Ripeness Ripeness – requirement that P show a “substantial and realistic” threat of harm personal to P before a court will enjoin future conduct. Today will discuss “advanced” issued with ripeness:  When can a D make an otherwise ripe threat of harm unripe (or moot)?  E.g., Can D make a preventive injunction non-viable by changing behavior and claiming “it won’t happen again”?  Enjoining lawful events with uncertain consequences  Use of prophylactic injunctions (kind of a scope of injunctions issue like Marshall v. Goodyear)

Ripeness & Mootness – jurisdictional and equitable mootness (WT GRANT)  Jurisdictional: Mootness/Lack of ripeness is an Article III issue. Court must dismiss for lack of jurisdiction as required by U.S. Constitution.  Unripe/Moot: No reasonable expectation that the wrong will be repeated  Equitable: Mootness/Lack of ripeness is simply an equitable issue. Court can dismiss as a matter of judicial discretion  Unripe/moot: No cognizable danger or no more than a mere possibility that the harm will re-occur

Mootness in W.T. Grant – 3 factors re whether injunction should issue/be dismissed there is “no cognizable danger … that harm will re-occur” 1. Bona Fides of D’s Expressed Intent to Comply 2. Effectiveness of D’s Discontinuance of Bad Acts  Effort devoted to ending violation  Difficulty in starting up again 3. Character of D’s Past Violations  Intentional v. Negligent  Pattern v. Isolated Incident  Temptation Inherent in the Job

Prevent Injunctions, Ripeness & Uncertain Consequences  Court will only grant an injunction if the threatened harm is ripe – i.e. there is a real and substantial threat of harm personal to P  What do P’s in Nicholson seek to enjoin?  Does D show a propensity to do this?  Then why is the injunction not ripe?  How is this situation different from Al Murbati?

Enjoining Lawful Conduct due to Potential Unlawful Consequences  Court doesn’t per se preclude the notion of issuing this injunction. But ripeness will always be a problem and evidentiary support an issue with such injunctions.  What kind of evidence would Nicholson Ps need to strengthen their argument that the feared harm is ripe?  Is it possible to make a comparison to Brainard or Jack v. Torrant?

Enjoining Lawful Conduct Due to Possible Unlawful Consequences – Nuisance Cases Comes up most often in “anticipatory nuisance” cases Anticipatory nuisance = use of property is not per se unlawful but under these circumstances and at this location the use of the property is unreasonable and a nuisance. What are the standards for Nicholson-type injunctions? Many different formulations: “Nuisance is to a reasonable degree certain” “Nuisance will necessarily occur” “There is a strong probability of a nuisance”

Another Twist on Enjoining Lawful Conduct – Pepsico, Inc. v. Redmond  What was the threatened harm if Redmond moves to Quaker?  Was there any doubt in the court’s mind as to whether this harm was ripe? Why?  What specific order did Pepsico seek – did it only seek to prevent the feared harm?  Why did the order go beyond the preventing the feared harm?

Prophylactic Injunctions & the “Rightful Position” Rule Pepsico takes us into the realm of the “prophylactic” injunction.  Defined: Injunctions that aim to restore P to rightful position but the terms of which impose conditions that go beyond (or seemt to go beyond) P’s rightful condition.  Such injunctions may (as in Pepsico) aim at actions that are not illegal or they may bar/require D to do things in addition to the direct order needed to prevent harm to P (Wilson Metal Casket).  These injunctions largely involve tailoring issues stemming from a ripe harm – i.e., what sort of injunction is needed to prevent the harm.  When are prophylactic injunctions warranted and when do they become unwarranted intrusions or overly broad?

Prophylactic Injunctions - Wilson Metal Casket (n.5)  W (owner of company) followed several women to isolated areas of the company, sexually fondled & propositioned them, forced some to perform oral sex & caused at least two to quit due to the advances and another’s husband to think wife was having an affair with Wilson until she told him the true situation.  DCT found a hostile environment under Title VII; issued order barring W from “asking any female employee to accompany him off the premises of the Company unless accompanied by at least one other employee, and kissing or placing his hands on any female employee in the work place.”  Is the injunction reasonable even though it prohibits legal behavior? Why?  What could court do if this injunction doesn’t work? Prohibit Wilson from entering premises? Force corporation (of which he is primary shareholder) to fire him?  Why isn’t the original nationwide injunction in Goodyear v. Marshall simply a prophylactic injunction?

When are courts most likely to use/uphold prophylactic injunctions?  Culpable defendants (Pepsico, Wilson Metal Casket)  Repeated violations (abortion protest case Schenck in notes after Pepsico)  Difficult to enforce a simpler or narrower order – broader order deemed necessary to ensure P’s rights met (Pepsico)  Note re the injunction – prophylactic provisions should be related closely to ameliorating P’s original (legally relevant) harm  Example – Wilson Metal Casket  Original harm – isolating women, illegal touching/assault  Prophylactic – trying to prevent this harms by barring being alone with women or any touching