USA Law and Practice Contributed by: Courtney Scobie, Jack Edwards and Andrea Whitley, Ajamie LLP
actions or refrain from certain actions and can be used to prevent future harm, compel specific performance, or protect legal rights; and (b) specific performance – specific per- formance is an equitable remedy that requires a party to fulfil a specific contrac- tual obligation as outlined in the original agreement and is commonly used in cases involving real estate and unique items. • Rescission – rescission allows the parties to a contract to cancel or void the contract, returning both parties to their pre-contractual positions. • Declaratory judgment – a declaratory judg- ment is a court’s formal declaration of the rights, duties, or obligations of the parties involved in a legal dispute. It clarifies the legal relationship between the parties without awarding monetary damages. • Restitution – restitution is a remedy aimed at restoring any benefits or property wrong- fully obtained by the defendant to the right- ful owner. It is often used in cases involving unjust enrichment. • Attorney’s fees and costs – in some cases, a successful litigant may be entitled to recover attorney’s fees and litigation costs from the losing party. This is typically provided for in statutes, contracts, or through common-law principles. 9.2 Rules Regarding Damages Punitive damages, also known as exemplary damages, are intended to punish the defend- ant for wilful misconduct, gross negligence, or malicious behaviour. The primary purpose is to deter the defendant and others from engaging in similar behaviour. The availability of punitive damages varies by state and by the nature of the case. Some states have imposed limits on
punitive damages, whereas others allow them without specific caps. The US Supreme Court has also ruled that punitive damages must be reasonable and proportional to the harm caused. In some cases, statutes provide for specific amounts of damages for particular violations. By way of example, copyright infringement cases may involve statutory damages as provided by federal copyright law. Many types of cases, such as patent cases and antitrust matters, have their own statutory damages that should be reviewed by counsel prior to filing such matters. 9.3 Pre-judgment and Post-judgment Interest In the USA, parties may be entitled to collect both pre-judgment and post-judgment interest. However, the rules and parameters for each type of interest can vary based on federal or state law. Pre-judgment Interest Pre-judgment interest is interest that accrues on the amount of damages from the time the cause of action arose until the date of the judgment. The availability and calculation of pre-judgment interest are typically governed by state law and the rules can vary from one state to another. Post-judgment Interest Post-judgment interest is interest that accrues on the amount of the judgment from the date the judgment is entered until the judgment is paid. Post-judgment interest is generally governed by federal law ‒ specifically, 28 USC Section 1961, which sets the interest rate for federal judg- ments. The rate is based on the weekly average one-year constant maturity Treasury yield and is updated periodically by the US Department of the Treasury. Some exclusions do apply, such as Internal Revenue Service tax cases.
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