Restitution in the Restatement (Second) of Contracts Joseph Perillo Fordham University School of Law
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Classifying Crime Victim Restitution: the Theoretical Arguments and Practical Consequences of Labeling Restitution As Either a Criminal Or Civil Law Concept
LCB_18_3_Art_15_Shephard_Final.docx (Do Not Delete) 10/30/2014 1:21 PM CLASSIFYING CRIME VICTIM RESTITUTION: THE THEORETICAL ARGUMENTS AND PRACTICAL CONSEQUENCES OF LABELING RESTITUTION AS EITHER A CRIMINAL OR CIVIL LAW CONCEPT by Bridgett N. Shephard* Introduction ......................................................................................... 802 I. Civil Law and Criminal Law Have Become Increasingly Similar and Interrelated, and the Historical Conceptual Divide Has Become Ambiguous .......................... 803 II. The State of Victim Restitution in the American Justice System ............................................................................. 804 A. The Nature of Restitution and a Comparison with Other Remedies ................................................................................... 804 B. Protecting Victims’ Rights in Federal Criminal Proceedings: The Mandatory Victim’s Restitution Act (MVRA) .............................. 806 C. Protecting Victims’ Rights in State Criminal Proceedings with State-Specific Victim Restitution Statutes ..................................... 807 III. The Theoretical Reasons for Classifying Restitution as a Criminal Law Concept ....................................................... 808 A. Theoretical Arguments in Favor of Viewing Restitution as a Civil Concept ............................................................................ 808 B. Theoretical Arguments in Favor of Viewing Restitution as a Criminal Concept ..................................................................... -
2013-2014 Sheathing Restitution's Dagger 899 Under the Securities
2013-2014 SHEATHING RESTITUTION’S DAGGER 899 UNDER THE SECURITIES ACT SHEATHING RESTITUTION’S DAGGER UNDER THE SECURITIES ACTS: WHY FEDERAL COURTS ARE POWERLESS TO ORDER DISGORGEMENT IN SEC ENFORCEMENT PROCEEDINGS FRANCESCO A. DELUCA* “Beneath the cloak of restitution lies the dagger to compel the conscious wrongdoer to disgorge his gains.”1 Table of Contents I. First Principles: A Primer on the SEC’s Disgorgement Remedy, Classic Disgorgement, and the Equity Jurisdiction of the Federal Courts ..................................... 903 A. “Disgorgement” in the Securities Context .................. 903 B. Classic Disgorgement .................................................. 904 C. The Equity Jurisdiction of the Federal Courts ............ 907 II. Disgorgement’s History Under the Securities Acts ........... 908 III. An Analysis of Cavanagh ................................................... 911 A. Analysis of Allegedly Analogous Equitable Remedies ..................................................................... 912 B. Analysis of Binding Precedents .................................. 920 C. Analysis of Persuasive Precedents .............................. 926 IV. The SEC’s Disgorgement Remedy Is Not an Equitable Remedy ............................................................................... 930 V. Implications ....................................................................... 931 VI. Conclusion ......................................................................... 933 * Boston University School of Law (J.D. 2014); Roger -
Modernizing Legal L Remedies for a Toxic World
Modernizing Legal Remedies for a Toxic World A Report Prepared Professor Kenneth Rumelt, Environmental & Natural Resources Law Clinic, Vermont Law School for the Vermont Natural Resources Council and the Vermont Public Interest Research Group January 2018 INTRODUCTION .......................................................................................................................... 1 RECOMMENDATIONS ................................................................................................................ 2 Recommendation #1: Hold polluters strictly liable for any harm they cause. ............................ 2 Recent Litigation Involving PFOA Illustrates the Difficulties in Proving Negligence. ......... 3 Strict Liability Fills the Gap When Environmental Law and Regulations Fail to Protect People and the Environment Fully. ......................................................................................... 3 Strict Liability Encourages Safer Practices for Unregulated Contaminants. .......................... 4 Strict Liability is Not a New Concept in the World of Toxic Chemicals. .............................. 5 Strict Liability Helps Lower Litigation Costs. ........................................................................ 6 Strict Liability Requires No New Government Programs, Regulations, or Spending. ........... 7 Recommendation #2: Authorize by statute the right to sue for the cost of medical testing and monitoring after exposure to toxic pollution. ............................................................................ -
The Restitution Revival and the Ghosts of Equity
The Restitution Revival and the Ghosts of Equity Caprice L. Roberts∗ Abstract A restitution revival is underway. Restitution and unjust enrichment theory, born in the United States, fell out of favor here while surging in Commonwealth countries and beyond. The American Law Institute’s (ALI) Restatement (Third) of Restitution & Unjust Enrichment streamlines the law of unjust enrichment in a language the modern American lawyer can understand, but it may encounter unintended problems from the law-equity distinction. Restitution is often misinterpreted as always equitable given its focus on fairness. This blurs decision making on the constitutional right to a jury trial, which "preserves" the right to a jury in federal and state cases for "suits at common law" satisfying specified dollar amounts. Restitution originated in law, equity, and sometimes both. The Restatement notably attempts to untangle restitution from the law-equity labels, as well as natural justice roots. It explicitly eschews equity’s irreparable injury prerequisite, which historically commanded that no equitable remedy would lie if an adequate legal remedy existed. Can restitution law resist hearing equity’s call from the grave? Will it avoid the pitfalls of the Supreme Court’s recent injunction cases that return to historical, equitable principles and reanimate equity’s irreparable injury rule? Losing anachronistic, procedural remedy barriers is welcome, but ∗ Professor of Law, West Virginia University College of Law; Visiting Professor of Law, The Catholic University of America Columbus School of Law. Washington & Lee University School of Law, J.D.; Rhodes College, B.A. Sincere thanks to Catholic University for supporting this research and to the following conferences for opportunities to present this work: the American Association of Law Schools, the Sixth Annual International Conference on Contracts at Stetson University College of Law, and the Restitution Rollout Symposium at Washington and Lee University School of Law. -
Must the Remedy at Law Be Inadequate Before a Constructive Trust Will Be Impressed?
St. John's Law Review Volume 25 Number 2 Volume 25, May 1951, Number 2 Article 6 Must the Remedy at Law Be Inadequate Before a Constructive Trust Will Be Impressed? St. John's Law Review Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. 1951] NOTES AND COMMENT ing has never been held to be in this category. The choice of program and set and the failure or success of a broadcaster has been left to the public. The approval or rejection of the Commission's decision will decide whether or not these same principles will apply to color telecasts. Whatever the decision of the court, and whichever system of color television broadcasting is finally approved, the controversy will at last have the finality of a decision of the United States Su- preme Court. There will have been a substantial contribution to a new field of law-television law. Under this law the industry will grow and perfect itself. In this way there will best be served the "public interest, convenience, or necessity." X MUST THIE REMEDY AT LAw BE INADEQUATE BEFORE A CONSTRUCTIVE TRUST WILL BE IMPRESSED? Introduction Generally speaking, a constructive trust is a trust by operation of law, which arises contrary to intention 1 against one, who by fraud, commission -
18-1501 Supreme Court of the United States
18-1501 IN THE Supreme Court of the United States CHARLES C. LIU AND XIN WANG A/K/A LISA WANG, Petitioners, v. SECURITIES AND EXCHANGE COMMISSION, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit AMICUS CURIAE BRIEF OF THE NEW CIVIL LIBERTIES ALLIANCE IN SUPPORT OF PETITIONERS ____________ JOHN J. VECCHIONE Counsel of Record MARK CHENOWETH MARGARET A. LITTLE KARA ROLLINS New Civil Liberties Alliance 1225 19th Street NW, Suite 450 Washington, DC 20036 (202) 869-5210 Counsel for Amicus Curiae i TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................... iii INTEREST OF AMICUS ............................................ 1 SUMMARY OF ARGUMENT ..................................... 3 I. THE SEC OBTAINED ITS PRESENT DISGORGEMENT POWERS BY A CAREFUL STRATAGEM OF AVOIDING TEXTUAL OR ORIGINALIST EXAMINATIONS OF ITS CLAIM TO THEM ..................................................... 5 A. How Did the SEC Obtain Its Current Disgorgement Power? .............. 5 B. The Petitioners’ Penalties Starkly Illuminate the Unbound Nature of the SEC’s Assumed Powers .................................................. 12 II. THIS COURT’S MODERN JURISPRUDENCE FORECLOSES THE REMEDY AWARDED HERE AND THE NINTH CIRCUIT MUST BE REVERSED .......................................... 14 A. The SEC Cannot Inflict Penalties Not Delineated by Statute .................................................. 15 ii B. Equity Means Equity and Not What the SEC Wants It to Mean ........ 17 C. This Disgorgement Is a Penalty and Cannot Be Countenanced in Equity ................................................... 20 D. Ruling Against the SEC Here Comports with Other Precedents of the Court .......................................... 23 CONCLUSION .......................................................... 24 iii TABLE OF AUTHORITIES CASES Australian Land Title, Ltd., 92 F.T.C. 362 (1978) ......................................... 11 BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) ................................ 5, 23, 24 Central Bank of Denver v. -
Rethinking Section 142 of the Restatement of Restitution: Fault, Bad Faith, and Change of Position John D
Washington and Lee Law Review Volume 65 | Issue 3 Article 3 Summer 1-6-2008 Rethinking Section 142 of the Restatement of Restitution: Fault, Bad Faith, and Change of Position John D. McCamus Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Legal Remedies Commons Recommended Citation John D. McCamus, Rethinking Section 142 of the Restatement of Restitution: Fault, Bad Faith, and Change of Position, 65 Wash. & Lee L. Rev. 889 (2008), https://scholarlycommons.law.wlu.edu/ wlulr/vol65/iss3/3 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Rethinking Section 142 of the Restatement of Restitution: Fault, Bad Faith, and Change of Position John D. McCamus* Abstract As a general rule, benefits transferredby mistake, such as moneys paidwhen mistakenly thought due, are recoverable in a restitution claim. Section 142 of the First Restatement of Restitution creates a defense to such claims to the extent that the payee, in reliance on the receipt,engages in a detrimental change ofposition, thereby making it inequitable to require repayment. The defense is unavailable, however, where the conduct of the payee in initially inducing the payment or in subsequent retention or dealings with the payment was either tortious or more at fault than the payer or, further, in the context of subsequent dealings, was undertakenby the payee with knowledge of the circumstancesentitling the payer to recovery. -
Contra Costa Superior Court Martinez, California Department: 39 Hearing Date: 10/01/20
CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 10/01/20 1. TIME: 9:00 CASE#: MSC16-01102 CASE NAME: DARLA MUTTER VS. MERITAGE HOME HEARING ON MOTION TO DETERMINE GOOD FAITH SETTLEMENT FILED BY SONRAY SOLAR, INC. * TENTATIVE RULING: * Dropped at the request of the moving party on September 18, 2020. 2. TIME: 9:00 CASE#: MSC19-01406 CASE NAME: PEREZ VS. BILL BRANDT FORD INC. HEARING ON DEMURRER TO 1st Amended COMPLAINT FILED BY BILL BRANDT FORD, INC., et al. * TENTATIVE RULING: * Before the Court is a Demurrer by Defendant Bill Brandt Ford, Defendant Rob Brandt, and Defendant Bobby Dell’Aringa. The Demurrer relates to Plaintiff Carlo Perez’s First Amended Complaint. The FAC alleges eleven causes of action, but the Demurrer is directed towards only the causes of action for (8) violation of California Business and Professions Code §§ 17200 et seq.; (9) negligent misrepresentation; (10) civil assault; and (11) negligent retention, hiring and supervision. For the following reasons, the demurrer is overruled-in-part and sustained-in-part, with leave to amend. Factual Background Defendant Bill Brandt Ford employed Plaintiff as a Finance Manager at its Brentwood, California facility. (FAC ¶ 1,2,17.) Defendant Rob Brandt and Defendant Bobby Dell’Aringa were also employed by Bill Brandt Ford at the time of the events of the FAC. (Id. ¶¶ 3,4.) Plaintiff alleges that during his tenure at Bill Brandt Ford, Defendants “engaged in a practice and/or scheme of unlawful chargebacks against Plaintiff’s earned commissions.” (Id. ¶ 18.) Plaintiff further alleges that “thousands of dollars in unlawful chargebacks were not expressly authorized in a written commission agreement between Plaintiff and Defendants.” (Id. -
Victim Restitution Guide
HOW IS RESTITUTION COLLECTED WHEN THE IS FINANCIAL ASSISTANCE AVAILABLE BEFORE THE OFFENDER IS RELEASED FROM PRISON? OFFENDER PAYS? Any outstanding restitution owed upon the offender’s You may be eligible for financial assistance through release will be referred to the Franchise Tax Board the Victim Compensation and Government Claims RIVERSIDE COUNTY (FTB). Victims may verify that their restitution debt Board (VCGCB) before the offender is sentenced and has been transferred to the FTB by calling the OVSRS. ordered to pay restitution or if a restitution order PROBATION was imposed, but restitution cannot be collected DEPARTMENT If an offender was in state prison, but is now under immediately. the supervision of the Probation Department, the CDCR may still be responsible for collection of Please contact your victim advocate for more restitution. information. WHAT SHOULD I DO IF I DON’T GET PAID? ARE ADDITIONAL VICTIM RESOURCES AVAILABLE? Restitution orders do not expire and cannot be You may also get help from: Victim discharged through bankruptcy. The offender’s restitution debt remains until it is paid in full. • California Victim Compensation Program 800-777-9229 Restitution If the offender is on probation, contact the Probation [email protected] Department at 951-955-9451, which will assist you in calvcp.ca.gov obtaining restitution from the offender. Guide • Riverside County Victim Services Main Office If the offender was sentenced to state prison, inform 951-955-5450 the CDCR’s OVSRS that you are not receiving • CDCR’s Office of Victim and Survivor Rights payments. and Services (OVSRS) 877-256-6877 CAN I COLLECT RESTITUTION AS CIVIL JUDGMENT? cdcr.ca.gov/victims If you would like to collect a restitution order on your • California Attorney General’s Office of Victim Services own, you may do so through a civil judgment. -
Law Relating to Torts
J.K.SHAH CLASSES CS EXECUTIVE - JURISPRUDENCE, INTERPRETATION AND GENERAL LAWS CHAPTER 3 LAW RELATING TO TORTS Q: Discuss the scope and conditions of liability for tort The term ‘tort’ is a French equivalent of English word ‘wrong’. Simply stated ‘tort’ means wrong. But every wrong or wrongful act is not a tort. Tort is really a kind of civil wrong as opposed to criminal wrong. Wrongs, in law, are either public or private. Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.” Thus, two important elements can be derived from above definitions, are: (i) that a tort is a species of civil injury of wrong as opposed to a criminal wrong, and (ii) that every civil wrong is not a tort. GENERAL CONDITIONS OF LIABILITY FOR A TORT In general, a tort consists of some act or omission done by the defendant (tortfeasor) whereby he has without just cause or excuse caused some harm to plaintiff. To constitute tort, there must be: • a wrongful act or omission of the defendant; • the wrongful act must result in causing legal damage to another; and • the wrongful act must be of such a nature as to give rise to a legal remedy. (i) Wrongful act : The act complained of, should under the circumstances, be legally wrongful as regards the party complaining. Thus, every person whose legal rights, e.g., right of reputation, right of bodily safety and freedom, and right to property are violated without legal excuse, has a right of action against the person who violated them, whether loss results from such violation or not. -
Paying for What You Get—Restitution Recovery for Breach of Contract
Pace Law Review Volume 38 Issue 2 Spring 2018 Article 7 April 2018 Paying for What You Get—Restitution Recovery for Breach of Contract Jean Fleming Powers South Texas College of Law Follow this and additional works at: https://digitalcommons.pace.edu/plr Part of the Contracts Commons Recommended Citation Jean Fleming Powers, Paying for What You Get—Restitution Recovery for Breach of Contract, 38 Pace L. Rev. 501 (2018) Available at: https://digitalcommons.pace.edu/plr/vol38/iss2/7 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. POWERS.DOCX (DO NOT DELETE) 5/8/18 10:33 PM Paying for What You Get—Restitution Recovery for Breach of Contract By Jean Fleming Powers* I. INTRODUCTION Many contracts casebooks, in dealing with contract remedies, include the case Sullivan v. O’Connor,1 a case dealing with an unsuccessful nose job.2 While a case about the results of surgery at first blush seems more fitting for a torts book, Sullivan, like its iconic counterpart Hawkins v. McGee3 uses a vivid fact pattern in an atypical contracts case4 to illustrate important points about contract remedies.5 Sullivan has the added benefit of providing a launching point for a discussion of the three contracts measures of recovery: expectation, reliance, and restitution.6 If the approach of the Restatement (Third) of Restitution and Unjust Enrichment7 [hereinafter referred to as “the Restatement of Restitution,” or just “the Restatement”] * Professor of Law, South Texas College of Law Houston; J.D., University of Houston Law Center, 1978; B.A. -
'Windfall' Restitution Awards in Financial Fraud Cases
G THE B IN EN V C R H E S A N 8 8 D 8 B 1 AR SINCE WWW. NYLJ.COM VOLUME 262—NO. 123 THURSDAY, DECEMBER 26, 2019 SECOND CIRCUIT REVIEW Expert Analysis Narrowing the Bounds of ‘Windfall’ Restitution Awards in Financial Fraud Cases n United States v. Calderon, No. of credit, thus, reduces the risk of 17-1956 (2d Cir. Dec. 3, 2019), nonpayment by foreign banks. Fol- the U.S. Court of Appeals for lowing the 2007 global financial cri- the Second Circuit limited the ses, International Industrial Bank of availability of “windfall” restitu- Russia (IIB)—USDA-approved foreign Ition awards and narrowed its inter- By And bank that had issued several letters Martin Brad S. pretation of the “proximate cause” Flumenbaum Karp of credit for the defendant—col- requirement for financial fraud vic- lapsed and defaulted on over $18 tims under the Mandatory Victims million in GSM-102 obligations to U.S. Restitution Act of 1996 (the MVRA), Export Credit Guarantee program banks CoBank and Deutsche Bank. 18 U.S.C. §3663A. In an opinion writ- (GSM-102). Designed to “increase Honoring its guarantees, the USDA ten by Circuit Judge Debra Ann Liv- exports of agricultural commodi- reimbursed the banks 98% of the ingston, and joined by Circuit Judges ties,” the GSM-102 program guar- unpaid principal. Amalya Kearse and Rosemary Pool- antees loans made by U.S. banks to District Court Proceedings er, the Second Circuit ruled that the foreign banks in connection with U.S. MVRA “does not supply a windfall for commodity exports to developing The Justice Department investi- those who independently enter into nations.