Inside the Classroom: Civil Procedure With Amanda Frost

AMANDA FROST: Let's get started. So today we are going to be finishing up our material from last class on the summary judgment, judgment as a matter of law, and a renewed motion for judgment 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 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 to use these vehicles throughout the litigation. So 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 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 12(b) defenses, including most relevant here the 12(b)(6) defense for failure to state a claim.

And so that's a moment in which the case could end, obviously, without a jury being involved. And by the way, that 12(b)(6) defense as the defendants stating that a claim, the cause of action, 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. 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 evidence has been gathered on either the entire case, or at least a claim in the case, the defendant can move for summary judgment under Federal Rule of Civil Procedure 56. 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 in dispute, there might even be relevant facts in dispute, but it has to be that it doesn't go to the issue at stake in summary judgment because the defendant could be granted judgment as a matter of law regardless of that factual dispute.

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 the end of last class, and so let's finish those up today. So why don't I get Will to help us out here? So, Will, in the hypotheticals that we were looking at at the end of last class, we had-- I think, we had not reached hypo 6. So in that hypo, we assume that there's no dispute anymore about whether or not this verbal contract is enforceable between renter and landlord. And the only question is, did they have a contract?

And then there's-- you get some information about what came out at discovery, and whether or not that contract-- there seems to be evidence that there was indeed a contract formed. And so based on that evidence described in those bullet points, we see that there's landlord pretty clearly saying, no, 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?

WILL: She'd like to want to move for summary judgment just because then case would be over. She'd win. I don't know if she would be granted summary judgment just because the point at issue is the material fact of the case, did this contract exist? And we'd won this stack binding mechanism of jury or a judge to determine that was the case with now, well, then--

AMANDA FROST: So what Will is saying, there's now no question about this underlying legal point that we had in the previous hypo, which was-- well, if it was just a verbal contract, and those are not enforceable in the state of Virginia, then it doesn't matter whether or not there was a verbal contract. 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 enforceable 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. This hypo says, verbal contracts are enforceable. And then you look at some evidence about whether or not there was a verbal contract.

And Will, it sounds like think that the judge should let this case go to the jury and be decided because there's a dispute over this fact. But we don't have a ton of evidence about this. 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.

MAGGIE: I think you could say that there's not sufficient evidence for dispute over this fact because the render stated she couldn't remember. The jury would say there's not sufficient evidence to prove either way, whether or not there was a verbal--

AMANDA FROST: 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's side. Landlord has-- well, what does landlord have in terms of evidence?

MAGGIE: Landlord has that her assistant submitted an affidavit saying she did not believe they reached a final agreement in addition to her [INAUDIBLE] she has two things there. She does remember verses renter just had a recollection of it.

AMANDA FROST: 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 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 saying, well, 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 Celotex case and the trilogy in 1986 that really changed the way courts use summary judgment. So what's changed there after 1986 that would lead the court to at least consider a motion for summary judgment. Is there zero evidence of a contract? Lance, what do you think? Is there a zero evidence of a contract?

LANCE: There's not zero evidence. But there is very minimal evidence, especially on how the renter delivered her side. I'm not sure this is right. But I think-- I mean, I think during the summary judgment motion, renter would be saying no reasonable jury could side with a renter on the issue. Potentially, she would-- I guess landlord would be saying that renter couldn't meet her production burden, much less, her persuasion burden because of how very little evidence she's provided.

AMANDA FROST: 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 a weighing of the evidence. But basically, what the court is saying, if it chooses to grant landlord's motion here, is there is maybe a circle that includes what the judge would say, OK, 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 something. But if there is a scintilla of evidence or just a little bit of evidence-- remember our evidence scale, if there's zero evidence there's a contract, obviously, 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, a scintilla or maybe just a small amount that the court says, no reasonable jury could rule for the party in this situation. Then the court would say, if it's 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 summary judgment just because the judge thinks the evidence isn't sufficient. 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-- if you were the judge in this case, Will, how would you rule? What would you think?

WILL: Well, I'd hope for that I'd have some more law school before.

[LAUGHTER]

AMANDA FROST: No, no, no. You're perfectly prepared. You had civil procedure. What more do you need?

WILL: I would probably be in for the landlord. And Sally, sorry, she didn't really need her burden of production, that stuff.

AMANDA FROST: Because you would want more than a little bit. And by the way, you said you wanted more law school. What's 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. I mean, think about the Scott versus Harris video that we watched last class.

That's what the Supreme Court watched. They watched six 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 driver was causing a hazard to life of others. But that doesn't-- does that look like a legal judgment to you?

WILL: Yeah, maybe some-- maybe common sense school.

AMANDA FROST: Yeah, so that's-- I mean, that's a reaction to watching-- to human reaction. 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, I'm not sure how much that's to do with the knowledge of the law. And maybe that's part of the critique here that courts are starting to act more like jurors.

That's, of course, what Stevens was in his dissent in Scott versus Harris. And I know I didn't give you that case to read. But I told you about the dissent. He referred, throughout the dissent, to the majority as the members of the jury say this. And these other jurors said that. 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 at the door either. And the idea is what could a reasonable jury do. So that hypo gets to that question. So let's-- and by the way, definitely, landlord should move for summary judgment, no question. Whether she should be granted it is a harder question.

So let's move on to hypo 7. And why don't I get Daniel MacDonald to help us out here? So hypo 7, 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 minds. Renter finishes presenting her case and rests. So what should landlord's lawyer do at this point?

DANIEL: 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 basically, by never having a meeting of the minds that that is also agreeing that there's no oral contract or verbal contract. And so basically, she just be arguing that renter has conceded there's no contract.

AMANDA FROST: Great. So the trial, as the casebook explains, is broken up into two parts. And it's first, plaintiff presents their case in chief. And then there's this moment in the middle. And then defendant presents 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 under this hypo, at the moment that she's being asked to testify this at trial-- about this at trial because she says, well, there was no meeting of the minds.

So do you remember what rule we turned to for this. At this point in the trial after plaintiff has presented her case in chief and basically conceded that there was never a meeting of the minds, absolutely, the defendant landlord should then see if this case can go away. And how did you frame what she should ask for and--

DANIEL: So rule 50 is judgment as a matter of law.

AMANDA FROST: Great. So rule 50, judgment as a matter of law. And this is a moment in the trial where you're saying to the judge, this should not go forward. The jury has been in panel. The jury has listened so far, but-- or if it's a bench trial the judge has. But at this point, the case should end. And there's no need for me to present a defense or for us to wait this jury verdict because again, what's the question the judge is resolving because why in light of the very weak really nonexistent evidence of a contract, which the judgment as a matter of law.

DANIEL: In rule 50, it says that a reasonable jury would not have a legally sufficient evidentiary basis. So it's what a reasonable jury would decide.

AMANDA FROST: Great. And that judgment is a matter of law language appears consistently throughout. We see it in the summary judgment. We see it in the rule 58. We see it in rule 50(b). And the point of this is at every stage is the question of looking at the evidence we have at this stage. Is there either a legal question that takes this case away from the jury, or is the evidence so 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. So Daniel, staying with you for a second, what about hypo 8, which is 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 plaintiff is producing a contract with a signature on it. That seems like-- well, let me ask, would you get judgment as a matter of law at that moment if you were a landlord asking for the judge to say this case should end if in the plaintiff's case in chief, the plaintiff had produced a signed contract with landlord having signed it?

DANIEL: So wait, so where are we at in the process?

AMANDA FROST: So let's say, plaintiff, in her case in chief this time, instead of hypo 7, where she had really no evidence, in hypo 8(a), she's got evidence of a signed contract.

DANIEL: Oh, OK. I think that that landlord would then be arguing that she hasn't been fully heard on this issue because she's going to be presenting the evidence about the forgery of the signature.

AMANDA FROST: Yes, and so, certainly, plaintiff would not succeed at this point if she moved for judgment as a matter of law because we need landlord to have a defense-- her opportunity for defense. But would landlord be able to-- maybe she could do it. But would she win if--

DANIEL: I don't think she would because at that point, I mean, it seems like renter's then meeting her burden. So I don't think she'll win.

AMANDA FROST: Great, great. So there's been a signed contract introduced into evidence. It seems like no way would landlord win the motion for a judgment as a matter of law based on this now clear evidence of a contract that was presented in plaintiff's case in chief. But then we've got the second-- the defense. Now we've got the defendant, the landlord's opportunity to present the information, the defense.

And she says there's evidence and maybe demonstrates this that my signature on that contract was forged. So then, what should landlord do at the end of the presentation of that case in chief?

DANIEL: So I think that she should still move for a judgment as a matter of law because the language talks about a legally sufficient evidentiary basis. And so I think she'd be arguing that because she's shown evidence that the signature was forged-- there's forged. There still isn't a legally sufficient evidentiary basis.

AMANDA FROST: Great. So the idea is 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, 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. So why don't I turn to Mallory and get her to help us with the next hypo.

So what happens here, the next hypo says, the jury issues a verdict in renter's favor-- and this is under the same facts that I was just talking about with Daniel, where there's a contract. And then there's evidence that it's been forged. Nonetheless, a jury issues a verdict in renter's favor. What should landlord do at that point? So to put this on our litigation timeline, we have a verdict. And the jury has spoken. What happens next?

MALLORY: So then I think landlord should-- assuming that she raised the direct-- current judgment as a matter of law request prior to the jury verdict, she should raise about any and ask for a judgment notwithstanding the verdict. Jane will be--

AMANDA FROST: So this has got many different names. It's Federal Rule of Civil Procedure 50(b). And the rule makers wanted to rename it to give us a sense that they're all connected. So this is-- a motion for a judgment as a matter of law under 50(a). And then 50(b) is a motion for a new judgment 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 a judgment as a matter of law during the trial, could she move after the verdict for-- and why not?

MALLORY: Because of the-- I think it is just evidentiary. It's the jury trial warning that says that no facts tried by a jury should be reexamined. So it's fine that the book called it a fiction. Those are the initial. It's safe just to judge initial-- well, people.

AMANDA FROST: Yeah, because this is-- the Seventh Amendment jury trial, you're supposed to be inviolate. You're supposed to have the jury issue your judgment. And you're not supposed to be able to reexamine 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 casebook refers to it as a fiction. And it really is that. It's this idea that when the judge denies the motion for judgment as a matter of law before the jury has issued the verdict, what the judge is really doing 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 as a matter of law. And you go back to the earlier motion and say, well, we're not really second guessing the jury. We're just granting that motion that was submitted earlier.

So affection but one the courts now have accepted for a long time, and yet that's another opportunity for the-- yet another opportunity for the court to take a case away from the jury. And we talked a little bit last class with the Mahdavi case, Mallory, 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.

MALLORY: I think the main reason seems to be for matters of appeal. If the appellate court disagrees with the judge, then they essentially have to choose between rather than if the judge rules before the jury comes back, and the appellate court disagrees, then they'll have to do a whole trial, which is an enormous waste of resources.

And I think moreover to 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 juror would find in favor of the plaintiff, then allowing the jury to make that decision for her would--

AMANDA FROST: 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, the legitimacy of the outcome, the sense of a cross-section of the community weighing in, the sense of crowdsourcing. 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, hopefully, this jury is a reasonable jury. And then there's also, as Mallory mentioned, the fact that it exists on appeal because if the appellate court-- and there's almost sure to be an appeal.

If you get a jury verdict in your favor and then a judge reverses that on JNOV or directed verdict or motion for a new judgment, whatever you want to call that, 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 appellate court by saying, rather than terminating this early, I've let a jury speak. And then we can put in place-- back in place the jury verdict if you disagree with me, appellate court.

Whereas if the entire jury is impaneled, 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 casebook 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, renters shouldn't have one maybe in the judge's view or at least the judge certainly wouldn't have ruled for renter. It's a borderline case. The judge might say, well, gather the parties. The jury has been dismissed.

And the judge might say to renter and landlord, I'm seriously considering a renewed motion for a judgment as a matter of law or JNOV, or a new trial right would be another option under Rule 59. I'm seriously considering one of these vehicles. But I think I wouldn't do it if we just reduced that jury award by half. It's called remittitur, 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, who I'd been representing along with other 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 might not do so if you can agree, basically settle at this moment for about half of what the jury offered the plaintiff.

So that puts you in a hard position as the lawyer 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 judgment notwithstanding the verdict and argue before an appellate court that the verdict should get reinstated, risk a new trial, where we have to do it all over again at a lot of expense, or just take the half a loaf right here and walk away?

So judges can do that. Every so often, they do additur, where they add to the jury amount. But that's really rare. It's the remittitur. 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 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, the client would make that choice, not the lawyers. So questions about any of that before we move on and talk about provisional remedies, which is our topic for today. Yeah.

STUDENT: So is that last one a JNOV?

AMANDA FROST: Yes. So sorry, they've got a lot of names. So judgment notwithstanding the verdict, judgment non obstante verdicto, if anyone knows Latin, feel free to correct me on that pronunciation. And renewed motion for judgment as a matter of law are all the same thing. And I would say, use one term. I would have only used one term with this class, except judges use all these terms. They're old.

They 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, JNOV will fall by the wayside. But it's still something that courts use as a term. So I need you to know it. Yeah, Rachel.

RACHEL: Question about the foraging, according to Rule 56(b), I was just so confused as to how-- is that a proper answer until the answer has been in sense of forgeries rather than the question of the actual searches of the evidence?

AMANDA FROST: Wait, sorry, so what are you looking at?

RACHEL: 56(a), failing to properly support or address the fact.

AMANDA FROST: 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. We're like, well, why is Rule 56 something we talk about over here before we get to trial and in Rule 12(b)(6) 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(b)(6) 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. If you ever look at anything outside the complaint and the answer and the other pleadings, then it's no longer a 12(b)(6).

A summary judgment motion is the same standard. 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.

STUDENT: So if a judge decides to reduce the amount of the award, does it need to be agreed on by the two parties since they're a part of the JNOV? They're separate from that as well--

AMANDA FROST: So the judge-- that's a really good question. So the judge could say, I'm only going to enter this verdict in your favor based on the reduced award.

STUDENT: Thank you.

STUDENT: Just thinking about our conversations around juries, is there any sense that if you appealed a decision in JNOV that an appellate court would be more likely to reinstate the jury because of all of the conversations about legitimacy of juries and things like that?

AMANDA FROST: You're certainly-- there's two options. If you've lost at the jury phase. And then you try to appeal on the ground there was some legal error in 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 because then it's not a matter of just did the factfinder get it right.

But was the judge correct to essentially overrule the fact-finder? In the fiction, we don't refer it to that way. But that's what the court will-- the appellate court will think. So 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 appellate 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 fact-finder, you're very unlikely to get the judge to say, well, we would have-- the appellate court to say, we would have found the facts differently. You'll have to find some other legal error that occurred in the process, like maybe evidence was excluded that shouldn't have been. Yeah.

STUDENT: Just to clarify the claims with point of independent in the trial section. It's 50th in the slot--

AMANDA FROST: Oh, sorry. So you're talking about which--

STUDENT: FRCP.

AMANDA FROST: 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 rule 50(a) is where you get a judgment as a matter of law in the course of the trial. 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 where you look at Rule 50(a).

And then post the verdict is renewing the motion after trial, Rule 50(b). So I'm happy to answer that question, but I want you to the answer is also in the rules. And I want us to stay focused on that language. So 50(b)-- apologies for the terrible handwriting. Let's move on, unless there's other questions?

So now we're moving on to talk about remedies. So again, with our litigation timeline, this comes up here with the question of the verdict, the final outcome. So what is the remedy? 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 form of injunctive relief or requirement that a party take action or stop taking action.

So this moment in time, though, that we're talking about-- this is a remedy you'd get at the end of the trial, at the end of your case. After presenting all of the evidence to the fact finder, 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 Madeline to help us here.

We read about provisional remedies. So what are those, and why would you ever need them or want them when they come early in the day not at the end of a case?

MADELINE: So provisional relief is basically when you're asking for more elements of a plan have been proven. And the book, like you mentioned, talked about securing a judgment, which is essentially like reaching out and taking hold of something. I think so that it's there at the end of the trial or the litigation in case there were any.

And we also learn about maintaining the status quo, which seems like with this, it exists from the split for rent [INAUDIBLE].

AMANDA FROST: Yes, so securing the judgment, let's start with that. And we'll get to 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 party A sues 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?

MADELINE: 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.

AMANDA FROST: Held by the court. And do you have a sense of how that might work as a practical matter?

MADELINE: So it's either could be a public official or that the court could designate a receiver to hold it.

AMANDA FROST: So basically, there would be a going into party B's bank account or maybe their-- if it's a company, their 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. So first of all, has party A won anything when this is happening?

STUDENT: No.

AMANDA FROST: No. Have they presented any evidence that they should win?

STUDENT: No.

AMANDA FROST: No, they haven't. So this should strike people as somewhat extraordinary. 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 and may in fact not win.

So that should be a moment that we think that's fairly extraordinary. And we did a little bit of reading, not a lot about this kind of remedy. So let me ask this, when you read this, did you think, huh, this is suggesting that courts should be more careful or maybe should this be granted in every case. And if not, why not?

Madeline, did you have a view on that? Is this something where you're thinking, well, yeah, every time a party wants to seize the asset of somebody else, maybe a dispute over a title of a house or money in the widget contract, that courts should step in and allow securing of the judgment?

MADELINE: I think it's something you would definitely need to be careful with. It reminds me of due process if you really need to make sure you've given someone notice before you take something away from them. And I think that's why the rule has the security element of it, where if you're going to ask for the relief, you have to put up some sort of almost, like, collateral or some sort of money to insure that if it was wrongly taken, you can compensate that.

AMANDA FROST: Great. So Madeline, there's a couple of things. One is absolutely, this should set off like all the due process alarm bells, 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, 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 very clearly.

The rule that governs this-- and we'll just look at it really briefly, is Federal Rule of Civil Procedure 64, which turns to state law. So it incorporates state law into this decision making. And so 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, replevin, getting someone of the return goods. Sequestration, we already saw that vehicle being used in Delaware if you remember in the Shafer case. 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.

So yes, you look to state law. But remember the backstop 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, 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. Nonetheless, do we think this is a remedy we should allow. Why don't I ask Maggie? So Maggie, when you think about these provisional remedies, should we just say they're just to-- first of all, are you-- do we think that courts should have this power to give somebody a remedy or at least secure the judgment before there's been any evidence on whether they should win their case?

MAGGIE: I think there is some benefit to it in the fact that you're protecting plaintiffs for whether or not a defendant actually shows up, whether they try to prove the case, whether they're trying to escape. We looked at examples of defendants trying to get out of being served. I think doing something like this actually gives the plaintiff and the defendant an opportunity to be heard in court.

But I think the point that Madeline mentioned about securing the judgment or having security about the exact term of that also puts a burden on the plaintiff to make sure that they're not just doing this erroneously.

AMANDA FROST: Or just to harass or to pressure the defendant into settling because that would be another concern. But Maggie makes a good point, which is, well, the reason for this provisional remedy of-- 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 plaintiff'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, the courts 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. Courts have to be careful of the rights of both parties. And so the court will be not willing to give these without an opportunity. Typically, an opportunity for the opposing party will be heard or at least, if not immediately shortly after the attachment or the garnishment or the sequestration or whatever one of these 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 go 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 to harass a defendant, even when the plaintiff's legal claim is not strong.

So that's one use of these provisional remedies. And then the other one I had you read a case on, which is either preserving the status quo or basically checking-- having the court issue a judgment or issue a decision to prevent an opposing party from changing their conduct 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. And why don't we get Tom to jump in here? So Tom, first, just tell us a little bit about the context here. Who is Detroit Will Breathe? And why are they suing the city of Detroit?

TOM: Detroit Will Breathe is the activist organization that was founded in the wake of George Floyd and his death. And as we all know, there were a lot of protests that formed up around the country. And they were filing this because they claimed-- and the court seemed to give-- seemed to think that their claim had pretty good basis, that the police for the city of Detroit were using excessive force and extraordinary measures to quell certain protests around the city. And that the police were quashing their right to free speech and to have a protest.

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 in order to suppress.

AMANDA FROST: And do you remember what some examples are of 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?

TOM: Yes. So some of it was 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.

AMANDA FROST: And the court actually mentioned, so I was looking back-- by the way, there's like the Civil Rights Clearinghouse where you can go and look at all of the documents filed in cases like this. And I was looking back, and they have complaining witnesses basically supporting their motion for a temporary restraining 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 this August 22, 2020 protest and police response. So let's-- hopefully, it will play.

[VIDEO PLAYBACK]

PROTESTERS: Why are you in riot gear? We don't see no riots here. Why are you in riot gear? We don't see no riot--

AMANDA FROST: Buffering.

PROTESTERS: Why are you in riot gear? We don't see no riots here. Why are you in riot gear? We don't see no riots here. Why are you in riot gear? We don't see no riots here. Why are you in riot gear? We don't see no riots here. Why are you in riot gear? We don't see no riots here. Why are you in riot gear? We don't see no riots here.

Why are you in riot gear? We don't see no riots here. Why are you in riot gear? We don't see no riots here. Why are you in riot gear? We don't see no riots here. Why are you in riot gear? We don't see no riots here. Why are you in riot gear? We don't see no riots here. Why are you in riot gear? We don't see no riots here. Why are you in riot gear? We don't see no riots here.

Why are you in riot gear? We don't see no riot here. Why are you in riot gear? We don't see no riots here. Why are you in riot gear?

[END PLAYBACK]

AMANDA FROST: All right, so that gives you a sense. And the judge watched that as well and refers to it in the opinion. So I think can hear the chant. But the chant was "Why are you in riot gear? We don't see no riots here." And then obviously, you can see tear gas being used and batons being used in that clip.

So that's the part of the evidence the judge reviewed in terms of deciding what would be permissible and in terms of a provisional remedy, a temporary restraining order. So temporary restraining orders are different from preliminary injunctions, which we're going to look at in a minute.

And let me ask Tom, was every party that was sued, the Detroit Will Breathe, the group that represented the protesters, sued a number of different people, 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?

TOM: No, not necessarily. Only some of them were available. And they had sued the city of Detroit, the police Department, and all officers, agents, and departments under the police department's control. It's quite a broad range of defendants.

AMANDA FROST: Broad range of defendants and not everybody was present. They tried to serve and got served-- did manage to serve several of these parties to give them notice. But not everybody was there present. And as you say, you couldn't have every officer there anyway. But in addition, there was-- the court seems comfortable with the idea that maybe it will issue 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 ex parte proceedings are generally very disfavored in our legal system. I wanted to get Jennifer to jump in. So Jennifer, why would you generally say a legal system shouldn't allow an ex parte proceeding or our legal system shouldn't allow that? What-- proceeding where the people where all the parties affected aren't present and maybe don't know about it.

JENNIFER: I think that would be forgoing due process, like if I was-- the thing that you aren't there, I believe, are not having an opportunity to be heard.

AMANDA FROST: So it's this idea that absolutely violates your idea of what due process is if you don't even the proceeding's 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. 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 not everyone's present, but some of the parties are present. And these protesters are asking for a temporary restraining order, asking, as Tom told us, to stop using batons, stop using tear gas. I think there was a question about using the ties on the wrists when they arrested people and tightening them so much that they were cutting off blood circulation.

So there was a number of things where the protesters said, 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 murder. So in light of that, we've got this request for a form of relief. And the court has got to run through the factors for a 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 heard.

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. I want to get Eric to jump in here.

So Eric, when a court is deciding whether to grant some form of provisional relief, a temporary restraining order, before the case has been fully heard on the merits, this is extraordinary. This is a moment where the court acting beyond the powers you might usually think, which is it only can issue a judgment after it's heard all the evidence. What is the court looking at? There's a four-part test the court looks to before it can issue such relief. And what does it look at?

TOM: There's the first element and what the court says is generally decisive is whether or not the plaintiff-- the likelihood that the plaintiff will succeed on the merits, so whether or not if the case goes to trial, would they actually win and then get that relief at the end of the trial. And then the other important factors are also whether the risk of irreparable injury to the plaintiff 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? And then finally, whether or not it serves the public interest.

AMANDA FROST: So irreparable injury. Balance of the equities is what factor 3 is referred to often. But the idea is how are the parties 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 let's start with likelihood of success on the merits. So Eric, how do you figure out whether the plaintiffs are going to succeed on the merits-- or 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?

ERIC: Well, I think Fourth and First Amendment constitutional violations, excessive force under the Fourth and this free speech violation is not be able to [INAUDIBLE]

AMANDA FROST: Great. So they're saying we have constitutional rights to protest peacefully under the First Amendment and also not to be-- have the police react to us with excessive force under the Fourth. So those are the constitutional violations of 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 TRO?

STUDENT: No, not at all.

AMANDA FROST: Not at all. The case 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 TRO 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?

ERIC: So the court starts to do a little bit of fact-finding. They then start to look at the information that the plaintiff and the defendants have both submitted 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, again, like the reasonable fact-finder in the case would rule in favor.

AMANDA FROST: 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 plaintiff provided. If there is a moment for a hearing, which there isn't always. Sometimes it's entirely ex parte. 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. Great. So that's one problem. This factor requires you to how the case is going to play out in terms of evidence and support. It requires the judge to have a view on that at such an early stage. And that's one reason to think this looks like an extraordinary remedy.

Why don't I get Katie on to jump in here? And what about the second factor, irreparable injury, what was the argument by these Detroit Will Breathe protesters that they needed this TRO, and that it would cause irreparable injury to them not to have it?

KATIE: So they said that the irreparable harm had already occurred because they, well, suffered a violation of their First Amendment freedoms. And that without the TRO, they continue to suffer constitutional violations against the police because the protesters are still going out.

AMANDA FROST: So this idea was we've already suffered 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? If they've got such a great First Amendment and Fourth 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 tightened too hard and all those things.

KATIE: So I think it's because the protests are still ongoing. So they still-- the protesters, if they weren't granted the TRO or they hadn't even gone to the list of proceedings [INAUDIBLE] the police could still use these, the tear gas and batons, on the protesters. And they would, I think, lose their right to definitely to protest.

AMANDA FROST: And how long-- just generally, 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?

KATIE: No.

AMANDA FROST: If you've learned nothing else in civil procedure, you've learned these things take time. So it might be months later. It might be months later, even if you tried to push it faster. And so the idea is, but we want to protest tomorrow. It's 10:00 AM in the morning, and we have a protest planned for 6:00 tonight. That's when you need the TRO. You need immediate relief because my rights are immediately at stake.

I am-- you're a part of a protesting group that wants to be back on the streets exercising my First Amendment rights within a matter of hours. And so I need this protection right now. And the violation of First Amendment rights, the court says-- and this is in line with lots of precedent, is itself an irreparable injury. Like, every day, you cannot speak in a way that the First Amendment protects is itself an irreparable injury.

So then there's the balance of the equities and the public interest. Katie, did you have a sense of how that played out in this case or generally plays out?

KATIE: Yes. So the balance of the equities in this case, the court said that the relief that the plaintiffs want, which was the TRO against the tear gas and batons and excessive force, would still leave the police open to these lawful options to use reasonable force to defend against threats and to make arrests only with probable cause.

So in that case, the balance of the equities and the competing claims of the injury were found towards them anyway.

AMANDA FROST: 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-- 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 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 destruction of property, prevent harm to others. It's just that they're going to have limited use of-- or no use of these tools that they had been using, like the batons and the tear gas.

This last factor, the public interest factor, the court barely talks about it here. And I'm mystified by this factor. So what work does this do? What do you look to if you're a court in terms of the public interest factor. I'll just get volunteers on this. What does that mean, the public interest factor? In light of this case, it also comes up in preliminary injunctions, which we looked at in the Winter case.

What is that-- what does that mean? Yeah, Greg.

GREG: Is it possible that it would benefit people who didn't want a part of the lawsuit to begin with or if additional protesters said, oh, now that this thing has passed, I feel safer to go protest.

AMANDA FROST: So the public interest, it seems, Greg, says takes into account the larger world and the good of all of us. So that's amorphous, 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? So we'll reserve that question for one second. And just say, so who could claim a credible public interest in the outcome of this TRO seeking to restrain the police? Greg's already mentioned maybe other groups of protesters. But can we think of other people? Yeah, Sami.

SAMI: Not that I agree the police could say that they have a-- they tried to enforce a law to maintain the order--

AMANDA FROST: Maintaining order enforcing the law in their own safety, their own safety, for sure. They were-- 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 should have an interest that we take into account or might take-- is it Kyle back there? Yeah.

KYLE: I think property owners and small business owners would probably say, hey, this protest could get out of hand and damage our things. We have an interest--

AMANDA FROST: Absolutely.

KYLE: --in not having a TRO.

AMANDA FROST: Absolutely. And for those who are in the United States at this time, I mean, in cities, they had all the stores were boarded up. They had broken windows or feared it. It certainly decreased business to have protesters every day and people in downtown areas such that 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, Kyle, do you have a sense-- is 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 you have a sense of whether that would normally be considered commercial activity in whether or not your ability to speak could impede commercial activity, or does it matter? Maybe it's 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 TRO as a court, whether the legal claim at issue actually incorporates the interests of these third parties at the end of the day?

KYLE: I don't think that the interests of small business owners or conducting commercial activity trumps any special rights.

AMANDA FROST: It seems like it would be-- maybe it would be something-- I don't want to get us too much 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 TRO 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 injunction context and the TRO 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 have even been resolved, should they take action to change something about the status quo 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. 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-- 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 an issue-- that this is something 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 a business owner, maybe a consortium, maybe the commercial interests that are in downtown Detroit, various businesses that operate, what if instead of the protesters bringing a case and seeking a temporary restraining order to prevent the police from using certain methods of limiting their protests, what if instead it was this commercial district, this commercial entity, this group of business owners in downtown Detroit who sued Detroit Will Breathe and said, we want to limit your protest to a certain part of the city to daylight hours to--

You can protest but only in certain areas and during daylight hours. And you can not bring gas masks or weapons yourself. And you have to variously agree to, of course, not destroy property. And we're going to require you to be subject to this lawsuit and then maybe a TRO to prevent you from protesting in the way you have been because it's disrupting our business and harming our property. What would be the analysis? And how would you run through it? Yeah, Rose.

ROSE: My first thought is that you can make a really strong argument for irreparable injury and saying that destruction of property isn't an irreparable injury, you could have protesters, through a legal process, make payments to install new windows and things like that. And I think that it would be hard for that business district to argue that property destruction is irreparable injury that warrants that.

AMANDA FROST: So the claim to impeding first Amendment rights where you can't protest because of police response is an irreparable injury says the court because every day you can't express your First Amendment rights. 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.

ROSE: Yes.

AMANDA FROST: So excellent point. And when your harm is money damages, that is something where it's much less likely to be found to be irreparable injury. I will say, in this context, it might be awfully hard 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 irreparable because you could get paid money at the end of the day.

Anything else that we think about here in terms of our analysis? Yeah, Carter.

CARTER: This goes back to what Kyle said, too, about someone's right to commerce, not necessarily trumping someone's constitutional right. But the court, 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-- the violation of anyone's constitutional right.

And so a lawsuit that is trying to protect the commercial activity at perhaps the sacrifice of someone's ability to exercise their First Amendment rights, I don't think would really necessarily have the benefit of the public interest specifically.

AMANDA FROST: So to the degree that you'd say, there's a couple of different interests here. But the First Amendment interests trump the commercial-- the commercial interests. Yeah, Liz.

LIZ: I wanted to build off of Carter's point a little bit. I think the public interest question in this case is really interesting because it moves beyond the parties. Here, we saw in the analysis in the opinion, they were looking at different sister courts. So if you're making some movement to limit protests here, the public interest might apply to the community. But it's also going to apply nationwide, the idea of what a protest can look like is that going to be super harmful to them, the establishing this idea that folks' first Amendment rights really fall before commerce.

AMANDA FROST: So this was 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 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 saw those protesters chanting, like, why are you in riot gear? We're not rioting. And to the degree that was true, then the court could say, well, what's going on in Detroit needs to be treated differently.

But to a degree that it was also a nationwide phenomenon, the court needed to respond as well with that idea in mind. And it did. It said, I'm looking to see what other courts have done. By the way, this judge clarified the order a couple of weeks later 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 a degree that there is violence, to a degree that there is destruction of property, police can prevent that.

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, et cetera. So the judge, I think, was trying to be very cognizant of the competing interests in this situation. And it was obviously a time in which a lot of courts had to struggle with this.

So that's the temporary restraining order, which is one type of provisional remedy or relief, one that's turned to as you see in Rule 65, something that the courts have authority to do under the Federal Rules of Civil Procedure and states, of course, have similar authority to do this as well under state law, very similar provisions. And so we'll just look at this for one second to focus in on our rule.

So Federal Civil Procedure 65(b) talks about the TRO or temporary restraining order. And the court may issue these orders without written or oral notice to the adverse party or its attorney. So due process alarms going off when you see that. And then you've got to show why this would be allowed. You've got to have specific facts showing immediate and irreparable injury, loss, or damage and certify in writing efforts to give notice and give reasons why the opposing party couldn't be present.

So to the degree that you could get a TRO without an opposing party present, that's something you've really got to show to the court why it's essential, why there'd would be irreparable damage without it, and why the opposing party hasn't been able to be given notice to participate.

So while due process does require notice and an opportunity to be heard, we can see that in this rule, the rule makers are saying, but there might be some situations in which we would allow for some form of limited temporary relief without it. And you can also see-- we'll talk more about preliminary injunction in a minute. But that's a form of relief where you must give notice. And it's generally sought on a less of an emergency basis.

I will say that when I was clerking, there was always one clerk who had to be responsible for if there was an 11:00 AM, a 2:00 AM effort to get a temporary restraining order because something had come up that was an emergency matter, maybe a patient at a hospital for whom the question was, would they unplug the life support or something like 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-- [LAUGHS] because that meant you couldn't go out. You had to sit around in the courthouse or be ready to come in and deal with maybe a TRO that got filed. And 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 that was the-- you try to avoid being on call at big nights like that. So let's now talk about the Winter case, which is the preliminary injunction. And we'll talk a little bit also with the hypos next class about the difference between preliminary injunctions and TROs to flesh that out. But first, let's talk about Winter.

And why don't I get Ella to 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. But why don't you start off by just telling us who's the dispute between and what are the facts in terms of what the potential harm would be.

ELLA: So the Navy, one of its sonar training to help them practice and be able to detect other submarines, that's the most effective method of doing that. But then the Natural Resources Defense Council, they are wanting to-- it's harming the animals. So they're concerned about that impact.

AMANDA FROST: So there's this use of the sonar by the Navy. And in the course of running its training exercises and the concern is that this underwater emission of this sound waves are disrupting the animals, maybe causing them to beach themselves, maybe changing their behavior, maybe harming them. And the idea is we've got a bunch of groups, not just NRDC but they're only the lead plaintiff 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 preliminary steps along the way. So in terms of-- I know the background law here is complicated. But what is it that the Navy, Ella, was trying to do in terms of avoiding-- or maybe we 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 was some hoops the Navy had to jump through. And what whoops was the Navy trying to avoid?

ELLA: 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 statement or an EIS every time that they are harming the quality of the environment. But this isn't necessary if they issue an environmental assessment that concludes that they have had a significant impact on the environment. And so the National Resource Defense Council has wanted them to do this EIS.

AMANDA FROST: Great. So this environmental impact statement, which is one key part of the federal law-- and there's other federal laws at issue here. But we're just going to focus in on this because this is where the case-- the preliminary injunction was initially issued. This was the ground on which it was initially issued and I think where the parties most were at loggerheads.

So the environmental impact statement is a statement where the party that has to do it has to go and explain, 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 to the environment based on the activity that's at issue and then ways to prevent that harm or at least lessen that harm.

So it included in the document the 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, et cetera. 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 lessen that harm.

So Ella, at the end of the day, did the Navy have to issue an environmental impact statement? And how did 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?

ELLA: So I think that the Natural Resource Defense Council was trying to get a preliminary junction for them to stop using the sonar when they were waiting to see if they would have to do an EIS. And so the court did not decided they had to completely stop using the active sonar. But there were some requirements about exactly how they could use it.

AMANDA FROST: So the court-- the Navy says, we're not going to issue the environmental impact statement. The court puts in place some mitigating activities or limits to how they engage in the conduct. And there's back and forth, like, district court, circuit court, a lot of procedural history here. But the Navy goes to this government agency, the Council on 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.

KEVIN: They said that the Navy could engage in alternative arrangement, which is a very vague term. And they could continue the training exercise because they consider it essential to national security.

AMANDA FROST: So 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-- 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. You don't have to issue that. You can do something less than that.

And they did so claiming authority to tell the Navy that's under a regulation. So this gets us into administrative law we don't need to get into here. But if there's a statute and then there's a regulation, the statute trumps the regulation. 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, the Navy has been told by this other executive branch agency-- and they're all in the executive branch. 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.

So let's talk about the factors for-- we talked about the preliminary injunction-- the TRO factors. Now let's talk about the 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 decided on the merits. And let's run through how the court dealt with these factors.

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 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?

WILLIAM: No, they're not. Generally, at first, [INAUDIBLE] in most dispositive, it would have to be considered. In this case, in district court in the Ninth Circuit, without the plaintiffs, it had likely to be successful. But when it comes to the majority of opinion, they say that the improper standard has amused that the Ninth Circuit and the district court believe that preliminary injunction should be entered based only on a possibility of irreparable harm versus out of the [INAUDIBLE] but the likelihood of irreparable harm in the absence of an injunction, which seems to go to the 50% plus some amount called the over persuasive incentive.

AMANDA FROST: So let me just have her to say, you're absolutely right. These are-- this is the most important factor. And these two factors together, I think, are really the heart of both the preliminary injunction and the temporary restraining order standard. And the question is-- well, let me ask it this way. Let's imagine one multibillion dollar company sues another multibillion 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, ugh, company A is going to win this. Like, this is obvious there was a breach of contract. It's not even-- it's like a joke. And company A says, I want a preliminary injunction requiring immediate payment of the money. What would you say? I mean, you've got likelihood of success on the merits under my hypo. Company is sure to win.

What about B? What about irreparable injury in that situation? Two multibillion dollar companies, $100,000 dispute, would you want to give any sort of preliminary relief to company A?

WILLIAM: I would be-- I would be inclined to impart given what the majority talks about in Winter in section B because it talks about the competing things of injury on-- and while you don't want to-- court shouldn't stray away from awarding ordinary injunctions based on for taking facts things, like, that are going to affect one party [INAUDIBLE] on a broader way.

In that sort of scenario where there is a clear likelihood of success of merit, as well as--

AMANDA FROST: Well, that's what I'm asking. Is there irreparable injury?

WILLIAM: Is it purely irreparable? No. But it's also not irreparable to either party, which means that it can be-- I think, well-- 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 it was like the end result.

AMANDA FROST: So what do people think about that? This is the hypo I'm getting as well as Will's described is clear, like, company is going to win at the end of the day on breach of contract. But really no irreparable injury. We're just talking about a piddly amount of money for a multibillion dollar company. It's not like they can't keep operating and doing everything.

How should that factor in when we think about the use of this? Yeah, Alex.

ALEX: I think like since they're both multimillion or billion 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 sure.

AMANDA FROST: So you're saying don't give the preliminary injunction. And you're saying without irreparable injury, do you-- I guess the question is, without the irreparable 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, in other words, go through the process of having a trial on the merits or a full exploration of the merits?

ALEX: 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 are being violated in the present. And that needs to stop during the trial. But these multimillion dollar companies, they can pay either way at the end of the trial. And you don't really need the money now.

AMANDA FROST: They could pay with interest 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.

And that was the protest situation. And with Winter, I think that's also the situation, but much harder to argue with a multibillion dollar company that they'd suffer any kind of harm long-term. So even if it looks very, very much like this number one factor, the likelihood of success favors one party, you still need irreparable injury.

But William, let me ask this question, would it help this group, NRDC, and the others supporting it if the Navy conducts its exercises and then at the end of those exercises, months later, when this case. Finally gets resolved on the merits, then the Navy issues an environmental impact statement? Is that any benefit?

WILLIAM: I think that it would probably help their case. Part of what--

AMANDA FROST: Wait, with the plaintiffs, the environmental companies, who want-- 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?

WILLIAM: Would it help them as far as succeeding in the motion, or would it help them as far as with their greater--

AMANDA FROST: What are their greater goals?

WILLIAM: Their greater desires. I mean, the greater desire is to prevent the irreparable injury to marine-- the wildlife and ecological part of the world. So in that respect, no, it wouldn't help in--

AMANDA FROST: 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, the game is over. This lawsuit would be dropped at that point or unless the only thing they could do was maybe establish precedent or-- but they've gained nothing if at the end of the day, the Navy 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. 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-- I think the dissent makes that clearer. But there's at least some good chance because 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.