedy right and we have already had a brief discussion about the different kinds of Remedies legal and Equitable with legal remedies being money damages and Equitable relief being some sort of form of injunctive relief or requirement that a party take action or stop taking action so the this moment in time though that we're talking about this is a remedy you'd get at the end of the trial right at the end of your case after presenting all of the evidence to the FactFinder what would be the final remedy that you could get but there's also some remedies you can get earlier and so why don't I get um meline to help us here we read about provisional remedies so what are those and why would you uh ever need them or want them uh when they come early in the day not at the end of the case yeah so professional is asking for elment of a planing have um in the book like you mentioned talk about toing the Judgment which is essentially reaching out and kind of taking hold um of something I think so that it's there at the end of the F or the litigation in case you win um and we also Le about maintain the status quo which seems like it it exists from split for for yes so securing the Judgment let's start with that and we'll get to um keeping in place the status quo retaining the status quo so securing the Judgment what does that mean what kind of things could a party do to try to secure the Judgment so let's imagine uh you know party a su's party B saying there was a breach of contract and party B owes them $100,000 for the widgets that already got delivered so party a wants to sue now for the money what might party a do to try to secure the possibility of a judgment down the line that says party a should have been paid I think they can ask for that money to be held by the court so that the company couldn't at the end of litigation say oh we don't have the ability to pay you if you win yeah held by the court and how do you have a sense of how that might work like as a practical matter um so it said either it could be like a public official or that the court could designate a receiver to hold it yeah yeah so basically there would be a going into party B's bank account or uh their maybe their if it's a company they corporate coffers and seize or take or garnish or hold or put in receivership some of the assets maybe a building or maybe just money right um so first of all has party a won anything when this is happening no they haven't no have they presented any evidence that they should win no no they haven't so this should strike people as somewhat extraordinary right this is a moment in which a party could say I want to have the state the government reach out and seize property or money of somebody else and hold it during the course of the litigation in order to secure the Judgment which I have yet to win right and May in fact not win so that should be a moment that's we think that's fairly extraordinary and we did a little bit of reading not not a lot about this kind of Remedy so let me ask do this when you read this did you did you think huh this is this is sort of suggesting that Court should be more careful or maybe should this be granted in every case and and if not why not mine did you have a view on that is this something where you're thinking well yeah every time a party wants to seize an asset of somebody else maybe there a dispute over a title of a house or money and the widget contract the court should step in and allow securing of judgment I think it's something you would definitely need to be careful with it kind of reminds me of due process if you really need to make sure you've given someone notice before you take something away from them um and I think that's why the rule has the security element of it where if you're going to ask for this sort of relief you have to put up some sort of almost like collateral um or some sort of like money to ensure that if it was wrongly taken you can compens great so M says a couple things one is absolutely this should set off like all the due process alarm Bells right the idea and some of the early case law on this which you did not read was the court exploring the due process limitations on this because it used to be the case that the sheriff would just come in somebody would file a lawsuit and at the same moment alert the sheriff to what they wanted and then the sheriff would just come in and take the property of the person who had been sued to hold it during the course of litigation and so you can imagine right no notice no opportunity to be heard deprivation of property this is a moment where due process would apply and the court has said that clearly the rule that governs this and we'll just look at it really briefly it's Federal rule civil procedure 64 which turns to state law so it incorporates state law into this decision-making uh and so it it really says what the state thinks is permissible and allowed can be what you get in federal court even though it's a state court Remedy or provisional remedy and it lists the various kinds of provisional remedies arrest attachment garnishment replen getting some return Goods sequestration we already saw that uh uh vehicle being used in Delaware if you remember um in the Schaefer case um that again seizing or taking something and putting it within the power of the court system and taking it away from the party who had been sued right so yes you look to state law but remember the back stop of due process the federal constitutional requirement would always be present and so if the state law didn't have procedural protections to give notice and an opportunity to be heard to the defendant then even though the state law would allow it um that would be unconstitutional and so it shouldn't be a remedy you could get either in federal or state court so you need some notice and opportunity to be heard you know nonetheless do we think this is uh a remedy we should allow why don't I ask Maggie um so Maggie when you think about these provisional remedies should we just say they're just two first of all are you do we think the court should have this power to give somebody a remedy or at least secure the Judgment before there's been any evidence Ence on whether they should win their case I think there is some benefit to it in the fact that you're protecting fffs um for like whether or not defendant actually shows up whether they try to prove the case whether they're trying to like Escape what we looked at examples the defendant is trying to get out of being served I think doing something like this actually gives the plaintiff and the defendant an opportunity to be furred and cour um and I think the point that mine mentioned without like securing the Judgment or having security I forgot the exact term of that um also puts a burden on the plaintiff to make sure that they're not just doing this eriously or or just to harass right or to uh you know pressure the defendant into settling because that would be another concern but Maggie makes good points which is well the reason for this provisional remedy this that of SEC you know securing the judgment is otherwise the plaintiff might have very little recourse and it might be the case that if they start their lawsuit and the defendant sees that the plan's going to win the defendant can get rid of the assets if it's a matter of getting title to a house or getting Goods back the defendant could sell or give away the contested item the defendant might hide their assets so there are reasons to think yeah the court should at least play some role in protecting the I would say even the status quo at that point but to protect the plaintiff from the idea that if they go forward at the end of the day will there be nothing to win if they win their case but this is a balancing act right courts have to be careful of the rights of both parties and so the court will be uh not willing to give these without an opportunity typically an opportunity for the opposing party to be heard or at least if not immediately shortly after the attachment or the garnishment or the sequestration or whenever one of these um remedies is used so securing the Judgment that's one reason to have these provisional remedies so that at the start of the case the plaintiff can know that there's something to win down the line if plaintiff proves the case and maybe one protective feature of that can be posting a bond or making sure plaintiff has some skin in the game too because otherwise you might worry this would be used simply to pressure the defendant to settle or uh you know to harass a defendant even when the plaintiff's legal claim is not is not um strong all right so that's one use of these provisional remedies and then the other one I had you read a case on um which is either you know preserving the status quo or basically checking having the court uh issue a judgment or issue a decision to pres prevent an opposing party from uh changing their conduct or or engaging in conduct that the plaintiff says is violating their legal rights so I had you look at Detroit will breathe versus city of Detroit to talk about this concept um and why don't we get uh Tom to to jump in here so um Tom the first just tell us a little bit about the context here um the who is Detroit will breathe and why are they suing the city of Detroit activist organization that was founded in the lake of George Floyd and his death um and as we all know there were a lot of protests that sort of formed up around the country um and they were filing this because they claimed um and the court seems to think seems to think that their claim had pretty good basis um that the police for the city of Detroit were using excessive force um and sort of Extraordinary Measures to quell certain protests around the city um and that the police were sort of quashing their right to um free speech and to have a protest um and so they filed for injunctive Relief before the case would be decided on its merits that the police couldn't use certain methods anymore um in order to sort of supress the protesters yeah and do you remember what some examples are of the the kinds of methods the police were using that the protesters were trying to get an injunction a temporary restraining order to prevent the police from using going forward yes so some of it was um using batons in order to physically strike the protesters to spray with pepper spray firing tear gas and or rubber bullets so not lethal measures to be sure but pretty severe ones yeah so and the court actually mentioned so I was looking back by the way there's like the Civil Rights clearing house where you can go and look at all of the documents filed in cases like this and I was looking back and they have uh you know complaining Witnesses basically supporting their motion for temporary rest stranding order describing what had happened to them and then they have embedded Within that written legal document photos and also links to videos so I'll play just like a minute and a half of this clip from uh this August 22nd 2020 uh uh protest and police response so um let's hopefully it'll play [Music] here [Music] buffering r we don't see no RI here we don't see no RI here [Music] [Music] rii [Music] all right so that gives you a sense and the judge watched that as well right uh and refers to it in the opinion uh so I think you could hear the chant but the chant was why are you in Riot care we don't see no riots here and then the uh obviously you could see tear gas being used and batons being used in that clip so that's the part of the evidence the judge reviewed um in terms of deciding what would be permissible and in terms of a provisional remedy a temporary restraining order so temporary restraining orders are uh different from preliminary injunctions which we're going to look at in a minute um and let me ask Tom was every party that was sued the Detroit will breed the group that represented the protesters sued a number of different people uh including various police officers the city of Detroit the police chief was every party who was being sued present and able to be heard at the hearing in which these Detroit will breathe protesters were seeking the temporary restraining order no not necessarily only some of them were available um and they had sued the city of Detroit the police department and all officers agent and departments under the police department's control it's quite a broad range of defend yeah broad range of defendants and not everybody was present they tried to serve and got serve did manage to serve several of these parties um to to give them notice but not everybody was there or president as you say you couldn't have every officer there anyway um but in addition there was the the the court seems comfortable with the idea that maybe it will issue over this remedy without everyone present it's called ex parte having a hearing where the opposing party isn't heard and ex parte hearings or exart proceedings are generally very disfavored in our legal system um wanted to get Jennifer to jump in so Jennifer why would you generally say a legal system shouldn't allow an Exar proceeding or our legal system shouldn't allow that what a proceeding where the people where all the parties affected aren't present and maybe don't know about it yeah see like that would be foregoing due process if I was um I think there I about having the te be speaker uh yeah so it's this idea that that absolutely violates your idea of what due process is if you don't even know the procceedings going on and have no opportunity to be heard nonetheless it's permitted in these situations in which you're seeking a temporary restraining order so we'll talk about why um and of course there was some representation here at this motion for a temporary restraining order in response to the police reaction to these protesters so the there's not everyone's present but some of the some of the parties are present and these protesters are a asking for a a temporary restraining order asking as Tom told us to stop using baton stop using tear gas I think there was a question about using the the ties on the wrists when they arrested people and tightening them so much that they were uh cutting off blood circulation so there was a number of things where the protesters said we uh we want the police to stop using these methods of responding to these protests which have been going on for days in response to the George Floyd uh murder so in light of that we we've got this request for a form of relief and the court has got to run through the factors for temporary restraining order in order to figure out whether or not the court should be issuing a decision about what the police can do before the merits of their case are hurt right they're suing the police department and we'll talk about what the cause of action is in a second but they're suing the police department and the question is even before they get to presenting their evidence do they get some form of relief um want to get Eric to jump in here so Eric what when a court is deciding whether to Grant some form of provisional relief a temporary restraining order um before the case has been fully heard on the merits this is extraordinary this is a moment where the court acting beyond the powers we might usually think which is it only can issue a judgment after it's heard all the evidence um what is the court looking at there's a a four-part test the court looks to before it can issue such relief and what does it look at um there's a the first element and what the court says is generally decisive is whether or not the pl the likelihood that the plti will succeed on the merits so whether or not if the case goes to trial they actually win and then kind of get that relief at the end of the trial um and then the other important factors are also whether the risk of irreparable injury um to the plaintiff uh and then also the likelihood of substantial harm to others by granting the injunction so would it hurt the defendant or relevant third party one way or the other by granting the injunction um and then finally whether or not it serves the public interest so IR reparable injury they sort of balance of the equities is what factor three is referred to often but the idea is you know how are the parties uh each going to be hurt by or affected by an injunction or lack thereof and then this last Factor public interest so these are the four factors the court looks at before granting a temporary restraining order and you let's start with likelihood of success on the merits so Eric how do you figure out whether your the plan is are going to succeed on the merits maybe I should say what is their legal claim just it's the substance isn't too important to us but just to get a sense what do they say they're letting for and First Amendment POS violations excessive force under the fourth and then just fre speech violations protest great so they're saying we have constitutional rights to protest peacefully under the First Amendment and also not to be uh have the police react to us with excessive force under fourth so those are the the Constitutional violations at the heart of their claim have they proven that the police have violated their first or fourth amendment rights at the moment which they seek the trro no not at all not at all right they the cas has just started they have a complaint that's it there's been no proof there's been no opportunity for the defendant to respond that's true for any case in which you're seeking a trro is it comes at a very early stage and there's been no final decision on the merits so then likelihood of success on the merits how do you figure that out if you're a court yeah so the court starts to do a little bit of fact fighting um there they then start to look at the information that the blank and the defendants have both submitted kind of to to support their claims and they look at those facts in light of what would be most favorable to the non-moving party to assess whether or not kind of again like the reasonable FactFinder in the case would rule in favor yeah yeah so but this is such an odd posture so it's exactly as Eric said you look at the facts that you have you look at things like that video you look at the pictures the plan of provided um you know if there is a moment for a hearing which there isn't always some it's entirely expar but if there is maybe the defendant can respond to some of that but it's at a very early stage by definition so the court is trying to decide who is likely to succeed on the merits with very little information and very little fact Gathering okay great so that's one problem right this Factor requires you to to know how the case is going to play out in terms of evidence and support at a requires the judge to to have a view on that at such an early stage and that's one reason to think this looks like an extraordinary remedy um why don't I get uh ktie on to jump in here and um what about the second Factor irreparable injury what was the argument by these Detroit will breathe protesters that they needed this trro and that it would cause irreparable injury to them not to have it so they said that um the AR of ran already occurred because they oh suffered a viol their first amending Freedom um and that without the CH they continue to suffer constitutional violations not the G Poli because the breed house still off gr and I yeah so this idea was we've already suffered uh irreparable harm from loss of our constitutional rights and we will continue to suffer and maybe that relates to my next question which is why not wait till they win the case like if if they've got such a great first amendment and forc am Amendment claim then they should win at the end of the day and then they can have the remedy of the police can't use batons and tear gas and rubber bullets and hand ties tighten too hard and all those things so I think it's because the protests are still ongoing um so they still the protesters if they weren't granted the CH or they hav't even gone the list that proceeds a bracelets the police could still um use these chair DRS and batons all the prot testers and they would I think lose their right to Def a Trier test yeah so and and how long just generally do do you have a sense that a lawsuit on the merits on these questions getting to a final judgment would that be a week-long event no yeah if you've learned nothing else in civil procedure you've learned these things take time right so so it might be months later might be months later even if you tried to push it faster and so the idea is but we want to protest tomorrow right it's 10: a.m. in the morning and we have protest plan for 6 o'clock tonight that's when you need the trro you need immediate relief because my rights are immediately at stake I am you know part of a protesting group that wants to be back on the streets exercising My First Amendment rights uh you know within a matter of hours and so I need this protection right now and it's a the violation of First Amendment rights the court says and this is in line with lots of precedent is itself a a an irreparable injury like every day you cannot speak in a way that the first amendment protects is itself an irreparable injury um all right so then there sort of the balance of the equities and the public interest um K did you have a sense of how that played out in this case or generally plays out yes so the balance the equities in this case um the court said that the relief that the plan want which just the um against tear G through the and excessive force would still leave the police open to use lawful um options to like use reasonable Force to defend the Des pars and to make arrest yeah only with probable cause um so that is the balance of the equities at the completing claims of injury with f GE the May yeah so this judge by the way and it's important to note this right makes the point that both that the police have a difficult and at times very dangerous job and that there's not uh the the police need to have the tools to protect the peace to protect property to protect other people and that there is a balance here but as Katie says the point is well the police can continue to do that part of their job even without things like batons and tear gas and so they can continue to try to keep the peace but just not not to use these methods that the court says things would be likely to be found to have been both a violation of the Fourth Amendment excessive use of force and also impeding the First Amendment right to protest but the police maintain Tools in which to protect themselves prevent um destruction of property prevent uh harm to others it's just that they're going to have a limited use of or or no use of these tools that they had been using like the batons and the tear gas um this last Factor the public interest Factor the court barely talks about it here and I'm sort of mystified by this Factor so you know what work does this do what do you look to if your court in terms of the the public interest Factor Why don't just get volunteers on this what does that mean the public interest factor in light of this case it also comes up in in preliminary injunctions which we looked at in the winter case what does that what does that mean yeah Greg is it possible that it would benefit people who didn't weren't a part of the lawsuit to begin with or you know speci dis Pro oh now that this thing has passed I feel safer to go for our test yeah so the public interest it seems Greg says takes into account like the larger world and the good of all all of us right that's so that's amorphous right like boy and then you might say well why are courts allowed to think about all these other actors outside of the parties to the case if at the end of the day party a has legal rights that are being violated by party B what does it matter how that affects everyone else why do we even take that into account soer that question for one second and just say so who could claim a credible public interest in the outcome of this trro seeking to restrain the police Greg's already mentioned maybe other groups of protesters but can we think of other people yeah Samy I agree police TR to enforce a law CH sh of order maintaining order enforcing law and their own safety right their own safety for sure um um they were you know physically you saw them in their riot gear but they were certainly physically at risk if they've got violent protesters anybody else who we think uh should have should should should have an interest that we take into account or Mike take is it Kyle back there yeah yeah I think uh property owners and small business owners would probably say hey protest could get out of hand and damage our things we have an interest absolutely in not having a TR absolutely and you know for those who were in the United States at this time I mean in cities they had you know all the stores were boarded up they had broken windows or feared it it certainly decreased business right to have protesters every day and and people downtown areas such that uh people who weren't protesting stayed away and there was less commercial activity so public interest could conceivably take into account all of these varied and diverse interests and yet um Kyle do a sense is the is the the ability of shop owners to conduct business is that part of the First Amendment analysis I mean that takes us into substance maybe more than I should but do do you have a sense of like whether that would normally be considered commercial activity and whether or not your ability to speak could impede commercial activity or does it matter maybe there a better way to put it since you wouldn't know the First Amendment Contours Do you think it should matter when you're granting an injunction or trro as a court whether the legal claim at issue actually incorporates the interests of these third parties at the end of the day I don't think that the interests of small business owners or conduct commercial activity Trump's anybody's ccial rights it seems like it would be maybe it would be something to I don't want to get us too much into the into the substance of the First Amendment but it seems like it doesn't matter to the court when it's doing this court or any Court when it's doing a trro analysis whether that public interest factor is really something that you would look at when resolving the legal claim at the end of the day it's something you look at as a court when you're engaging in this extraordinary remedy of preliminary relief both in the preliminary Junction context and the trro context but it's not part of the legal analysis as a whole and I find that interesting courts when they're acting in this Equitable using their Equitable Powers when they're deciding whether or not to Grant this form of relief of before the merits of even been resolved should they take action to change something about the status quo or or retain the status quo either way through their force of power as a court with the power to issue an order controlling the parties they are supposed to take into account interests that go far beyond the legal claim so it's courts generally acting with this Authority that looks like in every way extraordinary they're giving a remedy before anyone has proven they win their case um and they are doing so by considering legal interests outside the cause of action involved and so in all these ways the courts are acting uh considering these things that normally we wouldn't think would come into the analysis and we'll keep talking about this with the winter case where I think it's even clearer that this is that this is an issue um this is something the court the court very actively takes into account this broader public interest and we can critique the way it does that so let me just flip it then and again I'll just ask for volunteers imagine that we've already talked about this a little bit but imagine that there's um a business owner maybe a Consortium maybe the maybe the uh you know commercial interests that are in downtown Detroit various businesses that operate What If instead of the protesters bringing a um case and seeking a temporary restraining order to prevent the police from using certain methods of limiting uh their protests What If instead it was this commercial District uh this commercial entity this group of uh business owners in downtown Detroit who sued Detroit will breathe and said we want to limit your protests to a certain part of the city to daylight hours to you know you you can protest but only in certain areas and during daylight hours and you can uh not bring gas mask or uh weapons yourself and you um have to variously like agreed to of course not destroy property and we're going to require you to be subject to this lawsuit and then maybe a trro to prevent you from protesting in the way you Happ been because it's disrupting our business and harming our property what would be the analysis and how would you run through it yeah think make a really argument irreparable injury yeah that destruction property isn't anable injury you know have protesters you know through a legal process make payments to you know install new windows and things like that I think that it would be hard for that business district to argue that that property destruction is the reable injury that warrants that all right so the F the claim to impeding First Amendment rights where you can't protest because of police response is an irreparable injury says the court cuz every day you can't express your first amendment rights you've you've lost those rights but you're saying that harm to the businesses is just a matter of money damages and we could compensate them at the end of the day um so excellent point and when your harm is money damages that is something where it's much less likely be found to be a reparable injury I will say in this context it might be awfully hard right for the business owners to ever collect any money but it is true that when your damages are based on monetary loss that is much less likely to be found a reparable because you could get paid money at the end of the day um anything else that we'd think about here in terms of our our analysis yeah Carter this goes back to what CL said too about like someone's right to Commerce not necessarily trumping someone's constitutional right but the court in in this case the Detroit case specifically talked about the fact that it's always in the public interest to prevent the loss of anyone's or the violation of anyone's constitutional right um and so a lawsuit that is trying to protect the you know commercial activity at perhaps the sacrifice of someone's ability to exercise their first amendment rights I don't think would really necessarily has the benefit of the public interest uh specific so to the degree You' say there's a couple different interests here but the First Amendment interest Trump the commercial the the commercial interest yeah Liz yeah I wanted to build off of Carter's going a little bit I think the public interest question this case is really interesting because it moves beyond the parties um here we on the analysis in the opinion uh they were looking at different sister courts so if you're making some sort of movement to limit protests here the public interest yeah might apply to the community but it also might apply Nationwide the idea of what a protest can look like ises that going to be super harmful to them be establishing this idea that folks First Amendment rights really fall before Commerce yeah so this was a a nationwide phenomenon as I think most of you know and it wasn't just Detroit that was dealing with this and in fact the court said I'm looking to see what's been going on in other jurisdictions although I will not you know be bound by that or limit myself to that and by the way different things were happening in different places there were some jurisdictions in which the protesters perhaps had been more violent and more destructive of property than it appears that they were in Detroit where the court said look we haven't you know you saw those protesters chanting like why are you in riot gear we're not rioting um and to the degree that was true then the court could say well what's going on to Detroit needs to be treated differently but the degree was also a nationwide phenomenon the court needed to respond as well with that idea in mind and and did did right said I'm I'm looking to see what other courts have done by the way this judge clarified the order a couple of weeks later in because the police came back and asked for clarity and the judge just said this is no different from my initial order but I am clarifying that to degree that there is violence to degree that there's destruction of property police can prevent that right I'm not saying the police can't do that what I'm saying is they can't when you have peaceful protesters use tear gas use batons Etc so uh the judge I think was trying to be very cognizant of the competing interests in this is in this situation and it was obviously a time in which a lot of Courts had to struggle with us all right so that's the temporary restraining order which is one type of provisional Remedy or relief um one that's uh turned to as you see in rule um uh 65 something that the courts have authority to do under the federal rules of civil procedure and states of course have similar Authority uh to do this as well under state law very similar Provisions um and so we'll just look at this for one second to focus in on our rule so federal civil procedure 65b talks about the trro or temporary restraining order and the court May issue these orders without written or oral notice to the adverse party or its attorney right so due process alarms going off when you see that and then you've got to show um why this would be allowed you've got to have specific facts showing immediate and irreparable injury loss or damage and certify and writing efforts to give notice and give reasons why um the opposing party couldn't uh be present so to degree that you could get a trro without an opposing party present that's something you really got to show to the court why it's essential why there'd be a reparable damage without it and why the opposing party hasn't been able to be given notice and to to participate so while you duee process does require notice and opportunity to be heard we can see that in this rule the the rul makers are saying but there might be some situations in which we would allow for some form of limited temporary relief um without it and you can also see um we'll talk more about preliminary injunction in a minute but um that's a form of relief where you must give notice and it's generally sought on a less less of an emergency basis I will say that when I was clerking there was always one clerk who had to be respons responsible for if there was you know a an 11: a.m. a 2 a.m. uh effort to get a temporary straining order because something had come up uh that was an emergency matter you know maybe a patient in a hospital for whom the question was you would they unplug the the life support or something like a a protest where something came up at the 11th Hour about the protest or the police response so you always had to have a clerk responsible and you just did not want to be the clerk on New Year's Eve because that meant you couldn't go out you had to sit around in the court or be ready to come in and deal with uh maybe a trro that got filed and you know most of the time they weren't but you had to have someone available and then of course you had to call your judge and wake them up if this happened so um that was the you know you tried to avoid being on call at Big nights like that all right so let's now talk about the winter case um which is the preliminary injunction uh and we'll talk a little bit also with hypo's next class about the difference between preliminary injunctions and Tas to flesh that out but first let's talk about winter um and one and I get um Ella to uh help us with the winter case the facts here are complicated so we'll get a start on it and then maybe I'll summarize where I think the focus should be in terms of what happened here um but why don't you start off by just telling us you know who's the dispute between and and what are what are the facts in terms of what the potential harm would be yeah so the Navy um Zar training to help them practice be able to detect other submarine it's the most effective method of doing that um but then the natural resources defense Council um they are wanting to it's harming animals so they're concerned about that impact yeah so there's this use of the sonar uh by the Navy and in the course of it's running its training exercises and the concern is that this underwater um emission of this uh sound waves right are are disrupting the animals maybe causing them to beach themselves maybe changing their behavior maybe harming them and the idea is okay we've got a bunch of groups not just nrdc but they one lead plainf saying that it wants to get a preliminary injunction of course its end goal is to prevent the use of the sonar but it's got some PR preliminary steps along along the way um so in terms of I know the the background law here is complicated but what is it that the Navy El is trying to do in terms of avoiding the or maybe I should say what is it that the plaintiffs wanted the Navy to do not just don't use the sonar but they were relying on some legal requirements under our various environmental laws to try to prevent the Navy from at the end of the day using the sonar but there were some hoops the Navy had to jump through and what Hoops was the Navy trying to avoid yeah the main thing that they were concerned about is that the National Environmental Policy Act of 1969 says that federal agencies have to prepare an environmental impact shment or GIS every time that they are forming the quality of the environment um but this isn't necessary if they issue an environmental assessment that concludes that they have it had a significant impact on the environment and so the national resource defense CLE has wanted them to do this B yeah great so the this environmental impact statement which is one key part of uh the federal law and there's other federal laws that issue here but we're just going to focus in on this because this is where the case uh the preliminary injunction was initially issued this was sort of the ground on which it was initially issued and I think where the parties most were at logger heads so the environmental impact statement is a statement where the party that has to do it has to go and explain you here's what my activity is going to be here's my basis for saying it will or it won't harm the environment and animals and here is what I will do if needed to mitigate that harm or to prevent that harm so it's a document that includes all of the data and information about the potential harm uh to the environment based on the activity that's at issue and then ways to prevent that harm or at least lessen that harm um so included in the document is sort of ways to prevent the harm that could come and also it's a moment of it's public and so it's a moment in which the public could weigh in and say you've got to do more you've got to do something differently you've missed this study that would show this kind of harm to an animal Etc so it's a public facing document that contains a lot of information and requires typically some explanation of how the party acting will try to prevent harm to the environment or limit or less than that harm all right so Ella at the end of the day did the Navy have to issue an environmental impact statement and how do they first how do they try to get around it even before The Supreme Court ruling in their case how do they try to get around it so I think that the um natural resource defense Council was trying to get a preliminary injunction for them to stop using the sonar when they were waiting to see if they would have to do in Eis and so they the court you not decided they had to completely stop um using the active sonar but there were some requirements about exactly how they could Le said yes yeah so the the court the the the Navy says uh we're not going to issue the environmental impact statement the court puts in place some mitigating uh sort of activities or Ru or limits to how they engage in the conduct and there's sort of back and forth like District Court Circuit Court a lot of procedural history here but the the needy goes to this um government agency the council Environmental Quality and what did they end up saying to them what did that government agency say to the Navy about whether they had to produce the environmental impact statement yeah Kevin they said that um the Navy could engage in alternative Arrangements which is think a very vague term yeah um and uh they could continue the training exercise because they consider it essential to National Security yeah so the N this government agency an executive branch agency which exists to coordinate efforts in the various Federal branches of government with the White House when it comes to environment um the environment this government agency said Navy you don't have to issue the environmental impact statement that's required by the law by NEPA um you don't have to issue that um you can do something less than that and they did so claiming uh authority to to tell the Navy that's under a regulation so this gets us into administrative law we want you to get into here but if there's a statute and then there's a regulation the statute trumps the regulation like the statute wins every time so you can't cite regulation as a source of Authority for violating a statute it just doesn't work and yet there this the na been told by this other executive branch a agency and they're all in the executive branch right they're all under the power of the president you don't have to follow this law that Congress enacted when it comes to the environmental impact statement and so that's partly why the lower courts were like yes you do have to follow that law or at least we're not going to let you off the hook without doing more mitigating measures um so let's talk about the the factor for we talked about the preliminary injunction uh the trro factors now let's talk about the um preliminary injunction and how this is again a provisional form of relief this is a form of relief you can get before the case is is decided on the merits and let's run through how the court dealt with these factors um why don't I get William to help us out here so William when it comes to that first Factor likelihood of success on the merits I I think this was mentioned at some point but do you feel this is a pretty important factor are they all four factors the same weight what do we do with these factors no they're not generally the first one tends to get most dispos have to be considered um in this a in District the N Ser the to out like we success but when it comes to the majority opinion yeah they they say that the improper standard has the US that's the the n circuit in this record um believe that Cod deductions should be entered based only on a possibility of a referable vers out yeah the the S came but that um the likelihood of a referable Haring the production which seems to go to the 50% plus some am out yeah of a uh of persues said it um yeah so so let me just here to say so these you're absolutely these are this is the most important factor and these two factors together right I think are really the heart of both the prelimary in Junction and the temporary restraining order um standard and the question is well let me ask it this way let's imagine one multi-billion dollar company sues another multi-billion dollar company over breach of contract and Company a says Company B you owe me $100,000 and let's say you're the judge and you're like uh company a is going to win this like this is obvious there's a breach of contract it's not even it's like a joke company a saysi want a preliminary injunction requiring you know immediate payment of the money what would you say I mean you've got likelihood of success on the merits right under my hypo company is sure to win what about B what about irreparable injury in that situation to multi-billion Dollar companies $100,000 dispute would you want to give any sort of preliminary relief to company a you know I would be I would be inclined to impart given sort of what the majority talks about in in winter in section B because it talks about you know the competing things of inury um and while you don't want to Forts should stray away from kind of awarding legary injunction based on for KY ta things that that are going to affect one party the in a over broaden way in that sort of scenario where there is a clear likel of success in amerit as well as well that's what I ask is there a reparable injury is it purely a referable no but it's also not a referable to either part which means that it can be I think well I I think it I think it's well within the bounds of Company B to be able to take that injury especially as a result of the fact that they was like so what do people think about that this is a the hypo I'm getting as will as Wills described um is clear like like company is going to win at the end of the day on breach of contract but really no irreparable injury right we're just talking about a Ply amount of money for a multi-billion dollar company it's not like they can't keep operating and doing everything how should that factor in when we think about the the the use of this yeah Alex yeah I think like if they're both multi-million or billion dollar companies they're going to have the money sitting around either way to pay the damages so you might as well just let it go through litigation just to make so so you're saying don't give the preliminary injunction and the you're saying without irreparable injury do you I guess the question is without the reparable injury part of this analysis do you need a preliminary injunction you're saying let it go through why would you want to prefer to let it go through let it let by in other words go through the process of having a trial on the merits or a full exploration of the merits generally in our system the presumption is that everything should go through unless there's some really emergency situation like an irreparable harm for instance people's constitutional rights being violated um in the Pres and that need to stop during the trial but these multi-million doll companies they can pay either way at the end of the trial and you don't really need the foney now they could pay with interest right at the end so the irreparable injury does a lot of work here because of the fact that regardless of how likely one party is to win on the merits this is an extraordinary remedy coming before a full exploration of the merits of the case and the idea is we're only going to turn to this if we think that we could not remedy the harm at the end of the day without acting now right and that was the protest situation and you know with winter I think that's also the situation but much harder to argue with a multi-billion dollar company right that they'd suffer any kind of harm long term so even if it looks very very much like this number one factor the likel of success favors one party you still need a reparable injury but you will William let me ask um this question would it help this uh group nrdc and the others supporting it if the Navy conducts its exercises and then at the end of those exercises you know months later when this case finally gets resolved on the merits then the Navy issues an environmental impact statement is that any benefit I I think that it would probably help their cakes part of what wait wait wait with the plaintiffs the environmental companies who want to environmental groups sorry who want to protect the Dolphins and the whales or whatever would it help them if after the Navy conducts all of its exercises it then issues an environmental impact statement would it help them as far as succeeding in a the motion would have help them as far as with their greater what are their greater goals they're their great desires I mean the greater desires to prevent the irreparable injury to the Marine go Wildlife to ecological yeah kind of point of the world so in that respect no it wouldn't help in winning at the end of the day the environmental impact statement issued after the Navy conducts these exercises is I think the court even says here it's you know the game is over like this lawsuit would be dropped at that point right or unless they only thing they could do was maybe establish precedent or but they've gained nothing if at the end of the day then maybe says oh we just issued an environmental impact statement after we conducted all of our exercises and we've discovered we really shouldn't have done it because it killed all the dolphins right like that's it's not of any help to the ultimate interests of this group so this is a situation in which there is both irreparable injury and a likelihood of success on the merits the court major I think The Descent makes that clearer but there's at least some good chance right because the the law says you have to enter an environmental impact statement it all seems to turn on public interest as the court defines it we'll start next class with that factor