Gang Injunctions

This subject raises all sorts of issues.  As such, this is a post that we expect will be updated continually.

In cities across America, local governments are imposing “teen” curfews, and taking steps intended to protect our youth from danger.  Many times the danger is themselves, and their perceived invincibility.  We can all remember how much fun it was to be 18 years old and thinking that way, or not thinking at all, not knowing what to think about, etc.  Alas, back to Gang Injunctions.

In Columbia, SC, where we live, teenagers are not allowed in Five Points after __ PM.  The news on this issue is heated now in Oakland, CA.  In contrast, in Los Angeles, there seems to be less controversy over Gang Injunctions.

According to _____, the first gang injunction was issued in southern California in circa 1982.

Controversy over Gang Injunctions

In Oakland:

Samantha Macias has recently blogged on Gang Injunctions at In her piece, Samantha reference the ongoing dispute in Oakland, CA, as well as the “public nuisance” basis for these injunctions that preclude certain gang members from otherwise legal conduct / behavior.  Samantha reports that in Oakland, due at least in part to the historical racial issues there and

As with most anything, much can be learned from talking to the people who live in the communities affected by injunctions, and also spending enough time in those communities to at least begin to understand the historical, political, and soci0logical context in which the issue arises.


Gang Injunctions and Abatement: Using Civil Remedies to Curb Gang Related Crimes (CRC)

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“New Normal” of Global IP Wars: Apple v. Motorola (Google) over Android

We have previously written about a global injunction battle between Microsoft and Motorola over IP / patents in the popular Xbox devices for games, DVD playing, etc., mostly games.  As tweeted yesterday, PTO Chief compared these smartphone IP battles to steam engine and sewing machine IP disputes of their day and says these types of battles are to be expected.

Apple, like MS, has an ongoing battle with Motorola / Google over Google’s Android based devices, which are manufactured by more than one company.  Last week, U.S. Circuit Richard A. Posner, sitting by designation, issued an order ECF No. 1028 in Apple v. Motorola, 11-cv-08540,  canceling the trial on money damages, finding neither party could show a genuine issue of material fact regarding their alleged damages.  Judge Posner left open the possibility that he might change his mind  issue an order in favor of Apple on their motion for an injunctive or declaratory relief.  Motorola argues the court lacks jurisdiction to issue declaratory relief.

FOSS Patents provides excellent coverage of these ongoing smartphone disputes, including coverage of the jurisdictional issue as to whether or not the district court should “declare” whether or not Motorola’s device infringes Apple’s  patents.  Apple argues that such declaration is needed given the resources put into the existing case and would prevent need for a trial if remanded by the Federal Circuit.  According to FOSS, Apple is seeking declaratory relief which it hopes to leverage as against bother manufacturers of the Android device.  Google argues there is no jurisdiction if damages will not be awarded as against Motorola.  Apple would likely plan to use the declaratory judgment in its cases against other Android based device manufacturers, like LG, HTC and  others.

As with the MS / Motorola disputes, Apple has other Android cases in different jurisdictions.  In one case in Miami, Apple recently added HTC as a party in what some might say is an attempt to delay the trial of the matter.  As per the link at HTC in prior sentence, news on this subject is evolving on a moment-by-moment basis in district courts, foreign countries and in the ITC.  The opportunities for factual development, including even what FOSS refers to as the rent-a-patent model, and creativity in forum selection and claims selected are seemingly endless.

Judge Posner’s order states he will issue a final order within a week, which would be by this Thursday, June 14, 2012.  Stay tuned.  If Apple gets declaratory relief, this Chicago case is likely going up on appeal.

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Microsoft v. Motorola (Google) – Worldwide Injunction Battles in Multiple Jurisdictions (ITC, Germany and Seattle, WA)

With Microsoft’s rival, Google, acquiring Motorola, an ongoing IP battle between Microsoft and Motorola regarding patented technology in Microsoft’s popular Xbox may be taking on new significance.

This dispute could also involve anti-trust allegations, and raises issues of freedom of contract, licensing, unfair competition, and more.

The hearing Judge described this case as follows:

“The court is well aware it is being used as a pawn in a global, industrywide business negotiation … The conduct of both Microsoft and Motorola … has been driven by an attempt to secure commercial advantage. To an outsider looking at it, it has been arbitrary, it has been arrogant and, frankly, it has been based on hubris.”

Motorola is seeking 2.25% royalties from Microsoft, which Microsoft alleges could be as much as $4 Billion per year.  Motorola has accused Microsoft of inflating that figure.

Motorola’s patents at issue are described as “industry standard,” which apparently suggests the IP is widely licensed at a lower royalty.  So, does Microsoft have the right to a similar royalty rate as another company licensing the same volume?  Microsoft apparently thinks so.  Also, where is the irreparable harm here necessary to preserve the status quo?  My 13 year old twin boys and 15 year old son would argue that sales of Xbox are the status quo and Microsoft is likely good for the monetary judgment, but at what royalty rate?

Motorola has an injunction from Germany that is presently unenforceable due to a TRO in favor of Microsoft issued from the Seattle District Court.

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“Mandatory” Injunction re: 2010 Mudslides Just Ordered in Murrieta, CA (Bear Creek)

Injunction Comment:  This case is reported because mandatory injunctions are generally more difficult to obtain.  Mandatory injunctions also may not involve the need for instantaneous relief associated with ex parte Temporary Restraining Orders (“TRO”), preliminary / prohibitive injunctions designed to prevent irreparable harm.  Both types are intended to preserve the status quo.

The above link reports on an order from Murrieta, CA involving an April 23,  2012 order regarding two landslides that occurred in 2010.

The report states the landowner abandoned the property in the middle of construction, and failed to implement erosion control measures.  Many times, in public permitting for commercial projects, the applicant is required to post a bond to secure complete performance of the project to avoid erosion issues and other problems associated with large incomplete projects.  We do not suggest that CA institute a bond requirement for individual residential projects.

A copy of the order by Judge Daniel Ottiola can be obtained for a fee at  – The landowner being enjoined has a last name of “Eitzen.”

According to John T. Blanchard, author and editor of California Remedies: Commentary, Materials and Problems (3rd ed., 1997),  at , under CA law, the following would be required to obtain an injunction in CA:

  • Inadequacy of Legal Remedy. As an equitable remedy, it is always necessary that the moving party’s legal remedy be “inadequate” before equity may be invoked. Thus, if a legal remedy is available then permanent injunctive relief should always be denied. However, as noted above, provisional relief may, depending on the weighing of other factors, be available even when only legal relief is sought. However, provisional relief, though technically possible (that is, not jurisdictionally or otherwise improper), is often deemed unsuitable merely because a legal remedy would, assuming everything the claimant alleges is true, be available.
  • “Irreparable” Injury. Both the remedy statute and the common law provided for issuance of at least provisional relief in cases of so-called “irreparable” injury. The problem with this factor is not its general conception but in its specific definition. “Irreparable” does not mean “that which, if suffered, could not under any circumstances be repaired or compensated because all other remedies are utterly worthless”; such a definition (however appealing as a matter of “plain language”) would unduly restrict the flexible powers of a court of equity. The term has often been defined as “that species of damages, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other.” However, especially when the reference to “small” is highlighted, suggests that any offense, however trivial, is a proper subject for injunctive relief. While it remains an unsatisfactory formulation, definition of “irreparable” as meaning wrongs of a “repeated and continuing character” and/or including “an overbearing assumption . . . of superiority and domination over the rights and property of others” is more workable (at least as long as care is taken not to equate personal offense, “overbearing”, with “actionable — personal offensiveness or arrogance is not, by itself, actionable).
  • Likelihood of Success. Though parties who succeed in obtaining provisional relief consistently brandish their success, and the judicial finding that it is “likely” that they will ultimately succeed in the action, throughout the balance of the litigation, all that a trial court need do to support issuance of the provisional remedy is find a “reasonable probability” of the moving party’s ultimate success. Of course, the more likely it is that the moving party will ultimately succeed in the action (whether by complaint or cross-complaint), the more likely it is that provisional injunctive relief will be granted. Obviously, this factor applies only to provisional relief; permanent injunctive relief is granted only if it is not only likely that the moving party will succeed, it will (since such relief is granted only following trial) be a certainty.
  • Balance of Hardship. The tactical advantage of injunctive relief pendente lite is difficult to overestimate. Many provisional remedies (of which injunction is only one) operate as practical blackjacks in litigation. Thus, if the damage to the moving party if the injunction is not granted does not equal or outweigh the disadvantage or hardship to be visited on the opposing party if it is granted then the injunction will be denied.

Eugene Kinsey in Seal Beach, CA also writes on injunctions under CA law at .  Kinsey provides a concise summary of the four elements of proof to obtain an injunction under CA law, along with statutory citations (e.g., CA. Civ. Code §3367(2) (mandatory injunctions and Civ. Code §3368 (prohibitory injunctions)).

    1. an inadequate remedy at law, meaning that compensation would be insufficient;
    2. a serious risk of irreparable harm absent injunctive relief;
    3. a likelihood that the plaintiff will prevail on the merits of the underlying controversy; and
    4. a comparison of the harm to defendant in issuing an injunction versus the harm to plaintiff in withholding it, which on balance favors the plaintiff.

See also White v. Davis, 68 P.3d 74, 91 (Cal. 2003) (cited in Injunctive Relief, by Kristin Stoll-Debell,  and Nancy L and Bradford E. Dempsey (ABA 2009)).

The above ABA book by Kristin Stoll-Debell and Nancy and Brad Dempsey is a highly recommended resource for any practitioner that expects to be filing for injunctive relief at any point in their career, and that should be pretty much all litigation attorneys.  You will be glad you had this book when crunch time hits and your clients needs an emergency hearing the next day.   Order your office a copy today at

Stay tuned for an upcoming post / coverage of Gang Injunctions.

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What is a SuperInjunction?

What is a SuperInjunction?

MacMillan Dictionary defines “superinjunction” is a “a form of gagging order (i.e., an order from a judge stopping reporters from talking or writing about a case that has not yet been decided) in which the press is not even allowed to report on the existence and details of an injunction.”  Macmillan further reports that 30 such Super-Injunctions have issued, mostly in the U.K.  Super injunctions address such varied issues as water pollution, sexual affairs, sporting hero’s private lives, and the right to die.

Similarly, (Learn the Law) defines a “superinjunction” as an “injunction obtained in a secret convening of the court where in the result, the court file, the names of the parties and even the terms of the injunction order are secret except as between the parties, counsel, the judge and the court staff.”

According to Meejalaw,  the term, superinjunction, came into existence in 2009 after a major media outlet reported jokingly that an injunction coupled with  the court’s contempt powers was a “class-action” injunction., a media law and ethics site, includes a very useful chart of privacy injunctions from 2010-2012, all from courts in the U.K.  For an excellent review of decisions on superinjunctions, see Townend’s chart.

Another source for news mostly on celebrities and public figures is The Super Injunction Blog, which claims “Everything on this blog is speculation and lies and gossip.”

An example of a Super Injunction …

One order in Townend’s chart addresses a potential blackmail situation regarding exposure of a private affair.   The court acknowledged that the alleged blackmailer might avoid service of a conventional injunction order, therefore, the court took the additional step of ordering, “The order also provided that there should be no report of the existence of the proceedings themselves. I considered that provision in particular to be necessary for a short period because of the ‘tipping off’ risk to which I have referred.”  In this order, the court also noted that a number of media organizations were also served with the order.  Who is responsible for serving the media?  The Court, the litigants?  How would they know if they had served all necessary media?

This decision involved a so-called superinjunction or privacy injunction issued under authority of CPR 39.2(3).   U S. court rules also provide for protection of disclosure of litigant’s information.  See e.g., Fed. R. Civ. P. Rule 5.2.  Therefore, while superinjunctions seem to be more of a U.K. and E.U. phenomenon, presumably information put before a U.S. state or federal court might also result in an order enjoining disclosure of the subject matter of the order enforceable by the court’s contempt powers.

In another example of a Super-Injunction, it is reported that Parliament itself was the subject of a gag order.

Are super Injunction orders enforceable?

The confusing “super-injunction supernova” as referred to by Adam Wagner in ”The super-injunction toolkit” on his UK Human Rights Blog references several blogs that discus s the problem of tweets regarding the existence of superinjunctions.  Imagine someone in the U.K. reads a s0-called superinjunction and then calls a friend in the U.S. or elsewhere who then tweets the information with appropriate #hashtags such that the secret news is quickly trending on Twitter.  Would the U.S. citizen be subject to contempt under a U.K. order not to disclose terms of a so-called superinjunction? Superinjunctions and social media pose a similar problem as jurors in trials who can readily disobey a judge’s instructions to consider only the evidence presented at trial, using their smart phones, iPads, laptops, or even home computers.

In his acclaimed blog, The New Statesman, David Allen Green in “Thinking clearly about superinjunctions” describes the background of superinjunctions as follows:

The background to all this is that the word “superinjunction” now has a special and exciting quality. This is strange as, in one important way, “superinjunctions” do not really exist. What the High Court can offer are injunctions: court orders directed at parties so as to prevent certain specified courses of action. A “superinjunction” is just a normal injunction but with strict terms, and it is not an entirely new legal creature. Strict injunctions are as old as the equitable jurisdiction of the High Court.

Green’s work suggests superinjunctions are necessary to protect legitimate rights, namely “confidentiality, legal professional privilege, [and] private information.”  Superinjunctions, however, are counter to the conventional wisdom that the courts are open to the public.  So, do American citizens have less rights of privacy and confidentiality than U.K. citizens as a result of the First Amendment prohibition against prior restraints?

How is a Super Injunction Different?

A superinjunction is a form of prohibitory injunction coupled with the court’s contempt powers providing that anyone that reads the order is also, presumably, put on notice of being subject to contempt for improper disclosure of even the existence of the court order.

So is the “superinjunction” just a derogatory term created by paparazzi wishing to be free of restrictions on reporting on the private lives of litigants in domestic or otherwise private affairs?

Super Injunctions in the U.S.?

Tom Geoghegan of the BBC addresses the issue of why superinjunctions do not occur in the U.S., and attributes the reason to greater media rights in the U.S., specifically the Constitutional prohibition against “prior restraints” provided in the First Amendment.

Geoghegan notes the well known Pentagon Papers case from 1971 is one example of a prior restraint in the U.S.  In the U.S., national security would be one rationale, perhaps the only one, for what is now known in the U.K. and abroad as a superinjunction.

In a recent case involving a public school superintendent’s affair and a FOIA request for her emails from her work email address, the court granted the former superintendent’s request to enjoin further personal related emails.  The request was based upon movant’s argument that a small number of the emails are “of a purely personal nature” and “of no public interest.”

This decision looks a bit like a Super-Injunction, however, it appears to be based upon interpreting the Iowa FOIA (Iowa Code §22.1) rather than applying a common law right to privacy that would be in conflict with the constitutional prohibition against prior restraints.

What is required to obtain a so-called superinjunction?

In the example case referenced above from Townend’s, the court summarized the relevant principles of so-called “superinjunctions” as follows:

Interim relief before trial.  Since this is an application which, if granted, might affect the exercise of the right to freedom of expression, section 12 of the Human Rights Act 1998 applies and no relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

“As to what degree of likelihood makes the prospects of success ‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial.” See Cream Holdings Ltd v Banerjee [2005] 1 AC 253, at [22] per Lord Nicholls.

Private information. When considering whether the publication of information which is said to be private should be permitted, the court must first decide whether the information in question is private, that is whether the claimant has a reasonable expectation of privacy in respect of that information such that the claimant’s rights under Article 8 of the European Convention on Human Rights are engaged (stage 1). If yes, the Court must then engage in a balancing exercise, weighing the Article 8 rights of the claimant against the Article 10 rights of the defendant (stage 2). See e.g. Murray v Express Newspapers Plc [2009] Ch 481at [ 24], [27], [35] and [40].

In Murray the Court of Appeal said at [35] that the question at stage 1 is “a broad one” which “takes account of all the circumstances of the case”. The Court of Appeal also quoted with approval Lord Hope’s formulation of the test in Campbell v MGN [2004] 2 AC 457, [99]:

“The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the Claimant and faced the same publicity”

Relevant considerations include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent, whether it was known or could be inferred that consent was absent and the effect (of disclosure) on the claimant (see Murray at [36]).

The Court should approach the balancing exercise at stage 2 in this way:

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each”

per Lord Steyn in Re S (a child) [2005] 1 AC 593 at [17].

Public Interest. It is not enough for information to be interesting to the public. Publication of the information must be in the public interest. The modern approach in any event is to consider public interest as an aspect of proportionality: see HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 at [68].

The court in the case above held the blackmail allegation met the public interest requirement.

Also missing from these superinjunction orders is a requirement that the applicant post a bond.  See e.g., Fed. R. Civ. P. 65(c).

Tracking Super-Injunctions:

Simon Stokes and Elaine Heywood with Blake Lapthorn report of a court ordered study on superinjunctions or privacy related injunctions, as well as a model order and guidance. The guidance provides, “privacy injunctions should only be granted ‘when they are strictly necessary to secure the proper administration of justice’ and that where the respondent, or a non-party involved in the application, is a media organisation only rarely will it be justified to not give the media organisation notice of the application.”  Stokes and Heywood also quote this guidance as stating, “different considerations may arise where a respondent or non-party is an internet-based organisation, tweeter or blogger, or where there are allegations of blackmail.”

Is this coming close to court regulation of media as opposed to deciding cases and controversies?  This system is, arguably, akin to creating a site where media must conduct a “background” check to see if the subject they are about to write on is not “subject to contempt.”

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